843 P.2d 203 (Kan. 1992), 66903, State v. Walker

Docket Nº:66903.
Citation:843 P.2d 203, 252 Kan. 117
Party Name:STATE of Kansas, Appellant, v. Greg WALKER, Appellee.
Attorney:[6] Thomas Jacquinot, special appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant. Debra S. Byrd, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Robert T. Stephan, attorney general...
Case Date:December 11, 1992
Court:Supreme Court of Kansas
 
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843 P.2d 203 (Kan. 1992)

252 Kan. 117

STATE of Kansas, Appellant,

v.

Greg WALKER, Appellee.

No. 66903.

Supreme Court of Kansas

December 11, 1992

Page 204

Syllabus by the Court

1. The use of voter registration lists as the sole source for the selection of jury panels is examined and held not to have been shown to be statutorily or constitutionally impermissible.

2. Appellate review of a trial court's determination of whether the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 106 S.Ct. 1712, 1723, 90 L.Ed.2d 69 (1986), has been made is plenary as it involves a question of legal sufficiency. In contrast, appellate review of a trial court's acceptance of the State's announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion. Following State v. Sledd, 250 Kan. 15, Syl. p 2, 825 P.2d 114 (1992), cert.

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denied, 506 U.S. 849, 113 S.Ct. 147, 121 L.Ed.2d 98 (1992).

3. The district court must consider the eight factors set out in K.S.A.1991 Supp. 38-1636(e) in determining if a juvenile should be prosecuted as an adult; however, the failure to find one or more of the factors adverse to the juvenile does not preclude a determination that the juvenile should be prosecuted as an adult.

4. Under the facts of this case, no abuse of discretion is shown in the district court's determination that the defendant be prosecuted as an adult.

5. The purpose of the notice and hearing provisions of K.S.A.1991 Supp. 21-3525(2) is to protect the rape victim and prevent surprise to the prosecution, and, absent waiver by the trial court, the defendant's failure to comply with those provisions precludes admission of the evidence at trial.

6. Under the facts of this case, the charges of aggravated assault are not multiplicitous with the charge of aggravated kidnapping, and the district court did not commit error: (1) in overruling defendant's motion for a mistrial; (2) in overruling defendant's motion to discharge the jury panel; (3) in excluding evidence of the sexual relationship between defendant's[252 Kan. 118] brother and the victim; (4) in admitting evidence of defendant's gang membership; and (5) in instructing the jury on aggravated criminal sodomy.

Thomas Jacquinot, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the briefs for appellant.

Debra S. Byrd, Asst. Dist. Atty., argued the cause, and Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with her on the brief for appellee.

ALLEGRUCCI, Justice:

Greg Walker appeals his jury convictions of two counts of aggravated kidnapping, K.S.A. 21-3421, a class A felony; aggravated criminal sodomy, K.S.A. 21-3506(c), a class B felony; aggravated arson, K.S.A. 21-3719, a class B felony; aggravated burglary, K.S.A.1991 Supp. 21-3716, a class C felony; and two counts of aggravated assault, K.S.A. 21-3410(a), a class D felony.

He also seeks reversal of the district court's order authorizing the State to prosecute him as an adult.

Defendant's convictions arise out of two separate incidents. The aggravated arson conviction is based on a Molotov cocktail being tossed into the apartment of Kenneth Lowe. The other convictions are based on the forced entry into Jerome Alcorn's apartment and the subsequent conduct toward Alcorn and D.G.

Each of these incidents occurred when defendant was with a group of young men. There was trial testimony about this group's affiliation with the Insane Crips gang, also known as ICG or Crips.

The incident involving the aggravated arson occurred on July 20, 1990. Kenneth Lowe and his roommates had a party at their apartment. After the party was underway, defendant, along with his brother James Walker, Harabia Johnson, Rodney Hooks, and Dejuanaudeiu (Dejuan) Harris, asked if they could join the party. They were told that they were not welcome at the party. They hung around outside and harassed arriving guests.

About 10:00 to 10:30 p.m., they were admitted to the party on the condition that they settle down and stop harassing guests. After being admitted to the party they continued to act up. They [252 Kan. 119] poured beer on the floor, put out cigarettes on the floor, bothered female guests, and stood in a circle singing Crips lyrics to popular tunes.

Lowe and his roommates decided to end the party, and they asked people to leave. After only a few people were left, two carloads of people drove up. James Walker spoke belligerently to a man who got out of one of the cars. Defendant, James Walker, Harabia Johnson, and Dejuan Harris began pushing and hitting people, knocking them to the ground, beating them, "whooping" them with a switch off a

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tree, and even throwing a barbecue grill down on someone.

A man across the street fired a shot in the air. Johnson, Harris, Hooks, and the Walkers ran toward the man with the gun. Johnson broke out a car window.

When the police arrived, everyone scattered. Lowe saw Johnson, Harris, Hooks, and the Walkers go in the back door of Big Momma's, which was across the street from where Lowe lived.

After the police left, Lowe and his girlfriend, Regina Gripp, went over to Big Momma's to talk to Johnson, Harris, Hooks, and the Walkers about what had happened. Misty Miller and defendant followed Gripp and Lowe up onto Lowe's porch, and when Lowe shut the door, someone broke the glass out of it.

Lowe heard several voices outside his apartment. Harabia Johnson broke windows in the apartment with a two-by-four. Lowe called the police, and then he heard defendant outside yelling, "Over here, over here." Lowe thought that defendant was telling someone else which room Lowe was in. In a short time a Molotov cocktail was thrown through a bedroom window. It set fire to the bed, the curtains, and the walls.

Lowe testified that, in addition to hearing defendant say, "Over here, over here," he also heard him say, "Stop." Lowe heard four voices outside, and he identified them as the voices of defendant, James Walker, Harabia Johnson, and Misty Miller.

The remaining charges stemmed from an incident at the apartment of Jerome Alcorn. On July 21, 1990, at approximately 5:00 a.m., Jerome Alcorn answered a knock at his apartment door. Alcorn saw James Walker, Dejuan Harris, and three others. Alcorn had known James Walker for a short time, and he knew Harris as a person who frequently accompanied James Walker.

[252 Kan. 120] Alcorn receives social security disability benefits because of his dyslexia. He described himself as having "to take a slower pace than most to gather up on things" and having "a tendency to get very flustrated easily."

Alcorn was asked if D.G. was there, and when he replied that she was not, the group left. D.G. had moved in with Alcorn a month or so earlier to get away from some bothersome neighbors at her former residence. D.G. knew James Walker and Harris, and they had helped her carry her suitcases into Alcorn's when she moved in. D.G. generally slept on the couch in Alcorn's one-bedroom apartment. Occasionally they traded so that she slept in the bed and Alcorn slept on the couch.

Approximately 15 minutes after knocking at Alcorn's door, the group returned with some groceries. When Alcorn answered the door James Walker pushed past him and entered the apartment along with Harris, defendant, and several other people who were not known to Alcorn. Alcorn asked them to leave, and James Walker said that they would not leave and Alcorn could not make them leave.

Alcorn testified that he knew he could not force the intruders out of his apartment because he was outnumbered. He sat down and smoked his pipe; the intruders sat in the living room. At that time he overheard conversation among the others about, "A Crip's got to have this; a Crip's got to have that."

According to Alcorn, D.G. arrived a short time later, and she and James Walker went, at his request, into another room to talk. James Walker came back to the living room angry--screaming and raving at Alcorn. James Walker picked up Alcorn and threw him down.

While Alcorn was on the floor, defendant, in a very violent tone, ordered him to get up. When Alcorn stood up, defendant picked him up and threw him backwards so that Alcorn landed on his back.

Then Harris twice bit Alcorn's shoulder, put a trash bag over Alcorn's head, and tried to strangle him. Between bites, Harris declared that Alcorn did not taste good and went to the kitchen for garlic salt.

Alcorn heard racist comments being made, was spit on, and was called a "faggot." Harris threatened to sodomize him. Alcorn [252 Kan. 121] ran into the bathroom; no one followed

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him. He changed from his pajama bottoms into street clothes and tried to leave the apartment, but was prevented by the intruders from going out.

While the group was in the apartment, Alcorn was sent out to get a can of soda for James Walker from the vending machine, which was located about three feet from the front door. Someone stood in the doorway while Alcorn went out. He testified that he went back into the apartment rather than trying to run away because D.G. remained in the apartment with the intruders.

Two boys who were friends of Alcorn's brother came to the apartment while the intruders were there. They wanted to retrieve some maps Alcorn had borrowed. James Walker answered the door and stayed by the door while Alcorn returned the borrowed maps. The boys left. Alcorn did not try to tell them what was occurring in the apartment.

Alcorn testified that while he was being thrown around and threatened, D.G. was in the living room. James Walker made her sit on the couch, he bit her on the cheek...

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