State v. Davis

• Decision Date: 24 January 2003
• Docket Number: No. 86,739,86,739
• Citation: 61 P.3d 701,275 Kan. 107
• Parties: STATE OF KANSAS, Appellee, v. QUINCY B. DAVIS, Appellant.
• Court: Kansas Supreme Court

275 Kan. 107

61 P.3d 701

STATE OF KANSAS, Appellee, v. QUINCY B. DAVIS, Appellant.

No. 86,739

Supreme Court of Kansas

Opinion filed January 24, 2003.

Patrick H. Dunn, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with him on the brief for appellant.

Debra S. Peterson, assistant district attorney, argued the cause, and Jeffery V. Rowe, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant appeals his convictions of premeditated first-degree murder, aggravated kidnapping, aggravated burglary, criminal possession of a firearm, and aggravated robbery. Defendant asserts (1) the trial court erred in failing to give a unanimity instruction; (2) there was insufficient evidence to support the aggravated kidnapping conviction; (3) there was prosecutorial misconduct; (4) the court erred in calculating defendant's criminal history score; and (5) the trial court failed to instruct on the lesser included offense of second-degree murder.

Sometime after 10 p.m. on January 25, 2000, Davion Johnson was fatally wounded at his home on 601 North Poplar in Wichita, Kansas. The 911 call was received at approximately 10:30 p.m. Paramedics arrived at the scene approximately 4 minutes later. Johnson's mother, Betty Johnson, and her friend, Mary Gray, were in the house when the paramedics arrived. Johnson was still alive. Johnson died at approximately 4 a.m. the following day. The cause of death was a gunshot wound to the head that perforated the brain and caused multiple skull fractures.

Police recovered a cartridge casing from a .38 caliber handgun on the living room floor of the house; a cigarette butt on the sofa; a loaded.45 caliber handgun from a dresser in the bedroom; scales, razor blades, baggies, and white powder from the kitchen; and approximately $3,000 from a dresser in the den Around 1:30 a.m., while police were still investigating, S.K.F. arrived at the house on foot and hysterical. She was wearing light clothing, even though the night was cold, and no shoes. S.K.F. told police that Quincy Davis had shot her boyfriend (Johnson) and that she knew where Davis was because he had kidnapped her and taken her to a house at 421 North Spruce where she was held until she escaped.

At approximately 5:50 a.m., police executed a search warrant on the residence at 421 North Spruce. Police discovered Davis asleep on the couch in the basement. In performing a pat-down search of Davis, five rounds of ammunition fell from a pocket of the black leather jacket he was wearing. A loaded handgun was on the floor under the couch. The gun contained four cartridges, one in the chamber and three in the magazine. The first cartridge in the magazine was backward. No identifiable fingerprints were found on the gun. Also seized were a purse, cigar box, and savings deposit register from the couch; a pair of shoes from the floor by the couch; and a cell phone from the range in the kitchen. The cell phone was later determined to be Johnson's.

At the police station, police removed a key ring containing five keys from Davis' left front pants pocket. One of the keys was to Johnson's vehicle. Police also recovered $59 in cash from Davis.

Davis was charged with premeditated first-degree murder, aggravated kidnapping, rape, aggravated criminal sodomy, aggravated burglary, criminal possession of a firearm, and attempted aggravated robbery. The information was later amended by deleting the charge of attempted aggravated robbery and adding one count of aggravated robbery.

Twenty-two-year-old S.K.F. had known Johnson and been his girlfriend since 6th grade. S.K.F. and Johnson lived together for 4 years prior to Johnson's death. They lived together at 601 North Popular for nearly 1 year. S.K.F. and Johnson had known Davis for years. S.K.F. testified that neither she nor Johnson had ever had a friendship or relationship with Davis.

S.K.F. testified that on the evening of the shooting, Johnson picked her up from work around 7 p.m. S.K.F. worked as a dancer at Pleasures nightclub and as a nonmedical aide to her aunt. They arrived at 601 North Poplar between 8 and 9 p.m. Shortly thereafter, Johnson left to obtain marijuana. While he was gone, S.K.F. test-drove her car because she had been having problems with it. After her car stalled a few blocks from the house, she called Towanda Acon, Johnson's cousin, for help. Acon arrived between 9:30 and 9:45 p.m. After pushing the car back to the house, Acon stayed for 2 to 5 minutes.

According to S.K.F., Johnson returned home between 9:45 and 10 p.m., approximately 5 to 10 minutes after Acon left. S.K.F. testified that minutes later, while she and Johnson were in the kitchen laughing and visiting, there was a knock on the front door. S.K.F. looked out the peephole and saw Quincy Davis. Johnson then looked out the peephole, cracked the door open, and began talking to Davis. S.K.F. was standing behind Johnson but was unable to hear what the two were talking about. S.K.F. thought Davis asked Johnson where he could find someone, possibly by the name of Darnell. Davis asked Johnson if he could step inside because it was cold. Johnson took a couple of steps back and allowed Davis to step inside and close the door. While the two were still talking, S.K.F. obtained a pipe cigar off the kitchen table and stood by the couch. S.K.F. dropped the cigar when she heard a loud gunshot and saw Johnson drop to the floor.

Immediately thereafter, Davis pulled items from Johnson's right front pants pocket, where Johnson kept his cell phone, car keys, and small amounts of money. Davis then turned the gun on S.K.F. and asked "where the money was." S.K.F. told Davis that she did not have any money because someone had broke into the house in early December and taken it. Davis forced S.K.F., at gunpoint, into the den where she pretended to look in a dresser. S.K.F. lied to Davis by telling him there was no money in the dresser and that the money was in the bank.

Davis forced S.K.F. to grab her purse and car keys and took her out the back door of the house. S.K.F. had observed a vehicle pull up to the house just after the shooting. Davis and S.K.F. left through the back door of the house because Davis had also observed the car pull up. Before leaving, S.K.F. noticed that Johnson was still breathing. S.K.F. was forced at gunpoint into a maroon four-door Explorer. As Davis was driving away, S.K.F. saw Betty Johnson look through the window of the house, knock on the front door, and then return to the car.

Davis drove for awhile with the gun in his hand in his lap. S.K.F. tried to convince Davis to let her go so that she could be with Johnson. Davis told S.K.F. that he would let her go once he was convinced that she would not go to the police. S.K.F. believed Davis had consumed Hennessey, an alcoholic beverage, because of a bottle that was in the vehicle.

According to S.K.F., Davis stopped the vehicle at 421 North Spruce. While parked, another vehicle pulled up behind and a female came out of the house, got into the vehicle, and left. Larry Marzett then came out of the house and got into the vehicle with Davis and S.K.F. After a short discussion, the three went in the house.

The three stayed upstairs in the house for a few minutes and then Davis made S.K.F. go downstairs to where the couches and television were located. Shortly thereafter, Marzett left the house to get cigarettes and cigars. When Marzett returned 30 to 45 minutes later, Davis went upstairs and talked to him. Another man that S.K.F. did not know, later determined to be Marzett's cousin, had returned with Marzett. A few minutes later, Marzett and his cousin left.

S.K.F. and Davis remained downstairs on the couch watching television. The gun was in Davis' pocket. At some point, Davis told S.K.F. to stand up and pull down her pants. S.K.F. testified that Davis then stuck two fingers in her vagina and one finger in her anus. Later, S.K.F. asked to use the restroom. Davis accompanied her, commenting, "You think I'm stupid."

Sometime between 1 and 2 a.m., Davis placed S.K.F.'s right hand between the palm of his hands so that if he fell asleep he could detect if she moved. When he fell asleep, S.K.F. was able to slide her hand from between Davis' hands and go upstairs. S.K.F. kicked off her shoes and grabbed a cup before going upstairs so that if she were caught by Davis she could claim that she was going for water. When S.K.F. got upstairs, she opened the door and took off running because she believed that the house security alarm would go off when she opened the door. S.K.F. ran to 601 North Poplar where she came into contact with police officers who were stationed outside the house. S.K.F.'s feet were injured by glass that she had stepped on while running.

Betty Johnson and Mary Gray arrived at 601 North Poplar to visit Betty's son and to obtain money from him between 10 and 10:30 p.m. When getting out of the car, Betty observed what she thought was a red Bronco with tinted windows driving away. The lights were on in the house, but there was no answer to her knocks on the front door and window of the den. Betty returned to the car and had begun to leave when Gray noticed the back door of the house was open. Upon entering the house, Betty discovered Johnson lying on the living room floor still breathing. Betty called 911. While checking Johnson, Betty testified that she turned him slightly to obtain his billfold from his pocket. Johnson's billfold contained between $500 and $1,000.

On the day of the shooting, Larry Marzett was staying at 421 North Spruce. Marzett grew up with and was a friend of Davis. Marzett loaned Davis his brother's Explorer that night. When Davis returned, he was accompanied by S.K.F. While Davis and S.K.F. were sitting in the vehicle in...