State v. Carter

• Decision Date: 15 December 2000
• Docket Number: No. 82,590.,82,590.
• Citation: 14 P.3d 1138,270 Kan. 426
• Parties: STATE OF KANSAS, Appellee, v. JEROME G. CARTER, Appellant.
• Court: Kansas Supreme Court

270 Kan. 426

14 P.3d 1138

STATE OF KANSAS, Appellee, v. JEROME G. CARTER, Appellant.

No. 82,590.

Supreme Court of Kansas.

Opinion filed December 15, 2000.

Reid T. Nelson, assistant appellate defender, argued the cause, and Elizabeth Seale Cateforis, special appellate defender, Kirk C. Redmond, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, were with him on the briefs for appellant.

Charles R. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee. The opinion of the court was delivered by

ALLEGRUCCI, J.:

Jerome G. Carter was convicted by a jury of first-degree murder, aggravated robbery, and criminal possession of a firearm. He received a hard 40 sentence plus 199 months. He appeals his convictions and sentence.

Troy Hawkins, Jr., died on March 10, 1998, of gunshot wounds. The fatal wounds were caused by a bullet that entered the upper left part of his head and exited on the lower right part and by a bullet that went through his left cheek downward into his neck. He sustained nonfatal gunshot wounds to his upper chest and left arm.

Cavelle Horn and Hawkins shared a two-bedroom house at 1332 N. Erie in Wichita. On March 9, Horn got home from work shortly after 5 p.m. Hawkins and their friend, Carlos Johnson, arrived between 9 and 10 p.m. Later, while Hawkins and Johnson were in the living room watching television and playing video games, Horn dozed off in his bedroom. Horn was awakened by voices. He propped himself up to look into the living room to see who was there. Horn saw a stranger, an African-American male, "kind of tall," wearing a big coat, and with braided hair. Horn identified the defendant, Jerome Carter, as the stranger. Defendant was talking to Hawkins about his pit bull terriers.

After awhile, Horn heard the defendant say, "This is a jack," meaning that it was a robbery. Defendant and Hawkins came to the door of Horn's bedroom, someone switched on the light, and Hawkins told Horn to get up. Horn remained motionless. Horn got pushed down on the floor, and Hawkins was pushed down beside him. The defendant put a gun to Horn's eye and asked where the money was. Horn denied having any money.

Defendant opened Horn's closet and took a pair of shoes. He also took from Horn's room a cellular phone and the detachable face plate of Horn's car stereo.

Horn heard another person come in the front door. Then defendant and the second intruder, later identified as Lelandra Sweeney, brought Johnson into Horn's bedroom and forced him to lie face down on the floor with Horn and Hawkins. To get the intruders to leave, Horn told the defendant to take his car. Defendant left the house with Horn's keys. After defendant left the house, Hawkins told Horn and Johnson that the intruders only had one gun. They got up and caught Sweeney in the living room. They locked the door and began beating the unarmed intruder. They beat him with a baseball bat and a metal pipe.

Defendant tried to get back into the house through the locked front door. He broke out the glass in the door, and he kicked the door slightly ajar. Horn and Johnson ran out the back door, but Hawkins stayed to continue beating Sweeney.

Horn ran around toward the front of the house. He saw the defendant with his arm reaching in through the door. Horn heard 5 or 6 shots in quick succession.

Johnson testified that he did not know either Carter or Sweeney. Johnson was in the backyard when he heard gunshots.

When police arrived, they found a set of keys dangling from the trunk of Horn's car, which was parked in front of the house. The dead bolt of the front door was engaged, but the door was ajar. A pager that belonged to Sweeney was found in front of the house.

Cassandra Smith, whose preliminary examination testimony was admitted at trial, testified that Carter was her boyfriend. On March 9, 1998, Carter borrowed her car, a 1994 Taurus. When Carter returned to Smith's apartment, he brought Sweeney with him and Sweeney was injured. The following day Smith drove Sweeney to the Minor Emergency Center and dropped him off.

When Sweeney left the Minor Emergency Center, he got a ride to the vicinity of 31st and Arkansas. Sweeney was arrested later that day at his sister's residence on 33rd Street.

Sweeney's sister went to Smith's residence to tell Smith and Carter that Sweeney had been taken into custody. Smith drove Carter to his aunt's residence near 10th and Grove, drove to her mother's house in the 1300 block of Erie and left her children there, and then returned to Carter's aunt's house.

Smith testified that Sweeney put a gun on her dresser the night before. The defendant told her to get rid of it. Smith had a girlfriend pick her up at a pay phone approximately 3 blocks from Carter's aunt's place. They went to the garage at 10th and Grove, where Smith got the gun from the garage. As Smith's girlfriend was driving her away from the area, police stopped the car and found a gun underneath Smith's car seat.

A ballistics expert tested the gun. He testified that spent casings found inside and outside the front door of Horn and Hawkins' house and a bullet fragment recovered from a wall of the house were fired from the gun.

A designer jacket recovered from the closet at Carter's aunt's residence had blood stains on it. DNA testing of the stains showed that Hawkins could not be excluded as a source of the stains.

Carter first argues that his Sixth Amendment right to counsel was violated by defense counsel's presenting a theory of defense to the jury that was inconsistent with the defendant's claim of innocence.

At trial, Carter was represented by an assistant public defender. On appeal, the argument is made that a new trial is required because trial counsel refused to present defendant's asserted defense, which was that he was innocent. Carter denied any part in the charged offenses; in statements to the jury, defense counsel conceded Carter's involvement but denied that he premeditated the shooting of Troy Hawkins. In other words, with Carter charged alternatively with premeditated first-degree murder or felony murder, defense counsel's strategy was to direct the jurors toward a felony-murder conviction rather than a premeditated first-degree murder conviction. There was no defense evidence; the State's evidence placed Carter in the midst of the robbery and identified him as the person who shot and killed the victim. Defense counsel's thinking undoubtedly was that his client's conviction of one of the murder charges was inevitable so that his effort ought to be directed to lessening the penalty potential. A hard 40 sentence may be imposed on a conviction of premeditated but not felony murder. K.S.A. 1999 Supp. 21-4635(a). Hence, defense counsel urged the jury to view Carter's killing of Hawkins as an incident of the robbery rather than as a premeditated act.

After the jury had been selected, defense counsel complained on Carter's behalf to the trial court judge that Carter did not want to proceed to trial using defense counsel's strategy. Defendant himself told the trial court judge that he did not believe that his appointed counsel was representing him "to the best of his ability" and therefore should be removed from the case. The judge told Carter that, because the jury had been sworn in and was waiting to hear the evidence, the trial would not be postponed for the purpose of changing counsel. Carter's choices were to proceed with defense counsel representing him or to represent himself.

Carter did not like either alternative. He told the trial court he did not want to be represented by defense counsel, nor did he want to represent himself. The trial court judge then inquired about the grounds for Carter's dissatisfaction with counsel. Defendant said:

"It's like—I feel that he's on a level—he wants me to make a determination— he said that he feels that this is in my best interest for me to go the way that he wants to go. I totally disagree with that.

"I feel like there were things like—you know—I've been here like eight months. I only seen this man like five times, you know.

"And on the other levels, I'd actually like to file for a speedy trial. And he told me that I cannot file for a speedy trial. And he told me that I cannot file for a speedy trial because I have another charge which is a parole hold. But I have not been violated. My parole hold is due to the fact on this case. So my speedy trial was never filed.

"Like my mom talked to him. He gave her nothing but negative feedback. Gave me nothing. He already convicted me guilty and on my innocence. And he's already convicted me. And what kind of right is that? It seems like I'm going against two DAs. This is my life. And I don't feel comfortable proceeding with this trial with my life in this man's hands when he's against me.

"And you asked me a question, if you could stop—if you could stop me representing myself at any time, dealing with my lack of understanding. I don't have a law degree in this, but he says he do. But even if you find that I'm not capable of continuing in court and you put him back on there, after—after—I'm pretty sure he's not agreeing with the things I'm saying with him. But this is what I feel with my heart, and, therefore, there's some stimulation basis constituted toward me right there. And I feel he has a bias attitude by not going with what I feel. This is my life. Not his life. He's telling me—in other words, I feel it is unjust. In other words, he seem like—he's making his decision by the best of his ability, what he says. But, to me, from my common sense, that's not right. That ain't right. And I don't feel comfortable with proceeding on in trial with somebody like that, that's supposed to have a law degree, but, to me, is incompetent of what he doing.

"I've been to the law library a couple of times. That don't

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