State v. Franklin

456 P.3d 1016 (Table)

STATE of Kansas, Appellee,

v.Willie K. FRANKLIN, Appellant.

No. 120,378

Court of Appeals of Kansas.

Opinion filed February 7, 2020

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Malone and Standridge, JJ.

MEMORANDUM OPINION

Per Curiam:

Willie K. Franklin was convicted at his jury trial of involuntary manslaughter after the gun he was holding discharged and shot Lei Ala Turner. Franklin now appeals, arguing: (1) the evidence was insufficient to support the jury's finding he acted recklessly; and (2) the prosecutor erred during closing arguments when she referenced a "higher standard" while explaining the standard of care required to find recklessness. Finding no error, we affirm.

FACTS

Franklin was charged with involuntary manslaughter and criminal possession of a firearm. Franklin pled not guilty to both counts and was bound over for trial. At trial, Lakiticia Enclarde and Lariell Oakley testified about events that occurred on December 27, 2017, in Enclarde's apartment. Franklin did not testify in his defense.

The trial testimony reflected on December 27, 2017, Franklin gathered with some of his friends at Enclarde's apartment in Lawrence. Those friends included five people: Enclarde; Franklin; Lei Ala Turner (the victim and Enclarde's sister); Oakley (Enclarde's cousin); and Daylynn Blann (Franklin's friend). They all planned to go to Kansas City later that night.

Franklin brought a gun and a bottle of whiskey to Enclarde's apartment. Shortly after Franklin arrived, he showed the gun to Enclarde and asked her to put the gun away for him. Enclarde put the gun in her bedroom closet. Oakley testified she did not drink, but estimated Franklin, Turner, Blann, and Enclarde together drank "half" to "all" of the bottle of whiskey over several hours. But Enclarde testified they finished the first bottle of whiskey and Franklin went to the store to get another bottle as well as "a thing of mimosa." Blann rolled a marijuana joint and shared it with Oakley and Franklin.

When the group prepared to leave for Kansas City, Franklin asked Enclarde to retrieve his gun. At that point, Oakley, Franklin, Turner, and Blann were all in the kitchen. Oakley testified Enclarde placed the gun on the kitchen table. Enclarde said she put the gun on the table instead of handing it to Franklin because he was talking on the phone. Enclarde then sat down in the living room. According to Oakley, Franklin picked the gun up and pointed it towards her stomach and leg. She asked Franklin to stop and to remove the ammunition. Franklin complied, removing the magazine and chambered bullet and placed them both on the kitchen table. He then pointed the gun in Oakley's direction and dry-fired it. Oakley testified she saw Franklin load the magazine with the bullet that had been inside the chamber. She then stopped paying attention to Franklin and looked at her phone.

Next, Oakley heard a "loud pop or ... bang"; but she did not see who fired the gun because she was still on her phone. She turned to see if anyone was hurt and saw Turner holding onto Franklin's shoulders. Oakley spotted blood on Turner's lower back. According to Oakley, Franklin tried to push Turner off of him, and appeared unaware of Turner's injury. Enclarde also heard the noise from the living room. She went into the kitchen and saw Turner holding onto Franklin and saw blood on Turner's shirt. Enclarde testified Franklin still had the gun in his hands and said, "I didn't mean to do this." At some point, Turner collapsed onto the floor. Enclarde called 911, while Oakley meanwhile tried to perform CPR on Turner. Enclarde said Franklin was kneeling on the floor next to Turner and appeared surprised. She yelled at Franklin to get out of her apartment, so Franklin left with Blann and took his gun, the whiskey, and the marijuana with him. Turner died in the ambulance on the way to the hospital. Oakley and Enclarde both testified Franklin was the only person in the apartment who had a gun.

The coroner testified Turner died from a gunshot wound to the chest. From the markings around the wound, the coroner said the bullet first contacted Turner's chest and then exited through her lower back.

The jury convicted Franklin of both charges. The district court sentenced Franklin. On August 27, 2018, Franklin filed a notice of appeal and a motion to appeal out of time. The district court granted his motion, finding Franklin was furnished with an attorney who failed to perfect and complete an appeal. See State v. Phinney , 280 Kan. 394, 401-02, 122 P.3d 356 (2005) (a court must allow an appeal out of time if the defendant is furnished with an attorney who failed to perfect and complete an appeal).

ANALYSIS

The State presented sufficient evidence Franklin acted recklessly.

On appeal, Franklin concedes he was holding the gun when it fired but argues the evidence was insufficient to support the jury's finding his conduct under the circumstances rose to the level of recklessness.

When the sufficiency of the evidence is challenged on appeal in a criminal case, this court determines whether the evidence, when reviewed in the light most favorable to the State, was sufficient for a rational fact-finder to conclude the defendant was guilty beyond a reasonable doubt. In doing so, this court does not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018). It is only in rare cases when the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Torres , 308 Kan. 476, 488, 421 P.3d 733 (2018) ; State v. Matlock , 233 Kan. 1, 5-6, 660 P.2d 945 (1983).

Here, the State charged Franklin with involuntary manslaughter, which is defined as "the killing of a human being committed ... [r]ecklessly." K.S.A. 2018 Supp. 21-5405(a)(1). "A reckless killing is one done under circumstances showing a realization of the imminence of danger and a conscious disregard of that danger." State v. McCullough , 293 Kan. 970, 977, 270 P.3d 1142 (2012). The district court instructed the jury it had to find the following facts beyond a reasonable doubt in order to convict Franklin of involuntary manslaughter:

1. Franklin killed Turner.

2. The killing was done recklessly .

3. The act occurred on or about December 27, 2017, in Douglas County.

Under K.S.A. 2018 Supp. 21-5202(j), "A person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation."

When viewed in the light most favorable to the prosecution, the evidence shows:

• Franklin initially gave the gun to Enclarde for her to keep safe;

• Franklin drank whiskey over a period of several hours and smoked a marijuana joint at some point;

• Franklin casually pointed a loaded gun at Oakley;

• Franklin, at the request of Oakley, removed the magazine and bullet from the gun's chamber;

• Franklin later dry-fired the gun in Oakley's direction;

• Oakley testified she saw Franklin reload the single bullet in the gun's magazine;

• Oakley heard a gunshot, then saw Turner bleeding near Franklin;

• The gun was still in Franklin's hands after it had been fired;

• Turner died from the gunshot wound ; and

• Franklin was the only person at Enclarde's apartment with a gun.

Viewed in the light most favorable to the State, sufficient evidence supports Franklin's conviction for involuntary manslaughter under K.S.A. 2018 Supp. 21-5405(a)(1).

Our conclusion is supported by several Kansas Supreme Court cases. In State v. Gonzalez , 307 Kan. 575, 586-88, 412 P.3d 968 (2018), the court found sufficient evidence supported the defendant's conviction for reckless second-degree murder under similar facts. In Gonzalez , the defendant pointed a loaded gun at his friends while intoxicated. His friends asked him to stop. Gonzalez held the gun nearly against his friend's neck when it discharged. At trial, Gonzalez testified he did not know the gun was loaded and did not intend to kill his friend. The court concluded Gonzalez' conduct—chambering a round, holding the gun nearly against the victim's neck, and pulling the trigger—established not only reckless behavior, but also circumstances manifesting extreme indifference to human life. 307 Kan. at 587-88.

In State v. Deal , 293 Kan. 872, 882, 269 P.3d 1282 (2012), the defendant confronted the victim. During their argument, the victim tried to hit Deal with a tire iron. Deal wrestled the tire iron away from the victim and, without an intent to kill, struck the victim in his shoulder, neck, and head area. The court held the evidence was sufficient to establish reckless second-degree murder because it showed "a realization of danger and a conscious and unjustifiable disregard of that danger in circumstances manifesting an extreme indifference to the value of human life." 293 Kan. at 885-86.

Similarly here, Oakley and Enclarde's testimony, as well as other evidence, provided sufficient support for the conclusion Franklin acted recklessly. But unlike Gonzalez and Deal , in this case, Franklin was charged only with involuntary manslaughter, which is a lesser included offense of reckless second-degree murder, so the State did not need to prove the additional element that the reckless killing occurred under circumstances manifesting extreme indifference to the value of human life. See Gonzalez , 307 Kan. at 580-81.

The only support Franklin offers for his argument is State v. Mourning , 233 Kan. 678, 664 P.2d 857 (1983), which found driving under the influence does not, standing alone,...