State v. Jones
| Decision Date | 12 December 2008 |
| Docket Number | No. 97,279.,97,279. |
| Citation | 197 P.3d 815 |
| Parties | STATE of Kansas, Appellee, v. Eric JONES, Appellant. |
| Court | Kansas Supreme Court |
B. Joyce Yeager, of Yeager Law Firm, L.L.C., of Overland Park, argued the cause and was on the brief for appellant.
Constance M. Alvey, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, were with her on the brief for appellee.
Eric Jones appeals his jury trial conviction for premeditated first-degree murder. He raises three issues: (1) Whether the district court erred in admitting the deceased victim's hearsay statement as a dying declaration; (2) whether the prosecutor committed prosecutorial misconduct in closing argument; and (3) whether the district court committed clear error in failing to instruct the jury on certain lesser included offenses. Finding no reversible error, we affirm Jones' conviction.
The sequence of events leading to the fatal shooting of the victim, Brannon Wright, began with a social gathering at the Kansas City, Missouri, home of Maleka Henson, Jones' girlfriend with whom he had been living while recuperating from ankle surgery. Initial party guests included Xavier Miller and his girlfriend, August Peeler. Later arrivals included Dionte Harris, his girlfriend, Keona Redmond, and the victim, Wright.
Henson retired to bed early. Harris, Redmond, and the victim, Wright, subsequently left the party. Miller and Peeler stayed the night at the Henson residence. The following morning, Henson discovered approximately $300 to $400 missing from her purse and advised Jones of her discovery. After Miller and Peeler denied having any knowledge about the missing money, Jones, accompanied by Henson and Miller, traveled to a Kansas City, Kansas, residence to question Harris. En route, they picked up another friend, Terrae Johnson.
Henson's door knocking awakened Harris, who denied any knowledge of the missing money and then checked the pockets of the sleeping Redmond. When Harris and Henson went outside, Harris observed a car containing Jones, Miller, and Johnson park behind Harris' vehicle. Jones exited the car and inquired as to Wright's whereabouts. After advising Jones that Wright was asleep in his vehicle, Harris awakened Wright, told him to exit the vehicle, and advised him of the missing money. Wright denied any knowledge of the missing money and sat on the vehicle's trunk.
According to Harris, he observed that Jones had a firearm and exhorted Jones to "hold on" while Harris awakened his girlfriend. However, Jones retorted that Harris should not worry because it was going down in 3 seconds, whereupon Jones drew the weapon and commenced firing at Wright. Harris made a hasty retreat toward the backyard and over a brick wall, eventually circling around to enter the residence by the back door and awaken his girlfriend. Nevertheless, Harris said that he saw Wright kick his foot in front of the gun barrel; that he heard Wright screaming that he did not take any money; that Wright tried to get away and move to the front of the vehicle, but Jones continued to fire; that Wright attempted to grab the gun; and that he heard several shots, perhaps five, with some pauses between shots. At trial, Harris identified the weapon.
Henson, Miller, Jones, and Johnson fled the scene and returned to Henson's home, where Peeler observed that the group was behaving as if something had happened. Miller and Johnson left Henson's house by vehicle, only to be detained by law enforcement a short distance away who discovered Johnson in possession of the weapon used in the shooting. Jones changed clothes and placed his blood splattered clothing in a plastic bag which was subsequently retrieved from under a back porch. A button was missing from the discarded shirt, which matched a button found at the shooting scene. The bag contained only one shoe, with the matching shoe found in a bedroom in Henson's house.
Meanwhile, Brian Taylor, a firefighter paramedic, and Brett McCoy, an ambulance paramedic were responding to the shooting scene. Taylor found Wright lying in the street, critically injured. He rode with McCoy in the ambulance en route to the hospital. McCoy observed a number of gunshot wounds and determined that Wright was paralyzed in all four limbs. Wright was conscious and able to communicate, at one point asking McCoy whether he was going to die, to which McCoy did not directly respond. McCoy spoke with Wright in order to keep him awake and to confirm that his airway was open. McCoy asked if Wright knew who had shot him, eliciting the response, "53rd and Brooklyn." When asked if that was his address, Wright said, "no." McCoy then asked if that was the address of the shooter, to which Wright answered, "yes." When asked again who shot him, Wright responded, "E," which was subsequently revealed as a nickname for the defendant, Jones.
Ultimately, Wright died of complications of the paralysis caused by the gunshot wounds. Jones was charged, tried, and convicted of premeditated first-degree murder. After a denial of Jones' new trial motion, the district court sentenced him to a hard 25 life sentence. Jones timely appealed his conviction.
Jones states that his first issue is whether the district court erred in admitting, as a dying declaration, the victim's hearsay statements to the paramedics, suggesting an evidentiary challenge based upon our hearsay statutes. However, his arguments concentrate on the Confrontation Clause of the Sixth Amendment to the United States Constitution as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). More specifically, Jones principally argues against applying the exception to his confrontation right referred to as forfeiture by wrongdoing, which was discussed in Crawford and adopted by this court in State v. Meeks, 277 Kan. 609, 88 P.3d 789 (2004).
The appellant's imprecision in defining his arguments follows an amalgamated ruling by the district court. Although the parties had only argued the applicability of a hearsay exception under our state statutes, the district court opined that the victim's statements were admissible under Crawford and Meeks, which were cases addressing the Confrontation Clause constitutional question. The district court mentioned that these cases approved the doctrine of forfeiture by wrongdoing. The court also found that the declarant believed that he was dying and that he was excited at the time, suggesting the applicability of the hearsay exceptions in K.S.A. 2007 Supp. 60-460(e) and (d)(2). Further, the court found that the statement was reliable.
The State's brief begins by reciting that the standard of review for the admission of a statement under the Kansas hearsay statutes is abuse of discretion. However, it then embarks on a constitutional analysis of whether the victim's statements were testimonial in nature, so as to implicate the Confrontation Clause. The State summarily concludes that the statements were not testimonial, thus disposing of the constitutional question and proceeding to the remaining question of the applicability of a hearsay exception under K.S.A.2007 Supp. 60-460. However, after arguing that the district court did not abuse its discretion in admitting the statements under the dying declaration hearsay exception of K.S.A.2007 Supp. 60-460(e), the State returns to the constitutional right of confrontation issue to discuss the forfeiture by wrongdoing exception.
Accordingly, we take the liberty of arranging the various questions in our own order. First, we will discuss the State evidentiary question and then the federal constitutional implications.
Neither party disputes that the victim's statements, offered through the paramedics, constituted hearsay evidence which would be inadmissible unless an exception listed in K.S.A.2007 Supp. 60-460 is applicable. As noted, the district court intimated that both the dying declaration exception of K.S.A.2007 Supp. 60-460(e) and the excited utterance exception of K.S.A.2007 Supp. 60-460(d)(2) applied to the facts of this case. On appeal, neither party even mentions the excited utterance exception, and we will not analyze that provision. See State v. Walker, 283 Kan. 587, 594, 153 P.3d 1257 (2007) ().
K.S.A.2007 Supp. 60-460(e) specifically provides that a dying declaration is an exception to the hearsay rule if the court finds that the statement of the deceased was made "(1) voluntarily and in good faith and (2) while the declarant was conscious of the declarant's impending death and believed that there was no hope of recovery." With respect to the second element of the exception, the district court found that Wright certainly had reason to believe that he was dying at the time of the statements. The evidence supports that finding. Wright had sustained multiple gunshots wounds which left him paralyzed in all four limbs. Pointedly, Wright asked one of the two paramedics who were working on him in the ambulance whether he was going to die, manifesting an awareness that he was on the brink of death. Just as pointedly, the paramedic did not give Wright assurance that he would live, but rather responded that the paramedics would do everything they could to keep him from dying.
With respect to the first element, the district court did not specifically say that the statements were made voluntarily and in good faith. However, the circumstances under which the statements were obtained do not suggest that they were involuntarily made. Moreover, the district court specifically found that the statements were reliable which would by necessity encompass the good-faith element. Therefore, we find that the victim's statements to the paramedics fell within the dying declaration...
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