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State v. Walker

Supreme Court of Kansas

June 29, 2018

State of Kansas, Appellee,
Dustin D. Walker, Appellant.


         1. In most circumstances, a judge should allow the attorneys and a criminal defendant to be present when communicating in person with a juror.

         2. In the context of an issue about a defendant's right to be present during critical stages of a trial, appellate courts examine harmlessness by focusing on four factors: (1) the strength of the State's case; (2) the existence of an objection from the defendant; (3) the nature of the proceeding from which the judge excluded the defendant and whether the communication concerned a critical or insignificant matter; and (4) the ability of posttrial remedies to mitigate the error.

         3. If a prior trial in the same case resulted in a hung jury, an appellate court conducting a harmless error review should view the lack of a verdict in a prior trial as a factor weighing on the assessment of the strength of the evidence, not as determinative.

         4. The party alleging judicial misconduct bears the burden of showing prejudice.

         5. Judicial misconduct warrants a new trial when it affirmatively appears the misconduct prejudiced the substantial rights of the complaining party. The mere possibility of prejudice does not warrant overturning a verdict or judgment. Judicial misconduct prejudices a defendant's substantial rights and warrants a new trial when it: (1) makes the judge appear less than impartial or (2) pollutes the entire trial.

         6. A judge's misconduct pollutes the entire trial when the misconduct consists of more than an isolated comment or action and the judge fails to purge the taint of the misconduct.

         7. In determining the voluntariness of a waiver of Miranda rights, appellate courts review a district judge's factual findings for substantial competent evidence and its ultimate legal conclusions de novo. Appellate courts do not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

         8. A defendant's waiver of his or her Miranda rights must be knowing, voluntary, and intelligent under the totality of the circumstances. Factors courts consider in determining the voluntariness of a defendant's statement include: (1) the defendant's mental condition; (2) the duration and manner of the interrogation; (3) the defendant's ability to communicate with the outside world on request; (4) the defendant's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the defendant's fluency with the English language. Any one factor or a combination of factors may show that the defendant's statement was involuntary under the totality of the circumstances.

         9. Appellate courts use a two-step analysis when considering a claim that a district judge erred in his or her response to a jury question. First, the appellate court conducts a de novo review to determine if the district judge either failed to respond or provided an erroneous response to the jury's question. Second, if the district judge responds to the jury's request, the appellate court reviews the sufficiency or propriety of the response for abuse of discretion. A district judge's response constitutes an abuse of discretion when no reasonable person would have given the response, the response includes an error of law, or the response includes a factual error.

         10. Appellate courts review claims of cumulative error by examining all errors collectively to determine whether the combined errors, under the totality of the circumstances, warrant reversing a conviction. In making this assessment, appellate courts examine the errors in the context of the record as a whole, considering how the district judge dealt with the errors as they arose, including the efficacy, or lack of efficacy, of any remedial efforts; the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.

          Appeal from Douglas District Court; Paula B. Martin, judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


          LUCKERT, J.

         The State charged Dustin Walker with aggravated burglary and first-degree felony murder. A jury convicted Walker of aggravated burglary, but it could not reach a verdict on the felony-murder charge. After a second trial, the jury hung, but a third jury convicted Walker of felony murder.

         On appeal, Walker asserts five claims of error. He argues: (1) The district judge committed reversible error during the third trial by communicating with two jurors without Walker being present; (2) the district judge committed reversible misconduct during the third trial by shredding notes found in the jury room without first showing the notes to Walker and his attorney; (3) the district judge erred during the third trial by not suppressing Walker's interview with law enforcement officers; (4) the district judge erred in the first trial by not responding appropriately to a jury question about Walker's criminal liability arising from evidence against another participant in the crime; and (5) cumulative error requires reversal of Walker's convictions. The first three claims affect only the felony-murder conviction and the fourth affects only the aggravated burglary conviction. We reject his arguments and affirm both convictions.

         Facts and Procedural History

         In the early morning hours of March 8, 2014, Michael Roberts awoke to banging on the front door of the apartment where he lived with his grandmother, Marilyn Howard; his father, Patrick Roberts; and his uncle, Wayne Roberts. Michael thought someone was kicking the door. As Michael got up, the front door swung open and two men entered the apartment-one in black clothing and one in light gray clothing. The man in the black clothing pointed a gun at Michael; Michael later identified Walker as this man. Video surveillance footage from a nearby convenience store showed Walker with his cousin, Archie Robinson, at the store just before they broke into the apartment. In the video, Robinson wore light gray clothing.

         According to Michael's testimony, Walker and Robinson walked toward Patrick's bedroom, where Patrick sold marijuana. Robinson entered Patrick's bedroom while Walker stood in the bedroom doorway. Either Robinson or Walker asked, "Where is it? Where is it?" Patrick responded, "I don't know what you're talking about." Walker stepped into Patrick's bedroom, the gun fired once, and Patrick yelled for Wayne. Wayne came out of his bedroom and a struggle ensued.

         Michael and Wayne, for the most part, provided identical testimony about the struggle. During the first two trials, Michael and Wayne both testified that Wayne and Walker struggled for the gun as Robinson and Michael watched from the living room. At the third trial, however, Wayne's testimony at first pointed to Robinson as the gunman. But Wayne switched his testimony and once again matched Michael's testimony by pointing to Walker as the gunman and Robinson as the bystander.

         Michael and Wayne testified consistently about all other aspects of the struggle. Both testified that at some point during the struggle the gun fired a second time toward the kitchen. A few seconds later, Patrick, bleeding from a gunshot wound, exited his bedroom and joined the struggle. Wayne eventually knocked the gun out of Walker's hands. Walker and Robinson fled out the front door. Marilyn, awakened by the commotion, called 911. Patrick died shortly thereafter.

         Officers arrived within minutes and began a search of the area. They apprehended Walker and Robinson, at which time Walker was wearing dark clothing and Robinson was wearing light clothing but no shoes. Both had a large amount of Patrick's blood on their clothing.

         Officers collected evidence from the apartment including a gun, hat, shoe, and shoe print on the front door. Investigators later confirmed the gun fired the bullet that killed Patrick. Officers discovered the gun belonged to Walker's girlfriend, the hat contained Walker's DNA, the shoe matched shoes worn by Robinson that night, and the shoe print on the door had similar design features to the shoes worn by Robinson.

         Officers also interviewed Walker. During the interview, Walker said he was staying at Patrick's apartment on the night in question. He explained a struggle awakened him. He joined the struggle and eventually fled. Walker ...

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