Appeal from Sedgwick district court, TERRY L. PULLMAN, judge. Conviction is affirmed; the BIDS assessment is set aside, and case is remanded with directions.
1. This court's analysis under the Confrontation Clause of the Sixth Amendment to the United States Constitution is undertaken without deference to the trial court's interpretation of the law.
2. After the United States Supreme Court's decision in Davis v. Washington, __ U.S. __, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), the test to determine whether the admission of a hearsay statement violates a defendant's rights under the Confrontation Clause turns on whether the statement is testimonial. If a statement is found to be testimonial, it must be excluded unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant. If a statement is not testimonial, then it does not implicate the Confrontation Clause, and the only consideration before the court is whether it may be admitted under one of the statutory exceptions to Kansas hearsay law.
3. Because the hearsay statement admitted in this case was non-testimonial, the trial court's admission of that statement did not implicate the defendant's rights under the Confrontation Clause of the United States or Kansas Constitution.
4. The accomplice instruction, PIK Crim. 3d 52.18, defines an accomplice as one who testifies that he or she was involved in the commission of the crime with which the defendant is charged.
5. Where there is no evidence to support a conclusion that the witness for whom the defendant requests an accomplice instruction was involved in the crime charged against the defendant, such witness does not fit within the definition of an accomplice and there is no duty to give such an instruction.
6. Under the facts of this case, while defendant's requested instruction that mere presence of an accused at the time and place of the crime alleged is not sufficient to make the accused guilty of a crime was a correct statement of the law, and while an appellate court must usually view the evidence in the light most favorable to the defendant when a proposed instruction has been refused, this court has specifically stated that an instruction that mere presence at the crime scene is not evidence of guilt need not be given when the trial court provides the aiding and abetting instruction in PIK Crim. 3d 54.05.
7. An aiding and abetting instruction informs the jury that intentional acts by a defendant must be proven in order to convict for aiding and abetting; proof of mere association or presence would be insufficient to convict. Therefore, in this case, the refusal to give defendant's requested mere presence instruction was not error.
8. Where the record fails to support the errors raised on appeal by the defendant, there cannot be cumulative error based on those same allegations of error.
9. Where the sentencing judge makes no explicit, on-the-record finding at the original assessment of BIDS fees against a defendant regarding his or her ability to pay the fee or the financial burden the fee would impose, State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), requires that we reverse the BIDS assessment and remand for on-the-record findings. Our reversal and remand does not affect the legitimacy of the defendant's conviction and sentence.
The opinion of the court was delivered by: Davis, J.
Original opinion filed December 8, 2006.
Modified opinion filed March 23, 2007.
Breland Davis appeals his conviction of first-degree premeditated murder, contending that the trial court committed reversible error by: (1) admitting hearsay evidence in violation of his confrontation rights; (2) refusing to give a cautionary instruction regarding accomplice testimony; (3) refusing to instruct the jury that "mere presence" at a crime scene does not necessitate a finding of guilt; and (4) committing cumulative error that requires reversal of his conviction. Davis also claims that the trial court assessed BIDS fees without first making findings regarding his ability to pay or the financial burden the fees would impose. We affirm defendant's conviction and sentence but reverse and remand on the BIDS fees question for a hearing regarding defendant's ability to pay such fees.
The defendant, Breland D. Davis, and the victim, Maurice Williams, were friends and lived close to one another. However, a few days before the murder of Williams, the defendant became upset with Williams because Williams had not stepped in when one of their other friends was "jumped" at Davis' apartment.
John Dickerson was a cousin of the defendant, and according to all the evidence at trial he was involved in the murder of Williams. On the night of the murder, John Dickerson was at the house of Latasha Kines. She testified at trial over defendant's hearsay objection that while she was engaged in sexual intercourse with Dickerson, he received a call on his cell phone. She stated that Dickerson told her the call was from his cousin, the defendant, who she overheard saying on the phone that he "had this nigger in the house and he wanted to kill him." The objection related to the hearsay statement of Dickerson: "It is my cousin Breland." After this call, Dickerson left Kines' house and returned sometime later with defendant and others.
At Dickerson's request, Kines drove him and the others to Davis' house. The defendant followed in Dickerson's vehicle. Once they all arrived at defendant's house, Kines was told to stay in her car while the others went inside. After awhile, she left her car, went up to the house, and entered into the kitchen, where she saw blood on the kitchen floor. Dickerson again told Kines to wait in her car. The others later returned to the cars, and Kines was told to pop the trunk. She did so and felt a heavy load put in the trunk of the car. The defendant told Kines to drive to Grove Park. At the park, Kines again popped the trunk, then waited in the car as defendant and one other person carried something in a blanket; Dickerson waited outside the car. After leaving Grove Park, Kines was told to stop at a dumpster, where she popped the trunk once again and stayed in the car.
Early the next morning, a man looking for aluminum scraps in a dumpster found a rug and some sheets that he thought he would salvage for his sister. When he returned home, he saw that there was blood on the rug and sheets, so he turned them over to the authorities. When the rug was shown on the evening news with a request for information, Williams' grandfather, with whom he lived, called and identified the rug as belonging to Davis. He also filed a missing person report for Williams.
A number of people testified at trial that Davis had bragged to others regarding Williams' murder. Davis' cousin, Lavelle Griffin, also testified that Davis had shown him the gun used to kill Williams, a .410 shotgun, and had explained that they put a potato over the gun to muffle the sound when Williams was shot. In addition, Griffin overheard that Williams' body was buried in Grove Park.
The victim's blood was found at the defendant's apartment and on Davis' shoelace. The victim's body was found at Grove Park, where Kines stated that Davis and the others had dumped it the night of the victim's murder. The blood on the rug and sheets found in the dumpster matched the victim's DNA.
1. Admission of Hearsay Evidence in Violation of Confrontation Rights
The defendant claims that the admission over his hearsay objection of Latasha Kines' trial testimony that Dickerson told her, "It is my cousin, Breland," violated his rights of confrontation under the United States and Kansas Constitutions. His argument rests upon State v. Bratt, 250 Kan. 264, 270, 824 P.2d 983 (1992) (citing Idaho v. Wright, 497 U.S. 805, 111 L.Ed. 2d 638, 110 S.Ct. 3139 ; Ohio v. Roberts, 448 U.S. 56, 65-66, 65 L.Ed. 2d 597, 107 S.Ct. 2531 ). More specifically, the defendant argues that there was no showing that the hearsay statement was sufficiently reliable, either because it was subject to a firmly rooted hearsay exception under Kansas law or that it had other particularized guarantees of trustworthiness.
The trial court admitted Kines' testimony under the hearsay exception in K.S.A. 60-460(d)(3), explaining:
"Under the grounds alleged under K.S.A. 60-460(d)(3), [i]f the declarant is unavailable, I find that Mr. Dickerson is unavailable, as a witness, by the declarant at a time when the matter had been recently perceived by the declarant. It was almost, again, based on the purported testimony I have heard, it is almost contemporaneous with the statement being made. Mr. Dickerson's statement of what Mr. Davis had said was almost contemporaneous with that statement. While the declarant's recollection was clear, I think that would be. And was made in good faith. I have no reason to find that it wasn't made in good faith, and, again, under the circumstances shown by the purported evidence, based on statements of the attorneys, I find no incentive to . . . falsify or distort. So under (d)(3), I would allow the statement of Ms. Kines."
The above findings echo the requirements of K.S.A. 60-460(d)(3):
"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
"(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made . . . (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good ...