State v. Smith-Parker

Decision Date24 December 2014
Docket Number105,919.,105,918
Citation340 P.3d 485,301 Kan. 132
CourtKansas Supreme Court
PartiesSTATE of Kansas, Appellee, v. Willie Jerome SMITH–PARKER, Appellant.

Samuel D. Schirer, of Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of the same office, was on the brief for appellant.

Christina Trocheck, assistant district attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

Opinion

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

This is defendant Willie Smith–Parker's direct appeal from two prosecutions joined for a single jury trial. The first case arose from a burglary/homicide on the morning of June 13, 2009, and the second arose from a fatal shooting on the morning of June 19, 2009. Smith–Parker was convicted of first-degree premeditated murder in the death of Alfred Mack, second-degree intentional murder in the later death of Justin Letourneau, theft, and aggravated assault. The jury acquitted Smith–Parker of two aggravated burglary counts.

Smith–Parker raises 10 issues in this appeal: (1) whether the evidence of premeditation of Mack's murder was sufficient; (2) whether aiding and abetting is an alternative means crime; (3) whether the two cases should have been consolidated for trial; (4) whether the district judge abused his discretion by excluding a statement made by Letourneau; (5) whether the mandatory wording of an instruction requires reversal for clear error; (6) whether the district judge erred by failing to tell jurors to begin their deliberations anew when an alternate juror was substituted; (7) cumulative error; (8) whether the district judge abused his discretion by refusing to recall the jury; (9) whether the district judge violated Smith–Parker's rights under the Sixth and Fourteenth Amendments to the United States Constitution, as articulated in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by sentencing him to a harsher penalty based on his criminal history; and (10) whether the district judge violated Smith–Parker's Sixth and Fourteenth Amendment rights, as articulated in Apprendi, by sentencing Smith–Parker to the highest sentence in the range in the applicable Kansas Sentencing Guidelines Act presumptive grid box.

We conclude that four of Smith–Parker's allegations of error have merit and that they cumulatively require reversal of all of his convictions, and we remand the case for further proceedings.

Given this result, we need not reach either of his two sentencing issues; but we observe in passing that each has been finally resolved against him in our Kansas courts. See State v. Ivory, 273 Kan. 44, Syl., 41 P.3d 781 (2002) (reliance on criminal history permissible); State v. Johnson, 286 Kan. 824, Syl. ¶¶ 5–6, 190 P.3d 207 (2008) (highest sentence in grid box permissible).

Factual and Procedural Background

Smith–Parker's numerous appellate issues, including sufficiency of evidence to support his conviction for premeditated first-degree murder, require a recitation of factual and procedural background more lengthy and comprehensive than the norm.

Mack Death

In June 2009, Benjamin Friedman and his roommate lived in Apartment B at 1012 Johnstown Avenue. On the morning of June 13, Friedman's alarm woke him, and he heard someone running down the stairs outside of his apartment. He also heard a loud noise, which he would later describe as similar to a car backfiring. Two other residents of nearby apartments also reported having heard a loud noise at about the same time, describing it as a “great big bang” or a gunshot.

After Friedman got out of bed, he went into the living room of his apartment and noticed that his television was missing. A Sony PlayStation and various movies and video games also were missing.

Friedman went outside and observed that one of the screens to a lower apartment had been removed. Friedman went back into the building and checked the downstairs apartments. He noticed splintering on the door of Apartment C. Friedman could hear a television inside the apartment, but nobody answered the door when he knocked on it.

Friedman then called 911.

When Officer Glen Soldan arrived at the apartments, he observed that the door to Apartment C “had been kicked open and it wasn't quite shut.” When he knocked on the door it swung open, and Soldan could see “a large black male lying on his back, feet towards [the door], obviously not breathing.” The man was later identified as Mack.

Soldan entered the apartment to make sure that no one else was in it, and he noticed an empty .22 casing lying on the floor.

When investigators arrived, they found and photographed a partial footprint on a split-rail fencepost just below the deck to Friedman's apartment. Later enhancement of the image would show that the word “Servus” was imprinted on the sole.

Ron Styles, an investigator, would later testify that it appeared Mack had been sitting in a chair watching television and, based on the angle the bullet entered his body, was in the process of standing up when he was shot. The blood splatter pattern in the apartment indicated that Mack probably lived 1 to 2 minutes before collapsing into the kitchen. According to Styles, it was likely Mack was shot from the doorway of the apartment.

Dr. Altaf Hossain conducted Mack's autopsy, which determined that the cause of death was bleeding from a penetrating gunshot wound

to the chest. Based on the location of the gunshot wound and information provided by law enforcement, Hossain would testify at trial that Mack had been shot from more than 2 feet away.

Investigators did not have any immediate leads or suspects.

Letourneau's Death

A little after 6 on the morning of June 19, 2009, Darci Davis was standing outside the Salina Regional Health Center when she noticed a white four-door car “coming down the street towards the hospital from the right and it squealed into the parking lot across the street ... and then it squealed around and ... stopped right beside” her. The driver of the car, later identified as Smith–Parker, asked Davis for directions to the emergency room. Davis noticed that the car's passenger, later identified as Letourneau, was leaning on the driver and had blood on him and that “there was blood on the window, ... blood on the door, [and] just ... a lot of blood.” Davis provided directions, and Smith–Parker drove off in the direction of the emergency room.

The first nurse to respond found Letourneau in the passenger seat of the car. His airway was “pretty much closed”; he was not responsive; he had vomit all over him; and appeared to have a head trauma

. Another nurse would later testify that there was a “penetration wound to [the victim's] right temple and there was blood and emesis on the patient and in the car and on us.” One of the nurses asked Smith–Parker who had shot the passenger. Smith–Parker replied: “I don't know.”

A 911 call was placed from the emergency room of the hospital at 6:23 that morning to report a shooting victim.

Crystal Gile was the first law enforcement officer to arrive at the hospital. She found a white Chevy Cavalier parked under the awning of the emergency room. She pulled Smith–Parker aside, and she would testify at trial that Smith–Parker was very emotional during their conversation.

Smith–Parker identified Letourneau, and Gile asked, “What happened to Justin?” Smith–Parker responded, “I killed him.” Gile then asked Smith–Parker to explain what had happened. After initially saying that Letourneau had been “beatin' his son momma,” Smith–Parker said, “Justin told me he was gonna kill me.” Smith–Parker then said that this had happened “on the road.” After mentioning a gun, Gile asked Smith–Parker if there was a gun in the car. Smith–Parker did not know where the gun was. Gile then took Smith–Parker into custody and transported him to the Salina Police Department.

Investigators determined that the Cavalier Smith–Parker had driven to the hospital was registered to Tiffany Wellman and Victor Gonzales, and they obtained a search warrant for Wellman's home. During the search, officers found a shoebox on the top shelf of a hallway closet. In it was a cloth, zippered gun case, and inside it was a box of Winchester .38 Special ammunition, some loose Super X .22 shells, and a sock that had more shells inside of it. Investigators also found several DVDs and a backpack, which contained a PlayStation and video cords. A check of the serial number from the PlayStation revealed that it had been reported stolen from Friedman's apartment.

Clayton Hardaway was dispatched to do a welfare check at Letourneau's home. Letourneau's stepbrother, Travis Graham, was inside and Kendra Yanik–Ducharme was outside; a baby was sleeping on the floor. Yanik–Ducharme told Hardaway that Letourneau was her boyfriend. Hardaway asked Yanik–Ducharme when she had last seen Letourneau, and Yanik–Ducharme said she had not seen him since the previous evening. Hardaway informed Yanik–Ducharme that Letourneau had been shot.

While investigators were at Letourneau's, Yanik–Ducharme consented to a search of her car. On the floor of the passenger side of the car, investigators found a gun, which Yanik–Ducharme identified as belonging to Letourneau. The gun was a .38 Colt Cobra pistol.

Letourneau was flown to a Wichita hospital, where the decision was made on June 20 to remove him from life support.

Investigators impounded the Cavalier and searched it. They found a white cotton glove with a Dillon's sack inside it under the driver's seat. Inside the sack was .38 ammunition. A Super X .22 cartridge case was found on the right front floor.

The gun used to shoot Letourneau was never recovered.

Dr. Ronald F. Distefano performed Letourneau's autopsy. Distefano concluded that Letourneau had a single gunshot wound

on the right side of his head. Distefano later testified at trial that, based on “stippling” of the skin around the wound, the gun was “a few inches up to...

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7 cases
  • State v. Taylor
    • United States
    • Kansas Court of Appeals
    • October 30, 2020
    ...340 P.3d 485 (2014). An appellate court examines the entire trial record to assess the aggregate effect of multiple trial errors. 301 Kan. at 167-68. assessment takes account of "how the trial judge dealt with the errors as they arose; the nature and number of errors and their interrelation......
  • State v. Peterson
    • United States
    • Kansas Court of Appeals
    • August 27, 2021
    ... ... the defendant of a fair hearing even when the errors ... considered individually would not necessarily require ... reversal of a conviction. State v. Harris , 310 Kan ... 1026, 1041, 453 P.3d 1172 (2019); State v ... Smith-Parker , 301 Kan. 132, 167-68, 340 P.3d 485 (2014) ... An appellate court examines the entire trial record to assess ... the aggregate effect of multiple trial errors. 301 Kan. at ... 167-68. The assessment takes account of "how the trial ... judge dealt with the errors as they ... ...
  • State v. Dishner
    • United States
    • Kansas Court of Appeals
    • June 9, 2023
    ... ... overall effect deprived the defendant of a fair hearing even ... when the errors considered individually would not necessarily ... require reversal of a conviction. State v. Harris, ... 310 Kan. 1026, 1041, 453 P.3d 1172 (2019); State v ... Smith-Parker, 301 Kan. 132, 167-68, 340 P.3d 485 (2014) ... An appellate court examines the full trial record to assess ... the aggregate effect of multiple trial errors. 301 Kan. at ... 167-68. The assessment takes account of "how the trial ... judge dealt with the errors as they ... ...
  • State v. Shears
    • United States
    • Kansas Court of Appeals
    • October 8, 2021
    ... ... defendant of a fair hearing even when the errors considered ... individually would not necessarily require reversal of a ... conviction. State v. Harris, 310 Kan. 1026, 1041, ... 453 P.3d 1172 (2019); State v. Smith-Parker, 301 ... Kan. 132, 167-68, 340 P.3d 485 (2014). An appellate court ... examines the entire trial record to assess the aggregate ... effect of multiple trial errors. Smith-Parker, 301 ... Kan. at 167-68. The assessment takes account of "how the ... trial judge dealt ... ...
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