State v. Kunellis, 86,829.

• Decision Date: 31 October 2003
• Docket Number: No. 86,829.,86,829.
• Citation: 276 Kan. 461,78 P.3d 776
• Parties: STATE OF KANSAS, Appellee, v. KENNETH A. KUNELLIS, Appellant.
• Court: Kansas Supreme Court

276 Kan. 461

78 P.3d 776

STATE OF KANSAS, Appellee, v. KENNETH A. KUNELLIS, Appellant.

No. 86,829.

Supreme Court of Kansas.

Opinion filed October 31, 2003.

Paige A. Nichols, special appellate defender, of Topeka, argued the cause, and Randall L. Hodgkinson, deputy appellate defender, was with her on the briefs for appellant.

Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.;

In December 1999, the State charged 15-year-old Kenneth Kunellis with burglary, theft, and two counts of felony murder for his involvement in activities arising out of a break-in of an Olathe motorcycle dealership. At the same time, the district court granted the State permission to prosecute Kunellis as an adult. Following a 4-day trial, a jury convicted Kunellis of all charges. The court sentenced him to 2 terms of life in prison, along with 12 months for the burglary and 6 months for the theft, all terms concurrent with each other. This is his direct appeal seeking reversal of his felony-murder and theft convictions or, in the alternative, resentencing under the Juvenile Justice Code. See K.S.A. 38-1663. Our jurisdiction is under K.S.A. 22-3601(b)(1), a maximum sentence of life imprisonment imposed.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the district court violate the principles of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), by approving the State's motion to try Kunellis as an adult? No.

2. Was the district court's decision to try Kunellis as an adult supported by substantial evidence? Yes.

3. Were the district court's jury instructions and the State's closing remarks accurate statements of the law regarding theft and the accompanying felony murders? No.

4. Was the evidence sufficient to support convictions for theft and felony murder? Yes.

5. Did prosecutorial misconduct and district court error violate Kunellis' right to due process and a fair trial? Yes.

6. Did the district court abuse its discretion in admitting evidence that Kunellis was flippant and taunting one of the victims? No.

7. Did the district court abuse its discretion in admitting certain photographic and audiovisual evidence? No.

8. Did the district court err in failing to provide a jury instruction on "extraordinary intervening event"? No.

Accordingly, we reverse Kunellis' convictions for theft and felony murder and remand for a new trial.

FACTS

On the evening of December 11, 1999, Kenneth Kunellis, age 15, was with his brother Kris and their friends Ben and Aaron Rogers. After deciding to break into a Suzuki motorcycle dealership in Olathe, they got into Ben's passenger van and began searching for a vehicle suitable to carry stolen motorcycles. They quickly found a truck with a 14-foot enclosed cargo box at a used car dealership along I-435 at Front Street in Kansas City, Missouri. After Ben hot-wired the truck, Aaron drove Ben's van and led the group to the Olathe dealership.

When they arrived, Ben drove the stolen truck to the side of the dealership, parked, and began searching for the telephone lines that Aaron had told him would disable the business' alarm system when cut. While Ben cut the phone lines, the Kunellis brothers remained in the stolen truck, and Aaron served as a lookout in Ben's van.

After Ben completed his task at the rear of the building, he returned to the truck, pulled back onto the street and backed up through the parking lot to a display window. He then walked to the back of the truck and picked up the sledge hammer. When the Kunellis brothers lifted the truck's rear sliding door, Ben smashed the display window.

The plan was to load up as many motorcycles as possible in a certain period of time, but Ben's delay in locating and cutting the phone lines limited the time available. Additionally, they had unforeseen difficulties loading the heavy motorcycles. After loading only three, Ben told the others it was time to go. As Ben drove the truck, the Kunellis brothers remained in the cargo area managing the motorcycles and holding the sliding rear door closed.

Shortly before the group left, Reuben Feuerborn had driven into the parking lot and noticed a cargo truck backed up to a building. After the truck left, Feuerborn's wife noticed the front window of the dealership had been smashed, so Feuerborn called 911. Feuerborn informed the police of the truck's description, location, and direction of travel, and began to drive in the same direction of the departed truck.

Olathe police dispatch records indicate the Feuerborns first reported the crime at 10:58 p.m. Two minutes later, after the Feuerborns regained sight of the truck, they informed the police it was about to enter northbound I-35. At 11:04 p.m., Officer Allen called for assistance and reported he was following the truck northbound at 119th and I-35. Once Allen was joined by Lenexa Police Officer Trevino at 11:07 p.m., he activated his emergency lights and attempted to stop the truck.

Ben testified he was unaware of any pursuers until Officer Allen activated his lights at about 97th Street. Ben then exited northbound I-35 at 87th Street and entered southbound 69 Highway, traveling against traffic to discourage pursuers. The truck then collided with a Toyota Camry occupied by Rick Sloan and his fiance Simone Sanders. Sanders was killed instantly, and Sloan received injuries which would prove fatal hours later.

ANALYSIS

Issue 1. Did the district court violate the principles of Apprendi v. New Jersey and State v. Gould by approving the State's motion to try Kunellis as an adult?

Kunellis argues that as a result of the district court's approval of the State's motion to waive juvenile court jurisdiction, the court subjected him to increased potential penalties without a jury's determination of necessary facts. This purported violation of the principles as enunciated in Apprendi v. New Jersey and State v. Gould raises constitutional issues, and our review is therefore unlimited. See Mudd v. Neosho Memorial Regional Med. Center, 275 Kan. 187, 197, 62 P.3d 236 (2003). We observe, however, that Kunellis failed to raise this issue until now. While we might overlook this failure to preserve the issue in order to prevent a denial of his fundamental rights pursuant to State v. Coleman, 271 Kan. 733, 735, 26 P.3d 613 (2001), we observe that we resolved this identical Apprendi argument against another defendant in State v. Jones, 273 Kan. 756, Syl. ¶ 5, 47 P.3d 783, cert. denied 537 U.S. 980 (2002). Kunellis' argument therefore has no merit.

Issue 2. Was the district court's decision to try Kunellis as an adult supported by substantial evidence?

Kunellis next argues the district court erred in granting the State's motion to try him as an adult. Our standard of review of this issue is whether the decision is supported by substantial evidence. State v. Medrano, 271 Kan. 504, 506, 23 P.3d 836 (2001). Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. 271 Kan. at 507. Under this standard, we do not reweigh the evidence, substitute our evaluation of the evidence for that of the trial court, or pass upon the credibility of the witnesses. 271 Kan. at 507.

K.S.A. 38-1636(e) requires the district court to consider eight different factors when determining whether prosecution of a juvenile as an adult should be authorized. Here, the court received testimony at the waiver hearings from Charlene Whitney, a court services officer with over 20 years' experience, who addressed all eight statutory factors based upon her investigation. She opined that while the planned crimes were theft and burglary, Kunellis risked the possibility of injuring or killing others when he committed these inherently dangerous felonies. Though he had no prior history of criminal adjudications, Kunellis had a history of fighting or disruptive behavior in school settings and at the juvenile detention facility, which indicated to her that he would be difficult to place and treat as a juvenile offender.

Whitney also testified Kunellis considered himself a leader, had experimented with marijuana, and had associated with others who were involved in criminal acts. Since he had received counseling, lived in a group home, and received other medical treatments, he had received the full range of services available in the past. Whitney also opined that the court would have decreased control over Kunellis if it allowed out-of-state placement. She believed the treatment facilities within the State were not adequate to complete his treatment within the maximum period permitted under the Juvenile Justice Code.

In addition to Whitney's testimony, the State presented related testimony from five police officers involved in the criminal investigation, as well as testimony from several other witnesses addressing the severity and nature of the crimes charged.

Given our deferential standard of review, and given that Kunellis had the burden under K.S.A. 38-1636(a)(2) of proving he was amenable to treatment under the Juvenile Justice Code, we hold the district court's decision to try him as an adult was adequately supported by the evidence.

Issue 3. Were the district court's jury instructions and the State's closing remarks accurate statements of the law regarding theft and the accompanying felony murders?

Kunellis next argues that the jury instructions, together with the prosecutor's closing arguments that interpreted those instructions, presented the jury with an inaccurate statement of the law of theft, the crime underlying his...