State v. Thomas
| Decision Date | 30 January 2015 |
| Docket Number | 110,571. |
| Citation | 342 P.3d 678 (Table) |
| Parties | STATE of Kansas, Appellee, v. Quinton C. THOMAS, Appellant. |
| Court | Kansas Court of Appeals |
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
Quinton C. Thomas appeals from his convictions of aggravated burglary, aggravated endangering a child, aggravated battery, and three counts of aggravated robbery. He claims that (1) the district court violated his right to be present when it granted continuances requested by defense counsel at hearings for which Thomas was not personally present; (2) the district court violated his right to counsel under the Sixth Amendment to the United States Constitution when it denied his motion to dismiss the charges because of speedy-trial-right violations without first appointing conflict-free counsel to represent him at a hearing on the motion; (3) the district court erred in rejecting two challenges Thomas made under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to the State's striking two potential jurors; (4) K.S.A.2010 Supp. 21–3608a(a)(1), the statute under which the jury convicted Thomas of aggravated endangering a child, was unconstitutionally vague; (5) cumulative error denied Thomas a fair trial; (6) the district court violated Thomas' constitutional rights by considering his criminal history at sentencing; and (7) the district court violated Thomas' constitutional rights by sentencing him to the highest sentence in the sentencing grid box. We affirm in part and dismiss in part.
On November 4, 2010, at approximately 8:15 p.m., Kaylee Egbert was at home with her 14–month–old son, D.L., cooking dinner when she heard a knock on the door. She looked through the peephole and saw a dark-skinned man; thinking it was her boyfriend, Dwight Lee, who had gone to the store, Egbert opened the door. A man Egbert did not know pushed her back into the apartment, pointing a gun at her head. He pushed her into the bedroom; D.L. came into the room and began screaming, and the man told Egbert to “shut the baby up.” At the man's direction, Egbert sat on the bed and held D.L. while the man went through her dresser drawers and jewelry box, looking for money and jewelry. At some point, a second man came into the apartment. The two men walked through the apartment, asking when Lee would be home and where his car keys were; the men ultimately took Lee's car keys.
When the men heard Lee unlocking the apartment's front door, they ran into the front room. Lee came inside and, as he closed the door behind him, was confronted by a man behind the door. Egbert heard a struggle and two gunshots; fearing for her life, she shut and locked the bedroom door and jumped out the second-story window, holding D.L. Meanwhile Lee had attempted to grab the man's gun and was shot twice, once in the right femur and once in the left side, leaving him seriously injured. Outside, Egbert had landed in a squatting position, spraining her ankle and bumping D.L.'s head on the ground. Egbert called the police from a neighbor's home. After they arrived, Egbert went downtown to speak with police and to describe both men. Although she could not identify the man who shot the gun that night, she later identified Thomas in a photo lineup as the man who had entered her apartment with a gun.
A little over 3 weeks later, on November 27, 2010, at approximately 12 or 12:30 p.m., Patricia Saunders was working at an Advance America, a title loan company. The door to the business remained locked, requiring Saunders to buzz in anyone entering. She did so for a man who asked what information was required to obtain a loan. After Saunders told him the requirements, the man said, “I don't mean to be rude,” pulled out a gun, pointed it at Saunders, and said, “Give me all your money.” The man yelled at her to open the door or he would shoot her, and when Saunders pushed the buzzer to unlock the door, a second man came inside and jumped over the counter. At the second man's direction, Saunders removed the cash drawer and placed it on the counter. The men took the money and left. Because Saunders had pulled the panic button during the robbery, the police later arrived, took Saunders' statement, and obtained surveillance video footage from the store's security camera.
Two days after that, on the morning of November 29, 2010, Amanda Chandler was working at a different Advance America location when it was robbed. Like the store at which Saunders worked, the front door of the Advance America where Chandler was working was always locked and employees had to unlock the door with a buzzer to let people in. That morning, Chandler buzzed a man into the business who pulled out a gun, sprinted across the lobby, and jumped over the front counter.
The man put his gun to Chandler's head, and Chandler began screaming. After telling her to “shut the fuck up,” the man told Chandler to give him the cash, so she opened her cash drawer. The man took the money, saw that the other drawer was empty, and asked about a safe. Chandler took him to the back, opened the safe while the man held a gun to her back, and gave the man a bank bag of money from the safe. As Chandler handed him the money, someone tried to open the locked front door. The man tucked the bank bag into his coat, put on sunglasses, and left, letting another person in as he was leaving. Chandler later estimated that the man took between $900 and $1300.
Chandler informed the arriving customer that she had just been robbed and then hit the panic button while the customer called the police. Police collected a video from a surveillance camera at the store and compared the man in that footage to a still photo from the robbery of the other Advance America location. Police believed that the same man committed both robberies. Copies of one of the still shots extracted from the video footage were sent to local law enforcement seeking assistance and received multiple responses identifying the man as Thomas. In addition, Saunders and Chandler later identified Thomas in a photo lineup as the man who robbed them. Chandler also identified him at trial.
On May 11, 2011, the State charged Thomas with one count of aggravated burglary, one count of aggravated endangering a child, and two counts of aggravated robbery. In January 2012, the State filed a motion for writ of habeas corpus ad prosequendum, seeking to retrieve Thomas from the United States Penitentiary in Colorado and bring him to Kansas for prosecution; the district court granted the motion and issued the writ. Thomas was arrested on March 28, 2012, and, shortly thereafter, was appointed counsel. On June 28, 2012, the State amended the information to add one count of aggravated battery and an additional count of aggravated robbery.
Because the numerous pretrial motions and proceedings are recounted as needed in the analysis sections below, they are not also detailed here. The jury trial began on March 25, 2013. The State presented testimony from Egbert, Lee, Saunders, Chandler, and various law enforcement personnel involved in the investigations. In addition, the State showed the jury the video footage from both Advance America locations and admitted into evidence the still photos extrapolated from the video footage. Thomas did not testify, and the defense called only one witness: a police officer who testified that he had investigated another individual for the robberies but dismissed him due to his physical appearance.
On March 29, 2013, the jury found Thomas guilty of aggravated burglary, aggravated endangering a child, aggravated battery, and three counts of aggravated robbery. In August 2013, the district court sentenced Thomas to 247 months' imprisonment for the primary offense of conviction, aggravated robbery; 61 months' imprisonment for each of the remaining two convictions of aggravated robbery; 34 months' imprisonment for the aggravated burglary; 13 months' imprisonment for the aggravated battery, and 7 months' imprisonment for the aggravated endangering a child. The sentences were to run consecutively, resulting in a total prison term of 423 months and a controlling term of 36 months' postrelease supervision; in addition, the district court ordered Thomas to register as a violent offender. Thomas timely appeals.
First, Thomas contends that the district court violated his constitutional and statutory rights to be present when it considered and granted continuances of his trial in his absence. He argues that this violation was not harmless because the continuances ultimately violated his constitutional right to a speedy trial and caused him to lose viable defense witnesses and evidence. The State responds by first arguing that statutory speedy trial rights do not apply because Thomas was also being held in connection with charges in other cases. Regarding Thomas' constitutional argument, the State asserts that a continuance hearing is not a critical stage of a criminal proceeding that would implicate a defendant's constitutional right to be present at all critical stages. While the State appears to acknowledge that perhaps Thomas had a statutory right to be present at continuance hearings, the State contends that during other proceedings Thomas expressly informed the district court that he understood the continuances would delay his trial, so his actual presence at the hearings was irrelevant. Finally, the State argues that any error that occurred was harmless.
Thomas does not expressly identify where the appellate record demonstrates that he alleged to the...
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