State v. Carter, 95,335.

CourtUnited States State Supreme Court of Kansas
Citation160 P.3d 457
Docket NumberNo. 95,335.,95,335.
PartiesSTATE of Kansas, Appellee, v. Victor Andre CARTER, Appellant.
Decision Date22 June 2007

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Ellen H. Mitchell, county attorney, argued the cause, and Phill Kline, attorney general, was with her on the briefs for appellee.

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

In this appeal from his convictions for first-degree murder, aggravated assault, and criminal possession of a firearm, defendant Victor A. Carter claims that the district court erred by denying a continuance to enable proof of his theory of defense; refusing to allow defense counsel to withdraw; and failing to instruct jurors they should consider imperfect self-defense as they deliberated on first-degree murder. He also argues that the prosecutor committed reversible misconduct; challenges the admission of a photograph; and questions the propriety of giving an Allen-type instruction. See Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Finally, he also alleges the jury instructions on the order of deliberations were erroneous and asserts that even if no single error compels reversal, cumulative error does.


Victim Darryl Revels was killed when he was hit at close range by a shotgun blast to his abdomen. Salina police responded to the scene, the living room of a house where Carter was living, and talked to a neighbor. The neighbor told them she had heard the shot and had then seen Carter walk out of the front of the house.

Revels was a bodyguard of sorts for Carter. He would do household chores and would screen visitors who came to do money and drug deals and other illegal transactions with Carter.

On the night of the crime, William Gardenhire came over to the house to help Revels set up stereo equipment for Carter. Several other people also were at the house: Carter, Carl Christiansen, James Armstrong, Lori Harris, Christopher Williams, Twayne Bledsoe, and another man identified only as "Johnny." Carter, who was high on crack, initially was in the basement.

Carter then called everyone in the house into the front room. He ordered Williams to lock the front door and stand there. When everyone was assembled, Carter began asking questions about who was robbing him and refused to let anyone leave. He accused Revels of manipulating everyone to rob him. He then ran to the bedroom and came back with a 12-gauge shotgun. Carter continued to direct his accusations at Revels and pointed the shotgun at Revels' head. He pulled the trigger, but the shotgun did not fire.

Carter then loaded the shotgun and sat down on a couch. He then focused his accusations on Gardenhire, pressuring Gardenhire to admit he had robbed him or was planning to do so. Carter put the shotgun to Gardenhire's forehead, giving him "ten seconds." After 5 seconds, he put the shotgun to Gardenhire's eye. Gardenhire protested that he would never rob Carter and suggested that Carter just pull the trigger. Carter looked at Revels and said Gardenhire sounded "real convincing." Then Carter turned and shot Revels.

After the shot was fired, Gardenhire, Harris, and Armstrong ran out the back door and jumped into their cars. Gardenhire called 911 but did not give his real name for fear his involvement would be a violation of his parole. Gardenhire later made a statement to the police implicating Carter. Christiansen also called 911; he, Harris, and Armstrong were initially reluctant to provide information but eventually pointed police toward Carter. Police later arrested Carter near his ex-wife's apartment in Topeka and charged him with first-degree murder of Revels, aggravated assault of Gardenhire, and criminal possession of a firearm.

Carter went through four attorneys: his first appointed counsel, Mark J. Dinkel, withdrew based on a conflict of interest; Dinkel had previously represented Gardenhire and suggested he might need to use information gained in that representation to represent Carter effectively. Carter's next appointed counsel, Joseph A. Allen, had previously represented Bledsoe, another eyewitness who was endorsed by the State. Attorney Ronald Hodgson was appointed next; he also filed a motion to withdraw based on a conflict of interest with another client of the public defender's office. When the district court permitted Hodgson to withdraw, the court appointed Jack Sheahon to defend Carter.

At Carter's jury trial, Gardenhire, Christiansen, Harris, and Armstrong described the events leading to Revels' death essentially as set out above. Each testified that Revels was unarmed and that he had not provoked or attacked Carter. Williams testified he was not at the murder scene and knew no one involved.

Judith Wesley, Carter's ex-wife, testified that Carter had admitted killing Revels; he told her Revels and Gardenhire threatened to rob him and kill him, so he shot first. Regarding Gardenhire, she reported that Carter said "he was going to shoot [him], but he forgot or something." Carter did not mention to Wesley whether Revels was armed.

Among the State's other evidence was a photograph of Revels' body lying in the living room where he was killed. The photograph also depicts Revels' intestines partially outside of his abdomen. The defense had objected to admission of such photographs earlier in the proceedings.

Toward the end of the State's case, Carter told the district judge that he was unsatisfied with his lawyer's performance and that he did not want to continue with him as counsel. Defense counsel Sheahon told the judge that he "didn't feel he was providing inadequate counsel." After learning more from Carter about the nature of his complaints, the district judge ruled that he would not allow Carter to obtain new counsel in the middle of the jury trial.

One of the reasons Carter expressed dissatisfaction was related to Bledsoe. Specifically, Carter wanted Bledsoe to testify about the content of a telephone conversation he had had with Carter while Carter was in jail awaiting trial. During that conversation, Bledsoe stated that he knew there had been a plan to rob Carter. Defense counsel had subpoenaed Bledsoe, as had the State. Although served personally three times, Bledsoe absconded. The State then issued a pick-up order, but Bledsoe had not been found in time for trial. In place of his testimony, the audiotape of the telephone conversation between Carter and Bledsoe was admitted into evidence. The State also offered to let the defense question the investigator who had interviewed Bledsoe pretrial and pledged not to object to admission of Bledsoe's hearsay statements.

Carter testified in his own defense. He said that he shot Revels because he believed he was going to be robbed; that Gardenhire, Revels, Armstrong, and others had been in the basement with him and were armed with a Taser, a gun, and a hammer; and that they had assaulted him and threatened to hang him with electrical wires. Carter testified he was scared for his life and "thought he was dead." Then everyone went upstairs, and Revels, who had a gun, told Carter that he was going to kill him. It was only then that Carter's shotgun "went off." Carter walked out of the front of the house, and everyone else ran out of the back.

Other defense witnesses supported Carter's self-defense theory. Reola Lane testified that she had been talking to Carter in the basement on the night of the crime while the others were upstairs. He told her he thought somebody was trying to set him up. She left the house before Revels was shot. An officer testified about a monitored jail telephone call in which Carter told another inmate that Revels, Gardenhire, and Armstrong had taken Carter down to the basement, hung him up, and were electrocuting him, but that they later acted as though Carter was out of his mind. Briana Jacobson, Carter's girlfriend, testified that she talked with Carter while he was in jail awaiting trial and that he told her he had killed Revels in self-defense. John Melvin Lavigne testified that he knew Carter, that he had bought drugs from him, and that he had heard there was a plan to rob him.

The State called several rebuttal witnesses whom Carter had named in his testimony as among those plotting to rob him. Each testified that there was no such plot.

The pattern instructions submitted and read aloud to Carter's jury contained an Allen-type instruction.

Right to a Complete Defense

Carter argues that the district judge's refusal to grant a continuance to locate Bledsoe was an abuse of discretion and violated his constitutional right to present a defense.

K.S.A. 22-3401 provides a district court may grant a continuance "for good cause shown," and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. Moreover, Carter has the burden to prove that his rights were substantially prejudiced by the decision of the district court. State v. Lackey, 280 Kan. 190, 216, 120 P.3d 332 (2005), cert. denied ___ U.S. ___, 126 S.Ct. 1653, 164 L.Ed.2d 399 (2006), overruled on other grounds State v. Davis, 282 Kan. 666, 148 P.3d 510 (2007). When a criminal defendant claims that a district judge has interfered with his or her constitutional right to present a defense, we review the issue de novo. State v. Kleypas, 272 Kan. 894, 921-22, 40 P.3d 139 (2001), cert. denied 537 U.S. 834, 123 S.Ct. 144, 154 L.Ed.2d 53 (2002).

When a continuance is requested during trial, the district judge should weigh the possible prejudice to the parties, the diligence or lack thereof in attempting to secure a witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if a continuance is granted. Lackey, 280 Kan. at 218, 120 P.3d 332; State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976).

Carter suggests that the district court...

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