State v. Wise, 56959

• Decision Date: 05 April 1985
• Docket Number: No. 56959,56959
• Citation: 237 Kan. 117,697 P.2d 1295
• Parties: STATE of Kansas, Appellee, v. William WISE, Appellant.
• Court: Kansas Supreme Court

Page 1295

697 P.2d 1295

237 Kan. 117

STATE of Kansas, Appellee, v. William WISE, Appellant.

No. 56959.

Supreme Court of Kansas.

April 5, 1985.

Syllabus by the Court

In an appeal from a conviction of felony murder, K.S.A. 21-3401, the record is examined and it is held: (1) The evidence was sufficient to support the verdict; (2) under the evidence, the jury could convict the defendant of felony murder and at the same time acquit him of premeditated murder; (3) an accused need not be prosecuted or convicted of the underlying felony in order to be convicted of felony murder under K.S.A. 21-3401; (4) the trial court did not err in failing to instruct on lesser degrees of homicide, since there was no evidence to support such instructions; (5) failure of the trial court to submit the premeditated murder and felony murder charges in the alternative was not prejudicial; and (6) the results of a polygraph examination were not admissible in evidence.

Charles A. O'Hara, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on the brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief, for appellee.

MILLER, Justice:

William Wise was prosecuted in Sedgwick County upon an information charging him in count I with premeditated first-degree murder, K.S.A. 21-3401, and in count II with felony murder, K.S.A. 21-3401. He was convicted by a jury of felony murder, and brings this appeal. The issues raised are: (1) Whether there was sufficient evidence to support the verdict, and in particular whether there was sufficient evidence to support a finding that the homicide occurred during the commission of a felony; (2) whether the jury could convict the defendant of felony murder and at the same time acquit him of first-degree premeditated murder, arising out of the same facts; (3) whether defendant could be convicted of felony murder when he was not charged with or convicted of the underlying felony; (4) whether the trial court committed prejudicial error by not instructing on murder in the second degree and voluntary manslaughter, and in not submitting the first-degree murder charges in the alternative; and (5) whether the trial court erred in excluding reference to or the results of a polygraph examination.

We turn first to the trial evidence, in order to determine the first issue raised. The body of the victim, Richard Ricks, was found on the floor of a motel room in Wichita on April 21, 1981. Ricks died of a gunshot wound to the head. A .32-caliber handgun was found near the body, but was determined not to be the murder weapon. The victim's wallet was found on a dresser; there was no money in it. A crumpled five-dollar bill was found between the victim's arm and his torso. No other money was found. No narcotics or other drugs were found.

Christina Lynn was interviewed shortly after the homicide. She was then living with the defendant, William Wise. She told the investigator that she and the defendant had been at the Gasser Club, located near the crime scene, on the night before the body was discovered. Defendant left for a short time, and Richard Ricks made a pass at her and fondled her breasts. She said that she later told Wise what had happened, and he threatened to blow Ricks' brains out if he ever "messed" with her again. Christina Lynn gave similar testimony, under oath, at an inquisition. At that time, she did not implicate the defendant in the murder.

Some time after giving this testimony, Christina Lynn moved to Memphis, Tennessee, where the defendant was imprisoned on felony charges unrelated to this homicide. On October 19, 1983, Christina called one of the Wichita detectives and told him that she was ready to give a statement that would solve the Ricks homicide and that the defendant was the one who killed Ricks. On the following day, Christina was interviewed by members of the Memphis Police Department. She gave a typed and signed statement in which she said that she, the defendant, and two other men, Donald Helt and Craig Jefferson, went to Richard Ricks' motel room to rob him of money and narcotics. Christina stood outside while the three men entered. She heard a shot. They came back outside and William Wise told her that he had killed Richard Ricks. On October 22, 1983, an agent of the F.B.I. interviewed Christina Lynn in connection with an investigation of narcotics trafficking at the Federal Correctional Institution in Memphis. Christina told the agent that in April 1981 Richard Ricks was shot and killed at Wichita and, prior to the shooting, William Wise had advised her that he was going to kill Ricks. The animosity between Wise and Ricks stemmed from a prior narcotics transaction and the fact that Wise had caught Ricks "messing around" with Christina. She told the agent that she, Donald Helt, Craig Jefferson and Wise went to a motel in Wichita where Ricks was located. Wise, Helt and Jefferson went into the room; Christina remained outside. She heard several gunshots, and when Wise emerged from the room he told her that he had shot Ricks.

At the time Christina made the telephone call to the Wichita detective and the statements to the Memphis police officers and the F.B.I. agent, she believed that Wise had a "contract" out for her and that her life was in imminent danger. A few days after the statements were made, she found out that the threat was not real. She then told the Memphis officers that her story had been a lie. She executed an affidavit, stating that she knew nothing about the involvement of Wise in any homicide. At trial she testified that Ricks had made a pass at her, but she claimed that the defendant's response was merely that Ricks should keep his hands off her. She stated that she spent the night (when Ricks was killed) with Wise; that there was no confrontation between Wise and Ricks; and that she first heard about Ricks' death the next morning. A Memphis detective and the F.B.I. agent testified to her earlier statements, and Christina admitted that she made those statements.

The State called three other witnesses who testified that the defendant had told them that he killed Richard Ricks. The defendant testified that he spent the night with Christina and that he had nothing to do with the Ricks homicide. Defendant also called Donald Helt as a witness; Helt testified that he knew nothing about the Ricks homicide until his wife told him about it the next day.

When the defendant in a criminal case contends on appeal that the trial evidence is insufficient to sustain the conviction, the standard of review on appeal is: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate court that any rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Voiles, 226 Kan. 469, Syl. p 6, 601 P.2d 1121 (1979), and State v. Fosnight, 235 Kan. 52, Syl. p 2, 679 P.2d 174 (1984). The evidence is not to be weighed by the appellate court, but must be viewed in the light most favorable to the prevailing party below. If the essential elements of the charge are sustained by any competent evidence, the conviction stands. State v. Pham, 234 Kan. 649, 668, 675 P.2d 848 (1984).

The statements which Christina Lynn made to the Memphis officers and the F.B.I. agent were hearsay, but since she was present and testified in person during this trial, they were admissible as an exception to the hearsay rule under K.S.A. 60-460(a). As such, those statements were admissible as substantive evidence, and could form part of the basis for the conviction. See State v. Fisher, 222 Kan. 76, 79, 563 P.2d 1012 (1977), and State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981). The evidence was thus sufficient to support a finding that the defendant went to and entered Ricks' room with the intent to rob him of money and narcotics; that in the process of robbing or attempting to rob the victim, the defendant fatally shot him; and that this offense occurred in Sedgwick County, where the motel was located. We find no merit to defendant's challenge to the sufficiency of the evidence.

The next point argued is whether the jury could convict the defendant of felony murder and simultaneously acquit him of premeditated murder arising out of the same facts. The information charged defendant with premeditated murder in count I, and with felony murder in count II. The verdict form submitted to the jury followed the sequence of the information, and a verdict of guilty or not guilty of first-degree murder as charged in count I was followed by a verdict of guilty or not guilty of first-degree murder as charged in count II. The jury found defendant not guilty of murder as charged in count I but guilty of murder as charged in count II. Defendant argues that the first-degree murder statute, K.S.A. 21-3401, establishes only one offense, murder in the first degree, and that a defendant cannot be charged with both premeditated murder and felony murder. Our cases are to the contrary. In State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), Jackson was convicted of both premeditated murder and felony murder, arising out of the killing of a single victim. On appeal, he contended that he could not be convicted of both premeditated and felony murder. Chief Justice Schroeder, speaking for a unanimous court, said:

"The appellant asserts it was error to be charged and convicted of both premeditated murder and felony murder for the same homicide.

"In State v. Lamb, 209 Kan. 453, 497 P.2d 275 [ (1972) ], our court held:

'... [W]here an information charges a defendant with murder in the first degree on both theories--the premeditated killing and killing while in the perpetration of a felony--a defendant is not prejudiced because the state has apprised him that it is proceeding on both theories of first degree murder, and that it intends to produce...