State v. Hooker, 82,686.

• Decision Date: 20 April 2001
• Docket Number: No. 82,686.,82,686.
• Citation: 21 P.3d 964,271 Kan. 52
• Parties: STATE OF KANSAS, Appellee, v. TERRY LEE HOOKER, JR., Appellant.
• Court: Kansas Supreme Court

271 Kan. 52

21 P.3d 964

STATE OF KANSAS, Appellee, v. TERRY LEE HOOKER, JR., Appellant.

No. 82,686.

Supreme Court of Kansas.

Opinion filed April 20, 2001.

Debra J. Wilson, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief 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

SIX, J.:

Terry Lee Hooker, Jr., appeals his convictions for first-degree felony murder, aggravated burglary, and criminal possession of a firearm. K.S.A. 21-3401; K.S.A. 21-3716; K.S.A. 2000 Supp. 21-4204.

The issues for review include whether the district court erred by: (1) failing to instruct the jury regarding unanimous verdicts, (2) denying Hooker's motion for arrest of judgment, and (3) excluding evidence that two other people had threatened to harm the victim. We also review Hooker's claim of prosecutorial misconduct during closing arguments.

Our jurisdiction is under K.S.A. 22-3601(b)(1) (a conviction resulting in a life sentence receives automatic review by this court).

Finding no reversible error, we affirm.

FACTS

Hooker was charged with aggravated burglary, criminal possession of a firearm, and the first-degree felony murder of Daron "Bootsie" Lane. In Hooker's first trial the jury could not reach a verdict. The district court declared a mistrial. On June 22, 1998, Hooker was again brought to trial and was found guilty of all three charges.

Lane was killed after two men forced their way into the apartment he shared with his girlfriend, Chillena Kane, and her sister, Oletha Kane. One man, later identified as Terry L. Hooker, Jr., the defendant, asked for "the money."

In September 1997, Hooker lived at Crestwood Apartments with his girlfriend, Kendra Cooks, and her sister LaTisha Bell. According to Brandon Heard, LaTisha's boyfriend, Hooker was at the apartment on the evening of September 23. Heard testified that he went by the apartment around 6:30 p.m. on September 23. He left for a choir rehearsal. After finding that rehearsal had been canceled, he returned around 7:30 or 8 p.m. Heard stayed until about 11:45 p.m. He testified Hooker was at the apartment the whole evening. When Heard left, Hooker was in his room, wearing his "sleep clothes" and writing raps.

Heard saw Hooker's picture on the television news after Hooker had been arrested in connection with Lane's death. Heard called the TIPS hotline because he did not think Hooker could have killed Lane. Kendra Cooks also testified that Hooker was at the apartment on the night of September 23. Hooker left around 6 p.m. to take LaTisha Bell to her grandfather's house and returned at about 7 p.m. Kendra said Hooker stayed at the apartment the rest of the night. She also told the same story to the police.

Hooker testified that he spent the night in the apartment, except for the 15 or 20 minutes he was gone on the trip to Bell's grandfather's house. Hooker also said that although he knew Lane from high school, he had not seen him since 1992. Hooker did not know where Lane lived, nor did he know Chillena or Oletha Kane.

Lane, Chillena, Oletha, and their small children lived in a townhouse. By midnight September 23, 1997, Oletha was upstairs asleep. Lane and Chillena were lying on the couch. A few minutes after Chillena turned off the lights and the television, someone knocked on the front door. Chillena asked who it was and cracked open the door. The man, whom Chillena did not recognize, told her he was "D" and asked if her sister "Lee" (Oletha) was there. Chillena later identified the man as Hooker. Chillena turned on some lights as she went upstairs to wake Oletha. Oletha suggested that Chillena tell the man that he had the wrong apartment.

Chillena opened the door a crack and told the man, "She don't know you." When she tried to shut the door, he said, "Hold up, hold up" and pushed the door in. Chillena jumped back, and a man with a mask across his nose and mouth entered behind the first man. Hooker, identified as the man without the mask, asked, "Where's the money?"

Chillena screamed for Lane to get up. He had been holding Chillena's daughter. He threw the child under the coffee table. The intruders started shooting. Chillena testified that Lane and Hooker struggled. As Lane fell on Hooker, Hooker shot Lane in the back. He pushed Lane aside and got up. Oletha came downstairs, screaming. The masked man was shooting and backing out the front door. Oletha shut him out. Oletha testified that Hooker asked her, "Where's the money?" Both Chillena and Oletha said there was no money. Then, the man ran out of the apartment. Oletha slammed the door, and Chillena called 911. Lane was shot five times, three of the bullets going all the way through his torso. The police found four .45 caliber spent cartridges in the apartment. The cartridges were fired from the same gun. The police also found one 9-mm Luger shell casing that had been fired from a different gun. About a month later, apartment maintenance found two .45 caliber bullets stuck under the carpet. Those two bullets were fired from the same weapon, but it was not known if they came from the same gun as the .45 cartridges. The guns were never found.

Chillena described the intruders as two black males. She thought one of them was 5' 7" tall, weighing 140 pounds, with a dark complexion, braided hair, a mustache, and dark clothing. She thought the other man, with a white handkerchief or ski mask over his face, was 5' 10" tall. Chillena later denied telling officers that the first man was 5' 7" tall. Oletha described the unmasked intruder as no taller than herself, or 5' 3". Officer Johnell Daniels testified that Hooker was 5' 7" tall, 140 pounds, with a goatee and mustache, and braids.

Ted Lucero, a security guard at the apartment complex, saw an Oldsmobile Cutlass and a red Cadillac pull into the complex on the night of the shooting. He said there were two black men in each car. Later, he noticed that the Oldsmobile had backed into a parking place, which was against the complex rules. The Oldsmobile was parked next to the Cadillac. He noticed that the Cadillac motor was running, but nobody was in the car. Two men were sitting in the Oldsmobile, and Lucero asked them to turn the car around. The men said they were there to pick up some girls. Both cars left a short time before the police arrived in response to the shooting. Hooker's burgundy-colored Cadillac had a lot of primer on it. Lucero did not notice any primer on the Cadillac at the apartment complex that night.

Pamela Kane, Oletha and Chillena's mother, was with Vicky Lane, the victim's mother, on September 26, 1997. Pamela was driving, and Vicky pointed out a burgundy-colored Cadillac that pulled out of the Crestwood Apartments. Pamela knew the police were looking for a burgundy-colored Cadillac. Later that evening, Pamela and Chillena stopped at a gas station, and the same burgundy Cadillac with "primer on the back" pulled in. Two black men were in the Cadillac. They both went into the store. Pamela mentioned the car to Chillena. Pamela thought the men were staring at Chillena. Chillena thought one of the men pointed at her, but she was not sure. She wrote down the license plate number of the car, LQP 296, on her hand.

Pamela testified that Hooker was one of the men at the gas station. He came out of the store, smiled at Chillena, and spoke to her. Chillena told her mother that "that's the guy who killed Bootsie." Pamela said the two cars pulled out of the gas station in opposite directions. Chillena said the Cadillac followed them to a red light. Pamela and Chillena went to Vicky's house, where they called the police.

On September 26, 1997, Officer Lopez investigated an accident involving a small, gray Pontiac and a Cadillac. The driver of the Pontiac said she had rear-ended a maroon-colored Cadillac, license number LQP 296, when it made a sudden right turn in front of her at about 11:55 p.m. When she walked to her house to call the police, the Cadillac left the scene. At trial, she identified Hooker as the driver of the Cadillac.

Officer Lopez saw a maroon Cadillac driving around. He pursued it and confirmed that it was the car involved in the accident with the Pontiac. The car went down a dead end, behind a house, and stopped at a fence. The driver, later identified as Hooker, got out and ran. Officers found him hiding behind a shed. An officer noted that the driver's hair was in corn rows or braids.

When Hooker was arrested, the police asked him if he knew someone named Bootsie. He said he did not. When they asked Hooker if he knew Daron Lane, he told them he did. He testified that he was surprised when the officers told him he was being charged for Lane's murder.

The parties stipulated that none of Lane's blood was found on the clothes Hooker wore on September 27, 1997. They also stipulated that none of Lane's blood was found in Hooker's car or on any of Hooker's property. The police did not find Hooker's fingerprints, hair, or clothing fibers matching Hooker at the scene. Chillena picked Hooker's picture out of a photographic line-up shortly after seeing him at the gas station. Oletha looked at a photographic lineup on the evening of September 29. She also identified Hooker. Oletha denied that she had seen Hooker's picture on television or in the newspaper. A detective had previously reviewed photos of possible suspects with Chillena and Oletha, showing them hundreds of pictures, on September 24. They had not identified anyone.

DISCUSSION

Hooker claims that the district court erred by not instructing the jury that it was required to agree on the same underlying felony to convict Hooker of felony murder. No specific unanimity instruction was requested or given regarding the...