State v. Dixon
| Decision Date | 03 June 2005 |
| Docket Number | No. 89,164.,89,164. |
| Parties | STATE of Kansas, Appellee, v. Wallace L. DIXON, III, Appellant. |
| Court | Kansas Supreme Court |
Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the briefs for appellant.
Autumn L. Fox, special assistant attorney general, argued the cause, and Phill Kline, attorney general, was with her on the brief for appellee.
Wallace L. Dixon, III, appeals his convictions of two counts of felony murder, five counts of aggravated battery, two counts of burglary, and one count each of theft, criminal damage to property, aggravated assault, and criminal possession of a firearm. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) and 120 months consecutive to the life terms. This is a companion case to State v. Griffin, Case No. 89,662, ___ Kan. ___, 112 P.3d 862, 2005 WL 1308939 (2005) this day decided.
At approximately 9 a.m. on July 29, 2001, an explosion and fire destroyed a building containing five townhouse apartment units, A through E, at the Eastgate Plaza Apartments in Emporia. Dana Hudson and her infant son Gabriel, who lived in the middle apartment, C, were trapped inside by debris and flames. They died of smoke inhalation and exposure to heat. Other tenants and neighbors were injured. Tena Wright, who lived in apartment A, was injured when she had to jump from a second-floor window, and two neighbors, James Woodling and Nathan Medlen, were injured trying to help her. Stacey DePriest was upstairs in her apartment, D, when the ceiling fell on her. A neighbor, Rosalind Harris, was injured trying to assist DePriest.
The explosion and fire originated in unit B. Alicia Shaw and her young son lived in unit B. Alicia's sister, Schelese Shaw, and Schelese's son lived in Topeka with Dixon.
Several weeks before July 29, after quarreling with Dixon, Schelese removed her things from his house and went to stay with Alicia. For hours Dixon called Alicia's apartment and the sisters' cell phones and later banged on Alicia's door. He threatened to blow up Alicia's car if Schelese did not come out of the apartment. Schelese returned home with Dixon after 1 day.
At approximately 7 p.m. on July 28, Alicia and some friends drove to Topeka to get Alicia's son, who had been staying with Schelese for a few days. Schelese, Schelese's son, and Alicia's son came out of Dixon's house and got in the car with them. Schelese told her sister that she was leaving Dixon. Schelese had told Dixon that she was just going to get diapers. While the sisters were still in Topeka, Dixon began calling the sisters' cell phones. Schelese then told Dixon that she was going to Emporia to a bar called Fatty's, and he was angry. Instead of going to Emporia, the sisters left their sons with a sitter and went with their friends to a liquor store. Cell phone records showed that Dixon called Schelese's cell phone 95 times in the 15-hour period between 9:11 p.m. on July 28 and 12:12 p.m. on July 29. He called Alicia's cell phone and her apartment phone a total of 20 times during approximately the same period.
Dixon asked some friends to go with him to Emporia. Dixon drove his White Chevrolet Suburban. Rodney Hayes, Jerry Hall, and Ethan Griffin rode with him. They left Topeka for Emporia shortly after 12:20 a.m., when Griffin got off work. They went to Fatty's until it closed and then drove to an after-hours party at a house.
Later, after riding around awhile, they went to the apartment complex where Alicia lived. Dixon told his friends that he had gotten a lot of the belongings in the apartment and he wanted them back. The four men broke into the apartment. Dixon was angry, and he was barking orders to his friends. Hayes took a television and put it in the Suburban. Griffin took a jewelry box. They also took a video cassette recorder and a lamp.
After putting the belongings in the Suburban, they drove around while Dixon continued to make calls on his cell phone. Hayes complained that he wanted to go back to Topeka. Dixon slammed on the brakes, and he and Hayes jumped out of the vehicle and tried to hit and kick each other. Later, there was a second altercation between Dixon and Hayes. Dixon again slammed on the brakes, and, when he and Hayes got out of the vehicle, Dixon fired his gun at Hayes' feet until it was empty. When they got back in the Suburban, Dixon drove by the Eastgate apartments at least four or five times.
Dixon then drove to a gas station and had Griffin pump gasoline into a bucket. Griffin left the jewelry box at the station. When they left the gas station, the bucket was in the back seat between Griffin and Hall. Griffin heard Dixon say, "I'll burn it up." Hayes, Griffin, and Hall complained about the smell of the gasoline, its sloshing out of the bucket, and that they could not smoke with it in the vehicle. Dixon told Griffin to throw it out the window, and Griffin did.
After driving around some more, Hayes convinced Dixon to go see Donnie Wishon, a friend of Hall. They took the items from Alicia's apartment into Wishon's residence. Hayes and Hall stayed there and went to sleep.
Griffin went with Dixon back to Alicia's apartment. Griffin testified that after again entering the apartment, Dixon went upstairs, threw a candle, knocked over a television, and kicked a bookshelf. Back downstairs, he tore a curtain off a front room window, rifled through the kitchen cabinets, and knocked the stove onto its side. It was full daylight when Dixon and Griffin returned to Wishon's residence to wake up Hayes and Hall and urge them to hurry so they could head back to Topeka.
Peter Lobdell, a special agent, certified explosives specialist, and certified fire investigator with the federal Bureau of Alcohol, Tobacco, and Firearms, led the team that investigated the explosion and fire. He determined from the large debris field and large sections of intact walls which had been blown out that the explosion was a fuel-air explosion. The fuel was natural gas, which combined with air to support combustion. The source of the natural gas was a leak in the pipe that supplied fuel to Alicia's stove. According to Lobdell, "the supply pipe was manually manipulated," which caused "it to fail, to leak and emit gas into the apartment." He was unable to determine what ignited the fuel-air combination.
Additional facts will be developed as we consider the numerous issues raised by Dixon on appeal.
Questions posed by the jury about aggravated arson demonstrate its lack of understanding about whether the defendant had to intend to use fire or explosive to damage property or whether the defendant simply had to intend to damage property and happened to have done so by fire or explosive. The following response, given by the trial judge to one of the questions, is typical of all his responses: "In addition to the required intent to damage, Element number 1 of Instruction 19 requires that you find that the damage occurred by means of fire or explosion." He further advised the jurors to "review all of the instructions as you consider this matter." Among the other instructions was the following: The jury was unable to reach a verdict on the aggravated arson count.
Because Dixon was not convicted of aggravated arson, the State takes the position that any question about the offense is moot and not properly before the court. The defendant points out, however, that aggravated arson was a predicate offense for burglary and felony murder. Thus, Dixon contends, the jury's failing to convict him of aggravated arson ought to be examined relative to the burglary and felony murder convictions.
Dixon was charged with felony murder for the deaths of Dana and Gabriel Hudson. The jury was instructed that the State had introduced evidence on alternative underlying felonies — aggravated arson and burglary. The jury was instructed with regard to the second charge of burglary that the State was required to prove that Dixon knowingly entered a dwelling without authority with the intent to commit theft, aggravated arson, criminal damage to property, or some combination of the three. He was convicted of the second burglary.
Arson is "[k]nowingly, by means of fire or explosive: ... [d]amaging any building ... which is a dwelling in which another person has any interest without the consent of such other person." K.S.A.2004 Supp. 21-3718(a)(1)(A). Aggravated arson is arson "committed upon a building ... in which there is a human being." K.S.A. 21-3719. The jury was instructed on aggravated arson as follows in accordance with PIK Crim.3d 59.22:
"To establish this charge, each of the following claims must be proved:
1. That Mr. Dixon intentionally damaged a building or property in which another person had an interest, and that Mr. Dixon did so by means of fire or explosion;
2. That Mr. Dixon did so without the consent of Eastgate Plaza, Inc.;
3. That at the time there was a human being in the building or property;
4. That the fire or explosion resulted in a substantial risk of bodily harm; and
5. That this act occurred on or about the 29th day of July, 2001, in Lyon County, Kansas."
Dixon maintains that the correct interpretation of the statutes and pattern instruction is that an accidental fire or explosion ignited as a result of intentional property damage is not...
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... ... Again, if "all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to a lesser degree of the offense are not necessary." State v. Dixon, 279 Kan. 563, 573, 112 P.3d 883 (2005), overruled on other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Here, the evidence on Counts Two and Seven supported one of only two potential outcomes: the completed offenses occurred or they did not. The jury had the opportunity to ... ...
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... ... Anthony argues that the prosecutor "committed repeated misconduct" in three specific instances, one during opening statement and two during closing argument. We are willing to examine these instances even in the absence of defense objections at trial. See State v. Dixon, 279 Kan. 563, 581, 112 P.3d 883 (2005) ... State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004), sets out the two-step appellate analysis of prosecutorial misconduct claims. We ask first whether the complained-of conduct ... was outside the considerable latitude given a ... ...
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