State v. Wilkins

• Decision Date: 31 October 2014
• Docket Number: 109,313.
• Citation: State v. Wilkins, 50 Kan.App.2d 1120, 336 P.3d 336 (Kan. App. 2014)
• Parties: STATE of Kansas, Appellee, v. Breonna M. WILKINS, Appellant.
• Court: Kansas Court of Appeals

50 Kan.App.2d 1120

336 P.3d 336

STATE of Kansas, Appellee

v.Breonna M. WILKINS, Appellant.

109,313.

Court of Appeals of Kansas.

Oct. 31, 2014.

Review Granted July 21, 2015.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., STEGALL, J., and BUKATY, S.J.

Opinion

STEGALL, J.

Breonna Wilkins was convicted of aggravated intimidation of a witness in violation of K.S.A. 2011 Supp. 21–5909. This is Wilkins' direct appeal claiming: (1) the conviction was not supported by sufficient evidence; (2) the language of K.S.A. 2011 Supp. 21–5909 is unconstitutionally vague; and (3) a jury instruction error. Because we find that no reversible error occurred below, we affirm.

Facts

In July of 2011, Natalie Gibson was murdered and Lori Allison was shot outside of their home in Topeka, Kansas. Eventually, nine individuals were arrested and charged as codefendants in connection with these crimes. Most of the codefendants were either related to or well known by Wilkins. Among them were her boyfriend, Ronald Wakes, and another friend, juvenile F.W. Over the course of multiple legal proceedings, two of the codefendants—Bayate Covington and another juvenile, D.R.—accepted plea agreements with the State and began to provide testimony on behalf of the State concerning the events in question.

Wilkins and Wakes were recorded during numerous phone calls while Wakes was in custody. On August 28, 2011, the two discussed the case against Wakes. Wilkins said, “I'm just worried about you know, what everybody else is saying.” Wakes replied, “Yeah, I'm saying if everybody keep their mouth shut, and can't nobody prove nothing.” During a later conversation, Wilkins and Wakes discussed contacting one of the codefendants who had been placed in protective custody (Covington was being held in protective custody after agreeing to cooperate with the State). Wilkins, however, told Wakes, “Nobody knows where he's at.” She said she was writing Covington a letter though, and Wakes said, “Good. Make him feel ... miserable for lying.” Still later, Wilkins and Wakes discussed another codefendant, Jimmy Netherland, and Wakes asked Wilkins to come to the jail and talk to Netherland. Wakes told Wilkins to “tell him to keep his ... mouth shut.” Wilkins said she would look into it.

Wilkins never communicated directly with F.W. Wilkins did deliver messages via a third party to F.W. (nicknamed “Nookie”) while F.W. was in custody. Z.A., a juvenile known to Wilkins and in a dating relationship with F.W., spoke to F.W. on Wilkins' behalf during another recorded jailhouse phone call. Z.A. told F.W., “[Wilkins] just asked about you like, do you know what Nookie's doing? I was like yeah, she's thinking about pleaing or whatever, and then she was like tell her not to because I've talked to like, uh, a couple different lawyers, and they're saying all the DA is trying to do is get everybody to plea out because they don't have enough evidence.” During a subsequent conversation, F.W. and Z.A. were discussing news reports that described various codefendants providing testimony on behalf of the State. Z.A. said, “[D.R.] testified.... I guess [he] took the plea that everybody was offered ... you didn't take that shit did you?” F.W. replied that she had not taken any plea offer. F.W. then asked, “How do you know [D.R.] took that plea?” Z.A. replied, “ ‘Cause that's what Breonna said.... And she was like please tell me Nookie didn't take it.”

Z.A. also testified during Wilkins' trial that Wilkins “asked me if [F.W.] had taken a deal, and I told her that she was thinking about taking one.” Wilkins then told Z.A. “to tell [F.W.] not to take a deal.” After Z.A. urged F.W. not to accept a plea offer from the State, F.W. did in fact reject a plea offer that would have allowed her to be prosecuted as a juvenile rather than an adult in exchange for her truthful testimony. She subsequently accepted a less favorable plea offer after being certified to stand trial as an adult. F.W. testified that she was motivated to reject the State's favorable plea offer by Wilkins' admonition which had been communicated to her through Z.A.

Wilkins was charged with and convicted of aggravated intimidation of a witness. She was given a suspended sentence of 18 months in prison and placed on 24 months' probation. She timely appeals.

Analysis

Specifically, the State charged Wilkins with dissuading or attempting to dissuade F.W. from providing testimony with the intent to thwart or interfere with the orderly administration of justice in violation of K.S.A. 2011 Supp. 21–5909. Additionally, the State alleged two alternative aggravating factors, both of which were found by the jury. On appeal, Wilkins makes three claims of error: (1) that the evidence was insufficient to support the jury verdict; (2) that the statutory language “thwart or interfere in any manner with the orderly administration of justice” is unconstitutionally vague; and (3) that it was error for the jury not to be instructed on the meaning of that language.

Sufficiency of the Evidence

When reviewing a challenge to the sufficiency of the evidence in a criminal case our standard of review is well established. The appellate court must affirm the jury verdict if, “after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.” State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013). To the extent our review requires us to interpret the language of K.S.A. 2011 Supp. 21–5909, our review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).

After reviewing the entire record and considering the evidence in a light most favorable to the prosecution, it is apparent that Ronald Wakes and his codefendants were stuck in a variant of the “prisoner's dilemma.” This classic dilemma has been studied by theorists of strategy and negotiation for decades and has been described as follows:

“Two prisoners, unable to confer with one another, must decide whether to take the prosecutor's offer: confess, inculpate the other, and serve a year in jail, or keep silent and serve five years. If the prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can't communicate, and each fears that the other will talk. So both confess.” Page v. United States, 884 F.2d 300, 301 (7th Cir.1989).

See also Schelling, The Strategy of Conflict 53–80, 119–61 (1960; 1980 rev.). By recruiting Wilkins to serve as an outside conduit of communication, Wakes hoped to side-step the prosecution and defeat the prisoner's dilemma.

Wakes and Wilkins discussed urging multiple codefendants to keep quiet. Wilkins knew, however, that the united front of silence among her friends and relatives in jail was crumbling—the prosecution had successfully secured at least two highly publicized pleas resulting in testimony against the remaining codefendants. Further, Wilkins knew that another codefendant, F.W., had been offered a plea and was contemplating accepting it. In light of this knowledge, Wilkins (via Z.A.) successfully dissuaded F.W. from accepting the State's plea offer and, hence, from providing testimony in the ongoing criminal proceedings.

Wilkins claims that the evidence only shows that she dissuaded F.W. from accepting a plea, not from providing testimony. We are not convinced. A rational factfinder could draw a reasonable inference from the totality of the evidence that Wilkins clearly understood that by dissuading F.W. from accepting a plea she was necessarily accomplishing her true objective—to keep F.W. from providing testimony against Wakes and the other codefendants.

Wilkins next argues that the evidence was insufficient to prove that her actions were undertaken with the intent to thwart or interfere with the orderly administration of justice. Again, her argument fails. In other contexts, the United States Supreme Court has recognized “society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). This opportunity is intimately tied to notions of the orderly administration of justice. See, e.g., Lockhart v. Nelson, 488 U.S. 33, 48, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (Marshall, J., dissenting) (describing the prosecution's one complete opportunity to convict as embodying “society's interest in the orderly administration of justice”); County of Los Alamos v. Tapia, 109 N.M. 736, 742, 790 P.2d 1017 (1990) (same).

Plea agreements that include provisions requiring the defendant to cooperate with the State and provide truthful testimony in ongoing related criminal matters are an integral and necessary tool of the prosecution. Our Supreme Court has recognized the

“propriety of plea discussions and plea agreements in cases when it exists. The interest of the public in effective administration of criminal justice will be served if proper guidelines are followed. A county attorney may in proper instances engage in plea discussions for the purpose of reaching a plea agreement. He should engage in such discussions with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel.” State v. Byrd, 203 Kan. 45, 51, 453 P.2d 22 (1969).

The Byrd court concluded that when safeguarded, “these discussions and agreements between an attorney for an accused and a prosecuting attorney are consistent with the fair and effective administration of justice.” 203 Kan. at 50, 453 P.2d 22.

A rational factfinder could have...