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Syllabus by the Court
1. K.S.A. 22-3414(3) creates a procedural hurdle when a party fails to object because the statute establishes a preservation rule for jury instruction claims on appeal. It provides, in part, that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in the district court.
2. To establish that the giving or failure to give a jury instruction was clearly erroneous, the reviewing court must determine whether there was any error at all. This requires demonstrating that giving the proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal.
3. When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.
4. A defendant challenging the sufficiency of the charging document for the first time on appeal must show the alleged defect (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.
5. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary [298 Kan. 633] authority is akin to failing to brief the issue. An issue not briefed by the appellant is deemed waived and abandoned.
6. It has long been the law of Kansas that an accusatory pleading in a criminal action may, in order to meet the exigencies of proof, charge the commission of the same
offense in different ways. Furthermore, in an alternative means case, the State is not required to elect one means or another when presenting its case to the jury or when requesting jury instructions.
7. When the sufficiency of the evidence is challenged in a criminal case, this court reviews such claims by looking at all the evidence in a light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. In determining whether there is sufficient evidence to support a conviction, the appellate court generally will not reweigh the evidence or evaluate the credibility of witnesses.
8. A letter of additional authority pursuant to Supreme Court Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50) is reserved for citing significant relevant authorities not previously cited in the party's brief which come to the party's attention after briefing. Appellate courts will not consider new issues raised for the first time in a party's Rule 6.09(b) letter.
9. Cumulative trial errors, when considered collectively, may require reversal of the defendant's convictions when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. If the evidence is overwhelming against the defendant, however, no prejudicial error may be found based upon this cumulative error rule. Furthermore, a single error cannot constitute cumulative error.
Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A. Maughan, of the same firm, was with her on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[298 Kan. 634]
A jury found Kedrin Littlejohn guilty of felony murder, aggravated robbery, aggravated kidnapping, and aggravated assault. The district court sentenced Littlejohn to a hard 20 life sentence plus a consecutive sentence of 277 months' imprisonment.
On appeal, Littlejohn raises several issues regarding the jury instructions given in this case. Additionally, he argues that (1) the district court erred in denying his motion to suppress the statements he made to detectives after being Mirandized; (2) the complaint filed against him was defective because each crime charged contained alternative means for committing the crime alleged; (3) the State presented insufficient evidence to convict him of any crime; and (4) cumulative error denied him his right to a fair trial.
We find that none of the issues raised by Littlejohn have merit; accordingly, we affirm his convictions.
On the morning of May 12, 2008, Littlejohn and Shannon Bogguess went to Jim Collins' used vehicle dealership in Wichita with a handgun, intending to take money from Collins by force. Bogguess and Littlejohn confronted Collins inside the dealership. When Collins resisted, Bogguess shot him in the leg. Bogguess and Littlejohn then put Collins in a Hummer motor vehicle that was at the business in an attempt to take Collins to an ATM, where they intended to force him to withdraw cash for them. As they were driving the Hummer down St. Francis Street in Wichita, Collins jumped from the moving vehicle into the street.
At approximately 8 a.m., several witnesses at the scene saw Bogguess and Littlejohn attempt to pick Collins up and get him back into the Hummer. When onlookers started to yell at Bogguess and Littlejohn, Littlejohn ran back to the Hummer and got into the front passenger seat. Bogguess stood by Collins for a few moments before running to the Hummer. Bogguess then walked back to where Collins was sitting in the street and shot him in the neck/shoulder area. Bogguess ran back to the Hummer, got into the driver's seat, and drove the vehicle south down the street.
[298 Kan. 635] After the Hummer drove off, Jeremy Linot, a witness at the scene, ran out to the middle of the street to help Collins. Linot
saw that Collins was trying to roll to his left in an attempt to stand up. As Linot was aiding Collins, someone yelled out to him to look out. Linot looked up and saw that the Hummer had turned around and was heading back towards them. Linot reacted by trying to drag Collins off the street, but he had to give up his efforts in order to dodge the Hummer. The Hummer sped by, running over Collins.
The Hummer proceeded north on St. Francis Street and eventually turned west onto Lewis Street. Shortly thereafter, police and medical personnel arrived, and Collins was pronounced dead at the scene at 8:20 a.m. A crime scene investigator collected a cell phone and a 9 mm cartridge casing at the scene. It was later determined that the cell phone belonged to Bogguess.
David Dresher was walking east on Lewis Street a little after 8 a.m. when he saw the Hummer traveling very fast in the opposite direction. Dresher saw the Hummer drive through a stop sign and eventually come to a stop in the middle of the street where it remained for a few moments before backing up and driving into an alleyway on the south side of Lewis Street between Broadway and Topeka Streets. Dresher kept walking and eventually saw a police car come speeding from the west. Dresher realized that the police were probably looking for the Hummer, so he flagged the officer down and directed him to the alleyway where he had last seen the Hummer.
A second officer, John Duff, was driving his police car east on Lewis when he saw a man, later identified as Littlejohn, standing on the northwest corner of Lewis and Broadway Streets. Duff made eye contact with Littlejohn but continued east on Lewis in search of the Hummer. Duff saw that a police car was pulled over on Lewis and that an officer was speaking to Dresher, who was pointing back towards the west. Duff continued driving east on Lewis but soon turned around when he saw that the officer had driven his car further to the west, parked, and gotten out of his car with his gun drawn. Duff joined the officer at that position where they eventually located the Hummer parked in the alleyway. After [298 Kan. 636] determining that no one was inside the Hummer or in the alley, the officers secured the area and reported the Hummer's license plate and vehicle identification numbers to dispatch.
After performing these duties, Duff was standing in the parking lot of a nearby Chinese restaurant when Littlejohn approached him. Littlejohn was breathing hard, sweating, and spitting— behavior Duff believed indicated that Littlejohn had been running. Duff recognized Littlejohn as the man he had previously seen standing on the corner of Lewis and Broadway, but at that time, Duff did not notice Littlejohn breathing hard, sweating, or spitting.
Littlejohn told Duff that he had been robbed, a story which amazed Duff considering the number of police cars traveling through the area that morning. Duff asked Littlejohn what had been taken from him, and Littlejohn said his cell phone. Duff asked Littlejohn where the robbery had occurred, and Littlejohn pointed at the Hummer and said that " they" had done it. Duff asked Littlejohn for his name, and Littlejohn told him that his name was Deidra Howard.
Littlejohn told Duff that the people in the Hummer had robbed him of his cell phone at gunpoint and made him get into the Hummer in the area of Douglas and Hillside Streets, an area quite a distance away from their current location. Littlejohn told Duff that the driver was a Hispanic male with blond hair that had been dyed red and that two other people were inside the Hummer— a white male with a pink shirt and a black male with gray hair. He said that the white male sat in the front passenger seat and the black male sat in the back passenger seat with Littlejohn. Duff asked Littlejohn if the men had taken anything besides his cell phone. Littlejohn said no.
Littlejohn was eventually transported to city hall for questioning. As they were walking into city hall, Littlejohn told Duff that his name was Kedrin Littlejohn, not Deidra Howard. Duff took Littlejohn to an interview room, handcuffed him to a table, and put a leg iron on his ankle. Duff left the interview room but later heard a commotion and went back inside. There, he saw Littlejohn
laying on the floor and looking like he was having some sort of medical problem. Duff immediately yelled for help. When Duff crawled [298 Kan. 637] underneath the table to unlock Littlejohn's leg iron, Duff noticed that Littlejohn had blood on the bottom of his shoes. Police removed Littlejohn's shoes and clothing and placed those items into custody. After giving him a jumpsuit to wear, Littlejohn was transported to the hospital where a doctor examined Littlejohn and determined that there was nothing medically wrong with him. Littlejohn was taken back to city hall and eventually interviewed by two detectives. The interview started at 1:53 p.m.
Prior to that time, police went to Collins' vehicle dealership and saw large amounts of blood on the floor in different locations within the shop area of the building. It was apparent to police that somebody had walked in the blood because they observed at least two different sole pattern impressions in the blood. A crime scene investigator later collected two shell casings and an unfired cartridge from the building.
At 1 p.m. that same day, police learned that Collins' credit cards were being used at the Towne East shopping area in Wichita. Police went to that location to investigate and ultimately arrested Bogguess at a nearby location. Credit cards belonging to Collins, as well as his used vehicle dealer's license, were found in Bogguess' possession. Also found in Bogguess' possession was a cell phone which was later determined to belong to Littlejohn. Police later reviewed video footage showing Bogguess using Collins' credit cards at a Sears store located at Towne East.
Additionally, police found a red Chevy Blazer parked in a Dillon's parking lot near Collins' dealership. The Blazer was registered to Carla Abraham, Littlejohn's mother. Police spoke to Abraham about the vehicle. She said that Littlejohn left her house very early that morning in the Blazer and that she had not seen or heard from him since that time. Inside the Blazer, police found a McDonald's paycheck stub made out to Littlejohn.
After being advised of and waiving his Miranda rights, Littlejohn spoke with detectives, repeating his story of being robbed by the occupants of the Hummer. After taking a 30-minute break, the detectives returned to the interview room and eventually told Littlejohn that bloody footprints were found inside Collins' dealership and that the sole patterns were consistent with his shoes. After [298 Kan. 638] hearing this, Littlejohn admitted to participating in the crimes. Sometime after Littlejohn's shoes were seized, law enforcement determined that the sole pattern on Littlejohn's shoes matched the sole pattern of the bloody footprints found at Collins' dealership. Furthermore, Collins' DNA was found on one of Littlejohn's shoes and on his shirt.
Littlejohn told detectives that he had met Bogguess several months ago at a club in downtown Wichita. Littlejohn said that Bogguess had told him that he knew how they could get some money and that all Littlejohn would have to do was point a gun. Littlejohn said that in the weeks leading up to and on the morning of the incident, they discussed robbing Collins. Bogguess told Littlejohn that Collins had a lot of money and that Littlejohn could get $10,000 for participating in the robbery.
Littlejohn met Bogguess that morning at the Dillon's parking lot. They entered Collins' building using the back stairway. Inside, they confronted Collins. Littlejohn admitted to pointing a gun at Collins and ordering him to get down on the floor. As Littlejohn was doing this, Bogguess went and retrieved a set of keys— presumably the keys to the Hummer that was parked in the garage area of the building. Littlejohn said that when Bogguess returned, he took the gun from him. At this point, Collins attacked Bogguess. During the struggle, Bogguess fired the gun twice— once at the ceiling and once at Collins, shooting him in the leg.
After Collins was shot, he fell to the floor. As Bogguess picked Collins up and put him into the Hummer, Littlejohn held the gun. Littlejohn said that the purpose of placing Collins in the Hummer was that they planned to take him to an ATM machine to get cash. They left the building in the Hummer,
but before they could make it to an ATM machine, Collins jumped out of the vehicle on St. Francis Street.
Littlejohn said that after Collins jumped out of the Hummer, they stopped the vehicle, got out, and tried to get Collins off the street and back into the vehicle. Littlejohn said that Collins yelled for help while he was on the street, and Bogguess told him to shut up. When it became apparent that they could not get Collins back into the vehicle, Littlejohn went back to the Hummer and got into [298 Kan. 639] the front passenger seat. When Bogguess came back to the Hummer, Littlejohn said that he gave the gun to Bogguess or Bogguess took possession of the gun. Bogguess then walked back and shot Collins. Littlejohn said that he did not actually see Bogguess shoot Collins, but he heard the gunshot. Bogguess got into the driver's seat of the Hummer and drove the vehicle away before turning it around and running over Collins.
Littlejohn said that they drove to an area that he was unfamiliar with and ditched the Hummer. As they ran from the Hummer, Bogguess dropped the gun they had used in a nearby trash can. Subsequently, police recovered a 9 mm semiautomatic handgun from a trash can located at the southwest corner of Broadway and Lewis. A firearms examiner later confirmed that shell casings recovered from Collins' place of business and at the scene of the shooting on St. Francis Street had been ejected from this gun.
Littlejohn told detectives that he and Bogguess ran together to a nearby McDonald's. Notably, a witness who was pulling out of the McDonald's drive-through that morning reported to police that she saw two men— fitting the descriptions of Littlejohn and Bogguess— running past the restaurant together. Littlejohn stated that when they got to McDonald's, he realized that he did not have his cell phone, so he turned around and ran back to the Hummer. Bogguess continued running. By the time Littlejohn got to the area where the Hummer was parked, police had already arrived at the scene. It was at this point when Littlejohn decided to approach an officer and tell him that he was the victim of a robbery.
At 5:32 p.m., after Littlejohn's interview was completed, he began complaining about having chest pains. He was transported to the hospital where he was again checked and determined to be suffering no medical complications. He was released from the hospital and taken back to the city building. While waiting to be transported to the Sedgwick County Adult Detention Facility, Littlejohn asked an officer how long he would be in jail. The officer told him that she did not know. In response, Littlejohn said, " I'm going to get probably life." Littlejohn was eventually transported and booked into the detention facility.
[298 Kan. 640] A firearms trace through the Bureau of Alcohol, Tobacco, and Firearms of the 9 mm handgun recovered from the trash can determined that the gun had been part of a multiple gun purchase by a woman named Jocqulyn Johnson. A detective spoke with Johnson and learned that the handgun had been stolen from a vehicle parked in Johnson's driveway sometime between April 11 and April 25, 2008. Johnson and Littlejohn's mother lived on the same residential block. Littlejohn had been living at his mother's residence in April 2008.
During their investigation, police reviewed the cell phone records of Littlejohn and Bogguess, which showed that they had the following text-message ...