State v. Jordan

537 P.3d 443

STATE of Kansas, Appellee,

v.Brandon Keith JORDAN, Appellant.

No. 124,724

Supreme Court of Kansas.

Oral Argument Held May 18, 2023.

Opinion Filed October 20, 2023.

James M. Latta, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jodi Litfin, deputy district attorney, argued the cause, and Kris W. Kobach, attorney general, was with her on the brief for appellee.

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

After a law enforcement officer responded to a bank where Brandon Keith Jordan was trying to pass a fraudulent check, Jordan led the officer on a high-speed chase that ended in a fatal car crash. Jordan was convicted of several crimes, including felony murder based on the underlying inherently dangerous felony of fleeing or attempting to elude a police officer.

In this direct appeal, Jordan raises six claims of error. First and foremost, he contends that his convictions for felony murder and fleeing and eluding a police officer are tainted by an alternative-means error. Alternative means is a term we have adopted to describe a single offense that can be committed in more than one way. Alternative-means issues arise when the statute and jury instructions incorporating that statute list distinct alternatives for an element of the crime. Presenting an alternative-means crime to the jury can raise questions about whether jurors unanimously agreed on the means supporting their guilty verdict. But when a statute and any jury instruction incorporating that statute merely describe a material element of a crime or a factual circumstance that would prove the crime, such descriptions are "options within a means," not alternative means. Options within a means do not create distinct alternatives for an element of the crime and thus do not raise jury unanimity concerns.

Jordan argues the jury instructions on his fleeing-and-eluding charge created an alternative-means crime by listing more than one felony for which he was attempting to elude capture. But we hold that the underlying felony for which a defendant is attempting to elude capture under K.S.A. 2019 Supp. 8-1568(b)(2) is merely an option within a means and Jordan failed to establish error.

Second, Jordan claims the district court lost subject matter jurisdiction when the State substituted a grand jury indictment for a pending criminal complaint. But the indictment was sufficient to invoke the district court's jurisdiction under our established precedent, and the substitution of the indictment did not deprive the court of jurisdiction.

Third, in the alternative to his jurisdictional challenge, Jordan argues the substitution of the indictment deprived him of due process of law. But the indictment gave Jordan adequate notice of the charges and a meaningful opportunity to defend against them. Thus, the substitution procedure complied with Jordan's due process rights.

Fourth, Jordan argues that the statements he made to police should not have been admitted as evidence at trial because they were involuntary. But Jordan failed to lodge a timely and specific objection to this evidence at trial as required by K.S.A. 60-404. Jordan's failure to do so precludes appellate review of the issue.

Fifth, Jordan contends the prosecutor erred during closing argument by telling the jury that a State's witness had no motive to be untruthful. But the record confirms that the prosecutor's comment was tied to the evidence and made during a broader discussion of legitimate factors bearing on a witness' credibility. Thus, the statement fell just within the bounds of proper argument.

Finally, Jordan argues the cumulative impact of these trial errors deprived him of a fair trial. But the cumulative-error doctrine does not apply because Jordan failed to establish any error. For these reasons, we affirm the judgment of the district court.

FACTS AND PROCEDURAL BACKGROUND

On October 30, 2019, Jordan went to Fidelity State Bank in Topeka. Claiming he was Christopher Tabor, Jordan picked up a debit card linked to an account he had recently opened in Tabor's name. Jordan also deposited in part and cashed in part a check made out to Tabor, endorsing the check in Tabor's name. The check was fraudulent.

On November 7, 2019, Jordan pulled up to the drive-through of a different Fidelity State Bank location in Topeka. Shelley Cunningham was riding in the front passenger seat. Jordan tried to pass another check made out to Tabor. But the bank had flagged the account as fraudulent. So employees called 911 and tried to stall Jordan.

Lieutenant Michael Marnach with the Kansas Highway Patrol heard the call from dispatch. He responded to the scene, pulling up behind Jordan. Lieutenant Marnach was in uniform and driving a marked patrol vehicle. Jordan noticed Lieutenant Marnach in the rearview mirror and told Cunningham there was a police officer behind them. Jordan left the bank, turning onto Gage Boulevard. Lieutenant Marnach followed.

Jordan accelerated as he drove down Gage Boulevard, weaving in and out of traffic. Jordan then turned right onto a residential street. As Lieutenant Marnach turned onto the same street, he activated his lights and sirens. After following Jordan for about a block and a half, Lieutenant Marnach looked at his speedometer and saw he was going over 70 miles per hour. Jordan eventually ran a stop sign and broadsided an SUV. The SUV's driver, Dennis Affolter, later died of injuries he sustained in the crash.

At the scene of the accident, Jordan told two officers from the Topeka Police Department that he was Christopher Tabor. And he continued to identify himself as Tabor even after he and Cunningham were transported to the hospital. Eventually, officers determined Jordan's real identity. While in the hospital, Jordan told law enforcement he fled because he feared going back to jail.

Law enforcement searched the car Jordan had been driving. They found a laptop, a credit card in Tabor's name, a notebook containing what law enforcement believed to be bank account and routing numbers, a container with methamphetamine, and a pipe with marijuana. The laptop had software that enabled users to alter checks.

A reconstruction of the accident determined that Jordan was going about 86 miles per hour in a 35-mile-per-hour zone when he struck the driver's side of the SUV. The SUV was going about 30 miles per hour.

The State filed a criminal complaint charging Jordan with several offenses. But about a week later, a grand jury indicted Jordan of one count of first-degree felony murder, one count of fleeing and eluding, two counts of interference with law enforcement, two counts of forgery, one count of identity theft, one count of driving with a suspended license, and one count of reckless driving. The district court granted the State's motion to substitute the grand jury indictment and dismissed the complaint.

At trial, Cunningham testified that Jordan started speeding up right after leaving the bank's drive-through. She remembered that Jordan said he was not going to stop. She also remembered asking him to stop. But she could not recall whether she made that request before or after Jordan said he was not going to stop.

Jordan testified in his own defense. Jordan admitted that on the day of the crash, he was at the bank trying to pass a check written out to Tabor. He had been waiting in the bank drive-through for an unusually long time and was afraid someone may have called the police. When he saw Lieutenant Marnach's patrol vehicle, Jordan decided to leave.

Jordan admitted he was driving "pretty fast" down Gage Boulevard because he wanted to get away from the bank. But he said he did not see a police vehicle pursuing him. Jordan testified the windows of the car were up and the radio was on, so he never heard any sirens.

Jordan explained that he was wearing only his reading glasses at the time, even though he needs bifocals. As he approached the intersection where the crash occurred, he thought he saw lights in the rearview mirror. He asked Cunningham if there were lights behind them, and she confirmed there were. He was squinting and looking in the rearview mirror when he heard Cunningham yell, "look out," and then he hit the SUV.

Jordan thought he was going 55 to 60 miles per hour before the accident. He denied telling Cunningham he was not going to stop. But he admitted using the name Christopher Tabor several times after the accident.

The jury convicted Jordan on all counts. The district court sentenced Jordan to a controlling term of life imprisonment without the possibility of parole for 25 years.

Jordan directly appeals his convictions to our court. Jurisdiction is proper. K.S.A. 2022 Supp. 22-3601(b)(3)-(4) (life sentence and off-grid crimes appeal directly to Supreme Court).

ANALYSIS

As noted, Jordan raises six issues on appeal. We address these issues in the order presented in his briefing.

I. Jordan's Felony-Murder and Fleeing-and-Eluding Convictions Are Not Tainted by an Alternative-Means Error

Jordan argues his convictions for felony murder and fleeing and eluding must be reversed due to an alternative-means error. Jordan was charged with, and the jury was instructed on, committing felony fleeing and eluding under K.S.A. 2019 Supp. 8-1568(b)(1) (committing certain acts during police pursuit) and K.S.A. 2019 Supp. 8-1568(b)(2) (attempting to elude capture for any felony). We have held that these two subsections create alternate means of committing the offense. See State v. Davis , 312 Kan. 259, 266, 474 P.3d 722 (2020) (fleeing-and-eluding statute sets out alternative means in subsections [b][1] and [b][2]). The fleeing-and-eluding charge also served as the inherently dangerous felony supporting Jordan's felony-murder charge. See K.S.A. 2019 Supp. 21-5402(c)(1)(R). Thus, both Jordan's felony-murder charge and his fleeing-and-eluding charge were alternative-means crimes. See 312 Kan. at 262, 474 P.3d 722 (felony murder is alternative-means crime if...