State v. Ross, 92,478.

• Decision Date: 03 February 2006
• Docket Number: No. 92,478.,92,478.
• Citation: 127 P.3d 249
• Parties: STATE of Kansas, Appellee, v. Harvey L. ROSS, Appellant.
• Court: Kansas Supreme Court

127 P.3d 249

STATE of Kansas, Appellee, v. Harvey L. ROSS, Appellant.

No. 92,478.

Supreme Court of Kansas.

February 3, 2006.

COPYRIGHT MATERIAL OMITTED

Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellant.

David Lowden, assistant district attorney, argued the cause, and Debra S. Peterson, deputy district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

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

Harvey Ross appeals his convictions for one count of first-degree murder and one count of attempted first-degree murder, asserting that: (1) The trial court erroneously admitted evidence that Ross fled the state; (2) the trial court erroneously admitted evidence of Ross gang affiliation; (3) cumulative errors denied him a fair trial; and (4) the sentencing judge erroneously included Ross criminal history without proving it to a jury beyond a reasonable doubt.

FACTS

During the early morning hours of April 14, 2002, Timothy Cooper and his brother Kenneth Porter were shot at the Paradise Club in Wichita, Kansas. Porter, who suffered three gunshot wounds to his back and abdomen, survived even though his wounds were life threatening. Cooper also suffered three gunshot wounds, two in his chest and one in his wrist. Unfortunately, Cooper died from his injuries.

Detective James Espinoza arrived at the scene shortly after the shooting. Marcus Lowery, who had witnessed the shooting, described the shooter to Espinoza. Lowery stated that the shooter was a black male approximately 6 feet tall with a short or medium Afro and slight facial hair, wearing a light-blue shirt. Lowery recognized the shooter as someone he had seen around town but did not know his name. The next day, police showed Lowery a photographic lineup, and Lowery identified Ross as the shooter.

Will O'Neal was working as a security guard at the Paradise Club. O'Neal was outside the building in the neighboring parking lot when the shooting occurred. After hearing the shots, O'Neal rushed to get inside the building. As O'Neal entered the door, he saw a black male about 6 feet tall and dressed in a blue shirt run out of the building. The day after the shooting, O'Neal picked Ross' picture and another person's picture out of a photographic lineup, stating "[t]hese are [the] two that appeared to have come out of the Paradise."

On April 14, police issued an order to arrest and detain Ross. Officers immediately began searching for Ross at his last known addresses. Several days later, the district court issued a warrant for Ross arrest. Ross was arrested on July 10, 2003, in Federal Way, Washington.

On April 11, 2002, 3 days before the shooting, Ross reported to work at his permanent job with Berry Tractor. Ross left work early that day for a probation hearing to discuss the court's concerns about Ross' job situation. Even though Ross' previous probationary period was nearly over, at the conclusion of the hearing the district court extended Ross' probation period for an additional 18 months. On April 12, 2002, Ross did not report for work as scheduled or call his employer. Ross also was scheduled to work the following week. Ross failed to show up again. Ross did not contact his employer or pick up his paycheck for $472.97. Ross did not appear for an appointment with his probation officer on Monday, April 15, 2002, and failed to contact his probation officer as required.

After his arrest in July 2003, Ross was returned to Kansas and charged with first-degree premeditated murder, criminal possession of a firearm, and attempted first-degree murder, or, in the alternative, aggravated battery. At trial, to contradict Lowery's eyewitness identification, Ross presented several witnesses, including Wichita police officers and an eyewitness. The eyewitness was Ross' first cousin, David Robinson, who testified that he was with Ross at the Paradise Club and Ross was not the shooter.

Before Robinson testified, the State requested a brief hearing outside the presence of the jury regarding the admission of evidence that Robinson and Ross were affiliated with the same gang. Over Ross' objection the trial court ruled that the evidence of gang membership would be admissible to show Robinson's bias. During his cross-examination, Robinson denied that he and Ross were affiliated with the Tru Boys gang but later admitted that he had "TRU" tattooed on his right shoulder.

The State then called a Wichita police officer, who testified that Robinson had previously admitted to being a Tru Boys gang member, and another officer, who testified that Ross and Robinson were both documented as active members of the Tru Boys gang.

The jury found Ross guilty of the first-degree premeditated murder of Cooper, criminal possession of a firearm, and the attempted first-degree murder of Porter. The district court sentenced Ross to life in prison (hard 25) for the first-degree murder conviction, a 586-month sentence for the attempted murder conviction, and a 9-month sentence for the criminal possession of a firearm conviction. The court ordered the 9-month sentence to run consecutive to Ross' life sentence. Ross appeals his convictions and sentences pursuant to K.S.A. 22-3601(b)(1).

I. Evidence of flight

Ross first asserts that the trial court improperly admitted evidence that he fled to the state of Washington after the murder. Ross filed a motion in limine requesting the district court to exclude the evidence of flight. The district court overruled the motion. The defendant must object to the admission of the evidence at trial to preserve the issue for appeal when the defendant's motion in limine to suppress evidence is denied. K.S.A. 60-404; State v. Branning, 271 Kan. 877, 880, 26 P.3d 673 (2001). The State argues that Ross failed to preserve this issue for appeal when he failed to object to the admission of the evidence at trial.

Contrary to the State's contention, Ross' counsel had objected to flight evidence from four witnesses prior to their testimony, stating, "we would object to their testimony, because we are objecting to flight being introduced in this case.... And if the State has no objection for this objection standing for those four witnesses." The court accepted Ross' objection as a standing objection to all four witnesses and overruled the objection. We have previously noted that a standing objection offered prior to the witness' testimony is sufficient to preserve an issue for appeal. State v. Haddock, 257 Kan. 964, 984-85, 897 P.2d 152 (1995).

When the admission or exclusion of evidence is raised at trial, an appellate court first considers whether the evidence is relevant. State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Relevant evidence is "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). "Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." Carter, 278 Kan. at 77, 91 P.3d 1162.

Evidence of a defendant's flight or attempted flight is relevant to show the defendant's consciousness of guilt. State v. Walker, 226 Kan. 20, 21, 595 P.2d 1098 (1979). The statutory rules of evidence do not specifically address the admission of evidence regarding the defendant's flight or attempted flight. See K.S.A. 60-401 et seq. Thus, K.S.A. 60-445 is the applicable statute which allows the trial court to exclude evidence if its probative value is substantially outweighed by its prejudicial effect.

We, therefore, conclude that the trial court has discretion to admit evidence of flight. The trial court's decision to admit this evidence is reviewed by an appellate court using an abuse of discretion standard. Judicial discretion is abused when the court's action is arbitrary, fanciful, or unreasonable. However, if reasonable persons could differ as to the propriety of the trial court's decision, there is no abuse of discretion. State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000).

Ross argues that even though flight evidence may be relevant, this court should adopt a restrictive rule for its admission. Ross requests that, prior to admitting the evidence of flight, this court requires the State to prove that the defendant had specific knowledge that he or she was being sought for the crime charged. For support, Ross relies on United States v. White, 488 F.2d 660 (8th Cir.1973), and United States v. Jackson, 572 F.2d 636 (7th Cir.1978).

In White, the Eighth Circuit Court of Appeals considered the propriety of an instruction that allowed the jury to infer the defendant's guilt based on evidence that the defendant ran from federal agents at the time of his arrest more than 5 months after the crime at issue occurred. 488 F.2d at 662. The White court concluded that the trial court's instruction was erroneous because there was no evidence that the defendant knew at the time of his alleged flight that he was being sought for the crime charged. However, we note the White court held the admission of that evidence was harmless and upheld the defendant's conviction. 488 F.2d at 662.

In Jackson, the Seventh Circuit Court of Appeals reversed a defendant's conviction because of the erroneous admission of flight evidence. 572 F.2d at 643. Jackson had attempted to run from federal agents for about 3½ months after the crime charged. 572 F.2d at 638-40. The Jackson court reasoned that the inference of guilt was weak because there was no evidence that supported Jackson's consciousness of guilt for the specific crime charged. Nevertheless, the Jackson court refused to establish the requirement that evidence of flight is admissible only when the defendant knows that he or she is being sought for the crime charged, stating that "as the interval between the...