Appeal from Sedgwick District Court; CLARK V. OWENS II, judge.
BY THE COURT
1. Under current caselaw, a trial court should not use a jury instruction that tells the jury not to consider sympathy toward either party except under very unusual circumstances.
2. Where a defendant's theory of defense to an aiding and abetting prosecution is that the defendant was merely present in the vicinity of the crime scene or simply associated with the principal actors, the better practice is for the trial court to modify PIK Crim. 3d 54.05 to include the language from the official comment, to-wit: Mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor.
3. The merits of a claim of ineffective assistance of trial counsel ordinarily are not addressed for the first time on direct appeal.
4. An argument by defense counsel that the defendant's behavior may have been morally or ethically wrong but that the defendant's acts were not legally a crime is not a guilt-based strategy that overrides the defendant's not guilty plea and that warrants a consideration of the defense counsel's alleged ineffectiveness on direct appeal.
5. The doctrine of cumulative error does not apply where the reviewing court has not found the existence of more than one trial error.
Stephen J. House, of Wichita, argued the cause and was on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
JOHNSON, J. MORITZ, J., not participating. DAVID J. KING, District Judge, assigned.
[299 Kan. 1040] Johnson, J.
Kiara M. Williams directly appeals her convictions for felony murder, aggravated burglary, and aggravated assault. The charges arose out of an incident in which Williams accompanied Kevin Brown, Quartez Brown, and Jaleesa Bonner to the apartment of Otis Bolden, where Kevin and Quartez entered the apartment, assaulted Ashley Green with a handgun, and fatally shot Bolden. Williams and Bonner directed the Browns to Bolden's apartment and waited in the car to whisk them away after the shooting. Williams contends: (1) The district court erred in providing a no-sympathy jury instruction; (2) the district court erred in refusing to supplement the pattern jury instruction on aiding and abetting; (3) trial counsel provided ineffective assistance; and (4) cumulative error denied her a fair trial. Finding no reversible error, we affirm.
Factual and Procedural Overview
The events leading to this criminal prosecution began to unfold in the early morning hours of April 26, 2010, when Williams and Bonner, together with their friend, Rika Evans, left a local club and gathered at Bolden's apartment, along with Reader Watley. After Bonner accompanied Bolden into his bedroom, she interpreted a comment he made as indicating that he had participated with a group of men who had raped her some 2 years earlier. That prompted Bonner to indicate that she wanted to leave the apartment.
Bolden drove the three women--Bonner, Williams, and Evans--to the home of Bonner and Evans on Glendale Street, albeit Williams would return to Bolden's apartment to stay the night. Enroute back to his apartment, Bolden picked up Ashley Green. Bolden and Green spent the night in his bedroom, while Williams and Watley spent the night on the couch. There was conflicting testimony as to whether there was any sexual
activity involving Williams. Watley drove Williams home the next morning.
[299 Kan. 1041] That next morning at the Glendale house, Bonner told her boyfriend, Kevin, about Bolden's involvement with her prior rape. Additionally, according to Evans and Bonner, Williams told Kevin that Watley and Bolden had sexually assaulted her the night before. Kevin then called his cousin, Quartez, who came to the Glendale house where the group discussed a course of action. There was conflicting testimony as to the group's discussions, with variations of the plan being to rob Bolden, to rough-up Bolden, to talk to him, or for Kevin to simply " take care of it." What is undisputed is that the Brown cousins, Kevin and Quartez, and two of the women, Bonner and Williams, left the Glendale house in an automobile, enroute to Bolden's apartment. Apparently, Kevin did not want the women to go, but they insisted on going. Along the way, they stopped at the house of Cody Baker, also known as " Drop," ostensibly to pick up firearms. The Brown cousins had never been to Bolden's apartment, so the women directed them to the apartment complex and then to Bolden's particular apartment.
At the complex, Kevin and Quartez directed the women to stay in the car, and the men entered Bolden's apartment. They first encountered Green in the living room and, at gunpoint, directed her to lie on the ground and asked for Bolden's location. The cousins proceeded to the bedroom indicated by Green, and she heard gunshots, together with the inquiry, [W]hy did you rape my home girl?" Green then heard a window shatter and saw one of the assailants exit the apartment through the living room. Apparently, Bolden jumped through a bedroom window and attempted to get away, although he would be discovered later on the sidewalk at the complex and would subsequently die from gunshot wounds.
When Bonner and Williams saw Bolden running around the apartment building, they jumped into the front seat of their vehicle, with Bonner driving. After picking up the Brown cousins, Bonner stopped the vehicle briefly at Drop's house before returning to the Glendale house.
At various times thereafter, Williams told law enforcement officers different versions of what happened, minimizing her involvement, knowledge, and culpability in the incident. Ultimately, the State would charge Williams with first-degree murder or, in the [299 Kan. 1042] alternative, felony murder, along with aggravated burglary and aggravated assault. The case proceeded to jury trial, where Williams would testify in her own behalf, relating that she simply left the Glendale house in the automobile with the other three because she needed to pick up her daughter and she thought they were going to sell marijuana rather than head to Bolden's house. Nevertheless, the jury convicted Williams of felony murder, aggravated robbery, and aggravated assault.
Of the other three participants, Bonner entered a plea, was sentenced, and has not appealed. Kevin and Quartez Brown went to trial, were convicted, and have appeals pending before this court which were heard on the same docket with Williams' case. However, the three pending appeals raise completely different ...