State v. Williams

• Decision Date: 24 September 1999
• Docket Number: No. 78,444.,78,444.
• Citation: 988 P.2d 722,268 Kan. 1
• Parties: STATE OF KANSAS, Appellee, v. ALFRED JEROME WILLIAMS, Appellant.
• Court: Kansas Supreme Court

268 Kan. 1

988 P.2d 722

STATE OF KANSAS, Appellee, v. ALFRED JEROME WILLIAMS, Appellant.

No. 78,444.

Supreme Court of Kansas.

Opinion filed September 24, 1999.

Bradley P. Sylvester, special appellate defender, of Wichita, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Paul J. Morrison, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LOCKETT, J.:

Defendant appeals convictions of two counts of first-degree premeditated murder and four counts of attempted first-degree murder, claiming the second trial constituted double jeopardy. Defendant also contends the trial court erred in denying his motions for new trial at the second trial, admitting his out-ofcourt statements, allowing the State's complaint to be amended, failing to instruct on aggravated battery as a lesser offense of attempted premeditated first-degree murder, and insufficient evidence to sustain the convictions.

The events relevant to the crimes of which Alfred Jerome Williams was convicted began at the Shawnee Mission North High School (SMNHS) homecoming football game against Olathe North High School (ONHS) on Friday, September 22, 1995, and ended on Sunday evening, September 24, 1995.

During the game, a fight broke out between ONHS students and students from SMNHS. Williams participated in the fight until teachers and administrators intervened. After the game, another student disturbance broke out. Threats, taunts, and profanities were exchanged between the students from the two schools. Teachers, administrators, and security officers again attempted to disperse the students. Eric Hulse, a school resource officer for SMNHS, testified that Williams was visibly angry, yelling and cursing. He testified that Williams and another student began hitting Noah Correa, until Correa was on the ground. Correa eventually escaped by running away. The Olathe police department arrived and dispersed the students.

After leaving the game, Williams and several friends met at a donut shop in Olathe. They were joined by another group of young people, and an argument began. Williams and others forced Jibri Burnett, a student from ONHS, across the street where they beat and kicked him.

In the late evening of the next day, Saturday, September 23, 1995, Williams and several friends met at Williams' apartment complex to discuss an incident where an ONHS student had chased one of their friends. Williams showed James Whitaker a .22 caliber semiautomatic handgun. Williams told the group to meet back at his apartment complex on Sunday afternoon.

On Sunday, September 24, 1995, a large group met at Williams' apartment complex. There were several weapons in the crowd. Williams was "fidgeting" with his .22 semiautomatic, putting the clip in and taking it back out. After about an hour, the group departed the apartment complex in five cars.

The car in which Williams was riding cut off and almost hit a car driven by Darren Dillard. Dillard followed Williams' car to the donut shop parking lot. Williams got out of the car and asked if Dillard was from ONHS. Dillard responded that he was not. Williams asked Dillard if he knew the whereabouts of Jibri, and Dillard said that he did not know Jibri. Williams told Dillard that if he saw people from ONHS, he should tell them to meet "him and his boys" at ONHS.

Dillard went to his cousin's house and related what he had been told by Williams. Dillard's cousin, Arland Bruce, and Dillard went to ONHS where they encountered Williams and his companions. Williams told them that "somebody messed with his boys at the [game] Friday night, and they came to take care of business." Williams told Dillard to inform people from ONHS to meet him at 6 p.m. Williams told Bruce, "We're looking for some punk-ass nigger named Jibri." Bruce left ONHS and went to the home of Jibri's cousin. Bruce told someone at the house to inform Jibri that someone was looking for him.

Williams and James Whitaker rode to ONHS on Sunday night in Chris Campos' car. En route, Williams pulled the back seat down and put his gun, wrapped in a blue bandanna, in the trunk of the car.

At ONHS, Williams and his friends were confronted by a group of people from ONHS. Williams told Whitaker to get his gun from the trunk of the car. Whitaker retrieved the gun and gave it to Williams. Williams put the gun in his front pocket.

Shortly after, other cars arrived in the area. Approximately 20 people got out of the cars and began running toward Williams' group. Williams told his companions that it was time to leave. Williams and Whitaker got back into the car with Campos. Williams was in the back seat on the driver's side of the car.

As Campos began to drive away from the scene, Williams told him to turn around and go back. Campos made a U-turn and returned to the scene. Whitaker looked into the back seat and saw that Williams had rolled down the back window and was pointing his gun out the window.

Williams then told Campos to stop the car. Williams fired into the crowd six or seven times. After the discharges, Whitaker heard the gun click. Williams said, "Damn, out of bullets."

When the shots were fired, the crowd began to quickly disperse. An individual left the crowd, ran to Campos' car, and broke out the back driver's side window. Campos sped up, and his car hit another car. Campos stopped; Jeff Dunn, a friend, ran to the car and entered through the back passenger side door.

Dunn remarked that Williams could have shot him when Williams fired into the crowd. Williams responded, "I knew where you were. This is how much love I got for you." Williams informed his companions that he had shot someone in the leg and someone in the arm. The men drove back to Williams' apartment where they met Eric Gonzales. Williams, Dunn, Reggie Johnson, and Eric Cox got into Gonzales' car. Williams, who was holding the gun on his lap, told Cox, who had not been at ONHS, "We busted caps on some fools." Williams said that as he shot the gun at ONHS, he observed people holding their stomachs and dropping to the ground.

Williams asked Cox to hold his gun until Monday. Cox agreed. When they arrived at Cox's house, Williams gave him the gun. As Cox walked by the trash dumpster at his apartment complex, he threw the gun, wrapped in blue bandannas, in the dumpster.

Two people were killed and four people were injured at the ONHS shooting. Williams was charged with two counts of premeditated first-degree murder, four counts of attempted premeditated first-degree murder, and one count of unlawful possession of a firearm. Prior to trial, Williams pled guilty to unlawful possession of a firearm.

Williams' trial began on May 10, 1996. After two weeks of evidence, with Williams' consent the judge ordered a mistrial after it was discovered that a defense witness had given perjured testimony.

Williams' second trial commenced on August 12, 1996. On August 29, 1996, the jury found Williams guilty of two counts of premeditated first-degree murder and four counts of attempted premeditated first-degree murder. Williams was sentenced to two hard 25 life sentences on the murder convictions, four 92-month imprisonment sentences on the attempted murder convictions, and one 9-month imprisonment sentence on the criminal possession of a firearm conviction. Williams appeals the convictions.

DOUBLE JEOPARDY

Williams' first trial resulted in a mistrial because a defense witness provided perjured testimony. Williams, who agreed to the granting of the mistrial, does not contend that the perjured testimony barred retrial. What Williams asserts is that the trial court abused its discretion in denying defense motions for a mistrial during the first trial when (1) Eric Hulse, a resource officer at SMNHS, testified regarding an unrelated and prejudicial confrontation involving Williams and others at the homecoming football game; (2) the State failed to turn police field notes over to the defense prior to trial; (3) a State's witness, who had previously stated that the shots were fired from the driver's side front window, testified during the trial that the shots were fired from the rear driver's side window of the car in which Williams was riding; and (4) one juror overheard threats made to prosecution witnesses and a second juror was observed crossing her fingers when taking the oath. Williams argues that the judge's failure to declare a mistrial for the reasons he raises denied him the constitutional protection against double jeopardy.

The State argues that (1) whether the trial court should have granted the mistrial on Williams' claim is too speculative, and (2) Williams cites no authority to support his argument that trial errors in the first trial are reviewable upon conviction in a second trial.

Under K.S.A. 22-3602(a), the direct appeal of the judgment in the second trial was the first opportunity for Williams to appeal the judge's denial of his request for a mistrial based upon prosecutorial misconduct in the first trial. Here, judgment did not occur until after Williams' second trial. Therefore, it was not until after judgment in the second trial that Williams had an opportunity to appeal, and we will consider the issue.

The Double Jeopardy Clause of the United States Constitution protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. The language of the Fifth Amendment to the United States Constitution guarantees no greater protection to an accused than does § 10 of the Kansas Constitution Bill of Rights. Therefore, the underlying protection contained in the Double Jeopardy Clause of the United States Constitution is contained in § 10 of the Kansas Constitution Bill of Rights. State v. Cady, 254 Kan. 393,...