State v. Lowery
| Decision Date | 05 October 2018 |
| Docket Number | No. 115,377,115,377 |
| Citation | 427 P.3d 865 |
| Parties | STATE of Kansas, Appellee, v. Awnterio Dwan LOWERY, Appellant. |
| Court | Kansas Supreme Court |
Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and David L. Miller, of the same office, was with him on the briefs for appellant.
Rachel L. Pickering, assistant solicitor general, argued the cause, and Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Awnterio Dwan Lowery appeals his jury trial convictions for the premeditated first-degree murder of Tiffany Davenport-Ray (Davenport-Ray), the attempted premeditated first-degree murder of Melvin Ray (Ray), criminal discharge of a firearm at an occupied dwelling, possession of cocaine, unlawful use of drug paraphernalia, and possession of marijuana. Lowery's homicide convictions emanated from a shooting between two vehicles travelling down Kansas Avenue in Topeka, Kansas, on the victims' wedding night. Lowery raises eight issues, none of which require a reversal of his convictions.
In the afternoon of May 24, 2014, Ray and Davenport-Ray were married at Faith Temple Church in Topeka, Kansas. A reception followed at the Topeka Performing Arts Center (TPAC), after which the couple met family and friends at the Elks Lodge. Around 1:30 a.m. the couple left the Elks Lodge to go to a restaurant to eat, accompanied by Terrance Smith, who was catching a ride to Ray's aunt's house. Ray drove a Dodge Charger; Davenport-Ray sat in the front passenger seat, and Smith was on the driver's side of the backseat. The shooting incident occurred enroute and was described differently by the trial witnesses.
According to Ray, while at a stop sign at 13th and Kansas, he noticed a sport utility vehicle (SUV) behind him. He did not recognize the SUV but was unconcerned because he assumed it was a rental car driven by an out-of-town wedding guest. Ray turned South onto Kansas Avenue, proceeded to the far right-hand lane, and crossed 17th Street when Davenport-Ray leaned her seat back and put her head on Ray's shoulder. As he was leaned over talking to Davenport-Ray, Ray heard a window "explode." He hit his brakes, noticed the SUV next to his Charger, saw muzzle flash coming from the SUV's front passenger seat, and heard a rapid succession of gunshots. Ray took Davenport-Ray's pistol from the center console and returned fire into the SUV two to three times. After Ray shot back, the SUV lost control, swerved in front of the Charger, went onto the sidewalk, and crashed into a pole, albeit shots continued to come from the SUV even after the driver lost control. Ray turned onto 19th Street and asked if everyone was okay; however, Davenport-Ray did not respond. Because Davenport-Ray was shot and covered with blood, Ray drove to Stormont-Vail Hospital.
Ray explained that, at the hospital, he could not get the Charger's passenger side door open, so he pulled Davenport-Ray out of the driver's side. After going inside to get help, Ray told Smith to stay with Davenport-Ray and then left for an apartment complex where he thought a relative lived. In the meantime, Davenport-Ray died at the hospital from a deep graze gunshot wound that carried across her forehead.
Police apprehended Ray outside of the apartment complex and took him to the Topeka Law Enforcement Center (LEC) for questioning. Ray testified that he initially lied to the police about shooting back at the SUV because he is a felon and was not allowed to possess a firearm. Eventually, he admitted to returning fire and said he left the handgun in the Charger; the police did not find the weapon.
Smith's version of the shooting related that he noticed an SUV come from behind the Charger, on the left side, and as Smith tilted over to lay down in the back seat, glass hit him in the face as he heard a gunshot. He ducked down for cover and heard other gunshots coming from "[b]eside [him] on the side that [he] was on." Smith said that he did not fire a weapon and did not see anyone else fire from within the Charger.
The first "shots fired" 911 call was received at 1:43 a.m. Multiple gunshots fired in rapid succession drew police to the area. Officer Samuel Cartmill testified that when he arrived, he saw a person, later identified as Lowery, running west down 19th Street and heard the citizen that resided at 1900 South Kansas yell that the runner was the driver of the SUV. Officer Brandon Uhlrig also pursued Lowery, eventually catching him, but not before Lowery had thrown a bag containing cocaine, marijuana, and a lighter over the fence of a car dealership. Lowery was handcuffed and placed in a patrol car, where Officer Cartmill elicited Lowery's statement that he was the driver of the wrecked SUV.
Lowery was transported to the LEC and interviewed by Detective Scott Dickey who was joined during part of the interview by Sergeant Richard Volle. During the interview, Lowery again admitted driving the SUV and running away after he wrecked the SUV. He said the wreck was caused by another car trying to "swerve [him] off the lane." Lowery said there was only one passenger in the SUV, whose name was "Kevin." He did not know Kevin but had agreed to give him a ride. Lowery denied that anyone in the SUV was shooting and declared that he had no idea who shot the woman in the other vehicle. He said that because things happened so fast, he did not know what transpired after he wrecked the SUV.
The police were told that two men had run west from the wrecked SUV, although those persons were not apprehended on the date of the incident. A later tip related that the two men had run to Tashara Yeargin-Charles' residence. After receiving a grant of immunity, Yeargin-Charles testified at trial that Thomas Brown, Jr., also known as "T-Black," and Jermel Robbins, also known as "B.G.," came to her residence in the early morning hours of May 25, 2014. The Shunga Creek separated Yeargin-Charles' residence from the SUV crash site, and, although she denied it at trial, a law enforcement officer testified that Yeargin-Charles had reported that Brown and Robbins were soaking wet when they arrived at her residence.
Police also gathered physical evidence from both vehicles and from the surrounding area. The Charger was struck by bullets five to six times, and trajectory paths appeared to show a shot that went slightly from the back to the front of the Charger, one that went nearly straight across the passenger compartment, and one that went from the front to the back. Although the police did not find a weapon in the Charger, a .9 millimeter shell casing was found in the driver's seat.
The SUV had one bullet hole entering the passenger side rear door; however, no bullet was found. Both the rear and front passenger side windows were down, and the side curtain airbags were deployed. Two bullet holes in the passenger side front airbag had burn marks indicting that the rounds were fired from inside the vehicle after the airbag had deployed. Lowery's identification and debit cards were found in the SUV's center console, which also contained plastic baggies of cocaine. The back of the SUV contained a shopping bag from City Trends. A Springfield Armory .45 caliber weapon was retrieved from the floorboard of the SUV. The 13-round magazine contained 10 live rounds; 1 round was jammed in the breech of the weapon, indicating a spent cartridge had failed to eject. Investigators cleared the jam and test-fired the weapon four times. The handgun jammed each time, leading the Crime Scene Investigator (CSI) to opine that the weapon could only fire one round at a time. The CSI could not say whether that weapon had been fired on the date of Davenport-Ray's death.
A house located at 1911 South Kansas, just south of where the SUV wrecked, was struck by gunfire. The resident at that address testified that around 2 a.m., she heard gunshots, yelling, and a car crash. She felt something on her leg, which she thought were pieces of paint from her house. A bullet was found inside the house, and there was a bullet hole on the north side of the house, about 50 to 75 feet from the SUV, that was in a direct line from the bullet holes in the SUV's passenger side airbag.
Five .45 caliber casings were found at the crime scene, two in a nearby business driveway, two near the SUV, and one in the front passenger door of the SUV. A Forensic Toolmark and Firearm Examiner testified that all five casings were fired from the same .45 caliber firearm; however, they were not fired from the Springfield firearm found in the SUV.
A piece of latex glove was found in the SUV's rear passenger door handle, and Robbins could not be excluded as the source of the DNA profile found on that glove. The probability of randomly selecting an unrelated individual from the population with this DNA profile is 1 in 7.360 quintillion. Latex gloves were retrieved near a fence in a lot that was on the path the two males were reported to have run after the SUV crash. Brown could not be excluded as the source of the DNA profile found on one of these gloves. The probability of randomly selecting an unrelated individual from the population with this DNA profile is 1 in 1.737 quadrillion. Lowery could not be excluded as the source of a partial DNA profile consisting of one allele on one of the latex gloves, although Robbins and Brown were excluded. The probability of randomly selecting an unrelated individual from the population with this single allele is 1 in 4. Likewise, Lowery could not be excluded as the source, or one of the sources, of the DNA profile found on the following items (with corresponding probabilities): a swab from the steering wheel airbag (1 in 1.2496 trillion); a ball cap found on the driver's side floorboard of the SUV (1 in 11.14 quintillion); a head scarf (do-rag) found in the glove box (1 in 28.81 quintillion); the Springfield handgun and...
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