State v. Fleming

• Decision Date: 05 October 2012
• Docket Number: No. 106,104.,106,104.
• Citation: 286 P.3d 239
• Parties: STATE of Kansas, Appellee, v. Jermel FLEMING, Appellant.
• Court: Kansas Court of Appeals

286 P.3d 239

STATE of Kansas, Appellee,

v.Jermel FLEMING, Appellant.

No. 106,104.

Court of Appeals of Kansas.

Oct. 5, 2012.

Appeal from Douglas District Court; Sally D. Pokorny, Judge.

Jeremiah Kidwell, of Kidwell & Conkright, of Kansas City, Missouri, and Jonathan Sternberg, of Jonathan Sternberg, Attorney, P .C., of Kansas City, Missouri, for appellant.

Mitch Peterson, legal intern, Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before PIERRON, P.J., BUSER and LEBEN, JJ.

MEMORANDUM OPINION

PER CURIAM.

Jermel Fleming appeals his convictions for aggravated robbery, kidnapping, aggravated burglary, conspiracy to commit aggravated robbery, and theft. Fleming argues the trial court erred by allowing a police detective to give what he believes to be expert testimony about cell phone records, and that his convictions for aggravated robbery and theft were multiplicitous. We affirm the trial court's admission of the cell phone evidence and reverse the conviction for theft.

Fleming does not challenge the sufficiency of the evidence supporting his convictions. However, in terms of the prejudicial effect of the cell phone testimony raised in his first issue, Fleming argues that all the evidence identifying him as the ring-leader was presented by plea-accepting co-defendants who concocted a story to benefit themselves.

Around 10:30 p.m. on June 20, 2010, Joshua Beham was alone in his apartment. He heard a knock on his door and yelled “Come in.” After a second knock, Beham got up to answer the door. He looked through the peephole and saw men wearing red bandanas over their faces. They rushed the door. Beham said that a short, stocky, black “kid” punched him. The kid shoved a sawed-off shot gun in his face and told him to shut up. Beham said there were four black assailants and three of them had red bandanas over their faces.

Beham said the men ransacked the apartment taking electronics and then asked him where he was hiding the drugs. Beham said they forced him back into his bedroom where he kept a quarter ounce of marijuana in his mini-fridge. They forced Beham back into the living room where the man with the gun told Beham to empty his pockets. Beham gave him $5 or $6 and his cell phone. Beham testified the men took a television, an Xbox, a laptop computer, and his roommate's shotguns. Beham called the police after they left.

Beham testified that earlier in the day he had received a text message from Dylan Flitcraft who had been to Beham's apartment several times. Flitcraft asked Beham if he could purchase some marijuana and Beham replied that he could only get Flitcraft an eighth of an ounce. Flitcraft asked Beham if he still lived in the same apartment. Beham did not reply. Beham found it “weird, sketchy” when Flitcraft texted him two more times asking if he still lived at the same apartment.

The Lawrence Police Department interviewed four suspects allegedly involved in the burglary: Tyler Jefferson, Dejuan Franklin, Adam Taylor, and Donta Tanner. At trial, each one of the suspects testified to his participation in the burglary and that Fleming was the mastermind of crime and had held the shotgun during the incident. Each one testified to the plea deal he received in exchange for his testimony against Fleming. Each one also testified that Fleming was sending text messages to Flitcraft to make sure they had the correct address/apartment for Beham.

Flitcraft testified he had purchased marijuana from Beham for as long as he had known him. Flitcraft said that on June 20, 2010, around 8 p.m., he received a text message from Fleming asking if he knew anybody that Fleming could rob for some marijuana. Flitcraft told Fleming that Beham had marijuana and gave him a general address of “Between Tennessee and Kentucky.” Flitcraft testified that he was given immunity for his testimony at the trial.

The prosecution obtained Fleming's cell phone records and presented the testimony from the records custodian of Sprint Nextel Communications, Eric Tyrell, and the testimony of Detective M.T. Brown as to the location of the phone calls and texts made by Fleming at the time of the incidents in this case. Defense counsel objected to Detective Brown's testimony arguing it should have been considered expert testimony for which a pretrial designation was never made or the nature of Brown's expertise was never disclosed. However, a motion to admit the subpoenaed phone records had been held well over 3 months prior to trial. The trial court found that Brown was not an expert and his testimony regarding the cell phone records was nothing more than the officer drawing a map. Before the court permitted Brown to testify, the court allowed defense counsel to review the detective's PowerPoint presentation and all the accompanying records and consider them overnight.

The jury convicted Fleming as charged. The trial court sentenced him to 88 months' incarceration for aggravated robbery, and concurrent sentences of 32 months' incarceration for aggravated burglary, 59 months' incarceration for kidnapping, 32 months' incarceration for conspiracy to commit aggravated robbery, and 12 months in the county jail for theft.

Fleming appeals.

For his main argument, Fleming argues the trial court erred in allowing Detective Brown to testify about the cell phone records and should have held that the testimony was expert testimony for which Brown was never designated as an expert.

The admission of expert testimony generally lies within the district court's sound discretion, and its decision will not be overturned in the absence of an abuse of discretion. State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

The admissibility of expert opinion testimony is governed by K.S.A. 60–456(b), which provides that such testimony “is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.” Our Supreme Court has held that expert testimony is permitted when it helps the jury understand subject matter that is beyond the normal experience of the average juror. But if the normal experience and qualifications of jurors permit them to draw proper conclusions from the given facts and circumstances, expert opinions are not warranted. State v. Wells, 289 Kan. 1219, 1236, 221 P.3d 561 (2009).

Defense counsel objected that Brown was an expert and was never designated as an expert and any reports or power points he prepared were never given to the defense in advance. Defense counsel argued the testimony violated Fleming's due process and confrontation rights.

The State countered that the defense had all the phone records early in this case and Brown was doing what any other layperson could do in mapping the calls/texts and cell towers. The State pointed out that instructions were provided with the cell phone records explaining how to read them and interpret the calls. The trial court had ordered the State to turn over Brown's report and PowerPoint to the defense and gave the defense the evening to examine them and cross-examine Brown the next morning.

However, defense counsel continued to object to allowing Brown to testify at all because he contended the defense must know of all experts 90 days before trial and the defense had no opportunity to hire an expert of its own. The trial court held that Brown was not providing expert testimony and it did not take an expert to prepare his map.

Brown testified he had performed a historical review of Flitcraft's phone records concerning phones calls and texts with Fleming. Brown physically verified each of the cell phone towers in Lawrence and coverage of the towers. Brown testified that around the time of the aggravated robbery on June 20, 2010, Fleming contacted Flitcraft at 10:49 p.m. for 89 seconds from sector 1 of tower 329. A second call was at 10:55 p.m. for 103 seconds from sector 1 of tower 329. The next call came at 11:07 p.m. for 16 seconds this time from sector 2 of tower 329. Brown testified that Beham's apartment is located within sector 1 of tower 329. Defense counsel cross-examined Brown on the range of the tower's coverage, overlapping coverage, and how cell phone towers hand-off to each other when a cell phone changes location.

Our first issue to be resolved is what the State's obligation was concerning providing Brown's testimony to the defense ahead of time.

On the afternoon of the second day of trial, the State disclosed the substance of Brown's testimony. Brown had been previously listed on the State's witness list and the phone records were made available to the defense upon receipt by subpoena. Fleming claims that if this evidence is expert evidence and testimony, K.S.A.2011 Supp. 60–226(b)(6)(A)–(C) requires that a party disclose the identity of any expert witnesses at least 90 days before trial along with the subject matter on which the expert is expected to testify, the substance of facts and opinions, and a summary of the grounds for each opinion.

Generally, the civil rules of evidence apply in both criminal and civil proceedings where not addressed elsewhere. K.S.A. 60–402 states: “[T]he rules set forth in this article [60–400 et seq.] shall apply in every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced.”

Fleming argues that the failure to disclose that an officer would testify as an expert 90 days in advance of trial violated KSA 60–226(b)(6) and that the testimony shouldn't have been allowed under that s...