State v. Vontress

• Decision Date: 11 December 1998
• Docket Number: No. 78,334,78,334
• Citation: 266 Kan. 248,970 P.2d 42
• Parties: STATE of Kansas, Appellee, v. Damon L. VONTRESS, Appellant.
• Court: Kansas Supreme Court

Page 42

970 P.2d 42

266 Kan. 248

STATE of Kansas, Appellee, v. Damon L. VONTRESS, Appellant.

No. 78,334.

Supreme Court of Kansas.

Dec. 11, 1998.

Syllabus By The Court

1. The trial court may declare a mistrial if prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant or the State. K.S.A. 22-3423(1)(c).

2. A decision on a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.

3. Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the 4. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not preclude convictions and sentences for both charges. Multiplicity does not depend upon whether the facts proved at trial are actually used to support conviction of both offenses charged; rather, it turns upon whether the necessary elements of proof of one crime are included in the other.

Kansas Constitution Bill of Rights. Our standard of review on questions of multiplicity is plenary.

5. Where a defendant is convicted of murder in the first degree based upon the finding of premeditated murder, the court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 40 years or be sentenced as otherwise provided by law. K.S.A. 21-4635(a). In order to make the determination, the court may consider evidence concerning any matter that the court deems relevant. The district court shall include a consideration of the aggravating circumstances enumerated in K.S.A. 21-4636 and any mitigating circumstances. K.S.A. 21-4635(b).

6. Where the sufficiency of the evidence for establishing an aggravating circumstance under K.S.A. 21-4636 is challenged, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the State, a rational factfinder could have found by a preponderance of the evidence the existence of the aggravating circumstance.

7. The mandatory 40-year sentence is an option only where the defendant has been convicted of premeditated first-degree murder. Therefore, the sentencing judge is precluded from imposing the hard 40 sentence where the jury is unable to reach a unanimous verdict regarding the premeditation theory. Where the sentencing court cannot ascertain whether the jury unanimously convicted the defendant of both premeditated murder and felony murder, the sentencing court has no authority for sentencing the defendant for premeditated murder.

Mary Curtis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.

David Lowden, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

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

Defendant was convicted of first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district court imposed a mandatory 40-year prison sentence for the first-degree murder conviction and consecutive sentences of 78 months, 41 months, and 8 months, respectively, for the remaining counts. Defendant appeals his convictions and sentences, claiming the trial court erred (1) in denying his motion for mistrial; (2) by including a prior conviction in the criminal history where the prior conviction was an element necessary for the conviction of a charged crime; (3) in not finding the convictions for aggravated robbery and aggravated battery were multiplicitous; (4) in not finding there was insufficient evidence to impose the mandatory 40-year prison sentence; and (5) in not setting aside the sentence for premeditated first-degree murder because the jury found the defendant guilty of that crime and felony murder.

Two gunmen, looking for drugs and money, went to the home of Tim Anderson and Ethel Spires in Wichita, Kansas, on the morning of March 19, 1996. Unknown to the two gunmen, the previous evening Anderson had received a warning from a friend to "check his perimeter." Based on the warning, Anderson instructed Spires to hide their drugs and money.

Two men with guns knocked on the front door of the residence shortly after 8 a.m. Anderson let the men in. The men followed Anderson to the bedroom where Spires was lying in bed. The men then ordered The men took food stamps and approximately $300 from Spires' purse and about $500 from Anderson. Spires begged the man, who held the gun on her, not to kill them. Spires said she wanted to live to see her daughters grow up. The gunman stated that he might let her live because he had two children and understood her concern. Spires then asked if they would let Anderson live. The man replied, "Tim got to go."

Anderson and Spires to lie down on the floor and not to look up. One man held a gun on Anderson and Spires while the other man ransacked the house. Although Spires did not know the name of the man who held the gun, she recognized him as a person who had come to her home on several previous occasions with a man she knew only as "Main."

Anderson and Spires were ordered to lie in a T-like formation, with Spires' head under Anderson's body. Spires heard Anderson say, "No, no, no." She heard a gunshot and lost consciousness. Police officers found Anderson dead with a gunshot wound to his head. Spires had been shot in the wrist and the shoulder.

Spires provided a description of both assailants to Detective Paul O'Mara. Spires explained that she recognized the gunmen but did not know their names. She told the officers that the gunmen were associates of a man she knew as Main. Detective O'Mara made a computer search of the name. He found Main's legal name and a list of Main's known associates. Detective O'Mara constructed 90 photo arrays, each of which included a photo of one of Main's associates. When Spires viewed the array which contained a photo of Damon L. Vontress, she identified Vontress as one of the gunmen.

Vontress was charged and tried to a jury. Vontress did not testify at trial. He presented two alibi witnesses. Vontress was found guilty of premeditated first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district judge imposed a mandatory 40-year prison sentence for the first-degree murder conviction and consecutive sentences of 78 months, 41 months, and 8 months, respectively, for the remaining counts. Vontress appealed pursuant to K.S.A. 22-3601(b), raising several issues.

MOTION FOR MISTRIAL

Vontress first contends the district court erred in denying his motion for a mistrial due to the cumulative prejudicial effect of hearsay evidence and improper rebuttal testimony. He asserts that the cumulative errors rise to the level of a constitutional violation of his right to confront the witnesses against him and his right to present a defense.

The Confrontation Clause of the Sixth Amendment to the United States Constitution operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness. State v. Bratt, 250 Kan. 264, Syl. p 1, 824 P.2d 983 (1992).

At trial, Kaiesha Lemmie and Eric Williams testified in support of Vontress' alibi defense. Kaiesha Lemmie testified that at about 4:30 on the morning of the murder, Vontress, in an extremely intoxicated state, came to her house and passed out on her living room floor until 10 a.m. Eric Williams' testimony was similar to Kaiesha Lemmie's testimony; however, Eric Williams also stated he had taken Vontress to the house of a mutual friend, Tara Dawson, about 7 or 8 a.m.

The State called Detective Sara Morris to rebut the witnesses' testimony. Detective Morris testified that the day after the murder, she interviewed Vontress three separate times. During the first interview, Vontress said he was at Tara Dawson's house at the The State asked Detective Morris why she interviewed Vontress a second time. Detective Morris testified that prior to the second interview she spoke with Tara Dawson about her association with Vontress on the morning of the murder. Detective Morris explained that after interviewing Tara Dawson, she was unable to verify Vontress' alibi because Tara Dawson's account and Vontress' account of Vontress' activities the morning of the murder were inconsistent. Tara Dawson was unavailable at trial. The defense counsel objected, claiming Dawson's statement was hearsay. The judge sustained the defendant's objection and instructed the jury to disregard Detective Morris' answer.

time of the murder. Vontress told Detective Morris he arrived at Dawson's about 12:30 a.m. and did not leave until a friend, Main, picked him up at 11 a.m....