State v. Louis
| Decision Date | 23 November 2016 |
| Docket Number | No. 110,853,110,853 |
| Citation | 384 P.3d 1 |
| Parties | State of Kansas, Appellee, v. Steven M.N. Louis, Appellant. |
| Court | Kansas Supreme Court |
Peter Maharry, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
This is Steven M.N. Louis' direct appeal from his convictions for first-degree felony murder, three counts of attempted first-degree murder, and additional counts of aggravated assault and criminal discharge of a firearm. His convictions arise from a clash between two rival Wichita gangs that included a shoot-out in a local restaurant's parking lot and a later drive-by shooting in a residential neighborhood. Louis challenges the convictions and the life sentence he received for the murder conviction.
Regarding the convictions, Louis argues: (1) The district court erred when it failed to give lesser included offense instructions relating to the attempted first-degree murder convictions; (2) the district court erred when it failed to instruct that a principal cannot be liable under the felony-murder statute for the death of a co-felon arising from a third-party's lawful self-defense; and (3) the prosecutor improperly commented during closing arguments that Louis did not want the jury to know he and others involved in the shootings were gang members. As to the sentencing, he contends the district court could not impose the life sentence because statutory sentencing guidelines for multiple conviction cases limited his total prison term to twice the sentence authorized for his most serious conviction that was not eligible for a life sentence. We affirm.
The first shooting occurred at a restaurant where Louis was present with several companions, including Michael Saechao, who died in the gunfire. Louis, Saechao, and others in Louis' party belonged to a street gang known as the “Asian Boyz.” John and Daniel Nguyen, Hien Dao, and Hau Tran, who were members of a rival gang known as the “Viet Boyz,” were also there, along with their friends, Viet Nguyen and Jennifer Ma. The State claimed there had been an earlier altercation between members of the two groups that extended to the restaurant.
The testimony about the first shooting and the moments leading up to it varies. Most witnesses—including everyone who claimed to see the shooting itself—were members of one group or the other. Multiple witnesses recalled a disturbance inside the restaurant, after which an employee ejected the Viet Boyz group. One witness testified Tran then made faces through the window at Louis and his group. After this, Louis and his party's other male members, including Saechao, left through the back exit. Gunfire erupted after Louis left the restaurant.
Police recovered numerous cartridge casings. The evidence shows all the shots were fired by two people: a passenger in a gray or silver Honda SUV, in which the Viet Boyz group was leaving, and Louis, who was on foot. There was conflicting testimony about who fired first. One witness said the gunfire started while the Viet Boyz group was running to their vehicle. When the gunfire started, she looked up and saw Louis shooting, although she was not certain who fired first. Another witness said three or four shots came from the SUV and no shots were fired thereafter. And yet another said she walked out, the gunfire began, and she saw an individual running up from the side of the building and shooting as the SUV drove away. One of the SUV's passengers said he heard gunshots coming from behind the vehicle before he was struck in the back by a bullet and passed out.
Louis, on the other hand, claimed he left through the back exit to be with Saechao, who was smoking a cigarette. He said he was walking to his car when gunfire started and someone said “duck” or “run.” He said he saw movement and a gun inside the SUV. He admitted firing a full 15–round clip at the SUV but argued it was self-defense.
In the aftermath, Saechao had sustained a fatal gunshot wound
to the head. Viet Nguyen and John had each suffered gunshot wounds to their backs. Louis admitted leaving the scene within a couple of seconds. He was driving a dark, multi-colored hatchback with a white hood and a loud exhaust.
Meanwhile, the Viet Boyz group in the SUV and their companions travelling in different vehicles drove to a residential area where yet another companion of the group lived. About 20 minutes later, gunshots fired from a passing car struck two homes, two unoccupied vehicles, and Dao's vehicle, in which Ma had just arrived. Ma was still in the driver's seat when the bullets struck the car: one through the windshield and into the dashboard right above the steering wheel, one through the driver's side mirror and driver's side window, and one just behind the driver's side door.
Ma did not see the shooter but told detectives one of two cars she saw was black and white, possibly a hatchback. An area resident saw a dark hatchback with a “distinctive” muffler sound coming up the road after hearing gunshots. Another said he heard a car leaving at a high speed that sounded like a foreign car with a big muffler. Police again collected cartridge casings from the scene, all of which were ejected from the same weapon as 15 casings recovered from the restaurant parking lot.
Police found Louis' vehicle the next day at the house where Louis had been staying. The car was in the garage under a tarp and had a bullet hole in its roof.
The State put on evidence about tension between the Asian Boyz and Viet Boyz gangs arising from a 2009 altercation, in which a Viet Boyz member had been killed. At the time of the shootings in this case, an Asian Boyz member had recently been sentenced for a crime related to that 2009 incident.
The jury found Louis guilty of 12 crimes. Those relevant to this appeal are: the first- degree felony murder of Saechao; the attempted first-degree murder of Ma; and the attempted first-degree murders of SUV passengers, Dao and John Nguyen.
The district court sentenced Louis to a hard 20 life sentence for felony murder and a consecutive 165–month prison term for Ma's attempted first-degree murder. It directed the sentences for the remaining 10 counts to run concurrent to the others.
Louis requested a jury instruction on attempted second-degree murder as a lesser included offense for Ma's attempted first-degree murder. The State objected, arguing the evidence supported only the single conclusion that Louis went to the residential area to shoot anyone there. The district court refused the requested instruction, explaining:
As to the attempted first-degree murders of Dao and John Nguyen at the restaurant, the district court instructed the jury on the lesser included offenses of attempted second-degree murder and attempted voluntary manslaughter. But the district court refused Louis' request to instruct the jury on attempted involuntary manslaughter as a lesser included offense. Louis argued the instruction was warranted because he acted recklessly when he ran “down the barrel of a gun being fired at” him. The district court ruled that the act of pulling a trigger could not be involuntary.
On appeal, Louis claims the district court erred by refusing to give the requested instructions.
Standard of review
When analyzing jury instruction issues, an appellate court follows a three-step process by: (1) Determining whether the appellate court can or should review the issue, i.e ., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits to determine whether error occurred; and (3) assessing whether the error requires reversal. State v. Pfannenstiel , 302 Kan. 747, 752, 357 P.3d 877 (2015)
. Whether a party has preserved a jury instruction issue affects the reversibility inquiry at the third step. 302 Kan. at 752, 357 P.3d 877 ; see also K.S.A. 2015 Supp. 22–3414(3) (). Louis requested the instructions at issue here, so he preserved the issue. See K.S.A. 2015 Supp. 22–3414(3) ().
At the second step, we consider whether the instruction was legally and factually appropriate, employing an unlimited review of the entire record. Pfannenstiel , 302 Kan. at 752, 357 P.3d 877
. If the district court erred, and the error did not violate a constitutional right, “the error is reversible only if [the court] determine[s] that there is a ‘reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.’ ” State v. Plummer , 295 Kan. 156, 168, 283 P.3d 202 (2012) (quoting State v. Ward , 292 Kan. 541, 569, 256 P.3d 801 [2011], cert. denied ––– U.S....
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