the facts of this case, the district court did not abuse its
discretion in denying a mistrial when State witnesses made
three brief, cryptic references to material prohibited by
orders in limine, the judge recognized the errors, and the
judge issued a curative admonition in one instance and moved
the trial immediately to other topics in the second and third
district court is not required to instruct a jury to consider
a lesser included homicide offense simultaneously with any
greater homicide offense, overruling State v.
Graham, 275 Kan. 831, 69 P.3d 563 (2003).
if evidence in a stipulation to a prior felony conviction is
subject to K.S.A. 2017 Supp. 60-455 and its requirement that
a district judge give a limiting instruction, the failure to
give such an instruction in this case was not clear error.
from Wyandotte District Court; Bill Klapper, judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office,
argued the cause, and was on the briefs for appellant.
Zipf-Sigler, 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.
Sherrick Sims appeals from his convictions for premeditated
first-degree murder and criminal possession of a firearm in
the shooting of Jose Raul Alarcon-Quintana at a gathering in
Alarcon-Quintana's garage. Sims was sentenced to life in
prison for the murder and a concurrent 18 months for the
challenges the denial of his motion for mistrial, the
sequential ordering of the jury instructions for the degrees
of homicide, and the failure to give a limiting instruction
to accompany his stipulation to a prior felony conviction.
Sims also argues that, even if the errors mentioned above are
not reversible standing alone, their cumulative effect
the district court did not abuse its discretion when it
denied Sims' motion for mistrial; the jury instructions
were legally correct; and the failure to give a limiting
instruction was not clearly erroneous. As a result, we affirm
and Procedural Background
evening of June 9, 2013, Alarcon-Quintana hosted a small
gathering at his home. A group of six friends spent the
evening talking and drinking beer in the garage. Later in the
evening, Sims and his girlfriend, Kimberly Carrillo, stopped
by Carrillo's mother's house, which was across the
street from Alarcon-Quintana's house. Sims, who was an
acquaintance of Alarcon-Quintana's, took his infant child
along to the garage party while Carrillo took their other
children to her mother's house.
point, Alarcon-Quintana and Sims made a trip to the liquor
store. Sims purchased a bottle of vodka, and-as he put
it-drank "pretty much" the whole thing. At trial,
witnesses would recall that Sims and Alarcon-Quintana seemed
to be on friendly terms.
that evening, after several of the guests had left, two men
who knew Sims arrived. Sims walked outside with them, away
from the remaining partygoers. Sims would testify that they
had stepped away to discuss "personal business."
Carrillo left her mother's house and got into the van she
and Sims had arrived in with their children. She would
testify that Sims had told her to wait in the van for a
Sims and the two men returned to the party, Sims approached
Alarcon-Quintana, who was sitting on a chair inside the
garage between his friends, Efrain Campos and Julio Rivas.
Sims walked up to Alarcon-Quintana, and the two men stood
close behind him. Sims asked Alarcon-Quintana for money.
Alarcon-Quintana took out his wallet and handed Sims a
one-hundred-dollar bill. Sims responded, "[N]o money, no
money." Alarcon-Quintana was silent and remained seated.
What happened next would be disputed at trial.
and Rivas would testify that one of the men standing behind
Sims handed him a gun. Rivas said Sims lowered his hand for
the gun, then cocked it and pointed it at Alarcon-Quintana.
Sims then shot Alarcon-Quintana in the face. Campos and Rivas
would recall hearing two or three shots fired. Campos said
Sims then just turned and walked away "like
normal." Sims left with his girlfriend in one vehicle,
and the two men left in another vehicle.
would admit at trial that he shot Alarcon-Quintana, but he
claimed he did so in self-defense. After telling
Alarcon-Quintana, "[N]o money, no money,"
Alarcon-Quintana reached into his pocket for what Sims
believed to be a gun. One of the men standing behind Sims
"pushed" a gun into Sims' hand, and he fired.
officers found Alarcon-Quintana slumped over in a lawn chair
with blood running down his face and onto the ground. Nothing
indicated a struggle had occurred. Only one bullet had hit
Alarcon-Quintana, and only one shell casing was found.
State charged Sims with first-degree premeditated murder and
criminal possession of a firearm. The State also charged Sims
with the misdemeanor battery of Gelber Garcia, which, it
alleged, Sims had committed the same day.
trial, Sims filed a motion in limine asking to prohibit
introduction of certain evidence. It read:
"2. The [S]tate should be prohibited from introducing
testimony or evidence of a history of the procurement of
drugs or prostitutes by the defendant for the decedent as
testimony by witnesses regarding this is immaterial to the
charges and are not a part of the State's theory in this
"3. The State should be prohibited from introducing
evidence relating to a rifle as mentioned in the statement of
[Nicholas] Treat. This evidence is not material to the
State's theory [in] this case and there is no evidence of
a rifle being used in the shooting of the victim in this
Treat was a friend of Sims; Sims stayed with Treat on and off
between the time of the shooting and Sims' arrest. At a
hearing the district judge granted Sims' motion, without
objection from the State.
trial, after the conclusion of voir dire, the court and
counsel discussed additional evidentiary issues. The State
informed the court that Garcia had died and asked to dismiss
the battery count. The judge allowed dismissal. Sims'
counsel asked for "some kind of limiting motion" to
prevent any witness from mentioning the battery. The State
assured the court that it had "instructed the witnesses
that they cannot-if they don't know what happened, they
cannot say-I believe the witnesses will say that they saw the
defendant leave for a short period of time and then came
back, but they don't know what he was doing at that
time." After noting that a battery jury instruction
proposed earlier would now be omitted, the judge confirmed
that it "sounds like [the State] has already indicated
to [its] witnesses that there should be no testimony about
this alleged fracas between Mr. Sims and Mr. Garcia."
three points during the testimony of State witnesses,
Sims' counsel objected to testimony as violating orders
in limine. When Campos was testifying about what happened
after Sims and Alarcon-Quintana returned from the liquor
store, he said:
"They started talking, and I'm not sure how my
friend was talking to [Sims], because he spoke Spanish, but
my friend, he didn't speak much English and there was
some deal where they were going to go, um, beat up someone
who supposedly had stolen a chain from my friend Jose."
counsel objected, asked to approach the bench, and told the
judge that the reference to beating someone up
"obviously . . . violates the order in limine."
Defense counsel then asked for a mistrial. The district judge
denied the motion for mistrial and admonished the jury:
"Ladies and gentlemen of the jury, I am going to ask you
to disregard the last statement that was made as far as any
conversation that was had between the victim and Mr. Sims.
That's not relevant to what was happening as far as this
trial is concerned, so just don't let that enter into
your process of deliberation when the case is submitted to
court then excused the jury for a break and told counsel,
"I think in this one particular instance we can cure it
with an admonition, but in the future we need to make sure
that all of the witnesses understand."
second objection occurred during Treat's testimony. Treat
testified that Sims called him the day after the shooting,
needing a place to stay. When Treat asked what was going on,
Sims replied, "[N]othing, man. Shit just got real
bad." When Treat pressed Sims for details, Sims said he
had shot a man twice in the chest the day before over money
the man owed him. Sims told Treat he would have shot others
who were present too, but his gun jammed and one of his
friends dragged him out. Treat said, "Yeah, he told me
he got the guy twice and that it was all over some money the
guy owed him over a fight. He put a hit on somebody-"
Defense counsel again objected:
"Your Honor, I think there's been another violation
of the order in limine. Mr. Treat is now volunteering yeah, I
think it was a fight over some money that was owed over-I
think he was getting ready to say or did say something about
a hit or a job of some kind like that. . . . [T]hat's the
second time. I don't know what the Court heard, but
that's what I heard."
there was some confusion among the court and counsel over
exactly what the witness had said, all agreed that the State
should not pursue that line of questioning further. Defense
counsel did not request a mistrial or an admonition to the
jury at that point.
Treat's testimony concluded, outside the presence of the
jury, defense counsel reiterated his objection. Both defense
counsel and Sims believed the witness had used the word
"hit," and the judge checked the record and
confirmed this was correct. Defense counsel then renewed his
motion for mistrial. The judge again overruled the motion,
"The record is clear about what was said. I think in the
context of the testimony, the testimony by Mr. Treat revolves
more around . . . the statements that were made by Mr. Sims
and about the shooting of the victim in this case, certainly
the readback would indicate that the word hit was used.
I'm not sure that the jury will understand within what
context it was used.
"I will note for the record this is the second request
for a mistrial by Mr. Sims in the case so the record is clear
about it. However, the Court does not find that it's
overly prejudicial to Mr. Sims at this point and will
overrule the motion."
third of three defense objections based on orders in limine
occurred during the testimony of Detective Clayton Bye. The
State asked Bye what Treat had told detectives. Bye began,
"He gave us a statement. He said that he saw Mr. Sims
with a rifle in the-," but the State cut Bye off before
he could finish his sentence. Sims' counsel approached
the bench, objected to the testimony, emphasized that the
testimony constituted a third violation of the motion in
limine, and renewed his motion for mistrial. The judge again
overruled the motion because he did not think the testimony
was prejudicial to Sims. But the judge warned the State that
"it doesn't go any further" and asked the State
to "move on to something else right away." The
State agreed, and the trial resumed.
end of the State's case-in-chief, defense counsel again
renewed his motion for mistrial based on the violations of