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State v. Dixon6/3/2005
ense instruction include the following: In State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996), the defendant fired four or five shots at the victim. One bullet struck him in the arm, another severed his spine and paralyzed him from the waist down. In State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996), the defendant shot a police officer in the arm. The bullet did not strike bone. The officer missed 3 days of work on account of the injury. In State v. Moore, 271 Kan. 416, 23 P.3d 815 (2001), the defendant used a hot iron to burn his victim's legs, breast, and inner thighs. He was charged with intentionally causing great bodily harm or disfigurement. In Brice, the defendant shot his victim in the upper right thigh. Missing bone, major arteries, veins, and nerves, the bullet exited through the victim's right buttock. He missed a week and a half of work as a result of the injury.
In the present case, each of the three victims suffered an injury with long-term effects. Wright had undergone months of physical therapy for a herniated disk and was considering options for further treatment. Woodling had several herniated lumbar disks and had received an epidural injection to treat his pain. Medlen lost his job on account of the injury to his hand and, after many months, was still restricted to light duty. By the measure of lasting effect, the injuries of the victims in this case are more severe than those in Whitaker and Brice where the victims missed 3 days and a week and a half of work respectively. By any measure the injuries of the victims in this case are not slight, trivial, minor, or even moderate. The evidence would not support lesser included offense instructions in Counts 4, 5, and 9, and the district court did not err in refusing to give them.
4. DID THE QUESTIONS AND COMMENT ON DIXON'S CONTACTING COUNSEL CONSTITUTE PROSECUTORIAL MISCONDUCT?
The prosecutor asked four witnesses about Dixon's telephone calls to and a meeting with his attorney shortly after the explosion and weeks before Dixon was charged and arrested. The timing of the contacts is significant to defendant's complaint because it implies the question of why someone who was not guilty would contact his or her attorney before being arrested or questioned or even contacted by police. The evidence was elicited as follows:
Jerry Hall testified that after he, Dixon, Griffin, and Hayes returned to Topeka the morning of July 29, Hayes and he went to his apartment. Later in the day, Dixon returned to Hall's place. Dixon was nervous and agitated. He called someone trying to find out what was on the Internet about news in Emporia. The prosecutor asked: "Who else did he call?" Hall testified that Dixon called his attorney. The prosecutor asked the attorney's name, and Hall answered that it was Joe Johnson. The following questions and answers occurred:
"Q: "Let's talk a little bit about -- you said the defendant called his attorney?
"A: Yes.
"Q: Was it your attorney?
"A: No.
"Q: Okay. Did the defendant ask you to go anywhere with him --
"A: Yes, he did.
"Q: -- after, the next day?
"A: Yes, he did.
"Q: Where was that?
"A: To his -- to his attorney's office.
"Q: That would be Joe Johnson?
"A: Yes.
"Q: Is that an attorney here in Topeka?
"A: In Topeka.
"Q: Did you go to the office with the defendant?
"A: Yes.
"Q: How did you get there?
"A: Wallace [Dixon] came, picked me up.
"Q: And why did he say he needed to go talk to this attorney?
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Kansas Personal Injury Attorneys
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