State v. Johnson
| Decision Date | 11 December 1998 |
| Docket Number | No. 79,891,79,891 |
| Citation | 970 P.2d 990,266 Kan. 322 |
| Parties | State of KANSAS, Appellee, v. Cornelius JOHNSON, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
2. Aggravated burglary is knowingly and without authority entering into or remaining within any building or other structure in which there is a human being, with intent to commit a felony, theft, or sexual battery therein. K.S.A. 21-3716.
3. The element of intent to commit a felony or theft in a prosecution of aggravated robbery is separate and distinct from that of entry without authority.
4. The owner of a building has no right to control the coming and going of individuals to property that has been leased and occupied by the lessee.
5. Under the facts of this case, defendant's entry into a building, where all who entered could purchase marijuana, does not constitute an entry without authority sufficient to satisfy a required element of the crime of burglary..
6. The admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules.
7. The specific grounds for an objection must be given at trial to preserve an issue for appeal.
8. Improper remarks made by the prosecuting attorney during closing argument will not provide a basis for reversal where an objection thereto was sustained and the jury has been instructed that remarks of counsel are not evidence and any statement not supported by evidence should be disregarded.
Geary N. Gorup, of Render Kamas, L.C., of Wichita, argued the cause and was on the brief for appellant.
Charles R. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
This is Cornelius "Neal" Johnson's direct appeal from convictions of aggravated robbery, K.S.A. 21-3427, aggravated burglary, K.S.A. 21-3716, first-degree (felony) murder, K.S.A. 21-3401(b), and subsequent sentences of life in prison, consecutive to a term of 95 months for the aggravated robbery conviction, and consecutive to the term of 34 months for the aggravated burglary conviction.
Johnson and his codefendant Geno Mullins were charged and tried together as the result of the robbery and shooting death of a Wichita marijuana dealer, Craig Marcy.
Johnson's appeal raises common issues with those of Mullins which we will consider herein. The first issue of whether under the facts of this case there was sufficient evidence from which a jury could convict Johnson and Mullins of aggravated burglary will entitle both parties to relief. The separate issue raised by Johnson concerning admission and usage of a letter written by Johnson to the State's primary witness does not entitle him to additional relief.
Facts and testimony
In December 1993, Craig Marcy was killed by a gunshot wound while he was selling marijuana at a residence he was using in Wichita. The investigation of Marcy's death was hampered by misinformation from the owners of the house at 1626 North Estelle, Jessie Coleman and Arthetta Pappas. During the investigation of the property where the victim was killed, the police noted the living room had been recently mopped and cleaned, but one bullet was located and recovered which appeared to be from a 9mm gun. Testimony showed the slug found in the house could not have been fired by the same weapon which fired the fatal shot that killed Marcy.
The homicide investigation revealed only hearsay matters until April 1994 when a federal prisoner, Bethany Stratford, who had committed three armed robberies, agreed to provide information in hopes of obtaining a reduction for her federal sentences. Stratford told the following story which is the primary basis for the arrest and conviction of Johnson and Mullins.
Stratford, her cousin Jason Seymour, a friend named Jill Frye, and Johnson drove from Derby, Kansas, to the "weed" or "bud" house in Wichita to purchase marijuana. Stratford provided the money for the drugs and was driving her grandmother's blue van at the time. Johnson went inside to make the buy and emerged a couple of minutes later with a bag of marijuana. Upon reentering the van, Johnson said it would be a good time to "jack" (rob) the drug house. Johnson told Stratford to go get Mullins to help with the job.
Stratford knew Mullins and had been to his house numerous times. According to Stratford, they drove to Mullins' nearby residence and Johnson went into the house and shortly returned with Mullins. On the way to the drug house, Johnson and Mullins discussed whether they would rob the drug house if other customers were present. They parked close to the house and Johnson and Mullins walked up to the house while Stratford, Frye, and Seymour waited in the van. According to Stratford, both men were armed with 9mm handguns.
Johnson came back to the van alone, opened the side door and threw two guns inside: a .32 caliber pistol and a Mac 11. As Johnson stashed the guns he said that Mullins was "in there getting his ass whooped" and he (Johnson) had "popped the dude in the ass." Johnson started back to the house to help Mullins when Stratford heard three or four gunshots.
Before Johnson reached the house, Mullins emerged. Stratford said that both Johnson and Mullins were "real excited." Stratford testified further that Johnson was talking about how he shot Marcy in the leg; Mullins said, "Did you see that he had the .32 in his crotch?" Johnson said, "Yeah." Mullins said that after Johnson had "popped him, I thought he was going to pop [Johnson]" and that's when Mullins reached down and grabbed the .32 from between Marcy's legs. Mullins said that after Johnson left the house, Marcy tried to take his gun and that he shoved Marcy back and "just dumped on him" (shot him) somewhere in the chest area. Then Mullins ran out the door. Neither Johnson nor Mullins had blood on them but Stratford noticed a "little scratch" where Marcy may have hit him. Stratford thought that Johnson and Mullins obtained some marijuana and money in addition to the guns from the robbery.
The party drove Mullins to his house; they then returned to Derby where they smoked some marijuana and later learned that Marcy had died as a result of the incident.
Seymour testified that he knew that Johnson and Mullins intended to rob the drug house. Seymour said that Johnson and Mullins entered the house and after a few minutes Johnson returned alone carrying marijuana. He testified that Johnson said nothing at this point. Seymour said Johnson returned to the house and later returned to the van with Mullins. Seymour testified that Johnson and Mullins told the van occupants Seymour said he heard no shots while the van was parked in front of the drug house. Seymour further testified he had been promised that he would not be prosecuted in connection with the drug house robbery and he admitted that he had lied to the police earlier when he said he was asleep in the van and woke up to find Mullins there with them.
Johnson took the stand and testified that he had no knowledge of the case before coming to trial. He said he knew Stratford through his girlfriend, Frye, and that he and Stratford had had a falling out. Johnson said he had loaned out the gun that was said to have been used in the robbery and denied robbing the drug house or being involved in the shooting of Marcy. Hazel Simon testified that Mullins lived at her house during December 1993, and that Mullins had left the house during the day, but spent each night at her home.
Dr. Corrie May performed the autopsy and testified that the bullet from Marcy's body and the bullet in the wall did not come from the same gun. The firearms expert Gary L. Miller testified that the bullet found in the wall was fired from Johnson's 9mm pistol and the fragments recovered from Marcy's body were fired from a 9mm pistol but not from Johnson's pistol.
The other occupant of the van, Jill Frye, did not testify.
Several people in the neighborhood testified to activity at the time of the death of Marcy but did not provide positive identification of either Johnson or Mullins. Coleman testified that he saw blood in the house which was cleaned up by his wife. He admitted lying to the police during initial investigation because of the illegal activity being carried on at his property. He testified that he did not give Johnson and Mullins permission to enter his residence.
In attempts to bolster Stratford's testimony several writings were offered and admitted into evidence. The facts concerning the writings will be covered in more detail when considering the issues raised.
The jury returned guilty verdicts on all counts against both Mullins and Johnson.
Was there sufficient evidence from which a jury could convict Johnson of aggravated burglary?
Johnson argues there was not sufficient evidence from which a jury could have convicted him of aggravated burglary.
State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
The elements of aggravated burglary are set...
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