State v. Reed, 106,807.
| Decision Date | 01 February 2013 |
| Docket Number | No. 106,807.,106,807. |
| Citation | 293 P.3d 815 |
| Parties | STATE of Kansas, Appellee/Cross-appellant, v. Samuel REED, Appellant/Cross-appellee. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Richard Ney, of Ney & Adams, of Wichita, for appellant/cross-appellee.
Boyd K. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee/cross-appellant.
Before GREEN, P.J., LEBEN and ARNOLD–BURGER, JJ.
Samuel Reed and Michael Price went to Amos Becknell's house with the stated purpose of fighting him. When they arrived, one of them got out of the car and shot Becknell, wounding him in the back and the leg. They were both charged with attempted first-degree murder, and both pointed the finger at the other as the trigger man. Price accepted a plea deal and agreed to plead guilty to two counts of aggravated battery and to testify truthfully in Reed's case. All of the witness' testimony, except Reed's testimony, pointed to Reed as the shooter. A jury convicted Reed of attempted first-degree murder, and he received a durational departure sentence of 272 months in prison. Reed raises several evidentiary errors on appeal, although none of them were the subject of a K.S.A. 60–404 contemporaneous objection and therefore cannot be considered pursuant to our Supreme Court's ruling in State v. King, 288 Kan. 333, 348–49, 204 P.3d 585 (2009). However, he also raises claims of ineffective assistance of counsel, which were fully considered following an evidentiary hearing in the district court. Accordingly, to the extent that Reed's counsel's acquiescence in or failure to object to evidentiary issues at trial relate to an ineffective assistance of counsel claim, we consider them here.
Reed claims his counsel was ineffective for: (1) agreeing to the admission of Becknell's preliminary hearing testimony; (2) agreeing to close the courtroom so the court could consider whether Becknell was unavailable to testify; (3) failing to object when the prosecutor questioned Price about his agreement to testify truthfully; and (4) failing to object to the admission of gang evidence and prior bad act evidence in violation of the order in limine. He also alleges the following constitutional violations: (1) his right to a public trial was violated when the court closed and locked the courtroom in order to consider Becknell's availability to testify; (2) his right to a fair trial was violated when the prosecutor presented an imaginary script during closing argument; and (3) his sentencing guidelines sentence was unconstitutional as cruel and unusual punishment. The State cross-appealed the district court's decision to grant a downward durational departure, arguing there was not a substantial and compelling reason to depart from the presumptive prison sentence. Finding no error, we affirm the district court's decision.
The undisputed facts in this case are that on the morning of September 6, 2010, Reed borrowed Courtney Lee's blue car. She only gave him her car after he and Price assured her that they were not going to use it to go to Becknell's house and shoot him. She was afraid they were going to use her car for a drive-by shooting. They assured her that they were only going to fight him and that no one would see her car. Price knew Becknell, but Reed did not. Reed had Lee's car for approximately 30 minutes. Reed drove the car while Price was in the passenger seat. There was no one else in the car. Upon arriving at Becknell's house, either Reed or Price exited the car, confronted Becknell, and shot him once in the back and once in the leg. Reed was driving when they left the scene. Reed is 5'6? in height and weighs 160 pounds. Price is 6 feet in height and weighs 210 pounds. Becknell survived the shooting. The question at Reed's trial for attempted first-degree murder came down to which one shot Becknell—Reed or Price—because each pointed to the other. They were both charged with attempted first-degree murder.
Price subsequently entered a plea agreement in which he agreed to plead guilty to two counts of aggravated battery and to testify in Reed's trial. In exchange, the State agreed to recommend presumptive prison at the high number in the sentencing guidelines box, but it also agreed to recommend that his sentences run concurrently. Price was free to argue for an alternative disposition.
The testimony at Reed's trial clearly pointed to Reed as the shooter.
According to Becknell's mother, on the morning of the shooting, as she was walking along the sidewalk near her home, she saw a blue car pull up and the unknown driver exit the car and approach her son Becknell. Becknell's mother looked away and heard several shots. She turned toward her son and realized that it was Becknell who was shot in the back and the leg. The unknown man left in the car that he arrived in. Becknell's mother testified that the unknown man was about 5 feet, 6 or 7 inches tall, and she estimated his weight at around 150 pounds. Although she was unable to recognize the shooter from a photographic lineup, at the trial she identified Reed as the shooter. She stated she realized it was Reed when she saw both Reed and Price at the preliminary hearing.
On the day of the shooting, Iscela Luna was sitting in the back seat of a car parked in front of the house next to Becknell's house. Luna observed a blue car pull up in front of the house next door. She saw the driver exit the car with a gun in his hand, take about five steps toward the house, and start shooting at Becknell. Luna testified that the shooter was about 5 feet, 6 inches tall and skinny. Luna saw the shooter run back to the car and drive away.
Becknell testified at his preliminary hearing that at around noon he was sitting on the front porch when a man approached him from the driver's side of a blue car that had pulled up to his house. The man walked up to him and asked him if he knew “where the weed was.” Becknell indicated that he did not know where the weed was. The man then asked whether his name was “Amos.” Becknell denied that Amos was his name and said his name was P.J. The man again asked whether Becknell was sure his name was not Amos, to which Becknell said he was sure. The man then shot Becknell. At the preliminary hearing, Becknell identified Reed as the shooter. He testified that he did not know Reed before the shooting, but he and Price knew each other and it was not Price who shot him.
Leaundra Jefferson testified that when Price and Reed returned with Lee's car, Reed informed Jefferson that he went up to the man, asked where the weed was, then asked what the man's name was, and then shot the man three times. Latricia Barnett also overheard Price and Reed, when they returned, say that Reed had shot someone. Barnett also testified that later that day Price informed her that Reed shot someone for beating up on Price's cousin.
According to Price, Reed got out of the driver's seat of the car at Becknell's house. Price did not see where he went or what happened, but he heard a loud clap, like fireworks. Reed returned to the car and drove off. On the way back to return Lee's car, Reed told Price that “you ain't got nothin to worry about, you cool.”
Finally, Reed testified that while he was driving, Price crawled into the back seat. When they arrived at the house, Price exited the driver's side rear passenger door of the car. He testified that it was Price who walked up and shot Becknell. When Reed looked up after the shots were fired, he saw that Price had a gun. When Reed and Price were driving away, Price told Reed that Becknell had a gun and Price had to shoot Becknell before Becknell shot him.
Reed filed a motion in limine, asking the district court to exclude all evidence pertaining to Reed's previous gang-related activities and to any prior bad acts in general. Reed's motion in limine was granted by the district court.
After a trial, the jury found Reed guilty of attempted first-degree murder. Four days later Reed filed a motion for new trial and judgment of acquittal, alleging that the evidence was insufficient to support the conviction. He also filed a motion for a downward durational departure, citing his young age and immaturity as factors to be considered by the district court. In addition, Reed pointed out that due to an earlier parole eligibility date for murder, the punishment for a completed murder was less harsh than that of an uncompleted murder, again justifying a departure sentence.
Over a month later, with a new attorney, Reed filed an additional motion for new trial and a motion for a judgment of acquittal. In his motions, Reed argued the credibility of the witnesses was a major issue; the jury should hear evidence regarding a protection order filed against Barnett—one of the State's witnesses; Becknell was not an unavailable witness and should have been forced to testify; the State used false unsworn statements to contradict sworn testimony at trial; and the evidence was insufficient to support Reed's convictions.
Over 3 months after the trial, with yet a different attorney, Reed filed a supplemental motion for new trial which included several new allegations of trial error, including claims of ineffective assistance of counsel. Although the district court found this motion to be untimely, it treated it as a motion for postconviction relief similar to a motion filed under K.S.A. 60–1507 and held an evidentiary hearing on the motion. On September 16, 2011, the district court denied Reed's supplemental motion for new trial.
On September 22, 2011, Reed filed a motion to bar the imposition of the guidelines sentence as cruel and unusual punishment. Reed argued the guidelines sentence for his crime was cruel and unusual because his criminal history score was A, which placed his sentence within 592 to 653 months of...
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