State v. Harris, 79,372

• Decision Date: 11 December 1998
• Docket Number: No. 79,372,79,372
• Citation: 266 Kan. 270,970 P.2d 519
• Parties: STATE of Kansas, Appellee, v. Deandre HARRIS, Appellant.
• Court: Kansas Supreme Court

Page 519

970 P.2d 519

266 Kan. 270

STATE of Kansas, Appellee, v. Deandre HARRIS, Appellant.

No. 79,372.

Supreme Court of Kansas.

Dec. 11, 1998.

SYLLABUS BY THE COURT

1. A criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial so long as (1) the evidence, when viewed in the light most favorable to the defendant's theory, would justify a jury verdict in accord with the defendant's theory and (2) the evidence at trial does not exclude a theory of guilt on the lesser offense.

2. No party may assign as error the giving of or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection, unless the instruction is clearly erroneous. An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred, there is a real possibility the jury would have returned a different verdict.

3. The contemporaneous objection rule requires a timely and specific objection to the admission of evidence or an improper closing argument, or the objection will not be considered on appeal.

4. In determining whether there was error in failing to give an instruction, the instructions are to be considered together and read as a whole without isolating any one instruction.

5. PIK Crim.3d 52.20 should not be given unless the district court believes there is a serious question concerning the reliability of the eyewitness identification testimony.

Craig H. Durham, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.

Terra D. Morehead, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

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

This is a direct appeal by Deandre Harris of his jury conviction of premeditated first-degree murder. Harris and Code Laster were charged and tried together for the murder of Paul Moore. Their appeals were filed separately. Harris claims the trial court erred in failing to instruct the jury on lesser included offenses and eyewitness identification; that it had to find the elements of aiding and abetting beyond a reasonable doubt; that the evidence was insufficient to support the conviction; and that he was deprived of due process.

On August 23, 1996, Paul Moore died of multiple gunshot wounds. He was shot at approximately 5 p.m. in an alley behind 2938 Hiawatha in Kansas City, Kansas. The State hypothesized that Laster believed Moore had stolen his car the night before and wanted to kill Moore or have him killed in revenge.

A forensic firearms examiner testified that nine shell casings recovered from the murder scene were all 9mm and all were fired from the same gun. Five fired bullets and a bullet fragment also were recovered. The fragment yielded no information. The five fired bullets were all 9mm and all were fired from the same gun. He could neither rule out nor confirm that the shell casings and the fired bullets were from the same gun.

Seven trial witnesses, including codefendants Laster and Harris, testified that they were in the vicinity and saw the shooting or heard gunshots. Harris and Laster both denied any involvement in or prior knowledge of the shooting, and each exonerated the other of involvement.

At approximately 9:20 a.m. on August 23, 1996, a police officer found a car stripped of its tires and wheels and with a damaged steering column and a broken rear window. It was a 2-door Chevrolet Monte Carlo. A bill of sale in the glove compartment bore the name Code Laster.

Laster testified that his car had broken down the night before and that he had paid to have it towed to his mother's house at 3018 Hiawatha. Once there, he saw Moore, who lived in the 3000 block of Hiawatha and whom Laster had known all his life. Moore was a mechanic; he worked at Pete's Auto at 18th and Quindaro. Moore looked at the car, said that it needed a new starter, and told Laster to get a starter and meet him there at 8 o'clock in the morning.

Laster did not get up until approximately 10:30 the next morning, August 23. He and his cousin, Kevin Bauswell, went to an auto parts store, bought a starter, stopped for some lunch, and then went to Moore's mother's house to see if Moore was there. No one was home. They went by Pete's Auto and asked about Moore, but he was not there. Before noon, they went to Laster's mother's house where Laster learned that his car had been stolen.

Laster went to the tow lot, where his car had been taken and where he saw that the Dayton wheels were missing. He then went to see his insurance agent. He got back to his house between noon and 1 p.m. Harris was there. Laster and Harris were cousins and friends, and they spent a lot of time together. When they later left the house, they were together in Harris' car, a white over light blue 4-door General Motors car. Laster was driving, and they were going to Laster's mother's house.

An acquaintance they knew as Terrock flagged them down and asked for a ride to 18th Street. Terrock got in behind Harris, and they drove to 18th and Quindaro. Near there, they pulled into an alley because the car was overheating. When they got out of the car, Terrock took off his shirt, revealing tattoos on his arm and chest, and had a gun at his waist. Laster and Harris testified that they were not aware until then that Terrock had a gun. Terrock put his shirt on his head and went off on foot by himself.

Laster testified that he and Harris started off on foot toward Laster's mother's house. They talked to Harold Jerome Harrison. Laster asked if Harrison had seen Moore because, although he did not think Moore had stolen his car, Laster wanted to ask Moore if he had seen anyone else around it. Harris went back to his car to roll up the windows, and Laster walked on down the alley. He saw Moore behind Chris Williams' house, and Moore greeted him. As Laster was about to ask Moore about his car, Terrock ran up, pulled his gun, and started shooting. Laster turned, saw Harris at the end of the alley, and ran.

Harris testified that he returned to his car, rolled up the windows, locked the car, and then followed Laster. As he walked to the entrance of the alley behind Chris' house, he could see Chris, Moore, Laster, and some other people. He saw Terrock run up the alley from Hiawatha and begin shooting. Harris did not have a gun, and he saw no one but Terrock with a gun. He heard two to three shots and saw Laster run, and he ran too.

Harrison, who worked as a janitor at Pete's Auto, knew Laster and knew Harris, not by name but knew his face. Harrison testified that on the afternoon of August 23 he was intoxicated from drinking beer and he also had been "smoking weed." He first saw Laster on August 23 between 2 and 4 p.m. Laster arrived at Pete's Auto driving a brown over cream car with Dayton wheels. His cousin Byron and another man, whom Harrison did not know, were with Laster. Laster asked Harrison if he had seen Paul Moore, and Harrison said Moore had gone up the alley. Five to 10 minutes later, Harrison saw Laster again. The second time, Laster was in a different car, a gray 4-door. Laster was driving, and there were three other people in the car, including Harris, who was in the front passenger seat. Harrison had never seen either of the back seat passengers before. All four got out of the car, and Laster again asked Harrison if he had seen Moore. Harrison testified that he and Moore had just walked through the alley together. He told Laster that Moore had just gone to his house.

Harrison, in a statement given to police, had said that he did not see any weapons on Laster or the three passengers. At trial, he first testified that Harris had a tattoo on his right forearm and had a gun. Then he testified that Harris had neither a tattoo nor a gun; in fact, he did not even remember Harris being there. He testified that a tattooed man with a "[do] rag" had a gun. Later, Harrison heard gunshots.

Willis Williams lives at 2938 Hiawatha with his mother and his brother, Chris Williams. Moore was shot in the alley behind their house. On August 23, Willis Williams was working on a driveway for someone else who lived on his block. He heard gunshots, turned around, and saw a man standing over Moore, shooting him. The gunman was medium brown-skinned with a tattoo on the right side of his body and a shirt over the back of his head. Approximately 5 minutes earlier, he had seen two people, neither of whom was the gunman, walk past him in the alley.

Chris Williams, in the late afternoon of August 23, was installing a radio in a blue Honda for a woman named Audrey. The car was parked beside the driveway on the side of his house. Paul Moore came by and said somebody was looking for him about a car. Sometime later, two men, both looking angry, approached from the alley. One of the men was Laster. Williams did not recognize the other man, who was brown-skinned, stocky, with long Afro hair, no shirt, and a tattoo on his right arm. Harris was not there. As the two men approached, Moore asked, "What's up?" and the tattooed man began shooting at Moore with a large handgun. Williams immediately ran. Of the six to eight shots he heard, Williams saw only who fired the first shot. He did not see whether Laster had a gun.

D.P., a 13-year-old boy whose house is near the Williams' house, testified that on the morning of August 23 he heard from his bedroom somebody putting on their brakes. Looking out, D.P. saw Laster's car. He did not see who was in the car, nor did he recognize the person's voice. He testified that he knew Laster and Harris. In the afternoon, as he was walking home through the alley with his friend,...