State v. Peppers

• Citation: 276 P.3d 148,294 Kan. 377
• Decision Date: 04 May 2012
• Docket Number: No. 101,551.,101,551.
• Parties: STATE of Kansas, Appellee, v. Antwan T. PEPPERS, Appellant.
• Court: United States State Supreme Court of Kansas

294 Kan. 377

276 P.3d 148

STATE of Kansas, Appellee,

v.Antwan T. PEPPERS, Appellant.

No. 101,551.

Supreme Court of Kansas.

May 4, 2012.

Syllabus by the Court

1. Gang affiliation evidence is admissible if relevant. Relevant evidence is defined by statute as evidence that is both material and probative. An appellate court reviews whether evidence is material under a de novo standard. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. An appellate court reviews whether evidence is probative under an abuse of discretion standard. Evidence is probative if it has any tendency to prove any material fact. Even if gang evidence or other evidence is deemed relevant, it may be excluded if it is more prejudicial than probative.

2. For evidence of gang affiliation to be admissible there must be sufficient proof that gang membership or activity is related to the crime charged. In this case, gang evidence was admissible as relevant to identity, opportunity, and motive. The existence of more than one possible motive did not make the gang evidence inadmissible.

3. Gang affiliation evidence is not subject to K.S.A. 60–455.

4. Relevant gang affiliation evidence that is not more prejudicial than probative is admissible even if it concerns the events surrounding commission of a crime. This court's decision in State v. Gunby, 282 Kan. 39, 59–63, 144 P.3d 647 (2006), did not forbid the admission of such res gestae evidence, only the invocation of res gestae to avoid K.S.A. 60–455 or the prohibition on hearsay.

5. The district judge in this case did not abuse her discretion in weighing the probative value of the gang affiliation evidence admitted against its potential for undue prejudice. Her limiting instruction to the jury emphasized two of the legitimate ways in which the evidence could be considered.

6. Absent a request for a limiting instruction concerning gang evidence and absent any objection for the failure to give a limiting instruction on gang evidence, a district judge is not obligated to give such an instruction. In this case, the limiting instruction given by the judge properly and fairly stated the law as applied to the facts and could not have reasonably misled the jury.

7. Inclusion of the language “another trial would be a burden on both sides” in an Allen-type instruction constitutes error, because the language is misleading, inaccurate, and confusing. When that error is invited, however, it need not be addressed on appeal. In this case, the error was invited.

8. Allegations that a prosecutor committed misconduct during closing argument are analyzed by an appellate court using two steps: First, the court decides whether the remarks were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the appellate court must determine whether the improper remarks prejudiced the jury against the defendant and denied the defendant a fair trial. On the second step, the court considers whether the comments were gross and flagrant, whether they reflected ill will on the prosecutor's part, and whether there was a reasonable possibility that the misconduct affected the verdict. In this case, none of the challenged comments constituted misconduct, except for the prosecutor's expressions of personal opinion on the defendant's guilt. Those expressions do not necessitate reversal of the defendant's convictions.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Jason E. Geier, assistant district attorney, argued the cause, and Darren E. Root, assistant district attorney, Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

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

Defendant Antwan T. Peppers appeals his convictions of one count of first-degree premeditated murder and one count of attempted first-degree murder.

Peppers alleges reversible error in the district judge's admission of gang affiliation evidence; the content of instructions given to the jury on the gang affiliation evidence and on the burden of another trial; and the prosecutor's closing argument because of what he views as a comment on facts not in evidence, an endorsement of a victim's credibility, a shifting of the burden of proof, and expressionsof a personal opinion on guilt. As fully discussed in this opinion, we conclude that none of Peppers' challenges to his convictions warrants reversal.

Peppers also challenges his consecutive hard 50 life sentence for first-degree murder and 272 months' imprisonment for attempted first-degree murder as unconstitutional, because they were based on criminal history not proved to a jury beyond a reasonable doubt. We have rejected this argument in numerous cases, starting with our opinion in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and we are not inclined to revisit or revise this holding. Our opinion will not further discuss Peppers' argument on this sentencing issue.

Factual and Procedural Background

Peppers stands convicted by a jury of the first-degree premeditated murder of Jermaine E. Cunningham and the attempted first-degree murder of Terrell Dontae Hayes–Osby. The charges stem from a July 2006 late-night shooting outside of Terry's Bar and Grill (Terry's) in Topeka.

Before trial, Peppers filed a motion in limine to prohibit improper comments by the prosecutor. Peppers requested that the court “instruct the prosecutor ... to refrain from making improper, misleading, inflammatory or irrelevant statements, comments or insinuations at any time during the voir dire or trial of this matter.” At the motion hearing, the prosecutor agreed to the admonition, as long as the same admonition applied to the defense. The district judge granted the motion, noting that “[c]ertainly, defendant is required to follow the same or similar rules although I think the large majority of the cases apply to prosecutors and not to defense counsel.”

Also, before trial, Peppers filed a motion in limine to exclude “[a]ny references to prior criminal history and/or alleged prior criminal activity or conduct, charged or uncharged ..., [and a]ny reference to alleged gang affiliation of Mr. Peppers, ... Hayes–Osby, ... Cunningham or any witnesses in this matter.”

At the hearing on the motion, Peppers argued that the prejudicial effect of the gang affiliation evidence would outweigh its probative value and would deny Peppers his right to a fair trial. Peppers also argued that this was not a case of “gang warfare” and that the evidence was not needed to explain any witness bias. Peppers asserted that, instead, this was a case of “[f]riend shoots friend and there's payback.”

The State responded that the admission of gang evidence did not fall within K.S.A. 60–455 and was not confined by it. It also argued that evidence of gang affiliation was material and relevant to motive. The State contended that its theory of the case was gang retaliation and, therefore, gang affiliation evidence was relevant to explain an otherwise inexplicable shooting.

The district judge granted Peppers' motion as to evidence of any prior criminal activity. The district judge took the question of gang affiliation evidence under advisement, and Peppers filed additional argument in support of his motion, arguing that the State's theory of the case was not supported by the State's witnesses.

After a second hearing, the district judge denied Peppers' motion as to the gang affiliation evidence. The district judge reasoned that “ ‘[e]vidence of gang membership is admissible if relevant,’ ” quoting State v. Ross, 280 Kan. 878, 885, 127 P.3d 249 (2006), cert. denied548 U.S. 912, 126 S.Ct. 2942, 165 L.Ed.2d 965 (2006). She further cited State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006), for the proposition that gang evidence may be material if the evidence “provides a motive for [an] otherwise inexplicable act,” “shows witness bias,” or explains “part of the chain of events.” The district judge concluded that the gang evidence at issue in this case provided a reason for a meeting between Peppers and victim Hayes–Osby and provided an alternative motive for the shooting.

Peppers renewed his objection to the introduction of gang affiliation evidence after opening statements at trial. The district judge again denied the motion, but she granted Peppers a continuing objection.

Detective Bryan Wheeles of the Topeka Police Department testified in Peppers' trial about a homicide that occurred earlier in the same day as the shootings of Cunningham and Hayes–Osby. Hayes–Osby was the suspect in the earlier crime, and the victim was Trevor Antwan Harness. Wheeles became peripherally involvedin the investigation of the later Cunningham and Hayes–Osby shootings because it overlapped with the investigation of the Harness homicide. The gun used to shoot Harness was recovered at the scene of the later crimes. Hayes–Osby eventually confessed to killing Harness.

Hayes–Osby also testified in Peppers' trial. He said that he knew Harness from an “organization” called the “Four Corner Hustlers,” also known as the “Solids 4.” The Solids 4 associated with the “Traveling Vice Lords” or “TVLs.” Hayes–Osby testified that the Solids 4 and the TVLs were part of the same larger organization.

As a member of the Solids 4, Hayes–Osby said he was responsible for following certain rules and regulations. “Chiefs” of such organizations imposed sanctions and penalties for violations. The Topeka chief of the TVLs was Peppers. Because Harness was a member of the TVLs and owed Hayes–Osby money and crack cocaine, Hayes–Osby had gone to TVL Chief Peppers to seek payment. Peppers, Hayes–Osby said, eventually told Hayes–Osby to “[chalk] it up as a loss.”

On the morning of the homicides, Hayes–Osby and Harness were involved in an incident during which...