State v. Westfahl

898 P.2d 87, 21 Kan. App. 2d 159, 1995 Kan. App. LEXIS 97
CourtCourt of Appeals of Kansas
DecidedJune 16, 1995
DocketNo. 71,216
StatusPublished
Cited by6 cases

This text of 898 P.2d 87 (State v. Westfahl) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Westfahl, 898 P.2d 87, 21 Kan. App. 2d 159, 1995 Kan. App. LEXIS 97 (kanctapp 1995).

Opinion

GERNON, J.:

In this appeal of his conviction of criminal solicitation to commit first-degree murder, Randy Westfahl contends the trial court made numerous trial errors which require reversal. We affirm.

In February 1993, Westfahl confronted his ex-wife, Terrie Westfahl, outside his trailer. He approached her with his hand raised and struck at her with an ice pick. Terrie ran, but tripped and fell, and Westfahl, according to a witness, jumped on top of her. The witness, Rick Kirkland, who was dating Terrie, struggled with Westfahl over control of the ice pick. Both Kirkland and Terrie suffered injuries as a result of this confrontation.

Westfahl’s version of these events is in conflict with that of Terrie and Kirkland.

Westfahl’s credibility is substantially undermined by the balance of the record, which indicates that later in February or March 1993, he asked his friend, Jeffrey Yates, if Yates might know of anyone who would be interested in murdering Terrie for money. Yates told his wife about the conversation and eventually contacted the police. A detective gave Yates a business card with a telephone number on it and asked Yates to give the card to Westfahl with the message to call the number “if he wanted something taken care of for him.” The phone number was to a telephone line used by the sheriff’s department in an undercover capacity. Yates gave the card to Westfahl, who subsequently called the number. Over a period of approximately seven weeks, Westfahl and a detective held a series of telephone conversations in which the murder of Terrie was discussed and payment for such a service was negotiated. Most of the conversations were recorded. Some of the conversations were made from a pay phone, at the detective’s instruction, so that officers could secretly photograph Westfahl engaging in the telephone calls from a prearranged location at a prearranged time.

In June 1993, the detective convinced Westfahl that he could arrange Terrie’s murder, and an agreement for compensation was made and Westfahl was given some directions. Law enforcement authorities photographed Westfahl as he arrived at a parking lot at a prearranged time and placed a photograph of Terrie and the children, $2,000 in cash, and a yellow piece of paper with infor[161]*161mation written on it in a vehicle which had previously been described to him.

Later that same evening, the detective telephoned Westfahl and asked him to bring a key that he had previously been directed to leave with the other identifying information. Upon his arrival at the scene, Westfahl was arrested and searched, and a key was found in his possession. He was also carrying a business card with the undercover telephone number on it. The key opened a lock on the front door of Terrie’s home.

Westfahl’s jury trial resulted in a guilty verdict on the charge of solicitation to commit first-degree murder. He was acquitted of aggravated battery charges.

Westfahl first contends the trial court erred in refusing to admit into evidence as exhibits several letters written to Westfahl by his three sons. The letters were written with regard to custody issues unrelated to the criminal case and stated that Terrie had physically abused them.

As part of his defense, Westfahl contended he was distraught over the contents of the letters and was, therefore, susceptible to entrapment by law enforcement. The issue also arose in the context of the defense assertion that the letters should be admitted to demonstrate Westfahl’s state of mind from February through June 1993.

The trial court, in a carefully worded ruling, noted that the letters were extremely inflammatory, that their reliability was in question considering the ongoing custody dispute between the parents of the children, and that the specific instances of conduct in the letters were inadmissible pursuant to K.S.A. 60-422 and K.S.A. 60-446.

Westfahl attempted to raise the issue during his redirect examination, and, at that time, the court found that the jury had heard substantial evidence that Westfahl believed his ex-wife was physically abusing their children. The court then allowed Westfahl to testify about specific instances of abuse and the letters he had received.

The question Westfahl raises on appeal is not the information in the letters, but the physical admission of the letters themselves.

[162]*162Rulings on the admissibility of evidence fall within the discretion of the trial court. Stowers v. Rimel, 19 Kan. App. 2d 723, 726, 875 P.2d 1002 (1994).

We note that after the court ruled that specific instances of abuse would be admissible, the court was never asked to reconsider its earlier ruling precluding admission of the letters. The record reflects that Westfahl was allowed to present to the jury specific instances of alleged abuse of the children by Terrie to support his claim of vulnerability to entrapment by the police. The letters, in our view, were only cumulative to other testimony regarding specific allegations of abuse of the children by Terrie. They hold no significance beyond the information contained therein, which was before the jury. We find no prejudicial error in their exclusion.

Westfahl next argues that the criminal solicitation charge should have been severed from the aggravated battery charge.

K.S.A. 22-3202(1) provides:

“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

“Pursuant to K.S.A. 22-3202(1), charges may be joined if (1) the crimes are the same or similar in character, (2) are based on the same transaction, or (3) constitute parts of a common scheme.” State v. Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994). All of the criteria need not be present in order to join charges of two or more crimes in separate counts of one information or to consolidate in-formations for trial. State v. Thomas, 206 Kan. 603, 608, 481 P.2d 964 (1971).

“Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in the sound discretion of the trial court, within the guidelines established in statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion.” State v. Walker, 244 Kan. 275, 278, 768 P.2d 290 (1989). Moreover, even if the trial court’s consolidation order is determined to be an abuse of discre[163]

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Bluebook (online)
898 P.2d 87, 21 Kan. App. 2d 159, 1995 Kan. App. LEXIS 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-westfahl-kanctapp-1995.