BY THE COURT
prosecutor does not err by introducing gang affiliation
evidence as limited by the district court at a pretrial
motions hearing, when the prosecutor has not misled the judge
to obtain the governing order.
district judge is not compelled to allow a criminal defendant
hybrid representation, and the defendant in this case failed
to demonstrate any harm flowing from the court clerk's
transmission of a pro se motion to compel discovery to
defense counsel for any further action.
from Sedgwick District Court; David J. Kaufman, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause and was on the brief for appellant.
J. Gillett, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
the pretense of buying marijuana, defendant Corey Pollard and
three other men met with Paul "Danny"
Khmabounheuang. The group's actual plan was to rob
Khmabounheuang. A struggle over a gun followed the demand for
all of Khmabounheuang's drugs, and two of the would-be
robbers were shot and injured. Khmabounheuang was shot and
convicted Pollard of first-degree felony murder and
aggravated robbery. On appeal, Pollard argues that the
prosecutor erred by seeking to introduce gang affiliation
evidence and that Sedgwick County's method of dealing
with pro se motions violated his due process rights.
reasons outlined below, we affirm Pollard's conviction.
and Procedural Background
November 13, 2013, about 11:30 a.m., Tawny Wares and her
3-year-old daughter went to the Wichita house where
Khmabounheuang was staying. Wares had met Khmabounheuang a
few days earlier. The house was on North Holyoke.
a tattoo artist, had come to town 4 or 5 days earlier to stay
with his uncle, Ky Sayapheth. According to Wares, she and
Khmabounheuang were going to hang out, smoke marijuana, and
discuss designs for a Chinese dragon tattoo on Wares'
an hour after Wares arrived, Khmabounheuang went outside to
take a phone call. When he came back inside, he asked Wares
to take her daughter into a back room because some people
were coming over to buy drugs. Khmabounheuang went back
outside while Wares waited at a front window until the people
arrived. Eventually a "white Ford Excursion . . . a
Blazer-type looking truck" pulled into the driveway,
turned around, and parked in the street. The truck had an
"In Loving Memory of . . ." sticker in the back
window. Wares could see two people sitting in the front seat
and at least one person moving in the back seat.
point, Wares took her daughter into the back room. Because
the door to the room would not latch, Wares paced near the
door to prevent her daughter from running back out. From
where Wares was standing, she could see two African-American
men "dressed in all black; black hoodies, black pants,
black shoes, black gloves, black hats" come through the
the men came into the back room and asked Wares for her cell
phone. Wares refused. As the man repeated his request,
Wares' daughter tried to run out the door. When the man
blocked the girl, Wares saw that he had a gun. At that point,
Wares gave the man her phone, and he left the room. Wares
would later testify that the man was an African-American
wearing a "black beanie" and that he had
"dreads, with blond tips at the end of them."
long after the man left the back room, Wares heard gunshots.
She would testify that there were seven-"three steady
ones and then four quick ones." Based on what she heard,
Wares believed there were at least two guns fired.
grabbed her daughter and tried to huddle behind a big TV near
a wall. Wares expected the men to come into the back room and
shoot her, but they never did. Eventually, Wares peeked out
from behind the door into the room and saw a body lying on
the floor. Wares and her daughter then ran out the back of
two walked up the street, they ran into Sayapheth. Wares told
Sayapheth that something bad had just happened, but she was
not sure what. While Wares and Sayapheth were talking on the
street, a woman came up to ask if Wares was OK. Sayapheth
told the woman everything was fine.
and Sayapheth went back to the house to get some personal
items. They then got into Wares' car and left the scene.
same afternoon, Lacey Webster, a postal worker, was
delivering mail in the neighborhood. She heard a "pop
pop pop, " but, because of construction in the area, she
assumed the sound came from a nail gun. As Webster continued
on her route, a man ran past her. She then saw two more men
running, one of whom "jumped in a vehicle and took
off." Webster was able to get the license plate of the
vehicle as it drove away.
trial, Webster would describe the men she saw that day as
younger black men wearing black clothing. She would describe
the vehicle as an early 2000s white Ford Explorer with a big
"In Loving Memory" sticker that "took up the
whole back window."
Pitman was driving down 14th Street when she saw the door of
a house near 14th and Holyoke "fly open" and two
men run out of the house. Pitman pulled over and called 911.
While on the phone, she saw a woman come out of the back of
the same house. Pitman could tell that the woman was in
distress. Pitman drove over to the woman and asked if
everything was okay. A man who was with the woman told Pitman
everything was fine and gestured for her to leave.
Robert Bachman of the Wichita Police Department was one of
the first officers to respond to the 911 dispatch about the
shooting. As Bachman drove to the scene, he saw a young black
man sitting on a curb, holding his right leg. Bachman stopped
and got out of his car. As he did so, he saw what appeared to
be a gunshot wound to the man's lower leg. Bachman
radioed dispatch to request emergency medical services.
told Bachman that he had been walking west down 14th Street
or 15th Street when he heard several gunshots. He claimed
that he took off running after being struck in the leg by one
of the shots. EMS eventually arrived and took the man to a
hospital. At trial, Bachman would identify the man as Dijon
waiting for EMS, Bachman noticed that Thomas had left a trail
of blood to the curb. As more officers arrived on the scene,
Bachman had some of the officers follow the trail. Other
officers were asked to do a "knock and talk" in the
the officers conducting the knock and talk was Officer David
Goodman. Goodman knocked on the front door of the house on
the corner of 14th and Holyoke and found the door was
partially opened. Goodman pushed the door open and
"could clearly see a lifeless looking body [lying] on
about the same time, other officers were dispatched to a
second shooting call in the 4900 block of East Harry.
Officers Gary Morris and Stephanie Neal responded and found a
man in a parking lot of an apartment complex. The man
identified himself as Orville Smith. Smith said he had been
shot in the stomach. He claimed that he had been standing
near some mailboxes to the east of the parking lot when he
was shot. Residents who lived nearby had not heard gunshots
or anything sounding like gunshots.
parking lot, officers also found a white SUV that matched the
description of the vehicle that had left the Holyoke scene.
The license plate number matched the number observed by
Webster, and the back window had an "In Memory of"
design on it.
in their investigation, the police discovered that Sayapheth
was associated with the address where the body was found.
When investigators contacted Sayapheth, he told them that the
body was probably that of his nephew. He also told
investigators that they should talk to Wares.
on witness accounts, investigators initially believed they
were looking for four individuals. They had identified Thomas
and Smith as suspects, but they were still trying to locate
two other African-American males seen running away. Detective
Joseph Stearns, a gang intelligence officer, checked the
police database for gang affiliations. Stearns first
confirmed that the victim was not a known gang member. He
then found that both Thomas and Smith were flagged in the
database as Folk Gangster Disciples members.
then checked social media postings of known gang members. He
found comments stating "RIP Dallas Guy" and other
comments alluding to Guy's death in a shooting. Stearns
noted that the time stamps for the posts were within
"minutes or hours" of the shooting on Holyoke.
Stearns also checked a whiteboard detectives were using to
keep track of the Holyoke investigation and saw that the name
"Dallas Guy" had already surfaced.
the reports of Guy's death turned out to be erroneous,
the information led Stearns to identify another suspect. As
Stearns began looking into Guy, he was able to connect Guy to
Pollard within the previous 3 weeks. Stearns did not look
Pollard up in the database, but he knew, based on earlier
interaction with Pollard, that Pollard was a documented
member of the Folk Gangster Disciples.
after making the connection between Guy and Pollard, Stearns
went to observe a police interview of Wares. During that
interview, Wares identified one of the missing suspects as a
black male with white- or blond-tipped dreadlocks. Stearns
knew Pollard had blond-tipped dreadlocks. Investigators
created a photo array that included a picture of Pollard.
When Wares was shown the array, she picked out Pollard's
picture and identified him as the man who had come into the
back room with a gun.
Wares identified Pollard, police officers went to
Pollard's grandmother's home looking for him. Pollard
was not there, but Pollard's uncle, who lived at the
home, told officers that he had been there earlier in the
were not able to find Pollard on November 13, but a week
later they received information about Pollard's
whereabouts and were able to arrest him. Pollard- along with
Smith, Thomas, and Guy-was charged with three counts:
first-degree felony murder of Khmabounheuang based on either
aggravated robbery or distribution of a controlled substance,
aggravated robbery of Wares, and attempted distribution of a
controlled substance. At the conclusion of the evidence at
Pollard's trial, the State would dismiss the distribution
of a controlled substance charge.
Cotton was appointed to represent Pollard.
preliminary hearing, a district judge filed a journal entry
stating, "Discovery is ordered pursuant to statute and
case law." About 6 weeks later, Pollard filed a pro se
motion seeking to compel the State to turn over various items
and information, including any written or recorded statements
or confessions made by Pollard. The motion also specifically
requested "all records and information revealing prior
convictions, guilty verdicts and juvenile adjudications
attributed to each witness to be called by the State."
The same day the motion was heard, a deputy clerk from the
District Court Criminal Clerk's Office sent Cotton a
letter with a copy of the motion attached. The letter stated
that the clerk's office had received a pro se motion from
his client and that it had been filed in the court file.
"[B]ut no hearings have been scheduled [and no] further
action will be taken"; the court, the letter said, would
"await further direction from [Cotton] as to how to
proceed on this matter."
than 3 months later, Cotton filed a motion for specific
discovery, requesting the court compel the State "to . .
. provide the criminal history of all endorsed State
witnesses, excluding law enforcement individuals." On
the same day, Cotton filed a Motion in Limine. Item
"D" in the motion addressed discovery:
ALL DISCOVERY NOT PROVIDED TO MR. POLLARD'S COUNSEL AT
THE TIME OF THIS MOTION'S HEARING.
"As a matter of right, Mr. Pollard is entitled to
discovery pursuant to (1) Kansas statute, K.S.A.
22-3212 and its applicable portions, (2) the United
States Constitution, and (3) the order of discovery issued by
the Eighteenth Judicial District at the time of this
matter's preliminary examination. Discovery must be
completed no later than twenty (20) days after arraignment or
at such reasonable later time as the Court permits. See
filed a notice of alibi 3 days later. According to the
notice, Pollard intended to present evidence that he was at
the home of Rachel Peters, his grandmother, at the time the
alleged crimes took place.
3 days of the alibi notice, the State filed a notice of its
intent to admit gang evidence in its case in chief.
district judge heard argument on various pending motions the
week before trial. Pollard was present for the hearing. The
State, in the person of prosecutor Jennifer Amyx, addressed
Cotton's motion for specific discovery. She said that the
State was still in the process of doing background checks and
advised the court and defense counsel that it would provide
the results before the witnesses took the stand. Amyx also
acknowledged that state law imposed an ongoing duty on the
State to do so.
discussion of the motion in limine, Cotton referenced item
"D, " expressed confidence in the State's
knowledge of its continuing discovery obligations, and said
he had no reason to believe he did not have "all the
discovery." The district judge stated that both counsel
believed discovery had been provided.
judge also heard arguments on the State's motion to
introduce gang evidence. Amyx first attempted to distinguish
what the State sought to present from what is typically
considered gang evidence.
"I've heard a wide array of evidence be referred to
as gang evidence. Everything from an officer who is
introducing himself to a jury saying, [']I presently work
under the gang unit, ['] clear up to what might be
thought of as typical gang evidence where a gang officer, an
intelligence officer, takes the stand and relates the nature
and history of a certain gang as well as a particular
individual or set of individuals' association with
specific gangs from that point forward.
"The Court may ultimately, frankly, decide that the
subject matters of this particular trial are not even gang
evidence but simply part of an investigation into a murder
and an attempt to identify specific subjects. But I filed the
motion in an abundance of caution because, of course, I
wanted Mr. Cotton to . . . ...