263 Kan. 28
(947 P2d 8)
No. 74,874
STATE OF KANSAS, Appellee, v. RICK E. FOLLIN, Appellant.
SYLLABUS BY THE COURT
1. 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. The duty to so instruct exists only where the defendant might reasonably be convicted of a lesser offense.
2. The test of the sufficiency of the provocation to support a voluntary manslaughter conviction is objective and not subjective. The provocation must be by the person killed and be sufficient to cause an ordinary person to lose control of his or her actions and reason.
3. An intentional killing is not done in the heat of passion if sufficient time has elapsed between the provocation and the killing for an ordinary person to regain reason.
4. When the sufficiency of the evidence is challenged for establishing the existence of an aggravating circumstance in a hard 40 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.
5. All murders are heinous, atrocious, and cruel. The legislature, by using the phrase "in a particularly heinous, atrocious, or cruel manner," meant that the heinous, atrocious, or cruel manner must be in a special or unusual degree, to an extent greater than in other cases.
6. K.S.A. 1993 Supp. 21-4627(3)(b) requires this court to consider whether the evidence supports the finding or findings of aggravating circumstances and, if so, then to weigh the aggravating circumstances against mitigating ones.
Appeal from Butler district court; JOHN M. JAWORSKY, judge. Opinion filed October 31, 1997. Affirmed.
Thomas Jacquinot, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
Mike Ward, county attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Rick Follin fatally stabbed his 3- and 4-year-old daughters. He was convicted by a jury of two counts of first-degree murder, and he was sentenced to two consecutive hard 40 terms of imprisonment. He appeals the convictions and sentences.
At approximately midday on Saturday, February 5, 1994, a passing motorist, Val Taylor, saw Rick Follin slumped over the steering wheel of his pickup, which was parked near El Dorado Lake. In response to Taylor's questions, Follin indicated by nodding his head that he had tried to kill himself. When Taylor opened the driver's door of Follin's truck, he saw a knife on the floor and he glimpsed blond hair on the seat to Follin's right. Taylor asked Follin if he had killed the child, and Follin indicated that he had. Taylor flagged down another vehicle and asked that person to get help. He returned to the truck, opened the passenger side door, removed a coat, and found two children beneath it on the seat. Neither child had a pulse, and Taylor noted that rigor mortis had set in. When Taylor asked Follin why he had killed the children, Follin replied that "it was his family he could do what he wanted to."
The children were Rick and Sherri Follin's 3- and 4-year-old daughters, Hanah and Kylie. Autopsies showed that each girl had three stab wounds from a single-edge knife in the chest and upper abdomen area. There were no cuts in the clothing because each girl's left arm had been removed from the sleeve of her clothing, thus exposing her chest. The fatal wound for each of the girls perforated her heart. In the pathologist's opinion, the wounds were inflicted by a person with "a knowledge of anatomy to know the location of the heart, and for the knife to be placed between the ribs and not go through the bone." There were no wounds on the girls' hands or arms that would indicate they had tried to defend or protect themselves. The pathologist noted that Kylie had some bruises and scrapes that may have been produced at about the same time as the stabbings.
Rick Follin was flown from El Dorado Lake to Wesley Medical Center in Wichita, where he was treated for a self-inflicted wound in the right side of his neck and a laceration to his left wrist. He was discharged to police custody on February 7. His medical records include several accounts of statements made by Follin to hospital personnel: "[Follin] states he is married and has been having recent marital problems. The patient states he did not want to have to leave his kids and thus prompted this incident." "The patient does state that he killed both of his children by stabbing and then tried to commit suicide," and "He states that he had not been planning this for any appreciable length of time but did appear somewhat distraught." Dr. Pankow, who saw Follin on February 6, reported:
"Pt. was not speaking well but is oriented and claims to remember events of stabbing and suicide attempt--but refused to talk about them. Did say his wife threatened to take away his kids because of 'family problems'; 'I wanted them to be with me' 'I couldn't stand to [lose] them' . . . ."
Dr. Pankow also noted that Follin "denies any psychiatric problems in past" and there was "no evidence of psychotic thinking" at the time of the examination.
In September 1993, Follin began to suspect that Sherri was being unfaithful to him, but she denied it. Follin testified that he bought two microcassette recorders at the end of January, one for taping Sherri's telephone conversations and one for the girls to play with.
On Friday, February 4, Follin went to work at 6 a.m. as usual. Sherri's routine was to take the girls to day care between 7:30 and 8 a.m., on her way to work. On February 4, Follin stayed at work until Sherri left the house, then he went home to listen to the tape. Sherri's voice was on the tape telling someone "how much she missed him." Follin testified that he was devastated because "these were the three most important people in my life, and they were--I was losing them, they were going away." He also testified that "everything I ever wanted was being taken away from me."
Follin went back to work. When he left work at 2:30 p.m., he went home and listened to the tape again. At approximately 4 p.m., he resumed his Friday routine. He picked up the girls at day care, and they went to the bank where the girls always got a piece of candy; he got cash for the coming weekend. When they got home, Follin called Sherri at work, let her know that he had taped her morning telephone conversation, and told her to come home to talk to him. According to Follin, she said that she would work until 5:30 p.m. and then bring somebody home with her. She would not say who the other person was. Follin took the girls and left the house "cause [he] wasn't going to be there when she brought somebody home." When Sherri went home, she was accompanied by Diana Hutchinson, a friend and co-worker, and police officers because Sherri was afraid. She testified, "I wanted my daughters. I wanted to get [Follin] away from my daughters. I knew if I went alone I couldn't leave with them. And I thought if I had a police officer with me maybe he would allow me to leave with them."
Follin testified that El Dorado Lake became his destination because he had promised the girls earlier in the week that they would go there on Friday, and Kylie had asked on the way home from the bank whether they were still going to go. First they drove around for an hour and a half to 2 hours, got a soft drink and some small, packaged doughnuts, and the girls busied themselves singing into the tape recorder. At approximately 6:15 p.m., after the police left the Follins' house, Follin called Sherri from a gas station/convenience store. When she answered, he said, "Are you going to tell me who this person is yet?" When she said she would not, he told her that they were going to get something to eat and would call her later. He did not intend to take the girls home until Sherri told him whom she had been talking to on the telephone.
Follin and the girls drove to the lake, stopped, and counted stars. He let the girls go to the bathroom, and they got back in the truck. Follin described what happened next: "I just--I just sit there. My body just was--felt like a furnace. It felt like I was on fire, and my head . . . just felt like it was gonna just explode, and everything was just black." Follin testified that the next thing he remembered was comforting the girls as they were crying. At trial, he denied having any recollection of stabbing the girls.
The bloody knife that was found on the floor of Follin's truck was a butcher knife from a set of knives kept in a drawer in the Follins' kitchen. He testified that the butcher knife had been in the truck for 4 to 5 months and that he used it to cut candy bars for the girls by placing the candy on his leg and cutting it lengthwise. Sherri testified that she rode in the truck once or twice a week and that she had never seen the butcher knife in the truck. Nor had she ever seen Follin use anything other than a paring knife to cut up food for the girls.
Dr. William Logan, a psychiatrist who had examined Follin on two occasions, testified that Follin's thinking on the day he killed his daughters was very dejected, depressed, and morbid. If there had been a voice to provide hope and rationality to counterbalance Follin's thinking, Dr. Logan believed that Follin would have been prevented from killing his daughters. In Dr. Logan's opinion, however, without someone else's providing rationality, Follin's "depression was severe enough and his despondence great enough that he was not sane at the time he killed his daughters." Testifying for the State, Dr. Neil Roach, another psychiatrist, gave the opinion that Follin knew what he was doing when he stabbed his daughters and knew that it was wrong and illegal.
With regard to Follin's claiming to have no recollection of stabbing his daughters, Dr. Roach denied that loss of memory of an incident signified insanity. Dr. Logan related a December 1993 incident that Follin had told him about in which Follin strongly suspected his wife of talking on the telephone with another man. Follin's reaction "was so extreme that he felt like there was a hot flash that went through his body, that his body was on fire, that he had all of a sudden, even though it was daylight, he had a period of time when he said he could not see, things went black." Dr. Logan called this phenomenon an anxiety or panic reaction. In the case of such a very strong emotional reaction, he testified, the body may produce a surge of adrenaline, sweat, increased heart rate, and hyperventilation, which can affect vision. Dr. Logan did not indicate that Follin had described experiencing an anxiety reaction while at El Dorado Lake, but Follin testified at trial that he felt extremely hot, his head felt like it would "explode," and his vision was blackened.
Follin first argues that the district court erred in failing to instruct the jury on the lesser included offense of voluntary manslaughter. Under K.S.A. 21-3107(3), the district court is required to instruct on lesser offenses as the evidence justifies. With respect to the nature of the evidence, this court has stated: "Such an instruction must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. The duty to so instruct exists only where the defendant might reasonably be convicted of the lesser offense." State v. Dixon, 252 Kan. 39, Syl. 1, 843 P.2d 182 (1992).
At the instruction conference, defense counsel made the following case for instructing the jury on the lesser offense of voluntary manslaughter:
"[A]lthough I did not file a written request for this . . . I still believe that it may be appropriate for the court to give a voluntary manslaughter instruction, and I'm familiar with the case the court cited earlier, State v. McClanahan, 254 Kan. 104, which basically describes Kansas law in that for heat of passion, words are simply not enough; that there has to be some sort of accompanying action that would excite a person of normal sensitivities. In this case we have more than words; we have action, as far as the deteriorating marriage of Mr. Follin, the fact that he was told that his wife was coming home, bringing somebody with her, that eventually their marriage was going to be over with, and I think that that would qualify."
The district court disagreed and denied the request.
On appeal, Follin argues that the instruction should have been given because there was evidence that he killed his girls in the heat of passion. It is long-established Kansas law that the form of voluntary manslaughter defined in K.S.A. 21-3403(a) as an intentional killing committed in the heat of passion must result from "'severe provocation.'" State v. McClanahan, 254 Kan. 104, 114, 865 P.2d 1021 (1993) (quoting State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 [1985]). It is equally well established that the standard for measuring the sufficiency of the provocation is objective. Guebara, 236 Kan. at 796-99. A subjective test has been proposed to this court and expressly rejected on more than one occasion:
"The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be 'sudden quarrel' or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. State v. Coop, 223 Kan. 302; State v. Ritchey, 223 Kan. 99. In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. State v. Jackson, 226 Kan. at 307." Guebara, 236 Kan. at 796.
In Guebara, evidence was presented by the defense to show that the defendant typically responded to stressful circumstances with abrupt violence and that his ability to assess reality accurately may have been hampered by an anti-social personality disorder and the effect of marijuana use. This court upheld the trial court's refusal to instruct on voluntary manslaughter because "the innate peculiarities of the individual defendant" are not to be considered in evaluating the legal sufficiency of the provocation. 236 Kan. at 799.
Follin wants the court to modify the rule applied in Guebara "where the defense of diminished capacity is asserted." The principle he would substitute is stated as follows in his brief: "When there is substantial evidence of mental disability, the test for provocation should consider the accused's subjective state of mind." The rationale offered by the defendant seems to be summed up in this statement: "The whole idea of diminished capacity is based on the notion that an individual is not acting intentionally in the normal sense of the word." In the present case, the jury was given the pattern instruction on diminished capacity, based on PIK Crim. 3d 54.12-B: "Diminished mental capacity not amounting to insanity may be considered in determining whether the defendant was capable of forming the necessary premeditation or intent to kill." Follin has not provided the court with any authority for making the generally objective test a subjective one where there is evidence of diminished mental capacity. Nor has he presented any persuasive reason for doing so. Where a jury has been instructed on the offense of voluntary manslaughter on a theory of provocation and a defendant has presented convincing evidence of diminished mental capacity, the jury will find that the defendant did not form the essential intent to kill. Where a defendant has presented unconvincing evidence of diminished mental capacity, he or she will have shown "[m]ere personality characteristics such as poor impulse control, a short temper, frustration, feelings of dependency, 'snapping,' lack of concern for the rights of other people, etc., [which] do not constitute a mental disease or defect bringing the doctrine of diminished capacity into play." State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991). In the first instance, the jury will find a defendant not guilty of the offense of voluntary manslaughter. In the latter instance, the evidence that was insufficient for invoking the doctrine of diminished capacity will not be, in defendant's words, "substantial evidence of mental disability" for the purpose of changing the provocation standard from objective to subjective. The jury found Follin guilty of two counts of first-degree murder. The jury did not believe that Follin was incapable of forming the intent to kill due to diminished mental capacity.
The State does not discuss whether the standard should be modified but argues that neither the "heat of passion" nor the provocation in this case warranted the district court's instructing on voluntary manslaughter. In Guebara, the court defined heat of passion as "any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror . . . of such a degree as would cause an ordinary man to act on impulse without reflection." 236 Kan. at 796. With regard to the heat of passion, Follin's brief asserts that he was in a state of "extreme vehement emotional excitement" when the killings occurred. Follin, however, refers to no evidence that intense emotions caused him to act without reflection. The State disputes the idea that Follin was seething with rage or passion. The State particularly directs the court's attention to the lengthy tape recording made as defendant drove the girls to the place where he killed them.
The recording, defendant explained, was made in his truck as they were driving to the lake. Because he did not want to sing along with the radio, as he and the girls generally did, Follin gave them the recorder to play with. He testified that the girls recorded nursery rhymes, nursery songs, and Christmas songs and then played them back. Review of the recording discloses that conversation also was captured. Follin's voice is heard on the tape a number of times, and it never sounds as if he is in a state of vehement emotional excitement.
Follin's testimony established that they were in the truck for several hours. He picked the girls up at the day-care center at approximately 4 p.m. Before going home, they went to the bank to get cash, and they went somewhere to get something to drink. Once home, Follin called Sherri and let her know that he had taped her morning telephone conversation. Then they got into the truck and left the house. Instead of going directly to the lake, they drove in the other direction for awhile, stopped for more soft drinks and some doughnuts. After driving around for "[a]bout an hour and a half or two hours or so," Follin placed a call from a convenience store to Sherri at home at approximately 6:30 p.m. The only thing he said to her was, "Are you going to tell me who this person is yet?" When she refused, he told her that he and the girls were going to get something to eat and would call her again "in a little while." Then he drove from Wichita to El Dorado and to the lake. Once there, they got out of the truck to count stars and go to the bathroom. Follin told the girls that they would go eat and call Sherri.
At this point in Follin's account of what he and the girls did after leaving the house late Friday afternoon, there is an abrupt change in his demeanor. Follin testified that when they got back in the truck, "I just--I just sit there. My body just was--felt like a furnace. It felt like I was on fire, and my head . . . just felt like it was gonna just explode, and everything was just black." The only subsequent thing he remembered was comforting Kylie and Hanah when they cried.
There was no change in the surrounding circumstances that corresponded with the change in Follin. There was no provocation more immediate than his brief conversation with Sherri at 6:30 p.m. when she refused to tell him with whom she had the morning telephone conversation, and it had been approximately 10 hours since he first heard the tape-recorded telephone conversation. Since first listening to the taped conversation, he had returned to work to finish his shift, picked the girls up at the day-care center, gone to the bank, stopped several times for snacks, and talked to Sherri two more times on the telephone.
Thus, Follin's testimony seems to disprove the contention that he impulsively reacted to provocation when he killed the girls. Moreover, it establishes that he reflected at length on "[his] marriage and what was going to happen, who this [other] person was, the kids." If believed, his testimony might have supported a finding that his murderous actions occurred while he suffered some unusual mental state. It also might have supported a finding that his hearing the taped telephone conversation of his wife ultimately produced that mental state. Between his listening to the tape and his murdering the girls, however, many hours passed in which Follin methodically adhered to routine and interacted with his girls in a manner that they did not seem to find unusual. Thus, immediacy and spontaneity, which would seem to be essential elements of the form of voluntary manslaughter defined in K.S.A. 21-3403(a), is wholly missing in the present case.
In addition to the question of the sufficiency of the provocation, there is a question of timing. In State v. Yarborough, 39 Kan. 581, 18 Pac. 474 (1888), Yarborough was convicted of the first-degree murder of L.D. Collier, with whom he worked on the railroad. Although friends, the two exchanged angry words when Collier thought Yarborough had neglected his work responsibilities. "Yarborough answered with a vulgar remark, and Collier struck Yarborough three times, the last time knocking him senseless; after being knocked down, Yarborough had a bruise over his left eye and was bleeding at the nose." 39 Kan. at 583. After Yarborough got up and washed his face, he struck Collier, and the two "clinched, but parties interfered and separated them." 39 Kan. at 584. Several hours later, after eating supper and borrowing a revolver, Yarborough went to Collier's rooming house and shot him. In considering whether the jury should have been instructed on the lesser offense of voluntary manslaughter, the court stated:
"The law carefully distinguishes between a sudden transport of passion, which springs instantaneously from what it allows as a sufficient provocation, and which prompts to an immediate act of violence, and a purpose of revenge, which usually follows such passion. In the first case, in condescension to the frailty of our nature the law allows the provocation to extenuate a homicide committed at the instant, from murder to manslaughter. In the other, the provocation furnishing an incentive to revenge, so far from extenuating the crime, is a circumstance to be looked to as evidence of malice; and especially would this be so if the prisoner, in consequence of the provocation, had made threats against the life of the deceased. (Felix v. The State, 18 Ala. 720. See also 2 Bishop on Crim. Law, 718.)" 39 Kan. at 590.
In other words, malice and heat of passion are incompatible, and it is the absence of malice which distinguishes voluntary manslaughter from murder. With the passing of time after provocation, passion cools and gives way to reason and mastery over one's passion. An act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than the heat of passion.
In Yarborough, the court considered whether determining if a reasonable time had elapsed for the passions to cool and reason to resume its control was a matter of fact or law. 39 Kan. at 589. Bishop's treatise on criminal law was quoted to the effect that reasonable cooling time was not set by rule, that a reasonable time was to be that of an ordinary man in like circumstances, and that "'an hour seems to have been deemed sufficient.'" 39 Kan. at 589 (quoting 2 Bishop on Criminal Law 712). The court concluded that there was no error in the trial court's refusing to instruct the jury on manslaughter:
"Most courts seem to agree that if it is clear that there was sufficient time between provocation and the killing to enable the court to determine that the passions had cooled, and so instructed the jury, no error would be committed. Of course, the case should be very clear. It must be borne in mind that the criminal law holds sane men responsible for the ordinary exercise of their reason; and that, although indulging to a certain extent mere infirmities of human nature, nevertheless it requires the exercise of control or mastery over one's passion. Hence it is said that 'the time in which an ordinary man, under or in like circumstances, would have cooled, is a reasonable time.' (Kilpatrick v. Commonwealth, 31 Pa. St. 198.)" 39 Kan. at 589-90.
In the present case, as in Yarborough, more time intervened between the provocation and the killing than it would have taken an ordinary person to regain reason.
The State also suggests that Follin's murdering his children rather than his wife or her lover removes any possibility that the offenses could be voluntary manslaughter, rather than murder. The point is that the murderous actions were directed against persons innocent of any responsibility for provoking defendant. Not only has this issue been considered in a number of different courts, but also two distinct variants of this situation have been recognized. The first would be where the killing of the innocent person is by mistake; the second, according to commentators, is the more difficult situation "in which A, actually and reasonably provoked by B, in his passion strikes out at and kills C, known by A to be only an innocent bystander." 2 LaFave and Scott, Substantive Criminal Law 7.10(g), p. 269 (1986). The commentary continues:
"The courts have quite consistently held that the killing of C does not qualify as manslaughter, apparently upon the assumption that a reasonable man would never be so greatly provoked as to strike out in blind anger at an innocent person. The Model Penal Code [ 210.3], however, does not so limit provocation, on the ground that there may be some such cases in which 'the cause and the intensity of the actor's emotion . . . [are] less indicative of moral depravity than would be a homicidal response to a blow to one's person.'" 2 LaFave and Scott, 7.10(g), pp. 269-70.
Among the most recent cases reported are two from Nebraska. In State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992), the defendant shot Rose, the woman with whom he had been quarreling, and her friend, Linda. Rose died of her injuries, but Linda did not. Defendant was convicted of second-degree murder and attempted second-degree murder. The appellate court rejected the arguments that the murders should be reduced to manslaughter. With regard to Rose's murder, the court concluded that her behavior did not constitute severe, sufficient provocation. With regard to defendant's shooting of Linda, the court affirmed the attempted murder conviction on the ground that any provocation which existed resulted from the acts of the victim's friend, not the victim herself. 240 Neb. at 791-92. The court based its decision on the holding in State v. Bautista, 193 Neb. 476, 227 N.W.2d 835 (1975), in which defendant fought with a man at a club; returned later with a gun; encountered the assailant's father, who refused to disclose his son's whereabouts; and killed the father. Bautista was convicted of second-degree murder. The appellate court rejected his argument that the jury should have been instructed on manslaughter:
"There was no error in refusing to instruct the jury further regarding reasonable provocation because there is no evidence in the record that the defendant was reasonably provoked by the victim. On the contrary, what provocation existed resulted from the acts of the victim's son, not the victim himself." 193 Neb. at 480.
The Vermont Supreme Court applied slightly different reasoning to reach the same result as that reached by the Nebraska court. In State v. Turgeon, ____ Vt. ____, 676 A.2d 339 (1996), defendant shot a law enforcement officer after a heated argument between defendant and his wife. Here is the court's analysis:
"The alleged provocation here was a heated verbal exchange between defendant and his wife. She had obtained a relief-from-abuse order, and tormented him about the fact that he was legally barred from visiting his son. She also tried to detain him by holding on to his truck door. His response was a fit of anger, but it was not directed at his wife. Instead, after leading police on a chase through Windsor, he shot Trooper Leahy, a third party who was not involved in the initial altercation. This response cannot, under any view of the facts, be deemed a reasonable reaction to a domestic confrontation." ___ Vt. at ___, 676 A.2d at 342.
We conclude in the present case, for all the reasons stated, the trial court was under no obligation to instruct the jury on the lesser offense of voluntary manslaughter. In particular, we reject defendant's suggestion that the court change the standard used for determining the sufficiency of provocation under K.S.A. 21-3403(a) to a subjective one.
Follin next contends that the district court abused its discretion in refusing to grant his motion for mistrial due to a witness' referring to "the cocaine bag." The parties agree that declaration of a mistrial is a matter entrusted to the discretion of the trial court. In order to establish on appeal an abuse of discretion, Follin must show that he was substantially prejudiced by the trial court's refusal to grant a mistrial. State v. Crane, 260 Kan. 208, 228, 918 P.2d 1256 (1996).
The incident complained of occurred during the testimony of Captain Murphy from the Butler County Sheriff's Department, who participated in the search of Follin's residence. The prosecutor, Mike Ward, handed a brown paper bag marked State's Exhibit 60 to Murphy for identification. The bag was sealed with evidence tape. Ward asked the witness to open it, and the witness did so. This exchange followed:
"Q. Would you remove the contents of that sack, pl