State v. Wilkerson

• Court: Kansas Supreme Court
• Writing for the Court: BEIER, J.
• Citation: State v. Wilkerson, 278 Kan. 147, 91 P.3d 1181 (Kan. 2004)
• Decision Date: 25 June 2004
• Docket Number: No. 89,672,89,672
• Parties: STATE OF KANSAS, Appellee, v. DAJUAN WILKERSON, Appellant.

278 Kan. 147

91 P.3d 1181

STATE OF KANSAS, Appellee, v. DAJUAN WILKERSON, Appellant.

No. 89,672

Supreme Court of Kansas.

Opinion filed June 25, 2004.

Randall L. Hodgkinson, deputy appellate defender, argued the cause, and Sandra Carr, assistant appellate defender, was with him on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.

Defendant DaJuan Wilkerson appeals from his convictions and sentences for first-degree premeditated murder and attempted first-degree premeditated murder.

Wilkerson claims seven errors: (1) admission of evidence of a shootout that occurred 2 days before the charged crimes; (2) admission of evidence of his nickname; (3) questioning of one of his alibi witnesses regarding her silence during a law enforcement interview; (4) wording of instructions and the verdict form; (5) sufficiency of the evidence; (6) cumulative error; and (7) his sentence to 50 years in prison with no opportunity for parole.

The convictions before us arose out of the murder of Damene Lattimore and the attempted murder of Adeana Gibson.

Wilkerson borrowed a car from Donald Simmons, Gibson's stepfather. Simmons knew Wilkerson by his nickname, "Silence," which Simmons pronounced "Silas." Two days before the murder, Wilkerson drove the car to Sean Deshazer's house, and he and Deshazer got into an argument that led to an exchange of gunfire. One of the shots fired by Deshazer struck one of the car's doors on the driver's side. Deshazer and Lattimore were friends.

When defendant returned the car to Simmons, he told Simmons that he had been involved in a shootout. Simmons found spent shell casings in his car and disposed of some of them by throwing them on top of a building.

On the night of the murder, according to Gibson's testimony, Lattimore was asleep and Gibson was running a bath about midnight when Gibson heard a knock at the door. She opened it when she recognized Wilkerson waiting outside. She also knew him as "Silence."

Gibson did not know the man with Wilkerson. Wilkerson asked to speak with Lattimore, and Gibson went to the bedroom to tell Lattimore that "Silence" was there to see him. Lattimore merely shook his head in response. As Gibson returned to the living room, the stranger who had accompanied Wilkerson into the house pointed a gun at her and told her to "get on the floor." She lay in the hallway, face down, outside of the bedroom.

Wilkerson then entered the bedroom and pointed a gun at Lattimore. He asked Lattimore: "Why is your homeboy shooting at me?" Lattimore replied: "Man, I don't know. I don't have nothing to do with that." The light in the bedroom went off, and Wilkerson fired. He then turned the light back on and again asked Lattimore: "Why your homeboys keep on tripping with me? He keeps on shooting at me." Lattimore again replied: "I don't have nothing to do with that. That's on them. Me and you already talked about this. I'm not in that."

According to Gibson, Lattimore then offered Wilkerson money. Wilkerson said Lattimore "would have to kick in more than that" and told Lattimore to "give up his homeboy." Wilkerson then said: "Oh man, did I hit you?" Lattimore said he had been hit and then pleaded: "Please don't shoot me." Wilkerson said: "That's all right `cause I don't . . . fuck with no slob ass niggers no way." Wilkerson then shot Lattimore three more times. As Wilkerson walked by Gibson on his way out of the house, he fired two shots at her. One grazed her head, and another went through her left wrist. Gibson pretended to be dead so that he would not fire again. Then, after Wilkerson and his accomplice left, she called 911. It was eventually determined that Lattimore had suffered four gunshot wounds before he died, three in the abdomen and one in the head.

At the time of the crimes, Simmons happened to be visiting a house across the street from Gibson's. Someone else with Simmons heard the gunshots. As police arrived in the neighborhood to respond to Gibson's 911 call, Simmons and two friends got into his car to leave. They were stopped when a police officer noticed the bullet hole in the door of Simmons' car, and Simmons was questioned. Simmons told police that he had lent his car to "Silas" and that the bullet hole had resulted from a shootout in which Silas was involved. When an officer presented Simmons with a picture of a man named Silas, Simmons said that was not the person to whom he had lent his car. Eventually, Simmons was shown a picture of Wilkerson, and Simmons identified him as the man who borrowed his car. During trial, Simmons would eventually identify Wilkerson as "Silas."

Gibson also was questioned the night of the murder. At first, she said she was unable to identify the shooter, but she later identified Wilkerson. She said she had not immediately identified him because she was frightened.

After Simmons was questioned, police retrieved two spent shell casings and one bullet fragment from the roof of the building where Simmons had thrown the spent casings he had found in his car. Police also retrieved a spent casing from the floorboard of the car and three partial bullets and one spent casing from Deshazer's yard. Testimony at trial linked the gun used at Deshazer's house and the murder weapon, a .45 caliber semiautomatic. A tray of ammunition designed to hold 50 rounds for such a gun was found in a search of the house where Wilkerson was staying at the time of the murder; nine rounds were missing from the tray.

Wilkerson's defense was alibi. According to his ex-girlfriend, Nicole Lane, and her family, he was with Lane, their three children, and her parents from approximately 10 p.m. until 1:30 a.m. on the night of the crimes. Wilkerson first accompanied them to a gas station, then to Wal-Mart, and then to Lane's residence, where he stayed while Lane packed her belongings into her parents' car. Wilkerson then led Lane and her family to the highway, and they departed without Wilkerson for Muskogee, Oklahoma.

At trial, the following exchange occurred between the prosecutor and Lane:

"State: That's Detective Otis. Remember when he came down to Muskogee back in November of last year? "Lane: Mm-hmm. "Defense: Objection "Court: Overruled. "State: You do remember that? "Lane: Yes. "State: He told you he wanted to talk to you about a murder that had concern — that had occurred here on September 12th? "Lane: Yes. "State: . . . you wouldn't talk to him? "Lane: Yes. "Defense: Objection "Court: Grounds?"

An off-the-record discussion followed at the bench. Then the prosecutor continued:

"State: Like I was saying, you knew he wanted to talk to you about a murder possibly involving [defendant], and you refused to talk to him, correct? "Lane: Yes."

The prosecutor later asked Lane when she first became aware she would have to testify about her whereabouts on the night of the murder, and she responded that she knew after defendant first went to court. She also replied that she became aware of the investigation when Otis first questioned her.

The jury charge included Instruction No. 14, which read:

"The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.

"The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty."

The defense objected to the use of the word "until" rather than "unless" in the first paragraph of the instruction. It also objected to the instructions' reference to Wilkerson as "defendant" rather than by his name and to the verdict form's listing of the "guilty" option before the "not guilty" option.

Admission of Evidence of Shootout

Wilkerson's challenges to admission of the evidence of his shootout with Deshazer have varied over time.

Before and during trial he focused primarily on persuading the judge that any evidence of the shootout could be admitted only under K.S.A. 60-455 and thus would require a limiting instruction consistent with that statute. Although the judge did not accept the argument that K.S.A. 60-455 applied and admitted the evidence independent of it, he invited the defense to submit a limiting instruction of its own design for his consideration. The defense did not do so.

In his appellate brief, Wilkerson argued that the evidence should not have been admitted because it "1) does not directly establish the crime charged as required by the `other crimes' rule, and 2) the prejudicial effect of this evidence outweighed, by far, any probative value the unreliable testimony of Sean Deshazer may have possessed." The probative value/prejudicial effect balance echoes the third factor in evaluating K.S.A. 60-455 evidence, see State v. McHenry, 276 Kan. 513, 519, 78 P.3d 403 (2003), as well as other relevant evidence, see K.S.A. 60-422.

Finally, at oral argument before this court, Wilkerson's counsel resurrected the K.S.A. 60-455 argument, asserting that the shootout evidence could have been admitted only if accompanied by an instruction limiting its consideration for the purpose of proving motive or identity, i.e., that Wilkerson had a motive to kill Lattimore because of his shootout with Lattimore's friend or that the gun Wilkerson used in the shootout was the same gun used by Lattimore's killer.

We first address Wilkerson's K.S.A. 60-455 argument. The statute provides in pertinent part:

"[E]vidence that a person committed a crime or

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