State v. Salary
| Decision Date | 13 March 2015 |
| Docket Number | 104,181. |
| Citation | 301 Kan. 586,343 P.3d 1165 |
| Parties | STATE of Kansas, Appellee, v. Mark T. SALARY, Appellant. |
| Court | Kansas Supreme Court |
Richard P. Klein, of Olathe, was on the brief for appellant.
Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
Mark Salary appeals his convictions of first-degree premeditated murder and arson arising out of the shooting of his uncle and the accompanying house fire. Salary alleges the district court erred in denying his requests to instruct the jury on self-defense and on murder's lesser included offense of voluntary manslaughter based on a theory of imperfect self-defense. He also claims the court erred in admitting into evidence his recorded confession and in imposing a hard 50 life sentence. As a result, he claims his convictions should be reversed and his case remanded to the district court.
We hold any error related to the jury instructions and his recorded confession was harmless. We therefore affirm his convictions. But Salary's hard 50 sentence must be vacated and remanded for resentencing per Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), and this court's later decision in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014).
Mark Salary admittedly shot and killed his uncle Valray “Joe” Estell in Estell's living room in Kansas City, Kansas. Salary had lived with his uncle for about 2 years. And for about 2 weeks before the shooting, Salary's friend Rosalind Haskins had also been staying there.
Haskins testified that Salary was cleaning a handgun in his bedroom before they went to bed the night before the shooting. According to Haskins, this was the only time she had ever seen Salary with a gun. The next morning while they were sitting in the bedroom, she noticed the gun was in his pocket. Salary told her that she would need to leave the house when he told her to do so. Soon after, Haskins dressed and went outside to wait for her boss to take her to work.
Haskins further testified that before she went outside, Salary and Estell got into a disagreement because Salary had refused to talk to his grandmother on the telephone that morning. She noticed Salary had gone into the living room to discuss the call with his uncle. About 15 minutes after Haskins went outside, she came back in the house to call her boss. Salary and Estell were still discussing the phone call, with Estell sitting in a recliner in the living room and Salary standing in front of him. Salary's handgun was then in his left hand, hanging at his side.
Haskins testified Salary asked her why she was still there so she went back outside. About 5 minutes later, she heard five gunshots “one right after the other” coming from the house. She ran to the neighbor's house across the street and asked him to check on Estell.
When the neighbor knocked on Estell's door, Salary opened it a crack and told him everything was fine and to go back home. A few minutes after the neighbor returned home, he observed smoke coming out of both ends of Estell's house. After he called 911, he and Haskins saw Salary walking down the street away from Estell's house.
Fire Department Captain Larry Grissom testified he was the first firefighter to enter the house, which was filled with smoke from an active fire. Grissom found Estell with his upper torso and his face down on the living room couch and his knees and feet on the floor. Grissom testified that Estell's back and legs were badly burnt.
According to Grissom, he and another firefighter carried Estell onto the lawn where they began CPR. Estell was not breathing and had no pulse. But he did have several gunshot wounds.
The autopsy pathologist testified he found a total of 10 gunshot wounds and removed 7 bullets from Estell's body. But he could not determine the order of the shots. According to the pathologist, the bullets traveled in various directions, indicating Estell was moving around during the shooting. Most of the shots came from Estell's left side or from behind him.
Police officers found Salary's Star 9mm semiautomatic pistol on the kitchen counter with one round in its chamber and five rounds in its magazine. They also found 11 Winchester-brand 9mm shell casings in various places around the living room and kitchen and outside the house. Salary's pistol was capable of holding 17 rounds.
Police additionally found a box of ammunition containing 16 9mm rounds near Salary's bed, plus 1 expended bullet which had traveled through Estell's living room couch and lodged in the wall behind it. While the police also found one Winchester-brand .45 caliber shell casing on a kitchen windowsill, no guns were found in the house other than Salary's Star 9mm semiautomatic pistol.
The day after the shooting, Salary turned himself in to law enforcement. He was Mirandized and questioned by Detectives Steve Owens and Bryan Block at the Kansas City, Kansas, Police Department. After this “pre-interview” in which Salary admitted to shooting Estell, he agreed to make a recorded statement. He was again Mirandized and again admitted to shooting Estell. Owens later testified about the pre-interview, and the recorded statement was played to the jury.
Salary pled self-defense to the charge of first-degree premeditated murder and testified on his own behalf. In describing Estell, Salary testified his uncle was addicted to crack-cocaine, was aggressive when he was smoking it, and was even more aggressive, angry, and agitated when he was not. Salary also said that Estell kept several guns in the house and owned a bulletproof vest.
Salary's version of the salient events varied somewhat from the version presented by the State. He testified he and Estell had argued about money the night before the shooting. According to Salary, Estell was upset with him because Salary wanted to use their last $20 to buy food while Estell wanted to use it to buy crack.
The next morning, Estell was “really upset” because Salary would not speak to Salary's grandmother on the phone. Salary testified that as a result, Estell told him he needed to leave the house right away. Salary did not want to leave, though, because it was raining, and he was afraid Estell either would throw out on the curb everything Salary owned—guitars, amplifiers, computers, and Playstations—or else sell these possessions to buy crack. Salary testified Estell specifically told him, “Either you're gonna walk out or you're gonna get carried out, but one way or another, your ass is leaving right now, today.”
Salary testified he was not angry with Estell that morning but that he “knew something was gonna happen.” According to Salary, “I thought we was gonna fight, fist fight.” He also testified that when he had left his bedroom he noticed He clarified on cross-examination that the black and silver object was hanging out of the right-hand chest pocket on Estell's coveralls.
When Salary's lawyer asked him if he had fired his own gun, Salary answered:
Salary testified that he had five armor piercing rounds in his pistol, “And I figured they'll go through the vest.” He also testified he believed Estell was wearing the vest under Estell's coveralls. When asked by his counsel if he had intended to kill Estell before he thought he saw Estell pulling a gun, Salary answered “no.” The police did not find a bulletproof vest—or evidence of the existence of one—in the house or on Estell.
As for the fire, Salary testified that it started when Estell fell over a propane heater in the living room during the shooting. Salary said he could have stomped out the accidental fire, but instead he decided to spread it with a butane torch because he knew his uncle wanted to be cremated and thought the fire would “purify [Estell's] soul.” But during the pretrial investigation, Salary told the detectives he had started the fire after pouring kerosene over Estell's body. And fire investigators concluded the fire had been intentionally set, which confirmed Salary's pretrial statement.
A jury convicted Salary of one count of first-degree premeditated murder and one count of arson. This court has jurisdiction over his direct appeal under K.S.A.2014 Supp. 22–3601(b)(3), (4) (life imprisonment, off-grid crime).
Other facts will be added as necessary to the analysis.
Salary asked the district court to instruct the jury on self-defense, but the court denied his request. Salary now claims the denial was reversible error. The State responds there was no error but, if any, it was harmless.
Standard of review
This court uses a stair-step process for analyzing jury instruction issues on appeal. As we recently clarified in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) :
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should...
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