Kansas Supreme Court refines premediation definition in Topeka murder appeal • Kansas Reflector

TOPEKA – The Kansas Supreme Court has clarified the time frame for establishing premeditation while weighing the appeal of a Shawnee County man who was sentenced to life in prison plus nearly 500 years for killing a Washburn University football player and a future one NFL player injured.

Judges on the state’s highest court considered Francisco “Frankie” Alejandro Mendez’s nine allegations of trial error after a jury in 2022 found him of first-degree premeditated murder, four counts of attempted first-degree premeditated murder and seven counts of aggravated robbery found guilty.

He was charged for his involvement in a three-day crime spree in 2019 that culminated in the death of WU player Dwane Simmons and the injury of teammate Corey Ballentine. They were shot after attending a party celebrating Ballentine’s selection in the NFL draft.

Judge Caleb Stegall wrote the opinion overturning three of Mendez’s aggravated robbery convictions for lack of evidence. Otherwise, the Supreme Court upheld all other convictions.

The justices agreed that Mendez received a fair trial, although they found the Shawnee County District Court’s instruction to the jury to assist “legally improper” and that a Shawnee County prosecutor had incorrectly told the jury that in a single Second an intentional decision could be made.

“Although it is a prosecutorial error for the state to claim that a premeditated decision can be made in one second, it is not a prosecutorial error for the state to suggest that a premeditated decision can be made in five seconds. Five seconds can be enough for an internal second thought or hesitation to arise,” the statement said.

Survivors of the shooting outside a Topeka home said Mendez and other occupants of a stolen car drove up to the five Washburn football players who were talking near the street. The players had just left the house party to celebrate Ballentine’s draft into the NFL.

People in the vehicle with Mendez asked the players if they had marijuana and to identify themselves. The players said they had no weed and asked the occupants of the car not to worry about their names.

“The car then began to drive away and the football players continued their conversation,” Stegall’s statement said. “Moments later the car screeched to a halt and the men in the car began shooting at the football players.”

Ballentine was injured in the pelvic bone while running away, while Ross was fatally shot in the head with a revolver bullet. The .38-caliber Colt Trooper gun that Mendez claimed to own during a traffic stop before the murder was recovered by police a year after Mendez’s rampage, when a Topeka firearms dealer killed himself by accidentally firing the weapon .

At the scene of the attack on the football players, police officers recovered 18 shell casings from three different semi-automatic weapons.

“The victims did not provoke the shooters,” Stegall wrote. “As the state argues, refusing to tell a car full of strangers your name after they pull up at 1 a.m. asking for weed is not a provocation to get shot.”

Stegall’s opinion said there was sufficient evidence of premeditation because it took Mendez 10 to 15 seconds to drive away, stop the car and begin shooting.

The opinion actually accused a Shawnee County prosecutor of suggesting that premeditation could be equated with an idea that existed for no more than a second.

“To have thought about the matter beforehand and then acted accordingly is premeditation,” the prosecutor told the jury. “It may take a second. It could be five seconds. It could be two weeks of resolution.”

The Supreme Court said Kansas justices have repeatedly warned prosecutors not to make comments that are similar to saying that premeditation can occur at the same moment as the act that results in death.

Stegall, who was appointed by Republican Gov. Sam Brownback in 2014, used the court’s cookie analogy to show that five seconds — rather than a single second — was enough time for intent to form in a person’s mind. In the time it takes to observe a cookie, reach for it, and hesitate while considering whether to eat the cookie before dinner, intent can develop, the opinion says.

“The time required to complete this process may be very short – perhaps just a momentary hesitation while my hand hovers over the cookie and I perform the internal double check,” the statement said. “While the time period required to conduct the internal double check cannot occur in one second or instantaneously, it may well occur within five seconds.”

Two nights after the attack on Washburn football players, five people were hanging out in Topeka’s Central Park. Mendez and several other people approached the group and, without provocation, drew weapons and took wallets from two people. A shot was fired through the car window of a woman who refused to hand over her phone to a person believed to be Mendez.

The Supreme Court agreed with Mendez on appeal, saying there was insufficient evidence that property was stolen from multiple victims. This led to the overturning of three convictions for aggravated robbery.

Judge Evelyn Wilson, appointed by Democratic Gov. Laura Kelly in 2019, signed a concurring opinion. She agreed with the majority’s analysis and positions, but reiterated that she disagreed with the way the Supreme Court handled errors in jury instructions.