State v. Bell
| Decision Date | 12 December 2003 |
| Docket Number | No. 88,001.,88,001. |
| Citation | 80 P.3d 367,276 Kan. 785 |
| Parties | STATE OF KANSAS, Appellee, v. HORACE BELL, JR., Appellant. |
| Court | Kansas Supreme Court |
Robert M. Miles, of Robert M. Miles, P.A., of Liberal, argued the cause and was on the brief for appellant.
Melissa G. Johnson, assistant county attorney, argued the cause, and Don L. Scott, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
Horace Bell, Jr., appeals his convictions of felony murder, criminal discharge of a firearm at an occupied motor vehicle, and criminal damage to property. He contends that the district court should have instructed the jury on self-defense and involuntary manslaughter, his taped and written statements should have been suppressed, and that insufficient evidence supported his felony-murder conviction. We affirm. On May 15, 2000, the defendant, Chad Humiston, Keontis Hall, Sergio Pineda, Ronald Madden, and others were gathered at the home of Jonathan Baptista. Humiston, Madden, and Baptista left the house and went to a gas station where they encountered Ernie Bishop and Shawn Cox, who appeared to be yelling and throwing their hands up at them from Kansas Avenue. Humiston, Madden, and Baptista got into their El Camino and began following Bishop and Cox, who were walking down Kansas Avenue.
Bishop and Cox advised Humiston, Madden, and Baptista that they had not thrown their hands up at them but had been waving to some girls. An argument erupted between the two groups, and Bishop said that he would get 50 of his "skinhead homies" and come back and kill all of them in about 10 minutes. Humiston, Madden, and Baptista said they would be back with a bunch of friends in 15 minutes.
Humiston, Madden, and Baptista returned to Baptista's home to recruit their friends to fight Bishop, Cox, and their friends. Baptista testified that he went into the bedroom and discussed a plan with Humiston and the defendant. According to the plan, the defendant would drive the El Camino while Baptista would be in the back with a gun; the defendant would drop Humiston off a block ahead of the meeting place and drive the El Camino to where the initial argument started. At that time, Humiston would run up from behind, shoot them, and then jump in the back of the El Camino with Baptista to make it look like a drive-by shooting. Because the defendant said he was too nervous to drive, the boys agreed to keep the same plan but have the defendant get his gun and ride in the back with Baptista.
At trial, Humiston denied making any type of agreement to shoot anyone and he denied knowing that anyone was going to use a firearm. Hall testified that the defendant was outside of the house the entire time after he returned with Humiston and Baptista, but he admitted on cross-examination that he did not know if the defendant could have gone inside during that time.
After Baptista got his .22 caliber semiautomatic handgun, Baptista, Hall, and Pineda got into the El Camino, while Humiston, Madden, Russell, and the defendant got into another car. They drove to Arby's restaurant where the defendant got his .22 caliber revolver out of the trunk of Roman Hernandez' vehicle. The defendant got into the El Camino with Hall and Baptista. Hall drove the El Camino to the place where the argument started, but neither Cox, Bishop, or their friends were there. Baptista and Pineda got out and began looking for them on foot while the others drove around the neighborhood looking for them.
During this time, Bishop and Cox had walked to a friend's apartment, discovered he was not home, and walked back down Kansas Avenue to a car wash where they saw Anthony McCain. They told McCain about the confrontation, and he offered to give them a ride home. When they left the car wash, McCain was the driver, Bishop sat in the passenger seat, and Cox sat in the back seat. McCain drove Bishop and Cox to their friend's apartment, but he was still not home.
Humiston, Madden, and Russell saw Bishop and Cox at the car wash. Hall and the defendant picked up Baptista and Pineda. The defendant got out of the front of the El Camino and got in the back with Baptista, and Hall drove them to the car wash. The El Camino followed the Saturn driven by McCain down Kansas Avenue and sped up to catch up with the Saturn. The vehicle with Humiston, Madden, and Russell was delayed by a stoplight and was not present during the incident. The Saturn turned on Harold Boulevard, an area surrounded by vacant fields, and pulled over.
The El Camino stopped catty-cornered to the Saturn. Baptista claimed at trial that he saw the driver drop his head as if he was reaching down for a gun. Baptista thought their lives were in danger and they had been lured to an isolated area to be ambushed. Baptista yelled, "They've got a gun," and he and the defendant started shooting at the Saturn.
When interviewed the day after the incident, the defendant admitted that he shot at the Saturn. His statement at that time was that Baptista told him it was "now or never" before they started shooting. Hall testified at trial that when he heard gunshots he looked back and saw Baptista shooting and the defendant lying on his stomach in the bed of the El Camino. McCain died as a result of the shooting, and the defendant was charged with first-degree premeditated or felony murder, two counts of attempted first-degree murder of Bishop and Cox, criminal discharge of a firearm at an occupied vehicle, and criminal damage to property. In connection with this incident, Baptista entered into an agreement with the prosecutor, pled guilty to reduced charges, and testified for the State at trial.
At trial, Bishop claimed that he did not know they were being followed until the car revved up and the windows started shattering. McCain was shot in the head and the abdomen, and Bishop was shot in the knee. Bishop and Cox jumped from the vehicle and ran away through a field. Bishop was taken to the hospital and treated for a gunshot wound to his knee. He was not able to identify the shooters or the vehicle involved in the incident.
Hall, Pineda, Baptista, and the defendant left the scene, dropped the El Camino off at Humiston's home, and ran to J.D. Hale's home to hide the guns. Hall and the defendant separated from Pineda and Baptista at that time.
An eyewitness observed a small car with its headlights on stop at the intersection and a larger car without its headlights on pull up beside it. He heard a noise that sounded like firecrackers and then saw sparks or a glow between the cars, two silhouettes running from the smaller car, and the larger car go in reverse down the street. Suspecting a shooting, he called the police.
Officer Mark Caffalette arrived at the intersection of Harold Boulevard and Mission in response to a report of gunshots, and he observed McCain sitting in the driver's seat of the Saturn, which was still running. His upper body was covered in blood and he had a small hole in the back of his head. The Saturn had 11 bullet holes or marks and the driver's side windows and the windshield were broken. No weapons were found inside the car.
Dr. Hubert Peterson conducted McCain's autopsy and observed that McCain had a fatal gunshot wound to the head and a nonfatal gunshot wound to his abdomen. The .22 caliber bullets in the wounds were examined by the State's firearms expert, Carlo Rosati. The parties stipulated that the bullet removed from McCain's head had markings inconsistent with being fired by the defendant's revolver. However, the bullet in McCain's abdomen had markings consistent with being fired by the defendant's revolver and inconsistent with the semiautomatic handgun fired by Baptista.
Baptista was interrogated on the morning of May 16, 2000, and his statement enabled Lieutenant Timothy Neal to recover a semiautomatic.22 caliber handgun and a .22 caliber revolver at Hale's residence. The defendant's fingerprint was discovered on the revolver and Baptista's fingerprint was on the semiautomatic handgun.
The defendant was also interrogated on the morning of May 16, 2000. During this interrogation, he admitted to getting his revolver, following the Saturn, and shooting at the car with Baptista. Prior to trial, he sought to suppress his incriminating oral and written statements as involuntary.
At the suppression hearing, Detective Stephen Hall testified that he and Lieutenant Neal picked the defendant up at his high school on the morning of May 16, 2000. The defendant was informed of his Miranda rights, handcuffed, and told he was being charged with attempted first-degree murder. The defendant testified that Lieutenant Neal told him he was guilty of three counts of attempted murder, that it would be first-degree murder if the victim died, and that he was looking at a lot of jail time. He stated that these statements affected his decision to make the later confession. Neither Detective Hall or Lieutenant Neal recalled these comments being made. The defendant was taken to the police station where he was interviewed by Detective Hall and Sergeant Brian Miller. A videotaped interview was played during the suppression hearing.
The videotape showed the officers in chairs facing the defendant, who was sitting at a table. The interview began with Detective Hall informing the defendant of his Miranda rights again, and the defendant signed a waiver. However, the defendant testified that he did not understand that he was waiving his right to an attorney and that he did not have time to read the waiver before signing it. He admitted that he had been arrested twice before but had never been given the Miranda warning. The defendant never told the officers that he had changed his mind about waiving his rights during the interview. The defendant began the interview by denying his involvement in the shooting. Sergeant Miller stated that he was...
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