As Corrected December 30, 2014.
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Appeal from Saline District Court; JEROME P. HELLMER, judge.
BY THE COURT
1. To establish guilt on the basis of aiding and abetting, the State must show that the defendant knowingly associated with the unlawful venture and participated in such a way as to indicate that he or she facilitated the success of the venture. Testimony of witnesses that placed the defendant in this case at the scene of the crime shortly before the crime's commission along with other witness testimony placing the defendant with the fruits of the crime was sufficient to establish that the defendant was present during the commission of the crime. In addition, forensic evidence tending to show that the victim did not provoke his assailant and witness testimony tending to show that the victim may have been targeted because he possessed large amounts of marijuana contributed to sufficient evidence of the defendant's premeditation, at least as an aider and abettor.
2. Kansas' aiding and abetting statute outlines the proper assignment of criminal responsibility; it does not create distinct elements or alternative means of the crimes to which it is applied. State v. Betancourt, 299 Kan. 131, 139, 322 P.3d 353 (2014).
3. K.S.A. 22-3202(1) permits crimes to be charged in one complaint--and, thus, under K.S.A. 22-3203, permits consolidation of complaints--when " the crimes charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." The " connected together" phrase from the third statutory condition precedent is applicable in three situations: (1) when the defendant provided evidence of one crime while committing another; (2) when some of the charges were precipitated by other charges; or (3) when all of the charges stemmed from a common event or goal. An appellate court cannot rely on mere temporal proximity or similar witnesses to support a district judge's consolidation decision under the third statutory condition. But where ballistics evidence indicates that the same gun was used in the commission of two different crimes, the two crimes are sufficiently connected together to satisfy the third statutory condition precedent.
4. The State has no right to challenge hearsay statements based on the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
5. A victim's statement to his significant other that she and the kids would " never have to see him again" was not offered for the literal truth of the matter asserted and was not hearsay.
6. It is clear error to provide a jury with an instruction stating: " If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty." Although a criminal jury should not be instructed on its inherent power of nullification, a jury instruction telling the jury it " must" or " will" enter a verdict is too close to directing a verdict for the State. The contrary holding of State v. Lovelace, 227 Kan. 348, 354, 607 P.2d 49 (1980), is overruled.
7. When a juror is replaced after deliberations have begun, the district judge must instruct the jury to begin its deliberations anew.
8. If a juror alleges that his or her removal and replacement was successfully sought by other jurors because of a disagreement over voting position, and that version of events differs from that of the presiding juror, a district judge must recall at least those two jurors to testify live. Without such live testimony, the factual dispute cannot be resolved nor the credibility of the jurors weighed.
9. Cumulative error meriting reversal exists if the evidence against a defendant is weak and multiple serious procedural defects taint the trial.
Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.
Christina Trocheck, assistant district attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
BEIER, J., MICHAEL J. MALONE, Senior Judge, assigned.
[301 Kan. 134] Beier, J.:
This is defendant Willie Smith-Parker's direct appeal from two prosecutions joined for a single jury trial. The first case arose from a burglary/homicide on the morning of June 13, 2009, and the second arose from a fatal shooting on the morning of June 19, 2009. Smith-Parker was convicted of first-degree premeditated murder in the death of Alfred Mack, second-degree intentional murder in the later death of Justin Letourneau, theft, and aggravated assault. The jury acquitted Smith-Parker of two aggravated burglary counts.
Smith-Parker raises 10 issues in this appeal: (1) whether the evidence of premeditation of Mack's murder was sufficient; (2) whether aiding and abetting is an alternative means crime; (3) whether the two cases should have been consolidated for trial; (4) whether the district judge abused his discretion by excluding a statement made by Letourneau; (5) whether the mandatory wording of an instruction requires reversal for clear error; (6) whether the district judge erred by failing to tell jurors to begin their deliberations anew when an alternate juror was substituted; (7) cumulative error; (8) whether the district judge abused his discretion by refusing to recall the jury; (9) whether the district judge violated Smith-Parker's rights under the Sixth and Fourteenth Amendments to the United States Constitution, as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him to a harsher penalty based on his criminal history; and (10) whether the district judge violated Smith-Parker's Sixth and Fourteenth Amendment rights, as articulated in Apprendi, by sentencing Smith-Parker to the highest sentence in the range in the applicable Kansas Sentencing Guidelines Act presumptive grid box.
We conclude that four of Smith-Parker's allegations of error have merit and that they cumulatively require reversal of all of his convictions, and we remand the case for further proceedings. [301 Kan. 135] Given this result, we need not reach either of his two sentencing issues; but we observe in passing that each has been finally resolved against him in our Kansas courts. See State v. Ivory, 273 Kan. 44, 41 P.3d 781, Syl. (2002) (reliance on criminal history permissible); State v. Johnson, 286 Kan. 824, Syl. ¶ ¶ 5-6, 190 P.3d 207 (2008) (highest sentence in grid box permissible).
Factual and Procedural Background
Smith-Parker's numerous appellate issues, including sufficiency of evidence to support his conviction for premeditated first-degree murder, require a recitation of factual and procedural background more lengthy and comprehensive than the norm.
In June 2009, Benjamin Friedman and his roommate lived in Apartment B at 1012 Johnstown Avenue. On the morning of June 13, Friedman's alarm woke him, and he heard someone running down the stairs outside of his apartment. He also heard a loud noise, which he would later describe as similar to a car backfiring. Two other residents of nearby apartments also reported having heard a loud noise at about the same time, describing it as a " great big bang" or a gunshot.
After Friedman got out of bed, he went into the living room of his apartment and noticed that his television was missing. A Sony PlayStation and various movies and video games also were missing.
Friedman went outside and observed that one of the screens to a lower apartment had been removed. Friedman went back into the building and checked the downstairs apartments. He noticed splintering on the door of Apartment C. Friedman could hear a television
inside the apartment, but nobody answered the door when he knocked on it.
Friedman then called 911.
When Officer Glen Soldan arrived at the apartments, he observed that the door to Apartment C " had been kicked open and it wasn't quite shut." When he knocked on the door it swung open, and Soldan could see " a large black male lying on his back, feet [301 Kan. 136] towards [the door], obviously not breathing." The man was later identified as Mack.
Soldan entered the apartment to make sure that no one else was in it, and he noticed an empty .22 casing lying on the floor.
When investigators arrived, they found and photographed a partial footprint on a split-rail fencepost just below the deck to Friedman's apartment. Later enhancement of the image would show that the word " Servus" was imprinted on the sole.
Ron Styles, an investigator, would later testify that it appeared Mack had been sitting in a chair watching television and, based on the angle the bullet entered his body, was in the process of standing up when he was shot. The blood splatter pattern in the apartment indicated that Mack probably lived 1 to 2 minutes before collapsing into the kitchen. According to Styles, it was likely Mack was shot from the doorway of the apartment.
Dr. Altaf Hossain conducted Mack's autopsy, which determined that the cause of death was bleeding from a penetrating gunshot wound to the chest. Based on the location of the gunshot wound and information provided by law enforcement, Hossain would testify at trial that Mack had been shot from more than 2 feet away.
Investigators did not have any immediate leads or suspects.
A little after 6 on the morning of June 19, 2009, Darci Davis was standing outside the Salina Regional Health Center when she noticed a white four-door car " coming down the street towards the hospital from the right and it squealed into the parking lot across the street . . . and then it squealed around and . . . stopped right beside" her. The driver of the car, later identified as Smith-Parker, asked Davis for directions to the emergency room. Davis noticed that the car's passenger, later identified as Letourneau, was leaning on the driver and had blood on him and that " there was blood on the window, . . . blood on the door, [and] just . . . a lot of blood." Davis provided directions, and Smith-Parker drove off in the direction of the emergency room.
The first nurse to respond found Letourneau in the passenger seat of the car. His airway was " pretty much closed" ; he was not [301 Kan. 137] responsive; he had vomit all over him; and appeared to have a head trauma. Another nurse would later testify that there was a " penetration wound to [the victim's] right temple and there was blood and emesis on the patient and in the car and on us." One of the nurses asked Smith-Parker who had shot the passenger. Smith-Parker replied: " I don't know."
A 911 call was placed from the emergency room of the hospital at 6:23 that morning to report a shooting victim.
Crystal Gile was the first law enforcement officer to arrive at the hospital. She found a white Chevy Cavalier parked under the awning of the emergency room. She pulled Smith-Parker aside, and she would testify at trial that Smith-Parker was very emotional during their conversation.
Smith-Parker identified Letourneau, and Gile asked, " What happened to Justin?" Smith-Parker responded, " I killed him." Gile then asked Smith-Parker to explain what had happened. After initially saying that Letourneau had been " beatin' his son momma," Smith-Parker said, " Justin told me he was gonna kill me." Smith-Parker then said that this had happened " on the road." After mentioning a gun, Gile asked Smith-Parker if there was a gun in the car. Smith-Parker did not know where the gun was. Gile then took Smith-Parker into custody and transported him to the Salina Police Department.
Investigators determined that the Cavalier Smith-Parker had driven to the hospital was
registered to Tiffany Wellman and Victor Gonzales, and they obtained a search warrant for Wellman's home. During the search, officers found a shoebox on the top shelf of a hallway closet. In it was a cloth, zippered gun case, and inside it was a box of Winchester .38 Special ammunition, some loose Super X .22 shells, and a sock that had more shells inside of it. Investigators also found several DVDs and a backpack, which contained a PlayStation and video cords. A check of the serial number from the PlayStation revealed that it had been reported stolen from Friedman's apartment.
Clayton Hardaway was dispatched to do a welfare check at Letourneau's home. Letourneau's stepbrother, Travis Graham, was inside and Kendra Yanik-Ducharme was outside; a baby was sleeping [301 Kan. 138] on the floor. Yanik-Ducharme told Hardaway that Letourneau was her boyfriend. Hardaway asked Yanik-Ducharme when she had last seen Letourneau, and Yanik-Ducharme said she had not seen him since the previous evening. Hardaway informed Yanik-Ducharme that Letourneau had been shot.
While investigators were at Letourneau's, Yanik-Ducharme consented to a search of her car. On the floor of the passenger side of the car, investigators found a gun, which Yanik-Ducharme identified as belonging to Letourneau. The gun was a .38 Colt Cobra pistol.
Letourneau was flown to a Wichita hospital, where the decision was made on June 20 to remove him from life support.
Investigators impounded the Cavalier and searched it. They found a white cotton glove with a Dillon's sack inside it under the driver's seat. Inside the sack was .38 ammunition. A Super X .22 cartridge case was found on the right front floor.
The gun used to shoot Letourneau was never recovered.
Dr. Ronald F. Distefano performed Letourneau's autopsy. Distefano concluded that Letourneau had a single gunshot wound on the right side of his head. Distefano later testified at trial that, based on " stippling" of the skin around the wound, the gun was " a few inches up to possibly a foot" from Letourneau when fired. The direction of the bullet " was from right to left, somewhat from front to back, and slightly downward." At trial, Distefano also testified that, in his opinion, the death was a homicide and not a suicide or accident. But he admitted that he could not make this determination from looking at the body alone. The " findings of the wound show[ed] closeness[, but] they do not show whether [Letourneau] shot himself or whether someone else did." Distefano relied on information provided by the police in reaching his conclusion that the death was a homicide. According to Distefano, based on the information he had received, everything pointed toward homicide and nothing suggested suicide.
Ballistics testing conducted on the .22 casing recovered from Mack's apartment and the Super X .22 casing recovered from the floor of the Cavalier had been ejected from the same gun.
[301 Kan. 139] On June 23, 2009, the State filed a Complaint/Information in case No. 09 CR 633, charging Smith-Parker with three counts: aggravated assault of Letourneau, second-degree intentional murder of Letourneau, and criminal possession of a firearm.
Approximately 4 months later, the State filed a Complaint/Information in case No. 09 CR 1047, charging Smith-Parker with five counts: first-degree premeditated murder and first-degree felony murder in the death of Mack, two counts of aggravated burglary of Mack's and Friedman's apartments, and one count of theft of items from Friedman's apartment.
The State requested the two cases be tried together, and the district judge initially set the two cases for a joint trial. Smith-Parker then filed a motion to sever. At a hearing on the motion, the district judge concluded that the two cases could not be tried together, noting that the only evidence tying the crimes together was the ballistics testing on the .22 casings.
When the State filed a motion to reconsider the severance, the district judge reversed
his previous ruling and allowed the cases to be consolidated. He stated:
" The court is struck by the fact that all of the individuals in both of these cases are well acquainted to each other, their activities, their behaviors, their families, their homes, their connections, their history of sharing experiences together, including the serving of time together, are so inextricabl[y] tied to each other the testimony, quite frankly, is clear that these individuals considered themselves to be brothers, not just friends. They were so close to each other that they viewed each other as relatives, not as just simply acquaintances or people who might have grown to know each other over some period of time.
" They shared common concerns about family members, about children, about actions toward family members, particularly the wife or significant other of Mr. Letourneau concerns raised by Mr. [Smith-Parker], they had their disagreements, they had the common theme of being involved apparently in the allegations and concerns being raised on activity involving residential burglaries and thefts, they had the commonality of the issues of perhaps drug involvements in these matters.
" [B]ut when you look at the totality of the information that has been presented by the State, recognizing that [its] burden remains beyond a reasonable doubt to tie this together and present it coherently to a jury, which is a different standard, [301 Kan. 140] this court is faced with the reality that we do have the connection in these matters, are they same or similar in character.
" We have a death of two individuals, we have burglaries, we have common communication between the parties in this matter discussing that particular activity, discussing the concerns about the character or the person of Mr. Mack discussing Mr. Letourneau, the same act or transaction it is difficult for the court to separate this particular scenario into any one particular act or transaction when you look at this in the sequence of events as presented by investigation, it flows, it flows from one party to another party to the same event to the same house, to the same persons, to the same activities, in that extent it does have the same feel of the same act or transaction.
" Are there two or more acts or transactions that are connected together? When search warrants are executed and suddenly we find stolen property in the residence of someone who is closely related to the individuals charged in this matter. We find that a weapon is located in the same location. We find again that the ballistic matches to the death of both parties.
" There seems to be no significant interruption in the behavior and actions on the part of these individuals throughout these transactions which lead to the death of both individuals and the timeline is so close together within a week we have two individuals who have died as a result of fatal gunshots. Looking at all these cases as set forth and the State's argument that they would be subjected to double jeopardy and the issue of compulsory joinder and the issue of 60-455, quite frankly, and if the State were to present these in two separate proceedings, quite frankly, it may be impossible if not impractical for them to proceed in both cases."
In a journal entry summarizing the hearing, the district judge stated:
" After hearing arguments of counsel, the Court finds that pursuant to K.S.A. 22-3203, the above-captioned cases should be tried together. The Court finds that alleged in offenses in each case are the same general character, require the same mode of trial and the same kind of evidence, and occurred in the same jurisdiction within a short period of time. The Court further finds that the above-captioned cases involve offenses that are the same or similar character or part of a common scheme or plan."
During voir dire, the district judge asked members of the venire if anyone had any hardships that needed to be discussed with the court in chambers. At this point, juror N.B. said, " It's not a hardship[. I]t's just English is not my first language."
[301 Kan. 141] While in chambers, N.B. disclosed that he was a librarian at the Salina Public Library and that he had a master's degree in library science from Emporia State University. When asked about his language skills N.B. stated, " I have no problem with communicating with people." But he said he sometimes had trouble following what was being said on television shows, such as CSI. N.B. said he might have to ask people to repeat what had been said, and he reiterated that he did " know the language[; ] I read books."
After further discussion, the district judge stated that N.B. was qualified to serve on Smith-Parker's jury. Before N.B. left chambers, the district judge asked N.B. if he would have any problems inquiring if something was said by the court or a witness that he may have misunderstood. N.B. replied that he did not have any problem asking other people if he did not understand something.
At trial, Friedman testified that he knew Graham, Smith-Parker's stepbrother that officers had found sleeping on the couch at Yanik-Ducharme's home the morning of Letourneau's shooting. According to Friedman, Graham had been in his apartment on multiple occasions.
Roommates Nathanial Johnson and Donyell Smith lived in the apartment below Friedman's. Both Johnson and Smith testified that they had seen Thomas Jenkins, a friend of both Smith-Parker and Letourneau, at the apartment complex on the morning of the Johnstown apartments crimes.
Johnson testified that he had seen a person he thought was Thomas on the sidewalk outside of the apartment complex. Johnson knew Thomas because the two had gone to school together. Johnson called out to Thomas and briefly spoke to him. Johnson then went outside to speak with him. After the conversation, Thomas walked away toward the complex' carport.
Smith testified that she saw Thomas as she was going downstairs to the apartment she shared with Johnson. Smith also knew Thomas from school; she said " hi" to him and then continued to the apartment and went to bed. Smith testified that she saw two men [301 Kan. 142] with Thomas, one white and one black. Letourneau was white, and Smith-Parker is black.
Kendra Jenkins, Thomas' wife, testified that she came home at approximately 2 a.m. on the night of the Johnstown apartment crimes. She said Thomas was the only one at her home when she arrived, even though she had earlier told investigators that she saw Smith-Parker and Letourneau with Thomas that night. Kendra also testified that she left her home again that night when her son's father picked her up to retrieve her car. She did ...