Harris v. State, 092421 KSCA, 122, 314

CourtCourt of Appeals of Kansas
JudgeBefore GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.
Writing for the CourtPER CURIAM:
PartiesKatron Harris, Appellant, v. State of Kansas, Appellee.
Docket Number122,314

Katron Harris, Appellant,

v.

State of Kansas, Appellee.

No. 122, 314

Court of Appeals of Kansas

September 24, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE and JENNIFER L. MYERS, judges.

Bach T. Hang, of The Douglas Firm LLC, of Wichita, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.

MEMORANDUM OPINION

PER CURIAM:

Katron Harris appeals the trial court's summary denial of his second K.S.A. 60-1507 motion and its denial of his motion to alter or amend that judgment. Harris claims that his trial counsel was ineffective because his counsel did not allow him to testify at his trial for felony murder and aggravated robbery. Because Harris' 60-1507 motion is successive, we affirm the trial court's denial of both of his motions.

FACTS

Harris is serving life in prison for felony murder, in violation of K.S.A. 21-3401(b), with a consecutive 72 months' imprisonment for aggravated robbery, in violation of K.S.A. 21-3427. Our Supreme Court laid out the facts underlying Harris' convictions in State v. Harris, 297 Kan. 1076, 1078-81, 306 P.3d 282 (2013): "On October 6, 2008, police officers responded to a 911 call at a home in Kansas City, Kansas. The officers found the garage door half open, the door into the house from the garage open, and [Phillip] Martin lying dead on his stomach in a small kitchen. Shell casings from two different caliber firearms surrounded Martin's body. Martin had a loaded .22 caliber semi-automatic handgun, with a bullet chambered, and $600 cash in his pants pockets. It appeared he had been cooking crack cocaine (powder cocaine mixed with baking soda and water) in the kitchen at the time he died. The kitchen faucet was running when police arrived.

"Over the course of several days detectives investigating the crime learned Harris was involved and detained him. In his first police interview, Harris said he did not know Martin, had nothing to do with the crime, and was staying at a hotel in Johnson County with his girlfriend and his mother when the killing occurred. The detectives ended the interview, booked Harris, and placed him on a 48-hour hold. The next evening detectives interviewed Harris again. This time, Harris changed his story.

"He told detectives he met Kelvin Gibson, Jr., the night of the killing. He and Gibson took a walk and met Demarcus Blakeney. Harris said the three men walked to Martin's house and Gibson went inside. Gibson came out and said he was going to rob Martin. Harris said he did not believe Gibson and did not want to rob anyone, so he stood across the street. Gibson instructed Harris to let him and Blakeney know if Harris heard anything. Gibson and Blakeney went into the house.

"Harris said he heard approximately 12 gunshots in quick succession after about 5 minutes. He said Blakeney ran out, handed Harris a gun, and told Harris he had to go into the house and 'put in [his] work' so that he would not 'snitch' on them. Harris said he entered the house and saw Martin lying motionless on the floor. Gibson then told Harris to shoot Martin, which Harris did one time. Harris said Gibson went through the house because he knew where Martin's things were, and got a box of money. The three then ran. Harris said Gibson gave him $100.

"The State charged Harris with felony murder with aggravated robbery as the underlying felony, and with aggravated robbery by threat of bodily harm.

"At trial, the State established that Martin sold drugs out of his home. When customers came to buy drugs, they entered through the garage and often were met by a doorman. If there was no doorman, customers knocked on the door. Martin put his proceeds in two shoeboxes. The State presented testimony that 2 days before the murder one shoebox contained $1, 900 and the other one contained $3, 200. At the crime scene, police found only one shoebox with approximately $2, 000. The State also established Gibson was often at Martin's home and ran errands for Martin in exchange for money, gas, and marijuana.

"Christina Woody testified she bought marijuana from Martin at 8:45 p.m. on the night of Martin's death. When she entered Martin's house, a man she did not know but later identified as Gibson was sitting on the living room couch. Martin was cooking crack cocaine in his kitchen. After purchasing the marijuana, Woody left.

"Brian Houston, Martin's friend, also testified. Houston spent time with Martin nearly every day. He said he called Martin a little after 9 p.m. on the night of the killing, but the call went straight to Martin's voicemail. Houston said he went to Martin's house around 9:30 p.m., exited his car, and saw Gibson wandering around outside. Houston said it was strange that Gibson's car was not at Martin's house. Houston walked up and Gibson gestured for him to come toward the garage. As Houston ducked under the garage door, Gibson stood between Houston and the door to the house and told Houston, '[A]in't nothing going on right now.' Houston testified Gibson usually said something like this when Martin was conducting drug business. Houston also noticed Gibson was very fidgety and that Martin's house was unusually quiet because normally Martin played videos and talked on the phone. Houston left without going inside. Houston continued to call Martin until 11 p.m. but never got an answer.

"Martin's sister, Angela Martin, testified she spoke with Martin for 3 to 4 minutes by phone at 10 p.m. She heard several male voices in the house, but nothing struck her as out of the ordinary during the conversation.

"Martin's neighbor from down the street testified she heard three gunshots the night Martin was murdered. She said it sounded like the shots came from a vacant house next door. She looked out the window. About 4 or 5 minutes after the shots she saw three black men running down the street. Each wore a black hooded sweatshirt and black pants.

"Daneasha Connor testified she found Martin dead at approximately 9 p.m. and called police. Conner concluded Martin knew his killer because he did not usually allow others in the house while cooking drugs and would not turn his back to someone he did not know. Conner also testified she took a gun from Martin's back pocket. She believed Martin trusted the person in his home because he did not use the guns he carried.

"An investigating detective testified there was no forced entry into the house and that Martin was shot multiple times. The detective thought Martin was comfortable with the perpetrator(s) being in his home. He also testified Gibson provided Harris' and Blakeney's names to police.

"Dr. Erik Mitchell performed Martin's autopsy. He concluded Martin died from gunshot wounds primarily due to blood loss. Mitchell testified Martin had 16 gunshot wounds from at least two weapons, although he could not ascertain the order in which the wounds were inflicted. He concluded none were immediately fatal. He said Martin had a gunshot wound to his foot, an entry wound on the back side of his left leg indicating the shooter was behind him, an entry wound on the back of his right thigh also indicating the shooter was behind him, an entry wound to his left hip with a direction of travel indicating the shooter was behind him, an entry wound on the back of his left forearm, nine entry wounds to his back, and two entry wounds to his front torso.

"The State argued Harris either actively participated in the crimes or aided and abetted Gibson and Blakeney in committing them. The jury found Harris guilty of felony murder and aggravated robbery. The district court imposed consecutive terms of life and 72 months' imprisonment, with lifetime postrelease supervision. Harris timely appealed."

Harris did not testify at trial or call any witnesses on his behalf. Harris did not object to the proposed jury instructions.

On direct appeal, Harris argued: (1) The State presented insufficient evidence to prove that the aggravated robbery was done by threat of bodily harm; (2) the trial court abused its discretion when it denied Harris' request for a mistrial; and (3) the phrase "in the commission of, attempt to commit, or flight from an inherently dangerous felony" created alternative means of committing the crime and the State failed to provide sufficient evidence to support each means. Our Supreme Court affirmed Harris' convictions. 297 Kan. at 1091. The mandate issued on September 9, 2013.

In 2014, Harris filed a pro se K.S.A. 60-1507 motion. He argued that his trial counsel was ineffective because she: (1) failed to object that his second statement to police resulted from a violation of Harris' Fifth Amendment rights under the United States Constitution and was therefore inadmissible; (2) failed to challenge Harris' first statement to police as an involuntary confession and inadmissible; and (3) called no witnesses on Harris' behalf. The trial court summarily denied Harris' 60-1507 motion, and this court affirmed. Harris v. State, No. 114, 159, 2016 WL 2775580 (Kan. App. 2016) (unpublished opinion).

This appeal arises from Harris' second pro se 60-1507 motion. In his pro se motion, Harris alleged that (1) there was insufficient evidence to support his convictions, (2) the trial court empaneled disqualified jurors, (3) the trial court improperly handled a jury question, (4) the prosecution erred, (5) his statements to police were inadmissible because police lacked probable cause to arrest him, (6) the admission of his statements to police violated his Fifth and Sixth Amendment rights, (7) the trial court erred in...

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