State v. Moore
| Citation | 357 P.3d 275,302 Kan. 685 |
| Decision Date | 28 August 2015 |
| Docket Number | 109,480. |
| Parties | STATE of Kansas, Appellee, v. Dominic MOORE, Appellant. |
| Court | United States State Supreme Court of Kansas |
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause, and was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Derek Schmidt, attorney general, was on the brief for appellee.
Charles Ford and Larry LeDoux were killed in a shoot-out during an attempted drug-house robbery. Brandon Ford, who survived the incident and who previously knew Cedric Warren, named Warren as one of the two shooters and later identified Warren's codefendant, Dominic Moore, as the second killer. Warren and Moore were tried together, and a jury convicted Moore of one count of premeditated first-degree murder based on an aiding and abetting theory, one count of intentional second-degree murder, and one count of attempted premeditated first-degree murder. The district court imposed a life sentence with a mandatory term of 50 years (hard 50 life sentence) for the first-degree premeditated murder conviction.
On direct appeal to this court, Moore argues that (1) the district court violated his right to an impartial jury by denying his motion for a mistrial after a potential juror's comments irreparably tainted the jury pool; (2) the district court violated his due process rights when it denied his motion to suppress an eyewitness identification; (3) the district court erred in denying his motion for a mistrial and his motion for a new trial based upon the eyewitness' changed testimony at trial; (4) the district court erred in admitting a weapon and the results of scientific testing conducted on it without an adequate chain of custody; (5) the district court erred in instructing the jury to consider the degree of certainty demonstrated by the eyewitness when identifying Moore; (6) cumulative error denied him a fair trial; (7) the hard 50 sentencing scheme is unconstitutional; and (8) the district court erred by ordering lifetime postrelease supervision.
Finding no reversible error, we affirm Moore's convictions. However, pursuant to Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2160–63, 186 L.Ed.2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), we must vacate the hard 50 life sentence and remand the case to the district court for resentencing.
On February 13, 2009, Brandon, Charles, and Larry spent most of the day at a house in Kansas City, Kansas, which was used by Charles and Larry to facilitate their drug transactions. Charles was armed with a loaded nine millimeter Glock and Larry kept a loaded AK–47 within his reach, but Brandon was initially unarmed when two men came to the house that evening.
Brandon's account of what happened when the two men arrived at the house changed several times. Brandon initially told the police that he was walking up to the house when people started shooting at him. Later that day, he changed his account and related that he was inside the house walking toward the bathroom when the two men entered the house, one of whom he knew as “Ced.” As he entered the bathroom, Brandon said he heard someone say “where's the shit” or “give me the shit,” immediately followed by gunshots. Brandon exited the bathroom and saw a short black male holding a gun, whereupon he ducked into a bedroom, locked its door, and retrieved a weapon. Brandon exchanged gunfire through the closed bedroom door with someone outside. After the shots subsided, Brandon looked out the window and saw two men running toward an SUV. Brandon exited through the bedroom window, ran to a nearby house, and asked the resident to call the police.
When police arrived at the residence, they found Charles' body near the front door surrounded by several different types of cartridge casings and Larry's body in the dining room with .40 caliber Smith and Wesson spent cartridges scattered nearby. Police also discovered a locked bedroom door riddled with bullet holes. A police officer broke down the door and observed an open window in the bedroom.
Although no weapons were found in the house, police recovered multiple gun magazines and a significant amount of ammunition. Police also discovered a black bag hidden inside a clothes dryer; the bag contained packets of cocaine.
Brandon was transported to the police station and shown a lineup, from which he identified Warren as the individual he knew as “Ced.” He also provided the police with a description of the second killer. The day after the murders, police apprehended Warren at a house in Kansas City, Missouri. Moore was also in the house, and he matched the description Brandon gave of the second killer. A search of the Missouri house revealed several weapons, including a Glock nine millimeter semi-automatic handgun, and drugs, all hidden within an air duct. Brandon was later able to select Moore out of a lineup as the short black man he saw in the hallway.
Moore was charged with the premeditated first-degree murder of Larry, based on an aiding and abetting theory; the intentional second-degree murder of Charles; and the attempted premeditated first-degree murder of Brandon. At trial, Brandon testified that he was sitting in the living room when he saw Warren come up the stairs after entering the house. Brandon said that Warren went straight into the kitchen and began shooting at Larry. Brandon ran to the bedroom to retrieve a weapon, but he said that he was able to see Moore, while he was aiming his weapon through the cracked bedroom door, also come up the stairs after entering the house. Brandon admitted that his trial testimony was inconsistent with previous statements, wherein he said he was in the bathroom when shots were fired. Brandon was extensively cross-examined on his inconsistent testimony.
A KBI firearm's examiner testified that the casings found at the crime scene came from three different guns, one of which was the Glock seized from the Missouri residence. Specifically, two cartridge casings found under Charles' body were fired from the Glock. A KBI forensic scientist testified that a sample taken from the Glock was consistent with Moore's DNA profile. The estimated frequency of the sample obtained from the Glock was 1 in 43 for the black population, which the forensic scientist noted is a “pretty common profile.” The KBI firearm's expert testified that the bullet recovered from Larry's body was a .40 caliber full metal jacket round, but he was unable to tie it to a particular spent cartridge or to identify the type of weapon from which it was fired.
Warren presented two alibi witnesses in his defense. His stepmother, Nicole Carter, testified that on the night of the murders, Warren was at her house until approximately 11 p.m., when he left to go to a music show with his father. Warren's father, Cedric Toney, testified that he dropped Warren off at a friend's Kansas City, Missouri, house around midnight. The murders were alleged to have taken place around 11 p.m. Moore did not present any evidence in his defense.
The jury convicted both defendants as charged. Moore filed a motion for new trial, which the district court denied. The State filed a motion for imposition of a hard 50 sentence for Moore's first-degree premeditated murder conviction under K.S.A. 21–4635, which the district court granted. Moore's sentences for the other two convictions were ordered to be served concurrently with the hard 50 life sentence.
Moore filed a notice of appeal 1 day beyond the 14–day jurisdictional limitation of K.S.A. 2011 Supp. 22–3608(c). We ordered Moore to show cause why his appeal should not be dismissed for lack of jurisdiction. Moore responded that State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982), applied because he was furnished an attorney who failed to perfect and complete the appeal. We retained Moore's appeal. Additional facts are provided as needed to address Moore's claims on appeal.
Moore's first issue concerns comments made by a member of the venire during voir dire. We addressed this precise issue in affirming the conviction of Moore's codefendant, Warren. See State v. Warren, (No. 107,159, this day decided). Nevertheless, we include the entire analysis here, as well.
The prosecutor followed up by inquiring whether C.W.'s apprehension would interfere with his jury duty, and C.W. responded, C.W. explained that even if the jury rendered a guilty verdict and the defendants went to jail, nevertheless
Thereafter, the district court conducted a bench conference at which defense counsel requested a mistrial, arguing that the jury pool had been “poisoned at this point beyond—possibly beyond salvation.” The prosecutor argued that any possible prejudice could be cured by informing potential jurors that while the defendants could review the questionnaires during jury selection, they did not have access to the questionnaires during the trial. The district court took the motion for mistrial under advisement and thereafter provided the following instruction to the jury pool:
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