State v. Tyler

• Court: Kansas Supreme Court
• Writing for the Court: HERD
• Citation: State v. Tyler, 251 Kan. 616, 840 P.2d 413 (Kan. 1992)
• Decision Date: 30 October 1992
• Docket Number: No. 64712,64712
• Parties: STATE of Kansas, Appellee, v. St. John TYLER, Appellant.

Page 413

840 P.2d 413

251 Kan. 616

STATE of Kansas, Appellee, v. St. John TYLER, Appellant.

No. 64712.

Supreme Court of Kansas.

Oct. 30, 1992.

Syllabus by the Court

1. The evidence a defendant must present, either through his own testimony or from other witnesses, to justify a self-defense instruction must include some evidence to support each prong of a two-prong self-defense test. The first prong is subjective and requires a showing that the defendant sincerely and honestly believed it necessary to kill in order to defend himself. The second prong is an objective standard and requires a showing that a reasonable person in the defendant's circumstances would have perceived self-defense as necessary.

2. A conspirator can be held liable for substantive offenses committed by his coconspirators if the offenses are committed during and in furtherance of the conspiracy.

3. If a conspiracy exists to distribute narcotics, the coconspirators can be held vicariously criminally liable for any remote sale of drugs passing through the conspiracy, so long as it is within the scope of, or is a reasonably foreseeable consequence of, the unlawful agreement.

4. If a defendant made a threat against a deceased victim prior to the incident causing the victim's death, that threat can be admitted at trial to show intent and motive. If the threat was against a class of persons to which the deceased belonged, it would be admissible on the question of defendant's actions. In addition, the threat might also be admissible because of the relationship between defendant and the deceased under the circumstances of the case.

5. Determining whether evidence is too remote to be admissible rests within the sound discretion of the trial court. Mere lapse of time alone is not sufficient to deprive evidence of its probative value, but goes to the weight of the evidence to be considered by the jury.

6. It is an abuse of discretion to admit evidence of a defendant's sleep-induced dream to prove his state of mind. Such evidence is too speculative to be reliable. Furthermore, statements made in response to a dream are so closely related to the dream that they also lack probative value and are inadmissible.

7. For trial error to be harmless, an appellate court must be able to declare beyond a reasonable doubt that the error did not change the outcome of the trial.

8. In Kansas, all necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant. Kansas has not adopted a knock and announce rule.

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

10. A defendant does not have to be present during the commission of a crime to be convicted as an aider and abettor if he otherwise intentionally furthers the success of the venture.

11. Multiplicity exists when the State uses a single wrongful act as the basis for multiple charges. Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. Charges are not multiplicitous when the offenses occur at different times and in different places.

12. The commission of the substantive offense and a conspiracy to commit it are separate and distinct offenses. The legislature is empowered to separate the two and to affix to each a different penalty.

13. Juries are presumed to have followed the instructions given by the trial court.

14. In an appeal from a trial court's denial of a criminal defendant's motion for a new trial based on prejudicial media publicity about the defendant during trial, if the record on appeal fails to show that a single member of the jury was made aware of the complained-of publicity and if the publicity was not massive, persuasive, or disruptive of the trial proceedings, there is no trial error in the absence of proof defendant was deprived of a fair trial.

15. The court is required to strictly construe penal statutes in favor of the accused. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

16. If a defendant makes a false statement when applying for court-appointed counsel pursuant to K.S.A. 22-4504, either in his or her affidavit or while under oath, the defendant may be charged with perjury, a violation of K.S.A.1991 Supp. 21-3805.

17. The Eighth Amendment to the United States Constitution, which prohibits the infliction of cruel and unusual punishment, contains no proportionality of sentencing guarantee.

18. In determining whether the length of a sentence offends § 9 of the Kansas Constitution Bill of Rights' prohibition against cruel and unusual punishment, three elements are be considered: (1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment; (2) a comparison should be made of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and (3) a comparison should be made of the penalty with punishments in other jurisdictions for the same offense.

19. The imposition of consecutive sentences does not per se constitute the imposition of cruel and unusual punishment. A sentence imposed pursuant to the Habitual Criminal Act does not, in and of itself, constitute the imposition of cruel and unusual punishment.

20. If a defendant is convicted of a second or subsequent felony, upon motion of the prosecuting attorney, the trial judge may enhance the defendant's sentence pursuant to the Habitual Criminal Act, K.S.A.1991 Supp. 21-4504. The Act does not require the prior felonies to have been committed within a certain number of years; they may be remote in time to the crimes for which the defendant is being sentenced. In such circumstances, it is within the sentencing judge's discretion to determine whether the Habitual Criminal Act should be invoked.

21. The fact that the minimum sentence imposed by a trial court exceeds the life expectancy of the defendant is not grounds, per se, for a finding that the sentence is oppressive or constitutes an abuse of discretion.

Jessica R. Kunen, Chief Appellate Defender, argued the cause and was on the briefs, for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief, for appellee.

HERD, Justice:

This is a direct appeal by St. John Tyler from his convictions and sentence for sale of cocaine, K.S.A.1991 Supp. 65-4127a; second-degree murder, K.S.A. 21-3402; aggravated assault of a law enforcement officer, K.S.A. 21-3411; possession of heroin with intent to sell, K.S.A.1991 Supp. 65-4127a; possession of cocaine with intent to sell, K.S.A.1991 Supp. 65-4127a; and perjury, K.S.A.1991 Supp. 21-3805. Prior to his trial, Tyler pled guilty to conspiracy to sell cocaine, K.S.A. 21-3302 and K.S.A.1991 Supp. 65-4127a.

The facts reveal that in the evening of February 2, 1988, Lyndon Clarence Bobo, at the direction of Sedgwick County Sheriff's Office, made a controlled buy of cocaine at 2432 N. Piatt in Wichita. Bobo was admitted through the front door by a tall black man later identified as George Payne. Once inside, Bobo purchased $140 worth of cocaine from a white female later identified as Pamela Tafoya. At the conclusion of the transaction, Bobo told the woman he wanted to come back later that evening and buy an "eight ball." He did this to ensure people would be in the house when a search warrant was to be executed. While inside the house, Bobo did not see any guns.

As a result of the controlled buy, Sedgwick County Sheriff's officers obtained a warrant to search 2432 N. Piatt. Prior to executing the warrant, the officers who were going to be involved met to discuss their assignments and the procedure for executing the warrant. Detective Sergeant Danny Bardezbain was in charge of this pre-search warrant conference. The officers knew there would probably be six or seven people in the house. The officers also knew there would be a bodyguard at the door, who carried a hammer, and that this individual had a reputation for being very mean. In addition, the officers knew that Bobo had observed an individual on the premises known as "Big Man" (Rudolph O. Hudson), who sometimes carried a gun.

Bardezbain had a diagram of the house and drew on it the assignment each officer was to follow once inside the house. Eight officers were assigned to enter the house, while four other officers remained outside. The officers' order of entry, dress, and assignments were as follows:

1. Uniformed sheriff's officer James McNutt was to open the screen door if it was locked and be the first officer inside the residence. McNutt carried a shotgun and was assigned to secure the living room, once inside.

2. Detective James Woods was to be the second person inside and was assigned to cover the southeast bedroom and bathroom. Woods wore a blue cloth windbreaker with a cloth sheriff's badge on the front and large yellow letters across the back that said "SHERIFF'S NARCOTICS." Woods also wore a blue ballcap with a cloth sheriff's badge on the front.

3. Detective Terry McNett, dressed like Detective Woods, wore a bulletproof vest under his jacket. He had long hair and a beard....