State v. Albright

• Decision Date: 01 June 2001
• Docket Number: No. 84,029.,84,029.
• Citation: 271 Kan. 546,24 P.3d 103
• Parties: STATE OF KANSAS, Appellee, v. WILLIAM D. ALBRIGHT, Appellant.
• Court: Kansas Supreme Court

271 Kan. 546

24 P.3d 103

STATE OF KANSAS, Appellee, v. WILLIAM D. ALBRIGHT, Appellant.

No. 84,029.

Supreme Court of Kansas.

Opinion filed June 1, 2001.

Michael S. Holland, of Holland and Holland, of Russell, argued the cause and was on the brief for appellant.

Athena E. Andaya, assistant attorney general argued the cause, and Carla J. Stovall, attorney general, was with her on the brief for appellee.

The opinion of the court was delivered by

SIX, J.:

William Albright appeals both his conviction for first-degree premeditated murder, K.S.A. 21-3401(a), and the imposition of a hard 40 sentence under K.S.A. 21-4638.

Our jurisdiction is under K.S.A. 22-3601(b)(1) (a conviction resulting in a hard 40 sentence is reviewed by this court).

The trial phase issues raised by Albright are whether the district court erred: (1) in violating his right to confrontation by disallowing a witness to be cross-examined about a grant of immunity; (2) by refusing to instruct the jury on the lesser included offense of second-degree murder; (3) in admitting expert testimony; and (4) by denying his motion for a mistrial. Albright also asserts that his conviction was not supported by sufficient evidence.

In addition to the trial phase issues, Albright asserts the district court erred by imposing a hard 40 sentence. Finding no error, we affirm.

FACTS

On Saturday, November 14, 1998, Albright and David Barker, the victim, went to visit Jason Hoffine in Cheney, Kansas. Albright wanted two things—a new life in Mexico and money from Hoffine. Barker's wife Carolyn and Albright's girlfriend Susan Marie Cantrell were at Teddy Bares, a local club. Carolyn left to go home to pick up a "quarter" of cocaine for Cantrell. Carolyn's stepson told her that the police had just searched Barker's house for a meth lab. Carolyn told Cantrell about the raid. Cantrell informed Albright and Barker. Albright, Cantrell, Barker, and Carolyn decided to stay together in a room at the Red Carpet Inn in Wichita that night. The women went to sleep. The men stayed up all night talking and trying to figure out who had called the police about a meth lab.

The next day, the four met around 4 or 5 p.m. at the motel. Barker and Albright talked about returning to Hoffine's to sell Barker's 1961 Chevrolet Impala for $2,000 cash. The two men went to Barker's house, picked up the car, returned to the motel between 7:30 and 8 p.m., and unloaded the car. Originally, Barker wanted to give the car to his granddaughter, but Albright convinced him to sell it.

Around 9:15 p.m., the two women left the motel to go to the Cowboy Club. Carolyn noticed that Albright had a 9-mm hand gun, which belonged to a friend, Stephen Jeffrey Phillips. Barker carried two guns and a pocket knife. Albright and Barker left to talk to Hoffine about the 1961 Impala. The women returned to the motel around midnight or 1 a.m. on November 16, 1998. Albright and Barker were supposed to meet them, but the men did not return that night.

Around 4 a.m. the morning of November 16, Albright unexpectedly arrived alone at Hoffine's house driving Barker's Impala. Albright 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. Albright did not have the keys, but he had the unsigned title certificate. In Hoffine's presence, Albright forged David Barker's signature in signing over the title.

Albright fabricated a story that Hoffine believed he was supposed to repeat if questioned. The story was that around 11:30 p.m. or 12 a.m., Barker and Albright came to Hoffine's house, Hoffine gave Albright some money, but Barker left with a Mexican driving a blue Suburban. Hoffine testified that Albright called Cantrell from his house and told her the same story. After buying the Impala, Hoffine drove Albright back to the motel in Wichita.

The actual events did not coincide with Albright's fabricated story. Hoffine testified that after Albright arrived at his house, Albright washed his hands and arms because he was concerned about "ballistics" testing. Then, Albright told Hoffine that he shot Barker in the back of the head while Barker stood behind the Impala. Albright said he shot Barker in a town about 26 miles from Cheney. He also told Hoffine that he left Barker's body lying beside the road and that the body should be found fairly soon.

According to Phillips' testimony, that evening Albright and Phillips left for Oklahoma to visit a man that Albright called "Dad." While on the trip to Oklahoma, Albright told Phillips that he shot Barker in the head while Barker stood by the trunk of the Impala. He also told Phillips that he used Phillips' 9-mm Ruger.

Phillips testified that he had two 9-mm Rugers. The only differences in the two guns were the serial numbers and the engravings on one of the guns. Phillips said he lent Albright one of his 9-mm Rugers, but Albright returned it on Saturday, November 14. Phillips placed the gun in the kitchen drawer, and Albright knew where Phillips usually kept the gun. When Phillips looked for the gun on Sunday, November 15, it was gone. Albright told Phillips that after he shot Barker, he took the 9-mm Ruger apart and got rid of it. The Ruger admitted into evidence at trial was not the one used to kill Barker, but was the other 9-mm Ruger owned by Phillips.

Phillips testified that Albright said he killed Barker because Barker was going to have Phillips and Phillips' mom, niece, and nephew killed. Albright told him that Barker thought Phillips had called the police about raiding Barker's house for drugs. Phillips said he did not know about Barker's threats until Albright told him on the trip to Oklahoma.

At about 8 a.m., Monday, November 16, a Kingman County 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 Barker's body was found. Phillips testified that he loaded both of his Rugers with 9mm ammunition. He did not have any .380 caliber ammunition in his home. During a search of Albright's home, the police found.380 caliber ammunition. A forensic scientist testified that using.380 caliber ammunition basically turned the semiautomatic Ruger into a revolver capable of firing only one shot.

A special agent from the Kansas Bureau of Investigation (KBI) testified that the tire impressions found at the scene were consistent with the Impala. Barker's boots had a metal horseshoe or tap affixed to the heels. According to the KBI agent, the person who exited the driver's side of the Impala, while it was parked at the scene, wore boots consistent with the boots worn by Barker. Other prints were consistent with the boots worn by Albright on the day Barker was killed. Barker's knife, two guns, and keys were found undisturbed on his body.

Albright was found guilty and convicted as charged by a jury. At a hearing on post-trial motions and sentencing, Albright's motion for directed verdict and motion for a new trial were denied. His motion for a mistrial also was denied. The district court then proceeded to sentencing. Albright was sentenced to a life sentence without the possibility of parole until he served 40 years of his sentence. The district court based Albright's sentence upon the aggravating factor that the crime was committed for the purpose of receiving money or any other thing of monetary value. No mitigating factors were presented by Albright.

DISCUSSION

First, Albright contends that the district court erred by limiting the scope of the cross-examination of Jason Hoffine. The Confrontation Clause of the Sixth Amendment to the United States Constitution affords an accused the right to cross-examination. The United States Supreme Court has "recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed.2d 347, 94 S. Ct. 1105 (1974). The district court's decision here concerning the scope of cross-examination is reviewed under the abuse of discretion standard. See State v. Lyons, 266 Kan. 591, 601-02, 973 P.2d 794 (1999).

Hoffine testified that: (1) Albright said he shot Barker in the back of the head, (2) Hoffine purchased the Impala for $200, and (3) Albright forged Barker's signature on the title certificate in his presence. At the preliminary hearing, Hoffine had testified that he paid $500 for the Impala. On cross-examination at trial, defense counsel asked Hoffine about his inconsistent testimony regarding whether he purchased the car for $200 or $500:

"Q: [Defense counsel] You had a couple hundred on you and about three hundred more in your room, didn't you?

"A: That is right.

"Q: So it wouldn't be $200?

"A: $200 for the car, yes, sir.

"A: Well, what's the other $300 for, drugs?

"A: I wish not to answer."

The district court clarified that Hoffine had invoked his Fifth Amendment right against self-incrimination. The State then granted Hoffine immunity from prosecution for the sale of any controlled substances that took place with Albright at Hoffine's home on November 16, 1998. The court ruled that although defense counsel could ask Hoffine about the "$500, $200, $300 question," counsel could not ask whether Hoffine was testifying because of a grant of immunity. Then, the cross-examination continued:

"Q: ... I believe you testified that you paid [$]500 at the preliminary hearing, but you're telling us today that you paid [$]200 for the car?

"A: Yes, sir.

"Q: Plus another $300, for a total of $500?

"A: At

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