State v. Richard

• Decision Date: 05 September 2014
• Docket Number: No. 107,962.,107,962.
• Citation: 333 P.3d 179
• Parties: STATE of Kansas, Appellee, v. Derrick RICHARD, Appellant.
• Court: Kansas Supreme Court

333 P.3d 179

STATE of Kansas, Appellee,

v.Derrick RICHARD, Appellant.

No. 107,962.

Supreme Court of Kansas.

Sept. 5, 2014.

Syllabus by the Court

1. A trial court's determination of whether to admit evidence of a defendant's prior crime or civil wrong is governed by a three-part test:

First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.

Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.

Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.

2. A person challenging the legality of a search must establish that he or she was the victim of an invasion of privacy. To establish a sufficient interest to have standing to challenge the legality of a search, the challenger must claim either to have a proprietary or possessory interest in the premises searched or to have owned or possessed the seized property.

3. For a consent to search to be valid there must be clear and positive testimony that the consent was unequivocal, specific, and freely given, without duress or coercion, either expressed or implied. An individual's mental state is a factor in determining the voluntariness of his or her consent to search.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause, and Ryan Eddinger and Deborah Hughes, of the same office, were on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

A jury convicted Derrick Richard of felony murder based upon the underlying felony of criminal discharge of a firearm at an occupied building. Richard allegedly fired his handgun at a neighbor's house, and a bullet fatally wounded a man sitting inside the house. On direct appeal, Richard raises three evidentiary issues. We have jurisdiction under K.S.A. 22–3601(b)(1) (direct appeal for conviction of off-grid crime; life sentence). Finding no error, we affirm.

Facts and Procedural Overview

During the evening of July 16, 2010, Grady Lane and his wife, Erin Gonzalez–Lane, were watching television in the second-story family room of their home at 532 North Wabash in Wichita, Kansas. Gonzalez–Lane went downstairs to bed around 10 p.m., while Lane stayed in the family room to play video games. At around 11 p.m., Gonzalez–Lane heard what she described as “[p]ow, pow, pow, pow.” Gonzalez–Lane assumed the noise was fireworks; therefore, after checking on her children, she decided all was well and went to sleep.

That same evening, at approximately 11 p.m., Officer Jason Waite responded to a call reporting gunshots fired in the nearby area of 500 North Ohio. Officer Waite encountered Derrick Richard in the street between two houses at 529 and 532 Wabash, but Richard said he had not heard gunshots or fireworks.

The next morning, Gonzalez–Lane discovered Lane still in the upstairs family room, but he was not breathing and there was “a lot of blood.” Officers Chad Richardson and Channara Seang responded to Gonzalez–Lane's 911 call. They observed Lane, dead from a gunshot wound to the head, slumped over on his side as if he had been sitting upright on the couch and had fallen over. The officers discovered a single bullet hole in the family room window glass and three bullet holes in an interior wall, all of which appeared to have come from outside. Crime Scene Investigator Natalie Rowe collected three bullet fragments from inside the room.

The family room window faced the Lane's backyard, and an officer noted that if Lane had been sitting up on the couch, he would have been visible through the window for a shooter located in the backyard. A search of Lane's backyard yielded four spent cartridge casings (fired rounds) and one unfired cartridge, all designed to be used in a .45 caliber handgun and all manufactured by Speer. The cartridges were found approximately 20 to 25 yards from the family room window.

Gonzalez–Lane told police she “had a notion” that Richard, their neighbor directly to the south at 524 North Wabash, killed Lane because the two men had been in a dispute over a dog. Gonzalez–Lane also told police that Richard had previously fired shots in the neighborhood, after which he called Lane to tell him Richard was “just blowing off some steam and ... everything was okay.”

Richard lived with his daughter, Jasmine Huff, and his father, Irving Richard. After obtaining Huff's permission to search the family's backyard, officers found seven .45 caliber spent casings and one live .45 caliber cartridge. Four of the spent casings were manufactured by Winchester, while the other three, as well as the live cartridge, were manufactured by Speer.

Detective Robert Chisholm interviewed Richard three times. The first interview began at 9 a.m. on July 17, 2010, with the detective advising Richard of his Miranda rights. Richard told the detective that he and Lane had been friends until they got into a dispute over a dog. He denied having any guns and said that he had not heard any shots fired the previous evening. Richard also denied that he had previously discharged a firearm in his yard or that he had called Lane to apologize for doing so, albeit he had no explanation for the shell casings found in his yard. Five and a half hours into the interview, Richard told Detective Chisholm that he was ill and needed to go to the hospital, whereupon the detective stopped the interview and called Emergency Medical Services.

During that first interview, Richard had given consent for the police to search his home for guns, drugs, and evidence related to this crime. But Richard told the detective that only Irving had access to a storage area in the back of the house, and the detective relayed that information to the officers at the scene. In Richard's bedroom, the police found a box of ammunition containing twenty-nine .45 caliber semiautomatic cartridges manufactured by Speer and a gun case. Irving gave the officers permission to search a padlocked storage area on the enclosed back porch and provided the officers with a key for the padlock. Officers searched the storage area and located a .45 caliber gun manufactured by Haskell and a magazine. The magazine contained seven .45 caliber cartridges manufactured by Speer.

Upon Richard's release from the hospital and after reminding him of his Miranda rights, Detective Chisholm interviewed Richard for another 30 to 45 minutes. Richard admitted owning the gun that the detective said they had found at his house. Richard explained that he normally stored the loaded gun underneath his mattress. In response to the detective's query about the 14 rounds of ammunition missing from the box found in his house, Richard related that on a prior occasion he had fired the handgun into the air, after which he called Lane to explain what he had done. He also admitted shooting his gun on the Fourth of July and firing at a dog causing trouble in the neighborhood. Richard continued to deny hearing shots or shooting at Lane's house on the night of Lane's death. Richard eventually concluded the interview.

The next morning, at Richard's request, Detective Chisholm conducted another interview. After the detective had Richard read his Miranda rights aloud, Richard admitted shooting his gun from Lane's backyard six times the night of Lane's death to send Lane a message to leave him alone.

The State charged Richard with one count of felony murder, based on the underlying felony of criminal discharge of a firearm at an occupied building, and one count of criminal possession of a firearm.

Sedgwick County Regional Forensic Science Center firearm and tool mark examiner Gary Miller opined that three of the spent casings from Richard's yard and all of the spent casings from Lane's yard came from Richard's gun. The other casings and live cartridges lacked sufficient identification markings to pair them with a particular firearm. Miller noted that the three bullet fragments found in Lane's home had the same class characteristics as ammunition that would be used in Richard's gun but could not definitively say if they were fired from Richard's handgun.

Richard testified in his own defense. He explained that on the day of Lane's death, he went over to a friend's house at around 7:30 p.m. to play cards. He stayed about 2 1/2 to 3 hours before returning home. When he got home, he went for a walk. Hoping to resolve his dispute with Lane, Richard stopped by Lane's residence to see if Lane was on his back porch where he usually sat. Lane was not outside, so Richard pulled his gun out and shot into the air. Richard then went home, put his gun away, and went across the street to talk to a friend.

Richard said he could not explain why he shot his gun in the air but said, “[A]s they stated, I was known to shoot my gun in the air at different times, so I did shoot the gun in the air.” Richard stated that he shot five or six times but never shot the gun at the house. He explained that one of Lane's children was in the house, so he would have never shot at the house.

The jury convicted Richard as charged. Richard...