State v. Vann
| Decision Date | 03 February 2006 |
| Docket Number | No. 91,214.,91,214. |
| Citation | 127 P.3d 307 |
| Parties | STATE of Kansas, Appellee, v. Durayl VANN, Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, assistant appellate defender, argued the cause, and Durayl Vann, appellant, was on a supplemental brief pro se.
Renee S. Henry, assistant district attorney, argued the cause, Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.
Durayl Tyree Vann petitions this court for review of the Court of Appeals' decision affirming his convictions of and one count each of attempted first-degree murder, attempted second-degree murder, unlawful possession of a firearm, and criminal damage to property, and three counts of aggravated assault in State v. Vann, No. 91,214, 2005 WL 1277942, unpublished opinion filed May 27, 2005. He contends the district court's failure to consider his pretrial motions to discharge counsel and to proceed pro se and the court's failure to give a unanimity jury instruction constituted reversible error. We reverse and remand based upon the trial court's failure to consider defendant's motion to proceed pro se. We also note that the district court, based upon the record, should have inquired as to defendant's allegations that a conflict existed between himself and his attorney.
On the day in question, 16-year-old Dai-Mondd Jones (Jones) worked as a cashier in a party shop (convenience store) with an adjoining liquor store owned by Emzley Donnell, Jr., a.k.a. Beaver (Donnell). That morning, a young man ran into the party shop and got behind the counter, saying, "[D]on't let them get my money," "They going to kill me," and "[T]hey going to rob me." The defendant Durayl Tyree Vann and another individual had chased the young man into the store and pounded on the counter. Jones told the defendant not to beat on the glass, and the defendant asked Jones if he wanted to fight. Donnell came over and let the young man leave through the liquor store. Donnell grabbed the defendant when he started beating on the counter again, pushed him out of the store, and told him not to come back. Donnell testified that the defendant was saying things like, "I kill you," "I blow you," and "I beat you." After Donnell threw the defendant out, the defendant saw the young man he had been chasing and ran after him.
The defendant returned to the party shop and broke a glass window with his fist. Donnell ran after him but the defendant got away. The defendant returned three or four more times that morning, and Donnell repeatedly chased him off. Donnell called the police and went home to retrieve his gun, and upon his return he saw the defendant coming toward his store with a baseball bat. Donnell chased the defendant and shot at him, and the defendant ran off. The police arrived at that point and took a report.
Donnell left the store around 5 p.m. Around 7:00 or 7:30 p.m., Norris Brownlee came into the liquor store and told liquor store employee Rick Collins that the defendant had talked about coming to the store and robbing and shooting the owner (Donnell) earlier that evening. Collins called Donnell and told him about the threat, and Donnell arrived 10-15 minutes later.
About 8 p.m. that evening, the defendant came into the party shop with his head down and holding a shotgun. The defendant cocked the shotgun, pointed it through the glass toward Jones, and said, "[A]ll ya'll going to die." Jones ran and dove through the door to the liquor store yelling, "Beaver, get down, he got a gun." As he went through the door, Jones heard a shot fired, and he heard additional shots, although he could not say how many.
Upon hearing Jones hollering, Donnell, who was in the liquor store, grabbed his gun and ran through the doorway into the party shop. He heard a gunshot and saw the defendant running toward the counter with a gun. Donnell shot back at the defendant and said, "[Y]our ass is mine now." The defendant hid in the store and Donnell tried to take another shot at him, but the gun jammed and did not fire.
Mae Seahorn, who was working as a cook at the convenience store, ran into the back storage room when she saw the defendant come into the store with the gun. She heard two or three shots, one of which shattered the window in front of the cook's counter inside of the store. Collins was in the liquor store when he heard the first shotgun blast. He ran back to the storage area, heard three more shots, and then heard a second shotgun blast.
Lamont and Tonia Holmes were customers in the store at the time of the shootings. Tonia testified that she heard a voice say, "[W]hat's up now, nigger, what you going to die." She heard what sounded like an explosion, and she and Lamont got down on the ground. She heard a gun cock and then she heard another shot. She heard Donnell's voice coming from the other side of the store, and then she heard and felt a gun discharge by her leg as someone was leaving the store. Lamont echoed these same facts at trial.
The defendant was taken to the hospital by a family friend who lived near the store. He testified that the defendant had a gunshot wound to the leg. At the hospital, a police officer observed that the defendant had a large chunk missing from the shin of his right leg and his large toe was almost blown off.
The police investigation of the crime scene suggested that three shots had been fired, one from the handgun, which went through a post into the wall, and two from the shotgun, based on two shotgun shell casings, the broken glass, and the hole in the floor. There was a shotgun blast in the tile floor with blood around it, and blood that trailed on the floor. The DNA profile of the blood samples taken from the store matched the defendant's DNA.
After his conviction by a jury, the defendant's motion for new trial was denied, and he was sentenced to a controlling term of 312 months' imprisonment. The Court of Appeals affirmed his convictions on appeal in State v. Vann, No. 91,214, 2005 WL 1277942, unpublished opinion filed May 27, 2005. This court granted the defendant's petition for review, which claimed that the district court erred in failing to consider his pro se motions to discharge counsel and to proceed pro se and in failing to give a unanimity jury instruction.
The court appointed David Reed to represent the defendant on August 22, 2002. On October 22, 2002, the defendant filed a pro se "Motion for Relief of Court Appointed Counsel" arguing: (1) that the attorney/client relationship had "deteriated" [sic] and "gotten off to a wrong start," leaving the defendant with no confidence in his counsel's representation (2) that counsel had breached the duty and obligation owed to the defendant by failing to protect his interests and defend him with the required professional skill and energy needed; (3) that a conflict of interest existed between the defendant and counsel based on the reasons listed and his letters to counsel which were never answered; and (4) that his constitutional rights to effective assistance of counsel would be violated if Reed continued as his counsel. The defendant did not serve Reed with a copy of this motion, nor was it addressed at the preliminary hearing on October 30, 2002.
On October 31, 2002, the defendant sent a letter to the clerk of the district court inquiring about his motion for relief of court-appointed counsel that he had filed "which has not been put to use." The letter stated that he "would like to fire" Reed and wanted Reed "terminated off of my case," summarized the claims set forth in his motion, and asked why he had not received a new attorney. A handwritten note at the bottom of the letter stated:
On November 6, 2002, the defendant filed three pro se motions to suppress, a motion for discovery, a motion for writ of habeas corpus, and a motion to proceed pro se. The latter motion asked the court that he be able "to proceed as pro se and retain the attorney as consultant in an advisery [sic] capacity."
Wyandotte County District Judge J. Dexter Burdette sent Reed a letter dated November 7, 2002, which provided in relevant part:
The only attachment to this letter in the record is the defendant's October 31, 2002, letter to the clerk of the district court, which identified defendant's contentions regarding his conflict with counsel and his desire that a new attorney be appointed.
On the first day of trial, the prosecutor reminded the court that the defendant had filed pretrial motions. The trial judge responded that he ordinarily did not hear pro se motions when the defendant has representation; however, if the defendant wanted to talk them over with his attorney and have him bring them before the court, he would hear them. The court asked the prosecutor what the motions were, and he replied: "They're all bare bones motions to suppress any blood evidence, witness testimony, I mean, things that don't make any sense to the State, Your Honor." The Court responded: ...
To continue reading
Request your trial
-
State v. McLemore
...defendant stated he did not want to represent himself and therefore effectively withdrew his pro se request), with State v. Vann, 280 Kan. 782, 127 P.3d 307, 316–17 (2006) (determining that defendant did not abandon Faretta motion when he told the court that his counsel had advised him not ......
-
State v. Brown
...1271 (district court abuses its discretion when it makes no inquiry into nature of conflict). Quartez relies heavily on State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006), where this court held that the trial court abused its discretion by failing to consider the defendant's pretrial pro se m......
-
State v. Bowen
...in continuing with current counsel); State v. Carter, 284 Kan. 312, 322–23, 160 P.3d 457 (2007) (same); State v. Vann, 280 Kan. 782, 789–90, 127 P.3d 307 (2006) (same); State v. Taylor, 266 Kan. 967, 974–75, 975 P.2d 1196 (1999) (same). Our caselaw is clear that a conflict of interest under......
-
State v. Jones
...Amendment, guarantees that a defendant in a state criminal trial has an independent constitutional right to self-representation." State v. Vann, 280 Kan. 782, Syl. ¶ 2, 127 P.3d 307 (2006). "A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se h......