State v. Ackward, No. 91,755.

• Decision Date: 10 February 2006
• Docket Number: No. 91,755.
• Citation: 128 P.3d 382
• Parties: STATE of Kansas, Appellee, v. Word ACKWARD, Jr., Appellant.
• Court: Kansas Supreme Court

128 P.3d 382

STATE of Kansas, Appellee, v. Word ACKWARD, Jr., Appellant.

No. 91,755.

Supreme Court of Kansas.

February 10, 2006.

COPYRIGHT MATERIAL OMITTED

SYLLABUS BY THE COURT

1. In reviewing a district court's decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.

2. In determining whether a confession is voluntary, a court considers the totality of the circumstances. Factors bearing on the voluntariness of an accused's statement include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused's age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.

3. Under the inevitable discovery doctrine, the prosecution may use evidence it obtained illegally but would have obtained legally in any event. The rationale is that punishment for an act that does no harm is not required in order to deter harmful acts. Kansas courts apply the inevitable discovery exception to the exclusionary rule.

4. The inevitable discovery doctrine requires that the inevitable discovery be lawful. The inevitable discovery of the challenged evidence by unlawful means does not render it admissible.

5. Our legislature has included the possession of marijuana as an inherently dangerous felony and although not all items found on the inherently dangerous felony list are included as forcible felonies, we hold that, under the specific facts of this case, attempted possession of marijuana is a forcible felony as contemplated by K.S.A.2004 Supp. 21-3110(8).

6. Under the facts of this case, the district court did not err in instructing the jury on the felony-murder charge that a person is not justified in using force in defense of oneself while attempting to possess marijuana with intent to sell.

7. The trial court has broad discretion regarding the admission of photographs, including discretion to exclude photographs if their probative value is substantially outweighed by the risk of unfair prejudice.

8. Because only the district court is in a position to view the demeanor of prospective jurors during voir dire, a district court's ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.

9. Although a defendant may be forced to use a peremptory strike to get rid of a prospective juror, the mere loss of that peremptory strike does not constitute a violation of the constitutional right to an impartial jury.

10. Peremptory challenges are means to achieve the end of an impartial jury, and so long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated.

11. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done.

Thomas W. Bartee, chief defender, NE Conflict Office, argued the cause, and Cory D. Riddle, deputy appellate defender, was on the brief for appellant.

Amy M. Memmer, assistant district attorney, argued the cause, and Robert D. Hecht, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by ALLEGRUCCI, J.:

Word Ackward, Jr. was convicted by a jury of one count of felony murder and one count of attempted possession of marijuana with intent to sell or distribute. He was sentenced to life imprisonment for felony murder and 14 months on the drug charge to run concurrently with the life sentence. He appeals his convictions.

Ackward raises the following issues, which we list in the order we will consider them.

1. WAS THERE SUBSTANTIAL COMPETENT EVIDENCE TO SUPPORT THE DISTRICT COURT'S DETERMINATION THAT ACKWARD'S STATEMENT TO POLICE WAS VOLUNTARY?

2. DID THE DISTRICT COURT ERR IN DENYING ACKWARD'S MOTION TO SUPPRESS THE GUN?

3. DID THE JURY INSTRUCTION ON SELF-DEFENSE PROPERLY AND FAIRLY STATE THE LAW AS APPLIED TO THE FACTS OF THE CASE?

4. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN ADMITTING A PHOTOGRAPH OF THE VICTIM?

5. DID THE DISTRICT COURT ABUSE ITS DISCRETION IN REFUSING TO STRIKE TWO PROSPECTIVE JURORS FOR CAUSE?

6. DID CUMULATIVE ERRORS DEPRIVE ACKWARD OF A FAIR TRIAL?

Joshua Buckman died on February 12, 2003, as the result of a gunshot that entered his lower left back and damaged his liver, kidney, and right lung and caused extensive hemorrhaging before exiting from the right side of his chest. A second gunshot entered the outer aspect of his left upper arm and exited higher up on the inner part of the arm. Buckman bled to death, which gave him time to move some distance from where he was shot before losing consciousness.

Earlier that evening, Buckman, who lived in Ozawkie, stopped by the house of his friend, Nathan Wells, who lived in Meriden. They were bored and decided to drive Buckman's car to Topeka to look for something to do. At Buckman's request, Wells loaned him $100. Buckman drove. Wells uses a wheelchair and is able to drive only with hand controls.

As he was driving south on Topeka Boulevard, Buckman used Wells' cellular telephone to call friends and find something to do. At the Total station at 29th and Indiana, Buckman got some gasoline, checked the oil, and talked with someone interested in buying his car. Wells waited in Buckman's car. Buckman continued to make calls on Wells' telephone after they left the station.

When they had driven almost to Topeka Boulevard, Buckman turned around and headed back to the Total station. He told Wells he was going to meet his friends there. Buckman parked on the east side of the building. Wells' telephone rang. He did not recognize the number, but Buckman did, and he answered. After hanging up, Buckman told Wells that his friends were going to be pulling into the station soon and that he and Wells would follow them around to the apartments behind there.

Two males, who Wells did not recognize, drove into the station from south on Indiana in a gold Nissan Maxima with a temporary tag. Buckman said they were his friends and followed them. Buckman referred to one of the men as "Word."

When they got to the parking lot of a nearby apartment complex, the driver of the Nissan backed into a stall. Buckman pulled in next to the Nissan so that the drivers' sides of the two cars were closest together. Wells assumed they were going to be hanging out with some of Buckman's friends at the apartment complex, and he asked Buckman to make sure the wheelchair could get in. Buckman and the defendant, who was the Nissan driver, got out of their cars. Buckman and Ackward walked toward the apartments, and Wells lost sight of them.

Buckman had left his window down. The passenger in the Nissan rolled down its driver's side window. Wells did not know either the driver or the passenger of the Nissan. After a few minutes, Wells heard two gunshots, one right after the other. They sounded fairly close.

The Nissan passenger was Mario Oneal. Oneal slid over to the driver's seat and pointed a gun out the window at Wells. He told Wells to put his hands up and asked if he had any money. As Wells was saying that he did not have any money, the defendant came running toward the car with a gun in his hand. The defendant yelled, "I got money, I got money." Oneal, who had slid into the driver's seat, began pulling out of the stall as defendant jumped in the car. With squealing tires, they drove out of the apartment parking lot and north on Kentucky to 29th, where Wells lost sight of them. In the car, Ackward told Oneal that he and Buckman fought and Ackward shot Buckman twice.

Wells yelled at a woman who came out of the apartments, asking if she would look for his friend. Then he called 911. When police arrived, Wells told them what had happened and gave them the last telephone number from which Buckman had received a call.

Police found Buckman lying on the second floor landing. He had no weapons or money on or around him.

Police found a spent round on the second floor landing. In the third floor hallway, police found a blood smear on the baseboard, an undamaged bullet, an indentation in the wall, and blood on the fire door. The fire alarm on the third floor had been pulled. The bullets police found were 9 millimeter rounds. Two 9 millimeter shell casings were found outside the apartment building.

On the third floor, officers knocked on apartment doors to check on occupants. The manager provided a master key that provided access to apartments where no one responded. When there was no response at apartment 305, officers entered to look for other victims. On a table in the living room they saw a brick of green vegetation, a small scale, and more green vegetation in a bowl. It appeared to be marijuana. Police found no one in apartment 305. It was secured as a possible crime scene.

When Venus Triplett later arrived, it was determined that he lived in the apartment. Triplett testified that he did not know Ackward personally but that he knew of him. Triplett denied speaking to Ackward at any time on February 12, 2003. Triplett also denied knowing the name, Joshua Buckman.

We first consider whether Ackward's statement to police was voluntary.

The telephone number Wells gave police was traced to Word Ackward, Sr., and officers went to his house at approximately 3 a.m. on February 13 to question him. Ackward, Sr., told police that his son was carrying the phone. The...