State v. Reid, No. 93,646.

• Decision Date: 27 June 2008
• Docket Number: No. 93,646.
• Parties: STATE of Kansas, Appellee, v. Leonard C. REID, Appellant.
• Court: Kansas Supreme Court

186 P.3d 713

STATE of Kansas, Appellee, v. Leonard C. REID, Appellant.

No. 93,646.

Supreme Court of Kansas.

June 27, 2008.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.

NUSS, J.:

A jury convicted Leonard C. Reid of the first-degree premeditated murder of a Texaco store's assistant manager and of aggravated robbery of the business. It acquitted him of three counts of vehicle burglary and two counts of theft which were based upon his actions several hours earlier. Reid received a hard 50 sentence and now appeals his convictions and sentence. Our jurisdiction is under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the trial court commit reversible error in admitting evidence under K.S.A. 60-455 that Reid had been fired from the Texaco store for stealing and in failing to give a limiting instruction? No.

2. Did the trial court err in giving the pattern jury instruction, PIK Crim.3d 52.20, on eyewitness identification? No.

3. Did the trial court err in denying Reid's motion to sever and in failing to give an accomplice instruction? No.

4. Did the trial court violate Reid's due process and jury trial rights by failing to give instructions on lesser included homicides and robbery? No.

5. Did cumulative error deprive Reid of his right to a fair trial? No.

6. Did the trial court err in finding that Reid killed the victim for monetary gain? No.

7. Is the Kansas hard 50 sentencing scheme unconstitutional? No.

Accordingly, we affirm Reid's convictions and sentence.

FACTS

On October 23, 2002, Muhammad "Salim" Shahidullah was scheduled to work the first half of the night shift, from 10 p.m. to 3 a.m., at the Texaco Star Mart at 96th and Nall in Overland Park. Salim was worried about working at night, so he asked to wear a regular employee shirt, rather than the white shirt he normally wore as an assistant manager. Only managers and assistant managers wore white shirts. They were also the only employees who knew the combinations to the various safes in the store.

Early in the morning of October 24, Kevin Petree rode his bicycle toward the Texaco. As he approached he heard a sound which, as a veteran, he identified as a gunshot. A few seconds later, Petree saw a man run out the store's door and across the street. While he described the man as having dark brown or black curly, kinky hair, he was unable to identify any other distinguishing characteristics.

Petree smelled burnt gunpowder as he walked into the store. He then saw Salim lying face down on the floor. After quickly determining that Salim had been shot in the back of the head, Petree immediately dialed 911. Records show that his call was made at 2:32 a.m. Salim later died, and the store was later found to be missing $4,300.

For a number of reasons, the police believed that the crimes were probably committed by someone who knew how a Texaco store operated. Besides the cash register, the robber was also able to take money out of the drop/floor safe, the back office safe, and the car wash coin box-places about which customers would not generally know and to which only the manager or assistant manager had access by key or combination. In addition, the robber struck at a financially rewarding time: just before the manager, Cathy Williams (Cathy), began her shift at 3 a.m. and before she retrieved the entire day's receipts for Brinks' security's collection at 9 a.m.

The police also believed the crimes were committed by a person knowledgeable about this store because the perpetrator was aware that Salim was an assistant manager with access to these money depositories, despite his wearing a regular employee shirt. Furthermore, the video surveillance tape was taken, indicating that the perpetrator not only knew of the surveillance system but also that the VCR recorder was locked in a box in the office to which only management had a key.

Accordingly, the State's prosecution theory was that Reid was the shooter and that his codefendant, Lionel Williams (Williams), was his accomplice. Evidence revealed that Reid had worked as a cashier at the store for about a year and a half before being fired for stealing in April 2002, 6 months prior to the crimes. According to Cathy, Reid was pocketing money instead of putting it in the register. She discovered those thefts partly because of the surveillance cameras. After Reid challenged her accusations, she confronted him with her evidence. Among other things, she took a surveillance tape from the locked box containing the VCR in the office and showed Reid his thefts. She then used the evidence of stealing to support her decision to terminate his employment.

After Reid's firing, he often hung out at the store with the employees and regular customers. According to an employee's testimony, about 1 week before the crimes, Reid grabbed the employee work schedule from behind the counter, reviewed it, then immediately made a phone call to an unknown person in hushed tones.

Although Reid did not testify at trial, approximately 1 week after the crimes he told police in a videotaped interview that he was going to visit his girlfriend's daughter on October 23 and was planning to get his car washed at the store. The car wash was closed because it was too cold. Reid admitted to police that he arrived at the store between 10 p.m. and midnight. He remained there for about an hour, visiting with Salim and a customer who frequented the store. Reid then drove around the rest of the night until heading home around 7 the next morning. He also volunteered to the police he was aware of the store's videotape surveillance system, or, as he exclaimed, those "fuckin' cameras."

Codefendant Williams testified that sometime after 8 p.m. on October 23, he drove to an apartment complex by the store to meet Reid. Williams got into Reid's car and sold him two $10 bags of marijuana. They smoked some of the marijuana and then, at Reid's suggestion, moved to the Citgo across the street from the Texaco a little after 9 p.m. Police later found cigar butts with DNA from both Williams and Reid in that lot.

According to Williams, in between smokes he broke into three cars parked in the lot. During the 2 hours they sat there, both men made phone calls to their girlfriends on Williams' cell phone. Williams called his girlfriend about 12:45 a.m. Afterward, Reid drove Williams back to his car where Williams transferred the stolen property.

Williams testified that he left Reid to get something to eat and then went to his mother's house. An hour or two later, he left to make another drug sale. He then realized he did not have his phone and went home. Later the same day, Williams was at a friend's house with Reid and complained that he had lost his phone. Reid suggested that Williams look in Reid's car, where Williams found his phone under the driver's seat.

Phone records indicated that no calls were made from Williams' phone between 12:45 a.m. and 2:30 a.m. on October 24. However, several phone calls were made just after 2:32 a.m.-the time Petree called 911. By examining the records, the police determined that the calls were made from the store area. Williams insisted that he knew nothing about those calls and that he had lost his phone by that time. The records showed, however, the numbers dialed immediately after the crimes had been previously called many other times from Williams' phone.

Despite Reid's denial to the police that he was in the area after the shooting, one witness placed him there. Renee Showalter, who lived in a condominium near the store and was a frequent customer, testified that later that morning she saw Reid in his car parked in the lot outside her home. Additionally, while Petree could not identify Reid, he testified that during his call to the 911 dispatcher he saw the brake lights come on in a light-colored car across the street. Codefendant Williams testified that the night of the crimes, Reid was driving a silver Chevy Malibu.

Witnesses' descriptions of an individual actually seen in the store around the time of the crimes also resembled Reid. Marsha Brown testified that she pulled into the store around 2 a.m. After pumping the gas, she then went inside to pay and spent a few minutes looking for a Twix candy bar.

Brown was surprised that the store clerk stayed behind the counter and did not offer to assist her in finding the Twix. As she came to the end of a shelf, she turned around and saw that another person was standing behind the counter with the clerk. She described that individual as an African-American man with "either dreadlocks or real poofy" hair. Brown described the incident as "weird." When she was shown a line-up a week later, however, she was unable to identify Reid, an African-American, as the man behind the counter with Salim.

Brown could not find the Twix, so she left the store and went across the street to buy one at another store. That store's receipt was time-stamped 2:13 a.m. As Brown drove home, she passed the Texaco and noticed a man walking quickly down the street, hunched over as if carrying something inside his coat. She did not stop because she saw a Krispy Kreme truck parked in the store lot and assumed that the truck's driver would notice if something was wrong in the store.

The Krispy Kreme truck driver, Scott Roesler, testified that as he walked into the store a black man and Salim walked inside at the same time. Roesler made his delivery, had Salim sign the invoice for the donuts, and left. Store manager Cathy testified that Salim had filled out every single detail on the donut invoice, which she found odd because he usually just noted the log with "KK,"...