IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,085
STATE OF KANSAS,
Appellee,
v.
GORDON R. MARTIS, JR.,
Appellant.
SYLLABUS BY THE COURT
1. Premeditated first-degree murder defined by K.S.A. 21-3401(a) is a lesser included offense of capital murder defined by K.S.A. 21-3439(a).
2. Where a defendant is charged with capital murder under K.S.A. 21-3439(a)(6), the intentional and premeditated killing of more than one person, and there is a request for lesser included instructions by the defendant with some evidence supporting the giving of lesser included instructions, a trial court is required to give lesser included instructions for each victim set forth in the capital-murder charge. Under the facts of this case, the record is examined, and the giving of lesser included instructions for each victim named in the amended information filed under K.S.A. 21-3439(a)(6), resulting in the defendant's convictions for first-degree premeditated murder and second-degree murder, was not error.
3. The admission of evidence lies within the sound discretion of the trial court. Our standard of review regarding a trial court's ruling on evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the trial court abused its discretion bears the burden of showing such abuse of discretion.
4. Evidence of a pending felony charge filed by the prosecutor against a witness testifying for the prosecution, without any other evidence, lacks probity in establishing that the witness so charged would testify falsely for the State because of the pending charge. Moreover, evidence of a pending charge against a witness is inadmissible under K.S.A. 60-421 to impeach the witness' credibility. K.S.A. 60-421 requires a conviction before evidence of a crime is admissible for that purpose.
5. A defendant does not have a right under the Sixth Amendment to the United States Constitution to be present in person and by counsel when the trial court excuses prospective jurors based on financial or employment hardships.
6. Our holding in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), that the Kansas hard 40 sentencing scheme is not unconstitutional under Apprendi v. New Jersey, 530 U. S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and the numerous recent Kansas cases following Conley control in this case.
7. Consistent with our past decisions, we hold that the definition of "premeditation" in PIK Crim. 3d 56.04(b), in effect at the time of the defendant's trial, adequately conveys the concept that premeditation means something more than the instantaneous, intentional act of taking another's life; it means to have thought the matter over beforehand. "To have thought the matter over beforehand" means to form a design or intent to kill before the act. Thus, the first-degree premeditated murder statute and corresponding jury instructions given in this case were not void for vagueness and did not violate the Due Process Clause of the Fourteenth Amendment to the Unites States Constitution.
Appeal from Wyandotte district court, JOHN J. MCNALLY, judge. Opinion filed February 6, 2004. Affirmed.
Reid T. Nelson, capital and conflicts appellate defender, argued the cause, and was on the briefs for appellant.
Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Gordon R. Martis, Jr., appeals his convictions and sentences for one count each of premeditated first-degree murder, second-degree murder, attempted first-degree murder, and attempted second-degree murder. He alleges seven errors, each of which would require reversal of his convictions. Among the seven, one presents itself as a question of first impression in Kansas. The defendant alleges that two of his convictions grew out of one count, which is prohibited by law. The six other allegations of error involve the defendant's right of cross-examination, exclusion of defense evidence, improper testimony from a State's witness, automatic exclusion of potential jurors, the constitutionality of both the hard 40 sentence and the first-degree murder statute, and jury instructions. We conclude that no reversible error occurred and affirm.
During the early evening hours of May 18, 1999, four of the five occupants of a vehicle located in a parking lot across the street from Mr. B's nightclub in Wyandotte County were shot while sitting in a vehicle. Andrea Williams was shot in her right leg, hip, buttock, and vagina but recovered. Stacey Wilson was shot in the back but also recovered. Alfonzo Moore was shot in the heart and died from his wound. Jerry Seals was shot multiple times (nine gunshot wounds) and died as a result of his wounds. In the original information, Martis was charged with first-degree premeditated murder of both Moore and Seals. By amended information, the defendant was charged with one count of capital murder under the provisions of K.S.A. 21-3439(a)(6). However, upon trial the defendant was convicted based upon the lesser included offense instructions he requested of first-degree premeditated murder (Moore) and second-degree intentional murder (Seals).
Martis was also charged with attempted murder of Williams and Wilson. He was convicted of attempted first-degree premeditated murder of Wilson and attempted second-degree intentional murder of Williams. He received a hard 40 sentence on the premeditated murder conviction. The remaining sentences, life imprisonment without the possibility of parole for 10 years on the second-degree murder, 268 months' imprisonment for attempted first-degree murder, and 194 months' imprisonment for attempted second-degree murder, were run concurrent with the hard 40 sentence.
The rationale of the jury findings of guilt echos the evidence at trial indicating that Martis, consistent with his threat 3 days before the shooting, intended to kill both Moore and Wilson, thus establishing the convictions of first-degree premeditated murder of Moore and attempted first-degree premeditated murder of Wilson. However, the jury concluded that he intended to kill the other occupants but had not premeditated their killing. Thus, he was convicted of second-degree intentional murder of Seals and attempted second-degree intentional murder of Williams.
Andrea Williams, Loya Qur-an Fuel, Mercedes Sappington, and Darwin Bagley all identified the defendant at trial as the shooter. Williams testified that on the evening of May 18, 1999, she met Wilson and Moore, who were dating, and Seals, whom she was dating, around 8 or 9 p.m. Williams, Moore, and Wilson smoked marijuana while they drove to see a movie. After the movie, they purchased alcohol and drank it on the way to Mr. B's nightclub. Wilson was driving Moore's car, while Moore was in the front passenger seat and Seals and Williams were in the back seat.
Wilson drove down a side street to see who was standing in front of the club, and Williams saw the defendant and Rashida Johnson, the defendant's girlfriend and mother of his children, among several others standing outside of the club. (The defendant and Johnson were subsequently married.) Williams knew the defendant because he had dated Wilson. While Wilson circled a parking lot across the street from the club, Fuel, the mother of Moore's children, walked across the street and looked into the car. Wilson stepped on the gas to scare Fuel and then drove away to pick up Wilson's cousin, Fredrick Howard, at his residence.
Moore got into the back passenger seat to allow Howard to sit in the front passenger seat. Williams moved into the middle of the back seat and Seals was sitting in the driver's side back seat. Wilson drove back to the club and pulled into the lot across the street. Fuel walked across the street, snatched open the driver's side door, called Wilson a bitch, and tried to get at her. Wilson backed the car up in response, and Fuel continued to try to get in the door until the shooting started.
Williams testified that the defendant shot Wilson first and then shot more than 10 times into the back seat. She could see the defendant and the barrel of the gun through the driver's side back window, and he was close enough that she would have been able to touch the gun. She did not recall a pause in the shooting.
After the shooting stopped, Wilson tried to drive away but she passed out. Howard, who was the only person not shot, got into the driver's seat and drove most of the way to the hospital. Williams called on her cellular phone and told her sister that the defendant had shot her. Howard got out of the car 2 blocks from the hospital because he was concerned about his outstanding warrants. Wilson drove the remainder of the way to the hospital where she and Williams were treated for gunshot wounds.
In his cross-examination of Williams, defense counsel pointed out that Williams was on probation at the time of the shooting for theft and a warrant was issued for her arrest in Wyandotte County for worthless checks a few of months before trial.
Howard testified that when they drove up to the nightclub, a girl ran up to the car and hit the windshield. Wilson started backing into a parking lot, and someone started shooting on the driver's side of the car. Howard got down on the floorboard of the passenger side and did not see the shooter. He estimated 12 to 13 shots were fired.
Fuel testified that she went to a barbecue at the defendant and Johnson's home earlier that day. Fuel did not consume any alcohol, but she observed the defendant drink beer. The barbecue lasted about 4 or 5 hours before people started leaving to go to Mr. B's. Fuel went to the club with Johnson, Johnson's sister M'Sherie Johnson, and Jamie Gaskin. They hung out in front of the club for about a half hour before she saw Wilson and Moore drive by in Moore's car. Wilson turned around and drove past again and was gone for about 10 minutes. Fuel testified that Moore's car returned and parked near the club for about 15-20 minutes, but no one got out of the car. Wilson pulled up on the side of the building very slowly, and Fuel ran to the car and tried to open the passenger door, but it was locked. She denied hitting the windshield.
Fuel followed the car across the street and snatched open the driver's side door. Wilson put the car in reverse, and the door swung shut. Fuel recognized the defendant's voice say, "[B]itch, what I tell you, what I tell you." She did not see the defendant, but she had no doubt in her mind that it was him. She saw the gun and ran away to the sound of multiple gunshots. The defendant subsequently ran past her while she was running up a hill. Fuel called Moore's mother on a cellular phone and told her that she was trying to fight Wilson and the defendant had run up to the car and started shooting.
Mercedes Sappington testified that she stopped by the barbecue with her friends Shatia Brown, Kimberly Norman, and Latoya Davis. She testified that she drank alcohol and smoked "wet" (marijuana cigarettes dipped in PCP), and she observed the defendant do the same. She went to Mr. B's with her friends around 11 p.m., and they stood outside for about a half hour smoking marijuana. They got back into their car; then Johnson and her sister, Gaskin, and Fuel walked to their car and started talking to them. Sappington testified that Wilson and Moore drove by and swerved their car and that Fuel started chasing them after they passed. Wilson drove by again, almost hitting Fuel, and then drove away for nearly 10 minutes.
Sappington further testified that when Wilson returned, Fuel ran across the street, banged on the car, and tried to get Wilson to get out of the car. Sappington was standing with Darwin Bagley and watched the defendant walk up to the driver's side of the car. Fuel looked at the defendant and then ran off screaming. The defendant said something to Wilson before shooting three times through the front window at her. He then shot more than six times at the back seat before running away.
Bagley, Moore's nephew, testified that he went to Mr. B's that evening and arrived when Wilson was driving the car up 22nd Street. Bagley followed after Fuel on foot and tried to get her to stop yelling at Wilson. He watched Fuel bang on Moore's car and saw the defendant flick her out of the way, and then she ran. Bagley testified that the defendant fired two shots, his gun jammed, and then it went off one more time. The defendant started to leave, then looked into the back window and fired the remainder of the bullets before running away. Bagley hit the hood of the car, and told Wilson to leave.
Sappington identified the defendant's weapon as a .40 caliber gun, and Bagley described it as either a 9 mm. or a .40 caliber automatic handgun. Michael W. Ennis, a firearm and toolmark examiner with the FBI, identified all of the bullets found in the vehicle and in the bodies of victims as being .40 caliber bullets.
The defense thoroughly cross-examined Sappington and Bagley about inconsistencies between their trial testimony and the statements they had made to the police shortly after the incident. The defense elicited testimony that Sappington had convictions for theft and felony obstruction of a law enforcement officer and Bagley had a juvenile conviction for robbery.
Lieutenant Terrence Hall and Detective Roger Golubski responded to the hospital shortly after midnight. Lieutenant Hall spoke with Williams and Bagley, who both identified the defendant as the shooter.
Stacey Wilson's mother, Joyce Wilson, told the officers that on May 16, 1999, the defendant came to her house and threatened to kill Moore and Stacey Wilson. Shardale Roark told the detective that she was present when the defendant made this threat. Later that day, Detective Golubski interviewed Fuel and Sappington, who both identified the defendant as the shooter.
A warrant was issued for the defendant's arrest, and he turned himself in on May 25, 1999. In September and October 1999, the detective obtained four letters written to Wilson by the defendant while he was in jail, and they were read to the jury at trial.
Prior to trial, the defense sought to prevent the State from introducing evidence surrounding the unsolved homicide of Stacey Wilson, which occurred in September 1999, as the jury might infer that the defendant had played a role in her death. The circumstances surrounding her death were not discussed at trial, and the jury was simply instructed that Stacey Wilson died in September 1999 from injuries unrelated to those she had received in the shooting.
Joyce Wilson testified at trial that her daughter dated the defendant for a year but started seeing Moore a week before the shooting. On Sunday, May 16, 1999, Joyce Wilson took part in a conversation with the defendant and Stacey Wilson at Roark's residence. The defendant talked about Stacey Wilson seeing Moore, and she told the defendant that he had to make a choice between her and Johnson. The defendant replied that he was going to "kill them niggers" and if Stacey was in the car, "I'm going to get you, too." Stacey Wilson's 12-year-old daughter testified at trial that she witnessed her mother talking to the defendant about Moore, and he said, "[B]itch, if I see you with him I'm going to kill you and him."
Florice Easterwood testified for the defense that the shooter was a short, dark-skinned African-American male and the defendant's skin color did not match the person she observed during the incident. Michael Banks, Rashida Johnson's uncle, testified that the defendant was standing with Johnson in front of Mr. B's when the gunshots were fired. Johnson's sister, M'Sherie Johnson, corroborated this testimony. Tenisha Higginbotham, the defendant's cousin, testified that she was talking to the defendant when the "situation kicked off."
1. Was it error for the defendant to be convicted and sentenced for two separate crimes under one count of capital murder?
While the defendant argues that the trial court erred in denying his motion to arrest judgment, his real concern is that he was convicted of two counts of murder when he was only charged with one count of capital murder. In rejecting the defendant's posttrial motion on this issue, the trial court indicated that his arguments on his motion to arrest judgment had already been dealt with extensively on the record. The issue raised by the defendant is ripe for resolution and constitutes a question of first impression in this state.
The amended information charged the defendant in Count I with capital murder, alleging that the defendant
"did unlawfully, feloniously, intentionally and with premeditation, kill more than one person, to-wit: Alfonzo Moore and Jerry Seals, as part of the same act or transaction or in two or more acts or transactions connected together or constituting part of a common scheme or course of conduct, in violation of K.S.A. 21-3439."
Under Count I, the jury was instructed that to establish the crime of capital murder, it must be proven:
"1. That the defendant intentionally killed more than one person, to-wit: Alfonzo Moore and Jerry Seals;
"2. That such killings were done with premeditation;
"3. That the premeditated and intentional killing of Alfonzo Moore and Jerry Seals was a part of the same act or transaction or constituted parts of a common scheme or course of conduct; [and]
"4. That this act occurred on or about the 19th day of May, 1999, in Wyandotte County, Kansas."
At the defendant's request, the jury was instructed that under Count I, it could consider the lesser included offenses of first-degree and second-degree murder of Moore, and the lesser included offenses of first-degree and second-degree murder of Seals. Instruction 12 provided:
"If you do not agree that the defendant is guilty of Capital Murder in Count I, you should then consider the lesser included offense of Murder in the First Degree.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant intentionally killed Alfonzo Moore;
"2. That such killing was done with premeditation; and
"3. That this act occurred on or about the 19th day of May, 1999, in Wyandotte County, Kansas."
Instruction 13 was a second-degree intentional murder instruction regarding victim Moore. Instructions 14 and 15 were identical to Instructions 12 and 13 except that the named victim was Seals.
On May 10, 2001, the jury found the defendant guilty of the premeditated murder of Moore and the second-degree intentional murder of Seals.
The first question to be addressed is whether the amended information prejudiced the defendant so as to infringe upon his right to a fair trial. The standard of review in this case is the post-Hall standard. See State v. Hall, 246 Kan. 728, Syl. ¶¶ 12 and 13, 793 P.2d 737 (1990). The post-Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant's ability to plead the conviction in any subsequent prosecution, or limited the defendant's substantial rights to a fair trial. 246 Kan. at 764-65.
The defendant's ability to prepare a defense was not prejudiced because the amended information charged him with the premeditated murder of both Moore and Seals. The defendant does not claim that his ability to plead the conviction in a subsequent prosecution was impaired. The defendant does argue that his substantial rights were prejudiced because he was convicted of an additional uncharged crime.
In support of his argument, the defendant cites the following two statutes. First, K.S.A. 2002 Supp. 22-3201(e) provides that "[t]he court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced." The defendant emphasizes the language "if no additional or different crime is charged," concluding that this statute contemplates one crime per count. The amended information in this case charged one count of capital murder by the premeditated murders of Moore and Seals. See K.S.A. 21-3439(a)(6).
One crime, capital murder, was charged in one count containing two counts of first-degree premeditated murder as lesser included offenses. Thus, based upon the evidence at trial and the defendant's request for lesser included offense instructions, the trial court was required to instruct the jury on the lesser included offenses for both the murder of Moore and Seals. No additional or different crime was charged. The amended information and the lesser included offenses arising out of the amended information satisfied the provisions of K.S.A. 2002 Supp. 22-3201(e) under the unique provisions of K.S.A. 21-3439(a)(6).
Second, K.S.A. 2002 Supp. 21-3107(1) provides that "[w]hen the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment." Subsection (2) provides that "[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is: . . . (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged." K.S.A. 2002 Supp. 21-3107(2)(b).
The defendant argues that a reasonable construction of 21-3107 is that a defendant may only be convicted of the crime charged or one lesser degree of that crime. He argues that the jury instructions were broader than the charges contained in the amended information and that the prosecution should have charged two alternative counts of premeditated murder in order to obtain convictions of more than one crime.
The State argues that the defendant in this case was implicitly charged with committing two separate premeditated intentional killings by virtue of K.S.A. 21-3429(a)(6), that appellate courts no longer impose an affirmative duty on trial courts to give lesser included instructions, and that lesser included instructions under 21-3429(a)(6) will naturally be different as it is the only method of capital murder which requires the State to prove two distinct premeditated killings.
We agree with the State. K.S.A. 21-3439(a)(6) defines capital murder as the "intentional and premeditated killing of more than one person as part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct." We also partially agree with the defendant that the prosecutor in this case could have charged two alternative lesser included counts of premeditated murder. We do not agree that by filing only the capital-murder charge the prosecutor violated the provisions of K.S.A. 2002 Supp. 21-3107.
The first-degree premeditated murders alleged in the amended information charging capital murder under K.S.A. 21-3439(a)(6) are lesser included offenses of capital murder. In State v. Bradford, 272 Kan. 523, 34 P.3d 434 (2001), Bradford was convicted of capital murder for the intentional and premeditated killings of two women under K.S.A. 21-3439(a)(6). While addressing the requirement that Bradford receive a voluntary intoxication instruction on his specific intent crimes, we noted that such an instruction was given for "capital murder, lesser included offenses of first-degree murder or felony murder, and aggravated burglary." 272 Kan. at 535. The PIK Committee correctly identifies murder in the first degree as a lesser included offense of capital murder. See PIK Crim. 3d 56.01.
Under the provisions of K.S.A. 2002 Supp. 21-3107, the defendant was charged with one crime, capital murder. More than one crime was not charged. However, the amended information charging capital murder alleged the premeditated murders of Moore and Seals. The provisions of 21-3107 provide that a defendant may be convicted of either the crime charged or a lesser included crime, but not both. Here, the defendant was convicted of the lesser included offenses of first-degree murder of Moore and second-degree murder of Seals. He was not convicted of both the crime charged and lesser included crimes. The defendant's argument that the jury instructions were broader than the charges contained in the information is correct, but there was no violation of K.S.A. 2002 Supp. 21-3107 and the unique provisions of K.S.A. 21-3439(a)(6) required such instructions.
The amended information in this case advised that the defendant was facing only one capital murder charge, but he was convicted and sentenced for two separate lesser included crimes under that count. However, the lesser included offenses of a capital murder charge under K.S.A. 21-3439(a)(6) includes two first-degree premeditated murders in addition to other lesser offenses of first-degree murder. If we adopt the argument of the defendant, the trial court had two options: First, to instruct the jury on a lesser included instruction for only one of the murder charges or second, to give no lesser included offense instructions under K.S.A. 21-3439(a)(6). Both options would have prejudiced the defendant and denied him a fair trial. These options would lead to illogical results because a defendant who was charged with two counts of premeditated first-degree murder would be entitled to lesser included offenses, but a defendant charged with capital murder and facing the death penalty for committing two premeditated murders would be entitled to no lesser included offense instructions or would only be entitled to one lesser included offense instruction under K.S.A. 21-3439(a)(6).
The result of jury deliberations in this case with lesser included offense instructions for the murders of both Moore and Seals under the provisions of K.S.A. 21-3439(a)(6) demonstrates the fairness to the defendant. In a case such as this where the defendant requests lesser included instructions and the evidence supports the giving of such instructions for both victims, K.S.A. 21-3439(a)(6) requires the trial court to instruct on each lesser included offenses for each victim. After considering PIK Crim. 3d 56.01, Bradford, and the consequences of the parties' arguments, we conclude that the trial court's decision to instruct on lesser included offenses for each victim was correct. The amended information in this case put the defendant on notice that he was alleged to have killed two people with premeditation and the penalty could be as severe as death. Neither K.S.A. 2002 Supp. 22-3201(e) nor K.S.A. 2002 Supp. 21-3107 limit lesser included offenses to consisting of only one count. Under this particular subsection of the capital-murder statute, the lesser included offenses necessarily include two or more separate counts of first-degree murder.
2. Limitation of Cross-Examination
Mercedes Sappington
Mercedes Sappington was called as an eyewitness to attest to the fact that the defendant was the shooter during the incident. She had given her statement to the police at the time the homicides were committed. At that time, no charges were pending in Wyandotte County against her. Approximately 2 years later, just prior to the defendant's trial, Sappington was charged by the Wyandotte County's prosecutor's office with felony criminal damage to property, a crime not involving dishonesty. Prior to her testimony, the defendant sought permission to cross-examine Sappington on the pending charge, advancing the following rationale:
"Judge, the basic premise here is that I think the jury should have the opportunity to determine whether the fact that Ms. Lidtke's [Prosecutor] office is prosecuting her for a felony--should the jury be able to consider that in terms of maybe that would influence her testimony, not there is a deal. I stipulate there is not a deal. But this witness doesn't know she can't get the deal.
. . . .
"[T]he crux of our position is the fact that the DA's office for whom she is the very witness is the one that really controls her destiny and she might think that's important. . . .
"I think I should be able to ask her isn't she currently being prosecuted by the Wyandotte County district attorney's office for--I don't know what felony it is. I think it's criminal damage. Maybe it's a misdemeanor. . . . But she is being prosecuted. I think whether it's a felony or misdemeanor makes little difference. She is being prosecuted by the district attorney's office. I think that's the question."
The court denied this motion. After Sappington testified on direct, the court stuck to its initial ruling and refused to allow the defendant to cross-examine her about the pending Wyandotte County case against her. The court reasoned that it would leave an unfair impression with the jury that she was testifying falsely because she had made a deal with the State, with no evidence to support such an inference, and with the stipulation of the defendant that no deal had even been discussed with the witness.
The defendant advances the same arguments before this court, claiming that the defense was prevented from pointing out that Sappington had a motive to lie for the prosecution, which requires reversal of his convictions.
The admission of evidence lies within the sound discretion of the trial court. Our standard of review regarding a trial court's ruling on evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State. v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002).
The defendant couches his argument i