[Copyrighted Material Omitted]
Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge.
BY THE COURT
1. The 2013 amendments in K.S.A. 2013 Supp. 21-5402(d) and (e) eliminated lesser included offenses of felony murder and expressly provided for retroactive application to cases pending on appeal on and after its effective date. Retroactive application of the amendments does not violate the federal Ex Post Facto Clause. Accordingly, instructions on lesser included offenses of felony murder would have been legally inappropriate in this case.
2. On appeal, a trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.
3. Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute creates a two-step process. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must decide if the prejudicial conduct's damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.
4. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Notably, cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. Furthermore, a single error cannot constitute cumulative error.
5. An issue not briefed by the appellant is deemed waived and abandoned. Furthermore, a point raised incidentally in a brief and not argued therein is also deemed abandoned.
6. Juvenile adjudications which were final on June 20, 2008, the date In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), was filed, may be included in an offender's criminal history score pursuant to the provisions of the Kansas Sentencing Guidelines Act.
7. Because our legislature has specifically authorized cumulative punishments for both felony murder and the underlying felony supporting the felony-murder charge, a defendant can be convicted of and sentenced for both crimes without violating the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
David E. Roberts, of Hutchinson, argued the cause and was on the brief for appellant.
Keith E. Schroeder, district attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
[299 Kan. 708] ROSEN, J.
A jury convicted Anthony Waller of felony murder and aggravated kidnapping and found him not guilty of aggravated robbery. The district court sentenced him to a hard 20 life imprisonment for the murder conviction and a consecutive 285-month sentence for the aggravated kidnapping conviction.
On appeal, Waller argues that the trial court erred by not instructing the jury on several lesser included offenses of felony murder, aggravated kidnapping, and aggravated robbery and by failing to give a self-defense instruction. He also argues that the trial court erred in failing to grant his motion for a mistrial and that cumulative trial error denied him a fair trial. Finally, he argues that the trial court erred in using a juvenile adjudication to determine his criminal history for sentencing purposes and that his convictions and sentences for felony murder and aggravated kidnapping violate the constitutional prohibition against double jeopardy. For the reasons stated below, we reject Waller's arguments and affirm his convictions and sentences.
[299 Kan. 709] Facts
On March 9, 2010, Waller's apartment was burglarized. He contacted the Hutchinson Police Department and reported that a PlayStation 2, numerous video games, a camera, clothing, and two pairs of size 13 Air Jordan shoes--one pair orange and white, the other black with lime green--had been stolen. Waller told the responding police officer that he suspected that his downstairs neighbor, Vasie " Joe" Coons, broke into his apartment. Waller informed the officer that Coons had come to his apartment the previous night to use his phone and that he called the phone number 708-7333. It was later determined that this number belonged to Joshua Haines, the victim in this case. Waller also told the officer that while he was working across the street from the apartment building on March 9, he saw Coons get out of a white Mazda RX-8. The responding officer tried to make contact with Coons that day, but no one was at his apartment.
According to Coons--a self-admitted drug user and paranoid schizophrenic who was off his medication when the events at issue took place--Waller later approached him and threatened to " kick [his] ass" in retaliation for the burglary. Waller also informed Coons that he had reported the burglary to the police and that they were now wanting to speak to Coons about the crime. Coons, who was afraid of Waller, denied being involved in the burglary but implicated Haines--Coons' drug dealer and supposed friend--in the
crime. Upon hearing this, Waller became mad and expressed a desire to exact revenge upon Haines, suggesting that he wanted to place Haines in the hospital by giving him a beating and that he wanted to tie Haines up and rob his home.
About a month later, on April 9, 2010, Coons went to Haines' house, where he and Haines consumed methamphetamine between 5 p.m. and 10 p.m. that day. After making a trip with Haines to WalMart and returning to Haines' home, Coons left and returned to the apartment building. Coons then stopped by Waller's apartment; while he was there, Waller asked him to call Haines and set up a drug deal for a gram of methamphetamine and to have Haines bring the methamphetamine to Coons' apartment. Thinking [299 Kan. 710] he could " score some more" methamphetamine if he was able to set up a drug deal for Haines, Coons agreed to make the call, using Waller's phone to do so. Because Waller did not want Haines knowing his phone number, Coons dialed " *67" before dialing Haines' phone number in order to conceal Waller's phone number on Haines' caller ID. Coons spoke with Haines and set up the deal.
After calling Haines, Coons went downstairs to his apartment. Subsequently, Waller, accompanied by Jose Delacruz and Chauncey Grissom, came to Coons' apartment and asked if Haines was coming over. Because a half hour had passed since Coons had spoken with Haines, Coons called Haines, again using Waller's cell phone and dialing " *67" before dialing Haines' number. Coons spoke with Haines, who told Coons he would be at his apartment within a few minutes.
Haines eventually arrived at the apartment building and knocked on the outside door leading into the building. As Coons walked out of his apartment to let Haines in, Waller, Delacruz, and Grissom went to the back bedroom of the apartment. When Coons walked out of his apartment, he saw that Haines was already in the building, standing at the top of the stairs leading down to Coons' apartment. Haines proceeded to walk down the stairs and into the apartment. As Haines walked down the hallway leading to the bedroom, he asked out loud whether anybody else was inside the apartment. At this moment, Waller came out of the bedroom and attacked Haines, hitting him and tackling him to the floor. Delacruz then joined Waller, and the two of them began kicking and hitting Haines. Waller eventually hit Haines with a 2 x 4 board that was in the apartment, splitting Haines' ear open. Delacruz grabbed a chair and hit Haines with it.
While Waller and Delacruz were attacking Haines, Coons said that Grissom was pacing back and forth, looking out the windows of the apartment, and eventually participated in the beating by hitting Haines with a mop handle a couple of times. Coons said that he tried to intervene, but Grissom prevented him from doing so. Shortly thereafter, Grissom left the apartment.
During the altercation, Coons saw a baggie of methamphetamine on the floor, which belonged to Haines. Coons picked up the baggie and kept it.
[299 Kan. 711] Eventually, Waller and Delacruz dragged Haines into the bedroom, put duct tape over his mouth and arms, and wrapped video game controller cords around him. Waller, Delacruz, and Coons then left the apartment, leaving Haines behind. According to Coons, Haines was still alive at this point. Waller, using Haines' car--a white Mazda RX-8--drove them to Haines' home. On the way there, Waller told Coons that he wanted to burglarize Haines' home.
When the men arrived at the residence, Waller attempted to have Coons assist him with the burglary. Coons refused and ran away from the scene. According to Coons, he proceeded to walk around Hutchinson that night while consuming Haines' methamphetamine.
At around noon on April 10, Coons returned to the apartment building and saw Waller. According to Coons, Waller asked him whether he had been home yet. Coons said no. Waller then told Coons that he had broken into his apartment, removed Haines' body, carried the body to Haines' car, and then drove the car and parked it down on Baker Street.
Coincidentally, after Coons returned to the apartment building, officers from the Hutchinson
Police Department arrived at the scene to execute multiple arrest warrants for Coons. After meeting with the landlord, the officers walked towards Coons' apartment. The officers noticed a large amount of blood on the sidewalk outside of Coons' apartment, drops of blood on the stairs leading down to the apartment, swipes of blood on the stairwell walls, and blood on the threshold of the apartment door.
Officers entered the apartment and saw numerous bloodstains inside. The stains were primarily concentrated in the hallway and the bedroom. The officers also noticed a 2 x 4 board with blood on it and a green plastic baggie containing a white crystal substance, which one of the officers suspected was methamphetamine. In the bedroom, trash was scattered on the floor and a mattress was overturned.
After searching and not finding Coons inside his apartment, officers spotted him walking away from the apartment building. The officers eventually located him winding his way down on the 1300 [299 Kan. 712] block of Baker Street. When the officers approached him, they noticed that Coons was smoking marijuana and had the handle of a large butcher knife sticking out from his rear waistband. Coons refused the officers' orders to stop, so the officers used tazers to take Coons into custody. While arresting Coons, officers found a small green baggie containing a white crystal substance in Coons' front left pants pocket. This substance was later determined to be methamphetamine. Officers also found a syringe and a glass smoking pipe inside a jacket that Coons was holding. The pipe contained methamphetamine residue inside it. Coons was transported to jail.
As Coons was being arrested, law enforcement received a report that a car parked in the 1500 block of Baker Street had a body inside it. Police officers responded to the scene and found a white Mazda RX-8 registered to Haines. Haines' body was lying on the front seat. He was wearing a black shirt but did not have pants or underwear on. A black KU jacket was covering the lower portion of his body. Investigators at the scene noticed that Haines had a large cut to his elbow, cuts to an ear, scrapes on his back, his eyes were black and blue, and he had injuries to his head, which appeared to be severely swollen. Haines also had a blackish gray mark around his neck, indicating that he was strangled. A small amount of blood was found inside the car, indicating to investigators that Haines was killed somewhere else and then placed inside the car.
At the jail, Coons acted fidgety and his speech was jumbled, leading the officer who arrested him to believe that he was under the influence of drugs. The officer asked Coons about the blood inside his apartment. Coons responded by saying that " people had been creeping in and out of his apartment." When asked to identify these people, Coons said he was not going to rat anybody out. The officer asked Coons to provide him with at least a first name. Coons said that " Josh" was the one " creeping in and out of his apartment." Coons later said that Josh was his friend. By this time, the officer was aware that the body found in the vehicle had been identified as Haines.
After Coons spoke with the officer, a jail deputy patted him down and discovered a small baggie of cocaine located inside his sock. Blood was also discovered on Coons' left shoe and on his [299 Kan. 713] pants. Subsequent testing of this blood found the presence of Haines' DNA. A cut and other bloody marks were observed on Coons' hands. Later that day, another officer tried interviewing Coons but ended his efforts when it became obvious that Coons was under the influence of drugs.
After obtaining a search warrant for Coons' apartment, law enforcement officers from the Hutchinson Police Department and the Kansas Bureau of Investigation conducted an extensive investigation of the area around and inside the apartment. Bloodstains and DNA testing of those stains confirmed that Haines was attacked inside Coons' apartment and then carried to a vehicle in the parking lot.
On the roof of the entryway leading into the apartment building, officers found a pair of pants. Blood, duct tape, and duct tape adhesive were found on the outside of the pants. A cell phone belonging to Haines was
found inside one of the pockets. Officers also found a belt hanging from a nearby tree.
Officers found a pair of size 12 black shoes inside a doghouse of a residence immediately to the east of the apartment building. It was later confirmed that blood was present on these shoes. Haines' DNA was found on the outside of the left shoe. Waller's DNA was found on the inside of the shoes.
A beer can was found at the bottom of the stairs leading to the entrance of Coons' apartment. Subsequent testing of this can revealed the presence of Waller's DNA.
Inside the apartment, investigators found (1) a black leather jacket with blood and remnants of duct tape on it (Coons said that Haines was wearing a black leather jacket); (2) a black cable with duct tape on it; (3) a second cell phone which was later determined to also belong to Haines; (4) pieces of latex gloves; (5) a board with bloodstains concentrated at one end; (5) a mop with blood on the handle; and (6) an overturned broken chair with blood on it.
Testing of all the samples taken from inside the apartment could only definitely show the presence of Haines' DNA. Though DNA from other contributors was found on some of the samples, there was an insufficient amount of DNA present to identify the contributors. [299 Kan. 714] Furthermore, officers did not collect anything inside Coons' apartment that could be linked to Waller.
Waller voluntarily spoke with detectives on April 11 and consented to a search of his apartment. During this interview, detectives inspected Waller's shoes and did not see anything incriminating. Waller's statements during this interview were never introduced at trial. During the search of Waller's apartment--which was described as being untidy--officers noticed a strong odor of cleaning supplies. Cleaning supplies were found by the inside entryway to Waller's apartment and by the entryway into the living room. The search of Waller's apartment, however, did not reveal any direct evidence linking Waller to Haines' murder.
On that same day, Dr. Bamidele Adeagbo, a medical examiner and deputy coroner at the Sedgwick County Regional Forensic Science Center, performed an autopsy of Haines. The examination revealed that Haines had somewhere between 50 and 70 total impact sites on his body. Adeagbo observed more than 30 impact sites to Haines' head. Adeagbo noted that the left and right frontal bones and the zygomatic bones of Haines' face, as well as his left jaw bone, were fractured. Adeagbo also stated that Haines' neck showed signs of being strangled.
Adeagbo did not see any injuries to Haines that were caused by a knife, nor did he find any evidence to suggest that Haines was sexually assaulted. A test of Haines' blood did reveal that amphetamine and ...