State v. Johnson
| Citation | 376 P.3d 70,304 Kan. 924 |
| Decision Date | 05 August 2016 |
| Docket Number | No. 111,375,111,375 |
| Parties | State of Kansas, Appellee, v. Luther Johnson, Appellant. |
| Court | Kansas Supreme Court |
304 Kan. 924
376 P.3d 70
State of Kansas, Appellee,
v.
Luther Johnson, Appellant.
No. 111,375
Supreme Court of Kansas.
Opinion filed August 5, 2016
Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Carol Longenecker Schmidt, of the same office, was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by Nuss, C.J.:
Luther Johnson appeals his convictions on one count of first-degree murder and one count of aggravated burglary related to the shooting death of Derrick Hill. Johnson contends the district court erroneously: (1) failed to instruct the jury on the offenses of voluntary manslaughter, unintentional second-degree murder, and reckless involuntary manslaughter; (2) excluded testimony that the shooting happened in a high crime area; (3) denied Johnson's request for a trial continuance; (4) denied Johnson's motion for a new trial based on ineffective assistance of counsel; (5) made a combination of rulings warranting a new trial; and (6) used Johnson's previous convictions for sentencing purposes without their being proven to a jury beyond a reasonable doubt.
We conclude Johnson's arguments are without merit. Accordingly, we affirm his convictions.
Facts and Procedural History
For 10 years Luther Johnson and Cerrina Nicole Griffin had an on-again, off-again relationship. At the time of Derrick Hill's fatal shooting, they had been “off” for at least 30 days. During this time, Griffin and her daughter stayed with Griffin's cousin Victoria Freeman and Freeman's infant son at Rosedale Ridge Apartments in Kansas City, Kansas. Because Betty Grace Kebert and her daughter also lived there, Freeman slept in one bedroom, Kebert in the other, and Griffin slept in the living room on an air mattress.
During the evening of August 20, 2010, several individuals, including Hill, visited Freeman's apartment to play cards and smoke marijuana. Later, Kebert and Demetrius Grant went to Kebert's bedroom while Griffin, Hill, and Freeman continued playing cards and watching television in the living room.
Shortly after midnight, Freeman locked her apartment's front door and the sliding glass door leading to the balcony before retiring to her bedroom. Griffin and Hill continued watching television until they both fell asleep on the air mattress with their heads near the balcony door.
The State's physical evidence and witnesses, including Griffin, showed that sometime around 3 a.m., Johnson climbed onto the apartment's balcony from outside and blew out the sliding glass door with a shot from a .45 caliber pistol. He then stepped into the apartment, called Griffin's name, and began arguing with her near the air mattress. Griffin and Hill did not have a sexual relationship, and she tried explaining to Johnson she was not having sex with Hill. During this argument with Griffin from just inside the shot-out balcony door, Johnson shot Hill in the left temple, and his pistol ejected a .45 caliber shell casing onto the blankets by the nearby couch. Griffin then fled to Kebert's bedroom with Johnson in pursuit. There, Johnson grabbed her arm and dragged her out of the apartment. When she resisted he told her if she did not come along he would “kill [her], too.”
Grant testified he was asleep in Kebert's bed and awoke to the sound of a gunshot. According to Grant, a black male came into the bedroom, grabbed Griffin—whose name Grant did not know at the time—and the two left the apartment.
In Kebert's statement to police at the scene after the shooting, she too said Griffin and Johnson came into her bedroom, where he grabbed Griffin's arm and took her out of the apartment. Kebert further told police Johnson had his arm around Griffin's neck and a gun in his hand when she heard Griffin ask, “Luther, why'd you shoot him?”—but at trial, she denied these observations. Kebert testified she made these earlier comments to the police “to try to get my friend [Griffin] back to her daughter quicker.”
Apartment resident Freeman likewise testified at trial somewhat differently from her statements at the scene. According to her earlier statements, after being awakened by Kebert, she called 911 and told the dispatcher that her cousin's boyfriend, Johnson, had shot out her balcony window and then shot Hill. Freeman told police that she was asleep in her bedroom when she awoke to a loud
noise. She too said she had seen Griffin and Johnson fighting and she heard Johnson say, “'I shot him.”' But at trial Freeman testified that her 911 calls and statements to police were simply based on what Kebert had told her once Kebert woke her up after the shooting.
Several other witnesses in neighboring apartments, including Lakisha Davis, LaShonda Barnes, and Gwendolyn Randle, testified to waking to gunshots and hearing a man yelling outside the apartment as well as a woman screaming. Davis and Randle testified that they ran to the front of their apartment and witnessed a black male saying to a woman, “Come on, before I kill you, too.”
Griffin testified Johnson put her into the back seat of a green Mazda, told her to lie down, and drove off. As they drove away Johnson said what had happened was stupid and Griffin was at fault for Hill's death. According to Griffin's recorded police statement, testified to by Detective Michael Vega, Johnson admitted he had killed Hill and would not have had to if Griffin had not been a “ho” that night.
For the defense, Keyanhna Johnson testified she and Luther Johnson were at his mother's house watching a movie when Griffin repeatedly called. Luther then asked Keyanhna if he could borrow her car and jumper cables to give Griffin a jumpstart, but she refused. They went to bed around 2:30 or 3 a.m., and Johnson was gone when she awoke at 6 a.m.
Johnson testified that while he was watching the movie with Keyanhna, Griffin called asking him to pick up her mother and brother from Children's Mercy hospital because her car would not start. He initially refused but relented after Griffin called multiple times. According to Johnson, at one point Griffin told him she was staying at Freeman's, some people had entered the apartment, and one of them had a gun. He then picked up Griffin's mother and brother from the hospital around 2 a.m., dropped them off, and eventually drove to Freeman's apartment because he was worried about Griffin.
According to Johnson, while he was there Griffin told him an angry man named Mike had come by earlier because Hill had purchased
some weed from Mike with counterfeit money. Griffin told him that Mike, who had “act[ed] like he was clutching on a gun,” eventually left. Johnson testified that while he later was outside trying to start Griffin's car he heard gunshots and ducked around a car. Approximately 2 minutes later, he went into the apartment building to get Griffin. According to Johnson, Griffin and Kebert were screaming and acting hysterical, so he told Griffin they needed to go.
Johnson further testified he took Griffin to his sister's house and went to sleep. Later that night Griffin woke him up to tell him his face was on TV, and he was wanted for questioning. Johnson then called Kimberlee Carson who picked up Johnson and Griffin and let them stay at her house. Police ultimately arrested Johnson there several days later.
At trial, defense counsel requested a jury instruction on voluntary manslaughter, arguing the evidence established a heat of passion killing. The district court refused to issue the instruction, ruling that the evidence suggested the events preceding the shots demonstrated an argument or conversation exclusively between Griffin and Johnson, not Hill. The court later instructed the jury on premeditated first-degree murder, intentional
second-degree murder, and aggravated burglary.
Ultimately, a jury convicted Johnson of premeditated first-degree murder under K.S.A. 21–3401(a) and aggravated burglary under K.S.A. 21–3716. Johnson later filed several motions including a motion for new trial, a pro se supplemental motion for new trial, a second supplemental motion for new trial, and accompanying memoranda in support.
The court denied the motions for new trial and sentenced Johnson to a hard 25 life sentence for the first-degree murder conviction to run concurrent to 57 months' imprisonment for the aggravated burglary conviction. Johnson timely appeals.
Jurisdiction is proper under K.S.A. 2015 Supp. 22–3601(b)(3), (4) (maximum sentence of life imprisonment imposed for an off-grid crime [first-degree murder] ).
More facts will be added as necessary to the analysis.
Analysis Issue 1: The district court did not err in failing to instruct the jury on voluntary...
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