State v. Hill

• Decision Date: 25 October 2013
• Docket Number: No. 107,194.,107,194.
• Citation: 311 P.3d 1167
• Parties: STATE of Kansas, Appellee, v. Narvell HILL, Appellant.
• Court: Kansas Court of Appeals

311 P.3d 1167

STATE of Kansas, Appellee,

v.Narvell HILL, Appellant.

No. 107,194.

Court of Appeals of Kansas.

Oct. 25, 2013.

Appeal from Wyandotte District Court; Robert P. Burns, Judge.

Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant.

Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

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

MEMORANDUM OPINION

PER CURIAM.

A jury found Narvell Hill guilty of aggravated burglary, aggravated robbery, and kidnapping.The district court sentenced him to a controlling term of 233 months' imprisonment—59 months for kidnapping and 32 months for aggravated burglary, to run concurrent with a 233–month term for aggravated robbery.Hill appeals from his convictions and sentences.

At trial, Rosalba Garcia testified that she and Ramon Martinez were engaged and lived together with their infant son.At around 3:20 p.m. on July 3, 2010, an African–American man knocked on her door and asked for two men.He left after she told him nobody with those names was there.A few minutes later, another African–American man, Hill, knocked on her door and asked for two different men.After she told him nobody with those names was there, he pointed a gun at her.

As the armed men entered her house, Garcia ran into her kitchen and picked up her son.Hill held her at gunpoint and asked her where the money was.Meanwhile, the other man ran to the upstairs bedroom.With his gun still trained on her, Hill ordered Garcia into the living room and directed the other man to watch her.The other man did so with his gun at his side while Hill ransacked the dining room and kitchen.A third African–American man entered the house and joined Hill in his search.Garcia heard them throwing things around upstairs and downstairs.They flipped over the living room couches.The men stole a number of items, including a television, a computer, a cell phone, a camera, a screw-top water jug filled with coins, and some jewelry.

Hill kept asking Garcia about the money and threatened to shoot her if she did not tell him where it was.She told him if there was any money, it would be in the dresser in the upstairs bedroom.Hill took her up to the bedroom and had her show him the dresser.After finding no money in the dresser, he took Garcia back downstairs.

Before the men left the house, Hill told Garcia to get into the dining room closet.He closed the door and told her to get down because he was going to fire three shots into the closet.Garcia was scared and feared for her son's life.However, Hill left the house without firing any shots.Garcia stayed in the closet for about 10 minutes until she heard knocking at her front door.

Neighbors Richard Campos and Theodis Hampton testified they had seen what they considered to be suspicious activity outside Garcia's house and decided to investigate.When Garcia opened her front door, she told them she had been robbed.The police were subsequently called and began their investigation.

Garcia recounted her story to Kansas City Police OfficerJohn Diaz.The police arrested Hill after matching his fingerprints to those lifted from Garcia's house.Later, Garcia related her story to Detective Mark Bundy and picked Hill out of a photo lineup.The police also tapped Hill's jailhouse phone calls and used the information to obtain a search warrant for his residence, where they found Garcia's coin jug.

Sufficiency of the Evidence

Hill first argues the evidence was insufficient to support his kidnapping conviction because the State failed to present evidence that he took or confined Garcia “to facilitate a crime.”His specific argument is that the movement or confinement of Garcia was inherent in the nature of aggravated robbery.

When sufficiency of the evidence is challenged in a criminal case, the appellate court must consider all the evidence, viewed in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.State v. McCaslin,291 Kan. 697, 710, 245 P.3d 1030(2011).Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, this court will not reweigh the evidence.State v. Cosby,293 Kan. 121, 134, 262 P.3d 285(2011).

Hill was charged under K.S.A. 21–3420(b), which provides: “Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... (b) to facilitate flight or the commission of any crime.”The State was only required to present evidence that Hill confined Garcia with the intent to facilitate either flight or the commission of any crime.SeeState v. Haberlein,296 Kan. 195, 209, 290 P.3d 640(2012)(subsection [b] does not create alternative means of committing kidnapping).Therefore, even if Hill is right and the State failed to present evidence that he confined Garcia to facilitate a crime, his kidnapping conviction stands if the State presented evidence that he confined Garcia to facilitate flight.

Garcia testified Hill left her house immediately after confining her in the closet.This act clearly constitutes kidnapping to facilitate flight because it prevented Garcia from watching the getaway, following the intruders, or reporting the home invasion immediately.SeeState v. Maxwell,234 Kan. 393, 672 P.2d 590(1983)(defendant facilitated flight by tying robbery victims to bed while ransacking and taking items from their house);State v. Weigel,228 Kan. 194, 612 P.2d 636(1980)(defendant facilitated flight by forcing victims of bank robbery into vault and attempting to lock door);State v. Williams,226 Kan. 688, 602 P.2d 1332(1979)(defendant facilitated flight by forcing rape victim into her car and forcing her to drive him somewhere);State v. Brooks,222 Kan. 432, 565 P.2d 241(1977)(defendant facilitated flight by taking victims of store robbery to rear of store and binding them with tape).Garcia's inability to see or be seen clearly facilitated Hill's flight from the aggravated burglary and robbery.SeeBrooks,222 Kan. at 435(“Moving the victims to places where they could not see or be seen, and binding them so that they could not follow the robbers or give alarm, were actions taken to facilitate escape and avoid detection.”).

There was sufficient evidence of intent to facilitate flight to support Hill's kidnapping conviction.

Prosecutorial Misconduct

Hill next argues the State committed prosecutorial misconduct by (1) bolstering Hampton's credibility; (2) misstating the burden of proof; and (3) inflaming the passions of the jury.

Appellate courts use a two-prong analysis to review prosecutorial misconduct or error claims.First, we must determine whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence.If misconduct is found, we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.State v. Burnett,293 Kan. 840, 850, 270 P.3d 1115(2012).

Three factors are considered in the plain error prong: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.”State v. Raskie,293 Kan. 906, 914, 269 P.3d 1268(2012);seeState v. Inkelaar,293 Kan. 414, 430–31, 264 P.3d 81(2011)(misconduct is “gross and flagrant” if it was repeated or emphasized; deliberate and repeated misconduct or indifference to a court ruling constitutes “ill will”; and evidence is so “direct and overwhelming” if there is no reasonable possibility that the misconduct affected the verdict).

First, Hill claims the following statement constituted improper prosecutorial vouching:

“[The Prosecutor]: ... Officer Diaz said that Mr. Hampton told him that there was a black man running to the car with a TV.

“... Did Mr. Hampton say that today?No.What [he] said is that [he] saw ... a man carrying a blue cooler.Does that mean he was lying to Officer Diaz?No.What it means is he was probably remembering different details at different times, ...”(Emphasis added.)

The first prong of the prosecutorial misconduct analysis is met where the prosecutor offered his or her personal opinion on the credibility of a witness.State v. Stone,291 Kan. 13, 19, 237 P.3d 1229(2010).Such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.”State v. Pabst,268 Kan. 501, 510, 996 P.2d 321(2000).But attorneys are permitted to make statements that draw reasonable inferences from the evidence.Stone,291 Kan. at 19.“[W]hen a case turns on which of two conflicting stories is true,”the prosecutor may advocate for reasonable inferences that suggest one story is not believable.State v. Hart,287 Kan. 494, 505, 301 P.3d 1279(2013);State v. Scott,286 Kan. 54, 83, 183 P.3d 801(2008)(prosecutor may argue that “one version is more likely to be credible based on the evidence”).Nevertheless, the jury must be left to draw the ultimate conclusion about the credibility of witnesses.State v. Duong,292 Kan. 824, 830, 257 P.3d 309(2011).

Here, the comment that Hampton did not lie to the police was part of the prosecutor's identification of a reasonable inference to be drawn from the evidence.SeeState v. Lumley,266 Kan. 939, 959, 976 P.2d 486(1999)(prosecutor's comments must be viewed in context of the whole argument).Hill's theory of defense was that because Garcia and her neighbors knew Martinez was a drug dealer, they lied to the police about what happened on the day of the alleged home invasion.The prosecutor responded by repeatedly citing the complete lack of...