State v. Cosby
| Citation | 293 Kan. 121,262 P.3d 285 |
| Decision Date | 09 September 2011 |
| Docket Number | No. 100,839.,100,839. |
| Parties | STATE of Kansas, Appellee,v.Lafayette Damon Ester COSBY, Appellant. |
| Court | United States State Supreme Court of Kansas |
1. A challenge to the legal basis for a judge's exclusion of hearsay evidence is reviewed de novo on appeal.
2. The nontestifying defendant's question to a police detective—“Did you find the gun on him?”—was inadmissible hearsay, and the district judge did not err in excluding it when the defendant sought to admit it to show the inadequacy of the police investigation and his state of mind at the time he shot his victim to death. Due process did not demand admission, when the State introduced no competing inculpatory statements from the defendant's conversation with the detective. And the statutory hearsay exception for an expression of a declarant's state of mind did not apply, because defendant's question did not address his existing state of mind, only his state of mind 2 days before the question was asked.
3. The district judge's decision to omit instruction on the type of voluntary manslaughter known as imperfect defense of another was not error, when the evidence before the jury would not have supported a finding that defendant harbored an honest belief his victim was an aggressor threatening imminent use of unlawful force.
4. The State's evidence of premeditation was strong when eyewitnesses testified that the victim did not provoke the defendant; the defendant left the room and returned with a handgun; the defendant fired three shots into his victim's chest, with a pause between the second and third shots; the first shot was fired from farther away than the second and third shots; the defendant said “motherfucker” between shots; and the defendant stood over his victim and prayed or talked about Jesus after the shooting.
5. The prosecutor's remark in closing argument—“But ask yourself this: Have you heard any evidence that suggests that [the defendant] did not walk up to [the victim] with some purpose in mind and execute that purpose?”—when considered in the context of the entire argument and alongside the district judge's burden of proof instructions was not error.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.James R. McCabria, assistant district attorney, argued the cause, and Nicole Romine, assistant district attorney, Charles E. Branson, district attorney, and Steve Six, attorney general, were on the brief for appellee.
This is Lafayette Damon Ester Cosby's direct appeal of his of first-degree premeditated murder conviction after a second trial. He raises four issues: (1) Whether evidence of a question Cosby asked police was properly excluded as hearsay; (2) whether a lesser included offense instruction on voluntary manslaughter should have been given; (3) whether evidence of premeditation was sufficient to support Cosby's conviction; and (4) whether the prosecutor engaged in reversible misconduct.
Cosby, Bouba Sembene, and Mamadou Drame went to Kansas City, Missouri, to take part in a Senegal Independence Day celebration event. Cosby made arrangements for Aldrick Johnson to meet the men back at their Lawrence, Kansas, apartment for a get-together later that night. Cosby also invited his downstairs neighbor, Vanessa Engelbert, and her friends, Andrea “Star” Garrison and Chad Davis. Davis told Robert Martin about the party and asked Martin to attend.
When Cosby and Sembene returned about midnight, Johnson was at their apartment with his girlfriend, Brianna Moten. Drame arrived about 30 minutes later. Garrison arrived at about 2 a.m. After receiving a call from Davis, Garrison left the apartment and met Davis and Martin in the parking lot.
Martin, Davis, and Garrison eventually went to the apartment. On the way, Davis asked Martin if he was okay going to the party. Martin responded that he was and asked why Davis inquired. Davis responded: “Because people might be there that you might not get along with,” meaning Cosby in particular.
When Garrison, Davis, and Martin entered the apartment, Cosby greeted them by shaking their hands. Engelbert arrived at the apartment sometime after 2:30 a.m.
When Martin entered the apartment, Johnson felt that the mood of the party changed from happy to dark.
At some point soon after Martin arrived, he and Cosby went into a back bedroom to have a conversation. After 5 or 10 minutes had passed, Davis went to check on them and found Martin and Cosby lying on a bed, laughing and talking. Davis returned to the living room, and Martin and Cosby followed shortly thereafter.
Martin sat in a chair opposite a couch where Johnson, Moten, and Engelbert were sitting. After about 5 minutes, Martin went over to the couch and patted Johnson on the shoulder to get him to make room for him on the couch. Martin then squeezed himself in between Johnson and Engelbert. Martin spoke to Johnson about the last time he had seen him, on the day Martin went to jail for fighting with Johnson's foster sister. Johnson believed Martin blamed him for this incident. Martin brought up problems Johnson had been having with another person, and then Martin began talking about smoking marijuana.
No witness described Martin as threatening or aggressive toward anyone at the party, but Johnson was concerned about Martin's presence. Because he feared that Martin could become violent, and even before Martin sat next to him on the couch, Johnson took a knife out of his pocket and held it by his leg so that no one could see it. Johnson also tried to tell his girlfriend “to get as far away from me as possible” because he was concerned for her safety.
At some point, Martin turned away from Johnson and began talking to Davis and Garrison. During this conversation, Drame saw Cosby leave the living room and return with a handgun. Johnson recalled that Martin said something about marijuana just before he reached into his pocket for something. Moten remembered Johnson and Martin talking about marijuana, Johnson saying “roll it up,” and Martin saying “okay” just before Martin reached into his pocket.
At the moment Martin reached into his pocket, Cosby walked up with the handgun and shot Martin three times in the chest while Martin was sitting on the couch. Both Johnson and Moten recalled a pause between the first and second shots. Davis remembered Cosby saying “motherfucker” between the shots.
Immediately after the shots were fired, most of the partygoers ran out of the apartment. Sembene ran to his bedroom in the apartment and stayed there for about an hour. While there, he heard Cosby talking about Jesus.
Johnson was among those who fled the apartment, but he soon returned to remove evidence of drug use and to retrieve his backpack, which contained his own gun. When he returned to the apartment, Cosby was standing in the living room, either talking to himself or praying.
Engelbert, Moten, Garrison, and Davis all went to Engelbert's apartment, two floors below. Garrison and Moten looked out Engelbert's window and saw Cosby walking across the courtyard, away from the apartment building. Davis then had Engelbert take him home, where they met with Johnson. The group then went back to Engelbert's apartment, and Drame met them there. The group returned to Cosby's apartment upstairs to retrieve Garrison's cell phone and Moten's shoes and wallet. While they were there, they began picking up bottles and cleaning the apartment. During this time, no one saw anyone approach Martin's body.
As dawn broke, Drame contacted the police. The police did not recover a gun from Martin's body or from his coat. No witness testified at trial that Martin had a gun at the party on the night of his death. But Johnson and Moten testified about Martin's violent reputation, and Detective Mike McAtee testified about Martin's reputation for being armed.
Two days after the crime, when Cosby had been arrested, he asked Detective John Hanson, “Did you find the gun on him?” During trial, the district judge twice refused to admit Hanson's testimony about this question from Cosby.
First, in anticipation of Hanson's testimony on this subject, the State objected, citing State v. Stano, 284 Kan. 126, 159 P.3d 931 (2007). Cosby argued that the testimony should come in because it had been permitted in his first trial, in which Cosby himself testified. The district judge rejected the argument, ruling that the testimony at the first trial arose in a different context and that Stano controlled the situation in the second trial, when Cosby chose not to testify.
The issue arose a second time when Cosby sought reconsideration at the conclusion of Hanson's testimony on other matters. Cosby argued that the question he posed to Hanson was not hearsay because it was offered to prove Cosby's state of mind. He also argued that the statement was not offered to prove that there was a gun at the scene of Martin's killing, only to demonstrate that the police knew of Cosby's question and did not follow up by attempting to locate a gun or by eliciting further information about a gun from other witnesses. The State argued that Cosby wanted the testimony admitted to prove that Cosby shot Martin in defense of Johnson; and it renewed its Stano argument, because Cosby elected not to testify, making him unavailable for cross-examination. Cosby responded that there was other evidence supporting his theory that he shot Martin in defense of Johnson, e.g., Johnson's discomfort with Martin, Martin's reach into his pocket, and Martin's reputation for violence. The district judge again ruled that Hanson's testimony on Cosby's question must be excluded under Stano.
At the instructions conference, the district judge announced that he would not give an instruction on the type of voluntary manslaughter known as imperfect defense of another, because there was...
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