State v. Coleman

• Decision Date: 13 July 2001
• Docket Number: No. 83,923.,83,923.
• Citation: 271 Kan. 733,26 P.3d 613
• Parties: STATE OF KANSAS, Appellee, v. CURTIS LEE COLEMAN, JR., Appellant.
• Court: Kansas Supreme Court

271 Kan. 733

26 P.3d 613

STATE OF KANSAS, Appellee, v. CURTIS LEE COLEMAN, JR., Appellant.

No. 83,923.

Supreme Court of Kansas.

Opinion filed July 13, 2001.

Randall L. Hodgkinson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.:

Curtis Lee Coleman, Jr., a 15-year-old, was prosecuted and sentenced as an adult. He was convicted by a jury of one count of premeditated first-degree murder in the shooting death of 10-year-old Shanell Cooper. On the murder conviction, the trial court imposed a life sentence without possibility of parole for 40 years. Coleman also was convicted of three counts of aggravated assault on bystanders for which the trial court imposed a prison sentence of 13 months consecutive to the hard 40 sentence. On appeal, Coleman challenges the constitutionality of the statutory authority for his being prosecuted as an adult, contends that he was prejudiced by certain trial errors, and claims error in the trial court's imposing the hard 40 sentence.

The shooting occurred at approximately 8:30 p.m. on October 14, 1998. Coleman told police that earlier in the evening he had been driving in the 1900 block of Tennyson in Kansas City, Kansas, when Jason Clark ran out of his house, chased the vehicle Coleman was driving, and shot at Coleman several times. A young woman who was in the vehicle with Coleman testified that an unknown, unarmed male had chased after the car and that no shots were fired at the vehicle. She also testified that after being chased, Coleman said, "On his mamma somebody was going to get shot."

Coleman told police that he went to his brother's house, got a gun, and returned to the 1900 block of Tennyson. According to Coleman, as he slowed his vehicle, Jason Clark raised up off the porch with a gun. Coleman fired.

Occupants of nearby houses heard four or five shots. Shanell Cooper and Janell White were crossing the street from 1923 Tennyson to 1936 Tennyson. Marcus Haywood and Shondell Mays were on the porch at 1936 Tennyson. Shanell Cooper was struck by a bullet and made it to the porch at 1936 Tennyson before collapsing. One bullet went through the front wall at 1936 Tennyson and nicked the arm of the living room couch.

Constitutionality of K.S.A. 38-1636(a)(2).

Pursuant to K.S.A. 38-1636(a)(2) a juvenile who has attained the age of 14 at the time of the offense and is charged with what would be if committed by an adult an offgrid offense or a person felony with a firearm may be prosecuted as an adult. The statute provides that "the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute. The respondent shall be presumed to be an adult. The burden of proof is on the respondent to rebut the presumption." K.S.A. 38-1636(a)(2). Coleman contends the presumption of adult status deprives him of due process. Coleman did not raise this issue below. An issue not presented to the trial court generally will not be considered for the first time on appeal. State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). We have recognized three exceptions, however, to the general rule in cases where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case; (2) consideration of the question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998). In this case, the newly asserted theory involves only a question of law and assertedly involves denial of a fundamental right.

Our review of the constitutionality of a statute is unlimited. The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. State ex. rel. Tomasic v. Unified Gov. of Wyandotte Co./Kansas City, 264 Kan. 293, 300, 955 P.2d 1136 (1998).

Coleman argues that he was "rubber stamped" under the presumption found in K.S.A. 38-1636(a)(2) and that the presumption denied him his right to procedural due process. Coleman also argues that the presumption shifts the burden of proof to the defendant in violation of due process.

Coleman relies on In re J.L., 20 Kan. App.2d 665, 891 P.2d 1125, rev. denied 257 Kan. 1092 (1995), which involves the termination of parental rights. "A parent's right to the custody and control of his or her children is a liberty interest protected by the Fourteenth Amendment to the United States Constitution." 20 Kan. App.2d 665, Syl. ¶ 2.

Unlike a parent's right to custody and control of his or her children, adjudication as a juvenile is not a fundamental interest. See People v. Hughes, 946 P.2d 509, 516 (Colo. App. 1997) (accused has no liberty interest in being treated as a juvenile that would implicate procedural due process); People v. Conat, 238 Mich. App. 134, 158, 605 N.W.2d 49 (2000) (no constitutional right for an accused to be treated as a juvenile); Com. v. Williams, 514 Pa. 62, 71, 522 A.2d 1058 (1987) (no special treatment for juveniles guaranteed by the Constitution). The special treatment of juvenile offenders on account of age is not an inherent or constitutional right but rather results from statutory authority, which can be withdrawn. See State v. Angel C., 245 Conn. 93, 715 A.2d 652 (1998). Some legislatures have chosen to require prosecution as an adult for specified serious offenses or to require charges to be filed in criminal court subject to the juvenile's showing he or she belongs in a juvenile setting rather than criminal court. Those legislative measures have passed constitutional muster. See State v. Stinnett, 129 N.C. App. 192, 497 S.E.2d 696 (1998); Corm. v. Cotto, 708 A.2d 806, 813 (Pa. Super. 1998); In re Boot, 130 Wash.2d 553, 570-71, 925 P.2d 964 (1996).

In contrast to the mandatory schemes, the Kansas legislation describes circumstances in which a county or district attorney as well as the court may exercise discretion in determining whether adjudication as a juvenile or prosecution as an adult is appropriate. Procedural regularity sufficient to satisfy basic requirements of due process, therefore, is necessary. See Kent v. United States, 383 U.S. 541, 552-53, 16 L. Ed.2d 84, 86 S. Ct. 1045 (1966). K.S.A. 38-1636 provides that in certain circumstances the county or district attorney may request the court to authorize prosecution as an adult:

"(2) At any time after commencement of proceedings under this code against a respondent who was (A) 14, 15, 16, or 17 years of age at the time of the offense or offenses alleged in the complaint, if any such offense (i) if committed by an adult, would constitute an offgrid offense, a person felony, a nondrug severity level 1 through 6 felony or any drug severity level 1 or 2 felony; or (ii) was committed while in the possession of a firearm; or (B) charged with a felony or with more than one offense of which one or more constitutes a felony after having been adjudicated or convicted in a separate prior juvenile proceeding as having committed an offense which would constitute a felony if committed by an adult and the adjudications or convictions occurred prior to the date of the commission of the new act charged and prior to the beginning of an evidentiary hearing at which the court may enter a sentence as provided in K.S.A. 38-1655, and amendments thereto, the county or district attorney may file a motion requesting that the court authorize the prosecution of the respondent as a adult under the applicable criminal statute. The respondent shall be presumed to be an adult. The burden of proof is on the respondent to rebut the presumption." (Emphasis added.)

K.S.A. 38-1636(e) sets forth eight factors the court is required to consider when determining whether to treat a defendant as an adult or juvenile:

"In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent's home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court's jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be

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