State v. Beard
| Decision Date | 22 November 2013 |
| Docket Number | No. 108,655.,108,655. |
| Citation | 313 P.3d 105 |
| Parties | STATE of Kansas, Appellee, v. Ronald H. BEARD, Jr., Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Gregory L. Waller, judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant.
Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., SCHROEDER, J., and LARSON, S.J.
Ronald H. Beard, Jr., was convicted on seven counts: Three counts of attempted first-degree murder; two counts of aggravated battery; one count of aggravated assault; and one count of criminal discharge of a firearm. Beard appeals, claiming he was denied a fair trial due to prosecutorial misconduct, instructing errors to the jury, and three of the counts being multiplicitous. After careful examination of the issues raised, we find no reversible error and affirm the district court.
In the early morning hours of July 15, 2011, a fight broke out at Club Rodeo in Wichita. Tim McCoy, Sarah Fischer, Kevin Walker, and Jeffrey Daniels were not involved in the fight and got into their white Ford Crown Victoria to leave the club after the fight started. McCoy, who was driving, flashed his lights at pedestrians to encourage them to move. A black male who was described as wearing a blue and gray or black shirt took offense to the flashed lights and slammed his hands on the hood of the Crown Victoria. Officer Jamie Schepis intervened, and McCoy's Crown Victoria continued to move through the parking lot.
Officer Schepis watched the Crown Victoria move through the parking lot, and noticed a group of people, including the man in the blue and black shirt, following the car and throwing gang signs. Soon after, shots were fired at the Crown Victoria. Walker and Daniels, who were sitting in the back seat of the Crown Victoria, were shot. Walker was struck in the back of the head, and Daniels was struck in the hand and thigh.
After shots were fired, police blocked the exits. The police then stopped a silver Chevrolet Impala driving erratically and trying to leave. Ronald Beard was driving the Impala. Police found a handgun under one of the passengers' seat and also under the driver's seat. A police lineup was conducted with these individuals and Officer Schepis identified Beard, the male wearing the blue and black shirt who slammed his hands on McCoy's Crown Victoria.
Weeks before the shooting at Club Rodeo, a well known gang member of the Crips was killed. It was generally thought the Bloods were responsible for the killing. Walker and Daniels admitted they were formerly Bloods but claimed they were no longer part of the Bloods gang at the time of the shooting. Daniels had been warned to watch out for retaliation from the Crips. Beard and his passengers in the Impala were known members of the Crips.
DNA evidence indicated the individuals in the Impala were major contributors of DNA to the firearms, cartridge casings, and bullet fragments found in the parking lot. Beard was the only contributor of DNA to the .45 caliber Glock handgun found in the Impala.
Daniels and several other witnesses testified Beard was one of the shooters and remembered him wearing a blue and gray or black shirt during the shooting. Other witnesses were unable to recognize Beard but did remember one of the shooters wearing a blue and gray or black shirt.
At the close of the State's evidence, Beard moved for judgment of acquittal, which the district court denied. Beard chose not to testify or present any evidence. During the jury instructions conference, Beard asked for his name to be used instead of the generic “the defendant.” The court denied Beard's request, stating the PIK instructions used the term “the defendant.”
With the pending charges of attempted first-degree murder, Beard also requested the instructions contain the lesser included offense of attempted voluntary manslaughter “based on the sudden quarrel prong.” The district court rejected the sudden quarrel, or heat of passion, argument because there was no evidence of a quarrel occurring outside of Club Rodeo. Beard asked for several other instructions including the lesser included offense instruction of attempted aggravated battery. Additionally, Beard wanted a change to the verdict form. The district court denied his request. As to those instructions, Beard does not appeal the district court's decision.
In its first closing argument, the State argued to the jury there was “no doubt” the defendant participated in the shootings. When discussing the burden of proof, the State argued there were elements it was required to prove for each offense and stated that for each count the State “is required to prove a couple of things on all of them.”
The State pointed out that premeditation “requires more than an instantaneous, intentional act of taking another's life.” However, the State also noted that premeditation did not require the actors to sit and “draw out a plan.” Beard, in his closing, argued there was no time requirement for premeditation but pointed out an individual had to be more than merely angry to be convicted of premeditation; a plan or intent to kill must have been formed before the act occurred. In its rebuttal, the State reminded the jury Beard went
The State contended three gang members were involved in the shooting and Beard was responsible for his crimes as well as those of the other shooters. The prosecutor said he did not have to account for which defendant shot which bullet because Beard was “in for a penny and ... definitely in for the pound.”
Other details regarding the prosecutor's statements during closing arguments will be added as necessary.
Beard was found guilty of seven of the eight charges as he was found not guilty on one of the counts of attempted first-degree murder. Beard filed a motion for new trial and judgment of acquittal, arguing insufficiency of the evidence and prosecutorial misconduct. The district court denied Beard's motion.
Beard raises four issues on appeal:
• The State committed prosecutorial misconduct during closing arguments;
• The district court erred in its jury instructions, failing to provide a lesser included jury instructions on attempted voluntary manslaughter and in giving the inferred intent instruction;
• Cumulative error; and
• Three of his convictions are multiplicitous.
Each will be discussed in turn.
Beard claims the State committed prosecutorial misconduct during closing arguments by:
• Misstating the law regarding premeditation;
• Misstating the law regarding aiding and abetting;
• Vouching for the credibility of witnesses;
• Providing personal opinion regarding Beard's guilt; and
• Misstating the State's burden of proof.
Beard did not object to the State's closing arguments at trial. However, State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“ State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 (2011).
Beard claims the State misstated the law regarding premeditation and aiding and abetting during closing arguments. A misstatement of controlling law must be reviewed on appeal, regardless of a timely objection at trial, to protect a defendant's right to due process. When a misstatement of controlling law is made deliberately, it is outside the considerable latitude given to prosecutors during their arguments. State v. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Premeditation, as defined by the Kansas Supreme Court, means:
“ ‘ “T]o have thought the matter over beforehand,...
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