State v. Butler

Decision Date27 April 2018
Docket NumberNo. 115,604,115,604
Citation307 Kan. 831,416 P.3d 116
Parties STATE of Kansas, Appellee, v. Marcus G. BUTLER, Appellant.
CourtKansas Supreme Court

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and Kimberly Streit Vogelsberg, of the same office, was on the brief for appellant.

Christopher L. Schneider, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Marcus G. Butler directly appeals his convictions—first-degree felony murder, conspiracy to commit aggravated robbery, and attempted aggravated robbery. He alleges multiple reversible errors, but after a thorough review, we affirm Butler's convictions.

Butler also argues—and the State concedes—the district court erred by sentencing him to lifetime postrelease supervision instead of lifetime parole for his first-degree felony-murder conviction. We agree this was error. We vacate this portion of Butler's sentence and remand the case to the district court so the court may impose lifetime parole.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after 7 p.m. on January 9, 2013, Kevin Smith returned home from work to the apartment he shared with his fiancée, Demetria Hunter, in Wyandotte County. When Smith arrived, he discovered a vehicle parked in his spot. Hunter and Smith's neighbors had a history of parking in their stalls and making loud noises. Smith saw a white male—later identified as Clint Schierbaum—exiting the neighboring apartment. Smith questioned him about the vehicle, but Schierbaum told him he did not know who owned the vehicle and left.

About 15 minutes later, Hunter and Smith heard a series of loud popping or banging noises coming from the neighboring apartment. Smith later testified he heard two sets of pops about seven to ten minutes apart. Hunter, on the other hand, stated when she heard some banging noises, she "beat on the wall ... and all of a sudden I just kept hearing bang, bang, bang on the wall."

Hunter called the police to register a noise complaint. She and Smith stepped out of their front door to investigate. Three white men emerged from the neighboring apartment. When Hunter tried to confront them about the noise, the group hurried past them, climbed into a vehicle, and left. Hunter thought one of the men appeared afraid.

Law enforcement officers arrived shortly thereafter. After they spoke with Smith and Hunter, Nick Rhodes—a resident of the neighboring apartment—arrived on the scene. Rhodes told the officers his roommates had informed him a shooting had occurred in the apartment. Rhodes gave the officers permission to search the apartment.

The officers discovered two men in an upstairs bedroom, both of whom had been shot. Matthew Gibson—who was lying on the floor—was dead. A forensic pathologist later testified Gibson died from multiple gunshot wounds, including one to the head and two to his abdomen. Officers recovered a .357 caliber revolver resting on the floor next to Gibson, which was later identified as his revolver. The revolver had one empty cartridge casing in it, while the remaining cartridges were loaded.

Leland Pruneda was lying on the bed. Pruneda had been shot in the back of the head but was still alive and conscious. Officers located a .40 caliber semiautomatic handgun resting on the bed next to Pruneda. The gun's magazine contained loaded rounds, but the chamber was empty. Officers later recovered several .32 caliber shell casings from the bedroom. After calling for medical personnel, an officer tried to question Pruneda, but he was too disoriented to give an account of what happened. Pruneda was transported to the hospital for treatment.

According to Schierbaum, he arrived at the apartment earlier that day around 7 p.m. to buy a gram of marijuana from Nick Yanos. Schierbaum entered the apartment through the unlocked front door and went upstairs to Yanos' bedroom, where Yanos typically sold marijuana. Schierbaum testified Yanos usually left the front door unlocked. A couple minutes after he arrived, two other individuals—Bryce Meyn and Brandon Eberth—arrived to buy marijuana from Yanos. All four men smoked some marijuana together.

Pruneda and Gibson then arrived together, and all six of them congregated in Yanos' bedroom. The six men knew each other from high school and were cordial with each other. A few minutes later, Schierbaum left with his marijuana through the front door where he was confronted by Smith about the vehicle parked in Smith's spot.

At this point, five people were in the bedroom—Pruneda, Gibson, Eberth, Meyn, and Yanos. Not long after Schierbaum left, Eberth heard the footsteps of somebody walking up the apartment stairs. Eberth and Meyn testified a black male wearing a ski mask and brandishing a pistol ascended the stairs. He pointed the pistol at the group and told them to get on the ground. Eberth—assuming they were being robbed—went to the ground, pulled out his wallet, and held it out for the man. Meyn also went to ground. Several shots were fired, and the assailant fled the apartment.

Pruneda remembered hearing someone tell them to "get the fuck down," and he looked right before being shot in the back of his head. While at the hospital the following day, Pruneda told an officer a single black male wearing a ski mask entered the apartment and shot him during the course of a robbery.

After the assailant fled, Gibson was hunched over by a dresser groaning and bleeding. Pruneda was also injured and bleeding, though he was talking. Afraid, Meyn, Eberth, and Yanos left the apartment in a hurry. Yanos took his marijuana with him. As the three men exited the apartment, they passed Smith and Hunter, who were yelling that they had called the police. The three men loaded into Eberth's vehicle and left. Yanos threw his marijuana out of the car, and they eventually returned to the apartment and spoke with the police officers who were present when they arrived.

At this point in time, law enforcement did not have a lead on the shooter's identity. But on January 14, 2013, officers received a phone call from Beau Barger who claimed he had information related to the shooting. Barger implicated his coworkers, Marcus Butler and Tyler Jewell. Kyle Cole, another coworker, later provided law enforcement with corroborating information. The State charged Butler with one count each of first-degree felony murder, attempted aggravated robbery, and conspiracy to commit aggravated robbery.

The district court held a three-day jury trial. The State called 16 witnesses to testify, including Schierbaum, Meyn, Eberth, Pruneda, Cole, Barger, Smith, and Hunter. Jewell, who claimed to have been Butler's accomplice, also testified for the State.

Barger told the jury he, Butler, Jewell, and Cole worked in the automotive detail department at Zeck Ford—a car dealership in Leavenworth, Kansas. Barger knew Yanos and those present in the apartment on January 9, 2013, from high school. He also knew Butler purchased marijuana from Yanos. About one month before the shooting, Butler told Barger he was upset with a purchase from Yanos and he wanted to rob Yanos. Barger advised against doing so, believing it would be pointless. About one week before the shooting, Butler again approached Barger and said he wanted to rob Yanos.

On the night of the shooting, Barger claimed he had learned about the events through Cole. The next morning at work, Butler pulled Barger into a room and told him he had shot "him." By this time, Barger knew Gibson was dead. Butler told Barger that after he entered the house, he found four or five people in a room, told everyone to get down, and when he heard shots and saw flashes, Butler began shooting until he "[e]mptied the clip." Butler allegedly warned Barger to not tell anyone else about the shooting. Because he was afraid of what Butler might do to him, Barger waited a few days before calling the police.

Cole told the jury that about one month before the shooting, Butler approached him looking for someone who sold marijuana. Cole purchased marijuana from Yanos, so he referred Butler to Yanos. Like Barger, Cole knew Yanos and those present in the apartment from high school. Cole knew Butler had purchased marijuana from Yanos "a couple times."

Later, Butler approached Cole four or five times and asked Cole to help him rob Yanos. Butler wanted to know how much money Yanos kept on him and whether he had any guns. According to Cole, he refused to help Butler and told Butler not to rob his friends.

On the day of the shooting, Jewell warned Cole not to go to Yanos' house that evening because Butler was "gonna run up in there." Cole claimed he thought Jewell was joking. Later that night, Cole received a frantic phone call from Jewell's phone. Jewell told Cole:

"[W]e were not there tonight ... you don't know anything. If you say anything, we will find you." Butler then came on the line and told Cole: "We were not there tonight, you don't know anything. There was no evidence tracing back to him." Cole claimed Butler threatened to find him and "beat [his] ass" if he told anybody it was them. Butler also asked Cole to tell him where he and Barger were, presumably because they were the only ones who knew about Butler's plan to rob Yanos.

Two days later, Cole returned to work where Butler pulled him aside to a break room to have a private conversation. Butler told Cole "he ran up in there and they pulled a gun out so he just started shooting." Butler allegedly told Cole there was no evidence linking him to the crime, only he and Barger could implicate him, and Butler wanted to "make sure [they] would keep [their] mouths shut." Cole believed Butler was trying to intimidate him. The conversation concluded when their boss entered the room.

Days later, Cole received a phone call while at work from a number he did not recognize. Cole claimed he answered the call over...

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