State v. Turner
| Citation | 519 P.3d 460 (Table) |
| Decision Date | 28 October 2022 |
| Docket Number | 123,097 |
| Court | Kansas Court of Appeals |
| Parties | State of Kansas, Appellee, v. Cardell Turner, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge.
Peter Maharry, of Kansas Appellate Defender Office, for appellant and Cardell Turner, appellant pro se.
Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., MALONE and CLINE, JJ.
Cardell Turner appeals from his criminal convictions, alleging errors arising out of the admission of recorded telephone calls at trial, the effectiveness of his trial counsel, and the denials of his motion for substitute counsel and motion for the district court judge to recuse himself. Because we find Turner either did not show error or cannot show prejudice from any error, we affirm his convictions. But since the district court misclassified two of Turner's prior out-of-state convictions as person felonies, we vacate his sentence and remand for resentencing.
A jury convicted Turner of conspiracy to commit murder in the first degree, attempted murder in the first degree, and attempted murder in the second degree based on his attempted shooting of Alberto Alfaro and Enrique Umana Somoza. On August 14 2018, while Somoza was helping jump his neighbor Alfaro's truck, Turner pulled up beside them in a black BMW. Turner pointed a gun at them and pulled the trigger, but it did not fire. Alfaro testified he started to run, then turned around to face Turner. He said Turner screamed that he would kill him while messing with his gun, apparently trying to fix it. At that point, Alfaro started laughing and told Turner to "get off." Turner then drove away.
Turner largely did not dispute this version of events at trial. Turner testified that he lived in California and worked for a drug cartel as an interstate money courier. He explained that he came to Wichita at the request of the cartel to pick up money from Alfaro and a third party, Rogelio Velasquez. Turner said Alfaro did not have the money when Turner met with him upon arrival in Wichita, claiming he needed a couple of days. After Alfaro did not show up to a follow-up meeting, Turner began looking for him, eventually locating him after waiting outside his home. Turner admitted approaching Alfaro while he and Somoza were jumping his truck, hoping to catch Alfaro in a "low compromised" position so he could confront him about the money. Turner claimed after he pulled up next to the truck, Alfaro spun around holding a gun and pointed it at him. Turner said he had a pistol sitting in his lap, which he claimed was necessary for protection since his job for the cartel required him to carry large amounts of money. Turner said he grabbed his pistol and tried to fire once he saw Alfaro pointing a gun at him. After his gun malfunctioned, Turner admitted Alfaro laughed at him instead of attempting to shoot him, at which point Turner drove off. Alfaro denied having a weapon or pointing a gun at Turner.
Somoza reported the incident to the police, who interviewed Alfaro about a week later. Aside from the information reported by Somoza and Alfaro, the Wichita Police Department also received recorded phone calls collected in an FBI wiretap out of Oklahoma. Velasquez was the subject of this wiretap, which was part of a methamphetamine distribution and money laundering investigation. Based on intercepted phone calls between Velasquez and Turner, FBI agents became concerned that Turner planned to commit an unspecified crime in Wichita and began coordinating with Wichita police before the incident.
Before trial, Turner unsuccessfully moved to suppress the admission of these phone calls. Seven of the calls were played for the jury, along with a recorded call that Turner made to Velasquez from jail. In one of these calls, Turner discussed sitting outside a house, waiting for the owner of a white truck to emerge. In another, Turner said he had located the man standing outside by his truck, but he "can't do nothing" because he was driving and "there is too many people out here waiting." Turner then said, "If I had somebody who could drive then I could get it." He told Velasquez the man's hood was up and he was jumping his truck. Velasquez responded by telling Turner to go up while the man was under his hood and "do yo thing and just jump on the motherfuckin' freeway" before making sure that Turner knew how to "get away around there." Turner expressed concern that there were so many people around the police would get a description of his car. Velasquez, however, told Turner that if the man left, he would probably go to another part of town that was "kind of hot." Velasquez told Turner he was at the "best spot now," telling him that he should "just drive smooth." In the next call, Turner angrily informed Velasquez the gun did not work and the man laughed at him. In another, Turner told Velasquez "that fat boy . . . he might have to go too" because he had seen Turner's face.
Turner twice moved for substitute counsel before trial, although he withdrew his first motion after it was heard. In both motions, Turner claimed communications had broken down between him and his attorney, and he challenged his attorney's diligence in investigating the case and preparing for trial. The district court was forced to suspend the hearing on Turner's second motion after Turner grew agitated and repeatedly interrupted the court. The court ultimately denied Turner's motion, finding there was a reasonable basis to believe the attorney/client relationship had not deteriorated to a point where counsel could no longer effectively represent Turner.
After Turner was convicted, his attorney moved for a new trial and judgment of acquittal. He also moved to withdraw, claiming Turner alleged that he had received ineffective assistance of counsel, which created a conflict of interest necessitating his withdrawal. Turner moved pro se for substitute counsel and for a new trial based on allegations of ineffective assistance of counsel. The district court granted Turner's motion for substitute counsel and his counsel's motion to withdraw, finding there had been a complete breakdown in communication and a conflict of interest had arisen based on Turner's allegations necessitating the appointment of new counsel. The district court then appointed new counsel to represent Turner. The court denied Turner's motions for a new trial and judgment of acquittal. It also denied several motions Turner filed requesting the presiding judge to recuse himself.
The district court sentenced Turner to 653 months' imprisonment for attempted first-degree murder, 123 months' imprisonment for conspiracy to commit first-degree murder, and 61 months' imprisonment for attempted second-degree murder, with the sentences to run consecutive.
Did the district court err in admitting recorded calls between Turner and his alleged coconspirator?
Turner first argues the district court erred in admitting statements at trial that were part of three of his recorded phone calls with Velasquez. He claims these statements were inadmissible hearsay because the coconspirator exception only applies to statements made during the conspiracy, and these three calls were made after the incident. The State counters by arguing Turner failed to preserve his claim with a timely and specific objection and inadequately briefed the issue.
We agree Turner failed to preserve his objections to these calls. While he objected to the introduction of this evidence at trial, he did so on grounds other than those argued on appeal. Issues not raised before the district court generally may not be raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). In line with this rule, a party may not object to the introduction of testimony on one ground at trial and assert another ground on appeal. 315 Kan at 183. And the contemporaneous objection rule, codified in K.S.A. 2021 Supp. 60-404, requires a timely and specific objection to the admission of evidence at trial to preserve issues arising from that admission on appeal.
First, on appeal, Turner mainly focuses on his own statements in the recordings. But Turner never challenged the admission of his own statements in the recorded phone calls before the district court-he only challenged the statements made by others. So to the extent that he now challenges the admission of his own statements, we find he failed to preserve that issue.
Turner also failed to preserve his objection to the admission of the statements of others on these three calls because he did not raise the issue he now argues before the district court over these three calls. For example, in his motion to suppress the calls, Turner did not claim the coconspirator exception did not apply-he simply argued the statements of any party other than himself were inadmissible hearsay. While his attorney did tell the district court before voir dire that he planned to object at trial to the admission of a phone call between Velasquez and another individual, Pedro, because any conspiracy had ended by that point, Turner does not object to the admission of that call on appeal.
At trial, Turner objected to the "testimony of [Velasquez] and any other witness" who was unavailable for cross-examination. After the State countered that Velazquez' testimony was admissible under the coconspirator exception to the hearsay rule, the district court asked Turner whether he was claiming that Velasquez was "not a coconspirator or shouldn't be considered one?" Defense counsel responded, "[I] [a]nticipate the Court to overrule me, but I'll make the...
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