State v. Lowe, 88,845.

• Decision Date: 19 December 2003
• Docket Number: No. 88,845.,88,845.
• Citation: 276 Kan. 957,80 P.3d 1156
• Parties: STATE OF KANSAS, Appellee, v. JERMANE D. LOWE, Appellant.
• Court: Kansas Supreme Court

276 Kan. 957

80 P.3d 1156

STATE OF KANSAS, Appellee, v. JERMANE D. LOWE, Appellant.

No. 88,845.

Supreme Court of Kansas.

Opinion filed: December 19, 2003.

Bradley P. Sylvester, of Wichita, argued the cause and was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

This case involves a drive-by shooting which caused the death of a 16-month-old girl. Defendant Jermane Lowe appeals his resultant convictions of felony murder under K.S.A. 21-3401(b) and criminal discharge of a weapon at an occupied dwelling under K.S.A. 2002 Supp. 21-4219(b). He received a life sentence for the felony-murder conviction and a consecutive sentence of 88 months for the firearm conviction. Lowe raises four issues:

1. Whether the district court erred by allowing evidence of Lowe's gang affiliation?

2. Whether the district court erred by failing to give an informant jury instruction?

3. Whether there is sufficient evidence to support his convictions?

4. Whether cumulative district court errors require reversal of his convictions?

Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime, and we affirm.

FACTS

On June 10, 2001, law enforcement officers were surveilling the Club VIP in Wichita. As the club was preparing to close around 2 a.m., a fight began in the parking lot. Members of the "Bloods" gang were fighting each other. Among those present were Michael Walker, Timothy Carr, and Lowe, whom officers identified as gang members. Lowe was specifically identified as having been a member of the "Original Wichita Villain Bloods," a subset of the Bloods.

Shauntelle Thomas, Shawna Johnson, Jendayi Maples, and Tiesha Perry were among the crowd of onlookers at the club. When a group of officers arrived, Walker drove away with Thomas and two other men in a maroon small four-door car. Lowe drove away with Johnson in a silver or gray Cutlass.

Lowe and Walker, with the others, eventually drove to Fairmount Park. Two men then pulled up next to Walker and warned him that he was being followed. Walker and Lowe turned onto a side street, and shortly afterward shots were fired toward their cars. Everyone ducked, and Thomas covered her head. When she risked looking up, she saw a blue Cadillac speeding away. One of Walker's friends then took Thomas to a hotel room, where she spent the rest of the night. Lowe proceeded in another direction.

Lowe eventually pulled up next to John Hanna at a stoplight and told him that "some fools" had just shot at him and Walker. Hanna had previous ties to the gang with which Lowe was associated, so Lowe asked if Hanna had a gun and if he could ride with Hanna. Hanna interpreted the inquiry as an invitation to join in retaliatory gun fire, not as a request by Lowe to simply borrow his gun. He refused to participate, and Lowe drove away.

Club onlooker Maples arrived at her home around 3:50 a.m., and Walker called Maples on her cell phone as she pulled into the driveway. Maples had known Lowe for 12 or 13 years, so she was able to recognize his voice in the background while she conversed with Walker. She also heard Walker refer to Lowe by name and by his nickname "Little Lowe" and ask Lowe whether he "got the Tec," a semiautomatic firearm. One of the last things she recalled hearing was "that's the house" and then a series of about nine gunshots. Maples heard a car speed away, and the phone line went dead. She became frightened and immediately called Walker back on his cell phone. He assured her everything was fine but his ears were ringing from the shots.

At trial, Maples changed the original story she had told the police and said she "didn't know" who had been talking to Walker in the background. She admitted, however, that she had received death threats from Walker's girlfriend before trial. Officers near the scene confirmed that they heard approximately seven to nine gunshots at about 4:02 a.m.

Shortly after the gunshots, officers found Michael Holt backing his car up Cleveland Street with its headlights off. Holt explained that he was scared because he had just dropped off a friend at his home at the corner of 11th and Cleveland. A small, dark car had passed him on Cleveland and then its headlights went off. The car pulled over, and Holt saw flashes coming out of the car and heard gunshots.

The shots heard by Maples and Holt had been fired into a house at 1032 North Cleveland Street, where Ron Mathis lived with his wife, Dallas Carter, and their children Ron, Shaquella, and 16-month-old Lexus Mathis. Lexus was mortally shot in the abdomen as she slept on a couch in the living room. Police later found shell casings from three types of cartridges near the curb directly across from the house: 9 mm, .40 caliber and 7.62 mm × 39 mm. Ron Mathis, known as C-Sane, had been involved in a gang, the "Insane Crips," a rival to the Bloods with whom Walker and Lowe were affiliated. Mathis had been a target of such violence in the past.

After the shooting, Walker went to Thomas' hotel room. Lowe and a third man went to Johnson's house, arriving around daybreak. Later that day, Lowe picked up Walker and Thomas at the hotel, made several stops, and then dropped off Walker and Thomas at the car they had ridden in the previous evening, a maroon 1989 Toyota Camry belonging to Scott Shaffer.

Walker had an arrangement with Shaffer; in exchange for the use of the car, Walker would supply him with drugs. When Walker returned the Camry to Shaffer this time, the windshield was damaged from projectiles and the trunk release would no longer latch. Walker told Shaffer he did not know what had caused the damage. Shell casings were found in the car, but latent fingerprints in the car did not match Lowe's, Walker's, or Carr's. One print matched Shaffer's.

Several days after the shooting, Lowe asked Maples to come to his mother's house to help him dispose of some guns. She refused.

Lowe, Walker, Carr, and friend Matthew Hendrix apparently discussed each of their whereabouts "to make sure out of concern that [there] wasn't nobody [sic] near where the incident happened." Lowe advised the others he intended to tell officers he stayed with a woman the entire evening. When he learned that police were looking for him in connection with the shooting, he voluntarily came in to be interviewed. He was Mirandized and agreed to speak with the detectives. Lowe told the detectives that he had taken Johnson home from Club VIP after closing and remained at her house until the following morning around 11. He denied any involvement in the shooting.

Lowe was eventually charged with felony murder and criminal discharge of a firearm at an occupied dwelling. Before trial, the State sought to admit gang evidence. The district court granted the State's motion over Lowe's objection, finding the evidence was relevant for establishing the relationship of the defendant to witnesses and police officers and for explaining Lowe's actions. The court also found that an instruction would be necessary to properly advise the jury that the evidence served a limited purpose.

After Lowe's convictions and the denial of his motions for judgment of acquittal and new trial, this appeal followed.

ANALYSIS

Issue 1: Did the district court err by allowing evidence of Lowe's gang affiliation?

Lowe first argues that the district court erred by admitting evidence of his gang affiliation. Our standard of review on the admission of gang evidence is abuse of discretion. State v. Valdez, 266 Kan. 774, 796, 977 P.2d 242 (1999). Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the district court's view. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995).

Evidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act or to show witness bias. State v. Leitner, 272 Kan. 398, 414, 34 P.3d 42 (2001). Such evidence, however, is only admissible when there is sufficient proof that such membership or activity is related to the crime charged. State v. Gholston, 272 Kan. 601, Syl. ¶ 4, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002).

The threshold problem for Lowe is that gang-affiliation evidence was repeatedly admitted without defense objection. While Lowe did object at the pretrial hearings on the State's motion for admission of such evidence and was overruled, he was also required to have made a timely objection at trial in order to preserve the issue for appeal. See State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994). Defense counsel did make a few objections during testimony, including one pertaining to the police surveillance videotape of the Club VIP parking lot based on "lack of foundation." However, there was no trial objection pertaining to the general gang evidence of which Lowe now complains. Lowe asserts, however, that the general gang evidence presented through police officers' testimony was so prejudicial that this court should disregard the contemporaneous objection requirement and examine the merits of the issue. In particular, he argues that the State tried to damage his character by presenting testimony of police officers who focus on gang crime investigations and that the district court abused its discretion in allowing this evidence. Officer Espinoza testified concerning gang-identification criteria and identified what he labeled as "gang crimes," i.e., "murder, rape, robbery, burglary, . . . [and] aggravated assaults of any kind . . . ." He testified that a gang member "typically will . . . try to put some pressure on people not to testify in the court." Espinoza also testified that "it's very common for [gang...