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Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge.
BY THE COURT
1. The Sixth Amendment to the United States Constitution guarantees in all criminal prosecutions that the accused shall enjoy the right to have the assistance of counsel for his or her defense. To be meaningful, the right to counsel guaranteed by this provision necessarily includes the right to effective assistance of counsel. This right is made applicable to state proceedings by the Fourteenth Amendment to the United States Constitution.
2. To support a claim of ineffective assistance of counsel based upon deficient performance, a criminal defendant must prove: (a) Counsel's performance was deficient and (b) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether the attorney's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.
3. The first prong of the test for ineffective assistance of counsel based upon allegations of deficient performance requires a defendant to show counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Courts must indulge a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance.
4. In this case, statements made over the telephone by a deceased victim to her mother in the course of an attack by an assailant are nontestimonial and admission of the statements into evidence does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution as applied in Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
5. If a defendant makes a threat against a deceased victim prior to the incident causing the victim's death, that threat can be admitted at trial to show intent and motive.
6. 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.
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Edmond D. Brancart, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
BILES, J. MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 65] Biles, J.
Olin L. Coones was convicted of first-degree premeditated murder for killing Kathleen Schroll, with whom he had an ongoing civil dispute over an inheritance. The key evidence was testimony that Kathleen called her mother in a panic about 10 minutes before police discovered her body to say that Coones was in the house to kill her and her husband.
Coones raises four challenges to his conviction: (1) ineffective assistance of trial counsel; (2) erroneous admission of hearsay testimony concerning a confrontation between Coones and Kathleen a few days before the murder; (3) prosecutorial misconduct; and (4) cumulative error. We affirm the conviction.
Coones also challenges the constitutionality of his hard 50 sentence, which was imposed under K.S.A. 21-4635, as violating his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. We vacate the hard 50 sentence as required by Alleyne v. United States, 570 U.S., 133 S.Ct. 2151, 2155, 2160-63, 186 L.Ed.2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014) ( K.S.A. 21-4635 violates Sixth Amendment [301 Kan. 66] because it permits judge to find by preponderance of the evidence existence of aggravating factor necessary to impose increased mandatory minimum sentence, rather than requiring a jury to make that finding beyond a reasonable doubt). We remand the case to the district court for resentencing.
Factual and Procedural Background
Coones was charged with the first-degree premeditated murder of Carl and Kathleen Schroll, who were discovered dead in their home on April 7, 2008, at around 2:30 a.m. There were no signs of a struggle, and nothing was stolen. Kathleen died from a gunshot wound to the back of her head. Carl died from two gunshot wounds to the chest.
A cordless phone and a revolver were found lying near Kathleen's body. Her daughter said she had seen the gun in her mother's purse previously. Kathleen's DNA was found inside the barrel and on the trigger. The bullets located in the bodies were from the same caliber gun, but too deformed to establish they were fired from that revolver.
Coones was tried twice. In the first trial, he was acquitted of Carl's murder and convicted of Kathleen's. The district court granted a motion for new trial on the conviction because the State did not timely disclose computer evidence to the defense.
At his second trial, Coones was represented by the same attorney, Patti Kalb. The same prosecutor tried the State's case, and the same district court judge presided. The record does not contain a written stipulation, but both attorneys indicated they had agreed to retry the case based on the evidentiary rulings from the first trial. For the most part, the same evidence was admitted at the second trial. The exception was some additional computer evidence Coones presented about his computer usage the night of the murders.
Kathleen's mother, Elizabeth Horton, testified she was awakened by a phone call at 2:21 a.m. the night Kathleen died. Elizabeth looked at the caller ID and recognized Kathleen's home phone number. She also recognized Kathleen's voice based on their daily phone conversations and because the caller said, " Mom." Kathleen [301 Kan. 67] told Elizabeth that Coones was " in the house and he said he is going to kill Carl. He said he is going to kill me, and he said he has his tracks covered so no one else will know who did it." Kathleen repeated that statement and said she had not called the police. Then, the line went dead. Elizabeth told her son, Randy Horton, what Kathleen said. Randy called 911.
An officer arrived at the Schrolls' home about 10 minutes later. When entering the house, police found Kathleen and Carl dead. Kathleen's body was lying on her back in the entryway, and Carl was in a bedroom.
Photographs of the mother's caller ID screen were admitted at trial. It showed an incoming call at 2:21 a.m. on April 7, and identified the originating phone number as the victims' home phone number and the caller as " Schroll, Carl." But the mother's phone records listed a different originating phone number and did not reflect Randy's outgoing 911 call. These discrepancies are discussed in more detail later.
A recording of Randy's 911 call was played for the jury. On it, Randy informed the 911 operator that Kathleen had just called and said Coones was at Kathleen's house " breaking in with a gun in his hand." As the operator questioned Randy, Elizabeth can be heard relaying information in the background. Randy described Kathleen's phone as going dead.
The State's theory for motive was that Coones was angry because he believed Kathleen, who had been his father's caretaker, had been stealing from his father and exercised undue influence to inherit part of his father's estate. Consistent with that theory, the prosecution presented evidence that Kathleen and Coones had prior confrontations. Elizabeth testified she spoke with Kathleen about Coones " practically every day. Every time something new came up with him, [Kathleen] called [Elizabeth] immediately." Elizabeth said Coones would drive past Kathleen's home and that he " moved close to where she lived and drove past a lot."
Blair Hadley, Kathleen's daughter, testified over Coones' objection that she was riding with Kathleen the day before the killings and drove past a QuikTrip. Kathleen told Hadley she had passed Coones on her way into QuikTrip the day before, i.e., 2 days before [301 Kan. 68] she was killed. Hadley further testified that her mother said Coones told her, " You are not going to be spending no more of
my dad's money, bitch." Coones denied that a confrontation occurred, and a detective conceded that neither Kathleen nor Coones appeared on the store's security video.
Coones presented an alibi defense and advanced his own theory that Kathleen killed Carl in a murder-suicide. Regarding the alibi, Coones offered his family's testimony about his activity the night of the murders. His wife testified that Coones came to bed while their daughter and her fiancé were watching television. She said Coones only left the room once to go to the bathroom. She testified she heard him on the computer a few times during the night. Information from Coones' computer established that someone logged in under his profile and conducted internet searches at 1:07 a.m., and 4:51 a.m., which left a gap in activity during the time of the murders.
Coones' daughter and her fiancé testified they were watching a movie in the living room until 2:30 or 3 a.m. The daughter said Coones left the bedroom to go to the bathroom at around 2:30 a.m. and returned to the bedroom. The fiancé and Coones' wife both testified Coones would have had to pass the living room to leave the house.
Regarding his murder-suicide theory, Coones called a forensic scientist, Gene Gietzen, who testified that the velocity of blood spatter found at the victims' home could not eliminate the possibility that Kathleen took her own life. Gietzen was also critical of the evidence collected and tested by the State. He said the State could have tested biological tissue found on Kathleen's ring to determine whether it belonged to her, and gunshot residue collection kits could have been tested to reveal whether residue was present.
The jury convicted Coones of first-degree premeditated murder for Kathleen's killing. His attorney, Kalb, filed a motion for judgment of acquittal and a motion for new trial. While those motions were pending, Kalb withdrew. Coones' new counsel filed a second motion for new trial, which alleged Kalb's performance fell below an objective standard of reasonableness.
[301 Kan. 69] The district court held an evidentiary hearing limited to whether Kalb's performance was deficient. The court indicated it would hold a second hearing on whether Coones was prejudiced by his attorney's performance if it found deficient performance. The court ruled Kalb's efforts did not fall below an objective standard of reasonableness and then denied the remaining issues for a new trial.
At sentencing, the State sought a life sentence with a mandatory minimum of 50 years' imprisonment. The district court agreed and imposed the hard 50 sentence after finding Coones engaged in conduct that caused a great risk of death to more than one person and committed the crime in an especially heinous, atrocious, and cruel manner.
Coones directly appeals to this court, which has jurisdiction under K.S.A. 2013 Supp. ...