State v. Overstreet
| Decision Date | 30 January 2009 |
| Docket Number | No. 95,682.,95,682. |
| Citation | 200 P.3d 427 |
| Parties | STATE of Kansas, Appellee, v. Jason D. OVERSTREET, Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, Wichita, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.
Following a jury trial, Jason Overstreet was convicted of aggravated assault and attempted first-degree murder. Before the Court of Appeals, he claimed the following trial errors required reversal of his convictions: (1) instructional errors on aiding and abetting, (2) prosecutorial misconduct, (3) the granting of additional summation after jury deliberation had begun, (4) the giving of an additional instruction to resolve jury indecision after deliberation had begun, (5) ineffective assistance of counsel, and (6) improper conviction of two charges that were charged in the alternative. The Court of Appeals affirmed in an unpublished opinion. State v. Overstreet, unpublished opinion No. 95,682, 2008 WL 360642, filed February 8, 2008. We granted Overstreet's petition for review and now reverse and remand for a new trial.
Late in the evening on December 7, 2004, Damian McCall was in the drive-thru of a fast-food restaurant in Wichita when he noticed a green Chevy Tahoe pull up behind him. According to McCall, the driver of the Tahoe leaned out the window and looked at McCall's customized Ford Expedition. McCall thought the driver looked like a rapper named Chingy and mentioned this fact to his friend with whom he was talking on his cell phone.
McCall picked up his food and started to drive home. The Tahoe pulled out immediately behind McCall without stopping to pick up any food at the drive-thru window. McCall eventually got on to the highway and drove several miles until he took the Pawnee exit. The Tahoe remained behind McCall during this entire drive.
Shortly thereafter, McCall approached his apartment complex and backed into a parking spot so he could watch the Tahoe. The Tahoe turned into the parking lot and drove past McCall's Expedition; it then turned around and drove by McCall a second time. When the Tahoe reached the parking lot exit, it again turned around, blocking a truck that was nearby.
After turning around this second time, the Tahoe drove back toward McCall's vehicle and stopped. McCall saw a man jump out of the passenger side and run toward his Expedition. When he observed the man "reach and pull something" from his person, McCall lay flat in his vehicle in case it was a gun. The man fired several shots into the front of the Expedition. McCall was not hurt.
Once the shooting ceased, McCall sat up and saw the man running away. McCall put his Expedition in drive and rammed the Tahoe. McCall's vehicle flipped as a result of the collision, and the occupants of the Tahoe fled on foot.
When the police arrived at the scene, they found eight cartridge casings and two bullet fragments in the apartment complex parking lot. McCall's expedition had been struck by bullets six times: five bullets hit the front of the SUV on the driver's side, and one bullet struck the windshield on the passenger's side.
The police also found three cell phones inside the Tahoe and one on the grass outside the driver's door. One of the cell phones found inside the Tahoe on the front passenger-side floorboard belonged to Tracy Lafferty. Lafferty had loaned the cell phone to Jason Overstreet (the defendant in this case) the previous month, and it had never been returned.
Shortly after the incident, three men were apprehended at the nearby Wal-Mart: Kendrick Shears, James Walker, and Ishmel Agnew. Joshua Bauder and Tyler Mott—who had both been in the truck near the parking lot exit and had witnessed the shooting— identified Shears as the shooter and Walker as the driver of the Tahoe.
Police obtained fingerprints from three areas on the Tahoe. One print was found on the exterior of the driver's door, and two prints were found outside the passenger door. Tests matched the passenger-side prints to Shears, but none of the prints matched Agnew or Walker.
Further investigation ensued. During Detective Randall Reynolds' interview of Ishmel Agnew, Agnew mentioned the name "Jason" in connection with his description of the events but did not provide a last name. Reynolds also interviewed Linda Dubois, who owned the Tahoe. Dubois informed Reynolds that she loaned the Tahoe to a man named "Jason" at her friend Jeff's house.
Reynolds later spoke with Jeffrey Fay, Dubois' friend, who indicated that the "Jason" discussed was Jason Overstreet. Fay testified at trial that he remembered Dubois lending Overstreet the Tahoe. According to Fay, Overstreet left in the Tahoe and returned with three or four black men, then left a second time.
Reynolds subsequently showed McCall a photo array that included Overstreet's picture and pictures of five other similar individuals, asking McCall whether any of these men were the driver of the Tahoe that had followed him home from the restaurant. McCall circled Overstreet's picture and wrote that Overstreet "resemble[d] the driver" but that McCall was "not one hundred percent sure."
Fingerprint analysis also matched Overstreet's prints with the fingerprint found on the Tahoe's driver's side door.
The State charged Overstreet with attempted first-degree (premeditated) murder or—in the alternative—aggravated assault, both based on an aiding and abetting theory.
At trial, McCall again identified Overstreet as the driver of the Tahoe, testifying that although he could not be 100 percent certain because it was dark on the night of the incident, he was "about 85, 90 percent sure." McCall based his identification of Overstreet on the fact that he had seen the driver lean out of the window in the drive-thru and on his observation of the Tahoe as it followed him in the parking lot of his apartment complex, which had some lighting outside the apartment building.
Because Overstreet was not found on the night of the shooting, no witnesses were able to identify him at the crime scene except the victim, based on observations earlier in the evening.
The State did not call Bauder or Mott as witnesses. Overstreet's defense counsel attempted to introduce Bauder's and Mott's identifications of Walker—not Overstreet— as the Tahoe's driver during the cross-examination of Detective Reynolds, but these identifications were excluded on the basis of hearsay. Overstreet's counsel subsequently moved the district court for a continuance, indicating that he intended to call Bauder and Mott as witnesses for the defense but had thus far been unable to locate them. The district court granted a continuance of the trial until the next morning to give defense counsel an opportunity to find the men.
Bauder testified for the defense the following morning. He explained that he "believe[d]" he identified Overstreet at the scene, but he was uncertain of that identification because he was focused primarily on the shooter, not the driver. After Bauder testified, defense counsel recalled Detective Reynolds, who testified that Bauder identified Walker—not Overstreet—as the driver on the night of the incident and that Overstreet had not been present at the time.
During deliberations, the jury submitted several questions for clarification to the district court and also requested the readback of trial testimony. On the morning of the second day of deliberations, the court asked the jury if it would benefit from additional summation from counsel. The jury requested summation on two points: (1) the intent of the shooter and (2) whether Overstreet had to be driving the Tahoe in order to be found guilty of the charges on an aiding and abetting theory. While defense counsel objected to the ground rules for the additional summation, there was no objection by either party to the additional summation, and both counsel agreed to provide additional argument on the requested topics.
Later on their second day of deliberation, the jury notified the court that it had reached a unanimous decision on the aggravated assault charge but was split on the attempted murder charge. With the consent of the parties, the court instructed the jury to continue with deliberations in an effort to reach a verdict. Shortly thereafter, the jury returned guilty verdicts on each of the alternative charges.
Before sentencing, Overstreet filed a pro se motion for a new trial that included several claims of ineffective assistance of counsel, among them an allegation that his defense counsel did not adequately prepare for trial since he did not locate Mott and did not adequately prepare Bauder as a witness, given Bauder's confusion as to his identification of the defendant at the crime scene.
Defense counsel also filed a motion for judgment of acquittal or for a new trial based, among other reasons, on the court's allowance of additional summation and the jury instruction provided on aiding and abetting.
The court denied both motions. The defendant was sentenced to 195 months in prison for the attempted first-degree murder conviction; the court did not impose a sentence on his aggravated assault conviction since the crimes were charged in the alternative, although this conviction was noted on the journal entry.
Overstreet's appeal was stayed, and the Court of Appeals remanded his case to the district court for a hearing on his ineffective assistance of counsel claims. After an evidentiary hearing, the district court concluded that he was adequately represented at trial. His convictions and sentence were affirmed, and we granted the defendant's petition for review.
(1) AIDING AND ABETTING INSTRUCTION
Overstreet argues that the district court's aiding and abetting...
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