State v. Starr

• Decision Date: 19 April 1996
• Docket Number: No. 72839,72839
• Parties: STATE of Kansas, Appellee, v. Gregory STARR, Appellant.
• Court: Kansas Supreme Court

Page 72

915 P.2d 72

259 Kan. 713

STATE of Kansas, Appellee, v. Gregory STARR, Appellant.

No. 72839.

Supreme Court of Kansas.

April 19, 1996.

Syllabus by the Court

1. A court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if the substantial rights of the defendant are not prejudiced. The determination of whether an amendment should be permitted requires a two-part analysis: (1) whether an additional or different crime is charged by the amendment and (2) whether the amendment will prejudice the substantial rights of the defendant.

2. Premeditated and felony murder are not separate and distinct offenses but are two separate theories under which the crime of first-degree murder may be committed. An amendment at the close of the State's case charging the defendant under the alternative theory of first-degree premeditated murder when he has been charged with felony murder does not charge an additional or different crime.

3. A prosecutor's comment upon the failure of a defendant to call an alibi witness when exerting an alibi defense is not error when based upon fair comment on evidence of record. Such a comment does not impermissibly shift the burden of proof to the defendant.

4. The sentence imposed by the trial court does not derive its effectiveness from the journal entry but instead is effective when announced. Upon review of the record in this case, it is determined that the sentences announced by the trial court were illegal under the sentencing guidelines. Although the journal entry attempted to correct this illegality, the defendant was not present when these sentences were announced. Accordingly, the sentences must be vacated and the case remanded for resentencing.

Appeal from Montgomery District Court, Richard A. Medley, Judge.

B. Kay Huff, Special Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was on with her on the brief, for appellant.

Ann L. Smith, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with her on the brief, for appellee.

DAVIS, Justice:

The defendant, Gregory Starr, appeals from convictions of one count of first-degree murder, one count of attempted aggravated burglary, and two counts of aggravated assault. He contends: (1) The trial court had no jurisdiction over the first-degree premeditated murder charge or, in the alternative, that the amended charge deprived him of due process; (2) prosecutorial misconduct during closing argument denied him a fair trial; and (3) the sentence imposed was inconsistent with the Kansas Sentencing Guidelines.

On February 27, 1994, Ethean Johnson, Tyrell Clinton, and Nick Murrell, three students and football players at Coffeyville Community College, went to Henry C's, a nightclub in Coffeyville. At approximately 2 a.m., a confrontation occurred between the students and some others, including a person named Ronnie Scott. The confrontation was broken up, and the three students got a ride to the nearby Cleveland Apartments, specifically the apartment of Sharon Fields, where they hoped to get a ride back to the college dorms.

According to Nick Murrell, they arrived at Fields' apartment to find a person named Fred already visiting there. Murrell called a friend, Renea Marion, to come pick them up. Some time later, Marion arrived in the parking lot and honked her horn. As the three students walked out the door, Ethean Johnson told Murrell that some persons were heading toward them carrying guns. The students ran back into Fields' apartment and shut and locked the door. At that point, shots were fired and Murrell and Tyrell Clinton ran back into Fields' bedroom and hid in the closet. Once in the closet, however, they discovered that although Fred, the visitor, was in the closet with them, Ethean Johnson was not. After a while, Murrell and Clinton exited the closet and found Johnson mortally wounded, lying in the living room of the apartment.

Gregory Starr was one of the persons charged with the murder of Johnson. He was originally charged with premeditated first-degree murder, or in the alternative, felony murder, as well as aggravated burglary and two counts of aggravated assault. However, prior to trial, the State dismissed the premeditated murder charge as well as the aggravated burglary charge, electing instead to proceed on the felony-murder charge.

At trial, the State presented the testimony of others who were involved. Stacey Johnson testified that he was at Henry C's during the night in question with a group of people, including Larry Clark, Justin Johnson, Adam Davis, Brandon Shields, Ronnie Scott, and Glenn Starr, the brother of the defendant. He stated that during the evening, Ronnie Scott and Glenn Starr got into an argument with "three college dudes." According to Stacey Johnson, the college students left with Keisha Colbert and headed for the Cleveland Apartments.

Johnson then stated that his group left Henry C's and took Scott to Scott's girlfriend's apartment to get a gun. They then went to Starr's parents' house and dropped off Starr. The group then took Justin Johnson to another friend's house to get another gun. Following this, the group went back to Starr's parents' house and were rejoined by Glenn Starr, along with his brother Gregory Starr. Stacey Johnson testified that the defendant was carrying a 9-millimeter pistol.

The group arrived at the Cleveland Apartments and went to Keisha Colbert's apartment looking for the three college students. However, the three students were not there. Stacey Johnson stated that the group then stood around in the parking lot for a while and then saw the students coming out of Sharon Fields' apartment. According to Stacey Johnson, the students went back inside the apartment, and the defendant, along with Glenn Starr, rushed the door. Johnson stated that the defendant fired at the door three or four times. Glenn Starr then kicked the door open, the defendant handed the gun to Glenn, and Glenn then fired inside twice.

Justin Johnson, brother of Stacey Johnson, also testified. His testimony echoed that of his brother regarding the evening's events. Johnson admitted that he provided Ronnie Scottwith a Tech .22 caliber automatic pistol but stated that the pistol was never fired during the evening.

David Newton also testified on behalf of the State. Newton testified that he lived in the Cleveland Apartments and on the night in question had paid a visit to Sharon Fields. He encountered the three students there waiting for a ride. As the students were leaving, he heard one of them say, "[T]hey got guns." At that point, shots were fired and Newton got down on the floor. He saw Murrell and Clinton run back toward the bedroom and saw Ethean Johnson lying on the floor as if he had been shot. Newton went to another apartment and called the police.

Renea Marion, the person who had come to pick up the three students, also testified. She stated that she was a college student and friend of Murrell, Clinton, and Johnson. On the night in question, Murrell called her from the Cleveland Apartments and asked her to give the three students a ride back to the dorms. According to Marion, she was to pull into the parking lot and honk, and the students would come out.

Marion testified that when she pulled into the parking lot, a car driven by Larry Clark pulled in behind her, and some people got out. These people joined another group of people who were standing in the parking lot. Marion recognized Glenn Starr and the defendant in the group.

Marion saw the three students come out of an apartment and then saw Glenn and the defendant walking towards them with a gun. Marion stated that the defendant then began shooting and then either the defendant or Glenn kicked open the door. Marion testified that she recognized the defendant because he had been a friend of hers prior to the shooting.

At the end of the State's testimony, the defendant filed a motion to dismiss, arguing that the State had failed to prove aggravated burglary and, as a result, felony murder. After some discussion, the district court denied the motion. The State then moved to amend the complaint to reinstate the charge of premeditated first-degree murder and to amend the charges of aggravated burglary to charge attempted aggravated burglary. The defendant objected, arguing that the amendment was a surprise and also that the amendment prejudiced the defendant. However, the district court overruled the objections and allowed the changes, making a specific finding that no new crime had been charged.

The defendant presented an alibi defense. Ronnie Scott, one of the participants in the evening's events, admitted going to the Cleveland Apartments but insisted that the defendant was not with the group. Scott testified that he was not present when the shooting occurred because he was in Keisha Colbert's apartment at the time, but he also admitted that he pled guilty to conspiracy to commit aggravated assault because he was in the car.

Glenn Starr testified that he went to the Cleveland Apartments, but only to try to work things out with the college students because of the earlier argument. He stated that he left the area before the shooting started, however. Starr insisted that his brother was never at the apartments.

Adam Davis, another participant, stated that at the Cleveland Apartments he saw Justin Johnson and Glenn Davis go towards the students and that he heard shots. However, he stated that the defendant was not with the group and he had not seen the defendant the entire night.

Larry Clark, yet another participant, testified that he drove to the Cleveland Apartments but didnot get out of the car and that he left before the shooting started. He stated that he did not pick up the defendant and did not see the defendant at the scene.

The defendant testified on his own behalf. He...