State v. Anderson
| Decision Date | 05 December 2008 |
| Docket Number | No. 97,420.,97,420. |
| Citation | 287 Kan. 325,197 P.3d 409 |
| Parties | STATE of Kansas, Appellee, v. Walter L. ANDERSON, Appellant. |
| Court | Kansas Supreme Court |
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for appellant.
Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Stephen N. Six, attorney general, were with her on the brief for appellee.
Walter L. Anderson directly appeals his jury convictions of felony murder and aggravated robbery. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in refusing Anderson's request to instruct on compulsion? No.
2. Did the trial court commit reversible error in allowing witnesses to testify about what the decedent had expressed at the crime scene? No.
3. Did the trial court commit reversible error in its instruction on presumption of innocence? No.
Accordingly, we affirm the district court and convictions.
Gustavo Ramirez-Mendez (Gus) worked as a maintenance man at the Silver City Apartment Complex in Kansas City, Kansas. Late the night of January 14, 2005, Gus was robbed and severely beaten outside his apartment. He died 6 days later as a result of his head injuries.
Walter L. Anderson and Timothy Bryant were arrested and charged with aggravated robbery and felony murder in connection with the incident. The cases were separated for trial, and Bryant's convictions were affirmed by this court in State v. Bryant, 285 Kan. 970, 179 P.3d 1122 (2008).
Gus was friends with several residents of the apartment complex. He spoke very little English, but his friends were able to understand him. Rosie Bryant Allen (Rosie), codefendant Bryant's mother, was one of those friends.
At trial, Rosie testified that on the night of January 14, Anderson asked her to take him to a check-cashing store to get a $45 or $50 check cashed. They stopped at the liquor store on the way home, and after they returned, several people-including Bryant and Anderson-gathered at Rosie's house to drink and socialize.
According to Rosie, Gus arrived around 8 or 8:15 p.m. He asked Rosie's grandson, Kevin, to take him to get his $118 paycheck cashed. Kevin and Gus then returned to Rosie's and started drinking beer and whiskey with the others. A few hours later, Rosie told everyone they had to leave because she was tired.
Otilia Dominguez (Otilia), who was visiting family at the apartment complex, testified that around 11 or 11:30 p.m. she heard a "real hard" knocking on the front door. When she looked out the peephole, she saw an arm break out the porch light.
According to Otilia, she woke up her son-in-law, Miguel Garcia Rodriguez (Miguel), and told him they needed to call 911. At trial, a recording of her conversation with the 911 operator was played, disclosing that she said "two black guys were beating up on another guy." At trial, however, when questioned about this statement, she denied that she had seen the three men.
Otilia testified that when the police arrived, she and Miguel went outside and saw someone lying on the sidewalk. Miguel recognized the person as his friend, Gus. Gus' coat, shoes, and socks had been torn off him. His billfold had been rummaged through and its contents strewn over the grass.
At trial, Miguel testified that he asked Gus what happened. Gus only said "help me." After being prompted by the police, Miguel asked Gus who did this to him. Gus "couldn't say anything" but lifted up two fingers.
Officer Mark Bundy, one of the first officers on the scene, testified that Gus was in and out of consciousness. He also testified that according to Miguel, the translator, "the victim had been walking through the complex and that he was attacked by two black males who had beat him up and taken his billfold." Officer Amy Allen-Sillings corroborated that Miguel interpreted for Gus, who said that two males had hit him really hard and taken his money. Similarly, Officer Jason Allen testified that his report reflected that based on Gus' statements, the suspects were described as two black males.
Anderson gave a videotaped statement to the police in which he admitted that he participated in the robbery. In the statement, Anderson explained what happened as he, Gus, and Bryant walked through the apartment grounds. His trial testimony was essentially the same, except there he stated, for the first time, that he went through Gus' pockets only because he felt threatened by Bryant. The following facts are taken from his statement played to the jury, his testimony, or both.
According to Anderson, he had known Bryant for 3 years, and he first met Gus the previous fall at Rosie's house. Anderson worked at Deffenbaugh and was paid between $360 and $420 every Friday. However, on the day of the incident, he did not pick up his paycheck because he had no ride and was unable to go to work. He did pick up a $65 money order from Rosie that night as repayment for money her husband had borrowed from Anderson.
Rosie took Anderson to the check cashing store and they stopped at a liquor store on the way back. People gathered at her house to drink and party and several of them, including himself, Bryant, and Gus, were smoking marijuana.
According to Anderson, Rosie finally told everyone to leave because she was tired and she was sick of Bryant asking her for money. Gus left first, then Anderson, and Bryant left shortly thereafter. As they walked toward the entrance to the apartment complex, Gus stopped and turned around, and Bryant and Anderson caught up with him. As they walked, Gus said that he wanted to go to a bar, but Anderson said that he wanted to go home.
As they walked through the complex, Bryant asked Gus for money, but Gus replied he did not have any. Bryant told Gus he knew that Gus had money because Gus had just cashed his check. Gus responded, "[N]o, go to the bar."
According to Anderson, when they got to Gus' apartment, Gus threw his duffel bag inside and shut the door. At that point, Anderson heard Gus and Bryant exchanging words. Gus walked away as if he was going to the other side of the building. Bryant then told Anderson to ask Gus for money. Anderson said "no" and indicated that he was going home.
Bryant again told Anderson to ask Gus for money, so Anderson walked through the entryway where Gus was standing and asked him for money. Anderson explained that because he previously had borrowed money from Gus, he figured he could borrow money again and later pay Gus back. He thought he then would simply give the borrowed money to Bryant, so Bryant would leave Gus alone. Gus denied Anderson's request, saying he wanted to go to the bar.
At that point, Anderson heard a light break. Then Bryant came past him down the steps and hit Gus in the head with a gin bottle.
After this blow, Anderson asked Bryant what he was doing. Bryant then told Anderson to help him get Gus' money. Anderson went through Gus' pockets but did not find any money. He gave Bryant Gus' wallet. Bryant told him to keep looking, so he went through Gus' shoes and socks but still did not find anything.
Anderson asked Gus if he was all right because Gus was moaning and groaning. Gus "waived his hands like he was alright, go." Anderson jumped over the fence, followed by Bryant, and they both started running.
They ran to an apartment building behind the complex where they bought and smoked crack cocaine. Anderson paid with the money from the cashed money order. He then went to Rosie's house, but no one answered the door. He eventually walked 1 1/2 to 2 hours to his sister's apartment.
A jury convicted Anderson of felony murder and aggravated robbery, and he was sentenced to a life term without the possibility of parole for 20 years (hard 20) for the murder plus 102 months in prison for the aggravated robbery, to be served consecutively.
Additional facts will be provided as necessary to the analysis.
Anderson argues that the trial court erred when it refused to give a jury instruction on compulsion in violation of his absolute right to present his sole theory of defense. The State counters that the court was not required to give the instruction because insufficient evidence was presented to support it.
The parties disagree somewhat on the appropriate standard of our review. Citing State v. Bell, 276 Kan. 785, 80 P.3d 367 (2003), Anderson argues he is entitled to an instruction on his theory of the case even where the evidence is slight and supported only by his own testimony. The State responds that the trial court has a duty to instruct the jury on the law applicable to the parties' theories, so far as those theories "are supported by competent evidence," citing State v. Farmer, 212 Kan. 163, 510 P.2d 180 (1973). The State also contends that if there is "insufficient evidence supporting the defense or where it would be misleading to the jury, the court is not required to give the instruction," citing State v. Josenberger, 17 Kan.App.2d 167, 836 P.2d 11 (1992). (Emphasis added.)
As these authorities suggest, some confusion has arisen over the years concerning our precise standard of review. This court has sometimes used the "competent evidence" standard articulated in Farmer and has sometimes slightly varied it. See, e.g., State v. Myers, 233 Kan. 611, 616, 664 P.2d 834 (1983) (). Also, the "misleading to the jury" standard from the 16-year-old Court of Appeals' decision in Josenberger has been used only in that case.
Additionally, in Bell and many cases since then we have failed to include an integral part of...
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