State v. Sutton, 70823

• Decision Date: 27 January 1995
• Docket Number: No. 70823,70823
• Citation: 256 Kan. 913,889 P.2d 755
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Franklin Eugene SUTTON, Appellant.

Page 755

889 P.2d 755

256 Kan. 913

STATE of Kansas, Appellee, v. Franklin Eugene SUTTON, Appellant.

No. 70823.

Supreme Court of Kansas.

Jan. 27, 1995.

Syllabus by the Court

1. A defendant's convictions and subsequent imposition of consecutive sentences for felony murder and the underlying felonies of aggravated kidnapping and aggravated robbery do not violate the prohibition against double jeopardy.

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. The erroneous admission of evidence may not be raised on appeal absent a timely objection stating the specific grounds of the objection. K.S.A. 60-404.

5. When a defendant requests that an instruction be given at trial and such instruction is given, he or she cannot on appeal claim it was error to give the instruction.

Jeffrey L. Shaw, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs, for appellant.

Rex L. Lane, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.

ALLEGRUCCI, Justice:

Franklin Eugene Sutton was convicted by a jury of one count each of felony murder, aggravated kidnapping, and aggravated robbery. He was sentenced to consecutive terms of life, life, and 30 years to life. He appeals from the judgment of conviction and imposition of sentence.

Sutton testified that he and Brad Johnson went to Sasnak's on Thursday, March 4, 1993, at about 10:45 p.m. to play pool and drink beer. They had been driven to North Topeka and let out near Sasnak's by an acquaintance. Near midnight, Johnson arranged a ride for him and Sutton with Ben Creek. At Sutton's request, Creek drove to a grocery store several blocks from Sasnak's where Sutton bought cigarettes. When Sutton came out of the store, Johnson handed him an ATM card, told him a PIN number, and told him to get $50 and then $40 more if the account was not depleted. Sutton withdrew $50, then $40, and then the machine indicated that the funds were insufficient for another withdrawal. Sutton testified that he gave the card and the money to Johnson.

According to Sutton, he passed out after that and woke up "out in no-man's land." He woke up when Creek and Johnson were getting out of Creek's truck. He fell asleep again and when he woke up, Johnson was in the truck. Johnson said Creek was all right, but Sutton got out of the truck to check on him. Sutton heard a moan and found Creek lying face down with his hands tied behind his back. Sutton untied Creek's left wrist, rolled him over, and saw that his throat was cut. Sutton testified that he wanted to get help for Creek, Johnson did not, the two fought, and Johnson overpowered him.

Johnson and Sutton drove back to Topeka in Creek's truck. They went to 1006 S.E. Eighth Street. According to John McGill, he and Dan Deenihan and Susie Kidd lived there, Johnson was staying there, and Sutton was an occasional visitor. Johnson and Sutton arrived at the residence in a pickup truck in the early morning hours of Friday, March 5. Johnson brought a shotgun into the house, and Johnson and Sutton asked if McGill and Deenihan knew someone who would want to buy it. Johnson borrowed McGill's lighter to burn up a plastic card. Then Johnson and Sutton left in the pickup with the shotgun. Sutton testified that Johnson sold the shotgun at "a house on the east side." In approximately an hour they returned to 1006 S.E. Eighth Street, backed the truck up to the house, and carried in tools. According to McGill, they no longer had the shotgun, but they had crack cocaine. Sutton, Johnson, Deenihan, and McGill used some of the crack cocaine that night. Creek's nephew testified that the usual contents of his uncle's pickup truck included a shotgun and tools.

On Friday morning, Ben Creek's body was found about 30 feet from a rural road in southwestern Jefferson County. There was a piece of string tied around his right wrist, his neck had been cut almost from ear to ear, and deep wounds could be seen on his inner thighs. An autopsy showed that there were three stab wounds on his thighs and that one which cut the femoral artery and vein was the most significant factor contributing to Creek's death. Bleeding from the cut on the front of Creek's neck also contributed to his death. There were a number of significant bruises as well as abrasions and lacerations on his head.

A resident of an apartment complex in Topeka testified that he saw two men, one white and one black, leave a pickup truck in the lot and walk away "just acting like they didn't have a worry in the world and enjoying one another." Sutton is black. In his brief, Sutton asserts that Johnson is white. Police located the pickup on Saturday and identified it as belonging to Ben Creek.

An acquaintance of Johnson and Sutton, who sometimes gave them rides in exchange for cigarettes and money, testified that on Sunday he and Johnson took some tools from the house on Eighth Street and sold them to a man on Western Street. When law enforcement officers searched the house on Eighth Street on Sunday evening, the tools were not there. A piece of burnt plastic which looked like a credit card was retrieved from the trash during the search.

We first consider Sutton's claim that the convictions and imposition of consecutive sentences for felony murder and the underlying felonies of aggravated kidnapping and aggravated robbery constitute double jeopardy. Citing Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1435, 63 L.Ed.2d 715 (1980), Sutton contends that the sentences imposed on him were multiple punishments for the same offense, in violation of the double jeopardy protection of the Fifth Amendment to the United States Constitution. Sutton argues that State v. Gonzales, 245 Kan. 691, 783 P.2d 1239 (1989), and State v. Dunn, 243 Kan. 414, 758 P.2d 718 (1988), in which this question was answered adversely to his position, were wrongly decided.

Like Sutton, Lisa Dunn was convicted of felony murder, aggravated kidnapping, and aggravated robbery. Like Sutton, she argued that those convictions violated the double jeopardy clause. "She reason[ed] that the aggravated robbery and kidnapping charges are lesser included offenses of felony murder and that convictions for both murder and the underlying felonies constitute multiple punishment for the same offense." 243 Kan. at 432, 758 P.2d 718. The court disagreed:

"The constitutional prohibition against double jeopardy is directed to the identity of the offense and the act. Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied when determining whether there are two offenses or only a single offense is whether each statutory provision requires proof of an element that the other does not. Where one statute provides proof of an element that the other does not, the crimes are not the same, even though proof of the separate crimes may substantially overlap.

"K.S.A.1987 Supp. 21-3107 provides:

'(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.

'(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:

'(a) A lesser degree of the same crime;

'(b) an attempt to commit the crime charged;

'(c) an attempt to commit a lesser degree of the crime charged; or

'(d) a crime necessarily proved if the crime charged were proved.'

"Dunn's contention that the aggravated robbery charge merges into the homicide charge is unfounded. Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately, and with premeditation or committed in the perpetration or attempt to perpetrate any felony. K.S.A. 21-3401. The underlying felony of robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force, K.S.A. 21-3426, and becomes aggravated robbery where the robbery is committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery. K.S.A. 21-3427.

....

"... If there is evidence to support the elements of kidnapping and evidence to support that a homicide was committed during the perpetration of the kidnapping, then the offenses would not merge. Both of the felony convictions here are convictions for crimes independent of the homicides; therefore, they do not merge.

"Dunn's convictions of aggravated robbery, aggravated kidnapping, and felony murder require the State to prove an element in each offense that is not required in the other offenses. Dunn's multiple convictions for the single act or transaction are constitutionally permissible." 243 Kan. at 432-33, 758 P.2d 718.

In State v. Gonzales, 245 Kan. 691, 783 P.2d 1239, Timothy Gonzales was convicted of felony murder and attempted rape. He contended that his convictions for both offenses violated the double jeopardy clause. In this regard, the court stated:

"Gonzales contends that the Dunn opinion...