State v. Dean, 84,285.

• Decision Date: 26 October 2001
• Docket Number: No. 84,285.,84,285.
• Citation: 33 P.3d 225,272 Kan. 429
• Parties: STATE OF KANSAS, Appellee, v. DEON DEAN, Appellant.
• Court: Kansas Supreme Court

272 Kan. 429

33 P.3d 225

STATE OF KANSAS, Appellee, v. DEON DEAN, Appellant.

No. 84,285.

Supreme Court of Kansas.

Opinion filed October 26, 2001.

Craig H. Durham, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant.

Lois K. Malin, assistant county attorney, argued the cause, and Robert R. Johnson, assistant county attorney, and John P. Wheeler, Jr., county attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant appeals convictions of felony murder, attempted aggravated robbery, three counts of aggravated battery, and an aggravated weapons violation claiming (1) the district court violated his Sixth Amendment right to confrontation by refusing to allow the defendant to introduce evidence that a witness previously lied in a statement to police; (2) the prosecutor violated defendant's Fourteenth Amendment right to due process by asking defendant to comment on the credibility of the State's witnesses; and (3) the district court failed to instruct the jury it must unanimously agree as to the means or acts by which the defendant committed felony murder.

On July 26, 1998, Garden City, Kansas, police officer Troy Davis was dispatched to apartments at 1819 Comanche in Garden City for a call of shots fired. Davis observed numerous individuals standing in the parking lot and a young Hispanic male in his 20's lying on his back between some cars. The man was Jesus Miguel Terrazas, a/k/a Eddie Sanchez. Terrazas had a single gunshot wound.

The incident that resulted in the death of Terrazas began a short time prior to the shooting. The parking lot was lighted. There were two parties going on in the apartment complex parking lot. One party consisted of several Hispanic men, including Jesus Beltran, Ruben Corral, Roberto Baca, Roberto Hernandez, and Terrazas. A group of black and white males, including the defendant Deon Dean, a black male, had gathered near the apartment of Matt Jaramillo.

There are several versions of the events by various witnesses. Generally, the witnesses agree that Jaramillo, who spoke in Spanish, approached the Hispanic group. In an attempt to sell cocaine, Jaramillo produced a small quantity of cocaine. A few of the men tasted the powder. Jaramillo invited them to his apartment for more cocaine. Baca and Corral went with Jaramillo to his apartment. Shortly after they returned, Beltran and Terrazas left in Terrazas' car to pick up Terrazas' brother. Beltran was driving.

Bryan Kramer, one of the men with Dean, saw Jaramillo approach the Hispanic men and briefly speak to them. Jaramillo informed Kramer that he had been "ripped off," i.e., someone had taken drugs from him. Jaramillo told Kramer, Dean, James Elliott, and Terrell Parker that he was going to the Hispanic group to get his money. Jaramillo said, "Don't let them jump me."

On the way to the other group, Jaramillo stopped the car driven by Beltran. Jaramillo spoke with Terrazas, who was in the passenger seat. Jaramillo stated that Baca and Corral had robbed him because they did not pay him for the cocaine. Terrazas asked Jaramillo how much money was owed. Jaramillo said that Baca and Corral owed him $10.

Kramer's version of the events indicates that Terrazas attempted to give Jaramillo $10. Kramer stated that a fight broke out before Jaramillo was able to take the money, and the car sped away at a high speed. Jaramillo, Dean, Kramer, Elliott, and Parker continued to walk down the parking lot. They approached some Hispanic men who were drinking by a truck. Jaramillo spoke in Spanish to a man. A fight broke out. Elliott did not join in the fight.

Kramer stated that after Terrazas obtained a chain from the trunk of his car, Dean pulled a handgun and pointed it at Terrazas. Terrazas started running. One of the men with Jaramillo hit Terrazas and knocked him out. Kramer stated Dean pointed the gun at the Hispanic group and said, "Give me your wallet." As Kramer started to leave the scene, he saw Dean hit a man in the head with the gun. As Kramer walked away, he heard a gunshot, looked back, and observed Dean and Parker running away. Kramer testified that Elliott was in his car when the gun fired.

Kramer was charged with felony murder, conspiracy to deliver cocaine, sale of cocaine, three counts of aggravated battery, and aggravated robbery. Pursuant to a plea agreement, Kramer pled guilty to two counts of aggravated battery and robbery in exchange for testifying at Dean's trial.

Elliott, who also testified against Dean, stated that as he was walking back to the apartment, he turned and saw one of the Hispanic men (Terrazas) leaning against a truck. Elliott observed Dean lean around and fire a single shot at Terrazas. After the shot, everyone started running. Elliott testified that Dean stuffed a gun into his pants and ran toward Elliott's car. A friend, Christy Jeffrey, was in the car. Elliott jumped into the passenger seat. Dean jumped into the driver's seat and drove the car away.

Another witness, LaBronze "Ken" Garrett, was standing outside of his apartment. Garrett saw the two parties in the complex parking lot. He was not a friend of either group. Garrett stated that without provocation about 15 black men from one group "jump[ed] on" the Hispanic group.

As Garrett watched, some of the Hispanic men ran and others were on the ground "getting stomped." Some of the attackers began shouting, "[b]last him" and "[s]hoot him. Shoot that fool." Garrett observed Dean, a former acquaintance of his, with a gun in his hand. The gun fired. Garrett called 911.

After the fight, Baca's wallet, which contained a Mexican license, an address book, and approximately $250, was missing. Police found Baca's address book, a business card, and an insurance claim reporting card on the ground at the scene. The officer did not locate Baca's wallet, money, or license.

Hernandez, the half brother of Terrazas, had little recollection of the fight. He recalled being in the parking lot with his friends when a Mexican-American man (Jaramillo) and several black men approached. After Jaramillo said something about money, Hernandez was struck in the mouth, which cut his lip and left a scar. He was then knocked unconscious and awoke to find his brother lying on the ground. Corral testified that a group of black men lead by Jaramillo approached his group and began speaking in English. He recognized the English word "money." Corral observed one of the black men pull a gun, put it to Baca's head, and then Corral's head. Corral could not identify the man. Corral was hit in the back of the head, lost consciousness. He fell beneath a truck. The sound of a single gunshot made him regain consciousness. When asked who had been shot, he was told that it was Terrazas.

After the shooting, Dean, Elliott, Shasta Mullen, and Christy Jeffrey left the scene in a car. According to Elliott, Dean asked Christy if she would leave town with him. When Dean asked Elliott if he could take Elliott's car to Dodge City, Elliott refused. Dean then asked Elliott if he could leave his gun at Elliott's apartment. Elliot refused. Elliott testified that the gun had originally belonged to him, and he had sold it to Dean prior to the shooting.

Elliott's brother, Warren, testified that he recalled Dean purchasing the gun from Elliott and had observed Dean carly the gun on at least seven or eight occasions. Dean left Elliott's apartment while Elliott was out of the room. Dean left the gun on the counter. Elliot testified that when he found the gun on his kitchen counter, he put the gun behind his television, out of the reach of his 2-year-old daughter. The gun was recovered in Elliott's apartment. Dean's fingerprint was found on the clip of the gun.

An amended complaint charged Dean with premeditated murder of Terrazas and, in the alternative, felony murder committed in the commission of, attempt to commit, or flight from an inherently dangerous felony, i.e., delivery of cocaine and/or aggravated robbery and/or attempted aggravated robbery of Roberto Baca and/or Ruben Corral and/or Roberto Hernandez; aggravated battery of Roberto Baca; aggravated battery of Ruben Corral; aggravated battery of Roberto Hernandez; and aggravated weapons violation.

Dean testified at trial. Dean admitted that he was involved in the fight instigated by Jaramillo at the apartment complex. When Dean saw Terrazas approach the fight carrying chains, he ran from the scene. Dean denied any involvement in the shooting of Terrazas. Dean was convicted of felony murder, attempted aggravated robbery, aggravated battery of Roberto Baca; aggravated battery of Roberto Hernandez; aggravated battery of Ruben Corral; and aggravated weapons violation. Dean appeals.

Sixth Amendment Right to Confrontation

The trial judge refused to permit Dean to introduce evidence that Elliott, who testified he had sold the gun to Dean, had lied as to where Elliott had purchased the gun.

When reviewing a constitutional challenge to the admission of evidence, the appellate court applies the federal constitutional error rule. Under that rule, an error may not be held to be harmless unless the appellate court is willing to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Lyons, 266 Kan. 591, 598, 973 P.2d 794 (1999).

Dean made two proffers at trial regarding evidence that Elliott had previously made false statements to the police as to where Elliott had originally purchased the handgun. Elliott told police that he purchased the gun from Coyote Pawn Shop. That statement was false. Dean argued that evidence was relevant to show that Elliott was willing to tell the police a convenient story to avoid trouble. The judge ruled that evidence was not relevant.

The second proffer made by Dean...