December 12th. The Kansas Supreme Court has handed down its decision in State v. Jones (No. 97,065). In a decision by Justice Beier, the Court held that Brad Jones is not entitled to a new trial for his conviction for the felony-murder of Jonathan U. Jones had argued that he was entitled to this because the District Court suppressed a line of questioning relating to U’s widow contacting an attorney to discuss a malpractice suit against the hospital that had treated her husband. The District Court had ruled that this conversation was privileged. Jones also sought a new trial on the grounds that U’s widow had later filed the malpractice suit (newly discovered evidence) and that the jury instruction did not include Jones’ requested option of a lesser-included offense. The decision was unanimous, except that Justice Johnson penned a brief concurrence, expressing disquiet with the way in which the last argument was dispensed with.
The facts of the case were not in dispute. Jones had attempted to take Ruth Peck’s purse from her in an Overland Park Target parking lot. U intervened and Jones fled to his truck. U reached in the window and Jones drove off, eventually hitting a wall and pinning U to it. Jones was apprehended soon afterwards after another person gave chase. U died 18 days later. Jones pled guilty to all the charges stemming from the robbery. Only the felony-murder charge went to trial.
At trial Jones argued that he was innocent of felony-murder (in laymans terms, a death caused by the commission of a felony), because negligence at Overland Park Regional Hospital was really responsible for U’s death. Jones’ attorney sought to question Mrs U about whether she had spoken to an attorney about filing a malpractice suit. The District Judge suppressed this line of questioning on the grounds of attorney-client privilege. Jones argued on appeal that this was a reversible error. The Supreme Court disagreed and rejected his argument, but did not rule on whether the District Judge was correct or not. Rather, it held that even had this evidence been admitted it would have had no impact on the result of the trial since whether Mrs U felt that medical malpractice caused (or contributed to) her husband’s death was immaterial to the jury’s task of determining based on medical testimony whether Jones was responsible.
The Court also dismissed an attempt to secure a new trial on the grounds of newly discovered evidence (Mrs U’s filing the lawsuit), since that had not been addressed by the District Court. It suggested that a motion in District Court was the appropriate place for that argument.
Finally, the Court rejected Jones’ argument that the jury should have been instructed on an alternative, lesser charge to convict on. It did so on the grounds that for felony-murder the general rule that lesser-included offenses be included in jury instructions if the defendant requested does not apply. Instead it should only apply if the evidence of the underlying felony is extremely weak, which was not the case here since Jones had pled guilty to the robbery.
It is this that Justice Johnson objected to in his concurrence. He notes that this is a court-made rule which stands opposite to all other circumstances where lesser-included offenses must be instructed on. Instead Johnson suggests that a better rule would be that there are no lesser-included offenses of felony-murder, since the underlying felony introduces the elements of intent absent from lesser homicide charges.