State v. Knox

301 Kan. 671

347 P.3d 656

STATE of Kansas, Appellee

v.Darren KNOX, Appellant.

104,266.

Supreme Court of Kansas.

April 10, 2015.

Rachel L. Pickering, assistant public defender, 3rd J.D., argued the cause and was on the brief for appellant.

Jennifer L. Myers, special assistant district attorney, argued the cause, and Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

Opinion

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

A jury convicted Darren Knox of premeditated first-degree murder under K.S.A. 21–3401(a). In this direct appeal from that conviction, he raises six issues, which we have reordered. None of the issues presents reversible error. We hold:

(1) Knox was not entitled to an instruction on self-defense because the evidence, even when viewed in the light most favorable to Knox, established Knox's use of deadly force was not legally justified. Rather, Knox provoked the confrontation;(2) The district court did not commit clear error by failing to instruct on second-degree intentional murder. In light of the strong evidence of premeditation, Knox does not firmly convince us the jury would have returned a different verdict had the instruction been given;

(3) While the prosecutor committed misconduct during closing arguments by vouching for the credibility of some witnesses, discussing facts not in evidence, and disparaging the defense, the statements did not deny Knox a fair trial;(4) The district court did not err in excluding evidence suggesting a third party might have had a motive to commit the murder because no evidence connected a third party to the crime;

(5) Knox did not make a sufficient proffer to preserve his argument that the district court violated his confrontation rights by limiting cross-examination of a State witness; and

(6) The one presumed instructional error and the several instances of prosecutorial misconduct did not cumulatively deprive Knox of a fair trial.

Facts and Procedural Background

On August 3, 2008, around 1 p.m., Krystal Fears was in the upstairs bedroom of her house when she heard what she thought were fireworks. She ran to the window. Outside, three young men were walking down the street shooting at the passenger side of a white Mustang that had pulled into the driveway of a house across the street. The driver of the Mustang was Fears' friend, Lafayette Morris. Morris tried to exit the car and run, but he collapsed from a mortal gunshot wound. The three men ran up the street, and Fears ran out of her house to help Morris.

Fears initially told detectives that two of the three men were shooting at Morris' Mustang but later she could not remember how many men had fired shots. During Knox's first trial, which ended in a hung jury, Fears testified to seeing Morris with a gun firing back at the three men. But she did not remain consistent on this point. In Knox's second trial, she testified that Morris did not have a gun. Investigators never found a handgun in Morris' possession or on the scene.

Fears' sister was also home when the gunshots began. She too looked out her upstairs window to see three men in the street. She only remembered seeing one man fire a gun at Morris' car, and she could not recall what the other two men were doing or if they had weapons.

Fears' mother heard the gunshots from the downstairs kitchen and ran to the front door. She told investigators that she saw two young men in the street; one was shooting at Morris and the other was running. She saw Morris get out of his Mustang and fall as he tried to run.

At the scene, investigators found Morris' body lying in a pool of blood near the driver side of the Mustang. A subsequent autopsy revealed that a fatal 9mm bullet had entered the right side of Morris' chest, collapsed both of his lungs, and came to rest in the soft tissue of his left arm. The Mustang had three bullet holes in its passenger side window and three bullet holes in its passenger side quarter panel. Outside the Mustang on the passenger side, investigators collected three fired .40 caliber cartridges and four fired 9mm cartridges. There were no bullet holes on the driver side, no fired cartridge cases inside the Mustang, and no fired cartridge cases outside the Mustang on the driver side.

Less than 2 weeks after Morris' murder, an acquaintance of Morris', Darrius Freeman, told his probation officer that he was being shot at and threatened; he wanted to document who was after him in case he had to defend himself. Freeman said that after Morris' murder, “RonRon” called him and told him, “We got your boy Laffy [Lafayette Morris], now you and Shookie next.” The probation officer referred Freeman to a police detective. Although Freeman talked to the detective about the phone call, he would not disclose any information about Morris' murder because he did not want to be a “snitch.” The record does not clearly establish whether Freeman or investigators knew “RonRon's” legal name at that point, but at the second trial the jury heard a recorded conversation in which Knox identified himself by using that nickname.

A little over a month after Freeman's initial report to his probation officer and the detective, Freeman decided to provide additional information about Morris' murder. The change of mind occurred after Freeman was charged with federal crimes and reached a plea agreement that obligated him to cooperate with the investigation of Morris' murder. According to Freeman's statement, on the day of Morris' murder, Freeman heard gunshots as he left a house located about a block from where Morris was shot. Freeman hid on the side of the house. After the shots stopped, he saw one of his longtime enemies—Chris Holliday—and three other men—Mack Calhoun, Casey Ellis, and “RonRon”—holding guns and running to a nearby orange Avalanche SUV. Freeman recognized the vehicle as belonging to Holliday. The Avalanche was parked in front of a white truck that Freeman knew belonged to another enemy, Darren Allen. After the men entered the vehicles, they drove away. Freeman also informed police that the orange Avalanche was painted black soon after. And law enforcement did later pick up a black Avalanche, which clearly used to be orange that contained Holliday's identifying information. Although Freeman picked others out of photographic lineups, he was unable to identify Knox.

Armed with the new information from Freeman, investigators went back to Fears, who was less than eager to cooperate further. When detectives finally obtained an interview with her, they showed her a black and white lineup that included Knox's picture and asked if she could identify the primary shooter. She asked to see the photographs in color, and from the color lineup she identified Knox as the primary shooter. At trial, the defense attacked the credibility of this identification because Fears had labeled Calhoun as the primary shooter in a previous photographic lineup. Moreover, Fears had testified prior to trial that officers “hinted” at which photograph she should pick, though she clarified that she only meant that the officers told her Knox's name after she had picked his photograph. Fears' mother also picked Knox out of the same color lineup. But Fears' sister could not identify anyone from any lineup.

By the time investigators linked Knox to Morris' murder, Knox was incarcerated on not-yet related charges. He had been arrested about a week after Morris' murder for unlawful possession of a .40 caliber Taurus pistol. That charge arose when Kansas City police officers searched an SUV incident to a traffic stop. The officers found the Taurus pistol directly below the back passenger seat occupied by Knox. Subsequent ballistics testing revealed that the .40 caliber cartridges found at the scene of Morris' murder were fired from that Taurus pistol.

The State charged Knox with premeditated first-degree murder. Prior to trial, the State filed two motions in limine; one seeking to prohibit evidence of drugs and guns that had been found in the house at which Morris was shot and another seeking to prohibit evidence of drugs and a rifle found stashed between the center console and passenger seat of Morris' Mustang. After a hearing on the motions and over defense objection, the district court granted the motions in limine, finding the evidence not relevant or probative to the case.

Knox and Calhoun were originally tried in November 2009 as codefendants, but the trial ended in a mistrial after the jury could not come to a verdict. Knox's second trial—without Calhoun as codefendant—began in December 2009. Fears, the State's first witness, expressed hostility throughout her trial testimony. She testified that she was frustrated, did not want to be involved, and did not cooperate with police. She also admitted that her testimony was inconsistent at points—inconsistencies the defense readily elicited. Freeman testified as well, and the defense questioned him extensively on the plea agreement that led to his cooperation in this case. Also, Freeman equivocated when defense counsel asked him whether he knew “RonRon's” last name before law enforcement officers told him. When asked why it took him so long to come forward with information, Freeman testified that he wanted to get Morris' murderers himself, but once incarcerated he knew that could not happen. Fears' mother and sister also testified, mostly corroborating Fears' version of events but differing in some details. In addition, the State called various law enforcement officers and forensics experts. Knox presented one witness after the State rested, a man who took photographs and measurements of the location of the murder (about a year after the murder) to provide the jury with the witnesses' viewpoints and show the distances involved.

During the instruction conference, Knox requested a self-defense instruction based on the fact that no witnesses saw the shooting...