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State v. Butler

Supreme Court of Kansas

April 27, 2018

State of Kansas, Appellee,
Marcus G. Butler, Appellant.


         1.Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to descriptions of the material elements or of the factual circumstances that would prove the crime.

         2. K.S.A. 2012 Supp. 21-5302 does not set forth alternative means for committing an overt act in furtherance of a conspiracy.

         3. Under the facts of this case, it was legally appropriate for the court to instruct the jury it had to find the defendant committed the crime of conspiracy to commit aggravated robbery knowingly rather than intentionally.

         4. Whenever a court admits evidence pursuant to K.S.A. 60-455, it must give a limiting instruction informing the jury of the specific purpose for admission. The goal of a limiting instruction is to eliminate the danger that jurors will consider the evidence to prove the defendant's mere propensity to commit the charged crime.

         5. Appellate courts use a two-step process to evaluate claims of prosecutorial error- simply described as error and prejudice. To determine if the prosecutor erred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If the court finds error, the burden falls on the State to demonstrate beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict.

         6. Under the facts of this case, the prosecutor's characterization of the defendant's theory of the case as "ridiculous" was a fair comment on the evidence.

          Appeal from Wyandotte District Court; J. Dexter Burdette, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.

          Christopher L. Schneider, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


          STEGALL, J.

         Marcus G. Butler directly appeals his convictions-first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery. He alleges multiple reversible errors, but after a thorough review, we affirm Butler's convictions.

         Butler also argues-and the State concedes-the district court erred by sentencing him to lifetime postrelease supervision instead of lifetime parole for his first-degree felony-murder conviction. We agree this was error. We vacate this portion of Butler's sentence and remand the case to the district court so the court may impose lifetime parole.

         Factual and Procedural Background

         Shortly after 7 p.m. on January 9, 2013, Kevin Smith returned home from work to the apartment he shared with his fiancée, Demetria Hunter, in Wyandotte County. When Smith arrived, he discovered a vehicle parked in his spot. Hunter and Smith's neighbors had a history of parking in their stalls and making loud noises. Smith saw a white male- later identified as Clint Schierbaum-exiting the neighboring apartment. Smith questioned him about the vehicle, but Schierbaum told him he did not know who owned the vehicle and left.

         About 15 minutes later, Hunter and Smith heard a series of loud popping or banging noises coming from the neighboring apartment. Smith later testified he heard two sets of pops about seven to ten minutes apart. Hunter, on the other hand, stated when she heard some banging noises, she "beat on the wall . . . and all of a sudden I just kept hearing bang, bang, bang on the wall."

         Hunter called the police to register a noise complaint. She and Smith stepped out of their front door to investigate. Three white men emerged from the neighboring apartment. When Hunter tried to confront them about the noise, the group hurried past them, climbed into a vehicle, and left. Hunter thought one of the men appeared afraid.

         Law enforcement officers arrived shortly thereafter. After they spoke with Smith and Hunter, Nick Rhodes-a resident of the neighboring apartment-arrived on the scene. Rhodes told the officers his roommates had informed him a shooting had occurred in the apartment. Rhodes gave the officers permission to search the apartment.

         The officers discovered two men in an upstairs bedroom, both of whom had been shot. Matthew Gibson-who was lying on the floor-was dead. A forensic pathologist later testified Gibson died from multiple gunshot wounds, including one to the head and two to his abdomen. Officers recovered a .357 caliber revolver resting on the floor next to Gibson, which was later identified as his revolver. The revolver had one empty cartridge casing in it, while the remaining cartridges were loaded.

         Leland Pruneda was lying on the bed. Pruneda had been shot in the back of the head but was still alive and conscious. Officers located a .40 caliber semiautomatic handgun resting on the bed next to Pruneda. The gun's magazine contained loaded rounds, but the chamber was empty. Officers later recovered several .32 caliber shell casings from the bedroom. After calling for medical personnel, an officer tried to question Pruneda, but he was too disoriented to give an account of what happened. Pruneda was transported to the hospital for treatment.

         According to Schierbaum, he arrived at the apartment earlier that day around 7 p.m. to buy a gram of marijuana from Nick Yanos. Schierbaum entered the apartment through the unlocked front door and went upstairs to Yanos' bedroom, where Yanos typically sold marijuana. Schierbaum testified Yanos usually left the front door unlocked. A couple minutes after he arrived, two other individuals-Bryce Meyn and Brandon Eberth-arrived to buy marijuana from Yanos. All four men smoked some marijuana together.

         Pruneda and Gibson then arrived together, and all six of them congregated in Yanos' bedroom. The six men knew each other from high school and were cordial with each other. A few minutes later, Schierbaum left with his marijuana through the front door where he was confronted by Smith about the vehicle parked in Smith's spot.

         At this point, five people were in the bedroom-Pruneda, Gibson, Eberth, Meyn, and Yanos. Not long after Schierbaum left, Eberth heard the footsteps of somebody walking up the apartment stairs. Eberth and Meyn testified a black male wearing a ski mask and brandishing a pistol ascended the stairs. He pointed the pistol at the group and told them to get on the ground. Eberth-assuming they were being robbed-went to the ground, pulled out his wallet, and held it out for the man. Meyn also went to ground. Several shots were fired, and the assailant fled the apartment.

         Pruneda remembered hearing someone tell them to "get the fuck down, " and he looked right before being shot in the back of his head. While at the hospital the following day, Pruneda told an officer a single black male wearing a ski mask entered the apartment and shot him during the course of a robbery.

         After the assailant fled, Gibson was hunched over by a dresser groaning and bleeding. Pruneda was also injured and bleeding, though he was talking. Afraid, Meyn, Eberth, and Yanos left the apartment in a hurry. Yanos took his marijuana with him. As the three men exited the apartment, they passed Smith and Hunter, who were yelling that they had called the police. The three men loaded into Eberth's vehicle and left. Yanos threw his marijuana out of the car, and they eventually returned to the apartment and spoke with the police officers who were present when they arrived.

         At this point in time, law enforcement did not have a lead on the shooter's identity. But on January 14, 2013, officers received a phone call from Beau Barger who claimed he had information related to the shooting. Barger implicated his coworkers, Marcus Butler and Tyler Jewell. Kyle Cole, another coworker, later provided law enforcement with corroborating information. The State charged Butler with one count each of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.

         The district court held a three-day jury trial. The State called 16 witnesses to testify, including Schierbaum, Meyn, Eberth, Pruneda, Cole, Barger, Smith, and Hunter. Jewell, who claimed to have been Butler's accomplice, also testified for the State.

         Barger told the jury he, Butler, Jewell, and Cole worked in the automotive detail department at Zeck Ford-a car dealership in Leavenworth, Kansas. Barger knew Yanos and those present in the apartment on January 9, 2013, from high school. He also knew Butler purchased marijuana from Yanos. About one month before the shooting, Butler told Barger he was upset with a purchase from Yanos and he wanted to rob Yanos. Barger advised against doing so, believing it would be pointless. About one week before the shooting, Butler again approached Barger and said he wanted to rob Yanos.

         On the night of the shooting, Barger claimed he had learned about the events through Cole. The next morning at work, Butler pulled Barger into a room and told him he had shot "him." By this time, Barger knew Gibson was dead. Butler told Barger that after he entered the house, he found four or five people in a room, told everyone to get down, and when he heard shots and saw flashes, Butler began shooting until he "[e]mptied the clip." Butler allegedly warned Barger to not tell anyone else about the shooting. Because he was afraid of what Butler might do to him, Barger waited a few days before calling the police.

         Cole told the jury that about one month before the shooting, Butler approached him looking for someone who sold marijuana. Cole purchased marijuana from Yanos, so he referred Butler to Yanos. Like Barger, Cole knew Yanos and those present in the apartment from high school. Cole knew Butler had purchased marijuana from Yanos "a couple times."

         Later, Butler approached Cole four or five times and asked Cole to help him rob Yanos. Butler wanted to know how much money Yanos kept on him and whether he had any guns. According to Cole, he refused to help Butler and told Butler not to rob his friends.

         On the day of the shooting, Jewell warned Cole not to go to Yanos' house that evening because Butler was "gonna run up in there." Cole claimed he thought Jewell was joking. Later that night, Cole received a frantic phone call from Jewell's phone. Jewell told Cole: "[W]e were not there tonight . . . you don't know anything. If you say anything, we will find you." Butler then came on the line and told Cole: "We were not there tonight, you don't know anything. There was no evidence tracing back to him." Cole claimed Butler threatened to find him and "beat [his] ass" if he told anybody it was them. Butler also asked Cole to tell him where he and Barger were, presumably because they were the only ones who knew about Butler's plan to rob Yanos.

         Two days later, Cole returned to work where Butler pulled him aside to a break room to have a private conversation. Butler told Cole "he ran up in there and they pulled a gun out so he just started shooting." Butler allegedly told Cole there was no evidence linking him to the crime, only he and Barger could implicate him, and Butler wanted to "make sure [they] would keep [their] mouths shut." Cole believed Butler was trying to intimidate him. The conversation concluded when their boss entered the room.

         Days later, Cole received a phone call while at work from a number he did not recognize. Cole claimed he answered the call over the speakerphone while Jewell was working next to him. It was a police detective who asked him to come to the police department for questioning. After Cole hung up, he claimed Jewell "started freakin' out" and told Cole that he could not go to the police department. Jewell later denied ever overhearing a phone call. Cole claimed Jewell then left work to pick up Butler and bring him back to work.

         When Cole left work, he discovered Butler and Jewell waiting by his vehicle in Jewell's pickup truck. They instructed Cole to get into the truck, and once he was inside, they told him, "[Y]ou can't go in there, you can't say shit, you don't know anything. Where's [Barger]? Call [Barger], I need to know where [Barger] is." Cole told them he would remain silent, but after he exited the truck, Cole went to the police station and gave a statement.

         Jewell was the State's final witness. He testified pursuant to a plea agreement. The State originally charged Jewell with the same counts as Butler-first-degree murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery. In exchange for his testimony, the State amended the charges to one count of second-degree murder, to which Jewell pled guilty.

         Jewell bought marijuana from Yanos and knew Butler purchased marijuana from Yanos on a weekly basis. Jewell would occasionally accompany Butler to Yanos' apartment so they could both buy marijuana. Jewell and Butler were friendly with each other and would hang out outside of work.

         Shortly before the shooting, Jewell heard Butler talking to Cole and Barger about how Yanos was "short[ing]" him on marijuana. Butler thought Yanos was selling him "shake weed" instead of "solid nuggets." The afternoon of the shooting, Jewell and Butler spoke on the phone about going to Yanos' apartment and robbing him of his marijuana and money. Butler did not own a vehicle at the time, so he asked Jewell to drive him to Yanos' apartment.

         Around 4 or 5 p.m. that day, Jewell spoke with Butler to let him know that he would help with the robbery. Jewell testified he agreed to help Butler because he wanted to scare Yanos. To him, Yanos "was a punk kid selling weed, " and he wanted to "bring him down a notch." After Butler finished work around 6:45 or 7 p.m., Jewell picked him up from the dealership. From there, Jewell drove them to Yanos' apartment. On the way there, they stopped at a gas station, and Butler paid for Jewell's gas in exchange for driving him to the apartment. Butler was wearing black jeans, a black hoodie, black and white shoes, and he had a ski mask rolled up on the top of his head.

         On the drive to the apartment, Butler and Jewell discussed their plan. They decided to both enter the apartment; Butler was supposed to go upstairs and rob Yanos while Jewell remained downstairs to keep a lookout. Jewell noticed on the ride to the apartment Butler had a silver and black handgun in his lap. When they arrived, Jewell parked down the street, so Yanos could not see his truck. According to Jewell, they waited in the truck until they received a text message from Cole letting them know Yanos was home.

         While it was dark, Butler and Jewell exited the truck and walked to Yanos' apartment. Butler entered the front door-which was unlocked-and Jewell followed behind him. As they entered the front door, Butler pulled the ski mask down to cover his face. Some of Butler's skin was visible through the mouth and eye holes of the mask. Both Meyn and Eberth told the jury they could see the color of the shooter's skin from around the openings in the ski mask.

         Jewell, who was unarmed, checked the downstairs living room to make sure nobody was present and then remained by the front door. Butler walked up the stairs with the gun in his hand, which Jewell saw Butler carrying when they entered the building. As he ascended the stairs, Jewell heard Butler cock the weapon and yell for everyone to get on the ground. He then heard feet stomping followed by at least 10 gunshots, at which point Jewell fled for the truck. Jewell heard Butler running behind him, and when they reached the truck, Jewell drove them to an apartment in Kansas City, Missouri, near the Sprint Center.

         While Jewell was driving, Butler told him what had happened:

"[W]hen he went up the stairs, the dude stood up and walked towards him and he pushed him and he grabbed some dude and put him up against the wall. Out of the corner of his eye he saw a dude stand up with his gun to shoot at him and he said he missed, that's when he grabbed him and started shooting him."

         Butler also told Jewell when he fired his gun, he "didn't miss." While on their way to the apartment, Jewell called Cole from his cell phone. Butler also spoke with Cole, but Jewell could not recall the details of what was said. On cross-examination, Jewell denied ever threatening Cole or Barger. Once at the apartment, they disposed of their belongings. Jewell saw Butler place the gun into a bag. They remained at the apartment for about half an hour and then returned to Leavenworth. Jewell dropped Butler off at his apartment and went home.

         Jewell went to work the next day, where he spoke with both Cole and Barger. Jewell claimed he simply apologized to them. After Cole received a call from the police, Jewell recalled speaking with Cole and Butler in his vehicle outside of work. Not long after, Jewell received a phone call from the police, asking him to come to the station for questioning. He then had his girlfriend drive him to the police station where he waived his Miranda rights and confessed.

         Following Jewell's testimony, the State rested. Butler moved for a directed verdict, which the court denied. Butler rested without presenting any evidence. The jury ultimately found Butler guilty as charged. The court did not poll the individual jurors, but asked the jury, "[S]o say you all?" The jury responded, "Yes."

         The day after Butler was convicted, his trial counsel filed a motion for new trial and memorandum in support, alleging several trial errors. Over two weeks later, Butler submitted a motion for ineffective assistance of counsel, asserting several deficiencies in his trial counsel's performance. Nearly one month later, Butler filed a pro se motion asking for a new trial, in which he primarily argued his trial counsel was ineffective for not calling an alibi witness.

         On November 24, 2014, the district court held a preliminary hearing on the motions. The court stated it had received "a lot of correspondence" from Butler claiming he was unhappy with his trial counsel. Butler told the court he had communication issues with counsel throughout trial and claimed his girlfriend, Erin Davis, was "constantly trying to get in contact with him" and would have provided him with an alibi. Thereafter, the court allowed trial counsel to withdraw and appointed new counsel.

         Nearly eight months later, Butler's new counsel filed an "amended/supplemented motion for new trial." The motion incorporated the arguments raised by Butler's trial counsel and further argued trial counsel was ineffective (1) by failing to investigate the presence or absence of DNA and other forensic evidence at the crime scene; (2) by neglecting to subpoena phone records and time cards from the dealership; (3) by failing to investigate a gun once located in a Leavenworth pawn shop that Butler believed may have belonged to the actual shooter; (4) by not calling his girlfriend as an alibi witness; and (5) by failing to generally investigate Butler's case.

         The district court conducted an evidentiary hearing, during which Butler's trial counsel testified. Following the testimony, Butler's new counsel also advised the court Butler believed his "uncharged bad acts" of the unsuccessful solicitations of and threats toward Barger and Cole "should not have been brought up."

         The court ultimately denied Butler's motion for new trial. It first outlined the evidence presented at trial and determined there was sufficient evidence to support each of Butler's three convictions. Next, the court found Butler did not provide his trial counsel with an alibi witness and trial counsel had numerous contacts and visits with Butler. The court dismissed Butler's concerns over potential DNA evidence because his position at trial was that the State could not provide any DNA or other physical evidence tying him to the shooting. It further reasoned because there was testimony Butler had previously been in the apartment to purchase marijuana, trial counsel understandably would not want to search for and possibly unearth Butler's DNA in the apartment. The court found the remaining information requested by Butler irrelevant. Lastly, the court held a limiting instruction regarding Butler's other bad acts was not warranted because his unsuccessful solicitation of and threats to Cole and Barger were "part and parcel" of the events that occurred that day.

         Immediately thereafter, the district court sentenced Butler to life in prison without the possibility of parole for 20 years for the first-degree felony murder and imposed consecutive 32-month sentences for the attempted aggravated robbery and conspiracy to commit aggravated robbery. The court also imposed lifetime postrelease supervision.

         Butler timely appealed his convictions and sentence to this court. See K.S.A. 2012 Supp. 22-3601(b)(3) (providing for direct appeal to the Supreme Court from a district court's final judgment when a maximum sentence of life imprisonment has been imposed).


         K.S.A. 2012 Supp. 21-5302 does not set forth alternative means for committing an overt act in furtherance of a conspiracy.

         Butler first argues his conviction for conspiracy to commit aggravated robbery must be reversed because there was insufficient evidence to support a finding of guilt on each of the various alternative means for committing the overt act in furtherance of the conspiracy. "Alternative means issues arise when the statute and any instructions that incorporate it list distinct alternatives for a material element of the crime." State v. Sasser, 305 Kan. 1231, 1239, 391 P.3d 698 (2017); State v. Brown, 295 Kan. 181, 184, 284 P.3d 977 (2012) ("We hold that a statute-and any instruction that incorporates it-must list distinct alternatives for a material element of the crime, not merely describe a material element or a factual circumstance that would prove the crime, in order to qualify for an alternative means analysis and application of the super-sufficiency requirement."). "Alternative means are legislatively determined, distinct, material elements of a crime, as opposed to legislative descriptions of the material elements or of the factual circumstances that would prove the crime." State v. Foster, 298 Kan. 348, Syl. ¶ 4, 352, 312 P.3d 364 (2013).

         If this is an alternative means case, we must conduct what we have termed a "super-sufficiency" analysis. That is, sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt. Brown, 295 Kan. at 188; see State v. Bolze-Sann, 302 Kan. 198, 208, 352 P.3d 511 (2015) ("'"'[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.'"'").

         But if the case does not involve alternative means, the question of jury unanimity is not implicated. See State v. Swint, 302 Kan. 326, 336, 352 P.3d 1014 (2015). Therefore we must initially consider whether the jury was ever presented with an alternative means case. The determination of whether a case involves alternative means is usually a question of statutory interpretation subject to unlimited review. See State v. Williams, 303 Kan. 750, 757, 368 P.3d 1065 (2016).

         The rules of statutory interpretation and construction are well known:

"The touchstone of statutory construction is legislative intent, and to divine this intent we first examine a statute's plain language to determine whether it describes alternative means by listing 'alternative distinct, material elements.' The legislature typically signals its intent to create an alternative means by 'separating alternatives into distinct subsections of the same statute.' [Citations omitted.]" 303 Kan. at 757.

         Kansas law defines conspiracy as "an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator." K.S.A. 2012 Supp. 21-5302(a). Conspiracy is comprised of two elements: "'(1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.'" State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993).

         Notably, the statute does not list alternative ways a fact-finder could conclude the defendant committed an overt act in furtherance of the conspiracy; it simply states a conviction cannot occur unless an overt act is alleged and proved. Indeed, the language upon which Butler bases his alternative means claim does not appear in K.S.A. 2012 Supp. 21-5302. "That alone indicates the legislature never intended for cases like [defendant's] to be alternative means cases." Williams, 303 Kan. at 758. Instead, the Legislature has seen fit to leave the question of what constitutes an overt act to the judicial process. See, e.g., State v. Mays, 277 Kan. 359, 385, 85 P.3d 1208 (2004) (holding there was sufficient evidence to find the defendant committed overt acts in furtherance of a conspiracy to commit first-degree murder by obtaining a weapon and driving around looking for victims). Thus looking solely to the plain language of K.S.A. 2012 Supp. 21-5302, we conclude the statute does not set forth alternative means for committing an overt act. See State v. Cottrell, 53 Kan.App.2d 425, 433, 390 P.3d 44 ("A plain reading of the language in the conspiracy statute reflects that the legislature did not intend to create more than one distinct way in which a defendant can commit an overt act."), rev. granted 306 Kan. 1322 (2017).

         Butler also directs our attention to Instruction 19, which read:

"The defendant is charged in Count III with Conspiracy to Commit Aggravated Robbery. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
"1. The defendant agreed with another person to commit or assist in the commission of aggravated robbery.
"2. The defendant did so agree with the intent that aggravated robbery be committed.
"3. The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan.
"4. This act occurred on or about the 9th day of January, 2013, in Wyandotte County, Kansas." (Emphasis added.)

         The complaint alleged the same series of overt acts.

         Butler isolates the particular phrase, "discussing and planning the aggravated robbery, " arguing this alone could never-as a matter of law-constitute an overt act in furtherance of a conspiracy. See State v. Crockett, 26 Kan.App.2d 202, Syl. ¶ 6, 205, 987 P.2d 1101 (1999) (reversing a defendant's conviction for conspiracy to commit first-degree murder where the complaint only listed "planning on the time, location and manner of killing" as the overt act in furtherance of the conspiracy).

         Butler begins his argument by claiming the "district court instructed the jury that to be guilty, Mr. Butler, or any other party to the agreement, committed any of the following overt acts: by discussing and planning the aggravated robbery, arrived at the location, and carried out the plan." (Emphasis added.) Butler wrongly characterizes the court's instructions. The court told the jury it must find "each of" the elements must be proved, which included: "The defendant or any party to the agreement acted in furtherance of the agreement by discussing and planning the aggravated robbery, arrived[sic] at the location, and carried[sic] out the plan."

         Appellate courts consider "'jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the jury.'" State v. Hilt, 299 Kan. 176, 184-85, 322 P.3d 367 (2014). When looking at the third element in its entirety, Butler fails to recognize "discussing and planning" is only one part of the entire series of acts alleged by the State, which is connected by the coordinating conjunction, "and." Therefore in order to find Butler guilty of conspiracy to commit aggravated robbery, the jury had to find he or Jewell discussed and planned the aggravated robbery, and arrived at the location, and carried out the plan. These are not alternative means but simply a sequence of events which collectively make up the alleged overt act.

         Butler relies on State v. Enriquez, 46 Kan.App.2d 765, 266 P.3d 579 (2011), in which a jury found a defendant guilty of conspiracy to commit first-degree murder. The district court in that case instructed the jury it could find Enriquez or ...

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