State v. Sean

399 P.3d 168

STATE of Kansas, Appellee,

v.Dang SEAN, Appellant.

No. 114,417

Supreme Court of Kansas.

Opinion filed August 4, 2017.

Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Malone, J.

Dang Sean appeals his convictions of first-degree premeditated murder and kidnapping. This is a companion case to State v. Jones , No. 113,409, an appeal from convictions arising out of the same series of events presented in this case. Sean raises eight issues in his appeal, alleging (1) a denial of his Fifth Amendment right to counsel; (2) multiple claims of prosecutorial error; (3) error in the admission of bad acts evidence; (4) error in the admission of certain hearsay statements; (5) error in the denial of his motion for mistrial; (6) a violation of his Confrontation Clause rights; (7) error in the admission of sympathy evidence; and (8) cumulative error compelling reversal. We reject Sean's claims and affirm his convictions and sentence.

FACTS AND PROCEDURAL BACKGROUND

On January 16, 2013, Shawn Lindsey's body was discovered by a passerby off a road near the Humane Society in Wichita, Kansas. The body had ligature marks on the wrist, and there was evidence someone had dragged the body to the spot. The forensic pathologist who performed an autopsy testified that the cause of death was methamphetamine toxicity and the manner of death was homicide.

Sean was charged with first-degree premeditated murder, felony murder, and aggravated kidnapping of Lindsey. Justin Jones (Justin) and Jason Jones (Jason) were also charged in connection with Lindsey's murder, and Phomphikak Phouthalaksa (Air), Aaron Stricker, and Anthony Garza were charged in connection with his kidnapping. The defendants were tried separately.

The State's case against Sean was based largely on the eyewitness testimony of Garza, an acquaintance of both Sean and Lindsey. The State secured Garza's testimony by agreeing to amend his charges down from murder and aggravated kidnapping to a single count of kidnapping. Will Coleman, an employee of Sean, corroborated much of Garza's testimony. Through these witnesses and others, the State presented evidence to establish the following facts.

Sean and Lindsey opened an auto shop together in 2012 but cut business ties by the end of the year. In January 2013, Lindsey was in debt to Sean for using the company credit card and account without permission and for stealing parts from the shop. The State introduced evidence that the debt had been accruing for some time, and that by the end of 2012, Sean had grown impatient with Lindsey, demanding repayment and threatening via text message to "repo" and "crack sum fuckn heads" if Lindsey did not comply. In November 2012, Sean texted Lindsey and demanded Lindsey turn over his truck and come to the shop. He also texted Lindsey to "get zip tie ready."

On Friday, January 11, 2013, Garza called Sean to tell him he was coming to the shop. Sean asked Garza to pick up Lindsey on his way there. Garza went to Lindsey's house around 4:30 p.m., accompanied by his girlfriend's 17–year-old nephew Reuben Carrion, Jr., and his friend, Stricker. The men arrived at Lindsey's house right as Lindsey and his girlfriend, Chelsea Bernhard, were returning from an errand. The men talked inside the house while Bernhard took a phone call in the other room. When Bernhard finished her phone call, Lindsey and Garza said they were going to the shop and that she should come by, too. The men left for the shop and Bernhard followed later.

Carrion dropped Garza, Lindsey, and Stricker off at the shop and left. Sean and his employees, Air, Justin, Jason, and Coleman, were inside. Lindsey and Sean talked about Lindsey's debt until the conversation became heated. Sean began beating Lindsey, knocking him to the ground. Sean then demanded that Lindsey get his truck. At 6:18 p.m., Coleman texted Lindsey's ex-girlfriend that Lindsey had just been "beat down."

After the beating, Lindsey, Stricker, and Jason left to look for Lindsey's truck. The State posited that Sean wanted the truck as satisfaction or collateral for the debt. While they were looking for the truck, Garza received a phone call from Justin's phone and was told that Sean had gone home for awhile but wanted Lindsey zip-tied by the time he got back to the shop. The men did not find Lindsey's truck and returned to the shop.

Bernhard arrived at the shop but could not get inside. Lindsey met her at the door and told her through the glass that he could not leave and that she should go get his friend Neeley. Bernhard left to find Neeley.

Sean, carrying a duffel bag, returned to the shop. Shortly thereafter, Sean instructed Garza to zip-tie Lindsey. Garza zip-tied Lindsey's arms to a chair behind his back and zip-tied his feet. At this point, Coleman left the shop after asking Sean for permission to do so.

Sometime after Coleman left, Sean handed Jason a bag of methamphetamine and Justin looked for a heat source. Sean slapped Lindsey's arm and injected him with a large syringe full of the methamphetamine while Justin held the arm in place. Sean asked Lindsey if it burned, and Lindsey replied, "Yeah, it does burn. Please stop, please stop, please stop. You don't have to do this, I'm going to pay you."

Once Sean finished injecting Lindsey, Air brought in an electric fence, which Jason and Justin wrapped around Lindsey and then hooked up to a car battery starter. Sean pulled an airsoft pellet gun and a firearm from his bag and began shooting Lindsey's shins with the airsoft gun. Sean then loaded the firearm and pointed it at Lindsey, taunting him. Sean also shot at the battery starter with the airsoft gun in an effort to turn on the electric fence. During this time, Lindsey started shaking and bouncing his feet up and down, which Garza took to be a sign that the methamphetamine was affecting him.

After Sean failed to turn the battery charger on with the airsoft gun pellets, someone removed the electric fence from around Lindsey. Lindsey was shaking violently by that point and going stiff, and Garza heard someone say that "he's about to go." Lindsey asked Garza to cut the zip ties because they were hurting him. Sean told Garza to leave the wrist ties but to cut the ties from Lindsey's ankles so they could take him to the hospital. Jason and Sean then loaded Lindsey into a black Chevy Silverado. Garza left the shop shortly thereafter at Sean's direction.

A security camera in the Humane Society parking lot showed the driveway to the area where Lindsey's body was discovered days later. Just after 10:47 p.m., the camera recorded headlights in the area. A dark-colored vehicle with a bed left shortly thereafter. The State posited that this was the same black Silverado that left the auto shop with Jason, Sean, and Lindsey and that it was traveling in that area to dump Lindsey's body.

Noal Reynolds, an employee of the Pleasures nightclub, testified for the defense. He stated that Sean and Air were at Pleasures on January 11, 2013, from 11:30 p.m. until about 2 a.m. Pleasures is located at 4849 South West Street in Wichita, Kansas.

Around 1:30 a.m. on January 12, 2013, Jason texted Garza not to say anything to his girlfriend. Jason then called Garza to say they were coming to pick him up. Coleman returned to the shop around 2 a.m. Soon thereafter Jason and Justin showed up with Garza and were met by Sean and Coleman. The five men smoked methamphetamine together, and Sean pressed Garza for Stricker's "information." Sean told Garza that if Garza or Stricker "said anything" they were dead.

Bernhard spent the next few days trying to track down Lindsey. She texted Sean to ask about Lindsey. Sean replied that "he might be working it off in Mexico" and that "it [was] out of [his] hands." On January 13, 2013, Bernhard and Lindsey's father reported Lindsey missing.

Lindsey's body was recovered on January 16, 2013, near the area where the security camera recorded headlights and a dark-colored vehicle with a bed on the night of January 11. Detectives interviewed Sean later that evening. Sean told detectives that on January 11, 2013, Lindsey arrived at his shop around 6 p.m. with two "Mexicans" named Paloen and Fernando. Sean claimed that the two "Mexicans" looked around for Lindsey's truck. According to Sean, the three men left after about 15 minutes, and he went to his sister's house around 6:15 or 6:20. Sean said that he also went to Pleasures nightclub that night.

Search warrants were executed at the shop on January 16, January 18, and January 20. From these searches, the police recovered methamphetamine and paraphernalia, a duffel bag, two airsoft pistols, two airsoft BBs, a bag of additional BBs, a needleless syringe, zip ties, and an electric fence.

During trial, defense counsel focused heavily on the fact that Garza's initial statement to the police was different from his second and third interviews conducted after reaching an agreement with the State. In that first statement, Garza claimed to have much less involvement than he later admitted. Defense counsel's theory of the case appeared to be that Garza was one of the "Mexicans" who arrived at the shop with Lindsey, that Garza killed Lindsey because of a debt Lindsey owed Garza, and that Garza was pinning the murder on Sean in exchange for a lighter sentence.

A jury convicted Sean of premeditated first-degree murder and kidnapping but acquitted Sean of felony murder. The jury did not unanimously agree on a hard 50 sentence; so the district court imposed a hard 25 sentence for the murder conviction and a consecutive 77–month sentence for the kidnapping conviction.

Sean timely appealed. This court has jurisdiction under K.S.A. 2016 Supp. 22–3601(b)(3) and (4) (off-grid crime; maximum...