State v. Davis

• Decision Date: 23 October 2020
• Docket Number: No. 119,871,119,871
• Citation: 474 P.3d 722
• Parties: STATE of Kansas, Appellee, v. Alex Dee DAVIS, Appellant.
• Court: Kansas Supreme Court

474 P.3d 722

STATE of Kansas, Appellee,

v.Alex Dee DAVIS, Appellant.

No. 119,871

Supreme Court of Kansas.

Opinion filed October 23, 2020.

Kasper Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Following a string of property crimes earlier in the day, Alex Davis fled from a traffic stop and collided with another vehicle, killing the driver.A jury convicted him of first-degree felony murder, leaving the scene of an accident, felony fleeing or attempting to elude a police officer, felony and misdemeanor theft, and driving with a suspended license.He claims several trial errors and one sentencing error in this direct appeal.We affirm his convictions and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

A man covering his face with a red bandana and wearing skeleton gloves entered a Wichita donut shop's back door early on October 24, 2016.The man pointed a "rainbow colored" gun at an employee and demanded money.He left without taking anything.

Sometime between 7:40 a.m. and 12:20 p.m. that same day, someone forced their way inside a west Wichita home and took jewelry, electronics, and a gray Volkswagen Jetta.Across the street at another house other items were taken, including a high school class ring and some watches, after a forced entry.

Around noon, Wichita police officer Amber McClure saw the Volkswagen, driven by Alex Davis, run a stop sign.To McClure, this appeared to be just a regular traffic stop.She activated her body camera and turned to pull the car over.But Davis sped up, so she activated her patrol car's lights and siren in pursuit.Davis ran a red light and T-boned another vehicle's passenger side.An accident reconstruction expert testified Davis was travelling about 70 miles per hour at impact.The other vehicle's driver, James Dexter, was taken to the hospital where he died a few hours later from injuries caused by the crash.

Davis fled the Volkswagen on foot.He dropped a pink and purple gun and a black glove with a skeleton design.He had earrings, rings, necklaces, and a men's watch in his pocket when apprehended.Inside the Volkswagen, police found a glove matching the one Davis dropped, a gun magazine, electronics, and other items taken from the burgled homes.

When interviewed by detective James Bray, Davis admitted knowing he was being pulled over and said he fled because he thought he had an outstanding warrant and a suspended driver's license.He admitted driving 75 to 80 miles per hour and said he could not stop for the red light because he was going too fast.Later, while being taken to jail, he made more incriminating remarks to Officer Pat Mulloy.Davis said, "[I]t was either going to go down like this or I was going to shoot someone."He confirmed the skeleton gloves and gun were his and in his possession for several days.But he claimed he woke up at 11 a.m. at a friend's mom's apartment, where a man named Oscar gave him the Volkswagen key and offered him a gold ring and cash in exchange for pawning some property for him.

The State filed an 11-count complaint alleging crimes arising from the donut shop robbery attempt, the home intrusions, the subsequent traffic infractions, and Dexter's death.A jury acquitted Davis of the attempted donut shop robbery and two burglary counts.It convicted him of the remaining crimes.

The district court sentenced Davis to a hard 25 life sentence for the felony murder.It also sentenced him to consecutive terms totaling 86 months for the remaining convictions, except the license violation, for which it sentenced him to a concurrent six-month term.The court ordered these sentences to run consecutive to the sentences in two other cases from Sumner County and Sedgwick County.The court dismissed the second-degree murder conviction and the felony fleeing and eluding conviction in count four (based on evading capture for a felony) but stayed dismissal pending disposition on appeal.

Davis timely appeals.He raises several issues tied to his convictions, which we consolidate into six: (1) whether the felony-murder conviction must be reversed because insufficient evidence supports one of the alternative means of committing the crime's underlying felony—fleeing or attempting to elude police; (2) whether his incriminating statements were inadmissible because police ignored his invocation of the right to remain silent; (3) whether his statement that "it was either going to go down like this or I was going to shoot someone" was inadmissible since it was irrelevant and unduly prejudicial; (4) whether he should have been permitted to introduce evidence of the victim's medical treatment decisions to establish an intervening cause of death; (5) whether the prosecutor shifted the burden of proof in voir dire by asking prospective jurors to agree they would "not ... hold it against either side for something that I didn't get"; and (6) whether cumulative error denied him a fair trial.He also raises a sentencing issue over a claimed 599 days of jail credit time.

Jurisdiction is proper.K.S.A. 2019 Supp. 22-3601(b)(3), (4).

ALTERNATIVE MEANS

Davis argues the felony-murder instruction contained alternative means of committing the crime because it permitted the jury to convict him if it found he killed Dexter while committing either of two distinct forms of felony fleeing and eluding.He claims the felony-murder conviction must be reversed because insufficient evidence supported a conviction for fleeing to avoid capture for a felony.SeeState v. Cottrell , 310 Kan. 150, 157, 445 P.3d 1132(2019)("In ‘an alternative means case, ... sufficient evidence must support each of the alternative means charged to ensure that the verdict is unanimous as to guilt.’ ").

Davis advances two seemingly distinct arguments, but we combine them into one since the sufficiency challenge is only legally significant for the alternative means argument.This is because the jury convicted him of both forms of fleeing and eluding, and at sentencing the district court dismissed the count he claims lacked sufficient evidence.The only remaining practical impact on Davis is whether alternative means provided a pathway for the jury's felony-murder verdict.

To succeed on this claim, Davis must demonstrate: (1) the two felony fleeing and eluding theories were alternative means of committing felony murder; and (2) there was insufficient evidence to support one of those means.SeeCottrell , 310 Kan. at 157, 445 P.3d 1132.If he fails on either, his challenge fails.As explained, we agree with the first contention, but not the second.We hold sufficient evidence supports both alternative means alleged for committing felony murder.

Additional facts

In the felony-murder jury instruction, the court told the jury:

"In count one the defendant is charged with murder in the first degree.The defendant pleads not guilty.To establish this charge, each of the following claims must be proved:

"One, the defendant killed James Dexter.Two, the killing was done while the defendant was committing fleeing or attempting to elude an officer .Three, this act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kansas.The elements of fleeing or attempting to elude an officer are listed in instruction numbers nine and 10."(Emphasis added.)

In the fleeing and eluding instructions, the court first told the jury:

"In count three the defendant is charged with fleeing or attempting to elude a police officer.The defendant pleads not guilty.To establish this charge, each of the following claims must be proved: One, the defendant was driving a motor vehicle.Two, the defendant, as given – that should be was – the defendant was given a visual or audible signal by a police officer to bring the motor vehicle to a stop.Three, the defendant willfully failed or refused to bring the motor vehicle to a stop for or otherwise fled or attempted to elude a pursuing police vehicle.Four, the police officer's vehicle from which the signal to stop was given was appropriately marked, showing it to be ... an official police vehicle.Five, the defendant engaged in reckless driving.Six, this act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kansas.

"The term willfully means conduct that is purposeful and willful and not accidental.Reckless driving means driving a vehicle under circumstances that show a realization of the eminence [sic ] of danger to another person, or the property of another, where there is a conscious and unjustifiable disregard of that danger."

The jury instruction on the alternate fleeing and eluding count, count four, listed the same elements except element five.The language "the defendant engaged in reckless driving" was replaced with "the defendant attempted to elude capture for theft, as alleged in count seven."And on count seven, the court instructed:

"In count seven the defendant is charged with theft.The defendant pleads not guilty.To establish this charge each of the following claims must be proved: One, [L.A.] was the owner of the property.Two, the defendant obtained or exerted unauthorized control over the property.Three, the defendant intended to deprive [L.A.] permanently of the use or benefit of the property.Four, the value of the property was at least $1,500, but less than $25,000.This act occurred on or about the 24th day of October, 2016, in Sedgwick County, Kansas.A defendant acts intentionally when it is the defendant's desire or conscious objective to do the act complained about by the State."

The jury found Davis guilty of the first-degree murder charge on both the fleeing and eluding theories and on the theft alleged in count seven.

Standard of review

Davis argues the two fleeing and eluding theories presented the jury with alternative...