State v. Conway

• Decision Date: 08 June 2007
• Docket Number: No. 93,627.,93,627.
• Citation: 159 P.3d 917
• Parties: STATE of Kansas, Appellee, v. Tyree R. CONWAY, Appellant.
• Court: Kansas Supreme Court

159 P.3d 917

STATE of Kansas, Appellee, v. Tyree R. CONWAY, Appellant.

No. 93,627.

Supreme Court of Kansas.

June 8, 2007.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.

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

Tyree Conway appeals from his convictions of first-degree, felony murder based on the criminal discharge of a firearm and criminal discharge of a firearm at an occupied vehicle. The defendant assigns the following errors, which he claims require this court to reverse his convictions: (1) Prosecutorial misconduct during closing argument; (2) failure to provide a limiting instruction concerning gang evidence; (3) failure to instruct that the shot killing the victim must have come from outside the vehicle to support the underlying felony for felony murder; (4) multiplicity of charges; and (5) cumulative error. We conclude that no reversible error occurred and affirm.

Facts

In May 2004, the defendant was convicted of first-degree, felony murder for the killing of Maurice Johnson, based on the underlying crime of criminal discharge of a firearm at an occupied vehicle. The defendant was also convicted of criminal discharge of a firearm at an occupied vehicle, resulting in injuries to Michael Anderson.

The State's lead witness in its case against the defendant was Rachel Bell, a long-time acquaintance of the defendant and Anderson. Bell testified that on April 25, 2003, she had been at her friend Britteny Strong's house at a party. The defendant was also present. Most of the people at the party, including Bell and the defendant, were members of several Crips' gangs. Bell testified that she was a Neighborhood Crip, while the defendant was a 357 Crip. Bell explained that a number of people were drinking alcohol and doing various drugs at the party; she stated that she was under the influence of a number of drugs that night, including alcohol, cocaine, marijuana soaked in embalming fluid, and acid.

During the evening, Bell noticed the handle and hammer of a gun sticking out of the defendant's inside coat pocket. Although Bell did not specifically identify the type of gun that she saw, she later picked out a picture of a revolver and indicated that was the gun she had seen in the defendant's pocket.

Later that evening, Strong called Anderson, an acquaintance of both Strong and Bell, and asked him to bring Bell and her marijuana. Bell testified that although she did not know it until that night, Anderson was a member of the Bloods, the Crips' rival gang.

Sometime after midnight, Anderson pulled into Strong's driveway with Johnson and Jermaine "Bucket" Powell; Johnson was sitting in the passenger seat, and Powell was in the backseat on the passenger side. All three men were wearing red, indicating that they were members of the Bloods. However, the evidence at trial established that Powell was in fact a member of another gang, the Folks. Detective James Hosty, a police detective who testified as an expert on gang-related activity, explained that "[t]ensions were particularly high at that time" between the Bloods and Crips.

When Anderson pulled into the driveway, Bell and a number of other people including the defendant were standing on Strong's porch and in her front yard. Bell went to the driver side window to talk with Anderson; the defendant and a few other people went to the passenger side. Bell testified that the defendant was talking with Johnson through the passenger window.

Sheema Wilkins, the defendant's cousin, was leaving the party with friends at about the same time that Anderson's car arrived. She testified that although a number of people were standing around the car, she could clearly see the defendant's face in the passenger-side window.

One of the people standing behind the defendant asked Powell, who had at one time been a Crip, why he was in the car with "slob ass niggas." Bell testified that the Crips used the term "slob" as a sign of disrespect toward the Bloods. She stated that after this remark was made, Johnson spit at the defendant; the defendant responded to Johnson by saying "words to the effect of fuck you, cuz."

After this exchange, Powell told Anderson that they needed to leave. Anderson turned off his dome light and began to back out of the driveway. At that point, someone opened fire on the vehicle from the outside. Johnson turned as if he was trying to get into the backseat; he was shot several times in the back. Anderson was also shot in the side. Anderson drove quickly to the hospital; when he arrived, the doctors pronounced Johnson dead. Anderson was admitted to the hospital and treated, and eventually he recovered from his wound.

After the shots were fired, a few people who had been standing on the passenger side of Anderson's car took off running down the street. Two witnesses who were in the neighborhood but not at the party testified that they saw three people running and that one of them had a ponytail; the defendant had been wearing his hair in a ponytail that night. One witness indicated that the men were running toward Lorraine Street; the defendant's house was located on that street.

When police officers arrived at Strong's house to investigate, they took a number of the people who were there to the police station for questioning, including Bell. Bell initially made a statement that she had been inside the house the entire time and had not been outside when Anderson was there or when the shots were fired. However, both Strong and Anderson indicated that someone named "Rachel" had been outside and may have witnessed the shooting. When she was pulled aside in the lobby of the police station and again asked by a detective whether she had seen the shooter, she stated that the detective could not understand "how her lifestyle was"; she then stated that the "trigger man" was "Squirrel." "Squirrel" was the defendant's nickname.

Bell was then taken back to the interview room and provided a second videotaped account of what happened, this time indicating that the defendant was the shooter. Bell stated that she knew that the defendant was the shooter "because of the gun," but she did not see the shooter's face. Bell also apologized about lying in her earlier interview.

Early that morning the police went to the defendant's home to take him into custody. The defendant told the police that he had gone out the night before but had returned home early and had gone to bed before midnight.

Anderson testified that he and the defendant had known each other since grade school and that the defendant's grandmother used to take care of both boys after school. Until the time of the incident, the defendant had been on good terms with both Anderson and Johnson; Johnson had been casually dating the defendant's sister at the time.

Johnson died as a result of five bullet wounds, one of which had penetrated his lungs and heart. Three shots had been fired through the windshield; it was the State's position that the other two shots came in through the passenger-side window, which was open about 8-1/2 inches from the top. A forensic firearm expert testified that the shots had been fired from a revolver because no shell casings were found at the scene.

The defendant's first trial culminated in a mistrial as a result of a hung jury. In this second trial, the jury returned a guilty verdict against the defendant for both criminal discharge of a firearm and felony murder. He was sentenced to life imprisonment for felony murder plus 34 months for the criminal discharge of a firearm conviction, with parole eligibility in 20 years plus 34 months.

I. Did the State commit prosecutorial misconduct by misstating facts in its closing argument?

The defendant claims that the prosecutor misstated important facts during closing argument. In particular, the defendant asserts that the prosecutor erroneously stated that two pieces of evidence against him were "uncontroverted": First, that the defendant was alone at the passenger-side window of Anderson's car next to Johnson; and second, that the defendant had a gun with him during the party. The defendant argues that both of these pieces of evidence were controverted and that the State's claim that the evidence was uncontroverted misled the jury as to the weight of the evidence against the defendant.

Standard of Review

Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006). In the second step of this two-step analysis, the appellate court considers three factors:

"(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors, unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman [v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)], have been met. [Citations omitted.]" 280 Kan. at 780, 127 P.3d 261.

Analysis

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