Opinion
111,601.
08-14-2015
STATE of Kansas, Appellee, v. Schina T. GANTT, Appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Schina T. Gantt appeals his convictions of aggravated robbery and attempted first-degree murder. Gantt clairis: (1) there was insufficient evidence to support his convictions; (2) the district court erred when it denied him the opportunity to confront the witnesses against him; (3) the district court erred when it failed to instruct the jury on the lesser offense of attempted voluntary manslaughter; and (4) the district court erred when it allowed a witness to comment on the credibility of Gantt and the complaining witness. For the reasons stated herein, we reject Gantt's claims and affirm the district court's judgment.
Because Gantt is challenging the sufficiency of the evidence to support his convictions, we will review the underlying facts in detail. On July 31, 2013, at about 11:05 p.m., Officer Stephen Schmitt of the Wichita Police Department was dispatched to a call at a residence on North Piatt in Wichita. When Schmitt and other officers arrived at the scene, they went up to the house and tried to open the door but it was locked. Schmitt heard a person inside calling for someone to kick in the door. Another officer kicked in the door, and the officers entered the house. Schmitt noticed a black male, who was later identified as Maurice Kelly, lying on the floor and holding a white t-shirt or rag over his neck covered in blood. Schmitt called for EMS. The officers secured the residence but they did not locate a suspect or any other individuals inside the house.
After the house was secure, Schmitt returned to where Kelly was lying on the floor. Another officer asked Kelly who had attacked him, and Kelly replied, “Shorty.” At the hospital, Schmitt talked to Kelly to try to determine who Shorty was and what happened that led to Kelly's injuries. Kelly told Schmitt that Shorty cut him with some knives from Kelly's kitchen while Shorty was getting a drink of water. Kelly also identified a person named Chill as coming to the house with Shorty. While Schmitt was questioning Kelly, he was in a lot of pain, but he was cooperative.
While at the hospital, Kelly was interviewed by Detective Patrick Phipps. Kelly told Phipps that he was stabbed in his home by someone named Tyrone or Shorty. Kelly could not provide the full name of the person who attacked him. After the interview, Phipps ascertained that the real name of Tyrone or Shorty might be Gantt. Kelly obtained a photograph of Gantt and put it into a “six-pack lineup.” On August 2, 2013, Phipps took this lineup to the hospital to show Kelly. Kelly identified the photograph of Gantt as the person who stabbed him.
At trial, Kelly provided the following account of how he was attacked. According to Kelly, Gantt came to his house around 10 or 11 on the morning of July 31, 2013. When he came over, Kelly's next door neighbor, Six, was with Gantt. Kelly's friend, Chill, also was with Gantt. Gantt, Six, and Chill were at Kelly's house to buy cocaine. Kelly sold Gantt cocaine, and Gantt and Kelly smoked the cocaine. After Gantt smoked his first rock of cocaine, he bought another. Each rock was two-tenths of a gram and cost $20.
After Gantt bought the second rock, he told Kelly that he had to go cut a lawn. Six and Chill stayed at Kelly's house while Gantt went to cut the lawn. Gantt was only gone for about 15 minutes. When Gantt returned, he bought more cocaine and smoked it with Kelly. After smoking the cocaine, Gantt left to cut another lawn. While Gantt was gone, Six and Chill left Kelly's house.
Gantt returned to Kelly's house again and smoked more cocaine. After smoking the cocaine, Gantt was talking with Kelly about how he had to work for the rest of the day. Gantt wanted a drink of water, and Kelly told him to go ahead and get one. While Gantt went into the kitchen to get water, Kelly was facing the front door with his back to the kitchen. After Kelly heard the faucet turn on, the next thing he remembered was his throat being cut. Kelly initially could not see who was behind him with the knife, but Gantt was the only other person in the house. After his throat was cut, Kelly fell to the floor on his back. Gantt was holding several knives, which Kelly recognized as belonging in his kitchen. Gantt began stabbing Kelly in the chest with the knives.
While Kelly was lying on the floor, he tried to fight off Gantt. During the fight, Gantt pulled off Kelly's right sock. This was where Kelly kept the drugs he was using and selling. When Gantt pulled the sock off, the cocaine, which was in a sandwich bag, went flying through the bathroom door. Gantt went to where the cocaine fell, picked it up, and put it in his pocket. After he got the bag of cocaine, Gantt picked up a knife he lost in the initial struggle with Kelly and said, “Now I gotta kill you, nigger.” Kelly and Gantt scuffled, and Kelly was able to use his feet to prevent Gantt from getting close to him. During the scuffle, Kelly told Gantt, “Hey ... [y]ou ain't gotta do this. I'll give you this shit.” Gantt then walked back to the door that was just off the kitchen, opened it, made sure the door was locked, closed the door, and left. Gantt did not say anything as he left.
After Gantt left, Kelly called 911. Kelly tried to stop the bleeding by putting his hand over his chest and pressing on it. Kelly thought he might die depending on how fast help arrived. Kelly told the dispatcher that he was “bleeding out,” but he threw his phone away from him so he would not have to answer the dispatcher's questions. After a while, Kelly heard the police beating on his door.
As part of the crime scene investigation, Carla Patton of the Wichita Police Department attempted to lift fingerprints off the chairs in Kelly's home, but she was unable to lift any prints from the chairs. The glass tabletop also was not conducive to fingerprints because it was covered in blood. She also could not retrieve fingerprints from the front door or the back door. Patton swabbed some blood for potential DNA testing. However, Phipps elected to forego DNA testing as part of his investigation of the case.
Phipps interviewed Gantt after Kelly identified Gantt's photograph as his attacker. Phipps provided Gantt with Miranda warnings and asked him about the day of the attack. Gantt admitted that he was at Kelly's house that day at multiple times, but he denied being involved in any attack on Kelly. During the interview, Gantt acknowledged that some people call him by his nickname of Shorty.
On August 6, 2013, the State charged Gantt with one count of aggravated robbery and one count of attempted first-degree murder. The jury trial began on January 27, 2014. Schmitt, Patton, Phipps, and Kelly testified for the State. Kelly identified Gantt as the individual who slashed his throat and stabbed him. On cross-examination, Gantt's attorney challenged Kelly's credibility by pointing to his intoxication on the day of the attack, his discrepancy on the time of the attack, his identification of the attacker as Shorty, his prior convictions for crimes of dishonesty, his incentive to testify in exchange for immunity, and his negative attitude toward law enforcement.
Gantt called his older brother, Norman Gantt, as a witness. Norman testified that he saw Gantt walking down the street on July 31, 2013, around 5:30 p.m., and there did not appear to be anything wrong with him. Norman indicated that Gantt often slept in Norman's Jeep Cherokee. Norman testified that on August 1, 2013, he searched the back of the Jeep because he had heard “rumors” that Gantt had cut somebody or had been in a fight. Norman testified that he did not see any blood or knives in the back of the Jeep. Charlotte Gantt, Gantt's sister-in-law, testified that she sometimes calls Gantt by the name of Tyrone but she has never heard anyone call him Shorty. Charlotte testified that she saw Gantt walking down the street on July 31, 2013, between 6 p.m. and 6:15 p.m., and everything seemed to be normal.
During the jury instruction conference, Gantt informed the district court that he wanted to pursue an all or nothing defense, and he objected to an instruction on the lesser offense of attempted second-degree murder. The district court noted the objection but found that the court was required to give the instruction nonetheless. The parties never discussed a lesser offense instruction on attempted voluntary manslaughter.
On January 30, 2014, the jury found Gantt guilty as charged of one count of aggravated robbery and one count of attempted first-degree murder. On April 1, 2014, the district court sentenced Gantt to 272 months' imprisonment for attempted first-degree murder and 59 months' imprisonment for aggravated robbery. The district court ordered the sentences to run concurrently. Gantt timely appealed the district court's judgment.
Gantt first argues there was insufficient evidence to support his convictions of aggravated robbery and attempted first-degree murder. Gantt points out that the only evidence of his involvement in the crimes is Kelly's uncorroborated testimony. Gantt points to Kelly's intoxication on the day of the attack, his discrepancy on the time of the attack, his identification of the attacker as Shorty, his prior convictions for crimes of dishonesty, his incentive to testify in exchange for immunity, and his negative attitude toward law enforcement as evidence that calls Kelly's credibility into question.
The standard of review for a sufficiency of the evidence challenge is, after viewing the evidence in the light most favorable to the prosecution, whether the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Betancourt, 301 Kan. 282, 302, 342 P .3d 916 (2015). An appellate court does not make witness credibility determinations, resolve evidentiary conflicts, or reweigh evidence when evaluating the sufficiency of the evidence. State v. Kettler, 299 Kan. 448, 466, 325 P.3d 1075 (2014).
As a preliminary matter, the State argues that Gantt has failed to preserve this issue for appeal because the burden is on Gantt to designate a record that affirmatively establishes his claimed error and, in this case, Gantt has failed to include in the record on appeal the State's 25 exhibits that were admitted into evidence at trial. It appears from the record that the 25 exhibits included the 911 tape, photographs of the scene of the attack, and a diagram of the interior of Kelly's house. The State fails to cite any authority to support its claim that Gantt's failure to include the trial exhibits in the record on appeal prevents Gantt from challenging the sufficiency of the evidence to support his convictions. A point raised incidentally in a brief and not argued therein is deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). Failure to support a point with pertinent authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). We find no merit in the State's contention that Gantt's failure to include the trial exhibits in the record on appeal amounts to a waiver of his sufficiency of the evidence claim.
The only disputed issue at Gantt's trial was the identity of Kelly's attacker. Although Gantt challenged Kelly's credibility at trial and pointed to some inconsistencies in his testimony, the fact remains that Kelly positively identified Gantt at trial as his attacker. Prior to trial, Kelly identified Gantt in a photo lineup and this identification was never challenged by Gantt. Kelly never identified anyone other than Gantt as his attacker. Although Kelly referred to his attacker as Shorty, Gantt admitted in his interview with Phipps that some people call him by his nickname of Shorty.
Here, Gantt essentially is asking this court to find Kelly's testimony not credible. But an appellate court does not weigh the credibility of a witness when reviewing the sufficiency of the evidence. Kettler, 299 Kan. at 466. Gantt presented some evidence at trial that tended to support his claim of innocence. But upon reviewing all the evidence in the light most favorable to the State, we conclude the evidence was sufficient to convince a rational factfinder that Gantt was guilty of the charges beyond a reasonable doubt.
Gantt's Right to Confront the Witnesses
Next, Gantt argues that he was denied his right to confront the witnesses against him. At trial, Schmitt testified about statements Kelly made to police officers at his house and at the hospital on the night of the attack. When Kelly later testified at trial, he stated on cross-examination that he could not remember much of what he had said to Schmitt. Gantt now argues on appeal that he was effectively denied his right to cross-examine Kelly, and he was denied the right to confront the witnesses against him.
As the State points out, Gantt has failed to properly preserve this issue for appeal. At trial, Gantt objected to Schmitt's testimony about Kelly's statements, but the objection was not based on confrontation, it was based on hearsay. A party cannot object to evidence on one ground at trial and challenge the admission of the evidence on a different ground on appeal. State v. Longoria, 301 Kan. 489, 520, 343 P.3d 1128 (2015).
Gantt is attempting to raise his confrontation issue for the first time on appeal. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Although there are exceptions to this general rule, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that the issue is improperly briefed and will be deemed waived or abandoned. See State v. Godfrey, 301 Kan. 1041, 1043–44, 350 P.3d 1068 (2015) ; State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). Here, Gantt does not argue for the application of any exception to the general rule that constitutional claims may not be raised for the first time on appeal. His failure to satisfy Rule 6.02(a)(5) in this respect amounts to an abandonment of the constitutional claim. See 298 Kan. at 1085.
Jury Instruction on Lesser Offense of Attempted Voluntary Manslaughter
Next, Gantt argues that the district court erred by failing to instruct the jury on attempted voluntary manslaughter as a lesser offense of attempted first-degree murder. Gantt argues that the evidence allows for a possibility that a fight or a sudden quarrel arose between Kelly and Gantt and deadly force became necessary. Gantt acknowledges that he did not request a jury instruction at trial on attempted voluntary manslaughter.
The State initially claims that Gantt has invited any error caused by the district court's failure to instruct on attempted voluntary manslaughter. The State points out that Gantt objected to the district court instructing the jury on the lesser offense of attempted second-degree murder. In making the objection, Gantt's counsel indicated that Gantt was pursuing an all or nothing defense. The parties never discussed a lesser offense instruction for attempted voluntary manslaughter.
Although Gantt objected to the district court giving a jury instruction on attempted second-degree murder and indicated he was pursuing an all or nothing defense, Gantt never expressly stated that he was objecting to jury instructions on all lesser offenses. Thus, we reject the State's claim that Gantt is completely barred from raising this issue under the invited error doctrine. Nevertheless, Gantt did not request a jury instruction on attempted voluntary manslaughter. A party cannot claim error for the district court's giving or failing to give a jury instruction unless (1) the party objects before the jury retires, clearly stating the matter to which the party objects and the grounds for the objection; or (2) the instruction or the failure to give the instruction was clearly erroneous. State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).
Voluntary manslaughter is “knowingly killing a human being ... upon a sudden quarrel or in the heat of passion.” K.S.A.2014 Supp. 21–5404(a)(l). Attempt “is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof.” K.S.A.2014 Supp. 21–5301(a).
Kansas considers sudden quarrel as one form of heat of passion. State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d 517 (2010). “Heat of passion” is defined as “ ‘any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,’ based ‘on impulse without reflection.’ “ State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014) (quoting State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 [1985] ). The key elements of voluntary manslaughter are an intentional killing and legally sufficient provocation. Hayes, 299 Kan. at 864. When reviewing whether provocation was legally sufficient, an objective test is used. 299 Kan. at 864. The provocation “ “ ‘must be sufficient to cause an ordinary man to lose control of his actions and his reason.” ‘ “ 299 Kan. at 864.
Here, there was no evidence of a sudden quarrel or heat of passion, as those terms are defined under Kansas caselaw, that would have supported the giving of a jury instruction on attempted voluntary manslaughter. The only description of the attack came from Kelly, and he testified that he was attacked from behind without provocation. Gantt's defense was that he was not involved in the attack. Thus, there was no error, much less clear error, in the district court's failure to instruct on the lesser offense of attempted voluntary manslaughter.
Comment on the Credibility of Gantt and the Complaining Witness
Finally, Gantt argues that the district court erred when it allowed Phipps to testify about the credibility of Gantt and Kelly. Specifically, Gantt complains that Phipps was allowed to testify that Kelly's identification of Gantt as his attacker was consistent throughout the investigation. Gantt also complains that Phipps was allowed to testify that Gantt was trying to be deceitful in his interview with Phipps.
The State claims that Gantt has failed to preserve this issue because he failed to make contemporaneous objections at trial to Phipps' testimony. As the State points out, K.S.A. 60–404 requires a timely and specific objection to the admission of evidence at trial in order to preserve issues arising from that admission for appellate review. See State v. King, 288 Kan. 333, 341–46, 204 P.3d 585 (2009) (emphasizing strict enforcement of contemporaneous objection rule).
Here, Gantt's only objection during Phipps' testimony came on one occasion when he was asked to describe Kelly's demeanor. The district court overruled the objection and Phipps testified that Kelly was consistent in his identification of Gantt as his attacker. In giving this answer, Phipps was not improperly commenting on Kelly's credibility. He simply was making the point that Kelly never identified anyone other than Gantt as his attacker. As to Phipps' testimony that he believed Gantt was being deceitful during his interview, we note this testimony was solicited on cross-examination by defense counsel. In any event, there was no contemporaneous objection to the testimony. As the State points out, Gantt's complaint about this evidence is not properly preserved for appeal.
Affirmed.