Opinion
108,470.
09-26-2014
STATE of Kansas, Appellee, v. Raushan Ameer SMITH, Appellant.
Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates, LLC, of Leawood, for appellant. Steven J, Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Sarah Morrison Rapelye, of The Law Office of Stacey J. Lett & Associates, LLC, of Leawood, for appellant.
Steven J, Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Raushan Ameer Smith appeals his conviction of one count of attempted second-degree murder and one count of aggravated robbery. First, Smith argues that the State committed prosecutorial misconduct during its closing argument by misstating evidence. Second, Smith argues that the district court erred by basing his sentence on a criminal history that was not proved to a jury beyond a reasonable doubt. We are not persuaded by either of Smith's arguments and, therefore, affirm.
Facts
David Woodard met Dajanai Jackson at a gas station in the spring of 2008. Dajanai was pregnant and David offered to give her a ride to her doctor's appointment. That day, the two exchanged phone numbers. Over the next week, the two “hung out” at least twice. David described their relationship as cavalier, nonchalant, and nothing serious.
David and Dajanai engaged in sexual intercourse once. David testified that Dajanai initiated the sexual encounter. On the night they had sex, Dajanai used David's phone to send one or more texts, but he did not see the contents of the text or the recipient. David tried to learn who Dajanai had texted by looking at his phone the next morning, but the message(s) had been deleted.
On May 22, 2008, David received a call from someone identifying herself as “Jessica.” David believed that it was actually Dajanai calling. The person on the phone said she was driving to Olathe to see him and David agreed to meet her at a gas station. David planned to give Dajanai gas to drive back home.
David arrived at the gas station in Olathe shortly before 9:30 p.m. The woman he believed to be Dajanai called him, and he gave her directions to his location. Soon after he hung up, the woman called back, saying she was stuck in an alley nearby. David left the gas station, found the car the woman said she was in, and pulled up behind it.
As soon as David started to open his car door, somebody grabbed him and pointed a gun at his temple. Three people in total approached him. All three had guns. One of them told David to get down on the ground, so he got down on one knee. David put his wallet and cell phone on the ground immediately after he was pulled from his vehicle. Then, he heard one of the men tell another to open the trunk of the car. David decided to attempt to run away, broke the grip of the man holding him, and ran toward his vehicle. He ran along the passenger side of his vehicle, then ran 5 yards behind his vehicle, turned right, and ran toward the trees. While running away, he heard more than one bang. After he heard the second bang, he felt something hit him on the side of his head, his arm, and his back. He kept running, heard somebody say, “ ‘Come on, man. Come on. We gotta go. We gotta go,’ “ and then heard two cars speed off.
In connection with these events, Smith was charged with one count of aggravated robbery for the theft of David's cell phone, wallet, and Jeep, and one count of attempted first-degree murder. A jury trial was held on December 8 and 9, 2008.
Brittany Thompson testified at trial. Brittany dated John Treece, and John was friends with Smith, Rodney Cunningham, and Rodney's younger brother Denzell Cunningham. Brittany was with Rodney when he got a phone call from Dajanai, who told Rodney during this call that David raped her. Brittany also saw a text message on Rodney's phone that contained a pornographic photo and text that said: “ ‘I'm going to do you like I did your girl.” ’
Brittany testified that she, John, Rodney, and Smith hung out together at Rodney's house “[a]ll the time.” The men would occasionally separate from the women and have what they called “goon talks.” Brittany testified that they made plans during these goon talks. Brittany also testified that she heard the men say they were going to confront David and beat him up. The plan was to “get David Woodard.”
Brittany's role in the plan was to call David, use the names Jessica and Marissa, and attempt to lure him to a certain location. She testified she reached David by using a number Dajanai had given to Rodney. Eventually, David agreed to meet Brittany at a Hy–Vee in Olathe. Brittany testified that she, Smith, Denzell, John, and Rodney went to Olathe in Denzell's blue Taurus. They parked on the side of the Hy–Vee, and Rodney, John, and Smith got out and armed themselves with guns. Brittany stated Smith had a “long gun.” Brittany testified that Rodney, John, and Smith hid in the bushes and came out when David pulled up behind Denzell's car. After some yelling, Brittany remembered hearing three gunshots. Brittany stated Rodney and John got back in Denzell's car, Smith got in David's vehicle, and they all left.
Denzell also testified at trial. He testified that Rodney, John, and Smith came up with a plan about what they were going to do about Dajanai being raped. He testified that he only participated in one discussion about what was going to happen to David if the other guys were able to plan a confrontation with David. Denzell believed the plan was for Rodney to fight David.
On the night David was attacked, Denzell said he drove Rodney, John, Smith, and Brittany to Olathe. When he got to 119th Street in Olathe, he parked his car on a side street between a BP gas station and a Hy–Vee. Denzel testified that he, Smith, Rodney, and John got out of the car and hid in the bushes and that he was the only one in the bushes who did not have a gun. At some point, Denzell went back to the driver's side of his own car because he did not have a gun and he was driving. Denzell had his back turned when he heard someone say, “ ‘Get on the fucking ground. Get on the fucking ground.’ “ Denzell turned around when he heard gunshots. He saw David run and step over a curb. He saw Smith at the rear passenger door of David's vehicle. Smith had originally approached the driver's side of David's vehicle. Denzell testified that when he saw Smith, Smith was aiming his gun at David.
The jury convicted Smith of aggravated robbery and attempted second-degree murder, a lesser included offense of attempted first-degree murder. In October 2009, Smith filed an untimely pro se notice of appeal. In March 2012, Smith's trial counsel also filed an untimely notice of appeal. After issuing an order to show cause why the appeal should not be dismissed for lack of jurisdiction, this court retained the appeal pursuant to State v. Ortiz, 230 Kan. 733, 735–36, 640 P.2d 1255 (1982).
Analysis
Prosecutorial misconduct
Appellate review of misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence.
“In closing arguments, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and the controlling law.” State v. Raskie, 293 Kan, 906, Syl. ¶ 3, 269 P.3d 1268 (2012).
A prosecutor is free to include reasonable inferences based on the evidence in his or her closing argument. State v. Foster, 290 Kan. 696, 723, 233 P.3d 265 (2010).
If the prosecutor's comments were outside this latitude, the appellate court must determine whether the comments constituted plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Smith argues that the State misstated evidence several times during closing argument, which prejudiced the jury against him and denied him a fair trial. Although Smith did not lodge an objection to any of the statements he now challenges, a claim of prosecutorial misconduct based on comments made during closing argument may be reviewed on appeal even when a contemporaneous objection was not made at the district court level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Smith first asserts the State misstated evidence by telling the jury that he and Dajanai were involved in planning the attack on David: “The rest of that time, [John] and his boys, Rodney and [Smith], are in possession of that phone contriving, talking, plotting with Dajanai about how they're going to set this guy up.”
But we are not persuaded that the prosecutor misstated the evidence in making this comment. Brittany testified Dajanai called Rodney, told Rodney about the rape, and provided David's telephone number to Rodney. Although there is no other direct evidence in the record indicating Dajanai took part in formulating a plan to attack David, the information communicated by Dajanai to Rodney raises a reasonable inference that Dajanai was involved at some level in the plot to attack David. Moreover, Brittany testified that she, Rodney, Smith, and John were constantly together and that she heard the men say they were going to confront David and beat him up and that the plan was to “get David Woodard.” Finally, Denzell and Brittany testified that they traveled to Olathe with Rodney, John, and Smith and that Smith hid in the bushes with a gun alongside Rodney and John and thereafter confronted David when David pulled up in his vehicle. These facts raise a reasonable inference that Smith was involved in plotting against David. Consequently, this comment was within the latitude allowed to the State in making its closing argument.
Next, Smith asserts the State misstated evidence by saying, “Now, we know Dajanai lied [about being raped] and set this all in motion.” Specifically, Smith contends that there is no evidence that Dajanai lied about being raped. In support of this contention, Smith notes that Brittany never talked to Dajanai after Dajanai reported the alleged rape and Brittany never asked Dajanai what happened on the night of the alleged rape. Contrary to Smith's contention, however, there is evidence in the record to support a conclusion that Dajanai lied about being raped. David testified that his sexual encounter with Dajanai was consensual. In fact, David testified that Dajanai is the one who initiated the encounter. Although there may have been conflicting evidence about whether Dajanai was raped, the State's assertion that Dajanai was lying about the rape is a reasonable inference drawn from David's testimony.
The third comment challenged by Smith is when the State stated: “They don't care, ladies and gentleman, if [David] has a gun. It doesn't matter, because they're going to kill him.” Smith asserts this comment misstates the evidence because both Brittany and Denzell testified the plan was to beat up David, not kill him. But the comment made by the prosecutor must be taken in context. Notably, it came after the State informed the jury that there are multiple reasons someone may have a gun, but the only logical reason for these men to have guns was to shoot somebody. Moreover, there is ample circumstantial evidence in the record to support a reasonable inference that the plan was to kill David. Brittany testified that all three assailants, including Smith, had guns when they hid in the bushes prior to attacking David. Further, the record reflects that multiple shots were fired when David ran, and a shot from at least one gun made contact with him.
The final comment challenged by Smith was when the prosecutor stated: “[Denzell] sees a shell casing bouncing on the ground from [John's] gun and sees [Smith] tracking and following [David] as he's running.” Smith argues there is no evidence that he was “ ‘tracking’ “ and “ ‘following’ “ David. We disagree. Denzell testified that Smith was aiming his gun at David as David was running. Further, Denzell testified that Smith first approached David's vehicle on the driver's side, but after shots were fired Denzell saw Smith on the passenger side. David testified that when he ran, he first ran along the passenger side of his vehicle; thus, the evidence shows that Smith moved to a location closer to where David ran during his escape and aimed a gun at David. Given this evidence, the statement that Smith was tracking and following David was a reasonable inference.
Based on the above analysis, none of the comments were outside the wide latitude given to a prosecutor in making closing arguments. Given our finding in this regard, it is unnecessary to consider the prejudice step of the analysis.
Criminal history
Smith argues his sentence was unconstitutional under Apprendi v.. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it was enhanced based on a criminal history that was not proved to a jury beyond a reasonable doubt. Smith concedes in his brief that the Kansas Supreme Court has previously rejected this claim in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2001). Further, the Kansas Supreme Court recently reaffirmed its holding in Ivory, ruling that the use of prior convictions to enhance a sentence is constitutional and does not violate Apprendi. State v. Baker, 297 Kan. 482, Syl. ¶ 4, 301 P.3d 706 (2013). Accordingly, we find no merit to Smith's argument on this point.
Affirmed.