State v. Soles

• Court: Kansas Supreme Court
• Writing for the Court: OWSLEY
• Citation: State v. Soles, 585 P.2d 1032, 224 Kan. 698 (Kan. 1978)
• Decision Date: 28 October 1978
• Docket Number: No. 49303,49303
• Parties: STATE of Kansas, Appellee, v. Michael Ray SOLES, Appellant.

Page 1032

585 P.2d 1032

224 Kan. 698

STATE of Kansas, Appellee, v. Michael Ray SOLES, Appellant.

No. 49303.

Supreme Court of Kansas.

Oct. 28, 1978.

Syllabus by the Court

In an appeal by defendant Michael Ray Soles from a jury conviction of three counts of first degree murder (K.S.A. 21-3401), one count of aggravated burglary (K.S.A. 21-3716), seven counts of aggravated battery (K.S.A. 21-3414), and one count of aggravated assault (K.S.A. 21-3410), arising out of a sniping incident in Wichita, the record is examined and it is Held : The trial court did not err in denying a motion for new trial on the grounds of (1) defendant's incompetency to stand trial, (2) the admission in evidence of various photographs, (3) the prosecutor's conduct in the courtroom, (4) defense counsel's inability to interview a witness before trial, and (5) impropriety of the prosecutor and the trial judge regarding questioning of a defense witness before trial.

C. William Cather, Wichita, argued the cause and was on the brief for appellant.

Stephen E. Robison, Asst. Dist. Atty., argued the cause, Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Stuart W. Gribble, Asst. Dist. Atty., were on the brief for appellee.

OWSLEY, Justice:

This is an appeal by defendant Michael Ray Soles from a jury verdict finding him guilty of three counts of first degree murder (K.S.A. 21-3401), one count of aggravated burglary (K.S.A. 21-3716), seven counts of aggravated battery (K.S.A. 21-3414), and one count of aggravated assault (K.S.A. 21-3410). The charges stem from a shooting spree carried out by Soles on August 11, 1976, from atop the highest building in downtown Wichita.

The facts are undisputed. Michael Ray Soles took his 30-30 rifle, the shells he had made that morning, and an extra gun, and drove to the Holiday Inn in downtown Wichita, stopping only once to buy more shells. After reaching the hotel, he parked his car and went to the top of the building. The roof was inaccessible, so he forced a maid out of a room on the twenty-sixth floor and went in, locking the door behind him. He then began shooting out of the window toward the street below. The shooting spree left three persons dead and seven wounded. He was finally apprehended and taken into custody by the police. He appeals from his convictions on the above charges. Defendant contends he lacked competency to stand trial. The competency hearing was held on September 15, 1976, at which time Dr. Sayed Jehan of the Sedgwick County Mental Health Clinic presented testimony based upon his examination of defendant on August 25, 1976. Defendant first argues Dr. Jehan did not have all the evidence with which to make a proper evaluation because he did not have access to a state-ordered psychiatric evaluation report made on August 11, and because Dr. Jehan was not aware of the observations of a sheriff's detective made on August 17. Both the psychiatrist's report and the detective's observations noted that defendant purported to be in a trance-like state. In addition, defendant contends Dr. Jehan did not have the benefit of the report of Dr. T. A. Moeller, who had administered a Thematic Apperception Test to defendant. He claims the state was obligated to present this additional evidence at the competency hearing and that failure to do so resulted in an invalid evaluation.

In addition to the above mentioned tests and reports which appear to have been made before the competency hearing, defendant claims the trial court erred in not considering the October, 1976, court-ordered examination concerning Soles' mental state, the testimony at trial of a Dr. Leslie Ruthven, a ten-year-old report on Soles made by the Children's Medical Center, and observations of officers and a fellow prisoner regarding defendant's behavior after court recessed for the day on December 21, 1976.

K.S.A. 22-3301 governs the test for determining competency to stand trial:

"(1) For the purpose of this article, a person is 'incompetent to stand trial' when he is charged with a crime and, because of mental illness or defect is unable:

"(A) to understand the nature and purpose of the proceedings against him; or

"(B) to make or assist in making his defense.

"(2) Whenever the words 'competent,' 'competency,' 'incompetent' and 'incompetency' are used without qualification in this article, they shall refer to the defendant's competency or incompetency to stand trial, as defined in subsection (1) of this section."

Also, the test is stated in the often quoted case of State v. Severns, 184 Kan. 213, 336 P.2d 447 (1959):

"(T)he test of insanity of an accused precluding his being Put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner. Stated in different fashion, if the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound. (p. 219, 336 P.2d p. 452.)

See also, State v. Gilder, 223 Kan. 220, 574 P.2d 196 (1977); State v. Holloway, 219 Kan. 245, 547 P.2d 741 (1976); State v. Randol, 212 Kan. 461, 513 P.2d 248 (1973); State v. Hamrick, 206 Kan. 543, 479 P.2d 854 (1971); State v. Childs, 198 Kan. 4, 422 P.2d 898 (1967); Van Dusen v. State, 197 Kan. 718, 421 P.2d 197 (1966); Kiser v. State, 196 Kan. 736, 413 P.2d 1002 (1966).

Dr. Jehan's report appears to make a clear distinction between the emotional stress defendant was experiencing and his inability to cope with anger and hostility, as opposed to his ability to understand the nature of the proceedings against him. His report states Soles' memory and concentration were good throughout the examination and, although the doctor recommended Soles be treated to learn how to vent his frustrations in a normal manner, Soles was not suffering from any psychosis at that time and was, in the doctor's opinion, competent to stand trial.

A reviewing court is limited to an inquiry into whether the trial court's finding of competency amounted to an abuse of discretion. State v. Gilder, 223 Kan. at 224-25, 574 P.2d 196; State v. Lewis, 220 Kan. 791, 796, 556 P.2d 888 (1976); Johnson v. State, 208 Kan. 862, 863, 494 P.2d 1078 (1972); State v. Childs, 198 Kan. at 8, 422 P.2d 898. There is no evidence to suggest the trial court abused its discretion in ordering defendant competent to stand trial, based upon Dr. Jehan's report. Also, there has been no showing the state deliberately withheld from the trial court's consideration the reports taken before the competency hearing. We note, however, all reports and observations made both before and after the competency hearing were eventually presented at trial.

K.S.A.1977 Supp. 22-3302 allows a defendant, his counsel, or the prosecuting attorney upon request, or the judge upon his own observations, to request a determination of the defendant's competency to stand trial at any time after defendant has been charged and before sentencing. The record does not indicate any of the parties made such a request. The trial court duly noted defendant's behavior during court and heard the testimony of those witnesses who observed defendant after court recessed on December 21, 1976. The court did not believe defendant's competency to stand trial had been impaired by the incident and proceeded with the trial. Under the circumstances, we find the trial court did not err in failing to order a determination of competency based upon the later evidence submitted at trial.

Defendant also contends he was unable to assist in his defense due to amnesia, to which Dr. Jehan alluded in his report. We have spoken on the effect amnesia may have on a defendant's competency to stand trial and do not deem it necessary to belabor the point here. See State v. Gilder, 223 Kan. at 224, 574 P.2d 196; State v. Blake, 209 Kan. 196, 495 P.2d 905 (1972); State v. Severns, 184 Kan. at 218, 336 P.2d 447. We see no evidence the trial court abused its discretion as to the competency of defendant to stand trial.

Defendant's second contention goes to the relevancy and possible inflammatory nature of the state's evidence. Defendant believes that when the facts of the crime have been stipulated to in advance and counsel has given notice it is using an insanity defense, the introduction into evidence of photos, in particular those of the victims, is irrelevant and inflammatory to the jury. He complains of the admission of black and white photographs of the victims as they lay in the street after the shooting, color slides of the insides of various automobiles filled with blood, sacks containing clothing, papers and film cannisters covered with blood, and chat samples taken from a roof to show the roof was blood-stained. The state argues the evidence was admitted in order to prove defendant acted deliberately, willfully, knowingly and with premeditation.

We have viewed the photographs and slides submitted by the parties and we do not find them shocking or gruesome to the point of prejudicing the jury. In view of defendant's insanity defense, it was necessary for the state to prove defendant acted knowingly and...