State v. Walker
| Decision Date | 27 November 2019 |
| Docket Number | No. 119,349,119,349 |
| Citation | 452 P.3d 889 (Table) |
| Parties | STATE of Kansas, Appellee, v. Pierre P. WALKER, Appellant. |
| Court | Kansas Court of Appeals |
Peter Maharry, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Green, P.J., Bruns, J., and Walker, S.J.
After a jury trial, Pierre P. Walker was found guilty of three counts of aggravated robbery and one count of cruelty to animals. Walker appeals, arguing that he should have a new trial because of improper comments by the prosecutor during closing arguments, erroneous admission of Facebook pages into evidence by the district court, and because the Kansas Offender Registration Act (KORA) was applied to him in an unconstitutional manner. Finding no merit to Walker's claims on the first and third issues, we affirm as to those. We dismiss his evidentiary claim as not properly preserved for appeal.
After two jury trials that resulted in deadlocked juries, Walker was convicted of three counts of aggravated robbery and one count of cruelty to animals at a third jury trial in January 2018.
Walker's convictions stem from a series of robberies that took place in Lawrence during the early morning, predawn hours of June 6, 2016. The first victim, Ben Foley, was walking past a grocery store on his way to his job when a vehicle stopped abruptly behind him and three men leapt out. While one man held a shotgun on Foley, the others went through Foley's pockets and backpack. The men took Foley's driver's license, debit card, bus pass, keys, and cellphone and then drove away through a parking lot.
The next incident occurred shortly after the first. While Verdell Taylor was out for his usual morning walk by a park in his neighborhood, he noticed a vehicle in a nearby parking lot. He saw the vehicle exit the lot and drive straight to him. Three men then jumped out. One man held a sawed-off shotgun on Taylor while the other two men approached Taylor. Taylor turned to run but fell forward on the ground. One of the men straddled him and went through his pockets, finding and taking his cellphone.
The third event occurred around the same time at another local park. Jonathan Schuster was walking his dog, Phoebe, when he heard a vehicle stop right behind him on the road. Two men jumped out. One demanded Schuster turn over his iPod, while the other pointed what looked like a shotgun at Phoebe. Schuster lost the struggle to keep his iPod and heard a loud noise. He turned to look at Phoebe, who was whimpering. Schuster ran to his nearby apartment to get his car so he could take Phoebe to the veterinarian. But by the time he returned, Phoebe had died of a gunshot wound and the police had arrived on the scene.
The three victims similarly described the vehicle and the assailants. Foley recalled that the vehicle was a tan-colored sport utility vehicle with a luggage rack. The men had dark skin, and the one with the shotgun had dark hands, was approximately 6 feet tall, and wore a red baseball cap. Taylor also said the vehicle was an SUV, and described it as a darker color such as gray, green, or blue. He described the person with the gun as a slender man of color, standing between 5'10" and 6'1". The other two men were also of color but shorter. Taylor remembered the gunman's eyes and was later able to identify Walker from a photograph in the local newspaper because of his distinctive eyes. Schuster described the vehicle as a small, neutral-colored SUV, and the men as African-American. Schuster described the man who took his iPod as slender, having a moustache, standing approximately 5'10" or 5'11", and wearing a baseball cap.
Law enforcement officers used a feature on Taylor's cellphone to track it to a residence in Kansas City, Kansas. Kansas City officers saw a small, light green SUV at the location. The officers discovered a shotgun shell inside the SUV. The shell was similar to the one found near Phoebe.
Further investigation of the SUV revealed that the owner was Milton Owens. He had reported the SUV as stolen on May 24, 2016, approximately two weeks before the robberies in Lawrence. Owens had allowed another man, Charles Burke, to drive his SUV. Burke reported that a known acquaintance, Walker, and two other men had robbed him with two guns, one of which was a shotgun. Burke testified that it was Walker who had the shotgun.
Officers obtained and executed a search warrant on Walker's Kansas City address. There they found Foley's driver's license, debit card, and bus pass in the same bedroom as they found several of Walker's personal papers, including his birth certificate and a current lease for the premises with his name on it. Investigators also found a sawed-off shotgun behind a sectional couch, a variety of shotgun shells, a red and black baseball cap, and other papers that indicated Walker lived at the address.
In July 2016, the State charged Walker with three counts of aggravated robbery—a severity level 3 person felony—and one count of cruelty to animals—a nongrid, nonperson felony.
Walker's first two jury trials ended with hung juries. At his third trial, in January 2018, the jury saw numerous exhibits admitted into evidence, and heard testimony from all three Douglas County victims, other witnesses such as the SUV owner, Owens, and his friend, Burke, and numerous law enforcement officers regarding the investigation.
Taylor identified Walker as the man who "pointed the shotgun at [his] face." Law enforcement officers and a veterinarian identified Phoebe's wounds and pellets found in her wounds as consistent with a shotgun blast and shell fragments. Law enforcement testimony also established that the shotgun found in Walker's home fired the shell recovered near the dog's body. The district court also admitted into evidence photographs presented by the State of an SUV—consistent with the one the victims described—driving in the time period of the robberies through intersections in Lawrence, in the parking lot of the grocery store where Foley was robbed, and near the park where Taylor was robbed.
Also admitted into evidence at the State's request was a series of Facebook messages dated from May 27, 2016, to June 9, 2016. These messages indicated that a Pierre Walker wanted to sell a shotgun and also to obtain shotgun shells. In the hours leading up to the robberies, other messages showed this Pierre Walker making plans to collect some friends. Then, messages from after the robberies revealed that this same Pierre Walker still had a shotgun he wanted to sell.
Investigating officers testified that fingerprint and DNA analyses in the case were largely inconclusive. To illustrate, latent fingerprints found on key pieces of evidence such as Foley's recovered possessions and shotgun shells—both spent and intact—did not have sufficient characteristics for conclusive comparisons. Similarly, DNA swabs from the shotgun, its shells, the red and black baseball cap, and the bag containing Foley's driving license were all inconclusive. Fingerprints taken from a flyer about tax assistance found in a bag in Walker's bedroom—the same bag in which Foley's license was discovered—and from inside the SUV were the only useable prints collected and they did not match Walker's prints. Walker was excluded as the source of the print on the piece of paper.
After deliberations, the jury found Walker guilty of all three counts of aggravated robbery and the one count of cruelty to animals. The district court sentenced Walker to consecutive sentences for the aggravated robbery convictions and a concurrent sentence for his animal cruelty conviction, for a controlling prison sentence of 204 months, plus restitution and postrelease supervision. The district court noted that Walker committed his crimes with a deadly weapon—a firearm. Accordingly, the court ordered Walker to register as a violent offender for 15 years.
Walker timely appealed from his convictions and sentences, and requests a new trial.
Allegations of prosecutorial error
On appeal, Walker first claims the State committed prosecutorial error by misstating the evidence and shifting the burden to him during closing arguments. He argues we should reverse his convictions and remand his case for a new trial. The State argues that it did not commit prosecutorial error and Walker's convictions should be affirmed.
In State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), the Kansas Supreme Court revamped the concept of and standard of review for "prosecutorial misconduct." In the context of whether a criminal conviction is reversible due to the inappropriate actions of a prosecutor during trial, the nomenclature has been changed to "prosecutorial error." 305 Kan. at 93. Under the Sherman standard, an appellate court uses a two-step process to evaluate claims of prosecutorial error, simply described as error and prejudice.
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