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260 Kan. 821
(925 P2d 839)

No. 74,485

STATE OF KANSAS, Appellee, v. BRIAN K. LITTLEJOHN, Appellant.


SYLLABUS BY THE COURT

In a felony-murder case, evidence of who the triggerman was is irrelevant and all participants are principals. A participant in a felony murder cannot be an aider or abettor and should not be listed as an aider or abettor on a judgment form.

Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Opinion filed October 25, 1996. Affirmed.

Thomas Jacquinot, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

Thomas J. Schultz, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.: This is an appeal by the defendant, Brian K. Littlejohn, from the denial of his motion to determine status, nunc pro tunc. In 1981, Littlejohn participated in a robbery. The robbery victim was killed during the course of the robbery. Littlejohn was convicted of attempted aggravated robbery and first-degree felony murder. These convictions were affirmed by this court in an unpublished opinion filed in 1982. Littlejohn also filed a motion for a new trial, which was denied, and the denial was affirmed in State v. Littlejohn, 236 Kan. 497, 694 P.2d 403 (1984).

In this case, Littlejohn requested that the journal entry of his convictions be altered to indicate, in accordance with K.S.A. 21-4620(a)(2)(C), that he had only been convicted as an aider or abettor, not as a principal, in the 1981 case. The trial court denied this motion based on State v. Thomas, 239 Kan. 457, 720 P.2d 1059 (1986).

Littlejohn concedes that for him to be successful on appeal, this court must overrule or modify State v. Thomas. Interestingly enough, Thomas' convictions and appeal arose out of the same attempted robbery and murder as Littlejohn's convictions. It appears to be without question that Thomas is the one who fired the fatal shots during the attempted robbery.

In Thomas, Justice Lockett, writing for the court, held: "In a felony-murder case, evidence of who the triggerman [was] is irrelevant and all participants are principals." 239 Kan. at 462 (citing State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 [1980]). He went on to say that even though Thomas may have fired the fatal shots, "a participant in a felony murder cannot be an aider [or] abettor." 239 Kan. at 462.

In summary, this court held in the Thomas case that a participant in a felony murder cannot be an aider or abettor and should not be identified as a aider or abettor on a judgment form.

We decline to reverse or modify our holding in State v. Thomas.

Affirmed.

END


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Updated: November 27, 1996.
URL: http://kscourts.org/kscases/supct/1996/19961025/74485.htm.