State v. Williams

429 P.3d 201

STATE of Kansas, Appellee,

v.Lee Edward WILLIAMS, Appellant.

No. 116,690

Supreme Court of Kansas.

Opinion filed October 26, 2018.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Lois Malin, assistant district attorney, argued the cause, and Mark A. Dupree Sr., district attorney, and Derek L. Schmidt, attorney general, were with her on the brief for appellee.

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

This is a direct appeal by Lee E. Williams from his convictions of first-degree premeditated murder and criminal possession of a firearm. He argues reversal is required because of: (1) prosecutorial error during closing arguments by calling his testimony a fabrication; (2) trial court error in overruling his claim of racial discrimination during jury selection; (3) trial court error in admitting overly gruesome autopsy photographs; and (4) cumulative error. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Lee E. Williams and Tysha Carvin knew each other for 20 years. They were in a relationship, lived together, and had a son. The couple broke up in January 2013, when their son was two years old. After the breakup, they lived separately. The boy lived with Tysha, who occasionally stayed at her aunt's house, where Tysha's grandmother also lived.

Williams periodically visited his son. But Tysha did not let Williams see their son as often as Williams wanted after Williams' new girlfriend became pregnant. Frequent altercations arose because of this.

On September 3, 2013, Williams was at the aunt's house most of the day before leaving for the evening and returning after midnight. Williams testified that when he returned, Tysha was the only person awake. She became "upset" about the new girlfriend and the pregnancy. Williams got "upset" because of text messages Tysha received from another man discussing a sexual relationship. Williams tried to leave with his son. According to Williams, Tysha said, "[B]ring me my son here right now or I swear to God I'm going to shoot you." She pointed a gun at Williams, so he brought their son back. Williams testified the gun was his, and that Tysha got it from an area near a fish tank, where he had put it earlier.

Williams said the two fought for the gun and it "started going off." By this time, the aunt and grandmother joined the struggle. Williams said he "didn't have substantial control of the gun. The gun was going off."

The grandmother and the aunt testified differently. The grandmother said she heard Tysha call for help around 2 a.m. and went downstairs. She saw Tysha on the floor between the dining room and front door. Williams was holding Tysha's foot, trying to pull her out the door. The aunt said she woke up because of the noise downstairs and saw the grandmother, Tysha, and Williams at the door.

Both women said they heard Williams say, "I don't want to do it in here." And at some point, Tysha "scoot[ed] back" away from Williams and ended up near the fish tank. The aunt saw Williams pull out a gun and fire multiple times at Tysha. The aunt called the police and Williams left the house.

Police officers arrived. An officer photographed Tysha's body near the fish tank as well as seven shell casings lying around her. Multiple bullet holes were found in the wall just behind her. Tysha was killed by two bullets that matched shell casings found at the scene.

Two days later, Canadian border officials apprehended Williams trying to cross into Canada with a fake ID. The State charged Williams with first-degree premediated murder under K.S.A. 2017 Supp. 21-5402 and criminal possession of a firearm under K.S.A. 2017 Supp. 21-6304. A jury found him guilty of both counts.

The district court sentenced Williams to life imprisonment, with a minimum 25-year incarceration before parole eligibility, for the first-degree premeditated murder. It also sentenced him to a consecutive, 20 months' incarceration for criminal possession of a firearm, set to run after the life sentence.

Williams timely appealed. Jurisdiction is proper. K.S.A. 2017 Supp. 22-3601(b)(4) (requiring direct appeal to Supreme Court in "any case in which the crime was committed on or after July 1, 1993, and the defendant has been convicted of an off-grid crime"); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2017 Supp. 22-3601 ).

THE PROSECUTORIAL ERROR CLAIM

Williams complains the prosecutor's closing remarks amounted to calling him a liar and giving an improper personal opinion about his credibility. We disagree.

Additional facts

Williams argues the italicized remarks below were improper because they represented the prosecutor's personal opinion about his credibility:

"I want to emphasize ... it is for you to determine the weight and credit to be given to the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.

"And I emphasize that one and I start off with that one because in this case you've heard two divergent, contrasting versions. You've heard what [Tysha's aunt] and [Tysha's grandmother] testified to. And then you heard a version that the defendant testified to, and they're worlds apart.

"In voir dire one of the things I asked you about was will you be able to listen to the witnesses and then go into the jury room and talk about it and decide which is the version? And this is exactly what we're getting at, is that you're going to have to go in there and say, am I believing [grandmother] and [aunt], or am I believing what the defendant had to say? I'm going to suggest to you that the defendant made a lot of his story up as he testified on the stand , or while he was on the stand, and I'm going to get to that in this way.

"We have some givens in this case. Some things that can't be contradicted. Seven shell casings. The gun was fired seven times. We've got two gunshot wounds on Tysha, and you've got pictures that you can take back with you and look, and not only was she shot twice, but it's where she's shot twice. You'll see the rod that goes down somewhere between the eye and the ear, and the angle that it goes down and comes out the mouth and down into the breast.

....

"Now what I'm going to suggest to you is that what the defendant testified to, and to be honest about that, that was a quite confusing version of facts that he gave when he could say I don't even know how the gun was fired or who fired it .

"Well it couldn't have been fired by Tysha. She's not going to be able to shoot herself coming from behind in the manner in which the doctor testified. It just can't physically happen, which I suggest to you shows you that his version is false, his version is fabricated and that you should, under this instruction, disregard his testimony.

"Another area that gives you cause to disregard his testimony is the 911 call. Listen—go back and play it if you have to. Listen to [aunt]'s voice. The defendant testified that after the shots were fired he just stood there, and that [aunt] said you better leave now, Lee. Do you think that's what she said when you hear her voice on there? When she's crying and screaming about her niece? That you better leave now, Lee.

....

"So you've got the 911 call, the call to the mom, the angles of the wounds are most telling in that, and then finally you've got his flight to Canada. We've got a guy who says this is nothing but an accident, ladies and gentlemen. This is an accident, or if you don't believe it's an accident, then believe it's self-defense. Now those are worlds apart in themselves, accident or self-defense, but after one accidentally shoots somebody, or after one defends themselves under the letter of the law, do they run to Canada?

....

"And the other thing we have to prove is the premeditation. To have thought the matter over beforehand. In other words, formed the desire or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous intentional act of taking another's life.

"He formed the premeditation when he tried to drag her outside. There, and that's before the act, that's before the shooting. And how do we know this for sure? Because he tells [aunt] and he tells [grandmother], I'm going to kill her. Right there—I mean, how much more do you have to give of evidence that one intends to kill, that one's thought it over, than to say what you're going to do? And then he also—a little kind of apologetically says I'm not going to do it in your house, I'm not going to disrespect you, I'll do it outside. Like that makes it better." (Emphases added.)

The two-step Sherman test

The two-step analysis for reviewing prosecutorial error claims is set forth in State v. Sherman , 305 Kan. 88, 378 P.3d 1060 (2016), which declared:

"[The] two steps can and should be simply described as error and prejudice. To determine whether prosecutorial error has occurred, the appellate court must decide [1] whether the prosecutorial acts complained of fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If error is found, the appellate court must next determine [2] whether the error prejudiced the defendant's due process rights to a fair trial . In evaluating prejudice, we simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman . In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e. , where there is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]" (Emphases added.) 305 Kan. at 109, 378 P.3d 1060.

Analysis

Kansas caselaw is unwavering that "the word ‘l...