State v. Angelo, No. 96,175.

• Decision Date: 05 December 2008
• Docket Number: No. 96,175.
• Citation: 287 Kan. 262,197 P.3d 337
• Parties: STATE of Kansas, Appellee, v. Patrick ANGELO, Appellant.
• Court: Kansas Supreme Court

197 P.3d 337

287 Kan. 262

STATE of Kansas, Appellee, v. Patrick ANGELO, Appellant.

No. 96,175.

Supreme Court of Kansas.

December 5, 2008.

Michael J. Bartee, of Michael J. Bartee, P.A., Olathe, argued the cause and was on the brief for appellant.

John J. Bryant, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.

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

After a jury trial, Patrick Angelo, Jr., was convicted of two counts of first-degree murder and sentenced to consecutive hard 25 terms. He directly appeals his convictions. Our jurisdiction is under K.S.A. 22-3601(b)(1), convictions of an off-grid crime.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Was Angelo's right to a speedy trial violated? No.

2. Did the State's use of peremptory challenges violate the Equal Protection Clause and Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)? No.

3. Did the trial court commit reversible error in failing to instruct on the lesser included offense of second-degree murder? No.

4. Did the trial court commit reversible error in finding that Angelo introduced evidence of his good character? No.

5. Did the trial court err in failing to grant a mistrial? No.

6. Did the trial court commit reversible error in allowing the State to play the recorded statement of a witness after she had been excused? No.

7. Did cumulative error deprive Angelo of his right to a fair trial? No.

Accordingly, we affirm Angelo's convictions.

FACTS

Michael Hampton owned a house on Haskell Avenue in Kansas City, Kansas. Hampton made an agreement with the defendant's son, Patrick Angelo, III (Little Pat), and friends that they could rent the house for several months to help remove it from foreclosure. Little Pat and friends planned to gamble and have "some girls" there. Hampton later learned that some of these people, a group he referred to as the "Thundercats," were buying and selling drugs out of the house.

Hampton had moved out but was again living in the Haskell house in February 2004. Little Pat, Curtis Brooks, Kevin Brown (Geechie), and a drug-addict friend of Hampton, a woman named Jamie Wilson, also stayed there.

On February 18, 2004, police officers raided the house. They seized drugs, guns, and money and arrested several people, including Hampton.

Two nights later, police were called to the house on the report of a double homicide. They found Geechie had been shot twice on the left side of his head, with one hole a "contact gunshot wound," and Wilson had a single contact gunshot wound to the back of her head.

Two days later the defendant, Patrick Angelo, Jr., also known as "Big Pat," was charged by information. Because he was discovered to be in Missouri custody, he was not brought back to Kansas until June 2004.

Hampton testified at the 2005 murder trial that Angelo and Geechie "got along with each other" and had even talked about getting a place together. But, some time before the murders, Angelo told Hampton that he was missing a ring and that Geechie was the "last person that he gave the ring to." According to Hampton, Angelo was "pretty concerned about the ring. He didn't—he didn't show any intent or that he was angry or that he was sad about it, but he was like he wanted the ring."

According to Hampton, a few weeks before the murders he had been in an altercation with Angelo because of a misunderstanding over Angelo's girlfriend, Christine Johnson. She told Angelo that "Arkansas" had tried to get her to come downstairs and have sex. Because Hampton was known as Arkansas, Angelo then attacked him, striking Hampton in the head with his pistol butt. Hampton denied Johnson's allegations.

Hampton testified that a day or two after this attack, Angelo brought Johnson to the house. She told Angelo that she had confused the names and that Geechie—not Hampton—was the man who had wanted sex. Angelo then apologized to Hampton and gave him some drugs.

Geechie's friend and housemate, Curtis Brooks, testified that at approximately 8 or 9 on the night of the murders, Angelo and Little Pat knocked on the house's front door. They were both upset. Once inside, Angelo walked to the air vent and pulled something out. Brooks believed it was a gun. Angelo then asked where Geechie was, and Brooks told him "in the basement." As Angelo instructed, Brooks told Geechie to go into the bathroom because Angelo wanted to yell at him. Geechie complied.

According to Brooks, he was afraid Little Pat had come after him for money owed. Brooks therefore asked another person there to take him to the house of his nephew, Horace. When Brooks left the house, Angelo and Little Pat were in the bathroom with Geechie, and Wilson was in the room next to the bathroom.

When Brooks arrived at Horace's house, he asked for a gun because "something's going to happen." Horace advised Brooks to tell Little Pat that Horace would cover Brooks for the money owed, so Brooks returned to the Haskell house without a gun. Ten minutes after he had initially left the Haskell house, he discovered the bodies of Geechie and Wilson.

Maurice Williams, Jr., testified that he was among those who had been arrested during the February 18 house raid. On the night of his release from custody, February 20, Little Pat picked him up from the jail. They then went to a basketball game and to Little Pat's grandmother's house to meet Angelo. Little Pat and Angelo wanted to go to the Haskell house so Little Pat could retrieve some money he had hidden there.

According to Williams, Angelo drove them to the street behind the Haskell house. Williams did not enter because he had been arrested there just 2 days earlier. Angelo and Little Pat both entered the house and came running back to the car 10 to 15 minutes later. Angelo said Geechie was dead.

Williams further testified that he and Little Pat hung out for the rest of the night. When Williams asked Little Pat what happened, Little Pat said there was no arguing but he heard gunshots and saw Geechie fall onto Angelo. Little Pat then ran out of the house. Later that night, Williams heard Little Pat tell Angelo on the telephone that he was not going to jail "for nothing he didn't do." Like Hampton, he was somewhat aware that Angelo and Geechie "was kind of into it about some girl and the ring."

Little Pat's testimony was mostly consistent with Williams'. He confirmed that he picked up Williams from jail, they went to the grandmother's house, and then they went to a basketball game. Angelo called Little Pat wanting to go to the Haskell house. Little Pat thought he had some money at the house and that Williams had left some keys there.

According to Little Pat, Angelo drove to the street behind the house and Brooks let the father and son inside. Little Pat went upstairs to look for the money and keys. When he came downstairs, he heard a "little loud noise" and saw Geechie hunched over, leaning on Angelo, so he ran out the door. When outside, he heard another loud noise. He and Angelo were in the house for about 10 or 15 minutes.

The first trial ended in a hung jury. During the retrial on November 14-18, 2005, the jury convicted Angelo of two counts of first-degree murder. He was sentenced to consecutive hard 25 terms.

More facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: Angelo's right to a speedy trial was not violated.

Angelo first argues his right to a speedy trial was violated when his trial was not commenced within 90 days of his arraignment as required by K.S.A. 22-3402. The State acknowledges this right. It argues, however, that Angelo's situation is controlled by the interstate Agreement on Detainers (Agreement), K.S.A. 22-4401 et seq., and his trial was commenced within the extra time granted by that Agreement. There is no dispute that Angelo's trial began more than 90 days after his arraignment but within the extended time under K.S.A. 22-4401.

Whether K.S.A. 22-4401 applies is a question of law subject to unlimited review. State v. Hargrove, 273 Kan. 314, 319, 45 P.3d 376, cert. denied 537 U.S. 982, 123 S.Ct. 452, 154 L.Ed.2d 345 (2002).

We begin by examining the speedy trial statute, K.S.A. 22-3402, which provides in relevant part:

"(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5)." (Emphasis added.)

Based upon the italicized language, the State argues that K.S.A. 22-3402 does not apply because Angelo was not in its custody "solely" on the murder charges. Rather, he was in a Missouri prison because of criminal charges arising in that jurisdiction when he was transferred to the Wyandotte County jail in June 2004 to face that county's murder charges. Based upon the plain language of the statute, we agree with the State. See State v. Sanders, 224 Kan. 138, 140, 578 P.2d 702 (1978) ("The first subparagraph of the act is designed to provide trial within 90 days for persons held in custody only because of the pending charge."); see also Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007) (When a statute's language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.).

As additional support for our holding, we examine the Agreement on Detainers and analogous case law. K.S.A. 22-4401, Article III, states:

"(a) Whenever a person has entered upon a...