State v. Myers

• Decision Date: 08 April 2022
• Docket Number: 123,439
• Parties: STATE of Kansas, Appellee, v. Anthony D. A. MYERS, Appellant.
• Court: Kansas Court of Appeals

62 Kan.App.2d 149

509 P.3d 563

STATE of Kansas, Appellee,

v.Anthony D. A. MYERS, Appellant.

No. 123,439

Court of Appeals of Kansas.

Opinion filed April 8, 2022.

Peter Maharry of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Atcheson and Warner, JJ.

Malone, J.:

After a consolidated trial of two criminal cases, a jury convicted Anthony D. A. Myers of attempted first-degree murder, two counts of aggravated battery, two counts of criminal discharge of a firearm, and two counts of criminal possession of a weapon by a convicted felon. The district court sentenced Myers separately in each case, imposing a controlling sentence of 855 months’ imprisonment.

Myers appeals, arguing (1) the district court erred in consolidating his two cases for trial; (2) the district court erred in denying his motion for new counsel; (3) he received ineffective assistance of counsel at trial; (4) his convictions for first-degree murder and aggravated battery were multiplicitous, as were his convictions for criminal discharge of a firearm and aggravated battery; (5) cumulative error denied him a fair trial; (6) K.S.A. 2020 Supp. 21-6819(b), as applied, violates his rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and (7) the district court erred in calculating his criminal history score because the State failed to provide evidence that his prior misdemeanor convictions were counseled. After thorough review of the record, we affirm Myers’ convictions but remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

On February 15, 2017, Dawnisha Johnson rented a 2005 gray Pontiac G6 from Kwik Kars. Johnson knew Myers for four or five years through close acquaintances. Johnson rented the Pontiac for Myers because Myers did not have a license. Johnson continued to extend the rental for Myers, who would give her cash to pay Kwik Kars.

Carla Carter lived at her home in Wichita with her husband, her daughters, and her four grandchildren, including J.W., who was 13, and J.C., who was 16. On February 23, 2017, Carter was standing outside watching two of her grandchildren play basketball when a car came down the street "pretty fast." Carter yelled, " ‘Slow down. The kids are playing.’ " The car then stopped and backed up to the front of Carter's driveway. Carter again told the driver to slow down. The driver then told her, " ‘Stuff like that will get a person shot up, and [he was] the type ... who could do this.’ " Carter got the tag number from the car and noticed the driver was a black male with dreadlocks. J.C. was standing near Carter when this occurred, and she told Carter after the car drove away that she got a good look at the driver. Carter called 911 to report the incident because she was scared.

Wichita Police Officer Ryan Oliphant was dispatched. Oliphant spoke to Carter who reported that a silver Pontiac G6, with tag number 757FBB, sped down her street so she yelled at the driver to slow down. Carter stated that the driver then told her, "You don't know if I'm the one to come back and shoot the house—or shoot the place up later." Carter described the driver as a black male with shoulder-length dreadlocks.

Oliphant ran the tag and discovered the car was registered to a car rental company called Kwik Kars. He spoke to the company and learned that the car was rented to Johnson. Kwik Kars called Johnson and said the police were interested in the car. After hearing that the police were calling about the car, Johnson contacted Myers to try to get the car back. When Johnson told Myers about the police, Myers told her it was just about some argument he had with some women who yelled at him in the car. Johnson told Myers to get the car back to her before the police found him. Johnson exchanged text messages with Myers about getting the car back, but he never returned it to her.

February 25, 2017 shooting

On February 25, 2017, at around 5 a.m., J.W. was asleep in his bed, in the den by the front window of Carter's house. J.W.’s bed was positioned against the wall near the window. Meanwhile, Carter was sitting up in her chair watching the security cameras when she noticed car lights and then saw brake lights. She said this caught her attention because the houses around her were empty. Carter then saw a shadow on her camera that went up the driveway and between two parked cars. Carter started to walk to the door to see what was happening when she heard "pop, pop, pop, pop, pop" and glass breaking. Carter yelled, " ‘We've been shot’ " and she saw the car leaving.

Carter was concerned about her husband and J.W. because they occupied the bedroom or den facing the front of the house. Carter ran to J.W., who was screaming and bleeding from his leg. Carter helped J.W. to the living room and called 911. The bullet had gone all the way through J.W.’s ankle, cracking the bone.

Wichita Police Officer Tyler Richards was dispatched to Carter's home. Richards asked J.W. if he had been in any arguments with anybody who would have targeted him because Richards noticed all the gunshots focused on his room. J.W. told Richards that a few days earlier someone threatened to shoot up the house. After speaking to police, Carter went with J.W. to the hospital.

Wichita Police Department Crime Scene Investigator Karie Railing responded to Carter's house. She photographed the scene, and her photos were admitted at trial. Railing documented damage to the front window. Railing saw three bullet holes on the right pane of the window and saw the center pane was broken. Railing also noticed bullet holes in the siding of the home and the entry door. Based on the bullet holes, the shooter stood in front of the house, shooting into the house. Railing found a bullet on J.W.’s bed that she collected. Railing found other bullet holes in the mattress but was unable to recover any other bullets from the scene. Outside the house, Railing recovered casings. Railing did not find any fingerprints on the casings.

Wichita Police Detective Brian Mock was assigned the case. On February 27, 2017, Mock obtained the Kwik Kars rental form and found Johnson rented the car. Mock talked to the owner of Kwik Kars, Brady Dody, who helped Mock locate the car by activating its GPS locator. The GPS did not allow officers to track the car but pinged its location when requested. Mock directed Wichita Police Officer Jared Henry and his partner, Detective Christopher Hornberger, to locate the Pontiac.

Mock called Johnson, and Johnson informed him that Myers drove the rental car on February 23, 2017, and she did not see it until after 5:30 p.m. Johnson asked why the police were interested in the car, and Johnson said that Myers had told her that he had been in some sort of argument with a lady he did not know. Johnson told Mock that she knew Myers had a gun in the past.

Henry located the car, which was unoccupied, and called an undercover officer to watch the Pontiac. Wichita Police Officer Michael Russell responded in an undercover car. Russell observed a male access the Pontiac from the passenger side and then the driver's side. The male then got into the passenger seat of a white Cadillac driven by a female. Russell observed the Cadillac start to drive away before coming to a stop. The male then exited the Cadillac and walked back to the Pontiac. Russell thought the man was carrying something small in his hands. The man then got into the Pontiac's driver's side for a moment before returning to the Cadillac. The Cadillac then started to leave the area. Russell told Henry and Hornberger to follow the Cadillac. Russell returned to watching the Pontiac.

Henry and Hornberger saw the driver of the Cadillac fail to signal, so they initiated a traffic stop. Henry contacted the driver, later identified as Elizabeth Alverado. Hornberger approached the passenger's side and the passenger identified himself as "Derek Myers." Hornberger thought the passenger was giving him a false name and asked if he had any tattoos because he could visibly see one on the passenger's chest. The tattoo said, " ‘Loyalty.’ "

Hornberger had just confirmed the passenger was Myers, when he saw him open his door and run off. Henry chased Myers through a neighborhood. Hornberger detained Alverado. Henry eventually found Myers hiding in a backyard. Henry searched Myers and found a rental car key and some money. Russell searched the Pontiac and found a .9-millimeter handgun under the driver's seat. Mock had the casings recovered from Carter's house and the gun from the Pontiac submitted for testing.

Mock met with J.C. and Carter on March 2, 2017. Mock did not tell them that anyone had been arrested but showed J.C. a photo array. J.C. identified Myers as the driver who threatened them on February 23, 2017, two days before the shooting. Mock did not get the results back from the casings and gun comparison until May 2018. In the meantime, in April 2018, Myers’ name surfaced in another shooting investigation.

April 11, 2018 shooting

J.S., a 15-year-old, lived with his father and his sister, C.S., a 17-year-old. J.S. liked to play basketball at the McAdams Park rec center. The rec center had an indoor basketball court, which players had to sign in to use, and surveillance cameras.

In the early morning of April 11, 2018, C.S. and J.S. were at home alone. J.S. was sleeping when he heard banging on the door, so he got up and saw a man through the peephole standing on the porch. J.S. opened the door and recognized the man as someone he had played basketball with at the rec center. J.S. saw the man pull a gun out of his hoodie pocket with his left hand, so J.S. started to shut the door. The man then shot through the front door. J.S. got hit in the left thigh and right foot. The man continued to fire through the door while J.S. tried to get away from the door.

C.S....