State v. Carter ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 120,103
STATE OF KANSAS,
Appellee,
v.
QUINCY R.T. CARTER,
Appellant.
SYLLABUS BY THE COURT
1.
Under both the United States Constitution and Kansas statutory law, a criminal
defendant enjoys the right to a public trial.
2.
The right to a public trial implies that doors to the courtroom be kept open and that
the public, or such portion of the public as may be appropriately accommodated, be
admitted, subject to the authority of the court to exclude objectionable characters.
3.
The right to a public trial right extends to jury selection.
4.
A courtroom may be closed in the constitutional sense without an express judicial
order.
1
5.
When a constitutional question presents mixed questions of fact and law, Kansas
appellate courts give deference to trial court factual findings that are supported by
substantial evidence.
6.
K.S.A. 60-404 requires a contemporaneous objection to the admission of evidence
in order to obtain appellate review.
7.
A pretrial objection alone is not timely for purposes of K.S.A. 60-404 because an
in limine ruling is subject to change as the case goes forward.
8.
The admission of expert testimony lies within the discretion of the district court
and will not be reversed without a showing that the court abused its discretion.
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed December 18, 2020.
Affirmed.
Richard Ney, of Ney, Adams & Miller, of Wichita, argued the cause, and was on the briefs for
appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
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ROSEN, J.: Quincy R.T. Carter appeals from his convictions for two counts
of first-degree murder, two counts of criminal discharge of a firearm, and one
count of criminal possession of a firearm.
The relationships, including gang affiliations, of the principal parties in the
events leading up to the violence that generated the convictions and appeal in this
case are set out in a companion appeal, State v. Carter, 311 Kan. 783, 466 P.3d
1180 (2020). In that appeal, this court affirmed the conviction of Brent J. Carter of
felony murder arising out of the same shootings that underlie the present appeal.
We summarize here the facts necessary to understand the issues on appeal.
On the day of the confrontation, December 1, 2015, Luerene Browning, and
her cousin, Tatyana Crowe, were at the home of Browning's mother, Betty
Holloman. Browning's sisters, Sharmethiea and Crystal, and her stepfather, John
Collins, were also at the home that day.
That afternoon, Magic Jamerson and Brenton Oliver visited Browning and
Crowe at the home. Jamion Wimbley drove to the house that afternoon to drop off
Khalah Beard, who was a friend of Browning and Crowe's. When Wimbley pulled
up, Crystal was outside in the driveway smoking and talking on the phone. Crystal
ended her conversation so that she could talk with Wimbley. While the two were
talking, Oliver ran out of the residence over to Wimbley's car, shouting and
cursing.
The two engaged in a confrontational discussion, and Wimbley appeared
frightened. As described in Carter, 311 Kan. at 785, one or two weeks before that
confrontation, the two had been in a fight, and the confrontation in the driveway
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seemed to be carrying forward the issues from the earlier physical altercation. As
the argument in the driveway continued, Jamerson ran out of the house toward
Wimbley's car and shouted, "On Bloods." Wimbley told Oliver he had something
for Oliver's "bitch ass," and drove off, saying he would be back. Crystal became
angry and warned Jamerson and Oliver not to do their "gangbanging shit" at her
mother's house.
Approximately 45 minutes after Wimbley left, Jamerson and Beard got into
an argument, and Beard called her sister, Alexis Davis, to come and pick her up.
Alexis' boyfriend, Jonathan Carter, drove Davis to the house to pick up Beard.
When they got there, Davis got out of the car so that Beard could get in the
backseat. Jamerson had followed Beard out to the car, calling her names, and he
and Davis proceeded to get into an argument. At the same time, Oliver and
Jonathan were "tussling" near the open driver's side door of Jonathan's car.
Holloman had left the house and gone over to the car to tell everyone to leave.
Jonathan asked her to go back in the house so she would not be caught up in the
fighting.
Those two separate fights were taking place as Wimbley returned to the
house in his car. Just as he pulled up, one of the back windows in his car went
down and someone stuck a gun out the window. Shots were fired from the gun.
Then Brent Carter jumped out of the front passenger seat with a large gun and
fired shots in the direction of the residence. Wimbley jumped out of the driver's
seat and ran to where Jonathan and Oliver were fighting. Quincy Carter, whom
witnesses identified as the individual who fired the shots through the backseat
window, got out of the car and started shooting toward the house and the people
outside. Brent then said to Carter, "Come on 'Q,' let's roll."
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Oliver and Holloman died from gunshot wounds. An extensive search was
conducted, and law enforcement arrested Carter about two weeks after the
shootings.
The State charged Carter with two counts of first-degree murder, two
counts of criminal discharge of a firearm, and a single count of criminal
possession of a firearm. A jury found him guilty on all charges. The court
sentenced him to two consecutive hard 25 life sentences plus 53 months. He took a
timely appeal to this court.
Carter asserts five grounds for reversing his convictions. We find none of
them compelling.
PUBLIC TRIAL
Under both the United States Constitution and Kansas statutory law, a criminal
defendant enjoys the right to a public trial. See U.S. Const., amend. 6; K.S.A. 2019 Supp.
22-3420(d). That right implies that courtrooms be kept open and that the public, or such
portion of the public as may be conveniently accommodated, be admitted, subject to the
authority of the court to exclude objectionable characters. State v. Galloway, 311 Kan.
238, 250, 459 P.3d 195 (2020). This right to a public trial extends to jury selection.
Weaver v. Massachusetts, 582 U.S. ___, 137 S. Ct. 1899, 1906, 198 L. Ed. 2d 420(2017); Presley v. Georgia, 558 U.S. 209, 213, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010).
On Monday, December 11, 2017, during the voir dire of prospective jurors, most
or all of the seats in the courtroom were occupied by the jury venire. As a consequence,
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access to the proceeding was not available to the public, including Carter's and the
victims' families. No one objected at the time.
While this appeal was pending, Carter filed a motion to remand the case to the trial
court to determine whether the voir dire proceedings took place in closed court. Carter
requested, and this court granted, a stay of briefing until the trial court made findings of
fact resolving that question. The trial court then held an evidentiary hearing, at the
conclusion of which it determined that the voir dire proceedings took place in open court
because, in spite of the court's invitation to make some sort of accommodation that would
allow the public to observe, no one requested leave from the court to sit in on the
proceedings.
On appeal, Carter contends that the proceedings were, in fact, closed to his family
members and he further contends that not providing space for spectators violated his
Sixth Amendment right to a public trial, which necessarily requires reversal. Carter
asserts two positions: the trial court erred in its determination that the jury selection
proceeding was held in open court; and, because it was not an open proceeding, reversal
is required as a matter of law.
The trial court based its findings following the remand hearing on the testimony
and arguments presented at the hearing. We therefore apply a bifurcated standard of
review. First, without reweighing the evidence, we examine the trial court's findings of
fact to determine whether they are supported by substantial competent evidence. We next
apply a de novo standard of review to the ultimate legal conclusion. We do not reweigh
evidence, assess witness credibility, or resolve conflicting evidence. See, e.g., State v.
Betancourt, 301 Kan. 282, 290, 342 P.3d 916 (2015). The ultimate legal conclusion
regarding whether a defendant's right to a public trial under the Sixth Amendment of the
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United States Constitution was violated is a question of law over which an appellate court
has unlimited review. State v. Reed, 302 Kan. 227, 236, 352 P.3d 530 (2015).
On the Friday before the trial began, the trial judge discussed various practical
matters of the trial procedure with counsel for both parties. The following dialogue took
place:
"MR. MUTH [Prosecutor]: Just so I understand, the courtroom is going to be full
with potential jurors so no family members for either side. There won't be room for them.
Where should we direct the decedents' family?
"THE COURT: I want to emphasize that, of course, this is a public proceeding
and family members particularly but the public generally, of course, is more than
welcome. The problem is while we have a big courtroom, one of the bigger ones in the
building, it's not big enough for the panel that we're going to need and so I don't think
there's going to be room for family. But if there is, I can work with the parties to try to
meet everybody's needs.
"It would not be, I'm sure, full of family members from each side. I would like, I
believe, the two victims' families and certainly Mr. Carter's family representatives or
persons to have the opportunity, but I don't know how that's going to work. I'll work with
you all to get them in here during jury selection. It's just going to be very limited, if at all.
"So I don't know where to tell you to direct your people. I don't know if Judge
Burgess or any of the other judges on this floor have jury trials. Apparently Judge
Burgess does. I would say I'll work with you as best I can. If you both will talk to me
when you know on Monday who's here and maybe identify one or two out of the group
that might be able to fit in here, but just know they may not be able to fit. I'll do my best."
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On the fourth day of the trial, the State again raised the subject of whether
the proceeding was open. The following conversation took place outside the
presence of the jury:
"THE COURT: We're going to make a record regarding the public.
"MR. MUTH: Judge, throughout this entire trial it's been open to the public. I
think at one point when we were doing jury selection and everything else, every seat was
taken by potential jurors and actual jurors. I think based on the courtroom policy there
was no standing allowed by any of the spectators.
"I know there was a comment made about, hey, can we let the family in at one
point and that was because we were waiting to get seats available for everybody. But I
just want to make sure that the record was clear that it's been an open trial throughout the
entire process. The only time that individuals were not allowed in is when there were no
seats available for them. So if misstate that or anything else, counsel, Mr. Leon, or
yourself can correct me.
"THE COURT: Mr. Leon, do you have any comments on that or position or
statements?
"MR. LEON [Defense Counsel]: Your Honor, it's my understanding as counsel,
and with discussion with both the Court and the counsel with the State, this has never
been a closed proceeding. So I understand the concern of the State, but the truth this has
never been a closed proceeding.
"THE COURT: All right. I appreciate that and that's of course is not just my
policy, but that is the law. So we have done—it has been an open trial. We did have some
limitations, just space limitations, for jury selection."
8
The subject of the open courtroom did not come up again until the evidentiary
hearing on remand. Several witnesses, including defense counsel, David Leon; Carter's
girlfriend, Lotasha Cooksey; Carter's older sister, Lashawnda Carter; Carter's older sister,
Sharlita Carter; and Carter's older sister, Tanika Carter, testified that a guard informed
them that the judge did not want any members of the public in the courtroom during voir
dire. The family members testified the guard told them they were not allowed in because
they might intimidate the jurors.
Leon testified that there were empty chairs in the courtroom during voir dire.
Lashawnda Carter testified that she saw five members of the victims' families sitting in
the courtroom after she had been told that she could not go in.
Alice Osburn, who was cocounsel for the prosecution, testified the trial judge
never ordered the courtroom closed. She further testified that the victims' family
members were not present in the courtroom during voir dire. She was acquainted with the
family members, and they either were texting her about the trial or they were potential
witnesses and were sequestered from the proceedings. She testified there were no empty
seats in the courtroom.
A significant point in Osburn's testimony was that jury selection did not begin
until after two in the afternoon. The witnesses who testified they were not allowed in the
courtroom all said they left the courtroom area in the morning because they understood
they would not be allowed in the courtroom. There were no witnesses who stated they
attempted to enter the courtroom the afternoon that voir dire began.
9
Following deliberation, the trial judge made these findings:
"My ruling is as follows: This trial court did not close the courtroom in any way,
shape or form. At all times during the jury selection and every aspect of the jury trial the
courtroom door stood open to the public. This trial was a constitutionally protected public
trial."
The judge referred to the testimony and to his own memory of the voir dire to find
that there were no empty seats. He stated that he would have worked with the parties to
provide a means for the public to be present during voir dire if either of the parties had
requested such accommodation, but no one brought it up as an issue despite his direct
inquiry on the subject. He gave little weight to the testimony that a guard had turned
family members away because the guard was never identified and because the alleged
closing took place in the morning before any voir dire proceedings had begun. His
conclusion was that voir dire was conducted in an open proceeding.
The trial judge not only did not order the courtroom closed, he repeatedly checked
with counsel to make sure there was no obstacle to a public trial. The attorneys for both
parties repeatedly assured the trial judge that the court did not need to take special
measures to enable members of the public to observe the proceedings, and Carter's
attorney even expressly told the court that it had been an open trial throughout. He later
testified that Carter's family members complained to him that they had not been allowed
in the courtroom, but at the time of the trial he made no mention of such a barrier to a
public trial.
There is authority that a defendant's right to a public trial is not denied absent
"some affirmative act by the trial court meant to exclude persons from the courtroom."
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United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). Nevertheless, a courtroom
may be closed in the constitutional sense without an express judicial order. See, e.g.,
Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007), abrogated on other grounds by
Weaver, 137 S. Ct. at 1907, 1910; Watters v. State, 328 Md. 38, 44, 49, 612 A.2d 1288(1992) (defendant's Sixth Amendment right to public trial was violated where deputy
sheriff closed courtroom to public).
In the present case, it is clear that the trial court took no affirmative steps to
exclude the public from the courtroom. The court also made the factual finding that the
public was not excluded by individuals acting without judicial authority. This finding was
based on the lack of any complaint by defense counsel, despite his supposed awareness
there was a problem, and on the temporal disparity between when the witnesses claimed
to have been excluded and when the voir dire proceeding actually began. Despite the
efforts of counsel for both parties, the individual posted at the courtroom door could not
be identified and questioned, and the trial court elected to give little weight to the
testimony that he barred certain members of the public from entering the courtroom.
When a constitutional question presents mixed questions of fact and law, Kansas
appellate courts give deference to trial court factual findings that are supported by
substantial evidence. See, e.g., State v. Warrior, 294 Kan. 484, 509, 277 P.3d 1111(2012) (whether Brady violation occurred was legal question to be determined de novo
based on trial court's findings of fact).
Deference to the trial court is particularly appropriate here, not only because the
court's findings had support in the record, but also because the trial judge was the
observer of the entire proceedings in question. Furthermore, Carter's trial counsel's
repeated assertions at trial that there was no open court issue belied his testimony two
11
years later that the court had been closed to Carter's family members. A trial court may
legitimately give little weight to the testimony of a party who, at trial, assured a court that
there was no problem and then, two years later, came back and asserted the existence of a
reversible problem necessitating a new trial. If there is ambiguity in the facts above, that
ambiguity was created in large part by the silence of counsel and members of the public
at the time when correction of the problem was possible.
For these reasons, we conclude that the trial court determination that the voir dire
proceeding was open was reasonable and supported by substantial competent evidence.
We find no violation of Carter's right to a public trial.
EVIDENCE IMPEACHING ALIBI TESTIMONY
On December 6, 2017, Carter filed a notice of alibi. The anticipated alibi
was that:
"[H]e was at the following locations at the time of the occurrence in the
aforementioned matter before the Court:
"The Defendant was with family, specifically his brother, Kenny Carter at the
residence of the Defendant, which is clearly defined as another location during the
alleged time and period for which the alleged offense(s) occurred on or about the 1st of
December, 2015."
The notice went on to endorse Kenny Carter as a potential alibi witness.
Carter continued to press for allowing alibi witness testimony up to just a few days
before trial. The Friday before trial, the court overruled the State's objection to the
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admission of alibi testimony. At trial, the State called Kenny as a witness. On cross-
examination, Carter's attorney asked a series of questions that produced testimony that
Carter was at Kenny's home, sick in bed, at the time of the shootings.
The State called three law enforcement witnesses whose testimony controverted
Kenny's testimony. Officer Sage Hemmert testified that Kenny told him soon after the
shooting that the last time he saw Carter was on Thanksgiving, several days before the
shooting. This testimony was supported by a recording taken at the time of the interview.
Officer Lee Froese testified that he talked with Kenny on December 3, 2015, and Kenny
told him he had not seen Carter for six days. This testimony was also supported by a
recording of the interview.
On appeal, Carter asserts it was reversible error for the trial court to allow the
State to produce witnesses testifying that he was not at home with his brother. Carter
concedes he did not object to the testimony of witnesses who said he was not at home
when the shootings took place.
K.S.A. 60-404 requires a contemporaneous objection to the admission of evidence
in order to obtain appellate review:
"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection."
The statute requires each party to make a specific and timely objection at trial in
order to preserve evidentiary issues for appeal. State v. Brown, 307 Kan. 641, 645, 413
13
P.3d 783 (2018). The rule serves to avoid the use of tainted evidence and thereby avoid
possible reversal and a new trial. It not only gives the trial court the opportunity to
address the issue, but it is also a practical necessity in order to bring litigation to an end.
307 Kan. at 645.
Carter asks this court to consider this issue based on exceptions to the preservation
requirement. Exceptions exist for raising issues on appellate review without expressing
an objection to the trial court, but K.S.A. 60-404 does not allow those exceptions to come
into play in the context of the admissibility of evidence. Brown, 307 Kan. at 645; State v.
Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
For this reason, this issue is not properly before the court and may not serve as a
basis for reversal.
EVIDENCE OF GANG ACTIVITY
Carter filed a pretrial motion asking the court to exclude any evidence of gang
participation or activity. The State filed a pretrial motion seeking to introduce evidence of
gang participation and activity. The trial court conducted a hearing and then granted the
State's motion. The court stated as grounds for granting the motion: "Gang evidence is
relevant as it pertains to identity, context, motive, and witness bias. The probative value
outweighs the prejudice."
At trial, the State called several witnesses with special knowledge of gang
culture to testify about motive and the effects of gang activity on how other
witnesses might testify. Carter concedes on appeal that his trial counsel voiced no
objection to that testimony.
14
As with the previous issue, the failure to make a contemporaneous
objection determines the fate of this issue. Carter again contends that this is a
purely legal question, which is contrary to the precedent cited above. He also
contends that the pretrial motions and hearing should be considered a substitute for
an objection at trial.
This court has recently rejected this theory. In State v. Ballou, 310 Kan.
591, 613, 448 P.3d 479 (2019), the court explained that a pretrial objection alone
is not timely for purposes of K.S.A. 60-404 because an in limine ruling is subject
to change as the case goes forward. The contemporaneous objection rule
recognizes that different, more, or less evidence may come in at trial than was
admitted or proffered at a pretrial hearing. Or a district court judge may simply see
the issue differently after hearing additional arguments and evidence. Furthermore,
the plain language of K.S.A. 60-404 requires a "timely interposed . . . objection."
This issue is therefore not properly before this court.
EXPERT TESTIMONY INTERPRETING CARTER'S E-MAIL
The State introduced an exhibit consisting of an e-mail Carter sent from prison
shortly before trial. After Carter's counsel called into question what the e-mail meant, the
State asked a subsequent witness, who was certified as an expert on gangs, to tell the jury
what Carter meant with the e-mail. On appeal, Carter contends the testimony should not
have been admitted.
The admission of expert testimony lies within the discretion of the district court
and will not be reversed without a showing that the court abused its discretion. State v.
15
Claerhout, 310 Kan. 924, 932, 453 P.3d 855 (2019); State v. Schwarm, 271 Kan. 155,
164, 21 P.3d 990 (2001). A trial court abuses its discretion if its ruling was based on an
error of fact, an error of law, or an otherwise unreasonable decision. State v. Jones, 306
Kan. 948, 957, 398 P.3d 856 (2017).
Captain Jared Schechter, who was responsible for monitoring prisoner e-mail,
testified that, on November 17, 2017, Carter sent an e-mail to Cooksey stating:
"If I do, he's going to continue it for four months and I'm trying to fight this on the
streets. It will be 100 times better outcome. Now do you understand what I'm saying?"
On cross-examination, Schechter conceded that he did not know exactly what the
e-mail meant. Carter's attorney suggested it might have meant that Carter might expect a
better outcome once he hired an attorney, and Schechter said he did not know about that
and he only read the e-mail out loud and he did not interpret it.
At the time the e-mail was introduced, it was given no context nor was its
probative value explained. The defense raised no objection to its introduction. The e-mail
was simply placed into evidence, and the witness conceded that the words were subject to
the reader's understanding of them.
Sergeant Chad Beard is a gang intelligence officer with the Wichita Police
Department. Carter's attorney conceded that Sergeant Beard was qualified as an expert on
gang activity, and the trial court allowed him to testify as an expert. Sergeant Beard
testified at length about a registry of known gang members in Wichita, the history of
gang violence in the city, and markers for gang affiliation and gang activity. He then
testified about the e-mail that Carter sent from prison.
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The direct examination proceeded as follows:
"Q. When you heard that, and previously you described that there is this code of
honor, I guess, with gang members that they take care of stuff on the street?
"A. Yes.
"Q. Does that e-mail have any significance to you based on your training and
experience?
"MR. LEON: Your Honor, objection. This calls for speculation.
"MR. MUTH: He can give an opinion based on his qualification of an expert.
"THE COURT: Yes. I'm going to overrule the objection, but for this reason. You
may answer the question if you can.
"A. Thank you, Your Honor. Based on that statement and from my training and
experience as a gang investigator, that means that they are going to go handle
whatever in the streets. They are going to take care of the business outside of the
court, law or police help or anything like. They are going to take care of it on
their own."
A subsequent witness, Matthew Blank, testified about why Davis may have
changed her story from the time she was originally interviewed, when she identified
Carter as being in the car with Wimbley and Brent and saw him getting out of the car
with them just before the shooting began, although she was not positive it was Carter.
She told Blank that she thought it was Carter because the man she saw had a similar hat
to Carter's, had similar hair to Carter's, and had the same facial features as Carter; Carter
was always hanging out with the others and no one else in the group looked like Carter.
17
Her testimony at trial was that Carter was not present. Blank explained this change
in her recounting of what she saw by testimony that Davis told him her safety had been
threatened if she testified against Carter. He testified that the e-mail in question was an
example of such a threat that would cause a witness to be afraid of what would happen to
her after trial.
Both at trial and on appeal, Carter's counsel advanced a different understanding of
the e-mail: that Carter was informing Cooksey he was having difficulty finding an
attorney who would best represent his interests. He argued, for example, that "fighting
something on the street is commonly understood to mean that a criminal defendant is
seeking to be released from confinement to better defend his case."
Although the words of the e-mail do not appear ambiguous and the jury would
likely have had no difficulty understanding their meaning without expert explanation,
Carter called the meaning of the e-mail into question, and the expert witness rebutted
Carter's proposed interpretation.
K.S.A. 2019 Supp. 60-456 governs the admissibility of opinion testimony.
Under our statute, expert opinion testimony is admissible if the witness is qualified
to render an opinion and such opinion is both reliable and relevant. K.S.A. 2019
Supp. 60-456(b). At trial, Carter did not object to Beard's qualifications or the
reliability of his opinion testimony, and Carter's competing interpretation of the e-
mail demonstrates the relevance of Beard's opinion evidence. Accordingly, we
find no abuse of discretion in the decision to admit Beard's testimony about the e-
mail.
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IMPERMISSIBLE MANDATORY PRESUMPTIONS
Carter argues on appeal that the felony-murder statute creates a mandatory
presumption of intent to kill that invades the province of the jury. This court
recently addressed the same issue in State v. Patterson, 311 Kan. 59, 455 P.3d 792(2020).
After extensive analysis, the Patterson court concluded:
"The Kansas felony-murder rule does not operate as an unconstitutional,
conclusive presumption that invades the jury's province. As the State points out, intent to
kill is not an element of felony murder in this state. The statute expressly requires proof
the defendant engaged in dangerous, felonious conduct and that a death occurred as a
result of that conduct.
"By codifying participation in the felony as a statutory alternative for the intent
and premeditation otherwise required for a first-degree murder conviction, the statute
imposes a rule of law. It does not remove from the jury's consideration an intent element
required by a criminal statute." 311 Kan. at 67.
Carter provides no new arguments that invite this court to revisit its
decision in Patterson.
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CONCLUSION
Finding no error in the proceedings above, we affirm Carter's convictions
and sentence.
TRISH ROSE, District Judge, assigned.1
________________________
1
REPORTER'S NOTE: District Judge Rose was appointed to hear case No. 120,103
under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas
Constitution to fill the vacancy on the court by the retirement of Justice Carol A. Beier.
20