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Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge.
Convictions affirmed, sentence vacated, and case remanded.
BY THE COURT
1. Subject to exclusionary rules, an appellate court reviews the grant or denial of a motion to strike concerning the admission or exclusion of evidence for abuse of discretion.
2. A district court abuses its discretion when: (a) no reasonable person would take the view adopted by the judge; (b) a ruling is based on an error of law; or (c) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based.
3. When sufficiency of the evidence is challenged in a criminal case, an appellate court's standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing 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 determinations regarding witness credibility.
4. Premeditation does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. Premeditation and deliberation may be inferred from the established circumstances of a case when the inference is reasonable.
5. Factors to consider when determining whether the evidence gives rise to an inference of premeditation include: (a) the nature of the weapon used; (b) lack of provocation; (c) the defendant's conduct before and after the killing; (d) the defendant's threats and declarations before and during the occurrence; and (e) the dealing of lethal blows after the deceased was felled and rendered helpless. But such a determination is not driven simply by the number of factors present because in some cases one factor alone may be compelling evidence of premeditation.
6. Death by manual strangulation can be strong evidence of premeditation because the defendant had an opportunity to deliberate.
7. Under K.S.A. 2009 Supp. 60-455, evidence of other uncharged crimes is admissible only if: (a) the evidence was relevant to prove a material fact; (b) the material fact was disputed; and (c) the probative value of evidence was not substantially outweighed by the risk of undue prejudice. An appellate court reviews a district court's materiality determination de novo. It applies an abuse of discretion standard of review on the existence of probative value and the weighing of that value against the potential for undue prejudice.
8. The statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 2155, 2160-63, 186 L.Ed.2d 314 (2013), because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.
Debra J. Wilson, Capital and Conflicts Appellate Defender, argued the cause and was on the briefs for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
BILES, J. JOHNSON, J., dissenting. LUCKERT, J., joins the foregoing dissent.
[299 Kan. 621] Biles, J.
A jury convicted Jonell Lloyd of first-degree premeditated murder, felony murder, and abuse of a 17-month-old child. He appeals his convictions, arguing: (1) reversible error in denying his belated motion to strike a prosecution witness' pretrial statement and trial testimony; (2) insufficient evidence to support premeditated first-degree murder; and (3) reversible error in admitting evidence of another crime contrary to K.S.A. 2009 Supp. 60-455. We affirm his convictions.
Lloyd also challenges his life sentence, claiming the district court erred by imposing a life sentence without possibility of parole for 50 years (hard 50). He contends the hard 50 sentencing procedure set out in K.S.A. 21-4635 is unconstitutional in light of Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314 [299 Kan. 622] (2013). We agree. See State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014) (concluding hard 50
sentencing scheme that permits a judge--rather than a jury--to find aggravating circumstances necessary to impose an increased mandatory minimum sentence violates the Sixth Amendment to the United States Constitution under Alleyne ).
In Lloyd's case, after conducting an evidentiary hearing on the matter, the trial judge found by a preponderance of evidence two statutory aggravating circumstances to justify increasing Lloyd's mandatory minimum sentence: (1) existence of a prior felony conviction in which the defendant inflicted great bodily harm or disfigurement (K.S.A. 21-4636[a]); and (2) defendant committed the crime of conviction in an especially heinous, atrocious, or cruel manner (K.S.A. 21-4636[f]). The judge also found the mitigating evidence offered by Lloyd did not outweigh those aggravating circumstances.
Accordingly, we must vacate Lloyd's hard 50 life sentence based on Alleyne and Soto and remand for resentencing.
Factual and Procedural Background
Chavira Brown was 17 months old when she was found dead in the attic of Lloyd's house. She was born to Jessica Jackson, who believed Lloyd was the child's father, so he occasionally watched Chavira. Lloyd lived with his girlfriend, Tameika Loudermilk, and their 8-month-old son.
As Jackson testified at trial, Lloyd left her a voicemail message on July 31, 2008, saying he had lost Chavira at a city park. Jackson and her sister went to Lloyd's house, where he explained he had taken Chavira and his son to the park but lost her while changing the boy's diaper. Lloyd would later admit he fabricated this explanation. He later testified he lost Chavira at his house but did not want to say so because he sold drugs there. Jackson testified Lloyd asked the two women not to call the police because he had outstanding arrest warrants. Jackson's sister, however, reported the child missing, and then the two women went to the park to look for Chavira. Lloyd admits he left the house.
[299 Kan. 623] When Jackson arrived at the park about 8 p.m., police officers were already there. After speaking with her, an officer drove Jackson to Lloyd's house, where the officer talked with Loudermilk, who initially denied knowing Lloyd. But after another person told officers Lloyd lived there, Loudermilk admitted Lloyd had been at the house, but she did not know his whereabouts and had not seen Chavira recently. Police arrested Loudermilk for obstruction and took her into custody, which led to a series of interviews at the police station that began after midnight. Loudermilk's statements to investigators and her trial testimony were central to the investigation and prosecution and play prominently in the conviction-related issues on appeal.
Detective Brian Hightower first interviewed Loudermilk. She initially repeated that she did not know Chavira's whereabouts, but she did describe how Lloyd had shouted at Chavira because she wet herself. At 2:53 a.m., Officer Michael John Nagy took over the interview and admits he was " pretty rough" in his questioning in order to get Loudermilk to tell where Chavira was. Nagy was aware Loudermilk's infant son was in protective custody after her arrest, so he told Loudermilk he would help get her son back from protective custody if she cooperated. He also told her she would " be in a world of hurt" if she did not help locate Chavira. But Loudermilk offered no additional information. Nagy then changed tactics.
Nagy told Loudermilk she would go to jail for a long time if something bad happened to Chavira; and, if that happened, her son would go into " the system" and she would be unable to see him. Toward the end of this interview, Nagy told Loudermilk he was going to get the truth from another witness who had talked to Lloyd and knew what happened. Nagy told her to think about whether charging her with murder was fair to her and her son. He then left the room and Detective Lennie Rose entered. At around 4:45 a.m., Loudermilk made statements incriminating Lloyd--most critically, she said she thought Chavira was in the attic of the house.
Officers secured a search warrant and discovered in the attic what they initially described as a black bag, which was actually a [299 Kan. 624] sofa cushion cover filled with three black
plastic trash bags, one bag inside the other, and " knotted, tied." The innermost bag contained Chavira's body.
The State charged Lloyd alternatively with first-degree premeditated murder and felony murder with the underlying felony of child abuse. It also charged him with child abuse.
At trial, Loudermilk testified as a State witness. She said she was at home the day Chavira died and mainly stayed in her bedroom. She said she saw Lloyd in the living room hitting Chavira with a belt for about 20 minutes because the child had wet herself. Loudermilk did nothing to stop him. She said she walked through the living room later and saw Lloyd with his hand around the backside of Chavira's neck and heard her crying. Loudermilk returned to the bedroom, leaving the door partially open. She continued to hear Chavira crying. Loudermilk said she heard Chavira making noise for 10 to 15 minutes, as if Chavira could hardly breathe.
Loudermilk said Lloyd then carried Chavira to the den at the back of the house. She said she did not know but thought Chavira was dead. Lloyd returned to the front of the house without Chavira, took trash bags from under the kitchen sink, and then went to Loudermilk's room, took her phone, and went back to the kitchen to make a call. Loudermilk said Lloyd paced back and forth until Jackson and her sister arrived. Loudermilk heard Lloyd tell Jackson, " It's going to be okay, we're going to find her." But before Lloyd left the house, Loudermilk said Lloyd told her, " You don't know Chavira and you haven't seen her."
After Lloyd left, Loudermilk said, he called and told her to pick up some jeans from the living room floor or else he would come back and kill her. She said she complied, putting the jeans in a plastic bag in her room. In their later search, officers found a trash bag containing a pair of jeans with what appeared to be attic insulation on them in a bedroom.
Detective Rose testified after Loudermilk about the police interviews and what Loudermilk said. His testimony was largely consistent with Loudermilk's. Rose said Loudermilk told him that Chavira had been crying all day, that Lloyd spanked Chavira with his hand and belt after the child wet her pants, and that Loudermilk [299 Kan. 625] said she saw Lloyd holding Chavira down with his hand around her throat while Chavira made a choking sound. He quoted Loudermilk as saying, " That sound lasted for about an hour and then it stopped." Loudermilk also told him that after the noise stopped, Lloyd walked to a back room carrying Chavira; grabbed several kitchen bags; returned to the back room; asked for her cell phone; and then paced back and forth. Loudermilk also told Rose that two females came to the house and talked to Lloyd. She heard crying and " mention of something about the park and we'll find her."
After the State rested, Lloyd called Detective Hightower and Officer Nagy to testify about Loudermilk's police interview. Nagy explained what he told Loudermilk during the interview to prompt her cooperation. Lloyd then moved to strike testimony, claiming Loudermilk's statements were coerced. We will discuss this motion when addressing Lloyd's claim of error regarding its denial.
Lloyd testified in his defense and substantially contradicted Loudermilk's testimony. He told the jury on the day Chavira disappeared he needed to clean an area where he kept his 11 dogs. He said Loudermilk would not watch Chavira, so he brought the child with him. He said he put Chavira on the back porch, but she started crying, so he took her outside to a fenced-in backyard accessible from the street. Lloyd said he went into the house for cleaning supplies and when he returned, Chavira was gone. Lloyd testified he ran around the house and down the street but could not find her. He said he called Jackson to tell her what happened but could not reach her, so he called her friend and lied by telling her Chavira was lost in the park.
Lloyd denied asking Loudermilk to pick up any clothes or threatening to kill her. He admitted spanking Chavira with a belt the day she disappeared, explaining she had wet the bed and this was his potty training process. But he said, aside from this spanking, he did not hurt Chavira or place her inside
the trash bags where police found her body. He denied killing Chavira and did not know who did.
Deputy Coroner Ronald Distefano performed Chavira's autopsy. He concluded she died of asphyxiation, explaining this could have been caused by covering her mouth and nose; a constricting [299 Kan. 626] force around her neck; compression of her chest and abdomen; or an environment with limited or no oxygen. Distefano noted Chavira's asphyxiation caused brain swelling, which he said was a significant symptom because such swelling takes time to occur. He concluded the swelling indicated hours elapsed between death and the initial asphyxiation injury to the brain. He also determined Chavira had early evolving pneumonia, which occurs when death is prolonged.
The jury unanimously convicted Lloyd of first-degree murder under both prosecution theories: premeditated murder and felony murder in the course of child abuse. The jury also convicted him of child abuse.
After the convictions, the State moved to impose a mandatory minimum sentence of 50 years' imprisonment before parole eligibility. The district court judge granted the motion and imposed the hard 50 sentence for the premeditated first-degree murder conviction and 128 months, to run consecutively, for child abuse.
To impose the hard 50 term, the judge found two aggravating circumstances under the statute. First, the judge found Lloyd was previously convicted of a felony for an aggravated assault against Loudermilk, which the judge determined had inflicted great bodily harm. See K.S.A. 21-4636(a). Second, the judge found Lloyd committed the child's murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). Finally, the trial judge found these two statutory aggravators outweighed Lloyd's mitigation evidence.
Lloyd timely appealed, initially arguing: (1) The district court erred in denying his motion to strike Loudermilk's pretrial statement and trial testimony; (2) insufficient evidence supported the premeditated first-degree murder conviction; and (3) the district court erred in admitting evidence of prior wrongdoing contrary to K.S.A. 2009 Supp. 60-455. But after the parties had briefed and argued those issues, the United States Supreme Court extended the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and held the right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence [299 Kan. 627] necessarily increases the penalty for a crime and, therefore, is an " 'element'" that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne, 570 U.S. at
__, 133 S.Ct. at 2151, 2162-63. Lloyd then moved for supplemental briefing, challenging the constitutionality of his hard 50 sentence as violative of his right to a jury trial. We granted that motion and then requested a second supplemental brief regarding the possible application of harmless error.
Our jurisdiction is proper under K.S.A. 22-3601(b)(1) (off-grid ...