State v. Dupree
373 P.3d 811
Kan.2016Background
- On December 14, 2011, two intruders forced into a Wichita home; Markez Phillips was shot and later died; Regina Stuart (homeowner’s daughter) identified Reginald Dupree and Malek Brown as the initial intruders.
- Five men were linked to the burglary/robbery; Dupree was charged with seven counts including felony murder (based on aggravated burglary), kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault.
- Dupree testified at trial that he was present but an unwilling or unaware participant, claimed Brown acted violently and that Dupree had been frightened and coerced; he did not deny presence or taking property.
- The jury convicted Dupree on all counts; he received life with a 20-year minimum plus additional time and appealed raising eight arguments grouped into information/pleading defects, sufficiency of evidence, jury-instruction errors, a sequestration/seating issue for the case detective, and cumulative error.
- The Supreme Court of Kansas affirmed, addressing each challenge and finding either no error or that any assumed error was harmless given the record.
Issues
| Issue | Plaintiff's Argument (Dupree) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Charging information omitted explicit aiding-and-abetting language for aggravated assault and child endangerment | Failure to allege aiding and abetting is jurisdictional and fatally defective because aiding-and-abetting requires an extra mens rea allegation | Aiding-and-abetting is not a separate crime requiring specific wording; the information sufficiently alleged the offenses and permitted accomplice liability | Court held no jurisdictional defect; State need not use the words “aiding and abetting” in the information (affirmed) |
| 2. Oral amendment to felony-murder predicate (swapping aggravated robbery for aggravated burglary) not memorialized in writing | Oral amendment was insufficiently specific and prejudicial; failure to file written amended information warrants reversal | Amendment did not charge a new crime; defendant had notice and opportunity to defend against both predicates; lack of memorialization did not prejudice defendant | Court held amendment appropriate and lack of written memorialization was not prejudicial reversible error (affirmed) |
| 3. Sufficiency of evidence for felony murder (whether killing occurred while committing as opposed to attempting aggravated burglary) | Evidence showed at most an attempt to enter; jury instruction required "committing" completed burglary, so felony-murder conviction insufficient | Res gestae doctrine allows considering acts immediately before/during/after the principal occurrence; evidence showed the killing was within the res gestae of aggravated burglary | Court held evidence sufficient; killing occurred within the res gestae of the felony (affirmed) |
| 4. Jury instructions: (a) aiding-and-abetting not instructed for felony murder, (b) compulsion defense refused, (c) lesser-included offenses refused | (a) Jury could not convict on aiding-and-abetting felony murder; (b) compulsion instruction warranted by his testimony that Brown waved a gun and coerced him; (c) jury should have been instructed on lesser included offenses like second-degree murder/manslaughter | (a) Felony-murder liability treats all participants as principals; instructions read together allowed accomplice theory; (b) compulsion requires imminent, continuous coercion and no reasonable escape; evidence insufficient; (c) legislature eliminated lesser-included offenses for felony murder and applied retroactively | Court held (a) no instructional error — instructions as a whole permitted accomplice liability; (b) no error in refusing compulsion instruction — evidence insufficient; (c) refusal proper because lesser-included offenses of felony murder were statutorily abolished and applied retroactively (affirmed) |
| 5. Sequestration and seating: case detective allowed to sit near prosecution and exempted from sequestration | Detective’s presence at prosecution table and exemption improperly bolstered credibility and violated sequestration, requiring reversal | Practice existed; detective sat near but not at counsel table; even if error, any effect was harmless given overwhelming evidence | Court assumed post-hoc rule later disallowed such seating but found any assumed error harmless beyond a reasonable doubt given overwhelming evidence and lack of prejudice (affirmed) |
| 6. Cumulative error | Combined trial errors deprived Dupree of a fair trial | No significant errors to accumulate; any assumed error harmless | Court held cumulative-error doctrine did not require reversal (affirmed) |
Key Cases Cited
- State v. Gonzales, 289 Kan. 351 (2009) (defective complaint lacking an essential element can be fatally defective)
- State v. Williams, 299 Kan. 509 (2014) (State need not charge aiding and abetting separately in the information)
- State v. Switzer, 244 Kan. 449 (1989) (oral amendment may be allowed but must be memorialized; failure to memorialize does not automatically deprive jurisdiction)
- State v. Davis, 283 Kan. 767 (2007) (analysis whether failure to memorialize amendment requires reversal: appropriateness and prejudice)
- State v. Jackson, 280 Kan. 541 (2005) (res gestae concept governs whether killing is part of the felony for felony-murder analysis)
- State v. Beach, 275 Kan. 603 (2003) (res gestae inquiry for felony-murder)
- State v. Sampson, 297 Kan. 288 (2013) (prohibits permitting testifying law enforcement to sit at prosecution table because of risk of improper bolstering)
- State v. Todd, 299 Kan. 263 (2014) (legislative elimination of lesser-included offenses for felony murder applies retroactively)