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State v. James

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
Grover D. James, Appellant.


         1. On the conflicting evidence admitted at trial in this homicide case, the district judge erred by refusing to give lesser included offense instructions for reckless second-degree murder, reckless involuntary manslaughter, and imperfect self-defense involuntary manslaughter. None of these errors, evaluated for harmlessness under the state statutory standard, was reversible standing alone.

         2. A district judge is not required to instruct a jury to consider a lesser included homicide offense simultaneously with any greater homicide offense.

         3. Autopsy photographs, like other photographic evidence, are relevant if they have a reasonable tendency to prove a material fact. A district judge does not abuse his or her discretion by admitting autopsy photographs that are used by an expert witness to explain the path of a fatal bullet and the victim's resulting skull fractures.

         4. A prosecutor commits error when he or she states during closing arguments that a car was "stolen" despite an absence of evidence supporting a theft or criminal deprivation. In this case, such an error was harmless under the governing constitutional standard.

         5. A continuance hearing is a critical stage at which a criminal defendant has a constitutional right to be present, unless he or she has knowingly and voluntarily waived that right. Assuming a violation of the defendant's right occurred in this case, the error was harmless under the governing constitutional standard.

         6. Cumulative error does not require reversal of the defendant's convictions in this case.

          Appeal from Sedgwick District Court; Stephen J. Ternes, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Sam Schirer, of the same office, was on the briefs for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          BEIER, J.

         This is defendant Grover D. James' direct appeal of his convictions for first-degree premeditated murder of Leon McClennon and criminal possession of a firearm.

         James challenges the district judge's refusal to give certain lesser included homicide instructions and failure to tell the jury to consider certain homicide offenses simultaneously. He also challenges the admission of autopsy photographs into evidence, alleges reversible prosecutorial error, and asserts he was deprived of his constitutional right to be present at all critical stages of his trial. James also argues that cumulative error requires reversal of his convictions.

         Although we identify errors in James' case, the errors are not reversible standing alone or cumulatively. For the reasons outlined below, we affirm James' convictions.

         Factual and Procedural Background

         Resolution of James' appellate issues require an unusually extensive review of the factual and procedural background of this case.

         On the night of May 8 and into the early morning hours of May 9, 2015, Rance Kindred's friends and family threw him a birthday party, held in the basement of the Parrot-fa-Nalia dress shop in Wichita. The party was attended by a variety of Kindred's friends and family, including: Grover "Boo" James, Kindred's friend; August Hughes, James' girlfriend; Keialsha James, James' sister; Torey West, Kindred's girlfriend and James' sister; Artadius "Ta Ta" Johnson, Kindred's son; and Leon "Fat Head" McClennon, Johnson's cousin and Kindred's nephew.

         Johnson and McClennon ended up at the party after Johnson spoke with Kindred on the phone. At the party, Kindred introduced James and Johnson for the first time. Kindred would testify that he had "wanted them to meet each other" but "it went bad right away because Ta Ta [Johnson] swolled up," that is, swelled his body in a confrontational manner. See Urban Dictionary,'swole (last visited June 28, 2019). The tension between the two escalated throughout the evening over a perception that Johnson was "mugging" James. On more than one occasion, Kindred told Johnson that he needed to "squash" his issues with James.

         At some point in the evening, Johnson left with McClennon and another cousin before he returned to the party to "chill with [his] auntie and stuff." According to Johnson, Kindred made another attempt to convince Johnson to "squash" things with James, which caused Johnson to "want[] to fight." But before things escalated too far, another of Johnson's cousins-Anita Jones-grabbed him and calmed him down.

         After this confrontation, many of the guests began leaving the party. Johnson and McClennon stayed to help clean up. James and Hughes initially left the party, but, Hughes would eventually testify, she remembered she had offered to help clean up; so she and James went back.

         Surveillance camera footage captured what happened in the Parrot-fa-Nalia parking lot and outside the entrance to the basement upon James and Hughes' return. The footage would later be admitted at James' trial.

         When James and Hughes pulled into the Parrot-fa-Nalia parking lot, Johnson and McClennon were outside. At that point, Johnson and McClennon immediately went down to the basement. Trial testimony would establish that the door at the bottom of the stairs to the basement was shut and could not be opened from the outside.

Surveillance footage from inside the door shows that Keialsha, James' sister, opened the door. Johnson and McClennon can be seen coming through the door, followed almost immediately by James. Hughes came through the door a moment later.

         The events that followed inside the basement-outside the view of any surveillance camera-were disputed at trial. It is undisputed, however, that James fired two shots, one of which hit McClennon in the head, killing him. The internal surveillance footage then shows, approximately 37 seconds after the group had moved off camera, McClennon stumbling headfirst to the floor, where his motionless body comes to rest. While McClennon's body is lying on the ground, James walks past it and back up the stairs. Hughes follows him.

         After the shooting, James drove Hughes' car to Oklahoma. He was apprehended there and was charged with first-degree premeditated murder and unlawful possession of a weapon.

         James' first appearance on the charges was in later October 2015. On December 14, 2015, James filed with the clerk of the court a letter he had written to his then-attorney Brad Sylvester. The letter asked Sylvester to take certain actions in his case. James asked Sylvester to "file and pursue any and all necessary paperwork to insure a speedy trial, I'd also ask you to file a 180 day writ [and] a motion for statutory speedy trial." James later reiterated a request that Sylvester "vigor[o]usly pursue" his "speedy trial" and asked that Sylvester "not continue my preliminary hearing . . . or continue my trial ever." James also asked to be present at "any and all hearings . . . when my case is d[i]scussed."

         After District Court Judge David J. Kaufman found probable cause at James' January 13, 2016, preliminary hearing, James waived arraignment and the case was set for jury trial on February 16, 2016.

         On February 16, Sylvester requested a continuance in a filing titled, "Notice and Order Concerning Defense Counsel's Request to Continue Trial after Consultation with the Defendant." District Court Judge Jeffrey E. Goering granted the request to continue the case and reset trial for March 14, 2016. The form document, which was signed and submitted by Sylvester, contained the following paragraph:

"'In submitting this request to the Court, the named defense counsel represents to the Court that counsel has consulted with the named defendant about this continuance and this continuance is to be charged to the defendant pursuant to K.S.A. 22-3402(g).'"

         On March 16, Sylvester asked for another continuance, using an identical form document. Judge Goering again granted the request and reset trial for June 6, 2016.

         On April 14, James filed a motion seeking to dismiss counsel. James alleged an irreconcilable conflict and complete breakdown of communication. That same day, the motion was set for hearing on April 22, 2016.

         James was present for the motion hearing before District Court Judge John J. Kisner, Jr. On April 22 Judge Kisner acknowledged James' previous concerns over a speedy trial. Judge Kisner informed James that recent caselaw required that any further continuances would require James to sign off on them or attend a hearing. Judge Kisner denied the motion to dismiss counsel and informed James that any appointment of new counsel would mean more time for trial preparation. James responded, "I'm not worried about the time."

         During the hearing, the court and parties discovered that a June 6 start date for trial-the date that had been set on March 16-conflicted with the court's schedule. Trial was reset for July 11, 2016. Judge Kisner advised James that the time would not be charged to the State and asked if James was agreeable to the new trial date. James said he understood and agreed to the new date.

         On June 15, 2016, James filed an Objection to Continuance.

"COMES NOW, the Defendant, pro se, formally objecting to any continuance sought by either the State or defense counsel in the above entitled action. The defendant further asserts his statutory, K.S.A. 22-3208(7), and Fourteenth Amendment Due Process right to appear at all 'critical stages' in a prosecution including any proceeding where the court may order that the Defendant has waived any constitutional or statutory right."

         The same day, James moved to dismiss the case with prejudice. James alleged that his "statutory right to a fast and speedy trial, and his constitutional right to Due Process and fast and speedy trial" had been violated.

         In his motion, James set out a timeline of events, alleging that his trial had been continued by his attorney on February 16, March 14, and June 6, outside of James' presence and against his "clear wishes." James further alleged, "At no time has the defendant been present in the courtroom or by video, and asked if he agreed to the continuance or given the opportunity to object to the continuance" and that "[t]here are no signed waivers of speedy trial or signed acknowledgments of continuance." According to James, the time the State had to bring him to trial under K.S.A. 22-3402 began to run on January 13, 2016, the date of his preliminary hearing, and expired on June 12, 2016.

         The same day James filed his pro se motion, the district court clerk sent Sylvester a letter advising him of the filing and saying that no further action would be taken unless Sylvester directed otherwise.

         On June 20, James filed another motion seeking to have Sylvester replaced. In an affidavit filed the next day, James alleged he had informed Sylvester in writing that he wanted to be present at all hearings but Sylvester had nevertheless failed to consult him about any of the previous continuances. James further alleged that he had not been given the opportunity to appear at any of the continuance hearings and that, had he been present, he would have objected to any continuance.

         On July 1, Judge Kaufman heard James' motion for new counsel. James explained that he felt there was a communication breakdown between himself and Sylvester because of the continuances Sylvester had requested without James' knowledge.

         The State contradicted James' assertion that he had not been present or known about any of the continuances, alerting the court to James' presence at the April 22 hearing and his agreement to the continuance granted that day.

         James acknowledged that the State was correct but insisted the April 22 continuance was not the only one.

"It's several continuance[s]. I have it in my ROA that it's been continued by the defense that I did not sign off on or anything, didn't know it. I also filed a motion for . . . dismissal of case for fast and speedy trial violation, constitutional and statutory rights."

         The State conceded that James had filed a motion to dismiss based on a speedy trial violation. The motion had not been docketed for hearing because it was filed pro se.

         Judge Kaufman ultimately granted James' request for new counsel.

         On July 11, Judge Goering continued the trial setting again despite James' in-court refusal to agree to it. James' new counsel had yet to receive any discovery. The State asked for a continuance of the trial until September 12 because of the unavailability of one of its witnesses. Judge Goering granted the State's request over James' objection and set a "firm" trial date of September 12.

         New counsel was appointed on three occasions in late August and early September, culminating in Steven Mank's appointment on September 1. Mank would represent James through the trial but be replaced before sentencing.

         On September 12, Judge Goering signed off on another trial continuance, continuing the case from September 12 to November 14, 2016. His order is a form document similar to those filed by Sylvester in February and March. However, unlike the earlier forms, this one required the defendant's signature approving the continuance. The form shows James signed and dated it on September 10.

         James' trial began on November 14, 2016, and was presided over by District Court Judge Stephen Ternes.

         At trial, the video surveillance footage from Parrot-fa-Nalia was introduced through the testimony of Wichita Police Detective Robert Chisholm.

         Chisholm's testimony was followed by the testimony of Dr. Timothy Gorrill, the forensic pathologist who conducted the autopsy of McClennon.

         Before Gorrill testified, Mank objected to admission of certain of the State's anticipated autopsy photograph exhibits. Mank argued that the exhibits in question "are not necessary to describe the manner of death or what happened to the victim in this case. They are rather strong photographs. . . . [W]e would object to them for being overly gruesome and . . . not warranted in this case." The State argued that the challenged photos were necessary for Gorrill to explain the autopsy.

         Judge Ternes overruled the objection. He acknowledged that the photos were "somewhat graphic," but "autopsy photos tend to be that way." Without hearing Gorrill's testimony, Judge Ternes could not say the challenged photos were unnecessary. Mank renewed his previous objection when the State introduced the autopsy photos during Gorrill's testimony. The judge again overruled the objection.

         The first four photos showed McClennon's body, including closeups of his head and the gunshot wound. Specifically, one image showed an "obvious injury" at the bottom of McClennon's ear. Another showed a "skin defect, a hole, a gunshot wound." Gorrill concluded that this injury was an entry wound because there was no "exit defect" and they had "recovered a bullet along the path."

         The following photos were the focus of the defense objection.

         Exhibit 38 showed "the top of Mr. McClennon's skull" after his scalp had been "reflect[ed] back . . . with a scalpel." Gorrill highlighted a fracture in McClennon's skull that could be seen in the image.

         Exhibit 39 showed the base of McClennon's skull after a bone scalpel or saw had been used "to remove that part of the skull" and then the brain removed. Gorrill noted multiple skull fractures in the image. Based on the location of the fractures, Gorrill was able to describe the likely path of the bullet. Gorrill concluded that the bullet entered the left side of McClennon's head, traveled through his skull, and caused the fractures shown in the photo.

         Exhibit 40 showed "the interior of [McClennon's] neck, the vertebral column" after the "neck structures" had been removed. Gorrill pointed out the projectile, which was "in one piece up here in the back of the neck" in the photo. He then indicated on his own body the approximate location where the projectile would have been lodged. He described the location as "[k]ind of in the neck area."

         Gorrill concluded "within a reasonable degree of medical certainty" that the cause of McClennon's death was a "[g]unshot wound to the head" and that the manner of death was homicide.

         The State's main witnesses on the events that occurred off camera in the basement were Johnson and Kindred.

         Johnson testified that he and McClennon had not planned on going to the party that night, but Kindred called Johnson and asked him to come. Johnson did not know James but had seen him before.

         After Johnson arrived at Parrot-fa-Nalia, he took a phone call in the parking lot. Kindred approached with James. Kindred "[t]old me [James'] name, said it was Boo, told Boo like who I was, told us we need to squash whatever was going on."

         Johnson said James was upset about Johnson's romantic relationship with James' niece. Johnson said he told James, "I was grown, she was grown." "He wanted me to leave her alone, told me to leave her alone and end it. I felt disrespected by it because we both grown."

         At that point, Johnson's cousin grabbed him and they left the party with McClennon. They were gone 45 minutes to an hour. After Johnson "cooled down a little bit," Johnson and McClennon returned to the party. Johnson testified that he had just gotten out of prison and "wanted to spend time with everybody."

         Kindred and James approached Johnson again after he returned. Kindred told Johnson that he was "mugging" James and that

"you know, need to squash this, this and that. We need him on our side. I got upset. That's when I wanted to fight. That's what I like to do, so I wanted to box. My cousin, Puddin, she came and stopped me. Anita Jones, she came and grabbed me, took me to the back, you know. She tried to squash it, break it up. They kept messing with me, so everybody got kind of mad. That's when my [dad] said the matter was over with, everybody started leaving and stuff."

         Johnson denied "mugging" James at the party, saying, "No. If I was mugging him, I would have approached him." For clarity, the Urban Dictionary describes "mugging" as "star[ing] or look[ing] at someone with malignant thoughts or intentions." Urban Dictionary, (last visited June 28, 2019).

         As most people, including James, left the party, Johnson and McClennon stayed with Kindred and several members of James' family.

         Just after Johnson finished helping to load speakers in the parking lot, he "heard some tires screeching pulling in the parking lot." Johnson looked up and saw "a black Jeep Cherokee . . . pulling in real fast." The driver was wearing a blue hat ...

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