State v. Rhoiney

• Decision Date: 30 December 2021
• Docket Number: No. 121,159,121,159
• Parties: STATE of Kansas, Appellee, v. Andre Clark RHOINEY Jr., Appellant.
• Court: Kansas Supreme Court

501 P.3d 368

STATE of Kansas, Appellee,

v.Andre Clark RHOINEY Jr., Appellant.

No. 121,159

Supreme Court of Kansas.

Opinion filed December 30, 2021.

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

Michael J. Duenes, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Andre Clark Rhoiney Jr. directly appeals his convictions for felony murder, criminal discharge of a firearm at an occupied vehicle, and aggravated assault. We find no reversible error and affirm his convictions.

FACTS AND PROCEDURAL BACKGROUND

On a Friday night in October 2016, Rhoiney was going with his friend, Daniel Askew, to a house party in Topeka hosted by Michael Bueno. Askew rode on his motorcycle while Rhoiney followed behind him driving his baby blue Ford Expedition. On the way, Askew "warm[ed] up" his tires by swerving within his lane. Then, a minivan driven by Richea McCain pulled up alongside Askew's motorcycle and Michael Stadler—the minivan's passenger—told Askew to drive more carefully.

An argument commenced between Stadler and Askew. It continued for several blocks as the two vehicles drove next to each other. During the argument, Rhoiney continued to follow both vehicles. Eventually McCain broke off the engagement with Askew and turned left onto 29th Street. At that point, Rhoiney also turned left onto 29th Street, drove up beside McCain and fired his handgun into the van. McCain ducked and continued driving. As she heard another gunshot, Stadler cried out, "Oh, I've been hit. I've been hit. ... In my chest."

McCain immediately drove Stadler to a nearby hospital where he was pronounced dead. Stadler had two gunshot wounds—one to his right arm and one to the right side of his chest. He was shot from an intermediate distance, and an autopsy recovered a bullet from Stadler's left chest cavity.

After the shooting, Rhoiney and Askew continued on to Bueno's house. The pair arrived shortly after midnight. Several partygoers noticed Askew's and Rhoiney's vehicles in Bueno's driveway, later identifying Askew's "crotch-rocket" style motorcycle and Rhoiney's "sky-blue" Ford Expedition SUV. During the party, Rhoiney asked Askew to "trade" handguns with him.

The next day, Bueno read an article about a shooting that occurred near his house the prior evening. The article described the incident as involving "an orange crotch rocket and a blue truck" and occurring around 12:15 a.m. Given these "coincidences," Bueno contacted the police.

One week later, Rhoiney's SUV was found on fire and hidden in the trees on an I-70 access road. A Topeka Fire Department fire investigator discovered two liquid "trailers" made from gasoline near the SUV, suggesting someone intentionally set fire to the SUV, leaving a "burned-out shell of a vehicle." The burned vehicle no longer had a license plate or a dashboard VIN number tag, yet investigators were able to recreate the VIN which matched a 2000 Ford Expedition registered to a woman with whom Rhoiney had fathered a child. Additionally, though the vehicle suffered heavy fire damage, a small patch of "baby-blue" paint remained.

A few days after that, authorities arrested Rhoiney aboard a Greyhound bus in Bluefield, West Virginia. Rhoiney initially gave the police a false name and identification card, and the police discovered a pistol hidden near Rhoiney's seat.

The State charged Rhoiney with felony murder, criminal discharge of a firearm at an occupied dwelling or vehicle, and aggravated assault. A jury trial commenced and Rhoiney was convicted of criminal discharge of a firearm at a vehicle and aggravated assault, but the jury remained deadlocked on the felony-murder charge. The district court accepted the two guilty verdicts and declared a mistrial as to the felony-murder charge.

A second jury trial followed on the remaining felony-murder charge. At the second trial, several Shawnee County Jail inmates testified about Rhoiney's conduct after his first trial, describing Rhoiney as "cavalier" about his case and that he discussed it openly regularly. The second jury convicted Rhoiney of felony murder.

The district court imposed a hard 25 sentence for the felony-murder conviction, 71 months for the criminal discharge of a firearm conviction, and 13 months for the aggravated assault conviction. The district court ordered the felony murder and criminal discharge of a firearm sentences to be served concurrently and the aggravated assault sentence to be served consecutively to the hard 25 sentence. Rhoiney directly appeals.

DISCUSSION

On appeal, Rhoiney raises five claims of error across both trials. First, he argues the district court erroneously instructed his second jury on felony murder because the instruction impermissibly permitted the jury to convict him under "any mental state." Second, he asserts that prosecutorial error in both trials deprived him of his right to a fair trial. Third, he argues that the district court erred in both trials by failing to instruct the jury on the lesser included offense of discharge of a firearm from a roadway. Fourth, he contends that he should have been sentenced for the lesser offense of reckless voluntary manslaughter. Fifth, he argues that cumulative error denied him a fair trial. Finding no reversible error, we affirm Rhoiney's convictions.

Mental State Instruction

Rhoiney's first claim of error—raised for the first time on appeal—alleges that the district court improperly instructed the jury on felony murder. He explains that he was charged with felony murder for conduct performed "in the commission of a reckless discharge of a firearm at an occupied vehicle." Thus, according to Rhoiney, he was on notice that the State was alleging a reckless state of mind, but was not on notice that he could be convicted by the "broader" states of mind of either intentional or knowing conduct. Thus, his argument goes, the district court improperly broadened the complaint in violation of Rhoiney's due process rights when the court instructed the second jury that if the State proved Rhoiney acted "intentionally or knowingly" then the State had necessarily proved he acted recklessly.

Though Rhoiney attempts to style his challenge as a jury instruction error, his argument is rooted in a due process challenge, as his counsel made clear during oral argument. Accordingly, because Rhoiney did not raise this argument at the district court, he cannot raise it on appeal unless an exception applies. Our recognized exceptions include (1) the new claim raises only a question of law based on uncontested facts; (2) consideration is necessary to serve the ends of justice or prevent denial of fundamental rights; or (3) the district court's judgment is correct for the wrong reason. State v. Arnett , 314 Kan. 183, 185, 496 P.3d 928 (2021). Even so, a "decision to review an unpreserved claim under an exception is a prudential one." 314 Kan. at 248, 496 P.3d 928. Even if an exception may apply, we are under no obligation to review the claim. 314 Kan. at 248, 496 P.3d 928.

Rhoiney declares, without elaboration, that his case fits within the first two exceptions. However, Rhoiney does not explain why these exceptions are applicable to his case. And we do not find an exception under these facts because under Kansas law, "[i]f recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally." K.S.A. 2020 Supp. 21-5202(c). Further discussion of Rhoiney's argument is not "necessary to serve the ends of justice." 314 Kan. at 185, 496 P.3d 928.

Prosecutorial Error

Rhoiney claims issue with three statements made by the prosecutor at his trials. We utilize our familiar two-step process of error and prejudice to evaluate claims of prosecutorial error:

"To determine whether prosecutorial error has occurred, the appellate court must decide whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman [v. California , 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) ]. In other words, prosecutorial error is harmless if the State can demonstrate ‘beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.’ " State v. Sherman , 305 Kan. 88, 109, 378 P.3d 1060 (2016).

First, during the State's closing argument in the first trial, defense counsel objected to the prosecutor's statement:

"Counsel makes much ado over the fact that, my goodness, we didn't recover the murder weapon. Well, you know what? If that's the litmus test, you know, for determining whether or not the State can be successful in proving a case, do you realize what the import of that would be? Individuals—"

The district court sustained Rhoiney's prompt objection, finding the statement improperly appealed to the passions of the community. The court then directed the jury to disregard the statement.

We consider the ameliorating effect of a jury admonition in determining whether prejudice existed. State v. Barber , 302 Kan. 367, 383, 353 P.3d 1108 (2015). Further, we presume jurors follow instructions provided by the district court. Miller v. State , 298 Kan. 921, 937, 318 P.3d 155 (2014). Rhoiney fails to demonstrate any resulting prejudice or establish that the jury failed to follow instructions. We find that the district court's...