State v. Milo
| Decision Date | 20 May 2022 |
| Docket Number | 120,726 |
| Citation | 510 P.3d 1 |
| Parties | STATE of Kansas, Appellee, v. Keeshaun W. MILO, Appellant. |
| Court | Kansas Supreme Court |
Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.
Boyd K. Isherwood, assistant district attorney, Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
Keeshaun W. Milo was convicted in 2018 of felony murder with the underlying felony of attempted distribution of marijuana. During the drug buy, the victim and intended purchaser, Michael Hamilton, attacked Milo and attempted to steal the marijuana. During the melee, Milo shot and killed Hamilton. Finding no error, we affirm the judgment of the district court, though for a different legal reason from that articulated by the lower court. See State v. Vasquez , 287 Kan. 40, 59, 194 P.3d 563 (2008) ().
James Welborn and Hamilton occasionally smoked marijuana together. Hamilton texted Welborn and asked if he knew where to purchase marijuana. Welborn contacted Milo, his normal supplier, on Hamilton's behalf. Milo had "higher grade" marijuana called "Gorilla Glue" available for purchase. Hamilton agreed to purchase 4 ounces for $825 and promised Welborn he would give him one-quarter ounce for setting up the deal. Welborn agreed to accompany Milo to Hamilton's home to help facilitate the transaction.
Milo picked up Welborn in a red Pontiac Grand Am owned by his girlfriend and called Hamilton as the pair arrived at Hamilton's house. Once inside, Milo placed four 1-ounce bags, presumably containing marijuana, on the kitchen counter. Alternatively, Milo has maintained throughout this case that he arrived at Hamilton's empty-handed because he had previously sold all of his marijuana.
Hamilton presented Milo with $325 in cash and a $500 Walmart gift card to pay for the transaction. He explained to Milo the ATM would not let him withdraw funds. Milo "didn't look too happy about" the gift card and demanded cash for the full price. Hamilton put the cash and gift card down and grabbed the marijuana. He then showed a gun in his right hand and became irate when Milo refused to accept the gift card. Pulling the bags toward him, Hamilton said "this is mine." He then grabbed Milo by the shirt and hit him with the pistol and his fists. Hamilton pinned Milo to the couch and told him he had "disrespected [his] house" and forced Milo to apologize at gunpoint. Hamilton jammed the pistol into the side of Milo's face and told Milo to "apologize to the whole fucking house," and Milo complied.
Hamilton declared again he was keeping the bags and told Milo to leave. Milo asked if he could wash the blood from his mouth, but Hamilton struck Milo in the head and told him to get out again. Hamilton began pushing Milo through the threshold, and Welborn heard a gunshot. Hamilton stumbled backwards and fell into the kitchen and Welborn saw a gun in Milo's hand. Hamilton lay on the ground with his pistol pointing back at Milo. Welborn heard two or three additional gunshots and ran from Hamilton's house.
Hamilton's wife found Hamilton's body. Afraid her daughter would see the gun, she took his pistol and hid it in the laundry basket. Officers later found a .32 caliber Mauser semi-automatic handgun with a double-feed malfunction—where the first round was not properly ejected before attempting to seat a second round—inside a tan tote. No spent .32 caliber casings were discovered. Hamilton's wife saw the shooter through the still-open front door and described him as a black male in his 30s, approximately 6 feet tall, thin, wearing a white t-shirt and jeans, and carrying a black semi-automatic handgun.
Welborn ran across the street to a nearby QuikTrip and heard additional gunshots as he ran. Police arrested Welborn while he was inside after a neighbor called police and told them one of the suspects entered the gas station.
Welborn provided Milo's name during his interview and police identified Milo by cross-referencing Welborn's texts and several Facebook profiles. Milo was arrested later that day after police traced his cellphone. Milo's t-shirt, belt, belt buckle, and boxer-briefs tested positive for blood. The blood on the boxers matched Hamilton. The back of the collar of Milo's t-shirt had a mixture of blood from at least two people, with the partial major contributor matching Hamilton and the partial minor contributor matching Milo. The DNA from Milo's belt and belt buckle matched Hamilton and Milo.
Milo's pockets contained 18 one-dollar bills in an envelope covered in blood matching Hamilton's DNA. An empty Black & Milds cigarette box in Milo's possession was also covered in Hamilton's blood. Police recovered the Grand Am with noticeable blood on the driver's side door—later matched to Hamilton. Further, the Grand Am's interior visor and Milo's car keys contained blood.
On December 6, 2016, the State charged Milo and Welborn with one count of felony murder with the underlying crime of distribution of marijuana.
Prior to trial, Milo requested a self-defense instruction. At trial, the district court refused to instruct the jury on self-defense, finding that Milo was either committing or attempting to commit a forcible felony.
The State established Hamilton had a graze gunshot wound to the face, blunt-force injuries to the left side of his head, abrasions, minor blunt-force injuries to his body, and a fatal gunshot wound to his chest.
Milo's defense turned in part on the fact that Sarah Welborn, James Welborn's wife, had an affair with Milo shortly before Hamilton's death. This, Milo claimed, combined with the fact that Welborn admitted he knew Hamilton was racist against African-Americans, made it likely that the two had set up the visit to Hamilton's house in order to jump Milo in revenge for the affair.
Milo also pointed to inconsistencies in Hamilton's wife's story, namely that she originally told police she did not know where Hamilton's gun was, but later changed her story and admitted it was in the hamper. Finally, Milo referenced inconsistencies in Welborn's story—chiefly that he originally told police the drug transaction "never went through."
The jury convicted Milo of first-degree felony murder. The district court imposed a hard 25 sentence and "lifetime post-release supervision if released on parole." Milo directly appealed to this court under K.S.A. 22-3608.
Milo challenges his conviction on appeal in five ways. First, he claims the district court erred when it refused to instruct the jury on self-defense. Second, he argues the district court erred when it found he was not entitled to self-defense immunity. Third, Milo asserts the district court erred when it instructed the jury on attempted distribution of marijuana. Fourth, he claims the district court wrongly denied his acquittal motion. Fifth, Milo asserts cumulative error.
The district court did not err by refusing to instruct the jury on self-defense and did not err by finding Milo was not entitled to self-defense immunity.
We address Milo's first and second challenges together because they share a flawed premise. As we clarify in detail below, self-defense is never a defense to felony murder. We acknowledge our caselaw on this point has been unclear. Today we clarify the law of self-defense in the context of a felony-murder charge.
The starting point for any alleged jury instruction error is our familiar four-part Plummer test:
"[F]or instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in [ State v. ] Ward [, 292 Kan. 541, 565, 256 P.3d 801 (2011) ]." State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012).
The use of self-defense is already limited by statute as both an immunity and an affirmative defense. It is legally unavailable to a person who "[i]s attempting to commit, committing or escaping from the commission of a forcible felony." K.S.A. 2020 Supp. 21-5226(a) ; K.S.A. 2020 Supp. 21-5231(a). A " ‘[f]orcible felony’ includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person." K.S.A. 2020 Supp. 21-5111(n).
"Forcible felonies" defined in K.S.A. 2020 Supp. 21-5111(n) are legally separate from the broader category of "inherently dangerous felonies," which serve as the underlying basis for felony-murder charges, listed in K.S.A. 2020 Supp. 21-5402(c). Although the listed forcible felonies as defined in K.S.A. 2020 Supp. 21-5111(n) are all considered inherently dangerous felonies per K.S.A. 2020 Supp. 21-5402(c), not all "inherently dangerous" felonies are considered "forcible" felonies. This partial overlap has contributed to the confusion in this area of the law.
Before we decided State v. Barlett , 308 Kan. 78, 418 P.3d 1253 (2018), the general rule from State v. Bell , 276 Kan. 785, 80 P.3d 367 (2003), and State v. Kirkpatrick , 286 Kan. 329, 184 P.3d 247 (2008), was that a defendant merely charged with committing a forcible felony could not advance a theory of...
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