State v. McCoy

• Decision Date: 05 June 2015
• Docket Number: 110,827.
• Citation: 350 P.3d 1137 (Table)
• Parties: STATE of Kansas, Appellee, v. Deron McCOY, Jr., Appellant.
• Court: Kansas Court of Appeals

350 P.3d 1137 (Table)

STATE of Kansas, Appellee

v.Deron McCOY, Jr., Appellant.

110,827.

Court of Appeals of Kansas.

June 5, 2015.

Rachel L. Pickering, of Third Judicial District Public Defender Office, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S.J.

Opinion

PER CURIAM.

Following trial by jury, Deron McCoy, Jr., was convicted of one count of kidnapping under K.S.A. 21–3420(a), a severity level 3 person felony, five counts of aggravated assault on a law enforcement under K.S.A. 21–3411(a)(1), each severity level 6 person felonies, one count of aggravated assault under K.S.A. 21–3410(a), a severity level 7 person felony, one count of aggravated endangerment of a child under K.S.A.2010 Supp. 21–3608a(a)(1), a severity level 9 person felony, one count of criminal possession of a firearm under K.S.A.2010 Supp. 21–4204(a)(3), a severity level 8 nonperson felony, one count of possession of cocaine under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony, one count of solicitation to commit perjury under K.S.A.2010 Supp. 21–3303(a)andK.S.A. 21–3805(a)(l), a severity level 10 nonperson felony, and one count of possession of hydrocodone-lortab under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony.In total, the trial judge sentenced McCoy to 335 months' imprisonment.McCoy received 233 months' imprisonment for his kidnapping conviction, 19 months' imprisonment for each aggravated assault of a law enforcement officer conviction, and 7 months' imprisonment for his aggravated endangering a child conviction.The trial judge ran McCoy's sentences for his remaining convictions concurrent to his kidnapping, aggravated assault on a law enforcement officer, and aggravated endangering of a child convictions.

McCoy appeals his convictions and sentences, raising nine issues on appeal.For reasons discussed below, McCoy's arguments regarding the various alleged trial errors fail.McCoy correctly asserts, however, that the trial court erred at his joint hearing on his motion for new trial and sentencing when it denied his clear and unequivocal request to represent himself without making any further inquiries.Consequently, we affirm in part, reverse in part, and remand for a new hearing on McCoy's motion for a new trial and resentencing.

On March 22, 2011, McCoy phoned Leanna Daniels, the mother of his 6–month–old daughter A.M.During McCoy and Daniels' conversation, Daniels heard A.M. crying.Daniels asked McCoy why A.M. was crying, and McCoy told her to come to the hotel he was staying at to find out.Daniels and her friend Gwendolyn Roby then went to the hotel to pick up A.M.According to Daniels, McCoy asked her to come into his hotel room but when she refused he grabbed her by the hair.Daniels asserts that McCoy then told his sister, Kaneshia Spencer, who was also in the room, to “come beat this bitch's ass.”It is unclear how, but Daniels was able to get away from McCoy.According to Daniels, McCoy flashed his gun at her as she was leaving the hotel room.

While this was happening, Daniels' friend Roby was watching.When Roby realized McCoy was not going to give A.M. to Daniels, she called the police.Roby and Daniels told the police that McCoy was at a hotel with A.M. and Spencer, that McCoy would not give A.M. to Daniels, and that McCoy had a gun.

Police were sent to the hotel at 4:38 p.m.The police tried to get McCoy to come out of his hotel room, but he refused.Several times McCoy yelled at the police to “get back, get the fuck back.”The police eventually asked for help from the emergency response team (ERT).The ERT attempted to contact McCoy via a megaphone and by calling his cell phone every 60 seconds.When there was no sound or movement coming from the hotel room after 45 minutes, the police decided to forcibly enter the hotel room.The police entered McCoy's hotel room without a warrant at 9:05 p.m.

The ERT entered the hotel room in a “stack” formation, with Officer Darren Pickering entering first and Officers Corey Garber, Brice Burlie, Jeremy Hedges, and Brian Carey following behind Pickering.The ERT officers had their guns drawn as they entered the hotel room.As the ERT officers entered, they saw McCoy sitting on the bed holding A.M. in one arm while using her to cover his face and holding Spencer with the other arm.McCoy also had a gun in the hand of the arm wrapped around Spencer.According to the ERT officers, McCoy was alternating pointing his gun at Spencer and pointing his gun at the police.At some point, McCoy lost control of his gun.Officer Hedges then grabbed McCoy's gun and removed it from the hotel room.Then, Officer Kramer Siemens pulled Spencer out of the hotel room and Officer Matt Trato grabbed A.M. and removed her from the hotel room.

The police struggled to arrest McCoy.During this struggle, McCoy was put into a lateral vascular neck restraint (LVNR) twice.The police found a glass pipe containing methamphetamine and a scale inside the hotel room.The police also found a baggie containing cocaine and hydrocodone in McCoy's pocket.

Following his arrest, the State charged McCoy with the following: six counts of aggravated assault on a law enforcement officer under K.S.A. 21–3411(a)(1), each severity level 6 person felonies; three counts of aggravated assault under K.S.A. 21–3410(a), each severity level 7 person felonies; one count of aggravated endangerment of a child under K.S.A.2010 Supp. 21–3608a(a)(1), a severity level 9 person felony; one count of criminal possession of a firearm under K .S.A.2010Supp. 21–4204(a)(3), a severity level 8 nonperson felony; one count of possession of cocaine with intent to sell under K.S.A.2010 Supp. 21–36a05(a)(l), a severity level 4 nonperson felony; one count of possession of drug paraphernalia with intent to use to package a controlled substance for sale under K.S.A.2010 Supp. 21–36a09, a severity level 4 nonperson felony; one count of possession of drug paraphernalia with intent to use to introduce a controlled substance into the human body under K.S.A.2010 Supp. 21–36a09(b)(2), a class A nonperson misdemeanor; one count of possession of hydrocodone under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony; and one count of possession of methamphetamine under K.S.A.2010 Supp. 21–36a06(a), a severity level 4 nonperson felony.The State additionally charged McCoy with two counts of kidnapping under K.S.A. 21–3420(a), each severity level 3 person felonies, for the kidnapping of Spencer and the kidnapping of A.M.

Before trial, McCoy phoned Daniels from the jail and asked her to lie about what had happened when she went to the hotel room.The State then amended the complaint and additionally charged McCoy with one count of solicitation to commit perjury under K.S.A.2010 Supp. 21–3303(a)andK.S.A. 21 –3805(a)(1), a severity level 10 nonperson felony.Also before trial, McCoy's attorney, Alice Osburn, filed several motions, including a motion to dismiss based on the police officers' use of excessive force and a motion to suppress any evidence obtained by the warrantless entry of the police.The trial court denied the motion to dismiss.The trial judge's ruling on the motion to suppress is not in the record, although it seems that the trial judge and the parties proceeded as if the trial judge had denied the motion.

During voir dire, the prosecutor, Thomas Stanton, used a preemptory challenge on the only African–American venireperson.Osburn objected citing Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69(1986).Stanton gave an explanation that he believed the juror had a law enforcement bias.The trial judge found that the first step under Batson had not been met and that, even if it had been met, Stanton had provided a race-neutral reason.Osburn made no further objections.

During McCoy's trial, the State had Daniels, Roby, and the 26 police officers testify about the events concerning McCoy's case.Many of the police officers testified about what they had seen and done after they entered the hotel room without a warrant.Moreover, Spencer was unavailable as a witness at trial, but several police officers testified about the statements she made while being removed from the hotel room.Osburn consistently objected to the admission of Spencer's statements.

At the jury instruction conference, Osburn requested a jury instruction on criminal restraint as a lesser included offense to his kidnapping charges.The trial judge denied this request.

The jury ultimately found McCoy guilty of kidnapping Spencer but not of kidnapping A.M, five of the six counts of aggravated assault on a law enforcement officer, and one count aggravated assault on Spencer, aggravated endangering a child, criminal possession of a firearm, possession of cocaine, solicitation to commit perjury, and possession of hydrocodone.McCoy was found not guilty of all other counts.The trial judge sentenced McCoy to 355 months' imprisonment, with his kidnapping, aggravated assault on law enforcement officer, and aggravated endangerment of a child convictions to be served consecutively.

McCoy filed his notice of appeal in November 2012.This court issued an order on March 24, 2014, stating that it retained jurisdiction over McCoy's appeal under State v. Ortiz,230 Kan. 733, 640 P.2d 1255(1982).

Did the Trial Court Err When It Denied McCoy's Motion to Dismiss?

After the police removed Spencer from the hotel room, a struggle ensued between McCoy and the police officers who entered his hotel room.According to Officer Burlie, McCoy attempted to take his holstered gun from him during the struggle.When Burlie realized this, he yelled out that McCoy was trying to get his gun.Officer Pickering responded by placing McCoy in a LVNR.A LVNR is a maneuver that allows a person to breathe in, but prevents...