State v. Willis ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 117,436
STATE OF KANSAS,
Appellee,
v.
DALE M. WILLIS,
Appellant.
SYLLABUS BY THE COURT
1.
The invited error doctrine prevents this court from reviewing instruction errors—
even as clearly erroneous under K.S.A. 2019 Supp. 22-3414(3)—when the defendant
requests and agrees to the wording of the instruction.
2.
Lay opinion testimony is permissible if it: (1) was rationally based upon the
witness' perceptions; (2) helped create "a clearer understanding of the testimony of the
witness"; and (3) was "not based on scientific, technical or other specialized knowledge."
See K.S.A. 2019 Supp. 60-456(a).
3.
Internet searches for a handgun, the same type and caliber used days later in a
shooting, demonstrates "a sufficient similarity between" the content of the internet
searches and shell casings recovered from the scene of the shooting to make evidence of
the searches relevant.
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4.
A district court cannot improperly weigh aggravating and mitigating
circumstances contrary to K.S.A. 2018 Supp. 21-6620(c)(1)(A) and State v. Jolly, 301
Kan. 313, 342 P.3d 935 (2015), if no mitigating circumstances exist.
Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed September 25,
2020. Affirmed.
Jennifer C. Roth, of Kansas Appellate Defender Office, argued the cause and was on the briefs
for appellant.
Jacob M. Gontesky, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: Dale Willis directly appeals from his convictions for first-degree
murder and battery. Willis claims the district court committed nine reversible errors. We
consolidate Willis' claims into (1) jury instruction errors, (2) prosecutorial errors, (3)
evidentiary claims, and (4) sentencing issues. Finding none constitute reversible error, we
affirm the district court.
FACTS AND PROCEDURAL BACKGROUND
On September 16, 2015, Jurl Carter and his friends attended a concert at the Roxy
bar in Overland Park. The group arrived at the venue a little after midnight. Carter parked
his car next door at the 24-Hour Fitness center because the bar's parking lot was full. The
friends watched several performers and then planned to leave the event. Carter brought
his vehicle from the 24-Hour Fitness parking lot to a now-vacant space in front of the
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Roxy to pick up his friends. As Carter entered the spot, he accelerated too rapidly and
pulled in too far. The front of his car nearly hit Dale Willis, who was standing with a
different group on the sidewalk. Carter exited his vehicle and apologized to Willis, who
did not respond and walked away.
Then, as Carter and his friends were posing for photographs outside the Roxy,
Dale Willis struck Carter on the side of the face with a "sucker punch." Carter fell to the
ground. He stood up and cautiously got into his car. As Carter was attempting to leave,
Willis pointed three times at Carter signaling to another man later identified as Willis'
brother, James Willis. The brothers walked to the passenger side of the car, and James
Willis fired between 10 and 20 rounds from a pistol into the passenger side door and
window. Dale and James Willis then fled together. Carter died as the result of several
center body mass gunshot wounds.
At trial, the State's theory was that Willis had aided and abetted James Willis in
the premeditated murder of Carter. The State relied on the circumstances surrounding the
shooting, including: (1) the fact that Carter had angered Willis by driving too close to
him; (2) that Willis had punched Carter; (3) that a short time later, Willis had pointed out
Carter to James Willis; (4) that the brothers approached the car when Carter was
attempting to leave; and (5) that the brothers had fled together.
The State also introduced evidence through Federal Bureau of Alcohol, Tobacco,
and Firearms Agent Steven Lester detailing the organizational structure of Dale Willis'
rap LLC "Duced Out Records" (DOR). According to Agent Lester's testimony, Willis
served as DOR's "[l]eader, CEO, [and] . . . business manager." Agent Lester testified that
James Willis provided "some type of security" for Willis and other DOR organization
members. Further, Agent Lester explained that DOR members received a DOR medallion
as evidence of membership and that both Dale and James held medallions.
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The State also presented eleven .45 auto caliber cartridges fired from the same
Glock handgun recovered in and around Carter's Malibu. James Willis' Galaxy Note cell
phone was entered by stipulation. The cell phone contained web page visits to
Walmart.com and Cabelas.com viewing .45 automatic caliber ammunition; a Google
search for a Glock 21 handgun with a 30-round magazine; and ClassicFirearms.com
searches viewing magazines for a Glock .45 caliber handgun. The phone also contained
searches for pictures of two Glock .40 caliber handguns and one Glock .45 caliber
handgun. These searches occurred several days prior to the shooting. Further, the phone
logged a KCTV5 news report discussing the shooting of Carter.
Willis offered alternative defenses at trial. He claimed first that James Willis acted
alone and not at the behest or with the help of Willis. Alternatively—and importantly for
this appeal—Willis claimed that if he had acted in concert with James Willis, he did so in
self-defense. Along these lines, Willis argued that Carter had a gun with him and
intended to shoot Willis after the initial punch was thrown. Gerald Greenfield, who
worked security at the Roxy, testified Carter said he "got something for y'all" after Willis
punched Carter. Greenfield believed this statement meant Carter intended to shoot Dale
Willis. Other witnesses testified for the defense that Carter motioned to his waistband as
if he had a concealed firearm, but no one actually saw a weapon.
A jury convicted Willis of first-degree murder and battery. The district court
imposed a hard 50 sentence for the murder conviction and a concurrent 6-month sentence
for the battery conviction.
Willis directly appeals.
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DISCUSSION
On appeal, Willis claims nine reversible errors. Several of Willis' claims overlap
and intersect, however, so we regroup his claims into four categories: (1) jury instruction
errors; (2) prosecutorial errors; (3) evidentiary issues; and (4) sentencing issues. We find
no error and affirm the district court.
Jury Instruction Error Claims
Willis requested a series of aiding and abetting and self-defense instructions. After
the court agreed to give those instructions, Willis never objected or indicated he wasn't
happy with the instructions he requested.
Jury Instruction No. 11 mirrored PIK Crim. 4th 52.140 (2018) and informed the
jury on "Responsibility for Crimes of Another":
"A person is criminally responsible for a crime if the person, either before or
during its commission, and with the mental culpability required to commit the crime
advises, hires, counsels or procures another to commit the crime.
"All participants in a crime are equally responsible without regard to the extent of
their participation. However, mere association with another person who actually commits
the crime or mere presence in the vicinity of the crime is insufficient to make a person
criminally responsible for the crime."
Jury Instruction No. 13 adopted language from PIK Crim. 4th 52.200 (2016 Supp.)
and discussed "Use of Force in Defense of a Person":
"As to Count I, defendant claims his use of force was permitted as self-defense.
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"Defendant is permitted to use physical force against another person that is likely
to cause death or great bodily harm only when and to the extent that it appears to him and
he reasonably believes such force is necessary to prevent death or great bodily harm to
himself from the other person's imminent use of unlawful force. Reasonable belief
requires both a belief by the defendant and the existence of facts that would persuade a
reasonable person to that belief.
"When use of force is permitted as self-defense, there is no requirement to
retreat."
Jury Instruction No. 14 laid out the elements of first-degree murder:
"The defendant is charged with murder in the first degree. The defendant pleads
not guilty.
"To establish this charge, each of the following claims must be proved:
1. The defendant intentionally killed Jurl Carter.
2. The killing was done with premeditation.
3. This act occurred on or about the 16th day of September, 2015, in Johnson
County, Kansas."
These instructions make it clear that Willis was permitted to argue that he acted in
self-defense. If the jury agreed that Willis reasonably believed that deadly force was
necessary to prevent his own death or great bodily harm from Carter's imminent use of
unlawful force, then the jury would be required to acquit. The way the instructions read
and the evidence was presented, the fact that James Willis was the trigger man would not
have prevented the jury from accepting Willis' self-defense claim.
At trial, however, Willis wanted to argue to the jury that it was actually James
Willis who had the reasonable belief that deadly force was necessary in light of Carter's
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imminent use of unlawful force. But that argument lay outside the jury instructions and
the district court made several rulings holding the parties to the jury instructions as given.
As a result, on appeal, Willis now claims those instructions were wrong or misinterpreted
by the district court to the extent they prevented him from arguing that James Willis—as
opposed to Dale Willis—acted in self-defense.
Under the invited error doctrine, a litigant may not invite error and then complain
of that same error on appeal. State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014).
We have explained that a defendant cannot challenge an instruction on appeal when there
has been an on-the-record agreement to the wording of the instruction at trial—as there
was here. State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). Contrary to Willis'
assertion in his appellate brief, the invited error doctrine prevents us from reviewing these
instructions even for clear error under K.S.A. 2019 Supp. 22-3414(3). See 294 Kan. at
393 (explaining that a defendant cannot challenge a requested instruction as clearly
erroneous, even under K.S.A. 22-3414[3]).
As such, to the extent any of Willis' claims on appeal are actually an attack on the
jury instructions themselves, those claims are barred by the invited error doctrine. In a
closely related argument, Willis contends that the district court erred when ruling on
several objections related to how to interpret these instructions.
During closing arguments, Daniel Ross, Willis' counsel, described defense of
another person and claimed during his closing arguments that "a person in danger [who]
reasonably believe[s] a person is armed and represents a significant danger to you or
something else" has the right to use lethal "force to prevent injury to yourself or
somebody else." The State made its first objection, noting that the self-defense instruction
applied only to Dale Willis. The district court sustained the objection and instructed Ross
to follow the self-defense instruction as it was written.
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Ross directed the jury to follow the district court's instructions, "not Dan Ross's
[sic] interpretation of the instructions." However, Ross then repeated "[i]f a person is
acting under the circumstances as they believe to be true, you get to use that level of
force. And we believe that is what James Willis did in this case." The State again
objected and the district court again sustained the objection and implored Ross to "keep it
contained to the facts in this case."
Finally, during the State's rebuttal, the prosecutor applied Jury Instruction No. 13
to Dale Willis only—stating that "Dale Willis [was] permitted to use physical force
against another person, which is [Carter] . . . when and to the extent that it appears to him
. . . that the defendant reasonably believes such force is necessary to prevent death or
great bodily harm to himself, the defendant, from the other person's imminent use of
unlawful force."
Ross objected and explained that Jury Instruction No. 11 described "criminal
responsibility for [a] crime committed by another." He elaborated that "the essence of the
State's theory . . . [was] that this defendant encouraged James Willis to commit this
offense" and that Dale Willis must have done so with the same culpable mental state as
James Willis. He posited that "[m]ental culpability includes James Willis. That includes
his reaction or perception and ability to engage in self-defense." The State retorted that
Ross' comparison of self-defense and aiding and abetting theory was "talking apples and
oranges" because "[s]elf-defense in Kansas does not transfer." In response to this
exchange, the district court reiterated that Instruction No. 11 described aiding and
abetting and that this was not "an issue of self-defense of others. This is self-defense
asserted towards this defendant." Ultimately, the district court overruled Ross' objection.
Lower court rulings on objections are reviewed on appeal for abuse of discretion.
State v. Miller, 284 Kan. 682, 709, 163 P.3d 267 (2007). Discretion can be abused in one
of three ways. A judicial action constitutes an abuse of discretion if: (1) no reasonable
8
person would take the view adopted by the trial court; (2) it is based on an error of law;
or (3) it is based on an error of fact. State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587(2015). Here we can discern no abuse of discretion. The district court's rulings properly
confined the parties to the jury instructions. To the extent Willis is actually claiming a
legal error in the instructions themselves, such a claim would again be barred by the
invited error doctrine. Nothing the district court did prevented Willis from arguing to the
jury exactly what the instructions permitted him to argue—that Dale Willis acted in self-
defense.
Willis then makes two final jury instruction claims. He briefly suggests that
Instruction No. 13 failed to fully explain to the jury how the affirmative defense of self-
defense operates. And he directly attacks the wording of Jury Instruction No. 11—the
aiding and abetting instruction—by contending that the term "mental culpability" was
undefined and unexplained by the district court's other instructions. Put another way, he
claims that no instruction informed the jury "that to find Dale Willis guilty of
premeditated murder, it must find beyond a reasonable doubt that Dale and James Willis
shared the same intent, i.e., a premeditated intent to kill Jurl Carter."
But merits aside, we emphasize again that Willis requested all of these
instructions. He concedes as much in his appellate brief. Willis accepted the resulting
instructions and failed to raise any objection at the instructions conference. He cannot be
heard to complain now on appeal. See Verser, 299 Kan. at 784; Peppers, 294 Kan. at 393.
Prosecutorial Error Claims
Next, we consider several statements Willis alleges were reversible prosecutorial
error. These statements include: (1) a joke about how lawyers "add things and confuse
things"; (2) allegedly erroneous statements concerning self-defense; and (3) a number of
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instances of misstating the evidence or arguing facts not in evidence. We hold that none
constitute reversible error.
We review prosecutorial error claims under a two-step analysis:
"These two steps can and should be simply described as error and prejudice. To
determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' State v. Ward, 292
Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied [565 U.S. 1221] (2012). We
continue to acknowledge that the statutory harmlessness test also applies to prosecutorial
error, but when 'analyzing both constitutional and nonconstitutional error, an appellate
court need only address the higher standard of constitutional error.' [Citation omitted.]"
State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016).
First, we find the lawyer joke was not prosecutorial error. While explaining the
concept of lesser-included offenses, the prosecutor said: "Now you heard us talk about
lesser-included offenses because we're not lawyers unless we're trying to just add things
and confuse things." Willis claims this comment constitutes reversible error because it
inflamed the jury's prejudices and diverted its attention from deciding the case based
upon evidence and law. Without a further explanation, Willis asserts this joke prejudiced
his case.
10
Jokes are typically permissible as part of closing arguments. See, e.g., State v.
Reynolds, 120 Idaho 445, 450, 816 P.2d 1002 (Ct. App. 1991) ("Thus, in making his or
her concluding oration, the prosecuting attorney may resort to poetry, cite fiction,
reference anecdotes or tell jokes."); Gaede v. State, 801 N.W.2d 707, 710 (N.D. 2011);
People v. Beck, No. A135537, 2013 WL 6688965, at *5 (Cal. Ct. App. 2013)
(unpublished opinion); United States v. Robinson, 404 Fed. Appx. 77, 81 (7th Cir. 2010)
(unpublished opinion) (holding a joke that maybe one day the defense counsel will turn
his life around and become a prosecutor was "[a] harmless joke" that "neither disparaged
the credibility of the defense counsel nor shifted the jury's attention from the legal
issues"); United States v. Haque, 315 Fed. Appx. 510, 520 (6th Cir. 2009) (unpublished
opinion) (finding that the joke 2 plus 2 equals "what do you want it to be?" was not error
in an accounting fraud case); Lawson v. Sec'y DOC, No. 2:16-CV-85-FTM-29MRM,
2017 WL 4271664, at *11 (M.D. Fla. 2017) (unpublished opinion) (noting, "Counsel's
comment that he 'could do [closing argument] in ten [minutes], but [the court reporter]
won't like having to type it all down' was a joke."), aff'd No. 17-14802, 2019 WL
4058600 (11th Cir. 2019) (unpublished opinion).
Even barbs disparaging lawyers have passed muster. See McDaniel v. McCall, No.
CIV.A. 1:09-1348-MBS-SVH, 2010 WL 3824708, at *15 (D.S.C. 2010) (unpublished
opinion) (finding a lengthy joke involving a lawyer and a preacher harmless), report and
recommendation adopted No. CIV.A. 1:09-1348-MBS, 2010 WL 3824643 (D.S.C.
2010); People v. Warren, No. G050393, 2014 WL 5144761, at *2 (Cal. Ct. App. 2014)
(unpublished opinion) ("'And so ladies and gentlemen, what I'm reminded of when I hear
[defense counsel's] closing argument is an old lawyer joke. . . . You know, if the facts
aren't on your side, well, then you argue the law. If the law isn't on your side, well, then
you argue the facts. And if neither the facts nor the law are on your side, what do you do
then? Well, you just argue.'").
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We do not find this self-deprecating lawyer joke to be outside the wide latitude
afforded attorneys to explain their case to the jury. This comment was not error.
Second, Willis complains about three statements the State made about the self-
defense instructions. Willis recapitulates his objection to the State's insistence that the
only self-defense theory the jury was permitted to consider in this case was Dale Willis'
self-defense—not James Willis' self-defense. We have already considered these claims in
the context of the jury instructions. As above, we conclude that both the State and the
district court were correct that the jury instructions—instructions requested by the
defendant—limited Willis' case to arguing that he acted in self-defense. The prosecutor's
statements to this effect were not error.
Lastly, Willis argues that at several points, the prosecutor misstated the evidence
or argued facts not in evidence. We will consider each statement in turn. At one point, the
prosecutor said that Agent Lester had testified that any meeting between Willis and his
business rival, Tyrone "Bird" Brown, would have "fatal results." Willis now argues this
was a mischaracterization of Agent Lester's testimony. But both Agent Lester and Brown
testified that violence would likely result if Willis and Brown ran into one another. Agent
Lester stated the two meeting "could lead to a very violent confrontation." Brown
described himself as "a competitor in the rap music scene" and that if he and Willis were
in the same place, things "could turn violent between the two of [them]." The prosecutor's
statement was supported by the testimony and falls within the "wide latitude" afforded
"prosecutor[s] to make reasonable inferences based upon the evidence." State v. Coones,
301 Kan. 64, 82-83, 339 P.3d 375 (2014). Testimony supported the notion that "fatal
results" could occur should Willis and Brown clash. No error occurred.
Willis also objects to the State's claim that there was no argument between Willis
and Carter before Willis punched Carter. The prosecutor said:
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"I submit to you at that point in time there is not an argument going on. It has cooled
down. Because do you really think that somebody who kills for his brother is going to
have his back turned when his brother is engaged in a fuck-you-no-fuck-you type of
argument?" (Emphasis added.)
Willis contends this comment inferred that Willis was a violent person,
"[e]ven though no one is dead at the point of the punch." Willis also argues this
statement implies that James previously killed for Willis. The defense was
attempting to demonstrate that there had been a brewing conflict between Willis
and Carter prior to the punch, as a way of bolstering its self-defense theory. In
rebuttal, the State was attempting to argue that, based on the evidence, this was
unlikely. It was a fair comment on the evidence in the midst of disputed
interpretations of what happened.
Likewise, the phrase "somebody who kills for his brother" was clearly a
reference to James Willis shooting Carter. It was not an effort to bring a prior
hypothetical killing into the picture. These comments were not error.
Willis next takes issue with this comment:
"And when asked if he would have entered that car had he known the driver was
Dale Willis, what was his response? No. And I say why. And he said, 'Because he just
killed my friend.' I submit to you had Demitrius Parker figured out who the driver of that
vehicle was that night, that car ride would have ended very, very differently." (Emphasis
added.)
The person the State was referencing was Carter's friend Demitrius Parker. Parker
had fled the scene after Carter had been shot and was ultimately picked up by Willis.
Parker testified he did not know who the driver was, or he would not have accepted a ride
from Willis "[b]ecause [Willis] had just got done killing" his friend Carter.
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Willis now claims that the prosecutor's argument that if Parker had known who
Willis was, the car ride would have "ended very, very differently" was not supported by
the evidence. While it is true that Parker did not use these specific words, we do not find
the State's characterization of the testimony to be inaccurate or unfair. Not accepting the
ride would have necessarily meant that the ride would have ended differently. The
prosecutor did not err.
Finally, Willis argues it was error for the prosecutor to talk about "street law"
during closing arguments. The State argued to the jury:
"That is when we move into the concept of street law. And to be clear, I submit
to you that is not the law you will receive in your jury instruction packet. Street law isn't
the law in Kansas. Because someone disrespects you doesn't mean you get to kill them.
The law of the streets. Remember what Demitrius Parker talked about. You take care of it
that night. You take care of it right then. Because you don't want to be facing something
in the future. You don't want to be looking over your shoulder. You are not going to find
that type of self-defense in your jury instructions packet.
"Antonio Frazier talked about it, too. He said the victim deserved it because he
egged it on. There were statements—just statements he didn't see a gun. In fact he was
saying that [Carter] was making these comments to everyone out there. [Carter] didn't
have a gun. This was about street law, and that is not the law in Kansas." (Emphasis
added.)
Willis suggests the prosecutor made up the notion of "street law" and claims
Antonio Frazier actually testified that "[n]o one deserved to die like that." Although
seemingly contradictory, Frazier made both points—that Carter had to die after "egging
on" Willis and that Carter did not deserve to die in that manner. On cross-examination,
Frazier explained that Carter did not deserve to die by gunfire, but that Carter's death was
the appropriate punishment for disrespecting Willis in front of members of the rap
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community. Frazier told the jury that Willis "felt disrespected" by the earlier run-in with
Carter "and wanted to keep [his] image."
Using the phrase "street law" as a euphemistic way of summarizing Frazier's
testimony was not inaccurate. And Frazier did say Carter egged on Willis and had to die
as a result. The State's comment was supported by evidence and fell within the broad
discretion we afford prosecutors. See Coones, 301 Kan. 64, 82-83.
Evidentiary Issues
We turn now to Willis' evidentiary arguments—that the district court erroneously
admitted testimony about DOR and the contents of James Willis' Galaxy Note
smartphone.
Willis argues Agent Lester's testimony—specifically his conclusion that James
Willis provided security services for DOR—should not have been permitted. At trial,
Willis objected to the foundation for Agent Lester's testimony. The State explained it
wished to play several DOR music videos for the jury to demonstrate James Willis'
association with and role within DOR, but could not do so under a motion in limine due
to the videos' inadmissible violent content. As a workaround, the district court permitted
the State to voir dire Agent Lester to form the foundation for his testimony. Agent Lester
listed the bases for his conclusion, including surveillance videos, Facebook, Snapchat,
and Instagram posts, DOR rap videos, and interviews. Agent Lester described how James
Willis was not a performer in these videos, often stood to the side, and sometimes
possessed a firearm. With these facts, Agent Lester surmised that James Willis performed
some security role. Ultimately, the district court permitted Agent Lester to testify on the
subject, and his trial testimony was consistent with his voir dire testimony.
15
On appeal, Willis contends that Agent Lester's testimony exceeded the scope of a
normal juror's understanding and thus was not permissible unless Agent Lester had been
qualified as an expert witness. Willis concludes that this error prejudiced his case because
Agent Lester provided the only account suggesting that James Willis provided security
services for Willis and DOR.
Whether a witness is qualified to provide expert or lay opinion testimony is
"determined by the trial court in the exercise of its discretion." State v. Sasser, 305 Kan.
1231, 1243, 391 P.3d 698 (2017). A judicial action constitutes an abuse of discretion if
no reasonable person would take the view adopted by the trial court or if it is based on an
error of law or fact. Marshall, 303 Kan. at 445.
Expert opinion testimony is generally admissible if it aids the jury with unfamiliar
subjects or interpreting technical facts, or if it assists the jury in arriving at a reasonable
factual conclusion from the evidence. State v. Gaona, 293 Kan. 930, 948, 270 P.3d 1165(2012). Expert testimony is unnecessary if the normal experience and qualifications of
jurors allows them to draw proper conclusions from the provided facts and
circumstances. State v. Wells, 289 Kan. 1219, 1236, 221 P.3d 561 (2009).
To distinguish between lay opinion and expert opinion testimony and to adopt the
principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), the Kansas Legislature adopted K.S.A. 2019 Supp. 60-
456(a)-(b):
"(a) If the witness is not testifying as an expert, the testimony in the form of
opinions or inferences is limited to such opinions or inferences as the judge finds:
(1) Are rationally based on the perception of the witness; (2) are helpful to a clearer
understanding of the testimony of the witness; and (3) are not based on scientific,
technical or other specialized knowledge within the scope of subsection (b).
16
"(b) If scientific, technical or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue, a witness who is qualified
as an expert by knowledge, skill, experience, training or education may testify thereto in
the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or
data; (2) the testimony is the product of reliable principles and methods; and (3) the
witness has reliably applied the principles and methods to the facts of the case."
Here, the parties agree Agent Lester testified as a lay witness providing opinion
testimony. In his brief, Willis notes that the district "court acknowledged this was opinion
testimony" and that "the district court refused to find Agent Lester to be an expert." Much
the same way, the State concluded that "the district court did not find Agent Lester to be
an expert on this area, thus the rules pertaining to expert testimony are irrelevant here."
We agree. As such, Agent Lester's opinion testimony was permissible if: (1) it was
rationally based upon his perceptions; (2) helped create "a clearer understanding of the
testimony of the witness"; and (3) was "not based on scientific, technical or other
specialized knowledge." K.S.A. 2019 Supp. 60-456(a).
We hold the district court did not abuse its discretion when it permitted Agent
Lester to testify as to James Willis' role within DOR. Following K.S.A. 2019 Supp. 60-
456(a)'s framework, Agent Lester's testimony was rationally based upon his perceptions.
Agent Lester laid sufficient foundation, including pole-camera surveillance, social media
postings, and approximately 10 official rap videos published by DOR. Moreover, Agent
Lester performed several witness interviews and reviewed James Willis' criminal history.
In the videos, James Willis was not a performer or singer, and sometimes held a firearm.
Additionally, Agent Lester observed James Willis with a gun at the scene of a prior
shooting and viewed a photograph of DOR members, with James Willis posing as if he
held a handgun. Based upon these observations, Agent Lester concluded that in his
opinion, James Willis was DOR's "muscle."
17
Agent Lester's testimony helped the jury understand DOR's structure. He
explained Dale and James Willis' financial relationship—that in exchange for Dale Willis'
financial support, James Willis provided DOR "some type of security." Agent Lester
listed each DOR member and their respective roles, DOR's hierarchy, and the importance
of DOR medallions.
Finally, Agent Lester's observations were not based upon "scientific, technical or
other specialized knowledge." K.S.A. 2019 Supp. 60-456(a). In Sasser, a motorcycle
owner testified to the motorcycle's value and estimated the monetary damage to the
motorcycle after Sasser knocked the bike over. Sasser objected to the owner's damage
estimation, claiming the owner was not qualified to provide a dollar amount. The district
court considered the owner's account "as lay opinion testimony." 305 Kan. at 1246.
We found no abuse of discretion. 305 Kan. at 1246-47. In our analysis, we noted
that the motorcycle owner's "testimony . . . was rationally based on his perception of what
he saw when the police asked him to inspect [the] motorcycle." 305 Kan. at 1246. Even
though the owner provided a dollar figure to estimate the damage to the bike, his
conclusion "was not based on information that was so scientific, technical, or specialized
that it cried out for greater court control." 305 Kan. at 1246-47.
Like the motorcycle owner in Sasser, Agent Lester's testimony was professional,
but not "so scientific, technical, or specialized that it cried out for greater court control."
305 Kan. at 1246-47. An average lay person would have been able to observe the same
video, social media, interviews, and picture information and conclude which DOR
members performed which functions within the organization.
While the third prong of K.S.A. 2019 Supp. 60-456(a)'s analysis is the closest call,
we are not convinced the gloss provided by Agent Lester's testimony transformed it into
18
expert opinion testimony in light of each factor discussed here. Accordingly, we hold the
district court did not abuse its discretion in permitting Agent Lester's testimony.
Willis also challenges the district court's admission of the gun and ammunition
searches found on James Willis' smartphone. At trial, Willis objected to the searches as
both more prejudicial than probative and as irrelevant to the case. The district court
overruled Willis' objection, finding the searches relevant and more probative than
prejudicial. Now, Willis simply claims that James Willis' searches for guns and
ammunition on his smartphone one week prior to Carter's death was not relevant.
Generally speaking, all relevant evidence is admissible. K.S.A. 60-407(f). K.S.A.
60-401(b) defines relevant evidence as evidence having "any tendency in reason to prove
any material fact." See State v. Page, 303 Kan. 548, 550, 363 P.3d 391 (2015). We
typically describe relevant evidence as evidence that is both material and probative.
Evidence is material when the fact it supports is in dispute and is significant under the
substantive law of the case. State v. McCormick, 305 Kan. 43, 47, 378 P.3d 543 (2016).
We review materiality determinations de novo. Page, 303 Kan. at 550. "'Evidence is
probative if it furnishes, establishes, or contributes toward proof. Probativity is reviewed
for abuse of discretion.'" McCormick, 305 Kan. at 47. Even if evidence is relevant, a trial
court has discretion to exclude it where the court finds its probative value is outweighed
by its potential for producing undue prejudice. See K.S.A. 60-445. An appellate court
reviews any such determination for an abuse of discretion. State v. Lowrance, 298 Kan.
274, 291, 312 P.3d 328 (2013). A trial court abuses its discretion when it adopts a view
no reasonable person would take or takes an action based upon an error of law or of fact.
Marshall, 303 Kan. at 445.
We have previously considered the relevance of handgun-related evidence. In
State v. Scott-Herring, 284 Kan. 172, 159 P.3d 1028 (2007), police failed to locate a
firearm at a homicide scene. Despite this, the State admitted a photograph of Scott-
19
Herring holding a revolver during its case-in-chief. A firearms expert testified at trial that
four types of revolver could have fired the .38 Special caliber bullet that killed the victim,
and that "the general appearance of the gun in the photograph was similar" to those
revolvers. 284 Kan. at 175. Unfortunately, the expert could not definitively match a bullet
recovered from the victim to Scott-Herring's gun.
On direct appeal, Scott-Herring argued that "the photograph was unduly
prejudicial because the State could only speculate that it was the murder weapon." 284
Kan. at 175. We disagreed. We held the picture of Scott-Herring with the revolver was
"relevant to establish his possession of a gun resembling the possible murder weapon."
284 Kan. at 177. Moreover, we stressed that relevance is a generally low threshold and
that "the State was not required to prove that the gun in the photograph was the actual
murder weapon for the evidence to be admissible." 284 Kan. at 177. Most importantly,
we continued that "[i]f 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.'" (Emphasis added.) 284
Kan. at 177 (quoting State v. Trammell, 278 Kan. 265, 282, 92 P.3d 1101 [2004]).
Correspondingly, we held Scott-Herring's claim meritless. 284 Kan. at 177.
We find Scott-Herring dispositive here. A substantial amount of witness testimony
presented "a sufficient similarity between" the .45 caliber ammunition and Glock
handguns from the internet searches and those used in the shooting. 284 Kan. at 177. Ten
.45 caliber shell casings were recovered around Carter's vehicle and one casing was
inside the car. Forensic scientist expert Jason Butell determined that the 11 shell casings
recovered from the Roxy's parking lot were fired from the same Glock handgun. Later,
Butell provided a detailed examination of Glock handguns and determined the shooter
20
used a Glock .45 caliber handgun in the full size, subcompact, slimline, or competition
variants. Butell then eliminated certain Glock models only capable of firing less than 11
rounds due to their magazine size. He determined the handgun was either a Glock Model
41, 30, or 21.
James Willis' smartphone contained searches for .45 caliber ammunition
compatible with Glock handguns, the Glock Model 21, and several searches for Glock
magazines carrying over 11 rounds. That James Willis performed internet searches for
the same caliber ammunition and one of the three possible handgun models used in the
shooting (the Glock .45 Caliber Model 21) just days prior creates a "sufficient similarity"
between the searches and evidence recovered from the scene. See Scott-Herring, 284
Kan. at 177.
Furthermore, we held in Scott-Herring it was not error to admit a single
photograph of the defendant with a revolver which bore the "general appearance" of four
handguns capable of firing the ammunition used in a murder. 284 Kan. at 175, 177. Here,
James Willis searched for the exact model of three possible handguns and repeated
searches for the same variety of ammunition. The similarities between James Willis'
searches and the firearm and ammunition used in Carter's shooting bear a much stronger
correlation and therefore were relevant. See 284 Kan. at 177.
Because there was a sufficient similarity between the guns and ammunition
depicted in the internet searches and the ammunition recovered at trial, we hold the
evidence was relevant and the district court did not err in permitting the smartphone
evidence.
21
Cumulative error did not deny Willis a fair trial.
In the last of his trial-phase claims, Willis asserts cumulative error denied him a
fair trial. Because we have found no error during Willis' trial, the cumulative error
doctrine does not apply. Marshall, 303 Kan. 451; see also State v. Blansett, 309 Kan. 401,
402, 435 P.3d 1136 (2019) (explaining that under the cumulative error doctrine, the court
must identify "multiple errors to accumulate").
Sentencing Issues
For the first of Willis' two sentencing-phase complaints on appeal, he argues the
district court failed to comply with K.S.A. 2019 Supp. 21-6620(c)(1)(A) when it imposed
a hard 50 sentence. Prior to sentencing, Willis moved for a downward durational
departure to a hard 25 sentence and provided justifications he believed supported the
departure. Willis claimed he did not have a gun and did not shoot Carter; he did not play
an "active role" in the shooting; and argued that the public would be sufficiently
protected by a 25-year prison term.
The district court explained that those same justifications could also cut the other
way:
"[T]he fact that . . . Dale Willis[] was not in possession of a handgun, was not the one
who pulled the trigger, can also be considered an aggravating factor under K.S.A. 21-
6815; that this was a murder committed with two or more participants in this criminal
conduct, and that this defendant, Dale Willis, played a major role as the leader or
director, if you will, of the shooter, James Willis.
22
"Mr. Willis, as you stated, the jury has rendered its verdict. They found beyond a
reasonable doubt that you were not only involved but that it was a premeditated act for
the shooting and death of Jurl Carter. From the totality of all the evidence that I have
heard in this case, that verdict is well-supported by evidence. I understand your
exercising your right to go to trial. You were convicted by the jury. Your continued
disavowing of any involvement in this does not match up with the evidence that was
presented here.
"To find a departure to reduce the time in which you must serve in prison before
being eligible for parole must be substantial and compelling. I would say that the
contrary would be substantial and compelling to show that there are aggravating
circumstances not mitigating circumstances for your request for leniency in this case."
(Emphases added.)
Willis posits the district court's reference to "aggravating" factors violated K.S.A.
2019 Supp. 21-6620(c)(1)(A) and State v. Jolly, 301 Kan. 313, 342 P.3d 935 (2015),
because it is unclear whether the district court impermissibly weighed aggravating and
mitigating factors against one another.
We are convinced no error occurred. The district court explained Willis' first-
degree murder conviction and its appropriate sentencing provisions. It discussed Willis'
downward durational departure motion and listed the justifications Willis provided for
that departure.
The district court then examined the nonexclusive list of mitigating factors
provided in K.S.A. 2018 Supp. 21-6815(c)(1)(A)-(F) and concluded that none applied to
Willis' case. It noted that "Willis certainly does not fall under the acceptance of
responsibility as evidenced by his statement here today." The district court explained that
factors raised by Willis could be interpreted as cutting against his claim for leniency. It is
clear the district court found no mitigating factors. As such, the court was not weighing
mitigating factors against aggravating ones. The district court reiterated the standard that
23
"to find a departure to reduce the time in which you must serve in prison before being
eligible for parole must be substantial and compelling." The court found that none of the
factors listed by Willis were convincing and believed they all cut the other way—as
substantial and compelling aggravating circumstances. The district court then sentenced
Willis to the hard 50 term.
Simply put, the district court could not impermissibly weigh aggravating and
mitigating circumstances because it did not find any mitigating factors. We find no abuse
of discretion here.
Finally, Willis objects to several of the district court's comments during
sentencing. These comments include: "Mr. Willis certainly does not fall under the
acceptance of responsibility as evidenced by his statement here today." And: "I
understand your exercising your right to go to trial. You were convicted by the jury. Your
continued disavowing of any involvement in this does not match up with the evidence
that was presented here." Willis argues, without authority, that the district court's
reference to accepting responsibility violated his right to remain silent under the Fifth
Amendment. Although Willis offers caselaw to support the rule "[t]he right to remain
silent extends to the sentencing phase of criminal trials[,]" he fails to provide any
authority for his assertion that the district court's statement somehow violated Willis'
Fifth Amendment rights.
We deem issues not adequately briefed as waived or abandoned. State v. Arnett,
307 Kan. 648, 650, 413 P.3d 787 (2018). Moreover, a point raised only incidentally in a
brief, but not argued therein, is also abandoned. State v. Sprague, 303 Kan. 418, 425, 362
P.3d 828 (2015). An appellant's failure to support a point with pertinent authority is akin
to failing to brief the issue. State v. Pewenofkit, 307 Kan. 730, 731, 415 P.3d 398 (2018).
24
Not only was the district court commenting directly on statutorily described mitigating
circumstances, any claim that these comments somehow violated Willis' right to remain
silent are deemed abandoned.
There was no sentencing error.
Affirmed.
NUSS, C.J., not participating.1
MICHAEL E. WARD, District Judge, assigned. 2
1
REPORTER'S NOTE: Chief Justice Lawton R. Nuss heard oral arguments but did not
participate in the final decision in case No. 117,436. Chief Justice Nuss retired effective
December 17, 2019.
2
REPORTER'S NOTE: District Judge Ward was appointed to hear case No. 117,436 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 Lee A. Johnson.
25