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State v. Ritz

Supreme Court of Kansas

March 3, 2017

State of Kansas, Appellee,
v.
Keith A. Ritz, Appellant.

         SYLLABUS BY THE COURT

         1. In reviewing a district court judge's decision to deny a motion to sever charges, an appellate court follows three steps. Each requires application of a different standard of review. The court first considers whether the governing statute permits joinder. On this issue, the appellate court reviews the judge's factual findings for substantial competent evidence and the judge's legal conclusion on whether one of the statutory conditions has been met de novo. Second, the court determines whether the district court judge properly exercised his or her discretion on joinder or severance; there is no error on this step unless the appellate court discerns an abuse of discretion. Third and finally, if there was an error on the first or second step or both, the appellate court must determine whether the error affected a party's substantial rights. On the record in this case, there was no error in the district court's denial of the defendant's motion to sever two sets of charges against him.

         2. There is no federal constitutional requirement to instruct juries on offenses that are not lesser included crimes of the charged crime under state law. And the inviolate right of jury trial in Section 5 of the Kansas Constitution Bill of Rights is limited to fact issues in criminal cases; it does not demand that a jury be permitted to determine a legal question such as the choice of instructions on lesser degrees of a charged crime.

         3. A judge's use of criminal history that has not been included in a charging document and proved beyond a reasonable doubt to a jury as a basis for a criminal sentence or its enhancement is not prohibited by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

         Appeal from Sedgwick District Court; David J. Kaufman, judge. Opinion filed March 3, 2017. Affirmed.

          Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief 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.

          OPINION

          BEIER, J.

         Defendant Keith A. Ritz appeals his convictions for multiple counts of ¶eeing or attempting to elude, two counts of theft, and a single count of first-degree felony murder. Ritz raises three issues in his appeal, alleging error in the district court judge's denial of a defense motion to sever charges, error in the district court judge's failure to instruct the jury on lesser degrees of felony murder, and error in the district court judge's reliance on his criminal history for sentencing.

         As detailed below, we reject each of Ritz' arguments and affirm his convictions and sentence.

         Factual and Procedural Background

         On the evening of December 26, 2012, Officer Bradley Carver of the Wichita Police Department was on patrol when he saw a Corvette that appeared to be speeding. Carver did not get a radar reading of the Corvette's speed because of a Honda that was following the Corvette. Carver followed the Corvette until it turned onto a side street and stopped in front of a house. The Honda stopped behind the Corvette. A passenger got out of the Corvette, ran up to the front door, appeared to unscrew a floodlight on the front of the house, and then ran back to the street and got into the Honda. Carver started to get out of his car. As soon as he did, the "Corvette . . . squealed tires and took off." Carver got back into his car, turned on his siren, and began pursuit. The chase that followed was captured on the dashboard camera in Carver's patrol car, and the video would later be admitted at Ritz' trial.

         Carver pursued the Corvette through a residential area at "probably 60 to 65 miles [per] hour." At one point in the chase, the Corvette failed to negotiate a T intersection and jumped a curb into a church parking lot. The Corvette continued out of the parking lot, and Carver followed. At another point, it appeared to Carver that the chase was over because the Corvette had failed to make a right-hand turn and had overcorrected, spun, and went up onto a curb. But the driver of the Corvette backed out and continued. Eventually Carver "noticed the left rear tire of [the Corvette] leave the vehicle . . . and [the driver] lost control . . . spun a complete 180 and struck a light pole" on the corner of an intersection.

         When the Corvette was stopped, Carver exited his car, drew his weapon, and approached the Corvette. Carver ordered the driver to show his or her hands and acknowledge Carver's presence. Carver got no response. As Carver approached the Corvette, he noticed that it was so damaged that the "driver's seat was not really visible from the driver's side." When Carver went around the front of the car, he found the only occupant "laid across the front seat with his feet still underneath the steering wheel of the vehicle and his head partially out of the sunroof of the Corvette."

         The Corvette driver would later be identified as Ritz.

         Ritz was charged with two alternative counts of fleeing or attempting to elude an officer, theft, and driving while a habitual violator in connection with the events of December 26.

         On the morning of March 5, 2013, Officer Jason Emery of the Wichita Police Department responded to a dispatch to check on a vehicle near the Arkansas River. A second officer, Alex Recio, also responded. When Emery arrived in the area, he spotted a parked full-size GMC pickup matching the description he had been given.

         Emery and Recio each pulled behind the pickup. The pickup started rolling forward and traveled a very short distance before pulling into the private drive of a residence. Emery and Recio pulled in behind the pickup and stopped. Recio got out of his car and started to walk toward the pickup. Emery started to do the same but decided to stay in his car. As Recio approached, the pickup was backed out of the drive into the street. It then started to roll forward and accelerated away. Emery activated his lights and sirens and gave chase.

         Initially, the pickup was driving approximately 40 miles per hour through a 30-miles-per-hour residential area. It continued gaining speed and drove through several stop signs and stoplights, making it difficult for Emery to keep up. Emery nevertheless continued his pursuit. When he reached Harry Street he saw "debris, like a big smoke cloud and debris flying in ...


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