State v. Lemmie
| Decision Date | 01 May 2020 |
| Docket Number | No. 119,439,119,439 |
| Citation | 462 P.3d 161,311 Kan. 439 |
| Parties | STATE of Kansas, Appellee, v. Diantre Marquelle LEMMIE, Appellant. |
| Court | Kansas Supreme Court |
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.
Amy E. Norton, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Diantre Marquelle Lemmie shot and killed Adonis Loudermilk during a robbery. A jury convicted Lemmie of first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. Lemmie appeals, arguing that the district court judge made multiple evidentiary errors at trial and that insufficient evidence supports his conviction for first-degree murder. His arguments fail; we affirm his convictions.
In the early morning of April 26, 2016, in the parking lot of the Starlite Motel in Salina, Loudermilk died from a gunshot wound. Police concluded that Lemmie and Amber Craig conspired to rob Loudermilk and that Lemmie shot and killed Loudermilk during the robbery. Before the robbery, Loudermilk, Craig, Lemmie, and a man named James Faircloth were in a room at the motel using methamphetamine and performing tattoo work.
The State charged Lemmie with first-degree felony murder, aggravated robbery, conspiracy to commit aggravated robbery, criminal possession of a firearm, fleeing and eluding, and interference with law enforcement. He and Craig were tried separately.
Before his trial, Lemmie moved to suppress evidence police obtained and derived from his cell phones. He alleged that police obtained his phone passcodes in violation of his Fifth Amendment right against self-incrimination.
The district judge conducted a hearing on the motion to suppress. Detective Amanda Londono testified that she interviewed Lemmie after he was arrested. Londono Mirandized Lemmie, and he said he understood his rights. Lemmie asked for a lawyer. Londono ended the interview.
After Londono ended her interview, police got a search warrant for Lemmie's two cell phones. Once the warrant issued, Londono met with Lemmie in jail, about 12 hours after Lemmie had invoked his Miranda rights. Londono provided Lemmie a copy of the warrant, told him that the phones were locked, and asked for the phones' passcodes. Lemmie told her the codes. Londono left Lemmie and told other officers the codes. Law enforcement officers were then able to get into the phones using the codes, and they located incriminating Facebook messages.
At the motion to suppress hearing, Lemmie argued that the passcodes were testimonial. The State argued that Londono did not violate Lemmie's Miranda rights because the passcodes were not testimonial.
The district judge found that the disclosure of the passcodes was not compelled and the codes not testimonial. The district judge stated:
"The production of the password and the pass code is a nonfactual statement in this Court's view that merely facilitated the production of evidence for which the State had already obtained a warrant based upon evidence independent of the defendant's statements, i.e. the password or pass code pattern."
Even if the passcodes were testimonial, the district judge also reasoned, they would nevertheless be admissible under the foregone conclusion doctrine. Before obtaining the passcode from Lemmie, the State had already established by independent means the existence, possession, and authenticity of the Facebook messages the State sought from the phone. Lemmie's counsel agreed that, prior to the request for the passcode, witnesses had provided law enforcement with information that the incriminating Facebook messages existed.
Lemmie also asked the district judge to rule on the admissibility of hearsay statements. The State said it intended to introduce three kinds of hearsay statements by Craig: Faircloth's account of Craig's statements when Lemmie returned to the motel room immediately before the shooting; Facebook messages between Craig and Lemmie on the morning of the murder; and Faircloth's account of Craig's statements in the motel room immediately after Lemmie shot Loudermilk. The State argued that all of these statements were admissible as coconspirator statements under K.S.A. 60-460(i)(2).
During argument on the hearsay issue, the district judge asked the State:
The State then argued that Craig's statements after the shooting qualified as contemporaneous statements while the declarant was perceiving the event narrated, or while the declarant was under nervous excitement under K.S.A. 60-460(d)(1)-(2).
Lemmie countered that the coconspirator exception was not applicable because any conspiracy ended as soon as Loudermilk was shot. Lemmie also argued that Craig was not "unavailable"; that the statements were testimonial; and that admission of the statements would violate his constitutional right to confront witnesses.
The district judge ruled that Craig's statements to Faircloth after Lemmie shot Loudermilk were admissible as contemporaneous statements under K.S.A. 60-460(d) and as coconspirator statements under K.S.A. 60-460(i)(2). The district judge ruled that the Facebook messages and Craig's statements to Faircloth when Lemmie returned to the motel room before the shooting were admissible as coconspirator statements under K.S.A. 60-460(i). The district judge further ruled that none of these statements or messages were testimonial.
Before trial, the State also moved to admit K.S.A. 60-455 evidence that "after [Loudermilk] left the motel room that the defendant became upset that a methamphetamine pipe went missing and that the victim ... is the one who is alleged to have taken it." The State argued this information was relevant to "motive, identification, and intent." Lemmie opposed the admission of this evidence. The district judge ruled that the evidence was admissible because it went to motive and was part of the res gestae.
Because of Lemmie's appellate challenge to the sufficiency of the State's evidence against him, a thorough review of the testimony at trial is necessary.
Faircloth testified that on the night of April 25, 2016, he agreed to give tattoos to Lemmie, who went by "Tre Mack," and to Lemmie's friend, Mike Money. Faircloth dropped Lemmie and Money off at the Starlite Motel, retrieved his tattoo equipment from his home, and then returned to Room 120 of the Starlite around midnight. Inside the room were Lemmie, Loudermilk, and Craig; Money was gone. Later, another man—later identified as Chris Shelton—came out of the shower; he subsequently left on a bike.
Faircloth discussed and sketched out a tattoo for Lemmie. While they were working on the tattoo, the room occupants got high on meth. While the occupants passed around a pipe, it went missing and some got upset. Faircloth recounted:
At one point, Loudermilk and Craig chatted; Faircloth overheard Craig say something to the effect that her "premium rates" were high. Shortly after this, Loudermilk went into the bathroom with Craig for about 20 or 30 minutes. After they left the bathroom, Loudermilk left the room. Craig came and sat on the bed and spoke with Lemmie while Faircloth worked on the tattoo. Faircloth overheard some of this conversation: Craig said she wanted a gold chain; Lemmie said she could have it, but Craig said that Lemmie would have to take it. Craig also injected Faircloth with meth while he was tattooing Lemmie.
After Faircloth finished Lemmie's tattoo about 4 a.m., Lemmie asked Faircloth to drop him off at a house on North 12th Street. Faircloth obliged. Faircloth then returned to the Starlite. When Faircloth went back into the motel room, Craig asked him to trade sex for a tattoo. Faircloth agreed. Faircloth and Craig had sex, and then Faircloth took a shower.
When Faircloth got out of the shower, Lemmie was back in the room; he had changed into dark clothes. Lemmie asked Craig, "[W]here is he[?]" Craig responded that "he" was asleep in his truck. Lemmie told Craig to "go wake his...
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State v. Owens
...based on an error of law; or (3) based on an error of fact.’ State v. Moore , 302 Kan. 685, 692, 357 P.3d 275 (2015)." State v. Lemmie , 311 Kan. 439, 449-50, 462 P.3d 161 (2020)." ‘ "Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to p......
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State v. Jackson
...asserts Jackson's claims of error each "failed on their own merits," and thus cumulative error does not apply. See State v. Lemmie , 311 Kan. 439, 455, 462 P.3d 161 (2020) (when no errors exist, cumulative error doctrine cannot apply); State v. Ballou , 310 Kan. 591, 617, 448 P.3d 479 (2019......
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State v. Butler
... ... doubt. State v. Robinson , 306 Kan. 1012, 1034, 399 ... P.3d 194 (2017) ... When an ... appellate court finds no errors exist, the cumulative error ... doctrine cannot apply. State v. Lemmie , 311 Kan ... 439, 455, 462 P.3d 161 (2020). A single error cannot support ... reversal under the cumulative error doctrine. State v ... Ballou , 310 Kan. 591, 617, 448 P.3d 479 (2019); see also ... Butler , 307 Kan. at 868 (citing both no error and ... single ... ...
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State v. Owens
...(2) based on an error of law; or (3) based on an error of fact.' State v. Moore, 302 Kan. 685, 692, 357 P.3d 275 (2015)." State v. Lemmie, 311 Kan. 439, 449-50, 462 P.3d 161 (2020). "'"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to ......