State v. Bailey

• Decision Date: 15 July 2011
• Docket Number: No. 101,785.,101,785.
• Citation: 292 Kan. 449,255 P.3d 19
• Parties: STATE of Kansas, Appellee,v.Andre BAILEY, Appellant.
• Court: Kansas Supreme Court

292 Kan. 449

255 P.3d 19

STATE of Kansas, Appellee,

v.Andre BAILEY, Appellant.

No. 101,785.

Supreme Court of Kansas.

July 15, 2011.

[255 P.3d 21 , 292 Kan. 449]

Syllabus by the Court

1. In 2006, K.S.A. 38–1636 was repealed; thereafter, K.S.A. 2010 Supp. 38–2347 provides for the certification of juveniles as adults for prosecution. K.S.A. 2010 Supp. 38–2347(f) requires that the court find “from a preponderance of the evidence” that the individual should be prosecuted as an adult for the offense, rather than finding “that there is substantial evidence” as required by K.S.A. 38–1636(f). The “preponderance of the evidence” standard is a more rigorous standard than “substantial evidence.”

2. An appellate court reviews the trial court's decision to authorize prosecution of a juvenile as an adult to determine whether there is substantial evidence in the record to support the decision. This court does not review the analysis of the trial court; instead, the standard of review applies to the evidence.

3. Whether an underlying felony has been committed before commission of a felony murder is ordinarily a question of fact for the jury. The PIK Crim.3d 56.02 jury instruction properly instructs the jury and fairly states the law on this issue.

4. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed, so long as substantial evidence supports each alternative means.

5. In reviewing an alternative means case, a court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.

6. When defendant's requested instruction is given to the jury, the defendant cannot complain the requested instruction was error on appeal.

7. The Fifth Amendment to the United States Constitution is not without limits. The privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

Andre Bailey appeals from his convictions of one count of first-degree murder, two counts of aggravated robbery, one count of aggravated burglary, one count of criminal discharge of a firearm at an occupied building, one count of possession of marijuana with intent to sell, and one count of no tax stamp.

Late on August 10, 2007, Sade James picked up her friend Cheryl Starr for a night of drinking and partying. James exchanged text messages with Bailey and agreed to pick up Bailey and his friend DaQuan Dean. The group continued to drink and party, eventually stopping at the apartment of Cindale Terrell. The group continued to drink; Starr, Bailey, and Dean also smoked marijuana.

The conversation turned to guns, and Bailey produced a 9 mm handgun from his backpack. The group took pictures posing with the 9 mm and a shotgun that was located in the apartment. James drove the foursome to Starr's house, where she ran inside after something. The group then returned to the apartment; Bailey and Dean went into the apartment and returned with the shotgun. They stopped at a QuikTrip and picked up something to eat.

Bailey had expressed a desire to go to a house where he knew they could get 18 “bricks” of marijuana. Bailey eventually gave James directions to the targeted house. James stopped at a cul-de-sac, and the three others left the vehicle and crossed a drainage ditch to the adjoining street. Later, Dean called James and directed her to move the car to the next street over.

At the house, Dean kicked in the door. Starr went into the living room, while Dean and Bailey continued to the back bedroom where Ricky Stewart, Meagon Hicks, and her youngest son were sleeping. Hicks' 4–year–old son and 5–year–old daughter were asleep across the hall.

Hicks was awakened by Bailey holding a handgun in her face and demanding the “bricks.” Dean was standing in the bedroom doorway with a shotgun. Stewart eventually left the room with Dean to get a “brick” of marijuana. Stewart and Dean passed Starr in the living room and left the house.

Bailey hit Hicks on her forehead with the handgun, telling her to shut up. The older children awoke and entered the bedroom. Bailey shoved the older girl at Hicks and picked up the older boy and threw him on the bed. Bailey demanded Hicks' purse; she denied having a purse. Bailey hit Hicks on the back of her head with the handgun, calling her a “lying bitch.” Bailey eventually found the purse and left the room.

Starr had left the house shortly after Dean left. Bailey left the house and met Starr on the sidewalk outside the house. Bailey asked where Dean was. Starr responded that she did not know and ran to the car. Starr met Dean running on the sidewalk; the two of them returned to the vehicle at nearly the same time.

Inside the residence, Stewart returned to the bedroom, attempting to comfort Hicks, and asked for the phone. Hicks told him the phone had been shut off and she did not know where it was. The couple, followed by Hicks' 5–year–old daughter, went into the living room in search of keys to their vehicle. Hicks saw someone opening the front door and ran to push the door closed. Stewart pushed her out of the way and attempted to close the door himself. Moments later, Hicks heard several gunshots and Stewart screamed that he had been shot.

Starr reported hearing gunshots after she and Dean had joined James in the vehicle, but before Bailey returned to the car. James testified that she moved the vehicle again after Starr and Dean returned to the car, where she picked up Bailey. According to James, Bailey stated that he had returned to the house because he thought Dean remained inside and Bailey emptied his clip into the door. Starr testified that she did not remember any discussion after Bailey returned to the car.

Once inside the car, Bailey divided the money from Hicks' purse, giving each person $86. Because Bailey felt sick, the group stopped at a QuikTrip and picked up water, cigarettes, and “blunt sticks.” Bailey vomited at a stop light. The group returned to Terrell's apartment. At the apartment, a large quantity of marijuana, referred to as a “brick,” was divided among Bailey, Starr, Dean, and possibly Terrell.

Stewart died as a result of the gunshot wounds sustained from the gunshots fired through the door of Stewart's home.

Because Bailey was 17 years old, charges were originally filed with the juvenile court. The State filed a motion pursuant to K.S.A. 2010 Supp. 38–2347, seeking to have the case transferred to adult court for prosecution. The motion was granted and Bailey was tried as an adult on the following charges: one count of first-degree murder, two counts of aggravated robbery, one count of aggravated burglary, one count of criminal discharge of a firearm at an occupied building, one count of possession of marijuana with intent to sell, and one count of no tax stamp. At trial, the evidence included testimony from James, Starr, and Dean. The jury returned a verdict of guilty on all counts.

Adult Certification

In 2006, K.S.A. 38–1636 was repealed; thereafter, K.S.A. 2010 Supp. 38–2347 has provided for the certification of juveniles as adults for prosecution. Bailey was certified as an adult on January 10, 2008, for crimes occurring in August 2007. The parties agree that K.S.A. 38–2347 controls.

The factors enumerated in K.S.A. 38–1636(e) and K.S.A. 2010 Supp. 38–2347(e) are identical except for the use of “juvenile” in place of the word “respondent.” Of potentially more import, K.S.A. 2010 Supp. 38–2347(f) requires that the court find “from a preponderance of the evidence” that the individual should be prosecuted as an adult for the offense, rather than finding “that there is substantial evidence” as required by K.S.A. 38–1636(f). The “preponderance of the evidence” standard is a more rigorous standard than “substantial evidence.” In re Due Process Hearing of Bailey, 233 Kan. 714, 722, 664 P.2d 1379 (1983) (quoting Town of Burlington v. Department of Ed., Etc., 655 F.2d 428, 431 [1st Cir.1981] ).

The statutory change applies to the standard used by the trial court, but does not change our standard of review. When a trial court considers a question of fact which must be proved by a preponderance of the evidence, this court's review is limited to determining whether substantial competent evidence supports the trial court's finding. See, e.g., State v. Loggins, 40 Kan.App.2d 585, 588, 194 P.3d 31 (2008) (“Whether the State has met its burden to prove a prior conviction by a preponderance of the evidence is a question of fact, and an appellate court's review is limited to determining whether substantial competent evidence supports the district court's finding.”); State v. Thompson, 37 Kan.App.2d 589, 593, 155 P.3d 724 (2007) (reviewing whether the State proved “by a preponderance of the evidence that the consent was voluntarily, intelligently, and knowingly given” under a substantial evidence standard).

“An appellate court reviews the trial court's decision to authorize prosecution of a juvenile as an adult to determine whether there is substantial evidence in the record to support the decision.” State v. Davis, 37 Kan.App.2d 650, Syl. ¶ 10, 155 P.3d 1207 (2007) (reviewing adult certification under K.S.A. 38–1636). This court does not review the analysis of the trial court; instead, the standard of review applies to the evidence. State v. Avalos, 266 Kan. 517, 521, 974 P.2d 97 (1999).

The...