State v. Shannon

• Court: Kansas Supreme Court
• Writing for the Court: ABBOTT
• Citation: State v. Shannon, 258 Kan. 425, 905 P.2d 649 (Kan. 1995)
• Decision Date: 27 October 1995
• Docket Number: No. 72040,72040
• Parties: STATE of Kansas, Appellee, v. Rachelle SHANNON, Appellant.

Page 649

905 P.2d 649

258 Kan. 425

STATE of Kansas, Appellee, v. Rachelle SHANNON, Appellant.

No. 72040.

Supreme Court of Kansas.

Oct. 27, 1995.

Syllabus by the Court

1. K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. This is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense. The duty does not arise unless there is evidence supporting the lesser offense. While there is some weighing ofthe evidence in this analysis, the weighing of evidence is not a retrial of the case. The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant.

2. K.S.A.1994 Supp. 21-3402(b) defines second-degree murder as a killing committed "unintentionally but recklessly under circumstances manifesting indifference to the value of human life." The language of the attempt statute, K.S.A.1994 Supp. 21-3301(a), requires that a person possess the specific intent to commit the crime charged. It is logically impossible to specifically intend to commit an unintentional crime. Kansas does not recognize the crime of attempted second-degree murder as defined in K.S.A.1994 Supp. 21-3402(b).

3. Kansas does not recognize the crime of attempted involuntary manslaughter. State v. Collins, 257 Kan. 408, Syl. p 4, 893 P.2d 217 (1995).

4. Voluntary manslaughter requires an intentional killing committed with an unreasonable but honest belief that the circumstances justified deadly force to defend another against an aggressor's imminent use of unlawful force. No instruction on attempted voluntary manslaughter is necessary when the record contains no evidence the accused honestly believed the aggressor was performing an unlawful act.

5. The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community and that it is reasonably certain he or she did not obtain a fair trial.

6. The purpose of the voir dire examination is to enable the parties to select competent jurors who have no bias, prejudice, or partiality. The nature and scope of the voir dire examination lies within the sound discretion of the trial court. Likewise, the manner in which voir dire is conducted must lie within the sound discretion of the trial court.

7. A judgment of contempt lies within the sound discretion of the trial court before whom the matter is pending. Such judgment will not be reversed absent an abuse of that discretion.

8. A defendant has the right to a jury trial where the sentence imposed for contempt of court exceeds six months.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Doyle Baker, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with him on the brief for appellee.

ABBOTT, Justice:

This is a direct appeal by the defendant, Rachelle Shannon, from her convictions for attempted first-degree murder and aggravated assault. The defendant also appeals the trial court's finding and its imposition of a one-year sentence for contempt of court.

The defendant testified at trial. She admitted shooting the victim and admitted that she intended to shoot at him. Her defense focused on whether she had the requisite intent to kill him.

She raises five issues on appeal. She contends the trial judge erred in (1) not instructing on other charges the defendant perceives to be lesser included offenses; (2) denying defendant's motion for change of venue; (3) both holding her in contempt of court and the length of sentence he imposed for contempt; (4) limiting the direct examination of her; and (5) abusing his discretion in denying the defense's request for individual voir dire.

I. LESSER INCLUDED OFFENSES

The defendant's first complaint is that the trial court failed to instruct the jury on the lesser included offenses of attempted second-degree murder under K.S.A.1994 Supp. 21-3402(b), attempted voluntary manslaughter under K.S.A.1994 Supp. 21-3402(b), and attempted involuntary manslaughter under K.S.A.1994 Supp. 21-3404(a) and (c).

K.S.A. 21-3107(3) requires the trial court to instruct the jury not only as to the crime charged but also as to all lesser included crimes of which the accused might be found guilty. This is an affirmative duty of the trial court and applies whether or not the defendant requests the instructions. State v. Bowman, 252 Kan. 883, 892, 850 P.2d 236 (1993). An instruction on a lesser included offense is required if there is substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense. State v. Mitchell, 234 Kan. 185, 189, 672 P.2d 1 (1983). However, the duty "does not arise unless there is evidence supporting the lesser offense." State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). While there is some weighing of the evidence in this analysis, the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992). The evidence supporting the lesser included offense must be viewed in the light most favorable to the defendant.

The relevant statutes are as follows:

"An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime." K.S.A.1994 Supp. 21-3301(a).

"Murder in the second degree is the killing of a human being committed ... unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life." K.S.A.1994 Supp. 21-3402(b).

"Voluntary manslaughter is the intentional killing of a human being committed ... upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211...." K.S.A.1994 Supp. 21-3403(b).

"A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force." K.S.A. 21-3211.

"Involuntary manslaughter is the unintentional killing of a human being committed:

(a) Recklessly;

....

(c) during the commission of a lawful act in an unlawful manner." K.S.A.1994 Supp. 21-3404(a) and (c).

The defendant's argument concerning attempted involuntary manslaughter and attempted second-degree murder is flawed. The defendant points to her testimony where she expressed indifference as to whether the victim lived or died. She testified she wanted to stop the victim from performing abortions; she did not necessarily want to kill him. She reasons that this testimony demonstrates she had no specific intent to kill the victim. The flaw in defendant's argument is based not on her testimony, but rather on the fact that neither attempted involuntary manslaughter under K.S.A.1994 Supp. 21-3404(a) or (c) nor attempted second-degree murder under K.S.A.1994 Supp. 21-3402(b) are recognized offenses in Kansas.

In the recent case of State v. Collins, 257 Kan. 408, Syl. p 4, 893 P.2d 217 (1995), this court held that the crime of attempted involuntary manslaughter does not exist in Kansas.

"The language of the attempt statute, K.S.A. [1994] Supp. 21-3301(a), requires that a person possess the specific intent to commit the crime. Therefore, to establish the crime of attempted involuntary manslaughter the person would be required to specifically intend to commit an unintentional crime. This is a logical impossibility.... We conclude that Kansas does not recognize the crime of attempted involuntary manslaughter." (Emphasis added.) 257 Kan. at 419, 893 P.2d 217.

Involuntary manslaughter requires an unintentional killing. K.S.A.1994 Supp. 21-3404. The language of the involuntary manslaughter statute, K.S.A. 21-3404, has been amended in recent years. The version of the statute at issue in Collins (K.S.A. 21-3404) differs from the version at issue in this case (K.S.A.1994 Supp. 21-3404). However, both the former and the present versions require an unintentional killing, and it was the attempt to commit an unintentional act that Collins found impossible.

The Collins analysis equally applies to attempted second-degree murder under K.S.A.1994 Supp. 21-3402(b). In the past, this court has recognized "attempted second-degree murder" as a lesser included offense of attempted first-degree murder. See State v. Dixon, 252 Kan. at 41-42, 843 P.2d 182. Significantly, however, such recognition was based on the former language of the second-degree murder statute. K.S.A. 21-3402 defined second-degree murder as "the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony." Effective July 1, 1993, K.S.A. 21-3402 was amended and second-degree murder is now defined alternatively as a killing committed intentionally (subsection [a] ) or a killing committed "unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life" (subsection [b] ). K.S.A.1994 Supp. 21-3402. Attempted second-degree murder under subsection (a) is a lesser included offense of attempted first-degree murder.

However, the defendant belie...