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Appeal from Shawnee District Court; Nancy E. Parrish, judge.
BY THE COURT
1. A defendant's claim that a trial court's failure to formally order or declare a mistrial violates his or her constitutional right to be protected from double jeopardy can be reviewed on appeal even if the defendant failed to raise the error before the trial court.
2. The Kansas criminal mistrial statute, K.S.A. 22-3423, does not require a trial court to use specific words in ordering or declaring a mistrial. Consequently, even if a trial court does not use the terms " order" or " declare," the trial court effectively declares a mistrial by stating the jury is deadlocked, discharging the jury, and scheduling the case for a second trial.
3. When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.
4. Premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. Factors that give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant's conduct before and after the killing; (4) any threats and/or declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. Use of a deadly weapon by itself, however, is insufficient to establish premeditation.
5. A prosecutor's statement that premeditation can occur in half a second is contrary to established caselaw and is prosecutorial misconduct.
Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.
Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
[299 Kan. 480] Luckert, J.
After a trial ended with a hung jury, Kelvin Phillips, Jr. was retried and convicted of the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of a firearm. On direct appeal from Phillips' second trial, we consider the three issues Phillips raises. First, we hold that the Kansas criminal mistrial statute, K.S.A. 22-3423, does not require the use of specific words in order for a mistrial to be recognized or to preserve a defendant's constitutional right to be protected from double jeopardy. Consequently, we reject Phillips' contention that the trial court violated his constitutional right against double jeopardy when it allowed him to be retried for the same crimes without explicitly declaring or ordering a mistrial at the conclusion of his first trial. Second, we conclude there was sufficient evidence, when viewed in the light most favorable to the State, to affirm Phillips' conviction for premeditated first-degree murder. Finally, we hold that the prosecutor committed misconduct during closing argument by misstating the legal definition of " premeditation," but we conclude the misconduct did not deprive Phillips of a fair trial. Consequently, we affirm.
Facts and Procedural Background
Dyer died from gunshot wounds he suffered on August 10, 2007, in Topeka. Phillips and three other individuals--Corky A. Williams; Drake Kettler, Jr.; and Antonio Armstrong--were charged with and convicted of crimes related to Dyer's death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Williams, 299 Kan. __, 324 P.3d 1078 (No. 103,785, this day decided); State v. Kettler, 299 Kan. __, 325 P.3d 1075 (No. 103,272, this day decided); and State v. Armstrong, 299 Kan. __, 324 P.3d 1052 (No. 103,120, this day decided).
[299 Kan. 481] The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many of the same issues. Consequently, our opinions in these cases are largely repetitive. We have followed this format for the ease of reading only one opinion; the reader will not need to refer to multiple opinions. For the benefit of anyone who wishes to read all three opinions, we offer as a guide that Williams has asserted the most issues. Kettler and Phillips have repeated some of those issues, making either identical or substantially similar arguments. Phillips does, however, present an issue not raised by Kettler or Williams--his first issue, which relates to the procedure for declaring a mistrial. Also, although Williams, Kettler, and Phillips all raise issues regarding the sufficiency of the evidence and the prosecutor's misstatement of the definition of " premeditation" during the closing argument, there is some variance in the analysis because of each individual's role in the shooting of Dyer. The decision in Armstrong's appeal does not have the same level of overlap, and some factual details differ because of the variance in evidence in his separate trial.
The charges against the four defendants were not identical. Phillips, like Kettler and Williams, was charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and criminal possession of a firearm.
Armstrong's case took a different procedural track when, before any of the defendants' preliminary hearings, he decided to
cooperate with the State in exchange for a favorable plea agreement. Initially, in Armstrong's first contact with investigating law enforcement officers, he denied any knowledge of or involvement in the shooting. Later, in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to the district attorney in which he incriminated himself and implicated the three other defendants in the premeditated killing of Dyer. Based on this statement [299 Kan. 482] and as part of Armstrong's plea arrangement, the State called Armstrong as a witness at a joint preliminary hearing related to the charges against Williams, Kettler, and Phillips. Armstrong reiterated the truthfulness of his sworn statement and testified that he had joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.
Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed his mind about cooperating with the State and recanted his statements and testimony, even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated that his former defense counsel coerced him into making his prior statements implicating his friends.
Subsequently, Armstrong's case was joined with the cases of Williams, Kettler, and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung jury. After the first trial, the trial court severed Armstrong's case from the others, and his second trial took place before the three other codefendants again went to trial. Armstrong testified at his second trial, providing yet another version of how Dyer was shot. Armstrong was convicted of premeditated first-degree murder and criminal possession of a firearm, the only charges brought against him.
The State then called Armstrong to testify at the joint second trial of Williams, Kettler, and Phillips. Armstrong testified that both his sworn statement and his preliminary hearing testimony against the other defendants were untrue. Armstrong explained that he had incriminated his friends because he was led to believe that " my homeboys, my brothers, was testifying on me, which I found out later was a lie." He also told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong's explanation was refuted by Armstrong's attorney, who testified that Armstrong was not told what to say in his sworn statement.
Although Armstrong was called as a witness for the State at the trial of Williams, Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong wore a mask to prevent him from spitting on the law enforcement officers who transported him to the courtroom or on those in the courtroom. He often cursed, and he usually either refused to answer questions or was [299 Kan. 483] evasive and claimed he could not remember details. Eventually, on redirect examination, Armstrong became so belligerent and uncooperative with the prosecutor that he was removed from the courtroom.
As this history suggests, the jury was presented with multiple versions of the events that led to Dyer's death. In addition to Armstrong's various renditions of what happened, both Williams and Phillips testified at their second trial and offered slightly different versions of events. Plus, approximately a month before the second joint trial, Phillips proffered the substance of his trial testimony in order to obtain some pretrial evidentiary rulings; the jury would learn that some details included in the proffer differed from Phillips' trial testimony. Kettler chose not to testify. The jury also heard the testimony of several individuals who witnessed some portion of the events, investigated the crimes, or had information about the relationship of Dyer and the defendants. Because Phillips attacks the sufficiency of the evidence against him--at least with respect to the first-degree murder charge--we will discuss the evidence in some detail.
Dyer's Conflict with the Defendants
Through the testimony of several witnesses--including Williams and Phillips--and Armstrong's sworn statement, the jury learned of a dispute between Williams and Dyer that occurred several weeks before Dyer's death. During this altercation, an argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams at gunpoint. Patton testified that after the
robbery, Williams issued a challenge by telephoning and saying, " It's on." Patton's testimony was countered by Williams, who told the jury he had decided just to stay away from Dyer and Patton. He denied that Dyer's death had anything to do with the prior encounter.
In turn, Williams' testimony was contradicted by Armstrong's sworn statement and the preliminary hearing testimony of Armstrong. According to that version of events, Williams told Armstrong and Kettler about the robbery immediately after it happened. The three men decided they would be on the lookout for Dyer and his friends. When Armstrong was asked whether there were any plans [299 Kan. 484] made to search for Dyer, Armstrong replied, " No. Just--just when we--when we saw him, shoot him." Armstrong was asked if that agreement would apply " to any of the three of you?" He answered, " Any of us . . . . I'm not going to lie, I wanted to do it because not too--not too long after that, just a couple of days after that . . . somebody shot . . . [a friend's house] and grazed me on my arm." Armstrong believed Dyer and Patton were the shooters.
Phillips did not participate in these discussions because he was in jail. Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking to Phillips in " code" during a telephone conversation. As it turned out, Phillips was released from jail the same day as Dyer was shot. According to Armstrong, Phillips joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer, they wanted to " [b]low his head off."
Phillips Spots Dyer; Other Defendants Join Him
Within hours of Phillips' release from jail, he spotted Dyer and Dyer's girlfriend, Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that she and Dyer had walked to the liquor store where they ran into some people they knew, Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While Shaw shopped, Johnson walked from the liquor store toward Shaw's car. At that point, Phillips approached Johnson and asked if she was " straight," meaning did she need to buy any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and Dyer were already sitting, Phillips told her to take his phone number and to call if she needed something.
Phillips testified that, after talking to Johnson, he talked to Shaw and asked her whether she wanted to purchase some drugs. Shaw indicated she had some money at her house, so she would buy drugs if Phillips stopped by. Phillips told Shaw he would be there within 5 to 10 minutes.
According to Phillips, after Shaw's vehicle pulled away, Phillips called Kettler, and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop. They ran down the alley because Phillips was in a hurry to get to Shaw's house so that another [299 Kan. 485] drug dealer would not beat him to the sale. Kettler then called Williams to ask for a ride to Shaw's house.
Williams also testified that Kettler called him and asked Williams to give Kettler, Phillips, and Armstrong a ride to Shaw's house. According to Williams, he had been with Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler, Armstrong, and another friend and they drove around for about 30 minutes. Then, Kettler and Williams installed a CD player in Williams' car, while the others were " sitting around talking." Later, the group went their separate ways until Williams picked up the others to take them to Shaw's house. He explained that he was told the men wanted to go to Shaw's house because she owed Kettler some money and Phillips was going to sell her drugs.
According to Armstrong's sworn statement, Kettler and Williams had picked him up earlier in the day and the three were still together when Phillips called. Like Williams, Armstrong stated that Kettler and Williams had installed a CD player in Williams' car, but Armstrong also indicated that while doing so they had hidden a gun behind the CD player. Armstrong explained, " Like where the CD player is in Oldsmobile Delta's [sic] you can take that whole part out, the whole vent part out and
you can fit a nice size gun in there." Armstrong described the hidden gun as a " 9 mm Ruger." There was evidence at the trial suggesting that this gun was later used to shoot Dyer.
Once Williams and Kettler finished installing the CD player, according to Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then told the others that Dyer " is at the smoke shop. Get there. And then [Kettler] opened the vent and pulled a gun out of the vent." Williams drove directly to the alley behind the store, which Armstrong said was merely 30 seconds or so away from where they were. Once they were near the store, Armstrong and Kettler jumped out of the car and started running down the alley. Phillips ran toward them and told them Dyer was on his way to Shaw's house. They turned and ran back toward Williams' car.
The timing of Armstrong's version of events meshes with Johnson's account. She saw Phillips and three or four other people running down the alley ...