Appeal from Sedgwick district court; CLARK V. OWENS II, judge.
1. If there is testimony indicating a sufficient similarity between the weapon used to commit the charged crime and a weapon shown to be in the defendant's possession, the lack of testimony positively identifying the weapon as that used in the crime goes to the weight, not the admissibility, of the evidence.
2. When a defendant is charged with and convicted of murder in the first degree, any error in the jury instructions related to the lesser included crime of manslaughter becomes immaterial.
3. When the jury is instructed on lesser included crimes of first-degree murder, the jury should first determine whether the State has proven first-degree murder. If the jury agrees that the State has proven first-degree murder, it does not have to consider the lesser included crimes.
4. An Allen-type instruction, see Allen v. United States, 164 U.S. 492, 41 L.Ed. 528,
The opinion of the court was delivered by: Rosen, J.
Terry Scott-Herring appeals his conviction for first-degree, premeditated murder, claiming that the district court erroneously admitted evidence and improperly instructed the jury; that the prosecutor committed misconduct; and that he was denied a fair trial by cumulative errors.
Scott-Herring was convicted of murdering his 23-year-old girlfriend, Mutindi Wanjiku Njoroge, or Jiku as she was known to her friends. Police officers found Jiku dead in the driver's seat of her car at approximately 2:35 a.m. on April 24, 2004. The officers found Jiku's car parked along a residential street with the lights off and the engine running. Jiku had been shot twice in the forehead. She had also been stabbed several times near her right ear.
Crime scene investigators found a wallet with Terry Scott-Herring's driver's license in the center console of Jiku's car. The console also contained love letters from Jiku to Scott-Herring and a kitchen-style steak knife. On the floorboard near Jiku's foot, officers found an empty condom wrapper and a man's gold nugget ring. Although they did not find a gun or any cartridge casings inside the car or in the vicinity of the car, they retrieved a bullet from the driver's door.
Police notified Jiku's mother, Rosemary Njoroge, who informed them that she had received a strange call from Scott-Herring's mother, Barbara Becknell, at about 2:40 to 2:45 a.m. the same morning. Barbara said she was calling to find out if Jiku was home. According to Barbara, Jiku had left Barbara's house an hour earlier and had promised to call when she got home to say she was safe. Barbara told Jiku's mother that Jiku had just called her to say she was home safe. Barbara, however, was concerned because the number on her caller ID was unlisted rather than Jiku's number. Jiku's mother told Barbara that Jiku was not home.
Police initially suspected Napoleon Sanchez, Scott-Herring's cousin, because Jiku had applied for a protection from abuse (PFA) order against Napoleon 3 days before she died. Napoleon and Jiku dated for several months until March 2004, when Napoleon left Wichita to visit his father in California. Napoleon and Jiku had a violent relationship marked by verbal and physical altercations.
While Napoleon was in California, Jiku began dating Scott-Herring. Napoleon returned to Wichita a few days before Jiku was killed and was angry about the breakup with Jiku. Three days before Jiku was murdered, Napoleon hit Jiku in the face and told her he would kill her, causing Jiku to seek the PFA.
The day before the murder, Jiku told her mother that she was afraid Napoleon would kill her and that she was going to hide from him at a girlfriend's house. Jiku also went to the police station and asked them to serve the PFA on Napoleon because he had a gun and she was afraid he would kill her.
Because of Scott-Herrings' friendship with Napoleon, police decided to interview him. After their interview with Scott-Herring, the police eliminated Napoleon as a suspect. According to Scott-Herring's statement, Napoleon had an alibi for the time of the shooting. Napoleon was with a group of people at another location. Police later confirmed this information with other witnesses.
However, Scott-Herring told police that Jiku was with him the day before and the night she died. They had driven Jiku's car to a friends' house, and Jiku waited in the car while Scott-Herring went inside and made arrangements with Napoleon and his friend, Jerell, to meet some girls from Salina later that night. Scott-Herring then took Jiku to his mother's house and left her there while he drove her car back to pick up Napoleon and Jerell.
Scott-Herring told police that he and his friends, Napoleon and Jerell, were planning to party with some girls from Salina at a vacant house two doors down from Barbara's house known as the Red House. Scott-Herring told police that he drove Napoleon back to the Red House, and Jerell followed them in another car with the girls from Salina. Instead of going inside the Red House with the rest of the group, Scott-Herring walked to his mother's house to return Jiku's car keys. While at his mother's house, Scott-Herring got into an argument with Jiku about the car. Scott-Herring and Jiku both got in the car and drove around. Things calmed down and Scott-Herring and Jiku began to express physical affection for one another. However, the two then resumed arguing when Scott-Herring refused to spend the night with Jiku and wanted to take her car to go party with his friends and the girls from Salina at the Red House. Scott-Herring told the police that he got out of Jiku's car at another friend's house, where he hung out for about 20 minutes. Scott-Herring and his friend then walked to the Red House, where they saw Napoleon and Jerell outside with two girls from Salina.
The State charged Scott-Herring with one count of first-degree, premeditated murder. At trial, Napoleon testified that he had given Scott-Herring an old Smith and Wesson .38 caliber revolver before he left for California. Over Scott-Herring's objection, Napoleon identified a photograph of Scott-Herring holding the gun and testified that Scott-Herring had the gun with him on the night Jiku was murdered. Another witness also testified that she saw Scott-Herring with a gun the week before Jiku's murder and identified the gun as the same gun Scott-Herring was holding in the photograph. A firearms expert testified that Jiku was killed by a .38 Special caliber bullet that could have been fired from four types of revolvers, two Smith and Wesson models and two models of a Brazilian-made Smith and Wesson ...