State v. Dupree

Decision Date08 April 2016
Docket NumberNo. 111,518.,111,518.
Citation371 P.3d 862,304 Kan. 43
Parties STATE of Kansas, Appellee, v. Nicholas L. DUPREE, Appellant.
CourtKansas Supreme Court

Kristen Patty, 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.

The opinion of the court was delivered by LUCKERT

, J.:

On the evening of December 14, 2011, in Wichita, a group of four men carried out a burglary of a home, stealing televisions among other things. In the process, one of the men murdered Markez Phillips, a young man who was in the residence. The four men were eventually identified as Reginald Dupree, Daniel Dupree, Malek Brown, and Francis Dupree.

The instant defendant, Nicholas Dupree, was also quickly linked to the crime. The State's theory at trial was that he was a fifth member of the group and, as stated by one witness, the “mastermind.” A jury accepted the State's theory and convicted Dupree of multiple crimes, including felony murder.

Dupree raises five challenges in this direct appeal, none of which requires the reversal of his convictions. His statutory speedy trial claim is foreclosed by our recent decision in State v. Brownlee, 302 Kan. 491, 354 P.3d 525 (2015)

. Dupree's Batson challenge is unpersuasive, and he failed to adequately preserve his appellate challenge to the voluntariness of an admission made during a custodial interview. Additionally, we conclude the district court did not abuse its discretion in admitting autopsy and crime scene photos. Finally, we find no cumulative error in this case. We, therefore, affirm Dupree's convictions and sentences.

Factual and Procedural Background

Just before Phillips was murdered, he was watching a movie with his girlfriend Regina Stuart while Stuart cared for her infant nephew at her mother's house. The couple heard a knock, and Phillips got up from the couch to answer the door. Stuart heard him ask who it was before two men tried to push the door open. She watched from the living room as Phillips began to fight the men. Then she heard what sounded like a firecracker and saw Phillips fall to the ground. He never got up.

Two men she had never seen before walked towards her. One pointed a black handgun at her and asked for her cell phone, which she gave him. As she pleaded for her life, they asked her where the safe was; her family did not have a safe. The men then walked Stuart at gunpoint to her mother's room, which the men ravaged, again demanding to know the location of a safe. After the men searched the house in vain for the safe, all the while threatening to kill Stuart, Stuart told them to take the televisions.

The men then forced Stuart to lie down on the living room floor next to her nephew. One of the men made a phone call for a truck so they could load the televisions. Shortly thereafter, another man came into the house and said, “You weren't supposed to kill nobody.” Stuart recognized the man as Daniel Dupree, whom she had met through her sister. Stuart's sister had recently ended a relationship with a man related to Daniel—Nicholas Dupree. The men removed three televisions from the home while Phillips lay bleeding on the floor.

Later that night, Phillips died in the hospital as a result of the .45 caliber gunshot wound

to his head.

Nicholas Dupree's name came up quickly in the investigation. Stuart initially suspected Dupree's involvement for two reasons. First, he had been repeatedly harassing her sister since their breakup. Apparently, Dupree believed the infant child was his, and he had been angry since Stuart's sister told him the child was not. Second, none of the other men Stuart saw that night had ever been to her house. Yet, they seemed to know how to best gain access and where to look for things. Dupree, unlike the men in the house on that December evening, had been in the house numerous times.

Stuart also looked at photo arrays, and she quickly identified Daniel. She was also able to identify Malek Brown as the man who shot Phillips and Reginald Dupree as the man who accompanied Brown into the house.

In the hours of the night following the crime, Stuart's sister received multiple restricted calls to her cell phone and two unrestricted calls that displayed as coming from Dupree. She answered one of the restricted calls and recognized Dupree's voice. He told her: “Just like that slob nigga just got done, you and your boyfriend about to get done.” He also texted her twice, saying, “I hope your kids aren't at home,” and, “Where are you at?” Stuart's family told the case detective about the threats. Dupree would later admit to investigators, and also testify at trial, that he made those statements.

After Dupree's arrest, detectives interviewed him. He denied any involvement in the burglary and murder, but he did admit to calling Stuart's sister multiple times that night and threatening her.

Detectives also spoke with Marjorielle Evans, Daniel's girlfriend.

After some hesitation, she told detectives what she knew, and she testified accordingly at trial. Evans lived with her kids, her mom, Daniel, Nicholas Dupree, and her brother and sister. Her room was downstairs, as was Dupree's. The day before the crime, she overheard Dupree talking to Brown about committing a burglary at the Stuart house. When Brown asked what was in the house, Dupree listed televisions and an Xbox. Evans provided investigators with the names of the five men involved in the crime, and all were eventually taken into custody.

Investigators also discovered that after hearing about Phillips' murder, Evans got into a conversation with Stuart on Facebook about the crime. Evans wrote that Dupree showed the others where to go and told them to get the televisions. She said Phillips was in the wrong place at the wrong time. She said Dupree “was the mastermind of this whole thing,” and she hoped they would catch Brown, who “had no reason to kill [Phillips].”

The jury also viewed video captured by a security camera located on a school district maintenance shed near the Stuart home. The images showed an SUV pulling up a short distance from the Stuart home and three men exiting. Reginald and Brown proceeded to the house; the other—Francis—walked up the street. The SUV, driven by Daniel, left the house, but it soon returned. Police officers located an SUV that belonged to Brown's girlfriend and matched the one on the video. Brown's girlfriend testified Brown had used her SUV the night of the murder. She also testified Evans told her, the day after Phillips' murder, that Brown had shot someone.

Notably, the jury heard that one shell casing found on the scene of the crime and one shell casing found in the backseat of the SUV were both fired from the same Hi–Point .45 caliber handgun. A bullet fragment taken from Phillips' head was also fired from that same gun.

Dupree testified at trial in his defense. He told jurors he knew nothing about the crime and had nothing to do with it. According to Dupree, he first learned about Phillips' murder when his half-sister called and told him. (She denied doing so.) Dupree said he felt bad Phillips was murdered because Phillips was his friend—and indeed they had lived together for a few months. While he admitted that he threatened Stuart's sister and called Phillips a “slob nigga” (he could not explain why he would refer to his friend in such a derogatory way), he said he made the threat (1) because Stuart's sister's boyfriend threatened him first and (2) because he was angry that he was not allowed to see the child he thought was his son. Nevertheless, for reasons Dupree could not explain, none of the calls about which he testified showed up in his phone records.

After trial, the jury found Dupree guilty on all charged counts: first-degree felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, aggravated assault, and criminal threat. The district court later sentenced Dupree to life plus 142 months, and it denied his motion for a departure. Dupree timely filed a direct appeal to this court, which has jurisdiction under K.S.A. 2015 Supp. 22–3601(b)(3)

. Additional facts will be provided as relevant to the analysis of Dupree's appellate arguments.

AnalysisIssue 1: Dupree's convictions are not reversible under the speedy trial statute.

A defendant can assert a speedy trial claim in two ways—one statutory and one constitutional. See, e.g., State v. Smallwood, 264 Kan. 69, 74–76, 955 P.2d 1209 (1998)

(analyzing a statutory speedy trial challenge differently than a constitutional challenge). Here, Dupree only presents a statutory challenge under K.S.A. 22–3402 and because he did not allege a constitutional speedy trial violation, he has abandoned the constitutional argument. See State v. Williams, 298 Kan. 1075, 1083–84, 319 P.3d 528 (2014) (issues not argued or briefed are abandoned).

Dupree's statutory argument presents a question of law subject to unlimited review. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009)

( [T]he computation of days to be assessed against the so-called speedy trial clock—requires some level of statutory interpretation and thus is reviewed de novo.”); State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007) (same).

We begin with the statutory language upon which Dupree bases his claim. Under K.S.A. 22–3402(1)


“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant .... ” (Emphasis added.)

The State bears the responsibility to ensure a defendant is afforded a speedy trial in compliance with K.S.A. 22–3402

; a defendant does not need to...

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75 cases
  • State v. Shockley
    • United States
    • Kansas Supreme Court
    • September 10, 2021
    ...for appeal. Standard of Review Shockley's statutory argument presents a question of law subject to unlimited review. State v. Dupree , 304 Kan. 43, 48, 371 P.3d 862 (2016) (quoting State v. Vaughn , 288 Kan. 140, 143, 200 P.3d 446 [2009] ) ("[T]he computation of days to be assessed against ......
  • State v. Robinson
    • United States
    • Kansas Supreme Court
    • August 11, 2017
    ...issue for appellate review, the complaining party must have lodged a timely and specific objection at trial." State v. Dupree , 304 Kan. 43, 62, 371 P.3d 862, cert. denied ––– U.S. ––––, 137 S.Ct. 310, 196 L.Ed.2d 227 (2016) ; K.S.A. 60-404 ; see Solis , 305 Kan. at 62, 378 P.3d 532 ("[T]hi......
  • Sumpter v. State
    • United States
    • U.S. District Court — District of Kansas
    • September 10, 2020
    ...period, even if the continuances were later deemed improper because petitioner had not been consulted. See id. (citing State v. Dupree , 304 Kan. 43, 371 P.3d 862 (2016) ). The Court is bound by the Kansas courts’ interpretation of the state's speedy trial statute. See Bradshaw v. Richey , ......
  • State v. James
    • United States
    • Kansas Supreme Court
    • June 28, 2019
    ...nature of the crime, are relevant even if the cause of death is not contested." ’ Hilt , 299 Kan. at 196 ; see State v. Dupree , 304 Kan. 43, 64, 371 P.3d 862 (2016) (‘As to materiality, photographs showing the jury the manner of death are material in a murder trial.’)." Love , 305 Kan. at ......
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2 books & journal articles
  • Getting to the Merits Kansas Appeals: Jurisdiction, Preservation and More
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...Rule, Black's Law Dictionary (10th ed. 2014). [96] State v. King, 288 Kan. 333, 343, 204 P.3d 585 (2009). [97] State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016); Adamson v. Bicknell, 295 Kan. 879, 894, 287 P.3d 274 (2012). [98] K.S.A. 60-404. [99] State v. Dukes, 290 Kan. 485, 488, 231 ......
  • Getting to the Merits Kansas Appeals: Jurisdiction, Preservation, and More
    • United States
    • Kansas Bar Association KBA Bar Journal No. 88-4, April 2019
    • Invalid date
    ...Rule, Black’s law Dictionary (10th ed. 2014). [96] State v. King, 288 Kan. 333, 343, 204 P.3d 585 (2009). [97] State v. Dupree, 304 Kan. 43, 62, 371 P.3d 862 (2016); Adamson v. Bicknell, 295 Kan. 879, 894, 287 P.3d 274 (2012). [98] K.S.A. 60-404. [99] State v. Dukes, 290 Kan. 485, 488, 231 ......

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