State v. Ritz
| Decision Date | 03 March 2017 |
| Docket Number | No. 112,069,112,069 |
| Citation | 305 Kan. 956,389 P.3d 969 |
| Parties | STATE of Kansas, Appellee, v. Keith A. RITZ, Appellant. |
| Court | Kansas Supreme Court |
Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief 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.
Defendant Keith A. Ritz appeals his convictions for multiple counts of fleeing or attempting to elude, two counts of theft, and a single count of first-degree felony murder. Ritz raises three issues in his appeal, alleging error in the district court judge's denial of a defense motion to sever charges, error in the district court judge's failure to instruct the jury on lesser degrees of felony murder, and error in the district court judge's reliance on his criminal history for sentencing.
As detailed below, we reject each of Ritz' arguments and affirm his convictions and sentence.
On the evening of December 26, 2012, Officer Bradley Carver of the Wichita Police Department was on patrol when he saw a Corvette that appeared to be speeding. Carver did not get a radar reading of the Corvette's speed because of a Honda that was following the Corvette. Carver followed the Corvette until it turned onto a side street and stopped in front of a house. The Honda stopped behind the Corvette. A passenger got out of the Corvette, ran up to the front door, appeared to unscrew a floodlight on the front of the house, and then ran back to the street and got into the Honda. Carver started to get out of his car. As soon as he did, the "Corvette ... squealed tires and took off." Carver got back into his car, turned on his siren, and began pursuit. The chase that followed was captured on the dashboard camera in Carver's patrol car, and the video would later be admitted at Ritz' trial.
Carver pursued the Corvette through a residential area at "probably 60 to 65 miles [per] hour." At one point in the chase, the Corvette failed to negotiate a T intersection and jumped a curb into a church parking lot. The Corvette continued out of the parking lot, and Carver followed. At another point, it appeared to Carver that the chase was over because the Corvette had failed to make a right-hand turn and had overcorrected, spun, and went up onto a curb. But the driver of the Corvette backed out and continued. Eventually Carver "noticed the left rear tire of [the Corvette] leave the vehicle ... and [the driver] lost control ... spun a complete 180 and struck a light pole" on the corner of an intersection.
When the Corvette was stopped, Carver exited his car, drew his weapon, and approached the Corvette. Carver ordered the driver to show his or her hands and acknowledge Carver's presence. Carver got no response. As Carver approached the Corvette, he noticed that it was so damaged that the "driver's seat was not really visible from the driver's side." When Carver went around the front of the car, he found the only occupant "laid across the front seat with his feet still underneath the steering wheel of the vehicle and his head partially out of the sunroof of the Corvette."
The Corvette driver would later be identified as Ritz.
Ritz was charged with two alternative counts of fleeing or attempting to elude an officer, theft, and driving while a habitual violator in connection with the events of December 26.
On the morning of March 5, 2013, Officer Jason Emery of the Wichita Police Department responded to a dispatch to check on a vehicle near the Arkansas River. A second officer, Alex Recio, also responded. When Emery arrived in the area, he spotted a parked full-size GMC pickup matching the description he had been given.
Emery and Recio each pulled behind the pickup. The pickup started rolling forward and traveled a very short distance before pulling into the private drive of a residence. Emery and Recio pulled in behind the pickup and stopped. Recio got out of his car and started to walk toward the pickup. Emery started to do the same but decided to stay in his car. As Recio approached, the pickup was backed out of the drive into the street. It then started to roll forward and accelerated away. Emery activated his lights and sirens and gave chase.
Initially, the pickup was driving approximately 40 miles per hour through a 30–miles-per-hour residential area. It continued gaining speed and drove through several stop signs and stoplights, making it difficult for Emery to keep up. Emery nevertheless continued his pursuit. When he reached Harry Street he saw "debris, like a big smoke cloud and debris flying in the air" and realized there had been a collision of the pickup he had been chasing and another car.
Emery would later testify at Ritz' trial that the entire chase "[c]ouldn't have been more than probably a minute, minute and a half." At no time during the chase had Emery turned off his lights and siren. Data from recorders in both vehicles involved in the collision would later be admitted into evidence. It showed that the pickup reached a maximum speed of 77 miles per hour approximately 2 seconds before the collision. At about the same time, the pickup's throttle dropped to 0 percent and the pickup brake lights came on, which indicated the driver had depressed the brake pedal. The last recorded speed was 70 miles per hour, approximately 1 second before the collision.
The driver of the pickup would later be identified as Ritz.
When Emery stopped, he could see that the driver of a second vehicle involved in the crash was slumped over and not moving. When Recio, who had also pursued the pickup, arrived at the scene, he focused on the other driver while Emery focused on Ritz. The other driver, Venancio Perez–Najera, was unconscious; and a third officer could not find his pulse. Perez–Najera was ultimately pronounced dead at the scene.
Ritz was charged with first-degree felony murder predicated on fleeing or attempting to elude an officer, two alternative counts of fleeing or attempting to elude an officer, theft, and driving while a habitual violator in connection with the events of March 5.
All of Ritz' charges were filed in a single information, and Ritz moved before trial to sever the crimes by date. After briefing and oral argument by both sides, the district judge ruled from the bench that the two sets of crimes were of the same or similar character under K.S.A. 22–3202, making their joinder appropriate.
The district judge began his analysis of the motion by noting the similarity of the charges. In both cases, Ritz had been charged with reckless fleeing or eluding, driving while a habitual violator, and felony theft. The judge acknowledged that the second case also resulted in a felony-murder charge absent from the first incident and that the thefts were factually distinct. In one set of charges, the State alleged that Ritz had stolen the vehicle in which he fled, whereas in the other the State alleged that Ritz obtained the vehicle from a third party, knowing it to be stolen.
The district judge next focused on whether the charged crimes were of the same general character requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. He noted that the mode of trial for each set of charges was jury trial and that the potential punishment for each charge was incarceration. The judge also noted that the same type of evidence would be needed because both sets of charges would require the testimony of the officers who had participated in the chase.
The district judge also discussed the factual similarities of the two cases. The crimes were fewer than 75 days apart. In both cases, Ritz' flight from police took place in residential neighborhoods within the city limits and ended with an accident involving the car Ritz was driving. The judge acknowledged that the two chases happened at different times of day and that only the second accident resulted in a death. The district judge also compared Ritz' statements to police after his two arrests. After the first chase, Ritz told investigators, The judge summarized Ritz' statements: He "admitted to stealing the car, admit[ted to] taking off when the police got right behind him." The judge also summarized Ritz' statements after the second chase: Ritz told investigators that "two cops pulled up on him, he freaked out, punched the gas, ... was going fast and he should have stopped."
Finally, the judge noted that the State's argument was that Ritz' motive for fleeing or attempting to elude in each instance was his knowledge that he was driving a stolen vehicle.
All of the charges—with the exception of the two misdemeanors for driving while a habitual violator, which were the subject of a plea agreement—were tried to a jury.
At trial, Detective Michael Amy testified about his interview of Ritz after the March 5 chase. Ritz had told Amy that when police pulled behind him "that he had freaked out and backed out of the driveway and punched the gas." According to Amy, Ritz stated that "he knew he was supposed to stop." Ritz told Amy that he tried to stop, but "things were flying around in the truck or fell off." He "kept saying it was either—he thought it was a—a pop bottle or a water bottle or something of that nature" that ended up underneath the brake pedal and prevented Ritz from using the brakes. Amy testified that the only bottle found in the pickup by investigators was an ibuprofen bottle. Based on testing conducted by investigators, it was not possible for that bottle to jam under the brake pedal. Ritz also admitted to Amy that he had stolen the Corvette he was driving on December 26. Ritz acknowledged that the GMC pickup he was driving on March 5 may have been stolen, because the friend...
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...findings for substantial competent evidence and the legal conclusion that one of the conditions is met de novo. State v. Ritz , 305 Kan. 956, 961, 389 P.3d 969 (2017). See State v. Robinson , 303 Kan. 11, 204, 363 P.3d 875 (2015), cert. denied ––– U.S. ––––, 137 S. Ct. 164, 196 L.Ed.2d 138 ......
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...was appropriate. We review the district court's decision to join the cases under an abuse of discretion standard. State v. Ritz , 305 Kan. 956, 961, 389 P.3d 969 (2017).First, we disagree with Crosby's argument that the district court erroneously found that a condition precedent under K.S.A......
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State v. Smith
...review the district court's factual findings for substantial competent evidence and the legal conclusions de novo. State v. Ritz , 305 Kan. 956, 961, 389 P.3d 969 (2017).Second, because K.S.A. 22-3202(1) provides that "charges ‘may’ be joined, a district court retains discretion to deny a j......
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State v. Toliver, No. 120,506
...i.e. , whether the error affected a party's substantial rights. K.S.A. 2012 Supp. 60-261.’ [Citations omitted.]" State v. Ritz , 305 Kan. 956, 961, 389 P.3d 969 (2017).We first engage in a fact-specific inquiry to determine if the two separate crimes were properly joined in a single complai......
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Kansas Sentencing Guidelines
...Beckstrom, 647 F.3d 1012, 1020 (10th Cir. 2011). [132] State v. Hitt, 273 Kan. 224, 235-36, 42 P.3d 732 (2002). [133] See State v. Ritz, 305 Kan. 956, 966, 389 P.3d 969 (2017). [134] 277 Kan. 136, 83 P.3d 161 (2005). [135] See Peterson, D. and Jennings, R., Methamphetamine A Recipe for Disa......
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Kansas Sentencing Guidelines
...v. Beckstrom, 647 F.3d 1012, 1020 (10th Cir. 2011). [132] State v. Hitt, 273 Kan. 224, 235-36, 42 P3d 732 (2002). [133] See State v. Ritz, 305 Kan. 956, 966, 389 P3d 969 (2017). [134] 277 Kan. 136, 83 P3d 161 (2005). [135] See Peterson, D. and Jennings, R., Methamphetamine A Recipe for Disa......