Opinion
111,696.
07-24-2015
STATE of Kansas, Appellee, v. Tommy MACKEY, Appellant.
Johnathan M. Grybe and Adam Stolte, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Johnathan M. Grybe and Adam Stolte, of Kansas Appellate Defender Office, for appellant.
Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case comes before the court on appeal from a jury trial in which Tommy Mackey was found guilty of intentional second-degree murder. Mackey challenges the sufficiency of the evidence, the admission into evidence of two revolvers, the denial of his motion for a downward departure, and the judicial factfinding of his prior crimes at sentencing. Finding no error, we affirm.
On April 21, 2007, Mackey sent Indio Inglehart and Julie Jeffrey to sell 1 ounce of methamphetamine for him. Inglehart and Jeffrey drove 2 or 3 hours to sell the drugs but were able to sell only 1/2 an ounce. The two returned to Jeffrey's home where Mackey was waiting and gave him the money and the remaining methamphetamine, but Mackey wanted money instead of drugs. Inglehart and Jeffrey then left in an attempt to sell the remaining drugs to some of Inglehart's friends. When Inglehart met his two friends and handed them the drugs, they proceeded to rob him. After one hit Inglehart with a baseball bat, Inglehart crawled back into the car. The other tapped on the car window and asked Jeffrey if she had “anything else,” and Jeffrey replied, “[N]o.” One of the “friends” then shot out the rear window of the car before Inglehart and Jeffrey drove away.
Inglehart and Jeffrey returned to Jeffrey's house where Mackey met them at the front door. Jeffrey went to use the restroom while Inglehart, Mackey, and Scott Kinslow went to the dining room table. Mackey was angry-he raised his voice and he waived his gun. Mackey believed Inglehart had set up the robbery so he could later use the meth with his friends. Inglehart tried to explain the situation and told Mackey he would get the rest of the money. Mackey responded that if Inglehart said another word, Mackey would kill him. When Inglehart replied, “[B]ut,” Mackey shot him once in the head. Inglehart died instantaneously.
Immediately after Mackey shot Inglehart, Jeffrey ran upstairs and the other visitors left. Mackey followed Jeffrey upstairs, held a gun to her head, and ordered her to clean up the murder scene. Mackey took the keys to Inglehart's car and moved the car to the back of the house. Mackey grabbed Inglehart's feet and dragged his body from the dining room, through the kitchen, and out the back door. Mackey then put Inglehart's body into the passenger seat of Inglehart's car, shut the door, and drove away with the body. The body was later found 4 blocks from Jeffrey's house.
Mackey was apprehended approximately 3 months later in San Bernardino County, California. The San Bernardino County law enforcement officers recovered two guns when they arrested Mackey: a Smith and Wesson revolver from Mackey's pocket and a .38 caliber Colt revolver in bushes approximately 31 feet from Mackey.
An expert testified that the bullet fragment recovered from Inglehart's body during the autopsy was consistent with a .38 caliber-family lead bullet. The expert eliminated the Smith and Wesson gun as the gun used to fire the analyzed bullet fragment. However, he could neither identify nor eliminate the Colt revolver as having fired the bullet fragment. Over Mackey's objection, both guns were admitted into evidence.
The jury found Mackey guilty of intentional second-degree murder. The district court found Mackey's criminal history score was A and the severity level of his crime of conviction was 1. The district court denied Mackey's motion for a downward durational departure and sentenced him to a presumptive sentence of 653 months' imprisonment and 36 months' postrelease supervision. Mackey timely appeals.
Sufficiency of the evidence for intentional second-degree murder
Mackey first argues the State failed to present sufficient evidence to prove beyond a reasonable doubt that he actually committed the crime. He contends that because the State could not prove Mackey committed the crime, the State could not prove beyond a reasonable doubt that he intentionally killed Inglehart.
We first set forth our standard of review. When the sufficiency of the evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution and asks whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Williams, 299 Kan. 509, 525, 324 P.3d 1078 (2014). In determining whether there was sufficient evidence to support a conviction, the appellate courts generally will not reweigh the evidence or make witness credibility determinations. 299 Kan. at 525. We do so only in rare cases where the testimony was so incredible that no reasonable factfinder could have found guilt beyond a reasonable doubt. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
A verdict may be supported by circumstantial evidence, if such evidence provides a basis from which the factfinder may reasonably infer the existence of the fact in issue. However, the evidence need not exclude every other reasonable conclusion or inference. See State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54 (2014). A conviction of even the gravest offense can be based on circumstantial evidence. 298 Kan. at 689.
Further, to the extent this court must engage in statutory interpretation, review is unlimited. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S.Ct. 91 (2014). Mackey was convicted of intentional murder in the second degree pursuant to K.S.A. 21–3402(a) now recodified as K.S.A.2014 Supp. 21–5403(a)(1). “Murder in the second degree is the killing of a human being committed: (a) Intentionally.” K.S.A. 21–5403(a).
The factual summary we set out at the beginning of this opinion was based on the legal standards we have just summarized; the evidence was taken in the light most favorable to the prosecution. Here, the jury heard testimony from Kinslow, Jeffrey, and David Juarez, who each testified to having seen Mackey shoot Inglehart. Juarez and Jeffrey said Mackey removed Inglehart's body from the home, placed the body in Inglehart's car, and drove away. Kinslow saw Mackey drive Inglehart's car away from Jeffrey's, but he did not know who had moved the body. Dale Liston saw Mackey drive Inglehart's car to the back of the house, then saw him drive away in the car. All four testified they saw Mackey with a gun and he appeared to be angry. Each of the four witnesses also identified Mackey in a photo lineup.
We first address Mackey's challenge to the credibility of the witnesses. He states that Jeffrey's house was a known drug house, the witnesses had all been using methamphetamine shortly before the shooting, and each witness “described a slightly different story.” Mackey further contends the witnesses were not familiar with him, were asleep prior to the incident, and never actually saw the shooting.
The jury heard testimony that Jeffrey's house was a known drug house, and Kinslow, Juarez, and Jeffrey all testified they had used drugs around the time of the murder. But all three testified they did not think the drugs had affected their perceptions of the murder.
Admittedly, the witnesses' testimony was not identical. For example, Kinslow testified he helped Jeffrey clean up the mess by moving a rug to cover up some blood on the floor. Juarez testified he saw Jeffrey, Kinslow, and a third person named Satch cleaning up with bleach. He saw them cut the carpet out in one spot and move a doghouse to cover up a bloodstain. Jeffrey testified she did not remember if anyone had helped her clean, but then testified that Satch had done so. Jeffrey said she had moved a rug to cover a bloodstain, but she did not recall anyone cutting the carpet and placing a dog kennel over the spot.
Other variations in the testimony related to the number of guns on the dining room table. Kinslow testified there may have been two guns on the table, while Jeffrey testified she had seen four guns, but she was not positive. Juarez did not recall having seen any guns on the table.
Testimony regarding the use of latex gloves, as well as removal of Inglehart's body also differed. Jeffrey testified she had worn latex gloves she had gotten from her kitchen drawer and that Mackey had asked for some gloves. She mentioned the gloves to the prosecutor for the first time just a few days before the trial. Liston testified he did not remember anybody wearing gloves. A detective said he did not recall any witnesses having mentioned gloves, nor did he remember having found any latex gloves at the crime scene. Juarez testified he had seen Mackey and Liston roll the body in a carpet and the two men had moved the body outside. But Jeffrey testified Mackey had not wrapped Inglehart's body in a carpet and that nobody had helped Mackey move the body. Instead, she had seen Mackey grab Inglehart's feet and drag his body out the back door.
There were admittedly some minor inconsistencies between the testimonies of the witnesses. But they were on insignificant matters, and variations in eye-witness testimony are “of course, not unusual.” State v. Dailey, No. 102,957, 2011 WL 5833288, at *15 (Kan.App.2011) (unpublished opinion) rev. denied 296 Kan. 1132 (2013). Having reviewed the record, we find the inconsistencies here do not rise to the level of raising a serious question about the reliability of the witnesses' consistent identification of Mackey as the shooter, of their descriptions of Mackey's angry acts immediately before the shooting, or of their testimony regarding Mackey's efforts to dispose of the body after the shooting.
We next address Mackey's arguments regarding the lack of physical evidence. He contends that no physical evidence linked him to the crime scene and neither of the recovered handguns was positively identified as the murder weapon. The State correctly shows the court that physical evidence was, in fact, presented to the jury. A bullet fragment consistent with a .38 caliber-family lead bullet was recovered during Inglehart's autopsy. And the Smith and Wesson .38 caliber revolver found on Mackey at the time of his arrest and the Colt .38 caliber revolver found in bushes 31 feet from where Mackey was arrested were admitted into evidence.
Mackey correctly notes that none of his DNA was located on any of the evidence tested and that none of the fingerprints lifted from Inglehart's car matched Mackey's fingerprints. No DNA or fingerprint testing was performed on the recovered handguns. But no such testing or matching is necessary to uphold a conviction, even of the gravest murder. See Ware v. Parker, 298 Fed. Appx. 727, 729 (10th Cir.2008) (unpublished opinion). We reject Mackey's suggestion that “physical” evidence-such as DNA test results-is necessary to establish guilt in this case.
After weighing all the evidence and making witness credibility determinations, the jury found Mackey guilty of intentional murder in the second degree. Viewing all of the evidence in a light most favorable to the State, we find the evidence was sufficient for a rational factfinder to conclude that Mackey was guilty of that charge.
Admission of two handguns
Mackey next argues the district court abused its discretion by overruling his objection to the introduction of the two handguns found when Mackey was arrested. He claims that due to the “generic nature of the revolvers,” the potential for producing undue prejudice was not outweighed by the probative value of the evidence.
The witnesses to the killing were not able to specifically identify the make or model of the gun used. Kinslow testified he saw Mackey shoot Inglehart with a revolver. Juarez testified he was asleep and woke up when he heard the gunshot. He saw Inglehart on the floor in front of him and saw Mackey standing with a gun in his right hand. Juarez believed the gun was a .38 caliber revolver. Jeffrey also testified she saw Mackey with a revolver in his hand when he shot Inglehart. A bullet fragment consistent with a .38 caliber family lead bullet was recovered from the body during the autopsy. When Mackey was arrested in California, law enforcement recovered a Smith and Wesson .38 caliber revolver from Mackey's pocket and a Colt .38 caliber revolver from the nearby bushes.
A firearm and toolmark examiner determined the bullet fragment removed from the body during the autopsy was consistent with a .38 caliber-family lead bullet. He testified that caliber family includes a .38 Special, .357 Magnum, and .9 mm bullets. The firearm expert had tested both the Colt and the Smith and Wesson by firing a bullet from each revolver into a large tank of water and then comparing those test results to the bullet fragment recovered from Inglehart's body. He determined the Smith and Wesson revolver had not fired the bullet whose fragment had been recovered during the autopsy. His results regarding the Colt revolver were, however, inconclusive—he could neither identify nor eliminate the Colt revolver as the gun that had fired the bullet that killed Inglehart. Both revolvers were admitted into evidence over Mackey's objection.
We first set forth our standard of review. Multiple inquiries are involved when the admission or exclusion of evidence is challenged on appeal. We use a three-step standard of review of the district court's decision to admit or exclude evidence. First, a court must determine whether the evidence is relevant. State v. Coones, 301 Kan. 64, 77–78, 339 P.3d 375 (2014). Generally speaking, all relevant evidence is admissible. K.S.A. 60–407(f). Relevant evidence is that which has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b).
The definition of relevance encompasses two elements: materiality and probative value. State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013). Evidence is material when the fact it supports is in dispute or in issue in the case. Review for materiality is de novo. State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). Evidence is probative if it has any tendency to prove any material fact. An appellate court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013).
Second, appellate courts exercise de novo review over the applicability of the rules of evidence or other legal principles. Finally, appellate courts apply the appropriate evidentiary rule or principle. Coones, 301 Kan. at 78. The standard of appellate review varies accordingly. State v. Reed, 300 Kan. 494, 509, 332 P.3d 172 (2014).
Mackey does not argue in his brief that the revolvers are irrelevant, nor does he dispute the reasonable inference that he was shown to be in possession of both of them. Therefore, we find any such arguments to be waived. See Reed, 300 Kan. at 509.
Instead, Mackey claims the admission of the handguns was “highly prejudicial evidence in light of its low probative value.” If evidence is relevant, a trial court has the discretion to exclude it when the court finds its probative value is substantially outweighed by its potential to produce prejudice. See K.S.A. 60–445. We review such a determination for an abuse of discretion. See Lowrance, 298 Kan. at 291. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Turner, 300 Kan. 662, 675, 333 P.3d 155 (2014). Mackey, as the party asserting the district court abused its discretion, bears the burden of showing such abuse. State v. Brown, 300 Kan. 565, 571, 331 P.3d 797 (2014).
We first examine the admission of the Colt revolver found in the bushes, which revolver was neither ruled out nor positively identified as the murder weapon. We find in State v. Scott–Herring, 284 Kan. 172, 177, 159 P.3d 1028 (2007), the general rule that the lack of testimony positively identifying the weapon as that used in the crime goes to the weight, not the admissibility, of the evidence. There, the defendant argued the district court erroneously admitted a photograph of him holding a .38 caliber revolver. He claimed the photograph was unduly prejudicial because the State could only speculate that it was the murder weapon. The firearm and toolmark examiner testified the revolver shown in the photograph had the general appearance of the possible murder weapon, but he could not identify the gun in the photograph as the murder weapon without having the actual gun. The Kansas Supreme Court found:
“[T]he State was not required to prove that the gun in the photograph was the actual murder weapon for the evidence to be admissible. If there is testimony indicating a sufficient similarity between the weapon used to commit the charged crime and a weapon shown to be in the defendant's possession, ‘the lack of testimony positively identifying the weapon as that used in the crime goes to the weight, not the admissibility, of the evidence.’State v. Trammell, 278 Kan. 265, 282, 92 P.3d 1101 (2004) (allowing witnesses to testify that a gun found in the defendant's possession resembled the gun that had been used during an armed robbery).” Scott–Herring, 284 Kan. at 177.
The court ultimately held the photograph was relevant to establish possession and the district court did not abuse its discretion by admitting it into evidence where the defendant had attacked the weight of the evidence through cross-examination.
Similarly, in State v. Francis, 282 Kan. 120, 135–36, 145 P.3d 48 (2006), three guns were seized from Francis' residence. Francis argued the guns should not have been admitted into evidence because they were more prejudicial than probative as none of the firearms could be linked to the crime of first-degree murder. The Kansas Supreme Court noted: “The introduction of a possible murder weapon into evidence in a murder trial typically would not be designed to elicit a response from the jury that might cause it to base its decision on emotion rather than reason.” 282 Kan. at 136. Although the connection between the Taurus gun and the shooting was very weak, the evidence was not unfairly prejudicial. The court thus held the district court did not err by admitting into evidence the Taurus handgun in defendant's possession which could not be eliminated as the murder weapon. 282 Kan. at 136.
Accordingly, in this case the State's inability to prove the Colt was the handgun used in the murder goes to the weight, not the admissibility, of the evidence, and such evidence was not substantially more prejudicial than probative. We find Mackey has not met his burden to show the district court abused its discretion by admitting the Colt into evidence. See Brown, 300 Kan. at 571.
Admission of the Smith and Wesson into evidence is a closer call because that revolver was ruled out as the murder weapon. In Francis, the Kansas Supreme Court found an abuse of discretion in admitting two handguns into evidence which had been ruled out as the murder weapon because they were not relevant. 282 Kan. at 137. Similarly, the firearm expert in this case determined the Smith and Wesson found on Mackey could not have been the murder weapon. Yet Mackey raises no relevancy challenge here, and it is possible that the gun may have had other relevance and probative value in this case-such as establishing that Mackey was not adverse to carrying a revolver on his person. Accordingly, Mackey has not established error in the admission of the Smith and Wesson.
But even assuming that the Smith and Wesson should not have been admitted, the erroneous admission of evidence is not reversible error where the introduction of that evidence did not prejudice the defendant's rights. “Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal where it appears from the whole record that substantial justice has been done. [Citation omitted.]”. Francis, 282 Kan. at 137.
The erroneous admission of evidence is subject to review for harmless error under K.S.A. 60–261. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). To find an error harmless under K.S .A. 60–261, K.S.A. 60–2105, and the United States Constitution, a Kansas court must be able to declare the error “did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.” State v. Ward, 292 Kan. 541, 565–66, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party benefiting from the error bears the burden of proving it harmless under this standard. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
Mackey's assertion of prejudice is conclusory, based solely on the fact the Smith and Wesson revolver was shown not to be the murder weapon. We are persuaded by the State's showing that the admission of the revolver did not impact the jury's decision. The jury heard testimony from numerous eyewitnesses, yet none was able to identify the murder weapon. Three eyewitnesses did, however, identify Mackey as having a firearm in his possession and as being the shooter. The critical issue for the jury was the credibility of the eyewitnesses as to who shot Inglehart and under what circumstances, not as to which gun was used in the murder. Given the general rules of admissibility established in Scott–Herring and Francis, we find it difficult to see how the admission of one firearm not linked to the shooting would either bolster the witnesses' credibility or constitute prejudicial impeachment of Mackey's character.
Even though no DNA or fingerprint evidence linked Mackey to the crime scene, the evidence of his guilt was overwhelming. And as Mackey concedes, revolvers are a somewhat common weapon that most citizens have a right to possess, so admission of the revolvers in this case would not be highly inflammatory or elicit an emotional response. Had the jury been negatively influenced or emotionally swayed by the admission of the guns, it likely would have convicted Mackey of first degree murder instead of the lesser included offense of second-degree murder. Accordingly, the record shows that substantial justice has been done. Any error in admitting the Smith and Wesson did not affirmatively prejudice Mackey's substantial rights.
Motion for downward departure
Mackey next argues the district court abused its discretion by denying his motion for a downward durational departure sentence. He contends substantial and compelling reasons existed for the district court to depart from the presumptive prison sentence of 653 months to 120 months.
We are not able to review the merits of this issue. K.S.A. 21–4721(c)(l) –now recodified as K.S.A.2014 Supp. 21–6820(c)(1) provides: “On an appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime.”
Mackey's criminal history score was A, and the severity level of his crime of conviction was 1. Mackey received a presumptive sentence within the A–1 grid block pursuant to K.S.A. 21–4704 –recodified as K.S.A.2014 Supp. 21–6804. On appeal, Mackey does not challenge the severity level of the charged offense, does not challenge his criminal history score, and does not dispute that the district court imposed the presumptive sentence.
Denial of a motion to depart filed by either the defendant or the State is not appealable when the sentence is within the presumptive sentence grid block. State v. Graham, 27 Kan.App.2d 603, 609, 6 P.3d 928, rev. denied 269 Kan. 936 (2000). The fact that the district court denied Mackey's motion for departure does not make his sentence appealable. As a result, we lack jurisdiction to consider this issue on appeal. See Graham, 27 Kan.App.2d at 609.
Apprendi issue
Mackey also contends the district court violated his Sixth and Fourteenth Amendment rights as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the State did not prove his prior convictions to a jury beyond a reasonable doubt. Instead, the judge determined his prior convictions at sentencing.
Mackey misconstrues Apprendi. That case held that [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (emphasis added.) 530 U.S. at 490. Apprendi approved the judge's use of prior convictions as a sentence-enhancing factor. 530 U.S. at 490. Nonetheless, Mackey contends that any fact that increases the maximum penalty must be included in the charging document and proved beyond a reasonable doubt before a jury. Mackey claims that the State's failure to follow these steps and the district court's use of this information prior to enhancing his sentence is in violation of Apprendi. Mackey, however, concedes the Kansas Supreme Court rejected a similar argument in State v. Ivory, 273 Kan. 44, 41 P .3d 781 (2002), but includes this issue to preserve it for federal review.
The Kansas Supreme Court held the use of a defendants criminal history score to determine a defendant's sentence is not unconstitutional under Apprendi, in Ivory, 273 Kan. at 46–48. Our Supreme Court has reaffirmed Ivory in State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013), and numerous other cases. The Court of Appeals is duty bound to follow the Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Since Mackey has misconstrued Apprendi and there is no indication our Supreme Court is departing from the Ivory decision, we reject this claim of error.
Affirmed.