261 Kan. 865
(934 P2d 38)
No. 75,808
STATE OF KANSAS, Appellee, v. JERRY LEE ROBINSON, Appellant.
SYLLABUS BY THE COURT
1. Interpretation of a statute is a question of law. An appellate court's review of a question of law is unlimited.
2. A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.
3. The void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice.
4. In determining constitutionality of a criminal statute, in addition to the inquiry whether the proscribed conduct is adequately defined, the court recognizes that a second inquiry is appropriate. That inquiry is whether the statute adequately guards against arbitrary and discriminatory enforcement.
5. Depraved heart second-degree murder requires a conscious disregard of the risk, sufficient under the circumstances, to manifest extreme indifference to the value of human life. Recklessness that can be assimilated to purpose or knowledge is treated as depraved heart second-degree murder, and less extreme recklessness is punished as manslaughter. Conviction of depraved heart second-degree murder requires proof that the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life. This language describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter.
6. Extreme indifference to the value of one specific human life is enough to satisfy the elements of depraved heart murder. Although indifference to the value of human life in general is often present in crimes prosecuted as depraved heart murder, general indifference is not a requirement of depraved heart murder.
7. An instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense.
8. The admissibility of statements obtained after the person in custody has decided to remain silent depends, under Miranda, on whether the person's right to cut off questioning was scrupulously honored.
9. If a defendant invokes the right to remain silent, the interrogation must stop immediately and the right must be scrupulously honored. This does not mean an interrogation resumed at a later time is invalidated if the defendant knowingly and voluntarily waived the right to be silent at this later time and the defendant's right to be silent was scrupulously honored while it was invoked.
10. A confession is not inadmissible merely because the person making it is a juvenile; however, a juvenile's confession requires courts to use the greatest care in assessing the validity of the confession. Consideration is given to the totality of the circumstances, and great reliance is placed upon the finder of fact.
11. Although the prosecution is given wide latitude in language and in manner of closing argument, the prosecutor must abide by the evidence and refrain from speech designed to inflame or prejudice the jury.
12. Improper remarks made by a prosecuting attorney in summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the remarks, unless the remarks were so prejudicial as to be incurable.
Appeal from Franklin district court; THOMAS H. SACHSE, judge. Opinion filed March 7, 1997. Affirmed.
B. Kay Huff, special appellant defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Bryan M. Hastert, deputy county attorney, argued the cause, and Brett W. Berry, assistant county attorney, and Alex R. Stavrou, legal intern, were on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Jerry Lee Robinson, from a jury conviction for depraved heart second-degree murder in violation of K.S.A. 21-3402(b). Robinson was 14 years of age when he killed Clyde Richard Crowley by striking him in the head with a golf club.
Robinson contends the depraved heart second-degree murder statute is unconstitutionally vague; that the evidence is insufficient to prove depraved heart murder; that he was entitled to a voluntary manslaughter instruction; that his confession was inadmissible, and that the prosecution improperly argued in closing argument that Robinson was a member of a gang.
The victim, Richard Crowley, was clearly the initial aggressor in this case. On the day of his death, Crowley went to the Ottawa Police Department because he felt the police were not responding to two separate incidents in which his sons had been threatened by Jeremy Hendrickson and his friends. Crowley was upset and told the police that if they did not take care of the problem, then he would.
From the police department, Crowley drove to Forest Park, where he inquired as to whether Jeremy Hendrickson was at the park. Upon receiving a negative response, Crowley went home. Crowley later returned to Forest Park where he spotted Jeremy Hendrickson, Eddie Carter, Tony Surber, and Robinson. Crowley did not know the four boys, but Hendrickson identified himself. Crowley approached Hendrickson, yelling at him to leave his sons alone. Crowley spit in Hendrickson's face. Then Surber made a comment and Crowley yelled at Surber, "I am [Richard Crowley] and you don't know who you're fucking with." Crowley hit Surber twice in the face. At this point, Surber took a knife from Robinson, which Robinson had been using to clean his nails. Surber held up the knife and Crowley stated, "Oh, you want to play games." Crowley returned to his truck and obtained a metal baseball bat. Crowley began to chase the boys with the bat, swinging at them when he got close. While running away from Crowley, the boys spotted golf clubs hanging out of a window of a car in the park and each boy grabbed a club. The boys began chasing Crowley and eventually surrounded him. The boys taunted Crowley by calling him names and swinging their clubs at him, although they did not actually hit him. At this point, Crowley had not hit anyone with the bat and was not swinging it. He was using the bat defensively, trying to avoid being struck with the golf clubs. The boys testified that they engaged in this "fencing" in order to hold Crowley at bay until the police arrived.
Patricia Taylor and her husband, William Taylor, were driving through the park at the time of the altercation. Patricia saw Crowley with a baseball bat trying to hit a group of boys. She saw the boys run and grab golf clubs from a parked car. The boys then "jousted" or "fenced" with Crowley. Crowley asked the Taylors to "give me a hand," but the Taylors said they would get the police. The Taylors left the park to call the police. William Taylor testified the boys did not look like they were intending to harm Crowley when Taylor saw them.
Later, while the boys and Crowley were still "fencing," Victoria Bond drove her car through Forest Park. Scott Renyer, a passenger in the car, saw the altercation and heard someone from the boys' group yell, "I'll teach you to hit my brother again, mother fucker!" Crowley then broke free from the boys, running towards Bond's moving vehicle. According to Renyer, Crowley "hollered" for help. Bond and Renyer had five children in the back seat of the car. They were worried about the children so they did not stop to help Crowley. One eyewitness, Nick Griffin, then 16 years old, testified that when Crowley ran towards Bond's car, the boys chased him, grabbed him, and prevented him from getting into Bond's moving vehicle.
After Crowley hollered at Renyer, Renyer testified that he saw one of the boys, Surber, hit Crowley in the back with a golf club. Crowley then chased Surber, with the other three boys chasing Crowley. Surber tripped, fell to the ground, and Crowley hit Surber twice with the bat. Griffin, a witness for the State, testified that Hendrickson ran up to Crowley and struck Crowley twice in the back or in the ribs with a golf club. After Hendrickson hit him, Crowley turned away from Surber to see who was hitting him. With this opportunity, Surber rolled away from Crowley and began to get off the ground. At this time, Robinson fatally struck Crowley in the head with his golf club. Robinson testified that he was not trying to hit Crowley in the head, but was trying to hit Crowley in the arms in order to make him stop hitting Surber with the bat. Robinson testified that he could not remember if his eyes were open or shut when he hit Crowley. After Robinson struck Crowley in the head, he let go of the club because it was stuck in Crowley's head. Crowley fell to the ground, and Robinson ran home.
The police arrived and removed the baseball bat from Crowley's hands before transporting him to the hospital, with the golf club still impaled in his head. Crowley died shortly thereafter in the emergency room of Ransom Hospital due to the blow to his head. The autopsy revealed that the club directly struck Crowley's head and was not deflected by his arm. The autopsy also showed numerous defensive wounds on Crowley's hands, but did not show any bruising on his back or ribs.
A few hours after the altercation, Robinson, along with his mother and his mother's boyfriend, returned to the park where the police were investigating the scene. Robinson asked to talk to a police officer, and he told the officer his version of what occurred.
Upon completing its investigation of the altercation, the State charged Robinson with depraved heart second-degree murder in violation of K.S.A. 21-3402(b). The jury was instructed on depraved heart second-degree murder and on the lesser included offense of involuntary manslaughter. The jury convicted Robinson of depraved heart second-degree murder. The presumptive guidelines sentence for this crime is 68 to 77 months in prison. Robinson filed a motion for a downward departure in sentencing. The trial court granted this motion, based on Robinson's young age and the fact Crowley was the initial aggressor. The trial court sentenced Robinson to a term of 55 months. Robinson timely filed a notice of appeal from his conviction to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
VAGUENESS ISSUE
The trial court instructed the jury on the crime with which Robinson was charged, depraved heart second-degree murder, a severity level 2 crime. K.S.A. 21-3402(b). The instruction provided in pertinent part:
"To establish this charge, each of the following claims must be proved:
"1. That the defendant killed Clyde R. Crowley unintentionally but recklessly under circumstances showing extreme indifference to the value of human life . . . ."
The trial court also instructed the jury on the lesser included offense of involuntary manslaughter, a severity level 5 crime. K.S.A. 21-3404(a) and (c). The instruction provided in pertinent part:
"1. That the defendant unintentionally killed Clyde R. Crowley;
"2. That it was done recklessly or during the commission of a lawful act in an unlawful manner . . . ."
Since both of these instructions use the term "recklessly," the court instructed the jury on the definition of "reckless conduct." This definition provided:
"Reckless conduct means 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."
Robinson argues that depraved heart second-degree murder, the unintentional but reckless killing under circumstances manifesting extreme indifference to the value of human life (K.S.A. 21-3402[b]), is indistinguishable from reckless involuntary manslaughter, which is the unintentional killing of a human being committed recklessly (K.S.A. 21-3404[a]). Robinson contends that the definition of recklessness adds to the fact that the two crimes are indistinguishable. According to Robinson, the definition of recklessness--recognizing that one's conduct creates a danger to another and disregarding this danger--constitutes a manifestation of "extreme indifference to the value of human life." Further, according to Robinson, the depraved heart murder statute and the reckless involuntary manslaughter statute, with the accompanying jury instructions, do not tell a jury how to distinguish between the two crimes. As such, Robinson contends that both depraved heart second-degree murder and reckless involuntary manslaughter punish the same conduct--the killing of a human being, while recognizing the imminent danger created, but consciously disregarding the danger without justification, which is a manifestation of an extreme indifference to the value of human life.
Thus, Robinson claims that depraved heart second-degree murder, the more serious crime, is void for vagueness, thereby violating due process, because it does not adequately distinguish itself from reckless involuntary manslaughter. Due to this constitutional defect, Robinson argues that prosecutors and jurors may decide to punish one defendant for depraved heart second-degree murder, a severity level 2 crime, but punish a different defendant for reckless involuntary manslaughter, a severity level 5 crime, for the same conduct, based on discriminatory, arbitrary and subjective reasons. This results in an unconstitutional and impermissible violation of due process and equal protection.
According to Robinson, the only way for a jury to distinguish between depraved heart second-degree murder and reckless involuntary manslaughter is for a judge to instruct the jury on the definition of the phrase used in the depraved heart murder statute--"manifesting extreme indifference to the value of human life." If this were done, Robinson argues, the jury could then determine how "extreme indifference" differs from the term "recklessness." Once the jury understood the difference between these two terms, it would have a uniform standard from which to determine if a defendant was guilty of mere reckless conduct under the reckless involuntary manslaughter statute or was guilty of reckless conduct with an additional showing of "extreme indifference to the value of human life" under the depraved heart second-degree murder statute.
According to the court and the prosecution, a definition of this phrase was not necessary because it is easily understood by a layperson. However, Robinson contends that many people would consider any degree of homicide to manifest an "extreme indifference to the value of human life." If so, then the jurors may have felt that they could easily understand the phrase, but they would not have been able to distinguish between depraved heart second-degree murder and reckless involuntary manslaughter because both crimes involve reckless killings and both crimes, in the jurors' minds, satisfy the "extreme indifference to the value of human life" element without requiring any extra or extreme recklessness.
In support of his argument, Robinson cites People v. Marcy, 628 P.2d 69 (Colo. 1981). In this case, the defendant was convicted in Colorado of first-degree murder by extreme indifference. The defendant appealed, alleging that the statute he was convicted under was unconstitutional because, inter alia, the crime was not rationally distinguishable from murder in the second degree.
Robinson cites Marcy as support for his contention that indistinguishable statutes violate equal protection. Marcy does support this argument. However, the holding of Marcy is in exact opposition to Robinson's position that depraved heart second-degree murder and reckless involuntary manslaughter are indistinguishable.
In further support of his argument that depraved heart second-degree murder is indistinguishable from reckless involuntary manslaughter and therefore void for vagueness, Robinson asserts that most of the jurisdictions which have a depraved heart murder statute provide the jury with a definition of the term "extreme indifference." This definition clarifies that "extreme indifference to the value of human life" means disregard of a grave risk of death or a substantial certainty of death. According to Robinson, if this type of definition was provided in Kansas, then a jury would be able to distinguish between depraved heart second-degree murder (requiring extreme recklessness) and reckless involuntary manslaughter (requiring regular recklessness). Then Robinson argues the second-degree murder statute would not be void for vagueness, creating an unconstitutional violation of due process and equal protection. Robinson asks this court to hold that the second-degree murder statute, as used in this case, without a definition of the term "extreme indifference to the value of human life," is unconstitutional, thereby requiring a reversal of his conviction.
Prior to 1992, Kansas did not recognize the crime of depraved heart murder. In 1992, the Kansas Criminal Code was substantially revised. The Kansas Judicial Council Criminal Law Committee wrote the initial versions of these amendments, including a new depraved heart homicide statute. See Tonkovich, The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73 (1993). When considering the passage of the amendments, the Senate Judiciary Committee looked to the Judicial Council's comments regarding the proposed depraved heart crime.
"Depraved-heart murder is fundamentally similar to felony murder and involuntary manslaughter. In felony murder cases, the commission of the underlying felony provides the extreme recklessness required for criminal liability. In involuntary manslaughter cases, the commission of the underlying unlawful act or the reckless conduct provides the necessary recklessness. Depraved-heart murder, in terms of degree, falls between felony murder (first degree murder) and involuntary manslaughter. . . . Adding depraved-heart murder provides a middle category to cover extremely reckless conduct . . . ." 41 Kan. L. Rev., Crim. Proc. Ed. at 78.
The depraved heart second-degree murder statute, the reckless involuntary manslaughter statute, and the definition of recklessness in Kansas are all patterned after the Model Penal Code. See Model Penal Code § 210.2(1)(b) (1980), § 210.3(1)(a) (1980), and § 2.02 (c) (1962), respectively. Besides Kansas, there are several states which have a depraved heart homicide statute whose language is either identical, or substantially similar, to the language contained in the Model Penal Code. Two of these states, Arizona and New Hampshire, have specifically addressed the void-for-vagueness issue.
In the Arizona case, State v. Walton, 133 Ariz. 282, 650 P.2d 1264 (Ct. App. 1982), the defendant was convicted of reckless second-degree murder and he appealed. One of the issues the defendant raised in his appeal was that the statute he was convicted under, reckless second-degree murder, violated equal protection because it was indistinguishable from the reckless manslaughter statute and violated due process because it was too vague.
In comparing the mental state required for each crime, the Arizona court concluded that "two distinct measures of care differentiate[d] the condition of recklessness expressed in the two statues, and an extreme indifference creating a grave risk of death to another [as required by the reckless second-degree murder statute] is a more culpable mental state than the requirement of a conscious disregard of a substantial and unjustifiable risk [as required by the reckless manslaughter statute]." 133 Ariz. at 291. Thus, the court found that the two statutes were distinguishable and that the reckless second-degree murder statute was not void for vagueness.
In the New Hampshire case, State v. Dow, 126 N.H. 205, 489 A.2d 650 (1985), the defendant was convicted of second-degree murder. He appealed, claiming that the second-degree murder statute was vague, due to the "extreme indifference" phrase in the statute, and claiming that the statute was indistinguishable from the New Hampshire manslaughter statute. Citing to several other states which have found similar statutes not to be unconstitutionally vague, the court upheld the murder statute as constitutional. 126 N.H. at 208. In so holding, the court stated:
"Both the second degree murder statute, RSA 630:1-b, I(b), and the manslaughter statute, RSA 630:2, I(b) (Supp. 1983), require proof that a defendant caused the death of another 'recklessly' as that term is defined in RSA 626:2, II(c). The second degree murder statute, however, requires proof of the additional element that the death be caused 'under circumstances manifesting an extreme indifference to the value of human life.' RSA 630:1-b I(b). As we previously have stated:
'"Circumstances manifesting an extreme indifference to the value of human life" means something more than merely being aware of and consciously disregarding a substantial and unjustifiable risk [the definition of recklessness]. "If the advertence [to the risks involved] and the disregard are so blatant as to manifest extreme indifference to life, then the offense is murder. . . ." Thus where the accused's behavior "constitutes a gross deviation" from law-abiding conduct, RSA 626:2, II(c), but does not manifest "an extreme indifference to the value of human life," RSA 630:1-b I(b), the jury may properly find only manslaughter. Where, however, the evidence supports the additional element of "extreme indifference," the jury may find murder in the second degree. The existence and extent of disregard manifested is a factual determination to be made by the jury.'" 126 N.H. at 207.
"Interpretation of a statute is a question of law. An appellate court's review of a question of law is unlimited." Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). "When determining a question of law, this court is not bound by the decision of the district court." Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). "[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down." Boatright v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). Accord State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994). "This court not only has the authority, but also the duty, to construe a statute in such a manner that is constitutional if the same can be done within the apparent intent of the legislature in passing the statute." State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
"'It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained.'" City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). See State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994).
"'It is presumed the legislature understood the meaning of the words it used and intended to use them; that the legislature used the words in their ordinary and common meaning; and that the legislature intended a different meaning when it used different language in the same connection in different parts of a statute.' [Citation omitted.]" Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993).
"'[T]he void-for-vagueness analysis is based upon a due process requirement that a criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983).' City of Wichita [v. Wallace], 246 Kan. [253, 258, 788 P.2d 270 (1990)]. . . .
"In addition to the inquiry whether the proscribed conduct is adequately defined, the court recognizes that a second inquiry is appropriate. That inquiry is '"whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Dunn, 233 Kan. at 418 (citing Cardarella v. City of Overland Park, 228 Kan. 698, 702, 620 P.2d 1122 [1980]).' City of Wichita, 246 Kan. at 259. When making either inquiry, the court should bear in mind that '[t]he standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.' 246 Kan. 253, Syl. ¶ 3." State v. Adams, 254 Kan. 436, 438-39, 866 P.2d 1017 (1994).
Based on the plain language of the depraved heart second-degree murder statute and the legislative history behind it, the legislature intended for the depraved heart murder statute to carry a higher degree of culpability than the reckless involuntary manslaughter statute, thereby making the two statutes distinguishable. This intent is further supported by the commentary to the Model Penal Code, which provides:
"Ordinary recklessness . . . is made sufficient for a conviction of manslaughter under Section 210.3(1)(a). In a prosecution for murder, however, the Code calls for the further judgment whether the actor's conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life. . . . Whether recklessness is so extreme that it demonstrates similar indifference is not a question, it is submitted, that can be further clarified. It must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and that less extreme recklessness should be punished as manslaughter." A.L.I., Model Penal Code & Commentaries, Part II § 210.2, Comment 4, pp. 21-22 (1980).
"Conviction of the more serious crime requires proof that the defendant acted 'recklessly under circumstances manifesting extreme indifference to the value of human life.' This language describes a kind of culpability that differs in degree but not in kind from the ordinary recklessness required for manslaughter." A.L.I., Model Penal Code & Commentaries, Part II § 210.3, Comment 4, p. 53.
Does the language of Kansas statutes convey the legislature's intent that statutes are meant to punish different behavior? Does the "extreme indifference" phrase indicate that depraved heart murder requires a higher degree of recklessness? Is the "extreme indifference" phrase understandable standing alone or is a definitional instruction necessary?
Both depraved heart murder and reckless involuntary manslaughter require recklessness--that the killing be done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger. Depraved heart murder requires the additional element that the reckless killing occur under circumstances manifesting extreme indifference to the value of human life.
The question is whether the jury, from looking at the instructions, would know that the two statutes, depraved heart murder and reckless involuntary manslaughter, do not punish the same thing. The phrase in the depraved heart murder statute requiring the "extreme indifference to the value of human life" indicates, as the legislature intended, that this statute requires a higher degree of recklessness than that required by the reckless involuntary manslaughter statute. If a jury is given a lesser included instruction on reckless involuntary manslaughter, then the jury must assume that some killings fall under this crime. Thus, the jury is put on notice that it must determine whether a reckless killing involves an extreme degree of recklessness and is depraved heart murder or involves a lower degree of recklessness and is involuntary manslaughter. The jury does this by determining whether a particular reckless killing indicates an extreme indifference to the value of human life which is beyond that indifference present in all reckless killings. See State v. Cook, 259 Kan. 370, 403, 913 P.2d 97 (1996) (even though all murders are heinous, atrocious, and cruel, the legislature reserved the hard 40 sentence under K.S.A. 1992 Supp. 21-4628 for murders that are "particularly heinous, atrocious, or cruel" to a "special or unusual degree, to an extent greater than in other cases"). Thus, the two statutes (depraved heart murder and involuntary manslaughter) are distinguishable and do not unconstitutionally violate due process or equal protection.
Finally, when the jury is determining whether a reckless killing indicates an extreme indifference to the value of human life beyond that indifference present in all reckless killings, the question is whether the jury can determine what "extreme indifference to the value of human life" is or whether this phrase is so vague that a jury needs an instruction to explain it. The comments to the Model Penal Code depraved heart statute, which the Kansas depraved heart statute is patterned after, state:
"Given the Model Code definition of recklessness, the point involved is put adequately and succinctly by asking whether the recklessness rises to the level of 'extreme indifference to the value of human life.' As has been observed, it seems undesirable to suggest a more specific formulation. [Other] variations . . . retain in some instances greater fidelity to the common-law phrasing but they do so at great cost in clarity. Equally obscure are the several attempts to depart from the common law . . . . The result of these formulations is that the method of defining reckless murder is impaired in its primary purpose of communicating to jurors in ordinary language the task expected of them. The virtue of the Model Penal Code language is that it is a simpler and more direct method by which this function can be performed." A.L.I., Model Penal Code & Commentaries, Part II § 210.2, Comment 4, pp. 25-26 (1980).
A jury is expected to decipher many difficult phrases without receiving specific definitions, such as the term "r