State v. Carter

477 P.3d 1004

STATE of Kansas, Appellee,

v.Quincy R.T. CARTER, Appellant.

No. 120,103

Supreme Court of Kansas.

Opinion filed December 18, 2020.

Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and was on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

Quincy R.T. Carter appeals from his convictions for two counts of first-degree murder, two counts of criminal discharge of a firearm, and one count of criminal possession of a firearm.

The relationships, including gang affiliations, of the principal parties in the events leading up to the violence that generated the convictions and appeal in this case are set out in a companion appeal, State v. Carter , 311 Kan. 783, 466 P.3d 1180 (2020). In that appeal, this court affirmed the conviction of Brent J. Carter of felony murder arising out of the same shootings that underlie the present appeal. We summarize here the facts necessary to understand the issues on appeal.

On the day of the confrontation, December 1, 2015, Luerene Browning, and her cousin, Tatyana Crowe, were at the home of Browning's mother, Betty Holloman. Browning's sisters, Sharmethiea and Crystal, and her stepfather, John Collins, were also at the home that day.

That afternoon, Magic Jamerson and Brenton Oliver visited Browning and Crowe at the home. Jamion Wimbley drove to the house that afternoon to drop off Khalah Beard, who was a friend of Browning and Crowe's. When Wimbley pulled up, Crystal was outside in the driveway smoking and talking on the phone. Crystal ended her conversation so that she could talk with Wimbley. While the two were talking, Oliver ran out of the residence over to Wimbley's car, shouting and cursing.

The two engaged in a confrontational discussion, and Wimbley appeared frightened. As described in Carter , 311 Kan. at 785, 466 P.3d 1180, one or two weeks before that confrontation, the two had been in a fight, and the confrontation in the driveway seemed to be carrying forward the issues from the earlier physical altercation. As the argument in the driveway continued, Jamerson ran out of the house toward Wimbley's car and shouted, "On Bloods." Wimbley told Oliver he had something for Oliver's "bitch ass," and drove off, saying he would be back. Crystal became angry and warned Jamerson and Oliver not to do their "gangbanging shit" at her mother's house.

Approximately 45 minutes after Wimbley left, Jamerson and Beard got into an argument, and Beard called her sister, Alexis Davis, to come and pick her up. Alexis' boyfriend, Jonathan Carter, drove Davis to the house to pick up Beard. When they got there, Davis got out of the car so that Beard could get in the backseat. Jamerson had followed Beard out to the car, calling her names, and he and Davis proceeded to get into an argument. At the same time, Oliver and Jonathan were "tussling" near the open driver's side door of Jonathan's car. Holloman had left the house and gone over to the car to tell everyone to leave. Jonathan asked her to go back in the house so she would not be caught up in the fighting.

Those two separate fights were taking place as Wimbley returned to the house in his car. Just as he pulled up, one of the back windows in his car went down and someone stuck a gun out the window. Shots were fired from the gun. Then Brent Carter jumped out of the front passenger seat with a large gun and fired shots in the direction of the residence. Wimbley jumped out of the driver's seat and ran to where Jonathan and Oliver were fighting. Quincy Carter, whom witnesses identified as the individual who fired the shots through the backseat window, got out of the car and started shooting toward the house and the people outside. Brent then said to Carter, "Come on ‘Q,’ let's roll."

Oliver and Holloman died from gunshot wounds. An extensive search was conducted, and law enforcement arrested Carter about two weeks after the shootings.

The State charged Carter with two counts of first-degree murder, two counts of criminal discharge of a firearm, and a single count of criminal possession of a firearm. A jury found him guilty on all charges. The court sentenced him to two consecutive hard 25 life sentences plus 53 months. He took a timely appeal to this court.

Carter asserts five grounds for reversing his convictions. We find none of them compelling.

PUBLIC TRIAL

Under both the United States Constitution and Kansas statutory law, a criminal defendant enjoys the right to a public trial. See U.S. Const., amend. 6 ; K.S.A. 2019 Supp. 22-3420(d). That right implies that courtrooms be kept open and that the public, or such portion of the public as may be conveniently accommodated, be admitted, subject to the authority of the court to exclude objectionable characters. State v. Galloway , 311 Kan. 238, 250, 459 P.3d 195 (2020). This right to a public trial extends to jury selection. Weaver v. Massachusetts , 582 U.S. ––––, 137 S. Ct. 1899, 1906, 198 L. Ed. 2d 420 (2017) ; Presley v. Georgia , 558 U.S. 209, 213, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010).

On Monday, December 11, 2017, during the voir dire of prospective jurors, most or all of the seats in the courtroom were occupied by the jury venire. As a consequence, access to the proceeding was not available to the public, including Carter's and the victims' families. No one objected at the time.

While this appeal was pending, Carter filed a motion to remand the case to the trial court to determine whether the voir dire proceedings took place in closed court. Carter requested, and this court granted, a stay of briefing until the trial court made findings of fact resolving that question. The trial court then held an evidentiary hearing, at the conclusion of which it determined that the voir dire proceedings took place in open court because, in spite of the court's invitation to make some sort of accommodation that would allow the public to observe, no one requested leave from the court to sit in on the proceedings.

On appeal, Carter contends that the proceedings were, in fact, closed to his family members and he further contends that not providing space for spectators violated his Sixth Amendment right to a public trial, which necessarily requires reversal. Carter asserts two positions: the trial court erred in its determination that the jury selection proceeding was held in open court; and, because it was not an open proceeding, reversal is required as a matter of law.

The trial court based its findings following the remand hearing on the testimony and arguments presented at the hearing. We therefore apply a bifurcated standard of review. First, without reweighing the evidence, we examine the trial court's findings of fact to determine whether they are supported by substantial competent evidence. We next apply a de novo standard of review to the ultimate legal conclusion. We do not reweigh evidence, assess witness credibility, or resolve conflicting evidence. See, e.g., State v. Betancourt , 301 Kan. 282, 290, 342 P.3d 916 (2015). The ultimate legal conclusion regarding whether a defendant's right to a public trial under the Sixth Amendment of the United States Constitution was violated is a question of law over which an appellate court has unlimited review. State v. Reed , 302 Kan. 227, 236, 352 P.3d 530 (2015).

On the Friday before the trial began, the trial judge discussed various practical matters of the trial procedure with counsel for both parties. The following dialogue took place:

"MR. MUTH [Prosecutor]: Just so I understand, the courtroom is going to be full with potential jurors so no family members for either side. There won't be room for them. Where should we direct the decedents' family?

"THE COURT: I want to emphasize that, of course, this is a public proceeding and family members particularly but the public generally, of course, is more than welcome. The problem is while we have a big courtroom, one of the bigger ones in the building, it's not big enough for the panel that we're going to need and so I don't think there's going to be room for family. But if there is, I can work with the parties to try to meet everybody's needs.

"It would not be, I'm sure, full of family members from each side. I would like, I believe, the two victims' families and certainly Mr. Carter's family representatives or persons to have the opportunity, but I don't know how that's going to work. I'll work with you all to get them in here during jury selection. It's just going to be very limited, if at all.

"So I don't know where to tell you to direct your people. I don't know if Judge Burgess or any of the other judges on this floor have jury trials. Apparently Judge Burgess does. I would say I'll work with you as best I can. If you both will talk to me when you know on Monday who's here and maybe identify one or two out of the group that might be able to fit in here, but just know they may not be able to fit. I'll do my best."

On the fourth day of the trial, the State again raised the subject of whether the proceeding was open. The following conversation took place outside the presence of the jury:

"THE COURT: We're going to make a record regarding the public.

"MR. MUTH: Judge, throughout this entire trial it's been open to the public. I think at one point when we were doing jury selection and everything else, every seat was taken by potential jurors and actual jurors. I think based on the courtroom policy there was no standing allowed by any of the spectators.

"I know there was a comment made about, hey, can we let the family in at one point and that was because we were waiting to get seats available for everybody. But I just want to make sure that the record was clear that it's been an open trial throughout the entire process. The only time that individuals were not allowed in is when there were

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