Opinion
No. 107,505.
2013-05-17
STATE of Kansas, Appellee, v. Michael Owen WILLIAMS, Appellant.
Appeal from Johnson County; Peter V. Ruddick, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson County; Peter V. Ruddick, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Michael Williams appeals his conviction for attempted first-degree murder, raising two issues: (1) that his waiver of the right to a jury trial was neither knowing nor voluntary and (2) that the evidence wasn't sufficient to convict him for this offense.
We do not find either claim persuasive. Williams was present when his attorney told the district court that Williams, after conferring with his attorney, preferred to have the trial judge determine the facts of the case rather than a jury. Immediately after that, the judge directly confirmed with Williams that he'd had a chance to fully discuss the jury-trial waiver with his attorney, and the judge explained that if Williams gave up his right to a jury trial, he couldn't reassert it later. So the record shows that Williams knowingly and voluntarily waived his jury-trial right.
As to the evidence against Williams, a rational fact-finder could conclude:
• that Williams had an initial encounter with the victim, after which Williams left and got a shotgun before encountering the victim again 15 minutes later; and
• that Williams then fired the shotgun toward the victim, who was struck by shotgun pellets in his face, chest, abdomen, and thighs.
From this evidence, a rational fact-finder could then conclude that Williams thought about killing the victim (by getting a gun) and that he intended to kill the victim (by shooting him)—providing a basis for the conviction of attempted first-degree murder—even though Williams claimed he had pulled the trigger only by accident. We therefore affirm the district court's judgment.
Factual Background
On June 4, 2010, Michael Williams and Donovan Walker were involved in an altercation in a parking lot in Shawnee, Kansas. A brief time later, in a different parking lot, Williams shot Walker with a shotgun. Williams was charged with attempted first-degree murder.
Williams waived his right to a jury trial at a pretrial hearing. The case proceeded to a trial to the district judge.
The State presented evidence that Williams had shot Walker because of a road-rage dispute. Walker testified that earlier in the evening of the shooting, Walker's girlfriend, Brianna, had driven him and his 14–year–old son, D.J., to Old Shawnee Pizza to pick up a pizza for dinner. Brianna's testimony confirmed Walker's account of the evening's events. We will begin our factual review with the version of events they described. In this appeal, since the district court decided the case in favor of the State, and the district court—not this appellate court—is the judge of the facts, we are required to take the evidence in the light most favorable to the State. See State v. Frye, 294 Kan. 364, 375, 277 P.3d 1091 (2012).
Walker had noticed a man on a red motorcycle—later identified as Williams—honking his horn behind their car. After both vehicles had parked, Williams came up to Brianna and began cussing at her, yelling that she had stopped short on the road. Brianna and Williams pushed each other; Walker then pushed Williams, and they exchanged angry words. Walker testified that Williams told him, “Wait right here, fucking nigger. I'll be right back.” Williams then got on his motorcycle and drove away.
Walker said that after spending 2 or 3 minutes getting the pizza, he, Brianna, and D.J. began heading home. During the drive, D.J. said, “Dad, somebody is shooting at us.” Walker said he thought it sounded like fireworks, but DJ. claimed to see the handle of a gun from the small red car behind them. Walker told Brianna to pull into the parking lot of Sharks bar and grill because he believed that they would be safer in front of a large crowd. Walker then told Brianna to drive D.J. home and said he would walk home through a hole in the gate behind Sharks.
Walker testified that he spotted the red car in the parking lot of Yarbrough's restaurant next door and began walking towards it. Yarbrough's restaurant was closed at the time. Walker testified that he recognized Williams inside the car but didn't intend to fight him—he simply wanted to stall Williams so DJ. and Brianna could get away. Walker put his hands up and said, “What is up?” No further words were exchanged. At that point, Williams fired a shot from the car's window and then sped off. Walker was struck by pellets from a shotgun shell in his face, chest, abdomen, and thighs. Shortly thereafter, Brianna drove Walker to the hospital.
Williams presented a different version of events, maintaining that although he shot Walker, Williams never intended to kill him. Williams described driving fast and doing wheelies on his motorcycle behind Brianna's car. Williams recalled Brianna yelling at him when the vehicles parked. Williams said that Walker, while holding what looked like a pocketknife, pulled Williams off his motorcycle and threw him to the ground. Williams then cussed at Brianna, hopped back on his motorcycle, and drove away.
Williams said he drove home to pick up his car and then drove to his friend Lance's house to pick up a shotgun. Williams gave a reason for picking up the shotgun that had nothing to do with the altercation with Walker. Williams testified that he had left the gun at Lance's house previously and that Lance's father wanted Williams to take it out of the house. Williams claimed that he and Lance had already arranged for Williams to pick up the gun and this just happened to be the day Williams decided on. Williams adamantly denied any plan to track down Walker because of the earlier confrontation.
About 15 to 25 minutes after the first confrontation, Williams said he saw Brianna's car again pulling out of the pizza restaurant as Williams was driving down the road. Williams said he then turned around and sped off, trying to lose them, and pulled into the empty parking lot at Yarbrough's to hide, turning the car's lights off. When Williams saw Walker approaching him with his hand up, Williams assumed Walker had something in his hand even though he couldn't see very well because of the darkness. According to Williams, Walker said, “Just me and you. What are you going to do?” Williams said that because he was scared, he reached for his shotgun and pointed it out the window. Williams claimed he didn't know that the shotgun was loaded and that his goal was simply to scare Walker: “I figured if he had a knife or anything, you know, maybe a gun would scare him a little bit more to not come towards me again.”
Williams then said he accidentally pulled the trigger as he was trying to turn the car on to escape:
“I start holding [the gun] with my left hand, you know, go to turn the car back on. Fuck it, let's just go out and get out of—I guess I had my finger on the trigger at the same time while I'm doing that. You know, I am not very strong with my left hand. I ended up pulling the trigger and it ended up shooting.”
Williams thus characterized his pulling the trigger as an accident. Williams said he then sped away, not realizing that Walker had been shot. Williams further insisted that he only fired the single shot that night.
In addition to Williams' trial testimony, the district court also saw a video of Williams' earlier statements to police. At that time, Williams described Walker pulling him off his motorcycle. Williams admitted to shooting Walker but was adamant that he only fired one shot. Williams told the officers where the shotgun was and where he bought it. Police found a shotgun during a search of Williams' residence. Williams initially said he had been coming home from his friend Lance's but later said he was coming home from work. Williams consistently stated that he was afraid of Walker.
In his statements to police, Williams never mentioned Walker having had a knife; Walker testified that he never had a weapon during the events of that night. More significantly, in his statements to police, Williams didn't say that he had pulled the trigger accidentally. To the police, Williams had indicated that he pulled the trigger because he was scared. In a written statement to police, for example, Williams wrote: “[Walker] raised [his] arm up like he had a gun[.] I then reach[ed] behind my seat and grab[bed] my shot gun and fired....”
In announcing its ruling, the district court noted that Williams' various statements to police and at trial were “dramatically inconsistent in some pretty important particulars” but did not elaborate further. The court also observed that the intervening time between the two confrontations diminished any claim that Williams was acting in self-defense. The district court found Williams guilty of attempted first-degree murder. The court gave Williams a 176–month prison sentence, and Williams appealed to this court.
Analysis
I. Williams' Waiver of Jury Trial Was Knowing and Voluntary.
Williams argues that the district court failed to properly advise him of his right to a jury trial before he waived that right. Although Williams did not raise this issue before the district court, and issues not raised before the district court usually cannot be raised on appeal, the Kansas Supreme Court recently found that it was appropriate to consider a jury-trial-waiver issue even when it was not raised below. State v. Beaman, 295 Kan. 853, 857–58, 286 P.3d 876 (2012). We will therefore proceed to consider the issue on its merits. The facts concerning Williams' jury-trial waiver are undisputed and found in a court transcript, so whether his waiver was knowing and voluntary—and thus effective—is a legal question that we review independently, without any required deference to the district court. 295 Kan. at 858.
A criminal defendant may waive the fundamental right to a jury trial if the court and State agree to the waiver. 295 Kan. at 858 (citing K.S.A. 22–3403). But a waiver of jury trial must be strictly construed and cannot be accepted unless the court advises the defendant of the right to a jury trial and the defendant personally waives that right, either in writing or in open court. Beaman, 295 Kan. at 858;Frye, 294 Kan. at 372 (quoting State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 [1975] ). A waiver will be deemed valid if “it was voluntarily made by a defendant who knew and understood what he or she was doing. Whether that test is satisfied depends upon the particular facts and circumstances in each case.” Beaman, 295 Kan. at 858 (citing Irving, 216 Kan. at 589).
Williams' jury-trial waiver was made in a pretrial hearing at which Williams appeared with his attorney, Zane Todd. At the beginning of the hearing, Todd told the court that Williams wanted to waive his jury-trial right:
“Mr. Todd: May it please the Court, Mr. Williams appears in person with counsel[,] Zane Todd. Your Honor, I had a conversation with Mr. Williams about this case, and we determined that we would prefer the Court decide the facts of this case rather than a jury. I let [the prosecutor] know about that, and he is in—has no objection to that. So with the Court's permission, we would like to waive the jury trial and set it for a bench trial at the earliest possible time.”
The prosecutor confirmed that the State was also willing to try the case to the court, sitting without a jury.
At that point, the district court accepted the waiver only after first having a discussion directly with Williams, in which the court emphasized that if Williams gave up his jury-trial right, he could not reassert it again later:
“THE COURT: All right. Mr. Williams, you have had a chance to fully discuss this with [counsel]; correct?
“THE DEFENDANT: Yes, sir.
“THE COURT: I am sure he explained this all to you, but you do have a right to a trial of this case before a jury of your peers. If you waive that right, a district court judge, probably me, but some district court will decide the case. You won't be able to reassert your right to a jury after you waive it. Do you understand all that?
“THE DEFENDANT: Yes, Judge.
“THE COURT: I will accept that waiver as knowing and voluntary.”
On appeal, Williams concedes that he was informed of his right to a jury trial, but he argues that he was not informed of “essential components” of that right, “such as the idea that twelve jurors must unanimously find [him] guilty beyond a reasonable doubt versus one district court judge deciding the facts.” Williams cites Frye, 294 Kan. at 372–73, for the proposition that a defendant may not understand his right to a jury trial. But in Frye, the only evidence of the defendant's waiver was a handwritten, undated document. 294 Kan. at 372–73. The verdict was reversed because “[t]here is absolutely nothing in the record indicating that the district court made any attempt to advise Frye of the nature and extent of his constitutional right to a trial by jury.” (Emphasis added.) 294 Kan. at 373. Here, the record clearly establishes that the court informed Williams of his right to a jury trial in open court.
Our case is more like Beaman, in which the jury-trial waiver was upheld, than Frye. In Beaman, as here, the defendant argued that the district court failed to fully inform him of what his right to jury trial entailed. 295 Kan. at 856. Beaman admitted committing the alleged acts, indicated he had discussed the decision with his counsel, gave thoughtful answers on why he wanted to waive his rights—against both his counsel's and the court's advice—and later argued for a departure sentence because of his waiver. 295 Kan. at 859–60. But the district court did not explicitly inform Beaman of his right to a jury trial. 295 Kan. at 860. Although this was not the best practice, our Supreme Court was satisfied that Beaman understood the rights he had and was giving up. 295 Kan. at 860–61. Accordingly, the court held that under the facts and circumstances in his case, Beaman's jury-trial waiver was knowing and voluntary. 295 Kan. at 861–62; see State v. Fisher, 257 Kan. 65, 73–74, 891 P.2d 1065 (1995) (no error in waiver because defendant spoke with counsel prior to decision, was informed of constitutional right to jury trial and effect of a bench trial, and showed desire to have bench trial).
Here, Williams' counsel told the court that after discussion between client and counsel, Williams wanted to waive his jury-trial right. The district court confirmed with Williams that he'd had a chance to “fully discuss” this with his attorney, the district court told Williams that he had a right to a jury trial, and the district court told Williams that if he waived his jury-trial right, he couldn't get it back later. We note too that Williams made no mention at sentencing that he hadn't meant to waive his jury-trial right or that he hadn't understood what he'd done.
Regarding Williams' argument that the district court should have informed him that 12 jurors would have to unanimously convict him, our Supreme Court expressly rejected an identical argument in Beaman. 295 Kan. at 862. The court noted that it has never required such an explanation for a defendant's waiver to be valid and has “held a waiver knowingly and voluntarily made even when the district court did not inform the defendant of his right to a unanimous verdict.” 295 Kan. at 862.
We find that Williams' waiver of his right to jury trial was knowing and voluntary. The district court did not err in accepting Williams' waiver and proceeding to a trial to the court.
II. The State Presented Sufficient Evidence to Convict Williams of Attempted First–Degree Murder.
Williams also argues that there was insufficient evidence to convict him of attempted first-degree murder. While Williams admits to firing the shotgun, he insists that there was no evidence of either intent to kill Walker or of premeditation.
When the sufficiency of evidence is challenged in a criminal case, we must review the claim by looking at all the evidence in a light most favorable to the prosecution since the fact-finder found in its favor. Considering the facts in that light, we must then determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. Frye, 294 Kan. at 374–75. Generally, we do not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable fact-finder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983). A verdict may be supported by circumstantial evidence as long as the 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. State v. Scaife, 286 Kan. 614, 618, 186 P.3d 755 (2008).
Attempted first-degree murder requires an attempted killing of a human being committed intentionally and with premeditation. K.S.A. 21–3301; K.S.A. 21–3401. An attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime.” K.S.A. 21–3301. Intentional conduct is “purposeful and willful and not accidental.” K.S.A. 21–3201.
It is clear that Williams committed an overt act towards first-degree murder—he admitted pulling the trigger of a shotgun aimed at Walker. The question here is whether there was sufficient evidence that Williams did so with the intent to kill Walker and with premeditation.
In making his arguments, Williams relies heavily on his own version of events rather than the State's. Williams states simply that his actions were not intended to kill Walker and that he had always planned on picking up his shotgun that evening. Accordingly, Williams maintains that he lacked both the intent to kill and premeditation.
It is true that the State presented no direct evidence of Williams' intent to kill and little direct evidence of premeditation. But Williams wholly ignores the possibility that the district court—as the fact-finder—found his testimony not credible and inferred both intent to kill and premeditation from the basic facts of the crime.
Intent to Kill
Although the State could present no direct evidence that Williams intended to kill Walker, that intent surely could be inferred from the evidence here. The clearest evidence of intent to kill can be inferred from Williams' use of a shotgun—a deadly weapon. Williams' contention that he only pointed the gun at Walker to scare him and that he pulled the trigger accidentally makes little sense if Williams intentionally tracked Walker down after picking up his shotgun, which is a reasonable inference from the facts (as we will consider more fully in a moment with respect to premeditation). The State also suggests that Williams' shot was very accurate—it struck Walker in the face, chest, abdomen, and thighs. An accurate shot supports a finding that the shotgun wasn't fired accidentally or in an attempt to merely scare Walker.
Premeditation
Premeditation simply means “ ‘thinking about a proposed killing before engaging in the homicidal conduct.’ “ State v. Sanchez–Cazares, 276 Kan. 451, 458, 78 P.3d 55 (2003) (quoting State v. Saleem, 267 Kan. 100, 104, 977 P.2d 921 [1999] ). Premeditation may be inferred from circumstantial evidence but may not be inferred merely by the use of a deadly weapon. Sanchez–Cazares, 276 Kan. at 458–59;State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000). No specific time period of premeditation is required so long as there is “more than the instantaneous” act of killing another person. State v. Mortis, 277 Kan. 267, 301, 83 P.3d 1216 (2004).
Despite Williams' testimony to the contrary, there is evidence that Williams thought about killing Walker before pulling the trigger. In the short time between encounters, Williams left the scene and picked up his car—and his shotgun—before coming across Walker again. Although Williams claims that the second encounter was unplanned, the circumstances strongly suggest a retaliatory motive. Otherwise, the fact that Williams happened to encounter Walker again—this time while armed with a shotgun—would be an incredible coincidence. It appears that the district court understandably didn't believe Williams' testimony that the second encounter was unplanned. Additionally, Walker alleged that Williams stated, “Wait right here, fucking nigger. I'll be right back.” If Williams purposefully tracked Walker down after acquiring a shotgun, that would constitute evidence of premeditation—that Williams thought about shooting and potentially killing Walker before pulling the trigger.
Although the evidence concerning Williams' mental state is largely circumstantial, a rational fact-finder could have found beyond a reasonable doubt that Williams possessed both intent to kill and premeditation. Because this court will not reweigh the evidence and must resolve all inferences in favor of the State, Williams' unsupported testimony is entitled to little weight on appeal. There was sufficient evidence to convict Williams of attempted first-degree murder.
The district court's judgment is affirmed.