State v. Seelke, 48323
| Decision Date | 05 March 1977 |
| Docket Number | No. 48323,48323 |
| Parties | The STATE of Kansas, Appellee, v. Janice A. SEELKE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where a defendant is charged with murder in the first degree (21-3401), the crimes of murder in the second degree (21-3402), voluntary manslaughter (21-3403), and involuntary manslaughter (21-3404) are considered to be lesser degrees of the crime charged.
2. A trial court's duty under K.S.A. 21-3107 to instruct on a lesser degree of a crime arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense.
3. General rules involving the duty of a trial court to instruct on the lesser degrees of murder are stated and applied.
4. The record is examined in a criminal action in which the defendant was charged with second-degree murder and it is held that the trial court erred in failing to instruct the jury on the lesser included offense of involuntary manslaughter and in excluding certain evidence proffered by the defendant.
Richard H. Rumsey, of Rumsey, Cox & Richey, Wichita, argued the cause, and James F. Richey, Wichita, was with him on the brief for appellant.
Stephen E. Robison, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Christopher Randall, Asst. Dist. Atty., were with him on the brief for appellee.
This is a direct appeal in a criminal action in which the defendant-appellant, Janice A. Seelke, was charged with second-degree murder (K.S.A. 21-3402) and convicted of voluntary manslaughter (K.S.A. 21-3403). At the trial the factual circumstances were not greatly in dispute and essentially were as follows: In the early morning hours of January 25, 1975, the defendant shot and killed her husband, Hubert J. Seelke. The couple had been married for some 15 months and had been experiencing marital difficulties. At the time of the shooting their twin babies were three-months old and were lying in a crib in the room adjacent to where Mr. Seelke was killed. At the time of the shooting the defendant weighed approximately 104 pounds; the decedent weighed approximately 200 pounds and was 6 2 tall. Hubert J. Seelke had been released from the psychiatric ward of St. Francis Hospital in Wichita on the afternoon prior to the shooting. On the way home he became upset with the defendant, got out of the car, and immediately starting drinking. He first went to a friend's house and then to two private clubs. From there Hubert and two companions drove to the Seelke residence at approximately 11:00 p. m.
The evidence was undisputed that Hubert was a mean drunk at the time he arrived home. The defendant was asleep when the trio arrived at the Seelke home but awoke upon hearing a banging at the door. She looked out and saw her husband with two persons whom she described as 'hippies' who were jumping up and down making a lot of noise. Defendant refused to let her husband's companions into the house and they departed. The state's evidence indicated that the defendant threatened her husband and friends if they did not leave. One of his drinking companions testified he saw a silhouette of the defendant inside the house holding a shotgun.
From this point the circumstances of the shooting and the events immediately prior thereto came from the lips of the defendant, Janice A. Seelke. After Hubert's companions left the area, he entered the house. He obviously had been drinking heavily and his eyes were glassy. She criticized him for drinking. He referred to her friends as 'whores' and 'bitches.' She then went back to bed. Hubert followed her into bed and demanded that she have intercourse with him. She refused. He jumped on top of her and began beating her. He struck her under her right breast and then continued hitting her as hard as he could. During the beating he advised her that if she and the babies were not going to New York with him he was 'going to kill all three of you.' He hit her on the head, bit her on the leg, pulled a portion of her clothing off, and forced her to have intercourse. He then forced her to have anal intercourse. According to defendant during the episode Hubert strangled her and she passed out on three separate occasions.
She jumped out of bed. He threatened her again with anal intercourse and stated that he intended to kill her and the babies. She grabbed a shotgun which was standing next to the bed. He again threatened to kill her and the babies and she shot him three times. He was still threatening her when she reloaded the gun and fired a fourth shot.
The defendant testified in detail as to her state of mind at the time the shots were fired. She stated that she did not know where any of the shots went. She was frightened, scared, and hurting. She did not want to kill, or hurt, or shoot him. But also she did not want to die or have her babies die. If she had wanted to kill him, she would have aimed at his heart or brain or temple. She only wanted to prevent him from coming after her and from killing her and the babies like he said he was going to do. Medical evidence indicated that three of the shots struck Hubert, with the fatal shot hitting him in the right side of the chest. There was evidence that no fragment from the fourth shot entered his body. At the time she fired the fourth shot he was raising up, continuing to threaten to kill her and the babies. The entire shooting incident took a matter of seconds.
The Seelke home where the shooting occurred was located in rural Sedgwick county. Defendant had no car, no telephone, and the nearest neighbor was one-half mile away. After the shooting the defendant ran to the neighbor's residence and requested that she call the police and an ambulance. Later, because of her physical condition, defendant was taken to the emergency room of St. Francis Hospital. A physician testified as to defendant's condition, substantiating the beating she suffered from her husband. One of the defendant's eyes was swollen half shut and discolored. There was discoloration across the bridge of her nose, her lip was swollen and cut, and there were innumerable bruises over the ribs on her left side. There was a tear of her vagina and her abdomen was very tender. She complained of severed headaches and the doctor referred her to a neurologist.
At the trial the defendant offered testimony as to the stormy marital relationship of the Seelkes. Hubert Seelke was described as a 'Dr. Jekyll and Mr. Hyde.' He was a diabetic, and when drinking became an explosive and abusive personality. He would physically abuse his wife, threaten his own life and the lives of his wife and infant children, break windows and black out for periods of time. The couple sought psychiatric help for Hubert from the psychiatric ward of St. Francis Hospital. Both the defendant and Hubert were concerned about his erratic behavior, his heavy drinking, and his physical mistreatment of defendant. The doctor warned Hubert in the presence of his wife that drinking alcohol would be like 'lighting a match to a gasoline can.'
Following the shooting the defendant gave statements to the police both that evening and several days later. Although there were some inconsistencies between these statements and her testimony at the trial, defendant consistently denied having any intention to kill her husband, stating that she shot him only to protect the lives of herself and the babies.
The testimony at the trial was not all in defendant's favor. The state's evidence indicated that when Hubert knocked at the door of the home, she stated 'You can't come in and if you do I will shoot you.' The evidence further established that the physical characteristics of the shotgun required the defendant to pump the second and third shells into the chamber before firing them and required her to reload the gun before firing the fourth shot. Defendant first denied that she had reloaded the shotgun but later changed her story, saying that she did reload the gun because he was still moving. She also stated that Hubert had told her if she shot him she had better kill him. As noted above the defendant was convicted of voluntary manslaughter and she now appeals from that conviction.
The primary issue raised by the defendant on this appeal is that the trial court erred in failing to instruct the jury on involuntary manslaughter (K.S.A. 21-3404) as a lesser degree of the crime of murder. The duties of a trial court to instruct on lesser included crimes is governed by K.S.A. 21-3107(2) and (3) which provide:
'21-3107. . . .
'(b) An attempt to commit the crime charged;
'(c) An attempt to commit a lesser degree of the crime charged; or
'(d) A crime necessarily proved if the crime charged were proved.
'(3) In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.'
Where a person is charged with murder in the first degree (21-3401), the crimes of murder in the second degree (21-3402), voluntary manslaughter (21-3403), and involuntary manslaughter (21-3404) are considered to be lesser degrees of the crime charged. However, under 21-3107(3) the court's duty to instruct on a lesser degree of a crime arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense. In order for such an instruction to be required some evidence must be presented tending to show that defendant should be...
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