State v. Lee

• Decision Date: 05 March 1999
• Docket Number: No. 79,008,79,008
• Citation: 266 Kan. 804,977 P.2d 263
• Parties: STATE of Kansas, Appellee, v. Amoneo D. LEE, Appellant.
• Court: Kansas Supreme Court

Page 263

977 P.2d 263

266 Kan. 804

STATE of Kansas, Appellee, v. Amoneo D. LEE, Appellant.

No. 79,008.

Supreme Court of Kansas.

March 5, 1999.

Syllabus by the Court

1. Where a defendant has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.

2. A trial court has inherent power under "a rule of necessity" to exclude any evidence which may unfairly prejudice a jury. Evidence which is more prejudicial than probative is inadmissable under K.S.A. 60-445.

3. K.S.A. 60-445 is similar to Fed.R.Evid. 403.

4. The record is reviewed in a K.S.A. 21-4204(a)(4) criminal possession of a firearm case, and it is held: (1) When requested by a defendant, the trial court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon. (2) At the same time, the State may place into the record, at its discretion, the actual judgment(s) and sentence(s) of the prior felony conviction(s). (3) Neither these documents nor the number and nature of the prior convictions should be disclosed to the trial jury. (4) Out of the jury's presence and after consultation with counsel, the defendant should be required to personally acknowledge the stipulation and his or her voluntary waiver of his or her right to have the State otherwise prove the convicted felon status element beyond a reasonable doubt. (5) The defendant's stipulation of convicted felon status satisfies the prosecution's burden of proof for that element of the crime. (6) If the element of "convicted felon" is established by stipulation, the judge may thereafter instruct the jury that it may consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation.

5. The holding in this case shall apply to all pending K.S.A. 21-4204(a)(4) criminal possession of a firearm status cases in which the issue as to what constitutes admissible evidence when defendant has stipulated to having committed a prior felony was asserted in the trial court and remains an issue on appeal. The rule has no retroactive application to cases final as of the date of this opinion.

6. The district court abused its discretion in rejecting defendant's offer to stipulate and in admitting evidence of defendant's prior conviction of aggravated battery in the State's proof of the K.S.A. 21-4204(a)(4) criminal possession of a firearm charge. However, the error was harmless.

7. We disapprove of the language in State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975), State v. Johnson, 216 Kan. 445, 532 P.2d 1325 (1975), and State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974), inconsistent with this opinion.

Mark T. Schoenhofer, of Wichita, argued the cause and was on the brief for appellant.

David Lowden, 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.

SIX, J.:

Amoneo D. Lee was convicted by a jury of first-degree murder (K.S.A.21-3401[a] ) and criminal possession of a firearm (K.S.A.21-4204 [a] ).

We review whether the district court erred in: (1) finding probable cause at the preliminary hearing to bind Lee over for trial on his first-degree murder charge and (2) admitting a journal entry as evidence of the type and nature of Lee's prior conviction of aggravated battery in the State's proof of the firearms charge. We answer the first issue, "no" and the second, "yes." Finding no reversible error, we affirm.

Our jurisdiction is under K.S.A. 22-3601(b)(1); Lee's murder conviction is an off-grid crime.

FACTS

The victim, Carl G. Mason, Jr., was shot in the head at close range during the early morning hours of November 3, 1995. The events leading to Mason's death were testified to at the preliminary hearing by a detective and Lee's girlfriend, Karen Sandoval, and at trial by a variety of witnesses including Sandoval. Sandoval, who had given a tape-recorded statement shortly after the shooting, was a reluctant witness at the preliminary hearing. A transcript of her tape-recorded statement was admitted as evidence. During the trial, Sandoval's tape-recorded statement was played for the jury. Lee was convicted of criminal possession of a firearm under K.S.A. 21-4204(a)(4). Before trial, he filed a motion in limine, requesting an order prohibiting: (1) the State from eliciting testimony regarding his probation and/or parole and (2) the State's witnesses or counsel from testifying or listing testimony concerning the fact that he was convicted of aggravated battery.

Lee agreed that rather than putting the felony conviction of aggravated battery before the jury, he would "stipulate that he has been convicted of a felony within ten years of allegedly possessing the firearm at the time of the commission of the present offense and that such felony conviction has not been expunged nor pardoned." He relied on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), as support for his motion.

The hearing on Lee's motion in limine took place during a recess in the voir dire proceedings. District Judge Ballinger granted the first request and denied the second, saying:

"And the record needs to reflect this issue was originally submitted to Judge Pilshaw, who was assigned to rehear this case a couple [of] weeks ago. Things fell apart. It was continued. Judge Pilshaw did not rule on that motion in limine. She did give some thoughts on it. She actually didn't rule on it.

"I am going to be consistent. I was the trial court at the first trial. I'm going to deny that motion, and I look forward to the Court of Appeals telling me whether I'm wrong in following the law that's been part of the State of Kansas for, oh, 20 or 30 years. So overruled at this point, Mr. Brown [defense counsel]."

Defense counsel added:

"And to elaborate on that, that is correct; she [Judge Pilshaw] indicated if the case was reassigned to her then she would announce her ruling, but we're back here."

The State, through the testimony of the detective who investigated the prior felony, introduced a certified copy of the journal entry of judgment of the aggravated battery conviction. Lee presented no evidence. Additional facts are set out in our discussion.

DISCUSSION

The Preliminary Hearing

Lee's claim of inadequate evidence at the preliminary hearing is controlled by State v. Henry, 263 Kan. 118, 129-30, 947 P.2d 1020 (1997). See State v. Butler, 257 Kan. 1043, 1059, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 1112-13, 916 P.2d 1 (1996).

Where a defendant has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial. Henry, 263 Kan. at 129, 947 P.2d 1020; Butler, 257 Kan. at 1062, 897 P.2d 1007.

Lee argues that the State failed to introduce evidence sufficient to cause a reasonable person to believe Lee had committed the crime. Lee's primary objection appears to center on Sandoval's statement to police. He asserts the statement was coerced and, therefore, incompetent evidence was introduced, violating due process.

Lee acknowledges that Butler states the law on this issue. However, Lee does not show how the alleged preliminary hearing error prejudiced him during trial. In fact, Lee's appellate brief stops in mid-sentence:

"This Court has held that, in any event, 'where an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.' (Emphasis added.) Butler, 257 Kan. at 1062, 897 P.2d 1007. Here, the error caused"

The State's evidence at the preliminary hearing was sufficient to show that a felony was committed and that defendant could have committed the felony.

We find no merit in Lee's preliminary hearing claim. We have reviewed the evidence presented at trial. Even without Sandoval's statement, the evidence at trial was sufficient to establish beyond a reasonable doubt that Lee murdered the victim. Various people heard Lee's threats, observed his anger, heard him say he shot Mason and was going to dump the body, and saw him point the gun at Mason. He also was seen with Mason's body.

The Firearms Charge

Lee contends that because he offered to stipulate to the prior felony conviction of aggravated battery, it was error for the district court to admit evidence of the conviction. Lee also asserts that Judge Pilshaw sustained his motion in limine and that the motion was reconsidered and later denied by Judge Ballinger. While there is a minute sheet indicating that Judge Pilshaw sustained Lee's motion in limine, there is no journal entry. Defense counsel agreed with Judge Ballinger that Judge Pilshaw had not ruled on the motion. There is no merit to this assertion by Lee.

Our standard of review on admissibility of evidence is abuse of discretion. State v. Wagner, 248 Kan. 240, 243, 807 P.2d 139 (1991).

K.S.A. 21-4204(a)(4), under which Lee was charged, provides in part,

"(a) Criminal possession of a firearm is:

....

"(4) possession of any firearm by a person who, within the preceding 10 years, has been convicted of: (A) A felony under K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3410, 21-3411, 21-3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-3427, 21-3502, 21-3506, 21-3518, 21-3716, 65-4127a or 65-4127b or K.S.A.1995 Supp. 65-4160 through 65-4164, and amendments thereto...."

The State presented evidence that Lee had a prior conviction for aggravated battery (K.S.A.21-3414). Aggravated battery is one of the specific crimes listed in K.S.A. 21-4204(a)(4).

We turn now to our case law addressing the firearm possession issue. In State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975), Farris was charged with two counts of unlawful...