State v. Walker, 66225

Decision Date22 January 1993
Docket NumberNo. 66225,66225
Citation845 P.2d 1,252 Kan. 279
PartiesSTATE of Kansas, Appellee, v. James WALKER, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The use of voter registration lists as the sole source for the selection of jury panels is held not to have been shown to be statutorily or constitutionally impermissible.

2. The purpose of a Jackson v. Denno hearing is to allow the trial court to determine the voluntariness of a statement or confession. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.

3. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances.

4. When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily, and knowingly given, and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence.

5. Claims of prosecutorial misconduct are discussed and held not to have denied defendant a fair trial.

6. Allegations of judicial misconduct must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it affirmatively must appear the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.

7. If a trial court concludes that one or more trial counsel is or are behaving improperly in the courtroom, any discussion of the matter should be taken up out of the presence of the jury. However, such proceedings should be on the record to preserve what was said therein for possible appellate review.

8. Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.

9. Language in a voluntary intoxication instruction limiting utilization of that defense to situations where the defendant "was utterly devoid of consciousness or awareness of what he was doing" is disapproved.

10. When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses ordinarily does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlying felony was committed is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.

11. Appellate review of a trial court's determination of whether the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), has been made is plenary, as it involves a question of legal sufficiency. In contrast, appellate review of a trial court's acceptance of the State's announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion. Following State v. Sledd, 250 Kan. 15, Syl. p 2, 825 P.2d 114, cert. denied, 506 U.S. 849, 113 S.Ct. 147, 121 L.Ed.2d 98 (1992).

12. The aggravating factor set forth in K.S.A. 1991 Supp. 21-4625(6) which states the crime was committed in an especially heinous, atrocious, or cruel manner is held not to be constitutionally impermissible on the grounds of vagueness. Following State v. Bailey, 251 Kan. 156, Syl. p 11, 834 P.2d 342 (1992).

13. The notice requirements of K.S.A. 1991 Supp. 21-4624(1) are discussed. Under the facts of this case, where the State did not serve the notice at arraignment in the original case, dismissed the same, and refiled, serving the notice at time of arraignment in the second case, the trial court's refusal to strike the notice is held not to be error as no prejudice has been shown under the circumstances herein.

14. Under the facts of this case, the district court did not err or abuse its discretion in: (1) admitting evidence of defendant's gang membership; (2) excluding under the rape shield statute evidence of prior consensual sexual relations between a victim and defendant; (3) admitting photographs and transparencies of the murder victim; (4) excluding certain proffered evidence from the sentencing proceeding; or (5) instructing the jury in the "hard 40" sentencing proceeding.

Thomas Jacquinot, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief 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.

McFARLAND, Justice:

James Walker appeals his jury trial convictions of first-degree premeditated murder (K.S.A.1991 Supp. 21-3401); aggravated robbery (K.S.A. 21-3427); aggravated assault (K.S.A. 21-3410); attempted aggravated criminal sodomy (K.S.A.1991 Supp. 21-3301; K.S.A. 21-3506); aggravated criminal sodomy (K.S.A. 21-3506[c]; battery (K.S.A. 21-3412); aggravated battery (K.S.A. 21-3414); two counts of theft (K.S.A. 21-3701[a]; two counts of rape (K.S.A. 21-3502); three counts of aggravated burglary (K.S.A. 21-3716); and four counts of aggravated kidnapping (K.S.A. 21-3421). Appeal is also taken from the imposition of the "hard 40" sentence on the first-degree murder conviction pursuant to K.S.A.1991 Supp. 21-4624 et seq.

The convictions arise from four incidents occurring in Sedgwick County. They may be characterized as occurring in or commencing in the: (1) Darin Adams residence on North Vassar Street (June 25, 1990); (2) Kenneth Lowe residence on Old Manor Street (July 20, 1990); (3) Jerome Alcorn residence on Indianapolis Street (July 21, 1990); and (4) Sylvester Johnson residence on East Zimmerly Street (July 21, 1990). Inasmuch as the facts relative to the numerous offenses are lengthy and have little or no bearing on most of the issues raised, our recitation of facts will be limited to those needed for resolution of particular issues. Three companion cases to the appeal before us are State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992); State v. Hooks, 251 Kan. 755, 840 P.2d 483 (1992); and State v. Walker, 252 Kan. 117, 843 P.2d 203 (1992). The facts relative to each of the various offenses are set forth in one or more of said cases.

JURY SELECTION PROCESS

For his first issue, defendant contends Sedgwick County's system of selecting prospective jurors from voter registration lists violated his right to a fair and impartial jury selected from a fair cross section of the community, a right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Similar challenges were made in two of the companion cases, State v. Bailey, 251 Kan. 156, 834 P.2d 342, and State v. Walker, 252 Kan. 117, 843 P.2d 203, wherein we held: "The use of voter registration lists as the sole source for the selection of jury panels is examined and held not to have been shown to be statutorily or constitutionally impermissible."

No additional showing has been made herein to remove this case from the application of the rule stated in Bailey and Walker.

CONFESSION

For his second issue, defendant contends the district court erred in refusing to suppress his confession.

A Jackson v. Denno hearing was held herein. In State v. Price, 247 Kan. 100, Syl. p 1, 795 P.2d 57 (1990), we held:

"The purpose of a Jackson v. Denno hearing is to allow the trial court to determine the voluntariness of a statement or confession. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Following State v. Prince, 227 Kan. 137, Syl. p 4, 605 P.2d 563 (1980)."

In State v. William, 248 Kan. 389, Syl. p 11, 807 P.2d 1292, cert. denied 502 U.S. 837, 112 S.Ct. 120, 116 L.Ed.2d 89 (1991), we stated: "In determining whether a confession is voluntary, a court is to look at the totality of the circumstances."

In State v. Norris, 244 Kan. 326, 333, 768 P.2d 296 (1989), we set forth the standard of review for a trial court's determination that a confession was voluntary:

" 'When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. [Citations omitted.]' " (quoting State v. Brown, 235 Kan. 688, 691, 681 P.2d 1071 [1984].

See State v. William, 248 Kan. 389, Syl. p 13, 807 P.2d 1292.

Defendant contends his confession was coerced and involuntary. He argues: (1) the police intentionally deprived him of sleep; (2) the police used physical...

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