State v. Martis, No. 88,085.

• Citation: 83 P.3d 1216,277 Kan. 267
• Decision Date: 06 February 2004
• Docket Number: No. 88,085.
• Parties: STATE OF KANSAS, Appellee, v. GORDON R. MARTIS, JR., Appellant.
• Court: United States State Supreme Court of Kansas

277 Kan. 267

83 P.3d 1216

STATE OF KANSAS, Appellee, v. GORDON R. MARTIS, JR., Appellant.

No. 88,085.

Supreme Court of Kansas.

Opinion filed February 6, 2004.

Reid T. Nelson, capital and conflicts appellate defender, argued the cause, and was on the briefs for appellant.

Sheryl L. Lidtke, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Gordon R. Martis, Jr., appeals his convictions and sentences for one count each of premeditated first-degree murder, second-degree murder, attempted first-degree murder, and attempted second-degree murder. He alleges seven errors, each of which would require reversal of his convictions. Among the seven, one presents itself as a question of first impression in Kansas. The defendant alleges that two of his convictions grew out of one count, which is prohibited by law. The six other allegations of error involve the defendant's right of cross-examination, exclusion of defense evidence, improper testimony from a State's witness, automatic exclusion of potential jurors, the constitutionality of both the hard 40 sentence and the first-degree murder statute, and jury instructions. We conclude that no reversible error occurred and affirm.

During the early evening hours of May 18, 1999, four of the five occupants of a vehicle located in a parking lot across the street from Mr. B's nightclub in Wyandotte County were shot while sitting in a vehicle. Andrea Williams was shot in her right leg, hip, buttock, and vagina but recovered. Stacey Wilson was shot in the back but also recovered. Alfonzo Moore was shot in the heart and died from his wound. Jerry Seals was shot multiple times (nine gunshot wounds) and died as a result of his wounds. In the original information, Martis was charged with first-degree premeditated murder of both Moore and Seals. By amended information, the defendant was charged with one count of capital murder under the provisions of K.S.A. 21-3439(a)(6). However, upon trial the defendant was convicted based upon the lesser included offense instructions he requested of first-degree premeditated murder (Moore) and second-degree intentional murder (Seals).

Martis was also charged with attempted murder of Williams and Wilson. He was convicted of attempted first-degree premeditated murder of Wilson and attempted second-degree intentional murder of Williams. He received a hard 40 sentence on the premeditated murder conviction. The remaining sentences, life imprisonment without the possibility of parole for 10 years on the second-degree murder, 268 months' imprisonment for attempted first-degree murder, and 194 months' imprisonment for attempted second-degree murder, were run concurrent with the hard 40 sentence.

The rationale of the jury findings of guilt echos the evidence at trial indicating that Martis, consistent with his threat 3 days before the shooting, intended to kill both Moore and Wilson, thus establishing the convictions of first-degree premeditated murder of Moore and attempted first-degree premeditated murder of Wilson. However, the jury concluded that he intended to kill the other occupants but had not premeditated their killing. Thus, he was convicted of second-degree intentional murder of Seals and attempted second-degree intentional murder of Williams.

Andrea Williams, Loya Qur-an Fuel, Mercedes Sappington, and Darwin Bagley all identified the defendant at trial as the shooter. Williams testified that on the evening of May 18, 1999, she met Wilson and Moore, who were dating, and Seals, whom she was dating, around 8 or 9 p.m. Williams, Moore, and Wilson smoked marijuana while they drove to see a movie. After the movie, they purchased alcohol and drank it on the way to Mr. B's nightclub. Wilson was driving Moore's car, while Moore was in the front passenger seat and Seals and Williams were in the back seat.

Wilson drove down a side street to see who was standing in front of the club, and Williams saw the defendant and Rashida Johnson, the defendant's girlfriend and mother of his children, among several others standing outside of the club. (The defendant and Johnson were subsequently married.) Williams knew the defendant because he had dated Wilson. While Wilson circled a parking lot across the street from the club, Fuel, the mother of Moore's children, walked across the street and looked into the car. Wilson stepped on the gas to scare Fuel and then drove away to pick up Wilson's cousin, Fredrick Howard, at his residence.

Moore got into the back passenger seat to allow Howard to sit in the front passenger seat. Williams moved into the middle of the back seat and Seals was sitting in the driver's side back seat. Wilson drove back to the club and pulled into the lot across the street. Fuel walked across the street, snatched open the driver's side door, called Wilson a bitch, and tried to get at her. Wilson backed the car up in response, and Fuel continued to try to get in the door until the shooting started.

Williams testified that the defendant shot Wilson first and then shot more than 10 times into the back seat. She could see the defendant and the barrel of the gun through the driver's side back window, and he was close enough that she would have been able to touch the gun. She did not recall a pause in the shooting.

After the shooting stopped, Wilson tried to drive away but she passed out. Howard, who was the only person not shot, got into the driver's seat and drove most of the way to the hospital. Williams called on her cellular phone and told her sister that the defendant had shot her. Howard got out of the car 2 blocks from the hospital because he was concerned about his outstanding warrants. Wilson drove the remainder of the way to the hospital where she and Williams were treated for gunshot wounds.

In his cross-examination of Williams, defense counsel pointed out that Williams was on probation at the time of the shooting for theft and a warrant was issued for her arrest in Wyandotte County for worthless checks a few months before trial.

Howard testified that when they drove up to the nightclub, a girl ran up to the car and hit the windshield. Wilson started backing into a parking lot, and someone started shooting on the driver's side of the car. Howard got down on the floorboard of the passenger side and did not see the shooter. He estimated 12 to 13 shots were fired.

Fuel testified that she went to a barbecue at the defendant and Johnson's home earlier that day. Fuel did not consume any alcohol, but she observed the defendant drink beer. The barbecue lasted about 4 or 5 hours before people started leaving to go to Mr. B's. Fuel went to the club with Johnson, Johnson's sister M'Sherie Johnson, and Jamie Gaskin. They hung out in front of the club for about a half hour before she saw Wilson and Moore drive by in Moore's car. Wilson turned around and drove past again and was gone for about 10 minutes. Fuel testified that Moore's car returned and parked near the club for about 15-20 minutes, but no one got out of the car. Wilson pulled up on the side of the building very slowly, and Fuel ran to the car and tried to open the passenger door, but it was locked. She denied hitting the windshield.

Fuel followed the car across the street and snatched open the driver's side door. Wilson put the car in reverse, and the door swung shut. Fuel recognized the defendant's voice say, "[B]itch, what I tell you, what I tell you." She did not see the defendant, but she had no doubt in her mind that it was him. She saw the gun and ran away to the sound of multiple gunshots. The defendant subsequently ran past her while she was running up a hill. Fuel called Moore's mother on a cellular phone and told her that she was trying to fight Wilson and the defendant had run up to the car and started shooting.

Mercedes Sappington testified that she stopped by the barbecue with her friends Shatia Brown, Kimberly Norman, and Latoya Davis. She testified that she drank alcohol and smoked "wet" (marijuana cigarettes dipped in PCP), and she observed the defendant do the same. She went to Mr. B's with her friends around 11 p.m., and they stood outside for about a half hour smoking marijuana. They got back into their car; then Johnson and her sister, Gaskin, and Fuel walked to their car and started talking to them. Sappington testified that Wilson and Moore drove by and swerved their car and that Fuel started chasing them after they passed. Wilson drove by again, almost hitting Fuel, and then drove away for nearly 10 minutes.

Sappington further testified that when Wilson returned, Fuel ran across the street, banged on the car, and tried to get Wilson to get out of the car. Sappington was standing with Darwin Bagley and watched the defendant walk up to the driver's side of the car. Fuel looked at the defendant and then ran off screaming. The defendant said something to Wilson before shooting three times through the front window at her. He then shot more than six times at the back seat before running away.

Bagley, Moore's nephew, testified that he went to Mr. B's that evening and arrived when Wilson was driving the car up 22nd Street. Bagley followed after Fuel on foot and tried to get her to stop yelling at Wilson. He watched Fuel bang on Moore's car and saw the defendant flick her out of the way, and then she ran. Bagley testified that the defendant fired two shots, his gun jammed, and then it went off one more time. The defendant started to leave, then looked into the back window and fired the remainder of the bullets before running away. Bagley hit the hood of the car, and told Wilson to leave.

Sappington identified the defendant's weapon as a .40 caliber gun, and Bagley described it as either a 9 mm. or a .40 caliber automatic handgun. Michael W. Ennis, a firearm and toolmark examiner with the...