State v. Nelson, 104,070.
| Decision Date | 18 May 2012 |
| Docket Number | No. 104,070.,104,070. |
| Citation | 276 P.3d 837 |
| Parties | STATE of Kansas, Appellee, v. Cameron NELSON, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Saline District Court; Daniel L. Hebert, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and BUSER, JJ.
After two hung jury trials, a third jury convicted Cameron Nelson of second-degree unintentional murder and criminal possession of a firearm. Nelson asks for a reversal of his convictions based on alleged insufficiency of the evidence to support unintentional/reckless murder, the admission of evidence of a prior shooting, the admission of photos and a list of cell phone contacts, alleged prosecutorial misconduct, and cumulative error.
The impetus for the events leading to the death of Mark Simpson began weeks earlier at a Salina nightclub called The Groove. Kendral Carter and his cousin Jason Hartfield were involved in a fight with Kash Wilson in the parking lot behind The Groove. Wilson sustained injuries in the fight requiring hospital treatment.
On April 15, 2008, a party started at the apartment shared by Charles Colvin and Chris Barr. The partygoers, including Simpson, Nate Ervin, and Jason Crank, were drinking alcohol and using illegal drugs. Colvin testified he had been trying to contact Otis Jones, Jr., throughout the evening to purchase more cocaine, but he had been unable to reach him. Ervin, Simpson, and Crank continued to party at a local bar and then around 2 a.m. drove to Jones residence at 545 S. 10th in Salina in search of more cocaine. When they arrived, Crank went to the front door, while Ervin and Simpson remained in or near the street. Crank testified he heard a gunshot and “hunkered down” for a minute trying to protect himself. He said he tried to get into the house for safety, but no one would open the door.
Crank testified that when he finally looked, he saw Ervin near Simpson, who was lying on the street. He then saw Ervin run to the car and drive away. Crank attempted to assist Simpson and remained at the scene until police arrived. Based on Ervin's actions, Crank told the police he thought Ervin shot Simpson. Ervin was arrested for Simpson's death, but the charges were not pursued.
Carter was at his uncle's house at 545 S. 10th. There were many relatives there. Carter testified he was on the porch when he saw a four-door silver car parked near the driveway. Lauren Berry told him the car kept stopping in front of the house and then leaving. Carter said he did not recognize the car. Carter said that later there were knocks at the door, but no one was there when he answered it. Carter testified he heard honking and gun shots and then received a phone call from Berry who said there were three men on the porch with guns. Sometime after Berry's phone call, Carter said he heard voices outside, opened the door, and saw “a white guy and a couple other guys.” He told them to get out of the yard, and he went back inside.
When Carter looked out the window again, the three men were still there. He saw a white four-door car parked in the street. When he stepped out onto the porch, Carter saw the silver car from earlier in the evening pass by the house again. Simpson was standing in street and the silver car had to swerve to miss Simpson and then almost hit Ervin. The driver of the silver car slammed on its breaks and Ervin threw his hands up. Carter said a gun shot came from a passenger side window, but he could not tell whether it was from the back or the front. Carter went back inside and when he heard voices again, he opened the door and saw Ervin and Crank trying to help Simpson, who was lying in the street. He said that Crank asked him for help and Ervin drove away.
The State's key witness was Clifford Bunville. Bunville testified he had loaned his silver Alero to Nelson, Wilson, and Jared Veal on the night in question. They asked Bunville to go with them to fight Jason Hartfield—Wilson drove, Nelson was in the front passenger seat, Veal was behind the driver, and Bunville was behind Nelson. Bunville said that as they turned onto 10th, a white car was stopping at 545 S. 10th, so they drove around the block. The conversation in Bunville's car turned to whether the people in the street were associates of Hartfield. They turned onto 10th for another pass at 545 S. 10th. Bunville testified that as they passed the residence, they bumped Simpson with the car and he saw Simpson stumble. Simpson began approaching the front passenger window. Bunville saw Nelson put his arm out of the front window and shoot Simpson. Bunville testified that Nelson and Kash discussed disposing of the gun.
Lauren Berry testified she was living at 545 S. 10th on April 16, 2008. Berry's friend Jana Crawford was visiting her that evening. They saw a silver car parked in front of the house, but it drove off when they approached it. Later, Crawford and Berry went to get something to eat with their children, and the silver car was still there when they returned. They tried to talk to the passengers but got no response. They had some of the men inside the house come out onto the porch to talk to the passengers, but there was still no answer. Berry said as they went back inside, someone in the passenger seat pointed a gun at her.
After there were several knocks at the front door and no one was there when they answered the door, Berry and Crawford decided to take their children somewhere safer. They saw the silver car parked down the street. Berry testified that when they returned, they saw two men on the porch and one man in the yard. One of the men had a gun so Berry started honking her horn. The men ran away down an alley, and the women followed in their car. Crawford did not know any of the men, but Berry recognized one of them as Wilson. The women decided not to go any farther down the alley, but they then saw the men running toward them, saw flashes of light, and heard gunshots. The women sped away. They stopped in a lighted parking lot nearby and found no bullet holes in the car.
During a search of Nelson's home, officers discovered a black safe that contained a partial package of .45 caliber ammunition, a large amount of cash, and multiple documents addressed to Nelson. Thomas Price, a firearm forensic expert, testified that the spent cartridge casings found in the alley near 545 S. 10th and the casing found near Simpson's body were all .45 caliber and were all fired from the same firearm.
The State initially charged Nelson with intentional first-degree murder. The charges were later amended to intentional second-degree murder. The defense's theory was that someone else had shot Simpson—most likely Ervin; the State could not place Nelson as the shooter; there was no evidence that Simpson died from a .45 caliber bullet; there was no evidence that the bullet that killed Simpson came from Nelson's gun; the State could not present the gun used in the shooting; and any revenge for the fight at the Groove was personal to Wilson, not Nelson.
Nelson's case consumed three separate, lengthy trials in December 2008, April 2009, and September 2009. His first trial ended in a hung jury. Before the second trial, the State added a charge of criminal possession of a firearm. At the second trial, the trial court instructed the jury on the lesser included offenses of unintentional reckless second-degree murder and involuntary manslaughter. The jury was unable to reach a verdict in the second trial as well and, the court was forced to declare a another mistrial.
After a third trial, a jury convicted Nelson of the lesser offense of unintentional reckless second-degree murder and criminal possession of a firearm. Nelson filed a motion to set aside his convictions or in the alternative to consider a new trial. He alleged the State had committed prosecutorial misconduct by withholding information about a deal the State had with Bunville concerning Bunville's prosecution in an unrelated case. As will be discussed more thoroughly below, the trial court denied the motion finding there was no prosecutorial misconduct or withholding of information. Nelson was successful in gaining leniency at sentencing.
Nelson has a lengthy criminal history that resulted in a large presumptive sentence. With a criminal history score of A, his presumptive sentencing range was 442–467–493. The trial court granted Nelson's request for a downward durational departure and sentenced him to 300 months' imprisonment for unintentional second-degree murder and a concurrent sentence of 8 months' imprisonment for criminal possession of a firearm. The court granted the departure for the following reasons:
Nelson first argues there was insufficient evidence to convict him of the lesser included offense of unintentional second-degree murder. He contends the State failed to present any evidence that he had killed Simpson “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” Nelson argues all the evidence presented by the State demonstrated intentional conduct—thus, he is entitled to a reversal of his reckless second-degree murder conviction;
Our current standards for challenges to the sufficiency of the evidence in a criminal case are well established and well tested. When the sufficiency of the evidence is challenged in a criminal case, we review all the evidence, viewed in the light most favorable to the prosecution, to determine whether the court is convinced that a rational factfinder could have found the defendant guilty beyond a...
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