State v. George, No. 120,190

• Citation: 466 P.3d 469
• Decision Date: 26 June 2020
• Docket Number: No. 120,190
• Court: Kansas Supreme Court
• Parties: STATE of Kansas, Appellee, v. Michael Eugene GEORGE Jr., Appellant.

466 P.3d 469

STATE of Kansas, Appellee,

v.Michael Eugene GEORGE Jr., Appellant.

No. 120,190

Supreme Court of Kansas.

Opinion filed June 26, 2020.

Linda J. Lobmeyer, of Calihan Law Firm, P.A., of Garden City, was on the brief for appellant.

William C. Votypka, deputy county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Michael Eugene George Jr. appeals from five criminal convictions, including first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. George argues four instances of reversible error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During a robbery gone bad, George shot and killed Karlton Waechter. George and Waechter, along with Jeffrey Rigdon and Mariah Duran had been riding together in a four-door black truck to pick up an Xbox console which Rigdon planned to trade for some drugs. Duran drove. George was wearing jeans, a long-sleeved green shirt, and a white hoodie with "some kind of designs on it."

When the group arrived at the trailer home where the Xbox console was located, George got out of the truck to retrieve it. Instead, however, George drew and pointed a black pistol at Duran's head. Rigdon recognized the pistol as one he had seen George with before. George thrust the pistol against Duran's head through the open driver-side window and demanded Duran give him money and drugs.

Duran and Waechter attempted to comply. They placed their money on the center console, and Duran informed George she did not have any drugs. George became angry. Duran tried to calm the situation and told George he could have their money, phones, and the truck and assured George they would not call police. George struck Duran in the face with the pistol. Waechter attempted to exit the vehicle.

George pulled the gun away from Duran's head and began to thrust it back at Duran for another strike. But Duran ducked and George fired the gun three or four times. Rigdon then fled the vehicle. He saw Duran "leaning still on the steering wheel" and Waechter "leaning ... towards the center console." Rigdon ran and heard yet another gunshot. Rigdon called his father and told him "[t]hat Michael George shot some dude in a truck."

Inside the truck, Duran saw Waechter in a "slumped position" with the passenger door open. Duran fell out of the truck and lay in the middle of the street. Later, Duran told the responding officer, "They shot him, they shot him .... It was Michael George." A resident of the trailer park saw a black man run across her yard carrying a gun. The man wore black shoes, blue jeans, a "rainbow color" sweater, and a white t-shirt. The sweater was mostly "[g]reen and yellow."

Police located and apprehended George, wearing a white shirt and blue jeans, in an area due east of the trailer park. Police also recovered a white sweatshirt from the trailer park. A K-9 unit located a Hi-Point.40 caliber semi-automatic pistol with one round in the chamber and a plastic bag containing a green sweatshirt. Other physical evidence recovered from the truck included two.40 caliber shell casings and an ammunition magazine containing six live rounds of the same type recovered from the Hi-Point pistol chamber. The magazine was manufactured for and operated properly in the pistol.

Waechter's autopsy revealed three fatal gunshot wounds fired between 2 and 3 feet away. The bullets recovered from Waechter's body matched test-fired rounds from the Hi-Point, although the recovered rounds "lack[ed] sufficient individual markings" whereby the examiner "could state conclusively ... that [the Hi-Point pistol] only fired the rounds." But, testing did indicate that "a general group of guns like [the Hi-Point pistol] ... could have fired" them. The shell casings recovered from inside the truck were matched to the Hi-Point.

A jury convicted George of five counts of criminal conduct, including first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He received a controlling 791-month term and directly appeals under K.S.A. 2019 Supp. 22-3601(b)(4).

DISCUSSION

George makes four claims of reversible error. First, he complains his convictions were multiplicitous. Second, George alleges prosecutorial error. Third, he argues the trial court erred when it upheld Fierro-Acevedo's invocation of his Fifth Amendment privilege and excluded his testimony. Fourth, he claims cumulative error denied him a fair trial. Finding a single harmless error on appeal, we affirm the district court.

George's convictions are not multiplicitous.

George first claims that several of his convictions were multiplicitous and therefore violated the double jeopardy clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. He argues that three of his convictions "folded" into one another and became a single offense.

George alleges that his attempted robbery conviction merged with his attempted distribution of a controlled substance conviction because "[t]he overt act toward the commission of the aggravated robbery was his attempt to possess a controlled substance." Not stopping there, George believes "[t]he elements for the aggravate[d] assault [conviction] merge with the attempted aggravated robbery as well." He details that "[t]he elements of the aggravated assault [conviction] are [the] same as the element[s] of the aggravated robbery requiring a threat of bodily force and when armed with a dangerous weapon."

He directs us to a passage from the State's closing argument as evidence of the three charges' interconnectedness:

"Michael George was attempting to take methamphetamine from Mariah Duran with this dangerous weapon. Michael George placed this 40 caliber Hi-Point semi-automatic pistol to Mariah Duran's head to compel her compliance with his demands. It was Michael George's threats that caused the shuffling movement in the truck, which ultimately resulted in the death of Karlton Waechter, while Michael George was committing or attempting to commit an aggravated robbery."

Standard of Review

We consider multiplicity issues and statutory questions with an unlimited review. State v. Thompson , 287 Kan. 238, 243, 200 P.3d 22 (2009) ; see also State v. Hirsh , 310 Kan. 321, 338, 446 P.3d 472 (2019) ("Multiplicity challenges raise questions of law subject to unlimited appellate review. In addition, the interpretation of statutes necessary to multiplicity analysis is subject to de novo appellate review. [Citations omitted.]").

"When reviewing a statute, an appellate court first attempts to give effect to the intent of the legislature as expressed. When the language of a statute is plain and unambiguous, the court must give effect to that language, rather than determine what the law should or should not be. The court will not speculate as to legislative intent or read such a statute to add something not readily found in it." State v. Harris , 284 Kan. 560, 572, 162 P.3d 28 (2007).

Our analysis "will not resort to canons of statutory construction or consult legislative history if the language of a statute is clear and unambiguous as written." Thompson , 287 Kan. at 243-44, 200 P.3d 22.

Analysis

"[M]ultiplicity is the charging of a single offense in several counts of a complaint or information." 287 Kan. at 244, 200 P.3d 22. This practice may be constitutionally dubious because "it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights." 287 Kan. at 244, 200 P.3d 22.

In State v. Schoonover , 281 Kan. 453, 496-98, 133 P.3d 48 (2006), we enunciated a framework for determining whether convictions are multiplicitous. We ask "whether the convictions are for the same offense." 281 Kan. at 496, 133 P.3d 48. In making this inquiry, we first decide whether "the convictions arise from the same conduct." 281 Kan. at 496, 133 P.3d 48. If they do, we then decide whether "[b]y statutory definition are there two offenses or only one." 281 Kan. at 497, 133 P.3d 48. Convictions based on different statutes may be multiplicitous, but only if "the statutes upon which the convictions are based contain an identity of elements." Thompson , 287 Kan. at 244, 200 P.3d 22. Here we are confronted with three convictions arising from the same conduct but grounded in three different statutes. So we must look to the elements of each crime.

Attempted aggravated robbery and aggravated assault are not multiplicitous.

We begin by comparing attempted aggravated robbery and aggravated assault. George was convicted of aggravated assault under K.S.A. 2019 Supp. 21-5412(b)(1). That statute defines aggravated assault as:

"(a) Assault is knowingly placing another person in reasonable apprehension of immediate bodily harm;

"(b) Aggravated assault is assault, as defined in subsection (a), committed:

(1) With a deadly weapon." K.S.A. 2019 Supp. 21-5412(a), (b)(1).

George was also convicted of attempted aggravated robbery in violation of K.S.A. 2019 Supp. 21-5420(b) and K.S.A. 2019 Supp. 21-5301. K.S.A. 2019 Supp. 21-5420 states:

"(b) Aggravated robbery is robbery, as defined in subsection (a), when committed by a person who:

(1) Is armed with a dangerous weapon; or

(2) inflicts bodily harm upon any person in the course of such robbery."

And K.S.A. 2019 Supp. 21-5301(a) reads:

"(a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime."

To determine if there is an identity of elements creating multiplicitous convictions, we ask "whether each offense...