State v. Jamison
| Decision Date | 14 July 2000 |
| Docket Number | No. 81,644.,81,644. |
| Citation | 7 P.3d 1204,269 Kan. 564 |
| Parties | STATE OF KANSAS, Appellee, v. CHESTER R. JAMISON, Appellant. |
| Court | Kansas Supreme Court |
Janine Cox, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
Chester R. Jamison was convicted on two counts of first-degree premeditated murder in the shooting deaths of Kevin R. Nelson and James E. Berry. He was sentenced to two consecutive hard 40 sentences. He appeals, contending that his convictions must be reversed because of the erroneous admission of evidence and the lack of sufficient evidence to support his convictions. He also claims the court improperly imposed the consecutive sentences. We affirm.
In the early morning hours of October 6, 1997, police responded to reports of a shooting in the parking lot of the Elks Club in Wichita. They discovered brothers Kevin R. Nelson and James E. Berry lying on the ground in the parking lot. Nelson had been shot seven times; Berry had been shot three times. Nelson was pronounced dead at the scene and Berry died later from his wounds.
At trial, Regina Beard, the fiancee of Nelson and the mother of his child, testified that Nelson, Berry, and two others went to the Elks Club on the evening of October 5. They drank, conversed, and danced throughout the evening. At closing time, Nelson told Beard that he was going to drop his companions off at their residences and would then come home. Soon after, Beard heard loud arguing coming from the doorway. She ran to the front door to see what was occurring and saw Nelson lying on the ground with a man she identified as Darnell Guiden standing over him. Unable to get through the crowd in the doorway, she ran to the back door but dropped to the floor on the way when she heard gunshots. She eventually discovered Nelson lying on the ground in the parking lot.
At the police station, Beard identified Guiden as the shooter. She did so because she had seen him standing over Nelson prior to the shooting; however, she did not see the shooting itself.
Guiden confirmed that he had pushed Nelson out the front door of the club. Guiden stated that he used to manage the club and still helped out on occasion. According to Guiden, there was already some fighting in progress in the parking lot when he pushed Nelson out. Guiden stated that he and Marcus Wright went inside to see if the police had been called. When they went back outside they heard gunshots and saw people running, so they left. Wright also testified that there was fighting outside and that he, Guiden, and Jermaine Oliver were simply standing and talking when they heard gunshots.
Darwin Hankins was in the crowd that night and testified that during the disturbance, Guiden did push Nelson out of the club. Jermaine Oliver asked Guiden if there was a problem and began hitting Nelson. Oliver was joined by Dennis McGaugh and the defendant in battering Nelson. Nelson then ran, pursued by Oliver, McGaugh, and the defendant, among others.
Hankins testified that he then heard gunshots and saw the defendant shooting Nelson at point blank range. Berry then came running up to Nelson as Nelson lay on the ground. According to Hankins, the defendant turned and shot Berry. The defendant and his friends, including Guiden, then left in a car.
Denise Gillon also testified that she was among the crowd at the doorway of the Elks that night. She saw Oliver with another person in a headlock. Oliver was punching that person. Oliver then let the person go but ran after him while continuing to hit him. According to Gillon, the person ran, and others in the crowd chased him, including Dennis McGaugh. She then heard a gunshot and everyone scattered. She dropped to the ground and saw the defendant with a gun in his hand. She saw the muzzle flash as the defendant fired the gun.
Detective Kelly Otis of the Wichita Police Department testified that Gillon had called her to give her information about the shooting. According to Otis, Gillon identified the person doing the shooting as a member of the Bloods gang. Gillon also told Otis that once the person was through shooting, he stood over the victims as if he wanted to watch them die.
Over objection, the State introduced the expert testimony of Officer Lance Darling of the Gang Intelligence Unit. Darling testified that the Gang Intelligence Unit had identified the defendant and also McGaugh and Oliver as gang members. According to Darling, when one gang member is in a fight, the others will attempt to get involved to protect the gang member.
Law enforcement officials also received an anonymous tip that the defendant was the shooter. They were unable to locate the defendant but received other tips that the defendant was trying to leave town. At the time of his eventual apprehension at a bus stop in Lawrence, the defendant was carrying recently purchased clothing, a prepaid calling card, photographs, $575 in cash, and his birth certificate. He had purchased a ticket to Champaign, Illinois, under the name of Eric Johnson. Eddie Robinson, a friend of the defendant, admitted that he drove the defendant to El Dorado in search of a bus stop but was unsuccessful. He later drove the defendant to Towanda to catch the bus. Robinson maintained that the defendant was going to Illinois to visit Robinson's brother.
The defendant's roommate gave police permission to search the defendant's residence and showed the officers two guns, one of which was identified as belonging to the defendant. Tests on cartridge casings and bullet fragments found in the Elks Club parking lot under Nelson's body, and in the bodies of the victims, revealed that the bullets had been fired from the gun identified as the defendant's.
The defendant was convicted of two counts of premeditated first-degree murder. The State requested that the defendant be given the hard 40 sentence based on the aggravating factor that he purposely killed more than one person. The defendant offered, as a mitigating factor, his lack of significant criminal history. The trial court weighed the factors and imposed the hard 40 sentence for each count, to run consecutively. On appeal, the defendant argues that evidence of gang involvement, flight after the shootings, and anonymous tips were erroneously admitted at trial. He also claims that the trial evidence was insufficient to prove that he shot the victims and that the shooting was a premeditated act. Finally, the defendant argues that the trial court failed to properly weigh the aggravating and mitigating factors in imposing the hard 40 sentences and further erred in running those sentences consecutively.
The defendant's claim of error is based upon the trial court's use of K.S.A. 60-455, relating to the admission of crimes or civil wrongs in admitting the defendant's gang involvement on the issues of motive and identity. The defendant argues that evidence of gang involvement was improper under K.S.A. 60-455 and, in the alternative, that a limiting instruction upon admission was required under K.S.A. 60-455.
This court has consistently held that evidence of gang membership is not evidence of a crime or civil wrong under K.S.A. 60-455. See State v. Sims, 262 Kan. 165, 169-70, 936 P.2d 779 (1997); State v. Cox, 258 Kan. 557, 566, 908 P.2d 603 (1995); State v. Bailey, 251 Kan. 156, 166, 834 P.2d 342 (1992). Therefore, K.S.A. 60-455 does not apply and no limiting instruction is required.
In Kansas, the evidence of gang membership is admissible if relevant. See State v. Cox, 258 Kan. 557, Syl. ¶ 1. Evidence of gang affiliation in this case was relevant to establish a motive for the shooting, as well as to identify the defendant as the shooter. Therefore, the trial court did not err in admitting the evidence and the defendant's argument fails.
Our standard of review regarding admission of evidence at trial is abuse of discretion. Judicial discretion is abused when the court's action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the court abused its discretion. State v. Gardner, 264 Kan. 95, 103-04, 955 P.2d 1199 (1998). Evidence of flight may be admissible to establish the consciousness of guilt, the commission of the acts charged, and the intent and purpose for which those acts were committed. State v. Walker, 226 Kan. 20, Syl. ¶ 1, 2, 595 P.2d 1098 (1979). Even where other evidence may weaken this inference of guilt, the objection to such evidence goes to the weight rather than the admissibility. State v. Webber, 260 Kan. 263, 274, 918 P.2d 609 (1996),cert. denied 519 U.S. 1090 (1997).
Within days of the shooting, the defendant boarded a bus bound for Illinois under an assumed name, taking with him newly purchased clothing, a large amount of cash, and his birth certificate. Under the circumstances, the trial court did not abuse its discretion in admitting the evidence.
Prior to trial, the defendant filed a motion to exclude evidence produced by confidential informants. However, the trial court was advised by the parties that an agreement had been reached whereby any information from confidential informants would not be used to assert the truth of any matter but rather would be used to explain why law enforcement took certain actions. Thus, the court took no action on the defendant's motion to exclude.
During the trial, witnesses testifying about information received from anonymous tips related the entire substance of the telephone call, including identity evidence. The defendant brought this to ...
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