State v. Trussell

• Decision Date: 21 August 2009
• Docket Number: No. 99,411.,99,411.
• Citation: 213 P.3d 1052
• Parties: STATE of Kansas, Appellee, v. Jerry W. TRUSSELL, Appellant.
• Court: Kansas Supreme Court

213 P.3d 1052

STATE of Kansas, Appellee, v. Jerry W. TRUSSELL, Appellant.

No. 99,411.

Supreme Court of Kansas.

August 21, 2009.

Michael C. Brown, of Mulvane, argued the cause and was on the brief, for the appellant.

Jan Satterfield, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief, for the appellee.

The opinion of the court was delivered by JOHNSON, J.:

Jerry W. Trussell appeals his convictions for aiding and abetting first-degree murder and conspiracy to commit first-degree murder. Combined in his first issue, Trussell asserts that the evidence was insufficient to support the verdict and that the district court should have given a self-defense jury instruction. Secondly, Trussell argues that the district court erred in refusing to suppress his statements to law enforcement. Finally, Trussell contends that the district court erred in allowing the State to ask leading questions and in declaring one of the witnesses to be hostile. Finding no reversible error, we affirm.

The principal participants in this unusual scenario were two couples who, in the 1990s, had lived in the south part of Wichita and had formed a friendship. One couple was Franklin Harrod, Jr., also known as "Punkie," who is the victim in this case, and his wife, Kelly Harrod; the other couple was Jerry Wayne Trussell, who is the defendant in this case, and his wife, Tammy Trussell. By 1997, Jerry and Punkie jointly owned a car that they raced at a local speedway.

Kelly Harrod testified that Punkie was an abusive husband and that she had left him in January 1997, taking their two daughters with her to Arkansas. After Punkie filed for divorce in Sedgwick County, obtaining an order awarding temporary custody of the children to him, Kelly returned to the South Wichita home. Shortly thereafter, Kelly discovered that she was pregnant, and Punkie dismissed the divorce action.

However, Kelly began confiding in Tammy about her situation, ultimately expressing a desire to have Punkie out of her life and a fear that Punkie would kill her if she left him again. Kelly said that she could not get rid of Punkie, because she would be the first one suspected of foul play. She suggested that Tammy could do it for her. Tammy subsequently told Jerry about Kelly's conversations.

The conversations between Kelly and Tammy initially took the form of vague fantasizing about life without their husbands. However, Jerry began to discuss the endeavor in earnest and struck a deal with Kelly to "take care of it" in return for her having sex with him. Kelly, Tammy, and Jerry began having weekly conversations about "doing away" with Punkie. In the spring or early summer of 1997, Jerry and Tammy asked a neighbor, Jerry Wilson, for a gun. Wilson testified that Jerry said he wanted the gun "because he was going to kill someone or get rid of that Punkie guy or do something to him."

In late June or early July 1997, the Trussells were evicted from their home and moved in with Punkie and Kelly. Kelly continued to have sex with Jerry as payment for arranging for Punkie's demise. By late July, Kelly told both Tammy and Jerry that she wanted to get things "over with." Tammy testified that, the night before Punkie was killed, she and Jerry had a conversation during which he informed her that he could not find anyone willing to take care of Punkie. Realizing that they "would have to do this [them]selves," the couple devised a plan for Tammy to shoot Punkie while Jerry distracted him or held him down. Kelly was not a participant in that conversation.

The next morning, Jerry instructed Kelly to remain in the house. While she was getting the children ready for school, Jerry and Punkie began fighting outside. As the fight escalated, Tammy ran outside, yelling at the combatants to stop. Jerry yelled for her to get the gun, and Tammy retrieved the weapon from a nearby truck. After returning, Tammy heard Punkie say that he would kill everyone when he got off the ground. Jerry repeatedly told Tammy to "do it" or "shoot it." Tammy complied, shooting Punkie in the head.

The next day, Tammy and Jerry took Punkie's body, wrapped in a blue roofing tarp, to a remote location and buried it in a shallow grave. Kelly made a missing person report to the police.

In August 1997, Wilson anonymously reported the Trussells' attempt to obtain a gun from him. Tracy Wells, the former wife of Shawn Martinez, used a pseudonym to report that Jerry had tried to enlist Shawn's help with disposing of Punkie's body. Nevertheless, the case remained under investigation for years, with Jerry, Tammy, and Kelly holding to their original story that Punkie had just disappeared.

However, in 2001, Tammy began offering the police many different versions of what happened, implicating both Jerry and Kelly in Punkie's death. Ultimately, in May 2004, Tammy confessed her role in the murder, in exchange for a plea to voluntary manslaughter and her testimony against Jerry. Tammy showed police the location of Punkie's grave, albeit the body was never recovered. Police did find a blue tarp in the vicinity of the gravesite. Kelly bargained for a plea to solicitation of first-degree murder, conditioned on her testimony against Jerry, for which she received derivative use immunity.

Jerry was finally charged with Punkie's murder on July 7, 2005. After amendments, the information charged him with aiding and abetting murder in the first degree and conspiracy to commit first-degree murder. The trial commenced on October 10, 2006. During that trial, the district court suppressed a November 19, 2001, statement that Jerry made to a Detective Hopper, finding that it was the product of a custodial interrogation without the benefit of Miranda warnings. The jury could not reach a unanimous verdict, and the court declared a mistrial.

A new trial began June 18, 2007. The State filed a motion to reconsider the court's suppression of Jerry's statement to Detective Hopper. The court granted that motion and ruled that the statement could be admitted. The jury convicted Jerry on both counts. His motions for mistrial, new trial, and directed verdict of acquittal were denied. The court sentenced Jerry to a hard 25 life sentence on the murder charge and a consecutive 146-month prison term on the conspiracy count. Jerry timely appealed, and we have jurisdiction pursuant to K.S.A. 22-3601(b)(1).

SUFFICIENCY OF THE EVIDENCE

Where Jerry has combined more than one legal question under a single issue, we take the liberty of considering each issue separately. First, Jerry argues that the evidence was insufficient to convict him of aiding and abetting first-degree murder. Our standard of review is well settled; we view the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 (2008); State v. Saleem, 267 Kan. 100, 104, 977 P.2d 921 (1999). We do not weigh the evidence or reassess witness credibility. See Ives v. McGannon, 37 Kan.App.2d 108, 124-25, 149 P.3d 880 (2007).

Jerry's principal argument is that the State failed to meet its burden of proving premeditation beyond a reasonable doubt. Even though the State proceeded on an aiding and abetting theory, it was required to prove that Jerry possessed the specific intent of premeditation in order to convict him of first-degree murder. See State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009); State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005).

Jerry contends that the testimony about his participation in the planning of the murder was conflicting and it failed to establish that he had made a specific commitment to do a specific act in furtherance of the plan. Further, he suggests that Tammy's testimony about the specific plan hatched the night before the murder was not believable, because it was a virtually unworkable plan. Although Jerry's characterization of the evidence is suspect, we need not quibble about that. His arguments are simply an invitation to reweigh the evidence and to reassess the credibility of the witnesses. We decline the invitation to go outside our function as an appellate court.

Moreover, to prove the premeditation element of the first-degree murder charge, the State was not required to prove that Jerry planned the murder the night before. That proof was required for the conspiracy charge, but premeditation does not require such advance planning. Jerry acknowledged this difference by citing to the pattern instruction defining premeditation:

"Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life." PIK Crim.3d 56.04(b).

Nevertheless, the State put on evidence which, viewed in the light most favorable to the prosecution, established that Jerry participated in developing a plan to kill Punkie. One would be hard-pressed to find a more definitive example of a murderer having "thought the matter over beforehand." Further, Tammy testified that Jerry repeatedly yelled at her to "do it" or "shoot it," prior to the killing, further evidencing a premeditation. In short, the evidence of premeditation in this case was more than sufficient to support the first-degree murder conviction.

JURY INSTRUCTION

Jerry contends that evidence existed to warrant an instruction on the use of force in defense of another person or in self-defense. He argues that the evidence established that Jerry was no match for Punkie in a hand-to-hand fight, that Jerry was losing the fight with Punkie, and that Punkie had yelled that he was going to "kill everybody."

Jerry acknowledges that he did not request such an instruction or object...