State v. McKinney

• Decision Date: 26 October 2001
• Docket Number: No. 83,217.,83,217.
• Citation: 272 Kan. 331,33 P.3d 234
• Parties: STATE OF KANSAS, Appellee, v. CELESTER McKINNEY, Appellant.
• Court: Kansas Supreme Court

272 Kan. 331

33 P.3d 234

STATE OF KANSAS, Appellee, v. CELESTER McKINNEY, Appellant.

No. 83,217.

Supreme Court of Kansas.

Opinion filed October 26, 2001.

Mary Curtis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

Michael A. Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Celester McKinney appeals from his conviction of premeditated first-degree murder in the death of Greg Miller. He contends (1) the trial court erred in denying his motion for new trial based on newly discovered evidence, (2) the prosecutor committed misconduct in presenting false witness testimony, (3) the trial court erred in responding to a jury question when the defendant was not present, (4) the trial court erred in admitting certain hearsay statements, and (5) the prosecutor's closing argument violated his constitutional rights. Finding no reversible error, we affirm.

Celester McKinney, his brother Dwayne McKinney, and his cousin Brian Betts were all charged with first-degree premeditated murder of Greg Miller. Based upon a pretrial motion to sever, the defendant, his brother, and his cousin were granted separate trials. Defendant Celester McKinney was found guilty, and we deal with his appeal in this case. Brian Betts was also found guilty, and his appeal was decided by this court in State v. Betts, No. 84,112, filed this date. Dwayne McKinney was found not guilty.

The major players involved in this appeal are Celester McKinney, Dwayne McKinney, and Brian Betts. The main witness for the prosecution was Carter Betts, who is the uncle of the three codefendants. Jimmy Spencer, Jr., uncle of the victim, also testified on the part of the State. Other witnesses who testified at trial are identified below.

In the early morning hours of December 29, 1997, police in Kansas City, Kansas, responded to a report of shots fired, finding the body of Greg Miller. Greg had been shot 18 times with both a shotgun and a rifle. A trail of blood led to the body. Spent 12-gauge shotgun shells and empty rifle shell casings were found near the body. A cleaning rod from a rifle was also discovered near the scene.

Alfred Burdette, Jr., the person who reported the shots, testified he heard gunshots at approximately 3 a.m. He looked outside and saw a person walking and firing a gun. Another person on the other side of the street was also firing. At first, Burdette thought the persons were shooting at each other but then he noticed they both ran off together in the same direction. Burdette testified at trial he saw one of the shooters enter the rear gate at 2917 N. 5th. He stated the person went to the door, hesitated, and went in. Officer Keto Thompson, who was one of the officers responding, testified that he talked to Burdette. According to Officer Thompson, Burdette said the person went between the houses but Burdette did not know whether the person had actually gone into the house in question.

Carter Betts provided the testimony linking the defendant to the crime. According to Carter's testimony, his three nephews: the defendant, Dwayne McKinney, and Brian Betts, lived with and worked for him. The Betts family owns the house at 2119 N. 5th, which is divided into several different apartments.

Carter testified that he, the defendant, and Dwayne were cleaning a building on the night in question and returned home between 11:30 p.m. and midnight. Carter went to sleep, while the defendant and Dwayne watched television. At approximately 3 a.m., Carter heard a number of gunshots. He testified he then heard the front door open and close. He went downstairs to investigate and found the defendant, Dwayne, and Brian. A pistol-grip shotgun and an assault rifle lay at the feet of Dwayne and Brian.

According to Carter, when he asked what happened, the defendant replied: "We shot that Greg." The defendant explained to Carter that they suspected Greg of breaking into and burglarizing Brian's apartment. The defendant told Carter he had gone to talk to Greg and brought him back into the alley behind the house. When Greg denied breaking in, Dwayne raised a gun to shoot him. However, the gun jammed and Greg began to run away. At this point, the defendant told Dwayne and Brian to stop Greg because they could not let him live to be a witness. Dwayne and Brian began firing. Their shots knocked Greg down. The defendant told Carter that Brian then went over to Greg and finished him off.

Carter testified that when the police questioned him regarding the incident, he told them his nephews had been in bed asleep at the time the shots were fired. Later, however, the police questioned him at the station and he changed his story. Carter stated that he decided to tell the truth because the word on the street implicated him in the murder and he was scared.

Carter stated that he was testifying under duress, as it was difficult to testify against his nephews. On cross-examination, he admitted signing a letter stating he wanted to "discredit" his testimony. He stated his sister, the defendant's mother, typed the letter for him to sign. He stated he signed the letter because he did not want to testify.

Jimmy Spencer, Jr., also provided information linking the defendant to the crime. He stated he woke up around 3 a.m. in order to get something to eat and found the soda pop he put in the refrigerator was gone. He woke Greg, who was living with him, and asked him if he had taken the soda pop. Greg confirmed he had, so Spencer sent Greg out to buy a soda pop from a nearby machine. When Greg returned, he told Spencer that a person named Les wanted to talk to him. Spencer testified that he thought Greg was referring to the defendant, Celester McKinney, as Les. Greg left to find out what Les wanted. Spencer stated that he heard gunshots a few minutes later. He looked out the window and saw someone shooting toward the ground. Spencer dressed and went to investigate whereupon he found Greg's body. Soon after, the police arrived.

On the basis of this evidence, the defendant was convicted of first-degree premeditated murder. He filed a motion for a new trial which was denied, and then a notice of appeal. Soon after, the defendant filed a motion for a new trial based on newly discovered evidence. The defendant's motion alleged Carter had recanted his testimony during a posttrial hearing in Brian's trial, which was based on the same incident. The defendant's motion also alleged the district attorney had suborned perjury in the defendant's case, both from Carter and also from Officer Thompson concerning what Burdette told him the night of the incident. Because the defendant had already filed his notice of appeal, this court remanded the matter to the trial court for a hearing on the motion.

Initially, Officer Thompson testified concerning Burdette's statement. Officer Thompson confirmed he testified at trial that Burdette said he did not know if the shooters had gone into the house. He also testified his report stated Burdette told him the shooters ran down the alleyway between the two houses.

The hearing then moved to Carter's recantation. Carter testified that after the first interview during which he told the police he had gone back to sleep after hearing gunshots, the police kept pressing him. Carter stated the story he told police about his nephews being involved in the shooting was a lie and was based on what police had told him about the murder and what he had heard around the neighborhood. He testified that he had lied because he was afraid he might be connected to the murder.

Carter stated that the night before the preliminary hearing in the defendant's case, he met with prosecutor Daniel Cahill and Cahill told him what his testimony should be. Carter stated that during Dwayne's trial, he testified he was lying, at which point the prosecutor asked for a recess. According to Carter, Cahill threatened him during this recess.

Carter testified that the truth was that he had heard the gunshots but went right back to sleep. He testified he did not know who killed Greg.

Prosecutor Cahill testified on behalf of the State at the hearing. He stated that while he had talked to Carter the night before the preliminary hearing, he did not coach him as to how to testify. He stated Carter was jittery and did not want to testify but that Carter never stated his testimony would not be true. Cahill also stated Carter told him prior to the defendant's trial that Cahill should not call him to testify because Cahill would not like what would happen. Regarding the incident during Dwayne's trial, Cahill testified it occurred during a motion prior to trial and Carter simply stopped answering questions. Cahill testified that a recess was taken and he met with Carter and Carter's mother. Cahill denied threatening Carter.

The State also presented the testimony of Ray McKinney, a Kansas City, Kansas, police officer. Ray is the defendant's uncle. Ray stated he received a telephone call from Patricia Betts, who is the defendant's mother. Patricia told Ray she thought her boys were involved in the Greg Miller murder.

The trial court found Carter's recantation was not credible. The court further found that the prosecutor did not present perjured testimony at trial. Accordingly, the trial court denied the defendant's motion for new trial.

Denial of New Trial—Recanted Testimony of Carter Betts

Carter's testimony not only linked the defendant to the crime but provided the basis for the defendant's conviction. Without his testimony there would have been no evidentiary basis for the defendant's murder conviction. After trial, Carter recanted his trial testimony, thus providing the defendant with new evidence that, if believed, would...