State v. Stone

• Citation: 853 P.2d 662,253 Kan. 105
• Decision Date: 28 May 1993
• Docket Number: No. 68149,68149
• Parties: STATE of Kansas, Appellee, v. Richard STONE, Appellant.
• Court: Kansas Supreme Court

Page 662

853 P.2d 662

253 Kan. 105

STATE of Kansas, Appellee, v. Richard STONE, Appellant.

No. 68149.

Supreme Court of Kansas.

May 28, 1993.

Syllabus by the Court

1. PIK Crim.2d 54.01 (1992 Supp.) relative to intent is considered and held to create a permissible inference rather than an improper rebuttable presumption and, accordingly, is not violative of a defendant's constitutional right to due process.

2. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

3. The law is well settled in this state that, in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.

4. Failure of the trial court to instruct the jury on vehicular homicide as a lesser included offense of involuntary manslaughter is held not to constitute error under the facts herein.

Stephen Douglas Bonney, Special Appellate Defender, Kansas City, MO, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellant.

David Lowden, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

McFARLAND, Justice:

Richard Stone appeals his jury trial convictions of second-degree murder (K.S.A. 21-3402) and misdemeanor theft (K.S.A. 21-3701). No issues relative to the theft conviction are asserted.

INSTRUCTION ON INTENT

For his first issue on appeal, the defendant contends that the intent instruction "Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant."

given by the court (PIK Crim.2d 54.01 [1992 Supp.] violated his constitutional right to due process. The instruction provides:

The defendant argues that this instruction created a presumption that relieved the State from proving the intent-to-kill element of second-degree murder, thereby violating his constitutional right to due process. In support thereof, he cites Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), and Wiley v. Rayl, 767 F.2d 679 (10th Cir.1985).

In this issue, the defendant plows no new ground. The intent instructions at issue in both Francis and Wiley were radically different than the one given herein. In State v. Mason, 238 Kan. 129, 708 P.2d 963 (1985), we discussed the holdings in said cases as follows:

"After the briefs were filed in this case, the United States Supreme Court announced its opinion in Francis v. Franklin [citation omitted], and diligent counsel for the appellant have called that case to our attention as well as a more recent case of the United States Court of Appeals for the Tenth Circuit, which we will discuss later in this opinion. In Francis, the court stated the issue before it as follows:

'This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979).

Specifically, we must evaluate jury instructions stating that: (1) "[t]he acts of a person of sound mind and discretion are presumed to be the product of a person's will, but the presumption may be rebutted" and (2) "[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts, but the presumption may be rebutted." App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment's requirement that the State prove every element of a criminal offense beyond a reasonable doubt.' 471 U.S. at 309 (85 L.Ed.2d at 350.)

"It is interesting to note that intent was not only an element of the crime charged but 'the only contested issue at trial.' The court noted that the instruction concerning the presumption was cast in mandatory language, followed by a statement that the presumption 'may be rebutted.' The court concluded:

'When combined with the immediately preceding mandatory language, the instruction that the presumptions "may be rebutted" could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption "may be rebutted" could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.' 471 U.S. at 318 . (85 L.Ed.2d at 356.)

"The court then went on to hold that the trial court's general instructions did not cure the defect and that, under the facts of the case, intent being the primary issue at trial, the giving of the instruction was not harmless error.

"Following the publication of the Supreme Court's opinion in Francis, the United States Court of Appeals for the Tenth Circuit announced its decision in ' "There is the presumption that a person intends all of the natural and probable consequences of his voluntary acts. This presumption is overcome if you are persuaded by the evidence that the contrary is true." ' 767 F.2d at 681.

Wiley v. Rayl [citation omitted]. Wiley was convicted in the District Court of Butler County of rape and aggravated kidnapping. Upon exhaustion of his state remedies, he sought habeas corpus in the federal courts under 28 U.S.C. § 2254 (1982), contending among other things that his due process rights were violated by the trial court when it instructed the jury:

Wiley objected to the instruction at trial.... The Tenth Circuit, noting that intent was an issue and the challenged instruction was specifically argued to the jury in the prosecution's closing argument, vacated Wiley's kidnapping conviction. It found that the trial court's instruction violated the rule of Francis v. Franklin, and 'effectively removed from the state the task of proving, and from the jury the duty of determining, that the defendant had the requisite intent to kidnap.' 767 F.2d at 683." 238 Kan. at 136-37, 708 P.2d 963.

Unlike the instructions given in Francis and Wiley, the instruction given herein (PIK Crim.2d 54.01 [1992 Supp.] clearly states the burden of proof of intent never shifts to the defendant. In State v. Ransom, 239 Kan. 594, 605-06, 722 P.2d 540 (1986), we quoted the Mason discussion of Francis and Wiley and held that PIK Crim.2d 54.01 (1992 Supp.) corrected the constitutional defect by creating a permissible inference of intent rather than an improper rebuttable presumption. To the same effect see State v. Ramos, 240 Kan. 485, 490, 731 P.2d 837 (1987), and State v. Bird, 240 Kan. 288, 300-01, 729 P.2d 1136 (1986), cert. denied 481 U.S. 1055, 107 S.Ct. 2194, 95 L.Ed.2d 849 (1987).

Defendant attempts to distinguish Ransom on the ground that in Ransom intent was stated to be "not a big issue at trial," whereas in the case before us the intent-to-kill element was the primary issue in the second-degree murder charge. We find this to be a distinction without a difference. PIK Crim.2d 54.01 (1992 Supp.) is not constitutionally defective on the asserted grounds, and this determination does not vary with the "importance" of the intent element in a particular trial.

SUFFICIENCY OF THE EVIDENCE

For his second issue, the defendant challenges the sufficiency of the evidence supporting his second-degree murder conviction. Specifically, he contends the evidence relative to intent is deficient.

We have often stated the appellate standard of review concerning sufficiency of evidence. If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Grissom, 251 Kan. 851, Syl. p 4, 840 P.2d 1142 (1992); State v. Blackburn, 251 Kan. 787, Syl. p 1, 840 P.2d 497 (1992); State v. Tyler, 251 Kan. 616, Syl. p 9, 840 P.2d 413 (1992).

Second-degree murder is defined in K.S.A. 21-3402, which provides: "Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony." In State v. Hill, 242 Kan. 68, 82-83, 744 P.2d 1228 (1987), we held that second-degree murder required proof of an intent to kill, stating:

"The term 'malicious' is a specific designation of the intent which a defendant must possess in killing a human being to be found guilty of murder in the second degree. The term 'malicious' has been defined as 'willfully doing a wrongful act without just cause or excuse.' State v. Egbert, 227 Kan. at 267 [606 P.2d 1022 (1980) ]; State v. Wilson, 215 Kan. 437, Syl. p 2, 524 P.2d 224 (1974); State v. Jensen, 197 Kan. 427, 417 P.2d 273 (1966); PIK Crim.2d 56.04(a), Homicide Definitions. See K.S.A. 21-3201(1).

                '  Willful' conduct is defined as 'conduct that is purposeful and intentional and

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