State v. Phillips
| Decision Date | 23 May 2014 |
| Docket Number | No. 103,399.,103,399. |
| Citation | 325 P.3d 1095,299 Kan. 479 |
| Parties | STATE of Kansas, Appellee, v. Kelvin PHILLIPS, Jr., Appellant. |
| Court | Kansas Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. A defendant's claim that a trial court's failure to formally order or declare a mistrial violates his or her constitutional right to be protected from double jeopardy can be reviewed on appeal even if the defendant failed to raise the error before the trial court.
2. The Kansas criminal mistrial statute, K.S.A. 22–3423, does not require a trial court to use specific words in ordering or declaring a mistrial. Consequently, even if a trial court does not use the terms “order” or “declare,” the trial court effectively declares a mistrial by stating the jury is deadlocked, discharging the jury, and scheduling the case for a second trial.
3. When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.
4. Premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. Factors that give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant's conduct before and after the killing; (4) any threats and/or declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. The analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. Use of a deadly weapon by itself, however, is insufficient to establish premeditation.
5. A prosecutor's statement that premeditation can occur in half a second is contraryto established caselaw and is prosecutorial misconduct.
Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.
Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
After a trial ended with a hung jury, Kelvin Phillips, Jr. was retried and convicted of the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of a firearm. On direct appeal from Phillips' second trial, we consider the three issues Phillips raises. First, we hold that the Kansas criminal mistrial statute, K.S.A. 22–3423, does not require the use of specific words in order for a mistrial to be recognized or to preserve a defendant's constitutional right to be protected from double jeopardy. Consequently, we reject Phillips' contention that the trial court violated his constitutional right against double jeopardy when it allowed him to be retried for the same crimes without explicitly declaring or ordering a mistrial at the conclusion of his first trial. Second, we conclude there was sufficient evidence, when viewed in the light most favorable to the State, to affirm Phillips' conviction for premeditated first-degree murder. Finally, we hold that the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation,” but we conclude the misconduct did not deprive Phillips of a fair trial. Consequently, we affirm.
Dyer died from gunshot wounds he suffered on August 10, 2007, in Topeka. Phillips and three other individuals—Corky A. Williams; Drake Kettler, Jr.; and Antonio Armstrong—were charged with and convicted of crimes related to Dyer's death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Williams, 299 Kan. 509, 324 P.3d 1078, 2014 WL 2155357 (); State v. Kettler, 299 Kan. 448, 325 P.3d 1075, 2014 WL 2155347 (); and State v. Armstrong, 299 Kan. 405, 324 P.3d 1052, 2014 WL 2155272 ().
The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many of the same issues. Consequently, our opinions in these cases are largely repetitive. We have followed this format for the ease of reading only one opinion; the reader will not need to refer to multiple opinions. For the benefit of anyone who wishes to read all three opinions, we offer as a guide that Williams has asserted the most issues. Kettler and Phillips have repeated some of those issues, making either identical or substantially similar arguments. Phillips does, however, present an issue not raised by Kettler or Williams—his first issue, which relates to the procedure for declaring a mistrial. Also, although Williams, Kettler, and Phillips all raise issues regarding the sufficiency of the evidence and the prosecutor's misstatement of the definition of “premeditation” during the closing argument, there is some variance in the analysis because of each individual's role in the shooting of Dyer. The decision in Armstrong's appeal does not have the same level of overlap, and some factual details differ because of the variance in evidence in his separate trial.
The charges against the four defendants were not identical. Phillips, like Kettler and Williams, was charged with premeditated first-degree murder, in violation of K.S.A. 21–3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21–3302 and K.S.A. 21–3401; and criminal possession of a firearm, in violation of K.S.A. 21–4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and criminal possession of a firearm.
Armstrong's case took a different procedural track when, before any of the defendants' preliminary hearings, he decided to cooperate with the State in exchange for a favorable plea agreement. Initially, in Armstrong's first contact with investigating law enforcement officers, he denied any knowledge of or involvement in the shooting. Later, in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to the district attorney in which he incriminated himself and implicated the three other defendants in the premeditated killing of Dyer. Based on this statement and as part of Armstrong's plea arrangement, the State called Armstrong as a witness at a joint preliminary hearing related to the charges against Williams, Kettler, and Phillips. Armstrong reiterated the truthfulness of his sworn statement and testified that he had joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.
Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed his mind about cooperating with the State and recanted his statements and testimony, even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated that his former defense counsel coerced him into making his prior statements implicating his friends.
Subsequently, Armstrong's case was joined with the cases of Williams, Kettler, and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung jury. After the first trial, the trial court severed Armstrong's case from the others, and his second trial took place before the three other codefendants again went to trial. Armstrong testified at his second trial, providing yet another version of how Dyer was shot. Armstrong was convicted of premeditated first-degree murder and criminal possession of a firearm, the only charges brought against him.
The State then called Armstrong to testify at the joint second trial of Williams, Kettler, and Phillips. Armstrong testified that both his sworn statement and his preliminary hearing testimony against the other defendants were untrue. Armstrong explained that he had incriminated his friends because he was led to believe that “my homeboys, my brothers, was testifying on me, which I found out later was a lie.” He also told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong's explanation was refuted by Armstrong's attorney, who testified that Armstrong was not told what to say in his sworn statement.
Although Armstrong was called as a witness for the State at the trial of Williams, Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong wore a mask to prevent him from spitting on the law enforcement officers who transported him to the courtroom or on those in the courtroom. He often cursed, and he usually either refused to answer questions or was evasive and claimed he could not remember details. Eventually, on redirect examination, Armstrong became so belligerent and uncooperative with the prosecutor that he was removed from the courtroom.
As this history suggests, the jury was presented with multiple versions of the events that led to Dyer's death. In addition to Armstrong's various renditions of what happened, both Williams and Phillips testified at their second trial and offered slightly different versions of events. Plus, approximately a month before the second joint trial, Phillips proffered the substance of his trial testimony in order to obtain some pretrial evidentiary rulings; the jury would learn that some details included in the proffer differed from Phillips' trial testimony. Kettler chose not to testify. The jury also heard the testimony of several individuals who witnessed some portion of the events, investigated the crimes, or had information about the relationship of Dyer and the defendants. Because Phillips attacks the sufficiency of...
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State v. Genson, No. 121,014
...consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014).Genson must meet Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34), which requires an appellant to explain why a......
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State v. Dixon
...Generally, this court will not hear an issue raised for the first time on appeal, even a constitutional one. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). There are exceptions, including when the "theory involves only a question of law arising on proved or admitted facts and ......
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State v. Myers
...Generally, this court will not hear an issue raised for the first time on appeal, even a constitutional one. State v. Phillips , 299 Kan. 479, 493, 325 P.3d 1095 (2014). There are three exceptions, including when the "theory involves only a question of law arising on proved or admitted fact......
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State v. Kettler
...opinions, see State v. Williams, 299 Kan. 509, 324 P.3d 1078, 2014 WL 2155357 (No. 103,785, this date decided); State v. Phillips, 299 Kan. 479, 325 P.3d 1095, 2014 WL 2155352 (No. 103,399, this day decided); and State v. Armstrong, 299 Kan. 405, 324 P.3d 1052, 2014 WL 2155272 (No. 103,120,......
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Thinking Ethics: Competence and Diligence on Appeal
...296 Kan. 636, 644, 294 P.3d 287, 294 (2013); State v. Bridges, 297 Kan. 989, 1001, 306 P3d 244, 254 (2013). [4] See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095, 1106 (2014); In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284, 292 (2008). [5] 298 Kan. 1075, 1084, 319 P.3d 5......