State v. Willis, 092520 KSSC, 117, 436

Docket Nº:117, 436
Opinion Judge:Stegall, J.
Party Name:State of Kansas, Appellee, v. Dale M. Willis, Appellant.
Attorney:Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant. Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Judge Panel:Nuss, C.J., not participating. Michael E. Ward, District Judge, assigned.
Case Date:September 25, 2020
Court:Supreme Court of Kansas

State of Kansas, Appellee,

v.

Dale M. Willis, Appellant.

No. 117, 436

Supreme Court of Kansas

September 25, 2020

SYLLABUS BY THE COURT

1. The invited error doctrine prevents this court from reviewing instruction errors- even as clearly erroneous under K.S.A. 2019 Supp. 22-3414(3)-when the defendant requests and agrees to the wording of the instruction.

2. Lay opinion testimony is permissible if it: (1) was rationally based upon the witness' perceptions; (2) helped create "a clearer understanding of the testimony of the witness"; and (3) was "not based on scientific, technical or other specialized knowledge." See K.S.A. 2019 Supp. 60-456(a).

3. Internet searches for a handgun, the same type and caliber used days later in a shooting, demonstrates "a sufficient similarity between" the content of the internet searches and shell casings recovered from the scene of the shooting to make evidence of the searches relevant.

4. A district court cannot improperly weigh aggravating and mitigating circumstances contrary to K.S.A. 2018 Supp. 21-6620(c)(1)(A) and State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015), if no mitigating circumstances exist.

Appeal from Johnson District Court; Thomas Kelly Ryan, judge.

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

OPINION

Stegall, J.

Dale Willis directly appeals from his convictions for first-degree murder and battery. Willis claims the district court committed nine reversible errors. We consolidate Willis' claims into (1) jury instruction errors, (2) prosecutorial errors, (3) evidentiary claims, and (4) sentencing issues. Finding none constitute reversible error, we affirm the district court.

Facts and Procedural Background

On September 16, 2015, Jurl Carter and his friends attended a concert at the Roxy bar in Overland Park. The group arrived at the venue a little after midnight. Carter parked his car next door at the 24-Hour Fitness center because the bar's parking lot was full. The friends watched several performers and then planned to leave the event. Carter brought his vehicle from the 24-Hour Fitness parking lot to a now-vacant space in front of the Roxy to pick up his friends. As Carter entered the spot, he accelerated too rapidly and pulled in too far. The front of his car nearly hit Dale Willis, who was standing with a different group on the sidewalk. Carter exited his vehicle and apologized to Willis, who did not respond and walked away.

Then, as Carter and his friends were posing for photographs outside the Roxy, Dale Willis struck Carter on the side of the face with a "sucker punch." Carter fell to the ground. He stood up and cautiously got into his car. As Carter was attempting to leave, Willis pointed three times at Carter signaling to another man later identified as Willis' brother, James Willis. The brothers walked to the passenger side of the car, and James Willis fired between 10 and 20 rounds from a pistol into the passenger side door and window. Dale and James Willis then fled together. Carter died as the result of several center body mass gunshot wounds.

At trial, the State's theory was that Willis had aided and abetted James Willis in the premeditated murder of Carter. The State relied on the circumstances surrounding the shooting, including: (1) the fact that Carter had angered Willis by driving too close to him; (2) that Willis had punched Carter; (3) that a short time later, Willis had pointed out Carter to James Willis; (4) that the brothers approached the car when Carter was attempting to leave; and (5) that the brothers had fled together.

The State also introduced evidence through Federal Bureau of Alcohol, Tobacco, and Firearms Agent Steven Lester detailing the organizational structure of Dale Willis' rap LLC "Duced Out Records" (DOR). According to Agent Lester's testimony, Willis served as DOR's "[l]eader, CEO, [and] . . . business manager." Agent Lester testified that James Willis provided "some type of security" for Willis and other DOR organization members. Further, Agent Lester explained that DOR members received a DOR medallion as evidence of membership and that both Dale and James held medallions.

The State also presented eleven .45 auto caliber cartridges fired from the same Glock handgun recovered in and around Carter's Malibu. James Willis' Galaxy Note cell phone was entered by stipulation. The cell phone contained web page visits to Walmart.com and Cabelas.com viewing .45 automatic caliber ammunition; a Google search for a Glock 21 handgun with a 30-round magazine; and ClassicFirearms.com searches viewing magazines for a Glock .45 caliber handgun. The phone also contained searches for pictures of two Glock .40 caliber handguns and one Glock .45 caliber handgun. These searches occurred several days prior to the shooting. Further, the phone logged a KCTV5 news report discussing the shooting of Carter.

Willis offered alternative defenses at trial. He claimed first that James Willis acted alone and not at the behest or with the help of Willis. Alternatively-and importantly for this appeal-Willis claimed that if he had acted in concert with James Willis, he did so in self-defense. Along these lines, Willis argued that Carter had a gun with him and intended to shoot Willis after the initial punch was thrown. Gerald Greenfield, who worked security at the Roxy, testified Carter said he "got something for y'all" after Willis punched Carter. Greenfield believed this statement meant Carter intended to shoot Dale Willis. Other witnesses testified for the defense that Carter motioned to his waistband as if he had a concealed firearm, but no one actually saw a weapon.

A jury convicted Willis of first-degree murder and battery. The district court imposed a hard 50 sentence for the murder conviction and a concurrent 6-month sentence for the battery conviction.

Willis directly appeals.

Discussion

On appeal, Willis claims nine reversible errors. Several of Willis' claims overlap and intersect, however, so we regroup his claims into four categories: (1) jury instruction errors; (2) prosecutorial errors; (3) evidentiary issues; and (4) sentencing issues. We find no error and affirm the district court.

Jury Instruction Error Claims

Willis requested a series of aiding and abetting and self-defense instructions. After the court agreed to give those instructions, Willis never objected or indicated he wasn't happy with the instructions he requested.

Jury Instruction No. 11 mirrored PIK Crim. 4th 52.140 (2018) and informed the jury on "Responsibility for Crimes of Another": "A person is criminally responsible for a crime if the person, either before or during its commission, and with the mental culpability required to commit the crime advises, hires, counsels or procures another to commit the crime.

"All participants in a crime are equally responsible without regard to the extent of their participation. However, mere association with another person who actually commits the crime or mere presence in the vicinity of the crime is insufficient to make a person criminally responsible for the crime."

Jury Instruction No. 13 adopted language from PIK Crim. 4th 52.200 (2016 Supp.) and discussed "Use of Force in Defense of a Person": "As to Count I, defendant claims his use of force was permitted as self-defense.

"Defendant is permitted to use physical force against another person that is likely to cause death or great bodily harm only when and to the extent that it appears to him and he reasonably believes such force is necessary to prevent death or great bodily harm to himself from the other person's imminent use of unlawful force. Reasonable belief requires both a belief by the defendant and the existence of facts that would persuade a reasonable person to that belief.

"When use of force is permitted as self-defense, there is no requirement to retreat."

Jury Instruction No. 14 laid out the elements of first-degree murder:

"The defendant is charged with murder in the first degree. The defendant pleads not guilty.

"To establish this charge, each of the following claims must be proved:

1. The defendant intentionally killed Jurl Carter.

2. The killing was done with premeditation.

3. This act occurred on or about the 16th day of September, 2015, in Johnson County, Kansas."

These instructions make it clear that Willis was permitted to argue that he acted in self-defense. If the jury agreed that Willis reasonably believed that deadly force was necessary to prevent his own death or great bodily harm from Carter's imminent use of unlawful force, then the jury would be required to acquit. The way the instructions read and the evidence was presented, the fact that James Willis was the trigger man would not have prevented the jury from accepting Willis' self-defense claim.

At trial, however, Willis wanted to argue to the jury that it was actually James Willis who had the reasonable belief that deadly force was necessary in light of Carter's imminent use of unlawful force. But that argument lay outside the jury instructions and the district court made several rulings holding the parties to the jury instructions as given. As a result, on appeal, Willis now claims those instructions were wrong or misinterpreted by the district court to the extent they prevented him from arguing that James Willis-as opposed to Dale Willis-acted in self-defense.

Under the invited error doctrine, a litigant may not invite error and then complain of that same error on appeal. State v....

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