Opinion
112,270.
06-05-2015
STATE of Kansas, Appellee, v. William Paul SPANGLER, Appellant.
Donald R. Hoffman and Jason P. Hoffman, of Hoffman & Hoffman, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Donald R. Hoffman and Jason P. Hoffman, of Hoffman & Hoffman, of Topeka, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
William Paul Spangler claims the district court erred by not giving his requested instructions for defense of another and for defense of a dwelling involving the death of Faustino Martinez (Tino) in the hallway of an apartment building. Given our multistep standard of review when a requested instruction is not given to the jury as set out in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012), we find the requested instructions were not legally appropriate and the district court did not err. We affirm.
Facts
On March 23, 2014, Tino and his family went to Topeka for a family birthday celebration at Gino Martinez' (Gino) apartment. Gino lived in an apartment on the second floor of the Capitol Suites Apartment building (the Building), and Gino's sister lived on the third floor of the Building. The Building's entry way had two sets of doors with an airlock space between them. The inner doors were always locked for the residents' safety. The hallway to each of the three floors was accessible through an unlocked door with the apartment on each floor accessed through a locked door from the common hallway.
Around 2 a.m., family members returned from a grocery run. To aid in unloading the groceries, Gino placed a box of juice containers in the interior doorway to the stairwell to keep the door from locking so the groceries could be carried in without Gino having to unlock the door. Prior to the family members' return, Gino, Tino, and Dijon Chandler Phillips (DJ) had been in the airlock space smoking cigarettes.
Around this time, Spangler, who lived in his apartment on the third floor, and his friend, Valerie Mentzer, returned to the Building from a local bar. Spangler testified he had a few beers and a drink while at the bar. While exiting the vehicle, Spangler and Mentzer saw Tino and D.J. at a nearby vehicle. D.J. testified Spangler looked at them and said, “What the fuck you looking at?” Spangler's comment upset Tino, but he did not verbally respond. Spangler testified he could clearly see D.J. was armed. Tino and D.J. were advocates of open carry and had firearms openly visible on their person. Mentzer and Spangler testified D.J.'s and Tino's staring frightened them and so Spangler told Mentzer, “Start walking. Don't turn around. I know he's got—just go.” Spangler testified he heard feet scraping behind him. When he turned around, Spangler believed Tino was about to give chase, so he told Mentzer, “Go, I mean go now.”
As Spangler and Mentzer entered the Building, Gino held the door open for them. Gino and Spangler recognized each other as tenants of the Building, but they did not know each other personally. Gino testified that when Spangler and Mentzer entered the airlock, he told them, “[D]on't mind the juice boxes,” as an indication a box was holding the door open. Mentzer stepped over the box as she entered. Spangler kicked the box backwards from the door, scattering the juice containers. Spangler testified he kicked the box because he was being chased and he wanted the door to lock. Spangler and Mentzer went up the stairwell to Spangler's apartment. Mentzer testified she ran up the stairs as fast as she could because she was scared for her life. However, Gino testified neither Spangler nor Mentzer were running or moving at a fast pace.
At trial, Spangler testified that as he was unlocking his door, he heard people coming up the stairs; however, he did not actually see anyone chasing them. Mentzer and Spangler entered the apartment and locked the door. No one knocked on the door or tried to force their way into the apartment. Neither Spangler nor Mentzer called 911.
While Mentzer was locking the deadbolt, Spangler went into his bedroom and returned with a loaded assault rifle. Spangler testified he retrieved and loaded the assault rifle because Mentzer was crying and he was panicking. At trial, Spangler claimed he had never fired the rifle before, never read the manual, and had no training on how to properly use the rifle. Spangler told Mentzer to lock the door behind him and exited his locked apartment to investigate the people coming up the stairs.
Spangler's testimony reflects that when he exited his apartment, he looked both directions and saw no one in the hallway. He decided to go looking for the men even though he knew they appeared to be friends with Gino. He took the gun with no bullet in the chamber as a “scare tactic” because he wanted to make sure the men did not come back upstairs. Spangler walked down the hallway to the stairwell and did not see anyone. He then walked down several flights of stairs between the third floor and the entrance to the Building and did not see anyone in the stairwell. When Spangler reached the first floor landing, he saw Tino, D.J., Gino, and Maria Garcia in the airlock between the exterior door of the Building and the second locked doorway to obtain access to the stairs leading to each floor of the Building.
Spangler testified that as he approached the group with the assault rifle and before he could address them, Tino stepped forward and said, “What are you going to do, shoot me?” Spangler testified Tino did not have a gun on him at the time. Spangler further testified that it was silent for a moment and then Tino began slowly walking up the stairs. Spangler did not know what to do because he was not expecting anyone to approach him while he was holding an assault rifle. Here, the testimony of the parties' conflicts as to what happened next—either Spangler went back upstairs without responding to Tino and Tino followed or Spangler turned and fled because Tino was chasing him at full speed. There were no cameras in the stairwell.
Spangler testified that at the top of the stairs leading to the third floor a struggle occurred between Tino and himself; but despite losing both shoes, he was able to get away from Tino. As Spangler ran down the third floor hallway, he put a bullet in the chamber of the assault rifle, turned towards Tino, and fired a warning shot. Spangler testified Tino just kept coming at him after the warning shot, so he attempted to shoot him in the leg but instead hit him in the lower abdomen. Spangler stated that when Tino was shot, Tino grabbed his abdomen and said, “I've been shot, I've been shot, help.' “ Spangler further testified that Tino “turned around and started walking toward the door that [Spangler and Tino] came in through.” Spangler was observed on videotape fleeing the apartment building using a different stairwell and exit. Spangler ditched the assault rifle under a truck a few blocks away. Tino was approximately 50 feet from Spangler's apartment when he was shot.
The surveillance video reflects Tino entered the airlock shortly after Spangler and Mentzer went through. Gino testified that when Tino and D.J. entered the airlock, he told them, “Hey these guys just kicked the juices.” Tino then sat down his drink and put his gun on the ground inside the airlock. The surveillance video reflects Tino and D.J. were trying to enter the interior doors and Gino unlocked the door. D.J. testified he and Tino went upstairs to talk to Spangler about kicking the juice box. D.J. stated Tino was upset over what kind of person would kick kid's juice boxes. D.J. testified when they reached the third floor and did not see Spangler, they went back downstairs. At some point around this time period, Gino handed Tino's gun to D.J. and told him to take it to Gino's apartment and put it away. D.J. went to the second floor apartment and put the gun away.
Maria testified she noticed Spangler standing on the first floor landing. Spangler had an assault rifle that appeared to be pointed at Tino. Maria testified Tino asked Spangler, “Are you fucking kidding me?” and “Are you seriously going to shoot me? Are you really going to kill me?”
Gino also testified and said he followed Tino up the stairs. Gino opened the door to the third floor and saw Spangler with his assault rifle. Tino had his hands down at his sides with his palms face up and open. Gino heard Spangler cock the assault rifle and saw Spangler move toward Tino. Tino asked Spangler, “Are you going to fucking shoot me?” Scared, Gino turned to run back downstairs. However, as he was running down the stairs, Gino heard a gunshot and Tino's scream. Gino ran to help Tino and called 911. Tino died from blood loss due to the gunshot wound. Detective Scott Dickey with the Topeka Police Department testified he found no evidence of anyone shooting at Spangler and what appeared to be Spangler's first shot was found in the wall of the third floor hallway.
Spangler was charged with one count of first-degree murder. Prior to trial, Spangler submitted proposed PIK instructions. Spangler initially requested an instruction on self-defense and defense of a dwelling, and during the jury instruction conference he also requested an instruction on defense of another. After hearing each party's arguments, the district court denied Spangler's requested instructions for defense of a dwelling and defense of another. The district court gave Spangler's requested instruction on self-defense.
The jury found Spangler guilty of second-degree murder. Spangler was sentenced to a term of 186 months' imprisonment with 36 months' postrelease supervision and an order for restitution. Spangler timely appeals.
Analysis
Spangler's only issue on appeal is whether the district court erred in not giving the two additional jury instructions he requested for defense of another (because he was protecting his friend) and defense of a dwelling (based on his claim he was protecting his apartment). Since the analysis of whether the district court erred in failing to give jury instructions for defense of another and defense of a dwelling significantly overlap, we will address the failure to give each instruction together.
Defense of Another and Defense of a Dwelling Jury Instructions
Standard of Review
Recently, our Kansas Supreme Court reiterated the general framework for reviewing jury instructions:
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).” State v. Brammer, 301 Kan. 333, 339, 343 P.3d 75 (2015).
The Kansas Supreme Court has held: “The failure to give a jury instruction is reviewed for clear error unless the issue is properly preserved. State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).” Brammer, 301 Kan. at 339.
Generally, a defendant is entitled to instructions on the law applicable to his or her theory of defense if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. If the defendant requests an instruction at trial, the appellate court must view the evidence in the light most favorable to the defendant. State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014).
Spangler preserved both issues for appeal by requesting the instructions at the jury instruction conference and by objecting to the exclusion of the instructions before the jury was instructed by the district court.
Since Spangler preserved this issue for appeal, our next step becomes whether the instructions were legally appropriate using our unlimited review and whether there was sufficient evidence, viewed in the light most favorable to Spangler, that would support giving those two instructions to the jury. See Brammer, 301 Kan. at 339.
Spangler's requested jury instructions are based on statutorily described events of when the use of deadly force may be used. K.S.A.2014 Supp. 21–5222 involves defense of another and provides in part:
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” (Emphasis added.)
The district court held the instruction was not legally appropriate because Spangler's belief deadly force was necessary was not reasonable.
K.S.A.2014 Supp. 21–5223 involves defense of a dwelling and provides in part:
“(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling, place of work or occupied vehicle.” (Emphasis added.)
The district court ruled the instruction was not legally appropriate because Spangler was not trying to prevent unlawful entry into his dwelling.
Spangler now argues:
“[A] verbal confrontation with armed, intoxicated and angry men in a darkened parking lot, followed by a chase into the internal confines of the apartment building and a chase up the stairs [made it] perfectly reasonable to believe [Tino] and his associates were headed to [Spangler's] apartment for the purpose of entering it and doing harm to [Mentzer]. Under these circumstances, [Spangler] was entitled to an instruction on defense of another.”
Spangler also argues the internal confines of the Building, and not just his apartment, qualified as a dwelling under K.S.A.2014 Supp. 21–5223 and, as such, he was entitled to use force to prevent unlawful entry into the Building, not just his apartment.
In State v. Rutter, 252 Kan. 739, 850 P.2d 899 (1993), the defendant attempted to argue the trial court had a duty to instruct on defense of another even if the evidence was slight or consisted solely of the defendant's own testimony; however, the Kansas Supreme Court held:
“The standard has never been that the mere statement of a defendant that he acted in self-defense or defense of another is sufficient to invoke that duty to instruct on the part of the trial court. The elements of self-defense and defense of another are statutory and there must be sufficient evidence of each of the elements of self-defense or defense of another before a duty to instruct arises.” 252 Kan. at 745–46.
In Rutter, the Kansas Supreme Court developed a two-prong test: (1) Did the defendant sincerely believe it was necessary to kill in order to defend the defendant or another? and (2) Was the belief objectively reasonable? The first is subjective; the second is objective. 252 Kan. at 746. The analysis used to evaluate the defense of dwelling would be the same: (1) Did the defendant sincerely believe it was necessary to use deadly force to prevent or terminate the unlawful entry into the defendant's dwelling and (2) was that belief objectively reasonable? See K.S.A.2014 Supp. 21–5222 ; K.S.A.2014 Supp. 21–5223.
Spangler fails the two-prong test for the availability of the defense of another and the defense of dwelling. First, Spangler fails the subjective test because his testimony at trial did not show he sincerely believed it was necessary to kill Tino in order to defend another—Mentzer—or to prevent the unlawful entry into his dwelling; and second, he fails the objective test because even if he did sincerely believe it was necessary to kill Tino in order to defend Mentzer or prevent Tino's unlawful entry into Spangler's dwelling, that belief was not reasonable—Spangler failed to show the existence of facts that would support such a belief.
Mentzer and Spangler both testified they were frightened by Tino's and D.J.'s alleged staring in the parking lot and believed Tino was about to chase them into the Building so they quickly made their way inside the Building and to Spangler's apartment. After entering the apartment, while Mentzer locked the deadbolt, Spangler went into his bedroom and returned with a loaded assault rifle. Spangler told Mentzer to lock the door behind him so she would be safe and exited the locked apartment to investigate the people coming up the stairway.
Once Spangler left the apartment with his assault rifle to go investigate, even when viewed in the light most favorable to Spangler, his own testimony reflects he was going to warn the men and had no intent to shoot them. There was no evidence indicating there was still a threat to Mentzer or that it was necessary to terminate an unlawful entry into Spangler's apartment since he told Mentzer to remain in the apartment to be safe as he left to go looking. Additionally, there was no evidence presented of any attempt by Tino or anyone else to enter Spangler's apartment.
When Spangler exited the apartment, he looked both directions and saw no one in the hallway. Spangler's brief fails to explain how Spangler reasonably believed at this point that deadly force was necessary to protect Mentzer or to prevent an unlawful entry into Spangler's dwelling when there was no one on the third floor where his apartment was located and no one had actually attempted to gain access to his apartment. When Spangler left his apartment, he had to walk down the hallway and 2–1/2 flights of stairs before finally confronting Tino, D.J., Gino, and Maria while in the airlock area and in the stairwell by the airlock area. A rational factfinder could not find facts, even when viewed in the light most favorable to Spangler, that would support his belief deadly force was necessary at this point to protect another—Mentzer—or his apartment. Spangler's decision to leave his apartment and go looking for the men in the hallway fails the objective test as his belief was not reasonable at that time. See Rutter, 252 Kan. at 745–46.
The Kansas Supreme Court addressed the need to instruct on the defense of another in Rutter and said:
“The defendant further claim[ed] that he was not an aggressor because in the beginning he was only an observer without any weapon. According to the defendant, it was only after he was threatened with a club that he left to get a weapon. The defendant's actions speak louder than his words. After he had escaped from danger, he returned and actively joined an armed group with the avowed purpose of settling a score on behalf of a friend. Even when viewed in the light most favorable to the defendant, the evidence demonstrates that he was the aggressor and therefore not entitled to an instruction under K.S.A. 21–3211 [now K.S.A.2014 Supp. 21–5222 ]. There was not sufficient evidence from which a rational factfinder could have found that the defendant acted in defense of another under K.S.A. 21–3211 [now K.S.A.2014 Supp. 21–5222 ]. The trial court therefore had no duty to instruct under K.S.A. 21–3211 [now K.S.A.2014 Supp. 21–5222 ].” Rutter, 252 Kan. at 746.
Here, Spangler initiated contact with Tino and D.J. by confronting them in the parking lot by stating, “What the fuck are you looking at?” Then, even if Spangler's testimony was correct and he was chased upstairs, like Rutter, after Spangler had escaped from his perceived danger, he returned with an assault rifle and actively engaged Tino and D.J. Even when viewed in the light most favorable to Spangler, the evidence demonstrates Spangler became the aggressor and was not entitled to an instruction of defense of another or defense of a dwelling.
Under K.S.A.2014 Supp. 21–5226, the justification described in K . S.A.2014 Supp. 21–5222 and K.S.A.2014 Supp. 21–5223 are not available to a person who:
“(c) Otherwise initially provokes the use of any force against such person or another, unless:
(1) Such person has reasonable grounds to believe that such person is in imminent danger of death or great bodily harm, and has exhausted every reasonable means to escape such danger other than the use of deadly force; or
(2) in good faith, such person withdraws from physical contact with the assailant and indicates clearly to the assailant that such person desires to withdraw and terminate the use of such force, but the assailant continues or resumes the use of such force.”
Thus, in order for the district court to find it was legally appropriate to give the defense of another jury instruction for Spangler, after he became the initial aggressor, there must be evidence Spangler actually believed Mentzer was in imminent danger of death or great bodily harm. There must be evidence of facts to permit a jury to conclude Spangler's belief was reasonable and the use of deadly force was reasonable to protect Mentzer. In addition, there must be evidence from which a rational factfinder could conclude Spangler had exhausted every reasonable means to help Mentzer escape such danger other than use of deadly force. See K.S.A.2014 Supp. 21–5226 ; Rutter, 252 Kan. at 747–48.
Spangler's brief fails to point to specific facts in the record that meet these requirements. In an attempt to show Spangler actually believed Mentzer was in imminent danger, his brief states:
“In [Spangler's] mind, the [men] had followed him up the stairs and into the complex in an attempt to find his individual unit....
“Given what happened—a verbal confrontation with armed, intoxicated and angry men in a darkened parking lot, followed by a chase into the internal confines of the apartment building and a chase up the stairs—it was perfectly reasonable to believe [Tino] and his associates were headed to [Spangler's] apartment for the purpose of entering it and doing harm to [Mentzer.]”
However, Spangler's brief ignores the fact Spangler had no way of knowing Tino was intoxicated. He did observe Tino drinking, but that does not mean Tino was intoxicated. Additionally, even if the men initially chased Spangler and Mentzer upstairs, Spangler and Mentzer entered the locked apartment before the men arrived and the men withdrew and returned to the airlock area. It appears from the evidence, the initial incident was over until Spangler purposely reengaged the men, 2–1/2 floors down from his apartment, with an assault rifle. Finally, the evidence fails to reflect the men knew the location of Spangler's apartment where Mentzer was locked inside. Spangler's brief and the evidence fail to explain why it was necessary or reasonable to leave a locked apartment and go down 2–1/2 flights of stairs to confront the men with a loaded assault rifle in order to prevent imminent danger to Mentzer or to defend his apartment.
Additionally, the record is also insufficient for a rational factfinder to conclude Spangler exhausted every reasonable means to help Mentzer escape the danger posed by the men other than the use of deadly force. For example, neither Spangler nor Mentzer called 911.
Defense of the Building as Spangler's Dwelling
Finally, we address Spangler's argument the entire Building was his dwelling and that this justified the defense of a dwelling instruction because his use of deadly force occurred in the hallway on the third floor of the Building. We disagree and explain why below.
Another panel of this court addressed a similar issue in State v. McConnell, No. 103,976, 2011 WL 6413620, at *5–6 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1133 (2013), when it held defense of dwelling could not be used as a defense against the battery of an individual who was a guest of the defendant's roommate who had the right to invite people into the apartment. Similarly, in this case, Tino was a guest of Gino who had the right to invite Tino into the Building and give him permission to be in the common areas of the Building. Even with the right to be in the common areas of the Building, Tino had no right to enter Spangler's apartment without permission. However, Tino never attempted to enter Spangler's apartment. All of the shots were fired in the hallway of the Building, not from or in Spangler's apartment.
In a similar case, the Minnesota Supreme Court recently affirmed a Minnesota Court of Appeals decision finding the district court did not abuse its discretion by denying the defendant's request for a defense of property instruction for an incident that occurred in an apartment building's hallway. Minnesota's defense of property statute is similar to ours here in Kansas. The court found the defendant
“did not own the building, was not the apartment manager, and identifie[d] no property interest in the hallway that would allow him to exclude other residents or their guests from that space. Further, [the victim] testified that he was in the building at [another resident's] invitation. Because there was no contrary evidence, [the defendant] was not resisting a trespass or unlawful interference with the property.” State v. Deyens, No. A12–2065, 2013 WL 6389594, at *2 (Minn.App.2013), aff'd 852 N.W.2d 255, 259 (Minn.2014).
We find Minnesota's application of this rule persuasive and agree the tenant of an apartment building cannot exclude other tenants of the building or their guests from using the hallways of the building. The right to defend one's apartment does not include the common hallways of the building.
Next, we note the Colorado Court of Appeals held the stairwell of an apartment building was not a part of the defendant's apartment since it was a common area used by other tenants and their guests. As a common area, it was not part of what constitutes a dwelling and the district court did not err in rejecting a defense of dwelling instruction. People v. Cushinberry, 855 P.2d 18, 19 (Colo.App.1992).
In a footnote to Spangler's brief, Spangler goes on to contend that even if Tino was lawfully present within the Building, at the point he began chasing Spangler through the Building Tino was committing a crime and any license he had to be at the Building expired. Spangler cites no authority in support of this point. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v.. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Conclusion
With our finding that the evidence in a light most favorable to Spangler does not support the giving of an instruction for defense of another or defense of a dwelling, we have no need to proceed with considering whether the failure to give the requested instructions was harmless. Here, the district court did not err in denying Spangler's requested instructions on defense of another and defense of a dwelling as the submission of either instruction to the jury was not legally appropriate. We do note the district court did provide the jury with Spangler's requested instruction on self-defense and it still found Spangler's guilty of second-degree murder.
Affirmed.
* * *
ATCHESON, J., concurring.
Given how the parties framed and argued the instructional issue on appeal, I concur in affirming Defendant William Paul Spangler's conviction.