State v. Young

• Decision Date: 28 May 1993
• Docket Number: No. 67275,67275
• Citation: State v. Young, 852 P.2d 510, 253 Kan. 28 (Kan. 1993)
• Parties: STATE of Kansas, Appellee, v. Bobby L. YOUNG, a/k/a Bobby L. Yung, Appellant.
• Court: Kansas Supreme Court

Page 510

852 P.2d 510

253 Kan. 28

STATE of Kansas, Appellee, v. Bobby L. YOUNG, a/k/a Bobby L. Yung, Appellant.

No. 67275.

Supreme Court of Kansas.

May 28, 1993.

Syllabus by the Court

In an appeal from a conviction of first-degree murder (K.S.A.1992 Supp. 21-3401), the record is examined and it is held: (1) There was sufficient evidence of a specific intent to kill to support the defendant's conviction; and (2) the district court did not err in admitting the testimony of two witnesses that the defendant had on previous occasions physically abused the victim.

Reid T. Nelson, Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief for appellant.

Rodney H. Symmonds, County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for appellee.

ALLEGRUCCI, Justice:

This is a direct appeal by Bobby Young from his conviction by a jury of first-degree murder (K.S.A.1992 Supp. 21-3401). He was convicted for the shooting death of his girlfriend, Carol Dorsey.

Carol Dorsey died on April 4, 1991, from a gunshot wound to her left temple. She lived with Young and Walter "Teddy" Banks. Young testified that the three of them drank "seven days a week from sunup to sundown."

At his trial, Young testified that he had shot Dorsey and that it had been an accident. He gave the following account of events to the jury: Dorsey was lying on the couch watching television and he was walking between the couch and the coffee table when he heard someone knocking on the window behind the couch. There was no response to Young's inquiry as to who was there. When he leaned across Dorsey in order to pull back the curtain, he had a gun in his hand. He then slipped off the couch and heard a shot. When he looked at Dorsey, she had blood on her head.

Banks testified that he had been in the bathroom at the time Dorsey was shot. Because there was no phone in the house where Young, Dorsey, and Banks lived, Banks went to a neighbor's house and asked that the neighbor call 911.

Young went to the house of another neighbor, Paul Mann. Young, with the gun in his hand, told Mann that he had just shot his wife and needed to call 911. While Young was talking with the 911 dispatcher, he put the gun on the table. Mann took it into another room. Mann overheard Young telling the dispatcher that he had accidentally shot his wife.

Mann testified that, after his neighbors had been taken into custody, a detective retrieved the gun from his house. At trial the detective referred to the gun as a pistol and the shells from it as .22 caliber. When he seized it, the pistol had five live rounds and one spent round in the cylinder in the firing position.

Officer Cronk was dispatched to Young's house at about 8:10 p.m. He talked to Young at the house. He testified that Young appeared to be under the influence of alcohol. (Young's blood alcohol concentration later was found to be .25.) He also testified that there were instances when Young's attention seemed to waver from the person who was speaking to him and that Young made some seemingly random statements. When Officer Cronk was able to get Young to pay attention to him, Young coherently answered questions.

Young told Cronk that he did not own a handgun. He denied shooting Dorsey. He blamed the shooting on someone else. He said that there was a fourth person in the house, someone from out of town whose name he did not know, and that the out-of-town person had shot Dorsey.

Young was taken to the police department, where he was interviewed by Detective Davis beginning at approximately 8:53 p.m. on April 4. Davis could smell alcohol on Young, but Davis said that Young was coherent and capable of understanding and responding to questions. Davis described Young as "functioning" and neither stumbling nor falling.

Young told Davis that he had been out in the back yard feeding the dog when he heard a shot. Banks was in the house when Young came back in, and Dorsey was lying on the couch bleeding. Young said he knew the face but not the name of the man who had shot her. He said that he had gone next door and instructed his neighbor to "call the police because someone shot my woman." Young told Davis that he then went back home and had a conversation with Dorsey. She said to Young that he knew who shot her, and she assured Young that Young was not the person who shot her. Young told Davis that he owned two shotguns, but denied that he owned any other guns or that there were any other guns at the residence. Young stated that, if he had shot Dorsey, "it would have been with a shotgun."

In a second interview conducted by Detective Davis at approximately 9:30 p.m. on April 4, Young repeated his claim that a fourth person had been at the house and had shot Dorsey. Detective Davis confronted Young with the dispatcher's statement that Young had called 911 and reported that he accidentally shot Dorsey. Davis told Young that if the shooting had been an accident, Young should tell him. Young replied, "If I shot her, I'd tell you."

At trial, Young admitted to the jurors that he had hit Dorsey on several occasions and that he had told Robert Freeman that he was going to kill Dorsey. Young also admitted that he had told Connie Mason that he removed the guns from his house because he was afraid he was going to hurt someone.

A number of witnesses testified that they had observed Young physically abuse Dorsey or that they had heard Young talk about physically abusing Dorsey or getting rid of Dorsey or killing Dorsey. Some witnesses saw and heard Young threaten Dorsey, some heard Young accuse Dorsey of infidelity, and one witness testified that he had been threatened by Young. In brief, those witnesses stated the following: Barbara Williams, Dorsey's niece, saw Young hit Dorsey two or three times in the head. Gloria Jacobs heard Young say that, as an embalmer, he knew how to kill a person instantly and then saw Young point to a person's temple. She saw Young slap Dorsey and kick her when she fell to the floor, and she saw Young point a gun at Dorsey and threaten to kill her.

Connie Mason testified that she had heard Young say he suspected Dorsey of infidelity. Benfadean Craig testified that she had heard Young say that he was going to kill Dorsey and Banks and that Young thought they were "fooling around." Martha Baxter, a neighbor, testified that approximately a week before the shooting Young told her that he was going to get rid of Dorsey so that he could be with Baxter. Patrick Coen, another neighbor, testified that, while he was driving Young to the liquor store, Young explained that he was taking his pistol there to get rid of it because he was concerned about hurting Dorsey or Banks or himself. Young told Coen that he had thought about shooting Banks and Dorsey and putting them in the well in the back yard. Sandra Freeman, another neighbor, testified that she heard Young say he was going to shoot Dorsey. Patricia Hardin testified that in March 1991 she heard Young threaten to kill Dorsey and some people who had helped her. Freddie Harrell, a friend of Young, testified that Young told him that if he could get away with it, he would kill Dorsey.

The defendant first contends that there was not sufficient evidence from which the jury could have found beyond a reasonable doubt that Young was capable of forming the intent to kill Dorsey. In State v. Bailey, 251 Kan. 156, Syl. p 2, 834 P.2d 342 (1992), the standard of review was stated as follows:

"When the sufficiency of the evidence is challenged, 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 that a rational factfinder could have found the defendant guilty beyond a reasonable doubt."

Young asserted voluntary intoxication as a defense. K.S.A. 21-3208(2) provides:

"An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind."

In State v. Beebe, 244 Kan. 48, 60-61, 766 P.2d 158 (1988), this court concluded that PIK Crim.2d 54.12 is an adequate statement of the statutory provision on voluntary intoxication. The instruction which the court approved stated:

" 'Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.' "

In the present case the jury was instructed, in accordance with PIK Crim.2d 54.12-A (1992 Supp.), as follows:

"Voluntary intoxication may be a defense to the charge of murder in the first degree or the lesser included offenses of murder in the second degree, or voluntary manslaughter, where the evidence indicates that such intoxication impaired a defendant's mental faculties to the extent that he was incapable of forming the necessary intent to commit murder in the first degree, murder in the second degree or voluntary manslaughter."

Young contends that the evidence was not sufficient to permit the jury to find that he was capable of forming the necessary intent to kill. He emphasizes evidence of his history of alcoholism, of his blood alcohol level on the night of the shooting, and of his drunken actions on that night. He argues that the State's evidence of his intent to kill consisted of showing the shot was fired at close range and of his statements that he wanted to kill Dorsey. He argues that the finding the shot was fired at close range is consistent and compatible with his version of the shooting. He argues that his statements about killing Dorsey ...