State v. Cosby

• Decision Date: 09 November 2007
• Docket Number: No. 94,609.,94,609.
• Citation: 169 P.3d 1128
• Parties: STATE of Kansas, Appellee, v. Lafayette D.E. COSBY, Appellant.
• Court: Kansas Supreme Court

169 P.3d 1128

STATE of Kansas, Appellee, v. Lafayette D.E. COSBY, Appellant.

No. 94,609.

Supreme Court of Kansas.

November 9, 2007.

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

Ann L. Smith, of Lenexa, argued the cause, and Charles Branson, county attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

BEIER, J.:

In the early morning hours of April 4, 2004, seven individuals witnessed defendant Lafayette Cosby fatally shoot Robert Martin. The contested issue at trial was whether defendant shot Martin while attempting to defend his friend, Alrick "Tin Tin" Johnson. In this appeal from his jury conviction of premeditated first-degree murder, defendant argues that the district judge erred by admitting a statement made after defendant invoked his right to speak with an attorney and in allowing the State to inform the jury that defendant had invoked that right. He also argues that the district judge erred by permitting the State to present testimony attacking defendant's character; that the prosecutor committed reversible misconduct by suggesting to the jury that premeditation can occur instantaneously; and that cumulative errors denied him a fair trial.

Factual and Procedural Background

The day before the crime began with celebration: Defendant and his roommate, Bouba Sembene, went to Kansas City, Missouri, to take part in a Senegal Independence Day event. Defendant made arrangements to meet Johnson back at the men's apartment in Lawrence later that night to have drinks and make music. Defendant also invited his downstairs neighbor, Vanessa Engelbert, and her friends, Andrea "Star" Garrison and Chad Davis.

When defendant and Sembeane returned to the apartment from Kansas City, Johnson was already there with his girlfriend, Brianna Moten. Mamadou Drame, a third roommate, arrived later. Garrison arrived at about 1 a.m. She received a call from Davis to meet her in the parking lot; Martin was with Davis. After a brief trip to see Martin's girlfriend, they entered defendant's apartment, where defendant greeted them. Engelbert then joined the gathering.

Martin had a reputation as a "drug dealer" and a history of violence. He had been using cocaine and marijuana earlier that evening. After Martin asked to use defendant's restroom, defendant showed Martin where it was located — in the back of the apartment between two bedrooms.

Johnson expressed concern to defendant about Martin. Martin was dating Johnson's foster sister, Kim Foster. Several months before, Martin and Foster had visited Johnson's house, and Johnson had witnessed them fighting. Ultimately, Johnson had refused to help Martin, and the police eventually took Martin to jail. This was the last time Johnson had seen Martin, and Johnson was worried Martin might want to settle a score with him.

Defendant, aware of this Johnson-Martin history, went to the back of the apartment and waited so that he could talk to Martin when he came out of the restroom. When Martin came out, he said to defendant, "You got to follow me around?" Defendant tried to explain that it was awkward for Martin to show up uninvited and that he was concerned that Martin did not like Johnson. Defendant wanted to be sure any problem Martin had with Johnson would not be revisited that night, but Martin was vague in his responses, saying there are always "repercussions" for actions.

Defendant testified that this conversation took place in the hallway of the apartment, but Davis testified that, when he went to check on the men, he saw them in the back bedroom, laughing; defendant was lying on the bed, and Martin was sitting on the floor.

The men rejoined the gathering in 15 to 20 minutes. Martin sat in a chair opposite the 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 next to him. Martin then squeezed himself between Johnson and Engelbert on the couch. Johnson remembered that Martin then turned away and began talking to Davis and Garrison.

Defendant testified that he was watching Martin closely because he was still concerned about what Martin might do. He saw Martin fidgeting with his coat, and he testified that he saw a gun under the coat.

Upon seeing the gun, defendant went to a back bedroom and retrieved his own gun. He then went to the kitchen, from which he was able to watch Martin. Martin had turned toward Davis and Garrison and, defendant testified, he was manipulating the gun in his coat.

Garrison testified that Martin was using his hands as he was talking. Johnson, Engelbert, and Davis testified that they did not see Martin with a gun.

Johnson turned to say something to Moten, just as Martin turned toward Johnson; Defendant said he saw the barrel of Martin's gun sticking out from Martin's coat. Defendant came into the room and shot Martin. Martin fumbled with his coat, and defendant thought he was trying to get his gun to fire back. Defendant then shot Martin three more times.

When the shots were fired, most of the others ran outside. While running past defendant, Davis heard him say, "The mother fucker tried to kill me." Sembene ran back and hid in his room. He heard defendant telling Martin that Martin needed to accept Jesus.

Defendant heard Engelbert say she was calling the police, and he heard sirens. He stayed with Martin for 10 to 15 minutes, telling him police and an ambulance were on the way. Defendant then began to worry that Davis had called Martin's brother, and defendant did not want to be around if Martin's brother showed at the apartment. Defendant then left.

Johnson went back into the apartment to retrieve his backpack and then went to Davis' apartment. Engelbert, Moten, Garrison, and Davis went to Engelbert's apartment, two floors below, where they heard sirens. Davis then had Engelbert take him home, where they met Johnson. The group went back to Engelbert's apartment and were surprised that police were not there. Drame met them at Engelbert's, and the group went back to defendant's apartment upstairs to retrieve Garrison's cell phone and Moten's shoes. While they were there, they began picking up bottles and cleaning the apartment. Drame called police after everyone left.

Police did not recover a gun from Martin's body, from his coat, or from the scene; nor did police collect Martin's coat or test it for gun oil residue.

Defendant, meanwhile, walked around Lawrence, and, about daylight, threw his gun into a creek or pond. He eventually walked to a church in West Lawrence. After the service, he walked almost all the way to Topeka, where he was picked up by a passing motorist and dropped at the home of some friends. He stayed with those friends for a couple of hours and then walked around Topeka, until he was picked up by the Topeka police on the evening of April 5, 2005. The State's complaint, charging first-degree premeditated murder, was filed that day.

Detectives M.T. Brown, John Hanson, and Amy Jumisko of the Lawrence Police Department met with defendant in an interview room at the Topeka police station. After obtaining preliminary information, Brown gave defendant Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966). Defendant said he understood his rights. He also said he did not want to speak with the detectives and wanted to consult with a lawyer first. Brown then asked defendant where the gun was and if it was in a safe place. Defendant said that it was, and Brown did not ask any more questions. On the drive from Topeka to Lawrence, however, the defendant made comments and statements to law enforcement.

Defendant moved to suppress his statements. At the hearing on his motion, the State called Brown, who testified that when he met defendant in Topeka, he did not say the detectives were investigating a homicide. Brown said defendant was not restrained and he did not appear to be under the influence of drugs or alcohol. He also appeared to understand English and his rights. When asked whether he was willing to waive those rights and talk, defendant said he wanted to speak to a lawyer first. After defendant responded to Brown's question about the gun, Brown informed defendant that he was going to be transported to Lawrence. Defendant then volunteered: "I do want you to know this: I will say I didn't want this to happen. I will say that." Defendant declined to give a written statement at that time. This initial meeting had lasted roughly 20 minutes.

Jumisko testified that she observed, but did not participate in, the meeting between defendant and the two other detectives at the Topeka police station. She confirmed that defendant received Miranda warnings, asked for a lawyer, and then responded to Brown's question about the gun. She also testified that, during the trip to Lawrence, she and Hanson did not plan to ask any questions of defendant. However, after about 10 minutes of silence, defendant began to volunteer information and Jumisko got out a pen to record his comments. Throughout the drive, according to Jumisko, defendant was calm and polite.

According to Jumisko's notes, defendant said, "I am not a killer." Hanson responded, "But someone is dead." Defendant repeated, "I am not a killer," and then asked if police had "found the gun" on Martin. Hanson told defendant they could not discuss anything with him because he had asked for an attorney. After a short time, defendant asked, "How's [Martin's] family?" Hanson replied, "Not good."

Defendant made several more statements, punctuated by pauses, to which the police did not respond. He said, "I walked all the way to Topeka and a friend gave me the clothes and they knew the situation"; "Met a man walking on the street where I was arrested. We walked a long time and talked"; and "I...