State v. Johnson, 96,681.

CourtUnited States State Supreme Court of Kansas
Citation190 P.3d 207
Docket NumberNo. 96,681.,96,681.
PartiesSTATE of Kansas, Appellee, v. Randy J. JOHNSON, Appellant.
Decision Date01 August 2008

Kari R. Nelson, of Kansas Appellate Defender Office, argued the cause, and Matthew J. Edge, of the same office, was on the brief for appellant.

Jared S. Maag, deputy solicitor general, and Ann L. Smith, of Lenexa, argued the cause, and Charles Branson, district attorney, and Paul J. Morrison, attorney general, were with them on the briefs for appellee.

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

Raising an issue of first impression, Randy J. Johnson argues his consecutive sentences for the longest prison term stated in a Kansas sentencing guidelines presumptive grid block are unconstitutional in light of the holding in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), which is based upon Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He argues the only term which can constitutionally be applied is the middle term in the grid block because the factors justifying the longer term were not presented to the jury or proved beyond a reasonable doubt. We reject his argument because K.S.A. 21-4704(e)(1) does not require judicial fact-finding and grants a sentencing judge discretion to impose any of the three prison terms stated in the grid block. Consequently, Johnson's sentences are a statutorily and constitutionally permissible presumptive sentences which cannot be appealed. K.S.A. 21-4721(c)(1).

Before considering that question, we will address three challenges that Johnson presents as attacks on his convictions for four counts of attempted second-degree murder. We reject his arguments and conclude: (1) The trial court did not abuse its discretion by admitting the testimony of the State's expert witness even though the witness violated discovery orders, (2) Johnson's statement to law enforcement officers was freely and voluntarily given, and (3) the issue whether Johnson was prejudiced by the introduction of witnesses' consistent statements prior to the testimony of the witnesses was not properly preserved for appeal because there was no contemporaneous objection.

Finally, Johnson raises an additional sentencing issue regarding whether the sentencing judge erred by ordering him to reimburse the State Board of Indigents' Defense Services (BIDS) for attorney fees without first considering his ability to pay and the financial burden the payment will impose. Because the judge failed to make specific findings as required by K.S.A. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we vacate the attorney fees order and remand for appropriate findings.


On December 21, 2004, Johnson and two companions attended a party at the Boardwalk Apartments in Lawrence. As Johnson and his companions left the party and exited the apartment building, four individuals on a second-floor balcony confronted them about noise from the party. Johnson and one of his companions stood near the apartment building and argued with those people on the balcony. As the arguing escalated, Johnson pulled out a gun and shot toward the balcony, injuring three people. After the shots were fired, Johnson and his companions jumped in a car and, as they drove off, Johnson admitted, "My fault, dog."

Officers, who had a description of the car and the car's license tag number, stopped Johnson and the others just a few blocks from the crime scene and ordered them out of the car. Johnson exited the passenger side of the back seat by sliding onto the ground. He was handcuffed and patted down for weapons. When officers rolled Johnson onto his side, they saw a brass shell casing lying on the ground under him. Officers searched the car's interior and found a revolver and five spent brass shell casings. Subsequently, a ballistics test linked the revolver to two bullets recovered at the apartment complex.

The arresting officers noticed that Johnson smelled of alcohol and was unsteady on his feet; additionally, his speech was slurred, garbled, and difficult to understand. It was explained at trial that Johnson had smoked marijuana and consumed a significant quantity of beer and brandy.

Officers decided not to interview Johnson "because of his impaired state" and moved him to the jail for the night. The next morning, two detectives went to the jail to interrogate Johnson. Detective Warren Burket testified that there was no indication that Johnson would have trouble understanding their questions. After being given the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), Johnson gave a chronological description of the previous evening's events. He admitted that the gun in the car belonged to him and that he had fired it to protect one of his companions and to scare the individuals on the apartment complex balcony.

The State ultimately charged Johnson with four counts of attempted second-degree murder. Before trial the defense filed several motions to suppress Johnson's statements; all were denied. Consequently, at trial, a detective testified regarding his statements, including his admission that he was the shooter. In addition, there was other evidence linking Johnson to the shooting, including his admission to his companions, testimony of several eyewitnesses who identified him as the shooter, and ballistics tests that linked his gun to the shooting.

With no dispute regarding identity, the focal point of the trial was Johnson's defense of mental disease or defect. Defense counsel hired an expert witness, psychologist David Mouille, Ph.D., to examine Johnson. To counter, the State also retained an expert witness, psychologist Gerald Vandenberg, Ph.D. After the experts examined Johnson, the defense objected to the endorsement of Dr. Vandenberg and filed motions seeking to exclude his testimony because Dr. Vandenberg had violated discovery orders. The trial court allowed Dr. Vandenberg to testify.

The experts agreed that Johnson's intellectual capabilities were limited but disagreed as to whether Johnson had a mental disease or defect that prevented him from forming intent. To measure Johnson's intellectual capabilities, Dr. Mouille conducted I.Q. testing on Johnson, which Dr. Vandenberg "borrowed." Thus, the undisputed evidence established that Johnson's overall I.Q. is 80, which falls at the "cusp of the low average range, 80 to 89."

After conducting interviews with Johnson and performing several standardized psychological tests, Dr. Mouille concluded Johnson probably had suffered a brain injury, a conclusion he felt was supported by Johnson's mother who reported that her son twice suffered some type of injury as a young child. In addition, Dr. Mouille rated Johnson's adaptive behavior age at 3 and 1/2 years and his maturational age level below 10 years of age. Ultimately, Dr. Mouille opined Johnson has a mental disease or defect which, when combined with Johnson's intoxication on the night of the shootings, impaired Johnson to the point he could not form specific intent. His written report described Johnson's behavior as a "thoughtless response to the stressors in his environment."

The State's expert, Dr. Vandenberg, disagreed with these conclusions. He hypothesized Johnson had a learning disability and disputed Dr. Mouille's conclusion that Johnson suffered from brain damage. Additionally, he described Dr. Mouille's conclusion regarding Johnson's developmental and maturational age as "absurd" and totally contradictory to Johnson's history and to Dr. Vandenberg's observations of Johnson. Nevertheless, Dr. Vandenberg indicated Johnson is immature for his age; although Johnson was 20 years old at the time of the trial, Dr. Vandenberg rated his functional maturity at lower than age 19. In Dr. Vandenberg's opinion, these factors, combined with his intoxication, compromised Johnson's judgment but did not negate his ability to form intent.

The jury found Johnson guilty of four counts of attempted second-degree murder, severity level 3 person felonies. Johnson had no prior criminal history; thus, he was assigned a criminal history score of I. The applicable grid block for each conviction indicated a prison sentence of 55, 59, or 61 months. See K.S.A. 21-4704. Noting that a random shooting at an apartment complex could result in several deaths, the judge sentenced Johnson to 61 months for each conviction to be served consecutively; however, because of the limitation of K.S.A. 21-4720(b)(4), the total prison sentence was limited to twice the base sentence, i.e., 122 months. Johnson was also ordered to pay court costs and restitution.

Johnson makes a timely appeal. This case was transferred to this court on our own motion because of the issue of first impression raised by the United States Supreme Court's decision in Cunningham, 549 U.S. 270, 127 S.Ct. 856.

State's Experts

As his first issue on appeal, Johnson contends the trial court denied his right to a fair trial by allowing Dr. Vandenberg to testify regarding his mental evaluation after Dr. Vandenberg violated discovery orders entered by the trial court. The State counters that the court correctly allowed Dr. Vandenberg to testify; regardless, any error was harmless because Johnson was not prejudiced.

Factual Background

There is no dispute that Dr. Vandenberg violated a discovery order, which had been agreed upon by the parties. In the order, the trial court required that "[a]ny interviews or conversations with the Defendant by any professional retained by the State to perform a psychological assessment of the Defendant shall be tape recorded." Although Dr. Vandenberg was aware of the order, he recorded only portions of his interview with Johnson. Based on this violation, the defense objected to the State's motion to endorse Dr. Vandenberg and sought to exclude his testimony as a...

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