State v. Clark

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NOT DESIGNATED FOR PUBLICATION

No. 114,883

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DOMINIC A. CLARK,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed March 24, 2017.
Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., HILL, J., and WALKER, S.J.

Per Curiam: Dominic A. Clark appeals his convictions by a Wyandotte County
jury of second-degree murder and criminal possession of a firearm by a convicted felon.
Finding no errors, we affirm.

FACTS

An investigation into a shooting death at a Kansas City apartment complex led to
the arrest of Clark. He was charged with first-degree murder in the death of Kelvin
Brown and with criminal possession of a firearm by a convicted felon. A jury found
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Clark guilty of second-degree murder and criminal possession of a firearm. Clark now
appeals those convictions.

At Clark's trial, numerous witnesses testified for the State. Lashelle Dunn and
Timmie Ruth Woolridge, who are sisters, were residents of the apartment complex where
the shooting took place. Dunn testified that she was in her or her sister's apartment when
she heard people arguing outside. She and Woolridge went outside to see what was
happening. As they were getting ready to cross the street, Dunn noticed that the arguing
got louder and then heard a number of gunshots. Dunn ducked down when the shots
started but saw a nice black BMW or Audi speed away from the scene after the shooting
stopped. As the car drove past her, Dunn noticed that one of the occupants was wearing a
red shirt.

Woolridge's testimony was similar. She testified that she was sitting in her
apartment when she heard some men arguing outside. Dunn then yelled up at Woolridge
from her back balcony and told Woolridge to come outside and go with her to see what
was happening. Woolridge went down the stairs and was headed in the direction of the
argument when she heard gunshots. She ducked down until the shooting stopped then ran
towards the victim. As she ran, Woolridge noticed a dark colored BMW driving down the
road toward her but away from the shooting. Woolridge could see two men in the front
seat of the car, one of whom was wearing a red-hooded shirt. The other man had on a
darker-hooded shirt.

Jeffrey Kerwin testified that approximately 30 minutes after the shooting, he was
waiting to meet a tenant in the parking lot of an apartment building he managed in the
Westport area of Kansas City, Missouri, when a black BMW pulled into the parking lot
and stopped by one of the dumpsters. Kerwin watched from his car as the driver of the
BMW got out, removed the red-sleeved jacket he was wearing, and threw the jacket and a
bag into the dumpster. Kerwin was able to get a good look at the driver when he exited
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the vehicle. Kerwin identified Clark as the driver. Kerwin noted that Clark's hair was
different on the day of the trial and that he was wearing new glasses, but he believed
Clark to be the same man he saw wearing the red-sleeved jacket and driving the BMW.

Shortly after the driver returned to the BMW and left the parking lot, Kerwin met
with the tenant. After the meeting, Kerwin went to the dumpster to investigate. In the
dumpster, he saw the jacket and the bag that he watched the driver of the BMW place
there. Kerwin picked up the bag to look inside and noticed that it contained two
handguns. Kerwin then put the bag down and called the police. Officer Robert Shorrock
responded to Kerwin's call. Shorrock testified that he collected the bag and the jacket out
of the dumpster.

Those items were eventually transferred to the Kansas Bureau of Investigation
(KBI) so that they could be tested for DNA and fingerprints. Jennifer Solado, a forensic
scientist at the KBI, testified that she took cuttings from several places on the red jacket.
She then tested the samples to determine if they contained any DNA evidence. Each
sample contained Clark's DNA as the major contributor, i.e., while more than one
person's DNA was present, Clark's was the most pervasive. This was especially true on
the collar of the jacket—a place that was tested to reveal who was wearing the jacket—
because it was the spot most likely to come into direct contact with the skin of the wearer.

Solado also obtained DNA evidence from the handguns. One of the handguns, a
Glock, was swabbed in four different areas—the grip, trigger, slide, and safety. The grip
and trigger contained DNA from three contributors, but the major contributor was Clark.
The second gun, a Smith & Wesson, was also swabbed but contained insufficient quality
and quantity of DNA to be able to determine to whom the DNA belonged.

KBI toolmark examiner, Zachary Carr, also testified at Clark's trial. Carr was
given the task of examining bullets, bullet fragments, and bullet casings that were
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recovered from the scene of the shooting and the body of the victim. Carr concluded that
one bullet recovered from the scene was definitely fired by the Glock recovered from the
dumpster. Additionally, he determined that four separate bullet fragments recovered from
the scene had characteristics indicating they could have been fired by the Glock. Carr
also testified that four bullet casings recovered from the scene were fired by the Glock.
Of the bullets and bullet fragments recovered from the victim's body, one bullet appeared
to have been fired by the Smith & Wesson. A second bullet could not be confirmed to
have been fired by the Smith & Wesson but was definitely not fired by the Glock. The
weapon from which the remaining four bullets or bullet fragments found in the victim's
body was fired was not identified.

At the close of evidence, the jury was instructed on first-degree murder as well as
the lesser included offenses of intentional second-degree murder and voluntary
manslaughter. The jury was also instructed that a person may be found guilty of a crime
if the person, "either before or during its commission, and with the mental culpability
required to commit the crime intentionally aids another to commit the crime." The jury
returned a verdict finding Clark guilty of intentional second-degree murder. Clark now
appeals.

ANALYSIS

Sufficiency of the evidence

On appeal, Clark first argues that the circumstantial evidence presented at trial was
insufficient to convict him of second-degree murder. Clark essentially contends that an
eyewitness would have needed to place him at the scene in order for his conviction to be
valid.

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When the sufficiency of the evidence used to convict a defendant is challenged on
appeal, this court reviews the evidence in the light most favorable to the prosecution. The
conviction will be upheld if we are convinced that a rational factfinder could have found
the defendant guilty beyond a reasonable doubt based on the evidence. In conducting this
review, we generally will not reweigh the evidence or make determinations regarding the
credibility of witnesses. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). It is
only in rare cases, where no reasonable factfinder could have found guilt beyond a
reasonable doubt from the evidence presented at trial, that a guilty verdict will be
reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983). Convictions of even the
most serious offenses can be based entirely on circumstantial evidence as long as the
evidence provides a basis for a reasonable inference by the factfinder regarding the fact in
issue. State v. Logsdon, 304 Kan. 3, 25, 371 P.3d 836 (2016).

Here, neither of the eyewitnesses at the scene of the shooting saw the occupants of
the car well enough to describe or identify them. Nevertheless, both Dunn and Woolridge
saw a nice black car, which one identified as a BMW and the other described as either a
BMW or an Audi, speed away from the scene. Additionally, both testified that one of the
individuals in the car was wearing a red jacket or hoodie. Shortly thereafter, Kerwin saw
a black BMW being driven by a man wearing a jacket with red sleeves pull into a parking
lot. He then observed the driver exit the vehicle, take off the jacket, place the jacket and a
bag into a dumpster, and then drive away. Kerwin was able to identify Clark as the driver
of the car. The jacket contained Clark's DNA as did one of the guns that was found in the
discarded bag. The guns in the bag were linked to the scene of the shooting by the
toolmark examiner who identified bullets and bullet casings that had been fired from each
gun. One of the bullets that was found inside the victim's body was positively identified
as having been fired from one of the guns.

While Clark was not positively identified as being at the scene, there is sufficient
evidence from which a reasonable jury could have found Clark guilty of either directly
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killing the victim or of intentionally aiding another in killing him while possessing the
intent to kill the victim. See State v. Penn, 271 Kan. 561, 564, 23 P.3d 889 (2001)
(affirming murder conviction based on circumstantial evidence tying defendant to crime).

Prosecutor's comments during closing arguments

Clark next argues that his right to a fair trial was jeopardized by prosecutorial
misconduct during closing arguments.

On review of a claim of prosecutorial misconduct (now prosecutorial error), this
court's analysis has two parts. First, we must determine whether the statements of the
prosecutor fell outside the wide latitude afforded to prosecutors when discussing the
evidence. If we find that the comments exceeded the scope of proper argument, we must
next determine whether the prosecutor's error prejudiced the defendant's right to a fair
trial. Whether the defendant's right to a fair trial was jeopardized is determined by
applying the constitutional harmless error test, i.e., the "error is harmless if the State can
demonstrate 'beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record.'" State v. Sherman, 305 Kan.
88, 109, 378 P.3d 1060 (2016).

The first statement Clark takes issue with is the prosecutor's statement, "Mr.
Kerwin also said that he was cautious in the fact that he didn't want to step out of his car
and take a photo of this individual. The State believes the testimony was that it didn't
affect his ability. He remembered exactly what happened." Clark argues that this
constituted the prosecutor vouching for the veracity and accuracy of the witness'
testimony.

The second statement Clark complains of was when the prosecutor said, "And the
State believes that the defendant—the testimony showed that the defendant with another
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were firing at Kelvin Brown that day, and as a result of that firing at him multiple shots
killed Kelvin Brown." Clark argues that in this statement the prosecutor "interjected her
own beliefs as to the veracity of the witness statements, and the quality of the evidence."

The State contends that these statements did not fall outside the wide latitude
afforded prosecutors in crafting arguments. The State reads the first statement as the
prosecutor "not commenting on the credibility of the witness Jeffrey Kerwin but instead
summarizing his testimony. Kerwin himself testified that he believed the defendant to be
the same person and that him feeling cautious and not getting out of the car did not affect
his ability to identify the defendant." As for the second statement, the State contends that
the prosecutor immediately corrected herself and restated her summary of the evidence in
a more neutral way. Even if these statements were erroneous, the State contends that the
error was harmless.

While it is generally true that a prosecutor should not give personal comments on
the evidence, including the credibility of witnesses, the prosecutor here does not appear
to have erred. See State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). The first time
the prosecutor said the word "believe," it seems that what she meant was not that she
believed Kerwin's testimony, but what she recalled was that he testified that the fact he
was in his car did not keep him from seeing and being able to later identify Clark.
Although the prosecutor's statement was not artfully worded, we concur with the State's
position that the prosecutor was merely giving her recollection of the evidence and not
trying to bolster Kerwin's credibility. In this light, we do not view the comments as
misconduct.

As the State notes in its brief, the second time the prosecutor said that she
"believe[d]" something, she immediately corrected herself with a more appropriate
statement, i.e., "the testimony showed." The corrected statement is the type of statement
that our Supreme Court has approved of in the past. See State v. Peppers, 294 Kan. 377,
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400, 276 P.3d 148 (2012) ("It is necessary . . . for a prosecutor to say something akin to
'the evidence shows defendant's guilt' in order to make a statement merely directional and
not an expression of the prosecutor's personal opinion."). The prosecutor's statement
came at the end of her summary of the evidence and directed the jury as to what it should
do with the evidence. But even if we were to construe the prosecutor's statements as
improper, the error was certainly de minimus, and was corrected immediately by using
the appropriate Peppers-approved phrasing.

In our view, neither of the statements Clark challenges constituted prosecutorial
error. Because of this, it is unnecessary to proceed to the second step of the analysis.

Affirmed.