State v. Darrah

442 P.3d 1049

STATE of Kansas, Appellee,

v.Samuel DARRAH, Appellant.

No. 117,461

Supreme Court of Kansas.

Opinion filed June 21, 2019

Michelle A. Davis, of Kansas Appellate Defender Office, was on the brief for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for appellee.

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

In this multiconviction sentencing case, Samuel Darrah claims the district court abused its discretion in ordering his 100-month sentence for attempted aggravated kidnapping be consecutive to, instead of concurrent with, his hard 25 life sentence for felony murder. In support, Darrah argues that he did not personally kidnap or fatally stab the victim. He further claims the two other individuals involved in the crimes played greater roles than his. But given Darrah's leadership in the planning, coordinating, and carrying out of these serious crimes, we conclude the court did not abuse its discretion in imposing consecutive sentences under K.S.A. 2018 Supp. 21-6819(b). So we affirm.

FACTS AND PROCEDURAL HISTORY

The essential facts come from a preliminary hearing. Witnesses included Darrah's alleged coconspirators in James Croft's murder: Clinton Bascue and Darrah's girlfriend, Kamra Farrell. Darrah's close friend, Christa Martin, and Dan Kelly—Darrah's drug dealer and fellow band member—also testified.

Darrah, Farrell, and Bascue lived and did methamphetamines together in the summer of 2014. One day Kelly, their usual dealer, gave Darrah $ 3,200 to buy a supply of drugs. Darrah gave the money to Croft—also known as "Frog"—to exchange for drugs. But Croft never provided them. So Darrah told Kelly he did not have the drugs because Frog had robbed him. Kelly became upset and told Darrah to fix it.

By that November, Darrah still had not paid the money back or obtained the drugs for Kelly. Nevertheless, Darrah went with Farrell and Bascue to Kelly's house in Wichita for more drugs. Darrah told Kelly he was going to make it right by killing Croft. But Kelly did not care anymore, telling Darrah to just drop it because killing Croft would not get his money back. Darrah continued to say he would take care of it, however, which Kelly took to mean that Darrah would kill Croft. After Farrell and Darrah left Kelly's house, she and Darrah continued to discuss finding Croft and killing him.

A few days later Darrah came to his friend Christa Martin's home in the early morning with Farrell and Bascue. They all went into her garage to do drugs and talk. There, Darrah told Martin he had been robbed of $ 3,200 by an individual known as "Frog." Farrell said she hoped they could find Frog and that he could lead her to John Stark whom Farrell believed had her computer containing pictures of her deceased child.

According to Martin, Darrah had a gun and he and Farrell discussed robbing Frog. The plan was for Farrell to drop Darrah and Bascue in a field. Farrell then would pick Frog up from his home and take him to the field where they would rob him. Farrell asked Martin if she would drive a vehicle or if they could borrow one, and Martin said no. Martin left the garage at that point because she did not want any involvement in the scheme. Kacee Probst, who lived with Martin, provided similar testimony.

Farrell's testimony about the crime planning in the garage was similar to Martin's. In addition, Farrell testified she had been in contact with Croft before they had stopped at Kelly's house and Croft had told her that he knew the location of her computer. She wanted to meet with him as a step toward retrieving her computer from Stark and to meet him without Darrah and Bascue because he trusted her.

According to Farrell, Darrah was jealous of Croft, whose text messages indicated he wanted to have sex with her. So after the trio—Farrell, Darrah, and Bascue—left Martin's house, Darrah directed Farrell to drop him and Bascue off at Moccasin Road. Both men were armed—Darrah with a gun and Bascue with knives—and they waited by the roadside. According to Farrell, the plan was for her to bring Croft there and for Darrah and Bascue to rough him up—then force him to take them to Stark to retrieve Farrell's computer. Then, Farrell would punch Croft, and Darrah would shoot him to death.

Farrell dropped off Darrah and Bascue and then went to Croft's house. After spending some time together there, Croft left with Farrell to look for her computer. Without Croft's knowledge, throughout most of the encounter Darrah listened in on their conversation via a Bluetooth device on Farrell's ear.

Farrell drove Croft to the field where Darrah and Bascue were waiting. Croft became suspicious and yelled at her to stop. Farrell got out, Bascue came running up, and Darrah started shooting at the car. Bascue jumped in from the passenger side and fought with Croft as the car slid into the ditch.

Bascue then jumped out of the car and ran over to Darrah and Farrell saying he had stabbed Croft. Bascue handed Darrah the knife which Darrah started stabbing into the ground. Darrah also took apart his gun and threw the parts around in the field. Darrah instructed Farrell to call 911 and report the car stolen. After some debate, she made the call, and the three started walking away.

In the meantime, a passerby had already stopped at Farrell's car and called 911. By the time paramedics arrived, Croft was dead. Law enforcement officers soon caught up with Darrah, Farrell, and Bascue in the field nearby.

While the case was scheduled for a status conference, the parties reached a plea agreement. The State agreed to amend original charges to first-degree felony murder in violation of K.S.A. 2018 Supp. 21-5402(a)(2) and added two more counts: attempted aggravated kidnapping in violation of K.S.A. 2018 Supp. 21-5408(b), 21-5210(a), and 21-5301, a severity level 3 person felony; and aggravated robbery in violation of K.S.A. 2018 Supp. 21-5420(b)(2) and 21-5210(a), a severity level 3 person felony. Darrah agreed to plead no contest to the charges as amended. The parties had no agreement as to sentencing recommendations. The district court ultimately accepted Darrah's plea.

Before sentencing, Darrah filed a motion asking the court to exercise its discretion to impose concurrent instead of consecutive sentences. In the motion, Darrah argued that his culpability was not as severe as Bascue's and he was not as central to the plot as Farrell. So he maintained his sentence should not be greater than either of theirs and the only way to assure that was to run the counts concurrent and not consecutive.

At the sentencing hearing, the court reviewed the presentence investigation report which showed Darrah had a previous conviction, resulting in a criminal history score of D. The State requested the aggravated gridbox sentence for attempted aggravated kidnapping: 100 months. In support, the State cited K.S.A. 2018 Supp. 21-6815(c)(2)(H), which describes one aggravating factor as whenever the person being sentenced is the leader, recruiter, instigator, or manager of a conspiracy between two or more persons to commit a crime.

In response to the motion, the State recited facts from the preliminary hearing to show Darrah was the leader of the conspiracy, specifically including the following: (1) the motive for the crimes was to recoup money stolen from Darrah by Croft; (2) Darrah acquired the gun used in the crime; (3) Darrah's girlfriend, Farrell, had a motive to get her computer back from Stark, but not...