State v. Sullivan

• Decision Date: 06 May 1978
• Docket Number: No. 49085,49085
• Citation: 224 Kan. 110,578 P.2d 1108
• Parties: STATE of Kansas, Appellee, v. John L. SULLIVAN, III, and James Joseph Sullivan, Appellants.
• Court: Kansas Supreme Court

Page 1108

578 P.2d 1108

224 Kan. 110

STATE of Kansas, Appellee, v. John L. SULLIVAN, III, and James Joseph Sullivan, Appellants.

No. 49085.

Supreme Court of Kansas.

May 6, 1978.

Syllabus by the Court

1. The provisions of the criminal injury to persons statute, K.S.A. 21-3431, are so vague and uncertain they fail to establish reasonably definite standards of guilt to comply with the constitutional requirements of due process of law. (Following State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977).)

2. Two first degree murder convictions and sentences stemming from one homicide constitute double punishment and cannot be allowed to stand. (Following State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978).)

3. In a criminal proceeding a previous voluntary statement by the accused relative to the offense charged is admissible as against the accused under K.S.A. 60-460(f ) as an exception to the rule excluding hearsay evidence. However, such a statement or confession is admissible only against the person making the statement or confession.

4. A confession by an accused relative to the offense charged is admissible only against the confessor and in a joint trial of codefendants it is necessary that an instruction be given to the jury limiting the use and purpose of the confession to a determination of the guilt of the confessor. In the absence of such a limiting instruction this court under the facts of this case cannot say it was harmless error beyond a reasonable doubt.

5. Involuntary manslaughter is a lesser included offense of first degree murder.

6. The trial court is required to instruct on a lesser included offense when there is evidence introduced to support a conviction of the lesser offense. (K.S.A. 21-3107(3).)

7. When two or more persons jointly occupy living quarters the consent of one of them is sufficient to form a basis for a valid search.

8. The effect of granting immunity to a witness bears upon the weight and credibility to be given his or her testimony. Such a witness is not incompetent to testify.

9. If a character trait is relevant, evidence of specific instances which tend to prove the trait may be introduced in a criminal action if offered by the accused to prove his innocence. (K.S.A. 60-447.)

10. The defendants are entitled to an instruction on their theory of the case even though the evidence introduced thereon is slight and supported only by defendant's own testimony.

11. The record is examined and it is held the judgments and convictions for murder in the first degree and criminal injury to persons should be reversed and the case is remanded for trial on the charges of murder in the first degree.

Harry L. Eddy, Wichita, argued the cause and was on the brief for James Joseph Sullivan, appellant.

Paul V. Dugan, Wichita, argued the cause and was on the brief for John L. Sullivan, III, appellant.

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

FROMME, Justice:

This is a joint appeal from judgments of conviction and sentence. The judgments were entered on jury verdicts in a joint trial. John L. Sullivan, III, was convicted and sentenced on charges of felony murder (K.S.A. 21-3401), premeditated murder (K.S.A. 21-3401), and criminal injury to persons (K.S.A. 21-3431). James Joseph Sullivan was convicted and sentenced on charges of felony murder (K.S.A. 21-3401) and criminal injury to persons (K.S.A. 21-3431). All charges arose from a shooting incident occurring on June 13, 1975, at the farm home of Randy Moore near Valley Center, Kansas. Lonnie Moore, a cousin of Randy Moore, died of gunshot wounds. Randy Moore was slightly injured by wood splinters caused by a bullet which struck a screen door near where he was standing.

At the outset two preliminary matters should be addressed briefly. In State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977), the provisions of the criminal injury to persons statute, K.S.A.1976 Supp. 21-3431, are held so vague and uncertain they fail to establish reasonably definite standards of guilt to comply with the constitutional requirements of due process of law. The wording of K.S.A. 21-3431 is identical to that in K.S.A.1976 Supp. 21-3431. The state concedes the convictions of both defendants under this statute should be and the same are hereby reversed and set aside.

The second matter concerns the two murder convictions imposed against John L. Sullivan, III, arising out of a single homicide. John was convicted and sentenced on both premeditated murder and felony murder. As pointed out in State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), two first degree murder convictions and sentences stemming from one homicide constitute double punishment and cannot be allowed to stand. When an information charges the defendant with premeditated murder and felony murder for the commission of a single homicide the state may introduce evidence on both theories at the trial, but the trial court should instruct the jury on both theories in the alternative in order to avoid double convictions or sentences. If either or both theories are proven only one conviction of murder in the first degree results. Accordingly, one of the sentences for murder in the first degree against John L. Sullivan, III, arising out of the homicide of Lonnie Moore must be and the same is hereby set aside.

We turn now to the remaining points raised by these two appellants as they bear upon the conviction of each appellant for the murder in the first degree of Lonnie Moore.

The first point we will address relates solely to the appeal of John L. Sullivan, III, hereinafter referred to as John. John raises an issue under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), concerning the use of a taped confession given to the police by James Joseph Sullivan, hereinafter referred to as James. James was jointly tried and convicted with John but he did not testify at the trial and could not be subjected to cross-examination. This case illustrates some of the pitfalls encountered in a joint trial of two or more defendants when only one defendant has given a statement or confession to the police.

In a criminal proceeding a previous voluntary statement by the accused relative to the offense charged is admissible as against the accused under K.S.A. 60-460(f ) as an exception to the rule excluding hearsay evidence. However, such a statement or confession is admissible only against the person making the statement or confession.

Prior to Bruton v. United States, supra (May 20, 1968), the prevailing rule in Kansas and elsewhere was:

". . . (W)here two or more defendants are jointly tried for the same offense, a declaration made by one may be admitted in evidence as against the maker, provided the court, by proper instructions, limits the application of such statement and makes clear to the jury that a statement made by one defendant may be considered against him only and not against a co-defendant. . . ." (State v. McCarty, 199 Kan. 116, 120, 427 P.2d 616, 620 (1967), cert. den. as to McCarty, cert. granted as to Boyd, 392 U.S. 308, 88 S.Ct. 2065, 20 L.Ed.2d 1115 (1968). Emphasis supplied.)

In McCarty v. Kansas, 392 U.S. 308, 88 S.Ct. 2065, 20 L.Ed.2d 1115 (1968), the judgment of the Kansas Supreme Court was vacated with respect to the codefendant Boyd and the case was remanded for further consideration in light of Bruton v. United States, supra.

In Bruton it was said:

". . . Before discussing this, we pause to observe that in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, we confirmed 'that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him' secured by the Sixth Amendment, id., at 404, 85 S.Ct. 1065; 'a major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.' Id., at 406-407, 85 S.Ct. 1065." (391 U.S. p. 126, 88 S.Ct. p. 1623.)

The Bruton court went on to discuss the reason for the Bruton rule and its importance if the defendant's rights are to be protected:

". . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. . . ." (pp. 135, 136, 88 S.Ct. p. 1628.)

In Bruton the conviction was set aside even though an instruction had been given that the jury was to consider the confession only against the confessor. The Bruton rule has been softened somewhat in later cases. In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), we have an example of this softening. There it was held that although the use of confessions by codefendants who did not testify amounted to a denial of the petitioner's constitutional right of confrontation, the evidence supplied through such confessions was merely cumulative and the other evidence against the petitioner was so overwhelming that the court could conclude beyond a reasonable doubt that the denial of petitioner's constitutional rights constituted harmless error. In Harrington it was stated:

"The question whether the alleged error in the present case was 'harmless' under the rule of Chapman (Chapman v. California, 386 U.S. 18, 87...