State v. Lee
| Decision Date | 31 October 1997 |
| Docket Number | No. 76483,76483 |
| Citation | 948 P.2d 641,263 Kan. 97 |
| Parties | STATE of Kansas, Appellee, v. Undra D. LEE, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The duty to instruct on a lesser included offense arises only when there is evidence upon which the accused might reasonably be convicted of the lesser offense.
2. Relevant evidence is any evidence having any tendency to prove a material fact. To be admissible, evidence must be related to issues but need not bear directly upon them.
3. A trial court's decision concerning the admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion.
4. When a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it.
5. An accused's absence from Kansas, due to incarceration in an out-of-state prison, tolls the running of the statute of limitations for criminal offenses until the accused is returned to Kansas.
6. When a defendant alleges a Batson violation, the burden of proof is on the defendant to prove the existence of purposeful discrimination.
7. The appellate standard of review applicable to a trial court's ruling that the State did or did not act with discriminatory purpose in exercising a peremptory challenge under Batson is deferential to the trial court. Abuse of discretion is the deferential standard to be applied.
Hazel Haupt, Assistant Appellate Defender, argued the cause, and Steven R. Zinn, Deputy Appellate Defender, was with her on the brief, for appellant.
Debra S. Peterson, Assistant District Attorney, argued the cause, and Nola Foulston, District Attorney, and Carla J. Stovall, Attorney General, were with her on the brief, for appellee.
This is a direct appeal by the defendant, Undra D. Lee, from his convictions by a jury Lee contends that the trial court erred in not instructing on second-degree murder; that certain evidence was erroneously introduced at trial; that the statute of limitations had run on all charges except for the murder charge; and that reversible error occurred by reason of the State's preemptory strike of an African-American juror.
of first-degree murder, aggravated kidnapping, aggravated assault, and kidnapping.
On May 31, 1994, human bones were found in a field in rural Sedgwick County. The remains were identified as those of Marqueta Smallwood, who had disappeared in 1993. The coroner concluded she had died as a result of multiple gunshot wounds.
When the facts are viewed as we are required to view them on appeal, they show the following: Lee ran a drug operation out of the home of Allen Brooks. Marqueta owed Lee drug money. Lee, James C. Sanders (Lee's uncle), and Glenn Whistnant went to Steven Alexander's home, and Sanders and Whistnant forcibly removed Marqueta. Sanders put a gun to Alexander's head and backed out of the home with Alexander in tow. (The kidnapping charge arose from this incident.) Roselyn Surratt, a friend of Marqueta's, was a resident of the Alexander home and was present when Marqueta and Alexander were removed from the home. (The aggravated assault charge arose from threats made to Surratt during this incident.) The aggravated kidnapping and first-degree murder charges arose because Marqueta was forcibly taken from Alexander's home and killed.
Marqueta was taken to Brooks' home, forced to disrobe, and questioned intensely for some 2 hours. Before being taken from the Alexander home, Marqueta admitted she had taken the drug money and said, "You might as well go on ahead and kill me." She was told, "That wouldn't be any problem." While at Brooks' home, Lee was angry, and Marqueta was upset and crying and requesting that she not be killed.
Marqueta was next taken to the field where her remains were ultimately located. In the field, another long conversation took place concerning the drug money. Lee then gave Marqueta permission to walk home. When she had walked some 150 yards away from Lee, Sanders, and Whistnant, Lee sent Sanders to bring her back.
Sanders testified that Lee had been discussing shooting Marqueta. Whistnant testified Lee had told him he was going to "waste Marqueta." Lee tried to get Whistnant to shoot Marqueta, but Whistnant refused.
After further discussion concerning the missing drug money, Marqueta again requested that she not be killed. Lee shot her and Marqueta fell down. Lee then walked up to Marqueta as she lay on the ground and shot her again.
Lee appeals the trial court's failure to provide the jury with instructions on the lesser included crimes of premeditated murder. Lee acknowledges the rule that a trial court's duty to instruct on a lesser included crime, even in a premeditated murder case, arises only if there is evidence upon which the accused might reasonably be convicted of the lesser offense. See State v. Linn, 251 Kan. 797, Syl. p 5, 840 P.2d 1133 (1992). Lee alleges that there was evidence presented at trial which might have reasonably supported a conviction for second-degree murder.
In State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992), this court stated:
In later cases, we said:
"The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony See State v. Shortey, 256 Kan. 166, Syl. p 2, 884 P.2d 426 (1994).
of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant's theory." State v. Harmon, 254 Kan. 87, Syl. p 1, 865 P.2d 1011 (1993).
Lee's evidence of second-degree murder is not substantial. Even when viewed in a light most favorable to Lee, the evidence is not enough to justify a jury finding that Lee did not act with premeditation or deliberation in shooting Marqueta. Either Lee or one of the men following his orders told Marqueta that it would not be a problem to kill her. Whistnant informed the police that Lee told him (Whistnant) that he (Lee) was going to "waste" Marqueta. Finally, Lee asked Whistnant to kill Marqueta in the field. When Whistnant refused, Lee did it himself. All of this evidence clearly indicates premeditation. Thus, in light of this evidence, Lee could not have reasonably been convicted of second-degree murder. As such, an instruction on the lesser included offense of second-degree murder was not necessary. The trial court did not err in failing to provide lesser included offense instructions.
Shortly before opening statements began, the defense realized that the State had several firearms behind its table. Most of the guns had been seized during a search of Brooks' drug house, executed pursuant to a warrant, which occurred 5 days after Marqueta's disappearance. One of the guns had been seized during a search of Lee's rented room when he was arrested for the crimes at issue. The defense objected to the presence of the guns, claiming that they had no real relevance to the case and that the very presence of the guns was prejudicial to Lee. The defense moved that the guns be taken out of the courtroom until the trial court had had an opportunity to rule on the admissibility of the guns. The trial court denied this motion. The trial court found that it would be cumbersome for the State to go outside the courtroom to get a gun each time it wanted to offer one of the guns into evidence. The court allowed the State to keep the firearms in the courtroom. Further, the court ruled that it would allow the State to refer to the guns in its opening statement as long as the State had "a good-faith belief [that the guns could] be admitted into evidence."
Upon this ruling, the State presented its opening statement. The prosecution referred to Lee as a drug lord who ran his business from Brooks' drug house and who dominated the others because he had "control of the drugs." The prosecution then referred to the guns in its opening statement by stating: "Now, while the enforcers, G-Dog and Semaj, would be at the door watching for the police, armed--G-Dog usually with a sawed off shotgun and Semaj ... armed with weapons that were bought for them by this man; 9 millimeters, Glocks, different kinds of handguns...."
In its case in chief, the State also questioned some witnesses about the guns found during the searches. During Steven Alexander's testimony, the State showed him Exhibit 11, a sawed-off shotgun. Alexander testified that the gun looked similar to the one which was pointed at his head on the evening Marqueta disappeared, but that he could not be certain it was the same gun. Roselyn Surratt also testified, and she made a tentative identification of the gun, pointing out that the gun had tape on the handle, as did the one pointed at her on the night Marqueta disappeared. Whistnant, on the other hand, testified that Exhibit 11 was not the same sawed-off shotgun he used on the night in question. Whistnant testified that the gun he carried on the night of Marqueta's disappearance was a two-barrel shotgun, while the Exhibit 11 gun was an "over and under" shotgun. Vanessa Miller,...
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