262 Kan. 119
(936 P2d 761)
No. 75,608
STATE OF KANSAS, Appellee, v. ROBERT L. JACKSON, Appellant.
SYLLABUS BY THE COURT
1. It is the duty of the trial court to instruct the jury on self-defense so long as there is evidence tending to establish self-defense. However, K.S.A. 21-3214(3) provides that the justification for using force in self-defense is not available to a person who otherwise initially provokes the use of force against himself or another, unless certain circumstances exist.
2. No party may assign as error the giving of an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous.
3. The giving of an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.
4. In any prosecution, the court upon motion of the defendant shall order that the case be transferred to another county if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in that county.
5. The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant.
6. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The State is not required to produce evidence refuting that of the defendant. The defendant must show that such prejudice exists in the community and that it is reasonably certain he or she will not obtain a fair trial.
7. The charging document is a jurisdictional instrument upon which an accused stands trial, and the court does not have jurisdiction to sentence a person for a crime consisting of elements not alleged in the charging document.
8. Pursuant to K.S.A. 1993 Supp. 21-4716(a), the district court must find substantial and compelling reasons to impose a departure of a sentence. K.S.A. 1993 Supp. 21-4716(a) also requires the district court to state on the record at the time of sentencing the substantial and compelling reasons for the departure.
9. A claim that the departure factors relied upon by the sentencing court do not constitute substantial and compelling reasons for departure is a question of law for which an appellate court's review is unlimited.
Appeal from Shawnee district court; JAMES P. BUCHELE, judge. Opinion filed April 18, 1997. Affirmed in part and reversed in part.
Rick Kittel, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.
James A. Brown, assistant district attorney, argued the cause, and Michelle V. Hostetler, assistant district attorney, Joan M. Hamilton, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant Robert L. Jackson was convicted of two counts of first-degree murder, one count of voluntary manslaughter, two counts of aggravated battery, one count of unlawful possession of a firearm, one count of criminal damage to property, and one count of criminal trespass. All but the misdemeanor sentences were imposed to run consecutively. Defendant appeals his convictions and sentences, claiming the trial court erred by (1) failing to instruct on self-defense; (2) failing to instruct on lesser included offenses; (3) instructing the jury on first- and second-degree murder; (4) denying a change of venue; (5) imposing an upward durational departure sentence; (6) imposing the sentence for aggravated battery; (7) imposing a consecutive sentence for unlawful possession of a firearm; and (8) sentencing him for level 8 aggravated battery.
At approximately 12:45 a.m. on April 8, 1994, Robert Jackson left the home of Jamie Brown for Shanghi Lil's, a nightclub in Topeka, Kansas. As Jackson left, Brown noticed Jackson had a gun.
Tracy Freel and Heidi Childers, dancers at a nightclub called Teezers, went to Shanghai Lil's to meet Childers' boyfriend, Scott Wilson, who worked there as a bouncer. At Shanghi Lil's, Childers and Freel were approached by Jackson, who tried to pick them up. Jackson also made comments of a sexual nature to Childers, Freel, and other women in the club. After an announcement that the club was closing, Jackson lingered at the bar and attempted to persuade Childers and Freel to leave with him. They declined.
When Matt Fabry, a bouncer at the club, told Jackson it was time to leave the club because the club was closing, Jackson refused to leave. Fabry grabbed Jackson by the shoulder to escort him out and again told Jackson to leave. Jackson struck Fabry and knocked him to the floor.
As Jon Stratton, a patron at the club, intervened to assist Fabry, Jackson took a black automatic pistol from his waistband and shot Fabry in the chest and arm. Fabry was unarmed. Jackson then shot Stratton in the right side. Dan Rutherford, the club's disc jockey, jumped over a brass rail to assist Fabry. Jackson shot Rutherford twice in the face. Jackson backed out of the inner doors of the club, returned, and shot Rutherford two or three more times. Jackson then straddled the fallen Fabry and asked, "You want some more of this, motherfucker?"
When Scott Wilson attempted to push Jackson out the door, Jackson started firing again. Alan Eastman, a customer, attempted to escape out the door. Jackson turned and shot Eastman in the thigh. After Jackson shot Eastman, the club manager, John Iturralde, left his office in the back of the club carrying a .45 caliber handgun. After more shots were fired by Jackson, Iturralde took cover behind the bar. Iturralde testified that he never fired his gun.
Wilson threw Childers to the floor to protect her, and she landed next to Jon Stratton. While on the floor, she felt a burning and stinging on her leg and saw a bruise forming across her right leg going over to her left leg and a tear in her knee.
Brenda Strahm, an acquaintance of Jackson's, heard a loud noise at her front door in the early morning hours of April 8, 1994. She opened the door and saw Jackson standing there. She let Jackson in and returned to her bedroom. Later she heard a gunshot. After Jackson fell asleep in Strahm's kitchen, she took her children, left the house, went to a nearby service station, and called 911. The police found Jackson asleep in Strahm's house, arrested him, and confiscated a 9 mm Taurus handgun found next to Jackson.
The police also found an empty 9 mm Norinco handgun underneath Dan Rutherford's body at the club. Seven cartridges fired from the Norinco were found at the club. A total of 21 shell casings were recovered. Hugh Kizer, a KBI firearms expert who testified at trial regarding the ballistics evidence, stated that at least 15 of the 21 spent cartridges found in the club were fired by a 9 mm Taurus pistol and 7 of the shell casings were fired by a Norinco handgun. The evidence was inconclusive as to whether the bullets and bullet fragments recovered after the incident were fired from the Norinco or the Taurus handgun.
Dr. Eric Mitchell performed post mortem examinations on the three persons killed during the shooting. Jon Stratton died from a single bullet wound. The bullet which killed Stratton came from the Norinco. Matt Fabry sustained bullet wounds to the right arm, chest, and right side. A bullet fragment taken from Fabry's body was fired by the Norinco handgun. Dan Rutherford sustained multiple wounds to his left hand, face, right arm, right armpit, as well as three wounds to right side of chest and wounds to his right hand and left arm. Analysis of bullets taken from Rutherford's body indicated they had not been fired by the Norinco handgun and tests were inconclusive regarding the Taurus handgun.
Prior to trial, Jackson pled to unlawful possession of a firearm. Jackson presented no evidence at trial and did not allege someone else shot the victims. Jackson was convicted of the first-degree murders of Matt Fabry and Dan Rutherford and voluntary manslaughter of Jon Stratton. He was also convicted of aggravated battery of Alan Eastman, aggravated battery of Heidi Childers, unlawful possession of a firearm, misdemeanor criminal damage to property, and criminal trespass.
SELF-DEFENSE
Jackson argues the district court erred by failing to instruct the jury on self-defense as to the shooting and deaths of Matt Fabry, Dan Rutherford, and Jon Stratton. It is the duty of the trial court to instruct the jury on self-defense so long as there is evidence tending to establish self-defense. State v. Hill, 242 Kan. 68, 78, 744 P.2d 1228 (1987); State v. Smith, 161 Kan. 230, 237, 167 P.2d 594 (1946). In order to rely on self-defense as a defense, a person must have a belief that the force used was necessary to defend himself and, also, show the existence of facts that support such a belief. State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977).
Jackson's claim that he was entitled to a self-defense instruction ignores the statutory requirements for giving a self-defense instruction. K.S.A. 21-3211 provides: "A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force." However, K.S.A. 21-3214(3) states that the justification for using force in self-defense is not available to a person who:
"Otherwise initially provokes the use of force against himself or another, unless:
"(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
"(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force."
Here, it was uncontroverted that Jackson was the initial aggressor. The facts indicated that Jackson was told to leave the club more than once. After Fabry placed his hand on Jackson and asked Jackson to leave the club, Jackson struck and then shot the unarmed Fabry. After shooting Fabry, Jackson then shot Rutherford and Stratton as they came to assist Fabry. Fabry and Stratton were unarmed. Although there is evidence that Rutherford had a gun, there was no testimony that Rutherford fired the gun. Jackson, the initial aggressor, made no effort to withdraw, escape, or avoid the killings. Jackson's claim that he was entitled to a self-defense instruction is without merit.
In addition, Jackson argues that the district court erred in submitting instructions on the second-degree murders of Fabry and Rutherford as lesser included offenses of first-degree murder by failing to include the statement as to self-defense found in PIK Crim. 3d 56.03. He makes a similar argument as to the court's instruction on voluntary manslaughter. Because we have determined that there was no evidence justifying a self-defense instruction, that determination is dispositive of these issues.
II. LESSER INCLUDED OFFENSE
Defendant next contends the trial court erred in failing to instruct the jury on involuntary manslaughter with respect to the killing of Jon Stratton. The defendant in a criminal prosecution has a statutory right to have the court instruct the jury on all lesser included offenses established by substantial evidence. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. State v. Deavers, 252 Kan. 149, 154-55, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993). There is some weighing of evidence in this analysis, but the weighing of evidence is not a retrial of the case. State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992).
K.S.A. 21-3404 provides in part:
"Involuntary manslaughter is the unintentional killing of a human being committed:
"(a) Recklessly; [or]
. . .
"(c) during the commission of a lawful act in an unlawful manner."
Jackson relies on these two theories of involuntary manslaughter described in K.S.A. 21-3404, namely that the killing of Jon Stratton was (1) unintentional and reckless or (2) committed during the commission of a lawful act (self-defense) done in an unlawful manner. Because we have determined that there was no evidence justifying Jackson's theory of self-defense, the second theory has no merit.
As to the unintentional or reckless claim, Stratton was killed by a single gunshot. Was there evidence to support the assertion that the shooting of Jon Stratton was reckless and required the giving of an instruction on involuntary manslaughter? K.S.A. 21-3201(c) defines "reckless conduct" as "conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger."
Defendant's assertion that the killing of Stratton was unintentional and reckless is based solely upon testimony of Scott Wilson. Wilson testified that after Jackson shot Fabry, Stratton ran by Wilson and Jackson was "still firing and shooting and everything." Jackson theorizes that based upon Wilson's testimony, Stratton may have been killed by a random shot and, to support his argument, points out that he was convicted of reckless conduct (aggravated battery) in the shooting of Heidi Childers. Wilson, however, never testified that Jackson shot randomly. Wilson stated Jackson had not changed his position while shooting. Wilson could not tell where or at what Jackson was shooting. Wilson's testimony is not sufficiently substantial to have required the trial court to instruct on involuntary manslaughter in the killing of Stratton.
Furthermore, Childers, who was shot while lying on the floor to protect herself, was not a participant in the incident as Stratton was. After Jackson shot Fabry, Stratton came to Fabry's aid by grabbing Jackson around the arms and chest. One witness testified that after Jackson shot Fabry and Rutherford, Stratton started to run away from Jackson. Jackson then shot Stratton in the right side. Based upon these facts, there was insufficient evidence that the killing of Jon Stratton was unintentional or reckless and, therefore, an instruction on involuntary manslaughter was not required.
III. FIRST- AND SECOND-DEGREE MURDER INSTRUCTION
Jackson next argues that the court erred in instructing the jury on first- and second-degree murder. No party may assign as error the giving of an instruction unless he or she objects before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). The giving of an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict. State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995); State v. Crawford, 255 Kan. 47, Syl. ¶ 5, 872 P.2d 293 (1994). Jackson did not object to the giving of these instructions at trial; therefore, the clearly erroneous standard applies.
First, Jackson contends the trial court incorrectly stated the elements of first-degree murder by including malice as an element of the crime. The court's instructions on each of the first-degree murder counts stated that to establish the charge, each of the following claims must be proved:
"1. That the defendant intentionally killed [the victim]; and
"2. That such killing was done maliciously, deliberately and with premeditation; and
"3. That this act occurred on or about the 8th day of April 1994, in Shawnee County, Kansas."
The trial court failed to note that effective July 1, 1993, the Kansas Legislature amended the first-degree murder statute by removing the word "maliciously" from the definition of first-degree murder. L. 1992, ch. 298, § 3. The trial court mistakenly used PIK Crim. 2d 56.01 rather than PIK Crim. 3d 56.01, which reflected the legislative change. Jackson claims the instruction given was improper and misled the jury because it contained the element of malice which was not a statutory element of the crime of first-degree murder on April 8, 1994.
After reviewing all the instructions, we note that the jury was instructed that to establish a charge, "each of the following claims" must be proved. The court instructed the jury that for the defendant to be guilty of first-degree murder, second-degree murder or voluntary manslaughter, the State had to prove intentional conduct and defined the terms "intentional" and "deliberately and with premeditation" in Instruction No. 15. The court defined the term "maliciously" as "willfully doing a wrongful act without just cause or excuse." Under the circumstances, the court's inclusion of the word "maliciously" in the definition of first-degree murder did not change the elements of the offense. Even though the court's instruction did not conform to the statute applicable at the time of the murder, the error did not affect the rights of the defendant or misstate the law.
Jackson next complains that the trial court instructed the jury that the elements of second-degree murder were (1) an intentional killing (2) not done upon a sudden quarrel or in the heat of passion. This instruction follows PIK Crim. 3d 56.03. Jackson argues that the instruction given was erroneous because K.S.A. 1993 Supp. 21-3402, which defined second-degree murder, contained no element precluding the existence of a sudden quarrel or heat of passion.
Jackson asserts that by incorrectly instructing on second-degree murder, the jury was confused and misled to believe that the primary difference between first- and second-degree murder was not premeditation but whether the killing resulted from a sudden quarrel or heat of passion. He claims that this error could have resulted in the jury convicting him of first-degree murder even if premeditation was not proved.
To support his argument, Jackson points to markings made on the court's instructions during jury deliberations. On instruction 5, defining the first-degree murder of Fabry, there was a "T" placed next to the element for intentional killing but no mark next to the elements of malice, deliberation, or premeditation. On Instruction No. 6, defining second-degree murder for the killing of Fabry there was another "T" placed next to the element alleging an intentional killing, but an "F" beside the element alleging that the killing was not done upon a sudden quarrel or in the heat of passion. Jackson extrapolates from these markings that the jury believed that a sudden quarrel or heat of passion existed and, therefore, that a first- or second-degree murder conviction was improper.
Jackson's argument based upon these markings is highly speculative. First, the markings were made only on the instructions dealing with Count I (Fabry) and not on the instructions dealing with the murders of Rutherford and Stratton. Second, Jackson somehow claims that these markings represent conclusions made by the jury, when they may merely represent notations made during the course of deliberations.
The proper inquiry is not speculation as to what these marks may have meant, but whether the court's instructions given to the jury were clearly erroneous. The law is well settled that upon review of a challenged jury instruction, the 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. State v. Johnson, 255 Kan. 252, Syl. ¶ 4, 874 P.2d 623 (1994).
The jury was instructed on first-degree murder, second-degree murder, and voluntary manslaughter as to each of the three murders. The Notes to PIK Crim. 3d 56.03 state that the element that the killing was not done in the heat of passion or upon a sudden quarrel should be added where there is evidence which requires an instruction on voluntary manslaughter. Apart from the inclusion of the element of malice in the first-degree murder instruction, the court's instructions conformed with PIK. The instructions as given fairly stated the law on first- and second-degree murder and were not clearly erroneous.
IV. CHANGE OF VENUE
Jackson argues that the trial court erred in denying his motion for change of venue because pretrial publicity and the nature of the publicity so prejudiced the community it was impossible for him to receive a fair trial.
K.S.A. 22-2616(1) provides:
"In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county."
The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The State is not required to produce evidence refuting that of the defendant. The defendant must show that such prejudice exists in the community and that it is reasonably certain he or she will not obtain a fair trial. State v. Shannon, 258 Kan. 425, Syl. ¶ 5, 905 P.2d 649 (1995). See State v. Butler, 257 Kan. 1043, Syl. ¶ 2, 897 P.2d 1007 (1995); State v. Lumbrera, 252 Kan. 54, Syl. ¶ 2, 845 P.2d 609 (1992); State v. Grissom, 251 Kan. 851, 927-29, 840 P.2d 1142 (1992).
Indicative of whether the atmosphere is such that a defendant's right to a fair trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of a jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. State v. Ruebke, 240 Kan. 493, 499-500, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987) (citing Annot., 33 A.L.R.3d 17, § 2[a]).
Prior to trial, Jackson filed a motion for change of venue. Attached to the motion was a report prepared by professional consultants summarizing the results of a telephone survey of community awareness of the case. The survey population of registered voters included eligible jurors in Shawnee County who were not currently on jury service. Three hundred one respondents were drawn from the sample population. The sample included respondents from 18 to 96 years of age. Ninety-two percent of the respondents were white and approximately seven percent were minorities.
The survey which addressed the public's awareness of the incident and the impact of that awareness on juror bias indicated that 89.7% of the respondents recalled hearing or reading about the incident. When asked a second question containing some specifics of the case, 16.3% of those who did not recall the incident when asked the first question recalled the incident. Eighty-two percent of the respondents were able to recall and describe some specifics about the incident. The report concluded that specificity of recollection indicated that the respondents' memories regarding the case were vivid and resistant to change. More than 60% of the respondents had already decided that Jackson was probably or definitely guilty, as compared with only 2% who believed him probably or definitely not guilty.
University of Kansas Professor Lawrence Wrightsman, who assisted in designing the survey, had prepared an affidavit summarizing the results. In the affidavit, Professor Wrightsman stated:
"[P]retrial publicity that is negative to the defendant continues to have an impact on the jurors, throughout the trial and during the deliberation phase. Research has shown that subjects, like jurors, will use information they receive prior to the trial to form a coherent impression of a target person, such as a defendant, and this information then influences their subsequent judgments."
Finally, the affidavit concludes:
"[T]he attentiveness of the population to the local media, the high level of awareness of this case, and the strong level of anti-defendant reactions lead me to draw two conclusions. First, coverage in the local media was highly one-sided and sensationalized. Second, the quantity and quality of bias engendered by that coverage makes it extremely difficult to select an unbiased jury from this population."
The court took the matter under advisement and ultimately denied the motion for change of venue, citing the expense of moving the trial, the fact no news stories had appeared in the press for over 6 months preceding the trial, and that most of the pretrial publicity occurred within a few days of the incident. The court noted that the survey was taken from a sample of registered voters rather than from a sample of licensed drivers. The court pointed out that Shawnee County jurors are selected from a list of licensed drivers. The court then stated that it had reviewed the media coverage of this incident and found it not to be significantly sensationalized. The court noted that of the 63% of the sample who believed the defendant to be guilty, none were asked a follow-up question regarding whether they would be able to disregard anything learned from the news if they were selected as jurors. Finally, the court determined that the jury panel should be screened by means of questionnaires and voir dire questioning.
Pursuant to the order of the court, potential jurors completed questionnaires. The questionnaire asked whether the jurors had heard or seen news reports of the incident; what recollection of the incident they had; whether the jurors had discussed this case with anyone; whether the jurors knew Bobby Jackson, the victims, or their families; whether the jurors had any opinion about Jackson's guilt or innocence; whether the jurors had ever heard anyone express an opinion about this case; whether the jurors could disregard any prior knowledge they had about the case and decide the case based upon the evidence presented at trial; whether jury service would cause the jurors any great inconvenience; and whether the jurors held any personal beliefs which would prevent them from sitting in judgment and reaching a verdict.
The court and both counsel reviewed these questionnaires prior to voir dire questioning and excused a number of the potential jurors solely based upon their written answers. On the first panel, jurors indicating that they would not be able to put aside their prior knowledge about the case and decide it based solely upon the evidence at trial were excused for cause.
A significant number of jurors in the second panel was also excused based solely upon the questionnaires. Again, many of these jurors indicated that they had formed an opinion about Jackson's guilt or innocence and that they would not be able to put aside their prior knowledge of the case and decide the matter based on the evidence. Several other jurors were dismissed during voir dire questioning, one because of his inability to ignore the news stories.
Jackson argues that it is significant that, of the 30 jurors who were excused for cause, 13 expressed an incorrect belief that he had been kicked out of the club and later returned with a gun and started shooting. Jackson theorizes that this incorrect information came from media reports. Jackson asserts: "This type of incorrect information is important, because according to the findings of the professionals involved in the survey, such information has an impact on the jurors and tends to stay in the juror's [sic] minds, even through deliberation on a verdict."
We note that of the total number of jurors on the panel, 36% were excused for cause. Of the jurors excused for cause, approximately 80% were excused based solely upon their answers to the questionnaire. Fourteen jurors were ultimately chosen to serve on the jury or as alternates. On the questionnaires of the 14 people chosen as jurors or alternates, one responded to the questionnaire that she followed the story in the media with interest and one stated he could not put aside prior knowledge of the case and reach a decision based upon the evidence. Jackson claims two of the jurors ultimately chosen responded to the questionnaire that they could not put aside prior knowledge. Jackson fails to provide the court with references to the record for this assertion. The record reflects there was only one juror in this category. All the jurors were rigorously questioned during voir dire and stated they could listen to the evidence at trial and reach a verdict with impartiality. After the final panel was selected, the defendant had an opportunity to renew his motio