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State v. Sims

Supreme Court of Kansas

November 30, 2018

State of Kansas, Appellee,
Sherrick A. Sims, Appellant.


         1. On 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 instances.

         2. A 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).

         3. Even 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.

          Appeal 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.

          Ethan 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.


          Stegall, J.

         Defendant 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 firearm conviction.

         Sims 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 requires reversal.

         We hold 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 Sims' convictions.

         Factual and Procedural Background

         On the 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.

         At some 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.

         Later 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 minute.

         When 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.

         Campos 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.

         Sims 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.

         Responding 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.

         The 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.

         Before 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 case.
"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 case."

         Nicholas 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.

         At 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."

         At 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."

         Defense 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 you."

         The 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."

         The 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."

         Although 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.

         After 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, explaining:

"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."

         The 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.

         At the end of the State's case-in-chief, defense counsel again renewed his motion for mistrial based on the violations of ...

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