STATE OF KANSAS, Appellee,
v.
GREGORY A. CHISM, Appellant. STATE OF KANSAS, Appellee,
v.
CARL J. WENZEL, Appellant.
Nos. 60,952, 60,770
Supreme Court of Kansas.
Opinion filed July 8, 1988.Jack Focht, of Focht, Hughey, Hund & Calvert, of Wichita, argued the cause and was on the brief for appellant Chism.
Charles A. O'Hara, of O'Hara, O'Hara & Tousley, of Wichita, argued the cause and was on the brief for appellant Wenzel.
Mona Furst, assistant district attorney, argued the cause and Robert T. Stephan, attorney general, and Clark V. Owens, district attorney, were with her on the brief for appellees.
The opinion of the court was delivered by
HERD, J.:
This is a criminal case wherein defendants Carl Wenzel and Gregory Chism appeal their jury convictions of first-degree felony murder, K.S.A. 21-3401, for which they were given life sentences.
Wenzel and Chism were together with their wives Penny Wenzel and Carlene Chism at a nightclub on August 24, 1985. They learned Ron Hawkins and his girlfriend, Teresa Stanhope, were throwing an after-hours party at a hotel and would not be returning home that night. Chism had been in Hawkins' home in the past and knew he kept cocaine and money hidden in a heating vent in one of the bedrooms. A little before 3:00 a.m., when the club closed, the appellants' wives rode home with a friend because both men were intoxicated.
Around 4:00 a.m., Anita Thomas, Hawkins' next door neighbor, heard sounds in Hawkins' yard as if someone were moving something large out of his house. She heard someone say, "Take *486 it over there. Go over there by the truck." She then heard a loud bang which awakened her husband, Michael, who believed the sound to be a gunshot. Michael Thomas called the police at that time.
The Thomases looked out their window and saw a window air conditioner laying by a truck. They also saw two men behind some cars struggling to obtain an object which they later learned was a rifle. They saw the taller of the men move the gun in an up-and-down motion as if he was beating something on the ground, while the other kicked and hit at something on the ground. Michael Thomas testified the two men stepped away from the cars several times and conferred between themselves before returning to the area where they continued to beat at something on the ground. The couple heard the taller man yell, "Give me that gun, let go of the gun, lay down, keep him down, stay down, you're not going to die. I'm going to blow your ... balls off." They saw the taller man push the rifle towards the ground and heard another shot, muffled this time. The two men left in what looked like a white or a light-colored Monte Carlo. Both men were stumbling as if drunk. The taller of the men wore glasses. Chism, the taller of the two appellants, wears glasses and owned a white Oldsmobile.
An officer responding to the call saw two white males driving erratically in a light-colored Oldsmobile as he approached the scene. The police found Raymond Messerschmidt, who lived in the top apartment of Hawkins' house, lying dead on the ground. He had died from a gun blast through his groin. He had cocaine in his system as well as on his person.
Laying in the yard were the air conditioner from Hawkins' bedroom window and the stock of a semi-automatic Mini-Ruger 14 rifle, later determined to be the deceased's. Some of the wounds on Messerschmidt, who had been severely beaten, matched the butt of the rifle.
The two appellants asked their wives to provide an alibi for their whereabouts during the critical hours of the morning. They admitted killing Messerschmidt, but said it had been accidental. They said they went to Hawkins' house to steal money and drugs from the heating vent when they were interrupted by Messerschmidt, who had come downstairs and around the corner of the house with a rifle. They tackled him and tried to get the rifle *487 away from him, but he was tremendously strong and would not give it up. They said they had been unarmed on their arrival at Hawkins' house and had thrown the remains of Messerschmidt's rifle in a creek before coming home.
The women first gave the prepared alibi stories to the police that appellants had returned home soon after their own departure from the nightclub. The women told the truth, however, after being told charges could be brought against them for aiding and abetting. Carlene was represented by an attorney when she made her statement to the State; Penny had received the advice of an attorney earlier.
Chism and Wenzel were charged as codefendants with first-degree murder in the alternatives of premeditated murder or felony murder while in the perpetration of the crime of burglary or attempted burglary, K.S.A. 21-3401. The appellants stuck to their original alibi stories to the police and did not testify at trial. They were tried together but filed separate appeals. The two appeals are consolidated in this opinion.
Appellants' first issue on appeal is whether the trial court erred in ruling as a matter of law, for the purposes of certain instructions, that Chism and Wenzel had committed, or attempted to commit, a felony and were within the res gestae of the crime when the fight began.
Appellants argue the trial court erred in failing to instruct on the lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. Wenzel also protests the court's failure to give a requested instruction on misdemeanor theft. A trial court generally has the duty to instruct on the full range of lesser included offenses. Where the commission of a felony results in a death, however, the normal rule on lesser included offense instructions does not apply. State v. Rueckert, 221 Kan. 727, 731, 561 P.2d 850 (1977). The felonious conduct in such a case is held to supply the elements of premeditation and intent that are otherwise required to establish first-degree murder. State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988). If the undisputed evidence is not weak or inconclusive, but instead would convince a reasonable person that a felony had been committed, instructions on lesser offenses are not required. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).
The State's evidence showing an attempted burglary was in *488 progress when Messerschmidt was shot and killed consisted of the eyewitness testimony of the Thomases, and the testimony of Teresa Stanhope, Ron Hawkins, and the appellants' wives. Appellants argue their wives were coerced into giving their first statements against them. They also contend their wives' testimony was suspect because they were not interrogated until many months after the crime, during which they had heard different theories of the crime from many people. Appellants argue the testimony of Teresa Stanhope and Ron Hawkins was suspect because they were granted immunity by the State. They also argue everyone's testimony was suspect because a reward was offered for information leading to the arrest and conviction of Messerschmidt's killer.
There was clear, uncontradicted evidence the appellants were in the process of burglary when the death occurred. Appellant's attack on the witnesses' credibility does not, under the circumstances of this case, render the undisputed evidence against the defendants weak or inconclusive. See State v. Armstrong, 240 Kan. 446, 460, 731 P.2d 249 (1987). The evidence would convince a reasonable person a felony had been committed; thus, the court did not err in failing to instruct on lesser included offenses.
The court did not err in refusing to instruct on misdemeanor theft, as appellants were charged only with murder. Theft is not a lesser included offense of murder. The appellants could not have been properly convicted of theft. State v. Giddings, 226 Kan. 110, 113-14, 595 P.2d 1115 (1979).
The court ruled the appellants were either guilty of the underlying felony or, if the jury found the witnesses' testimony not to be credible, of no crime at all. Appellants argue there was a reasonable doubt they had the specific intent required to commit burglary because the evidence was uncontradicted that they had been drinking heavily. The court gave instructions on intoxication as affecting specific intent and the elements of burglary and attempted burglary which require the specific intent to commit a theft within the house. The jury was thus allowed to consider whether the appellants were not guilty of burglary because they lacked specific intent. Appellants' argument is therefore without merit.
Appellants also argue the court erred in summarily finding the *489 death occurred within the res gestae of the felony and thus refusing their instructions on time, distance, and the causal relationship between the underlying felony and the killing. They argue the jury could have found they had abandoned their felonious purpose when frightened by Messerschmidt. The facts show this argument has no merit. The attempt statute, K.S.A. 1987 Supp. 21-3301, specifically states an attempt has been committed when a person intentionally makes an overt act "but ... is prevented or intercepted in executing such crime." The evidence was conclusive the death occurred within the res gestae of attempted burglary. Appellants were on Hawkins' property at night, contraband was laying close by, and Messerschmidt was killed at this same location. Thus, the court did not err in finding the issue was not one for the jury. See State v. Rider, Edens & Lemons, 229 Kan. 394, 399-400, 625 P.2d 425 (1981), where the evidence was not weak or inconclusive that defendants shot a man who appeared to be armed and who pursued them for some unknown reason 15 minutes into their getaway from a robbery. We held the shooting was within the res gestae of the underlying felony as a matter of law, and the question need not be determined by a jury. The court thus did not err in failing to instruct on self-defense and lesser included offenses. The time, distance, and causal relationship between the underlying felony and the killing are stronger in the case at bar. Messerschmidt's interception of the appellants was clearly caused by their attempted felony, and his death occurred shortly afterwards in his and Hawkins' yard.
Appellants also argue the court erred in failing to give the instructions because the jury could have found the appellants had not yet reached the overt act required to be guilty of felony murder. They contend the court erred in instructing the jury that to establish the crime of attempted burglary, the State must prove "[t]hat the defendant(s) performed an act toward the commission of the crime of Burglary, to-wit: enter the backyard of 2410 North [sic] Douglas, Wichita, Kansas ... with the intent to commit the crime of Burglary." In its bill of particulars, the State had claimed the appellants had committed the underlying felony of burglary or attempted burglary by removing the air conditioner.
It is necessary to show both intent and an overt act toward the *490 commission of the crime to prove an attempt. K.S.A. 1987 Supp. 21-3301; State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975). There is no definitive rule as to what constitutes an overt act; each case depends on the inferences a jury may reasonably draw from the facts. It must be shown the defendant took a step beyond mere preparation so that some appreciable fragment of the crime was committed. In some cases, the intent to commit the felony is so clearly shown by other evidence that it is enough that the defendant arrived at the scene at which he planned for the crime to occur. See State v. Garner, 237 Kan. 227, 238-40, 699 P.2d 468 (1985). Under the circumstances of the case at bar, the jury could have reasonably found the overt act had been committed when the appellants entered the victim's backyard. The determination of the existence of an overt act is a jury function, however, and the court erred in taking it from them. State v. Sullivan & Sullivan, 224 Kan. 110, 125-26, 578 P.2d 1108 (1978). In light of the evidence, however, the error was harmless as it did not mislead the jury when appellants' instructions and evidence are considered as a whole. All evidence pointing to the appellants' trespass also pointed to them removing the air conditioner. There was absolutely no evidence from which it could be inferred the appellants were intercepted before they removed Hawkins' air conditioner in preparation for entering his house for purposes of theft.
Appellants next argue the jury should have been instructed on foreseeability, contending it was a question of fact whether they could have reasonably foreseen a death would occur, as they were not armed. Whether a felony is inherently dangerous is to be determined in the abstract, rather than by the circumstances in a particular case. State v. Underwood, 228 Kan. 294, Syl. ¶ 5, 615 P.2d 153 (1980). We have previously held burglary is a forcible felony inherently dangerous to human life because it necessarily involves potential confrontation. K.S.A. 21-3110(8); Smith v. State, 8 Kan. App. 2d 684, 688, 666 P.2d 730 (1983). Where the underlying felony is one inherently dangerous to human life, the foreseeability requirement is established as a matter of law. State v. Giddings, 226 Kan. at 112-13. The argument is without merit.
Wenzel separately argues the court erred in refusing his instruction that one who was only an aider and abettor must have *491 been able to reasonably foresee that a death could occur. Wenzel was equally responsible for the conduct of Chism when he intentionally aided Chism in the commission of the attempted burglary. See State v. Sullivan & Sullivan, 224 Kan. at 119. It is irrelevant which appellant actually shot Messerschmidt, as all participants to an underlying felony are principals to felony murder when death occurs. State v. Hoang, 243 Kan. at 42. The rules of felony murder thus apply equally to both appellants. See State v. Giddings, 226 Kan. 110. We find no error.
The appellants argue the court erred in removing the issues of self-defense and accident from the jury's consideration by refusing both their instruction on self-defense, and numerous instructions pertaining to Messerschmidt's presumably unlawful acts. A victim's actions in trying to stop a felony are irrelevant. Self-defense or accident are not defenses to felony murder. It is the purpose of the felony-murder rule to prevent deaths from these causes. State v. Hoang, 243 Kan. at 42; State v. Underwood, 228 Kan. 294.
A separate issue is whether, even if the court was correct in refusing the appellants' instructions under felony-murder rules, it erred in not giving the instructions because the appellants were charged with premeditated murder as an alternative to felony murder. Appellants argue, because the State refused to elect, the premeditated murder charge should be considered entirely separate from the felony. This procedure w