State v. Parks

• Decision Date: 20 July 2012
• Docket Number: No. 101,905.,101,905.
• Parties: STATE of Kansas, Appellee, v. Perry PARKS, Appellant.
• Court: Kansas Supreme Court

294 Kan. 785

280 P.3d 766

STATE of Kansas, Appellee,

v.Perry PARKS, Appellant.

No. 101,905.

Supreme Court of Kansas.

July 20, 2012.

Syllabus by the Court

1. The refusal of a criminal suspect who has received Miranda warnings to have his or her statement to law enforcement memorialized in a certain way, e.g., by videorecording, is not the legal equivalent of an exercise of the suspect's right to remain silent and thus does not implicate Doyle v. Ohio, 426 U.S. 610, 618–19, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

2. A police detective's reference to finding “some marijuana” at a defendant's house at the time of the defendant's arrest, despite violating a pretrial order in limine, does not require reversal of the defendant's convictions for felony murder and an underlying aggravated robbery, when: (a) the reference was very brief; (b) its vagueness limited its persuasive power; (c) the misbehavior it implied—possession of marijuana—was minor when compared to the seriousness of the crimes charged; (d) the district judge, as requested by the defense, directed the jury to disregard the testimony; and (e) the evidence against the defendant on the charged crimes was strong.

3. When a district court judge provides a criminal defendant exactly the opportunity the defendant seeks to conduct a limited voir dire of a State witness on the witness' undocumented immigration status and whether there has been an assurance of favorable immigration treatment in exchange for the witness' testimony, and the voir dire turns up no evidence of such an assurance, the inquiry comes to its natural end. This court will not reach the distinct issue of whether the district judge abused his or her discretion by limiting the defendant's general cross-examination of the witness before the jury on the witness' undocumented immigration status, when that sort of general cross-examination was not sought by the defense.

4. The giving of a modified Allen-type instruction before the jury began its deliberations was error but not clearly erroneous, on the record of this case.

5. Aggravated robbery is not a lesser included offense of a felony murder with the aggravated robbery as the underlying felony, and a defendant may be convicted of and sentenced on both offenses.

6. The cumulative error rule does not require reversal of the defendant's convictions for felony murder and aggravated robbery on the record of this case, despite violation of a pretrial order in limine and the giving of a modified Allen-type instruction before the jury began its deliberations.

7. A criminal defendant's sentencing to the upper limit of the applicable Kansas Sentencing Guidelines Act grid box does not first require a jury to find the existence of an aggravating factor beyond a reasonable doubt.

8. A criminal defendant's sentencing based on his or her criminal history does not first require a jury to find the existence of the criminal history beyond a reasonable doubt.

Carl A. Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Michael A. Russell, chief deputy district attorney, argued the cause, and Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

This direct appeal challenges defendant Perry Parks' convictions and his consecutive hard 20 life and 247–month sentences for the first-degree felony murder and aggravated robbery of Everett Suits in Kansas City in May 2008.

Parks raises eight questions on this appeal: (1) Did the district judge err in admitting evidence of Parks' post– Miranda silence? (2) Did violation of an order in limine prohibiting reference to Parks' possession of illegal drugs violate Parks' right to fair trial? (3) Was Parks' right to confrontation violated by limitation of his counsel's cross-examination of a State's witness about the witness' immigration status? (4) Was the district judge's inclusion of an Allen-type instruction reversible error? (5) Did cumulative error deprive Parks of a fair trial? (6) Did the district judge err in sentencing Parks for both first-degree felony murder based on the underlying felony of aggravated robbery and for aggravated robbery? (7) Did the district judge err in sentencing Parks to the term of imprisonment at the upper limit of the applicable Kansas Sentencing Guidelines Act grid box without requiring a jury to find the existence of an aggravating factor beyond a reasonable doubt? and (8) Did the district judge err by sentencing Parks based on criminal history that was not proved to a jury beyond a reasonable doubt?

We affirm Parks' convictions and consecutive sentences.

Factual and Procedural Background

Before trial, Parks' counsel filed a motion in limine seeking to prevent the State from introducing evidence that marijuana was found at Parks' residence when he was arrested. The district court judge granted the motion.

At trial, Parks admitted to killing Suits but argued he did so in self-defense. The State's theory was that Parks shot and robbed Suits over a debt. Four eyewitnesses to the shooting and the argument that led to it testified at trial.

Jeff Aleksaites testified that he observed a confrontation between Parks and Suits from his apartment window. Aleksaites saw the men standing in a parking lot by a pickup truck where they were arguing about money. When Suits attempted to leave in his truck, Parks prevented him from doing so and brandished a weapon. There was a brief struggle over the gun, and then Parks shot Suits. Aleksaites testified that Suits had a briefcase at the beginning of the argument; and, although Aleksaites never saw Parks with the briefcase, he saw him reach for it at one point and knew the briefcase was missing after the shooting.

Kara Krenzer testified that she witnessed the argument that led to the shooting from her car in the parking lot. Krenzer said she had seen Parks once before when he tried to get Suits' attention for something related to work. Krenzer saw Suits come down a set of stairs to the lot, saw Parks greet him, and saw the men walk to Suits' truck. Krenzer, with her passenger, Christine Enfield, pulled her car near to Suits' truck. Krenzer overheard Parks asking for money and heard Parks say, “You are going to give me something,” as he reached for Suits' briefcase. Suits pulled back on the briefcase. At that point, Parks reached into his pocket for a gun and pointed it at Suits through his shirt. Parks then looked at Krenzer and said, “Do you want to make this your problem?” Krenzer heard Suits say, “If you are going to shoot me, shoot me.” Enfield then urged Krenzer to leave and call 911. Krenzer heard gunshots fired as she drove out of the lot. She proceeded around a corner to another parking lot and pushed an emergency call button to notify police. When she returned to the scene, she saw Parks walking away. At trial, she could not remember at trial if Parks was carrying anything with him. Krenzer had been unable to identify Parks in a photographic lineup pretrial, but she identified him as the shooter at trial.

Enfield also testified about what she saw and heard at the scene of the shooting. Her testimony largely repeated Krenzer's, and she identified Parks as the man who argued with Suits.

Pedro Morales testified at trial through the aid of an interpreter. Morales first testified outside of the presence of the jury that he was not promised anything with regard to his immigration status in exchange for his testimony. Before the jury, Morales said he was returning from work and heard a gunshot when he got out of his car. He ran toward the fence separating his apartment's parking lot from that of a neighboring building, looked into the other parking lot, and saw the man he later identified as Parks shooting Suits. Morales said he heard Suits yell, “Don't shoot!” Morales then saw Parks carrying a briefcase away from the scene. Morales wrote down the license plate number of the truck Parks drove away; and, when police arrived, Morales approached them and gave them the license plate number.

Other trial witnesses for the State included Morris Dwayne Erwin, Suits' cousin, who testified about Suits' construction business. Erwin knew Parks from Parks' work for Suits on two different job sites. Erwin testified that Parks repeatedly called Suits, because Suits had written Parks a bad check and owed him money.

Pathologist Erik Mitchell, M.D., testified that Suits had a gunshot entry wound on the outside of his right arm and had two abrasions below his knees. Mitchell testified that Suits' arm had to have been raised at the time he was shot, but it was not possible for Mitchell to tell whether Suits was standing, on his knees, or lying down then.

Several members of law enforcement testified for the State.

One of the detectives who responded to the scene, Darren Koberlein, said he spoke with witnesses Aleksaites, Krenzer, Enfield, and Morales. Koberlein said that both Krenzer and Enfield reported that Suits had had a briefcase with him, and Krenzer told him she had observed Parks take the briefcase from the scene. Aleksaites told Koberlein he had seen a struggle over the briefcase. Morales told Koberlein that he saw the shooter take the briefcase. No briefcase was recovered from the scene. Nor were any spent cartridges or shell casings. Crime scene investigators did not examine or record findings about their observations of the bottom surface of Suits' truck.

Parks' vehicle was identified from the license plate number given to police by Morales, and Parks was arrested at his house early in the morning on the day after the shooting.

At the time of Parks' arrest, police collected ammunition, clothing, and cleaning solution from Parks' house. During questioning by the prosecutor at trial, Detective Bryan Block mentioned that “some marijuana” was found at Parks' house....