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Montrez Washington was convicted of first-degree felony murder and attempted aggravated robbery. Washington appealed, arguing that (1) insufficient evidence was presented at his preliminary hearing, and (2) the Allen-type jury instruction given at his trial was clearly erroneous. The Supreme Court affirmed, holding (1) the evidence presented at Washington's preliminary hearing was sufficient to bind him over for trial, and (2) the Allen-type instruction was not clearly erroneous under the facts of this case where the instruction was included in the jury instructions given before jury deliberations and there was no indication the instruction changed the outcome of the trial.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF KANSAS
STATE OF KANSAS,
MONTREZ D. WASHINGTON,
SYLLABUS BY THE COURT
The district court did not err in finding that the crimes of first-degree felony
murder and attempted aggravated robbery had occurred and that there was probable cause
to believe the defendant had committed those crimes, when evidence was presented at the
preliminary hearing that the defendant had participated in the planning of a robbery, the
defendant armed himself in preparation for the robbery, one of the defendant's
accomplices pointed a gun at the victim, and the victim suffered a fatal gunshot wound in
an ensuing struggle that led the defendant and his accomplices to abandon their efforts to
The "another trial would be a burden on both sides" language in the former version
of PIK Crim. 3d 68.12 is erroneous. But the instruction was not clearly erroneous under
the facts of this case where the instruction was included in the jury instructions given
before jury deliberations and there was no indication the instruction changed the outcome
Appeal from Sedgwick District Court; JAMES L. BURGESS and WARREN M. WILBERT, judges.
Opinion filed January 20, 2012. Affirmed.
Carl F.A. Maughan, of Maughan & Maughan, LC, of Wichita, argued the cause, and Bryan C.
Hitchcock, of the same firm, was with him on the brief for appellant.
Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Montrez D. Washington was charged with first-degree felony
murder under K.S.A. 21-3401(b) and attempted aggravated robbery under K.S.A. 213301 and K.S.A. 21-3427. After a jury convicted Washington on both counts, he directly
appeals. He contends that (1) insufficient evidence was presented at his preliminary
hearing and (2) the Allen-type jury instruction given at his trial was clearly erroneous. We
reject his arguments and affirm, finding that the evidence was sufficient and the
instruction, even if erroneous, did not affect the jury's verdict.
The charges stemmed from the January 3, 2007, killing of Donyel Bagsby during
an attempted aggravated robbery. At that time, Washington was 17 years old. After filing
charges, the State filed a joint motion for adult prosecution and preliminary examination.
The motion was presented to the district court at an evidentiary hearing. Based on the
evidence, the district court found Washington should be prosecuted as an adult. The court
then granted the State's motion to consider the evidence for purposes of a preliminary
examination as provided for in K.S.A. 22-2902(3). The court found probable cause to
believe Washington committed the charged offenses and bound Washington over for
arraignment in adult criminal court.
The case proceeded to a trial, which ended in a mistrial. At the second trial, the
jury found Washington guilty on both counts. The district court sentenced Washington to
life imprisonment without the possibility of parole for 20 years for the felony-murder
conviction, to be served concurrently with a term of 32 months' imprisonment for the
attempted aggravated robbery conviction.
Washington directly appeals his convictions. This court has jurisdiction under
Additional facts are provided below where necessary.
ISSUE 1: Was the evidence presented at Washington's preliminary hearing sufficient to
bind him over for trial?
Washington first contends the evidence presented at the hearing on the State's
motion for adult prosecution and preliminary examination was insufficient to support a
finding of probable cause that attempted aggravated robbery and felony murder were
committed and that Washington committed those felonies.
Under K.S.A. 22-2902(3), the magistrate at a preliminary hearing examines the
evidence to determine (1) whether a crime has been committed and (2) whether there is
probable cause to believe that the accused committed the crime. State v. Valladarez, 288
Kan. 671, 677, 206 P.3d 879 (2009). The evidence need not prove guilt beyond a
reasonable doubt, only probable cause. State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367
(1983). "Probable cause at a preliminary examination signifies evidence sufficient to
cause a person of ordinary prudence and caution to conscientiously entertain a reasonable
belief of the accused's guilt." State v. Berg, 270 Kan. 237, 238, 13 P.3d 914 (2000) (citing
State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 ). In determining if this
standard is satisfied, the judge at a preliminary hearing must draw inferences favorable to
the prosecution from the evidence presented and should not be concerned with
sufficiency of the evidence to support a conviction. State v. Bockert, 257 Kan. 488, 492,
893 P.2d 832 (1995); Sherry, 233 Kan. at 935. Even where the evidence is weak, the
defendant should be bound over for trial if the evidence tends to disclose that the offense
charged was committed and that the defendant committed it. Berg, 270 Kan. at 238.
The sufficiency of a preliminary examination may be challenged only by a motion
to dismiss filed in the district court. "Failure to challenge in this manner amounts to
waiver." State v. Butler, 257 Kan. 1043, 1059-60, 897 P.2d 1007 (1995). Washington
appropriately filed a motion to dismiss before the district court, arguing the evidence was
insufficient to establish probable cause that he committed attempted aggravated robbery
and, therefore, that he committed a felony murder. The district court denied Washington's
motion. On appeal from that ruling, an appellate court reviews the district court's
probable cause finding at a preliminary hearing de novo. See State v. Fredrick, 292 Kan.
169, 171, 251 P.3d 48 (2011).
On appeal, Washington contends a de novo review will establish that the evidence
presented at the preliminary hearing failed to prove (1) the "taking" element of the crime,
(2) the element of force or threat of bodily harm, and (3) that Washington had the intent
to commit the crime. While Washington acknowledges that he was charged with
attempted aggravated robbery, he maintains that rather than establish a failure to
complete a robbery, the evidence presented at the preliminary hearing "established that a
robbery did not occur." Washington then contends that because the evidence failed to
establish probable cause for attempted aggravated robbery, the evidence necessarily
failed to establish probable cause for felony murder.
In response, the State argues a de novo review of the evidence presented at the
hearing establishes the crimes of attempted aggravated robbery and felony murder
occurred and probable cause that Washington, acting as an aider and abettor, committed
the crimes. We agree with the State.
To begin our analysis of Washington's arguments, it is helpful to examine the
elements of the charged crimes. Aggravated robbery is defined in K.S.A. 21-3427 as a
robbery "committed by a person who is armed with a dangerous weapon or who inflicts
bodily harm upon any person in the course of such robbery." A robbery is defined in
K.S.A. 21-3426 as "the taking of property from the person or presence of another by
force or by threat of bodily harm to any person." Because Washington was charged with
attempted aggravated robbery, it is not necessary that the robbery be completed. "An
attempt is any overt act toward the perpetration of a crime done by a person who intends
to commit such crime but fails in the perpetration thereof or is prevented or intercepted in
executing such crime." K.S.A. 21-3301(a).
The other charge against Washington is felony murder. Felony murder is the
killing of a human being in the commission of, attempt to commit, or flight from an
inherently dangerous felony. K.S.A. 21-3401(b). Aggravated robbery is an inherently
dangerous felony. K.S.A. 21-3436(a)(4).
To establish probable cause that these crimes had been committed, the State
presented the testimony of one of Washington's accomplices, Samuel Toliver III, who
testified pursuant to a plea arrangement. Toliver testified that on the afternoon of the
killing, he, Washington, Ed-Rick Edwards, and Demario Cooks were riding around in
Edwards' car when Edwards suggested "doing a lick," i.e., a robbery. At some point, they
decided that the target of the robbery would be Bagsby because he sold marijuana.
Washington knew where Bagsby lived and provided directions. The four men developed
a plan where Toliver would knock on Bagsby's door and then the others would rush in
once Bagsby opened it.
When the group arrived at Bagsby's home, Toliver was not armed, but Edwards,
Washington, and Cooks were. Earlier, once the group had decided to commit a robbery,
they stopped by an apartment and picked up guns for Washington and Cooks; Edwards
already had a gun.
Once the group arrived at the Bagsby home, Toliver knocked on the door.
Bagsby's wife answered, and Toliver asked if they sold "weed." Bagsby then approached
the door, and Toliver asked him if he had a "QP," meaning a quarter pound of marijuana.
At this point Edwards entered the house. Edwards and Bagsby scuffled, and Bagsby was
fatally shot. Bagsby slammed shut the front door during the struggle, leaving Toliver in
the house. Toliver testified that Washington and Cooks were standing to the side of the
door when Toliver entered the house.
Bagsby's wife, Kamilah Bagsby, also testified at the preliminary hearing. Kamilah
testified to seeing only two individuals inside her house during the incident. She also
testified that she heard additional shots fired outside at the house after Bagsby closed the
A police officer who reported to the scene observed 10 to 12 males walking
together; Washington was among this group. The officer testified that he found two
handguns in the vicinity where he located Washington.
These facts are very similar to those in State v. Calvin, 279 Kan. 193, 194, 105
P.3d 710 (2005), where the defendant raised the same arguments as does Washington. In
Calvin, John Calvin was convicted of felony murder and attempted robbery. An
accomplice in the crime, Benjamin Russell, testified at Calvin's trial. He told the jury that
on the night of the incident, he drove Calvin and another accomplice, Melvin Lee White,
to the victim's house. On the drive, Calvin and White discussed White's plan to rob
someone. Calvin agreed to try to sell CDs to the victim in an effort to gain entry to the
victim's house. Russell then watched White hide by the side of the house while Calvin
went inside; when the victim walked out the door with Calvin shortly thereafter, White
and the victim began to wrestle, and White shot the victim. In statements to police,
Calvin implicated Russell as the shooter, stating that Russell pointed a gun at the victim
when the victim tried to get through the door.
On appeal, Calvin argued that insufficient evidence supported his conviction of
felony murder based upon the underlying crime of robbery because no evidence
established that an actual robbery took place. He contended that a mere discussion of a
robbery was insufficient to establish the felony. The court stated that under the facts of
the case, Calvin was correct in arguing that insufficient facts were presented that a
robbery took place, as no evidence was presented that any one of the perpetrators took
any property from the victim. The court stated that felony murder can be supported,
however, if the killing was committed during "'an attempt to commit'" a robbery and that
a robbery need not be completed to support the attempt for purposes of K.S.A. 213401(b). Calvin, 279 Kan. at 200.
In explaining what must be established for an attempt crime, the court stated:
"An overt act cannot be defined by applying a set of definitive rules; rather, each
case must be decided based on the unique facts presented and the inference which might
reasonably be drawn from those facts. State v. Salcido-Corral, 262 Kan. 392, 398, 940
P.2d 11 (1997). 'In order to prove the defendant attempted an underlying felony (and
thereby committed felony murder), the State must show that the defendant took a step
beyond mere preparation so that some appreciable fragment of the underlying crime was
committed.' 262 Kan. at 398." Calvin, 279 Kan. at 199-200.
The court considered whether "the noncriminal act by the defendant of selling
CDs to the [victim] was a sufficient overt act toward the perpetration of a robbery."
Calvin, 279 Kan. at 200. With regard to the "taking" element of robbery, the court
determined the evidence established the intent of the defendant to get the door open so
that one of the codefendants could rob the victim but the defendant's efforts to aid and
abet the robbery were prevented when, according to the evidence, Russell pointed a gun
at the victim, struggled with him, and the victim was shot. As for the element of threat of
bodily harm, the court likewise pointed to the defendant's statement that Russell pointed
the gun at the victim while trying to force his way inside the home. And with regard to
intent, the court stated that the inference that Russell was intending to rob the victim was
reasonable based upon the evidence of White's and the defendant's plan to commit the
robbery in this manner with the use of the gun. The court found this evidence sufficient to
establish that the killing happened during the attempt to commit the underlying felony of
robbery. Calvin, 279 Kan. at 200-01.
Comparable to Calvin, the inference that Washington and the others intended to
rob Bagsby is reasonable based on the evidence of their plan. Contrary to Washington's
argument, Washington was more than a bystander during the planning and the crime; he
was a participant. Evidence of Washington's participation in the planning process
included Toliver's testimony that the group went to an apartment to get firearms for
Washington and Cooks, Washington armed himself, and Washington was the one who
knew where Bagsby lived and provided directions. Then, once on site, Washington
placed himself near the door as planned so he could join in the home invasion.
Additionally, Toliver's testimony provided evidence that the group performed
overt acts in furtherance of the plan: Toliver and the others proceeded to Bagsby's door,
Toliver knocked on the door and initiated the ruse of the drug buy, and Edwards entered
the house. Likewise, the element of threat of bodily harm was established by Toliver's
testimony that Edwards, Washington, and Cooks were armed and that Edwards pointed
the gun at Bagsby. It was Edwards' act of entering the house while armed and killing
Bagsby that prevented the completion of the robbery. As evidence comparable to this was
sufficient in Calvin to support Calvin's convictions, the evidence presented at
Washington's preliminary hearing was certainly sufficient for the district court to find
probable cause that an attempted aggravated robbery had been committed and that
Washington, as an aider and abettor, committed the crime.
Washington also argues the evidence was insufficient to bind him over for trial on
the felony-murder charge because there was no evidence that he killed Bagsby. This
argument has no merit. The State, in proving felony murder,
"must prove only that the defendant committed a felony inherently dangerous to human
life, which directly resulted in the homicide. [Citation omitted.] Accordingly, a defendant
may be convicted of felony murder even if the victim was not killed by the defendant or
an agent of the defendant, as long as the homicide occurred as a direct result of an
inherently dangerous felony. [Citation omitted.]" State v. Ransom, 288 Kan. 697, 713-14,
207 P.3d 208 (2009).
The State presented evidence to establish probable cause that Bagsby died as a result of
the attempted aggravated robbery in which Washington participated.
In summary, our de novo review confirms the magistrate's ruling that the evidence
was sufficient to establish that the crimes of attempted aggravated robbery and felony
murder had been committed and there was probable cause to believe that Washington
committed these crimes.
Because we reach this holding, we need not address the issue of harmlessness. See
State v. Horton, 283 Kan. 44, 56, 151 P.3d 9 (2007) (any error at a preliminary hearing is
harmless if a jury found the defendant guilty beyond a reasonable doubt, unless the error
caused prejudice at trial).
ISSUE 2: Was the Allen-type instruction the district court gave to the jury prior to
deliberation clearly erroneous?
Washington also challenges the deadlocked jury instruction given in the present
case at the close of the trial along with the other instructions. The jury instruction
provided by the district court is based on, although not identical to, PIK Crim. 3d 68.12,
which is commonly referred to as an Allen or Allen-type instruction, after Allen v. United
States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). As given in this case, the
"Like all cases, this is an important case. If you fail to reach a decision on some
or all of the charges, that charge or charges are left undecided for the time being. It is
then up to the State to decide whether to resubmit the undecided charge(s) to a different
jury at a later time. Another trial would be a burden on both side [sic].
"This does not mean that those favoring any particular position should surrender
their honest convictions as to the weight or effect of any evidence solely because of the
opinion of the other jurors or because of the importance of arriving at a decision.
"This does mean that you should give respectful consideration to each other's
views and talk over any differences of opinion in a spirit of fairness and candor. If at all
possible, you should resolve any differences and come to a common conclusion so that
this case may be completed.
"You may be as leisurely in your deliberations as the occasion may require and
take all the time you feel necessary."
Washington admits that he did not object to the giving of this instruction, making
any error reversible only if the instruction was clearly erroneous. An instruction is clearly
erroneous only if the reviewing court reaches a firm conviction that absent the alleged
error there was a real possibility the jury would have returned a different verdict. See
State v. Brown, 291 Kan. 646, 659, 244 P.3d 267 (2011).
Historically this court has allowed an Allen-type instruction when given before
jury deliberations began, which is when the instruction was given in this case. See State
v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006); State v. Makthepharak, 276 Kan. 563,
569, 78 P.3d 412 (2003). And at the time of Washington's trial there was no authority
indicating the instruction should not be given.
Subsequent to Washington's 2008 trial, however, we found that an instruction
containing similar language was erroneous. See, e.g., State v. Salts, 288 Kan. 263, 266,
200 P.3d 464 (2009) (finding it was error to instruct that "[a]nother trial would be a
burden to both sides"). Salts, like Washington, had not objected to the instruction.
Consequently, we applied the clearly erroneous standard of review. We concluded that
the Salts jury was not likely to have reached a different verdict because of the instruction.
Salts, 288 Kan. at 267. We have reached the same conclusion in several subsequent cases.
See, e.g., State v. Duong, 292 Kan. 824, 838-39, 257 P.3d 309 (2011); Brown, 291 Kan.
at 659-60; State v. Colston, 290 Kan. 952, 977-78, 235 P.3d 1234 (2010); State v.
Ellmaker, 289 Kan. 1132, 1146-47, 221 P.3d 1105 (2009), cert denied 130 S. Ct. 3410
In each of those cases, the defendant attacked specific language in the instruction.
Washington does not make a similar argument. Instead, he asserts only a general
argument that an Allen-type jury instruction places an undue burden on the jury to come
to an agreement. Washington argues that the distinction made in past cases between
situations in which the instruction is given before deliberations and those in which it is
given after deliberations have begun "simply does not make sense" because the jury takes
copies of the instructions back to the jury room and presumably looks to the instructions
when a dispute arises.
This argument echoes our statement in State v. Nguyen, 285 Kan. 418, 436, 172
P.3d 1165 (2007), that "[o]ne might debate whether, upon reaching an impasse, a jury is
coerced by hearing an Allen instruction from the judge, but not coerced by being referred
back to the original instructions to read the Allen instruction on its own. Nevertheless,
this court has made that distinction." Despite this observation and the fact that Nguyen
had objected to the instruction, we concluded there was no error. Nguyen, 295 Kan. at
436. Here, Washington would have the additional burden of meeting the clearly
erroneous standard because, unlike Nguyen, Washington did not object to the instruction.
Hence, Washington would have to establish that there was a real possibility the jury
would have returned a different verdict. Because Washington cannot meet this ultimate
burden, no purpose would be served by a discussion of whether we should alter our
holding in Nguyen and similar cases, especially in light of the fact that we will consider
the instruction to be erroneous under our holding in Salts.
In attempting to convince us the giving of the instruction impacted the jury
verdict, Washington argues that because the jury in his first trial was hung and a mistrial
was declared, the instruction was clearly erroneous in the present case. This court,
however, recently rejected a similar argument, finding no sign in the record on appeal
that the defendant's second jury was aware that the first jury had hung. Duong, 292 Kan
at 839. Washington has pointed to no evidence of his second jury's awareness of the first
trial. In fact, we find nothing in the record of this case, including proceedings conducted
outside the presence of the jury, establishing that the jury in the first trial was unable to
reach a verdict. All the record tells us is that the first trial ended in a mistrial, and that fact
is discerned from passing references made in pretrial hearings. Our independent review
of the record reveals no mention of the first trial in proceedings before the second jury.
Further, the evidence against Washington at trial was strong, including the testimony of
Toliver and Cooks, Washington's accomplices.
We are not convinced there is a real possibility that the verdict would have been
different without the erroneous Allen-type instruction. Washington's argument fails.