261 Kan. 776
(934 P2d 94)
No. 75,219
STATE OF KANSAS, Appellee, v. KIM R. ORDWAY, Appellant.
SYLLABUS BY THE COURT
1. 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.
2. Voluntary manslaughter requires, in addition to an intentional killing, that it be committed with an unreasonable but honest belief that the circumstances justify deadly force to defend another against an aggressor's imminent use of unlawful force. K.S.A. 21-3403(b).
3. The unreasonable but honest belief required under K.S.A. 21-3403(b) must be based on the reality of the circumstances surrounding the intentional killing and not on a psychotic delusion.
4. The court is not required to quote verbatim the language of K.S.A. 22-3428 in instructing the jury as to the effect of a verdict finding the defendant not guilty by reason of insanity, because it is the legislative intent that only the substance of the statute be given.
5. Erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection.
6. If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. The same rule applies when a trial court reserves its ruling on a motion in limine until trial. The failure to request a ruling on the motion at trial or otherwise object to the evidence at trial results in the issue not being preserved on appeal.
7. The admission or exclusion of evidence, subject to exclusionary rules, is within the trial court's discretion. Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court's view.
Appeal from Rooks district court; EDWARD E. BOUKER, judge. Opinion filed March 7, 1997. Affirmed.
Mary Curtis, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the briefs for appellant.
Leonard J. Dix, 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.: Kim Ordway asserted an insanity defense to charges of first-degree murder and theft in the deaths of his parents and the theft of their automobile. The jury found him guilty of two counts of second-degree murder and one count of felony theft. Ordway appeals his convictions.
Betty and Clarence Ordway lived approximately a mile west of Stockton, Kansas. On Saturday evening, November 20, 1993, in response to a call from the Ordways' nieces, a sheriff's officer went to the Ordway house. Investigation disclosed drag marks leading to the garage where the officer found Clarence Ordway's body wrapped in bedding and partially concealed behind some garbage cans. After other officers arrived, they forced their way into the locked house to check on Betty Ordway. The house appeared to be very clean and neat. There was a dog in one of the bedrooms, but Mrs. Ordway was not found. Some items seized from the house--a book of daily devotions and a pill container with a compartment for each day of the week--indicated that the household routine had been interrupted on Thursday, November 18.
Clarence Ordway died as a result of being shot in the back with a shotgun. The entry wound was about 6 inches below the base of the neck and 2 inches to the left of the spine. There was no exit wound. Clarence Ordway's left lung and heart were extensively damaged. There was no evidence of defensive injuries to his hands or feet. The date of death was estimated to be November 18, 1993.
A thorough search of the house revealed blood spatters, sometimes combined with what appeared to be tissue or fat, in a number of different locations. One area of the carpet in the television room was "roughed up" as if it had been cleaned, and one of the officers reported a smell in the house that he associated with "cleaning fluid and decomposition." A broken lamp was found in the basement. There did not appear to have been an effort made to clean a blood smear on the front porch steps and across the floor of the garage.
Law enforcement officials in Kenmore, New York, where Kim Ordway's ex-wife, Suzanne, lived, were advised that Ordway was wanted for questioning in connection with the homicide in Kansas. On November 22, a New York police officer saw a man sitting in a white Chevrolet with a Kansas license plate, which was parked in front of Ordway's wife's house. Ordway gave the officer his correct name and stated in response to a question about weapons that there was a shotgun on the front passenger seat. He complied fully with instructions on getting out of the car and being frisked and handcuffed, and stated that he understood his rights as a suspect. "He was very calm, very passive." When an officer told him they had been looking for his mother, Ordway said, "[M]y mom is in the trunk." A loaded shotgun with the safety off was found under a blanket on the front passenger seat, and a serrated kitchen knife was found under the driver's seat of the car. The back seat was filled with clothes; household items, including some utensils; and toys, some in boxes as if new. Clarence Ordway's wallet and two rings were found in a backpack in the back seat. Betty Ordway's body, wrapped in a tarp and a rug or blanket, was found in the trunk of the Chevrolet.
Betty Ordway also died as a result of shotgun wounds. The pathologist estimated that Betty Ordway died approximately 3 to 4 days before the autopsy was performed on November 23, 1993. She had two shotgun wounds in her right chest and one entry wound in her back, which caused damage to her lungs, heart, liver, ribs, vertebrae, and aorta. In addition to the shotgun wounds, the pathologist found bruises, lacerations, abrasions, and fractures caused by impact with a blunt object. There were bruising and swelling around the left eyebrow; five lacerations on her head; bruising, swelling, and abrasion of the left forearm; and broken bones in both forearms. The pathologist's opinion was that the injuries to her forearms were defensive wounds and that the other trauma injuries also were inflicted prior to her death.
One of the officers who arrested Ordway testified that Ordway's passivity was unusual. Ordway made various statements to the officer, including the following: "This is a crazy world, especially about mom and dad. . . . This whole thing with mom and dad is crazy." When the officer asked Ordway what was crazy, he responded, "Life." He told the officer that the car belonged to one or both of his parents and that he had been taking Xanax, which was his mother's. Xanax is usually prescribed as an anti-anxiety medication. In response to the officer's questions, Ordway said that he killed his mother and put her in the trunk, and that he left Kansas on Saturday and had been living with her in the car since then. When asked if he wanted to telephone his father in Kansas, Ordway declined, saying, "No, he won't answer." Ordway remained passive until he was being taken from his cell for arraignment, when he rushed at and struggled with four officers.
Ordway was admitted to Larned State Security Hospital on December 8, 1994, when he was 33 years old. The Larned forensic staff's report describes how relatives of the deceased asked a sheriff's officer to accompany them to the Ordways' house, where Clarence Ordway's body was found. The report continues:
"The relatives informed the officer that the Ordway's son, Kim, had been living with his parents for approximately three to four weeks. They noted that he had been 'extremely depressed and would spend a whole week in his room alone.' They also advised that Mr. Ordway had battered his ex-wife who still lived in New York. In addition, they reported that Mr. Ordway had hit his father in the past and 'had been arrested for it.'"
At the forensic staff conference on Ordway, the social worker reported that the defendant had given inconsistent information at various times and was not reliable. According to a report prepared in 1988, when Ordway was 27, his "occupational functioning had been 'disrupted by heavy alcohol abuse for a number of years.'" He had four DUI convictions. He reportedly had abused PCP, LSD, peyote, psilocybin mushrooms, cocaine, and amphetamines. The report contains the following psychiatric history:
"Mr. Ordway has had contact with mental health professionals throughout much of his adolescent and adult life. Because of his involvement in burglaries while in his adolescence, Mr. Ordway was placed in a facility called Berkshire Farms. Although the patient's adjustment had only been marginal for several years, his functioning deteriorated even further after the death of his brother in 1984. It was at this point in his life that the patient's involvement with drugs and alcohol increased. In apparent association with his drug and alcohol involvement, the patient physically assaulted his wife on several occasions. Apparently, it was during this time period that Mr. Ordway developed the delusional and paranoid beliefs that his wife was having affairs with other men and that she had been sexually molested by police officers. In 1985 he was reportedly receiving outpatient counseling at the Mid-Area Mental Health Center in Buffalo, New York, apparently in connection with his second arrest for driving while intoxicated. After attempting to enter Canada with a shotgun in January of 1988, he was referred for psychiatric evaluation. Subsequently, he was hospitalized at the Erie County Mental Health Center in Buffalo, New York, from January 9, 1988 until March 11, 1988. He was given the psychiatric diagnosis of Schizophrenia, Paranoid Type, but the diagnosis of (Psychotic) Depression was also considered at that time."
With regard to Ordway's mental condition during his hospitalization at Larned, the report states:
"[S]ince the time of admission, Mr. Ordway has not manifested evidence of delusions, perceptual disturbances, or other psychotic features. [The staff psychiatrist] emphasized that the patient does appear to have a lengthy and well-documented history of chronic depression. He also emphasized the patient's lengthy and well-documented history of alcohol dependence and involvement with other psychoactive substances. He also felt that the patient's lifelong adjustment has reflected antisocial and dependent qualities. Throughout the course of evaluation, the patient has not requested nor required prescribed medication for anxiety, depression, or psychosis."
Ordway was questioned about his condition at the time of the killings:
"When asked whether or not he felt his body was being controlled by outside forces over which he had no control during the time of the crimes, he denied that he was being controlled or influenced to that degree. However, he communicated that he had an intense feeling that his children were in severe danger and that it was because of his parents that they were in danger. When asked whether or not he was experiencing hallucinatory phenomena which controlled or directed him at the time of the crimes, he angrily stated that he had answered that question too many times already.
. . . .
". . . Although his description of himself during the time period in question suggests that he may have been experiencing auditory hallucinations which were distorting his perceptions of reality, it does not appear that he was unable to differentiate the difference between right and wrong in reference to the crimes he is charged with having committed. His description of himself prior to the time of the crimes suggests that he may have been feeling depressed; however, it does not appear that he was experiencing vegetative symptoms of depression."
The forensic staff agreed that the psychiatric diagnoses that best described Ordway were "Dysthymia, Secondary Type, Late Onset; Alcohol Dependence; Polysubstance Abuse; and Personality Disorder Not Otherwise Specified (Antisocial and Dependent)." The staff report concludes:
"[I]t was the opinion of staff that Mr. Ordway has experienced a chronic, non-psychotic depression for many years. Prior to the time of the crimes, he may have experienced symptoms of a psychosis (major depression including hallucinations and/or delusions) which impaired his ability to know the nature and quality of his acts. However, in view of the patient's enduring pattern of maladaptive behavior, including a history of aggressive/impulsive behaviors and substance abuse, it was felt that Mr. Ordway's personality dynamics are such that he could commit senseless and violent crimes without experiencing hallucinatory phenomena. Consequently, after extensive discussion, the staff concluded that they were unable to form a reasonably reliable opinion about Mr. Ordway's legal sanity on or around November 18, 1993."
The Larned report states that a psychiatric evaluation which had been prepared by Dr. William Logan was signed by the psychiatrist on November 29, 1994. Dr. Logan testified at trial that he had interviewed and evaluated the defendant. The family history Dr. Logan compiled for Ordway showed that Ordway's maternal grandmother was institutionalized for decades due to severe schizophrenia. According to Dr. Logan, the tendency to develop schizophrenia is genetic so that persons with close relatives who have manifested schizophrenia may be expected to have a higher than usual incidence of the condition. Ordway's history included hyperactivity as a child and a head injury at the age of 16. Of particular significance, according to Dr. Logan, was an automobile accident on November 22, 1984, in which Ordway was severely injured and his younger brother was killed. Ordway was driving, and he was intoxicated. Ordway became severely depressed and began using drugs and alcohol heavily. Dr. Logan noted that Ordway subsequently had suffered renewed depressions which coincided with the anniversary of his brother's death in November. Ordway killed his parents in November 1993.
Dr. Logan testified that in late 1987 to early 1988, Ordway had a psychotic episode which resulted in his being hospitalized, where he was diagnosed as schizophrenic. Joseph Liebergall, a forensic psychologist who directs the Erie County [New York] Forensic Mental Health Center, testified at trial and furnished more information about Ordway's diagnosis and treatment in 1988. Dr. Liebergall's agency referred Ordway to two of its consulting psychiatrists. Ordway's treatment team at the hospital was headed by one of the psychiatrists, Dr. Block. The treatment team's diagnosis was paranoid schizophrenia. Dr. Liebergall thought that Ordway "suffered from a depression with psychotic features." Dr. Liebergall testified that his diagnosis differed from the hospital team's diagnosis but that the two were not exclusive of one another. In fact, when the features of the two illnesses combine in an individual, the condition is called schizoaffective disorder. Among the characteristics Dr. Liebergall noted about Ordway in early 1988 were depression and a great deal of rage. Ordway harbored bizarre thoughts and fixed false beliefs, in the words of Dr. Liebergall. Ordway believed that the world was coming to an end, that his sons had special powers, and that his wife was sexually involved with the police officers of Tonawanda, the suburb of Buffalo where they lived. He was arrested at the Canadian border with a shotgun, and he said it would be better to shoot bears than people. Dr. Liebergall testified that it was clearly possible for a person who was depressed with psychotic features to lack an understanding of the nature and quality of his acts and that they are wrong. When Ordway was medicated with Thorazine, he improved significantly.
According to the testimony of Dr. Logan, in 1992 Ordway again became depressed. He and his wife separated, and he was arrested a fourth time for DUI. After spending some time in California, he arrived in Stockton, Kansas, to spend the summer with his parents. His sons came from New York to be with him for the first part of the summer. After his children left, Ordway began to sink into depression and develop "odd thinking about them." In October, he decided to go to New York to check on them, but on an impulse he went to Denver instead. There he began to hear voices. He was robbed; he stayed at the bus station for awhile, then he called his parents, who drove to Denver to get him to go back home with them. Back in Stockton, Ordway's depression worsened and his thoughts became bizarre and persecutory. He developed the idea that his parents either would kill his children or would have someone else kill them. People who came into contact with Ordway at this time described his behavior as weird, odd, brooding, and preoccupied. Dr. Logan thought it was significant that Ordway's mother had told her sister she was afraid of him. Confirmed reports from a number of sources showed that Ordway isolated himself in his room for at least 7 to 9 days before killing his parents. He said that he was confused and was trying to understand what the voices were telling him. During the late afternoon of November 18, Ordway was overcome with a feeling of panic, and he heard his sons' voices crying that they needed to be saved. He had the idea that he would go to hell if he did not save his children, and voices were telling him he needed to kill his parents.
Ordway told Dr. Logan that shortly after he killed his parents, the voices and bizarre thoughts subsided. Confused, Ordway decided to go to New York to check on his sons. Dr. Logan testified that it was not uncommon for delusional and rational thoughts to coexist in people with severe mental illness. Dr. Logan believed that in the internal struggle between Ordway's delusional and rational thoughts, the rational thoughts began to prevail shortly after he killed his parents. Thus, Dr. Logan concluded that, without any realization that it was wrong, Ordway killed his parents in response to the voices, but that he soon began to question whether what he had done was right.
Dr. Logan's opinion was that Ordway was legally insane when he killed his parents. Asked for his opinion to a reasonable medical certainty about Ordway's condition at the time of the killings, Dr. Logan stated:
"I believe as I said before that he was suffering from a major depressive reaction with psychotic features, principally the delusional idea that his parents were hurting his children and auditory hallucinations of his children yelling for him to save them, and also the idea that if [he] did not act, he would be condemned to hell. I believe that these ideas were what guided his behavior at the time to the extent that he did not know what he was doing in any kind of rational way."
We first consider Ordway's argument that the jury should have been instructed on voluntary manslaughter as a lesser included offense. Ordway was charged with two counts of first-degree murder. The jury was instructed on the elements of first- and second-degree murder with respect to each count. Defendant's counsel requested that the jury be instructed on voluntary manslaughter, and the district court refused.
The trial court has an affirmative duty to instruct on all lesser included offenses established by the evidence, even if it is weak and inconclusive. State v. Gadelkarim, 256 Kan. 671, 694, 887 P.2d 88 (1994). Ordway contends that a voluntary manslaughter instruction was required in this case because the evidence showed that he killed his parents without malice and for the purpose of preventing them from harming his children.
Voluntary manslaughter is defined in K.S.A. 21-3403: "Voluntary manslaughter is the intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion; or (b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." 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." There is no contention that either K.S.A. 21-3212 or K.S.A. 21-3213 is applicable in the present circumstances.
Ordway principally relies on subsection (a) of the voluntary manslaughter statute. It is his contention that his intentional killing of his parents was committed in the heat of passion within the meaning of the statute.
Ordway concedes that up until now cases interpreting the statute apply an objective test in determining whether the provocation was sufficient to kindle heat of passion, within the meaning of the statute. In State v. Cheeks, 258 Kan. 581, Syl. 7, 908 P.2d 175 (1995), the court stated:
"The key elements of voluntary manslaughter are whether the killing was intentional and whether there was legally sufficient provocation. K.S.A. 21-3403. Whether a provocation is legally sufficient is an objective, rather than a subjective, determination. To be legally sufficient to intentionally kill an individual, a provocation must consist of more than mere words or gestures, and if assault or battery is involved the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death. A provocation is legally sufficient if it is calculated to deprive a reasonable person of self-control and to cause the person to act out of passion rather than reason."
Ordway wants the court to consider the possibility that a subjective standard should be applied in some circumstances. He suggests that the key lies in defining heat of passion to include a state of extreme distress caused by delusions. We find no merit in the suggestion.
Ordway argues that the legislature's removing the element of malice from the version of the voluntary manslaughter statute that became effective in 1992 "permits the court to recognize a different form of manslaughter, in order to allow conviction of mentally ill criminal defendants of a homicide committed without premeditation or malice."
Contrary to Ordway's premise, the phrase "without malice" was included in the statute before the 1992 revision. In 1992, the phrase "without malice" was removed when the element of malice was removed from the statutory definitions of first- and second-degree murder. L. 1992, ch. 298, §§ 3, 4. Hence, the pre-1992 presence of "without malice" in the voluntary manslaughter statute served to contrast it with the statutory definitions of first- and second-degree murder. With elimination of malice in the murder statutes, the phrase "without malice" no longer served a purpose in the voluntary manslaughter statute and was removed. The language change did not affect the substance of 21-3403. Malice was not an element of voluntary manslaughter either before or after the 1992 amendment. Here are the changes which were made in the statute:
"Sec. 5. K.S.A. 21-3403 is hereby amended to read as follows: 21-3403. Voluntary manslaughter is the unlawful intentional killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion committed:
(a) Upon a sudden quarrel or in the heat of passion; or
(b) upon an unreasonable but honest belief that deadly force was justified in self-defense.
"Voluntary manslaughter is a class C felony." L. 1992, ch. 298, 5.
In 1993, subsection (b) was amended as follows: "Voluntary manslaughter is the intentional killing of a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified deadly force was justified in self defense under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." L. 1993, ch. 291, 20. The elimination of the element of malice from the statute, according to Ordway, broadened the category of voluntary manslaughter so that it could "include intentional killing by a mentally ill defendant . . . whether or not their beliefs are founded in reality." We do not agree.
Ordway further argues that a voluntary manslaughter instruction should have been given because the evidence showed that he killed his parents upon an unreasonable but honest belief that circumstances existed that justified the use of deadly force against them in the defense of his children. 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." In this case, there was evidence to the effect that it appeared to Ordway that his use of force against his parents was necessary to defend his children from unlawful force being used against them by his parents. There is no evidence or even contention that his belief was reasonable.
K.S.A. 21-3403(b) defines voluntary manslaughter as an intentional killing upon an unreasonable but honest belief that circumstances existed that justified deadly force under 21-3211. K.S.A. 21-3211 provides that the circumstances justify the use of force when a defendant reasonably believes that its use is necessary to defend others. When the two statutes are read together, the unreasonable belief element of 21-3403 must be reconciled with the reasonable belief element of 21-3211. It seems that this may be accomplished by a plain reading. That is, if the reasonable belief that force was necessary, which is the substance of 21-3211, is substituted for the defense-of-self-or-others as designated in 21-3403(b), the latter provides that voluntary manslaughter is an intentional killing upon a defendant's unreasonable but honest belief that he or she reasonably believed the use of force was necessary to defend others. In other words, the 21-3211 reasonableness of the belief that deadly force was justified is irrelevant because the 21-3403(b) belief is unreasonable. Although Ordway could not qualify for acquittal under the perfect defense of defense of self or others under 21-3211, the reasonableness element of 21-3211 should not prevent a trial court's giving an instruction on the lesser included offense of voluntary manslaughter.
With regard to a defense-of-others instruction, this court has stated that the evidence must support affirmative findings by a rational factfinder to the subjective question whether defendant honestly believed his action was necessary to defend others as well as to the objective question whether his belief was reasonable. State v. Rutter, 252 Kan. 739, 746, 850 P.2d 899 (1993). In a case such as the present one, however, where the defendant is seeking an instruction on the lesser included offense of voluntary manslaughter rather than asserting the affirmative defense of defense of others, the objective component of defense of others should be immaterial. Both elements in the offense of voluntary manslaughter as defined in 21-3403(b) are subjective. The defendant's belief must be sincerely held, and it must be unreasonable. State v. Jones, 257 Kan. 856, 873, 896 P.2d 1077 (1995). For this reason, the "objective elements" of 21-3211--an aggressor, imminence, and unlawful force--would not come in for consideration.
Legislative history of K.S.A. 21-3403 shows that the definition of voluntary manslaughter was expanded by the addition of subsection (b) in 1992. L. 1992, ch. 298, 5. Until then, the statute defined voluntary manslaughter as an intentional killing upon a sudden quarrel or in the heat of passion. Notes on proposed criminal code revisions were attached to the minutes of the Senate Judiciary Committee from March 22, 1992, which contained the following comments about subsection (b) of 21-3403:
"(b) 'Imperfect right to self-defense' manslaughter
"This new subsection covers intentional killings that result from an unreasonable but honest belief that deadly force was justified in self-defense. In essence, the defendant meets the subjective, but not the objective, test for self-defense. This so-called 'imperfect right to self-defense' is recognized in various forms. Kansas apparently recognizes it for unintentional killings under involuntary manslaughter. State v. Gregory, 218 Kan. 180 (1975); State v. Warren, 5 Kan. App. 2d 754 (1981) State v. Meyers, 245 Kan. 471 (1989). The Model Penal Code also follows this approach. Some states, e.g. Illinois, recognize this partial defense for intentional killings. See, LaFave, Criminal Law, pp. 665-666 (1986).
"Applying this partial defense to intentional killings is simply a recognition of the practical realities of plea bargaining and jury verdicts. Often it is unjust to prosecute and convict such killers of murder and it is equally unjust to acquit them. This new subsection provides a middle category that is theoretically sound and legitimizes the realities of plea bargaining and jury verdicts."
There is no express indication in the note to 21-3403(b) that there was any contemplation that the subsection's unreasonable belief might be based on psychotic delusions (or some other form of mental illness). Nor does examination of the Kansas case law cited in the note indicate that application of subsection (b) to cases where a homicide defendant denied criminal responsibility due to mental illness was envisioned.
In Illinois, the offense known as second-degree murder includes the elements of Kansas' voluntary manslaughter offense, K.S.A. 21-3403(b). Ill. Comp. Stat. ch. 720 5/9-2 (1994) provides, in part:
"(a) A person commits the offense of second degree murder when he commits the offense of first degree murder as defined in paragraphs (1) or (2) of subsection (a) of Section 9-1 of this Code and either of the following mitigating factors are present:
(1) At the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed; or
(2) At the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.
"(b) Serious pr