State v. Warren

Citation356 P.3d 396,302 Kan. 601
Decision Date28 August 2015
Docket Number107,159.
PartiesSTATE of Kansas, Appellee, v. Cedric WARREN, Appellant.
CourtUnited States State Supreme Court of Kansas

Patrick H. Dunn, of the Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


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

Charles Ford and Larry LeDoux were killed in a shoot-out during an attempted drug-house robbery. Brandon Ford, who survived the incident and who previously knew Cedric Warren, named Warren as one of the two shooters and later identified Warren's codefendant, Dominic Moore, as the second killer. Warren and Moore were tried together, and a jury convicted Warren of one count of premeditated first-degree murder, one count of intentional second-degree murder based on an aiding and abetting theory, and one count of attempted premeditated first-degree murder. The district court imposed a life sentence with a minimum term of 50 years (hard 50 life sentence) for the first-degree premeditated murder conviction.

On direct appeal to this court, Warren argues that (1) the district court violated his right to an impartial jury by denying his motion for a mistrial after a potential juror's comments irreparably tainted the jury pool; (2) the district court violated his right to an impartial jury by denying his motion for mistrial after a State's witness made improper, prejudicial comments; (3) the district court erred in denying his motion for a new trial based on newly discovered evidence; (4) the district court erred in denying his motion to sever his trial from Moore's trial, based on antagonistic defenses; (5) the district court denied his constitutional rights by instructing the jury that it could return a verdict of guilty upon proof of any element of the charged offense, rather than proof of each element of the charged offense; (6) cumulative error denied him a fair trial; (7) the hard 50 sentencing scheme is unconstitutional; (8) his hard 50 sentence is illegal; and (9) the district court erred by ordering lifetime postrelease supervision.

Finding no reversible error, we affirm Warren's convictions. But pursuant to Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2160–63, 186 L.Ed.2d 314 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), we must vacate the hard 50 life sentence and remand the case to the district court for resentencing.

Factual and Procedural Overview

On February 13, 2009, Brandon, Charles, and Larry spent most of the day at a house in Kansas City, Kansas, which was used by Charles and Larry to facilitate their drug transactions. Charles was armed with a loaded nine millimeter Glock and Larry kept a loaded AK–47 within his reach, but Brandon was initially unarmed when two men came to the house that evening.

Although his description of the events changed several times prior to trial, one of Brandon's initial stories to the police had him walking toward the bathroom when two men entered the house, one of whom he knew as “Ced.” As he entered the bathroom, Brandon said he heard someone say “where's the shit” or “give me the shit,” immediately followed by gunshots. Brandon exited the bathroom and saw a short black male holding a gun, whereupon he ducked into a bedroom, locked its door, and retrieved a weapon. Brandon exchanged gunfire through the closed bedroom door with someone outside. After the shots subsided, Brandon looked out the window and saw two men running toward an SUV. Brandon exited through the bedroom window, ran to a nearby house, and asked the resident to call the police.

When police arrived at the residence, they found Charles' body near the front door surrounded by several different types of cartridge casings and Larry's body in the dining room with .40 caliber Smith and Wesson spent cartridges scattered nearby. Police also discovered a locked bedroom door riddled with bullet holes. A police officer broke down the door and observed an open window in the bedroom.

Although no weapons were found in the house, police recovered multiple gun magazines and a significant amount of ammunition. Police also discovered a black bag hidden inside a clothes dryer; the bag contained packets of cocaine.

Brandon was transported to the police station and shown a line-up, from which he identified Warren as the individual he knew as “Ced.” The day after the murders, police apprehended Warren and Moore at a house in Kansas City, Missouri. A search of the Missouri house revealed several weapons, including a Glock nine millimeter semi-automatic handgun, and drugs, all hidden within an air duct. Brandon was later able to select Moore out of a line-up as the short black man he saw in the hallway.

Warren was charged with the premeditated first-degree murder of Larry; the intentional second-degree murder of Charles, based on an aiding and abetting theory; and the attempted premeditated first-degree murder of Brandon. At trial, Brandon testified that he was sitting in the living room when he saw Warren come up the stairs after entering the house. Brandon said that Warren went straight into the kitchen and began shooting at Larry. Brandon ran to the bedroom to retrieve a weapon; but he said that he was able to see Moore, through the cracked bedroom door, also come up the stairs after entering the house. Brandon admitted that his trial testimony was inconsistent with previous statements, wherein he said he was in the bathroom when shots were fired. Brandon was extensively cross-examined on his inconsistent testimony.

A KBI firearms expert testified that the casings found at the crime scene came from three different guns, one of which was the Glock seized from the Missouri residence. Specifically, two cartridge casings found under Charles' body were fired from the Glock. A KBI forensic scientist testified that a sample taken from the Glock was consistent with Moore's DNA profile. The KBI firearms expert testified that the bullet recovered from Larry's body was a .40 caliber full metal jacket round, but he was unable to tie it to a particular spent cartridge or to identify the type of weapon from which it was fired.

Warren presented two alibi witnesses in his defense. His stepmother, Nicole Carter, testified that on the night of the murders, Warren was at her house until approximately 11 p.m., when he left to go to a music show with his father. Warren's father, Cedric Toney, testified that he dropped Warren off at a friend's Kansas City, Missouri, house around midnight. The murders were alleged to have taken place around 11 p.m. Moore did not present any evidence in his defense.

The jury convicted both defendants as charged. Warren filed a motion for new trial, which the district court denied. The State filed a motion for imposition of a hard 50 sentence for Warren's first-degree murder conviction under K.S.A. 21–4635, which the district court granted. Warren's sentences for the two other convictions were ordered to be served concurrently with the hard 50 life sentence. Warren filed a timely appeal.

Motion for Mistrial Based on Potential Juror's Statements

Warren's first issue concerns comments made by a member of the venire during voir dire. The potential juror, C.W., expressed fear over rendering a guilty verdict because the defendants had access to the juror questionnaires, which contained his personal information, specifically stating,

[E]very time we talk they flip through these papers. It's got my name on it, it's got where I work on it, it's got my family, it's got everything, and if I stand up in court and say hey, they're guilty, they're like, hey, that's number 4, that's [C.W.]. They know where I work, they know where I live, what if he gets mad? That's how I look at it.”

The prosecutor followed up by inquiring whether C.W.'s apprehension would interfere with his jury duty and C.W. responded, “Kind of, yeah, because if I stand up and say hey, you're guilty, they know my name, where I work and my family. That makes you feel kind of awkward, don't you think?” C.W. explained that even if the jury rendered a guilty verdict and the defendants went to jail, nevertheless [t]hey know people. People know people.”

Thereafter, the district court conducted a bench conference at which defense counsel requested a mistrial, arguing that the jury pool had been “poisoned at this point beyond—possibly beyond salvation.” The prosecutor argued that any possible prejudice could be cured by informing potential jurors that while the defendants could review the questionnaires during jury selection, they did not have access to the questionnaires during the trial. The district court took the motion for mistrial under advisement and thereafter provided the following instruction to the jury pool:

“All right. I guess based upon [C.W.'s] comments, there's I wanted to clarify things. Obviously, this is a serious case and there are serious charges, here. As the defendants sit here, they are presumed to be innocent. The State has the burden to prove their guilt beyond every reasonable doubt as to the elements with which they are charged. It is also their right to have a jury trial, and that is why all of you have been summoned in here to come down here and go through this process. That's why I've asked you questions, Miss Lidtke has asked you questions and counsel will ask you questions.
“The questionnaires that he referred to are simply in order to try to speed up the process as opposed to questioning each of you individually. These questionnaires are used in every trial that we conduct here in Wyandotte County, they have been used for many years, and it's the best possible way that we have come up with to expedite the process as much as we possibly can.
“I understand that there's concerns about your names being on there and information, but those

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