Appeal stems from murder, wounding of Washburn football players

TOPEKA — The Kansas Supreme Court clarified the timeframe for formulating premeditation while weighing the appeal of a Shawnee County man sentenced to life in prison plus nearly 500 years for murdering a Washburn University football player and wounding a future NFL player.

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

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

Justice Caleb Stegall wrote the opinion reversing three of Mendez’ convictions for aggravated robbery due to lack of evidence. Otherwise, the Supreme Court affirmed all other convictions.

The justices agreed Mendez received a fair trial despite finding a Shawnee County District Court’s instruction to the jury on aiding and abetting was “legally inappropriate” and that a Shawnee County prosecutor improperly told the jury premeditation could be formed in a single second.

“Though it is prosecutorial error for the state to assert premeditation can be formed in one second, it is not error for the prosecutor to state that premeditation can be formed in five seconds. Five seconds can be enough time for an internal second-thought or hesitation to arise,” the opinion said.

Survivors of the shooting outside a Topeka residence testified Mendez and other occupants of a stolen car drove up to the five Washburn football players engaged in conversation near the street. The players had just left the house party celebrating 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 didn’t have pot and told occupants of the car not to worry about their names.

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

Ballentine was wounded in the pelvic bone while running away, while Ross was fatally shot in the head with a bullet from a revolver. That Colt Trooper .38-caliber weapon, which Mendez had claimed ownership of during a traffic stop prior to the murder, was recovered by police one year after Mendez’ crime spree when a Topeka firearms dealer killed himself by accidentally discharging the gun.

At the scene of the attack on the football players, law enforcement officers collected 18 shell casings from three different semiautomatic guns.

“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. and ask for weed is not provocation to be shot.”

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

The opinion did fault a Shawnee County prosecutor for claiming premeditation could be equated to an idea that existed for no more than one second.

“To have thought the matter over beforehand and then acted on it, that’s what premeditation is,” the prosecutor told jurors. “It can be a second. It could be five seconds. It could be two weeks of premeditation.”

The Supreme Court said Kansas justices had repeatedly warned prosecutors about making comments analogous to stating premeditation could occur in the same instant as the act resulting in a death.

Stegall, appointed by Republican Gov. Sam Brownback in 2014, pulled out the court’s cookie analogy to demonstrate how five seconds — rather than a single second — was enough time to form premeditation in a person’s mind. Premeditation can develop in the time required to observe a cookie, reach for it and hesitate while pondering if the cookie should be eaten before dinner, the opinion said.

“The temporal space required to complete that process may be very short — a mere hesitation, perhaps, as my hand hovers over the cookie and I complete the internal double-check,” the opinion says. “While the temporal space required to complete the internal double-check cannot happen in one second or instantly, it may very well occur within five seconds.”

Two nights after the attack of Washburn football players, five people were hanging out in Topeka’s Central Park. Mendez and several other people approached the group and, without provocation, pulled guns and took wallets from two individuals. One shot was fired through the car window of a woman who refused to surrender her telephone to a person thought to be Mendez.

The Supreme Court agreed with Mendez on appeal there was insufficient evidence property was taken from several victims. That led to reversal of three convictions for aggravated robbery.

Justice Evelyn Wilson, appointed in 2019 by Democratic Gov. Laura Kelly, signed a concurring opinion. She agreed with the majority’s analysis and holdings except to reiterate disagreement with the way the Supreme Court handled jury instruction errors.

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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