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State v. Davis

Supreme Court of Kansas

May 19, 2017

State of Kansas, Appellee,
Billy F. Davis, Jr., Appellant.


         1. On the record in this case, the State's circumstantial evidence of premeditation underlying the defendant's conviction for capital murder was sufficient.

         2. A 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.

         3. The district court judge in this case correctly denied the defendant's motion to suppress his statement to police officers as involuntary.

         4. It is not error for a judge to refuse to add repetitive language to jury instructions.

         5. When 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 reversed.

         Appeal from Shawnee District Court; David Debenham, judge.

          Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.

          Jodi 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.


          BEIER, J.

         This is 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.

         Davis 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 conviction.

         We 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.

         Factual and Procedural Background

         On 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.

         Around 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.

         About 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.

         Mock 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.

         Weeden called the Topeka police department's non-emergency number about 30 minutes later.

         Ortega 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.

         Mock 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.

         Williams 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.

         Officers 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.

         The 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.

         Davis overheard a police radio alert that A.I. had been found and fled from Giancana's apartment.

         In the 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 him.

         Officers 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.

         Detective 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.

         Davis 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.

         Davis 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.

         During the interrogation, Davis was given two more drinks and the cigarettes of his choice. He was allowed multiple smoking breaks.

         Davis 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.

         The 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.

         Davis 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 a hearing.

         At 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.

         Strathman 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 door.

         Strathman 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 appeared nervous.

         While 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.

         Ahlstedt 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 was gone.

         Dickey testified over objection at trial about Davis' confession.

         Also at 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.

         Chappell 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.

         Giancana 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 like ...

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