State v. Meggerson ( 2020 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 117,131
STATE OF KANSAS,
Appellee,
v.
CECIL MEGGERSON,
Appellant.
SYLLABUS BY THE COURT
1.
Issues not properly briefed are waived or abandoned.
2.
A litigant who alleges error bears the burden of designating a sufficient record on
appeal to show error.
3.
A person trained in the use and maintenance of a jail telephone system and its
records is qualified to lay sufficient foundation testimony for that system.
4.
If a district court properly admitted evidence under one enumerated exception
listed in K.S.A. 2019 Supp. 60-455(b), appellate courts need not address the efficacy of
another enumerated exception.
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Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed October 23,
2020. Affirmed.
Jeffrey C. Leiker, of Leiker Law Office P.A., of Kansas City, argued the cause and was on the
brief for appellant.
Daniel G. Obermeier, assistant district attorney, argued the cause, and Ethan Zipf-Sigler, assistant
district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
The opinion of the court was delivered by
STEGALL, J.: After a string of violent robberies in Kansas City, Missouri, and
Kansas City, Kansas, Cecil Meggerson and Dyron King were jointly tried. The jury
convicted Meggerson of attempted capital murder of Deputy Scott Wood, aggravated
robbery of Patricia Pope, aggravated robbery of Deputy Scott Wood, aggravated robbery
of Daniel Bayer, aggravated battery of Deputy Scott Wood, aggravated battery of Daniel
Bayer, conspiracy to commit aggravated robbery, criminal possession of a weapon by a
convicted felon on March 3, 2015, and criminal possession of a weapon by a convicted
felon on March 4, 2015. The jury acquitted Meggerson on charges of aggravated robbery
of Reginald Jones. The district court imposed a hard 25 sentence and a consecutive term
of 449 months with the Department of Corrections. Meggerson directly appealed.
FACTS AND PROCEDURAL BACKGROUND
We previously decided King's appeal in State v. King, 308 Kan. 16, 417 P.3d 1073(2018). In that decision, we described the key events as follows:
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"Don's Market and Liquors robbery
"On the evening of February 27, 2015, three men wearing black clothing and
brandishing guns entered Don's Market and Liquors at 3000 Southwest Boulevard,
Kansas City, Missouri. The cashier noticed one of the men was armed with a revolver
and another carried a semiautomatic handgun with 'a longer magazine.' The man with the
revolver—wearing a white mask and a pair of black and white gloves—came around the
counter and demanded money. The cashier emptied the cash from the register into a
plastic sack. The robbers then demanded the cashier's wallet, but when he was unable to
locate it, he was pushed to the ground. The robbers left with the plastic sack, various
types of liquor, cartons of cigarettes, and lottery tickets.
"The store's surveillance cameras showed the man with the white mask was also
wearing black and white batting gloves and gray 'boot style' shoes. Another robber was
carrying a 'MAC-11 style' semiautomatic gun with an extended magazine. This suspect
wore a mask and Nike shoes with a distinctive yellow or white toe pattern. The third
robber was wearing all black and carrying a revolver with a wood handle. Surveillance
video from a nearby business showed the three suspects exit the store and get in a black
four-door sedan with no front license plate.
"Family Dollar robbery
"Around 8:45 p.m. on March 3, 2015, Patricia Pope was working as a cashier at
the Family Dollar located at 1225 Quindaro, Kansas City, Kansas. Reginald Jones was a
customer in the store at the time. Pope was restocking the shelves when she noticed Jones
make his way to the front register to pay for his items. As she walked to the front to help
Jones, a taller man with a handgun came through the front door wearing black clothing, a
mask, and gloves. The suspect approached Jones and pointed the gun at him. While this
was occurring, two other individuals who were wearing dark clothing entered the store.
"The taller suspect spoke to Jones, but Pope could not make out what was said.
He then struck Jones in the forehead with the handgun, and Jones fell to the ground,
bleeding heavily. While on the ground, Jones was told to give up his keys and billfold.
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Jones tossed them his keys and said to take his car. But the robbers eventually left the
store without taking the keys.
"After striking Jones, the taller suspect grabbed Pope and pushed her toward the
counter. Once behind the counter, the man used a tool to pry open the cash register. He
emptied the contents of the drawer into a store trash can and then repeated the same
process at another cash register.
"While the taller man was prying open the drawers, another robber shoved Pope
to the ground near the store's safe, demanding she open it. When Pope said she could not
open it, the man fired two shots near her, one hitting the ground by her leg. Pope repeated
that she was unable to open the safe, so he fired a third shot over her shoulder next to her
face. The robbers left the store with the contents of the cash registers and some Newport
cigarettes from behind the counter.
"Pope noticed the taller suspect had on blue 'workman's boots or workman's
shoes.' Pope told a responding officer she could tell all three suspects were black males,
but she later testified at trial that she could not discern their race. The store's surveillance
video revealed one of the men was wearing a hoodie with a large gold eagle on the back.
Another suspect wore black and white gloves and had a MAC-style semiautomatic
handgun with an extended magazine. All three suspects had a firearm, one of which was
a revolver with a wood handle. In addition to the surveillance video, investigators
recovered two shell casings and a bullet from the store.
"Shamrock robbery
"Shortly after 10 p.m. on March 3, 2015, three armed men dressed in black
robbed a Shamrock gas station at 8505 Woodland Avenue in Kansas City, Missouri.
Brenden Foxworthy and Dustin Paquet were working the evening shift. Both Foxworthy
and Paquet described one of the robbers as taller than the others. The taller robber, who
was wearing a black mask covering his entire face, ordered Foxworthy to open the
registers and safe. Foxworthy opened the registers, but when he was unable to open the
safe, he was struck several times on top of his head with a gun. Foxworthy fell to the
ground where he remained until the suspects left.
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"Paquet observed one of the suspects was carrying a handgun with an extended
magazine. All three robbers concealed their faces with either a mask, scarf, or hoodie. At
some point before Foxworthy was struck, a shot was fired. After the suspects had left the
store, Foxworthy heard shots being fired in the parking lot.
"Surveillance footage showed the tallest robber was wearing all black clothing
and wielding a semiautomatic handgun with an extended magazine. He was wearing
black and white batting gloves and a gray boot style shoe. The second suspect was
dressed in all black and wore a mask with a University of Missouri Tiger's logo. He had
on two-tone gray gloves and was carrying a revolver with a wood handle. The last
suspect wore a black hoodie with a distinctive gold eagle design on the back and a pair of
gloves with a faded yellow logo. He also wore Nike shoes with a unique yellow and
white toe pattern.
"Foxworthy and Paquet told officers that the suspects took money and bottles of
Patron. Video surveillance showed the robbers also took bottles of Rémy Martin, 1800
Tequila, and other bottles of tequila. Officers recovered several bullet shell casings from
the parking lot.
"Kicks 66 robbery
"Around 12:45 a.m. on March 4, 2015, three masked men robbed a Kicks 66 gas
station at the corner of 79th Street and Wornall Road in Kansas City, Missouri. Dannella
Villa, the general manager, was training Derrick Brining that night. Villa saw three armed
men dressed in dark clothing with their faces covered run through the front door. All
three men were armed with handguns. Villa noticed one of the men had a mask with
some sort of design. She described the height of the robbers as 'one tall, one medium, and
one short.'
"When they entered the store, Villa and Brining dropped to the ground, and Villa
pressed the store's panic button. The tallest suspect and the medium-height suspect
approached Villa and demanded money. One of the men came around the counter, and
the other jumped over while firing gunshots. After opening one of the cash registers,
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Villa tried to open another but struggled to do so. The medium-height suspect used his
pistol to hit her twice on the top of her head and once on her face. While striking Villa, he
said, 'I'm gonna kill you, bitch.' Villa fell to the ground, acting as though she was
unconscious.
"While they were behind the counter, the robbers tried to intimidate Villa and
Brining by firing several shots near them. The robbers also tried to get Brining to open
the safe, but because it was his first night on the job, he did not know how. Brining was
struck several times with the butt of a gun. The robbers fired gunshots at the safe, trying
to open it, and one of the bullets ricocheted off of the safe and struck Brining in the
knuckle. They eventually abandoned their attempt to shoot open the safe, opting to
ransack the store before leaving with the money from the registers.
"Villa saw enough of the tall and medium robbers' skin to discern they were
black. The store's video surveillance cameras showed one of the robbers wore a
distinctive gray boot style shoe and was wearing black and white Easton batting gloves.
Another robber was carrying a revolver with a wood handle, had on two-toned black and
gray gloves, and was wearing a mask with a University of Missouri logo. The third
robber was wearing a jacket with a gold eagle emblem on the back.
"While entering the store, one of the suspects used a section of picket fence to
prop open the door. Officers later discovered the section of fence was taken from a
privacy fence located behind the gas station. While examining the fence behind the store,
officers discovered a pack of Newport cigarettes and a knotted section of black t-shirt.
Officers also recovered numerous bullet fragments and empty shell casings from the gas
station.
"7-Eleven robbery
"The final robbery occurred at the 7-Eleven convenience store located at 4331
Shawnee Drive in Kansas City, Kansas. In the early morning hours of March 4, 2015,
Dan Bayer was the only person working the overnight shift. Around 1 a.m., Officer Scott
Wood with the Wyandotte County Sheriff's Office came into the store. Officer Wood had
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just finished his work shift and stopped at the gas station on his way home. He was still in
uniform and wearing his gun. After selecting some items, Officer Wood went to the
checkout counter, where he struck up a conversation with Bayer.
"The robbery began as the two were leaning on the counter and talking—Bayer
facing the front door and Officer Wood facing away from the door. Three armed men
dressed in black and wearing masks entered the store. They held their guns in the air,
announced it was a robbery, and ordered Officer Wood to lie down on the ground. Bayer
observed one of assailants was 'noticeably taller' than the others. Before Officer Wood
went to the ground, he was able to catch a glimpse of the men. He also described one of
the men as 'a bit stockier than the other two and a little bit taller.'
"One of the men came over the counter, grabbed Bayer's arm, and hit him in the
head. Another suspect came around the counter while the other positioned himself over
Officer Wood. The men ordered Bayer to open the cash register, and after he had done
so, they had Bayer place the money in a bag. Bayer was then ordered to hand over his
wallet, but when the suspects discovered there was no money in it, they returned it to
Bayer. Bayer was then ordered to withdraw money from the store's safe. Bayer withdrew
$60 and gave it to them. Two of the suspects wrestled the drawer out of the second
register.
"As two of the robbers dealt with Bayer, Officer Wood was lying on his stomach
with his hands spread out in front of him. The third suspect held a knee to his back and
told him that if he moved or tried anything, they would shoot and kill him. The man
patted him down. Officer Wood tried to conceal his gun with his jacket, but to no avail;
the suspect discovered the gun and tried to wrestle it from the holster. Unable to free the
gun, the robber became frustrated and hit Officer Wood in the back of his head with an
object, causing Officer Wood to bleed. The holster strap eventually broke, and the
suspect removed the gun. He also took Officer Wood's knife and wallet, which contained
cash.
"At this point, multiple gunshots were fired. Bayer could not tell which suspect
fired the shots. Officer Wood later testified he could tell based on his training that a
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revolver and a semiautomatic handgun were being fired at the same time. Officer Wood
first felt a pain in his jaw, and his mouth began to fill up with blood. He then felt pain in
his right shoulder, left chest, and left abdomen.
"Once the suspects fled the store, Officer Wood—who had remained conscious—
radioed dispatch to report that he had been shot. Shortly thereafter, he lost consciousness.
The treating trauma surgeon later testified that Officer Wood suffered gunshot wounds to
his jaw, left and right shoulders, left chest, and right side of his neck. Officer Wood
survived and testified at trial. His gun was later recovered in Clay County, Missouri.
"The store's video surveillance revealed the shooter used a revolver with a wood
handle. One of the robbers wore black and white Easton batting gloves; another wore
dark gloves with a gold band; and the last suspect had on two-toned gloves. One robber
wore gray boot style shoes.
"Investigation
"The initial lead came from Kansas City, Missouri, police officers who were able
to lift a fingerprint from the pack of Newport cigarettes recovered from behind the Kicks
66. The print belonged to a young black male, Dyron King. Also located on the box of
cigarettes was a State of Kansas tax stamp that was affixed by a distribution company. A
detective working with the distribution company was able to determine from a code on
the stamp that the box was distributed to a group of vendors in the Kansas City, Kansas,
area, which included the Family Dollar located at 1225 Quindaro.
"Shortly after discovering the fingerprint, an investigator obtained the GPS
location of King's cell phone. That evening, Kansas City, Kansas, and Kansas City,
Missouri, officers—as well as various tactical response teams—arrived at 838 North 83rd
Terrace in Kansas City, Kansas. When they knocked on the front door, King's mother
answered, and one of the officers saw King in the front room of the home. Shortly
thereafter, officers discovered two other young black males—Charles Bowser and Cecil
Meggerson—in the home. All three were arrested.
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"Officers obtained a search warrant for the home. In King's downstairs bedroom,
officers located three handguns, including a .357 magnum revolver on the bed. The
revolver had a wood handle with a gold emblem. Behind a ceiling tile, officers found a
bag containing a large amount of cash resting next to a MAC-style gun with an extended
magazine. Resting on the floor were empty coin wrappers; a pair of blue and gray Nike
boot style shoes, one with a drop of blood on it; an 'improvised mask' that looked to be
made from the sleeve of a t-shirt with a University of Missouri logo on it; and various
liquor bottles, including Patron and Rémy Martin. A black hoodie, black pants, and a
black jacket were also recovered from the bedroom.
"Also in King's bedroom were the keys to a black Lincoln sedan that was parked
in front of the house. Officers later learned the car belonged to Bowser. Inside the
vehicle, officers recovered a pair of black and white Easton batting gloves; a pair of black
gloves with a yellow stripe; a pair of two-toned gloves; a pair of black gloves; a bottle of
Rémy Martin; a box of .357 bullets; and another 'impromptu mask' that appeared to be
made from a t-shirt.
"Officers obtained a warrant to search Bowser's residence in Kansas City,
Missouri. There they found a bottle of Patron in a dresser that also contained mail
addressed to Bowser. Officers also located a coin wrapper behind a couch and a shirt
matching the description of a shirt worn in the robbery of Don's Market and Liquors.
"When officers booked Meggerson into jail, they took into evidence the clothing
he was wearing, which included a pair of black Nike Air Max shoes. They also collected
Meggerson's Nokia cellphone, which contained four photographs of Meggerson holding a
bottle of Patron and a bottle of 1800 Tequila. The timestamps on the photos indicated
they were taken at 11:50 p.m. on March 3, 2015.
"Meggerson's cell phone contained text messages between him and 'Dyron.' One
of the messages stated, 'I need them 357,' which was sent on March 4. A detective
testified that he believed '357' referred to the .357 magnum revolver that was recovered
from King's bedroom. Another text message from Dyron on February 28 stated, 'Don't
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take it yet. We about to get money. Then we take it when we get a good L.' The phone's
call log indicated Dyron called Meggerson's phone three times on March 3, 2015.
"In addition to Meggerson's phone, officers collected an LG cell phone from the
living room floor at 838 North 83rd Terrace, and yet another cell phone was collected,
though the record is unclear where it was found. An FBI special agent was able to
determine one of the phones connected to the cellphone tower nearest the Family Dollar
at 8:39 p.m. on March 3, 2015. The Family Dollar robbery occurred around 8:45 p.m.
that day. The same agent also determined Meggerson's phone connected to the two cell
phone towers nearest the Shamrock 10 times between 9:53 p.m. and 9:59 p.m. The
Shamrock robbery occurred shortly after 10 p.m.
"After listening to jailhouse phone calls made by Meggerson, officers obtained a
warrant to search his girlfriend's apartment. There they found a shoebox containing a
wallet with Meggerson's identification. Also in the shoebox were several items such as
earrings, necklaces, and sunglasses with the price tags still attached.
"During the course of the investigation, detectives obtained a DNA search
warrant for all three suspects. DNA analysis from blood found on two spots from inside
and outside the black and white Easton batting gloves revealed a mixture of a major and
minor contributors. King was found to be the major contributor to both. Among three
contributors to the DNA found inside the black and gray gloves found in the sedan,
Meggerson's DNA was determined to be the major contributor. Of the four contributors
to the DNA found in the black and yellow gloves, Bowser was the major contributor.
Bowser was found to be the major contributor to three stains found on the University of
Missouri mask. And Bowser was the major DNA contributor to the knotted fabric found
behind the Kicks 66 gas station. King was found to be the major contributor of DNA
located inside the blue and gray Nike boot style shoe. The blood found on the exterior of
the shoe belonged to Foxworthy.
"Swabbings from the revolver found in King's room revealed blood in one of the
cylinder pin housings. The major DNA profile matched that of Officer Wood's to the
probability of 1 in 520 octillion individuals. A firearms examiner compared shell casings
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recovered from the 7-Eleven, Family Dollar, and Shamrock robberies and was able to
determine they were all fired from the same gun.
"Investigators recovered footprints from the Kicks 66 gas station which were left
behind on a 5-hour Energy box and a folded piece of paper. A forensic specialist
determined the impression on the 5-hour Energy box could have been made by the blue
and gray Nike boot style shoe recovered from King's bedroom. The same specialist
deduced the black Nike Air Max shoes recovered from Meggerson could have made the
impression on the folded piece of paper.
"While King was incarcerated at the Wyandotte County jail awaiting trial, he
made statements to two different detention officers. On one occasion, a detention officer
told King he could not leave his cell during a health and welfare check because the
facility was on lockdown. King became agitated and started yelling at the officer, calling
him a liar. When the detention officer told King there was nothing he could do about it,
the officer walked to another cell. The officer testified he could still hear King tell
another inmate, 'I know that bitch is just lying to try and mess with me and he's pissed off
that I shot one of his buddies and now he wants to get his.'
"Officer Jonathan Cortes testified about the second statement, which allegedly
occurred over an intercom system used by officers and inmates to communicate with
each other. King demanded access to a phone so he could speak with a sergeant.
According to Officer Cortes, when he denied the requests, King yelled over the intercom
that 'he gets the phone and the sergeant . . . whenever he want[s] to because he shot a
policeman and that [the officers] fear[ ] him.' Officer Cortes claimed over the next two
hours, King repeated multiple times that the officer was just mad because King 'shot [his]
boy.' Officer Cortes also testified King said 'he was gonna beat [his] ass and shoot [him].'
"Procedural posture
"The State charged King, Meggerson, and Bowser with attempted capital murder
of Officer Wood, aggravated robbery of Patricia Pope (Family Dollar cashier);
aggravated robbery of Reginald Jones (Family Dollar customer); aggravated robbery of
Dan Bayer (7-Eleven clerk); aggravated robbery of Officer Wood; aggravated battery of
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Officer Wood; aggravated battery of Dan Bayer; conspiracy to commit aggravated
robbery; and two counts of criminal possession of a firearm. King was also charged with
criminal threat toward Officer Cortes.
"On December 9, 2015, King and Meggerson filed a joint motion to sever their
trial from Bowser's. The motion stated the attorneys for King and Meggerson had
received statements from two individuals who were incarcerated with Bowser. The
statements allegedly indicated Bowser confessed to these individuals and explained in
detail how the crimes were committed. However, before the court could consider the
motion, Bowser received new counsel on January 8, 2016. At the pretrial motions hearing
on January 15, 2016, Bowser's new counsel asked the court for a 'continuance,'
explaining that he had been assigned to the case one week earlier and noting the large
amount of discovery he had to review. The State did not object, and the court granted the
request, telling Bowser's attorney that they would have to set a new hearing and trial date.
Neither King nor Meggerson moved to sever their joint trial.
"Ten days later, the court began a two-week jury trial of both King and
Meggerson. The State called 74 witnesses and offered over 600 exhibits. The surveillance
videos of each robbery were entered into evidence and viewed by the jury. Neither
defendant presented evidence. The jury found King guilty as charged except for the
aggravated robbery of Jones and the criminal threat to Officer Cortes. The jury also found
Meggerson guilty as charged except for the aggravated robbery of Jones." 308 Kan. at
17-27.
DISCUSSION
The State presented sufficient evidence to convict Meggerson.
Meggerson first claims his convictions are not supported by sufficient evidence.
Meggerson titles this argument this way: "There is insufficient evidence to support Mr.
Meggerson's felony convictions, specifically for the felonies of Attempted Capital
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Murder, three counts of Robbery, two counts of Aggravated Battery, conspiracy to
commit Aggravated Robbery, and two counts of Criminal Possession of a Firearm." The
body of the argument, however, only discusses the attempted capital murder conviction.
Issues not briefed or not adequately briefed are deemed waived or abandoned.
State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019); State v. Arnett, 307 Kan. 648,
650, 413 P.3d 787 (2018). A point raised incidentally in a brief but not argued is also
deemed abandoned. State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018). Failure
to support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. Salary, 309 Kan. at 481. We hold that Meggerson has waived each sufficiency
claim, save for the claim related to his attempted capital murder conviction.
Attacking his attempted capital murder conviction, Meggerson argues no direct
evidence implicated him because the police followed a cigarette pack with King's
fingerprint. Meggerson claims he and King are cousins, so his presence at King's home
was pure coincidence. Meggerson points to Officer Dion Dundovich, who Meggerson
claims testified "Meggerson was arrested with King and Bowser simply because he was
the third black man in the house, and for no other reason." He continues that the search of
King's home yielded evidence implicating King and Bowser, but nothing implicating
Meggerson. He adds that the search of his girlfriend's apartment likewise did not provide
incriminating evidence. Further, Meggerson argues the State failed to prove
premeditation, and without evidence of premeditation, insufficient evidence existed for
the jury to convict Meggerson of the offense of attempted capital murder.
When a defendant attacks the sufficiency of the evidence used to convict him or
her, we must ask "'whether, after reviewing all the evidence in a light most favorable to
the prosecution, the appellate court is convinced a rational factfinder could have found
the defendant guilty beyond a reasonable doubt.'" State v. Chandler, 307 Kan. 657, 668,
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414 P.3d 713 (2018). We are not to "'reweigh evidence, resolve evidentiary conflicts, or
make witness credibility determinations.'" 307 Kan. at 668. This is a high burden, and
only when the testimony is so incredible that no reasonable fact-finder could find guilt
beyond a reasonable doubt should we reverse a guilty verdict. State v. Torres, 308 Kan.
476, 488, 421 P.3d 733 (2018); State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).
The record is replete with direct and circumstantial evidence implicating
Meggerson in the 7-Eleven robbery. Further, the State properly used witness testimony
about the other robberies to show plan and identity for Meggerson, King, and Bowser.
Each robbery was committed in substantially the same manner. Cell phone data
established Meggerson's cell phone was at the regional cell phone tower nearest the
Shamrock gas station nine times during the course of that robbery. Meggerson, King, and
Bowser texted and called each other during the robberies. Meggerson texted King and
requested a ".357"—the same caliber as the revolver recovered from King's home and as
the one used to shoot Deputy Wood. Further, Meggerson texted "[w]e about to get
money." Meggerson's DNA matched DNA recovered from the Hyflex brand glove
recovered from Bowser's Lincoln LS found in King's driveway. The Kicks 66 and 7-
Eleven video surveillance footage depicted an individual wearing Hyflex brand gloves.
Similarly, Meggerson wore Nike Air Max shoes when police arrested him. In the Kicks
66 and 7-Eleven surveillance videos, the individual wearing Hyflex gloves also wore
Nike Air Max shoes. The treads of the Nike Air Max shoes found at the Kicks 66 and 7-
Eleven locations were consistent with one another.
At trial, the jury was instructed on accomplice liability. Jury Instruction No. 94
instructed the jury that "[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 intentionally aids another to commit the crime." The record implicated
the three as codefendants—police recovered black and white Easton brand batting gloves,
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visible on surveillance video at each robbery location, from Bowser's Lincoln LS and
King's was the major contributing DNA profile on that pair of gloves. Additionally, a
black sedan consistent with Bowser's black Lincoln LS is visible on the Don's Market and
Liquors surveillance video.
Police found a cloth face mask containing Bowser's DNA in the Lincoln. This face
mask is visible in several robbery videos and is identifiable by a logo on the cloth. The
face mask was located near the Easton and Hyflex brand gloves. The chamber of the
revolver recovered from King's bedroom contained Deputy Wood's blood. This revolver
was a .357—the same caliber discussed by Meggerson over text messages and the same
caliber as the gun used to shoot Deputy Wood. King's DNA was inside a pair of gray
Nike boots that contained a Shamrock station employee's blood. Similar boots can be
seen on multiple surveillance videos.
A knotted shirt used as a face mask was discovered outside the Kicks 66 location
and contained Bowser's DNA. Police found a Newport cigarette package nearby. The
cigarettes were consistent with the cigarettes sold at and taken from the Family Dollar
store. Meggerson instructed his girlfriend, Ashley Carvin, to sell or dispose of the
"packs" in a jail phone call.
We are thoroughly convinced the record contains sufficient evidence such that a
reasonable juror would conclude that Meggerson committed attempted capital murder
based on the substantial body of evidence presented at trial. There was no error.
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Meggerson failed to designate a sufficient record to support his claim of error
concerning his cell phone.
Next, Meggerson asserts the district court erred when it admitted the contents of
his cell phone. He explains that a "piggyback" warrant was used by a Clay County,
Missouri crime lab for his phone recovered in Wyandotte County, Kansas. Meggerson
notes that a probable cause affidavit was provided to a Missouri judge for the phone
search warrant, but the information in the affidavit went only to the search of King's
home and vehicle. More or less, Meggerson claims the Missouri search warrant was
deficient and a "virtual rubber-stamp." Meggerson concludes the phone's contents were
highly prejudicial, containing photographs of Meggerson holding liquor bottles similar to
those taken from several of the robberies.
Before trial, Meggerson moved to quash the search warrant for King's residence
and to suppress any obtained evidence. The warrant application included four recovered
cell phones. Meggerson received a hearing and argued the original Missouri warrant did
not provide probable cause to search the phone. He claimed Detective David Foster
contradicted himself—that Foster originally testified he forgot to include a probable
cause statement, but later testified he provided the proper probable cause statements with
the affidavit. The district court stated that all the correct information was included and
denied Meggerson's motion.
On appeal, however, Meggerson failed to include in the record on appeal the
allegedly defective warrant, its underlying affidavits or probable cause statements, or any
relevant materials. Meggerson, as the party claiming error, has the burden to designate a
record affirmatively showing prejudicial error. Without such a record, we must presume
the actions of the district court were proper. State v. Simmons, 307 Kan. 38, 43, 405 P.3d
1190 (2017); see also State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The
burden is on the party making a claim of error to designate facts in the record to support
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that claim; without such a record, the claim of error fails."). Because Meggerson failed to
fulfill his burden to provide the documents necessary for our consideration, his claim
fails.
The district court properly admitted Meggerson's jail phone calls.
Meggerson next complains the district court erred when it admitted his Wyandotte
County jail phone calls—specifically the admission of his statement to Carvin: ". . . hey,
do you remember what I have Caprice (ph)? You know, those—the two packs, get rid of
them. You know them things I like, get rid of them or get a discount on them. Get some
money off of them." Meggerson admits the "packs" reference cigarettes and claims the
statement implied to the jury he destroyed evidence. Meggerson complains the State did
not actually play the phone calls to the jury, but detectives who listened to them described
the calls. He asserts this was an end-run around the appropriate process for the admission
of audio file evidence. Meggerson argues this prejudiced his case because the State used
this phone call in closing argument to suggest Carvin moved or destroyed evidence at
Meggerson's request, which is why a search of Meggerson's apartment yielded little
evidence.
At trial, Detective Troy Rice testified the jail Pay-Tel phone system indicated the
number Meggerson dialed belonged to Meggerson's girlfriend, Carvin. Meggerson
objected, claiming Rice was not the records custodian for the phone system, so his
testimony was hearsay. Meggerson argued the State needed a records custodian to lay
foundation for the Pay-Tel phone system. The district court disagreed and permitted the
State to question Detective Rice if he heard the conversation and what Rice did next
based on that information without getting into the conversation's contents.
17
Meggerson essentially makes two claims: (1) Carvin was not properly identified
on the call; and (2) the Pay-Tel jail phone server was maintained elsewhere and required
the testimony of a records custodian to lay sufficient foundation. We will address each.
Meggerson first claims the State failed to sufficiently identify Carvin on the phone
calls. We conclude otherwise. Detective Rice testified the Pay-Tel system identified the
number Meggerson called as Carvin's. He testified "the phone number on record with the
Wyandotte County's Pay-Tel phone system to that number, was an Ashley Carvin." When
pressed further, Detective Rice explained if a "phone number has been registered before
in the system, there is some data fields, which fills in not only the phone number, but the
name and address of the person to that phone number from prior records."
Later, the record custodian for the phone system, Detective Sherry Anderson-
Simpson, testified that Carvin's information was previously entered into the Pay-Tel
system. She stated that she listened to "a phone call that was made on March 5th at about
14:48 hours . . . to Ashl[e]y Carvin from Cecil Meggerson." In light of this testimony, we
are satisfied the evidence was sufficient to connect Carvin to the call.
Meggerson's second argument asserts Detective Anderson-Simpson was not the
proper records custodian. While we have not directly addressed this question, the Court
of Appeals has consistently permitted police detectives, captains, or other police
personnel to provide foundation for their jail phone systems.
In State v. Ross, No. 118,199, 2019 WL 847672, at *7 (Kan. App. 2019)
(unpublished opinion), the Court of Appeals permitted the jail support commander to
testify as a rebuttal witness and "explain[] the process for searching the phone system for
a specific inmate's phone calls." Many other examples exist. See State v. Leaper, 40 Kan.
App. 2d 902, 910, 196 P.3d 949 (2009), aff'd 291 Kan. 89, 238 P3d 266 (2010); State v.
Andrews, 39 Kan. App. 2d 19, 20-21, 176 P.3d 245 (2008); State v. Kurtenbach, No.
18
119,845, 2019 WL 490519, at *1 (Kan. App. 2019) (unpublished opinion); State v.
Loewen, No. 102,577, 2010 WL 1078477, at *1 (Kan. App. 2010) (unpublished
opinion);.
We agree with the Court of Appeals and hold under these facts, Detective
Anderson-Simpson properly laid foundation for the jail phone call. The record shows
Detective Anderson-Simpson was a Wyandotte County Sheriff's Office employee during
Meggerson's incarceration. She detailed the jail used a "web based system with a secure
user name and password" and described the process an inmate uses to place or receive a
phone call, including a "unique pin number" assigned to each inmate. Detective
Anderson-Simpson also testified that she acted as the Pay-Tel phone system custodian,
ensured the system functioned properly, checked phone calls for abuse, and reported
misuse of the system. Further, Detective Anderson-Simpson noted that Pay-Tel provided
training to her and other staff on the system's operation. She learned "how to use the
system, how to block numbers from the system, how to make certain phone numbers not
recorded, and basically . . . how we could find when inmates are using other pin numbers
to make phone calls." Detective Anderson-Simpson described hers as a "very thorough
training."
We are convinced Detective Anderson-Simpson laid a proper foundation for the
Pay-Tel phone record.
The district court properly admitted K.S.A. 2019 Supp. 60-455 prior crimes evidence.
Meggerson next takes issue with K.S.A. 2019 Supp. 60-455 evidence admitted at
trial. He explains the State admitted prior bad acts evidence about the other uncharged
robberies to prove plan and identity but complains the evidence was not relevant for those
purposes. What is more, Meggerson argues the State used the other robbery evidence for
the sole purpose of showing propensity and highlights that this evidence consisted of
19
more than half of the State's case and thus the probative value did not outweigh its
prejudicial effect. Meggerson admits the "identity of the perpetrator and plan were both
material and in dispute." As such, we must decide first whether the evidence of these
other robberies was relevant to prove the material facts of identity and plan, and second,
whether the probative value of the evidence outweighed any prejudicial effect. State v.
Haygood, 308 Kan. 1387, 1392-93, 430 P.3d 11 (2018).
All relevant evidence is admissible unless prohibited by statute, constitutional
provision, or judicial decision. See K.S.A. 60-407(f); Nauheim v. City of Topeka, 309
Kan. 145, 153, 432 P.3d 647 (2019). When reviewing prior crimes evidence admitted
under K.S.A. 2019 Supp. 60-455, we review a district court's relevance determination
under a bifurcated standard of review. Relevance has two elements: materiality and
probativeness. See Miller, 308 Kan. at 1167. Evidence is material when the fact it
supports is in dispute or in issue in the case, and materiality is reviewed de novo. 308
Kan. at 1166-67. Evidence is probative if it has any tendency to prove any material fact,
which we review for an abuse of discretion. 308 Kan. at 1166-67.
But a district court may exclude relevant evidence it when its probative value is
outweighed by its potential for producing undue prejudice. See K.S.A. 2019 Supp. 60-
455. We review the lower court's balancing of probative value against prejudicial effect
for an abuse of discretion. Haygood, 308 Kan. at 1392-93. A judicial action constitutes an
abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an
error of law; or (3) it is based on an error of fact. State v. Ingham, 308 Kan. 1466, 1469,
430 P.3d 931 (2018). When prior crime evidence is provided under K.S.A. 2019 Supp.
60-455, the district court must provide a limiting instruction. Haygood, 308 Kan. at 1392-
93.
20
While K.S.A. 2019 Supp. 60-455(a) prevents the use of propensity evidence in a
criminal trial such as this one, it permits introduction of evidence of prior acts if it is
being used for a legitimate, non-propensity reason:
"[S]uch evidence is admissible when relevant to prove some other material fact including
motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake
or accident." (Emphases added.) K.S.A. 2019 Supp. 60-455(b).
Of note, the jury received the correct limiting instruction and Meggerson does not
challenge the jury instruction, only the admission of the evidence. The limiting Jury
Instruction No. 97 informed the jury: "Evidence has been admitted tending to prove that
the defendant Cecil Meggerson committed crimes other than the present crimes charged.
This evidence may be considered solely for the purpose of proving the defendant's
motive, intent, plan, and identity."
K.S.A. 60-401(a)-(b) defines evidence and relevant evidence. "Evidence" is
defined as "the means from which inferences may be drawn as a basis of proof in duly
constituted judicial or fact-finding tribunals" and "relevant evidence" is any "evidence
having any tendency in reason to prove any material fact." (Emphasis added.)
We previously discussed relevant evidence in a similar case. In State v. Wilson,
295 Kan. 605, 614-20, 289 P.3d 1082 (2012), we held seven uncharged burglaries from
Kansas and Nebraska were relevant to prove identity and plan. Like Meggerson, Wilson
agreed identity and plan were both material and in dispute but claimed "the uncharged
burglaries were irrelevant to prove those disputed material facts." 295 Kan. at 616. There,
we asked whether "the evidence was . . . probative of the disputed material facts and"
therefore relevant. 295 Kan. at 618. We explained when K.S.A. 2019 Supp. 60-455
evidence is used to prove identity, "'the evidence should disclose sufficient facts and
circumstances of the offense to raise a reasonable inference that the defendant committed
21
both offenses.'" 295 Kan. at 618 (quoting State v. Higgenbotham, 271 Kan. 582, Syl. ¶ 3,
23 P.3d 874 [2001]).
Then, we noted the commonalities between several burglaries, including (1) rural
locations; (2) isolated houses with no near or adjacent neighbors; (3) each home was near
a highway; (4) the area was limited to north-central Kansas and south-central Nebraska;
(5) each home was unoccupied at the time of the burglaries; (6) each burglary was
committed at approximately the same time; (7) Wilson was away from his own home
when each burglary occurred; (8) firearms were left out at several locations; (9) cigarette
butts were discovered at various homes; and (10) items of value were taken at each
location. 295 Kan. at 619.
We summarized this evidence showed "the manner in which [the five charged]
burglaries were committed—particularly evidence of the locations of the crimes and
general time frame of the crimes, and evidence that stolen items from these homes were
recovered in [the defendant's] home or RV" and that this raised "a reasonable inference
that the same person . . . committed those burglaries." 295 Kan. at 619-20. Ultimately, we
held the district court did not abuse its discretion when it found evidence from "the seven
uncharged burglaries met the probativity element of relevance to prove the disputed
material fact of identity." 295 Kan. at 620. Turning to plan, we explained because the
evidence was permissible to prove K.S.A. 60-455's enumerated identity exception, there
was no need to "consider [the defendant's] argument that the evidence was inadmissible
to prove plan." 295 Kan. at 620.
In today's case, the K.S.A. 2019 Supp. 60-455 evidence "'disclose[s] sufficient
facts and circumstances of the offense to raise a reasonable inference that [Meggerson]
committed'" the previous robberies and the 7-Eleven robbery. See Wilson, 295 Kan. at
618. Witness testimony established the individuals perpetrated each robbery in
substantially the same manner. Video surveillance depicted the same masks, gloves,
22
shoes, and handguns used in each crime. Bowser's black Lincoln was used as a getaway
car in several robberies. Newport cigarettes were taken from many of the locations. Most
of the robberies occurred within the same 24-hour time period in a small geographic area
in Kansas City, Kansas, and Kansas City, Missouri.
These similarities closely reflect those discussed in Wilson, including the time of
the robberies, their locations, the perpetrators' behavior during the crimes, and the items
taken. We believe the record clearly indicates that the robberies provided a sufficient
basis "'to raise a reasonable inference that [Meggerson] committed'" each crime and
prove identity. See 295 Kan. at 618. We hold the district court did not abuse its discretion
when it determined the robbery evidence was relevant to prove Meggerson's identity.
Having affirmed the district court's admission of the K.S.A. 2019 Supp. 60-455 prior
crimes evidence for identity, we need not discuss its efficacy to prove plan. See 295 Kan.
at 620.
Moving to the final inquiry—whether the probative value of the prior crimes
evidence outweighs the prejudicial effect—we again find Wilson highly instructive.
Wilson classified the evidence connecting the uncharged burglaries to his case as
"'minimal at best'" and therefore unduly prejudicial due to the large quantity of uncharged
criminal cases. 295 Kan. at 621. We disagreed and preferred the State's framing "that
identity 'was the most hotly contested issue of the trial.'" 295 Kan. at 621. We elaborated
the uncharged burglaries provided "significant probative value to that issue" and noted
the jury received a proper limiting instruction. 295 Kan. at 621. We held the district court
did not abuse its discretion when it determined the probative value of the prior crimes
evidence of seven uncharged crimes was not outweighed by the potential for undue
prejudice. 295 Kan. at 621.
Wilson is directly analogous to Meggerson's case. First, the jury here also received
a proper limiting instruction. See 295 Kan. at 621. Second, in Wilson the State also
23
presented a substantial amount of prior crimes evidence detailing seven uncharged
burglaries. See 295 Kan. at 621. In our view, the K.S.A. 2019 Supp. 60-455 evidence
presented here was highly probative, as it linked Newport cigarettes to each robbery, as
well as the strategy and methodology of the robberies, the suspect's clothing, vehicle,
revolver and other handguns, the limited geographic scope, and a timeframe.
Meggerson protests that the evidence became overly prejudicial when the State
presented over half its case as K.S.A. 2019 Supp. 60-455 evidence. We decline to draw
such a bright line. Meggerson fails to explain how the K.S.A. 2019 Supp. 60-455
evidence unduly prejudiced him, he simply assumes it did so because it exceeded 50% of
the State's case. Meggerson provides no citation that suggests this court's analysis
depends on the mathematical quantity or proportion of prior crimes evidence. K.S.A.
2019 Supp. 60-455(a)'s plain language does not indicate any tipping point for when
evidence strays from appropriate to unduly prejudicial based purely upon the quantity of
that evidence. See K.S.A. 2019 Supp. 60-455(a). If this were the measurement for
prejudice, this court would have excluded the copious K.S.A. 2019 Supp. 60-455
evidence in Wilson. See 295 Kan. at 621. Without contrary authority, Meggerson's claim
fails. See Miller, 308 Kan. at 1157; Simmons, 307 Kan. at 43.
The district court properly admitted two timelines as evidence.
Meggerson next challenges the district court's admission of two timelines as
evidence. He claims the district court abused its discretion when it permitted Officer
Dennis McMillin and Detective Todd Taylor to present demonstrative timelines because
the timelines were repetitive and cumulative, contrary to State v. Baker, 255 Kan. 680,
691, 877 P.2d 946 (1994).
24
Officer McMillin provided an aid for the jury that compiled picture evidence,
videos, and admitted exhibits in a chronological timeline. The timeline was admitted into
evidence over Meggerson's objection. Meggerson analogized McMillin's timeline to an
officer's report and claimed the jury could not use this tool, but must draw upon its
collective memories. Detective Taylor prepared a timeline from comparison photographs
he took during his investigation and photographs already in evidence. Again, Meggerson
objected, claiming that the timeline should only be permitted as a demonstrative aid. The
district court permitted the timeline as an exhibit. On appeal, Meggerson simply advances
the argument that these timelines were cumulative and should have been excluded on that
basis alone.
District courts have discretion to admit or exclude cumulative evidence. State v.
Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). "[O]nly an abuse of that discretion
warrants reversal on appeal." State v. Hanson, No. 98,793, 2008 WL 4849344, at *2
(Kan. App. 2008) (unpublished opinion). "'Cumulative evidence is evidence of the same
kind to the same point, and whether it is cumulative is to be determined from its kind and
character, rather than its effect.'" State v. Dupree, 304 Kan. 43, 65, 371 P.3d 862 (2016).
In Dupree, Dupree argued the district court abused its discretion after it admitted
four crime scene photographs. He claimed "that the coroner did not even need to
reference some of the photographs." 304 Kan. at 64-65. We noted a detective testified the
photographs were an attempt to recreate a panoramic view of the kitchen where the
victim was shot. Moreover, the photos had a corroborative effect on several key
witnesses' accounts "about the circumstances of [the victim's] murder." 304 Kan. at 65.
We explained we rarely "found an abuse of discretion in the admission of photographic
evidence in a murder trial." 304 Kan. at 65 (finding no abuse of discretion).
25
Dupree is in good company, as we have refused to find an abuse of discretion for
the admission of similar evidence. See, e.g., State v. Mireles, 297 Kan. 339, 356, 301
P.3d 677 (2013) (finding no abuse of discretion for admitting two photographs of the
same wound because one showed the wound close up and the other depicted where the
wound was on the victim's body); State v. Rodriguez, 295 Kan. 1146, 1158, 289 P.3d 85(2012) (finding no abuse of discretion for admitting four photographs of a victim's
autopsy because each provided additional context the others did not and showed injuries
at different angles); Reed, 282 Kan. at 282 (holding the district court did not abuse its
discretion for the admission of a taped 911 call in addition to the dispatcher's testimony
because the tape corroborated the dispatcher's testimony and captured the suspect's
demeanor during the crime); State v. Hickles, 261 Kan. 74, 88, 929 P.2d 141 (1996)
(permitting over 100 photographs to be shown to the jury because, "Cumulative evidence
in itself is not objectionable. Error cannot be predicated on allowing the use of such
evidence."); State v. Johnson, 231 Kan. 151, 156-57, 643 P.2d 146 (1982) (no abuse of
discretion for admitting testimony from two officers about certain windows).
Officer McMillin's timeline focused on all the physical evidence. He created a
chronological account of the robberies to aid in the State's attempt to show plan and
identity. Detective Taylor's timeline depicted metadata and reconstructed the recovered
cell phones' locations during crucial events. These timelines are not "to the same point,"
and so we hold the timelines were not cumulative and the district court did not abuse its
discretion when it admitted them. See Dupree, 304 Kan. at 65; Rodriguez, 295 Kan. at
1158.
Cumulative error did not deny Meggerson a fair trial.
Finally, Meggerson asserts cumulative error denied him a fair trial. We found no
error during Meggerson's trial, so the cumulative error doctrine does not apply. State v.
26
Marshall, 303 Kan. 438, 451, 362 P.3d 587 (2015); 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").
Affirmed.
BEIER, J., not participating.1
PATRICK D. MCANANY, Senior Judge, assigned.2
1
REPORTER'S NOTE: Justice Beier heard oral arguments but did not participate in the
final decision in case No.117,131. Justice Beier retired effective September 18, 2020.
2
REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
117,131 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court by the retirement of Chief Justice Lawton R. Nuss.
27