State v. Wilburn
| Decision Date | 06 December 1991 |
| Docket Number | No. 65525,65525 |
| Citation | 822 P.2d 609,249 Kan. 678 |
| Parties | STATE of Kansas, Appellee, v. Earl E. WILBURN, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence.
2. When considering the refusal of a trial court to give a specific instruction, the evidence to support such an instruction must be viewed by the appellate court in the light most favorable to the party requesting the instruction.
3. Diminished capacity is the concept that a mental illness or defect not amounting to legal insanity, while not a defense to criminal culpability, may be considered by a jury in determining whether the defendant had the specific intent required for the crime charged. Mere personality characteristics not amounting to a mental disease or defect are insufficient to bring the concept into play.
4. Evidence of diminished capacity is admissible for the limited purpose of negating specific intent, but the trial court is not required to give an instruction on diminished capacity.
5. The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.
6. A trial court has the affirmative duty to instruct the jury on all lesser included offenses established by the evidence. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense.
7. When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction.
J. David Farris, J. David Farris Law Offices, Atchison, argued the cause and was on the brief, for appellant.
Gunnar A. Sundby, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellee.
Earl E. Wilburn appeals his jury trial convictions of first-degree murder (K.S.A. 21-3401) and second-degree murder (K.S.A. 21-3402).
The two claims of error are the trial court's failure to instruct the jury on:
1. diminished capacity not amounting to insanity; and
2. involuntary manslaughter.
By virtue of the issues raised, the facts must be set forth in considerable detail.
Defendant and Cathy Wilburn had a lengthy and troubled marriage. Cathy had filed for divorce five times. A divorce was granted on the fifth petition. There was evidence that defendant had threatened to kill Cathy and her lover, Lyle Crowley, while the divorce was pending. Earl was under a restraining order not to bother Cathy. Earl had residential custody of the two children born to the marriage, Mindie (age 11) and Michael (age 7).
On August 23, 1989, defendant drove his pickup truck to Cathy's residence in Atchison. The two children accompanied him. Cathy was not at home and defendant drove to the residence of mutual friends, Ron and JoAnn Lawless. Several adults were present in the front yard where a whiffle ball game was in progress. Lyle Crowley was playing in the game while Cathy watched from the patio. Defendant let the children out and they went over to visit their mother. Defendant remained in the truck and drove it a short distance away. Later, he returned and pulled up in front of the Lawless residence, and the children returned to the truck. The three drove away, but turned around and returned. Earl again parked in front of the residence. Defendant got out of the vehicle and motioned for Cathy to come over, but she refused. Earl reached into the vehicle, pulled out a shotgun, and shot Lyle Crowley, who was near the truck. Cathy started running to the victim and the defendant shot her. Defendant then shot the fallen Lyle in the back, turned, and shot Cathy in the face. He got back in the truck with the children and drove to his sister's house. He then drove to his own home, surrendering to the police after a 4 1/2 hour siege situation. Both victims died as a result of their wounds.
Defendant's version of events is as follows. Earlier in the day in question, he had followed Cathy and had caught up with her on the River Road. Defendant removed the vehicle tags from Cathy's automobile. There was an argument about the children. While defendant and Cathy were stopped on the River Road, Lyle Crowley drove up and stopped. Defendant stated Lyle told him he was going to sexually molest defendant's daughter Mindie.
Defendant testified that while he was stopped in front of the Lawless residence the last time, the whiffle ball struck his vehicle and Lyle had come to retrieve the ball. While there, Lyle had repeated his earlier threat relative to Mindie. Defendant testified he "snapped" and had no recall of the shootings.
There was also evidence that no conversation occurred at the truck between defendant and Lyle except for defendant saying, "Good-by Lyle" just before the shooting. Additionally, there was evidence defendant took the cover off of the shotgun while the children were in the Lawless yard talking with their mother.
Defendant was charged with two counts of first-degree murder. He filed a notice of intent to rely on an insanity defense, which defense was abandoned at trial. He was convicted of first-degree murder relative to the slaying of Lyle Crowley and of second-degree murder (a lesser included offense instruction) for the slaying of Cathy. The trial court had also instructed on voluntary manslaughter as a lesser included offense in the two counts. Other facts will be set forth as necessary for the discussion of particular points.
Defendant requested that an instruction be given on diminished capacity. The trial In a criminal action, a trial court must instruct the jury on the law applicable to the theories of all parties where there is supporting evidence. When considering the refusal of a trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction. State v. Hunter, 241 Kan. 629, Syl. pp 8, 9, 740 P.2d 559 (1987).
court denied the request on the basis that the same was unnecessary as the defendant had abandoned his insanity defense.
In support of his argument herein, defendant relies on testimony of his sister that shortly after the dual slayings, defendant was wild, his eyes were fiery, and he looked out of control. Defendant's father and uncle (who had contact with defendant while police were trying to get him to surrender) testified defendant did not act stable. A psychologist, who was a neighbor of defendant, testified the shotgun slayings were out of character for the defendant. Additionally, defendant relies on the testimony of two staff members of the State Security Hospital at Larned. They are Dr. J. Lalith Fernando, a psychiatrist, and Thomas Runge, a psychologist. Defendant characterizes their testimony as being to the effect defendant did not intend or plan to kill the victims. This characterization is broader than their actual testimony. Defendant had been sent to the Larned facility for an evaluation relative to his intended insanity defense. The result of the evaluation was that defendant was not legally insane under the M'Naghten rule.
After testifying to the evaluation team's finding that defendant was not legally insane, Dr. Fernando was asked about the fact defendant had steadfastly maintained he had no recall of the actual killings. Dr. Fernando testified he was of the opinion defendant was not faking his lack of recall--he truly did not remember. The following questions and answers then occurred:
Dr. Fernando then discussed defendant's emotional distress over the breakup of his marriage and concluded he finally "snapped." On cross-examination by the State, the following questions and answers occurred:
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