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State v. Richard

Supreme Court of Kansas

September 5, 2014

STATE OF KANSAS, Appellee,
v.
DERRICK RICHARD, Appellant

Page 180

[Copyrighted Material Omitted]

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Appeal from Sedgwick District Court; ERIC A. COMMER, judge.

SYLLABUS

BY THE COURT

1.

A trial court's determination of whether to admit evidence of a defendant's prior crime or civil wrong is governed by a three-part test:

First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.

Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.

Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.

2.

A person challenging the legality of a search must establish that he or she was the victim of an invasion of privacy. To establish a sufficient interest to have standing to challenge the legality of a search, the challenger must claim either to have a proprietary or possessory interest in the premises searched or to have owned or possessed the seized property.

3.

For a consent to search to be valid there must be clear and positive testimony that the consent was unequivocal, specific, and freely given, without duress or coercion, either expressed or implied. An individual's mental state is a factor in determining the voluntariness of his or her consent to search.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger and Deborah Hughes, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

JOHNSON, J. MORITZ, J., not participating.

OPINION

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[300 Kan. 716] Johnson, J.:

A jury convicted Derrick Richard of felony murder based upon the underlying felony of criminal discharge of a firearm at an occupied building. Richard allegedly fired his handgun at a neighbor's house, and a bullet fatally wounded a man sitting inside the house. On direct appeal, Richard raises three evidentiary issues. We have jurisdiction under K.S.A. 22-3601(b)(1) (direct appeal for conviction of off-grid crime; life sentence). Finding no error, we affirm.

Facts and Procedural Overview

During the evening of July 16, 2010, Grady Lane and his wife, Erin Gonzalez-Lane, were watching television in the second-story family room of their home at 532 North Wabash in Wichita, Kansas. Gonzalez-Lane went downstairs to bed around 10 p.m., while Lane stayed in the family room to play video games. At around 11 p.m., Gonzalez-Lane heard what she described as " [p]ow, pow, pow, pow." Gonzalez-Lane assumed the noise was fireworks; therefore, after checking on her children, she decided all was well and went to sleep.

That same evening, at approximately 11 p.m., Officer Jason Waite responded to a call reporting gunshots fired in the nearby area of 500 North Ohio. Officer Waite encountered Derrick Richard in the street between two houses at 529 and 532 Wabash, but Richard said he had not heard gunshots or fireworks.

The next morning, Gonzalez-Lane discovered Lane still in the upstairs family room, but he was not breathing and there was " a lot of blood." Officers Chad Richardson and Channara Seang responded to Gonzalez-Lane's 911 call. They observed Lane, dead from a gunshot wound to the head, slumped

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over on his side as if he had been sitting upright on the couch and had fallen over. The officers discovered a single bullet hole in the family room window glass and three bullet holes in an interior wall, all of which appeared [300 Kan. 717] to have come from outside. Crime Scene Investigator Natalie Rowe collected three bullet fragments from inside the room.

The family room window faced the Lane's backyard, and an officer noted that if Lane had been sitting up on the couch, he would have been visible through the window for a shooter located in the backyard. A search of Lane's backyard yielded four spent cartridge casings (fired rounds) and one unfired cartridge, all designed to be used in a .45 caliber handgun and all manufactured by Speer. The cartridges were found approximately 20 to 25 yards from the family room window.

Gonzalez-Lane told police she " had a notion" that Richard, their neighbor directly to the south at 524 North Wabash, killed Lane because the two men had been in a dispute over a dog. Gonzalez-Lane also told police that Richard had previously fired shots in the neighborhood, after which he called Lane to tell him Richard was " just blowing off some steam and . . . everything was okay."

Richard lived with his daughter, Jasmine Huff, and his father, Irving Richard. After obtaining Huff's permission to search the family's backyard, officers found seven .45 caliber spent casings and one live .45 caliber cartridge. Four of the spent casings were manufactured by Winchester, ...


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