263 Kan. 602
(952 P2d 1332)
No. 75,258
STATE OF KANSAS, Appellee, v. SOLLY M. THOMPKINS, Appellant.
SYLLABUS BY THE COURT
1. The provisions of the Kansas Code of Criminal Procedure govern proceedings in all criminal cases in the courts of the state of Kansas. K.S.A. 22-2102. The Code is intended to provide for the just determination of every criminal proceeding. Its provisions are construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. K.S.A. 22-2103.
2. As related to criminal law and procedure, "substantive law" is that which declares what acts are crimes and prescribes punishment therefor, whereas "procedural law" is that which provides or regulates steps by which one who violates a criminal statute is punished.
3. Rules of practice and procedure contained in the Kansas Code of Criminal Procedure are devised to promote the ends of justice, not to defeat them, and orderly rules of procedure should not require sacrifice of the rules of fundamental justice.
4. One of the substantial rights of an individual charged with a crime is the right to due process. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case.
5. Rebuttal evidence is that which is presented to deny some fact an adverse party has attempted to prove or has placed in dispute. The use and extent of rebuttal evidence rests in the sound discretion of the trial court. The ruling of the trial court will not be ground for reversal unless it appears discretion has been abused to an appellant's prejudice.
Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge. Opinion filed January 23, 1998. Affirmed in part, reversed in part, and remanded for further proceedings.
Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LOCKETT, J.: Defendant Solly Thompkins appeals his convictions for first-degree premeditated murder and burglary. He contends that the trial court erred in instructing the jury on first-degree premeditated murder, failing to grant a mistrial, and admitting his probationary status into evidence.
Thompkins and his wife, Frances, had a turbulent relationship. Each had been physically aggressive with the other at various times. Frances had burned Thompkins with a curling iron and, at one point, had to be prevented from obtaining a knife to go after Thompkins. In 1991 and 1992, Frances was granted two petitions for restraining orders against Thompkins, but she later dismissed both petitions.
In August 1994, the couple separated and Frances and her daughter moved to her mother's home. Subsequently, Thompkins began removing items from the couple's home such as the television, air conditioner, and furniture. To vent her anger, Frances trashed the home. On August 29, 1994, Frances applied to the district court for a third "protection from abuse" temporary restraining order. A final restraining order, granted on October 14, 1994, ordered Thompkins to refrain from contact with Frances for 1 year. Frances then retained an attorney to represent her in a divorce.
Around 11:30 a.m. on October 22, 1994, Thompkins arrived at Donnelly College where Frances worked and was a student. When Frances' class ended, Thompkins approached her. After engaging in a heated discussion, the pair got into Frances' car and left the college. Shortly thereafter, Officer Rodney Green noticed Frances and Thompkins sitting in a parked car. After Officer Green heard the car's horn honk, he slowed down and observed the couple struggling. Officer Green then saw Thompkins get out of the car and run. Next, Frances stepped out of the car, covered with blood.
Officer Green pursued Thompkins. Thompkins ran to a private residence, kicked open the back door, and entered the home. When a backup officer knocked at the door, Thompkins appeared and stated that the home belonged to his parents. The home actually belonged to an acquaintance of Thompkins. The officers entered the house, followed Thompkins into the kitchen, and noticed Thompkins was wearing a woman's skirt. When the officers requested identification, Thompkins obtained identification from his trousers, which were in another room and were covered with blood. In the pocket, the officers found Frances' wedding and cocktail rings. The officers later found a bloody sweater and two black gloves belonging to Thompkins in the basement next to the washing machine.
When another police officer, Granger, arrived at the scene, he found Frances slumped over in the driver's seat of her car. Granger observed a 13-inch butcher knife lying on the ground. Attempts by paramedics to revive Frances failed, and she died at the scene. At trial, the pathologist testified that Frances had sustained a 3-inch stab wound to her right side, a 3-inch stab wound to her left chest, and a 7-inch wound that severed her pulmonary artery. She also sustained multiple abrasions and contusions to her face, blows to her head and lip, a bruise and contusion under her chin, and abrasions on her thighs. Several of her false fingernails were ripped and torn. The pathologist also noted defensive wounds on Frances' hands. When Thompkins was examined for wounds after his arrest, the only wound found was a small puncture wound on his hand. Thompkins' fingerprints were not found on the knife.
At trial, Thompkins was the sole witness for the defense. He testified that Frances was a violent individual who would resort to any weapon at hand when angry. He stated that, in the past, Frances had assaulted him with hot syrup, a skillet, several knives, and a hot curling iron.
Thompkins testified that on the fatal day, he walked to Donnelly College to tell Frances that he planned to leave town and to discuss with her the future of their daughter and the sale of their residence. Frances agreed to let him ride in her car so they could talk. After driving away from the college, Frances informed Thompkins she had filed for divorce. Thompkins stated he told Frances that as long as she was wearing his rings, she would be his wife. Frances then parked at a curb, threw her rings at him, and began a heated discussion.
During the discussion, Thompkins noticed a patrol car drive by. At that point, he testified that Frances was holding a knife. He stated he grabbed Frances' hand and the knife "poked her in the side." He claimed Frances threatened to kill him and, as they struggled over the knife, the knife "hit" Frances in the chest twice. Thompkins stated that he never intended to harm his wife, but only to respond to her actions. He testified that when he broke into his friend's residence, his intent was to hide from the police, not to steal.
Thompkins was charged with one count of first-degree murder under alternate theories of premeditation and felony murder, aggravated robbery (of Frances' two rings), assault and battery of Frances, burglary (of his friend's residence), and two misdemeanors. The premeditated murder charge was dismissed at the preliminary examination. After a jury trial, Thompson was convicted of first-degree premeditated murder and burglary. He appeals his convictions, claiming the trial court erred in (1) instructing the jury on first-degree premeditated murder after the judge discharged him on that charge at the preliminary hearing; (2) failing to grant a mistrial when a witness improperly referred to his post-arrest silence; and (3) admitting into evidence the fact that he was on probation when the crime was committed. To determine the issues Thompkins raises in this appeal, it is necessary to review the proceedings prior to trial in detail.
PROCEEDINGS
At the conclusion of the preliminary examination, the district judge found that since there was no evidence of premeditation, the evidence was insufficient to bind Thompkins over on the premeditated first-degree murder charge. Thompkins was bound over for trial on the other felony charges and immediately arraigned on first-degree felony murder, aggravated robbery, assault, battery, and burglary even though the State had not filed an information charging the crimes for which the defendant was bound over, as required by K.S.A. 22-2905.
After the judge dismissed the premeditated murder charge at the preliminary examination and arraigned the defendant on other charges, the State chose neither to follow the statutory procedure to appeal the dismissal of the premeditated murder charge nor to dismiss the complaint and file a new complaint charging premeditated murder. The State did not even file a motion requesting the judge to reconsider dismissal of the premeditated murder charge. Instead, on February 8, 1995, without having filed an information charging the crimes for which Thompkins had been bound over, the State elected to file an amended information charging Thompkins with premeditated first-degree murder as well as with the crimes for which he had been arraigned and to which he had pled not guilty at the arraignment.
On February 13, 1995, the State filed a motion to proceed under the amended information. At the subsequent hearing on the motion, the State contended that it was not asking the trial judge to reverse the other judge's ruling dismissing the premeditated murder charge at the preliminary examination, as "that matter [could] effectively be taken up on appeal by the State, if necessary." Instead, the State asked the trial judge to allow the case to proceed to trial under the amended information which charged both theories of first-degree murder, i.e., premeditated and felony murder.
In denying the State's request to proceed under the amended information, the trial judge found that the preliminary examination judge's ruling finding no probable cause to bind Thompkins over for arraignment on a premeditated murder charge was an adjudication that was "res judicata as far as this case is concerned." The judge stated that, under normal circumstances, if the State had charged felony murder, he would have allowed the State to amend the information to charge the defendant with premeditated murder. The judge concluded that since there had been a previous adjudication that there was insufficient evidence of premeditation to bind Thompkins over on that charge at the preliminary examination, the State had no statutory authority to amend the information to charge premeditated murder.
After its motion to proceed under the amended information was denied, the State suggested that if it presented sufficient evidence of premeditated murder during the trial, the judge could instruct the jury on all crimes supported by the evidence. The district judge stated, "I don't think either party would disagree the Court has the ability to mold the charge to fit the facts at trial. . . . I think this Court has the ability and statutory authority to amend the charges to reflect what the evidence is that is adduced at trial." Presumably the judge was referring to K.S.A. 22-3201(e), which provides that the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. Based upon the judge's ruling, the prosecutor stated that she would not refer to premeditation in her opening statement. Defense counsel did not object to the State's suggestion.
In a subsequent pretrial conference, the district judge stated:
"The only other issue we have to clarify is that I'm not touching Judge Boeding's prior ruling dismissing premeditated murder from its Information. Any evidence, as long as it's relevant, probative, and part of the res gestae, whether it deals with premeditation or felony murder, I'll allow in to determine if, in fact, there will be enough evidence of premeditation to, in fact, instruct the jury on that. The State has to go under the theory of felony murder in voir dire and opening remarks. You can't make references to premeditated murder.
"After all the evidence is in, I'll make another ruling as to whether or not premeditated should come in or not. That ruling will determine how we go into closing remarks and instructions."
Again, defense counsel made no comment or objection to the trial judge's ruling.
At trial, the State referred only to the charge of felony murder in the opening statement. At the close of the State's evidence, the judge dismissed the misdemeanor assault and battery counts. The parties then addressed whether there was sufficient evidence for the judge to instruct the jury on premeditated murder. The State asserted that the repeated stab wounds, the location of the stab wounds, Thompkins' attempts to locate Frances, which included two phone calls prior to her death, and a statement Thompkins had made to officers that his wife was going to leave him and "this" was the only way he (Thompkins) could keep her was sufficient evidence for an instruction on premeditated first-degree murder. The trial judge agreed with the State, found that the evidence supported a reasonable inference of premeditation, and subsequently instructed the jury on both premeditated and felony first-degree murder.
Although defense counsel had previously argued that the evidence was sufficient to support only a second-degree murder or voluntary manslaughter instruction, defense counsel did not object to the instruction on first-degree murder. The jury convicted Thompkins of premeditated first-degree murder and burglary and acquitted him of the aggravated robbery charge. Although the jury had been instructed that it could convict on either or both theories of first-degree murder, because the jury found Thompkins not guilty of the underlying felony, aggravated robbery, it could not convict him of felony murder.
In his post-trial motion for new trial, Thompkins claimed the trial court had erred in admitting improper evidence, failing to declare a mistrial, and violating his due process rights. The basis of his due process claim was that (1) after the dismissal of the premeditated murder charge because of insufficient evidence at the conclusion of his preliminary examination, the State had failed to follow any of the statutory procedures available to challenge the judge's dismissal of that charge and (2) after the State's motion to proceed under the amended information was denied, the trial judge had violated his rights by reinstating the charge of and instructing the jury on premeditated murder. The trial judge denied the motion for a new trial and sentenced Thompkins to life imprisonment without possibility of parole for 25 years for premeditated first-degree murder and 17 months' imprisonment for burglary. When his notice of appeal was filed, the defendant included additional issues that were not raised before the district court.
DISCUSSION
Before we determine Thompkins' claims, we note that the State, without following the statutory procedure to appeal, claims that (1) Judge Boeding's order discharging Thompkins on the premeditated murder charge at the preliminary examination was erroneous because the judge did not consider the evidence presented in the light most favorable to the State and (2) the trial judge erred in denying the State's pretrial motion to amend the information to add the charge of first-degree premeditated murder. Since the State failed to raise these issues properly, we are precluded from considering them in this appeal. State v. Alderson, 260 Kan. 445, Syl. ¶ 7, 922 P.2d 435 (1996).
I. Premeditated Murder Instruction
Murder in the first degree is the killing of a human being committed intentionally and with premeditation or in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto. K.S.A. 21-3401. Aggravated robbery is defined as an inherently dangerous felony. K.S.A. 21-3436(a)(4). Although we have stated premeditated murder and felony murder are not separate and distinct offenses, we have noted that the type of evidence necessary to prove each of the first-degree murder charges is different. State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986). First-degree premeditated murder, K.S.A. 21-3401(a), is the killing of a human being done intentionally and with premeditation. Intentionally means conduct that is purposeful and willful, not accidental. PIK Crim. 3d 56.04(d) (1994 Supp.). Premeditation means that there was a design or intent before the act; that is, the accused planned, contrived, and schemed before killing the victim. PIK Crim. 3d 56.04(b) (1994 Supp.).
The ostensible purpose of the felony-murder doctrine is to deter those engaged in dangerous felonies from killing negligently or accidentally, and the doctrine of felony murder is not to be extended beyond the rational function it was designed to serve. To invoke the felony-murder rule, there must be proof that a homicide was committed in the perpetration of, or an attempt to perpetrate, a felony and that the collateral felony was one inherently dangerous to human life. State v. Brantley, 236 Kan. 379, Syl. ¶¶ 1, 2, 691 P.2d 26 (1984).
Although first-degree premeditated murder and felony murder require different types (elements) of proof, under certain circumstances, the accused may be charged with and convicted of both types of first-degree murder. In State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), the court noted that when an information charges the defendant with premeditated murder and felony murder for the commission of a single homicide, and the State introduces evidence on both theories at the trial, the trial court should instruct the jury on both theories in the alternative in order to avoid confusing the jury. 223 Kan. 554, Syl. ¶ 1. The court noted that where an information charges a defendant with murder in the first degree on both theories--a premeditated killing and killing while in the perpetration of a felony--a defendant is not prejudiced because the State has previously apprised the accused that it is proceeding on both theories of first-degree murder and that it intends to produce evidence on each theory. 223 Kan. at 556 (quoting State v. Lamb, 209 Kan. 453, Syl. ¶ 9, 497 P.2d 275 [1972]). The court observed that if Jackson had been separately sentenced for both first-degree murder convictions as the result of one homicide, clearly this would constitute double punishment for a single death and could not be allowed to stand. 223 Kan. at 557. In other words, under circumstances where the accused intends to kill the victim prior to committing a robbery, commits the robbery and kills the victim, the accused may be charged and convicted of each type of first-degree murder. However, since there is only one death, the defendant can only be sentenced for one first-degree murder.
Here, Thompkins was discharged on the charge of first-degree premeditated murder at the preliminary examination because the judge conducting the hearing found there was no evidence of premeditation. In addition, the trial judge had denied the State's motion to proceed under an amended information that included a charge of first-degree premeditated murder. Thompkins argues that, under these circumstances, it was unfair for the State to prosecute and convict him of premeditated first-degree murder.
In response to this argument, the State first points out that Thompkins did not object to the premeditated murder instruction but raised the issue for the first time in a motion for a new trial. It notes that generally, 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). Thompkins counters that, under the circumstances, because the instruction was clearly erroneous and prejudiced his substantial rights, he properly raised that issue in his motion for new trial. See K.S.A. 22-3501. We note that although the defendant failed to object to the instruction, a review of the record shows that he did raise the denial of his due process rights in a motion for new trial.
The primary argument advanced by the State to support the propriety of giving the premeditated murder instruction is that premeditated murder and felony murder are not two different crimes but, under K.S.A. 21-3401, are merely two theories of committing first-degree murder. The State asserts that, when a defendant is bound over on one theory of first-degree murder, if the evidence is sufficient at trial, the judge has statutory authority to instruct the jury on the other theory of first-degree murder. To support this assertion, the State notes that K.S.A. 22-3201(e) provides that the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.
To support its claim, the State first cites State v. Smith, 225 Kan. 796, 594 P.2d 218 (1979). In Smith, following the preliminary examination, Smith was bound over on premeditated murder. Prior to trial, the State amended the information to charge felony murder committed during the perpetration of a theft. On appeal, the Smith court focused on Smith's claim that he had been prejudiced by the amendment. The court found that Smith's failure to question the sufficiency of the preliminary examination by a motion to dismiss pursuant to K.S.A. 22-3208 constituted a waiver of that issue on appeal. 225 Kan. at 798. Here, unlike Smith, Thompkins challenged the sufficiency of the evidence of premeditated murder at the preliminary examination and won; therefore, Smith does not apply.
In further support, the State cites State v. Richardson, 256 Kan. 69, 883 P.2d 1107 (1994), where the complaint charged the defendant with first-degree felony murder and aggravated robbery. Before arraignment, Richardson was notified that if she was convicted of aggravated robbery, the State intended to seek the hard 40 sentence. A few days prior to trial, the State orally amended the information to include premeditated murder as an alternative theory of a first-degree murder charge. The State failed to notify Richardson that it would also request imposition of the hard 40 sentence if she was convicted of that crime. Richardson was convicted of premeditated murder and sentenced to life without possibility of parole for 40 years. On appeal, Richardson did not challenge the propriety of the amendment of the information to charge premeditated murder, but instead argued that the hard 40 sentence was illegally imposed for that crime because, at the time the notice required by K.S.A. 1993 Supp. 21-4624(1) was filed and served, she was charged with felony murder and aggravated robbery, not premeditated murder. She claimed that the hard 40 sentence could be imposed for felony murder based upon aggravated robbery, but not for premeditated murder.
In rejecting this claim, the Richardson court noted that both premeditated and felony murder may be charged as first-degree murder under K.S.A. 1993 Supp. 21-3401. The court observed that aggravated robbery charged in the information was also included in the list of inherently dangerous felonies in K.S.A. 1993 Supp. 21-3436. It noted that when the district attorney filed and served notice that he intended to request a separate sentencing proceeding pursuant to K.S.A. 1993 Supp. 21-4624, Richardson was charged with felony murder and aggravated robbery. 256 Kan. at 73. The Richardson court framed the issue as whether notice that the prosecutor intends to seek the hard 40 sentence for a crime charged in the information allows the hard 40 to be imposed for conviction of a crime not charged at the time statutory notice was given. 256 Kan. at 75.
The Richardson court observed that K.S.A. 1993 Supp. 22-3201(e) provided the court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. 256 Kan. at 75. Then, after finding that the hard 40 notice for the aggravated robbery conformed with the statute, the Richardson court observed that since K.S.A. 1993 Supp. 21-4624(1) provides for filing of the notice of intent to seek imposition of the hard 40 sentence "[i]f a defendant is charged with murder in the first degree," under the circumstances, the hard 40 sentence for premeditated murder was proper since Richardson had previously been notified that the State had intended to seek the hard 40 sentence if she was convicted of an inherently dangerous crime. 256 Kan. at 75-78.
The State now relies upon the rationale of Richardson to argue that premeditated murder and felony murder are not different offenses, but rather two theories of culpability for the same offense. However, the rationale of Richardson does not apply to Thompkins because the facts in Richardson are distinguishable. Here, there had been a judicial determination at the preliminary examination that there was absolutely no evidence of premeditation, and later the trial judge refused to allow the State to amend the information prior to trial.
The State next relies on State v. Grissom, 251 Kan. 851, 840 P.2d 1142 (1992), where Grissom was charged with multiple crimes, including first-degree murder by premeditation and murder in the commission of a felony, either aggravated burglary or aggravated kidnapping. After the preliminary examination, the judge found there was no probable cause to bind Grissom over on the charge of felony murder committed during the perpetration of an aggravated kidnapping, but bound him over on the other charges. At the conclusion of the State's presentation of evidence at trial, the State moved to amend the complaint to add a charge of felony murder in the perpetration of aggravated kidnapping. Over Grissom's objection, the trial court granted the State's motion.
Grissom was convicted of numerous crimes, including first-degree murder, aggravated burglary, robbery, and aggravated kidnapping. On appeal, Grissom claimed the amendment to include aggravated kidnapping caused him irreparable prejudice because it presented a "new theory" of felony murder upon which the jury could find him guilty. The State argued there was no error because it was not required to amend the complaint for the jury to be instructed on an alternative theory of felony murder. The Grissom court agreed with the State's argument, noting that an amendment of the complaint to include felony murder based on aggravated kidnapping was not necessary. 251 Kan. at 926-27.
In reaching this conclusion, the Grissom court relied, in part, on State v. Barncord, 240 Kan. 35, 726 P.2d 1322 (1986). In Barncord, at the conclusion of the preliminary examination, the State moved to amend the complaint charging aggravated robbery and first-degree premeditated murder to include an additional charge of felony murder based upon the killing of a human being during the commission of the aggravated robbery. The judge bound the defendant over on the crimes charged in the complaint and took the motion to include an additional crime under advisement. Prior to trial, the judge granted the State's motion to amend. Barncord was convicted of first-degree felony murder and aggravated robbery. On appeal, Barncord claimed that the amendments to the complaint were prejudicial. The Barncord court, noting that it was not necessary to amend the complaint because no additional or different crime was charged, stated:
"Premeditated murder and felony murder are not separate and distinct offenses. Rather, a prosecution under the felony-murder rule changes the type of proof necessary to prove first-degree murder. [Citation omitted.] The State is relieved of the burden of proving premeditation and malice when the victim's death is caused by the killer while he is committing another felony." 240 Kan. at 38.
The Barncord court also found that Barncord, who had been bound over on premeditated murder, was aware that the judge had taken under advisement the State's motion that he be bound over for felony murder. 240 Kan. at 37-38. Following the rationale of Barncord, the Grissom court determined that, under the circumstances, Grissom was not prejudiced by the amendment. 251 Kan. at 927.
Next the State cites State v. Starr, 259 Kan. 713, 915 P.2d 72 (1996), where Starr was charged, bound over, and arraigned on premeditated murder or, in the alternative, felony murder, aggravated burglary, and aggravated assault. Prior to trial, the State dismissed the premeditated murder and aggravated burglary charges and proceeded to trial on felony murder and aggravated assault. At the close of the State's evidence, the State moved to reinstate the charge of premeditated murder. Starr objected, arguing that he would be prejudiced due to surprise. The trial court allowed the amendment, finding no new crime had been charged. On appeal, Starr argued that the trial court did not have jurisdiction to try him on the charge of premeditated first-degree murder after the State had dismissed that charge prior to trial.
The Starr court noted that determining whether an amendment under K.S.A. 22-3201(e) should be permitted required a two-part analysis: (1) whether an additional or different crime was charged by the amendment and (2) whether the amendment prejudiced the substantial rights of the defendant. 259 Kan. at 718. The Starr court, citing Barncord, observed that a prosecution under the felony-murder rule changed the proof necessary to prove first-degree murder by relieving the State of the burden of proving premeditation and malice. 259 Kan. at 719. The Starr court observed that the facts in Starr were similar to both Grissom and Barncord. The court noted that, although the State could have originally proceeded on both the premeditated and felony-murder theories without electing between them, the State had elec