State v. Dupree
| Citation | 373 P.3d 811,304 Kan. 377 |
| Decision Date | 29 April 2016 |
| Docket Number | No. 110,311.,110,311. |
| Parties | STATE of Kansas, Appellee, v. Reginald O. DUPREE, Appellant. |
| Court | United States State Supreme Court of Kansas |
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Reginald Dupree appeals his convictions for felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. On appeal, Dupree raises a total of eight arguments, which can be generally categorized as follows: two charging information issues, a sufficiency of the evidence challenge, three jury instruction issues, a witness sequestration issue, and a cumulative error argument. For the reasons set forth below, we affirm Dupree's convictions.
On the evening of December 14, 2011, two intruders pushed their way into a Wichita home (the “Locust Street home”). The homeowner's 19–year–old daughter, Regina Stuart, was home at the time with her boyfriend, Markez Phillips, and her 5–month–old nephew. Someone knocked on the side door, and when Phillips went to answer there was a struggle. As Phillips tried to close the door on the intruders, one of them shot him in the face. Two men then entered and forced Stuart to accompany them while they went throughout the house looking for valuables; the two men, plus another intruder, ultimately left with several televisions.
Investigators soon linked five men to the crime. The State charged Dupree with seven criminal counts: first-degree felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. At trial, Dupree did not deny that he was involved in the crimes and was one of the two initial intruders; nor, in asserting his arguments on appeal, does he deny his involvement. Instead, he took the stand in his own defense and explained he was an unwilling or unaware participant and never intended to rob or shoot anybody.
Given Dupree's admission to being present when the crimes occurred, we need not discuss many of the evidentiary details heard by the jury in this lengthy trial. Instead, we will confine ourselves to the essential facts necessary to understanding his issues on appeal.
Many of these essential facts stem from Stuart's testimony. Although she did not know the two men who first entered her home, she later identified them as Dupree and Malek Brown. She told the jury the men entered the room where she had been watching television; she described them as rounding the corner into the room at the exact same time. One man, Brown, held a black handgun. Stuart testified both men asked her for her cell phone, wallet, and money. She told them she only had her phone, which she gave to them. Brown then put the gun to the back of her head, and both men forced her to move room to room while asking her about the location of a safe. She repeatedly told Dupree and Brown there was no safe, but both said she was lying and threatened to kill her. Eventually she told the men to just take the televisions. She heard Brown make a phone call and ask someone to pull up and help him load the televisions.
After Brown made the phone call, Dupree told her to sit in a chair, but Brown made her lie face-down on the floor next to her nephew. At this point a third person, whom Stuart recognized as Daniel Dupree, entered the house. Daniel seemed shocked to see Phillips on the ground and asked Dupree what they were doing. Daniel told the men they needed to leave and were not supposed to have killed anybody. The men then took televisions out of the house.
Stuart testified it did not seem Brown forced Dupree to do anything, and she never heard Dupree say anything to this effect. She never saw Brown point a gun at Dupree or tell him to take valuables from the house. Although Brown had the gun the entire time and did most of the talking, Dupree pushed her through the house and also threatened to kill her. The men separated at one point when Dupree was getting the living room television and Brown was in the back of the house; Stuart testified Dupree could have left at this point because he was not in danger from Brown. He did not do so, and it did not appear to Stuart that he wanted to.
The State presented other evidence implicating Dupree and the other men in the crimes. Stuart's grandmother, along with another of Stuart's nephews, encountered the men as they were leaving the Locust Street home, and one of the men pointed a gun at them. Others testified about their observations of and conversations with Dupree and his companions both before and after the crimes. In general, these witnesses did not observe anything indicating Dupree was ill on the day of the shooting or suggesting he had been coerced to participate. In addition, video from a nearby security camera corroborated the testimony of Stuart, her grandmother, and Dupree about the incident: a Jeep drove up to the Locust Street home, two occupants got out and moved toward the home, and the Jeep returned after a few minutes and backed up the driveway so the men could load the televisions.
The defense presented only one witness: Dupree. Dupree testified that the day of the shooting he felt like he was coming down with something—his nose was running, he had an itchy throat and the chills, and he was tired. As the day went on, he felt worse and worse. During the afternoon or evening, Dupree asked for a ride to get some medicine. Dupree, Francis Dupree, and Daniel Dupree all got into a Jeep driven by Brown. Dupree testified that Brown seemed upset, possibly intoxicated or high, and did not seem like himself. Brown announced he had to pick something up first and pulled into a neighborhood. Brown circled the block a few times before pulling in front of a house. He asked the passengers to help him get some stuff. But when they all got out, Brown said, “I don't think this is the house.” So the men all got back in the vehicle and left.
According to Dupree's testimony, after driving around for a bit longer, Brown decided the house they went to was the right one after all. He drove back to the house and parked, at which time Dupree told Brown he felt poorly and his body was aching. Brown replied, “Come with me.” They walked up to the house, and Brown knocked at the side door. Dupree then said, He turned to walk away. As soon as he did, he heard the door open. Brown said something, and the man inside the house replied, “I said I was going to beat your ass if I see you again.” Before Dupree got halfway down the driveway he heard a pop.
Dupree testified he was scared and jogged back to the doorway to see what had happened. He saw Phillips on the ground and Brown with a gun in his hand. He asked Brown what he was doing, but Brown did not reply and just waved the gun at him. Brown's attorney asked whether Brown pointed the gun at him, and Dupree replied, “You can say that.” Dupree hesitated at the threshold, but Brown waved the gun again and said, “Come on.” When Dupree entered the Locust Street home he saw Stuart standing in the living room. Brown took her phone and then asked about a safe and some money. Brown pointed the gun at Stuart's back and made her lead him around the house. Dupree stayed close because he did not know what was going on.
Dupree testified that after Brown called for help loading the televisions, Brown told Dupree to stop standing around and help. Dupree complied because he was shocked and did not want anything else to go wrong. On his way out, he saw Daniel enter the house and heard him tell Brown he was not supposed to have shot anybody. As they were driving away, Daniel kept yelling at Brown for shooting someone.
On cross-examination, Dupree explained he did not leave after hearing a gunshot and seeing Phillips on the ground because he was afraid for his life. Although Brown did not threaten him, he waved his gun at him. Dupree denied ever speaking to Stuart at any time while in the Locust Street house and also denied pushing her around. According to Dupree, only Brown ordered Stuart around and forced her through the house. Dupree also admitted he had his phone and could have called the police but did not. And on redirect, Dupree stated he did not intend to rob anybody or see anybody shot.
The jury found Dupree guilty on all seven counts. After denying Dupree's posttrial motions for a new trial and judgment of acquittal, the district court sentenced him to a total sentence of life imprisonment, with 20 years' minimum, plus 122 months. Dupree now appeals from his convictions. We have jurisdiction over his appeal pursuant to K.S.A. 2015 Supp. 22–3601(b)(3)
().
Dupree raises eight arguments on appeal, and, as we briefly mentioned above, they can be categorized as arguments relating to deficiencies in the charging information, sufficiency of the evidence, the jury instructions, witness sequestration, and cumulative error. We will address his claims in that order.
Dupree contends the State's failure to charge him specifically with aiding and abetting aggravated assault and aggravated child endangerment rendered the charging information insufficient, such that it never conferred subject matter jurisdiction on the district court. He argues there was no evidence he committed these offenses as a principal,...
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