State v. Pattillo
| Decision Date | 21 August 2020 |
| Docket Number | No. 118,941,118,941 |
| Citation | 469 P.3d 1250 |
| Parties | STATE of Kansas, Appellee, v. Christopher Shawn PATTILLO, Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Steven J. Obermeier, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
As Christopher Shawn Pattillo drove a van, an occupant of the van fired shots, killing Brian Miller and hitting a residence occupied by Miller's sevenyear-old nephew. A jury convicted Pattillo of felony murder, aggravated assault of Miller, felony discharge of a firearm, and aggravated endangering of a child. Pattillo appeals, raising 10 issues about whether the underlying felonies can, as a matter of law, support Pattillo's felony-murder conviction and his sentences, whether the State met its burden of proving the underlying felonies and felony murder, and whether the trial judge erred in instructing the jury. We hold no reversible error occurred, and we affirm.
Hostilities between rival gangs underlie this case. The day before Miller's death, Pattillo and Miller's brother, who had known each other for years, purportedly exchanged derogatory comments about rival gangs during a chance meeting at a mall. Pattillo, Miller, Miller's brother, and the others involved in the shooting were gang members or affiliated with or supporters of various gangs or gang members. Miller's brother reputedly had a history of actions that Pattillo and his friends felt were disrespectful to the gangs they supported. Witnesses testified Pattillo did not like Miller's brother.
The day of the shooting Pattillo, his then-girlfriend, his girlfriend's young child, and two others were in a car that Pattillo drove through the neighborhood where Miller's brother, sister, and nephew lived together. Miller was visiting his siblings and nephew. Pattillo and the others in the car were traveling with several other people who rode in a van. The mother of one of the people with Pattillo lived in the neighborhood, and the occupants of the two vehicles were on their way to her apartment.
As Pattillo and his group drove near the Millers' home, according to Miller's sister, Miller's brother and her son were across the street from their residence at a community bank of mailboxes. A fast-moving car caught her attention because she feared her son, who was near the street and talking to his uncle, might step in front of the car to return home. Pattillo drove the car, and he and others saw and recognized Miller's brother as they drove by.
While Pattillo and those in the car with him waited on their friend to return from inside his mother's apartment, they again drove by the Miller's home. Miller and his brother were outside on the front porch. According to Miller's brother, Pattillo locked eyes with him and stared in a threatening manner. Some of the people in the car saw Miller's brother reach toward his waistband in a manner suggesting he was pulling a firearm. One of the individuals with Pattillo told a detective that Pattillo yelled something to Miller's brother about shooting him and that "he had something for him and would be back for him."
Pattillo and the others in both vehicles went to the apartment of one member of the group. They discussed seeing Miller's brother pull a gun, and Pattillo reportedly questioned why Miller's brother would threaten a vehicle when there was clearly a small child in the car. One member of the group, De'Angelo Martinez, arranged to get a gun, and some of the group, including Pattillo, went to an apartment where Martinez retrieved the firearm. Pattillo then asked if he could drive the van, and he, Martinez, and two other men got into the van and returned to the Miller home with Pattillo driving.
They arrived, according to Miller's brother, about 30 minutes after they had last driven by in the car. Miller's brother testified he was standing at the front storm door talking to Miller, who was sitting outside on the porch. Miller's brother saw a van and then heard shots. He dove toward the floor inside the residence. Two bullets penetrated the lower part of the storm door. Miller's brother saw Miller stand up and try to run toward the back of building.
Some witnesses testified Pattillo stopped the van while Martinez fired the weapon several times toward the Millers' dwelling. As Miller ran, Pattillo slowly moved the van forward, appearing to give Martinez a better shot. Martinez fired about 14 shots over a 45-foot span in a 10-second period.
Miller's nephew was inside, playing in the front room. Several bullets hit the Millers' home, and some penetrated the exterior and hit inside walls and a television. The nephew testified he heard several shots and ran because he was scared.
Miller later died at a hospital. He had two gunshot wounds, one beneath the left buttock and a fatal shot in his back. That bullet hit his liver, diaphragm, and aorta. The other bullet apparently ricocheted off something before hitting Miller.
After a six-day trial, a jury returned a guilty verdict for felony murder based on the underlying crimes of criminal discharge of a firearm at an occupied dwelling, aggravated assault, and aggravated endangering of a child. The jury also returned guilty verdicts for criminal discharge of a firearm at an occupied dwelling, aggravated assault of Miller, aggravated endangering a child, and an alternative count of involuntary manslaughter, and a not guilty verdict of first-degree premeditated murder. The judge sentenced Pattillo to a hard 25 life sentence for the felony murder, a consecutive 216 months for criminal discharge of a firearm at an occupied dwelling, a concurrent 12 months for aggravated assault, and a consecutive 6 months for aggravated endangering of a child.
Pattillo timely appealed.
Pattillo raises 10 issues, which we have reorganized for our discussion and analysis. Six issues present questions about the legal and factual basis for his convictions and sentences for felony murder and the underlying felonies. Pattillo's remaining four issues relate to jury instruction errors.
The first six issues largely revolve around various aspects of felony murder, the sufficiency of evidence, and the legality of his sentences. Many of these issues arise because a felony-murder conviction depends on an underlying, inherently dangerous felony, and Pattillo attempts to argue that none of the felonies can support his felony-murder conviction.
In Kansas, felony murder is "the killing of a human ... in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2019 Supp. 21-5402(a)(2). Here, the State charged Pattillo with three inherently dangerous felonies that form the basis for his felony-murder charge: aggravated assault, aggravated endangering of a child, and criminal discharge of a firearm.
In charging Pattillo with these crimes, the State did not assert that Pattillo fired the shots that hit Miller or the Miller residence. Instead, the State pursued the theory that Pattillo aided and abetted Martinez and was thus criminally responsible for Martinez' acts. The State relied, in part, on evidence that Pattillo went with Martinez to get a weapon, drove Martinez to the Miller residence, stopped the vehicle while Martinez fired shots, and then pulled forward at a slow speed so Martinez could get a better shot at Miller. The State argued Pattillo thus knowingly engaged in the unlawful venture and participated in a way that furthered the success of the venture. See State v. Netherland , 305 Kan. 167, 177-78, 379 P.3d 1117 (2016) (); State v. Novotny , 297 Kan. 1174, 1185, 307 P.3d 1278 (2013) (). Under the law of felony murder, if someone dies because of the commission of an inherently dangerous felony "all the participants ... [are] equally guilty of the felony murder, regardless of who fired the fatal shot." State v. Thomas , 239 Kan. 457, 462, 720 P.2d 1059 (1986).
Pattillo does not dispute that evidence of his involvement was admitted at trial, but he nevertheless argues none of his convictions for the three inherently dangerous felonies can serve as the basis for his felony-murder conviction. To affirm his felony-murder conviction, we need not affirm each of his convictions for the three felonies or find that each of the three felonies can legally support a felony-murder conviction. Instead, his conviction for felony murder can be affirmed if the jury's unanimous verdict on any inherently dangerous felony—sometimes referred to as an underlying or collateral felony—can be affirmed. State v. Sanchez , 282 Kan. 307, 319, 144 P.3d 718 (2006) ().
Some of Pattillo's attacks on the various underlying felonies arise from or relate to the so-called merger doctrine. The doctrine examines whether a felony proven by evidence that one of the participants inflicted the lethal wound can serve as the independent collateral felony supporting felony murder. At one point, Kansas law applied the doctrine to prohibit the lethal act from serving as the basis for the inherently dangerous felony because that felony merged with the homicide. But the Legislature has since changed that rule for some crimes. K.S.A. 2019 Supp. 21-5402(c) ; see Sanchez , 282 Kan. at 317-19, 144 P.3d 718 (...
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