State v. Potts

• Decision Date: 24 June 2016
• Docket Number: No. 113,302,113,302
• Parties: State of Kansas, Appellee, v. Deaarion Potts, Appellant.
• Court: Kansas Supreme Court

304 Kan. 687

374 P.3d 639

State of Kansas, Appellee,

v.Deaarion Potts, Appellant.

No. 113,302

Supreme Court of Kansas.

Opinion filed June 24, 2016.

Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Johnathan M. Grube, assistant district attorney, argued the cause, and Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by ROSEN

, J.:

On the night of October 20, 2012, 15-year-old Deaarion Potts drove three acquaintances around Kansas City, Kansas, in a car that Potts stole earlier that day. During the excursion, Potts drove up behind a car and his three passengers proceeded to fire weapons at the vehicle, killing Ramon Bradley, one of the car's four occupants. As a result, Potts was charged with felony murder, criminal discharge of a firearm at an occupied vehicle, and burglary. After the district court authorized Potts to stand trial as an adult, a jury found him guilty of all three crimes. The district court imposed a controlling sentence of life without the possibility of parole for 20 years.

On appeal, Potts raises several arguments. First, he argues that because it was possible Bradley sustained his fatal gunshot wound

during the initial moments of the shooting—when Potts claims he was not intending to aid his companions with the shooting—the State presented insufficient evidence to convict him of either felony murder or criminal discharge of a firearm. Potts also argues that in order for the State to have convicted him of burglary, it had to present evidence that he intended to steal something from within the car he broke into and stole. Because his conviction for burglary was based on his act of breaking into the car that he stole, he contends that his conviction must be reversed. Additionally, Potts argues that (1) his statements to police should have been suppressed because they were involuntary; (2) the district court's jury instruction on aiding and abetting was erroneous; (3) cumulative error deprived him of a fair trial; (4) the district court unconstitutionally enhanced his sentence by making factual findings that authorized the State to prosecute him as an adult; and (5) the district court incorrectly noted within the journal entry of judgment that Potts was subject to lifetime postrelease supervision for all his convictions.

We reject his arguments and affirm his convictions and sentence. However, we conclude that while the district court properly sentenced Potts to lifetime parole for felony murder, the journal entry of judgment indicates that lifetime postrelease supervision was also imposed as a result of his convictions for burglary and criminal discharge of a firearm when only a maximum of 36 months is allowed. The State concedes the issue. Accordingly, we vacate only that portion of his sentence and remand for resentencing.

Facts

During the late evening hours of October 20, 2012, Tracy Jordan and Eddie London drove Jordan's black Pontiac Grand Am to a community center located near Tenth Street and Washington Boulevard in Kansas City, Kansas, to pick up Jordan's brother, Charles Shelby, and his friend, Bradley, from a function that was ending. After picking them up, the group traveled eastbound on Washington Boulevard with the plan of going to the Power & Light District in downtown Kansas City, Missouri. Jordan drove; London sat in the front passenger seat; and Shelby and Bradley rode in the backseat.

Once the two eastbound lanes of Washington Boulevard pass Fourth Street, the lanes slowly curve south and eventually split, with the left lane exiting onto eastbound I–70 (taking travelers into Missouri). The right lane proceeds south and then makes a sharp curve to the east. At this point, the lane is called Minnesota Avenue; it travels a short distance east until meeting with Third Street. Proceeding directly east through the intersection of Third and Minnesota would cause a person to travel the wrong way on Fairfax Trafficway.

As the group traveled around the first curve on Washington Boulevard, preparing to take the exit for eastbound I–70, someone started firing multiple gunshots at them. Moments later, the rear window shattered. Jordan noticed that the gunfire was coming from a red car directly behind them. Jordan continued driving in the right lane, eventually going around the sharp curve and coming to the intersection of Third and Minnesota. He drove through the intersection, going the wrong way up Fairfax Trafficway. At that point, the red car stopped its pursuit and turned left on Third Street.

Sometime during the shooting, but after the rear window had been shot out, Shelby heard Bradley say, “I'm hit.”

Due to the damage the car sustained, Jordan's Grand Am eventually came to a stop on Fairfax Trafficway. Shelby estimated that more than a minute had passed from the time he heard the first shot to the time the car stopped on Fairfax; London estimated 2 minutes had passed. Jordan got out of the car and waived down a truck driver, asking him to call the police. Police eventually responded to the scene and discovered that Bradley had died as a result of a single gunshot wound

.

Police did not find any weapons or bullet casings inside the Grand Am. Police noted that the car had sustained several bullet holes, indicating that it was fired upon from behind.

During the investigation of the shooting, police scavenged the area on eastbound Washington Boulevard where the initial shots occurred and discovered bullet casings beginning just after the exit sign for Minnesota Avenue/Fairfax District. The sign noted that the exit—where traffic lines begin denoting separation of the two eastbound lanes—was ?-mile away. In this general area, police discovered a total of 31 shell casings—nineteen 7.62x39 mm casings and twelve 9 mm casings. Near the intersection of Third and Minnesota—where the red car ended its pursuit—police found 20 shell casings—fourteen 7.62x39 mm casings and six 9 mm casings.

Police eventually found a red Dodge Intrepid parked in the middle of an alley near 25th and Garfield. The interior of the car was partially burnt. Someone had attempted to set the car on fire by igniting a gas can and placing it behind the front passenger seat. Police noted that the outer plate of the ignition switch was missing, indicating that someone had used a screwdriver to start the car. There were no weapons found inside, and there was no evidence that the car had sustained any gunshot damage. But police did find two 9 mm shell casings inside the car.

In all, police recovered 53 shell casings—thirty-three 7.62x39 mm casings and twenty 9 mm casings. Law enforcement determined that all 33 of the 7.62x39 mm casings were fired from the same gun. Of the twenty 9 mm casings recovered, 13 were fired from one gun, and seven were fired from another. In other words, three firearms were involved in the shooting—one firing 7.62x39 mm bullets and two firing 9 mm bullets.

A forensic scientist from the KBI testified that the most common firearm designed for 7.26x39 mm ammunition is an AK–47 rifle. In comparison, 9 mm ammunition is typically used in handguns. The scientist also estimated that an AK–47 without a shoulder stock is at least 26 inches long and that a shoulder stock generally adds another 8 to 10 inches in length. The scientist said that a 9 mm handgun is typically around 10 inches in length.

During Bradley's autopsy, a forensic pathologist recovered the fatal bullet. The forensic scientist examined the bullet. Though he could not determine its exact caliber, the scientist stated that based on its characteristics, the bullet was “consistent with a rifle caliber rather than a handgun caliber.”

A couple of days after the shooting, police learned that 16-year-old D'Andre Hill may have been involved in the shooting. On October 24, 2012, Hill, accompanied by his mother, spoke with police about the shooting. Hill told police that he and Deandre Harris (age 17) were at the Chelsea Apartment complex off Seventh Street when Potts (age 15) and Bobby Hale, Jr., (age 18 or 19) picked them up in a red car. As Potts drove, Hale sat in the front passenger seat, and Hill and Harris sat in the back seat.

According to Hill, as they traveled eastbound on Washington Boulevard, he heard Hale say, “There they go.” Then, Hill heard a “boom” and realized that Hale was firing a rifle at a black car in front of them. Hill and Harris, who were armed with handguns, joined in and started firing their weapons at the car while Potts drove. As Potts followed the car down the Third Street exit, he drove into a curb or guardrail, but kept following the black car. Hill said that Potts stopped following the car once it drove through the intersection at Third and Minnesota and proceeded the wrong way on Fairfax Trafficway. Potts then turned left onto Third Street and drove away.

Hill said that no one discussed the shooting prior to it occurring.

On October 26, Potts, accompanied by his grandfather, came to the police station. After being advised of and waiving his Miranda rights, Potts spoke with two detectives. He told them that on the day of the shooting, he was walking by himself when he got tired and decided to steal a red Dodge Intrepid. He drove the car to an apartment complex off Seventh Street where he picked up Hale, Hill, and Harris. Hale sat in the front seat, Hill and Harris sat in the back seat. Potts told detectives that he was driving east on Washington Boulevard when he heard a “boom.” He looked over and saw that Hale had fired, in Potts' words, a “big gun” out the front passenger-side window at a car traveling in front of them. As Hale fired his weapon at the car, Potts said that he sped up and followed the car until it went down the wrong way of a one-way street. Afterwards, Potts drove his companions back to the apartment complex and dropped them...