State v. Walker
| Decision Date | 29 June 2018 |
| Docket Number | No. 116,174,116,174 |
| Parties | STATE of Kansas, Appellee, v. Dustin D. WALKER, Appellant. |
| Court | Kansas Supreme Court |
Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Kate Duncan Butler, assistant district attorney, argued the cause, and Charles E. Branson, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The State charged Dustin Walker with aggravated burglary and first-degree felony murder. A jury convicted Walker of aggravated burglary, but it could not reach a verdict on the felony-murder charge. After a second trial, the jury hung, but a third jury convicted Walker of felony murder.
On appeal, Walker asserts five claims of error. He argues: (1) The district judge committed reversible error during the third trial by communicating with two jurors without Walker being present; (2) the district judge committed reversible misconduct during the third trial by shredding notes found in the jury room without first showing the notes to Walker and his attorney; (3) the district judge erred during the third trial by not suppressing Walker's interview with law enforcement officers; (4) the district judge erred in the first trial by not responding appropriately to a jury question about Walker's criminal liability arising from evidence against another participant in the crime; and (5) cumulative error requires reversal of Walker's convictions. The first three claims affect only the felony-murder conviction and the fourth affects only the aggravated burglary conviction. We reject his arguments and affirm both convictions.
In the early morning hours of March 8, 2014, Michael Roberts awoke to banging on the front door of the apartment where he lived with his grandmother, Marilyn Howard; his father, Patrick Roberts; and his uncle, Wayne Roberts. Michael thought someone was kicking the door. As Michael got up, the front door swung open and two men entered the apartment—one in black clothing and one in light gray clothing. The man in the black clothing pointed a gun at Michael; Michael later identified Walker as this man. Video surveillance footage from a nearby convenience store showed Walker with his cousin, Archie Robinson, at the store just before they broke into the apartment. In the video, Robinson wore light gray clothing.
According to Michael's testimony, Walker and Robinson walked toward Patrick's bedroom, where Patrick sold marijuana. Robinson entered Patrick's bedroom while Walker stood in the bedroom doorway. Either Robinson or Walker asked, Patrick responded, "I don't know what you're talking about." Walker stepped into Patrick's bedroom, the gun fired once, and Patrick yelled for Wayne. Wayne came out of his bedroom and a struggle ensued.
Michael and Wayne, for the most part, provided identical testimony about the struggle. During the first two trials, Michael and Wayne both testified that Wayne and Walker struggled for the gun as Robinson and Michael watched from the living room. At the third trial, however, Wayne's testimony at first pointed to Robinson as the gunman. But Wayne switched his testimony and once again matched Michael's testimony by pointing to Walker as the gunman and Robinson as the bystander.
Michael and Wayne testified consistently about all other aspects of the struggle. Both testified that at some point during the struggle the gun fired a second time toward the kitchen. A few seconds later, Patrick, bleeding from a gunshot wound
, exited his bedroom and joined the struggle. Wayne eventually knocked the gun out of Walker's hands. Walker and Robinson fled out the front door. Marilyn, awakened by the commotion, called 911. Patrick died shortly thereafter.
Officers arrived within minutes and began a search of the area. They apprehended Walker and Robinson, at which time Walker was wearing dark clothing and Robinson was wearing light clothing but no shoes. Both had a large amount of Patrick's blood on their clothing.
Officers collected evidence from the apartment including a gun, hat, shoe, and shoe print on the front door. Investigators later confirmed the gun fired the bullet that killed Patrick. Officers discovered the gun belonged to Walker's girlfriend, the hat contained Walker's DNA, the shoe matched shoes worn by Robinson that night, and the shoe print on the door had similar design features to the shoes worn by Robinson.
Officers also interviewed Walker. During the interview, Walker said he was staying at Patrick's apartment on the night in question. He explained a struggle awakened him. He joined the struggle and eventually fled. Walker could not recall who he struggled with or whether he touched the gun.
The State charged Walker with aggravated burglary, K.S.A. 2013 Supp. 21-5807(b), and felony murder, K.S.A. 2013 Supp. 21-5402(a)(2). The first trial resulted in a conviction for aggravated burglary, but the jury could not reach a verdict on the felony-murder charge. Walker testified at the first trial, explaining he and Robinson were buying marijuana from Roberts when someone rushed and tackled Robinson. As Robinson and the other individual struggled, the gun went off. Walker told the jury he did not have a gun and did not know that Robinson did. Walker then tried to help Robinson, and a second shot went off. Roberts came out of his bedroom and fell on top of all of them. Robinson and Walker eventually freed themselves and ran out the door.
The record on appeal contains little information about the second trial, but we know the jury could not reach a verdict. The third jury convicted Walker of first-degree felony murder. Walker did not testify at the third trial.
In discussing Walker's arguments, we will add additional facts.
Walker's first issue arises from communications between the district judge and jurors during Walker's third trial. The communications arose after the jury had started deliberations and a juror found a notepad from the second trial in the jury room. The juror opened the notepad, closed it when he saw Walker's name on the first page, and handed it to a second juror. The second juror opened the notepad and closed it when he saw Walker's name on the first page. One of the two jurors then delivered the notepad to the bailiff. The bailiff gave the notepad to the judge, and the judge met privately with the juror who had delivered the notepad.
As the jury deliberated, the judge met with Walker, his attorney, and the prosecutor. The judge explained the situation with the notepad and her conversation with the one juror. The judge also explained that she had opened the notepad and found it contained a list of witnesses from the second trial and the general subject matter of each witness' testimony. For example, it said, "DNA witness" or "[s]hoe print witness." The judge determined there was "nothing there that was a problem," and shredded the notes. The judge explained she had asked if the juror had read through the notepad and the juror said, "'I saw it said Dustin Walker at the top and I thought I should shut this.'" The judge admitted she probably should not have shredded the notes before showing them to the attorneys, and asked if either party wanted to question the jurors about the notes. Both parties declined at that point.
Following the jury's verdict, however, the judge, attorneys, and the two jurors who had opened the notepad met in chambers. Walker was not present (or at least the record does not suggest his presence so we assume his absence). Both jurors reiterated they opened the notepad, closed it upon reading Walker's name, and gave it to the bailiff. The judge again asked if either party wanted to question the jurors and both parties declined.
Now, on appeal, Walker claims the district judge violated his right to be present during a critical stage of his trial when the judge first met with the juror who delivered the notebook and when the judge and the attorneys met with both jurors. His arguments raise a question of law over which we exercise unlimited review. State v. Herbel , 296 Kan. 1101, 1106-07, 299 P.3d 292 (2013).
Here, the State concedes the district judge violated Walker's statutory and constitutional rights. This stipulation finds strong support, and we also conclude error occurred. In most circumstances, a judge should allow the attorneys and a criminal defendant to be present when communicating in person with a juror. See State v. Rayton , 268 Kan. 711, 720, 1 P.3d 854 (2000) ; see also K.S.A. 2017 Supp. 22-3405(a) (); State v. Killings , 301 Kan. 214, 241, 340 P.3d 1186 (2015) (); State v. Lopez , 271 Kan. 119, 129, 22 P.3d 1040 (2001) ().
While the parties agree that error occurred, they disagree about whether that error requires reversal or whether we may consider it harmless. They agree, however, that in resolving that dispute we should apply the federal constitutional harmless error standard. We agree. See State v. King , 297 Kan. 955, 968, 305 P.3d 641 (2013) (). Under this standard, the party benefitting from the error—the State—must establish beyond a reasonable doubt that there is no reasonable possibility the error affected the verdict.
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