State v. Cox

• Decision Date: 08 December 1995
• Docket Number: No. 71188,71188
• Parties: STATE of Kansas, Appellee, v. Damon E. COX, Appellant.
• Court: Kansas Supreme Court

Page 603

908 P.2d 603

258 Kan. 557

STATE of Kansas, Appellee, v. Damon E. COX, Appellant.

No. 71188.

Supreme Court of Kansas.

Dec. 8, 1995.

Syllabus by the Court

1. Evidence of gang affiliation is admissible to show motive for an otherwise inexplicable act or on a res gestae basis. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.

2. The reason for the admission of expert testimony is necessity arising out of the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. Admission of expert testimony is governed by K.S.A. 60-456(b). Expert testimony can explain a defendant's actions which might otherwise appear difficult to comprehend.

3. The fact that there was evidence showing a conspiracy to commit a crime does not make expert testimony regarding gangs relevant.

4. The harmless error standard of review requires an appellate court to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result at trial. K.S.A. 60-261.

5. To preserve an unfavorable ruling on an evidentiary question before trial as an issue on appeal, a party must make a timely objection when the evidence is introduced at trial.

6. The business records exception to the hearsay rule, K.S.A. 60-460(m), does not apply to oral testimony. Hearsay evidence that is part of the res gestae must qualify under an exception to the hearsay rule to be admissible. A proper hearsay objection is not cured by applying the res gestae label.

7. Interpretation of a statute is a question of law. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is 8. The language in K.S.A.1993 Supp. 21-4716(b)(2)(B) of the Kansas Sentencing Guidelines Act focuses the sentencing court's attention, when considering the imposition of a departure sentence, on the defendant's own individual conduct during the commission of the offense.

plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.

9. Aider and abettor liability alone is not to be used as the basis for a sentence departure.

10. A killing resulting in a conviction of felony murder, under the facts in this case, may not be used as the basis for an upward departure under K.S.A.1993 Supp. 21-4716(b)(2)(B) for a conviction of conspiracy to commit robbery.

11. K.S.A.1993 Supp. 21-4716(b)(2)(B), which authorizes a departure sentence, requires conduct of a defendant "in a manner not normally present in that offense," i.e., conduct going beyond what is minimally needed to satisfy the elements of the offense, to justify an upward departure.

12. The record is reviewed and it is held that under the facts of this case, the trial court's factual findings neither are supported by evidence in the record nor establish substantial and compelling reasons for an upward sentence departure. K.S.A.1993 Supp. 21-4721.

Wendy L. Rhyne Slayton, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with her on the brief, for appellant.

Allen A. Ternent, County Attorney, argued the cause, and Patrick E. Henderson, Special Prosecutor, and Carla J. Stovall, Attorney General, were on the brief, for appellee.

SIX, Justice:

This case presents first impression sentencing issues under the Kansas Sentencing Guidelines Act (KSGA), K.S.A.1993 Supp. 21-4701 et seq. Specifically, what should be the focus of the trial court in considering the imposition of an upward sentence departure for aggravated robbery and conspiracy to commit robbery upon a defendant also convicted of felony murder as an aider and abettor? See K.S.A.1993 Supp. 21-4716(b)(2)(B). Should only the defendant's individual conduct be considered for sentencing departure purposes or may the trial court look to aider and abettor liability? May a felony-murder conviction provide the basis for an upward sentence departure for conspiracy to commit robbery?

Damon E. Cox appeals his jury trial convictions of felony murder, K.S.A.1993 Supp. 21-3401(b), aggravated robbery, K.S.A.1993 Supp. 21-3427, and conspiracy to commit robbery, K.S.A.1993 Supp. 21-3302 and K.S.A.1993 Supp. 21-3426, arising from the carjacking and shooting death of Marcus Smith. Cox was sentenced to life for the felony murder. The trial court granted an upward departure on the other two offenses. Cox asserts sentencing error in (a) granting upward departures and (b) imposing an excessive total imprisonment term.

Cox raises numerous assignments of error besides the sentencing issues. He contends that the trial court: (1) erroneously allowed the State to introduce gang evidence and gave an erroneous gang evidence instruction; (2) erred in admitting a codefendant's hearsay statement, contrary to the teaching of Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968); (3) failed to remove four venirepersons for cause; and (4) erred in admitting oral hearsay evidence that the vehicles used by the perpetrators were stolen.

Our jurisdiction is under K.S.A.1993 Supp. 22-3601(b)(1) (off-grid crime conviction).

We find no reversible error on issues (1) through (4) and affirm the convictions. On

the sentencing issues, we hold that K.S.A.1993 Supp. 21-4716(b)(2)(B) requires that only the defendant's individual conduct during the commission of the current offense be reviewed when considering the imposition of a departure sentence. Consequently, we vacate the sentence for aggravated robbery. We also hold that a killing resulting in a conviction of felony murder may not be used, under the facts of this case, as the basis for an upward sentence departure for a conviction of conspiracy to commit robbery. We also vacate the sentence of conspiracy to commit robbery. We affirm the felony-murder sentence and remand for resentencing on the other convictions.

FACTS

On July 30, 1993, five teenagers, including Cox, caravanned to Atchison from Kansas City, Missouri, in three separate vehicles. Michael Hayes, who went by the nickname "Kilo," drove alone. The other teenagers were paired in two vehicles.

While in Atchison, the group, which included Stefan Wheeler, Jared Owens, Carrie Vincent, Kilo, and Cox, stopped 24-year-old Marcus Smith, who was driving a Honda with distinctive oversized tires. One member of the group knew Smith and talked with him briefly. Kilo then told some friends that they were going to "gank" Smith. The group's first encounter with Smith ended peacefully.

Later that afternoon, the group saw Smith again and surrounded his car. Kilo retrieved a gun from the glove compartment of the car Cox was driving and put the gun to Smith's head, ordering Smith out of his car. Smith then laid down on his stomach. Kilo told Wheeler in an "evil-sounding" voice to drive Smith's car. Wheeler jumped into Smith's car and started driving away. Vincent also drove away. Gunshots rang out. Marcus Smith was left dead, lying in the middle of the street, with two gunshot wounds to his back and one to the back of his head.

Wheeler, the only defendant who testified, understood the purpose of the trip to Atchison was to look for girls. Wheeler had known Kilo approximately 2 months, having seen him on occasions when Wheeler visited Cox, his cousin. Wheeler and Owens had lived in the same housing complex 8 years earlier. Wheeler first met Vincent the day before the killing. Wheeler, Owens, and Cox had been driving around all night July 29. Cox wanted to see Kilo. Late that night, they drove to the place where Kilo was staying. Vincent joined them there about 4 to 5 a.m. on July 30. Later in the morning of the 30th, the group drove together to Atchison. Wheeler testified he had obtained the two-door Blazer the night before for $10. Wheeler testified he did not realize that the Blazer was stolen until the group stopped in Leavenworth on the way to Atchison.

A pathologist testified that the wound to Smith's head was fatal. The "tattooing" from gunpowder around the wound showed the gun was fired within inches of the victim's head.

At the time the group's three vehicles were recovered, the police checked the vehicles' registration and ownership with the Department of Motor Vehicles. The check revealed that the vehicles had been stolen from Kansas City, Missouri, late on July 29, 1993, or early in the morning of July 30, 1993.

Detective Wilson wrote up a voluntary statement from Vincent, attempting to use Vincent's words. Vincent confirmed the contents and signed the statement. Vincent gave another voluntary statement to Wilson, admitting that she saw Kilo take the gun out of the glove compartment of the Jeep and use it to shoot Smith twice in the back. She admitted driving away from the scene in the black Blazer, hearing more shots as she headed toward Leavenworth. Detective Wilson also read Vincent's second statement in redacted form at the trial.

Cox, following his arrest, gave a voluntary statement to Detective Wilson. At trial, Wilson read this statement to the jury in redacted form.

Wilson testified that during his interview with Cox, Cox told him that he belonged to rap music groups named Dark Side Posse, Scandalous City Mafia, and Down By Law.

Four of the defendants--Cox, Wheeler, Owens, and Vincent--were tried jointly as

aiders and abettors on the...