324 P.3d 1078 (Kan. 2014), 103,785, State v. Williams

Docket Nº:103,785
Citation:324 P.3d 1078, 299 Kan. 509
Opinion Judge:LUCKERT, J.
Party Name:STATE OF KANSAS, Appellee, v. CORKY A. WILLIAMS, Appellant
Attorney:Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on a supplemental brief for appellant, and Bonnie Boryca, of Joseph & Hollander LLC, of Topeka, was on the other briefs for appellant. Jodi E. Litfin, assistant district attorney, argued the cause, and Cha...
Case Date:May 23, 2014
Court:Supreme Court of Kansas
 
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Page 1078

324 P.3d 1078 (Kan. 2014)

299 Kan. 509

STATE OF KANSAS, Appellee,

v.

CORKY A. WILLIAMS, Appellant

No. 103,785

Supreme Court of Kansas

May 23, 2014

As Corrected June 2, 2014.

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Appeal from Shawnee District Court; NANCY E. PARRISH, judge.

Affirmed.

SYLLABUS

BY THE COURT

1. When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.

2. Premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. Factors that give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant's conduct before and after the killing; (4) any threats and/or declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. Use of a deadly weapon by itself, however, is insufficient to establish premeditation.

3. When a conspiracy is alleged, the existence of an agreement to commit the charged crime is one of the elements the State must prove. The existence of an agreement does not need to be proved directly, however. It is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.

4. Without other incriminating evidence, mere presence in the vicinity of the crime or mere association with the principals who committed the crime is not sufficient to establish guilt as an aider or abettor. Instead, to establish guilt on the basis of aiding and abetting, the State is required to show that a defendant knowingly associated with the unlawful venture and participated in such a way as to indicate that he or she was facilitating the success of the venture. The element of intent necessary to obtain a conviction for aiding and abetting may be inferred from circumstantial evidence.

5. Aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor. Accordingly, the State is not required to charge aiding and abetting in the charging document in order to pursue a theory of accomplice liability at trial.

6. The Kansas aiding and abetting statute does not create an alternative means of committing the underlying crime. Consequently, the State is not required to prove that the defendant was both a principal and an accessory or to elect between the theory that the defendant was an aider and abettor or the theory that the defendant was the principal actor in the commission of the crime.

7. When a claim is made under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the failure to strike a nonminority juror with similar characteristics as a stricken prospective minority juror is circumstantial, although not conclusive, evidence of purposeful discrimination in the exercise of peremptory challenges. Conversely, evidence that a party struck minority and nonminority venire panel members for the same reason can be evidence that one opposing the strike has failed to carry his or her burden of demonstrating purposeful discrimination.

8. When a claim is made under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the possibility that a prospective juror might know one of the State's witnesses is generally viewed as a nondiscriminatory purpose for exercising a peremptory challenge.

9. When a claim is made under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a prospective juror's body language indicating the individual is sleeping or not paying attention to proceedings can be evidence that the State did have a nondiscriminatory purpose when exercising a peremptory challenge to remove the prospective juror.

10. Under Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39), an appellate court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal. Appellate courts will not independently search the record and guess which specific facts the appellant believes support his or her general allegations.

11. A prosecutor's reference to the codefendants in a criminal case having guns and being motivated to commit a crime in an effort to achieve street justice is not misconduct when the statements are based on evidence admitted during the trial.

12. A prosecutor's statement that premeditation can occur in half a second is contrary to established caselaw and is prosecutorial misconduct.

13. When an appellant raises an alleged Confrontation Clause violation, an appellate court will not overlook the lack of an objection as required by K.S.A. 60-404 even if the appellant argues appellate review is necessary to serve the ends of justice or to prevent the denial of the defendant's right to a fair trial.

14. The general rule that a trial court must give a limiting instruction informing the jury of the specific purpose for admission of evidence that a person committed a prior crime or civil wrong on a specified occasion applies only if such evidence is admitted; the rule does not apply if there is only evidence that the defendant associated with someone who committed a prior crime or civil wrong.

15. Where there is evidence of joint or constructive possession of a firearm in a case where illegal possession of a firearm is charged, a trial court does not commit error by instructing the jury on the definitions of actual, joint, and constructive possession.

16. K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial because of prejudicial conduct, inside or outside the courtroom, that makes it impossible to proceed with the trial without injustice to the defendant or the prosecution. Applying the statute, a trial court must engage in a two-step analysis. First, the trial court must decide if there is some fundamental failure of the proceeding. If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an injustice. This means that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.

17. On appeal, a trial court's decision denying a motion for mistrial is reviewed under an abuse of discretion standard. The burden of demonstrating error is on the party alleging the abuse.

18. Where alleged juror misconduct is known by a party or his or her counsel before the verdict is rendered and the matter is not brought to the trial court's attention, the party cannot later seek a new trial based on the misconduct.

19. When a party seeks to introduce a photograph of a reconstructed scene, the proper test for admissibility is whether the conditions are the same or substantially similar to the events depicted. Minor differences go to the weight of the evidence rather than its admissibility. The question of what constitutes a permissible variation depends on whether it tends to confuse or mislead the jury.

20. A cumulative error argument cannot be based on one trial error.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on a supplemental brief for appellant, and Bonnie Boryca, of Joseph & Hollander LLC, of Topeka, was on the other briefs for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

OPINION

Page 1087

[299 Kan. 512] LUCKERT, J.

Corky A. Williams appeals his convictions for the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of [299 Kan. 513] a firearm. Williams raises numerous issues. We have reorganized and combined some issues. As restated, Williams' arguments require us to consider: (1) whether the evidence was sufficient; (2) whether the complaint was insufficient when the aiding and abetting theory was not specifically pleaded; (3) whether the theory of aiding and abetting presented an alternative means of committing a crime; (4) whether there was a violation of Williams' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as guaranteed by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (5) whether alleged prosecutorial misconduct denied Williams' right to a fair trial; (6) whether Williams' right to confront witnesses was violated; (7) whether there were multiple errors in the jury instructions; (8) whether Williams was denied a fair trial because...

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