State v. Manning
| Decision Date | 09 March 2001 |
| Docket Number | No. 82,447.,82,447. |
| Citation | 19 P.3d 84,270 Kan. 674 |
| Parties | STATE OF KANSAS, Appellee, v. FAYVUN MANNING, Appellant. |
| Court | Kansas Supreme Court |
Craig H. Durham, assistant appellant defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, and Daniel Cahill, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
This is a direct appeal by the appellant, Fayvun Manning, of his convictions by a jury of one count of first-degree felony murder and one count of aggravated robbery. The victim, Beverly Chatmon, was shot on December 26, 1997, as she was tending the cash register at a liquor store in Kansas City, Kansas. She died as a result of the gunshot wound.
Leroy Bartlett, Chatmon's husband, owned the liquor store and a party shop in Kansas City, Kansas. The two stores are in the same building but are separated by a wall. The only connection between the stores is a small glass window in the wall. It is difficult to communicate through the window because it does not open and the view of each store through the window is opaque.
Kwaine Young, Chatmon's young adult son, was working in the party shop on December 26, 1997, while his mother was tending the cash register in the liquor store. Late in the afternoon, he heard a loud noise coming from the liquor store. Young looked out of a window in the party shop after he heard the noise and saw a black man, about 6'1" and 180 pounds, walking by the window fairly quickly. The man was wearing a blue sweatshirt with something covering his head, such as a hood or a beanie. He was also carrying a small box that looked like a milk crate. Young admitted that he did not get a good look at the man and he never identified him.
After hearing the loud noise, Young went to the small window that separates the two stores. He could not see his mother, so he called for her, thinking that she had knocked something over, but he received no response. Young decided to check on her. As he was leaving the party shop side of the building, he noticed a "70s style," blue van with a "teardrop" window drive away.
Before it pulled away, the van had been parked some distance behind Alfred Anderson's car. Anderson, a regular customer at the liquor store, had just been inside to buy a can of beer and to visit with Chatmon. He had just returned to his vehicle when he noticed a young black man go into the liquor store. The man was about 5'9" 5'10" tall, wearing dark clothing, with a hood over his head. He was walking in a casual manner with his back to Anderson.
Anderson soon noticed the man reappear from the liquor store, walking as casually as before to a dark van parked over 100 feet behind him. The man got into the van and it pulled away. The driver did not appear to be in a hurry, and the van left without squealing tires or speeding away.
After the van pulled away, Young rushed out of the liquor store yelling something that Anderson did not understand. He followed Young inside and saw Chatmon lying on the floor bleeding from the left side of her jaw. Chatmon had been shot. She later died of complications from the gunshot wound. Several items were missing from the liquor store, including cash, some papers, a strongbox, and a milk crate.
The State's theory that Manning shot Chatmon was based largely upon the testimony of Arlandar McAbee and Lisa McKenzie, who had waited in the getaway van but denied having prior knowledge there would be a robbery or murder. They both testified that Manning was the triggerman. Manning defended on the theory that he was not present during the shooting and that the individuals who testified against him were not credible because they were heavy drug users who were involved in the criminal activity themselves.
On the same day as the shooting, McAbee stopped at a friend's house acting panicky and nervous. McAbee is a crack cocaine addict, a burglar, and a thief who has been in and out of jail. On the day of the robbery and shooting, McAbee had been smoking crack cocaine consistently. McAbee told his friend that he was involved in the shooting at the liquor store, and the friend claimed that McAbee said that he thought some of his "partners" shot people in the store. McAbee also sold some liquor from the liquor store to his friend while he was at his house and used the proceeds to buy more crack.
The police arrested McAbee that next day. He was taken to the police station where he waived his Miranda rights and gave the police a statement because he was worried that if he did not he would be implicated in the crime. McAbee claimed that he, McKenzie, and Williams were in Williams' van smoking crack on December 26, 1997. They went to a house in Kansas City, Kansas, at McKenzie's suggestion, so that they could get more crack "on credit" from a man she knew. McKenzie went into the house and returned, telling her friends that the man was willing to give them a $20 rock on credit if they would give him a ride to the liquor store. They agreed. McAbee claimed that the man was Manning.
The four then proceeded to Bartlett's liquor store. According to McAbee, Manning told Williams to get him a 40-ounce beer from the store. Williams got out of the van and disappeared in the store. When he came back, Manning got out of the van and he and Williams passed each other immediately outside of the van. The next thing McAbee remembered is that Manning returned to the van carrying a milk crate that contained bottles of alcohol, a box, and some other items. McAbee testified that Manning pulled a gun, placed it to McKenzie's head, and said to her "bitch, drive" and that he would "blow her fuckin' head off if she did not drive him back to his house. She drove him back to his house where he departed with the milk crate, leaving behind some bottles of liquor. Those were the bottles that McAbee sold for more crack.
The police also brought McKenzie in for questioning and took her statement. She also testified at trial. According to McKenzie, she, McAbee, and Williams were "hanging out" in Williams' van on the day of the shooting. McKenzie, like McAbee, is a crack cocaine user and a street person. McKenzie testified that when they picked Manning up from his house, she noticed that he had a gun but she did not worry about it because everybody she knew carried a gun.
Once they arrived at the liquor store, Williams got out of the van and went into the store to get a beer. McKenzie claimed that Manning got out of the van and passed Williams at the entrance of the liquor store. She testified that Williams exclaimed, "The MF is doing it," as he got into the van. She claimed that it was then, and only then, that it dawned on her that this might be a robbery. McAbee, on the other hand, did not remember anyone saying anything specific during the time that Manning was in the store.
In McKenzie's testimony, Manning returned to the van carrying a milk crate with a cash register drawer on top. McKenzie's testimony, however, differed from McAbee's testimony in that she could not recall Manning pointing a gun to her head, telling her to drive or he would "blow her fucking head off." McKenzie claimed that while in the van Williams asked Manning if he hurt the woman in the liquor store and, after Manning said no, Williams asked him to swear to it. McKenzie claimed that Manning hesitated and then said that "she was going to call the police." McKenzie dropped Manning off at his home. She took $10 from him and left with Williams and McAbee.
Williams was not located for trial and did not testify.
Angela Canady, Manning's mother, also became involved in this case. Like the other witnesses upon which this case is based, Canady is a drug and alcohol abuser who often lives on the streets. At the time of the robbery and shooting, Canady and her son were arguing constantly and because she was smoking "wet" (which is some substance dipped in morphine) and other drugs, she was "paralyzed" much of the time.
Canady called the police soon after the robbery and shooting. She told them that the shooter was Manning. The police took a formal statement from her in which she stated that Manning returned to his house on the day of the shooting in an older model cream or brown van carrying a red crate with a number of items contained within, including cash, jewelry, liquor, and a silver handgun in a Crown Royal bag. Canady said Manning dumped the items on the floor and that she noticed some papers and car titles with the name "Leroy Barnett" on them. Canady also claimed to overhear Manning tell a few people that he "hit a liquor store on 7th street" and that he had to kill the woman because he thought she was going for the alarm. She claimed that Manning or someone later took some of the papers and tried to burn them in a Chinese wok.
Based upon Canady's statements, the police received and executed a search warrant of the house. Inside they found various items that were identified as coming from Bartlett's liquor store and that some of the papers had been partially burned.
At trial, Canady was a recalcitrant witness. She repeatedly stated that she did not remember, or did not know, most of the substance of her formal police statement or most of what occurred on the day of the shooting. She testified that she was afraid of Manning at the time; that they had been arguing and fighting constantly; and that she called the police because she believed somebody was trying to kill her son. The State was permitted to treat Canady as a hostile witness and cross-examine her using her pretrial statement, over defense counsel's objection. The statement was also introduced through a police...
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