Appeal from Wyandotte district court; THOMAS L. BOEDING, judge.
1. Multiplicity is the charging of a single offense in more than one count of a complaint or information. It creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
2. Allegations of multiplicity may be considered for the first time on appeal in order to serve the ends of justice and prevent a denial of fundamental rights.
3. A claim of multiplicity raises a question of law subject to unlimited appellate review.
4. When each contested count in a criminal information or indictment charges a violation of the same statute, a reviewing court is faced with a unit of prosecution question rather than a multiple description question. The legislature's definition of the scope of conduct composing one violation of the statute, or one unit of prosecution, controls. There can be only one conviction for each unit of prosecution. The determination of the contours of the definition and its coverage raise questions of statutory interpretation, issues of law reviewable de novo.
5. When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it. The court will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written.
6. K.S.A. 21-3439(a)(6) provides that a person commits capital murder if he or she intentionally and with premeditation kills "more than one person as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct." Under this definition, in contrast to those for other offenses and for other forms of capital murder, the legislature has proscribed the unit of prosecution as the murder of more than one person in one act or transaction or in related acts or transactions.
7. On the facts of this case, under K.S.A. 21-3439(a)(6), the defendant could be convicted of only one count of capital murder for the killing of four persons.
8. If a journal entry fails to accurately reflect what actually transpired in a courtroom proceeding, it is the duty of the district judge to correct the journal entry nunc pro tunc.
9. When reviewing a district judge's decision on whether to suppress a confession, an appellate court employs a substantial competent evidence standard to the factual underpinnings of the decision; the ultimate legal conclusion drawn from those facts is reviewable de novo. The appellate court does not reweigh evidence, pass upon the credibility of witnesses, or resolve conflicts in the evidence.
10. To determine whether a confession is voluntary, a district judge evaluates the totality of the circumstances. The burden of proving that a confession is admissible is on the prosecution, and the required level of proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers conducting the interrogation. The essential inquiry is whether the confession was the product of the free and independent will of the accused. Coercion of an accused's confession can be mental as well as physical.
11. In order for a promise of some benefit to the accused, including leniency, to render a confession involuntary, the promise must concern action to be taken by a public official. The promise must be such as would likely cause the accused to make a false statement to obtain the benefit of the promise, and the promise must be made by a person whom the accused could reasonably believe to have the power or authority to execute it.
12. On the facts of this case, the defendant's confession was properly admitted. The police officers' advice to tell the truth did not render the confession involuntary; their assurances that defendant was not the primary suspect did not amount to psychological coercion that overbore defendant's will; and their promise that defendant's cooperation would be noted to the prosecutor was not likely to cause defendant to make a false statement.
The opinion of the court was delivered by: Beier, J.
Affirmed in part, reversed in part, and remanded with directions.
In this direct appeal from his convictions on three counts of capital murder, one count of attempted first-degree murder, and one count of criminal possession of a firearm, defendant Errik Harris claims that the counts of capital murder were multiplicitous; that the district court's judgment must be amended to reflect his innocence in the murder of one victim; and that his confession should have been suppressed as involuntary.
Factual and Procedural Background
Defendant and Darrell Stallings were involved in a series of crimes in the early morning hours of June 10, 2002, in Wyandotte County. Five people were fatally shot; a sixth was injured. The series of crimes apparently had their genesis in an aggravated battery of Stallings' mother 2 months earlier. Stallings believed that his one-time friend, Anthony Jennings, had participated in the incident.
On the evening of June 9, 2002, defendant joined Stallings at a party; the two men left the party with Patrice "Mimi" Hickmon, one of Stallings' girlfriends, who was the sister of Anthony Jennings and Tiana "Trina" Jennings. The three picked up Hickmon's friend, Tameika Jackson, and went to a club. At the club, the group encountered Anthony Jennings, with whom Stallings exchanged words. There was no further conflict at that time.
Defendant, Stallings, Hickmon, and Jackson left the club and stopped at a gas station, where defendant argued with a man named Joe Garrett. Garrett left in a car driven by Joe Watson. Stallings, defendant, and the women followed Watson's car, and Stallings began firing shots at Watson's car with his 9 mm handgun.
Stallings then drove to the home of another of his girlfriends, Rhonda Gray, where he retrieved a .40 caliber handgun and ammunition for both guns. Stallings, defendant, Hickmon, and Jackson got into Gray's car. Stallings then drove to a hotel and left Hickmon and Jackson there. Stallings armed defendant with the .40 caliber handgun and then drove to the home of Samantha Sigler, where he knew Anthony Jennings could be found. Defendant followed Stallings in another car.
At about 2:30 a.m. on June 10, while defendant waited in his car in the driveway, Stallings knocked on Sigler's door. Anthony Jennings answered, and the two men went inside. Sigler had three guests: Anthony Jennings, Melvin Montague, and Destiny Wiles. While inside, Stallings shot Montague four times with his 9 mm handgun. Anthony Jennings, Sigler, and Wiles ran out of the house; and Stallings and defendant shot at them. Anthony Jennings was hit by Stallings and defendant but survived.
Montague, Sigler, and Wiles died. Sigler had been shot five times; three of the bullets in her body were from a 9 mm gun; a .40 caliber round was recovered from the back of her head. Wiles was shot six or seven times; six .40 caliber shell casings were found next to her body.
At 3:30 a.m., Stallings, followed by defendant, arrived at Trina Jennings' home. Together they kicked the main door in. Defendant stayed by the door, but Stallings went inside and forced James Carter, a visitor in Jennings' home, to lie down. Stallings found Trina Jennings, 8 months pregnant, hiding in a closet; and he shot her several times. He then retrieved the .40 caliber gun from defendant and shot Trina Jennings several more times.
After leaving Trina Jennings' home, defendant drove back to Gray's house, switched cars, and drove to the home of his fiancée, Emma Odom. He arrived there about 4 a.m.
Stallings, on the other hand, took Carter home. He then returned to the hotel and picked up Hickmon and Jackson and his son. While driving Jackson home, Stallings and Jackson argued; Stallings told Jackson to get out of the car. He then shot and killed her.
After these crimes, Stallings left town, going to Omaha with Hickmon. However, defendant turned himself in to authorities on June 11, 2002, and gave a statement to police. He and Stallings were charged jointly in an information filed that day. The State filed an amended information on June 13.
On August 20, 2002, the State filed its second amended information. Its Count I charged defendant and Stallings with criminal discharge of a firearm at an occupied motor vehicle, contrary to K.S.A. 21-4219.
The second amended information's Count II charged defendant and Stallings with "unlawfully, intentionally, and with premeditation kill[ing] Melvin Montague and others, to wit: Destiny Wiles, Samantha Sigler, Tiana 'Trina' Jennings, and Tameika Jackson." It further alleged that the premeditated and intentional killing of Montague was part of the same act or transaction or one of two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct, in violation of K.S.A. 21-3439.
Count III charged defendant and Stallings with "a further, different and third count" of "unlawfully, intentionally, and with premeditation kill[ing] Destiny Wiles and others, to wit: Melvin Montague, Samantha Sigler, Tiana 'Trina' Jennings, and Tameika Jackson." This count also further alleged that the premeditated and intentional killing of Wiles was part of the same act or transaction or one of two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct, in violation of K.S.A. 21-3439.
Count IV charged defendant and Stallings with "a further, different and fourth count" of "unlawfully, intentionally, and with premeditation kill[ing] Samantha Sigler and others, to wit: Melvin Montague, Destiny Wiles, Tiana 'Trina' Jennings, and Tameika Jackson." This count also further alleged that the premeditated and intentional killing of Sigler was part of the same act or transaction or one of two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct, in violation of K.S.A. 21-3439.
Count V charged defendant and Stallings with "a further, different and fifth count" of "unlawfully, intentionally, and with premeditation kill[ing] Tiana 'Trina' Jennings and others, to wit: Melvin Montague, Samantha Sigler, Destiny Wiles, and Tameika Jackson." Again, this count further alleged that the premeditated and intentional killing of Trina Jennings was part of the same act or transaction or one of two or more acts or transactions ...