State v. Dewberry
| Decision Date | 17 May 2013 |
| Docket Number | No. 106,701.,106,701. |
| Citation | 301 P.3d 788 |
| Parties | STATE of Kansas, Appellee, v. Willis L. DEWBERRY, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
This is Willis L. Dewberry's direct appeal of his convictions by a jury of one count of aggravated robbery, K.S.A. 21–3427, one count of kidnapping, K.S.A. 21–3420(b), and one count of attempted aggravated robbery, K.S.A. 21–3301 and K.S.A. 21–3427.
Dewberry alleges that reversible error exists for the following eight reasons: (1) There was insufficient evidence to convict him of the alternative means crimes to which he was charged; (2) the jury instructions for attempted aggravated robbery were clearly erroneous; (3) and (4) the district court erred in excluding in one instance, and admitting in another, hearsay statements; (5) by instructing the jury it could consider the eyewitness victim's “degree of certainty” in her identification; (6) it was prosecutorial misconduct to tell the jury it could use the DNA evidence the State presented “however you want to use it”; (7) the cumulative effect of numerous errors deprived him of his right to a fair trial; and (8) he was unconstitutionally given an increased sentence based on his criminal history without requiring the State to prove his criminal history before a jury beyond a reasonable doubt.
Factual Background and Trial proceedings
We will consider each of Dewberry's appellate issues, but first we set forth the factual background, procedural matters, and trial proceedings which drive this appeal.
On December 22, 2009, Officer Robert Bachman was on patrol when he noticed two black men in a black Dodge Durango parked beside a school on Pennsylvania Street in Wichita. Bachman recorded the license plate on the vehicle as 582 AMV. Bachman drove around the block and when he returned the vehicle was gone. Bachman parked his car in the spot where the black Durango had parked and noted that he was able to see a Loan Smart business located on Central and Hydraulic Street about a block to the east.
The following evening, Maria Martinez was working at the same Loan Smart when she observed a vehicle pull into the parking lot around 5:45 p.m. Moments later, Martinez saw a black man come up to the door and place his face against the glass. Martinez believed that the man was a customer who wanted to transact business before the store closed, and she pressed a button that unlocked the door and allowed the man to enter the store. Martinez testified that the man's face was uncovered when he placed his face against the glass and that when he first entered the store she was able to see the man's entire face.
After the man entered the store, he covered a portion of his face with a piece of clothing and signaled for another individual to enter the store. A second man who was armed with what Martinez described as a shotgun or a hunting gun then entered the Loan Smart. Martinez described the first man who entered the store as a black male with a dark complexion and brown eyes, between 5'2? to 5' 4? in height, between 30 to 40 years old, and weighing between 200 to 250 pounds. Martinez stated that the second man who entered the Loan Smart was a black male dressed in black with his face partially covered, but he had distinctive eyes.
After the first man who entered the store covered his face, Martinez picked up the phone and began to dial 911, but before she could finish dialing, the man jumped over the counter and grabbed her arm. This man asked Martinez where the store's safe was located while the second assailant pointed his shotgun at her. Martinez told the men that the store safe was located in the back room in one of the drawers of a filing cabinet. The first assailant retrieved approximately $150 from the filing cabinet and then asked Martinez if this was all of the money that was in the store. Martinez pointed towards the cash register and told the men that the cash register could be opened by pushing a button on the register. The first assailant walked over to the cash register, pressed the button as instructed by Martinez, and removed approximately $25 from the register.
The two men then conferred briefly and then grabbed Martinez by the wrist and told her she was going to be tied up. One of the men had some white plastic zip ties and made Martinez kneel while the second man pointed the shotgun at her. The first assailant placed the zip ties on Martinez' wrists and then moved her into the back storage room.
After Martinez was in the storage room, the first assailant used a pair of pliers to cut the cord of one of the store's phones and then left the store. Martinez was able to free her hands, locked the front door, and then used another telephone to call the police.
Officers with the Wichita Police Department responded to her call, and during the investigation, a crime scene investigator collected four zip ties as evidence. The zip ties were later sent to the Sedgwick County Forensic Science Center for DNA testing.
On January 21, 2010, Aaron Goldston went to the Loan Smart and spoke with Martinez. During his conversation with Martinez, Goldston asked whether the store had recently been robbed and if they were offering a reward. Martinez told Goldston the store had recently been robbed. The police were called, and shortly thereafter, Goldston was located and put in contact with Detective Dan Binkley.
During the interview with Binkley, Goldston told Binkley that he had been at Dewberry's house earlier that day and had spoken with Dewberry's stepson, Walter Glass. Goldston told Binkley that during the conversation with Glass, Glass told Goldston that he and Dewberry were planning to rob a Family Video store later that evening and asked for his assistance. Goldston told Binkley that Glass and Dewberry would be driving Dewberry's black Durango and that the two would be armed with a sawed-off shotgun with a strap attachment and possibly a 9mm gun. Goldston also told Binkley that Glass had admitted that he and Dewberry had previously robbed a Loan Smart. Goldston reported that Glass told him that Glass and Dewberry went to the Loan Smart armed with a shotgun, jumped over the counter, tied up the store clerk with duct tape, and took money from the store.
Law enforcement established surveillance around Dewberry's residence. The police noted Dewberry's black Durango had a license plate of 582 AMV. Dewberry's Durango was observed leaving the residence, and the police followed him to a parking lot near a Family Video store.
Several officers converged on the Durango and apprehended the driver and the sole passenger. Police identified Dewberry as the driver of the Durango and Glass as the passenger. At the time of the arrest, Glass was wearing a trench coat, a neck gaiter that could be pulled up to cover part of his face, and a stocking cap. He was armed with a shotgun that appeared to have the barrel and the stock ends sawed off concealed beneath his coat. During a search of Dewberry's black Durango, officers found a pair of binoculars on the front passenger floorboard and a pair of latex gloves on the ground right outside the front passenger door.
After Dewberry was arrested, Binkley interviewed him and asked what a reasonable person would think a person was planning on doing when that person was wearing a cloth around their neck, a trench coat, had gloves, binoculars, and a shotgun in their possession. Dewberry answered, “Probably something illegal,” but Dewberry also maintained that he never saw Glass in possession of a shotgun when they were together in the Durango.
After Dewberry and Glass were taken into custody, Detective Jason Cates went to Martinez' residence to have her look at two photo arrays. While reviewing the first photo array, Martinez quickly selected Dewberry's photograph and stated, “That's him.” Martinez circled Dewberry's photograph, and in the comments section, she wrote that While reviewing the second photo array, Martinez selected Glass' photograph and indicated that she believed that this was the other individual involved in the robbery but that she was not 100 percent sure.
The State charged Dewberry and Glass with one count of aggravated robbery, one count of kidnapping, and one count of attempted aggravated robbery. Dewberry's motion to separate the trials was sustained by the court.
Prior to trial, oral swabs were collected from Dewberry, Glass, and Martinez to facilitate DNA testing. A summary of the DNA evidence and the prosecutor's comments thereto will be set forth later as one of the appellate issues.
This matter proceeded to a week-long trial which we will highly summarize as the facts we have set forth were the basis of the prosecutor's case. Dewberry presented an alibi defense, as well as medical testimony, contending he was not physically able to perform the action shown in a video and described by Martinez' testimony.
At trial, Binkley testified he had received the tip about the Family Video robbery from Goldston as previously set forth. Binkley testified he had interrogated Dewberry and after describing all the items found in the vehicle Binkley was able to obtain Dewberry's statement as to what a reasonable person would think and Dewberry's reply, “Probably something illegal.”
But, during his cross-examination of Binkley, defense counsel sought to verify that Dewberry had denied knowing Glass was planning on robbing the Family Video and had never seen the shotgun. The State lodged a hearsay objection, but defense counsel pointed out that Binkley had already...
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