State v. Davis

• Decision Date: 08 December 2006
• Docket Number: No. 94,366.,94
• Citation: 148 P.3d 510
• Parties: STATE of Kansas, Appellee, v. Breland D. DAVIS, Appellant.
• Court: Kansas Supreme Court

148 P.3d 510

STATE of Kansas, Appellee, v. Breland D. DAVIS, Appellant.

No. 94,366.

Supreme Court of Kansas.

December 8, 2006.

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Sarah Ellen Johnson, 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 Phill Kline, attorney general, were with him on the brief for appellee.

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

Breland Davis appeals his conviction of first-degree premeditated murder, contending that the trial court committed reversible error by: (1) admitting hearsay evidence in violation of his confrontation rights; (2) refusing to give a cautionary instruction regarding accomplice testimony; (3) refusing to instruct the jury that "mere presence" at a crime scene does not necessitate a finding of guilt; and (4) committing cumulative error that requires reversal of his conviction. Davis also claims that the trial court assessed BIDS fees without first making findings regarding his ability to pay or the financial burden the fees would impose. We affirm defendant's conviction and sentence but reverse and remand on the BIDS fees question for a hearing regarding defendant's ability to pay such fees.

The defendant, Breland D. Davis, and the victim, Maurice Williams, were friends and lived close to one another. However, a few days before the murder of Williams, the defendant became upset with Williams because Williams had not stepped in when one of their other friends was "jumped" at Davis' apartment.

John Dickerson was a cousin of the defendant, and according to all the evidence at trial he was involved in the murder of Williams. On the night of the murder, John Dickerson was at the house of Latasha Kines. She testified at trial over defendant's hearsay objection that while she was engaged in sexual intercourse with Dickerson, he received a call on his cell phone. She stated that Dickerson told her the call was from his cousin, the defendant, who she overheard saying on the phone that he "had this nigger in the house and he wanted to kill him." The objection related to the hearsay statement of Dickerson: "It is my cousin Breland." After this call, Dickerson left Kines' house and returned sometime later with defendant and others.

At Dickerson's request, Kines drove him and the others to Davis' house. The defendant followed in Dickerson's vehicle. Once they all arrived at defendant's house, Kines was told to stay in her car while the others went inside. After awhile, she left her car, went up to the house, and entered into the kitchen, where she saw blood on the kitchen floor. Dickerson again told Kines to wait in her car. The others later returned to the cars, and Kines was told to pop the trunk. She did so and felt a heavy load put in the trunk of the car. The defendant told Kines to drive to Grove Park. At the park, Kines again popped the trunk, then waited in the car as defendant and one other person carried something in a blanket; Dickerson waited outside the car. After leaving Grove Park, Kines was told to stop at a dumpster, where she popped the trunk once again and stayed in the car.

Early the next morning, a man looking for aluminum scraps in a dumpster found a rug and some sheets that he thought he would salvage for his sister. When he returned home, he saw that there was blood on the rug and sheets, so he turned them over to the authorities. When the rug was shown on the evening news with a request for information, Williams' grandfather, with whom he lived, called and identified the rug as belonging to Davis. He also filed a missing person report for Williams.

A number of people testified at trial that Davis had bragged to others regarding Williams' murder. Davis' cousin, Lavelle Griffin, also testified that Davis had shown him the gun used to kill Williams, a .410 shotgun, and had explained that they put a potato over the gun to muffle the sound when Williams was shot. In addition, Griffin overheard that Williams' body was buried in Grove Park.

The victim's blood was found at the defendant's apartment and on Davis' shoelace. The victim's body was found at Grove Park, where Kines stated that Davis and the others had dumped it the night of the victim's murder. The blood on the rug and sheets found in the dumpster matched the victim's DNA.

1. Admission of Hearsay Evidence in Violation of Confrontation Rights

The defendant claims that the admission over his hearsay objection of Latasha Kines' trial testimony that Dickerson told her, "It is my cousin, Breland," violated his rights of confrontation under the United States and Kansas Constitutions. His argument rests upon State v. Bratt, 250 Kan. 264, 270, 824 P.2d 983 (1992) (citing Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 1990; Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 1980). More specifically, the defendant argues that there was no showing that the hearsay statement was sufficiently reliable, either because it was subject to a firmly rooted hearsay exception under Kansas law or that it had other particularized guarantees of trustworthiness.

The trial court admitted Kines' testimony under the hearsay exception in K.S.A. 60-460(d)(3), explaining:

"Under the grounds alleged under K.S.A. 60-460(d)(3), if the declarant is unavailable, I find that Mr. Dickerson is unavailable, as a witness, by the declarant at a time when the matter had been recently perceived by the declarant. It was almost, again, based on the purported testimony I have heard, it is almost contemporaneous with the statement being made. Mr. Dickerson's statement of what Mr. Davis had said was almost contemporaneous with that statement. While the declarant's recollection was clear, I think that would be. And was made in good faith. I have no reason to find that it wasn't made in good faith, and, again, under the circumstances shown by the purported evidence, based on statements of the attorneys, I find no incentive to . . . falsify or distort. So under (d)(3), I would allow the statement of Ms. Kines."

The above findings echo the requirements of K.S.A. 60-460(d)(3):

"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:

. . . .

"(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made . . . (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort."

There is no Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), issue in this appeal since defendant concedes on appeal that the hearsay statement admitted was not testimonial. Under Crawford, "where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law." 541 U.S. at 68, 124 S.Ct. 1354. However, Ohio v. Roberts, 448 U.S. at 65-66, 100 S.Ct. 2531, makes it plain that in dealing with the admission of hearsay testimony and the defendant's right of confrontation under the United States Constitution, it is not enough that state law regarding hearsay evidence has been satisfied, for the Sixth Amendment Confrontation Clause can operate to bar admission of evidence that would otherwise be admissible under an exception to the hearsay rule if its requirements are not met. State v. Betts, 272 Kan. 369, 383, 33 P.3d 575 (2001).

This court reviews a trial court's determination that hearsay is admissible under a statutory exception, such as K.S.A. 60-460(d)(3) here, for an abuse of discretion. "`The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 1996). Davis does not challenge the trial judge's determination that Dickerson's statement was admissible under K.S.A. 60-460(d)(3).

Davis contends that the admission of this statement violated his constitutional right to confront witnesses against him. This court's confrontation analysis is undertaken without deference to the trial court's interpretation of the law. State v. Bailey, 263 Kan. 685, 697, 952 P.2d 1289 (1998). Our review of the defendant's constitutional argument is guided by the following two-step analysis under the Confrontation Clause of the United States and Kansas Constitutions:

"First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Citation omitted. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness." State v. Bratt, 250 Kan. at 270, 824 P.2d 983 (citing Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 1990; Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 1980).

The required "indicia of reliability" cannot be established by reference to other evidence at trial, but must be garnered from the totality of the circumstances that surround the making of the statement in...