State v. Gulley

Decision Date04 March 2022
Docket Number122,271
Citation315 Kan. 86,505 P.3d 354
Parties STATE of Kansas, Appellee, v. Emond S. GULLEY, Appellant.
CourtKansas Supreme Court

Jacob Nowak, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

The opinion of the court was delivered by Per Curiam:

A jury found Emond S. Gulley guilty of committing first-degree premeditated murder and aggravated robbery in 2018 when he was 15 years old. The court sentenced Gulley to life in prison without possibility of parole for 618 months for the murder conviction and a consecutive 61 months' imprisonment for the robbery conviction. Gulley appeals his convictions and his sentences. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 2018, around 12:30 in the morning, someone shot and killed T.C. Security camera footage from a residence and various businesses shows the shooting and the moments leading up to the shooting but does not clearly show the identity of the shooter. In this footage, two people walk together through Wichita before eventually arriving at a residence where the shooting occurs. When confronted with still images of the two people walking through Wichita, Gulley initially identified them as himself and T.C. Gulley eventually recanted and told officers he was not the person in the video. Nonetheless, the jury found Gulley guilty based on the following facts.

On March 24, 2018, Gulley was 15 years old. Around 10 or 11 in the morning, he arrived at Paige Selichnow's home in Wichita, Kansas. Sometime that afternoon or evening, three more people arrived at Selichnow's home: T.C.; Tyrek Murrell, a.k.a. Clutch; and A.S.

Around 9 p.m., T.C. and Murrell went outside Selichnow's house to meet Andrew Horton. Horton believed he was there to sell someone a "Ruger nine millimeter E9."

Rather than giving Horton money for the gun, Murrell held a firearm to Horton's head and took the 9mm firearm from him. He gave the 9mm to T.C. and the pair went back inside Selichnow's house. Selichnow would later testify that she saw T.C. with a gun inside her house showing it and "clinking" it around.

Sometime after 9 or 10 p.m., A.S. sent a message to some girls asking them to come over. When the girls arrived, T.C., Murrell, and A.S. came out to meet them. Gulley eventually told the girls Selichnow did not want any more people in her house, so the girls left.

Sometime after the girls' visit, T.C. and one of the others left Selichnow's house together and walked through Wichita to a residence at 805 S. Pershing Street. Video surveillance from various businesses and a home security camera show the two walking together. The person with T.C. is wearing a jacket with the words "NIKE SPORTSWEAR" across the back. The pair seem to walk harmoniously until they reach the house on Pershing Street. Then T.C. walks towards the house while the other person walks a few feet in a different direction. The shooter then turns around, walks up briskly behind T.C., pulls something from T.C.'s person, shoots T.C. a number of times, and runs away. T.C. manages to get up and stumble away before the video footage stops.

Jennifer Ruiz lived at 805 S. Pershing. On the night T.C. was killed, she was home with her friend Raneesha Boyd, a.k.a. Nina Washington, and her sister Ariana Flores. Boyd informed Ruiz that T.C. was coming over. Boyd then got in the shower and Ruiz went to sleep. Ruiz awoke to either arguing outside of her window or gunshots. After hearing the gunshots, Ruiz called the police and went outside to find T.C.'s body lying in the grass.

Officers arrived at the scene around 12:45 a.m. on March 25. They attempted CPR but were unable to revive T.C. From the scene, investigators recovered six 9mm bullet casings and several bullet fragments and found impact marks from projectiles.

Following various evidentiary leads, detectives went to Selichnow's house on March 26, 2018, looking for witnesses. Selichnow said there was no one else home and agreed to let them look inside. Detectives found Gulley hiding shirtless in a closet. As Gulley left the house, Selichnow put a jacket around him. Officers later identified it as the Nike jacket the shooter was wearing on the security footage.

On March 28, 2018, officers arrested Gulley and a man named Douglas Florence outside near Selichnow's house. Gulley had the 9mm Ruger in his pocket. Forensic scientists would later determine that the six cartridge cases recovered from the scene of T.C.'s murder were fired from this weapon. Florence was wearing a backpack that had the Nike jacket inside. Florence would later testify that Gulley put the windbreaker in the backpack before the two left Selichnow's house.

When detectives first interviewed Gulley, he told them he had been with T.C., Murrell, and A.S. on the night T.C. was murdered, but that the other three left Selichnow's house and T.C. called him at 12:07 to tell him he was at A.S.'s house. When detectives confronted Gulley with cell phone records and other evidence that put the four of them at Selichnow's house at 12:07 a.m., Gulley changed his story. Gulley told detectives that T.C. had called him while he was in the bathroom and told him he was going to his cousin's house and Gulley decided to walk with him. Gulley told detectives he and T.C. separated at the "C Store," which is two blocks from where the shooting occurred. Detectives showed Gulley a series of photographs from the videos that had captured his walk with T.C. Gulley identified the two people in the video as himself and T.C. He told detectives that the last image was captured immediately before he and T.C. separated. When a detective told Gulley that the image was taken right before T.C. was shot, Gulley changed his story once more. He told the detective that the people from whom the 9mm was stolen drove up to him and T.C. when they were standing outside of the residence, the two of them ran, Gulley heard gunshots, and T.C. was killed.

The State charged Gulley as a juvenile with first-degree premeditated murder and aggravated robbery. The court ordered Gulley be detained in a juvenile facility.

While Gulley was in detention awaiting further proceedings, the State initiated a second prosecution against him for acts that allegedly occurred while Gulley was detained. The State averred that on June 24, 2018, Gulley lured a corrections officer to his cell and, when she opened his door, Gulley beat her, demanded her keys, and removed her belt and radio. When the officer broke free, Gulley allegedly took her keys and unlocked the door to another juvenile's cell. For these alleged acts, the State charged Gulley as a juvenile with aggravated robbery and battery of a law enforcement officer.

The State eventually moved to prosecute Gulley as an adult in this case and the case stemming from the alleged acts in the detention center. After a hearing during which the court considered evidence from both cases, the court granted the State's motion. Gulley pleaded guilty to the charges against him for the incident at the detention facility and went to trial over the charges stemming from T.C.'s murder.

Gulley testified in his own defense at trial. This testimony differed from what he had previously told detectives. He confirmed that he, T.C., Murrell, and A.S. had been together smoking marijuana at Selichnow's house on the night T.C. was killed. He confirmed that some girls drove over to the house and left after visiting outside. Gulley testified that T.C. had a 9mm that night that T.C. and Murrell had stolen from Horton and that T.C. was keeping it in his pants when he was not waving it around. Gulley said that sometime around 11 p.m. or 12 a.m. T.C. told him he was going to leave and that when Gulley returned from the restroom, both T.C. and Murrell were gone. He testified that sometime after 12 a.m., Murrell returned to the house alone and told him that T.C. was gone. Gulley said they smoked more marijuana and fell asleep until the next morning. Gulley testified he was not the person with T.C. in the video footage. He said that he lied to detectives when he told them he was the person in the video because his mind had not been "functioning as it should" and he did not want to "snitch" on Murrell.

The jury found Gulley guilty of both charges. The district court held a joint sentencing hearing for the convictions in this case and those stemming from the incident at the detention center. The court concluded Gulley had a criminal history score of "B" based on the convictions from the incident at the jail. Gulley did not object to this score. The court then sentenced Gulley to life without possibility of parole for 618 months for the murder conviction and a consecutive 61 months' in prison for the aggravated robbery. Gulley appealed.

DISCUSSION

Instructional error

Gulley argues the district court should have offered an instruction on voluntary manslaughter-heat of passion.

This court reviews claims of jury instruction errors in a number of steps. First, it considers whether it " ‘can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal.’ " State v. Holley , 313 Kan. 249, 253, 485 P.3d 614 (2021). If review is appropriate, this court may decide whether there was error below. To do so, it determines whether the instruction would have been legally and factually appropriate. Holley , 313 Kan. at 253-54, 485 P.3d 614. This decision is subject to unlimited review. If this court finds error, it decides whether the error was harmless. If the issue was not preserved, reversal is appropriate only if the defendant shows clear error by " ‘firmly convinc[ing] [this court] the jury would have reached a different verdict had the instruction error not occurred.’ " State v....

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7 cases
  • State v. Berkstresser
    • United States
    • United States State Supreme Court of Kansas
    • December 2, 2022
    ...it was just following the authority the State provided to it. A party cannot be heard to complain when this happens. Cf. State v. Gulley , 315 Kan. 86, 91, 505 P.3d 354 (2022) (" ‘Under the invited error doctrine, a litigant may not invite error and then complain of that same error on appea......
  • Saiz v. State
    • United States
    • Court of Appeals of Kansas
    • May 6, 2022
    ...was received from Saiz and the State, our Supreme Court handed down another important decision bearing on our issues. In State v. Gulley , 315 Kan. 86, 505 P.3d 354 (2022), the court once again discussed the nature of LWOP sentences for juveniles. In doing so, the court found a 679-month se......
  • Saiz v. State
    • United States
    • Court of Appeals of Kansas
    • May 6, 2022
    ...was received from Saiz and the State, our Supreme Court handed down another important decision bearing on our issues. In State v. Gulley, 315 Kan. 86, 505 P.3d 354 (2022), the court once again discussed the nature of LWOP sentences for juveniles. In doing so, the court found a 679-month sen......
  • State v. Berkstresser
    • United States
    • United States State Supreme Court of Kansas
    • December 2, 2022
    ...was just following the authority the State 7 provided to it. A party cannot be heard to complain when this happens. Cf. State v. Gulley, 315 Kan. 86, 91, 505 P.3d 354 (2022) ("'Under the invited error doctrine, a litigant may not invite error and then complain of that same error on appeal.'......
  • Request a trial to view additional results

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