State v. Sully, 47942

• Decision Date: 06 March 1976
• Docket Number: No. 47942,47942
• Parties: STATE of Kansas, Appellee, v. James B. SULLY, Appellant.
• Court: Kansas Supreme Court

Page 344

547 P.2d 344

219 Kan. 222

STATE of Kansas, Appellee, v. James B. SULLY, Appellant.

No. 47942.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. Pursuant to the provisions of K.S.A. 22-3204, when two or more defendants are jointly charged with a crime the granting of a separate trial for any one defendant lies within the sound discretion of the trial court.

2. The admission of photographs of a decedent, including photographs taken during an autopsy, is not error where the photographs are relevant to matters in issue, such as the fact and manner of death or to assist in understanding a pathologist's testimony. Photographs, if relevant and material to matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome.

3. The better practice is that a cautionary type instruction to the jury on consideration of the case without favoritism, sympathy or prejudice for or against a party should not be given unless there are unusual circumstances.

4. Error cannot be predicated on a trial court's refusal to give specific instructions where those given cover and include the substance of those refused.

5. Objection to an instruction will not be considered when raised for the first time on appeal unless the instruction is clearly erroneous.

6. Although an instruction on reasonable doubt is unnecessary, a conviction will not be reversed merely because one was given.

7. Second degree murder is a lesser included offense under first degree murder and in the absence in the record on appeal of the facts of the homicide in a prosecution for first degree murder, a defendant may not predicate error in the giving, over his objection, of an instruction on second degree murder.

8. The question of replying to a jury's request for further information as to the law or evidence in the case, made after the jury has retired for deliberation, is generally addressed to the trial court's discretion.

9. Verdicts as between two or more defendants tried together need not demonstrate rational consistency.

10. The exercise of discretion by a prosecuting attorney in seeking to invoke the provisions of the habitual criminal act and by a trial court in sentencing under that act, absent a showing of wilful, designed or deliberate discrimination, is not a violation of the due process or equal protection provisions of the federal constitution.

11. In a prosecution for murder in the first degree where appellant was tried upon the theory he aided and abetted a co-defendant in the commission of the offense it is held: The trial court did not err in (1) ordering consolidated trial; (2) admitting photographs of the decedent into evidence; (3) its refusal to give requested instructions and in the giving of others; (4) failing to answer a question by the jury after it had retired to deliberate; (5) approving allegedly inconsistent verdicts; or (6) sentencing appellant as a recidivist.

Jay H. Vader, of Maurin, McCamish & Vader, Kansas City, argued the cause and was on the brief for the appellant.

Nick A. Tomasic, Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for the appellee.

HARMAN, Commissioner:

Appellant James B. Sully was convicted by a jury of the offense of second degree murder. He was sentenced under the habitual criminal act and now appeals.

Appellant and a codefendant, John Wayne Hensley, were charged jointly with the first degree murder of one Jerome T. Halloran, and were tried together. Appellant does not challenge the sufficiency of the state's evidence, with the result the record on appeal is lacking in the facts of the homicide.

In their briefs the parties supply some of the particulars of the incident, none of which has been contradicted, so we have this background: Appellant and Hensley were drinking together during the day and the evening of April 17, 1974. At a Kansas City, Missouri, bar they met the victim, Halloran, who had just arrived from San Diego, California. Hensley conceived the idea that an underworld 'contract was out' on his, Hensley's life, and Halloran was the 'hit' man or the person hired to kill him. After drinking together the trio drove to the base of the Seventh street viaduct on the north bank of the Kansas river in Kansas City, Kansas, ostensibly to urinate. There Hensley fired numerous shots into the head and body of the victim at close range, fatally wounding him. The shooting occurred at about 8:00 a. m. on April 18, 1974.

After the shooting appellant drove Hensley away from the scene and remained with him for several hours. Later that same day he contacted his brother who was a member of the Kansas City police department, and made a statement respecting the shooting. Eventually he was subpoenaed to testify for the state at the preliminary examination of Hensley, who was charged with Halloran's murder. After being advised of his constitutional rights to counsel and against self-incrimination he testified fully. As a result of his testimony, and that of other witnesses, appellant was then also charged with the murder.

Appellant's assertions of trial error will be dealt with chronologically. He says the trial court improperly tried him in a consolidated trial with his codefendant Hensley, over his objection. Each was represented by separate counsel. The two were charged jointly with the homicide and in its brief the state, without elaboration of the facts, says the evidence revealed that appellant was an active participant in the killing. Under the provisions of K.S.A. 22-3204 when two or more defendants are jointly charged with crime the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney. The granting of separate trial lies within the sound discretion of the trial court. 'Generally, an order for a separate trial of a defendant jointly charged with another must be based upon some ground sufficient to establish actual prejudice so as to require separate trials' (State v. Cameron & Bentley, 216 Kan. 644, 649, 533 P.2d 1255, 1260). Although a single trial may be desirable from the standpoint of economical and efficient criminal procedure, the right of a defendant to a fair trial must be the overriding consideration (Jung v. State, 32 Wis.2d 541, 145 N.W.2d 684).

In State v. Cameron & Bentley, supra, we quoted this summarization of the usual grounds for severance:

'. . . (1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) that a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) that one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants. . . .' 216 Kan. p. 649, 533 P.2d p. 1260.)

Appellant alleges the first two grounds were applicable and established his right to separate trial. So far as we can glean from statements in the briefs appellant's defense was that he did not fire the fatal shots nor did he aid and abet Hensley in committing the crime; he was merely present; Hensley relied on the defense of intoxication to negate the specific intent required in murder. We cannot say appellant's defense was inconsistent with that of Hensley or that Hensley's defense was intrinsically antagonistic to appellant. A classic case where each of two defendants was trying to blame the other while trying at the same time to defend against the prosecution is not presented. Appellant points out adverse rulings made by the trial court in sustaining codefendant Hensley's objections to certain questions put by appellant's counsel to a witness, Nelson Pickens, on cross-examination. The record contains brief excerpts of this testimony together with the colloquy of counsel and the court's ruling. These passages do not reveal the import of the testimony sought. About all that is clearly shown is that all but one of the challenged questions put by appellant's cross-examination called for hearsay testimony, which would have been improper whether sought in a joint trial or in a trial in which appellant was the only defendant. Appellant has not shown how he was in anywise prejudiced in his failure to secure an answer to his remaining question. The record does not demonstrate a situation where evidence favorable to appellant would be admissible on his separate trial but not on joint trial nor does it show antagonistic defenses requiring separate trials.

Appellant contends the trial court erred in admitting three allegedly gruesome photographs of the deceased into evidlence over his objection. One photo shows the victim's bloody face with one eye shot out and his left upper chest; one depicts the right side of the body and the right arm; the other is of the lower left part of the body. All depict bullet wounds of entrance or exit. Appellant offered to stipulate that the victim was shot to death. Under these circumstances he contends the photos had no evidentiary value and were offered only to inflame the minds and arouse the passions of the jury. A pathologist testified there were at least six bullets fired into the body.

We are told the defense tried to show that while deceased was standing up urinating, he was shot from the back or from the side, either accidentally or unintentionally. The pathologist used the pictures to show the various paths of the bullets fired into the body, some of which were on a level plane from the front of the body while others took a downward path as though the deceased were falling to or lying upon the ground.

'This court has repeatedly...