357 P.3d 275
Kan.2015Background
- Moore and Warren were tried together; Moore was convicted of premeditated first-degree murder (aiding and abetting), intentional second-degree murder, and attempted premeditated first-degree murder, with a hard 50 life sentence.
- Brandon Ford identified Warren (“Ced”) and later identified Moore as the second killer; Glock and drugs were found at the Missouri house, with cartridges tied to the Glock at the crime scene.
- Charles and Larry were killed in a drug-house shoot-out; Brandon initially gave inconsistent accounts of the events.
- The district court imposed a hard 50 sentence under K.S.A. 21-4635, and concurrent terms for other convictions; the court allowed post-release supervision.
- Moore argues on direct appeal that (a) juror taint denied impartiality, (b) lineup identification suppression was improper, (c) eyewitness instructions and Brady/brady-related issues affected the verdict, (d) chain of custody issues and admission of the Glock were improper, (e) the degree-of-certainty factor in the eyewitness instruction was erroneous, and (f) sentencing under hard 50 was unconstitutional.
- The appellate court affirms Moore’s convictions but vacates the hard 50 sentence and remands for resentencing under Alleyne-based reasoning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Impartial jury due to juror comments | Moore argues CW tainted the pool and taint could not be cured | Court failed to grant mistrial despite taint | No abuse of discretion; mistrial denied; curative measures adequate |
| Suppression of lineup identification preserved? | Suppression issue is preserved and valid | Issue not preserved; no contemporaneous objection | Issue not preserved for review; suppression ruling affirmed |
| Brady violation and disclosure of changed testimony | State failed to disclose Brandon’s changed recollection | No Brady violation; evidence not suppressed; not material | No Brady violation; motions denied on abuse of discretion grounds |
| Chain of custody of Glock | Chain of custody was inadequate; could affect admissibility | Chain of custody established with reasonable certainty | No abuse of discretion; evidence admissible; weight goes to jurors |
| Eyewitness identification instruction (degree of certainty) | 43- certainty factor should bolster reliability | Error to include certainty factor | Instruction error but not clearly erroneous; not reversible error; conviction stands |
Key Cases Cited
- State v. Armstrong, 299 Kan. 405 (2014) (standard abuse-of-discretion review for mistrial denial)
- State v. Cruz, 297 Kan. 1048 (2013) (two-step test for eyewitness identification; mixed questions of law and fact)
- State v. Mitchell, 294 Kan. 469 (2012) (certainty factor in eyewitness instructions invalid; need cautionary instruction)
- State v. Dobbs, 297 Kan. 1225 (2013) (discusses limits on eyewitness identification instruction and safeguards)