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No. 101,954 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. CHRISTOPHER M. HAMON, Appellant.

SYLLABUS BY THE COURT 1. In determining if probable cause exists for the issuance of a search warrant, an issuing magistrate must use his or her common sense to decide, based on all of the circumstances set forth in the supporting affidavit, whether a fair probability exists that evidence of a crime will be found in a particular place.

2. A deliberate omission of information about an informant's credibility will not render a search warrant invalid if the supporting affidavit, even with the omitted material added to it, establishes sufficient probable cause to issue the warrant.

3. To justify instructing a jury on the offense of attempted voluntary manslaughter arising from sudden quarrel or heat of passion, there must be evidence of severe provocation.

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4. A person is justified in using deadly force only if he or she reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or to a third person.

5. The use of deadly force can only be justified when a person reasonably believes that the other person posed an imminent threat of death or great bodily harm and when a reasonable person in the same circumstances would believe that the use of deadly force was necessary.

6. A person who initially provokes an incident is not justified in using deadly force unless he or she exhausts every reasonable means to escape such danger or clearly indicates his or her desire to terminate a struggle.

7. It is not error for a district court to give the eyewitness identification instruction found in PIK Crim. 3d 52.20 because the Kansas Supreme Court has not explicitly rejected any of the factors that the instruction incorporates.

8. A defendant only has a constitutional right to counsel at critical stages of the proceedings. Critical stages are those that amount to trial-like confrontations during which counsel would help the accused in meeting his or her adversary.

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9. A defendant is not entitled to a hearing and the appointment of counsel on every posttrial motion.

10. To warrant the appointment of substitute counsel, a defendant must show justifiable dissatisfaction with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant.

Appeal from Johnson District Court; JOHN ANDERSON III, judge. Opinion filed September 2, 2011. Affirmed.

Matthew J. Edge and Theresa L. Barr, of Kansas Appellant Defender Office, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Steve Six, attorney general, for appellee.

Before HILL, P.J., GREEN and BRUNS, JJ.

BRUNS, J.: Christopher M. Hamon appeals from his convictions of two counts of attempted second-degree murder, one count of aggravated robbery, and one count of felony theft. We conclude that the search warrant issued for Hamon's motel room was based on probable cause because the supporting affidavit provided a substantial basis for the issuing judge to determine that there was a fair probability that evidence would be found in the place to be searched. We further conclude that Hamon was not entitled to jury instructions on attempted voluntary manslaughter or self-defense because he shot an unarmed man on the ground several feet away. We also conclude that the eyewitness identification instruction used at trial was not given in error. Additionally, we conclude that Hamon was not entitled to another attorney at the hearing on his posttrial motion to 3

dismiss. Finally, we conclude that it was appropriate to use Hamon's criminal history score to calculate his sentence. Thus, we affirm the convictions and sentence. FACTUAL AND PROCEDURAL BACKGROUND On the morning of December 15, 2006, two people were shot within a few blocks of each other in Merriam, Kansas. Earlier that morning, a green Daewoo station wagon had been stolen from a residence in Kansas City, Missouri. The station wagon was found later that morning, with the engine running and the driver's door open, in a ravine adjacent to Interstate 35 in Merriam.

Around 9 a.m., less than two-tenths of a mile from where the stolen station wagon was found, Mark Elliott was making a purchase at Stone Solutions, located at 5125 Merriam Drive. Elliott, a landscape contractor, and Lonnie Roberts, the owner of Stone Solutions, heard the engine of Elliott's pickup truck revving up. Upon running out of the business, Elliott and Roberts found a man and a woman sitting in the truck with the engine running.

Elliott opened the passenger door and pulled the female out of the truck. He then reached through the passenger door and tried to get the keys out of the ignition. At the same time, Roberts attempted to pull the man in the driver's seat out of the truck. Elliott grabbed the man by the collar, and the two struggled. As the struggle continued outside the truck, Elliott saw the man had a handgun.

At some point during the struggle, the handgun came loose and slid along the ground. Elliott crawled on his hands and knees toward the handgun, but the man jumped on his back, pinned him on the ground, and ran towards the handgun. At that point, Elliott grabbed the man's leg, and the man's shoe came off. Once the man reached the handgun, he turned back towards Elliott--who was on the ground about 10 feet away--and fired at 4

him. Although Elliott, who was unarmed, tried to roll away when he saw the man point the handgun at him, he was shot in the shoulder.

Following the shooting, the man left the woman at the scene and ran north on Merriam Lane. The police were called, and the woman was arrested. Following her arrest, the woman initially gave the police the wrong name when identifying herself. In addition, she initially identified the man who shot Elliott as Gary McElroy. After several hours of questioning, however, the woman finally admitted that her name was Rachelle Bagby and that the man who shot Elliott was Christopher Hamon.

The same morning, a worker reported that a man was attempting to break into All Ridd Pest Control, located near Stone Solutions. The worker observed a man stand outside the business for 2 to 5 minutes and then go inside the basement. While the worker was calling the police, the man unsuccessfully tried to get inside All Ridd's office and then ran away.

A few minutes later, Beth Snell, the owner of Ryukyu Martial Arts, located at 5005 Merriam Drive, had just parked her red Ford Escort in the business' parking lot. Before Snell could get into the business, a man came up behind her and shoved her to the ground. The man, who had a gun in his hand, demanded that Snell give him the keys to her car, and she complied.

Snell's boyfriend, William Wiswell, heard her scream and ran out of Ryukyu to see what was going on. Snell told Wiswell a man was trying to steal her car. When Wiswell ran towards the car, the man pointed a handgun at him and fired. Wiswell was struck in the throat and fell to the ground. The man then took the Ford Escort and drove away.

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The Ford Escort stolen from Snell was found 2 days later in Kansas City, Missouri. On the same day, it was discovered that Hamon was staying in room 227 at a Days Inn motel in Kansas City, Missouri, and he was arrested at the motel on an arrest warrant issued from Johnson County. In making the arrest, the police observed several rounds of live ammunition lying on the bed, and they secured the room.

Later that day, a search warrant for room 227 of the Days Inn was issued by a judge in Clay County, Missouri. In executing the search warrant in room 227 of the Days Inn, the police found several personal items belonging to Beth Snell, a .25 caliber handgun, a handgun magazine with two bullets, and a bag containing bullets. The police also found a news article in the room with the headline: "Two men are wounded in Merriam carjacking." The article contained red handwriting that indicated it was from the Kansas City Star, Saturday, December 16, 2006.

Thereafter, Hamon was charged in Johnson County with attempted second-degree murder of Elliott, attempted second-degree murder of Wiswell, aggravated robbery of Snell, and felony theft of the Daewoo station wagon. Prior to trial, Hamon moved to suppress the evidence found as a result of the search of room 227 of the Days Inn. He argued that the evidence obtained should have been suppressed because the affidavit in support of the search warrant lacked probable cause. The district court denied the motion, and the case proceeded to trial.

At trial, Hamon requested a jury instruction for a lesser included offense of attempted voluntary manslaughter of Elliott. In addition, Hamon argued his shooting of Elliott was justified, and he requested a self-defense instruction. The trial judge denied both requests, and the jury convicted Hamon on all counts.

Following the verdict, Hamon filed a pro se motion to dismiss his appointed attorney, claiming that she had told him that the lesser included instruction would be 6

given. He also claimed that had he known that the lesser included instruction was not guaranteed, he would have taken a plea instead of going to trial. The district court, however, found no reason to dismiss the attorney and found that there "are no guarantees" regarding how a judge may rule on any particular issue.

Ultimately, Hamon was sentenced to 228 months for the attempted second-degree murder of Wiswell, 61 months for the attempted second-degree murder of Elliott, 61 months for aggravated robbery, and 7 months for theft. The district court ordered that the sentences run consecutively, for a controlling term of 357 months' imprisonment. The district court also ordered 36 months postrelease supervision and ordered Hamon to pay $26,134.34 in restitution to the victims.

ISSUES PRESENTED AND ANALYSIS On appeal, Hamon presents six issues: 1) whether the district court erred in denying his motion to suppress evidence; 2) whether the district court erred when it denied his request for an attempted voluntary manslaughter instruction; 3) whether the district court erred when it denied his request for a self-defense instruction; 4) whether the district court erred in giving the eyewitness identification instruction; 5) whether the district court denied his right to counsel; and 6) whether the district court erred in using his prior criminal history in determining the sentence. We will address these issues in the order they were presented.

The District Court Properly Found that the Search Warrant Affidavit Established Probable Cause and Properly Refused to Suppress the Evidence Found in the Search. "[S]uppression of evidence obtained pursuant to a [search] warrant should be ordered only on a case by case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." United States v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). 7

"Under the holding in United States v. Leon, [citation omitted], the Fourth Amendment exclusionary rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: 1) the magistrate issuing the warrant was deliberately misled by false information; 2) the magistrate wholly abandoned his or her detached or neutral role; 3) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or 4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized." State v. Hoeck, 284 Kan. 441, Syl.

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