State v. Killings

Decision Date16 January 2015
Docket Number108,021.
Citation301 Kan. 214,340 P.3d 1186
PartiesSTATE of Kansas, Appellee, v. Trevejon M. KILLINGS, Appellant.
CourtKansas Supreme Court

Christina M. Kerls, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


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

A jury found Trevejon Killings guilty of premeditated first-degree murder, and he received a sentence of life in prison without the possibility of parole for 50 years (hard 50 life sentence).

On direct appeal before this court, Killings argues: (1) The district court erred by failing to instruct the jury on second-degree intentional murder and second-degree reckless murder as lesser included offenses of premeditated first-degree murder; (2) the prosecutor committed misconduct during his closing arguments; (3) the district court erred by answering a juror's question when Killings was not present; (4) the cumulative effect of these alleged trial errors denied him a fair trial; (5) the district court, for multiple reasons, erred when it imposed a hard 50 life sentence; and (6) the district court erred by imposing lifetime postrelease supervision instead of lifetime parole.

We conclude that the district court applied the wrong legal standard when it denied Killings' request for a jury instruction on second-degree intentional murder. But, we find that this error was harmless considering the overwhelming amount of evidence establishing that the victim's death resulted from a premeditated killing. We also conclude that the prosecutor's comment during closing argument stating that Killings failed to take responsibility for the murder was improper, but we find that the comment did not constitute reversible error. The other alleged trial errors raised in this appeal have no merit and, thus, we affirm Killings' premeditated first-degree murder conviction.

Killings also challenges the constitutionality of his hard 50 life sentence, which was imposed under K.S.A. 21–4635, as violating his right to a jury trial as guaranteed by the Sixth Amendment to the United States Constitution. We vacate the hard 50 life sentence as required by Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2155, 2160–63, 186 L.Ed.2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014) (K.S.A. 21–4635 violates Sixth Amendment because it permits judge to find by preponderance of the evidence existence of aggravating factor necessary to impose increased mandatory minimum sentence, rather than requiring a jury to make that finding beyond a reasonable doubt). We remand the case to the district court for resentencing.


During the evening of January 21, 2010, Antonio Jackson (a/k/a/ “Ghost”) was shot and killed inside Bobbie McCray's apartment in Topeka. Prior to the murder, McCray was hosting a get-together at her apartment where Jackson, McCray, and three others were consuming crack cocaine in McCray's bedroom. While this was going on, Deborah Metcalf, Brenda Moore, and Moore's 2–year–old son remained in the front of the apartment where the living room and kitchen were located.

After consuming his allotment of crack, Jackson asked the group whether they knew where he could barter marijuana (which he had) for more crack. McCray said she could make the trade for Jackson, so she took Jackson's marijuana, left the apartment, and walked the short distance north up the alley to Killings' home.

When McCray arrived at the residence, Killings let her inside and agreed to exchange some crack cocaine for the marijuana she had. After making the trade, Killings asked McCray who was at her apartment. McCray named each individual there, including Jackson. Notably, Jackson and another individual with the street name of “R.P.” had robbed Killings inside his home on December 22, 2009. After hearing that Jackson was at McCray's apartment, Killings asked McCray if he could accompany her back to her apartment. McCray agreed, and the two of them left Killings' home and walked back to her apartment.

On their way to the apartment, a Topeka police vehicle drove up the alley towards them. Corporal Chris Sturgeon was riding in the vehicle and saw McCray (whom he recognized from previous encounters) and a black male walking with her. As the vehicle slowly passed by them and continued down the alley, Sturgeon said, “Hi” or “Hey, Bobbie” to McCray. Sturgeon later identified Killings as the man he saw walking with McCray that night.

McCray and Killings eventually arrived at the apartment. McCray entered first, followed by Killings. Metcalf and Moore, who were still in the front area of the apartment, saw Killings, whom they both recognized, enter the apartment. Metcalf asked Killings [W]hat's up?” or [W]hat you doing here?” and Killings responded by placing a finger up to his mouth, signaling for Metcalf and Moore to be quiet. Killings proceeded to follow McCray down the hallway toward her bedroom.

Once Killings entered the bedroom, he pulled out a handgun, aimed it at Jackson, taunted him (saying [R]emember me[,] nigger?” [Y]ou robbed me [,] nigger,” or [M]otherfucker do you remember me?”), and fired his gun four times at Jackson. When the shooting began, Jackson lunged toward Killings, trying to get the gun away from him or to simply avoid being shot. Jackson sustained a single gunshot wound and died at the scene.

During the shooting, Renee Stewart, one of the individuals inside the bedroom, ran out of the room, passing Killings. Killings and Stewart both ran toward the front door of the apartment, and the two got tangled up on the way out the door. Killings tripped over Stewart and then knocked her down outside the apartment. While on the ground, Stewart heard what she described as an ammunition magazine hit the ground beside her head. Stewart saw Killings run out the back gate of the apartment complex and into the alley.

Stewart eventually got up and went downstairs to the apartment directly below McCray's apartment. Moore, taking her son, also went to this apartment. The residents of the apartment called 911 to report the shooting, and, within minutes, law enforcement arrived at the apartment complex.

McCray and Metcalf sat on the steps outside McCray's apartment until law enforcement arrived. As McCray and Metcalf were sitting there, they noticed an ammunition magazine lying on the ground nearby. They pointed out the magazine to law enforcement once the officers arrived, and the magazine was seized and taken into custody. Subsequent testing of the magazine revealed the presence of Killings' DNA.

McCray and Metcalf were taken to the law enforcement center and interviewed that night. Initially, McCray told detectives that she did not see who the shooter was because, as she explained later at trial, she did not want to get Killings in trouble. Later that same night, however, McCray identified Killings in a photo lineup as the shooter.

The detectives also interviewed Metcalf. She wrote a brief statement indicating that she was in the kitchen when the “suspect” came into the bedroom, shot three to four times, and left the apartment. After telling the detectives she knew where the shooter lived, Metcalf went with law enforcement and showed them the house. The officers then called dispatch and asked it to look up any calls that had previously occurred at Killings' address. The officers learned that there had been a prior robbery call at that address in December 2009. Killings was listed as the victim and “Ghost” (a/k/a/ Jackson) was listed as the perpetrator of the robbery.

After Metcalf identified the shooter's home, she was taken to the law enforcement center and shown three photo lineups. The third lineup contained a photograph of Killings, and Metcalf identified Killings as the person who shot Jackson. Detectives later interviewed Stewart, Moore, and Arlene Love, one of the individuals who was inside the bedroom during the shooting. Stewart and Love were shown photo lineups and picked Killings' photo as identifying the shooter. Moore was shown a photo lineup containing Killings' photo but did not pick any photo as identifying the shooter.

Pursuant to a search warrant, law enforcement officers searched Killings' home and found a single unfired Winchester .40 caliber Smith and Wesson bullet on the floor of the home. This bullet matched the type of ammunition found in the magazine discovered outside of McCray's apartment. The bullet also matched three .40 caliber shell casings that the officers found inside McCray's apartment.

Killings turned himself in to law enforcement on January 23, 2010. After being advised of his rights, Killings provided a statement regarding his whereabouts during the evening hours of January 21, 2010. Killings claimed that during the time of the shooting, he and his girlfriend were at Westridge Mall in Topeka where he purchased some clothes at a Footlocker store. After spending about 2 hours at the mall, the couple then headed for Lawrence, arriving there at approximately 7:30 p.m. Killings said that they tried to get into a casino in Lawrence, but he forgot to bring his ID. He then said that they returned to Topeka at approximately 9 p.m. and he spent the night at Warren House in Topeka. Killings specifically denied ever going over to McCray's apartment on January 21.

On January 27, the detectives who conducted the Killings interview spoke to the manager of Footlocker who was working at the store during the evening hours of January 21. The detectives showed the manager photos of Killings and his girlfriend and asked whether they came into the store on January 21. The manager said he did not believe they came into the store. When asked about a video surveillance system, the manger told the detectives that the store did not have one. According to the detectives,...

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