IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,793
STATE OF KANSAS,
Appellee,
v.
NOAH J. GLEASON,
Appellant.
SYLLABUS BY THE COURT
1. An aider and abettor of an inherently dangerous felony does not have to be physically present when the crime is committed to be guilty of felony murder.
2. In a felony murder, where the underlying felony is one inherently dangerous to human life, the foreseeability requirement is established as a matter of law.
3. When PIK Crim. 3d 54.05 is given, PIK Crim. 3d 54.06 does not have to be given for a murder conviction based upon aiding and abetting an inherently dangerous felony.
4. Where the trial court sustains an objection to a prosecutor's question or statement and admonishes the jury to disregard the objectionable testimony, reversal is not required unless the remarks were so prejudicial as to be incurable.
5. An allegation of ineffective assistance of counsel will not be considered for the first time on appeal where the district court has not had the opportunity to conduct the factual inquiry.
6. Where defense counsel is forced to represent codefendants over his or her timely objection, reversal is automatic, unless the trial court has determined that there is no conflict.
7. Absent objection, a defendant must demonstrate that a conflict of interest actually affected the adequacy of the defense counsel's performance.
8. Simultaneously serving as defense counsel in one county and prosecutor in the adjoining county, does not by itself create an actual conflict of interest.
9. A conflict of interest under the Code of Professional Responsibility or the Model Rules of Professional Conduct is not dispositive of whether a criminal defendant had ineffective assistance of counsel.
10. When a trial court fails to inquire into a potential conflict of interest, the defendant must still establish that the conflict of interest adversely affected his or her counsel's performance.
11. A trial court is not required to give reasons for pronouncing different sentences for codefendants convicted of different crimes.
Appeal from Jefferson district court; GARY L. NAFZIGER, judge. Opinion filed April 23, 2004. Affirmed.
Mary D. Curtis, assistant appellate defender, argued the cause and was on the brief for appellant. Noah J. Gleason, appellant, was on a supplemental brief pro se.
Victor J. Braden, assistant county attorney, argued the cause, and Phill Kline, attorney general, was with him on the briefs for appellee.
The opinion of the court was delivered by
NUSS, J.: Noah Gleason appeals his conviction of first-degree felony murder and the resulting life sentence. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.
The issues on appeal and this court's accompanying holdings are as follows:
1. Did the district court commit error when it gave an aiding and abetting instruction to the jury? No.
2. Did the prosecutor's purported violation of a motion in limine also violate Gleason's right to a fair trial? No.
3. Did Gleason receive effective assistance of counsel through trial? Yes.
4. Did trial counsel have a conflict of interest which prohibited his representation of Gleason at the sentencing hearing? No.
5. Was Gleason's sentence appropriate? Yes.
Accordingly, we affirm.
FACTS:
Clarence Rinke was found dead of a gunshot wound on the kitchen floor of his home in rural Jefferson County on October 14, 1999. Approximately 2 1/2 years later, on April 2, 2002, Charolette Bennett, Collin Cady, and the defendant, Noah Gleason, were arrested in connection with Rinke's death.
Cady and Bennett agreed to testify against Gleason as part of a plea agreement. Their testimony, in which they corroborated each other, established the following.
Gleason had purchased marijuana from Rinke and had been in his house; it was Gleason's plan to burglarize Rinke's home to steal money and marijuana. Gleason told Cady that there would be approximately $70,000 at Rinke's house and that he wanted Rinke present to open the safe. Gleason and Cady checked out the Rinke area about a week and a half prior to the actual burglary. Gleason purchased coveralls at Bailey's in Lawrence. He also purchased gloves and masks to conceal their identities; tennis shoes to throw away after the crime; and tote bags to carry the marijuana, money, and their guns. They had two weapons, a .38 revolver and a shotgun, later sawn off, that Gleason purchased at Jayhawk Pawn and Jewelry in Lawrence. They had cell phones, two shotgun shells loaded with bird shot, and two walkie-talkies.
Gleason and Cady decided to have Bennett, who was sexually involved with Cady, serve as their driver and drop them off at the gate of Rinke's house. Bennett was to then lure Rinke out of his house by pushing the button on the gate intercom and telling Rinke that her car was stuck. She was to receive $1,000 for her help.
Cady called Gleason the morning of October 14, 1999, who told him to contact Bennett and meet at Johnny's Tavern in Lawrence at 7 p.m. Bennett and Cady went to Johnny's around 7 p.m., and Gleason arrived as Bennett and Cady were smoking marijuana in Cady's car. The three of them entered the bar, drank a shot of alcohol, and left. They then went to Gleason's property to put on the coveralls and get the weapons. From there they drove to Gleason's former house on 13th Street, near Rinke's, to show Bennett where to later park the car and wait for them. They left around 7 or 7:30 p.m., and she then drove them in Gleason's mother's car to Rinke's property.
Cady, who had been carrying one of Gleason's cell phones, and Gleason then left the car and hid in the woods next to Rinke's driveway. Though Gleason had been recuperating from a serious accident, according to Cady he was in good physical condition at the time. Bennett was given Gleason's other cell phone and eventually received Cady's call telling her to hit the button on the intercom. She then told Rinke over his intercom that she met a guy at a bar who gave her directions to a house which she could not find but her car had gotten stuck. When Rinke offered to pull her out with his tractor, Bennett called Gleason and Cady on the cell phone to inform them that Rinke was on his way to help her.
Rinke came out on his four-wheeler to his barn, and from there drove his tractor to the gate to help Bennett. Before Rinke arrived, Bennett left and drove to Gleason's former property on 13th Street where she smoked marijuana while she waited for Cady to call her to pick them up at Rinke's.
At that point Gleason and Cady entered Rinke's house and began looking for cash or drugs. They heard the tractor coming back, and Gleason mentioned backing out of the plan. Gleason then exited the house to watch for Rinke, and Cady remained in the mud room. Rinke saw Cady and bolted at him, so Cady "bonked" him on the head with the sawed-off shotgun. Rinke grabbed for the shotgun, and it discharged, hitting Rinke.
Cady got scared and took off running. After he left, Rinke, though seriously wounded, called 911.
Cady ran to a heavily wooded area, ejected the spent shell from the shotgun, loaded a live round, and continued running. He heard police sirens and took off his coveralls, wadding them up in the duffel bag and burying them under some leaves and a tree. He continued running and then buried the shotgun in the woods. He then called Bennett on the cell phone and told her to stay put and wait for them.
Gleason arrived at their designated meeting place, Gleason's old house on 13th Street. He told Bennett that Cady had accidentally shot Rinke and that he and Cady had gotten separated. Cady arrived 15 to 20 minutes later very distraught and without the coveralls, the bag, or the shotgun. Gleason yelled at him because he had left behind evidence. Gleason told Bennett if she breathed a word of anything that happened, he would personally kill her.
They stashed their shoes, Gleason's .38 revolver, and Gleason's coveralls on the property. Gleason then drove all of them to Johnny's Tavern, where they stayed until closing time. The next day, they retrieved the evidence and burned it in a trash barrel. On two later occasions, Gleason dropped off Cady to look for the shotgun. Bennett and Cady considered Gleason the ringleader of the plan.
Cady's and Bennett's testimony was fleshed out at the trial by other witnesses and exhibits.
Law enforcement was notified of Rinke's 911 call at 9:41 p.m. and arrived at 10:23 p.m. Based on bloodstain evidence, they determined that Rinke had suffered a blow to the head and bled profusely in the mud room before collapsing in the kitchen. They found brown jersey gloves in the mud room, approximately 75 pounds of marijuana in a freezer, and just over $570,000 in cash elsewhere in the house.
Four days later, on October 18, 1999, the KBI interviewed Gleason. Gleason stated that the last time he had been to Rinke's house was August 1998, but that they had talked on the phone on October 14, 1999, regarding a small cooler that Gleason had borrowed. Gleason claimed he was at Johnny's Tavern from 8:30 p.m. until 12:30 or 1 a.m. the night of October 14.
On or about February 3, 2000, after a discovery by Rinke's neighbor, law enforcement found, in the woods near Rinke's home, coveralls that contained an expended shotgun shell and a pair of brown gloves. The coveralls were wrapped around two bags. The manufacturer of the coveralls verified that similar coveralls were sold at Bailey's in Lawrence.
Approximately 2 years later, on April 2, 2002, the KBI again interviewed Gleason. He denied having any involvement in Rinke's murder, but admitted that he had been to Rinke's house. Gleason admitted buying a weapon, but claimed it had been stolen. He also admitted that he and an individual named Denny Cooper had previously discussed the possibility of robbing Rinke at his home.
The next day, April 3, based upon information from Cady, law enforcement searched a wooded area south of Rinke's home where they located a single-shot, 12-gauge, sawed-off shotgun containing a live round. The shotgun serial number confirmed it was the one Gleason had purchased approximately 2 months before the murder. A recovered shell further demonstrated by its markings that Gleason's shotgun was the murder weapon.
That same day, after Gleason was arrested and jailed, James Collins, Bennett's common-law husband, received a collect call from him. Gleason asked if Bennett had said anything, and when Collins replied that she had not, Gleason said: "You just tell her to keep her fucking mouth shut." Phone records confirmed that for the jail phone available to prisoners, one call was made to James Collins on that day.
Gleason's phone records confirmed that at 9:23 a.m. on the day of the murder, a phone call was made to his residence from the cell phone he had given to Cady. Phone records also revealed that at 4:47 p.m., a call was made from Gleason's cell phone to Rinke's residence. At 6:18 and 6:40 p.m., calls were made to Gleason's residence from the cell phone he had given to Cady. At 8:35, 9:09, 9:14, 9:17, and 9:46 p.m., calls were made from the cell phone Gleason had given to Cady to the cell phone Gleason had given to Bennett.
There were no calls from either Rinke's home phone or cell phone to any of Gleason's phones on October 14. However, Sheryl Gleason, Noah Gleason's ex-wife, testified Rinke called her between 8 and 9 p.m. that day. Rinke told her he had received a strange call from Gleason earlier that day and that Gleason wanted to come by and return a cheap cooler that he had kept for over a year.
A witness named Denny Cooper testified he and Gleason used to work together and smoke marijuana together. Gleason called Rinke, his marijuana dealer, "the old man." During the winter of 1997, Gleason had spoken to Cooper about trying to rob the old man of whatever they could get out of the house. Gleason speculated that there was a small safe in the basement containing up to 200 pounds of marijuana, as well as cash. Cooper did not take Gleason seriously.
By contrast, Gleason's defense contended (1) he had been at Johnny's Tavern that night and (2) he was physically unable to have participated in the events due to injury. However, Stephen Pearson spoke with Gleason after midnight the evening of the murder at Johnny's and testified Gleason was walking normally.
Kevin Horch saw Gleason at Johnny's Tavern on October 14 with a dark-haired woman, later identified as Dianne Cox, now Dianne Gleason. According to him, Gleason and the woman came in around 7:30 p.m. and were there around 2 a.m., when the bar closed. He also saw Cady at Johnny's that night.
Dianne Gleason, Gleason's current wife, testified that they saw each other on October 14 at Johnny's around 7:30 to 8 p.m. She stayed about an hour and a half. Gleason told Dianne that a friend of his had borrowed his car. She did not see Cady or Bennett at Johnny's.
In addition to Pearson, several witnesses testified concerning Gleason's physical condition. His mother testified that Gleason had a serious motorcycle accident in May 1999; he was able to walk, but had a crooked gait. Stephen Munns, an orthopedic surgeon, treated Gleason for broken bones in both of his arms, a broken back, and a crushed pelvis. He last saw Gleason professionally the day before the murder. Munns found that Gleason was continuing to improve, and he anticipated releasing Gleason to return to work after Gleason's appointment in November. An SRS worker who provided Gleason cash, medical services, and food stamps because of his injuries testified he was in pretty bad shape, but hobbled to her office in July 1999.
After the jury convicted Gleason of felony murder on August 2, 2002, his attorney, John Kurth, filed a motion for new trial and judgment of acquittal. Gleason added a pro se amendment which, among other things, alleged Kurth's conflict of interest and his ineffective assistance of counsel based upon deficient performance. Kurth filed a response, to which Gleason filed a pro se rebuttal. Gleason also filed two pro se motions for new counsel and requested a continuance of the September 5, 2002, sentencing hearing to allow new counsel time to prepare. He also filed a K.S.A. 60-1507 motion, again alleging ineffective assistance of counsel. On August 20, the court appointed legal counsel Micheal Ireland to represent Gleason on his pro se motions. Gleason then filed a pro se motion on September 4 for a durational departure from his sentence because of the disparity in sentences among himself, Cady, and Bennett.
All motions were considered and denied by the district court at a hearing on September 5, 2002. The court then sentenced Gleason to life imprisonment, with no possibility of parole for 20 years. That same day, Kurth filed a notice of appeal to this court. On September 6, Gleason filed a pro se "Petition to reopen Investigation." On September 12, he also filed a pro se "Petition for Direct Appeal" asking the district court to notify him when Kurth filed his notice of appeal. On September 19, the district court appointed the appellate defender's office as Gleason's appellate counsel.
ANALYSIS:
Issue 1: Did the district court commit error when it gave an aiding and abetting instruction to the jury?
Gleason raises a number of points in his brief regarding jury instructions, one of which he refined at oral arguments. His arguments can be condensed into two. First, the aiding and abetting instruction should not have been given because it allowed the jury to convict Gleason of felony murder even though he was not physically present at the scene of the crime and was not an "active participant." This erroneously allowed him to be convicted for merely buying the shotgun and loaning his car to Cady. Second, if an aiding and abetting instruction were appropriate to submit, then PIK Crim. 3d 54.06 (which requires foreseeability of the unintended crime of murder) should have been given, and PIK Crim. 3d 54.05 (which contains no foreseeability requirement) should not.
Gleason objected to the 54.05 instruction at the instructions conference but never asked for the 54.06 instruction. Different standards of appellate review therefore apply to each. See K.S.A. 2003 Supp. 22-3414(3). We need not apply the different standards, however, because we hold the proper instruction was given. See State v. Ji, 251 Kan. 3, 24-25, 832 P.2d 1176 (1992).
As we stated in State v. Bryant, 276 Kan. 485, Syl. ¶ 4, 78 P.3d 462 (2003):
"When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some small way erroneous."
Instruction No. 1, restating PIK Crim. 3d 56.02 for felony murder, provided:
"The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. That Collin Cady killed Clarence Rinke;
"2. That such killing was done while in the commission of a burglary in which defendant was a participant; and
"3. That this act occurred on or about the 14th day of October, 1999, in Jefferson County, Kansas.
"The elements of burglary are as follows:
"1. Knowingly entering a building which is a dwelling;
"2. Doing so without authority; and
"3. Doing so with the intent to commit theft herein.
"The elements of theft are as follows:
"1. That Clarence Rinke was the owner of the property;
"2. That the defendant intended to obtain unauthorized control over the property;
"3. That the defendant intended to deprive Clarence Rinke permanently of the use or benefit of the property; and
"4. That the property had value."
Instruction No. 2, which restates PIK Crim. 2d 54.05 and is based upon K.S.A. 21-3205(1), provided:
"A person who, either before or during its commission, intentionally aids another to commit a crime with the intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime."
The remaining instructions were standard PIK Crim. 3d: No. 3 was the presumption of intent instruction (54.01); No. 4 was the burden of proof, presumption of innocence, and reasonable doubt instruction (52.02); No. 5 was the credibility of witnesses instruction (52.09); No. 6 was the accomplice testimony instruction (52.18); No. 7 was the statements and arguments of counsel instruction (51.06); No. 8 was the rulings of the court instruction (51.05); and No. 9 was the concluding instruction (68.01).
Purported requirement of physical presence and active participation
We first observe that Gleason's arguments assume that he was not at the scene of the crime. The State's evidence, however, primarily through the accomplice testimony of Cady and Bennett, amply demonstrated its primary theory, i.e., that Gleason was physically present and was actively participating. He knowingly entered Rinke's house without Rinke's permission with the intent to commit theft. Accordingly, Gleason's purported requirement that his conviction depends upon his presence at the scene of the crime, i.e., as a principal, has been satisfied; his arguments are moot. Under the State's facts, the jury properly convicted him of felony murder. See State v. Chism, 243 Kan. 484, 491, 759 P.2d 105 (1988) (irrelevant which appellant actually shot victim during the attempted burglary, as all participants to an underlying felony are principals to felony murder when death occurs).
Moreover, even assuming Gleason was actually at Johnny's Tavern at the time of the murder, the evidence also amply demonstrated the prosecution's alternate theory, i.e., that he aided and abetted the burglary which resulted in Rinke's death. See K.S.A. 21-3205(1). According to accomplices Cady and Bennett, Gleason was the mastermind. He was the one who knew that Rinke, his marijuana dealer, had large amounts of drugs and money at his house. Indeed, he had previously discussed with Cooper a plan to rob Rinke somewhat similar to the one used in the instant case. Gleason furnished the car and purchased the shotgun that killed Rinke as well as the coveralls, gloves, and tote bag found near the scene. Phone records established that numerous calls were made between the cell phones belonging to Gleason on the date of the murder, particularly the evening when Rinke was actually shot. He made a phone call to Rinke late in the afternoon on the day of the murder, ostensibly to return Rinke's cheap cooler he had been holding for over a year, but possibly to ensure that at the time of the burglary, Rinke would still be home to open his safe containing the money, marijuana, or both. He helped destroy evidence afterward, and twice threatened Bennett, first directly and later indirectly, to keep her mouth shut about the crime.
In short, there is sufficient evidence for a jury to find him guilty as either a principal or as an aider and abettor. Had the jury found that he did not physically participate in the burglary at Rinke's house or did not intentionally aid Cady to commit the burglary, it would not have found him guilty. Under these circumstances, the giving of the aiding and abetting instruction was not error. See State v. Holt, 260 Kan. 33, 44, 917 P.2d 1332 (1996) (though defendant charged as a principal in aggravated burglary, under the facts the jury could find him guilty as an aider and abettor; giving of the aiding and abetting instruction was not error); State v. Parker, 22 Kan. App. 2d 206, 208, 913 P.2d 1236, rev. denied 260 Kan. 1000 (1996) (in conviction of aggravated robbery, sufficient evidence that defendant was a principal and sufficient evidence he aided and abetted, therefore not error to give aiding and abetting instruction).
Nevertheless, Gleason argues that if the jury believed his testimony that he (1) was not physically present and (2) had merely loaned his car to his friend Cady and that his shotgun had been used in the crime, then the jury was misled by the instructions because as a matter of law he could not be convicted of felony murder as an aider and abettor.
We have found no cases addressing Gleason's specific argument that his absence prohibited a conviction of felony murder for aiding and abetting a crime upon which the murder charge was based. We have held in a nonfelony-murder case, however: "An aider and abettor does not have to be physically present when the crime is committed." State v. Pratt, 255 Kan. 767, 773, 876 P.2d 1390 (1994). Cf. State v. Neil, 203 Kan. 473, 474, 454 P.2d 136 (1969) (though defendant was not inside the building being burglarized, he aided and abetted by serving as lookout and is punishable to same degree as principal).
Consistent with these cases, we observe no such "presence" requirement exists in the aiding and abetting statute. K.S.A. 21-3205, provides in relevant part:
"(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
"(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
"(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted of some other degree of the crime or of some other crime based on the same act."
Likewise, no such "presence" requirement exists in our current felony-murder statute. K.S.A. 21-3401 simply defines felony murder at subsection (b) as: "[T]he killing of a human being committed . . . 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." Burglary, the underlying crime in the instant case, is an inherently dangerous felony under K.S.A. 21-3436.
In short, there is nothing in the felony-murder statute or in the aiding and abetting statute which requires the aider and abettor of the underlying inherently dangerous felony to be physically present at the crime scene to be convicted of felony murder. See State v. Hoang, 243 Kan. 40, 45, 755 P.2d 7 (1988) ("There is nothing in our [felony-murder statute] on which to base such a distinction."). As mentioned, our aiding and abetting case law also reveals that no physical presence is required. Given these reasons and given the purpose of the felony-murder rule to deter those engaged in dangerous felonies from killing negligently or accidentally by making all participants to the underlying felony principals we reject such an argument. See State v. Sophophone, 270 Kan. 703, 706, 19 P.3d 70 (2001) (purpose is to deter those engaged in dangerous felonies from killing negligently or accidentally); State v. Chism, 243 Kan. at 491 (all participants to the underlying felony are principals to felony murder when death occurs).
Purported requirement of foreseeability of the murder
In the alternative, Gleason argues as a matter of law that Rinke's death had to be a foreseeable result of the burglary before he could be convicted of the felony murder. Accordingly, he alleges that if an aiding and abetting instruction had to be given, then PIK Crim. 3d 54.06, and not 54.05, should have been given.
PIK Crim. 3d 54.06, which is based upon K.S.A. 21-3205(2), states: "A person who intentionally (aids)(abets)(advises)(hires)(counsels)(procures) another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable." (Emphasis added.)
We find State v. Giddings, 226 Kan. 110, 112-13, 595 P.2d 1115 (1979), on point. There, the defendant was convicted of felony murder, with robbery as the underlying felony. She was physically present during the robbery and victim's death but claimed she was merely an innocent bystander and her boyfriend was solely responsible. As here, the trial court gave an aiding and abetting instruction based upon PIK Crim. 3d 54.05, as previously set forth in the opinion, to which she did not object. It also denied her request to add the "foreseeability" aiding and abetting instruction based upon 54.06. Giddings claimed on appeal that the failure to give such an instruction deprived her of the defense of a lack of foreseeability that the murder might result.
This court rejected her argument, with a lengthy explanation, which stated:
"While it is true that foreseeability is a requirement to the application of the felony murder rule, this requirement is satisfied once it is determined that the felony is inherently dangerous to human life. This point was covered in State v. Branch and Bussey, 223 Kan. 381, 573 P.2d 1041 (1978):
"'To apply the felony murder rule, it is only necessary to establish that defendants committed a felony inherently dangerous to human life and that the killing took place during the commission of the felony. (State v. Guebara, 220 Kan. 520, 523, 553 P.2d 296; State v. Goodseal, 220 Kan. 487, 553 P.2d 279.) A requirement of the felony murder rule is the fact the participants in the felony could reasonably foresee or expect that a life might be taken in the perpetration of such felony. If applied to the facts of the present case, defendants are subject to the felony murder rule and it makes no difference that the killing was accidental.
"'A felon's attempt to commit a robbery sets in motion a chain of events which should cause him to contemplate that a death might occur. This is particularly true of a robber who carries a deadly weapon (as these robbers did) and forces his way into an occupied dwelling. The impulse for an individual to resist the sudden show of force, to defend himself or to come to the aid of a family member or loved one, is a basic human instinct. Under such circumstances every robber who expects human opposition to his quest to steal, as he must when he commits a statutory robbery, is a potential assassin because he knows he may be forced to use his weapon either to carry out his criminal act or to escape without being pursued and captured by his victim. In a felony inherently dangerous to life the intent to accomplish the initial felony is transformed into malice and premeditation upon the death of a human being and the felon is guilty of first degree murder. . . .
. . . .
"'We conclude that any participant in a life-endangering felony is guilty of first degree murder when a life is taken in the course of committing or attempting to commit the felony, whether the death was intentional or accidental, or whether the participant directly caused it to occur. (See State v. Bey, 217 Kan. 251, 535 P.2d 881; State v. Turner, [193 Kan. 189, 392 P.2d 863 (1964)]; State v. Bundy, 147 Kan. 4, 75 P.2d 236.)' (pp. 382-384.)" Giddings, 226 Kan. at 112-13.
The court went on to hold that since the evidence showed the defendant was more than an innocent bystander, i.e., was a possible aider and abettor, "the court did not err in refusing to give the foreseeability instruction requested by appellant." 226 Kan. at 113.
Similarly, our facts demonstrate that Gleason was not an innocent bystander. As a result, there was no error in giving PIK 54.05 to the jury, and in not giving PIK 54.06.
Likewise, in State v. Chism, 243 Kan. 490-91, this court upheld the district court's refusal of a similar instruction which expressed that one who was only an aider and abettor must have been able t