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State v. Pollard

Supreme Court of Kansas

July 21, 2017

State of Kansas, Appellee,
v.
Corey Pollard, Appellant.

         SYLLABUS BY THE COURT

         1. A 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.

         2. A 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.

         Appeal 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.

          Lance 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.

          OPINION

          Beier, J.

         Under 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 killed.

         A jury 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.

         For the reasons outlined below, we affirm Pollard's conviction.

         Factual and Procedural Background

         On 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.

         Khmabounheuang, 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' back.

         About 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.

         At that 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 front door.

         One of 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."

         Not 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.

         Wares 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 the house.

         As the 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.

         Wares and Sayapheth went back to the house to get some personal items. They then got into Wares' car and left the scene.

         The 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.

         At 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."

         Michelle 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.

         Captain 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.

         The man 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 Thomas.

         While 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 neighborhood.

         One of 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 the ground."

         At 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.

         In the 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.

         Early 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.

         Based 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.

         Stearns 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.

         Although 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.

         Shortly 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.

         After 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 day.

         Officers 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.

         Casey Cotton was appointed to represent Pollard.

         After 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."

         More 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:

         "D. 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 K.S.A. 22-3212(6)."

         Cotton 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.

         Within 3 days of the alibi notice, the State filed a notice of its intent to admit gang evidence in its case in chief.

         The 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.

         During 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.

         The 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 . . . ...

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