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State v. Lewis

Supreme Court of Kansas

February 20, 2015

STATE OF KANSAS, Appellee,
v.
MICHAEL TREVON LEWIS, Appellant

Page 929

[Copyrighted Material Omitted]

Page 930

Appeal from Johnson District Court; PETER V. RUDDICK, judge.

Convictions affirmed, sentence vacated in part, and case remanded with directions.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, argued the cause, and Rachel L. Pickering, of the same office, was on the briefs for appellant.

Steven J. Obermeier, senior deputy district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

ROSEN, J. MICHAEL J. MALONE, Senior Judge, assigned.

OPINION

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[301 Kan. 350] ROSEN, J.

After a bench trial, Michael Trevon Lewis was found guilty of felony murder and aggravated robbery. Lewis received a [301 Kan. 351] hard 20 life sentence for the felony-murder conviction and a consecutive 61-month prison sentence for the aggravated robbery conviction. The district court also imposed lifetime parole for both convictions.

On direct appeal before this court, Lewis argues: (1) the State presented insufficient evidence to convict him of either felony murder or aggravated robbery; (2) he did not knowingly and voluntarily waive his right to a jury trial; (3) the district court erred in denying his motion to dismiss the charges against him based on the alleged destruction of potentially exculpatory evidence; (4) the district court erred in imposing lifetime parole in connection with the aggravated robbery conviction; and (5) the cumulative effect of the alleged trial errors deprived him of a fair trial.

Before focusing on these issues, we address whether the notice of appeal filed in this case was sufficient to confer jurisdiction on this court over all the issues Lewis raises on appeal. We conclude that it was sufficient to confer jurisdiction over all the issues. Addressing the merits of the issues, we agree with Lewis that the district court erred in imposing lifetime parole in connection with his aggravated robbery conviction. Thus, we vacate that portion of his sentence and remand for resentencing. But, we reject his other alleged errors and, accordingly, affirm his convictions.

Facts

Because Lewis challenges the sufficiency of the circumstantial evidence used to convict him of the charged crimes, a detailed recitation of the evidence presented at his bench trial is warranted.

Curley Tyler, the victim in this case, and his son, Eshawn, lived together at an apartment complex in Shawnee, Kansas. Tyler and Eshawn made their living by buying and selling automobiles. Sometime in early 2010, Lewis, a family friend, began renting a Mercedes Benz from Tyler. Later, the two reached an agreement where Lewis would begin making payments toward the purchase of the car.

During the evening of April 3, 2010, the day before Easter, Tyler went out to dinner with his girlfriend, Sabrina Steen; Steen's son, Ben; and Tyler's nephew, Emmanuel. After dinner, the group, riding [301 Kan. 352] in Tyler's Cadillac Escalade, went to a church fundraiser for an acquaintance of Tyler's. After the fundraiser, the group stopped at a Walmart located near 1-435 and Shawnee Mission Parkway (close to Tyler's apartment) so Steen could purchase an Easter egg coloring kit.

While Steen shopped, Tyler and the others remained inside the Escalade. During this time, Tyler spoke on his cell phone with Lewis. Though Emmanuel could only hear Tyler's side of the conversation, Emmanuel said that the two men spoke about Lewis paying money he owed to Tyler for renting the Mercedes Benz. According to Emmanuel, Tyler tried to convince Lewis to bring the money to him in Shawnee, but Tyler ultimately agreed to meet Lewis in Grandview, Missouri.

The group eventually left Walmart and arrived back at Tyler's apartment. Once at the apartment, Tyler changed into different clothes and told Steen that he was going to take Emmanuel back to his home, Tyler then planned to meet Lewis so Lewis could pay him the money he owed for the car. After meeting Lewis, Tyler planned on stopping by his grandson's house to deliver clothes to him for Easter services the next day and then planned on stopping by his brother Alfred's house to cut Alfred's hair.

Tyler and Emmanuel left the apartment in Tyler's Escalade sometime after 11 p.m. Shortly after they left, Tyler's son, Eshawn, arrived back at the apartment. On the way to Emmanuel's home, Tyler told Emmanuel that he was going to Grandview, Missouri, to pick up some money from Lewis and asked Emmanuel if he would go to Grandview with

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him. Emmanuel declined. Tyler eventually dropped Emmanuel off at his home sometime around 11:30 p.m. Ultimately, Tyler never delivered the clothes to his grandson nor did he ever arrive at Alfred's house to cut his hair.

Because Tyler was late in returning to his apartment, Steen began calling his cell phone at around 1 a.m. on April 4 and proceeded to call Tyler's phone numerous times throughout the night, but Tyler never answered his phone.

Cody Martin, a 13-year-old boy who lived with his mother in the same apartment complex as Tyler, had been up watching TV but was heading to bed when he heard " two loud metal clings." Martin [301 Kan. 353] told a detective that he believed he heard the clings at around 2 a.m., but later testified at trial that he was not sure when he heard the sounds. He also was not positive whether he had heard two distinct sounds and conceded that it might have been one sound and its echo. Regardless, about 5 minutes after hearing the sounds, Martin looked out his bedroom window and saw what appeared to be a man sleeping inside a pearl white Escalade parked in front of Martin's apartment. Martin said that the man's body was lying between the two front seats of the Escalade.

Shanaya Kane, another resident of the apartment complex, arrived back at her apartment with her boyfriend sometime shortly after 4 a.m. As they pulled into Kane's parking space, they noticed a pearl white Escalade parked in the next stall over. Kane did not recognize the vehicle.

At around 6 a.m., Steen woke Eshawn and told him that Tyler had not come home and was not answering his phone. Steen asked Eshawn to go look for Tyler. Eshawn called Tyler's phone several times, but Tyler never answered his phone.

Eshawn looked out the front of the apartment and saw that Tyler's Escalade was not parked in its usual spot. At approximately 6:45 a.m., Eshawn looked through a back window of the apartment and saw Tyler's Escalade parked outside. Eshawn went outside and saw that Tyler's body was lying inside the vehicle. Law enforcement responded to the scene shortly thereafter.

Tyler was found lying face down on the front passenger seat, his midsection draped over the console, and his legs positioned behind the driver's seat. It was later determined that Tyler had suffered a single bullet wound to the back right of his head; the bullet exited near his left temple. The bullet was ultimately found between the frame of the front driver's side door and the dashboard. On the floor mat in front of the rear passenger-side seat, investigators found a spent .10 millimeter shell casing.

Tyler's bullet wound and subsequent blood splatter analysis indicated that Tyler was sitting upright in the front driver's seat when he was shot and that whoever shot Tyler did so while sitting behind him and to his right.

[301 Kan. 354] Additional blood splatter analysis showed that Tyler, after being shot, remained in an upright position for an indeterminate amount of time. His body was then moved into the position it was found in--lying face down on the front passenger seat with the midsection draped over the center console and the legs extended behind the driver's seat. A large amount of blood pooled along the bottom of the front passenger door, eventually dripping out of the interior of the Escalade. One blood-flow pattern found outside the car suggested that the Escalade may have been moving after Tyler started bleeding; however, the detective performing the analysis could not definitively say whether this was so. Notably, a yaw mark on the parking lot surface near the front driver's side tire indicated that the Escalade had made a hard right turn into the parking stall. The detective also indicated that based on blood transfer stains found on the driver's seat, it was possible that someone else sat in the driver's seat after Tyler's body was moved.

Though Tyler was known for carrying a large amount of cash (Eshawn believed that his father had approximately $3,000 in cash on him when he met Lewis) and a cell phone, neither cash nor a cell phone were found on Tyler or inside the Escalade. In fact, the pockets of his pants were found turned inside out as if someone had gone through them,

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and the cell phone holder clipped to the waist of his pants was empty.

After Tyler's body was discovered, members of Tyler's family began calling Lewis' phone that morning, informing him of Tyler's death and asking him whether he had met with Tyler the previous night. Michael Tyler, Tyler's nephew and Alfred's son, called Lewis, and Lewis told Michael that he had heard what had happened and was on his way to the apartment complex. Later, when Lewis failed to arrive at the apartment complex, Michael called Lewis again to ask where he was, and Lewis told him that people were threatening him. Notably, Lewis told Michael that he had met Tyler the previous night at Lewis' mother's house near Sixth and Parallel in Kansas City, Kansas, and that he had given Tyler some money.

At 12:35 p.m. on April 4, a police officer with the Shawnee Police Department called Lewis' cell phone. Lewis never answered his [301 Kan. 355] phone, so the officer left a voice message asking him to contact the police so they could discuss Tyler's murder. Lewis never contacted police. Later, on April 7, 2010, law enforcement made a request to Sprint Nextel, Lewis' cell phone carrier, to ping Lewis' cell phone, i.e., determine which cell tower and tower sector the phone had recently used. Based on the information Sprint provided, law enforcement determined that the cell phone was pinging off of a tower and sector that serviced the area where Lewis' mother's house was located in Kansas City. That same day, a detective with the Shawnee Police Department went to the house. As the detective looked inside the house for Lewis, the detective called Lewis' cell phone, and a cell phone began ringing inside the house. Upon locating the phone, the detective took possession of it. Police also located the Mercedes Benz that Lewis had rented from Tyler at an apartment complex located in Kansas City, Kansas.

About a week after the homicide, members of Tyler's family learned that Lewis was in Long Beach, California, and passed the information on to law enforcement. A detective with the Shawnee Police Department forwarded the information to police in Long Beach. On April 12, 2010, Long Beach police arrested Lewis. That same day, detectives with the Shawnee Police Department flew out to Long Beach to interview Lewis.

The detectives learned that Lewis, during his trip to California, had stopped in Las Vegas to visit his sister, Jessica McDonald. After interviewing Lewis, the detectives traveled from Long Beach to Las Vegas to speak with McDonald. McDonald confirmed that Lewis had stopped at her house on the way to California and that the two of them spoke for about an hour. During their conversation, Lewis told McDonald that he had nothing to do with Tyler's murder.

Near the end of the detective's interview with McDonald, she asked them whether Tyler had been robbed. At trial, McDonald claimed that she had asked the question because, during the interview, the detectives were continually asking her whether Lewis had given her any money. McDonald stated that Lewis only gave her $5.

[301 Kan. 356] After Lewis was taken into custody, prints of his fingers and palms were taken as well as a sample of his DNA. Lewis' right palm print was found on the exterior of the Escalade's rear driver's side door. His left palm print was found on two different locations on the interior of the Escalade's rear driver's side door frame. His left thumb print was also found on the rear driver's side door frame. Notably, prints of Lewis' left palm and fingers were found on the interior handle of the rear passenger's side door. The placement of the prints on the handle was consistent with Lewis using his left hand to reach across his body to open the rear passenger's side door (evidence presented at trial established that Lewis is right handed). Finally, Lewis' DNA was found on the interior manual lock mechanism of the front driver's side door.

During the course of the investigation into Tyler's murder, law enforcement obtained Tyler's cell phone records from T-Mobile. These records showed that between 10:53 p.m. and 11:52 p.m. on April 3, 2010, Tyler's phone pinged off cell towers that were along a route of travel consistent with moving east from Johnson County, Kansas, into Kansas City, Missouri, and then south on Highway

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71 toward Grandview, Missouri. Notably, the last activity recorded for Tyler's cell phone was an 11:52 p.m. call made to Lewis' cell phone. In making this call, Tyler's phone first pinged off the southeast side of a tower located at 5701 Longview Road in Kansas City, Missouri--just east of Highway 71. When the call ended 3 minutes later, Tyler's phone was pinging off the southwest side of a tower located at 7205 Longview Road in Kansas City, Missouri--further east on Longview Road.

Lewis' cell phone records from Sprint Nextel showed that he was contacted by Tyler numerous times on April 3, 2010,

o Lewis' phone received a call from Tyler's phone at 12:23 p.m. on April 3, 2010. Lewis' phone pinged off the north side of a tower located at 6111 East 129th Street in Grandview, Missouri__ just east of Highway 71.
o At 5:11 p.m., Lewis' phone received a call from Tyler's phone. Lewis' phone first pinged off the north side of the tower located at 6111 East 129th Street in Grandview. When the call ended, Lewis' phone was pinging off the east side of a tower located at 12407 Grandview Road in Grandview.
o At 6:09 p.m., Lewis' phone received a call from Tyler's phone. Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
[301 Kan. 357] o At 7:36 p.m., Lewis' phone received a call from Tyler's phone, Lewis' phone pinged off the east side of the tower located at 12407 Grandview Road. When the call ended, the phone was pinging off the north side of the tower located at 6111 East 129th Street in Grandview.
o At 10:42 p.m., Lewis' phone received a call from Tyler's phone. Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
o At 11:33 p.m., Lewis' phone received a call from Tyler's phone. Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.
o At 11:52 p.m., Lewis received a final call from Tyler. Again, this was the last call or activity recorded for Tyler's phone. During this call, Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview.

After this call, Lewis' phone called Kelcy Shackelford's cell phone at 11:57 p.m. (Shackelford was a former girlfriend and high school classmate of Lewis'. The two were close friends. Phone records showed that they had been in contact with each other throughout the day on April 3.) During this phone call, Lewis' phone pinged off the east side of the tower located at 12407 Grandview Road in Grandview. Shackelford's phone (a Verizon Wireless phone) pinged off of a tower located at 5301 Martha Truman Road in Grandview.

Records showed that Lewis and Shackelford continued to contact each other throughout the early morning and showed which cell towers their respective phones used to complete each call.

o At 12:33 a.m., on April 4, 2010, Lewis' phone called Shackelford's phone. Lewis' phone pinged off a tower located at 11308 Blue Ridge Boulevard--near the intersection of Blue Ridge Boulevard and Longview Road in Kansas City, Missouri. Shackelford's phone pinged off the tower located at 5301 Martha Truman Road in Grandview.
o At 12:36 a.m., Lewis' phone received a call from Shackelford's phone. Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview. Shackelford's phone pinged off the tower located at 5301 Martha Truman Road in Grandview.
o At 12:38 a.m., Lewis' phone called Shackelford's phone (the call lasted 13 seconds). During this call, Lewis' phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview. After this call ended, Shackelford's phone immediately called Lewis' phone back. During this second call, Lewis' phone pinged off the tower located at 11308 Blue Ridge Boulevard in [301 Kan. 358] Kansas City, Missouri. Shackelford's phone pinged off the tower located 5301 Martha Truman Road during both calls.

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o At 12:40 a.m., Lewis' phone called Shackelford's phone. Lewis' phone again pinged off the tower located at 11308 Blue Ridge Boulevard in Kansas City. Shackelford's phone pinged off the tower located at 5301 Martha Truman Road.
o Between 12:41 and 12:50 a.m., Lewis and Shackelford exchanged a series of text messages. Cell tower information for the text messages was not collected.
o At 1:34 a.m., Shackelford's phone called Lewis' phone. Lewis' phone first pinged off the north side of the tower located at 6111 East 129th Street in Grandview. When the call ended, Lewis' phone was pinging off the southeast side of a tower located at 9801 Bunker Ridge Road in south Kansas City, Missouri. Shackelford's phone again pinged off the tower located at 5301 Martha Truman Road.
o At 1:59 a.m., Shackelford's phone called Lewis' phone. Lewis' phone first pinged off the north side of a tower located at 15400 Midland Drive in Shawnee, Kansas. When the call ended, Lewis' phone was pinging off the northwest side of a tower located at Reynolds Lawn and Leisure, 12902 Shawnee Mission Parkway in Shawnee. Notably, this tower is just east of Tyler's apartment complex and is visible from the complex. Furthermore, this is the same tower Eshawn Tyler's cell phone (also a Sprint phone) pinged off of later that morning when Eshawn was calling Tyler's cell phone, attempting to locate him.
During the 1:59 a.m., phone call, Shackelford's phone first pinged off a tower located at 7700 Cottonwood Street in Lenexa, Kansas. When the call ended, Shackelford's phone was pinging off a tower located at 6875 Mauer Road in Shawnee.
o At 2:09 a.m., Shackelford's phone called Lewis' phone. Though tower information for Lewis' phone was not recorded by Sprint, records kept by Verizon showed that Shackelford's phone pinged off the tower located at 6875 Mauer Road in Shawnee.
o At 2:11 a.m., Shackelford's phone called Lewis' phone. Again, tower information for Lewis' phone was not recorded by Sprint. Verizon's records showed that Shackelford's phone again pinged off the tower located at 6875 MaueT Road in Shawnee.
o At 2:35 a.m., Shackelford's phone made an outgoing call. The phone pinged off of a tower located at 6415 State Avenue, Kansas City, Kansas.

The next time cell tower information was recorded for Lewis' phone was at 8:04 a.m. on April 4 when he made an outgoing call. His phone pinged off the north side of the tower located at 6111 East 129th Street in Grandview, Missouri.

After Shackelford's 2:35 a.m. phone call, the next activity recorded on her phone was an outgoing call made at 8:28 a.m. The [301 Kan. 359] phone pinged off the tower located at 5301 Martha Truman Road in Grandview, Missouri.

Notably, the cell phone records obtained by law enforcement for Lewis' phone documented activity between March 21 and April 7, 2010, The records showed that the only time Lewis' phone ever pinged off of the towers located at 15400 Midland Drive and 12902 Shawnee Mission ...


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