BY THE COURT
the record in this case, the State's circumstantial
evidence of premeditation underlying the defendant's
conviction for capital murder was sufficient.
prosecutor's statement to a jury that "you don't
spend the rest of your life in prison unless you've
killed" is a misstatement of Kansas law. In this case,
the prosecutor also committed error by telling the jury that
there was "not one piece of evidence that says that the
defendant was either drinking or using drugs" after
midnight. A witness had testified that he saw the defendant
use cocaine at 2:45 a.m. These prosecutorial errors are not
individually or cumulatively reversible, given the strength
of the evidence against the defendant.
district court judge in this case correctly denied the
defendant's motion to suppress his statement to police
officers as involuntary.
is not error for a judge to refuse to add repetitive language
to jury instructions.
a rape has been used to support a conviction of capital
murder under K.S.A. 2011 Supp. 21-5401(a)(4), a second
conviction for the same rape is multiplicitous and must be
from Shawnee District Court; David Debenham, judge.
Ellen Johnson, of Capital Appellate Defender Office, argued
the cause and was on the brief for appellant.
E. Litfin, assistant district attorney, argued the cause, and
Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
the direct appeal of defendant Billy F. Davis, Jr., from his
convictions arising out of the March 2012 death of 8-year-old
A.I. in Topeka.
challenges: (1) the sufficiency of the evidence to prove
premeditation, (2) alleged prosecutorial error in closing
argument, (3) the denial of his motion to suppress his
confession, (4) the rejection of jury unanimity language in
instructions, and (5) the multiplicity of his rape
affirm the district court's judgment with the exception
of Davis' rape conviction, which we reverse. Rape is, in
essence, an element of Davis' conviction for capital
murder, which means he is punished for it to the extent the
capital conviction stands.
and Procedural Background
March 12, 2012, Alysia Majette had multiple guests at her
home: Kanesha Mock; Takeisha Williams; Melinda Weeden; Angela
Ortega; and three of Ortega's children, 18-year-old
Briana Ortega, R.I., and 8-year-old A.I. Two others stopped
by briefly after dinner, defendant Davis and his
then-girlfriend, Sandra Adams. They were looking for Weeden,
who was Adams' long-time friend.
11 p.m. everyone at Majette's home went to bed. Mock and
Ortega's children slept in the living room on couches and
air mattresses. The rest of the women slept in upstairs
bedrooms. Someone locked the front door.
2:30 a.m., Mock heard someone trying to open the front door
of Majette's apartment. She woke Briana, and they looked
through the peephole in the door. They saw nothing.
eventually fell asleep again about 4 a.m., but she was
awakened by the sound of the front door being opened. She saw
a man walking out the front door, carrying A.I. like a baby.
She woke Briana again and told her that she saw A.I.'s
"hair go out the door." Briana went upstairs while
Mock looked out the front door. Mock saw nothing. When Briana
came back downstairs, Mock told her that a man had taken
A.I., and everyone immediately began searching for A.I.
called the Topeka police department's non-emergency
number about 30 minutes later.
went to the apartment of neighbor Alyssa Giancana to look for
A.I., because her children sometimes played with
Giancana's children. Ortega saw Davis in the front
doorway and asked if he had seen A.I. Davis said that no one
was there and slammed the door.
and Majette encountered DaShawn Hughes, who was leaving
Giancana's apartment. Majette would later testify that
Hughes told her to check Giancana's apartment for A.I.
because there was a man there who was acting strangely.
and Briana went to Giancana's back door. They knocked,
saw lights flicker, and heard a bang. Davis answered the
door, told them that no one else was there, denied seeing
A.I., and slammed the door. Williams would later testify that
after she had taken about 20 steps away from the apartment
she heard a scream but thought it came from Ortega. Briana
would later testify that she had heard the scream and thought
it had come from Giancana's basement.
began arriving about 5:25 a.m. One officer escorted Majette
to the back door of Giancana's apartment. Majette would
later testify that she saw lights flickering inside and saw a
short man peeking out as she knocked on the door. The
man-whom she assumed to be Davis-did not open the door.
women asked officers to check Giancana's apartment, so
the officers returned there. Davis answered the door and
allowed officers to search. Shortly after entering the
apartment, an officer found A.I.'s body in the clothes
dryer in the basement of the apartment. Although A.I. was
still warm to the touch when officers found her, she was not
breathing and her pupils were fixed and dilated. She was
rushed to a hospital but could not be revived. She was
declared dead at 6:31 a.m., approximately 2 hours after she
had been taken from Majette's apartment.
overheard a police radio alert that A.I. had been found and
fled from Giancana's apartment.
course of investigation, police would eventually learn that
two other area apartments had been burglarized the same
night. It was also discovered that Davis had tried to get
into a nearby school after fleeing. He was denied access by
the school's secretary, who had a brief conversation with
apprehended Davis within a few hours and took him to the
police station. He was put in an interrogation room at 11:15
a.m. He was wet, barefoot, and cold. Sergeant Bryan Wheeles
removed Davis' handcuffs and gave Davis a soda, a
sandwich, a blanket, and a restroom break.
Scott Dickey would later testify that he began Davis'
interrogation at 12:40 p.m. Dickey read Davis his
Miranda rights, and Davis agreed to speak.
told Dickey and Wheeles that he had drunk a large amount of
alcohol and had consumed cocaine the day before, but Dickey
and Wheeles would later testify that they saw no signs of
intoxication during the interrogation. Dickey also would
testify that Davis did not hesitate or express a desire not
to cooperate. Wheeles would testify that there was no force,
coercion, or duress during the interrogation.
said he had his GED and was a disabled veteran who suffered
from severe post-traumatic stress disorder. He also said he
had suffered a head injury when an improvised explosive
device blew up during his service in Iraq.
the interrogation, Davis was given two more drinks and the
cigarettes of his choice. He was allowed multiple smoking
confessed to breaking into three different apartments: The
first apartment would later be identified as leased to
Jasmine Walker; the second apartment would later be
identified as leased to Manola Paez; the third apartment was
Majette's, where Davis admitted to kidnapping A.I. Davis
confessed that he beat, choked, and raped A.I., before
putting her into the clothes dryer. He denied that he
intended to kill her and appeared to be surprised when Dickey
told him that A.I. was dead. When Dickey stepped out of the
interrogation room, Davis turned a displayed photograph of
A.I. face down.
State charged Davis with 10 counts, among them 2 alternative
counts of capital murder based on either the rape or the
kidnapping of A.I.; an alternative count of premeditated
first-degree murder; and rape.
filed a motion to suppress his statements to police, arguing
that he did not understand his rights or the consequence of
waiving them. He also claimed that his statements were not
made voluntarily because of his alcohol and drug use and his
mental disorders. The district judge denied the motion after
trial the State presented the testimony of multiple law
enforcement officers involved in the case, including Topeka
Police Department Officers Michael Ahlstedt and Jared
Strathman, who had gone to Giancana's apartment.
testified that he heard a loud bang-like the sound of metal
on metal- when he knocked on Giancana's door. He then
heard a voice saying "hello, " and Davis opened the
said that Davis told the officers he had not seen A.I. and
allowed them to come inside to look for her. The officers
first searched the second floor of Giancana's apartment,
where they found Giancana's son and Giancana's friend
Eric Chappell asleep. Davis began pacing as the officers
returned to the apartment's main level. Davis told
Stratham he was drunk, and Strathman could smell a faint odor
of alcohol on Davis; but Strathman thought that Davis
Strathman remained on the main level, Ahlstedt went
downstairs to search the basement. Ahlstedt did not turn on
the basement light and used his flashlight to search. When he
saw blood he initially dismissed it, because it was close to
an empty meat tray. Then, as Ahlstedt started back up the
stairs, he noticed a washer and dryer. He decided to look
inside them. When he opened the dryer door and found A.I., he
initially thought she was hiding. But it quickly became
apparent that A.I. was not responsive, and Ahlstedt removed
her from the dryer and began performing CPR.
used his police radio to inform other officers that he had
found A.I. Strathman, still on the main level with Davis,
heard Ahlstedt and went down to the basement to assist. When
Strathman returned to the main level, he noticed that Davis
testified over objection at trial about Davis'
trial, Adams testified that she and Davis had spent the day
before A.I.'s death at Giancana's apartment, where
they drank half of a bottle of vodka and used "quite a
bit" of cocaine before 4 p.m. Adams testified that she
did not believe Davis was drunk or high when she left
Giancana's apartment about 10 p.m.
testified that he had arrived at Giancana's about 7 p.m.
He was watching Giancana's 2-year-old son while Giancana
worked. According to Chappell, Davis was acting strange,
pacing, and drinking a lot. He saw Davis "sniff"
something shortly after 9 p.m. and testified that Davis was
mumbling. More than once, Chappell said, Davis mentioned his
desire to "look for girls" and asked Chappell to
walk around the apartment complex with him, a request
Chappell declined. Chappell thought Davis was drunk or under
the influence of drugs. Chappell went upstairs to bed about
10 p.m., where he remained until he was awakened by the
police early the next morning.
came home about 2 a.m. for her lunch break. She spoke to
Davis, who said he wanted to have sex with a girl who looked