IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,252
STATE OF KANSAS,
Appellee,
v.
RONELL WILLIAMS,
Appellant.
SYLLABUS BY THE COURT
1. Interpretation of a statute is a question of law, and the court's review is unlimited.
2. A juvenile tried as an adult will be subjected to the statutory maximum sentence under the applicable criminal statute only after a jury has determined his or her guilt beyond a reasonable doubt.
3. The failure to advise a defendant of the items enumerated in K.S.A. 38-1636(c)(2) does not bring the determination to prosecute the defendant as an adult within the rule of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
4. Under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), whether a prima facie showing of a racially-based strike of a potential juror has been made is a question of law subject to plenary review. The district court's decision about whether the State acted with discriminatory purpose, however, is subject to an abuse of discretion standard of review.
5. In a criminal action, a trial court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.
Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge. Opinion filed March 19, 2004. Affirmed.
Patrick H. Dunn, assistant appellate defender, argued the cause and was on the brief for appellant.
Jerome A. Gorman, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Ronell Williams was convicted by a jury of two counts of premeditated first-degree murder, one count of aggravated robbery, and one count of aggravated burglary. He was sentenced to two hard 50 terms, a term of 59 months, and a term of 32 months, all to run concurrently. He appeals his convictions and sentences.
At approximately 6 p.m. on August 4, 1999, their daughter and granddaughter found Wilbur and Wilma Williams, who were not related to the defendant, lying on their kitchen floor. An emergency medical technician who was dispatched to the Williams' house in response to the daughter's 911 call determined that both victims were dead. The bodies were lying in pools of blood that had begun to dry at the edges, which indicated that the injuries had occurred some time earlier.
Police were dispatched to the Williamses' residence shortly after 6 p.m. No sign of forced entry was found, and the house had not been ransacked. Police found seven spent 7.65 mm. shell casings in the kitchen area. One additional spent shell casing of the same kind was found in the body bag in which Wilma Williams' body was transported from the scene.
An autopsy showed that Wilma Williams had suffered four gunshot woundstwo to the right side of her face, one to the left side of her neck, and a graze wound across her left hand. Three bullets were recovered from Wilma Williams' body during the autopsy. The pathologist testified that in his opinion she died as a result of multiple gunshot wounds, which caused a combination of blood loss, shock, and stress on her heart rather than immediate death.
An autopsy of Wilbur Williams' body showed that he suffered five gunshot woundsone to the left side of his face, one to the left side of his head behind the ear, one to the left side of the back chest, one to his left hand, and one to his right upper arm. Four bullets were recovered from Wilbur Williams' body during the autopsy. The pathologist testified that in his opinion Wilbur Williams died as a result of multiple gunshot wounds, which caused blood loss rather than immediate death.
Police found that the door from the kitchen to the basement stairs was open and that the basement door to the outside also was open. Outside there was an empty carport. Mr. and Mrs. Williams owned a 1992 white Dodge Spirit, which their son had seen there a few days earlier.
On August 3, the day before the bodies of Wilbur and Wilma Williams were found, a woman who lived approximately 2 blocks away from the Williamses arrived home and found that her back door had been pried open. The house had been unoccupied only about an hour. Several diamond rings, three cameras, a .32 caliber pistol, and a full box of Fiocchi brand .32 caliber automatic ammunition were missing.
During the afternoon of August 3, the Williamses' next door neighbor, who was going into his house through the back door, heard what he thought were firecrackers. Minutes later he heard the squealing of tires. A young man who had grown up two houses away from the Williamses was coming home in the afternoon when he saw two young, black male teenagers driving the Williamses' car out of their driveway.
At approximately 2 a.m. on August 5, 1999, the car that had belonged to the Williamses was found burned out in a parking lot. On August 7, an informant told police that Michael Elias, Kendall Elias (Kendall), Jeffery Brown (Jeffery), and Jeremy Brown had been in the car. Jeffery and Kendall told police that they had been picked up by identical twins named Ronell and Donell.
Jeffery, who was 16 at the time of trial in December 2000, testified that he and Kendall rode around with the Williams twins until the twins said they had to go home before their mother woke up. The twins told Jeffery and Kendall to keep the car and meet them back at their house with it the next night. Jeffery and Kendall drove the car to Kendall's house, Jeffery went home and gave his brother, Jeremy, the keys. Jeremy and Jeffery picked up Michael Elias and drove around in the car the next morning, but did not drive it back to the twins' house later because by then they had seen on television that the car was stolen. Michael Elias gave the car to someone named "Jay".
On August 8, police officers searched the Williams twins' house, which lay approximately a half mile from Wilbur and Wilma Williams' house. A 7.65 mm. live round was found in the twins' room. An empty box which had held Fiocchi .32 caliber shells was found along the fence line separating the suspects' house from the neighboring property. Four shell casings and four gauge tokens were found in the back and side yards.
A firearms examiner testified that all the shell casings recovered by the police were of the Fiocchi brand, of the same caliber7.65 mm. or .32 caliber automatic, and were fired from the same gunmost likely a .32 caliber automatic or semiautomatic handgun.
In a statement to police, Ronell Williams said that Donell had burglarized a house and stolen a .32 caliber pistol, which they fired in their own backyard. They walked over to the house of a friend and were walking back home when they saw Wilbur Williams out by his mailbox. Ronell took the gun from Donell and put it to Mr. Williams' head and ordered him to the backyard where Mrs. Williams was working in the garden. Ronell told Mr. Williams that they were planning to rob him, and they ordered Mr. and Mrs. Williams to go into the house through the back door and up the stairs. In the kitchen, the couple whispered to one another and Mrs. Williams picked up their cordless telephone. Donell took the telephone from her and put it in the southwest bedroom, where police later found it. Donnell rummaged through the house trying to find something of value and found car keys in Mrs. Williams' purse. Ronell told his brother to go get the car because he was going to have to kill the old people. Donell went down the stairs to get the car. Because Mr. Williams grabbed for a knife, Ronell fired the gun. No one was hit, but it made Mr. Williams drop the knife. Mr. Williams fell to his hands and knees, and Ronell shot him four times. Mrs. Williams became hysterical and laid down on the floor on her back screaming. Ronell shot her in the face from close range. Ronell left the house, got into Mr. and Mrs. Williams' white Dodge, and left the scene.
Williams first argues that his evidence as to mental disease or defect should not have been limited to the mental examination report filed pursuant to K.S.A. 22-3219(2).
The required notice and procedure for a defense of mental disease or defect that would exclude criminal responsibility are set out in K.S.A. 22-3219. Subsection (1) requires service and filing within 30 days after entry of a not guilty plea of a written notice of a defendant's intention to assert a defense of mental disease or defect. Subsection (2) sets out the procedures governing mental examination of a defendant who files a notice of intention to assert a defense of mental disease or defect. It provides that "[a] report of each mental examination of the defendant shall be filed in the court and copies thereof shall be supplied to the defendant and the prosecuting attorney." K.S.A. 22-3219(2).
During trial, after the State had called its final witness and the trial court overruled defendant's motion for judgment of acquittal, the State argued that Dr. Roosa, a clinical psychologist, should not be allowed to testify for defendant for several reasons, one reason being that his report did not bear on the issue of mental disease or defect that would exclude criminal responsibility. It was stated during the discussion of the State's request to exclude or limit Roosa's testimony that, at the time Roosa made his report, he had not interviewed the defendant. According to defense counsel, Roosa interviewed the defendant after the report was made. The trial court noted that no supplementary report had been submitted stating Roosa's conclusions after interviewing the defendant. The State further objected to Roosa's proposed testimony on the ground that its cross-examination of the witness would be seriously hampered by the lack of an addendum to his report.
In order to give the State an opportunity to interview Dr. Roosa with regard to his post-report meetings with the defendant and conclusions, the trial court recessed the trial proceedings at 3:15 p.m. on December 6th to reconvene at 9 a.m. the next morning. After the jury had been excused, the trial court questioned Roosa about what had occurred after his report was filed. Roosa said that a new psychological examination had been done at the University of Kansas Medical Center, he had examined the report of the new testing, he had examined notes of Dr. Logan that he had not had before, and he had conducted at least 3 hours of clinical interviews with the defendant. Roosa also mentioned examining the defendant's school records and a letter from the defendant's mother. Roosa said that he had not compiled a second report. Asked if his findings changed after the initial report was submitted, Roosa said: "I think to be added onto, yes, I think there are factors seen and been able to look at more closer that I don't suspicion somewhat." Roosa said that he did not recall being asked by defense counsel to submit a report after finishing his evaluation of the defendant. The trial court said to Roosa:
"I guess my problem is we are in the middle of trial and the State and, frankly, I don't know even if the defendant knows exactly what you're going to say and why you're going to say what you're going to say and certainly that would lead the court to order an interview with the prosecutor in this case before you testify so that he has some idea of what your opinion is and why and how you got there."
The next morning the trial court gave counsel an opportunity to argue their positions on the question of Dr. Roosa's testifying. Defense counsel argued that it should be enough that the State had notice of defendant's intent to present a defense of mental disease or defect excluding criminal responsibility, had the initial report, and had defendant's witness list, which included Roosa. The State argued that the defendant had not satisfied the statutory requirement despite being prodded by the State's motion in limine, which was filed 4 months before trial began in December 2000. The State indicated it had received nothing with regard to any evaluation conducted by Roosa after May 15.
The trial court stated:
"The statutory language is clear that any, any examination of the defendant, each mental examination of the defendant shall be filed with the court, with defense counsel and with the prosecuting attorney. At the close of the State's evidence and with the defense ready to present their testimony is the first time anybody other than defense counsel perhaps and, of course, defense witness knew that other things, other examinations had been done, other reports had been seen, referred to and incorporated then into a final decision about the defendant's mental status at the time of the commission of these crimes. The State was and is unprepared to cross-examine, to test the conclusions reached by the defendant's expert witness with no notice. The order and ruling of this court will be that the defense's expert witness may testify about the report presented to this court and the parties. I believe the testing date was October the 20th of 1999. That's the only date that I've been able to glean from the report. It would appear that this report was based solely upon a number of procedural tests used; that, if I'm not mistaken, were actually administered to the defendant by someone other than Doctor Roosa, but in any event, he used these results to present a tentative, initial blind analysis, I guess is the phrase used to describe what he had done, and he made certain conclusions based upon this testing without having seen the defendant. It would appear based upon our record outside the presence of the jury, the conversation yesterday, that he has since donehad three one hour sessions at least with the defendant. He has read and incorporated all of the other reports submitted to the court and the parties and I would assume taken the initial test and then spun that into something that he and the defendant feel is much stronger and more objective with a lot more foundation to establish the defense of mental disease or defect. I cannot and it will be the order of this court that the witness will not testify about anything done after the submission of his initial October of 1999 report since his endeavors were not filed with the court, the State or the defendant to the best of my knowledge. It's just as if they had not been done. He may testify to the conclusions he reached from the testing that he appears to have had done with the defendant and anything contained in that report, but the foundation for that report remains, as far as I'm able to ascertain, the procedures and tests administered to the defendant at that time and the scoring that he did, the State will be precluded from cross-examining the defendant as to what he could have, should have or would have done. If they do so and open the door to what could have or should have been done and this witness had, in fact, done it even after the fact, that's a different ball game, but as we stand now I cannot let your witness testify to anything other than what is contained in his initial report."
Dr. Roosa testified on behalf of defendant. Asked for his opinion whether defendant had any diagnosable mental disorders that would affect his ability to form the intent to kill someone, Roosa stated:
"I came to the conclusion he suffered from severe problems of defect in social judgment and that--and having a tremendous difference in the right brain function, which has to do with--the left is on verbal function which makes him often sound like he knows more of what is going on than he really does and his right brain function has to do with what we call performance, being able one, to see the big picture under the social context of what he's in, the situations that he's in and to be able to put into action what he does see and does understand. He's, in effect, operating with one very deficient brain function, so it's a very lopsided function. People like that--the extreme of that is where there is split brain function where the right brain has been really cut off and only the left brain is operating. The extreme of that is that those people are totally blind to social form neurosis and cannot pick up on the usual cues that most of us have regarding the appropriateness of actions. In this case though he still has right brain. It's seriously defective in its use."
Dr. Roosa further testified that his conclusion about the defendant's right brain being defective was based on the results of the Wechsler Intelligence Scale for Children that was administered to the defendant. According to Roosa, the defendant's test scores show the difference between the left and right sides of his brain: "Verbal IQ is 83, which is kind of a border line below average, low average level and the performance IQ, which is the right brain function is in the mentally retarded level." Right brain functions, Roosa testified, "are necessary for seeing the big picture, being able to process information in the middle of a circumstance to see the big picture, to go well beyond what might be meaningful kind of thoughts that might occur and to think it all the way--help you think it all the way through."
In response to the question whether, in his opinion, the defendant's disorder would affect his ability to premeditate the killings, Dr. Roosa testified:
"I don't see any evidence of any skillfulness of premeditation and if there is a thought about something, if a situation comes up what we all do we have a thought about something, we have some idea of what we are going to do, but then as the reality hits us, as we get closer to, we begin to make adjustments and that ability to make those adjustments, that ability to talk to the left side of the brain is seriously deficient."
Dr. Roosa added: "You can have a meaningful intent. You can have a thought at the moment, but he has those thoughts, but then the reality of the situation doesn't strike him and, therefore, it inhibits and reduces the effectiveness of modulating of what might be the original thoughts." Roosa testified that the defendant had an actual incapacity, not just a character trait or something derived from his personality. In further explaining the incapacity, Roosa testified:
"The testing, as I said, indicates very clearly that he's got this large discrepancy between right and left brain function and as a result of that we have to see that as an impairment in right brain and as a result of that behavior we often call impulsive is simply behavior that is not stopped by the ability to really see what is going on, what the situation really is about given the situation. Ronell is not a person without any caring or any kind of feeling. He's very much more reactive and because of those because of those impairments."
On cross-examination Dr. Roosa reiterated that in his opinion, because of his mental disorder, Williams could not premeditate or think things over beforehand.
Although he does not argue that the trial court misinterpreted the statute in requiring a second report by Dr. Roosa, defendant agrees with the State that this matter depends on interpretation of K.S.A. 22-3219. Interpretation of a statute is a question of law, and the court's review is unlimited. State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
On appeal, defendant contends that he should not have been penalized for Dr. Roosa's failure to file a second report. The filing required by K.S.A. 22-3219(2), however, is not the responsibility of the witness. Defendant also contends that the trial court should have, but failed to, consider lesser sanctions for the statutory violation. Not one of the cases he relies on involved the statutory notice requirement at issue here. Moreover, the sanction imposed by the trial court was a lesser sanction certainly than excluding the testimony of Dr. Roosa and was well tailored to fit the peculiar circumstances of this case. We find no error.
Williams next argues that the failure to comply with K.S.A. 38-1636(c)(2) deprived the district court of jurisdiction to try him as an adult.
This issue again involves statutory interpretation, which is a question of law over which the court has unlimited review. Maass, 275 Kan. at 330.
K.S.A. 38-1636 provides for prosecution of a juvenile as an adult in certain circumstances. The procedure may be commenced by the county or district attorney filing a "motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute." K.S.A. 38-1636(a)(1). Subsection (c)(1) provides that, upon receiving such a motion, the court is to conduct a hearing on the motion. K.S.A. 38-1636(c)(1) further provides: "The court shall give notice of the hearing to the respondent, each parent of the respondent, if service is possible, and the attorney representing the respondent." K.S.A. 38-1636(d) provides in part: "If the respondent fails to appear for hearing on a motion as established in subsection (a) after having been served with notice of the hearing, the court may hear and determine the motion in the absence of the respondent." See State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985) (essentials of due process were met even though respondent's failure to appear at K.S.A. 38-1636 hearing was involuntary).
A joint hearing was conducted in this case, In the Matter of Donell Williams, case No. 99JV1585 and In the Matter of Ronell Williams, case No. 99JV1586, on October 26, 1999. The State concedes that at the hearing the court did not inform the defendant of the items listed in K.S.A. 38-1636(c)(2).
The defendant argues on appeal that the court's failure deprived the trial court of jurisdiction in his prosecution as an adult. K.S.A. 38-1636(c)(2), which became effective in May 1999, provides:
"(2) At the hearing, the court shall inform the respondent of the following:
(A) The nature of the charges in the complaint;
(B) the right of the respondent to be presumed innocent of each charge;
(C) the right to trial without unnecessary delay and to confront and cross-examine witnesses appearing in support of the allegations of the complaint;
(D) the right to subpoena witnesses;
(E) the right of the respondent to testify or to decline to testify; and
(F) the sentencing alternatives the court may select as the result of the juvenile being prosecuted under an extended jurisdiction juvenile prosecution."
Although the statute provides that the court shall inform the respondent of the items listed in subsection (c)(2), if the respondent is not present for the hearing, as permitted by subsection (d), the court cannot inform the respondent at the hearing of the items listed in subsection (c)(2). Hence, contrary to the defendant's contention, the fact the court did not inform the respondent of the items in subsection (c)(2) could not logically be a basis for depriving the district court of jurisdiction of the criminal prosecution.
Moreover, the authority cited by defendant, State v. Jones, 273 Kan. 756, 47 P.3d 783, cert. denied 537 U.S. 980 (2002), does not support his proposition that failing to inform a respondent of the items listed in K.S.A. 38-1636(c)(2) deprives the district court of jurisdiction. In Jones, the defendant contended that the procedure set out in K.S.A. 38-1636 "runs afoul of Apprendi because the fact that he should be tried as an adult is made by a judge resulting in a penalty beyond the statutory maximum." 273 Kan. at 770. Jones further contended that he was denied due process of law for failure to comply with K.S.A. 38-1636(c)(1) and 38-1636(e). Failure to comply with 38-1636(c)(2) was not raised on appeal in Jones.
As the State points out, the statute is silent about the consequence, if any, of the court's failing to inform respondent of the items listed in subsection (c)(2). The State would have the court contrast the absence of any consequence in K.S.A. 38-1636 with the stated imperative that a criminal case be dismissed for failure to comply with the speedy trial statute, K.S.A. 22-3402(1).
Defendant cites State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), as approving the use of juvenile adjudications in calculating criminal history scores for the sentencing guidelines because of the procedural safeguards afforded by the Juvenile Justice Code. Defendant seems to contend that informing respondent of the items listed in K.S.A. 38-1636(c)(2) is among the procedural safeguards essential to guaranteeing the constitutional validity of juvenile adjudications. Defendant, however, was not adjudicated as a juvenile.
In arguing that failure to inform respondent of the items listed in subsection (c)(2) divests the district court of jurisdiction of the criminal prosecution, defendant likens the K.S.A. 38-1636 hearing to a criminal defendant's entering a guilty plea. Because by pleading guilty a defendant is giving up constitutionally guaranteed rights, including trial by jury, the entry of a guilty plea "is such a critical stage within our system of criminal justice that the only sure method of demonstrating the plea is voluntarily and knowingly entered is for the trial judge to follow a detailed checklist covering every aspect of K.S.A. 22-3210." State v. Moore, 16 Kan. App. 2d 472, Syl. ¶ 5, 825 P.2d 537 (1992). The State disputes the comparison, pointing out that a juvenile waives no rights during the hearing to determine whether he or she should be adjudicated as a juvenile or prosecuted as an adult.
In any event, there is no statutory or case law basis for divesting the district court of jurisdiction if defendant was not advised of the items specified in K.S.A. 38-1636(c)(2). Morever, because respondents need not be present for a 38-1636 hearing, there is no logical basis for divesting the district court of jurisdiction if defendant was not advised at the hearing of the subsection (c)(2) items. Some sanction may be appropriate, but it would not include divestiture of district court jurisdiction.
Williams also argues that the failure to advise him of the rights enumerated in K.S.A. 38-1636(c)(2) violated his Sixth Amendment right to a jury determination as required under Apprendi.
The court's review of this constitutional question is unlimited. See Hitt, 273 Kan. at 226.
Defendant concedes that in Jones, 273 Kan. 756, the court rejected the argument that because prosecution of a juvenile as an adult substantially increases the potential penalty for an offense, the Sixth and Fourteenth Amendments require jury determination of the question whether a respondent should be prosecuted as an adult. Williams would distinguish Jones from the present case, however, because in this case he was not informed of his rights as enumerated in K.S.A. 38-1636(c)(2). He contends that what removed the adult certification proceeding from the rule of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 147 (2000), in Jones were the juvenile's right to counsel and the procedural safeguards provided by 38-1636(c)(2).
After discussing the procedural safeguards of K.S.A. 38-1636 and quoting K.S.A. 38-1636(c)(2), the court stated in Jones: "We conclude that the above reasons, as well as the other procedural safeguards provided for in K.S.A. 38-1636, are sufficient and support a determination that certification proceedings under our statutory scheme for the care and treatment of juveniles fall outside the dictates of Apprendi." 273 Kan. at 774. The State contends that the procedural safeguards referred to in Jones are found in K.S.A. 38-1636(c)(1), (e), and (f)(1). Subsection (c)(1) requires the court to give notice of the certification hearing to the respondent; his or her parents, if possible; and counsel. Subsection (e) identifies factors that must be considered by the court in determining whether prosecution as an adult should be authorized. Subsection (f)(1) provides that a determination to prosecute as an adult must be based on substantial evidence.
In Jones, the court discussed at some length the interface of Apprendi with the statutory provision for prosecuting certain juveniles as adults, and first made it clear that the procedural safeguards of K.S.A. 38-1636 were among the factors weighing against application of Apprendi. Consideration of the procedural safeguards was far from the end of the analysis. The court continued by discussing decisions of other courts, which depended little or not at all on procedural safeguards in relating the juvenile proceeding to Apprendi's sphere:
"The Kansas Court of Appeals has considered and rejected the precise argument raised by Jones. State v. Hartpence, 30 Kan. App. 2d 486, Syl. ¶ 4, 42 P.3d 1197 (2002). The Hartpence court classified Apprendi as dealing with the sentencing phase of a prosecution, while the K.S.A. 38-1636 procedure is a jurisdictional matter where the decision is made which court will resolve the case. 30 Kan. App. 2d at 496." 273 Kan. at 775.
The court then proceeded to quote extensively from the opinions of the New Mexico Court of Appeals and the Appellate Court of Illinois rejecting an argument similar to the one made in Jones; and the opinion of the Supreme Judicial Court of Massachusetts, finding that Apprendi was applicable to adult certification. 273 Kan. at 775-77. The Court of Appeals then concluded:
"Apprendi reviewed a law permitting a judge, after making a factual finding about the crime, to sentence a defendant beyond the statutory sentence authorized by the jury's verdict. In the present case, the decision under K.S.A. 38-1636 does not follow a finding of guilt for any crime. The decision under K.S.A. 38-1636 determines whether there is substantial competent evidence to authorize prosecution of a juvenile as an adult under the applicable criminal statute. If that decision is in the affirmative, the juvenile will be exposed to the statutory maximum sentence under the applicable criminal statute, which in most cases will exceed the statutory maximum disposition in the juvenile system. However, the juvenile tried as an adult will be subjected to the statutory maximum sentence under the applicable criminal st