State v. Scaife

• Decision Date: 03 July 2008
• Docket Number: No. 97,183.,97,183.
• Citation: 186 P.3d 755
• Parties: STATE of Kansas, Appellee, v. William SCAIFE, Appellant.
• Court: Kansas Supreme Court

186 P.3d 755

STATE of Kansas, Appellee, v. William SCAIFE, Appellant.

No. 97,183.

Supreme Court of Kansas.

July 3, 2008.

Janine Cox, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.

Edmond D. Brancart, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for the appellee.

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

William Scaife appeals his convictions and sentences for premeditated first-degree murder, attempted premeditated first-degree murder, aggravated robbery, and fleeing or attempting to elude a police officer. Scaife argues that (1) the trial court should have instructed on second-degree murder, as requested by counsel; (2) the evidence was insufficient to support the premeditated first-degree murder conviction; (3) in closing argument, the prosecutor improperly vouched for the credibility of the State's prime witness; (4) the sentencing court failed to consider Scaife's ability to pay when ordering the reimbursement of attorney fees to the State Board of Indigents' Defense Services (BIDS); (5) the sentencing journal entry did not comport with the sentencing court's pronouncement from the bench with respect to the BIDS application fee; and (6) the sentencing court erred in imposing a higher sentence based upon a criminal history which was not proved to the jury beyond a reasonable doubt. Finding sufficient evidence to support the premeditation element of first-degree murder but an erroneous denial of the requested second-degree murder instruction, we reverse the premeditated first-degree murder conviction and remand for a new trial. The remaining convictions and sentences are affirmed, except for the assessment of BIDS attorney fees, which is vacated and remanded.

The charges against Scaife arose from a shooting and robbery in a Kansas City residence from which Patrick Ross and William Thompson had conducted a high volume of drug sales and in which the two, and sometimes others, frequently consumed their merchandise. The residence was equipped with video monitoring and was secured against unwanted intrusions. Scaife had recently returned to the Kansas City area and gained entrance into the residence as a prior acquaintance of Ross.

On the night of the shooting, Ross, Thompson, and Scaife were lounging in the residence, smoking marijuana. Shortly after midnight, the three were watching television, with Thompson lying on a futon mattress on the floor and Scaife seated a few feet behind the futon. According to Ross, Scaife suddenly and without warning shot Thompson in the head three times and then rose from his seat and shot Ross four times. Scaife said nothing immediately prior to or during the shooting spree.

Ross pretended to be dead but was able to observe Scaife's movements through squinted eyes. He said that Scaife took everything from Thompson's pockets, including a gun and marijuana. Scaife then lifted Ross by the waist of his pants and took Ross' wallet, as well as taking drugs that were lying on the living room table. Ross heard Scaife move through the house, apparently trying to find a way out. He heard glass breaking in the kitchen and assumed that Scaife had broken the kitchen window and jumped from the second-story window to escape. Later, police found a black gun holster and some money beneath that broken kitchen window.

After Scaife left, Ross called 911 and reported the shooting. Ross told the dispatcher that he thought he was dying and wanted someone to know that Scaife had shot Thompson and him. Ross testified at trial and identified Scaife as the shooter and as the person who robbed them of money, guns, and drugs.

Law enforcement officers testified as to two subsequent incidents in which Scaife fled when an officer attempted to detain him. That activity formed the basis for the fleeing or eluding conviction which is not directly involved in this appeal.

SUFFICIENCY OF THE EVIDENCE

We take the liberty of first considering Scaife's challenge to the sufficiency of the evidence to support the premeditated murder and attempted premeditated murder convictions. Specifically, Scaife contends that the State did not prove the critical element of premeditation. See K.S.A. 21-3401(a).

"When the sufficiency of the evidence is reviewed in a criminal case, this court must consider all of the evidence, viewed in a light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]" State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).

The district court's elements instruction on first-degree murder included the following definition of premeditation:

"Premeditation means to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another's life."

That instruction contains language drawn directly from our opinions. See State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 (2004) (quoting State v. Hebert, 277 Kan. 61, 88, 82 P.3d 470 [2004]).

Scaife points to Ross' testimony that all was well with the group when Scaife suddenly and inexplicably started shooting. Scaife contends that Ross' testimony describes an instantaneous act, rather than a premeditated act.

Premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one. State v. Morton, 283 Kan. 464, 475, 153 P.3d 532 (2007). Prior cases have listed factors to consider when determining the question of premeditation: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. See State v. Oliver, 280 Kan. 681, 704, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183, 126 S.Ct. 2361, 165 L.Ed.2d 286 (2006).

In reviewing the factors, Scaife argues that Ross' description of the lack of provocation, the defendant's conduct before and after the shooting, and the absence of any threats or declarations by the defendant before or during the occurrence logically support an inference that the act was spontaneous and unplanned, rather than premeditated. He discounts the use of a deadly weapon because all of the occupants of the drug house were armed and notes that the shots were fired in rapid succession, rather than being administered after the victims were felled and helpless.

Thus, because Scaife believes the more reasonable inference to be drawn from the evidence is spontaneity, rather than premeditation, he concludes that the evidence was insufficient to support the premeditated first-degree murder conviction. However, that is not our standard; we do not weigh the evidence. State v. Beard, 273 Kan. 789, Syl. ¶ 5, 46 P.3d 1185 (2002) (it is not the appellate court's function to weigh the evidence).

The State takes the same circumstances and provides a credible explanation as to how a reasonable person could infer that Scaife's actions were pursuant to a previously devised plan to kill and rob the victims. Scaife gained the victims' confidence, waited until the three were alone in the house, and then, without provocation, used a concealed firearm to fire multiple rounds into both victims, before robbing them and leaving them for dead so that they would be unavailable to identify their attacker.

However, our function in reviewing evidence sufficiency is not to select the inference which we find most compelling, but to view the evidence in a light most favorable to the prosecution. We permit a factfinder to infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude every other reasonable conclusion or inference. Yount v. Deibert, 282 Kan. 619, Syl. ¶ 1, 147 P.3d 1065 (2006). Moreover, a conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Lopez, 36 Kan. App.2d 723, 725, 143 P.3d 695 (2006). Here, we hold that one of the reasonable conclusions or inferences the jury could have drawn from the circumstantial evidence was that Scaife had thought the matter over beforehand and that his intent to kill Thompson and Ross was premeditated.

LESSER INCLUDED OFFENSE INSTRUCTION ON SECOND-DEGREE MURDER

In a factually related issue, Scaife complains that the district court erred in refusing to give an instruction on second-degree murder, K.S.A. 21-3402, with respect to the killing of Thompson. The State had filed the charges as first-degree murder on the alternative theories of premeditation and felony murder. The trial judge determined that a lesser included offense instruction was not warranted because the State filed a felony-murder charge and the evidence of the underlying felony was neither weak nor inconclusive. See State v. Boyd, 281 Kan. 70, 90, 127 P.3d 998 (2006) (trial court required to instruct on lesser included offenses of felony murder only when the evidence of the underlying felony is weak, inconclusive, or conflicting). The district court did note that if the sole charge in the complaint had been premeditated first-degree murder, a lesser included instruction on second-degree murder would have been appropriate. See K.S.A. 22-3414(3).

We need not discuss whether lesser included instructions were appropriate on the alternative theory of felony murder. The complaint charged and the jury found Scaife guilty of premeditated first-degree murder. In a prosecution for premeditated first-degree murder, where there is no direct evidence as to the circumstances of the killing and the...