State v. Albright, 94,244.

CourtUnited States State Supreme Court of Kansas
Citation153 P.3d 497
Docket NumberNo. 94,244.,94,244.
PartiesSTATE of Kansas, Appellee, v. William Dale ALBRIGHT, Appellant.
Decision Date16 March 2007
153 P.3d 497
STATE of Kansas, Appellee,
William Dale ALBRIGHT, Appellant.
No. 94,244.
Supreme Court of Kansas.
March 16, 2007.

[153 P.3d 500]

Christopher L. Hughes, of Roger L. Falk & Associates, P.A., of Wichita, argued the cause and was on the brief for appellant.

Lee J. Davidson, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

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

On this direct appeal from defendant William D. Albright's conviction of first-degree murder at retrial, defendant challenges the constitutionality of his hard 40 sentence, argues the district judge erred in overruling his motions for a mistrial, and alleges prosecutorial misconduct during closing argument denied him a fair trial.

Factual and Procedural Background

The facts underlying defendant's conviction are set out in detail in State v. Albright, 271 Kan. 546, 547-49, 24 P.3d 103 (2001), and are summarized as follows:

Defendant and David Barker, the victim, went to visit Jason Hoffine, who ran an auto repair shop. Defendant wanted two things-a new life in Mexico and money from Hoffine. Barker's wife and defendant's girlfriend decided to stay together in a motel because Barker's house had just been searched by police. The next day, the group met back at the motel. Barker and defendant talked about returning to Hoffine's to sell the Barkers' 1961 Chevrolet Impala for $2,000 cash. The two men went to Barker's house, picked up the car, returned to the motel about 7:30 p.m., and unloaded the car.

About 9:15 p.m., the two women left the motel. Barker's wife noticed that defendant had a 9-mm hand gun, which belonged to a friend, Stephen Jeffrey Phillips. Barker carried two guns and a pocketknife. Defendant and Barker left to talk to Hoffine about the Impala. The women returned to the motel about midnight; although the men were supposed to meet them, they did not return that night.

About 4 a.m., defendant unexpectedly arrived alone at Hoffine's house, driving the Impala. Defendant told Hoffine that he would take just about anything for the Impala, although days earlier, Barker had tried to convince Hoffine that the car had been appraised at $3,300. The car's ignition switch could be activated without a key. Defendant did not have the keys, but he had the unsigned title certificate. In Hoffine's presence, defendant forged Barker's signature on the title and sold the Impala to Hoffine, who then drove defendant back to the motel.

Defendant also fabricated a story that Hoffine believed he was supposed to repeat if questioned. According to the story, defendant and Barker had come to Hoffine's house about midnight, and Hoffine gave defendant some money. Barker left with a Mexican driving a blue Suburban.

In actuality, according to Hoffine's testimony, after defendant arrived at his house, defendant washed his hands and arms because he was concerned about "ballistics" testing. Then defendant told Hoffine that he had shot Barker in the back of the head while Barker stood behind the Impala about 26 miles outside of town. Defendant also said that he had left Barker's body lying beside the road and that the body should be found fairly soon.

Defendant and Phillips left for Oklahoma that evening. On the trip, defendant told Phillips that he had shot Barker in the head while Barker stood by the trunk of the Impala. Defendant also told Phillips that he had used Phillips' 9-mm Ruger and that he had dismantled the gun and disposed of it.

Phillips had two 9-mm Rugers that looked nearly identical. He testified that he had

153 P.3d 501

lent one of them to defendant. Defendant returned it 2 days before the murder, and Phillips had placed the gun in the kitchen drawer where defendant knew he usually kept it. When Phillips looked for the gun the next day, it was gone. The Ruger admitted into evidence at trial was not the one used to kill Barker; it was the other 9-mm Ruger owned by Phillips.

Phillips testified that defendant said he killed Barker because Barker was going to have Phillips and Phillips' mother, niece, and nephew killed. Defendant told him that Barker thought Phillips had called the police about raiding Barker's house. Phillips said he did not know about Barker's threats until defendant told him about them.

After a farmer found Barker's body lying in the middle of the road, an autopsy revealed that Barker died from a gunshot wound to the back of his head. Dr. Corrie May, a forensic pathologist, testified that, in her opinion, the death was a homicide. Forensic testing showed that tissue scraped from the rear quarter panel of the Impala was consistent with Barker's DNA.

Police found a .380 caliber bullet where the body was found. Phillips testified that he loaded both of his Rugers with 9-mm ammunition and did not have any .380 caliber ammunition in his home. During a search of defendant's home, the police found .380 caliber ammunition.

A special agent from the Kansas Bureau of Investigation (KBI) testified that the tire impressions found at the scene were consistent with the Impala. Bootprints at the scene matched those worn by defendant and Barker. Barker's knife, two guns, and keys were found undisturbed on his body.

During the retrial leading to this appeal, despite pretrial rulings in defendant's favor on motions in limine, the prosecutor mentioned the prior trial. In addition, State expert Steve Koch made reference during his testimony to defendant's fingerprints being in the KBI central repository. After each incident, defense counsel moved for mistrial. The district judge rejected each motion.

During closing argument, the prosecutor stated:

"Now, defense has suggested to you over the last several days, ladies and gentlemen, that—a couple of things actually. Number one, that defendant could not have done it because of timing. And I will talk a little bit about the medical evidence in this case.

"The other thing, the other part of the defense is, well, it's kind of what's known as the SODDI defense. Some other dude did it. We'll see. It's been a suggestion that, oh well, other people could have done this. Well, reminds me of my favorite cartoon, if any of you read the Sunday comics. But I love Family Circus, always have. And I always thought it was funny, the kid and the `not me' character. Whenever the kids' parents knew one of them had done something wrong and they're going `not me' and the little `not me' guy is running around. It's that phantom. It's that I don't have anything better to say, so it's not me.

. . . .

"Before I talk about Dr. Spitz—well, Dr. Spitz, you saw him on the stand. Credibility is for you to weigh, ladies and gentlemen. You saw him. He was evasive. He was antagonistic. It would have been nice to get an answer out of him, a straight answer. I think I only got maybe two or three.

"But I can't understand, if he is so confident in his conclusions, if he is such the expert, why be evasive? Why be antagonistic? Dr. May certainly wasn't. She was very straightforward. She was very calm. She was very cooperative. Wasn't she? Well, why is Dr. Spitz evasive? Because he is acting more as an advocate than an independent expert."

Upon defendant's conviction, the district judge found that defendant committed the crime for the purpose of receiving money or any other thing of monetary value; thus the judge imposed a hard 40 sentence.

Constitutionality of Kansas' Hard 40 Sentencing Scheme

Premeditated first-degree murder, committed in violation of K.S.A. 21-3401(a), carries

153 P.3d 502

a stated penalty of life imprisonment and requires that a defendant serve 25 years before he or she becomes eligible for parole. K.S.A.1998 Supp. 22-3717(b)(1). Pursuant to K.S.A. 21-4635, the State may seek to increase the time before parole eligibility to 40 years, K.S.A. 21-4638, and the sentencing judge may impose the hard 40 sentence if he or she finds that one or more aggravating circumstances enumerated in K.S.A. 21-4636 exist and are not outweighed by mitigating circumstances. K.S.A. 21-4635(d); K.S.A. 21-4637. The decision on whether to impose a hard 40 sentence is allocated to the sentencing judge. K.S.A. 21-4635(a).

Defendant argues that the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, §§ 5, 10 require "that any fact which may increase the maximum penalty for a crime must be proven to a jury beyond a reasonable doubt," and that the hard 40 sentencing scheme violates these constitutional requirements.

This issue has no merit.

"Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant's maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). The hard 40 sentence limits the lower end of the sentence. [A] hard 40 sentence violates neither the Due Process Clause of the United States Constitution, nor [the] right to trial by jury under the 6th Amendment to the United States Constitution or § 5 of the Kansas Constitution Bill of Rights." State v. Conley, 270 Kan. 18, Syl. ¶ 3, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932, 121 S.Ct. 1383, 149 L.Ed.2d 308 (2001).

We have previously upheld the hard 40 sentencing scheme and Conley in light of each of the distinguishable United States Supreme Court cases, Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), Apprendi v. New Jersey, 530 U.S. 466, 489-94, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), urged upon us by defendant. See, e.g., State v. Engelhardt, 280 Kan. 113, 142-143, 119 P.3d 1148 (2005); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Martis, 277 Kan. 267, 297, 83 P.3d 1216 (2004); State v. Boorigie, 273 Kan. 18, 41-42, 41 P.3d 764 (2002); see also State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d 1249 (2004); State v. Hebert, 277...

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