State v. Keys

510 P.3d 706

STATE of Kansas, Appellee,

v.Luqman Yusuf KEYS, Appellant.

No. 121,866

Supreme Court of Kansas.

Opinion filed June 3, 2022.

Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause, and was on the briefs for appellant.

Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the briefs for appellee.

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

A jury convicted Luqman Yusuf Keys of felony murder and aggravated robbery. On direct appeal, Keys argues the indictment forming the basis of his conviction was statutorily and constitutionally defective. Keys also claims the district court erred in several respects: in denying his motion to dismiss based on selective prosecution, in declaring a witness unavailable to testify at trial, and in refusing to instruct the jury on self-defense. Finally, Keys contends the cumulative effect of these errors violated his constitutional right to a fair trial. Based on the analysis set forth below, we affirm Keys' convictions.

FACTUAL AND PROCEDURAL BACKGROUND

On June 25, 2017, Keys went to Cole Gilbert's apartment in Topeka to buy marijuana. Arden King, an acquaintance of Keys who had set up the meeting, also was present. Keys was armed with a gun and fatally shot King during the attempted drug deal. An autopsy revealed King's cause of death was a gunshot wound to the chest.

A grand jury indicted Keys on charges of felony murder, aggravated robbery, and aggravated burglary. The indictment alleged aggravated robbery and aggravated burglary as alternative underlying felonies to support the felony-murder charge. The grand jury later issued a superseding indictment, which added a charge of criminal possession of a firearm. Keys entered a no contest plea to the firearm charge.

The case proceeded to trial on the remaining charges, where the jury heard conflicting testimony about the events leading to King's death. Gilbert testified he used King as an intermediary to contact Keys on his behalf. Gilbert and Keys arranged for the drug transaction to occur outside Gilbert's apartment. Gilbert denied giving Keys permission to come inside his apartment. Gilbert and King were outside when Keys arrived with an unidentified Black male. After King went inside to get the marijuana, Keys asked if Gilbert had a scale. When Gilbert went to get the scale, Keys and the unidentified male followed Gilbert inside the apartment, so Gilbert assumed the drug sale would take place there. Gilbert and King sat down on the couch, and Gilbert placed a bag of marijuana on the scale. According to Gilbert, Keys pulled a gun out of his pocket and pointed it at Gilbert and King. Gilbert testified King stood up and said, " ‘Really? Is this necessary?’ " Pointing the gun at King, Keys responded, " ‘You really don't think I won't shoot you,’ " and called him a "bitch" before shooting him close to a minute later. Gilbert claimed that after the shooting, Keys and the other male took everything off a nearby table, including the marijuana and a jar containing about $76, before running from the apartment. Gilbert denied that any confrontation or argument occurred before the shooting.

Keys presented a different account of the incident. Keys testified King contacted him about buying marijuana from Gilbert. Keys later communicated with Gilbert on Facebook Messenger and agreed to buy 14 grams of marijuana for $140. Keys said an acquaintance named Chris came with him to Gilbert's apartment because Keys had agreed to sell Chris some of the marijuana Keys planned to purchase. Keys said when they arrived at the apartment building, Gilbert and King were waiting outside. Keys testified he brought a gun with him because he did not know Gilbert. Keys claimed that when he lifted his shirt to pay for the marijuana, Gilbert saw the gun and showed interest in buying it. Keys said he did not want to display his gun outside, so he went inside the apartment with Gilbert and King while Chris remained outside. Keys said that once inside the apartment, King and Gilbert sat down on a couch in the living room, while Keys stood on the other side of a small table in front of the couch. Keys testified he and Gilbert discussed how much the gun was worth, and he pulled out the gun to show it worked. Keys said when he pulled the slider back, it got caught on the safety. According to Keys, King then stood up and came toward him with a raised fist, so Keys pulled the trigger and shot King. Keys denied that he intended to kill King. Although King did not have a weapon, Keys noted he was outnumbered by King and Gilbert and claimed he was scared when he saw King advance toward him. Keys said that after shooting King, he immediately left the apartment. Keys denied stealing any marijuana or cash and denied that he intended to rob Gilbert or break into Gilbert's apartment. Keys claimed he only went there to buy marijuana. Keys admitted that possessing marijuana was a crime.

The jury acquitted Keys of aggravated burglary and did not reach a verdict on the felony murder and aggravated robbery charges. As a result, the district court declared a mistrial on those counts.

After the mistrial, the grand jury issued a second superseding indictment that modified the felony-murder charge by adding the commission of another alternative underlying felony on which the felony-murder charge could be based: distributing or possession with intent to distribute a controlled substance.

The case went to trial for a second time, where Gilbert presented essentially the same testimony as he did at the first trial. This time, Keys did not testify so the State requested permission to introduce a transcript of his testimony from the first trial. Over defense counsel's objection, the district court permitted the transcript to be introduced into evidence, and the State had Keys' testimony from the first trial read into the record.

In this second trial, the jury convicted Keys of felony murder and aggravated robbery. At sentencing, the district court imposed a hard 25 life sentence for felony murder, a consecutive 94-month sentence for aggravated robbery, and a concurrent 8-month sentence for criminal possession of a firearm. Keys filed this timely appeal.

ANALYSIS

Keys raises five issues on appeal: (1) The second superseding indictment was statutorily and constitutionally defective, (2) the district court erred in denying his motion to dismiss for selective prosecution, (3) the district court erred in declaring a witness unavailable to testify at trial, (4) the district court erred in refusing to instruct the jury on self-defense, and (5) the cumulative effect of these alleged errors deprived him of his constitutional right to a fair trial. We address each issue in turn.

1. The second superseding indictment

Keys argues the second superseding indictment was defective in two respects. First, he contends the State lacked statutory authority under K.S.A. 2020 Supp. 22-3015 to amend the indictment. Second, Keys claims the second superseding indictment violated his constitutional right to due process by adding another underlying felony of distributing or possessing with intent to distribute a controlled substance. Keys also makes a separate argument that the second superseding indictment violated the statutory and constitutional prohibition against double jeopardy. The State responds that Keys failed to preserve these arguments for appeal and that they otherwise fail on the merits.

Preservation

Before we can address the substance of Keys' arguments, we first must consider whether he preserved them for appeal.

After the grand jury issued the second superseding indictment, the State filed a motion asking permission to introduce into evidence Keys' testimony from the first trial, citing multiple exceptions to the rule prohibiting admission of hearsay testimony. See K.S.A. 60-459 ; K.S.A. 2020 Supp. 60-460.

Keys objected to the State's motion, challenging the admission of his prior testimony on grounds it was irrelevant to the charges in the second superseding indictment. Keys also objected on grounds that the State's use of his prior testimony would violate his constitutional right to due process. Keys argued he was unaware when he testified at the first trial that his testimony would provide a basis for the State to retry him for felony murder under a new theory based on his intent to distribute marijuana. In support of his due process objection, Keys alleged his testimony was not knowing or voluntary, and its admission would render his trial counsel ineffective for allowing him to testify in a manner the State could use against him. After considering written and oral argument from the parties, the district court granted the State's motion to admit Keys' prior testimony.

This procedural history reflects that Keys sought to prevent the State from introducing his testimony from the first trial into evidence at the second trial. Yet nothing in the record establishes Keys ever challenged the State's authority to obtain the second superseding indictment or otherwise raised a constitutional due process argument about proceeding with the amended charges in the second superseding indictment. Generally, issues not raised before the district court cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). This general rule includes constitutional grounds for reversal asserted for the first time on appeal. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018). A defendant should first challenge a charging document in the district court. A defendant who fails to challenge a charging document in the district court must establish on appeal that an exception to the preservation rule should be applied. State v. Dunn , 304 Kan. 773, 819, 375 P.3d 332 (2016) ; see State v. Harris , 311 Kan. 371, 375, 461 P.3d 48 (2020) (setting forth exceptions to the preservation rule an appellate court may invoke...