Opinion
No. 107,846.
2013-08-30
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Joseph Bribiesca, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Loren E. Hall, Jr., fatally stabbed Leonard Hecox in the early morning hours of March 20, 2011. He was charged with voluntary manslaughter but convicted of the lesser included offense of involuntary manslaughter. On appeal Hall contends the evidence was not sufficient to support his conviction for a reckless killing. We disagree and affirm the decision of the district court.
The Evidence at Trial
The events leading up to the stabbing of Hecox are not in material dispute. JoRae Elrod and Hecox were living together in Wichita, Kansas, on March 20, 2011. They had had an on-and-off relationship for 27 years. Hecox had 10 domestic violence convictions and a reputation for violence. He also used methamphetamine. Two men came to Elrod's residence looking for Hecox. He fled the premises, apparently before the men were able to break in the front door. Later, after the men had left, Hecox returned to the residence where he was berated by Elrod for fleeing, leaving her alone during the home invasion. This led to Hecox threatening Elrod with physical harm.
Hall was at his apartment in Newton when he received a call in the middle of the night from a frightened Elrod describing the home invasion and Hecox's flight from the premises. Hall told Elrod to call Diana Fowler for help as she also lived in Wichita. Fowler was Hall's girlfriend. After his telephone conversation with Elrod, Hall went back to bed.
Elrod did call Diana Fowler, describing the home invasion. She did not tell Fowler that Hecox had returned and become very angry after she had belittled him for fleeing the home invasion. Fowler and her former brother-in-law, Darrell Towne, went to Elrod's home. When they arrived, Hecox was threatening Elrod and becoming physical with her.
Hall was on his way to Wichita at 5:50 a.m. on March 20, 2011, when he spoke to Fowler, who was using Elrod's phone. Phone records showed that this call lasted 18 minutes. Hall could hear Hecox erupting in the background, and Fowler said Hecox was threatening both women and was armed with knives and possibly a metal pipe. When Hall arrived, Fowler told him: “[I]f you don't take care of this motherfucker, I know someone who will.”
Hecox became upset when he realized Elrod was going to leave with Fowler and Hall. Elrod left the home first, followed by Fowler and then Hall. Fowler testified that Hecox came up behind Hall swinging a metal pipe like a baseball bat. She testified that she warned Hall. Hall later stated in an interview with a Wichita police officer that Hecox was standing with one side toward Hall, thus shielding what might have been in the other hand. The officer was allowed to testify, over the State's objection, that he would believe a person standing in such a position was hiding a weapon. Hall told the officer he could not see Hecox's far hand but believed Hecox held a knife based on what Elrod and Fowler had said. Hall had a 4–inch folding knife he always carried with him.
According to Hall, Hecox was trying to rush past him to get at the women. Hall said he told Hecox to stop, but Hecox said: “ ‘Fuck you, I'm killing the motherfucker.’ “ Elrod testified that she did not see anything in Hecox's hands, and that she did not hear him make any threatening statements to Hall. Whether or not Hecox was carrying anything, Hall turned and stabbed him in the upper-center of the chest. A pathologist testified that the blade passed through the manubrium, which is a small bone on the top of the sternum, then through a cartilage joint between the sternum and the second rib, next through the pericardial sac, the aorta, and finally the bronchus, which connects the trachea with the right lung. The pathologist agreed that it required significant force to do so.
When interviewed, Hall told the police officer: ‘ “Like it was—it was a fucking reaction. It was—it was out of fear. It was out of desperation, not to let someone I love, I, um, he was—he was going to kill, I know.’ “ Hall said, ‘ “I know in my heart, and I knew I had one shot, because I knew that he turned all this rage on me.’ “ Hall nevertheless denied that he intended to kill Hecox, saying his only intention was “to get the girls out.”
The State charged Hall with voluntary manslaughter, alleging he intentionally killed Hecox upon an unreasonable but honest belief that circumstances existed that justified deadly force. See K.S.A. 21–3403(b). Before trial, Hall requested instructions on self-defense and an instruction on involuntary manslaughter in violation of K.S.A. 21–3404(a) and (c). The State similarly requested an instruction on involuntary manslaughter, but only in violation of K.S.A. 21–3404(a). The district court gave the jury the involuntary manslaughter instruction as requested by Hall.
The State argued to the jury that the killing of Hecox was intentional, but it also addressed the lesser-included offense. Hall's counsel mentioned the lesser-included offense in passing but spent most of the closing argument arguing self-defense. The jury found Hall guilty of involuntary manslaughter.
Our Standard of Review
Hall contends the stabbing was an intentional act. He maintains that the State presented no evidence that he did not intend to strike Hecox with the knife. Hall concludes the State failed to prove that he acted recklessly under K.S.A. 21–3404(a).
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Furthermore, when making a sufficiency of the evidence determination, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. [Citation omitted.]” State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012).
Our Analysis
K.S.A. 21–3404 provides: “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.” (Emphasis added.)
From a plain reading of K.S.A. 21–3404, we conclude Hall misinterprets this statute. An unintentional killing is a necessary element of the offense, distinguishing involuntary manslaughter from voluntary manslaughter under K.S.A. 21–3403 (“Voluntary manslaughter is the intentional killing of a human being.”).
Hall relies on State v. O'Rear, 293 Kan. 892, 270 P.3d 1127 (2012), where a bank guard shot an innocent bank patron in his “center mass” and defended a charge of reckless aggravated battery by arguing the shooting was intentional, not reckless. Although a jury convicted O'Rear on the charged crime, our Supreme Court reversed for insufficient evidence. 293 Kan. at 903.
“The only evidence presented at trial was that [the bank guard] intended to shoot [the patron] in center mass; in other words, he intended to cause great bodily harm to [the patron]. The reasons he intended to do so may have been born of misperception, but the intention remained. The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. [Citation omitted.] Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other.” 293 Kan. at 903.
Key here is the Supreme Court's unstated premise that an intentional shooting in a person's center mass permits no reasonable inference other than an intent to cause great bodily harm. The Supreme Court essentially equates the two, joining them with the transition “in other words.” 293 Kan. at 903. The State cites a case filed the same day as O'Rear— State v. Deal, 293 Kan. 872, 296 P.3d 1282 (2012)—where our Supreme Court discussed facts supporting a different premise.
In Deal, the defendant alleged the victim had swung a metal tire iron at him. The defendant reported he was able to block the blows with his arms, yet they were unmarked. The defendant said he kicked the victim in the groin, took the tire iron from him, and struck him “one time in the head and one time in the left shoulder area.” 293 Kan. at 875. Later, the defendant said he struck the victim “once in the front right area of his head and another time in his right head and neck area.” 293 Kan. at 875.
The victim was killed, and a jury convicted the defendant of unintentional but reckless second-degree murder pursuant to K.S.A. 21–3402(b). The defendant argued on appeal that he had acted intentionally, focusing “on the voluntariness of his actions of hitting [the victim].” 293 Kan. at 878. The defendant in Deal therefore argued for an intentional hitting as opposed to an intentional killing.
Our Supreme Court pointed out that “the unambiguous language of [K.S.A. 21–3402] requires the killing—the result—to be either intentional or unintentional.” Deal, 293 Kan. at 883. Under the subsection in question, K.S.A. 21–3402(b), “the result—the killing—must be unintentional.” 293 Kan. at 884. So the statute “focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate or voluntary act leads to death.” 293 Kan. at 885.
The analysis in Deal then assumed a different premise from that in O'Rear: “While [the defendant] acted deliberately, he denied an intent to kill, and it cannot be said that death, as opposed to serious injury, is a substantially certain result of hitting someone in the head with a metal bar, albeit a risk and even a probable risk.” Deal, 293 Kan. at 885. In Deal, in contrast to O'Rear, there was more than one reasonable inference possible.
Deal can also be compared with State v. Houston, 289 Kan. 252, 275, 213 P.3d 728 (2009), where the evidence showed a “shooting ... was clearly intentional,” but “the question remain[ed] whether the killing ... was intentional.” The defendant in Houston never disputed that he intentionally pulled the trigger. He never disputed that he shot the victim in the left jaw with a 12–gauge shotgun. The evidence was uncontroverted that the defendant had fired from within 15 feet. The coroner thought the shot could have been from as close as 3 feet and testified “ ‘would be surprised” ‘ if it were from as far as 15 feet. 289 Kan. at 276. “Under these circumstances, we conclude that no rational jury in this state could have found that [the defendant] did not intend to kill [the victim].” 289 Kan. at 276.
What reasonable inferences are permitted by Hall's intentional (and forcible) stabbing of Hecox in the upper-center chest with a 4–inch folding knife? If the question were great bodily harm, O'Rear would probably control. Under that case, one probably could not intentionally (meaning voluntarily) stab someone in such a way without intending great bodily harm.
However, where the question is based on a killing, we believe Deal provides the analysis that is applicable in this appeal. Hall denied an intent to kill, and just as killing is a risk, even a probable risk, of striking someone on the head with a metal bar, killing is similarly a risk, and thus not a certainty, of stabbing someone in the upper-center chest with a 4–inch folding knife. The blade could miss the aorta or other vital parts, or it could strike bone and not penetrate so deeply. The facts here did not go as far as Houston, which our Supreme Court held permitted no reasonable inference other than an intent to kill.
In Deal our Supreme Court noted that the legislature defined “reckless conduct” to mean ‘ “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.” ‘ 293 Kan. at 884 (quoting K.S.A. 21–3201[c] ). The jury was so instructed here. Thus here, as in Deal, a rational jury could conclude “there were circumstances that showed a realization of danger and a conscious and unjustifiable disregard of that danger .” 293 Kan. at 885–86.
Since the evidence supports an unintentional killing committed recklessly pursuant to K.S.A. 21–3404(a), and because Hall does not challenge the sufficiency of the evidence to support his conviction under K.S.A. 21–3404(c), it is unnecessary for us to reach the issue as to whether the statutory options are alternative means. It is also unnecessary to consider the State's argument that Hall waived his argument by requesting the lesser included offense instruction.
Affirmed.