State v. Reed, 120

CourtCourt of Appeals of Kansas
Writing for the CourtATCHESON, J.
Decision Date02 April 2021
PartiesState of Kansas, Appellee, v. Emmanuel E. Reed, Appellant.
Docket Number613,120

State of Kansas, Appellee,

Emmanuel E. Reed, Appellant.

No. 120, 613

Court of Appeals of Kansas

April 2, 2021


Appeal from Sedgwick District Court; Christopher M. Magana, judge.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Atcheson, P.J., Schroeder and Warner, JJ.



A jury sitting in Sedgwick County District Court convicted Defendant Emmanuel E. Reed of intentional second-degree murder for gunning down Bretodd Williams shortly before noon on a spring day in 2018 as they stood on a residential street in Wichita. The jury also convicted Reed of criminal possession of a firearm. On appeal, Reed offers an array of challenges to the guilty verdicts. We affirm the murder conviction and the corresponding sentence. Because the State failed to charge Reed with conduct violating the statute criminalizing possession of firearms by some felons, we reverse that conviction and vacate the resulting sentence.

Factual and Procedural History

On appeal, Reed does not challenge the sufficiency of the evidence supporting the murder conviction. We, therefore, offer a streamlined account of the shooting and Reed's capture a short time later, recognizing the parties are conversant with the details.

A man was driving down the street in southeast Wichita to a business meeting when either Reed or Williams crossed the street in front of his truck to meet the other. Immediately afterward, the driver heard what he described as pops that sounded like firecrackers. He looked in his rearview mirror and saw one of the men lying in the street and the other running away. The driver turned around, determined the man in the street had been shot, and called 911. The driver did not recall seeing any other traffic on the street during that time.

A woman who lived in the neighborhood was in her backyard when she heard the gunshots. As she considered what to do, a man vaulted the 6-foot privacy fence, ran across the yard, and climbed over the fence on the opposite side. The family had security cameras on the house that provided a partially obstructed depiction of the shooting. Two men can be seen approaching each other and shaking hands. The time stamp obscures the gun and the shooting itself. But one of the men then runs toward the back of the woman's house. The video from a separate camera at the front of the house shows a Dodge Charger going down the adjacent street both before and after the shooting. Another resident reported seeing a Dodge Charger racing down the street where the shooting occurred moments after the gunshots. The car figures in Reed's defense, as we explain shortly.

Law enforcement officers began searching the vicinity for the gunman. Two Sedgwick County deputies saw a man matching the general description of the shooter go into a convenience store. They could not locate him but found a sweatshirt in the restroom like the one the suspect wore. The officers reviewed the store's security video and saw the man wearing the sweatshirt enter and then leave with a different shirt on. They relayed that information to the other officers.

A pair of officers from the Wichita Police Department then focused their search around the convenience store. They saw Reed sitting on the curb outside a shoe store talking on his cell phone. They detained Reed, who fit the description of the shooter. After one of the sheriff's deputies confirmed that Reed was the man he saw go into the convenience store, the Wichita police officers arrested Reed.

With the assistance of a search dog, another officer found a pistol underneath an SUV parked in front of a nearby business. After examining the slugs removed from Williams' body, a ballistics expert concluded the pistol was the murder weapon. Williams had been shot four times at close range. Biological material lifted from the pistol's grip yielded several partial DNA profiles. A forensic expert determined Reed's DNA profile was consistent with one of the partial profiles. According to the expert, there was about a 1 in 700 chance the partial profile would match the DNA profile of a randomly selected person.

Investigators examined both Reed's cell phone and Williams'. The examination showed Reed and Williams had communicated with each other several times in the 36 hours leading up to the shooting. The investigators could not determine the content of their communications.

The State charged Reed with one count of intentional second-degree murder, a severity level 1 person felony violation of K.S.A. 2017 Supp. 21-5403(a)(1), and one count of criminal possession of a weapon, a severity level 8 nonperson felony violation of K.S.A. 2017 Supp. 21-6304(a)(3)(A). In the complaint, the State identified Reed's 2010 conviction for attempted robbery as the predicate felony supporting the criminal possession charge.

The jurors heard the case during a four-day trial in November 2018. Reed did not testify. His defense focused on the Dodge Charger traveling through the neighborhood around the time of Williams' death; his lawyer suggested Reed and Williams were the victims of a drive-by shooting. The jurors convicted Reed as charged. About six weeks later, the district court sentenced Reed to serve 653 months in prison for the murder conviction followed by 36 months of postrelease supervison, reflecting the high presumptive guidelines punishment given Reed's criminal history. The district court imposed a concurrent sentence of nine months on the firearm conviction. Reed has appealed.

Legal Analysis

As we have indicated, Reed has asserted an array of legal challenges to his convictions. In addressing them, we add facts as necessary and ultimately find one of them warrants relief on the firearms conviction.

Legal Adequacy of Firearms Charge and Conviction and Subject Matter Jurisdiction

Reed disputes the legal adequacy of the charge and conviction of him for unlawfully possessing a firearm after having been convicted of a statutorily designated felony. The prohibition is set out in K.S.A. 2017 Supp. 21-6304 and lists various predicate crimes that make it illegal for a person to possess a firearm or certain other weapons. As we have said, the State charged the predicate crime as Reed's 2010 conviction for attempted robbery. Reed does not dispute the conviction.

But Reed correctly points out the prohibition on possession of a firearm in K.S.A. 2017 Supp. 21-6304 based on an attempted robbery conviction expires after five years. K.S.A. 2017 Supp. 21-6304(a)(2) (five-year prohibition based on felony other than one identified in [a][3][A]); K.S.A. 2017 Supp. 21-6304(a)(3)(A) (10-year prohibition based on aggravated robbery or attempted aggravated robbery among other designated crimes). Here, there was more than a seven-year gap: Reed was convicted of the attempted robbery on December 6, 2010; and the shooting happened on May 2, 2018. The State, therefore, charged and then tried and convicted Reed of something that is not a statutory crime in Kansas. That's not supposed to happen. See K.S.A. 2020 Supp. 21-5103(a) ("No conduct constitutes a crime against the state of Kansas unless it is made criminal in this code or in another statute of this state . . . ."); State v. Sexton, 232 Kan. 539, Syl. ¶ 1, 657 P.2d 43 (1983) ("There are no common law crimes in this state, and there can be no conviction except for such crimes as are defined by statute.").

Reed contends the district court lacked subject matter jurisdiction to try him for what amounted to a crime that doesn't exist. He alternatively argues the State presented insufficient evidence to convict him. The State concedes Reed's conviction for unlawful possession of a firearm to be erroneous and sizes up the problem as insufficiency of the evidence. We agree Reed's conviction and sentence cannot stand however the deficiency may be characterized.

Shortly before Reed's prosecution, the Kansas Supreme Court exhaustively surveyed the law on subject matter jurisdiction and defective complaints in criminal cases and recalibrated how those defects should be assessed. See State v. Dunn, 304 Kan. 773, 774-75, 375 P.3d 332 (2016). The discussion in Dunn guides our assessment of the error here. The Dunn decision recognized that district courts derive subject matter jurisdiction over criminal cases from the Kansas Constitution and cognate jurisdictional statutes rather than from the complaint or another charging instrument initiating a given prosecution. In turn, a complaint that endeavors to charge a crime but is sloppy, incomplete, or even inaccurate does not negate a district court's subject matter jurisdiction. 304 Kan. at 813-14. Those sorts of deficiencies may compromise a defendant's due process rights or other constitutional protections, but they are often correctable or ultimately harmless. The lack of subject matter jurisdiction is neither, since it goes to the judicial authority of the court to decide a case. Any conviction rendered in the absence of subject matter jurisdiction is void. 304 Kan. at 784.

Whether a district court has subject matter jurisdiction presents a question of law. Via Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 889, 451 P.3d 459 (2019). As outlined in Dunn, district courts derive their general judicial authority from article 3, sections 1 and 6(b) of the Kansas Constitution and their grant in K.S.A. 22-2601 of "'exclusive jurisdiction to try all cases of felony and other criminal cases arising under the statutes of the state of Kansas.'" Dunn, 304 Kan. at 789. By obvious negative implication and force of logic, a district court has no jurisdiction to try someone at the State's behest for something that is not a statutory crime. And the ostensible...

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