State v. Richmond
| Decision Date | 24 July 2009 |
| Docket Number | No. 100,074.,100,074. |
| Citation | 212 P.3d 165 |
| Parties | STATE of Kansas, Appellee, v. Albert Eugene RICHMOND, Appellant. |
| Court | Kansas Supreme Court |
Christina Waugh, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Albert E. Richmond, appellant was on a supplemental brief pro se.
Jared S. Maag, deputy solicitor general, argued the cause and was on the brief for appellee.
Albert Richmond was convicted of first-degree premeditated murder for shooting Tyrone Owens and sentenced to prison without the possibility of parole for 50 years (hard 50). Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in admitting into evidence a statement made by Richmond more than 2 years before the shooting? No.
2. Did the trial court deny Richmond his right to present his defense when ruling that the State could present evidence of his 1995 convictions if his testimony provided an innocent explanation for his presence at the shooting scene? No.
3. Did the trial court err in admitting into evidence specific instances of Richmond's drug dealing as evidence of his motive, knowledge of the local drug culture, and awareness that drug dealers may carry money on their persons? No.
4. Did the prosecutor commit reversible misconduct? No.
5. Did cumulative error deny Richmond his fundamental right to a fair trial? No.
6. Were Richmond's Sixth and Fourteenth Amendment rights violated when the trial court imposed a hard 50 sentence without submitting the aggravating factors to a jury for proof beyond a reasonable doubt? No.
Accordingly, we affirm.
On October 21, 2006, defendant Albert Richmond, Rayland Brown, Ramone Hester, and Malcolm Jackson traveled to a convenience store in Pittsburg so Hester could buy marijuana from Tyrone Owens. Jackson drove the car, with Richmond in the front passenger seat and Hester and Brown in the back.
Upon arrival, Hester called Owens from a pay phone. When Owens arrived, Hester got into Owens' car and it pulled away. According to Jackson, Richmond told him to follow. Owens stopped a block later. After Hester purchased $20 worth of marijuana, he got out and started walking back toward the Jackson car. Jackson testified that Richmond then handed him a .40 caliber handgun and told him to "go get" Owens. Once Jackson neared Owens' passenger side window, however, Owens drove away. Jackson testified that he got back in his car and tossed the handgun at Richmond, who told him to follow Owens.
After pursuing for a couple of blocks, Jackson cut Owens off by swerving in front of his car. Jackson and Richmond then got out and approached Owens' car. Jackson testified that he tried to reach in and turn the ignition off so he could take Owens' money. As Jackson reached, Richmond shot through the front windshield and struck Owens in the chest. While Owens put the car in reverse to get away, Jackson grabbed the steering wheel. Owens' car then got stuck on a fire hydrant. According to Jackson, Richmond fired several more shots, and Owens was hit twice more. One was a head shot which instantly killed him.
While Jackson identified Richmond as the shooter, both Hester and Brown testified that they ducked when they heard shots and saw nothing more happening outside of the car. Richmond did not testify.
After the shooting, Hester moved into the driver's seat and began to drive once Jackson and Richmond got back in the car. Hester testified that after the shooting, Jackson was carrying a different handgun from what he had been carrying earlier. Jackson also got some of Owens' blood on his arm.
Owens was a well-known drug dealer. Officers found $25 in his left hand, $15 in his pocket, and a small baggy of drugs on his person. They also found a glove containing Richmond's DNA at the scene. Richmond was arrested in Miami, Florida, approximately 10 days later.
In exchange for their testimony in Richmond's jury trial, the three other men received plea deals. Jackson pled guilty to one count of conspiracy to commit aggravated robbery, one count of attempted aggravated robbery, and one count of aiding a felon. He testified that he expected to serve 8 1/2 years in prison. Hester pled guilty to attempted aggravated robbery and testified that he expected to receive 4 years in prison. All charges against Brown were dropped. The jury convicted Richmond of first-degree premeditated murder, and the court later sentenced him to the hard 50.
More facts will be added as necessary to the analysis.
Richmond first argues the trial court erred in admitting evidence of his statement to drug task force agent Beth Brooks. Specifically, Brooks had interviewed Richmond in September 2004 as part of a cocaine investigation. Brooks testified that Richmond told her at that time that he did not sell crack cocaine. The prosecutor then asked, "What did he tell you his specialty was?" Brooks answered, "He said that he robbed and killed people." Richmond now argues that the testimony was inadmissible because of K.S.A. 60-445, 60-447, and 60-455.
The State generally responds that the evidence is not barred by K.S.A. 60-455 and that Richmond is prohibited from arguing the other statutory prohibitions.
The State had filed a motion in limine to admit Brooks' testimony about Richmond's statement as relevant to his state of mind, plan, and intent. Richmond responded that the State was instead trying to inform the jury of his prior crimes: 1995 guilty pleas to second-degree murder and voluntary manslaughter arising out of a Missouri drug robbery. Specifically, he noted that Brooks remembered his statement—"[he] said that he killed and robbed people, he did not sell crack"—as being said in the present tense, but that she admitted that her written report showed his statement was made in the past tense, i.e., "Richmond stated that he had committed robbery and murder." The report is not in the record on appeal.
After the trial court determined that Brooks' evidence was susceptible to both interpretations—past or present tense—it found that Richmond's argument went more to the weight of her testimony than its admissibility. He invited defense counsel to explore her inconsistencies at trial:
The court then found that the statement was relevant because it essentially referred, among other things, to Richmond's sense of identity:
Shortly before Brooks' trial testimony, Richmond again objected. He argued that the testimony was too remote to be relevant to prove his state of mind on the day of the shooting and was being offered as propensity evidence in violation of K.S.A. 60-455.
The trial court rejected Richmond's argument that the evidence was being offered to show propensity:
The court again observed that the statement instead referred, among other things, to Richmond's sense of identity:
The court reminded the State that "under no circumstances" would Brooks be allowed to mention the 1995 convictions. She later testified:
After Brooks' testimony, Richmond asked that it be stricken because it was stated in the past tense and essentially referred to his 1995 convictions. He also asked for a mistrial. The judge disagreed: "[h]e just said this is his specialty, robs and kills people, I didn't take it in the past tense." The judge found that the State had "gone out of its way to be particularly careful so we didn't reference this past tense and present tense issue," i.e., place before the jury any reference to his 1995 convictio...
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...... A party must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. State v. Richmond , 289 Kan. 419, 428, 212 P.3d 165 (2009). Without a specific objection, we have no particularized findings to review on appeal and thus cannot determine whether the district court erred. Similarly, a party may not object at trial to the admission of evidence on one ground and then on appeal argue ......
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Table of Cases
..., 824 A.2d 611, 264 Conn. 1 (Conn., 2003), §6.500 State v. Rice , 184 S.W.3d 646 (Tenn., 2006), §1.300 State v. Richmond , 289 Kan. 419, 212 P.3d 165 (2009), §4.300 State v. Richmond , 590 N.W.2d 33 (Iowa 1999), §9.506.1 State v. Rios , 234 S.W.3d 412 (Mo.App. 2007), §§5.406, 41.100, 44.300......
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Table of Cases
..., 824 A.2d 611, 264 Conn. 1 (Conn., 2003), §6.500 State v. Rice , 184 S.W.3d 646 (Tenn., 2006), §1.300 State v. Richmond , 289 Kan. 419, 212 P.3d 165 (2009), §4.300 State v. Richmond , 590 N.W.2d 33 (Iowa 1999), §9.506.1 Is It Admissible? B-62 State v. Rios , 234 S.W.3d 412 (Mo.App. 2007), ......
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Table of Cases
..., 824 A.2d 611, 264 Conn. 1 (Conn., 2003), §6.500 State v. Rice , 184 S.W.3d 646 (Tenn., 2006), §1.300 State v. Richmond , 289 Kan. 419, 212 P.3d 165 (2009), §4.300 State v. Richmond , 590 N.W.2d 33 (Iowa 1999), §9.506.1 State v. Rios , 234 S.W.3d 412 (Mo.App. 2007), §§5.406, 41.100, 44.300......
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Questions that assume unproven facts
...329 (N.H. 1945); see also Berger v. United States , 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See State v. Richmond , 289 Kan. 419, 212 P.3d 165 (2009), wherein a prosecuting attorney asks questions that assumed facts not in evidence. 2 Coscino v. Wolfley , 696 So.2d 257 (La. App. 19......