State v. Z.M.

555 P.3d 190

STATE of Kansas, Appellee,

v.Z.M., Appellant

No. 123,216

Supreme Court of Kansas.

Oral Argument Held November 3, 2023

Opinion Filed August 30, 2024

Appeal from Shawnee District Court; David B. Debenham, judge.

Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

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

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

A jury convicted Z.M. of premeditated first-degree murder, first-degree felony murder, and criminal discharge of a firearm at an occupied vehicle. The charges arose from an incident in 2019 where Z.M. drove a vehicle from which a passenger shot at a second car. The driver of the second car, J.M., was killed. The court sentenced Z.M. to a controlling hard 50 life sentence for his crimes.

On direct appeal, Z.M. alleges five errors:

(1) The district court erred by denying his request for new counsel.

(2) Trial counsel abandoned him at sentencing, in violation of Z.M.’s constitutional right to be represented by counsel.

(3) During voir dire and closing arguments the prosecutor misstated the law of aiding and abetting liability, premeditation, and first-degree murder.

(4) The jury was provided legally inappropriate jury instructions and verdict forms on first-degree murder, its lesser included offense, and aiding and abetting.

(5) The errors asserted in issues three and four cumulatively denied Z.M. a fair trial.

We agree the jury was not properly instructed on Z.M.’s murder charges, but conclude this was harmless. We affirm his convictions and sentence.

Facts and Procedural History

On a July afternoon in 2019, Z.M. drove his blue Pontiac G6 east on SE 37th Street in Topeka. He was chasing a white Grand Marquis driven by J.M., who had three passengers in the car with him. Z.M. had two passengers: D.W. and L.J. When the Pontiac caught up to the Marquis, one of Z.M.’s passengers sat on his windowsill and, from the roof of the Pontiac, fired rounds from his rifle toward the Marquis.

The Marquis immediately slowed and ran off the road. J.M.’s passengers ran. The Pontiac drove away. When the dust cleared, J.M. was found by witnesses at the scene, still sitting in the driver’s seat of the Marquis. He had a gunshot wound to the head and a handgun in his lap. J.M. was taken to the hospital, where he died.

From the area of the crash, law enforcement found shell casings, including 9-millimeter casings, 7.62 rifle casings, .380 casings, and .45 caliber casings. They also found the Pontiac. Inside it were Z.M.’s driver’s license and wallet.

Law enforcement executed a search warrant at D.W.’s home and found a rifle that matched the casings at the crime scene. D.W.’s DNA matched DNA found on the rifle. Officers also found a 9-millimeter magazine at the home where D.W. was arrested, though a 9-millimeter handgun was never recovered. One witness identified L.J. as the individual shooting the rifle, and L.J. was arrested in Arkansas. Z.M. turned himself in.

The State charged Z.M. in juvenile court. Shortly after, the case was moved to adult court, where Z.M. was charged with one count of first-degree premeditated murder, one count of first-degree felony murder, and one count of criminal discharge of a firearm at an occupied vehicle resulting in great bodily harm. Z.M. pleaded not guilty to all charges.

Before trial, Z.M.’s counsel filed a Motion to Determine Competency to Stand Trial and a Motion to Withdraw. The court granted the former, found Z.M. competent, and denied the latter.

The jury trial began in March 2020. The State presented 34 witnesses. Z.M. did not present any. The State proceeded on a theory of aiding and abetting liability. The jury found Z.M. guilty on all counts.

The court sentenced Z.M. to a hard 50 life sentence for the premeditated first-degree murder conviction and 94 months for criminal discharge of a weapon at an occupied vehicle resulting in great bodily harm. The court ordered the sentences to run concurrent.

Z.M. directly appeals. See K.S.A. 22-3601(b)(3) (direct appeals to Supreme Court allowed for life sentence crimes); K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 22-3601).

Analysis

I. The district court did not err when it denied Z.M.’s request for new counsel.

Z.M. argues the district court erred by inadequately investigating Z.M.’s asserted conflict of interest and failing to appoint substitute counsel.

Standard of Review

[1, 2] An appellate court reviews both the adequacy of a district court’s inquiry into a potential conflict and its ultimate decision on a motion for new counsel for abuse of discretion. State v. Pfannenstiel, 302 Kan. 747, 760-62, 357 P.3d 877 (2015).

"An abuse of discretion can occur if judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based." Pfannenstiel, 302 Kan. at 760 [357 P.3d 877].

Additional Facts

Z.M.’s first appointed counsel, Michael Francis, represented him in juvenile court but no longer represented Z.M. after the district court authorized prosecution as an adult. Z.M.’s first appointed counsel in adult court withdrew because of a conflict. The district court then appointed James Chappas to represent Z.M.

Chappas represented Z.M. at a joint preliminary hearing that included two other defendants. Circumstantial evidence suggested Z.M. was the driver of the blue Pontiac, and some testimony also suggested someone fired a handgun from the driver’s side. Further, J.P.—one of the passengers in J.M.’s white Grand Marquis—testified there was supposed to be a fight involving Z.M. at Betty Phillips Park on the day of the shooting.

A few months after the preliminary hearing, Chappas filed both a Motion to Determine Competency to Stand Trial and a Motion to Withdraw. In the Motion to Determine Competency, Chappas wrote that Z.M. "cannot sustain a coherent discussion about the facts of the case or any applicable defenses," that his recent discussions with Z.M. "consisted of [Z.M.’s] repeated assertion that God would vindicate him at trial," and that Z.M. exhibited an abnormal comfort with being incarcerated. In the Motion to Withdraw, Chappas wrote only that Z.M. had directed him to file the motion.

At the motions hearing, Z.M. apparently gave the district court a letter, although the letter does not appear in the record and the contents are not discussed specifically. Chappas also presented several concerns:

"[N]umber one, he’s a minor. Second … I have concerns with … [Z.M.’s] cognitive ability to fully understand and appreciate the controlling facts in his particular case. I have a concern with his ability to appreciate the relevance and the application of those facts to the State’s theory of prosecution in the case. Specifically … concerning [Z.M.’s] appreciation of the relevancy and the significance of those facts related to the theory of prosecution that’s been forwarded by the State and how that all relates to his ability to assist his attorney, his ability to understand and appreciate any formulated defenses, his ability to actually assist his attorney in the defense of his case. And … in effect, what I’ve seenis a lack of ability for him to appreciate all of those things and an inability to make … any sound decisions in terms of how to proceed in this particular case, how to interact with his lawyer in the terms of formulation of defenses."

Chappas told the district court that he had not provided Z.M. with "the paper discovery" but had "advis[ed] the client of the State’s theory of the case and all of the facts that are alleged." Chappas told the court that he would send the reports to Z.M. after appropriately redacting them.

The district court told the parties that it would take up the Motion to Withdraw after it ruled on Z.M.’s competency. It then ordered a competency evaluation, which was to be performed by Dr. David Blakely. Toward the end of the hearing, Z.M. addressed the court:

"Your Honor, I apologize for taking your time. Your Honor, I have been in custody since July 27th of 2019. I still do not have my discovery. I still have not had a fit. The entire relation, my attorney has only been to see me for—

….

"… My attorney has only been to see me four times. He represented me. He represented a witness in my cousin’s murder trial. I personally believe that is a conflict of interest in my case.

"He has told me he hates jury trials. They scare him, and they are long, and that I need to take a plea, and that included protective custody, out-of-state, when I addressed Mr. Chappas with my defense and as he asked me what he [sic] should say on the stand.

"The last time I seen Mr. Chappas, I told him I wanted a new attorney, and he was fired. He respond with ’You’re a dumb—sorry for my language—ass, and will spend the rest of your life in prison.’

"Your Honor, please appoint me a new attorney."

Dr. Blakely evaluated Z.M. and produced a report. In it, Dr. Blakely wrote:

"[Z.M.] understands the roles of the various Court officers. He understands that a lawyer is supposed to ‘defend me’, ‘help me through the case’, ‘prove I’m not guilty’, and he adds ‘not call me a dumbass’. He says the lawyer called him that as he was leaving. The patient had told the lawyer that he did not want this lawyer anymore; he wants to switch lawyers and that was the occasion of the comment that the patient is claiming. He also adds the lawyer is supposed to ‘make a case for me, believe in me’…. He does say that they say big words in Court. He does not always

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