Appeal from Johnson District Court; KEVIN P. MORIARTY and THOMAS H. BORNHOLDT, judges.
BY THE COURT
1. Premeditated and felony murder are not separate and distinct offenses, but rather they are two theories under which the crime of first-degree murder may be committed.
2. The substantive differences between felony murder and premeditated murder cannot trump the plain language of K.S.A. 21-3401, which provides that they are alternate theories of first-degree murder.
3. The statutory right to a unanimous verdict only applies to the determination of guilt for the single crime charged. Unanimity is not required as to the particular means by which the crime was committed, so long as substantial evidence supports each alternative means upon which the jury is instructed.
4. The prosecutor has the authority and discretion to choose the evidence to present to the jury in support of the charged crime, but the prosecutor cannot elect the law that will be applied to those facts. The trial judge has the sole authority and responsibility to instruct the jury on the elements of the crime that the State must prove beyond a reasonable doubt to obtain a conviction.
5. If an affidavit submitted in support of a search warrant contains both lawfully and unlawfully obtained information, the question becomes whether the lawfully obtained information, standing alone, would have supported the requisite probable cause to justify the issuance of the search warrant.
6. When reviewing a magistrate's finding of probable cause to support the issuance of a search warrant, the standard is whether the evidence provided the magistrate with a substantial basis for concluding that probable cause existed, i.e., whether there was a fair probability that evidence will be found in the place to be searched.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief 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.
Eddie Thomas, Jr. shot and killed Christopher Dotson after agreeing to have sex with Dotson in exchange for money. The State charged Thomas with one count of aggravated robbery and one count of first-degree murder under the alternative theories of premeditation and felony murder. The jury convicted Thomas of aggravated robbery and first-degree murder, even though it could not reach a unanimous decision as to whether the murder was premeditated or committed during the course of the aggravated robbery.
Thomas filed a direct appeal, raising three issues: (1) The district court erred by instructing the jury that it could convict Thomas of first-degree murder based on the combined theories of premeditated and felony murder because the two theories should be considered separate and distinct crimes; (2) the prosecutor's closing argument election to rely solely on a felony-murder theory legally nullified Thomas' first-degree murder conviction because that conviction was based, in part, on a theory of premeditation; and (3) the district court erred in refusing to suppress items seized pursuant to a search warrant obtained with statements made by Thomas in violation of his Miranda rights. Because neither the facts nor caselaw support Thomas' arguments, we affirm his convictions.
Factual and Procedural Overview
On August 25, 2010, Dotson's body was found in his apartment. An autopsy revealed that he died from a single gunshot wound to the head. A .40 caliber bullet was recovered during a subsequent police search of Dotson's apartment, but the casing was never located. In addition, a blue plastic cup was collected and submitted for fingerprint analysis. Dotson's wallet and cell phone were missing from his apartment.
Dotson's cell phone records revealed over 100 text messages and phone calls to Thomas' cell phone on August 22, 2010, with the last phone call at 10:08 p.m. No calls or text
messages were sent from Dotson's phone after that time. Consequently, police attempted to locate Thomas in order to question him about his August 22, 2010, communications with Dotson.
On August 27, 2010, Thomas voluntarily appeared at the Shawnee Police Department for an interview with Detectives Rasnic and Hohnholt. Thomas admitted that he had recently reconnected with Dotson through Facebook but said that he had not seen Dotson since 2009. Thomas said that he last communicated with Dotson by text message on Sunday, August 22, 2010, but downplayed the extent and content of their communications on that day.
Rasnic confronted Thomas with Dotson's cell phone records and warned Thomas that law enforcement officers would soon know the content of the text messages. Thereafter, Thomas admitted that Dotson had texted him throughout the day on August 22 and requested sex in exchange for money. Thomas said that he initially refused Dotson's propositions; but when Dotson persisted, Thomas began to " mess" with him by seeing how much money Dotson was willing to pay. Thomas eventually admitted that he went to Dotson's apartment on the evening of August 22, 2010, and watched television for a little bit but then told Dotson he was not going to do anything and left. However, after further pressing by the detectives, Thomas finally confessed that while at the apartment, he shot Dotson with a .40 caliber Ruger pistol and took Dotson's wallet.
After the interview, law enforcement officers applied for a warrant to search the residence of Thomas' girlfriend, Shana Williams. The affidavit submitted in support of the search warrant included Thomas' admissions that (1) he owned a .40 caliber Ruger pistol; (2) he took the ...