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Appeal from Sedgwick District Court; ANTHONY J. POWELL and GREGORY L. WALLER, judges.
1. In order to facilitate a meaningful appellate review, the district courts are directed by Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) that they must make sufficient findings of fact and conclusions of law on the record.
2. A criminal defendant has a constitutional right to the effective assistance of counsel. But the constitutional right to counsel does not give a criminal defendant for whom counsel has been court-appointed, the right to choose which attorney will represent the defendant.
3. If a defendant seeks substitute counsel, the defendant must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.
4. A criminal defendant seeking substitute counsel bears the responsibility of providing an articulated statement of attorney dissatisfaction. The providing of an articulated statement of attorney dissatisfaction by the defendant will trigger the district court's duty to inquire into the potential conflict of interest.
5. A district court's duty to inquire into a potential attorney/client conflict emanates from its responsibility to assure that a defendant's constitutional right to effective assistance of counsel is honored. The district court's duty to inquire into a potential attorney/client conflict accrues when the court first learns of the potential conflict and that duty does not decay or dissipate through any inaction on the part of the defendant.
6. The district court's failure to fulfill its duty to inquire into a potential attorney/client conflict of which it has become aware is an abuse of discretion.
7. A lack of authority for the defendant to enter the building is an element of the crime of aggravated burglary, separate and apart from the element that the entry be accompanied with an intent to commit a felony therein. A lack of authority to enter a building is not refuted simply because the entry door is always unlocked or because persons other than the defendant have been given free access to the building.
8. In this case, a victim's statement that she felt threatened when the defendant pointed a gun at her and demanded that she get down on the floor was sufficient evidence to support the apprehension of immediate bodily harm element of aggravated assault.
9. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
10. In order for a defendant to be entitled to a reduced charge because he or she acted in the heat of passion, his or her emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.
11. For a defendant to be entitled to lesser included offense instructions on unintentional but reckless second-degree murder and involuntary manslaughter, there must be evidence to support a finding that the killing was unintentional.
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, 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.
JOHNSON, J. MORITZ, J., not participating. DAVID J. KING, District Judge, assigned.
[300 Kan. 567] OPINION
Quartez Brown (Quartez) directly appeals from his convictions for felony murder, the alternative charge of second-degree murder, aggravated burglary, and aggravated assault. The charges arose out of an incident in which Quartez, Kevin Brown (Brown), Kiara Williams, and Jalessa Bonner went to the apartment of Otis Bolden, where Quartez and Brown entered the apartment, assaulted Ashley Green with a handgun, and fatally shot Bolden.
Quartez contends: (1) The district court abused its discretion in not inquiring into the reasons behind his pro se motion for new counsel before allowing its withdrawal outside Quartez' presence and without a hearing; (2) insufficient evidence supported his aggravated burglary, felony murder, and aggravated assault convictions; (3) the district court should have given lesser included offense instructions on voluntary manslaughter, reckless second-degree murder, and involuntary manslaughter; (4) the district court erred in journalizing his second-degree murder conviction as an off-grid crime; and (5) the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by considering his prior convictions at sentencing.
Finding that the district court erred in not inquiring before allowing the apparently nonconsensual withdrawal of Quartez' pro se motion for new counsel, we remand on this issue. We also remand for a nunc pro tunc order correcting the severity level of Quartez' second-degree murder conviction. We reject Quartez' remaining claims of error.
Facts and Procedural Background
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. [300 Kan. 568] 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 ask to leave the apartment.
Bolden drove the three women--Bonner, Williams, and Evans--to the home of Bonner and Evans on Glendale, albeit Williams would return to Bolden's apartment to stay the night. En route back to his apartment, Bolden picked up 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.
That same morning, Bonner told her boyfriend, Brown, about Bolden's involvement in her prior rape. Additionally, according to Bonner, Williams told Brown that Watley and Bolden had sexually assaulted her the night before. Brown then called his cousin, Quartez, who came to the Glendale house where the group discussed a course of action. Evans noted that Brown was visibly upset but Quartez was not. Quartez, Brown, Williams, and Bonner left in Quartez' car to go to Bolden's house. Evans and Bonner both testified that they believed the Brown cousins intended to fight Bolden but neither believed the men would kill Bolden. But on the way to Bolden's house, the group stopped at " Drop's" house, ostensibly to pick up firearms.
The Brown cousins were not friends with Bolden and had never been to Bolden's apartment, so Bonner directed them. When the group arrived at the apartment complex, Quartez backed into a parking spot. The Brown cousins left the car and opened the unlocked door to 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. Initially, Green thought the men were Bolden's friends that were " playing" with him. Nevertheless, Green was afraid and felt threatened by the cousins' actions. 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. [300 Kan. 569] Apparently, Bolden jumped through a bedroom window and attempted to get away, although he would be discovered later on the sidewalk at the complex.
When Bonner saw Bolden limping around the apartment building, she moved to the driver's seat of the vehicle and retrieved the Brown cousins. The group briefly stopped at Drop's house before returning to the Glendale house. Once back at the Glendale house, Bonner asked Brown what happened at Bolden's apartment. He explained that they were just going to talk to Bolden, but it looked as if Bolden was about to reach for something in his side-table drawer, so Brown shot him. Brown said that after his gun jammed, Quartez shot.
Passersby discovered Bolden on an apartment complex sidewalk and summoned emergency personnel, who transported Bolden to the hospital, where he died from multiple gunshot wounds. Bolden had superficial wounds at his genital area and an entrance and exit wound on his left thigh, but the majority of Bolden's gunshot wounds entered his body from the back side.
A crime scene investigation revealed no signs of forced entry into Bolden's apartment. In the bedroom, an investigator found five .25 caliber shell casings, one .45 caliber shell casing, and a Bluetooth earbud that was still blinking. The deoxyribonucleic acid (DNA) profile found on the earbud was a mixture of at least three individuals, but the DNA of the major contributor was consistent with Quartez' profile. At trial, the State presented three photos from Quartez' cellphone depicting a man presumed to be Quartez wearing a Bluetooth earbud.
Based on these events, the State charged Quartez with first-degree premeditated murder, or in the alternative, first-degree felony murder, aggravated burglary, and aggravated assault. Before his trial began, Quartez filed a pro se motion requesting the district court to appoint him new counsel. The motion was set for a hearing, but on the day the hearing was scheduled, the record indicates
that the motion was withdrawn. The record does not indicate who withdrew the motion. The motion is not discussed again on the record until Quartez mentioned it during his sentencing hearing.
[300 Kan. 570] A jury found Quartez guilty of first-degree felony murder, second-degree murder as a lesser included offense of first-degree premeditated murder, aggravated burglary, and aggravated assault. The district court did not impose a sentence for the second-degree murder conviction, but at the request of the State and with defense counsel's approval, the district court did not dismiss the second-degree murder conviction. The district court then imposed sentences of 20 years to life imprisonment and postrelease supervision of life for the felony-murder conviction, 34 months' imprisonment for aggravated burglary, and 12 months' imprisonment for aggravated assault, ordering the sentences to run concurrently.
Of the other three participants, Bonner entered a plea, was sentenced, and has not appealed. The other two--Brown and Williams--went to trial, were convicted, and have appeals pending before this court which were heard on the same docket with Quartez' case. However, the three pending appeals raise completely different issues, prompting us to treat them as separate cases.
Withdrawal of Pro Se Motion for New Counsel Without Inquiry
Quartez first argues that the district court abused its discretion in allowing someone to withdraw his pro se motion for new counsel without making a sufficient inquiry into the circumstances prompting the motion. The State does not defend the district court's actions on the merits, but rather it counters with a procedural strategy. Specifically, the State contends that, pursuant to K.S.A. 2013 Supp. 22-3501, Quartez only had 14 days to make his claim for a new trial and that his oral motion at sentencing was too late, depriving the district court of jurisdiction to consider the claim of error, and, thus, precluding our consideration of his complaint.
Standards of Review
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
If we clear the jurisdictional hurdle, we review the district court's inquiry into a potential conflict of interest under the abuse of discretion [300 Kan. 571] standard. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013). That standard is stated as follows:
" Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
The defendant bears the burden of showing that the district court abused its discretion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
Before proceeding further, we pause to observe that this case highlights how a cavalier approach to making a record in the district court can impede, if not foreclose, a meaningful appellate review and, thus, needlessly consume scarce judicial resources. In a case from the same judicial district, where the practice is to memorialize rulings on motions with preprinted minute sheets upon which the presiding judge inks a checkmark in a box or two and, perhaps, scribbles a few words of cryptic explanation, we set forth the following cautionary instruction:
" It is true that to facilitate a meaningful appellate review, the district court must make sufficient findings of fact and conclusions of law on the record. State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000); Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239). This obligation is emphasized
in Rule 165, which states in part that '[i]n all contested matters submitted to a judge without a jury . .., the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.'" (Emphasis added.) State v. Edwards, 290 Kan. 330, 335, 226 P.3d 1285 (2010).
Unfortunately, a scant 9 months after the foregoing statement of a district court's obligation to explain its ruling, the Eighteenth Judicial District failed to do so in this case. There is no record that a judge made an oral ruling on the motion's disposition and the written ruling is a checkmark in ...