State v. Summers, 101,902.

• Decision Date: 03 February 2012
• Docket Number: No. 101,902.,101,902.
• Citation: 272 P.3d 1,293 Kan. 819
• Parties: STATE of Kansas, Appellee, v. Jamaal SUMMERS, Appellant.
• Court: Kansas Supreme Court

272 P.3d 1

293 Kan. 819

STATE of Kansas, Appellee,

v.Jamaal SUMMERS, Appellant.

No. 101,902.

Supreme Court of Kansas.

Feb. 3, 2012.

Syllabus by the Court

1. When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.

2. A two-part inquiry is used to determine whether an interrogation is custodial for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The first prong is: What were the circumstances surrounding the interrogation? The appellate court reviews that determination under a substantial competent evidence standard. The second prong of the inquiry is: Under the totality of those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation? The appellate court applies a de novo standard of review to that determination.

3. Several nonexclusive factors may be considered when reviewing the totality of the circumstances surrounding a defendant's statements to determine admissibility, including: (1) when and where the interrogation occurred; (2) how long it lasted; (3) how many police officers were present; (4) what the officers and defendant said and did; (5) the presence of actual physical restraint of the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door; (6) whether the defendant is being questioned as a suspect or a witness; (7) how the defendant got to the place of questioning, that is, whether he or she came completely on his or her own in response to a police request or was escorted by police officers; and (8) what happened after the interrogation—whether the defendant left freely, was detained, or was arrested.

4. The K.S.A. 2006 Supp. 60–460(d)(3) hearsay exception is held to apply to statements made by a deceased victim to his wife regarding his plans for the evening, when those statements were made shortly after the victim made his plans.

5. Prosecutorial misconduct may occur when a prosecutor asks a question for which the prosecutor has no reason to believe there is a foundation of law or fact. But under the facts presented in this case, a single improper question was harmless.

6. A sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

Jamaal Summers was charged with first-degree murder. His first jury trial resulted in a mistrial because the jury could not reach a unanimous verdict. At a second trial, the jury convicted Summers of first-degree murder. The trial court imposed a life sentence without the possibility of parole for 25 years, and lifetime postrelease supervision.

Summers challenges his conviction on three grounds. We hold that (1) the trial court did not err in admitting statements Summers made to police during an interview at his father's house, (2) the trial court did not err in allowing the victim's wife and neighbor to testify that the victim told them his friend, “Homie,” was coming over that evening, and (3) the trial court did not err in handling the prosecutor's inappropriate question during cross-examination of a defense witness. We affirm his conviction.

Summers also challenges the trial court's imposition of lifetime postrelease supervision as part of his sentence. We hold that the trial court does not have the authority to order a term of postrelease supervision in conjunction with an off-grid, indeterminate life sentence. Therefore, the portion of Summers' sentence imposing lifetime postrelease supervision is vacated.

Factual Background

On New Year's Eve leading into 2007, Teresa Putman heard gunshots from her neighbor's backyard. She told her husband about the gunshots, but ultimately concluded that the gunshots were part of a New Year's Eve tradition for her neighbors, Leslie and Jamaal Summers. During the summer of 2007, Teresa's 12–year–old son, Thomas Ross, found a bullet casing in the yard while he was mowing. Teresa threw the shell casing toward the woods behind their home and told her son to leave it alone. Ross retrieved the casing for his collection, which he kept in a glasses case in his bedroom.

At 8:22 on the morning of June 18, 2007, Summers called the police to report that his .40 caliber semiautomatic handgun had been stolen. Eight minutes later, at 8:30 a.m., Summers made the first of numerous calls to the victim, Salvador Velasquez. A total of 12 calls, ranging in length from 1 to 2 minutes, were made on June 18 between Salvador's cell phone and phones associated with Summers. Summers' phone numbers were listed in Salvador's cell phone as “Homi” and “Homi2.” Summers explained that these calls were made to arrange for him to purchase marijuana from Salvador.

Adriana Lopez, Salvador's wife, worked until 3 p.m. on June 18, 2007. She ran several errands before arriving home around 4 p.m. Salvador was outside the house with their dog, Scooby. Scooby was a stray Labrador–Rottweiler mix that tended to get overly excited around people, so the couple always shut Scooby in their bedroom when company came to their house.

After Adriana and Salvador had eaten some nachos she had brought home from work, Adriana went inside to cook dinner. When Adriana went outside to tell Salvador dinner was ready, she saw he was talking on his cell phone. They went inside to eat together. After dinner, Adriana got dressed to go to the gym. Salvador told Adriana he was expecting company that evening, specifically, that Homie was coming over. Adriana left the house at about 5 p.m.

At around 4:30 p.m., Salvador's neighbor, Sandra Aguirre, got home with her daughter. She saw Salvador outside talking to her husband and nephew, Luis Valdez. She went inside to cook dinner, but the men stayed outside talking to Salvador for about half an hour. Salvador told Valdez and his uncle that he had to return home because his friend Homie was coming over.

Also around 4:30 p.m., Summers was visiting his wife, Leslie Summers, at her office at the Midwest United Credit Union at Blue Ridge and Longview in South Kansas City. Summers was driving the Jaguar that day, which had a good car seat, while Leslie had taken the minivan with the “kind of ragged” car seat. Leslie printed some paperwork for Summers' music business. Summers testified that he went out to his car, reviewed the paperwork, called Salvador to cancel the marijuana purchase, and switched the car seats between his vehicle and his wife's vehicle, before walking back into the credit union. Summers claimed he went back into the credit union so that Leslie could make copies for him, before driving to his Aunt Alice's apartment.

Summers testified that he drove to his Aunt Alice's apartment, located about 10 minutes from the credit union, because he had been checking on his aunt since her recent discharge from the hospital. Aunt Alice testified somewhat vaguely that she thought she had seen Summers outside with the Summers' minivan that day, but she had been unable to answer the door in time to talk with him. Leslie testified that she drove the minivan to Aunt Alice's after work, where she waved at Summers to get going because they were running late to pick up their son from day care, which was located about 20 minutes from Alice's apartment. Leslie signed their son out of day care at 5:30 p.m. Summers and Leslie testified that they returned home, ate dinner, and stayed home for the remainder of the evening.

Sandra Simental passed by Adriana and Salvador's house as she walked from her house to her mother's house, a distance of about 1 block. She left her house at about 4:45 p.m. She returned to her house at 5:02 p.m., noting the time because she was babysitting a friend's children and the children were to be picked up at 5 p.m. She saw Salvador talking to a black man, whom Salvador invited into his front yard. She identified Summers as the black man she had seen with Salvador, both in a photographic lineup presented by officers the next day and in court.

Michael Rios testified that he drove past Salvador's house between 5:30 and 5:45 that afternoon, taking a group of kids to Sonic for ice cream after a day spent cutting grass for the city. He saw Salvador sitting on the porch with his dog, talking on his phone. When detectives first talked to Rios, he thought he had gone to Sonic around 6:45 p.m. When the detectives took a second statement, Rios suggested the time might have been 30 to 45 minutes earlier. Rios testified that they spent 30 to 45 minutes at Sonic, returning around 6:15 p.m. Upon his return, he was unable to drive down the block because an ambulance, fire trucks, and police cars at Salvador and Adriana's house had blocked the street.

Adriana checked into Gold's Gym at 5:23 p.m. She left the gym at 6:18 p.m. Driving to Walmart, she called Salvador's cell phone twice but he did not answer his phone. She called her neighbor, Simental, to ask if Salvador's truck was still parked outside the house. Simental confirmed that Salvador's truck was parked in its usual location. Adriana purchased several things at Walmart, paying for her items at 7 p.m.

Adriana returned home to find her front door unlocked, which was unusual because she and Salvador always locked the door. She found her husband lying on the floor between the hallway and...