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Opinion by
Hoi/r, C.:
In the petition in error the overruling of the motion for a new trial is not assigned as an error, but there is no point made upon this plainly and squarely in the briefs of plaintiffs. If the attention of defendants had been called to it, that defect might have been cured in this court; in the manner it is presented in the briefs we shall disregard it. The defendants claim that there was error in giving and refusing instructions, and that the verdict is contrary to the evidence. There is really but little conflict in the evidence brought before us. Taking even the uncontradicted testimony, we believe the judgment is correct, and without following specifically the objections of defendant, we will give our reasons for affirming it. From the testimony of Mrs. Plant it appears that her attention was first called to Kellam as a probable purchaser by the plaintiffs. To be sure, they entered into no negotiations with him for a sale, and it was sold for a less price than that given the agents. It was also sold by her without any aid from the plaintiffs except that her attention was directed to Kellam by them. This view of the case is as favorable to the defendants as the testimony will justify, and yet under the circumstances the plain tiffs were entitled to their commission. They introduced the purchaser to the seller, and by that means the sale was made.
In Lloyd v. Matthews, 51 N. Y. 124, in a case similar to this one, the court says :
“It is sufficient to entitle a broker to compensation that the sale-is effected through his agency as its procuring cause; and if his communications with the purchaser were the cause or means of bringing him and the owner together, and the sale resulted in consequence thereof, the broker is entitled to recover.”
In Arrington v. Cary, 5 Baxt. (Tenn.) 609, it is said:
“When a broker or agent is employed to sell real estate, and produces a person who ultimately becomes a purchaser, he is entitled to his commissions, although the trade may be effected by the owner of the property.”
Also, from Carter v. Webster, 79 Ill. 435, we quote a part of the opinion, which explains itself:
“Plaintiff engaged Bruner to secure a purchaser for defendant’s land, and, according to the custom that prevails, Bruner induced Gun, another real-estate agent, to interest himself to find a buyer' for the land. Gun did mention the fact that this property was for sale to Mr. Mears, and through the information thus obtained Mr. Mears sr. went directly to defendant and bought the property of him. The effect of what plaintiff did was to present to defendant a person who made an offer for the property that he was willing to and did accept. This was all plaintiff undertook to do, . . . or all he had to do to earn his commissions.”
In Royster v. Mageveney, 9 Lea (Tenn.), 148, it is said:
“If a broker is employed to sell property, and he first brings the property to the notice of the purchaser, and upon such notice the sale is effected by the owner, the broker is entitled to commissions.”
The court in Tyler v. Rarr, 52 Mo. 249, speaking by Judge Wagner, said :
“ The law is well established that, in a suit by a real-estate agent for the amount of his commission, it is immaterial that the owner sold the property and concluded the bargain. If after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisement and exertions, he will be entitled to his commissions.”
See also Sussdorff v. Schmidt, 55 N. Y. 319; Lincoln v. McClatchie, 36 Conn. 136; Shepherd v. Hedden, 29 N. J. L. 334; Winans v. Jaques, 10 Daly, 487; Goffe v. Gibson, 18 Mo. App. 1; Anderson v. Cox, 16 Neb. 10; Bell v. Kaiser, 50 Mo. 150; Williams v. Leslie, 111 Ind. 70; Doonan v. Ives, 73 Ga. 295; Dolan v. Scanlan, 57 Cal. 261; Armstrong v. Wann, 29 Minn. 126; Fitch, Real-Estate Agency, 119, 120.
The claim of the plaintiffs for commission is not affected because the defendants saw fit to sell the same land for a price less than they gave it to plaintiffs to sell. In this connection Mrs. Plant testified: “I thought if I could make the sale myself I could sell it cheaper and would not have to pay commission.” The defendants will not be allowed to take advantage of their introduction to the purchaser by plaintiffs, and reap the benefits of the sale made to him in consequence, and then escape all liability of paying them their commission because they sold the land for a sum less than the price given their agents, where the reduction was made of their own accord. (Stewart v. Mather, 32 Wis. 344; Kock v. Emmerling, 22 How. 69; Woods v. Stephens, 46 Mo. 555; Reynolds v. Tompkins, 23 W. Va. 229; Lincoln v. McClatchie, supra; Wharton’s Agency and Agents, § 329.)
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
This was an action brought by Strait in the district court of Wyandotte county, to enjoin the collection of a special assessment levied to pay for the grading of a street. On February 23,1889, the district court denied the plaintiff’s application for a preliminary injunction; and to review this order plaintiff brings his petition in error. This case being identical with that of Wahlgren v. Kansas City, just decided, and for the reasons given in that opinion, the judgment of the court below must be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this case in the court below, the burden of the issues, under the pleadings, was upon the defendants. The plaintiff objected to the introduction of any testimony to sustain the answers, and this objection having been sustained, judgment was rendered for $1,009.92, the balance claimed to be due to the plaintiff upon the notes of D. Wygal & Son, and for a foreclosure of the mortgage of Sylvester Wygal and wife on lot 2, in block 30, in Paola, to pay the judgment and costs. All the answers must be treated as if filed before the trial, as the court below so treated and considered them. The principal question in the case is, can the defendants, under the allegations of the answers, recover damages justly proportioned to the injuries alleged by them, or can relief only be granted to them upon payment or tender of payment of the mortgage debt? If it appeared from the pleadings that the plaintiff still held in his possession or under his control the personal property described in the chattel mortgage, then perhaps payment of the debt or tender of payment by defendants ought to precede any claim for damages or any return of the property. But as it is alleged that the personal property was unlawfully, fraudulently and unfairly converted to the use of the plaintiff, and that he has disposed of large portions of the same, the defendants cannot redeem on account of the conduct of the plaintiff. The chattels cannot be returned, as the plaintiff has disposed of large portions thereof, and the defendants, the mortgagors, are entitled, if the allegations of the'ir answers are true, for judgment against the plaintiff, the mortgagee, for the excess of the value of the personal property over the amount of the notes and interest. (Leach v. Kimball, 34 N. H. 568; Hungate v. Reynolds, 72 Ill. 425.)
Some of the courts hold that relief can be granted only to a mortgagor upon payment or tender of payment of the whole mortgage debt, and then, although the mortgagee has disposed of the property, a court of equity will give relief by decreeing damages. But in this state the dlstinction between courts of equity and courts of law has been abolished, and it was useless and unnecessary to tender any payment of the mortgage debt, if the plaintiff has unlawfully, fraudulently and unfairly converted to his own use the personal property of the defendants of a much greater value than the debt, and subsequently to such conversion has disposed of large portions of the property, so as to be disabled from returning the same, or of allowing any redemption thereof..
In Case v. Boughton, 11 Wend. 106, the court say, that the property being of sufficient value to satisfy the debt, no further act besides taking possession was necessary to constitute payment. In this case, if the property taken by the plaintiff was of sufficient value to satisfy his debt, and if it has been unlawfully, fraudulently and unfairly purchased by him, no judgment ought to be rendered for any balance claimed upon the notes. The personal property was placed in the mortgagee’s hands for the purpose of being appropriated for the satisfaction of the notes, and the mortgagors had the right to have it faithfully and fairly applied' for that purpose. If it was not so appropriated, the mortgagee is liable.
In this state, we think that.the mortgagee of the chattel may purchase at a sale under the mortgage, but the relation which the mortgagee holds to the debtor imposes on him the observance of fairness and good’faith. If he abuses the power which he holds and becomes the purchaser unfairly and dishonestly, he will be required to account to the mortgagor therefor. (Herman, Chat. Mort., § 219; Jones v. Franks, 33 Kas. 497.)
“If the mortgagee carries out in. good faith the terms of the agreement, and makes the. very disposition which he has contracted to make, and has 'broken no contract, he has been guilty of no bad faith to the mortgagor, and ought to be chargeable with only the actual proceeds of the property thus disposed of by him.” (Denny v. Van Dusen, 27 Kas. 437.)
The unfair or fraudulent sale of mortgaged property by a mortgagee should not and will not defeat or extinguish the rights of the mortgagor. The mortgagee has no right by any unfairness to sacrifice the property and deprive the mortgagor of the surplus over the debt which by a fair and honestly conducted sale might arise. If the property consists of many different articles which can be easily offered for sale separately, or in lots or parcels, a sale of the whole in a lump, or in two lumps, in some cases might be regarded as an unfair mode of sale, especially if it were shown that the property brought much less at the sale than its actual value. (Jones, Chat. Mort., 3d ed., § 797; Hungate v. Reynolds, 72 Ill. 425.) We cannot say, as a matter of law, upon the allegations in the answers, that the property was wrongfully and unfairly disposed of; nor can we say that the property was sold fairly and in good faith according to the terms of the mortgage. These are matters for a jury under proper instructions from the trial court. The defendants were entitled to have a fair and bona fide sale. The trial court should have permitted the testimony to go to the jury to determine whether this was done or not. Upon the issues in the case, it was important to determine whether the sale was made by the mortgagee in a manner calculated to produce the best price for all the articles sold. As all the testimony offered in support of the answers was rejected, no opportunity was permitted the defendants to show that the sale was unlawful, fraudulent, or unfair. In this the court committed error.
We are referred to Hamlyn v. Boulter, 15 Kas. 376, that the defendants’ answers were insufficient because they did not allege the payment of the debt or the tender thereof. In that case it does not appear that the defendant unlawfully, fraudulently, or unfairly disposed of the mortgaged property. It does appear, however, from the opinion, that Hamlyn was surety for Boulter; that he held a chattel mortgage upon property as security, and all the court decided in that case was, that no action could be maintained by Boulter against him for the conversion of the mortgaged property until he had been fully repaid, or indemnified for his liability as surety. This, and nothing more. .
In accordance with the usual practice of this court, the petition in error is allowed to .be amended as requested in the motion on file.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring: | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action brought in the district court of McPherson county by William Bayes, against the Atchison, Topeka & Santa Fé Eailroad Company, to recover damages as follows: In the first count of the plaintiff’s petition he alleged that on or about September 23, 1886, the defendant, in the operation of its railroad, and negligently, caused a fire which destroyed six tons of his hay, worth $24, and 200 rods of his hedge, worth $200. In the second count of his petition he alleged that on October 16, 1886, the defendant, in the operation of its railroad, and negligently, caused a fire which consumed eight tons of his straw, worth $32. The prayer of the petition was for $256 damages, $50 attorney-fees, and costs. The railroad company answered by filing a general denial. At the September term, 1887, a trial was had before the court and a jury, and the jury returned the following general verdict, to wit:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess his damages at $230.”
No special findings were made. The defendant filed a motion for a new trial upon various grounds, including irregularity and misconduct on the part of the jury, and especially on the part of the juror J. B. Hutchinson. The alleged misconduct of Hutchinson is specifically set forth in the motion. Upon the hearing of the motion two of the jurors, M. A. Ebaugh and W. J. Iliff, were examined as witnesses. Ebaugh testified among other things, that during the deliberations of the jury Hutchinson stated to the other members of the jury that some of his (Hutchinson’s) hedge had been burned in the same manner as the plaintiff’s hedge, by the same company, and that the company had paid him $1.50 a rod as his damages for it; that this statement of Hutchinson was used as an argument to the jury; and that at the time it was made they were nearly through, but had not yet formulated their verdict. Iliff testified that during the deliberations of the jury Hutchinson stated that a quantity of his hedge had been burned; that it was like and about the same amount as the hedge of the plaintiff’s which had been burned; and that the railroad company paid him (Hutchinson) $1.50 a rod therefor. Iliff further testified that the jury had, at the time this statement of Hutchinson was made, pretty generally agreed upon their verdict, excepting one of the jurors. The court below overruled the motion for a new trial, and rendered judgment in favor of the plaintiff and against the defendant for $230 damages and $50 as attorney-fees, and costs of suit; and to reverse this judgment the defendant, as plaintiff in error, brings the case to this court.
We think the motion for a new trial ought to have been granted, because of the statement made by the juror Hutchinson in the jury-room during the deliberations of the jury. Except for that statement the verdict of the jury might not have been rendered for the amount for which it was rendered. When the statement was made, the jury had not fully agreed upon their verdict. One, at least, and possibly more, of the jurors had not yet agreed to the verdict, and this statement was made as an argument to convince the jurors that the amount finally agreed upon was not too much. What the amount allowed by the jury for the hedge, or for the hay, or for the straw, was, we cannot tell. The amount allowed by the general verdict may have been principally for the hedge. The evidence with respect to the damage done to the hedge was very conflicting. One witness put the loss down as low as about $20, while others put it as high as $200; and what was allowed we do not know. The amount paid by the railroad company to Hutchinson as his damages was also greater per rod and for the entire hedge than the evidence of the witnesses showed the damages to the plaintiff's hedge to be.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Two classes obligations or bonds are involved in this proceeding: one class is termed “re-funding bonds,” and the other “court-house bonds.” Both of these were issued and negotiated before the territory which is sought to be subjected to taxation for the payment of the bonds was detached from Hodgeman county and made a part of Garfield county. The re-funding bonds were issued by the board of county commissioners of Hodgeman county in pursuance of chapter 50 of the Laws of 1879, without a vote of the people, and their validity as a charge against Hodgeman county is unchallenged. The court-house bonds were executed and issued in pursuance of a vote of the electors, but their validity is questioned in this proceeding. The re-funding bonds, amounting to $32,000, were issued at different times for the purpose of canceling and satisfying county warrants that had been issued in the manner authorized by law; but neither the bonds nor the county warrants re-funded had ever been authorized or issued in pursuance of a vote of the electors, and this fact relieves the detached territory from liability for their payment. The territory detached from Hodgeman county is not subject to taxation for the payment of any indebtedness existing against that county, except as it is made so by chapter 142 of the Laws of 1873. That act expressly limits the liability to bonds that have been “legally authorized and issued by a vote of the electors of such county,” previous to the change of boundary-lines ; and hence the re-funding bonds in question are not a charge against the territory detached, and no tax can be levied thereon to pay the same. (The State, ex rel., v. Comm’rs of Kiowa Co., 41 Kas. 630; same case, 21 Pac. Rep. 601.)
It is contended by the defendant that no tax should be extended against the detached territory for the payment of the court-house bonds, for the reason that they were not legally authorized and issued by the vote which was taken. These bonds were issued in accordance with the provisions of chapter 52 of the Compiled Laws of 1885, being “An act to authorize the board of county commissioners and the authorities of cities to issue bonds for purposes of internal improvement,” which took effect March 10,1866. The claim is that this act has been repealed, at least so far as it authorizes the issuance of bonds for the purpose of erecting court houses, by the act of 1868, relating to counties and county officers, being §§ 16 to 20, inclusive, chapter 25, General Statutes. The law of 1866 is not expressly repealed by that of 1868, and repeals by implication are not favored. The earlier law appears to embrace many provisions not included in the later one, and it would hardly seem that the one was intended as a substitute for the other. We need not, and will not, now determine, however, this question, for the reason that the levies of 1887 and 1888 certified by the authorities of Hodgeman county are illegal and cannot be extended against the detached territory for the payment of the bonds, even if they are valid. Two levies were made and certified to the county clerk of Garfield county — that of 1887 was a levy of three mills on the dollar, in gross, to provide a sinking fund to pay the interest on the re-funding and court-house bonds, and to provide a sinking fund for the payment of the bonds at their maturity. For 1888, a levy of two mills on the dollar was made and certified to the county clerk of Garfield county for the payment of the interest and to provide a sinking fund for the final payment of $42,000 indebtedness, which includes both the re-funding and courthouse bonds. Each levy was made in part for the payment of indebtedness for which the detached territory was in no way liable, and the authorities of Garfield county were not warranted in extending the same as a tax on said territory. Neither were they required to separate the legal from the illegal; nor have they the record of the indebtedness showing the date of the bonds, the amount thereof, the rate of interest, and when the same become due, from which to determine the levy necessary to be made to meet the accruing interest and provide a sinking fund for their final redemption. This record is in the old county, and the statute requires the officers of that county to certify the per centum of tax which is to be levied to pay the bonds for which the detached territory is liable. (Laws'of 1873, ch. 142.) More than that, it would seem that there should be separate and distinct levies for each class of bonds. The law under which each is issued provides that levies shall be made in each case, and that the tax derived from such levies shall not be diverted or applied to any other purpose. To properly observe these requirements it would seem to be necessary that a separate levy for each purpose and for each fund should be made, and thus avoid a confusion and mis-application of funds. The authorities of Garfield county ought not to be compelled by mandamus to act or be subjected to the payment of the costs of a judicial proceeding until the authorities of Hodgeman county have performed the duty imposed by law on them. Until the county clerk of Hodgeman county certifies the levy necessary to be made to meet the liability of the detached territory for the court-house bonds as the law requires, no duty rests on the authorities of Garfield county to take any steps toward extending the tax over such territory.
The peremptory writ must be denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to partition mineral interests under a quarter section of land. Judgment was for plaintiff. Defendant appeals.
The petition alleged the residence of plaintiff and that defendant was a corporation authorized to do business in Kansas. The petition then alleged that plaintiff and defendant, as tenants in' common, were the joint owners in equal shares of all the oil; gas and other minerals under the quarter section of land in question; that plaintiff and defendant were constructively in possession of this oil and gas; that no exploration had been had and that no reason existed why this oil and gas should not be partitioned and that plaintiff was desirous of having it partitioned.
The prayer was for commissioners to be appointed to partition the minerals in severalty or if that could not be done without manifest injury, then that the mineral rights be sold.
The answer of the defendant set up a copy of the mineral deed by which it acquired a one-half interest in the oil and ga's in question from plaintiff’s predecessor in title as well as certain contractual rights. The answer further alleged that defendant was the owner of an oil and gas lease on the land in question executed by people who owned the fee simple title to the real estate except- a- half interest in the oil and gas owned by defendant, and that all the rentals had been paid so the lease was a valid and subsisting one.
In his reply plaintiff, admitted all these allegations but denied that the execution, delivery and validity of the lease constituted a defense.
Plaintiff filed a motion for judgment on the pleadings. "
When this motion came on to be heard the parties stipulated that the court might consider as a matter of fact in. passing upon plaintiff’s motion that the land was located in the Hugoton gas field and was, therefore, in a proven field and that plaintiff and defendant were the joint tenants in common in equal shares of all the oil and gas and other minerals under the real estate, and that the defendant was the owner of all the property and rights conveyed to it in the mineral deed to which reference has been made. ..
The trial court sustained the motion of plaintiff for .judgment on the pleadings. Judgment was that the property described in the petition should be partitioned; that the plaintiff and defendant were the owners in equal shares of the oil,, gas and other minerals und§r the real estate in question. Commissioners were appointed to partition it and the usual order as to sale was made.
The question is whether the plaintiff being the owner of an undivided one-half interest in the oil and other minerals'underneath the rea! estate subject to the lease in the hands of the defendant is entitledTo have the minerals partitioned as against the owner of the other undivided one-half interest, and of an oil and gas lease on all of the real estate.
The deed which conveyed an undivided one-half interest in the minerals to the defendant gave it power to make mineral leases covering all the minerals under all the land in question and tl^ exclusive right to install, maintain and operate pickup stations as well as other rights.
' Appellant points out that none of these powers or rights is incident to the ownership of one-half of the minerals in place but, on the contrary, exceed the rights of a mere tenant in common of only one-half of the minerals in place, and furthermore that it had the right to develop the whole quarter as one unit.
We dealt with this question in the case of Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844. In that case there were some questions that had to do with the conveyances by which the tenants in common of the mineral interests received their interests. The outcome of the case in the main, however, turned upon whether the owner of an undivided interest in the minerals in place had a right to compel partition among the tenants in common of the mineral rights. We there made an exhaustive examination of the authorities.
We noted G. S. 1935, 60-2114. That section provides as follows:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
We pointed out that under that section the question of partition should be examined as to whether or not the judgment asked was an equitable one.
Our conclusion in that case may best be stated by reference to two paragraphs of the syllabus. We held there:
“As a general rule, a tenant in common of a fee-simple estate in real property is entitled to partition as a matter of right. Such right, however, is subject to the full power of the court to 'malce a just and equitable partition between the parties and to secure their respective interests.
“Where owners of an entire estate convey to others for a limited term an interest in oil, gas and minerals in place, and in such as may be produced under oil and gas leases to which the conveyances are subject, and there has been exploration for and production of oil under such leases, the rights in and to production are inextricably bound up with mineral rights, and one tenant in common may not compel partition of the mineral interests as a matter of right." (Syl. HI 4, 6.)
Appellee recognizes the force of the above decision, but argues that it should be distinguished from this case because in that case the parties did not own like estates and were not co-tenants in all the property involved; there had been production under the lease making it inequitable to allocate specific portions to specific persons, and there had been an actual partition by agreement between the parties and the owners of the producing lease.
We are unable to follow the argument of plaintiff in this respect. In the first place we followed and approved the decision in Fry v. Dewees, supra, and in Drake v. Drake, 153 Kan. 56, 109 P. 2d 77. In that case there had been no production as is the case here. However, we held the same legal principles applied as controlled the Fry case and held that partition should not be ordered.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This is a claim for workmen’s compensation. The commissioner of workmen’s compensation made an award in favor of the claimant. On appeal the district court examined the record and gave judgment for compensation. The insurance carrier has appealed.
The accident which caused the death of claimant’s husband occurred in Carbon county, Wyoming. The parties agreed that the claim might be heard in Ness county, Kansas; that the workman met his death by an accident; that proper notice was given; that claim was- made in due time and that the workman’s average earnings at the time of his death were $200 a month.
When the application came on to be heard before the examiner for the commissioner of workmen’s compensation the insurance carrier announced that it would not agree that the accident arose out of and in the course of the workman’s employment with the Kansas Western Pipe Line Company, while that company admitted it had. The insurance carrier refused to admit that the relationship of employer and employee existed between the workman and the pipe-line company on the day of the accident; the pipe-line company contended that he was its full-time employee. The insurance carrier refused to admit that the parties were governed by the workmen’s compensation act. The pipe-line company neither admitted nor denied that they were. The insurance company refused to admit that if the pipe-line company was liable it was the insurance carrier.
From the above statement it will readily appear that the question at issue was the relationship of the parties. The matters with reference to which there was no dispute will be noted.
The Kansas Western Pipe Line Company is a corporation organized and doing business under the laws of Kansas. It had been organized to buy and sell oil but at the time with which we are concerned it was engaged in operating two oil wells in Ness county, Kansas. One of these wells was owned by some parties in the East and the other by the Kansas Wyoming Oil Corporation, of which more will be said presently. The manner in which the Kansas Western Pipe Line Company was compensated for operating these wells was that it received the oil runs as they came due, charged the owners of each well a proportionate share of the cost of operating it and a small charge for overhead and paid what remained from the runs to the owners of the wells. This company maintained an office at Ness City, Kan.
The Kansas Wyoming Oil Corporation was organized under the laws of Colorado and had permission to do business-in Wyoming. It owned a number of oil wells in Wyoming. These wells it operated for itself. H. L. Jewell was assistant secretary and treasurer of the Kansas Western Pipe Line Company. He was also assistant treasurer of the Kansas Wyoming Oil Corporation. R. T. Atkins was vice president of the Kansas Western Pipe Line Company. S. M. Newton owned a controlling interest and was a director of the -pipe-line company and was president of the Kansas Wyoming Oil Corporation. He also owned a controlling interest in the Newton Oil Company, a company which is only incidentally mentioned in this record.
The workman was an expert production man, handled the purchasing of equipment for oil wells and knew how to keep them in order for production. Previous to his going to work for the Kansas Western Pipe Line Company he was an employee of the Kansas Wyoming Oil Corporation. S. M. Newton, as has been noted, owned a large block of stock in both these companies. Atkins often carried out the orders of Newton in managing the affairs of these companies. It was necessary that in the late summer or fall someone should check the wells in Wyoming and prepare them for the winter production. The Kansas Western Pipe Line Company had an arrangement with the Kansas Wyoming Oil Corporation whereby the Kansas Western Pipe Line Company furnished the deceased' to the Kansas Wyoming Oil Corporation for supervision in connection with the lease in Wyoming. He was directed by the Kansas Western Pipe Line Company to go to the oil and gas lease of the Kansas Wyoming Oil Corporation and inspect the wells there for the purpose of preparing them for winter production. In accordance with these .instructions of the Kansas Western Pipe Line Com'pany he went to the oil wells of the Kansas Wyoming Oil Corporation in Wyoming and there while inspecting these wells received the injury which resulted in his death. The trial court found that during all the time from March, 1941, until the time of his death Scott received his pay and expenses when away from home from the Kansas Western Pipe Line Company and received his directions for work from that company. He was at the time of his injury and death acting in accordance with his employment and directions from the Kansas Western Pipe Line Company and was not acting under the direction and employment of the Kansas Wyoming Oil Corporation. There was substantial evidence to sustain the finding that prior to March 1,1941, he had been on the pay roll of the Ka'nsas Wyoming Oil Corporation and was working as production superintendent in Wyoming. Sometime during December, 1940, he was in Ness county, Kansas, and did some work on the oil well in Ness county, which was owned by the Wyoming company and operated by the Kansas Western Pipe Line Company. There is no dispute as to the above facts. Claimant claims that the contract of employment was consummated between Scott and the Kansas Western Pipe Line Company while he was in Kansas during December, 1940. Since the accidental death of the workman occurred in Wyoming, the claim is brought pursuant to the provisions of G. S. 1935, 44-506. That section provides as follows:
“This act shall not be construed to apply to business or employment which, according to law, are so engaged in interstate commerce as to be not subject to the legislative power of the state, nor to persons injured while they are so engaged: And provided, That this act shall apply also to injuries sustained outside the state where the contract of employment was made within the state, unless such contract otherwise specifically provides.”
Attention is called to the proviso at the end of the above section.
At the hearing before the examiner, counsel for the insurance carrier raised the question in various ways but as a practical matter the issue submitted to the examiner was, first, whether the contract of employment between the workman and the Kansas Western Pipe Line Company was made in Kansas, and second, whether the policy issued that company by the insurance carrier covered the workman under the circumstances existing at the time he was killed.
The first question is one of fact. The examiner heard the evidence and in effect found that the contract of employment was made in Kansas. On appeal the district court made the same finding and gave a judgment for compensation. The award was against the Kansas Western Pipe Line Company and the insurance carrier. The appeal to this court is by the insurance carrier. The Kansas Western Pipe Line Company did not appeal. The time for appeal has gone by and the award is final as against the employer.
The scope of review in a workmen’s compensation case is limited to questions of law. We cannot reexamine the facts. If there is substantial evidence to uphold the award it must stand. See Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325, and Miller v. K. S. Flint Rig Co., 155 Kan. 66, 122 P. 2d 734. The matters to be determined in such a proceeding may be established by circumstantial, as well as direct, evidence. (Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 73 P. 2d 1032, also, Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496.)
It has been noted that S. M. Newton was a large stockholder in both the Kansas Western Pipe Line Company and the Kansas Wyoming Oil Corporation. Jewell was the treasurer of one and the secretary of the other. He testified that the arrangement between these two companies as to Scott was made December, 1940. He testified that Mr. Newton said, “We’ve got this man Scottie up in Wyoming that is a very good man,” and he said:
“Why don’t you hire him down in Kansas to look after the property down there and pay him sufficient salary that you could make him go up to Wyoming occasionally and check the property up there.”
He also testified that the Kansas Western Pipe Line Company, the Kansas Wyoming Oil Corporation and the Newton Oil Company had offices in the same suite in Denver, and that the Kansas Western Pipe Line Company maintained an office in Ness City.
Both sides announced that they rested, whereupon the following colloquy occurred:
“Mr. Jewell: I haven’t appeared for the Kansas Western Pipeline Company except as a witness. I don’t know if there is anything I need to bring out further, but I did think that' as long as Mrs. Scott was here that they get when and where he was employed for this work in Ness County and the fact they did live here on the lease and so forth. I think she could be a witness in that regard.
“Commissioner Wyman: I think you brought that- out. And it was covered that they were living on the lease at the time of his death. This is all in the record.
"Mr. Jewell: I just wondered if it had been satisfactorily shown that he was hired here and worked here and drew his full compensation from the Kansas Western Pipeline Company.
“Commissioner Wyman: Yes, that was covered.
“Commissioner Wyman: Where was he hired?
“Mr. Jewell: In Ness County, Kansas.
“Commissioner Wyman: Who hired him?
“Mr. Jewell: R. L. Atkins.
“Mr. Coulson: I move to strike out the testimony unless Mr. Jewell knows of his own knowledge.
“Commissioner Wyman: Were you there at the time he was hired, Mr. Jewell?
“Mr. Jewell: I was not there at the time he was hired, but I talked to Mr. Atkins over the long distance telephone. Mr. Atkins was in Ness City and the arrangement that was to be made was talked over and agreed on, and he proceeded to make this arrangement.
“Mr. Coulson: I object to all this as hearsay.
“Commissioner Wyman: I can ask Mrs. Scott then.
“Mr. Coulson: I want a ruling on my motion to strike his testimony about his being hired in Kansas.
“Commissioner Wyman: But he was on the pay roll.”
Respondent argues that it was entitled to a ruling on its objection to the testimony of Jewell as to where the contract was made. As a matter of fact the commissioner did rule on it in effect when he said., “I can ask Mrs. Scott then.” The testimony was not hearsay and the objection should not have been sustained. Jewell was testifying to what he had learned from talking with another officer of .the company, a man with whom he often talked as to the business of all the companies. The affairs of these two companies were so closely intermingled that it is next to impossible to tell with any degree of certainty where the activities of one stopped and those of the other began. Surely one officer of a corporation may testify as to what another officer has told him as to a transaction of the company in which they both took part. The trial court had the benefit of this transcript, much as it would have had the benefit of the transcript of a deposition.
Mrs. Scott testified that she was present in Mr. Atkins’ room at the hotel in Ness City a while before Christmas in 1940. She testified as follows:
“Q. How long was that prior to the time you did come here? A. Well, it was a while before Christmas, because we were sitting in Mr. Atkins’ room and he said to me, T don’t suppose you would like it if I would send your husband back to work in Kansas, would you?’
“Q. Where was this conversation? A. In the Max Hotel, in Mr. Atkins’ room.
“Q. Where is the Max Hotel? A. In Ness City, Kansas. He was kidding me because all my folks, live in Kansas and I didn’t particularly like it in Wyoming and he said he was going to send him to work in Ness City, and he told my husband, ‘Of course I want you to go back to Wyoming from time to time to check up on the work there,’ and he said, ‘I don’t feel like I can do that. The wages I’m getting now,’ and he said ‘We’ll take care of that later.’
“Q. Who is Mr. Atkins? A. I don’t know the official Jitle he is supposed to carry. You better ask Mr. Jewell.
“Mr. Coulson: I will agree he is vice-president. Is that right?
“Mr. Jewell: Yes; vice-president of the Kansas Western Pipe Line Company.
“Q. Where did he live at the time that conversation took place? A. He was out of the Denver office. I don’t think he has any particular address. Usually he looks after all their holdings. He lives at Denver part of the time and in California and in Wyoming. He was in Kansas at that time doing some work and he was staying at the Max Hotel and had been there for some time, but I don’t know just how long, and I wouldn’t try to say.
“Q. That conversation you had over there, was your husband then at that time hired to come out here in Kansas, do you know? A. Yes, sir.
“Mr. Coulson: I object to the answer as being a conclusion. She has testified to what was said.
“Q. What was said at the conversation about his being hired to come back here to Kansas? A. He said, 'I am going to hire you to look after this work in Kansas.’ He said, ‘The lease has been falling off out here, and I think if I place you out here and they have a younger man, I’ll see what you can do with it.’ Also at the time he mentioned that Mr. Rueben Borger and Mr. George Sampson were also present in the room at the time that he told my husband that he was going to send him to Kansas. <
“Q. Then you later did move here to Ness City, did you? A. That’s right.
“Q. You moved out on this lease, did you? A. Yes, sir.”
Recalled by the respondent, Mr. Jewell testified in part as follows:
“Q. You have had a number of conversations about the place where this man was employed with the Traveler’s adjusters in Denver? A. That’s right.
“Q. This telephone conversation you mentioned a while ago took place when between you and Atkins, without telling me what was said? A. My answer to that necessarily has to be like my answers to some of your other questions. You realize I had long distance telephone calls every day or two with Mr. Atkins, when he would call me and tell me we should do this or that, and we would agree bn certain things, and this was one of the things that was said during that time.
“Q. About what period was it? Was it a month, two months, or three months before he came to Kansas? A. It was during December, and Mr. Newton and I had also talked in Denver about this arrangement.
“Q. Mrs. Scott has testified about working in California. That was for the Newton Oil Company; is that right? A. That’s right.
“Q. Is there any connection between the Newton Oil Company and the Kansas Western Pipe Line Company and the Kansas-Wyoming Oil Company other than the fact that Mr. Newton owns a large block of the stock? A. No, there is no interholdings of the stock of the companies.
“Q. Did you have any conversation with Scott at .the completion of the Wyoming Job, yourself, about his employment? A. Well, about the tez-mination of his employment in Wyoming, or about the commencement of his employment in Kansas?
“Q. Either one. A. Yes, I was in touch with him. But Mr. Atkins really was the one that made the arrangements, and the arrangement was carried out, but I mean I was in on the carrying-out of the az-rangement, but—
“Q. Your intez-est in the matter was knowing what the deal was? A. That’s right.”
It was the business of the trial court to examine this transcript, weigh the testimony, draw inferences and conclusions, indulge presumptions and make findings as to the facts. The trial court did that here. In a situation such as we have here where the same executive officers were speaking for the company by which the workman has been employed, as well as the company making the new contract, the employee will not be held to strict proof as to the making of the new contract, as to place where consummated, and by whom. The employee, of course, kept no books, the contract was not in writing, there probably was no time when a representative said, “I hereby hire you to work for the Kansas Western Pipe Line Company” and to which the employee said, “I hereby accept the employment.” He was in Kansas though. He did talk with a representative of the company about going to work for it. The insurance carrier argues that the trial court was bound to find that the contract of employment was made outside of Kansas because there is no evidence in this record that any officer of the company was in Kansas at the time the trial court found the contract was made. This is not quite a correct statement. There was evidence that one officer of the Kansas Western Pipe Line Company was in Kansas during December, 1940, and that he talked with Scott about going to work for that company. Ample circumstances and surroundings were established to sustain the findings of the trial court that the contract of employment was made in Kansas.
It will be remembered that the pipe-line company did not appeal from the judgment of the trial court. The judgment has become final as to it. This appeal is by the insurance carrier only. The next argument of the insurance carrier is that the policy issued by it did not cover this accident. In this connection it points out a provision of the policy, as follows:
“This agreement shall apply to such injuries (personal injuries to employees) so sustained by reason of the business operations described in said Declarations, which, for the -purpose of this insurance, shall include all operations necessary, incident or appurtenant thereto, or connected therewith, whether, such operations are conducted at the work places defined and described in said Declarations or elsewhere in connection with or in relation to such work places.”
Item 3 of the Declarations provides:
“Locations of all factories, shops, yards, buildings, premises or other work places of this employer by Town or City, with Street and Number.
“Ness County, Kansas and elsewhere in the State of Kansas.”
Item 5 of the Declarations provides:
“This employer is conducting no other business operations at this or any other location not herein disclosed — -except as herein stated: No exceptions.”
It points out that the accident in which Scott was killed occurred in Wyoming, where he was doing work while he had been loaned to the Wyoming company. It argues that the work S'cott was doing when he was killed was not necessary, incident, appurtenant to nor connected with the operations of the employer in connection with, or in relation to, the work places named in the policy. It argues that on that account the policy did not cover the accident in which Scott was killed.
G. S. 1935, 44-559, provides as follows:
“Every policy of insurance against liability under this act shall be in accordance with the provisions of this act and shall be in a form approved by the commissioner of insurance. Such policy shall contain an agreement that the insurer accepts all of the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as .by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance may be entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer.”
We have seen that the statute itself provides that it shall apply to injuries sustained outside the state where the contract of employment was made within the state. See G. S. 1935, 44-506. A construction of the policy such as that for which the insurance carrier contends would have the effect of eliminating that provision of the statute from the policy. This it could not do. The insurance features of the workmen’s compensation act are for the benefit of the workman as much as for the protection of the employer. See Gust v. Provident Life & Accident Ins. Co., 136 Kan. 88, 12 P. 2d 831. G. S. 1935, 44-559, was also for the benefit of the workman. The insurance carrier issued the policy, well knowing that the statute provided that it should cover accidents occurring outside the state. Furthermore, the policy contained a provision as follows:
“Does Hereby Agree with this Employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employees, including death at any time resulting therefrom as follows:
“To Indemnify this Employer against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be' sustained within the territorial limits of the United States of. America or the Dominion of Canada.”
The company wrote this policy. It should be interpreted in favor of liability when there is an apparent conflict or ambiguity. See Samson v. United States Fidelity and Guaranty Co., 131 Kan. 59, 63, 289 Pac. 427; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 270, 58 P. 2d 1108; and Rolfsmyer v. Kansas Life Ins. Co., 144 Kan. 520, 527, 61 P. 2d 865.
The fact that the accident in this case occurred outside the state is no more favorable to the position of the insurance carrier than if it had occurred at some place within the state other than the work places described in the policy. (See Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536.) We see no distinction between this case and Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868. In that case two employers were held as well as the insurance carrier of each employer. The laborer was the regular employee of a cement company. This cement company loaned him at a profit to the ice company which required some blasting to be done. While doing this blasting for the ice company he was injured. The insurance carrier for the cement company made the same argument that is made here, that is, that its policy only covered two cement plants and quarries mentioned in the declaration. We held the language in the policy as to the work place was intended as a description rather than a limitation as to liability. This court said:
“In construing a policy, and especially where its terms are ambiguous, we are therefore warranted in giving to the policy such construction as will be in. harmony with the intent and purpose of the act rather than a construction which will tend to defeat that purpose. Giving it that necessary construction, we conclude the employee was covered by the policy.” (p. 731.)
See, also, Bass v. Lebow, 146 Kan. 487, 71 P. 2d 1071.
The trial court found that at the time of the accident to Scott he was acting in accordance with directions from the Kansas Western Pipe Line Company. The facts of the instant case bring it within the rule of liability laid down in the foregoing cases.
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal presents the question whether an appellant was barred of her widow’s share of her deceased husband’s estate because of an antenuptial agreement. It also presents the related question whether appellant was estopped to claim her widow’s share because of her alleged acceptance of certain provisions of a will which the testator had made.
The pertinent facts were these: The late Harry B. Garden was a wealthy citizen of Hutchinson engaged in oil production and related activities. In 1938 he was single, fifty-five years old, and had reared an adopted daughter, Mrs. June G. Pollard. He had been married previously. That marriage had culminated in a divorce in 1937. Early in 1938 Garden met and had become interested in Mrs. Wilá H. Waite, a widow, forty-four years of age. She had been reared near Plutchinson, had married a Mr. Percy Waite and resided with him for some years in Denver. He died there in 1930. She took up the sale of life insurance for a livelihood. Later she returned to Hutchinson and became public hostess for that city. In 1938 she owned a third interest in a farm, a house in Denver, and some building and loan stock. She, too, had reared an adopted daughter. In March, 1938, Garden and Mrs. Waite became engaged to be married. Garden so informed his confidential secretary, W. J. O’Connor. The latter reminded him of certain embarrassments Garden had suffered when his first wife was indisposed to cooperate with him in his business dealings. Said O’Connor to Garden, “Now, Harry, you remember your experience with Grace [Garden’s former wife]. For your protection, I think you should have some sort of an agreement with Mrs. Waite that would give you a free hand in your operations so that your funds wouldn’t be tied up as they were before.”
Garden agreed with O’Connor’s suggestion and requested him to consider what ought to be included in such an agreement. O’Connor complied. Then Garden directed O’Connor to ask Senator Walter Jones, a lawyer of Hutchinson, to come to Garden’s office. Senator Jones came and they explained to him the business difficulties which had troubled Garden during his former, marriage, and told him that what was wanted was a simple agreement whereby Garden would have a free hand to conduct his business as he saw fit. Thus instructed, Senator Jones drafted an antenuptial agreement and sent it to Garden and O’Connor. They familiarized themselves with its terms, and then Garden raised the question, “Do you think Mrs. Waite will sign this agreement?”
O’Connor answered, “Well, I don’t know; we can present it to her.” Garden said, “Don’t you think you are salesman enough to sell her on this agreement?”
O’Connor answered, “Well, I don’t know, Harry. All I can do is to present the facts to her, and if she signs the agreement, all right.” On Garden’s invitation Mrs. Waite came to his office the next afternoon, April 30, 1938, and O’Connor and Garden explained the agreement to her and its desirability to facilitate Garden’s business operations. This interview lasted about two hours. In Garden’s presence O’Connor narrated to Mrs. Waite at considerable length some of the troubles between Garden and his former wife; how she had been privileged to draw checks on Garden’s bank account and frequently caused it to be overdrawn. O’Connor showed her over $4,000 in checks she had so drawn in the last few months of 1936, and he showed her enough of such checks drawn by her as “would practically paper the walls in this office.” After this lengthy explanation, O’Connor said, “Mrs. Waite, you have all the facts and we have an agreement here which is supposed to give Mr. Garden a free hand to conduct his business as he sees fit.”
Mrs. Waite then addressed this question to Garden:
“If I sign this and many you, does that bar me from your estate?”
Garden said, “It does not. What I want is a free hand to conduct my business as long as I live and what happens after I die makes no difference.” Garden then added, “To satisfy you that I don’t intend to leave you out of my will, I am going to have a will drawn and even though we aren’t married, I am going to include you in my will for one-fourth and this agreement that you are to sign will be' made a part of the will and Mr. O’Connor here will hold the agreement until the will is written and the two of them together'.will be part of each other, and I can’t change my will — I can’t change this will without your consent.”
Garden and Mrs. Waite thereupon signed the agreement, which was dated and acknowledged before O’Connor as notary public, on April 30, 1938. They also had an oral understanding that when Garden’s financial statement could be prepared, a copy of it should be appended to the agreement’. Within a few days that was done. The statement showed Garden had assets to the amount of $508,-134.69, and liabilities of $46,393.55, thus showing a net worth of $461,741.14 as of March 1, 1938. Also appended to the antenuptial agreement was Mrs.'Waiteis statement of her property and financial worth, about $10,000. Garden5made his will about the time his financial statement was completed.'.: Mrs. Waite came again to Garden’s office and met him and O’Connor there. The three of them went through the will with the same care they had devoted to the explanation of the antenuptial agreement. O’Connor testified that they wanted to show Mrs. Waite that she was included in the will as Garden had agreed. On the same day Garden executed the will.
• That will which Garden executed in May, 1938, extends to eight printed pages of the abstract. A short abridgment of its terms will be sufficient here. It devised all his estate to three trustees',"Haines, Jones and Mrs. Waite, with the usual powers. Provision was made for many relatives according to their respective needs, and one-fourth of the remainder of the estate was devised and bequeathed to Mrs. Waite, designated as his “intended wife,” :and three-fourths to Garden’s daughter June Garden Preston. Haines, Jones and Mrs. Waite were named as executors, and were to turn the.'estate over to themselves as trustees when its administration was cLosed.
Garden and Mrs. Waite were married on June 11, 1938, and took up their abode in one of Garden’s properties in Hutchinson. Garden had a life insurance policy for $25,000 dated'January 18, 1934. .-In August, 1940, he procured certain alterations in its terms, whereby the net'amount payable thereunder should be paid — “to my wife, Wila Garden, ... in equal monthly installments of . . . $150.00 ... in accordance with the provisions of settlement option No. 4,” — the terms of which are' of no present concern. The policy also provided for the payment of the policy to other beneficiaries if his wife predeceased him. One provision of the policy read:
“The provisions of this certificate are subject, however, to the condition that in the event written notice of the remarriage of my said wife is furnished to the company at its home office, and any of the beneficiaries above named, other than -my said wife are then living, payments to her as provided in this certificate shall cease and payments thereafter shall be - made in the same manner as above provided in the event of the death of my said wife before the survivor of the other beneficiaries herein named.”
•In" August, 1941, Gard'n borrowed from the insurance company the .sum of $825.25, which was paid out of the proceeds of the policy after Garden’s death.
It would appear that in the years succeeding Garden's marriage to Mrs. Waite, his business affairs took a turn for the worse, .and his private fortune shrank accordingly — a not unusual experience in the hazardous business of an oil producer. In June, 1940, he revoked the will he had made on the eve of his marriage to Mrs. Waite, and made a new will which omitted the provision for his wife contained in the earlier will. The latest will, however, contained the following:
“xi
“On April 30, 1938, I executed an antenuptial agreement with my wife, Wila Garden. This contract is still in force and I do not intend by this will to revoke the same or any of its provisions. However, I have made provision by insurance for the payment to my wife, Wila Garden, of the sum of $150 per month after my death, and for the use of our home so long as she may live and remain unmarried, and I deem these sufficient and adequate provisions for her future.
“xv
“It is my wish and will that my wife, Wila Garden, shall have the use and occupancy of our home, known as 125 Hyde Park Drive in the city of Hutchinson, Reno County, Kansas, together with all of the furnishings and equipment therein, so long as she may live and remain single. In case she should marry again her right to use and occupy said premises and furnishings and equipment shall end and she shall turn such property over to the trustee, but she shall have the right to take from the premises all of the personal property which she may have purchased herself.
“It shall be the duty of the trustees to pay all insurance, taxes, repairs, upkeep and maintenance on the home place (utility bills are not included), and if there should be any indebtedness against the place at the time of my deáih the trustees shall out of said trust estate liquidate said indebtedness.”
'Garden died in January, 1942. His last will was admitted to probate. His widow elected to take under the law and not under the will. She also petitioned the probate court to set aside the ante-nuptial agreement. The executors Haines and Jones objected; the probate court heard the parties, denied Mrs. Garden’s petition, and sustained the antenuptial agreement. ■ She appealed to the district court when the cause was heard de novo at length. At the conclusion of the evidence in the widow’s behalf the executors interposed a lengthy, argumentative demurrér thereto which the trial court sustained. ■ '
On appellant’s motion for a new trial certain excluded evidence was introduced. The widow then testified that at the time of the making of the antenuptial contract she did not'read it, but relied on the explanation of the contract as made to her; and that she understood that it did not bar her of all her rights of inheritance in Garden’s estate. On motion of defendants’ counsel to strike out this testimony, the record reads:
“The Court: Well, it is still a question of whether or not it was a part of the transaction, and I will have to agree with — it seems to me that it is. We get down to what actually happened at the time the transaction was entered into, the actual details of that; it is a part of the transaction. . . .”
In this appeal Garden’s widow assigns error on the trial court’s ruling on defendants’ demurrer to her evidence, in overruling her motion for a new trial, and in dismissing her appeal from the decision of the probate court.
We shall use no space to discuss the general subject of antenuptial contracts. Where they are fairly and understandingly made, and just and eqúitable in their provisions, and free from fraud and deceit, they are valid and enforceable. (McVicar v. McVicar, 128 Kan. 394, 399, 278 Pac. 36; Pattison v. Pattison, 129 Kan. 558, 561, 562, 283 Pac. 483; Dunsworth v. Dunsworth, 148 Kan. 347, 352, 81 P. 2d 9; In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483.)
Such contracts between affianced spouses are not judicially regarded as ordinary contracts between persons dealing with each other at arms' length. Persons engaged to marry have or should have such confidential relationship towards each other that each has the duty to deal with the other with the utmost fairness, candor and sincerity; and in the case at bar we are met at once with the question whether Garden dealt with his affianced wife in harmony with that standard of conduct. It is not enough to dispose of this question to say that the antenuptial instrument speaks for itself. It was competent and proper to show the circumstances under which Garden brought her to his office; how he and O’Connor explained to her the need of such a contract so that he would be free to deal with his varied business activities as he should see fit without the possibility of a recurrence of the embarrassments he had suffered by the noncooperative attitude of his former wife. The appellant, having that implicit trust and confidence which an affianced spouse ought to have in the representations of her betrothed husband, as well as those made by his agent and confidential secretary in the presence of the betrothed husband, asked but one question: “If I sign this and marry you, does that bar me from your estate?”
To that question Garden answered, “It does not.”
To emphasize his answer and give her added assurance, Garden reiterated the lengthy explanation already made to Mrs. Waite by O’Connor that the antenuptial agreement was merely to facilitate Garden’s extensive business operations, which as an oil producer had to be promptly dispatched without being hindered by the necessity of consulting a wife or getting her approval or signature to his transactions. And to further emphasize his answer and to assure her that her signature would not bar her from his estate, he informed her of his intention to include her in.his will for one-fourth of his estate, and that O’Connor would hold the antenuptial agreement until his will w’as written, and that the two instruments together — ■ the antenuptial agreement and the will — would be parts of each other, not to be changed without her consent.
Tested- by defendants’ demurrer, the evidentiary incidents summarized above, gleaned chiefly from O’Connor’s testimony, must-be taken as true. Here there was not only O’Connor’s seemingly candid narrative of the circumstances which led to the signing of the antenuptial contract and the making of the will, but the evidence inherent in the instruments themselves was probative of the fact that they were intended to be complementary parts of the same contract-. Considered separately and without reference to each other, and without consideration of the circumstances under which the appellant signed the antenuptial contract, as the defendant executors would have us do, some pertinent but unanswerable questions would force themselves on our attention. What did Mrs. Waite get out of the antenuptial pact by her signature thereto? Read by itself the antenuptial instrument gave her nothing. Was she merely inveigled into coming to Garden’s office to listen to O’Connor and Garden for two hours about the domestic difficulties Garden had suffered because of his former wife’s financial improvidence only to excite her sympathy and thus- induce her to sign the pact he had prepared? Either the representations and assurances of Garden and his confidential secretary were made in good faith and entitled to the credence appellant gave them, or their lengthy expositions of its desirability to facilitate Garden’s business dealings were only a “selling talk” intended to defraud her into an unqualified renunciation of all her marital interest in her affianced husband’s estate? And when Garden had her come to his office a few days later, and he and his confidential secretary went over the will he had caused to be drafted in the interim, and explained its terms to her with the same .care they had done on the previous occasion, was that second interview with its extended explanations no more than a continuance of-The “selling talk” which had induced her to sign the antenuptial instrument? < •
There is ample authority for the .rule .of law that where1 two instruments are executed at or near the same time, and which deal with related interests of the parties concerned', the two instruments may and frequently must be construed • as complementary parts of one entire contract and are to be judicially dealt with accordingly. In MacLorinan v. Finley, 124 Kan. 637, 261 Pac. 587, the controlling question was whether a warranty deed of certain land to a grantee and a separate instrument executed twenty days later reconveying “all the oil and gas” under the land to the grantor, should be considered as complementary parts of one entire contract. Neither instrument contained any reference to the other. On parol testimony and other extraneous evidence, the trial court so held. On appeal it was said:
“[Defendants] rely on the unqualified recitals of their deed of general warranty . . . [they] invoke the rule which forbids the introduction of parol testimony or other extraneous facts or circumstances to qualify, impair, alter or impeach the plain and unequivocal terms of a written instrument . ... Such contention is well enough in its way, but here the warranty deed from Perkins to the Finleys was only a part of the writings which evidenced the contract of the parties. The complemental instrument executed reciprocally by the Finleys granting and confirming to Perkins the oil and gas rights was just as much a part of the same contract and just as immune from impairment, alteration or impeachment as the deed from Perkins on which the defendants so confidently rely. The written agreement for the purchase and sale of the half section, and the Perkins deed to Mrs. Finlej'-, and the reconveyance of the gas and oil rights to Perkins should be considered as integral parts of a single transaction so far as determining the respective interests of the parties in this land is concerned. All this is settled law. (Citations.)
“Nor does the fact that the complemental instruments do not in terms refer to each other detract from their significance as integral and related parts of one contract. (Houck v. Frisbee, 66 Mo. App. 16; Advertising Co. v. Publishing Co., 146 Mo. App. 90; 13 C. J. 528), . . . Abundant competent evidence was adduced to show that the contract for purchase and sale dated January 25. 1919, the deed of February 5, 1919, and the reconveyance of the oil and gas rights dated February 21, 1919, were all pertinent parts of a single transaction.” (pp. 639, 640.)
In Setchell v. Reed, 153 Kan. 818, 113 P. 2d 1050, two instruments, although executed fifteen days apart, were held to be integral parts of a single contract.
See, also, Skinner v. Skinner, 126 Kan. 601, 605, 606, 270 Pac. 594. and citations.
Moreover,.the circumstances under whic-li such complementary instruments have been executed can be shown by parol evidence. Thus in Insurance Co. v. Hanks, 83 Kan. 96, 110 Pac. 99, where objection was made to testihiony adduced to show that two separately written instruments constituted parts of the same transaction, Mr. Justice Benson, speaking for this court, said:
“It is 'urged that as the release upon ;its face purports to be complete, parol evidence cannot be allowed to extend its'obligations. This rule, however, does not apply where the' parol evidence is offered merely to prove another contemporaneous written contract, which with the release constitutes the agreement. All contemporaneous writings relating to the same subject matter are admissible to show the entire agreement. (1 Greenl. Ev., 16th ed., §§277-283; Wilson et al. v. Randall, 67 N. Y. 338.)” (p. 103.)
In Roseman v. Nienaber, 100 Kan. 174, 166 Pac. 491, it was held:
“Parol evidence as to the true consideration for the deed, as to the situation of the parties, and as to the circumstances under which the instruments were executed, was admissible.” (Syl. 112.)
•This rule of evidence is universally applied to show the circumstances under which a will is executed (Protheroe v. Davis, 149 Kan. 720, 89 P. 2d 890) and to show the testator’s motives which prompted the making of the will. (Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849.) No different rule could justly exclude probative evidence to show the circumstances and motives of the parties concerned in the making of an antenuptial agreement, Our own decisions emphatically declare that prerequisites to the validity of. an antenuptial contract are that it be understanding^ and fairly made, free from deceit or fraud, and that it be just in its provisions considering the circumstances of the parties at the time it is made. (Pattison v. Pattison, supra; Dunsworth v. Dunsworth, supra.)
In view of the evidence in the case at bar, which must be accepted as true against appellees’ demurrer, how can it be judicially declared that the antenuptial contract in the'case at bar was understandingly or fairly made, when the appellant signed it on Garden’s assurance that it did not bar her of her share in his estate? Where is the requisite essential element of fairness in this antenuptial contract which stripped her completely of every interest in Garden’s estate unless the will which Garden promised to make and did make is considered as a part of the antenuptial compact between the parties? And while a disproportion or seeming inadequacy of the amount the affianced bi’ide is to receive out of her affianced husband’s estate is not alone controlling, it is a circumstance to be considered with all the other evidence to determine whether she was fairly dealt with. (In re Estate of Cantrell, supra.)
Assuming that Garden’s representations and assurances to his betrothed were made’ in good faith, but that he believed he could change his will after the marriage, then certainly the antenuptial pact was not understanding^ made — even by Garden himself. If Garden believed he had a right to alter his will after his marriage without his wife’s consent, and cut her off without the devise he had made to her in his prenuptial will, then certainly he perpetrated a fraud on her when he assured her to the contrary in order to obtain her signature to the antenuptial contract.
We have already said that when affianced spouses enter into an antenuptial pact they do not deal with each other at arms’ length. Counsel for appellées say that appellant was a trained business woman and quite' capable to be her own adviser. She was, indeed, a trained insurance solicitor, which probably served her in good stead when she came to consider whether her right as beneficiary of Garden’s insurance policy had any bearing upon her statutory right as Garden’s wife under the later will which was admitted to probate. There was neither evidence nor admission that her business training had skilled her in the analysis of antenuptial agreements.
When the later will was admitted to probate, appellant informed the probate court that she elected to take her statutory right as Garden’s widow (G. S. 1943 Supp. 59-504), and not under the will. That was her privilege. Counsel for defendants urge that she was estopped to do so, because she herself offered the will for probate. If the will was in her possession or available to her, it was her duty not to withhold it. (G. S. 1943 Supp. 59-618; id. 59-2221.) The widow’s right of election to take under the law and not under the will follows the probate of the will. So reads the statute. (G. S. 1943 Supp. 59-2233; In re Estate of Hoover, 156 Kan. 31, 36, 131 P. 2d 917.) Nor did her qualification and service as executrix for a time under the will estop her to assert her statutory interest in the estate. The mere fact that a person has a claim against an estate does not disqualify him to serve as executor or administrator, although, of course, he cannot serve in such capacity when his own claim is up for consideration. In Tomb v. Bardo, 153 Kan. 766, 114 P. 2d 320, we held that a widow’s election to take under the law and not under her deceased husband’s will did not preclude her from acting as executrix.
In Dick v. Taylor, 124 Kan. 646, 261 Pac. 579, this identical question was before this court, where we held:
“The widow was not estopped from seeking a revocation of her election to take under the will because of having been named executrix under the will and having qualified and acted thereunder.” (Syl. ¶ 3.)
Furthermore, a widow must be fully informed as to her rights under the law and likewise under the will before she is required to elect (Dick v. Taylor, supra), otherwise her election will be set aside. (Williams v. Sechler, 127 Kan. 314, 273 Pac. 447.) She cannot be held to have waived her widow’s right upon mere inference, but only upon her plain and unequivocal assent and upon full knowledge of her rights and the condition of the estate. (Sill v. Sill, 31 Kan. 248, 1 Pac. 556; Williams v. Sechler, supra.)
Defendants contend, however, that she did accept the provisions of the will in her behalf respecting the $25,000 insurance policy on Garden’s life wherein she was named ás beneficiary under its terms summarized above, and likewise because she has continued to occupy the Garden homestead under the terms of the will. That contention is clearly untenable. The insurance policy was a contract between the insurance company and Garden, the assured, with Mrs. Garden as the named beneficiary, and was complete in itself. It did not pretend to relate to the antenuptial agreement, nor to the beneficiary’s statutory rights of inheritance as widow if she survived her husband. That insurance policy was no part of Garden’s estate nor disposable by his will. Any alteration of its terms which Garden might have wished to make in his lifetime would have required the assent of the insurance company. The fact that in his will he refers to his antenuptial agreement of 1938, wherein he declared it was still in effect, did not alter the relations of the insurer, insured, and beneficiary in the slightest degree. The policy had named Mrs. Garden as beneficiary, and her acceptance of insurance payments as such beneficiary under the policy did not estop her to assert her statutory right to one-half of her husband’s estate. Garden’s insurance policy contained no provision authorizing him to make a testamentary change of beneficiary, so when he died Mrs. Garden, the named beneficiary, had a vested interest in the policy, and it was due and payable to her immediately upon Garden’s death, irrespective of his futile effort to make a testamentary disposition of its proceeds. (Wannamaker et al. v. Stroman et al., 167 S. C. 484,166 S. E. 621.) Parks’ Ex’r v. Parks, 288 Ky. 435, 156 S. W. 2d 480, dea,l$ with this subject at some length, but we can only take space to quote one headnote. It reads,
"generally, a change in the beneficiary of an insurance policy cannot be made by • insured’s will where policy prescribes method of changing beneficiaries.” if 12.)
Sep, algo, Anno. — Wills—Election, 110 A. L. R. 1317, 1319, et scq.
In Aten v. Tobias, 114 Kan. 646, 653, 220 Pac. 196, the widow elected to take under her husband’s will which devised to her the family homestead of 320 acres which, was already hers. In such case,,-pf course, she accepted the provision for her in the will, and thereby waived her independent right and .title to the homestead. If she had elected to take under .the law, she would have kept her 320-acre homestead, which was. no part of her husband’s' estate, and would have gotten one-half of all her husband’s estate — exactly as Mrs. Garden was entitled to accept and enjoy her interest as beneficiary of the insurance policy which was no part of' her husband’s estate, without estopping herself to claim her statutory right of inheriting one-half his estate. We have not failed bo read Haywood v. Haywood, 225 N. Y. S. 84. It may be superficially like the case at bar, but we think it is readily distinguishable from the one now before us. In any event we would prefer to follow the Wannamaker case, supra, and the Parks case, supra, rather than the Haywood case, if we were compelled to choose between them.
And surely at this late date it scarcely needs to be elaborated that the fact that the widow continues to occupy the family homestead does not .bar her right as statutory heir of her husband. Truej she continues to occupy it; but this is because the law gives her that right, not because the will gives it to her. In Watson v. Watson, 106 Kan. 693, 189 Pac. 940, it was held:
“The restrictions of the constitution and statutes touching the alienation of a homestead are for the protection of the family, and cannot be varied or avoided by an antenuptial contract providing that in case the wife survives the husband she is to have no part in his estate. Hence, so long as such surviving widow remains unmarried she may occupy the homestead regardless of such contract.” (Syl.)
See, also, Breen v. Breen, 102 Kan. 766, 173 Pac. 2; Burns v. Spiker, 109 Kan. 22, 28-29, 202 Pac. 370; and Hoard v. Jones, 119 Kan. 138, 152, 237 Pac. 888.
Appellant complains because of the' exclusion of her proffered testimony that she relied on Garden’s explanation of the ante-nuptial contract, and that she did not understand it would bar her right .of inheritance, and that she would not have signed it if she had known it would bar her of all rights of inheritance. As we read the trial court’s ruling this evidence was not excluded in toto. We discern no prejudicial error here. Moreover, it needed no parol testimony by appellant to establish her reliance on Garden’s and O’Connor’s statements, explanations and-assurances when she signed the antenuptial pact. That would be presumed. Furthermore, the testimony of O’Connor and the evidence inherent in the circumstanc.es-.were quite sufficient to prove that she did rely on what was told her....-Hitherto this court has not rigidly held -that the admission of.- such testimony constitutes prejudicial error. (Collins v. Hayden, 104 Kan. 351, 179 Pac. 308, and citations; Gaston v. Clabaugh, 106 Kan. 160, 186 Pac. 1023.) And the latest textbooks and law journals urge that the rule of its inadmissibility be abrogated altogether. See A. L. I. Model Code of Evidence, Rule 101, pp. 91-99; 9 Kan. Bar Journal (Nov., 1940) 170 et seq.; 10 id. (Nov., 1941) :143 et seq.
Noting briefly other matters mentioned in the briefs of counsel, it was the proper practice for appellant to petition the probate court, under its present enlarged equitable jurisdiction, to set aside the antenuptial agreement (In re Estate of Grindrod, ante, p. 345, 148 P. 2d 278); and as against a demurrer, her evidence was sufficient .to support her petition, and that court or the district court on appeal should have so held.
The disparity between Garden’s fortune or estate and that of his affianced wife was not a controlling incident, but it is of some evidentiary value, to be taken into account in considering the fairness of the antenuptial pact, even if it- had given her something substantial out of her husband’s riches, which, of course, it did not do unless the contemporary antenuptial will is considered as an essential.part of the pact. (In re Estate of Cantrell, supra.)
It is sheer begging the question for appellees to argue that when this court has put its stamp of approval on a form of antenuptial agreement as we did in McVicar v. McVicar, supra, lawyers and litigants are entitled to rely on it. They are so entitled, indeed, but the lawyer-like excellence of that antenuptial contract will not help a bad cause nor an ill-founded defense. There was no semblance of want of fairness in the McVicar case, no want of understanding, no misleading misrepresentation of its legal effect, no complementary will or1 'other related instrument to be considered, no administrator’s or executor’s problems to perplex a probate court. It presented merely the legal question between the son of the deceased Mr. McVicar and his stepmother, whether the antenuptial instrument as it stood was sufficient to permit the son to quiet title to some Pottawatomie land inherited from his father, who spent his later years and died a resident citizen of California.
The other matters urged in support of the trial court’s judgment as well as those opposed to it have all been patiently considered but need no further discussion. The judgment of the district court must be reversed and the cause remanded with instructions to overrule the demurrer to plaintiff’s evidence and for further proceedings consistent with this opinion. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover possession of real estate from two defendants and for equitable relief against all of the defendants. The motion of one defendant to quash service of summons and the dumurrers of other defendants were sustained by the trial court, and from the several adverse rulings the plaintiff appeals.
The petition sets forth two causes of action, and so far as need be noted, contains the following allegations:
The first cause of action sounds in ejectment. It is alleged that plaintiff is a resident of Salina, Kan., and that he is not now and has not been in the military service of the United States; and that the defendants Johnson are citizens of Salina and are not connected with the military service of the United States; that plaintiff is the owner in fee simple of certain described real estate in Salina, and under an oral arrangement with the defendants Johnson he rented the real estate to them from month to month, that in accordance with G. S. 1935, 67-504, he served notice upon them to surrender the real estate to him, a copy of the notice and service being attached to the petition as an exhibit; that plaintiff is entitled to possession of the real estate but defendants Johnson refused to surrender possession to the plaintiff and wrongfully and unlawfully keep the plaintiff out of possession thereof.
The second cause of action will be briefly stated. All of the allegations of the first cause of action are made -part of the second cause of action, and it is alleged that the congress of the United States enacted a law, duly approved January 20, 1942, entitled “Emergency Price Control Act of 1942.” A copy of the act (56 Stat. 23, 50 U. S. C. A. 901 et seq.) is attached to the petition as an exhibit. We shall refer to it hereafter as the Act. It is further alleged that plaintiff has been in possession of the real estate by himself and his tenants for more than twenty years; that defendant Prentiss Brown is the administrator appointed under the above Act with his place of business and post-office address in Washington, D. C., and that defendant C. B. Dodge, Jr., is the local director for the defense area in which Salina, Kan., is situated. After pleading at length parts of section 2 subdivisions (b) and (d) and of section 4 subdivisions (a) and (b) of the Act, plaintiff alleges that he is the owner of other housing properties in Salina rented to tenants not in the military service, part of which properties are rented upon written contracts which provide for the collection of more rentals than were being paid for the same properties on March .1, 1942, and that the making and enforcement of those parts of the Act referred to and all other portions of the Act relating to rental of properties by and between civilian residents of this state and each of them are entirely void and invalid for the following reasons:
1. That no power has been delegated by the constitution of the United States or the amendments thereto authorizing the congress to regulate rents between private citizens, and that the Act is in violation of the tenth aüiendment and invades the province of the states.
2. That the enactment or enforcement of the Act would deprive plaintiff of his liberty and property without due process of law and that private property cannot be taken even for public use without just compensation in violation of the fifth amendment.
3. That neither the congress nor any department of the United States government has been delegated any power by the constitution to take private property of the plaintiff and turn it over to some other private person for his private enrichment and not to serve any public purpose and the portions of the Act referred to are void and unenforceable.
It' is further alleged that the administrator has purported to make certain regulations for the enforcement of the Act, designated as Maximum Rent Regulation No. 57 and hereafter referred to as Regulation 57, a copy of such regulation being attached to the peti tion as an exhibit (Superseded by Rent Regulations for Housing, 8 Fed. Reg. 7322 et seq. promulgated June 1, 1943) and thereunder that Saline county is a defense-rental area and that the maximum rental until changed shall be the rental for such accommodation on March 1, 1942; that a certain described area is the natural trade territory of the city of Salina and is an agricultural area; that for ten years preceding March 1, 1941, there had been a continued drouth and an economic depression and little agricultural products had been produced, all of which deprived Salina of normal economic conditions and rental values of residential and business properties decreased below the point of earning a fair return; that due to the economic depression residents of Salina had gone elsewhere for employment and further depressed rental values in Salina and on March 1, 1942, rents were lower than they had been during the preceding forty years, and to adopt rentals as of March 1, 1942, as a rental basis was arbitrary, capricious and confiscatory; that section 2, subdivision (a) of the Act provides that before any order is issued the administrator shall, so far as practicable, advise and consult with representative members of the industry affected by such order, and that before the issuance of any of the regulations referred to in the petition the administrator did not advise and consult with representative landlords and tenants in Salina, and that none of the parties interested was afforded any opportunity to be heard; that the regulatiqns were made arbitrarily, capriciously and without notice, investigation or hearing, and are confiscatory and deprive plaintiff of a fair return on his capital investment, contrary to the fifth amendment to the United States constitution.
It is further alleged that the authorization of the issuance of the rules made by the administrator is an unlawful delegation of congressional authority, the issuance of such rules deprives plaintiff of his property, is confiscatory, is in the nature of a judicial determination without notice or opportunity to be heard and is not due process of law as required by the fifth amendment. Then follow allegations as to many other named owners of real estate and that they have a common interest in whether the law and regulations referred to are valid and that it is impracticable to bring separate suits and plaintiff is bringing the suit in behalf of all persons similarly situated.
It is further alleged that defendant Dodge under instructions from defendant Brown, the administrator, is counseling and advising de fendants Johnson not to pay any attention to the laws of Kansas and to defy the same and to forcibly retain possession of the real estate, and that Brown and Dodge are threatening to prosecute plaintiff and the other owners referred to if they do not comply with each and every regulation referred to in the petition. As explanatory of plaintiff’s cause we may state that the prayer of the petition is that defendants Johnson be ousted and possession of the premises be delivered to plaintiff; that defendants be barred and estopped from claiming any interest in the property or any right to control the rents thereof, and enjoining Brown and Dodge from interfering with plaintiff or those having property in like situation, in the control, use, occupancy and rental of their real property.
The defendants Johnson demurred to the petition for the reason that it failed to state a cause of action for ejectment; that Salina, Kan., is a defense-rental area and Regulation 57 contains requirements for obtaining possession and the petition fails to allege compliance with such regulations and does not state facts sufficient to constitute a cause of action. The defendant Dodge demurred on the grounds that the court had no jurisdiction of the person of the defendant or of the cause of action and that the petition does not state facts sufficient to constitute a cause of action. The defendant Brown entered a special appearance and moved to have process against him quashed for six asserted reasons, which need not be detailed here.
The trial court heard the demurrers and the motion to quash and filed two journal entries. In one, which is really a short opinion, the trial judge stated that looking through form to substance the second cause of action was not an action to quiet title but one in which the court was asked to hold the Act unconstitutional; that the United States constitution grants to congress the power to declare war and defend the nation and that the Act is a war measure,' and what was necessary to be done rested in the sound discretion of congress and not in the court, and that the Act is constitutional as a war measure; that the Act itself sets up and provides for a court which shall have exclusive jurisdiction to determine all matters of the nature involved in the case at bar and specifically deprives all other courts of jurisdiction; that the instant action is one covered by the Act and hence the court was of opinion it did not have jurisdiction, and that the demurrers and motion should be sustained.
In the formal journal entry the court, without specification of any ground of the demurrers or of the motion to quash, sustained the demurrers and allowed the motion to quash.
Plaintiff thereafter filed a motion for a new trial and a motion to have the several rulings vacated and set aside. These latter motions were denied and plaintiff perfected his appeal to this court, his specifications of error covering the rulings on the demurrers and the motion to quash, and that the trial court erred in holding it did not have jurisdiction, in denying plaintiff’s motion to set aside its findings, in denying the motion for a new trial and in rendering judgment of dismissal in favor of defendants. It may here be noted that the journal entry of judgment does not show any judgment of dismissal.
Before discussing the several contentions presented by the appellant, we direct attention to the fact that the demurrers presented no question of misjoinder of causes of action, nor is any question presented as to the right of plaintiff to maintain this action on behalf of other owners of real estate alleged to be similarly situated, and we shall not comment thereon. Neither is there any specific contention by appellees that appellant’s remedy is by action in forcible detainer, of which the justice of the peace court has jurisdiction (G. S. 1935, 61-1301), and not by action in ejectment, in which the district court has jurisdiction (G. S. 1935, 60-2001). We shall assume the allegations that plaintiff is the owner in fee simple and entitled to the possession of the described real estate and that the defendants Johnson unlawfully keep him out of possession, would be sufficient to state a cause of action in ejectment, unless the Act controls and plaintiff must plead compliance with its provisions as conditions precedent to his right to maintain an'action in ejectment.
The following review of the Act and of the regulations issued thereunder is not intended to be complete, but only to show provisions particularly applicable to the case at bar.
In section 1 it is declared to be in the interest of the national defense and security and necessary to the effective prosecution of the war, and the purposes of the Act are, to prevent speculative, unwarranted and abnormal increases in prices and rents . . . and to assure that defense appropriations are not dissipated by excessive prices. Section 2 deals with 'prices of commodities with which we are not now concerned and with rents, and (b) that whenever in the judgment of the administrator it is necessary in order to effectuate the purposes of the Act he may issue declarations setting forth the necessity for any defense housing accommodations in any particular defense-rental area, and he may by regulation or order establish such maximum rentals as in his judgment will be generally fair and equitable and will effectuate the purposes of the Act, and so far as practicable, in' establishing any maximum rent he shall ascertain and give due consideration to the rents prevailing for accommodations on or about April 1, 1941. Under subdivision (dj of section 2 it is further provided that whenever in the judgment of the administrator such action is necessary or proper in order to effectuate the purposes of the Act, he may, by regulation or order, regulate or prohibit speculative or manipulative practices or renting or leasing practices (including practices relating to recovery of the possession) in connection with any defense-area housing accommodation, which in his judgment are equivalent to or are likely to result in rent increases inconsistent with the purposes of the Act. Subdivision (g) of section 2 provides that regulations, orders and requirements under the Act may contain such provisions as the administrator deems necessary to prevent the circumvention or evasion thereof. Section 3 deals with agricultural commodities. Section 4 (a) makes it unlawful to do certain prescribed things, including demanding or receiving any rents in violation of any regulation or order under section 2, or (b) to remove or attempt to remove a tenant because the tenant proposes to take action authorized under the Act. Subsequent sections provide for the office of administrator; who is authorized from time to time to issue such regulations and orders as he may deem necessary or proper in order to carry out the purpose of the Act, for investigations, records and reports, for procedure after issuance of any regulation or order under section 2 and for review by complaint filed with the Emergency Court of Appeals provided for in the Act. By section 204 (d) it is provided that the Emergency Court of Appeals and the Supreme Court upon review of its judgments and orders shall have exclusive jurisdiction to determine the validity of any regulation or order issued in section 2 . . . and of any provision of such regulation, order or price schedule, and—
“Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision.”
We are not presently concerned with other provisions of the Act and therefore do not review them.
Under the Act the administrator issued a maximum rent regulation (No. 57, effective December 1, 1942, and in force when the instant action was commenced) one of the defense-rental areas thus created being composed of Dickinson, McPherson, Ottawa and Saline counties in Kansas, and a copy of this regulation is attached to plaintiff’s petition. We shall not review the many provisions for fixing rents and for procuring alterations, changes or adjustments, and procedure in connection therewith for the present case involves none of them. Under section 1388.586 (a) it is provided that so long as he continues to pay rent no tenant shall be removed from any housing accommodation by action to evict or to recover possession, by exclusion from possession or otherwise, nor shall any person attempt such removal or exclusion from possession notwithstanding the tenant has no lease or his lease 'has expired or otherwise terminated, except in six specified instances, none of which applies to the case at bar. Under subdivision (b) (1) of the above section it is provided that no tenant shall be removed or evicted on grounds other than those stated unless on petition of the landlord, the administrator certifies the landlord may pursue his remedies in accordance with the requirements of local law. Under subdivision (d) (1) of the above section every notice to a tenant to vacate or surrender possession shall state the ground under the section upon which the landlord relies for removal or eviction of the tenant, and a written copy must be given the area rent office within twenty-four hours after the notice is given to the tenant. No tenant shall be moved or evicted by court process or otherwise, unless at least ten days prior to the time specified for possession and to the commencement of any action for removal or eviction the landlord has given written notices of the proposed action to the tenant and to the area rent office, stating the ground upon which removal or eviction is sought and specifying the time when the tenant is required to surrender possession.
Appellant’s first contention is that the trial court erred in holding it did not have jurisdiction of the subject of the action. As has been shown abové, the demurrers, which included other grounds, were sustained generally, and if any ground is good the ruling was correct.
On the question of jurisdiction we note the following: The general purpose of the first cause of action was to eject defendants Johnson from plaintiff’s real estate, and of that action the district court did have jurisdiction. The general purpose of the second cause of action was to enjoin enforcement of the Act and of the regulations issued thereunder, and whether the trial court had jurisdiction of all or any part of the matters there involved depends on the constitutionality of the Act and the validity of the regulations issued, and is discussed later. Whether the facts stated in either cause were sufficient to state a cause of action will be considered later.
Before noting other of appellant’s contentions, and to avoid any misunderstanding, we point out there is no express contention that the congress, in enacting the Act failed to lay down the policies or establish the standards under which the administrator could make subordinate rules and regulations, the failure of which caused the Supreme Court of the United States to denounce the National Industrial Recovery Act of June 16, 1933. (See Schechter Corp. v. United States, 295 U. S. 495, 79 L. Ed. 1570, 55 S. Ct. 837, 97 A. L. R. 947.)
Although not in the order here given, appellant contends that the existence of war does not change the constitution of the United States, that the Act violates the fifth amendment of the constitution that no person shall be deprived of his property without due process of law nor shall private property be taken for public use without just compensation; that the delegation of power to the administrator under the Act is an unconstitutional and unlawful delegation of legislative power insofar as it relates to housing, and that the Act is an invasion of the province of the states and is an invasion of the rights reserved to the states under the tenth amendment.
In support of the trial court’s ruling, appellees contend that under the Act, jurisdiction is expressly withheld from the state courts to enjoin or set aside the Act or any regulation thereunder, and also that having failed to allege compliance with the Act plaintiff has failed to state a cause of action. We'think the contention of appellees as to jurisdiction is too broad. Without reviewing fully the provisions of the Act, it is provided that the administrator may make regulations and orders concerning prices of commodities and rentals of real estate and that there may be a review by filing complaint with the Emergency Court of Appeals, created under the Act, and that court and the Supreme Court have exclusive jurisdiction to determine the validity thereof. Attention is directed, however, to the last sentence of section 204 (d) quoted above. Appellees contend section 204 (d) precludes any state court from determining any question of validity or constitutionality of the Act. In view of our conclusions later we need not labor the point. Although congress may have power to withhold from state courts jurisdiction over any matter within the judicial power of the United States (see the classic case of Cohens v. Virginia, 6 Wheat. [19 U. S.] 264, 25 L. Ed. 191) in the present instance it did not do so further than as provided in the portion of the Act as quoted above. It appears'the restriction on jurisdiction pertains to regulations or orders made under the Act, and not to the Act itself. (See Henderson v. Kimmel, infra.) Whenever congress enacts legislation and confers jurisdiction on a court to hear and decide a case, it likewise confers jurisdiction to determine whether the Act is constitutional. (Adkins v. Children’s Hospital, 261 U. S. 525, 544, 43 S. Ct. 394, 396, 67 L. Ed. 785, 24 A. L. R. 1238; Smyth v. Ames, 169 U. S. 466, 527, 18 S. Ct. 418, 426, 42 L. Ed. 819; United States v. Butler, 297 U. S. 1, 62, 56 S. Ct. 312, 318, 80 L. Ed. 477, 102 A. L. R. 914.) If the Act is not constitutional, the provision relied on by appellees is not good. In our opinion the trial court had jurisdiction to determine whether the Act was a valid constitutional enactment.
In support of their various contentions and in argument thereon, appellant and appellees have directed our attention to many decisions and of these, many are cumulative in character. No good purpose is to be served by making complete reference to all of these cases. A series of annotations on “Constitutionality of Emergency Price Control Act as relating to rent” may be found in 142 A. L. R. 1521, 143 A. L. R. 1533, 144 A. L. R. 1517, 145 A. L. R. 1484, 146 A. L. R. 1491, and 147 A. L. R. 1446, in which will be found most of the cases mentioned in the briefs dealing with constitutionality.
Appellant directs our attention to the grant of war powers to congress under article 1, section 8 of the United States constitution, and argues that these powers, broad as they may be, are limited by and subject to the provisions of the fifth amendment that no person shall be deprived of his property without due process of law, nor shall private property be taken for public use without just compensation. In support of his contention that the Act violates the fifth amendment, appellant directs our attention to and quotes from Missouri Pacific Railway Company v. Nebraska, 164 U. S. 403, 41 L. Ed. 489, 17 S. Ct. 130; Holden v. Hardy, 169 U. S. 366, 42 L. Ed. 780, 18 S. Ct. 383; United States v. Butler, 297 U. S. 1, 80 L. Ed. 477, 56 S. Ct. 312; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U. S. 183, 81 L. Ed. 109, 57 S. Ct. 139; Buchanan v. Warley, 245 U. S. 60, 62 L. Ed. 149, 38 S. Ct. 16; Priewe v. Wisconsin State Land & Improvement Co., 93 Wis. 534, 67 N. W. 918, and other cases, all dealing with the right to take private property without due process of law or to take private property for public use without just compensation. None of the cases relied on arise under or are measured by the Act under consideration or by other exercise of any war power. In the case before us the question would be more the taking of private property without due process of law than of taking private property for public use without just compensation. It may here be noted that a similar contention was made and denied in Block v. Hirsh, 256 U. S. 135, 65 L. Ed. 865, 41 S. Ct. 458, 16 A. L. R. 165, wherein the act of October 22, 1919, regulating rents in the District of Columbia was involved; and in Marcus Brown Co. v. Feldman, 256 U. S. 170, 65 L. Ed. 877, 41 S. Ct. 465, wherein a statute of New York regulating rents in the city of New York was involved.
In connection with his contention the Act unconstitutionally delegates legislative power to the administrator, appellant does not point out wherein he believes the delegation is void, but he directs our attention to two cases which he states present his view. The first is Roach v. Johnson, 48 F. Supp. 833. The judgment in that case was set aside by the United States Supreme Court on May 24,1943, on the ground the suit was collusive (319 U. S. 302, 87 L. Ed. 1027 [Adv. S.], 63 S. Ct. 1075). The second is Payne v. Griffin, 51 F. Supp. 588. The opinion is by a judge of the United States District Court of Georgia. That court was of opinion that congress has power to enact a statute controlling rents in time of war, but that congress is not authorized to delegate its power; that congress may enact a law to become effective when specified conditions come into existence and may delegate to an administrative officer the authority to determine when such conditions exist; that congress may declare the policy and fix a definite standard by which the administrator is to be controlled and authorize him to make subordinate rules, but congress cannot permit the administrator to determine what the law shall be. Without detailing the opinion further it may be said the trial judge held the Act authorizing the administrator to fix maximum rentals in a defense area was an invalid delegation of legislative power.
In connection with his contention the Act is in violation of the tenth amendment, in that the matter of rentals is one for local legislation, and not one delegated to the United States under the constitution, appellant cites Hammer v. Dagenhart, 247 U. S. 251, 62 L. Ed. 1101, 38 S. Ct. 529, wherein an act of congress prohibiting transportation in interstate commerce of goods produced in factories employing children, was held to exceed the commerce power and to invade the province of the states, and Marcus Brown Co. v. Feldman, 256 U. S. 170, 65 L. Ed. 877, 41 S. Ct. 465, where state legislation regulating rentals was held not to violate the fourteenth amendment to the United States constitution. Neither of these cases deals with the effect of the exercise of the war power and while they contain language treating of the province of the states and the exercise of reserved powers, they are not at all conclusive of the problems presently involved.
Up to this time no case involving the Act based on the grounds of attack asserted in the instant case has been decided by the Supreme Court of the United States, but a considerable number have been considered in the circuit courts of appeal and in the district courts of the United States, as well as in some state courts, as is disclosed in the A. L. R. annotations above mentioned. An examination of these cases shows that many of them cover most of the contentions made by appellant in the instant case, and that generally speaking Roach v. Johnson and Payne v. Griffin, supra, tend to substantiate his contentions, but that practically all the other decisions tend to refute them.
One of the early cases is Henderson v. Kimmel, 47 F. Supp. 635, decided in October, 1942. For our purposes it may be said that Kimmel, who owned an apartment house in Wichita, Kan., had rented an apartment to one Boyd, an employee of a company making airplanes. Kimmel demanded an increased rental and refused to accept rental on the basis previously paid. He then served notice of termination of tenancy, and later brought a suit in forcible detainer in the city court and obtained judgment. This judgment was vacated on the ground the notice to terminate was insufficient. Shortly thereafter Leon Henderson, as administrator under the Act, instituted action in the United States District Court of Kansas to enjoin Kimmel from directly or indirectly demanding or receiving rents in excess of that established by the maximum rent regulation, or to exclude Boyd from possession, or from bringing, maintaining, prosecuting or continuing any acts, practices or omissions in violation of the regulations and orders pertaining to rent issued by the administrator, pursuant to the Act. By way of answer and counterclaim, Kimmel attacked the constitutionality of the Act and the regulation and sought to enjoin the plaintiff from enforcing the .provisions of the Act and from interfering with the use and occupancy of her premises and with her right to invoke the jurisdiction of the state courts and pursue the remedies given by the state of Kansas, and for other relief. A three-judge court, duly constituted under the statute, convened and heard the applications for preliminary injunctions. It appeared that Kimmel had not sought relief pursuant to the provisions of the price control act. In an opinion by Phillips, circuit judge, the court held that the war power of congress is a broad and comprehensive grant, subject to the limitations of the fifth amendment but that the war power was not destroyed nor impaired by any later provision of the constitution or by any one of the amendments; that all are to be construed together so as to avoid making the constitution self-destructive, and so as to preserve the rights of citizens from unwarrantable attack while assuring beyond all hazard the common defense and the perpetuity of their liberties. The court took note that we are engaged in a global war and that no greater emergency ever confronted our nation, and said:
“In such a time a nation that may draft its young men into the armed forces to serve at a modest pay most certainly can require its citizens on the home front to make financial and other sacrifices essential to the successful defense of our country.” (1. c. 641.)
and that national emergency does not create power, the war power is expressly granted, and the emergency furnishes the occasion for its exercise. The court further said:
“That rent control is necessary to the effective prosecution of the war effort is not open to doubt. It is necessary in order to prevent the disastrous effects of inflation, to protect the families of men in the armed service, to attract workers to vital defense areas, to bring about a fair distribution of essential labor among the several defense areas, and to insure defense' workers of. housing accommodations at rentals that are not exorbitant. In short, it is necessary to maintain civilian morale and insure the production of necessary armaments.” (1. c. 642.)
It was said further that it must follow that congress has the power to regulate costs of commodities and facilities in order to insure the essential armaments, prevent defeat and insure the victory, and that the power to regulate rents had been sustained by the Supreme Court in Block v. Hirsh, 256 U. S. 135, 41 S. Ct. 458, 65 L. Ed. 865, 16 A. L. R. 165. It was held the Act contains both a clear statement . of a definite policy and adequate intelligible standards to guide the administrator in fixing rentals and that in such circumstances congress may constitutionally delegate to an administrative agency the power to determine details essential to carry out the legislative purpose. After some discussion of the provision for review of the orders and regulations of the administrator, the court stated it would seem the Act provides for an adequate administration and judicial review of protests and provisions for adjustment filed in behalf of a landlord. On the question of exclusive jurisdiction of the Emergency Court of Appeals and of the Supreme Court to consider validity of any regulation or order, etc., the court stated that if the Act is constitutional, the three-judge court was without jurisdiction to pass on the validity of the regulation and was limited in its consideration to the question of the constitutionality of the Act. Limits of space preclude our inclusion here of the court’s comments on the general subject that exclusive jurisdiction and prohibition against restraining orders and stays by other courts than the Emergency Court of Appeals are indispensable to the successful operation of wartime rent control (1. c. 644). The court concluded that Kimmel had not exhausted administrative remedies afforded, and that it was a settled rule of judicial administration that no one is entitled to judicial relief for a supposed injury until the prescribed administrative remedy had been exhausted. The court concluded the basic Act was constitutional. Limits of space preclude a more detailed statement of questions and issues involved in the foregoing case and reference is made to the opinion for a more complete statement thereof.
In the A. L. R. annotations above referred to will be found many cases either following Henderson v. Kimmel, supra, or holding in-, dependently that the Act is a valid exercise of the war powers of congress; that the Act contains a definite statement of its policy and fixes adequate and intelligible standards to guide the administrator in his operations under it; that there is proper delegation of the power to control rents; and that the Act does not violate the fifth amendment or any other of the amendments and is constitutional.
Although in his petition appellant pleads that he and his tenant are civilian residents and not in the military service and therefore the Act is unconstitutional as to them, he makes no separate argument thereon. We think it proper to make the following observations. As has been indicated in Henderson v. Kimmel, supra, the purpose to be,served by the Act is not only to protect families of men in the armed services, it is to control housing accommodations in defense areas so as to attract workers, and to insure them housing accommodations at rentals that are not exorbitant. At first glance it would appear the national government was not concerned with purely personal rental arrangements between persons not in the armed services or engaged in some defense industry. If the Act were to be so interpreted the possibility would arise that landlords might then rent only to purely civilian tenants not under the Act and willing to pay high rents, and not to persons who would be under the Act and for rents as limited thereby, with the result that housing accommodations would be denied persons in military service or in defense industry, and the purpose of the government would be frustrated. A somewhat similar argument was made in Jacob Ruppert v. Caffey, 251 U. S. 264, 64 L. Ed. 260, 40 S. Ct. 141, against enforcement of the Volstead act, which prohibited not only the manufacture and sale of intoxicating liquors but certain nonintoxicating ones. In that opinion it was said that plaintiff’s argument was equivalent to saying that the war power of congress to prohibit the manufacture and sale of intoxicating liquors did not extend to the adoption of such means to the end as in its judgment are necessary to _ the efficient administration of the law. That contention was not upheld, the court saying the- power granted was a broad one to make such laws as may be required to effectually carry out the purposes of the act.
“Since congress has power to increase war efficiency by prohibiting the liquor traffic, no reason appears why it should be denied the power to make its prohibition effective.” (1. c. 301.)
And so here. Assuming power to exist that rentals in defense areas may be regulated, the regulation made may be sufficiently broad that it is effective to accomplish the purpose of the Act. The Act itself contemplates such regulations. See section 2, subdivision (g) heretofore mentioned in the review of the Act.
The rule that decisions of the Supreme Court of the United States on federal questions are binding on state courts has been recognized and followed in this state. (See Schaefer v. Lowden, 147 Kan. 520, syl. ¶ 2, 78 P. 2d 48.) The decisions generally are in conflict whether a state court is bound by the decisions of the lower federal courts on federal questions. (See 147 A. L. R. 857.) In Krouse v. Lowden, 153 Kan. 181, syl. ¶ 6, 109 P. 2d 138, it was held the interpretation placed upon a federal statute by the federal courts, and particularly by the United States Supreme Court is controlling upon state courts. We think that where the decisions of the various federal courts are in accord, the rule might well be followed, and where there is lack of unanimity, the weight of authority should be held very persuasive.
In our opinion, and it is supported by the overwhelming weight of authority, the Act is not unconstitutional for any reason asserted by the appellant. On the contrary it is a valid exercise of the war powers of congress, and fixes adequate standards for its administration. Under its terms our jurisdiction is limited, and we may not consider the validity of any regulation or order issued by the administrator of the Act, nor enjoin the enforcement thereof. If the appellant believes that such regulations or orders are unduly restrictive or arbitrary, his remedy.is to follow the procedure for administrative review leading up to a hearing before the Emergency Court of Appeals, and there is no pleading or contention that he has done so.
Under Article VI thereof, the constitution and the laws of the United States made in pursuance thereof are the supreme law of the land, and judges in every state are bound thereby, anything in the laws of the state to the contrary notwithstanding. The Act and the regulations pertaining to rentals and to removal of tenants by actions to evict or recover possession are controlling here.
Without elaboration it may be said it was incumbent on plaintiff to obtain the certificate from the administrator before pursuing his remedies in accordance with the requirements of local law and that he give notices as required by the Act. These were conditions precedent to bringing the action. Under- such circumstances they must be'pleaded in order to state a cause of action. (See 1 C. J. 976; 49 C. J. 145; 1 Am. Jur. 426; and 41 Am. Jur. 353.) In plaintiff’s first cause of action there is no allegation that he complied with the regulations with respect to obtaining the certificate from the administrator or that he gave to the tenant any notice as required by the regulations. Procurement of the certificate and the giving of the notice were conditions precedent to plaintiff’s pursuing his remedies in accordance with requirements of local law and to bringing the action in ejectment, and by reason of the failure of plaintiff to plead compliance, his first cause of action did not state facts sufficient to constitute a cause of action. Not much need be said as to the second cause of action. His attack on the Axt itself is not sustained. Primarily the second cause of action is an attempt to enjoin enforcement of the regulations of the administrator, and of such an action the state court- has no jurisdiction.
In view of our conclusions it is not necessary that we discuss the trial court’s ruling on Brown’s motion to have process against him quashed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a former sheriff of Ford county against the surety on an indemnity bond executed and delivered to the plaintiff by his deputy. Defendant prevailed and plaintiff appeals.
The action sought to recover from the surety, Glens Falls Indemnity Company, moneys alleged to have been collected by the deputy upon tax warrants and which the deputy kept and retained in violation of law and his obligation as deputy sheriff. Appellant promptly reimbursed the county for the loss. The sole question presented is whether the instant action is barred. The pertinent facts, covered by stipulation of the parties, are:
“It is stipulated by the plaintiff and defendant that the plaintiff was elected and served as sheriff of Ford County, Kansas, for the term beginning January 9, 1935, and ending on January 10, 1937; that at the beginning of that term of office he appointed LeRoy Van Lehn as a deputy sheriff for the two-year term, subject to removal at pleasure of plaintiff, and that at the beginning of said term, on the 9th day of January, 1935, LeRoy Van Lehn furnished and executed and delivered to the plaintiff the bond, a copy of which is attached to the petition and the original of which is offered as Exhibit A.
“It is further admitted that the said LeRoy Van Lehn entered upon his duties as deputy sheriff and served throughout the term, until January 10, 1937; that on March 23, 1936, Cornell & Company, accountants and auditors of Hutchinson, Kansas, employed by the County Commissioners, made a report to said Commissioners of an audit for the period between January 15, 1935, and February 21, 1936, which showed a shortage in the funds handled in the Sheriff’s office in the sum of $775.24; that on February 28, 1936, the plaintiff deposited to the credit of the County Official Bank Account, in the Fidelity State Bank of Dodge City, Kansas, the sum of $775.24, in full payment of said shortage; that the shortage had occurred in the amounts handled by LeRoy Van Lehn and were not accounted for by him. That plaintiff is now suing to recover the said shortage of $775.24.
“It is further stipulated that this matter be submitted to the Court on the above stipulation.”
The principal in the bond was the deputy sheriff. The pertinent provisions of the bond read;
“Whereas, the above-named principal has been duly authorized or elected to the office of Deputy Sheriff of the County of Ford, State of Kansas, for the term of office beginning on January 9, 1935.
“Now, Therefore, the Condition of the Foregoing Obligation is Such that if the Principal shall faithfully perform such duties as may be imposed on him by law and shall honestly account for all money that may come into his hands in his official capacity during the said term, then this obligation shall be void; otherwise it shall remain in force.”
This action was filed December 6, 1941.
It was the judgment of the trial court the action was barred by the statute of limitations pleaded in defendant’s answer, which was G. S. 1935, 60-306, subdivisions First, Second and Fifth. That statute provides;
"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
“First. Within five years: An action upon any agreement, contract or promise in writing.
“Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.
“TPijth. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff, or any .other officer, or upon the bond or undertaking given in attachment, injunction, arrest, or in any case whatever required by statute, can only be brought within five years after the cause of action shall have accrued.”
Appellant contends the trial court should have interpreted the bond to mean that the deputy was not required to account to the county for moneys collected on tax warrants until the end of the sheriff’s term of office, to wit: January 10, 1937. If that is the correct interpretation of the bond then the bond contemplated the deputy might appropriate the county’s funds to his own use during the term and all that was necessary was for the deputy to return the funds by the end of the sheriff’s term of office. The bond does not say the deputy may account during the term, but it plainly requires that he honestly account for all money that may come into his hands during the term. In our opinion the phrase, “during the term,” clearly was intended to refer to the words immediately preceding that phrase, namely, “all money that may come into his hands in his official capacity,” and was not intended to fix the time when the deputy was required to account for the funds. We may also pause to observe that if the bond be interpreted as counsel for appellant seeks to have it interpreted then manifestly the bond would not give the sheriff the desired and needed protection. This is clear for the reason that the sheriff is not permitted to so withhold these public funds.
Under the provisions of G. S. 1935, 79-2101 the last possible date on which the sheriff could have made his return to the county treasurer on any tax warrant issued in the year 1935 would have been December 15, 1935. The deputy, of course, had no greater rights than his principal, the sheriff, to retain the public funds. The official acts of undersheriffs and deputies are the acts of the sheriff and the latter is made responsible therefor. (G. S. 1935, 19-805; Pfannenstiel v. Doerfler, 152 Kan. 479, 482, 105 P. 2d 886, and cases therein cited.) Manifestly the misappropriation of the funds by the deputy did not constitute an honest accounting to the sheriff or to the county. It follows the deputy clearly breached that portion of the bond.
It is true the bond also required the deputy to “faithfully perform such duties as may be imposed upon him by law.” While the law, as above stated, imposes the duty on the sheriff to make the re turns on tax warrants it appears the bond was executed, at least in part, in the form of a “public-officials’ bond” and it was so labeled. Strictly speaking it was not a statutory official’s bond but was a bond executed by a deputy for the public official’s, the sheriff’s, protection. Since the deputy clearly violated his duty to honestly account we need not treat the question whether he also violated the other provision of the bond.
In view of the stipulated facts we need not deal with distinctions between contracts of indemnity against liability and contracts of indemnity against loss. That is, we n'eed not determine in this case whether liability on the bond attached as soon as the deputy committed the wrongful and dishonest acts. Nor need we determine whether liability attached on the date of discovery of such acts. It is clear appellant’s cause of action accrued not later than the date on which he actually suffered loss by the payment of the shortage on February 28, 1936. (City of Topeka v. Ritchie, 102 Kan. 384, 170 Pac. 1003; Adkins v. Fry, 38 W. Va. 549, 18 S. E. 737; Zinc & Lead Co. v. Insurance Co., 152 Mo. App. 332, 133 S. W. 156; 14 R. C. L., § 23, p. 63; 21 R. C. L., § 121, p. 1080; 34 Am. Jur., Limitation of Actions, § 113.) This action was not filed until December 6, 1941, which was more than five years after appellant had actually suffered the loss. The action was therefore too late.
Appellant cites no cases in support of his interpretation of the bond. He cites only cases in support of the well-established general principle that bonds written by a surety are liberally construed in favor of the indemnitee in the event the bond is ambiguous. As previously indicated we find no ambiguity in this bond with respect to the deputy’s duty to honestly account for public funds which came into his hands during the term. If this action had been filed promptly after appellant had paid the loss resulting from the deputy’s dishonest conduct we certainly would not have held it to be a good defense for the deputy or his surety, appellee, to say that the sheriff’s cause of action would not accrue until the end of the deputy’s term of office.
We have interpreted the bond according to its terms, that is, as though the deputy actually had a term of office. The fact is he does not have a definite term of office. He is appointed by the sheriff and his appointment may be revoked at the sheriff’s pleasure. (G. S. 1935, 19-805.) We think the trial court properly interpreted the bond and the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action on a group policy of insurance issued by appellant insuring the lives of certain employees of Armour and Company. Plaintiff sued as the named beneficiary in a certificate issued, certifying that Frank James, her husband, was insured under the group policy. The case was here before (155 Kan. 377, 125 P. 2d 369). At that time the court affirmed a judgment for plaintiff rendered by the trial court on the pleadings and opening statements of counsel. Appellant filed a motion for rehearing, contending the pleadings presented a controverted issue of fact. A rehearing was granted, additional briefs were filed and the cause was reargued and a second opinion written (156 Kan. 8, 131 P. 2d 915). In that, upon a careful reexamination of the pleadings and opening statements, the court found a controverted issue of fact in this: Plaintiff in her amended petition had alleged that her husband entered the employment of Armour and Company “sometime in 1922 and continued in its employment up until about March 4, 1932, when the said Frank James was killed” from a cause, as we understand, not connected with his employment. That in defendant’s answer it was alleged: “Defendant states that said Frank James left the employ of Armour and Company on the 20th day of October, 1931. . . . Frank James was afterwards and on November 3, 1931, again employed by Armour and Company . . .” and that the insurance was discontinued “by reason of the termination of the employment of Frank James with Armour and Company on October 20, 1931.” The reply controverted this allegation of the answer. The court set aside its former opinion and reversed the judgment of the trial court. In March, 1943, the cause came on for trial by jury. Over defendant’s objection the trial court héld the burden of proof was on defendant. The jury returned a verdict for plaintiff,and answered a special question as follows:
“Did Frank James quit his job with Armour & Company on October 20, 1931? A. No.”
Judgment was rendered on the verdict, defendant’s motion for a new trial was overruled, and it has appealed, contending the court erred (1) in holding the burden of proof to be on defendant, (2) in overruling defendant’s motion for a directed verdict, (3) in limiting the issue on the question of termination of employment to one certain date, and (4) in the giving of certain instructions.
The burden of proof in a civil action is determined from the pleadings and the admissions of counsel on behalf of their clients made intentionally to clarify issues. In. its instructions the trial court summarized these as follows:
“4. In this case both parties have admitted, either in their pleadings or by statements, that the following facts are true; and the jury in their deliberations may accept said facts as established, regardless of whether or not any evidence has been introduced in the case to substantiate them:
“(a) The' execution of the master policy (group policy No. 2893-G) issued by the defendant company, and the certificate under said master group policy issued to Frank James, in which the plaintiff, Frances James, is named as beneficiary; both dated February 20, 1926; both of which have been received in evidence.
“(b) That Frank James, the insured mentioned in the certificate above referred to, died on the 4th day of March, 1932.
“(c) That Frank James, the insured mentioned in the certificate, was an employee of Armour & Company on March 4, 1932, the date of his death.
“5. The defendant in this action alleges in its answer that Frank James quit the employ of Armour & Company on October 20, 1931, and that by the terms of said certificate attached to plaintiff’s second amended petition as Exhibit ‘A’ and the provisions of said group policy attached to defendant’s answer as Exhibit ‘A,’ such insurance on Frank James was discontinued; and that said Frank James never having thereafter completed six months continuous service in the employ of Armour & Company, never became eligible for -insurance nor could he be insured under such group policy, which policy expressly provided that the defendant Metropolitan Life Insurance Company insured the lives of new employees of Armour & Company eligible to apply for insurance only upon completion of six months continuous service.
“As to these allegations of its answer, the burden of proof is upon the defendant to prove said allegations by the preponderance of the evidence; . . ."
Defendant objected to the last sentence above quoted, but to no other part of these instructions. We think the trial court properly determined that under the pleadings and admissions intelligently made plaintiff was entitled to recover unless it was a fact, as alleged by defendant, that the insured quit the employment of Armour & Company on or about October 20, 1931. That view of the trial court accords with the view of this court in its previous opinion in this case. We have examined and considered all that counsel have said on this point and the authorities cited by them,, but think no good purpose would be served by making an extended statement of the pleadings, the policy and the certificate and an analysis of the authorities cited.
At the close of the evidence defendant moved for a directed verdict in its favor and now contends the court erred in overruling that motion. Appellant contends the evidence clearly proved that the insured quit the employment of Armour and Company on October 20, 1931. Four witnesses testified for defendant, and plaintiff testified in her own behalf. The testimony of defendant’s witnesses largely pertained to the records of Armour and Company, and together with exhibits introduced was quite lengthy. We think no good purpose will be served by setting it out and analyzing it in detail. There had been some'erasures of the record, explanations of which may or may not have been satisfactory to the triers of fact, and in part depended upon the recollection of witnesses who testified to some matters which had transpired about twelve years earlier. We think the weight to be given to this evidence and to the credibility of the witnesses were proper matters to be considered by the jury.
Appellant contends the court érred in limiting the issue to the termination of employment of the insured upon the one date of October 20, 1931. In the answer defendant had alleged that the insured was “on November 3, 1931, again employed by Armour and Company at its Kansas City, Kansas', plant, and remained in such employment until December 31, 1931. That he again entered such employment on February 6, 1932, and remained in such employment until February 11, 1932. That he again entered such employment on February 27, 1932.” Appellant contends that the court should have told the jury in its instructions that if the insured quit the employment at any of the dates mentioned, that is, December 31, 1931, or February 11, 1932, the plaintiff could not recover on the policy. The difficulty with that is that the answer did not plead a quitting of the employment upon either of those dates, but simply stated facts as to the time the insured worked and the time he c[id not. The answer specifically alleged:
“. • . by reason of the termination of the employment of Frank James with Armour and Company on October 20, 1931, and insurance on the said Frank James was thus automatically terminated and this defendant released from any further liability of any kind on account thereof. That said- Frank James, never having thereafter completed six months continuous service with said Armour and Company, never became eligible for, nor could he be insured under such group policy.”
In view of this answer we think the trial court correctly held that no issue was made by the pleadings upon the question of the termination of the insured’s employment with the company as of any date other than October 20,1931.
Appellant complains of the tenth and a portion of the eleventh' instructions of the court. We have examined these instructions and considered all counsel have said about them and find no error in the instructions.
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The opinion of the court was delivered by
Hoch, J.:
Appellant was convicted of buying and receiving stolen property. He contends that the trial court erred in permitting the state to show, for the purpose of impeaching the credibility of a witness, that the witness had at one time been a ward of the juvenile court.
Conviction was upon two counts, each count alleging that the defendant had purchased several cases of butter, knowing that they had been stolen from the Jo-Mar Dairies at Salina, Kan. The principal witness for the state was Glenn Hayes, a young man not quite eighteen years old when the alleged offense occurred. In another action — with which we are not here concerned — Hayes and two sons of appellant, Leonard and Calvin Homolka, were charged with stealing the butter. We are not advised as to the outcome of that action, and this narrative implies nothing to the guilt or innocence of the accused. Leonard was twenty-one years old and Calvin about sixteen years and eight months old at the time of the alleged theft. Hayes had been an employee of the Jo-Mar Dairies and was familiar with the warehouse where the butter was kept.
It is not necessary to review the evidence at any length. Among the witnesses for the defense were the two Homolka boys above referred to and a third brother, Lawrence Homolka, nineteen years old. The testimony of the three brothers was substantially the same. They flatly contradicted the testimony of Hayes and all three testified that subsequent to his arrest Hayes had said in their presence that he had lied when he implicated the two Homolka brothers and the father in the theft. Two of them testified as to the reasons which Hayes was alleged to have given for untruthfully implicating the Homolkas.
On cross-examination of Calvin Homolka the following transpired:
“Q. You remember I asked you yesterday whether or not you had been in any trouble before? A. Yes.
“Q. And your answer was that you had not? A. I have never been arrested before.
“Q. You have been down in the juvenile court, down here, haven’t you? A. That was long ago.
“Q. Yes, but you have been a ward of the court, haven’t you?
“Mr. Norton: Just a moment.
“Q. And you were for a number of years? A. No.
“Q. How long were you a ward of the court? A. Not very long.
“Q. Why were you placed as a ward of the court?
“Mr. Norton: Just a moment.
“The Court: Sustained.
“Mr. Norton: Just a moment.
“The Court: Sustained.
“Q. When were you made a ward of the juvenile court of Saline County, Kansas?
“Mr. Norton: Objected to as incompetent, irrelevant and immaterial.
“Mr. Brettle: He said yesterday, Your Honor—
“The Court: I am going to sustain it because it isn’t the best evidence. The record is right down in the juvenile court downstairs.”
Upon rebuttal the state called the judge of the juvenile court, who testified as follows:
“Q. I will ask you to state whether or not you have any record of Calvin Homolka being made a ward of the juvenile court of Saline County, Kansas, on or about September, 1937? A. In December. October.
“Q. October. October, 1937?
“Mr. Norton: If Your Honor please, that is objected to as incompetent, irrelevant and immaterial. It is a collateral matter. Those boys admitted they had been wards of the juvenile court.
“The Court: Don’t start to argue. Make your objection.
“Mr. Norton: That is the objection.
“The Court: Objection overruled, but gentlemen of the jury, this matter is being solely for the purpose of showing the credibility of the witness, Calvin Homolka. It has nothing whatever to do with the guilt or innocence of the defendant.”
Appellant contends that it was error to permit the state to show, for any purpose, that the witness had been at one time a ward of the juvenile court. He relies principally upon section 38-415 of G. S. 1935, being a part of the juvenile court act — which provides:
“This act shall be liberally construed, to the end that its purposes may be carried out, to wit, that the care, custody and discipline of a child shall approximate, as nearly as may be, proper parental care; and in all cases where Dhe same can be properly done, that a child may be placed in an approved family home, by legal adoption or otherwise. And in no case shall any proceedings, order or judgment of the juvenile court, in cases coming within the purview of this act, be deemed or held to.import a criminal act on the part of any child; but all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.” (Italics supplied.)
It must first be noted that prior to the admission of the juvenile court record, to which appellant objects, Calvin Homolka, called as a witness by the defendant, had testified, without objection, that he had been a ward of the juvenile court. When the witness was asked why he had been made a ward of the court appellant objected and the objection was sustained. Upon being asked when he had been made a ward objection was again sustained, on the ground that the court record was the best evidence on that point. It thus appears that while appellant now complains of admission of the court record tq show the witness had been a ward of the juvenile court he had already permitted the witness to so testify, without objection.
Section 38-415 makes clear that no proceedings “within the purview of this act” (the juvenile court act) shall be held to import a criminal act on the part of a child. It is the purpose of the juvenile court act to treat juvenile offenders not as criminals but as wards requiring parental care. Many expressions of this court, in upholding that act, have attested our sympathy with that fine purpose and with a liberal construction of the act in order to effectuate its intent. But the section relied upon by appellant simply declares that proceedings within the purview of the juvenile court act shall in no case be regarded as criminal in character or to import a criminal act on the part of a child. It does not deal with the question of admissibility of evidence.. If the juvenile court record was improperly admitted it was improper upon grounds other than specific prohibition by section 38-415.
Appellant next calls our attention to the statement in Corpus Juris (70 C. J. 853) that “conviction as a delinquent child cannot be shown-for purposes of impeachment under a statute prohibiting such conviction from being used as evidence for any purpose except in subsequent cases against the same child under the statute.” (Italics ours.) The statement applies only to statutes which specifically prohibit conviction as a delinquent child from being used as evidence for any purpose (except as provided) and the examination of the cases cited in the foot-note in support of the statement shows that statutes with such specific provisions were involved. We have no such statute. It is true that section 60-2801, G. S. 1935, provides that conviction of a crime may be shown for the purposé of affecting the credibility of a witness and it may be argued that by inference the statute makes inadmissible a showing of juvenile delinquency, since such finding imports no criminal act under our juvenile court law. However, we do not find it necessary here to exámine at length the general question of what may be shown in impeachment of the credibility of witnesses.
We conclude that the admission of the juvenile court record did not constitute reversible error, for two reasons: First, that the witness had already testified, without objection from appellant, that he had been a ward of the juvenile court; and second, because we cannot say that admission of the record so prejudiced appellant’s rights as to require reversal. Two brothers of Calvin testified substantially as he did. The state offered no evidence to impeach their credibility. It may also be noted that appellant, for the purpose of impeaching the credibility of the state’s principal witness, showed that he too had been a ward of the juvenile court. That record was gone into rather extensively by^ the defense. Accordingly, the jury had these facts, on both sides, before it. Not only does the statute (G. S. 1935, 62-1718) place upon us the duty of disregarding errors and defects in the trial proceedings unless it appears that substantial rights have been adversely affected thereby, but the rule has been applied in so many cases that citations are unnecessary. (See Hatch-er’s Digest, Appeal and Error, §§ 509, 522, 536.)
Appellant also complains in his brief of statements of the prosecuting attorney in argument to the jury. But they are not assigned as error nor does the record disclose that appellant objected to them at the time or that he urged their impropriety on motion for a new trial. When the statements were made appellant only asked that the court again instruct the jury that the juvenile court record had been admitted solely for the purpose of affecting credibility. The court then said “I don’t have to emphasize that again.”
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted by three prospective heirs at law against their father and two other prospective heirs and their wives to have certain deeds executed in 1930 to five of the six prospective heirs declared valid and to have certain deeds executed by the father in 1941 to three of the same prospective heirs declared invalid, or in the alternative for a decree that the parties take as heirs under the law of intestate succession. Defendants relied on the 1941 deeds and prevailed. Plaintiffs appeal.
The grantors in the 1930 deeds were Daniel Kelley and Ida May Kelley, the parents of the principal parties to the action. Ida May Kelley died intestate in March, 1933. No administration was had on her estate. The instant action was filed May 20, 1941. The testimony of the father, Daniel Kelley, was taken in this case by appellants in September, 1941, before the same district court that tried the instant case in order that his testimony might be preserved. He died intestate July 14, 1942, at the age of eighty-eight years. The original plaintiffs were Claude F. Kelley, Emma J. (Kelley) Tripp, and C. W. Kelley, also referred to as Clarence Kelley. No deed was made to the latter in 1930 or 1941. The reason for not executing a deed to him will appear later. The plaintiff Claude F. Kelley withdrew from the case as a plaintiff while the action was pending for reasons to be stated later. Opal Stull, a granddaughter, entered the case as a plaintiff later when attention was called by defendants to the fact there was a defect of parties. The defendants were the father, Daniel Kelley, and two sons, George William Kelley and Charles W. Kelley, and their wives. We shall hereafter refer to the defendant, George William Kelley, as George.
The general contentions of appellants as reflected by their second amended petition, in substance, were:
Separate deeds were executed in 1930 by Daniel Kelley and Ida May Kelley, his wife, to five children of the grantors, that is, to all of the children except C. W. Kelley; the 1930 deeds had been placed in the possession of A. G. Mead, an attorney, by the grantors with instructions to record them upon the death of the survivor of the grantors; A. G. Mead died April 21,1933; C. R. Hubbard, an officer in The Guaranty State Bank of Beloit, was appointed administrator of Mead’s estate and took charge of the deeds and placed them in that bank for safekeeping and to carry out the duties of Mead according to the instructions given to Mead; the defendant George and other defendants at his request waited until Daniel Kelley was eighty-eight years of age and until his wife had died and Daniel Kelley was incompetent to understand the nature and character of transactions involving the distribution of his property before they obtained the 1941 deeds; after Daniel Kelley had become so incapacitated defendants unlawfully and fraudulently obtained the 1930 deeds from the bank and destroyed them on or about April 10, 1941; on the latter date and sometime prior thereto George had voluntarily assumed management and control oyer the business affairs of his father; the father was under his dominion and control and a confidential relation existed between them; without independent advice the father was induced by George and his attorney, William N. Tice, to execute and deliver the 1941 deeds without understanding the effect thereof; the 1941 deeds were without consideration and were fraudulently obtained; under the agreement had by the father and .mother and the heirs prior to the execution of the 1930 deeds each child receiving a deed to 160 acres of land was required to pay to Emma J. Kelley Tripp $1,000 which entitled her to the sum of $4,000 in addition to the city property conveyed to her by the 1930 deed.
Appellees’ contentions, as reflected by their answer, in substance, were:
The 1930 deeds were executed but were placed in the hands of Mead, an attorney, merely for safekeeping and were subject to recall by the grantors at any time; there was no such agreement between the father and mother with respect to the 1930 deeds as pleaded by appellants but .if there was it was in violation of the statute of frauds; there was no valid delivery of the 1930 deeds; William N. Tice was not attorney for George or for any other defendant prior to the commencement of the instant suit; (this denial was made under oath) the father was not mentally incompetent to understand the nature and effect of the 1941 deeds; no undue influence was exercised over him with respect thereto'; when the father made certain' changes in the property conveyed by means of the 1941 deeds and as a part of that same transaction and on the same date he entered into a written contract with George whereby the latter became bound by the obligations it imposed upon him to other heirs (these things are set forth in the findings of fact to be noted later and need not be narrated here); the plaintiffs, Claude F. Kelley and Emma J. Tripp had accepted payments under the 1941 contract and George had canceled a note of Emma J. Tripp pursuant to the 1941 contract and they were estopped to deny the validity of that contract; George was ready, able and willing to perform all the remaining obligations to other heirs required of him under that contract.
After the 1941 contract between the father and George was attached to defendants’ supplemental answer and it disclosed the plaintiff, Claude F. Kelley, was actually to receive such portion of his father’s estate thereunder as he considered proper and right Claude F. Kelley formally withdrew from the case as a plaintiff.
The remaining original plaintiffs filed a reply in which they denied the existence of the 1941 contract and alleged that if it was made it was void by reason of the father’s mental incapacity. They also .alleged Wi-lliam N. Tice was attorney and agent for George at all times involving the 1941 transaction and further alleged other factual matters designed to avoid the effect of the 1941 contract, the terms of which .averments need not be noted now.
Opal Stull, the granddaughter and only child of Averta M. Kelley Birt, deceased, with leave of court, filed a petition in which she adopted and ratified the second amended petition of the plaintiffs and described the quarter section of land which the 1930 deed conveyed to her mother. She further, in substance, alleged:
When she learned George was recording the 1941 deeds she recorded the deed to her mother on February 8, 1941 (she did not state how she obtained that deed); promptly after recording that deed an action purported to have been brought by her grandfather was filed against her, her husband, Charles W. Stull, and her father, Harry Birt, to set aside the recorded deed; the action was not in fact filed by her grandfather; her stipulation of settlement filed in that action was void for the reason that when she made the settlement she did not know the action in fact had not been brought by her grandfather; she was tendering back the land she received in such settlement.
To the petition of Opal Stull defendants filed an answer and cross petition in which they, in substance, alleged:
The deed to Opal’s mother was never delivered to Opal but Opal in some manner, without the consent of her grandfather, obtained possession thereof; the grandfather, the grandmother having died in 1933, filed an action to set aside the recorded deed to remove the cloud from the title and to quiet title thereto in himself; Opal Stull was represented by counsel in that action and made the settlement with the advice of counsel (the contract of settlement was attached to defendants’ pleading); Opal Stull had at all times demanded, received and retained the rents and profits from the land and had at no time offered or tendered the rents or profits therefrom to anyone. In Opal Stull’s reply she, in substance, alleged:
Her grandfather handed her the 1930 deed which had been made to her mother; her grandfather was not the real plaintiff in the action against her, but George had fraudulently caused the action to be brought in order to obtain possession of the land; she made the settlement to avoid difficulty with her grandfather who was mentally incompetent to transact business; the settlement was fraudulently obtained and was void.
The reply of Cpal Stull also denied other factual matters alleged in defendants’ answer and cross petition touching financial relations of the parties. These subjects are covered in the findings of fact and need not be detailed here.
■ From this rather general summary of the voluminous pleadings it is clear two primary issues were presented. They were, first, whether there was a valid delivery of the 1930 deeds, and second, whether the 1941 contract between George and his father and the 1941 deeds executed at the same time and as a part of the same transaction. were valid. The action was tried by the court and it made the following findings of fact and conclusions of law:
“1. Daniel Kelley and his wife, Ida May Kelley, had six children, whose names were as follows: George W. Kelley, Charles W. Kelley, Clarence W. Kelley, Claude F. Kelley, Emma J. Tripp, [and] Averta Birt. These children were all living on September 6, 1930.
“2. On September 6, 1930, Daniel Kelley, then being the record owner of all of the real estate involved in this action, except the town property which is described in (a) of this finding, which was then in the name of Ida May Kelley, but had been deeded by her in 1926 to Daniel Kelley, which deed was recorded February 18, 1941, went with his wife to the office of A. G. Mead, an attorney and notary public at Beloit, and employed him to prepare for them the deeds hereinafter listed, which deeds describe all of the real estate owned by the said Daniel Kelley and Ida May Kelley. On that date the deeds were executed by Daniel Kelley and his wife and acknowledged by them before .Mr. Mead as a notary public. These deeds were as follows:
(a) To Emma Jane Kelley Tripp . . *
(b) To George William Kelley . . .*
(c) To Charles Wesley Kelley . . .*
(d) To Claude F. Kelley . . .*
(e) To Averta Birt . . .*
[* After the name of each grantee appears a description of property covered by deed to such grantee.]
“Hereafter in these findings these deeds will be referred to as the 1930 deeds.
“3. No deed was made to the son, Clarence W. Kelley, for the reason that he had acquired and owned the southwest quarter (SW %) of section twenty-four (24), township six (6), range eight (8), Mitchell County, Kansas, through the assistance of his father, Daniel Kelley.
“4. Ida May Kelley died on the 3rd day of March, 1933. Averta Birt died intestate in May, 1938, and her estate was not administered upon. She left as her sole heirs, her husband, Harry Birt, and her daughter, Opal Stull. Daniel Kelley died intestate June 14, 1942, and his estate is being administered upon in the Probate Court of Mitchell county, Kansas.
“5. When the 1930 deeds had been prepared and acknowledged, they were left with Mr. Mead without any instructions to deliver them to any person. The grantors retained control over them and claimed the right to withdraw them for the reason they were not entirely satisfied with the disposition of their property by such deeds, this was especially true of the deed to Claude F. Kelley, and the grantor, Daniel Kelley, believed that at any time he had a right to recall the deeds from the custody of Mr. Mead. None of these deeds was ever received by any of the grantees named therein, and none of them was ever recorded, except the deed to Averta Birt, and this was recorded after her death by her daughter, Opal Stull, under the circumstances hereinafter found.
“6. For safekeeping Mr. Mead placed all of these 1930 deeds in his safety deposit box in the Guaranty State Bank at Beloit, where they were found after his death, which occurred April 21, 1933. Each was in a separate envelope, on which was written by A. G. Mead only the name of the grantee in the deed. There was no written notations by Mr. Mead or anyone else on or in the envelopes indicating the ultimate disposition of any of the deeds.
“7. On or about May 6, 1937, Daniel Kelley with his daughter, Averta Birt, and his son, George W. Kelley, called at the bank at which time Daniel Kelley asked for the Claude F. Kelley deed stating he desired to make some changes in it. At the request of the bank, Daniel Kelley, Averta Birt and George W. Kelley executed a written receipt or certificate and in which they agreed to indemnify the bank against any loss or damage on account of the delivery of the Claude F. Kelley deed to said Daniel Kelley. This instrument is introduced in evidence as plaintiffs’ Exhibit 4.
“8. On June 21, 1939, Daniel Kelley again appeared at the bank with his son, George W. Kelley, and his attorney, Wm. N. Tice, and requested the delivery to him of the remaining 1930 deeds and the envelopes in which they were enclosed. They were delivered at that time to Daniel Kelley, who signed a receipt therefor, witnessed,by-George; William ’Kelley, such receipt being introduced in evidence as plaintiffs’ Exhibit 12. The; receipt, However, included the deed to Claude F. Kelley, which already had been delivered to Daniel' Kelley as hereinbefore found.
"9. The 1930 deeds all contain a provision reserving to the grantors for life use of all income of the property described in each deed.
“10. Some time prior to February 18, 1941, Opal Stull obtained possession of the 1930 deed to her mother, Averta Birt, who was then dead. The manner of her obtaining possession is not definitely disclosed by the evidence, but it was without the knowledge and consent of Daniel Kelley, and when he learned that' it was missing, and learned from his daughter, Emma Tripp, that Opal Stull had possession of it, he'bécame quite angry and instructed his attorney, Wm. N. Tice, to use any means necessary to recover it.
“11. In response to this request, Wm. N. Tice and George W. Kelley went to Opal Stull and demanded the, deed. She refused to return it and refused to state how she obtained it. Opal Stull caused this deed to be recorded without the consent of Daniel Kelley on February 18, 1941, at 3:00 p.m. Acting under instructions of Daniel Kelley to recover this deed, Wm. N. Tice intended to bring suit immediately in the District' Court of Mitchell County, Kansas, to rescind the deed, but because of his absence from town he requested Leon W. Lundblade, a practicing attorney in Beloit, Kansas, to bring the suit for him, and the suit was brought' on February 19, 1941. The suit was against Opal Stull and her husband and Harry Birt, the surviving husband of Averta Birt.
“12. On or shortly before February 27, 1941, Opal Stull went to the home of Daniel Kelley in an effort to negotiate a settlement of the controversy over this deed. They did arrive at a settlement. To make the settlement effective, Opal Stull and Mr. Tice went to the office of A. E. Jordan, who then represented Opal Stull, and a written stipulation was entered into in the case of Daniel Kelley vs. Opal Stull, et al., which was signed by counsel for respective parties and also signed by Opal Stull personally on February 27, 1941. This stipulation was filed March 18, 1941, in said case and pursuant thereto and on the same date the court approved the stipulation and dismissed the case. This stipulation was introduced in evidence as defendants’ Exhibit 3.
“13. Pursuant to this settlement, Opal Stull and her husband and her father, Harry Birt and his then wife, Etta Birt, made, executed and delivered their quitclaim deed to Daniel Kelley covering the north one-half (N %) of the southwest quarter (SW 14) and the southwest quarter (SW 14) of the southwest quarter (SW 14) section thirteen (13), township six (6), range eight (8), Mitchell County, Kansas, said deed being recorded on April 18, 1941, and Daniel Kelley made, executed and delivered to Opal Stull his quitclaim deed conveying to her the southeast quarter (SE 14) of the southwest quarter (SW 14) of said section thirteen (13) which deed was recorded by her.
“14. Ever since this exchange of deeds, Opal Stull has retained possession of the forty acres so conveyed to her, has received and retained the rents, issues and profits thereof, and had never offered to return such income, rents, issues and profits to any person, and never offered to reconvey the property to any person until after she impleaded in this action. She has never executed or delivered any deed to anyone covering this forty acres and is still the owner thereof.
“15. For a long time prior to* April 10, 1941, Wm. N. Tice acted as legal counsel for Daniel Kelley, and they had many consultations with reference to the execution of new deeds by Daniel Kelley.
“16. Some time in March, 1941, Wm. N. Tice at the request of Daniel Kelley, prepared the deeds hereinafter referred to as the 1941 deeds and left them at the home of Daniel Kelley. The execution of these deeds was the subject of consultation and advice until and including April 10, 1941.
“17. On April 10, 1941, Mr. Tice at the request of Daniel Kelley took L. E. Foote, a notary'public^ with him to the home of Daniel Kelley and on that date, Daniel Kelley executed the following deeds referred t-o in these findings as the 1941 deeds:
(a) To Emma Jane Kelley Tripp . . .*
(b) To George William Kelley . . .*
(c) To George William Kelley . . .*
(d) To George William Kelley . . .*
(e) To Charles Wesley Kelley . . .*
[* After the name of each grantee appears a description of property covered by deed to such grantee.]
“18. Before these deeds were signed by Daniel Kelley and acknowledged by him before the Notary Public, they were all read over to him fully by his attorney, Wm. N. Tice.
“19. These 1941 deeds, with the exception of the one to Emma Tripp, were on the day of their execution delivered by Daniel Kelley to George W. Kelley in the presence of Wm. N. Tice, who then took them and caused them to be recorded.
“20. The 1941 deed to Emma J. Tripp was delivered by Daniel Kelley to Wm. N. Tice to be delivered to Mrs. Tripp upon the condition that she sign the agreement, which was signed by Daniel Kelley agreeing in substance that Daniel Kelley have the income from the property during his lifetime, such provision not being included in the deed itself. This deed was never delivered to Emma J. Tripp because she refused to sign the agreement, but at the trial, Daniel Kelley then being deceased, the defendants offered the deed to her and her counsel.
“21. In connection with the preparation of the 1941 deeds, Mr. Tice prepared an agreement which was introduced in evidence as plaintiffs’ Exhibit 1 between Daniel Kelley and George William Kelley. This agreement in substance required George William Kelley to cancel all indebtedness of Daniel Kelley due him whether outlawed or not, and further required him to make certain payments of money to Claude F. Kelley, to Emma Tripp, and to Charles Wesley Kelley. George William Kelley has fully made the payments of money required by him thereunder, so far as they are now due, and stands ready and willing to pay such balances as they fall due, but has not fully paid the money due Charles W. Kelley, but stands ready to do so. Under this agreement, Emma J. Tripp received from George William Kelley the sum of One Hundred Dollars (8100.00), has retained the same for her own use and benefit and has not made any offer to return the same to any person,'until she filed her reply in this case.
“22. On October 2, 1942, the plaintiff, Claude F. Kelley, filed herein his written withdrawal as plaintiff in this action and did not personally appear at the trial. His attorneys of record at the trial requested the withdrawal of Claude F. Kelley’s withdrawal from the case.
“23. Daniel Kelley had ample mental capacity to transact or manage his business and did transact or manage practically all of his business until the date of his death. He made deposits in the bank, signed checks withdrawing funds, collected rents from George W. Kelley, as tenant, looked after and managed his own household, ordered and paid for his groceries and other-household supplies, paid his taxes and transacted or managed the transaction of such business as is usually transacted by a retired farmer, he borrowed at intervals money from the bank on his own note, paid such loans by his own checks, the last one being given on December 19, 1940. On some occasions checks were drawn on his account by George' W. Kelley, beginning about 1914, and by Averta Birt in 1917. He did have confidence in his son, George W. Kelley, and frequently consulted with him on business affairs, but he was a man of strong will and exercised his free and independent judgment in such ultimate decisions.
“24. On April 10, 1941, and at all times prior thereto, Daniel Kelley was possessed of mental capacity to know, realize and appreciate the value, extent and nature of his property, the names of his children and his grandchild, Opal Stull, and knew and appreciated the claims of such children and grandchild upon his property and bounty. He was a man of strong will and not easily influenced by others. When he executed the deeds and contract with George' W. Kelley on April 10, 1941, he was' of sound mind. He had the mental capacity to understand and execute all of said documents; was not under duress or restraint, and did not act without independent advice, having for his counsel and attorney, Wm. M. [N.] Tice. He fully understood the effect of the deeds and contract and never made any effort to revoke or rescind any of said instruments.
“25. Wm. N. Tice never acted as attorney or agent for George William Kelley until the commencement of this suit, after which he represented as counsel herein, the defendant, George W. Kelley, and also the defendant, Daniel Kelley, until his death.
“26. Daniel Kelley could write his own name, but otherwise he was unable to read or write.
“27. George W. Kelley kept no books of account of his dealings with or for his father, but he kept checks, weights and other original memoranda.
“28. The purpose of Daniel Kelley in executing the 1941 deeds was to make complete disposal of his land and property belonging to him among his children.
“29. The deeds of Daniel Kelley dated April 10, 1941, in which George William Kelley was grantee conveyed the land described in the deeds to the grantee, George William Kelley, subject only to the obligations assumed by George William Kelley in a written contract executed at the same time that the deeds were executed, which obligations not liquidated by George William Kelley are found to be an equitable lien on the land he received under such deeds.
“Conclusions op Law.
“1. The 1930 deeds passed no title to the land described therein to the grantees named in said deeds.
“2. The plaintiff, Claude F. Kelley, cannot now deny the validity of the 1941 deeds.
“3. The plaintiff, Emma J. Tripp, cannot now deny the validity of the 1941 deeds.
“4. The defendant, Opal Stull, cannot now deny the validity of the 1941 deeds.
“5. All controversies between Daniel Kelley and Opal Stull were fully adjudicated in case number 7434, entitled Daniel Kelley vs. Opal Stull, Charles W. Stull and Harry Birt, in the District Court of Mitchell County, Kansas, by a stipulation dated February 27, 1941, signed by Wm. N. Tice and Leon W. Lundblade, attorneys of record for Daniel Kelley, and A. E. Jordan, attorney of record for Opal. Stull, Charles W. Stull and Harry Birt, and also signed by Opal Stull, personally, filed in the District Court of Mitchell County, Kansas, on March 18, 1941, which was approved by the court and the case dismissed March 18, 1941, and no appeal has been taken.
“6. Emma J. Tripp is entitled to receive and retain the deed to her executed in 1941 and tendered to her in this case, which deed transfers to her the title to the land described in the deed.
“7. Clarence W. Kelley is not entitled to recover anything in this action.
“8. Emma J. Tripp is not entitled to recover anything in this action except the deed to the town property executed in 1941.”
Appellants moved to have certain findings of fact modified and to have numerous other findings set aside on the ground they were contrary to and were not supported by competent evidence. They also requested numerous other findings of fact and conclusions of law. They moved to have each and all of the conclusions of law based on the findings which were made set aside for the alleged reason they were contrary to law, and finally moved for a new trial. These various motions were overruled.
The record discloses a sharp conflict in the testimony on every vital issue in the case and also on most of the incidental matters. Some of the findings made well may have resulted in part from a failure of the court to believe portions of the testimony of certain witnesses. The testimony admitted was ample to support every finding made. On review we, of course, are concerned only with testimony which supports or tends to support findings made and not with testimony which is contrary thereto. The conclusions of law are fully supported by the findings which were made.
Appellants complain of the admission of testimony concerning certain conversations with deceased persons and also concerning transactions between Daniel Kelley, deceased, and his attorney, William N. Tice, in 1941 when the 1941 contract and the 1941 deeds were executed. Appellants contend the latter transactions and communications between an attorney and his client are privileged communications and that the attorney was not a competent witness to testify concerning them. On the trial of this case appellants themselves adduced the testimony of Daniel Kelley, deceased, which they had taken during his lifetime in order to perpetuate it. Daniel Kelly had testified freely concerning his communications and transactions with his attorney, William N. Tice, relative to the 1941 contract and the 1941 deeds made pursuant thereto. Daniel Kelley, the principal, therefore waived his right to have those communications with his attorney protected as privileged and confidential. Furthermore appellants had elicited that testimony. The later testimony of his attorney during the trial touching those same mat ters was therefore not incompetent. The attorney’s testimony was competent for other reasons but it is unnecessary to pursue them.
This action was tried by the court. There was no jury to be prejudiced. We have carefully examined this record and if any other testimony concerning conversations with any deceased person could be said to have been incompetent there was ample competent testimony when considered in connection with all the circumstances to support the findings the trial court made. Under these circumstances we would not be justified in reversing the judgment.
Appellants also urge testimony of various nonexpert witnesses was improperly admitted on the subject of Daniel Kelley’s mental capacity to transact business in 1941. Appellants’ own conduct with Daniel Kelley clearly tended to show that they believed him mentally competent to transact business. Moreover, these nonexpert 'witnesses were qualified to testify concerning their judgment of Daniel Kelley’s mental capacity on the basis of what they personally had observed from their experiences with him. (Fish v. Poorman, 85 Kan. 237, 116 Pac. 898; Mingle v. Hubbard, 131 Kan. 844, 851, 293 Pac. 513; Gorman v. Hickey, 145 Kan. 54, 64 P. 2d 287.)
We find nothing in the record to justify a reversal. The judgment is affirmed.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal presents a question of pleading and suggests a related question of procedure.
Plaintiff brought suit against defendant for a divorce. To qualify himself to maintain the action and to invoke the court’s jurisdiction he alleged:
“That he is a resident of Sedgwick county, Kansas and that Wichita is his post office address; that he has been a resident of the state of Kansas for more than one year prior to the filing of the petition and at the time of the filing of the petition is a bona fide resident of Sedgwick county, Kansas; that the defendant, Marietta Leigh is a resident of Sedgwick county, Kansas and Wichita is her post office address;”
With the particular grounds on which the action was predicated we have no present concern.
Defendant demurred to plaintiff’s petition on the ground that it showed on its face that the court had no jurisdiction of the defendant nor of the subject matter.
The trial court first overruled -this demurrer, but with consent of counsel that ruling was set aside, and plaintiff was given leave to amend the above quoted paragraph of his petition by interlining therein the words “an actual in good faith resident,” — for whatever additional potency those words might have, in respect to his original allegation that he had been a resident of the state of Kansas “for more than one year prior to the filing of the petition,” etc. Upon this agreement of court and counsel, defendant’s demurrer to the original petition was sustained; plaintiff was given leave to amend accordingly, which was done instanter; and defendant was given fifteen days to plead.
At that stage of the proceedings defendant brought this appeal, specifying errors, viz.:
“1. The trial court'erred in granting leave to the plaintiff to amend his petition by inserting the words ‘an actual resident in good faith.’
“2. The trial court erred in not dismissing said case.”
In this specification of error we discern no question for appellate review. Certainly a ruling on a motion to amend a pleading, whether favorable or unfavorable, presents no question for appeal, at least until after the action has proceeded to judgment. (Bank v. Badders, 96 Kan. 533, 152 Pac. 651; Eureka B. & L. Ass’n v. Greenwood Hotel Corp., 152 Kan. 175, 183, 103 P. 2d 46. And see Civil Code, § 138, G. S. 1935, 60-757.)
On the error specified on the trial court’s failure to dismiss the action, no such motion to dismiss was filed; and ordinarily a trial court is under no duty to dismiss on its own motion.
What the appellant is really driving at in this appeal is shown in her brief, wherein she quotes the statute, G. S. 1935, 60-1502, which among other matters prescribes that the plaintiff in an action for divorce must plead (and prove) that he has been an actual resident in good faith of the state, for one year next preceding the filing of his petition. Defendant now argues that the few words plaintiff interlined in his petition as stated above did not cure the defect at which defendant’s demurrer had been directed. The record does not show that this point was ever clearly presented to the trial court (Livingston v. Lewis, 109 Kan. 298, syl. ¶ 3, 198 Pac. 952), nor that any final order was made thereon which would present a question for appellate review.
. The appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, J.:
In this action plaintiff seeks to recover damages against the city of Kansas City for personal injuries alleged to have been sustained by her when she stepped upon the lid of a manhole in a catch basin constructed and maintained by the city. The defendant’s demurrer to plaintiff’s evidence was overruled and it elected to stand on such demurrer without offering any evidence in support of defenses set forth in its answer. The appeal is from the order overruling the demurrer to the evidence and from the judgment rendered by the trial court upon the verdict returned by the jury in favor of plaintiff.
Since a proper determination of the issues depends upon the sufficiency of the evidence to establish liability of the defendant city it will be necessary to state the controlling facts at some length.
Many years ago the street railway company obtained a franchise from the city of Kansas City and proceeded to lay tracks on its private right of way.in an easterly and westerly direction, over which it operated its streetcars. The franchise provided that if at any’time the city desired any part of the right of way for use as a street or streets, the company would waive all claims for damages by reason of the taking thereof, and when só taken or otherwise acquired the general provisions of the franchise as to paving and all other matters as to the improvement of streets would apply. Some time later the city took over and occupied a twelve-foot strip of the right of way on each side of the streetcar track, also an additional portion thereof lying adjacent to and directly south of the south twelve-foot strip so appropriated on which to construct and maintain the catch basin herein referred to. The record is not entirely clear on the point but it appears after such action the city used the twelve-foot strip on each side of the railroad track as a street and that at the time of the accident here in controversy, and for a long time prior thereto, such street was known as Stewart avenue and also Chelsea Park trafficway. The record is silent as to the condition of the street and the manner in which the city maintained it until about ten years prior to the date of the institution of the instant action. At that time the city paved the street on each side of the streetcar track and in addition constructed the catch basin at the southwest corner of the intersection of Stewart avenue and an alley running north and south between Twelfth and Thirteenth streets, which streets also run in the same direction and intersect Stewart avenue which runs in an easterly and westerly direction, and continued to maintain such street and catch basin from that time up to and including the date of the accident. The space between the streetcar tracks in the center of Stewart avenue is not paved nor is there any sidewalk on either the south or north sides of such street for use by pedestrians.
The catch basin as constructed and maintained by the city, although not accurately described, either in the pleadings or in the evidence, can be depicted from photographs which were a part of the record, as a solid concrete surface, place, or slab, approximately 4 to 6 feet in length and 2 to 3 feet in width, located adjacent to the south curbing of the street and flush with such curbing both perpendicularly and horizontally, in the center or middle of which surface was located a round manhole covered by what is commonly known as a manhole cover or lid. It is conceded such catch basin was constructed for drainage purposes.
■ On the evening of October 5, 1941, at about 9:30 the plaintiff and her sister who had been visiting a neighbor in the community were returning to plaintiff’s home. They were walking east on the paved portion of Stewart avenue between the streetcar track and the south curb line close to the south curbing. Shortly before they reached the intersection of the alley and the avenue their attention was called to an automobile approaching from the west in the same direction they were traveling and just as such vehiclé was about to reach them, and to avoid being hit by it, the plaintiff stepped from the paved portion of the street upon the curbing and then onto and upon the concrete surface of the catch basin. While walking across this surface she stepped upon the lid covering the manhole, the top of which was level with the other surface portions of the slab. The lid tilted as she placed her weight upon it so that her left foot and leg slid from the surface into the manhole where she sustained the injuries which are the basis of'the action involved in this appeal.
At the trial plaintiff’s evidence in addition to showing the facts heretofore related detailed the manner and circumstances under which plaintiff was injured, the extent of her injuries and the defective condition of the catch basin together with the length of time it had existed and the knowledge of the city regarding it. A narration of all facts disclosed by such evidence will not be required but such as are important will be more specifically referred to as we proceed with the consideration of this appeal.
Appellant’s demurrer to the evidence was based upon three grounds, each of which is urged here in support of its contention the overruling of its demurrer was erroneous. -In our consideration of the questions presented it must be remembered the rule to be followed is that recently stated in Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669:
“In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and, if so considered, there is any evidence which sustains the' plaintiff’s case, the demurrer should be overruled.” (Syl. ¶ 1.)
And reiterated in Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686; Roddy v. Hill Packing Co., 156 Kan. 706, 137 P. 2d 215; Gilmore v. Kansas City, 157 Kan. 552, 554, 142 P. 2d 699, and Waugh v. Kansas City Public Service Co., 157 Kan. 690, 696,143 P. 2d 788.
It is first urged that the demurrer should have been sustained because the catch basin causing the injury was maintained not as a part of the street or sidewalk which pedestrians traveled but as a part of the sew’er system and hence was a governmental function, by reason of which the city was relieved of any liability for any negligence in the maintenance thereof. In support of this contention appellant cites many well-considered cases, including Foster v. Capital Gas & Electric Co., 125 Kan. 574, 578, 265 Pac. 81, where this court in its opinion said:
“The construction and maintenance of a sewer, in our opinion, is governmental as distinguished from ministerial or proprietary. We believe it the better and more reasonable rule to hold that (except in injuries arising from defects in streets or highways), the municipality is not liable when engaged in performing governmental functions.” (p. 578.)
The rule is a sound one and has been followed by us in more recent decisions. The trouble with appellant’s position is that the facts as disclosed by the evidence do not bring this case within the rule announced in those decisions.
The catch basin where appellee suffered her injury was constructed by the city as a part of the street on land which it had appropriated from the right of way of the street railway company for use as a street. The concrete slab where the manhole was placed was adjacent to it. A portion thereof served as a part of the street curbing itself and was used by the city for that purpose. It was put there originally and at the time of the accident was maintained by appellant, not for sewer purposes as that term is commonly used, but for draining off surplus water and disposal of debris which of a certainty would accumulate on a street constructed as was this one. True enough, it was connected up with the appellant’s sewer system but in our opinion that fact cannot be held to overcome the circumstance that it was placed and remained there as an incident to the proper maintenance of the street itself. The manner in which it was constructed, its proximity to the street, its use as a portion of the street curbing and other conditions herein referred to make it impossible for us to say where its use for street purposes ceased and when its function as a sewer began. That a city rests under a postive legal duty to keep its streets, sidewalks and crosswalks in a condition reasonably safe for their intended use is too well established to require extended citations. (See Blakenship v. City of Caney, 149 Kan. 320, 87 P. 2d 625; Hack v. City of Pittsburg, 145 Kan. 383, 65 P. 2d 580; Marley v. Arkansas City, 135 Kan. 688, 11 P. 2d, 704; Rose v. City of Gypsum, 104 Kan. 412, 420, 179 Pac. 438.) In Crawford v. City of Wichita, 141 Kan. 171, 39 P. 2d 911, this court held that a city was liable for injuries sustained by reason of a defective manhole located in a street over a storm sewer. Under the circumstances of this case the fact the catch basin was not in the center of the street, but was located adjacent thereto on land owned by the municipality does not alter the rule and the city was as liable for its defective condition as if it had been located in the center or some other part of the street. It follows the trial court’s ruling on the first ground of the demurrer was proper.
Since we hold the catch basin was in fact a subordinate part of the street, and an incident to its proper maintenance it becomes unnecessary for us to discuss the 'duty and liability of the city as to conditions beyond the limits of the street proper which affect the safety of pedestrians. It is, however, interesting to note there may be situations where the municipality is liable for dangerous conditions existing adjacent to its public streets and thoroughfares even though such conditions may have been caused by private persons and without affirmative action on the part of such municipality. (Kaiser v. City of Wichita, 150 Kan. 103, 90 P. 2d 1109; Durst v. Wareham, 132 Kan. 785, 297 Pac. 675; see, also, 25 Am. Jur. 814, §531.)
The next contention is the demurrer should have been sustained because the city, had no notice, either actual or constructive, of the existence of any defective condition of the catch basin, the manhole or the covering thereof. That the city must have actual or constructive notice of the defective condition of a street cannot be disputed. (See Blankenship v. Kansas City, 156 Kan. 607, 135 P. 2d 538, and Durst v. Wareham, supra.) What did the evidence disclose? There was an abundance of testimony to the effect the injuries resulted when appellee stepped upon the manhole covering, also that such covering was defective. As to notice on the part of the appellant there was evidence to the effect the defective condition of the lid had existed for as long a time as two years prior to October 5, 1941, and that many persons knew of the condition. Passing that, one witness, S. W. Austin, stated he had lived in the vicinity since 1923 and that to his recollection there had never been a solid lid on the manhole. Irrespective of the effect to be given the other testimony as to notice, this statement, giving it the benefit of inferences to which it is entitled on demurrer, must be construed as meaning that the catch basin and the lid on the manhole was in a defective condition when first constructed. The general rule is that where a defect in a street was caused by a city or by those for whose acts it is responsible, no proof of notice to the city of the defect'is required, such notice being implied. (Gilmore v. Kansas City, 157 Kan. 552, 142 P. 2d 699.) Therefore, the overruling of the demurrer on the second ground urged by the appellant was proper.
Lastly, appellant insists the demurrer was good because the evi 'dence showed appellee was guilty of contributory negligence as a matter of law. There is small merit in this contention. This court has held the question of a plaintiff’s contributory negligence, when from the evidence it is reasonably open to debate or one on which reasonable minds might differ, is one of fact for the jury and a demurrer to the evidence is properly overruled. (Billings v. City of Wichita, 144 Kan. 742, 62 P. 2d 869.) Here plaintiff testified that she looked before stepping upon the manhole cover which was level with the surface of the concrete slab and it showed no signs of being loose. This testimony was undisputed and we cannot, in the light of the rule just stated, find any reason for holding the appellee was guilty of contributory negligence as a matter of law.
In holding the demurrer in its entirety was properly overruled it must be remembered we have not here had any opportunity to pass upon questions of fact considered by the jury as to whether the street and catch basin was kept in a reasonably safe condition for use, whether defects existed and if so were so discernible as to call for repairs, whether the city actually had notice, actual, constructive or implied, or whether the evidence showed appellee was guilty of contributory negligence. The appellant stood upon its demurrer to the evidence and under the rule we have been limited to the question of whether there was any evidence to establish a cause of action in favor of appellee and against appellant.
Appellant’s next contention is the jury because of passion and prejudice disregarded the instructions of the trial court. Particular reference is made to instructions Nos. 7 and 9. Instruction No. 7 advised the jury as to the manner in which it should determine whether the city used the proper degree of care in maintaining the catch basin. In instruction No. 9 it was told the circumstances under which a municipality was required to inspect its streets, including places in close proximity thereto, in order to keep them from becoming dángerous to the traveling public, and that there was ho positive duty to inspect the catch basin merely because it was in close proximity to the street unless it found such place could reasonably be expected to be used by the public as a part of the street. The fact the jury found in favor of appellee can in no sense be taken as an indication it disregarded either of the instructions referred to. The most that can be said for appellant’s claim is that by its verdict the jury failed to fix liability in line with appellant’s theory of how the case should be determined.
Finally, appellant contends the verdict is excessive. Summarized, its argument is the appellee’s injuries were trivial, she made no effort to procure medical care to alleviate her pain and suffering and she did nothing toward seeking work other than that in which she had been engaged, to mitigate her damages. All these arguments might well have been submitted to the jury for its consideration and had appellant seen fit to offer evidence on such questions they might have been persuasive. However, it did not elect to pursue that course. All the jury had before it was the undisputed testimony of the plaintiff, showing: the accident injured her spine, dislocated her knee and bruised her leg; prior thereto (Oct. 5, 1941) she had been engaged in the dressmaking business earning $10 per week; since, and up to the time of trial (May 11, 1943), she had been unable to operate a sewing machine; after, she was in bed for three weeks and on crutches for a month or so; subsequently, her nerves went to pieces, she had continuous pains in her back and knees, her sleep was broken, she had nervous spells and lay awake' at night with pains in her leg. In addition the physician and surgeon who treated her stated that because of her age the injuries were permanent. In the face of all this undisputed evidence a statement the jury was influenced by passion and prejudice in returning a verdict of $3,000, the amount prayed for in the petition, is not justified, and appellant asks too much of this court when it insists the order of the trial court in overruling the motion for a new trial should be reversed and a new trial granted on the ground the verdict was excessive.
It may well be the appellant could have improved upon its present situation by the introduction of evidence in refutation of that offered by appellee but that was a matter for it to determine in the first instance, before it elected to rely upon its demurrer to the evidence. On appeal this court will not indulge in speculation as to what might have been the result had a litigant seen fit to pursue a different course of procedure during the trial nor will it permit subsequently developed errors or mistakes in such procedure to be urged as a circumstance extenuating the force and effect of a verdict returned by a jury and approved by the trial court after consideration of a motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
In this action defendant was convicted of a violation of G. S. 1935, 21-442. He appeals.
The information charged that defendant on or about December 1, 1931, deserted his five children, all being at that time under sixteen years of age, and continuously since that date until June 23., 1943, failed to support them. The information further charged that one of the children, whose name was Keith McCall, was under the age of sixteen on June 23, 1943, the date the prosecution was commenced, and that the youngest of the four other children was nine years old on October 1, 1931. The information also charged that defendant had been continuously absent from the state of Kansas from October 1, 1931, until the commencement of the action or had so concealed himself from that date until January 1,: 1943, that process could not be served upon him.
The defendant was apprehended in California and returned to this state for trial. He pleaded not guilty to the information just described. His trial resulted in a verdict of guilty. His motion for a new trial and his application for an order that he be paroled under bond to contribute to the support of the only one of his children still a minor were denied. Hence this appeal.
The first argument of defendant to which we shall give our attention has to do with the admission in evidence of whait purports to be the deposition of the father of the defendant taken by defendant in California. The record discloses that this deposition was taken by defendant in California after due notice of his intention so to do. The witness was sworn in due form. The testimonywas reduced to writing. The certificate of the officer before whom the deposition was taken shows that it was not signed by the witness but was mailed by that officer to the clerk of the district court of Jefferson county without that signature.
In the presentation of the state’s case the prosecuting attorney, offered this deposition. Counsel for the defendant objected to it because it was not signed by the witness and because it was' incompetent. This objection was overruled and the deposition was'introduced and read to the jury as a part of the state’s case in chief. Counsel who represented the defendaht at the trial in the district court' is not the same lawyer who is representing him on appeal in this court. In the brief filed here counsel for the deféndant argues that the written instrument was not admissible because it was not signed by the witness, also because'of the constitutional provision that the accused shall be allowed to meet the witnesses against him face to face.
We pass by without deciding the question of whether the deposition was inadmissible because it was not signed. It was inadmissible when offered by the state because its use-deprived the defendant of rights guaranteed him by the constitution.
Section 10 of the bill of rights provides, among other things, that in all prosecutions the accused shall be allowed to meet thé witness face to face. It is true we have held that provision may be waived.1 Various instances are pointed out where we have held that the testimony of a witness given at a former hearing in the prtesencé’bf the defendant, either at a preliminary or at-a former trial’ ináy be in troduced when the witness is unavailable because of being out of the state or for some other reason which makes it beyond the power of the state to produce the witness to confront the defendant. However, we have never held that the defendant was not entitled to be confronted by the witness at some stage of the proceedings under circumstances such as those in this case. It is one thing for the defendant to take the deposition of a witness whose evidence he desires to use in his own behalf and who cannot be present at the trial of the case before the jury, and a different thing for the state to use .the deposition taken, by the defendant.
The fact that defendant had taken the deposition as he was entitled to under the constitution did not constitute a waiver of his right to be confronted with the witness before the jury. In State v. Tomblin, 57 Kan. 841, 48 Pac. 144, we passed on this question. There we held:
“A defendant on trial, charged with a felony, has the right guaranteed to him by the Constitution to meet the witnesses produced by the State, face to face, and it is error to admit, over his objection, the deposition of a witness, taken out of the state when he was not personally present, containing important testimony, notwithstanding the fact that the deposition was taken on the application of the defendant, on interrogatories prepared by his counsel and cross-interrogatories prepared by counsel for the State. By causing the deposition to be taken the, defendant did not irrevocably consent to its introduction in evidence”
This opinion was cited with approval in State v. Woods, 71 Kan. 658, 81 Pac. 184. See Ann. Cas. 1916A, 1096, also 18 C. J. 679.
Counsel for the state argues that under G. S. 1935, 60-2846, exceptions to depositions must be in writing, specifying the grounds of objection and filed with the papers in the cause. They point out that the defendant did not file any objections to the introduction of this deposition and that on account of his failure so to do the deposition is admissible against him. It is clear that the section relied upon by counsel for the state refers to an objection to be made by a party other than the party taking the deposition, not ta a case of this kind where the deposition is used by the state against one on trial for crime. No doubt counsel for the defendant did not file any objection to this deposition before the trial because it had been taken by him- and evidently he had decided not to use it. He had no reason to expect the state to attempt to do so.
. Counsel for .the state argue that the defendant was not prejudiced by-the use of'this deposition. We have read it, however. The wit ness testified that while defendant was in California during the time he was accused of failure to support his children he had provided a house for a woman other than his wife and was living with her, and testified to various other circumstances regarding his life in California tending to show his ability to provide for his children. This evidence was highly prejudicial to the defendant and its admission requires a new trial.
Since this conclusion will require that the defendant be given a new trial there is another trial error upon which we should pass even though the decision of the point just discussed requires a reversal. ■'■This has to do with testimony of several welfare officers of Jefferson county introduced on the part of the state in its case in chief as to the amount the department was compelled to expend for the support of these children during some of the years that the father was absent.
G. S. 1935, 21-442, provides as follows:
“That any husband who shall, without just cause, desert or neglect or refuse to provide for the support and maintenance of his wife in destitute or necessitous circumstances; or any parent who shall, without lawful excuse, desert or neglect or refuse to provide for the support and maintenance of his or her child or children under the age of sixteen years in destitute or necessitous circumstances, shall be guilty of a crime and, on conviction thereof, shall be punished by imprisonment in the reformatory, or penitentiary, at haM labor, not exceeding two years.”
’This prosecution was brought for the failure of defendant to suppb'ft his- children. Pursuant to its provisions it was necessary for the state to prove first that defendant was the parent; next that he deserted or failed to support his children; third that this was without lawful excuse; fourth that the children were in destitute or necessitous circumstances and were under the age of sixteen years. The testimony of the welfare officers was offered to prove that the children of defendant were in destitute and necessitous circumstances. Their testimony was competent as to what they knew about that, just as the testimony of neighbors was competent on that point. However, the state went further and had the welfare officers testify about the amounts the department hád paid for the support of these children. It did not make any difference as to the guilt or innocence of defendant about who had contributed to the support of these children and how much. It is no defense in a prosecution under this statute that some one other than the. father provided for the children during the time that he failed, to do so. See State v. Waller, 90 Kan. 829, 136 Pac. 215; also State v. Wellman, 102 Kan. 503, 170 Pac. 1052. The converse is true. The fact that some public authority contributed, to the support of the children added nothing to the guilt of the defendant. This evidence was prejudicial and should not have been admitted.
Other questions are argued in the brief of appellant. They are not presented in this record, however, as clearly as they should be. The conclusion already reached requires a reversal and a new. trial. Those errors, if they were errors, may not occur in the second trial and if they do perhaps the record will be such that a clear understanding of what happened in that trial may be had. Therefore, we refrain from passing on them at this time.
The judgment of the trial court is reversed with directions to grant the defendant a new trial in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is a workmen’s compensation case. The question for our review is whether plaintiff’s husband died of an industrial accident in his employer’s Service or of a fall which resulted from an epileptic seizure in no way related to his employment.
The pertinent facts were these: On March 26,1943, and for some time prior thereto Vernon Woodfill had been employed by the respondents as a motor mechanic at the Sunflower Ordnance Plant, at Eudora. In the forenoon of that day Woodfill had repaired a motor and set it to running. At noon he climbed on a near-by bin about six feet high, and sat down to eat his lunch, where he could watch how the running motor performed. Several of his fellow workmen were also seated at various places in the same workshop, likewise eating their lunches. About fifteen minutes after Woodfill sat down on the bin, he was seen to look up, draw his head around to the right and fall off the bin; his head hit the concrete floor, and his skull fractured. When his fellow workmen attempted to lift him it was discovered that he was unconscious and there was a bloody discharge from his right ear. Attempt was made to resuscitate him by artificial respiration. An ambulance arrived in a few minutes and he was taken to a hospital where he died in two days without regaining consciousness.
A claim for compensation was filed by Woodfill’s widow. After an extended hearing the commissioner of compensation allowed the claim, and on appeal the trial court affirmed the award, upon a finding that—
“The said deceased suffered from the effects of the gas which was emitted from the exhaust of said engine which had recently been repaired in said room, and which had been left running up to the time the deceased fell, and as the direct and proximate result thereof, he died on March 28, 1943.”
The employers appeal, contending that there was no substantial evidence that Woodfill’s death resulted from an accidental injury arising out of and in the course of his employment. There was indeed considerable evidence (which was not disputed) that Woodfill had been periodically afflicted with recurring epileptic seizures for several years past, and that he was accustomed to take medicine systematically to avert or minimize their intensity. Expert witnesses for respondents delineated the symptoms of epileptic seizure from its preliminary “aura” when the afflicted person may have some sensory disturbances, light flashes in his eyes, tingling in his hands, feet, or any part of the body. Unconsciousness then ensues, which is followed by a “tonic” condition of tenseness or rigidity of the body. In turn this is succeeded by a “clonic” violent and convulsive jerking of the body or limbs; and finally the sufferer relaxes into an exhausted sleep which may last several hours. -One of respondents' expert witnesses testified that the symptoms thus summarized were unmistakable.
What little direct evidence there was which tended to show that Woodfill’s fall to the cement floor with its fatal consequence might have been caused by an epileptic seizure was given by a fellow workman, who testified:
“I was sitting about 30 or 40 feet from him when he fell. . . . There was another man at the side of me and we mentioned Woody’s motor running there and he was up on this bin watching it run during the noon hour, . . . We were admiring how good he was on GM Diesel motors, and I would say between 10 and 15 minutes after 12 I saw him look up and back to the ceiling. I just looked up and thought maybe he was looking at something, and his head was in motion, like a jerk, quiver, or something! ... I saw him start over to his left side and I jumped and ran over- there and he fell before I got there. When I got there he was lying on the floor. . . . He lay perfectly still there on the floor.”
What little evidence there was to support the trial court’s finding that Woodfill’s fall with its fatal consequence was caused by gas fumes from the exhaust of the motor he was watching as he ate his lunch was to this effect:
There was testimony that the doors of the workroom were closed while the motor was running; the motor was giving off a lot of smoke and gas fumes; such fumes frequently cause headaches, a smarting of the eyes, and cause a workman to, feel “dopey;” that after Woodfill’s accident, motors which were being tested after- overhauling were operated out of doors.
There was also considerable testimony that after Woodfill fell his body and limbs were not rigid but limp, showing none of the “tonic” and “clonic” symptoms which invariably develop in sequence in cases of epileptic seizure. It was suggested by a medical expert that since Woodfill’s fall cracked his skull, it was probable that this greater mishap “masked” the nervous tissues which ordinarily control the tenseness or rigidity and convulsions which attend epilepsy, and explained their nonappearance.
While the record on this vital question is long, and the testimony is both interesting and instructive, it all comes down to this: Was there an entire want of evidence to support the trial court’s finding that the workman’s fall and consequent death was caused by an accident which arose out of and in the course of his employment? We cannot say so. This court has neither duty nor authority to weigh the evidence. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 624, 7 P. 2d 70.) It is of no consequence that if we were triers •of fact we might hold that the case falls within the rule of Cox v. Refining Co., 108 Kan. 320, 195 Pac. 863, and later cases of that sort. We do hold that the evidence which the trial court, as paramount trier of the facts, chose to believe was sufficient to support its findings. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496, and citations; Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705, and citations.)
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The opinion of the court was delivered by
Johnson, J.:
A juiy convicted Derrick Richard of felony murder based upon the underlying felony of criminal discharge of a firearm at an occupied building. Richard allegedly fired his handgun at a neighbor s house, and a bullet fatally wounded a man sitting inside the house. On direct appeal, Richard raises three evidentiary issues. We have jurisdiction under K.S.A. 22-3601(b)(l) (direct appeal for conviction of off-grid crime; life sentence). Finding no error, we affirm.
Facts and Procedural Overview
During the evening of July 16, 2010, Grady Lane and his wife, Erin Gonzalez-Lane, were watching television in the second-story family room of their home at 532 North Wabash in Wichita, Kansas. Gonzalez-Lane went downstairs to bed around 10 p.m., while Lane stayed in the family room to play video games. At around 11 p.m., Gonzalez-Lane heard what she described as “[p]ow, pow, pow, pow.” Gonzalez-Lane assumed the noise was fireworks; therefore, after checking on her children, she decided all was well and went to sleep.
That same evening, at approximately 11 p.m., Officer Jason Waite responded to a call reporting gunshots fired in the nearby area of 500 North Ohio. Officer Waite encountered Derrick Richard in the street between two houses at 529 and 532 Wabash, but Richard said he had not heard gunshots or fireworks.
The next morning, Gonzalez-Lane discovered Lane still in the upstairs family room, but he was not breathing and there was “a lot of blood.” Officers Chad Richardson and Channara Seang responded to Gonzalez-Lane’s 911 call. They observed Lane, dead from a gunshot wound to the head, slumped over on his side as if he had been sitting upright on the couch and had fallen over. The officers discovered a single bullet hole in the family room window glass and three bullet holes in an interior wall, all of which appeared to have come from outside. Crime Scene Investigator Natalie Rowe collected three bullet fragments from inside the room.
The family room window faced the Lane’s backyard, and an officer noted that if Lane had been sitting up on the couch, he would have been visible through the window for a shooter located in the backyard. A search of Lane’s backyard yielded four spent cartridge casings (fired rounds) and one unfired cartridge, all designed to be used in a .45 caliber handgun and all manufactured by Speer. The cartridges were found approximately 20 to 25 yards from the family room window.
Gonzalez-Lane told police she “had a notion” that Richard, their neighbor directly to the south at 524 North Wabash, killed Lane because the two men had been in a dispute over a dog. Gonzalez-Lane also told police that Richard had previously fired shots in the neighborhood, after which he called Lane to tell him Richard was “just blowing off some steam and . . . everything was okay.”
Richard lived with his daughter, Jasmine Huff, and his father, Irving Richard. After obtaining Huff s permission to search the family’s backyard, officers found seven .45 caliber spent casings and one live .45 caliber cartridge. Four of the spent casings were manufactured by Winchester, while the other three, as well as the live cartridge, were manufactured by Speer.
Detective Robert Chisholm interviewed Richard three times. The first interview began at 9 a.m. on July 17, 2010, with the detective advising Richard of his Miranda rights. Richard told the detective that he and Lane had been friends until they got into a dispute over a dog. He denied having any guns and said that he had not heard any shots fired the previous evening. Richard also denied that he had previously discharged a firearm in his yard or that he had called Lane to apologize for doing so, albeit he had no explanation for the shell casings found in his yard. Five and a half hours into the interview, Richard told Detective Chisholm that he was ill and needed to go to the hospital, whereupon the detective stopped the interview and called Emergency Medical Services.
During that first interview, Richard had given consent for tire police to search his home for guns, drugs, and evidence related to this crime. But Richard told the detective that only Irving had access to a storage area in the back of tire house, and the detective relayed that information to the officers at the scene. In Richard’s bedroom, the police found a box of ammunition containing twenty-nine .45 caliber semiautomatic cartridges manufactured by Speer and a gun case. Irving gave die officers permission to search a padlocked storage area on die enclosed back porch and provided the officers with a key for the padlock. Officers searched the storage area and located a .45 caliber gun manufactured by Haskell and a magazine. The magazine contained seven .45 caliber cartridges manufactured by Speer.
Upon Richard’s release from the hospital and after reminding him of his Miranda rights, Detective Chisholm interviewed Richard for anodier 30 to 45 minutes. Richard admitted owning the gun that the detective said they had found at his house. Richard explained tiiat he normally stored the loaded gun underneath his mattress. In response to the detective’s query about the 14 rounds . of ammunition missing from the box found in his house, Richard related that on a prior occasion he had fired the handgun into the air, after which he called Lane to explain what he had done. He also admitted shooting his gun on the Fourth of July and firing at a dog causing trouble in the neighborhood. Richard continued to deny hearing shots or shooting at Lane’s house on the night of Lane’s death. Richard eventually concluded the interview.
The next morning, at Richard’s request, Detective Chisholm conducted another interview; After the detective had Richard read his Miranda rights aloud, Richard admitted shooting his gun from Lane’s backyard six times tire night of Lane’s death to send Lane a message to leave him alone.
The State charged Richard with one count of felony murder, based on the underlying felony of criminal discharge of a firearm at an occupied building, and one count of criminal possession of a firearm.
Sedgwick County Regional Forensic Science Center firearm and tool mark examiner Gary Miller opined that three of the spent casings from Richard’s yard and all of the spent casings from Lane’s yard came from Richard’s gun. The other casings and live cartridges lacked sufficient identification markings to pair them with a particular firearm. Miller noted that the three bullet fragments found in Lane’s home had the same class characteristics as ammunition that would be used in Richard’s gun but could not definitively say if they were fired from Richard’s handgun.
Richard testified in his own defense. He explained that on the day of Lane’s death, he went over to a friend’s house at around 7:30 p.m. to play cards. He stayed about 2½ to 3 hours before returning home. When he got home, he went for a walk. Hoping to resolve his dispute with Lane, Richard stopped by Lane’s residence to see if Lane was on his back porch where he usually sat. Lane was not outside, so Richard pulled his gun out and shot into the air. Richard then went home, put his gun away, and went across the street to talk to a friend.
Richard said he could not explain why he shot his gun in the air but said, “[A]s they stated, I was known to shoot my gun in the air at different times, so I did shoot the gun in the air.” Richard stated that he shot five or six times but never shot the gun at the house. He explained that one of Lane’s children was in the house, so he would have never shot at the house.
The jury convicted Richard as charged. Richard was sentenced to life with parole eligibility after 20 years for felony murder, consecutive to 19 months in prison for criminal possession of a firearm. Richard timely appealed his convictions.
K.S.A. 2010 Supp.. 60-455 Evidence
Richard argues that the district court violated his right to a fair trial by permitting the State to introduce prior crimes evidence through testimony that established he had previously discharged his handgun in his backyard. After our decision in State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), admission of all other crimes and civil wrongs evidence is governed by K.S.A. 2010 Supp. 60-455. See State v. Everett, 296 Kan. 1039, 1045, 297 P.3d 292 (2013) (quoting Gunby, 282 Kan. at 57). K.S.A. 2010 Supp. 60-455 provides in relevant part as follows:
“(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s disposition to commit crime or civil wrong as the basis for an in ference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Evidence of Richard’s prior shooting incidents was presented through four witnesses. First, Officer Richardson related that Gonzalez-Lane had told him that the Lanes’ neighbor to the south would occasionally shoot his handgun. Next, Gonzalez-Lane testified about the previous shooting incident where Richard had called Lane to explain that Richard was “just blowing off some steam.” Third, Detective Chisholm described the police interview in which Richard related that he had “fired one clip into the air one night” and then called Lane to advise him that Richard was just “letting a few off.” The detective also testified about two other shooting incidents to which Richard had admitted, but Richard does not challenge that testimony in this appeal. Finally, Richard introduced the evidence through his own testimony. During Richard’s direct testimony, he said, “[A]s they stated, I was known to shoot my gun in the air at different times.” During cross-examination, he discussed the time he shot his gun to “see if it would work” and then called the Lanes to “let them know I was just letting off a few.”
As a preliminary matter, the State contends that Richard’s K.S.A. 2010 Supp. 60-455 argument is not preserved for appellate review because the defense failed to contemporaneously object to Detective Chisholm’s testimony and to Richard’s own testimony. The defense did contemporaneously object during the testimony of the first two witnesses, Richardson and Gonzalez-Lane, albeit the record does not reflect a request for a continuing objection or a renewal of the objection during the last two witnesses’ testimony.
Under K.S.A. 60-404, “a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” State v. King, 288 Kan. 333, 348, 204 P.3d 585 (2009). “The purpose of the rule is to avoid the use of Tainted evidence [and thereby] avoid possible reversal and a new trial.’ ” State v. McCaslin, 291 Kan. 697, 707, 245 P.3d 1030 (2011) (quoting State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 [2010]). “Because an in limine ruling ‘is subject to change when the case unfolds,' Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), a pretrial objection must be contemporaneously renewed during trial or preserved through a standing objection.” State v. Inkelaar, 293 Kan. 414, 421, 264 P.3d 81 (2011) (citing State v. Berriozabal, 291 Kan. 568, 580, 243 P.3d 352 [2010]).
Richard met those requirements with respect to the testimony of Officer Richardson and Gonzales-Lane and his challenge to the admission of their testimony about the specified prior shooting incident is preserved for our review. Because of our determination that the trial court did not err in admitting the evidence over the defense’s objection, we need not ruminate on die effect of any failure to object to the later descriptions of the same incident. Instead, we proceed to the merits of Richard’s argument.
In State v. Torres, 294 Kan. 135, 139-40, 273 P.3d 729 (2012) (citing Inkelaar, 293 Kan. at 424), we summarized the three-part Gunby test that a trial judge must use in determining whether to admit evidence under K.S.A. 60-455, and the corresponding appellate standards of review:
• “First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.
• “Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, die district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.
• “Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion.
If the evidence meets all of these requirements, it is admitted, but in a juiy trial the district court must give the jury a limiting instruction telling the jury the specific purpose for which the evidence has been admitted (and reminding diem that it may only be considered for diat purpose).”
Beginning with whether the prior shooting evidence was material, Richard was charged with (1) first-degree felony murder based on the underlying felony of criminal discharge of a firearm at an occupied building that resulted in the death of Lane and (2) criminal possession of a firearm. First-degree felony murder is “the ldlling of a human being committed ... in the commission of, attempt to commit, or flight from an inherently dangerous felony.” K.S.A. 21-3401(b). Criminal discharge of a firearm at an occupied building is an inherently dangerous felony. K.S.A. 2010 Supp. 21-3436(a)(15). “Because the juiy is presumed to have taken the elements of the underlying felony into account, as demonstrated by the jury’s being instructed on those elements, relevance to an element of the predicate felony reasonably could be found to be sufficient for admissibility.” State v. Tolson, 274 Kan. 558, 566, 56 P.3d 279 (2002). At tire time of Lane’s death, the statute prohibiting criminal discharge of a firearm at an occupied building defined die crime as “the malicious, intentional and unauthorized discharge of a firearm at a . . . building ... in which diere is a human being.” K.S.A. 21-4219(b). The statute prohibiting criminal possession of a firearm defined the crime, in relevant part, as “possession of any firearm by a person who, within the preceding 10 years, has been convicted of. . . [a] felony." K.S.A. 2010 Supp. 21-4204(a)(4)(A).
The district court’s on-the-record ruling on the admissibility of die prior shooting stated that the evidence addressed opportunity, intent, knowledge, and identity, but the district court’s limiting instruction omitted intent from the purposes for which the jury could consider the prior shooting. Richard argues that the evidence was irrelevant to the issues identified in the limiting instruction— opportunity, knowledge, or identity—because it had no tendency to show that Richard knowingly fired shots at an occupied residence on the date Lane was killed.
We discern that the evidence was relevant for the purpose of proving two of the purposes contained in the limiting instruction, to-wit: knowledge and identity. The evidence was also admissible for the purpose of proving intent, even though that purpose was omitted from the limiting instruction.
First, we agree with the State’s argument that the evidence of the prior shooting tended to show that Richard was aware of his wrongdoing, when the prior facts are compared to the present incident. We have previously noted that “[lcjnowledge, which signifies an awareness of wrongdoing, is an element in crimes that require specific intent.” Tolson, 274 Kan. at 565. Granted, we have held that the word “malicious” in our criminal discharge of a firearm statute does not require specific intent, but instead requires “a lack of justification.” In re M.A.S., No. 92,558, 2005 WL 3430738, at *3 (Kan. 2005) (unpublished opinion); see State v. Mitchell, No. 108,912, 2014 WL 113441, at *3 (Kan. App. 2014) (unpublished opinion), 'petition for review filed February 6, 2014. Nevertheless, the specific/general intent distinction is not always outcome determinative under K.S.A. 2010 Supp. 60-455. State v. Boggs, 287 Kan. 298, 314, 197 P.3d 441 (2008) (general/specific intent not crucial distinction for admitting other crimes evidence for purpose of intent).
Here, Richard’s awareness of wrongdoing flows from a comparison of his post-shooting behavior. When he shot his handgun on the prior occasion, he did not hide the gun afterward and he called Lane to explain what he had. done. After the shooting resulting in Lane’s death, Richard hid the handgun in a locked storage area and denied that any shooting took place.
Additionally, as the State points out, the prior shooting helped explain .to the jury why Gonzalez-Lane quickly identified Richard as a likely suspect. Moreover, the identity of Lane’s killer was a disputed, material fact in this case. See State v. Garcia, 285 Kan. 1, 14-15, 169 P.3d 1069 (2007). Although Richard eventually admitted shooting the gun on the night in question, he initially denied shooting at all and subsequently denied being the person who shot at the house. See Garcia, 285 Kan. at 14-15; see also State v. Searles, 246 Kan. 567, 579, 793 P.2d 724 (1990) (“The disputed material fact was whether or not the defendant was the one who committed tire crime.”).
Richard argues that the prior shooting was not sufficiently similar to the incident giving rise to the current charged offense to be relevant to show identity. In his view, the only similarity between the two events is the physical act of shooting a weapon. Our cases where prior crimes or civil wrongs are used to show identity have emphasized that while “ ‘the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses,” the evidence “need not be identical, only similar.” Garcia, 285 Kan. at 15 (quoting State v. Bly, 215 Kan. 168, 177, 523 P.2d 397 [1974]); see Searles, 246 Kan. at 578. Here, there were more common threads between the incidents than just discharging a weapon. In both incidents, Richard gratuitously and without provocation fired the same weapon into the air from adjoining backyards in the same residential neighborhood, and the incidents were relatively close in time. The prior shooting made it more likely that Richard was the shooter than any other person who might have been suspected.
The evidence was also relevant to the issue of Richard’s intent. Richard’s previous discharge of his handgun into the air without striking any residence could indicate for the jury that Richard knew how to operate the weapon in such a manner as to avoid striking an occupied dwelling unless he wanted to do so, i.e., the evidence was material to prove an absence of mistake by showing an absence of honest error. See Boggs, 287 Kan. at 312.
Richard’s brief acknowledges that “[i]ntent in discharging die firearm on July 16, 2010 was the primary material issue at trial.” But, citing to State v. Marquez, 222 Kan. 441, 447-48, 565 P.2d 245 (1977), he contends that we should not apply to K.S.A. 2010 Supp. 60-455 evidence the “right result-wrong reason” rationale that applies in cases involving the admission of other types of evidence, notwithstanding our recent cases. See Boggs, 287 Kan. at 310 (“a district court’s admission of evidence under K.S.A. 60-455 may be upheld on review even if its rationale was in some way erroneous if an appellate court determines that the evidence was otherwise admissible under the statute”) (citing State v. Vasquez, 287 Kan. 40, 51-53, 194 P.3d 563 [2008]); State v. Reid, 286 Kan. 494, 509-12, 186 P.3d 713 (2008). Here, though, the purposes for which the jury was instructed are intertwined with the admitted purpose that was omitted from the instruction. “ ‘Both knowledge and absence of mistake are factors bearing on intent.’ [State v. Faulkner,] 220 Kan. [153,] 156[, 551 P.2d 1247 (1976)]. While knowledge ‘signifies awareness . . . absence of mistake ‘simply denotes an absence of honest error.' 220 Kan. at 156.” Boggs, 287 Kan. at 312. Accordingly, we find that the State has cleared the hurdle of showing the prior incident to be material to the current charge.
Likewise, as we have suggested above, the prior shooting evidence was probative because it provided a “tendency in reason” to prove that Richard intentionally shot at Lane’s house. Furthermore, the district court did not abuse its discretion in determining that the probative value of this evidence was not outweighed by its prejudicial effect. Indeed, as the State points out, Richard himself embraced the evidence of the prior shooting to support his theory of defense that he just shot in the air, not at the house. In sum, we hold that tire district court did not err in admitting the prior shooting evidence under K.S.A. 2010 Supp. 60-455.
Preservation of Suppression Issue for Appeal
Richard argues that the district court erred when it failed to grant his motion to suppress his post-Miranda statements to police as being involuntary. As noted, the police conducted three interviews, but Richard only challenges the voluntariness of the first interview. He claims that he was under the influence of drugs at that first interview. The district court denied the suppression motion, based principally upon watching the DVDs of die interviews. Specifically, the court found that Richard was “responsive to all questions” and that “[h]e was quite lucid and coherent.”
The district court made its ruling at a pretrial suppression hearing. Richard’s defense counsel did not engage in the formality of reasserting his client’s objection to the voluntariness of his statements when they were introduced at trial. In fact, when the State moved to have the DVD of Richard’s third interview played for the jury, his counsel specifically stated, “No objection.” There is no indication that any of the parties was unclear about the court’s position about allowing the introduction of Richard’s statements at the trial, nor did the statements unfold in any unpredictable manner that would justify a change of heart by the court. Nevertheless, a majority of this court believes that a request for reconsideration of the district court’s order on the suppression motion must be effected through a “contemporaneous objection” during the trial in order to preserve an appeal of the original ruling. Specifically,
“we hold that when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal. This holding is also consistent with the language in K.S.A. 60-404—objection to the evidence must be ‘timely interposed’—and consistent with this court’s longstanding characterization of the statutory language as requiring a ‘contemporaneous’ objection. Among other advantages, this holding allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared—after timely trial objection—to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984) (in limine ruling ‘is subject to change when the case unfolds’).” State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009).
Based upon our precedent, Richard has failed to preserve his appeal of the district court’s order denying his motion to suppress his post-Miranda statements to the police. See State v. Tahah, 293 Kan. 267, 280, 262 P.3d 1045 (2011) (defendant’s failure to object at time confessions offered into evidence at trial “fatal” to appeal). He offers no reason for the court to revisit that precedent. In fact, his brief fails to acknowledge the preservation problem at all. Accordingly, we decline to consider this issue further.
Motion to Suppress Evidence Found During the Search of Richard’s Residence
Richard next argues that the district court erred in denying his motion to suppress evidence found during a warrantless search of a locked storage area at his residence.
“[Ujnder tire Fourth and Fourteentli Amendments to tire United States Constitution and § 15 of the Kansas Constitution Bill of Rights, a search conducted without a warrant is per se unreasonable, unless a specifically established exception applies. See State v. Damm, 246 Kan. 220, 221, 787 P.2d 1185 (1990). It is the State’s burden to validate a warrantless search by fitting it within one of tire recognized exceptions, which are: consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely reg ulated businesses. [Citation omitted.]” State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013).
The police searched Richard’s residence based upon the consent exception. During his first interview with Detective Chisholm, Richard said the police could search his residence but only Irving could give permission to search the locked storage area on the back porch because Richard did not have access to that area. At the house, Irving gave the police oral consent to search the locked storage area and provided the police with a key to obtain entry.
Prior to trial, Richard filed a motion to suppress the evidence obtained during the warrantless search of his residence. After a hearing, tire district court denied the motion. Richard also lodged a continuing objection at trial to the admission of evidence found during the search, arguing that the search was improper.
On appeal, Richard first asserts that the district court erred in finding drat he lacked standing to challenge the search of the locked storage area at his residence. Richard then argues Irving’s consent to search the locked storage area was involuntary.
At this point, we pause to note that Richard does not challenge the district court’s finding that “it was quite clear to the Court that the defendant gave consent to search the residence except for the back room that was on the back porch.” Nor does Richard complain about the district court’s declaration that, pursuant to the “Matlock decision and subsequent case law[,] ... [a] co-owner or co-occupant can give consent over the objection or limitation of another co-occupant’s permission to search a residence.” See United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). While not necessary to our ultimate decision in this case, we do note that the United States Supreme Court recently adhered to its Matlock holding. See Fernandez v. California, 571 U.S. _, 134 S. Ct. 1126, 1132-33, 188 L. Ed. 2d 25 (2014).
Standing
We begin with Richard’s argument that the district court erred in finding that he did not have standing to challenge the search. The State counters that Richard has misconstrued the district court’s ruling; it ruled on the basis of consent, not standing. Nev ertheless, standing to challenge a search is “a component of subject matter jurisdiction, which may be raised for tire first time on appeal.” State v. Gilbert, 292 Kan. 428, 431, 254 P.3d 1271 (2011). And it is an appellate court’s duty to question jurisdiction on its own initiative. State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). In doing so, we exercise unlimited review over the legal question of whether the defendant has standing to challenge the search, Gilbert, 292 Kan. at 431-32, but the defendant bears the burden of establishing standing. See State v. Sumner, 210 Kan. 802, 803-04, 504 P.2d 239 (1972) (“It has been held it is proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed, that he establish that he himself was the victim of an invasion of privacy.”); State v. Gonzalez, 32 Kan. App. 2d 590, 593, 85 P.3d 711 (2004) (“On the issue of standing, the burden is on tire defendant to show an expectation of privacy in tire property searched.”).
A person challenging tire legality of a search must establish that he or she was the victim of an invasion of privacy. State v. Epperson, 237 Kan. 707, 716, 703 P.2d 761 (1985). “ To establish a sufficient interest, a movant must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property.’ ” 237 Kan. at 716 (quoting State v. Boster, 217 Kan. 618, 621, 539 P.2d 294 [1975]); see also Gilbert, 292 Kan. at 435-36 (noting vehicle passenger claimed no interest in property seized from vehicle before concluding passenger lacked standing); State v. Hays, No. 106,374, 2012 WL 6061556, at *3-4 (Kan. App. 2012) (unpublished opinion) (finding vehicle passenger had standing to challenge search because he owned seized property).
Richard eventually acknowledged that the handgun seized during the search belonged to him, and he told tire detective that he coowned the residential property with his father, Irving. Likewise, notwithstanding his suggestion to the contrary during the first interview, Richard claimed to have access to the area searched. Specifically, during his third police interview, Richard related that although Irving kept the key to the storage area’s padlock, Irving normally left the area unlocked in case Richard needed access to the fuse box located within the area. And at the suppression hearing, Richard reiterated that he had access to the area and testified that both he and his father used the area for storage. So, while some of Richard’s statements may have given rise to nuanced arguments calling into question his standing to challenge the search of his house to seize his handgun, we find sufficient evidence in the record to support the district court’s jurisdiction to hear Richard’s challenge to the warrantless search.
Consent
Richard next argues that Irving’s consent to search the locked storage area was invalid because Irving lacked capacity to give a voluntary consent at the time of the police’s request. Richard points to Irving’s conduct at the suppression hearing as corroboration of his incapacity.
“ Tor a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied.’ ” State v. Ransom, 289 Kan. 373, 381, 212 P.3d 203 (2009) (quoting State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 [2007]). An “individual’s mental state is also a factor in determining the vol-untariness of his or her consent to search.” State v. Holmes, 278 Kan. 603, 611, 102 P.3d 406 (2004) (citing United States v. Watson, 423 U.S. 411, 424-25, 96 S. Ct. 820, 46 L. Ed. 2d 598 [1976]). Voluntariness presents an issue of fact which is reviewed on appeal for substantial competent evidence. Ransom, 289 Kan. at 380. The State bears the burden of establishing voluntariness. 289 Kan. at 380.
After reviewing all the evidence, the district judge ruled:
“In this case, looking in part particularly at tlie testimony of Irving Richard and what consent he gave on July 17th of 2010, even today Mr. Richard states it was okay that the police searched his house. I understand that—there is some understanding by tlie Court that as he was here today, Irving’s testimony might cause someone to raise some question about his coherency and understanding of everything that was going on. The Court would say that that is of little weight in terms of what Mr. Richard’s condition is today considering his age of 81 and the passage of 13 months since the date of the search. What seems more clear to the Court [is] that the testimony provided supports that on July 17th of 2010, Irving Richard did give his approval and his consent to search the back room of the house. That was clear by his responses and actions.
“And the Court took specific note of the testimony that was given by Officer Weidner that when talking with the woman that was not identified and with Irving Richard on the day of the search, there was indication that when a key was requested in the process-—or I’m not sure even that a key was requested. It seemed to come from—it may have come up from Mr. Irving Richard’s mind himself that to be able to get into that room, a key needed to be provided. And that the testimony was that Mr. Richard, Irving Richard, went to the—back to his bedroom in tire house, got a key ring, and from drat key ring provided a specific key, which was tire key that opened the lock on that—the padlock on the back [of the] residence. That would indicate to tire Court that Mr. Irving Richard had a clear understanding at the time of what he was giving consent to when he located a key that worked for the padlock in tire back room.
“The Court will deny the motion to suppress on tire basis that consent was given by tire defendant to most of tire residence, . . . and that consent was given to the back room that was locked by Irving Richard.”
The State argues Richard’s claim amounts to nothing more than a request for this court to reweigh the evidence in his favor. We agree. The district court’s findings were based on substantial competent evidence, and, therefore, Richard is not entitled to relief on his claim that Irving’s consent was involuntary.
Affirmed.
Moritz, J., not participating. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the court below by Julia A. Stinson et al., against Hannah C. Geer et al., to recover the possession of the west half of the northwest quarter of section 11, in township 13, range 16, in Shawnee county, as the legal owners thereof. The defendants answered, claiming ownership and right of possession. A jury was waived, and a trial had by the court. The court made special findings of fact and conclusions of law, upon which judgment was rendered for defendants; to which plaintiffs excepted, and filed their motion for a new_ trial, which was overruled. They bring their case to this court.
The facts as found by the court are these: On December 24, 1857, one Thomas R. Lord located a military land war rant, No. 60,149, at the United States land office at Lecompton, on the land in controversy, and upon June 1, 1860, the government of the United States issued a patent to Lord for the tract of land as above located. Upon October 12, 1859, in an action then pending in the district court of Shawnee county, Thomas N. Stinson recovered a judgment against Lord for $884 and costs; upon the 13th day of February, 1861, the land was sold at sheriff’s sale to satisfy the judgment of Stinson, aud return thereof made into the office of clerk of said district court. Upon the 16th day of October, 1861, the sheriff’s sale and return thereof were examined by the court and confirmed, and the sheriff ordered by the court to make and deliver to Thomas N. Stinson, the purchaser at the sale, a deed to the premises. The sheriff neglected to make the deed before the death of the said Thomas N. Stinson; but on December 29,1884, the then sheriff of Shawnee county was ordered to make deed to the premises sold to the heirs of Thomas N. Stinson, deceased. No notice of this application for the order was given to the defendants, or their grantees. In pursuance of this order, the sheriff, on December 31, 1884, executed and delivered to the heirs of said Thomas N. Stinson, deceased, a deed to the premises. On May 4, 1858, Thomas R. Lord sold and assigned to Henry S. Ward and his heirs and assigns the certificate of entry for the land located at the land office at Lecompton, December 24,1857; Thomas R. Lord and wife, on December 27,1859, executed, acknowledged and delivered a warranty deed in due form, conveying the land to Ward, his heirs and assigns forever, which deed was recorded in the register of deeds’ office, of Shawnee county, January 11, 1860. It is conceded by the plaintiffs that “if the military land warrant was assignable, and if it was legally assigned upon the 4th day of May, 1858, and if such warrant and assignment were properly admitted in testimony, that judgment was rightfully rendered for the defendants.”
I. It is said upon the part of the plaintiffs that the land warrant, having been issued under the act of March 3, 1855, was not assignable until June 3, 1858, and therefore as it was assigned, if ever, upon the 4th day of May, 1858, the assignment was too early, and therefore void. It was decided in this court in McKean v. Crawford, 6 Kas. 112, that—
“ The inchoate rights of a preemptor of a portion of the public lands, who proves up his claim thereto, and enters the land, ripen into a perfect title to such land instantly on such entry; and he may sell and convey said lands, as an absolute owner thereof, before a patent is issued to him therefor. The right to transfer his land is complete in the preemptor from the date of his entry and purchase thereof, and the receipt of the usual certificate therefor; and if he exercise such right before a patent has issued to himself, such patent inures to the benefit of his grantee.”
The law is well settled that—
“A certificate of the location of the United States military land warrant upon a quarter-section of land, signed by the register of the land office where the location was made, is prima facie evidence that the land is the property of the locater, and that a location of a United States military land warrant on a quarter-section of land gives the locater or his grantee an interest in the land, and is a payment for the same.” (Butterfield v. Railroad Co., 31 Cal. 264. See also Jackson v. Spink, 59 Ill. 404; Lytle v. The State, 9 How. [U. S.] 314; Robbins v. Bunn, 54 Ill. 57; Aldrich v. Aldrich, 34 id. 32.)
When Lord entered the land in controversy at the government land office and paid for it with his land warrant, he acquired precisely the same equitable rights that he would have acquired in a similar transaction with a private individual. The government had no right, if he acted without fault or fraud, to cancel his contract or purchase. The testimony and findings show that Lord located his land warrant on December 24,1857. The transfer or assignment to Ward was made May 4, 1858; therefore, within the authorities, the land warrant was legally assignable at the date it purports to have been assigned.
II. It is further said that the transfer or assignment of the land warrant is invalid because not made in compliance with the statute of the United States. The law enacted March 22, 1852, provided that the warrants or certificates of location might be assigned “by deed or instrument in writing made and executed according to such form and pursuant to such regulation as may be prescribed by the commissioner of the general land office, so as to vest the assignee with all the rights of the original owner of the warrant or certificate of location.” The commissioner of the general land office issued a circular stating among other things that the assignment of a certificate of location “ must be indorsed upon the certificate of location, be attested by two witnesses, and acknowledged before a register or receiver of a land office, a judge of a court of record, a justice of the peace, or a commissioner of deeds.” The certificate in this case has no attesting witnesses, and is not acknowledged before any of the officers for such purposes designated, but before the mayor of Kansas City, Mo. The instructions for assignments of warrants and certificates of location must control the United States officials; and in this case, if the original certificate had been assigned to Ward in conformity with the forms and regulations of the commissioner of the general land office, and the office at Washington had been notified thereof, the patent would have issued to the assignee, Henry S. Ward, and not to Thomas R. Lord. But the failure of Lord to follow the regulations of the general land department in making the transfer or assignment of the certificate of location did not make such transfer or assignment void or worthless. There is no law in Kansas, nor any in Missouri, that has been called to our attention, requiring witnesses to any conveyance of any estate or interest in land; and if two witnesses and an acknowledgment before some official named in the circular of the general land office were necessary in order that the officers of the United States might be governed thereby, yet even if the transfer or assignment was defective or informal, the assignment or contract would be good between the parties; and as the plaintiffs have no higher or better title than Thomas N. Stinson, they are in no condition to complain of any defect or irregularity in the transfer.
It is clear, as between Ward and his grantees and Stinsou and his heirs, that the transfer or assignment of the certificate of location must be carried into effect by the courts. (Gray v. Ulrich, 8 Kas. 121; Simpson v. Mundee, 3 id. 181; Dreutzer v. Baker, 60 Wis. 179; Dreutzer v. Lawrence, 58 id. 598; Grandin v. Hernandez, 29 Hun, 401; Wendell v. Wadsworth, 20 Johns. 664; Jewell v. Harding, 72 Me. 126.) The statute of Missouri authorized the mayor of Kansas City, Mo., to take and certify acknowledgments. (Session Laws of Missouri, 1853, p. 24; Session Laws of Missouri, 1851, p. 97.)
We think the assignment of the 4th day of May, 1858, transferred to Ward all the equitable title and interest of Lord to the land in controversy,' and this assignment was further ratified by the deed of Lord and wife, dated December 27, 1859, which of course related back to the assignment of May 4, 1858. The assignment was prior in time to any claim, lien or judgment of Thomas N. Stinson.
III. It is finally urged that the court committed error in admitting as testimony the certified copy of the land warrant and assignment of the certificate of location to Ward. It is doubtful upon the record presented, whether any question has been properly raised against the competency of the testimony of the certified copy of the assignment. Attached to the petition in error is the case-made: it does not purport to contain all the evidence produced before the trial court. The case-made contains the following statement only as to the preservation of the evidence: “ The foregoing was all the evidence in the case relative to said certificate of location. Military land warrant No. 61,049.” Passing over this doubt, however, we dispose of the question as if the assignment was a part of the certificate of location. Section 25, chapter 22, Comp. Laws of 1885, reads:
“All deeds, mortgages, powers of attorney and other instruments of writing, for the conveyance or incumbrance of any lands, tenements or hereditaments situate within this state, executed and acknowledged, or proved, in any other state, territory, or country, in conformity with the laws of such state, territory, or country, or in conformity with the laws of this state, shall be as valid as. if executed within this state in conformity with the provisions of this act.”
And § 26 of the same chapter further reads :
“Every instrument in writing conveying or affecting real estate which shall be acknowledged or proved, and certified, as hereinbefore prescribed, may, together with the certificates of acknowledgment or proof, be read in evidence without further proof.” (Sections 51 and 52, ch. 26, Statutes of Kansas Territory, 183.)
The premises in dispute are situated in Shawnee county, within this state. The transfer or assignment of the certificate of location was executed and acknowledged in conformity with the law of Missouri. When Lord located his land at the government land office, he obtained the duplicate certificate of location. This duplicate was transferred to Ward; his grantee got the duplicate, and surrendered it to Charles B. Lines, the receiver of the land office, and thus obtained the patent; the duplicate was properly deposited in the government land office. The certified copy from that office therefore was admissible as testimony under the provisions of the statute. Section 372 of the civil code reads:
“Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his official seal, if he have one, may be received in evidence with the same effect as the original, when such original is not in the possession or under the control of the party desiring to use the same.”
And § 384 of the civil code expressly provides:
“Copies of all papers and documents, lawfully deposited in the office of the register or receiver of any land office of the United States within this state, and copies of any official letter or communication, received by the register or receiver of any such land office, from any department of the government of the United States, when duly certified by the register or receiver having the custody of such paper, document, letter, or other official communication, shall be received in evidence in the same manner and with like effect as the originals.”
The trial court therefore committed no error in receiving the evidence of Charles B. Lines, who testified that at the date of the copy he was the receiver of the local land office at Lecompton, and that he signed as such receiver the certified copy offered in evidence; and the.court committed no error in receiving as testimony the copy of such certificate.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Wyandotte county, by H. S. Swingley against R. T. Bass and Juliet Bass, husband and wife, to recover compensation for services rendered in the sale of certain real estate. That the services were performed, is admitted; but the dispute between the parties is concerning the contract upon which the services were rendered, and the amount to be paid therefor. The contract was wholly in parol. The ease was tried on January 18 and 19, 1887, before the court and a jury. About the only evidence introduced on the trial relating to the contract was the parol testimony of the plaintiff Swingley, and that of the defendant R. T. Bass, and it would seem that they were the only persons who had any knowledge as to what the contract really was; and their testimony was conflicting. Upon the testimony of Swingley the plaintiff should have recovered a verdict for $1,000, less $100 paid, or in other words, $900. Upon the testimony of Bass the plaintiff should have recovered a verdict for $350, less $100 paid, or in other words, $250. The jury in fact rendered a verdict in favor of the plaintiff and against the defendants for $900. On the same day the defendants filed a motion for a new trial, which motion, omitting the caption and signature, reads as follows:
“And now come the defendants in the above-entitled action, and move the court for a new trial in the above-entitled cause on account of the errors of law occurring upon the trial, which are as follows:
“1. In the admission of evidence excepted to by the defendants.
“2. In the rejection of evidence offered by the defendants.
“3. In giving instructions objected to by defendants.
“4. In the refusal of instructions asked for by the defendants.
“5. Because the verdict of the jury is contrary to the law and the evidence.
“6. On, account of newly-discovered evidence which by reasonable prudence defendants could not-have discovered and produced on the trial.”
All the foregoing .proceedings were had while Wyandotte county was a portion of the Tenth judicial district, and before Hon. J. P. Hindman, who was then the judge of that district. Afterward, and on March 19, 1887, Wyandotte county, by virtue of an act of the legislature which took effect on that day, (Laws of 1887, ch. 147, §§11, 12,) became the twenty-ninth judicial district, and Hon. O. L. Miller was appointed and became the judge thereof. On August 1,1887, the motion for the new trial came ou for hearing, and was heard. No blame is imputed to anyone for the delay intervening in taking up the motion for rehearing. On the hearing the defendants, as an additional ground for a new trial, claimed and urged that the then presiding judge was not competent to hear and determine the motion, for the reason that he could not know the relative weight of the testimony of the parties, nor the conduct of the witnesses, nor their manner of testifying, etc.; but such judge heard the motion and overruled the same and refused to grant a new trial, and then entered judgment in favor of the plaintiff and against the defendants for the amount of the verdict and for costs; and to reverse this judgment, the defendants, as plaintiffs in error, bring the case to this court.
The contention of the plaintiffs in error, defendants below, now is, that the court below at the time of the hearing of the motion for the new trial had no power concerning the case except to grant a new trial; and this for the reason that the judge of the court at that time could not know what the evidence in the case was. The motion for the new trial was filed in due and proper time, and the grounds set forth therein were such as are authorized by statute, (Civil Code, § 306,) and upon all the grounds relating to the evidence which had previously been introduced the defendants undoubtedly had the right to have the motion heard before a judge who at that time could know what such evidence was. Indeed, the defendants claim that no judge can in any case hear a motion for a new trial where one of the grounds is that the verdict is against the evidence, except the judge that presided at the trial, and who saw the witnesses, heard them testify, knew what their words were, and their conduct, demeanor and appearance while they were testifying in the case. There are some grounds for such a claim, for under our laws and practice a jury can never in any case determine finally and conclusively what the facts of the case are, for in every case a motion for a new trial challenging the sufficiency of the verdict upon the evidence may be filed, and upon such motion the court is required to reexamine and redetermine all the facts as shown by the evidence. In such a case the judge does not merely register and enforce the verdict of the jury, but it is his duty to intelligently determine whether the verdict is sustained by sufficient evidence or not; and of course he cannot do this unless he presided at the trial, and knows what the evidence was. In the case of Atyeo v. Kelsey, 13 Kas. 212, 216, 217, the following language will be found 'in the opinion of the court, to wit:
“ Where a new trial has been granted, both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of the verdict. As a rule no verdict should be allowed to stand unless both the jury and the court trying the cause can say that they believe that the verdict is correct. While the question is before the jury they are the sole and exclusive judges of all questions of fact. But when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the court to determine for itself whether the verdict is sustained by sufficient evidence or not."
In the case of Williams v. Townsend, 15 Kas. 563, 570, 571, the following language is used in the opinion, to wit:
“It is unquestionably the duty of the district court to set aside a verdict and grant a new trial wherever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact. For, while this is true as long as the jury have the case under their consider ation, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence, and by a preponderance of the evidence, yet, if the verdict is manifestly erroneous he should always set it aside and grant a new trial. And he must be controlled by his own judgment in the case, and not by that of the jury.”
In other words, the verdict of the jury is not sufficient of itself and alone to authorize a judgment. It also requires the decision of the court upon it and upon the evidence. If no motion is made to set aside the verdict or for a new trial, then of course it is admitted by the parties that the verdict is sustained by sufficient evidence, that it should not be set aside, and that judgment should be rendered upon it, and the court will decide accordingly and render judgment accordingly; but where either party files a motion to set aside the verdict and for a new trial upon the ground that the verdict is not sustained by sufficient evidence, then before any judgment can be rendered upon the verdict, the court itself must decide that the verdict is sustained by sufficient evidence, and this of course cannot be done with any degree of intelligence by a judge who did not hear the case tried, for such judge could not know what the evidence was. There is no legal mode of preserving the evidence introduced on the trial of a case except by the intelligent action of the judge who tried the case, and this by a bill of exceptions or by a case-made for the supreme court. (Dunlap v. McFarland, 25 Kas. 489; The State v. McClintock, 37 id. 40.) The evidence was not so preserved in this case, nor preserved at all by the judge who tried the case. It is true a judge in trying a case might take notes of the evidence introduced on the trial, but these notes would not be legal or sufficient evidence to another judge. It is also true that the counsel in the case might take notes, but neither would these notes be competent evidence. It is also true that an official stenographer might be appointed for the district, and that such stenographer might take notes of the evidence, but his notes could not be evidence to another judge nor any part of the record in the case until after they had been submitted to the judge that tried the case and approved by him, and embodied in either a bill of exceptions or a case-made for the supreme court. (The State v. McClintock, supra.) But even if the evidence should be preserved, so far as it could be preserved in any one of the foregoing methods, it would not in fact be all the evidence introduced in the case. It would be only so much of the evidence as could be reduced to writing, the mere words of the witnesses, and not their appearance, nor their conduct, nor the manner in which they testified; and these last-mentioned things are often of vastly more importance and more convincing in the determination of the real facts of a case than any mere words could be. See the numerous cases decided by this court affirming judgments of the trial courts rendered upon seemingly erroneous verdicts — the affirmance being placed upon the ground that the judges of the trial courts who saw the witnesses and heard their testimony, and who for that reason could know better than the judges of the supreme court what the evidence proved and what it disproved, had approved the verdict. Now as the evidence introduced on the trial before one judge cannot well be presented to another judge, it would seem that when a new trial is asked for on the ground of the insufficiency of the evidence to sustain the verdict, and the application is presented to a j udge who did not hear the evidence, all that he could do would be either to entertain the motion and grant or refuse the new trial, and this without any evidence whatever, or to refuse to entertain the motion and leave the parties where he found them so far as the motion might affect the case. And in a case like this, where no judgment was rendered by the j udge that tried the case, the result of a refusal by the new judge to entertain the motion would be to require the granting of a new trial; for certainly it will not be contended that the party filing his motion for a new trial may be deprived of his statutory right to have an intelligent hearing and decision upon his motion before any judgment is rendered in the case. If neither party should object to the new judge’s hearing the motion, we suppose the new judge might in a case like this entertain the motion; but should he entertain it for any purpose except to grant a new trial? Possibly the former judge,' acting as a judge pro tem. under §§4 to 8 of the act concerning district courts, might hear and determine the motion, but if he could not or would not, then it would seem to be necessary for the new judge to entertain the motion for some purpose; and again we might ask the question, could he entertain it for any purpose other than merely to grant a new trial ? Of course, where the trial judge has gone out of office since the trial, and a new judge has taken his place, the new judge would be the only one who could hear a motion for a new trial founded upon any grounds that would require the introduction of new evidence, and he would also be the only judge who could hear a motion for a new trial founded upon an agreed statement of the facts of the case, or upon such grounds as might be shown by the record of the case; probably, also, he would be the only judge who could hear and determine the motion where the case had been tried before a referee; but the same rules cannot apply in any case where the trial has been before a referee as where it has been before the court or before the court and a jury. And perhaps also the new judge might hear a motion for a new trial founded upon any grounds admitted by the parties, but could he hear it upon any grounds that would necessarily involve a consideration of the testimony which had previously been introduced in evidence on the trial of the case before his predecessor in office? We would think not; or rather, we would think that he could consider the motion only for the purpose of granting a new trial. The great weight of authority seems to be that where the trial of the case has been had before one judge, and the motion for the new trial is presented and sub- . _ . . x ,, nutted to another ludge, who did not preside at jo? r the trial, and one of the grounds for the new trial is that the verdict is not sustained by sufficient evidence, the new trial should be granted as a matter of course. As tend ing to support these views, see the following cases: Woolfolk v. Tate, 25 Mo. 597; Cocker v. Cocker, 56 id. 180; The State v. Boogher, 3 Mo. App. 442; Ohms v. The State, 49 Wis. 419, 422, et seq.; United States v. Harding, 1 Wall. Jr., 127, 138, et seq.; The King v. Baker, 1 Carth. 6; Warrain v. Smith, 1 Bulst. 146; The People, ex rel. Wright, v. Judge of Superior Court, 41 Mich. 726; Simonton v. Simonton, 80 N. C. 7, and cases there cited; Jones v. Holmes, 83 id. 108; Shelton v. Shelton, 89 id. 185. In the case of Woolfolk v. Tate, 25 Mo. 598, 599, the following language is used:
“A party to a suit has the same right to have his motion for a new trial heard and duly considered as he has to institute or defend an action. An acknowledged ground for granting a new trial is, that a verdict is against the weight of the evidence ; and if, in this case, the court was embarrassed by the circumstances, and could not pass on the merits of the motion, it ought to have directed a new trial. It is better to allow a new trial, where the court for any cause cannot consider the merits of an application for that purpose, than to refuse it; for by denying the motion, without giving a party the benefit of being heard or of having his reasons considered, irreparable injury may be done, while on the other hand the prevailing party in the verdict will only suffer by delay, and generally will secure another verdict if he is entitled to it.”
In the case of Ohms v. The State, 49 Wis. 422, 423, the following language is used:
“When a motion for a new trial is made upon the minutes of the court, it is imperative that such motion should be heard by the judge who tried the cause, unless the party who makes the motion consents that it may be heard by some other judge. It would seem to be impossible for a judge to intelligently determine a motion for a new trial upon the minutes of the court unless he presided at the trial. Without being present at the trial, unless a bill of exceptions or case were first settled or agreed upon, containing a full history of all that took place, he could know nothing of the matters which he ought to know in order to give an opinion as to whether a new trial ought to be granted; and even upon a case or bill of exceptions made and settled, he would not be in a position to give a very satisfactory opinion upon the motion. In that case he would be very much in the position in which the court finds itself when called upon, under our statute relating to appeals, to review the opinion of the trial judge in granting or refusing a new trial; and this court has repeatedly held that it must be a case of very gross error which will induce this court to interfere with the discretion of the trial judge in granting or refusing a new trial upon the evidence, or for other matters occurring during the trial. . . . ‘ The exercise of a sound discretion in such matters often depends upon a variety of facts and circumstances which cannot be described on paper and brought before the appellate tribunal with their original force and influence, and which no one but the judge before whom the case was tried can fully and properly estimate. Many of these facts and circumstances are absolutely incapable of such delineation; and' to say that the discretion depending upon them shall be transferred to another court, there to be exercised without the means of forming a correct judgment, seems impossible.’ This argument is equally forcible when applied to the case of hearing a motion for a new trial upon the minutes of the court, when such motion is made before a judge who did not preside at the trial.”
In the case of The State v. Harding, 1 Wall. Jr. 139, et seq., the following language is used:
“To my mind the principle of the law is clear: the defendant, before sentence can be pronounced on him, has a right to the judicial determination of bis guilt by the court, as well as by the jury. If the verdict does not satisfy the. conscience of the judge the prisoner is entitled to a new trial. After the verdict is rendered, the judicial discretion is still in exercise, and at any time before the sentence is recorded it may modify the punishment if the statute has not made it specific, or set aside the conviction altogether. It does not need a motion on the part of the defense; the judge himself, at the very latest moment, may, sua sponte, award a new trial. . . . I have found enough to satisfy me that where those [English] courts are vested with a discretion as to their action on a verdict, that discretion is never exercised without unequivocal, direct judicial knowledge of the facts disclosed on the trial.”
In this connection see the cases of The State v. Bridges, 29 Kas. 138, 141, et seq.; M. A. & B. Rld. Co. v. Keeler, 32 id. 163. In the case last cited it is held as follows:
“ It is error for a trial court to overrule a motion for a new trial merely pro forma. Every trial court should exercise its best judgment when such a motion is presented to it, and should rule accordingly.”
Where a case is tried before both the court and a jury, each party is entitled to have the intelligent opinión of both the court and the jury upon the evidence introduced; and to permit another judge, who did not hear the evidence, to determine whether the verdict of the jury is sustained by sufficient evidence or not, would be very much like permitting another jury that did not hear the evidence introduced on the trial to render the verdict in the case. If a party in such a case may, against his will, be deprived of the opinion of the court upon the evidence introduced, why may he not also against his will be deprived of the opinion of the jury upon the evidence? Why, indeed, may not a trial upon a single cause of action be divided into parts, and one part be before one judge and jury upon a portion of the evidence, and another. part be before another judge and jury and upon another portion of the evidence ? This would all be wrong. Each party, we think, in a trial before the court and a jury, is entitled to the intelligent opinion of both the court and the jury, and no judgment could properly be rendered in the case against the will of either party until he has had the intelligent opinion of both the court and the jury.
We think the court below, under the circumstances of this case, should have granted a new trial; but as it did not, its judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
One L. H. Bowlus was charged with the crime of embezzling school funds belonging to District No. 2, of Barber county. He was arrested, taken before a justice of the peace in that county, had a preliminary examination, and was bound over to appear before the district court of that county. At the May term, 1881, he made an application for a change of venue, and the case was sent to the district court of Harper county for trial. In the district court of Harper county the case was continued from term to term, until the July term, 1882, when it was continued until the next term; and in default of bail in the sum of $3,000, the defendant Bowlus was committed to the jail of Harper county.
On the 5th day of August, 1882, Bowlus tendered to the sheriff a bond, of date July 31, 1882, for his appearance at the next term, signed by Hiram Raff and Charles Collins as sureties, and this bond was approved, and the defendant released from custody. Bowlus appeared at the next term of court, being the March term, 1883, was tried and found guilty, and disappeared before sentence was pronounced. On the 14th day of April, during the March term, a forfeiture of the recognizance was adjudged by the court. The county attorney brought suit on the forfeited recognizance, in Harper county, and a summons was issued and personally served on Hiram Raff and Charles Collins, by the sheriff of Reno county, they being residents of that county, and never having resided in Harper county. Bowlus was not found, and the only persons served in the action were Raff and Collins, there being no surety on the recognizance residing in Harper county. A judgment was rendered against Raff and Collins in due time for the amount of the recognizance, $3,000, and costs. An execution was issued, and directed to the sheriff of Reno county; and Raff and Collins then commenced this action to restrain the sheriff of Reno county from levying the execution, and to perpetually enjoin the collection of the judgment. The board of county commissioners of Harper county were made parties on their application, and a trial was had at the July term, 1887, of the Reno county district court, which resulted in a judgment perpetually enjoining the collection of the judgment. The case was then brought here for review.
While there have been elaborate briefs filed, and a somewhat protracted oral argument made on the various questions raised in this case, its disposition in this court turns upon the one single question, as to whether or not a recognizance in a criminal case must be sued on in the county in which it was forfeited. Strictly speaking, a recognizance is a debt confessed to the state, which may be avoided upon the conditions stated. At common law the forfeiture of the recognizance was equivalent to a judgment, but no execution was awarded against the cognizors until after the return of a soire facias. The sole object of the writ of soire facias in cases of this character was to notify the sureties on the recognizance of the default of their principal, and give them an opportunity to show cause why the forfeiture should not be enforced by execution. Another theory of the common law was, that the cognizors, by an acknowledgment of the cognizance, had already submitted themselves to the jurisdiction of the court. Out of these two propositions — first, that the forfeiture of the recognizance was equivalent to a judgment, and second, that by an acknowledgment of the recognizance the recognizors had submitted themselves to the jurisdiction of the court— grew a universal rule, that recognizances must be prosecuted in the court in which they were taken or acknowledged, or to which they were returned. This rule is in force to-day in this state, unless changed by statute. We have been unable to find any statutory definition of a recognizance, by the legislature of this state. The word recognizance is used in the statutes with reference to its well-defined legal meaning. And while the mode of taking them, and of enforcing the forfeiture, is changed in some respects to conform to our system of procedure, their legal characteristics still remain. They are not taken and acknowledged in open court, except perhaps in rare instances. When they are so taken, the appearance and acknowledgment of the recognizors are entered on the journals of the court. The usual mode now is by a written obligation and acknowledgment, and this is returned to the clerk, and is recorded in a book kept for that purpose, and called the recognizance docket. Erom the time of filing with the clerk, it has the same effect as if taken in open court. (Crim. Code, § 144.) The effect of this legislation is to make recognizances taken out of court, by the officers authorized by law to take them, a part of the record of. the criminal case in which they are taken. They are still an obligation to the state, which may be avoided by the cognizors by producing the body of the person charged with the commission of a public offense, before the court, at such times as by the terms of the record, or the order of the court, he is required to appear. While they may be contracts, in the same sense that a judgment is a contract, they are not contracts within the ordinary significance of that word. The forfeiture of a recognizance is declared by the statute. (Crim. Code, §152.)
“If, without sufficient excuse, the defendant neglect to appear for trial or judgment, or upon any other occasion when his presence in court may be lawfully required according to the condition of his recognizance, the court must direct the fact to be entered upon its minutes, and the recognizance of bail, or money deposited as bail, as the case may be, is thereupon forfeited.”
It is not necessary that there shall be a formal and express declaration by the court that the recognizance is forfeited. The fact that the defendant did not appear at the time required by the terms and conditions of the recognizance or the order of the court, is entered on the journals as the evidence that the conditions were not complied with, and the forfeiture follows by the operation of law. It has been held in this court that it is not material in a suit on a forfeited recognizance that it be shown that the default was ever in fact entered of record. (Barkley v. The State, 15 Kas. 99.) And this is upon the theory that the default or act of omission is but the evidence of the forfeiture. As a matter of proof the record would be the best and most satisfactory evidence; but if there is no record of the default, it can be proven aliunde. (Ingram v. The State, 10 Kas. 630; Crim. Code, § 154.)
Section 332 of the criminal code provides:
“All fines and penalties imposed, and all forfeitures incurred, in any county, shall be paid into the treasury thereof, to be applied to the support of the common schools.”
Fines and penalties are imposed by the court; forfeitures are incurred by the party liable or subject to the condition. A failure to perform the condition upon which the cognizors were to be excused from paying the amount of the bond is a forfeiture imposed by the express terms of the statute, and comes within the operation of § 332 of the criminal code, quoted above. (In re Ison, 6 Ore. 469.) In the case of Blake v. Comm’rs of Johnson Co., 18 Kas. 266, this court expressly declares that the county treasurer is by the statute made the proper party to collect moneys due on a judgment of a forfeited recognizance, and that his duty is to pay the money collected on such a judgment to the school-district treasurers. And this has been the uniform practice in this state ever since its admission. All officers have acted in accordance with this understanding. County officers have been so advised by the attorney general of the state. Every provision of the statute is framed and proceeds on the theory that a broken recognizance is a forfeiture; and this court has universally applied that term to a defaulted recognizance. If it is not a forfeiture, the money arising therefrom does not belong to the school fund. If it is not a forfeiture, it is not properly placed in § 332 of the criminal code, because with the exception of the recognizance, or money deposited in lieu thereof, there are no other moneys to be forfeited to the state in a criminal proceeding by failure to perform any condition created by statute or any order within the power of the court to make. The implication of all statutory expression is, that an action on a forfeited recognizance must be brought in the county in which the forfeiture was incurred; and this is in accordance with the case of Crisman v. The People, 3 Gilman, 351.
Section 43, code of civil procedure, provides that an action for the recovery of a fine, forfeiture or penalty, imposed by statute, must be brought in the county where the cause of action arose. This broken recognizance is a forfeiture, (In re Ison, 6 Ore. 471,) and the action for the recovery of the amount of the forfeiture was rightfully brought in Harper county, where the recognizance was an obligation of record. It follows that the district court of Harper county had jurisdiction both of the subject-matter of the action and of the persons of Raff and Collins, and that the judgment of the district court of Reno county is wrong. The plaintiffs in error are not estopped by their motion for, and order of, revivor. Pending these proceedings in error, Hiram Raff died, and this cause was revived both in this and in the district court. The plaintiffs in error had the legal right to have the action revived against the legal representatives of Raff, and are not estopped by this from now claiming that there was error in the record.
It is recommended that the judgment be reversed, and the cause remanded to the district court with instructions to render a judgment in accordance with this opinion.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Counsel for the plaintiff in error, defendant below, in their brief filed in this court make the following statement:
“ The sole question in this case is as to what judgment should be entered on the special findings. It is a case where the necessity of special findings to control the tendency of juries to ‘lump things’ into ‘general results’ is especially apparent. Upon each of the five causes of action of defendant in error, plaintiff below, the jury found specially the amount of his recovery ; and out of these numerous items of defendant’s counterclaim, allowed him five. The jury brought in a general verdict for $365.15. The judge thought the verdict inconsistent with the special findings, and by consent of plaintiff, to avoid a new trial, reduced this amount by $71.99 before entering judgment. Plaintiff in error, defendant below, brings this ease here because he thinks the judgment as rendered inconsistent with the special findings, in that judgment upon the special findings should have been for only $134.16.”
The judgment was in fact rendered for $293.16, and costs of suit. The counsel for the defendant in error, plaintiff below, complains as strenuously of the verdict and findings of the jury and of the judgment of the trial court as do the counsel for plaintiff in error. The counsel for the defendant in error claims that the judgment in favor of his client should have been for a sum not less than $665.35; but in the condition of the record brought to this court, and as no cross-petition has been filed in this court, we cannot consider any of the complaints made by the defendant in error, but must confine our investigation solely to the complaints made by the plaintiff in error. Of course if the special findings of fact made by the jury are inconsistent with their general verdict, the former will control the latter, and the judgment in the case must be rendered accordingly. (Nichols v. Weaver, 7 Kas. 373.) But the special findings of the jury will not be held to be inconsistent with their general verdict unless they are clearly and necessarily so. If the special findings and the general verdict can be harmonized and made to agree by taking into consideration the entire recorq Qf thg case and construing the same liberally, for that purpose it is the duty of the court to so harmonize them. Upon this question see the following cases: Partonier v. Pretz, 24 Kas. 238; Mays v. Foster, 26 id. 518; Mo. Pac. Rly. Co. v. Holley, 30 id. 465. Viewing the case in this light, there is certainly no conflict between the special , . r. findings and the general verdict ot the jury prejudicial to the plaintiff in error. The defendant in error has as much reason to complain in this respect as the plaintiff in error has. Indeed, if the general verdict of the jury and the judgment of the court below had been for a larger sum than they actually were, we would still think that the judgment might be sustained. We think it is useless to go into the details of the special findings. We might say, however, that if the jury, in making up their general verdict, had allowed all the items mentioned in their special findings, for and against both parties, without interest, their general verdict would have been in favor of the plaintiff below, defendant in error, and against the defendant below, plaintiff in error, for $397.13. And if they had allowed interest on such of the items as they should have allowed interest, the amount of the general verdict in favor of the plaintiff below would have been increased; and if they had allowed interest on all the items, the amount of the general verdict in favor of the plaintiff below would have been still further increased. The jury, however, in making up their general verdict, did not allow all the items mentioned in their special findings. They probably disallowed items claimed by each of the parties. If they had allowed all the items in favor of the plaintiff below, we could not say that they would have thereby committed any error; and if they had refused to allow certain items in favor of the defendant below, to wit, one item of $283.50 for the defendant’s watching and taking care of the land under his right as a tenant, and another item of $24.19 for repairing fences, which last-mentioned item was included in another item of $141.18, we could not say that the verdict would have been erroneous.
In whatever aspect we may view this case we cannot say that any error was committed by or in the court below prejudicial to the defendant below, plaintiff in error, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The plaintiffs filed their petition in the district court of Shawnee county, praying that the defendants be enjoined from taking steps looking to the collection of a special assessment, or threatened assessment, on their property near Sixth avenue in the city of Topeka, for the improvements being made thereon. The petition states that the plaintiffs are the owners of certain lots, describing them, in the city of Topeka, on Topeka avenue, Van Burén, Tyler, Polk and Taylor streets; averring further, that the city of Topeka had entered into a contract to grade, curb and pave Sixth avenue from the west line of Jackson street to the western boundaries of the city; that it made such contract without authority, and also that the lots above named do not abut upon Sixth avenue and are not benefited by the grading, curbing and paving of said avenue, and that the several lots named are not liable for the costs of such improvement. They also further allege that the city council directed a special assessment and levy to be made; that the city clerk had threatened and was about to certify said special assessment to the county clerk of Shawnee county to be placed on the tax-rolls of said county, etc. A temporary restraining order was issued by the probate court of Shawnee county on August 30, 1888; on the 6th day of September a motion was made to dissolve such order, giving as a reason therefor that the allegations in plaintiffs’ petition were untrue, except as specially admitted in defendants’ answer. This motion was heard upon the 7th, upon oral testimony, and the injunction dissolved; the plaintiffs are here as plaintiffs in error.
The plaintiffs complain, first, that the court allowed oral testimony to be introduced, at the hearing of the motion; second, that the city engineer had made no special detailed estimate of the cost of grading, curbing and paving this avenue or street; third, that the court erred in holding that the lots in question were liable for improvements upon a street upon which they did not abut.
Concerning the first objection, it appears that both parties met and announced themselves ready for trial, and although the plaintiffs objected to the introduction of oral testimony, they did not ask for a continuance; and oral evidence was offered both by plaintiffs and defendants on the hearing of the motion. It is doubtful whether this objection is fairly raised by the record; in any event, after the plaintiffs themselves offered oral testimony without any application for a continuance, or any showing that they were prejudiced in any way by the ruling of the court, we are of the opinion that whatever ground the plaintiffs may have had for error in this proceeding was waived; it is, not in their mouths to claim now, under the circumstances, that the court erred in proceeding with the trial after they had announced themselves ready.
The second objection is, that there has been no detailed estimates of the grading, curbing and paving of this avenue. There had been estimates submitted by the city engineer stating the number of yards to be graded and the cost per yard, number of yards to be paved and cost per yard, number of lineal feet of curbing and the cost per lineal foot, and of the engineering and other expenses. The only concern these plaintiffs could have in 'the estimates made by the city engineer is in the paving and curbing of the avenue in question. The engineering and grading were to be paid out of the general-improvement fund by the city, and we therefore shall only examine the estimates made for paving and curbing. Part of the avenue was to be paved with stone and asphalt, and the estimate of the city engineer on that part to be thus paved was 2,633 square yards, at a cost of $2.85 per square yard; curbing, 600 lineal feet, at 85 cents per lineal foot; the number of yards is given and price per yard, and the aggregate cost of paving; the number of lineal feet of curbing is given, and price per foot, and aggregate amount. We would suppose this was sufficiently detailed and definite, but the plaintiffs say that it was specified it should be of stone and asphalt, which is an uncertain if not an improbable description of the paving of the street. We cannot agree with them in that contention. The ordinary paving called asphalt is the overlaying of a mixture of asphalt, lime and sand upon a body of rock or stone, and we do not believe that anyone could have been misled by the statement that it was stone and asphalt. Part of the estimates provided that the paving should be of red cedar wood, and the number of square yards, giving cost per square yard, and aggregate amounts, and also the curbing as above set forth.
The plaintiffs cite us to Gilmore v. Hentig, 33 Kas. 175; and Hentig v. Gilmore, 33 id. 234. In those cases the estimates were held to be insufficient; they were not made under oath, as provided by law, and although they gave the number of feet and price per foot of paving, they failed in any way to intimate what the pavement should consist of, whether wood, stone, stone and asphalt, plank, brick, or concrete, and it was there held an insufficient estimate under the law. But in this instance the estimate is under oath, the area and cost are given, and in addition the kind and nature of paving is set forth. The reasons given in those eases why the estimates were not sufficient, have been complied with in this instance. We believe the estimates were sufficient under Comp. Laws of 1885, ch. 18, § 22.
The further and last objection we shall notice is, that these lots do not abut upon the street to be paved and curbed, and therefore are not liable for the expense of paving and curbing. It is not necessary that they abut upon the streets to be improved. (City of Ottawa v. Barney, 10 Kas. 270.) The statute has provided in what way streets shall be improved, and what property is liable for the improvement. Section 4, chapter 99, Laws of 1887provides : “For all paving, curbing and guttering of the streets and alleys, assessment shall be made for the full cost thereof on each block separately, and all lots or pieces of ground to the center of the block on either side of each street or avenue the distance to be improved.” This provision has been construed in Blair v. City of Atchison, 40 Kas. 353. It appears in evidence that these lots, while they are within that half of the square next to the street to be improved, are separated from that portion of the lots nearest the street by an alley running through the square, but not through the center thereof, and the lots in question, although they were on the other side of the alley from the street improved, were in that half of the square next to it. This brings them within the rule enunciated in Blair v. City of Atchison, supra. To break its force the plaintiffs contend that a block is any compact body of land in a city surrounded by any public ways, whether they be streets, avenues, lanes, or alleys, and that the part of the city inclosed by streets should be denominated a square as distinguished from a block. They further say this construction could be readily applied in Topeka especially, for the reason that the squares have not been numbered here as blocks as they have been in most of the other cities of the state. The statute provides that words shall be construed according to the approved usages of the language, except technical words and those that have acquired a peculiar meaning, which shall be construed according to their peculiar meaning. (Comp. Laws of 1885, ch. 104, § 1.) We have no hesitation in saying that the ordinary signification of a block in a city is understood to be a part of the city inclosed by streets. It is certain that a block has no such technical and peculiar meaning in Kansas, as contended for by plaintiffs; on the contrary, its ordinary signification has been approved and emphasized in this court. In the case of City of Ottawa v. Barney, supra, Judge Brewer, in rendering the opinion of the court, says: “A block is defined by Webster as ‘a'square or portion of a city inclosed by streets, whether occupied by buildings or composed of vacant lots.’ It is a portion of ground surrounded by streets.” We are well satisfied with the definition, and taking it as our guide in this decision, it follows as a matter of course that the word square, used by plaintiffs, is synonymous with block, and therefore these lots in question lying on that part of the block nearer this avenue than to the street on the opposite side thereof, are subject to taxation for these improvements, without any reference whatever to where the alley runs through the block or square.
The judgment of the court in dissolving the restraining order was correct, and we recommend that it be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was brought by Charles E. Eaulk, plaintiff in error, for the purpose of compelling the defendant, as director of School District No. 6, Finney county, to sign an order on the district treasurer for the payment of $40 for wages as teacher for one school month. The Hon. A. J. Abbott, judge of the twenty-seventh judicial district, granted an alternative writ of mandamus. On January 1, 1888, in the Finney district court, a motion to quash the alternative writ was sustained. The plaintiff brings the case here for review.
It is claimed that the alternative writ of mandamus, treated as the petition of plaintiff, did not state facts sufficient to constitute a cause of action, for two reasons: first, that it is not shown that the contract between the teacher and the school-district board was in writing; second, that the director is not required by law to sign the orders drawn by the clerk upon the treasurer for the payment of'teachers’ wages. In the alternative writ it is alleged that the plaintiff and the school district entered into a contract to teach the district school in District No. 6 for six months at $40 per month, payable at the end of each month.
The general allegations that the contract between plaintiff and the school district was in writing are sufficient, but defendant contends that these general allegations are limited by the following part of this writ, namely: “That said written contract was entered into by and between said plaintiff and said school district in pursuance to and with an agreement, verbal contract, and order, previously thereto made and entered into by and between said plaintiff and said school district at and during a meeting of said school-district board, held as aforesaid, prior to so making and entering into said agreement, verbal contract, and order.” A general allegation cannot be held to be any broader or more effectual than the special circumstances that are detailed in the pleading; therefore we are called upon to pass directly upon the question as presented by the charges specially detailed as above set forth. There was a contract entered into between the plaintiff and the district board, not by a part of the members thereof, but by the district board; that contract, being in parol, was afterward reduced to writing. It may have been done immediately after the adjournment of the board; in, any event, the contract is embodied in writing made and authorized by it. It was the contract of the board, and was reduced to writing. Probably a majority of the contracts for teachers’ wages in the state are made in parol, and afterward reduced to writing; it may be done at a meeting of the district board — that is the better way; it may, however, be directed to be done at that time and immediately afterward reduced to writing and signed by the parties. In this case the contract was signed by the treasurer and countersigned by the clerk; ordinarily the contract is signed by the director, but we know of no rule that would prevent the treasurer from signing instead of the director. The main fact to be determined is, whether the board made this contract; if it did, it could be reduced to writing and signed by the director or the treasurer. The law requiring the written contract between the teacher and the district board was sufficiently complied with in this instance.
It is the manifest duty of the director to sign all orders drawn by the clerk upon the treasurer for moneys to be disbursed by him. Section 36, chapter 92, defining the duties of the director, is:
“The director of each district shall preside at all district meetings, and shall sign all orders drawn by the clerk . . upon the treasurer of the district for moneys collected or received by him to be disbursed therein.”
Section 47, id., defining the duties of the treasurer, is:
“ The treasurer of each district shall pay out, on the order of the clerk signed by the director of the district, all public moneys which shall come into his hands for the use of the district.”
These provisions are explicit and comprehensive; they are not abrogated, limited or modified by § 39, which refers solely to the duties of the clerk. It was the imperative duty of the defendant as director of the school district to sign the orders when presented to him for his signature; he had no discre tion in the matter. The court should have compelled him to do his plain duty.
We recommend that the judgment be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
William Gilruth, a wealthy farmer, living in Scioto county, Ohio, placed with Jeff. Thompson, at St. Joseph, Missouri, in 1860, five land warrants for him to locate on government lands in Kansas. Shortly after, Thompson went south into the rebel army, and never reported concerning the warrants. Gilruth heard nothing of them, nor of any land upon which they might have been located, until sometime in 1870, or 1871, when he saw in a Marshall county-newspaper that five quarter-sections of land, assessed in his name, were advertised in the delinquent tax-lists of that county; he then told his son Archibald that if he would look up all the lands and pay all the taxes and charges that might have been assessed against them, he might have them. Archibald borrowed $500 from his brother Thomas, came to Kansas and redeemed part of the land, including the quarter-section in controversy. A few years afterward, he went as missionary to India, where he now is. Before he went he told his sister Mary, now Mrs. Goodard, that if she would pay the debt due Thomas, she might have his interest in the lands; she has since, paid that debt in full. No deeds or any memoranda were ever executed, either by Gilruth the father or Archibald the brother, to Mrs. Goddard. In 1879 the old gentleman died intestate. He had requested before his death that his property should be divided, as nearly as possible, into nine equal shares — one share to each of his children surviving him. His property, both real and personal, except the lands in Kansas and a tract which came to him by his wife, who died long before, was amicably divided and distributed. In 1885 five of his heirs- united in a warranty deed of the Kansas lands, without consideration, to Mrs. Goddard, and one Col. Gilruth executed a quitclaim deed for the consideration of $300 expressed in the deed, although as a matter of fact no consideration passed. Mrs. Kelly, an older married sister, refused to convey her interest therein unless she should be paid for it. Archibald Gilruth had paid all taxes and charges upon the land up to 1875; since then up to the commencement of this action the taxes were paid by Mrs. Goddard; the land was assessed up to 1886 in the name of William Gilruth.
January 4, 1886, Mrs. Kelly and her husband for a valuable consideration conveyed by quitclaim deed the undivided one-ninth interest to the southeast quarter of section 35, town 5, range 9, Marshall county. The above-mentioned deeds to Mary Goddard were on record at this time in the office of the register of deeds of Marshall county. In June, 1886, Daniel Donaha commenced this action for partition of this land, claiming that he owned an undivided one-ninth interest therein. At the trial, at the August term, 1887, of the Marshall district court, plaintiff introduced his quitclaim deed from Mrs. Kelly and her husband, and rested. The pleadings showed that Mrs. Kelly was one of the heirs of William Gilruth. The defendant demurred to the evidence; the demurrer was overruled, and the defendant then introduced his testimony.
We think the court erred in overruling the demurrer to the evidence, but as the defendant offered testimony subsequently, showing the entire interest both of Mrs. Kelly and Mrs. Goddard, the error was immaterial. A quitclaim deed of itself, given directly to the party claiming under it, is enough to put him on inquiry, and as against a paramount title held by another, which might have been ascertained by reasonable diligence, he will be held to have purchased with notice. (Johnson v. Williams, 37 Kas. 139.).
There was quite a volume of evidence introduced at the trial, and considerable stress laid upon its sufficiency in the briefs, in reference to the inquiries or lack of inquiries by Donaha about the title and ownership of this land. The evidence on that subject is entirely immaterial under the other facts proven in the case, for, under all the evidence adduced, it would make no difference what inquiry he made. He paid Mrs. Kelly full value for the land, and obtained by the quitclaim deed all the estate she and her husband had in it — nothing less and nothing more. (Belz v. Bird, 31 Kas. 139; Trustees v. Hewitt, 37 id. 107.)
The vital question remaining in this case, therefore, is what interest, if any, did Mrs. Kelly have in this land ? It is admitted she was the heir of William Gilruth, and unless the land was transferred by him to Archibald, and by Archibald to his sister Mary, she would have had the undivided one-ninth interest which she attempted to convey to Donaha. William Gilruth never executed any conveyance to either his son Archibald nor Mary G. Goddard, nor did Archibald execute any deed or any other written instrument to her. Neither Archibald nor Mary ever took possession of the land until after the deed was made by Mrs. Kelly to Donaha, when Mrs. Goddard testified she took possession. There was an agreement with the old man that if Archibald should pay all the taxes and charges against the land, he might have it, but this contract, not being in writing, was prohibited by the statute of frauds. Mrs. Goddard never had any written proof of her title until the deeds were made to her by the other heirs. To be sure, the full purchase-price had been paid, yet without taking possession of the land and making some valuable improvements upon it, or by doing some act which would have placed the purchaser in a position where she could not be restored to her original condition by the repayment of the money with interest, she could not have enforced this contract in an action for specific performance.
These agreements, made between William Gilruth and his son Archibald, and Archibald and Mary, were not conveyances in themselves — they were simply agreements to convey. The defendant at most had only a lien upon Donaha’s undivided one-ninth part of the land for the payment of the taxes and charges by herself and her brother Archibald, which the court recognized in its judgment.
In conclusion, we repeat that Mrs. Kelly was one of the heirs to this land at the time of the old gentleman’s death, and so obtained by descent an undivided one-ninth interest therein, subject only to a lien for the taxes paid thereon, and that Donaha obtained such interest by the quitclaim deed executed to him.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for partition of real estate and for a money judgment in the sum of $605.80 for taxes and repairs on the property involved. Plaintiff sought a lien on defendants’ interest for that amount. Defendants’ answer denied plaintiff had an interest in the property and sought an accounting and a money judgment against the plaintiff in the amount of rents plaintiff had collected from the premises during a period of approximately sixteen years.
The court decreed plaintiff had a one-half interest in the property, but gave one of the defendants, Minnie Lish Wehmeyer, a lien on plaintiff’s interest in the amount of $120.53, that being the amount the court found the accounting disclosed defendant was entitled to receive. From that judgment the defendant, Minnie Lish Wehmeyer, appeals.
The other defendant was T. W. Wehmeyer, appellant’s husband. We shall refer to the parties as plaintiff and defendant. Defendant relies upon an escrow agreement. Plaintiff admits that agreement was executed. He contends the agreement was not carried out but was materially modified and entirely abandoned as an escrow agreement. He relies upon the subsequent acts and conduct of the parties over a period of approximately sixteen years including the execution and delivery of a warranty deed from defendant to him which was of record for that period of time.
The general facts indicating the nature and origin of this action and the defense thereto are:
Plaintiff and defendant were formerly husband and wife; a divorce was granted to the defendant April 3, 1925; defendant in this action was awarded the property in question, a residence in the city of Wichita; thereafter and on May 28, 1925, before the decree of divorce became final, the parties executed a mortgage to the Southwest Building and Loan Association of Wichita, which will be re- ■ ferred to as the loan company, upon the property in the sum of $1,750; the mortgage was payable in monthly installments of $22.23; it appears the loan company required plaintiffs signature to the mortgage; the record does not disclose, but it is suggested plaintiff’s signature was required because the divorce decree had not yet become final; defendant found herself unable to make the payments on the mortgage and went to her former husband for help; she borrowed $112 from him to make payments, including taxes, on the premises; defendant gave plaintiff a second mortgage in that amount on the property; thereafter and on Decemeber 21, 1925, plaintiff and defendant entered into a written contract concerning the property; the pertinent provisions thereof were that plaintiff agreed to pay the mortgage to the loan company; in consideration of such payment defendant was to execute and deliver to plaintiff a quitclaim deed for an equal undivided one-half interest in the property; the agreement provided the quitclaim deed should be placed in escrow in a named bank with instructions to deliver the deed to plaintiff upon the presentation of a receipt by him showing the mortgage had been paid and released; the agreement also provided that if plaintiff failed to make the mortgage payments the escrow holder was to return the deed to the defendant; it was also agreed the second mortgage above mentioned was to be released by plaintiff; while plaintiff conceded the agreement was signed he testified he did not remember ever having received a copy thereof and that the contract was not placed in escrow; plaintiff never received the quitclaim deed from the defendant and defendant does not contend she ever executed it; defendant admits she never placed the written contract or any deed in escrow as provided by the escrow contract.
Plaintiff claimed the purported escrow agreement was abandoned. The record discloses: That instead of defendant giving plaintiff a quitclaim deed as provided in the escrow agreement of December 21, 1925, that thereafter and on January 14, 1926, plaintiff executed and delivered a quitclaim deed for the property to the defendant and that such deed was recorded by the defendant personally on January 22, 1926 (it will be observed that quitclaim deed was executed some twenty-four days after the date of the alleged escrow agreement); that quitclaim deed was an unqualified conveyance of all of plaintiff’s interest in the property; on January 18, 1926, the defendant executed a warranty deed, not provided for in the escrow agreement, wherein she conveyed a present undivided one-half interest in the property to the plaintiff; the warranty deed provided the grantee, plaintiff, assumed and agreed to pay the mortgage held by the loan company; plaintiff recorded that deed on January 22, 1926 (it is the deed upon which plaintiff relies); in 1932 defendant gave a mortgage on her undivided one-half interest to a party in Oklahoma; it is conceded the loan company mortgage was paid off in 1939 and that the note and mortgage were delivered to the plaintiff; no steps were taken by the defendant to cancel and set aside the warranty deed and no objections were made thereto by her until immediately preceding the filing of the instant action on December 11, 1941; defendant was married to T. W. Wehmeyer in the fall of 1926.
The trial court made extensive findings of fact concerning the dealings and transactions of the parties during the approximately sixteen-year period, including the payment of taxes and the making of repairs on the building by the plaintiff and the application of rentals from the building on the mortgage loan. The court found the contemplated escrow agreement was mutually abandoned and that the quitclaim deed from plaintiff to defendant, not provided for in the escrow agreement, was given for the purpose of and did restore to the defendant, Minnie Lish Wehmeyer, all rights, if any, in the property which the plaintiff, Roy Lish, acquired by reason of the escrow agreement. The court further found that, in consideration of the subsequent delivery of the warranty deed to the plain tiff, the plaintiff released his second mortgage on the premises. The court also found that all payments made by the plaintiff upon the mortgage and for taxes and repairs were made in reliance upon the subsequent warranty deed which was executed and delivered to him on January 18, 1926, and recorded January 22, 1926.
Defendant contends the evidence does not support the finding that the escrow agreement dated December 21, 1925, was abandoned. While the conduct of the parties subsequent to December 21, 1925, is not wholly out of harmony with all the terms of the escrow agreement it would be difficult, if not impossible, to say the finding of the court was not amply supported by the evidence. It is admitted the quitclaim deed from defendant to plaintiff, provided for by the escrow agreement, was never executed. About three weeks elapsed and then an entirely different quitclaim deed was executed. It was a deed from plaintiff to defendant, not required or contemplated at all by the escrow agreement. Defendant personally recorded the latter deed on January 22, 1926. That quitclaim deed was notice to the world that plaintiff had conveyed all of his interest in the property, whatever it might be, to the defendant. That, of course, included any interest plaintiff might have under the alleged escrow agreement, assuming it had been deposited in escrow, which it was not.
It will be observed the quitclaim deed to the defendant and the warranty deed to the plaintiff were recorded by the respective grantees on the same date, to wit: January 22, 1926. Defendant concedes she had the original and one copy of the escrow agreement. She says she intended at the time of its execution to deposit the agreement in the bank. She admits, however, that she never did so. She concedes that still later, on January 18, 1926, she executed the warranty deed to the defendant. That was approximately one month after the execution of the escrow agreement. That deed, as previously indicated, was not in conformity with the escrow agreement. It conveyed not a future and conditional interest in the property to the plaintiff but a present undivided one-half interest, subject to the mortgage loan which plaintiff, in that deed, assumed and agreed to pay. Defendant said she meant to deposit that deed in escrow with the agreement, but that the warranty deed disappeared from her premises. She charged plaintiff with stealing it. The evidence on that point was conflicting and the court resolved that issue against the defendant. The fact remains, so far as this record discloses, defendant made no demand upon plaintiff for the warranty deed during a period of almost sixteen years. Nor did she at any time deposit the escrow agreement. In 1932, with the record showing a one-half interest in her and a one-half interest in plaintiff, subject to the loan company mortgage, she mortgaged her undivided one-half interest in the property to a party in the state of Oklahoma. Payments of taxes and on the loan were made by plaintiff until the note and mortgage were paid and released to him in 1939. In 1930 he placed a new roof on the building for which he paid. The escrow agreement did not bind him to make repairs. We think the trial court had ample evidence from which to conclude the escrow agreement was mutually abandoned.
The defendant also argues there was no delivery of the warranty deed to the plaintiff. . The plaintiff testified he obtained that deed from the office of Harold Blake, his attorney. The defendant did not deny she had been in Blake’s office. No inquiry was made during the trial as to who was present in the office while she was there or concerning any other circumstances' which might disclose that Blake was not authorized to deliver the deed. It is true that in the warranty deed plaintiff assumed the mortgage but the deed was a present grant of title. It contained no provision that it be placed in escrow or that plaintiff would obtain a one-half interest in the property only after he had paid the mortgage loan. Moreover it was recorded by plaintiff within four days after its execution. As previously stated defendant made no objection to that deed or to its recording until approximately sixteen years thereafter. She charged plaintiff with stealing the deed from her premises. It appears the trial court did not believe such testimony. The transaction was almost sixteen years old and Harold Blake was not called as a witness by either party to testify concerning the delivery of the warranty deed. It is entirely probable he had no independent recollection of the matter after so many years had passed or one of the parties undoubtedly would have subpoenaed him as a witness. Obviously we shall not assume an attorney whose integrity stands unchallenged would deliver a deed without authority to do so. In Garlits v. Dickson, 135 Kan. 283, 10 P. 2d 861, it was said:
“It is not necessary to collate again the numerous decisions of this court to the effect that possession by the grantee of a deed absolute in form, duly executed and acknowledged by the grantor, is prima facie evidence of delivery which can be overthrown only by clear and convincing evidence.” (p. 286.)
We think there was abundant testimony for the trial court’s finding the warranty deed had been delivered to plaintiff. In addition to that it was recorded for almost sixteen years and not challenged until just prior to the filing of this action. The court, of course, was justified in considering also that fact in reaching its conclusion on the question of the intention of the parties on the subject of delivery. The evidence designed to refute delivery clearly did not convince the trier of the facts and we cannot say it should have been convincing.
Defendant asserts the trial court erred in the accounting. The accounting consisted in the balancing of accounts between the parties, cotenants of the building. It involved the payment of taxes over a period of approximately sixteen years most of which had been made by plaintiff. It involved repairs made on the building by plaintiff and the loan company. It involved the proper application of rentals from the building which had been collected by both parties over different periods of time and by the loan company over part of the period. Portions of the facts were covered by stipulation of the parties. A careful review of the record discloses no substantial error in the accounting. There is a small item in the accounting for which plaintiff might not have been entitled to credit. Plaintiff insists the point was never presented to the trial court and is raised for the first time on appeal. We find no denial of this contention in defendant’s reply brief. It is well established that where it does not affirmatively appear a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. (Anderson v. Shannon, 146 Kan. 704, 73 P. 2d 5, 114 A. L. R. 200.)
Defendant also argues plaintiff’s claim for moneys paid out on taxes and repairs was barred in that such payments were made more than three years prior to the filing of the instant action. The contention cannot be sustained. This was an accounting between co-tenants. The amount of plaintiff’s claim, assuming any part thereof would have been barred in an action for affirmative relief, was properly allowed as an offset to defendant’s claim against plaintiff for rentals on the property which plaintiff and the loan company had applied on the loan company mortgage and in which rentals plaintiff had only a one-half interest. Manifestly plaintiff’s claim for taxes and repairs on the building was properly credited to him in determining the balante he was required to pay on the mortgage debt which he assumed and agreed to pay in the warranty deed. The accounting disclosed that amount to be $120.53. Judgment for that amount was rendered against plaintiff and it was made a lien on plaintiff’s undivided one-half interest in the property. We find no error in the judgment rendered.
In view of the conclusions reached with respect to the foregoing contentions it is unnecessary to treat a further contention made by the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action by an ex-employee of defendant to recover for overtime pay alleged to be due him for services under the fair labor standards act of 1938, 29 U. S. C. A., § 201 et seq.
Plaintiff alleged that defendant Fruehauf Trailer Company, a corporation, was engaged in the business of manufacturing, repairing and servicing trailers and parts of trailers, that in its corporate business it was engaged in interstate commerce, and that it maintained branches in Kansas City, Kan., in Wichita, Kan., and Detroit, Mich.
Plaintiff alleged that from May 9, 1940, until April 1, 1942, he was employed as a workman in defendant’s branch plant and maintenance shop in Wichita, and that during all that time defendant at its Wichita establishment serviced new trailers which had been manufactured by defendant at its factory in Michigan, and which had been hauled to its branch sales plant in Wichita; that defendant serviced trailers and trucks thereat; that such trucks and trailers were driven into -Kansas from other states, and that defendant serviced and repaired trucks and tanks used to haul gasoline from Texas and Oklahoma to other states; that at Wichita defendant maintained a large storeroom in which it kept trailer and truck parts which had been shipped from Detroit; that defendant rebuilt refrigerator trailers and installed cooling systems; and that such refrigerators were used to haul meat and packing-house products from various interstate points to Wichita, and from Wichita to, various interstate points outside of Kansas.
Plaintiff alleged that while employed by defendant he did welding, repairing brakes and defects in trucks and trailers which had come from outside the state and which were en route to points beyond the state line; that he worked on many trailers which had been manufactured in Detroit and which were sold in Wichita; that he supervised the use and sale of truck and trailer parts and kept the records of them; that this work required him to put in overtime, for which he had demanded overtime pay which defendant had refused.
In his petition plaintiff alleged in detail his regular per diem rate of pay and the alleged overtime hours he worked for which he was entitled to overtime pay, aggregating 916.5 overtime hours for which he was entitled to $944.62 as overtime pay, plus $944.62 as the statutory penalty together with $1,000 as a reasonable attorney’s fee, and another $1,000 as an attorney’s fee if the final judgment of the district court should be appealed to this oourt.
In its answer defendant admitted its corporate capacity, that its home office and principal place of business was at Detroit, Mich., and that it had branch plants at Kansas City and Wichita.
Defendant’s answer also contained a general denial, and alleged that its principal business at its Wichita branch was the retail sale of trailers manufactured elsewhere and shipped to its Wichita branch; that as a supplement to its- retail sales business it maintained a general service and maintenance department for the repair of trailers; that the greater part of such servicing and selling was in intrastate commerce, and that defendant’s employees at its Wichita plant, including plaintiff were expressly exempted under section 13 (a) (2) of the fair labor standards act from the minimum wage and maximum hours provisions of that statute.
Defendant’s answer further alleged that plaintiff was employed as foreman in charge of its service department in Wichita, in which capacity he himself kept the daily work records of all employees, including his own, and that defendant relied thereon and charged its customers for services to them in accordance with such records prepared by plaintiff, and its pay rolls for its employees were prepared and paid accordingly; that all its employees, including plaintiff, were paid their regular wage scale plus time and one-half for overtime as prepared by plaintiff; that defendant had no knowledge of any inaccuracy in the work sheets kept by plaintiff, but believed them to be accurate; and that defendant believed that at all times it was conforming to the provisions of the fair labor standards act although not legally bound to do so; and that—
“Plaintiff is estopped from now asserting that the said reports prepared by him were incorrect and that he is entitled to additional overtime compensation.”
Plaintiff’s reply traversed all the material allegations of the answer, and on the issues thus made the cause was tried by the court vdthout a jury.
Oral evidence at length was introduced by the parties. There was also some documentary memoranda introduced, also a schedule of the overtime hours which plaintiff had prepared and which purported to show the alleged overtime hours he had worked and for which he based his claim for overtime compensation. The evidence showed without dispute that plaintiff had received substantial amounts of overtime pay in accordance with the work records which he had prepared for defendant in the regular course of his employment. Plaintiff’s explanation of the discrepancy between the work hour records he prepared for his employer and the private record he kepf of his overtime hours was that the headquarters office of defendant, in Detroit kept insisting that the overtime work in the Wichita branch should be held down to a minimum.
The trial court gave judgment for defendant, and included therein it made findings as follows:
“1. That the plaintiff has failed to prove his case by the greater weight of the testimony and has failed to meet the burden of proof upon him.
“2. That the plaintiff while working for the defendant made no claim for the overtime sought to be recovered in this cause; that he received his regular pay and also was paid for some overtime based upon records that he kept himself; that plaintiff by his long silence and the acceptance of pay based' on the very records he kept himself is now estopped from making any further claim for additional overtime.
“3. That the major part of the work done by the defendant in its establishment at Wichita, Kansas, was of a retail nature and was intrastate in its character; that the services performed by the plaintiff were not in interstate commerce but simply upon things that might or might not be used in interstate commerce.
“4. That the defendant is a retail sales and service establishment, the greater part of whose selling and’ servicing is in intrastate commerce, and is exempt from the provisions of section 206 and 207 of the fair labor standards act.”
Plaintiff’s motion for a new trial was overruled and he appeals. His only specification of error reads:
“The court erred in rendering judgment in favor of the defendant and against the plaintiff.”
At the outset we have to note once more that such a specification of error does not properly present any question for appellate review. (G. S. 1935, 60-3826, Rule 5; Brown v. Rhodes, 1 Kan. 359; Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372; Biby v. City of Wichita, 151 Kan. 981, 982, 983, 101 P. 2d 919; 2 West’s Kan. Dig. 347; Hatcher’s Kan. Dig., 99, 100.)
Passing that matter and looking into the points urged in appellant’s brief it is first contended that judgment should have been for plaintiff because he established his cause of action by the greater weight of testimony. That is an outmoded argument to make in an appellate court which has nothing to do with the weight of the testimony, so long as there is some substantial evidence to support the judgment, and irrespective of whatever evidence there may have been to the contrary which the trial court was disinclined to believe. (Farney v. Hauser, 109 Kan. 75, 83 and syl. ¶ 7, 198 Pac. 178; Peckham v. Keenan, 122 Kan. 544, 551, 253 Pac. 205; Citizens State Bank v. Wiseman, 125 Kan. 510, 514, 265 Pac. 39, 5 C. J. S. 699.) The rule is the same in the federal supreme court. Phoenix Ry. Co. v. Landis, 231 U. S. 578, 581, 58 L. Ed. 377, 381, which cites Aetna Life Insurance Co. v. Ward, 140 U. S. 76, at page 91 of which it was said:
“We have no concern with . . . the weight to be given to the evidence which was properly admitted.” (Citations.)
See, also, Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308.
Were this point hot the threadbare one it is, and which this court has treated many times, we would still be barred from considering the sufficiency of the evidence to support the judgment since the overruling of plaintiff’s motion for a new trial-has not been assigned as error. (Roper v. Ferris, 48 Kan. 583, 29 Pac. 1146; Gas Co. v. Dooley, 73 Kan. 758, 84 Pac. 719; Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196.)
In view of the foregoing it is difficult to see what there is in this appeal that this court can lay hold of. We think the trial court had good ground for discrediting the testimony of plaintiff in view of his admission that he kept two records of his overtime, one on. which the defendant relied and according' to which he was paid, and another private record for his.future use on which to mulct his employer after he had quit its service. (Jackson v. Derby Oil Co., 157 Kan. 53, 63, 139 P. 2d 146.) In rejecting a similar claim of an employee against his employer, based upon a secret record of overtime kept by himself, in Mortensen v. Western Light and Telephone Co., 42 F. Supp. 319, the federal district court held that all the elements of estoppel inhered in such an action to bar a recovery.
See, also, Clevenger v. Ritter Lumber Co., 294 Ky. 764, 172 S. W. 2d, 625.
Plaintiff’s contention that the major part of his work in defendant’s Wichita establishment was in interstate commerce cannot be sustained in view of the trial court’s findings of fact, and likewise by the pertinent provision of the fair labor standards act which, in part, reads:
“(a) The provisions of sections 206 and 207 of this title shall not apply with respect to . . . (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce; . .” (29 U. S. C. A., § 213.)
Sections 2Ó6 and 207 referred to in the quotation just made pertain to definitions and to wages and hours under the act, and section 213 excludes such work as that in which defendant was engaged in Wichita from the scope of the act.
The technical defects of this appeal have not prevented us from a careful perusal of the record and plaintiff’s brief and reply brief, but we discern nothing in them which would permit us to disturb the judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment wherein the plaintiff husband was granted a divorce from his defendant wife. She was given the custody of their sixteen-year-old son. Each was given the equivalent of the value of the property they had brought into their marital union, and their joint accumulation of additional property was equally divided between them; but the portion thus allotted to the husband was set over to the wife for the support and maintenance of their son.
The defendant wife appeals, with a lengthy specification of errors, to an understanding of which some matters in evidence gleaned from the record may be helpful.
It appears that on October 19, 1921, Fred S. Stegmeir of Angola, Labette county, a bachelor, forty-three years of age and Olive E. Stuart, a spinster, thirty-six years of age, also of Labette county, were married. At that time he had about $6,500 and some town lots in the city of Parsons. She had about $275 and a half interest in a quarter-section farm she inherited from her father. Her mother owned the other half of the farm. The farm was equipped except in work horses. The couple took up their abode with the wife’s mother. Stegmeir bought three horses, and thereafter he and his wife operated the farm. The wife’s mother died in February, 1923, by which event the wife became the owner of the entire farm.
From the inception of the marriage until it ran completely aground some twenty years later the wife handled the finances of the family. She banked the proceeds of crop sales in her own name and drew all checks thereon. Just how all or most of Stegmeir’s original funds became merged in the bank account kept in Mrs. Stegmeir’s name, or were otherwise disposed of, is not clear, owing in part, perhaps, to a fire which destroyed some of the bank’s records. Stegmeir sold some of his Parsons city property for $500 in cash.
As time went on, plaintiff and defendant purchased a quarter-section of land adjoining them on the south. Some years later they acquired another quarter-section a few miles north of their farm residence.
On March 26,1943, Stegmeir filed this action for a divorce, charging the defendant with extreme cruelty. He also prayed for division of property rights.
Defendant filed an answer and cross petition. Both petition and answer and cross petition were subjected to motions to strike for nonconformity with G. S. 1935, 60-1519. Both motions were sustained and both parties amended their pleadings and supplied bills of particulars, and upon these the trial proceeded. The evidence took a wide range. The trial court made extended findings of fact and gave judgment for plaintiff as summarized above.
The first error urged relates to the striking of defendant’s original answer and cross petition from the files. But that point is of no consequence since defendant acquiesced in the court’s ruling by filing an amended answer and bill of particulars. (Sanford v. Weeks, 39 Kan. 649, 18 Pac. 823; Winfrey v. Clapp, 86 Kan. 887, 122 Pac. 1055; Hamill v. Hamill, 134 Kan. 715, 717, 8 P. 2d 311.) However, the propriety of the trial court’s ruling is worthy of note, for the reason that it concerns the construction of G. S. 1935, 60-1519, which is a new statute drafted and sponsored by the Judicial Council, and which has not hitherto required the attention of this court. The statute reads:
“That in all actions for divorce, or for alimony, or for both divorce and alimony, the petition or cross petition shall allege the causes relied upon as nearly as possible in the language of the statute (R. S. 60-1501), and without detailed statement of facts. If the opposing party desires a statement of facts relied upon the same shall be furnished to him by the petitioner or cross-petitioner in a bill of particulars. A copy of this bill of particulars shall be furnished to the court and shall constitute the specific facts upon which the action is tried. The statements therein shall be regarded as being denied by the adverse party, except as they may be admitted. The bill of particulars shall not be filed with the clerk of the district court, nor become a part of the records of such court, but if the action be appealed, and the question sought to be reviewed relate to the facts set forth in the bill of particulars, it shall be embodied in the abstract for the supreme court.”
Commenting on the enactment of this statute, the Judicial Council Bulletin, Part 1, Ninth Annual Report, April, 1935, at page 5, says:
“Early in our work we recognized the advisability in an action for divorce or for alimony that a statute should require the cause of action to be stated in the language of the statute only. We mentioned this in our 1928 report, page 14, and a draft of the bill was set out in our 1929 report, page 23. It has been presented to each regular session of the legislature since that time. On two occasions it passed the house of representatives but failed to receive final favorable action in the senate. Its purpose is to avoid having scandalous matter relating to a party to the action appear upon the permanent record or in the files of the court, unless that should be actually necessary. This is especially important when there are minor children of the marriage. Sometimes such charges were made or threatened when there was little or no foundation for them, with a purpose of forcing a settlement or compromise. This provokes notoriety, to the shanle or disgrace of one or both of the parties to the action, or to their children. It is seldom necessary to make such charges even if good grounds for them exist. This year the bill was introduced by the house judiciary committee, H. B. No. 97, and passed both houses without difficulty. It becomes effective when published in the statute book.”
It will thus be seen that in the case at bar the trial court quite properly ordered stricken whatever pleadings filed by either party did not conform to the intent and purpose of the statute governing pleadings in divorce cases.
Error is next urged on the overruling of defendant’s objection to the introduction of evidence on plaintiff’s bill of particulars. We think plaintiff’s pleadings were quite sufficient to state a cause of action for divorce on the ground of extreme cruelty. Defendant and her counsel were never at a loss to discern the issue tendered by plaintiff’s pleadings, and nothing transpired in the course of the trial to indicate they were misled thereby.
Error is next assigned on the exclusion of certain exhibits A and B, which were copies of entries from certain records of a Coffeyville bank in which at one time and another both plaintiff and defendant had deposit accounts. The exhibits were offered in evidence by defendant, as tending to prove that the additional lands purchased were made with funds belonging to herself. A scrutiny of the rejected exhibits, as they appear in defendant’s abstract, do not shed any light on that point. Moreover, the bank officer who compiled the exhibits from the bank’s records testified that they were not complete, although they did go far enough to contradict defendant’s claim that she bought one of the purchased quarter-sections with her own separately acquired money. That particular quarter section was purchased on October 6, 1924, and the same bank officer who prepared the exhibits Was permitted to use them to refresh his personal knowledge, and he testified that defendant had entirely closed her time deposit account on June 2, 1924, more.than four months before the land was purchased. Furthermore, defendant introduced in evidence as her exhibit F, for .what purpo'sé’ is not now clear, but it did tend to show that as late as October 18, 1924, only $200 had been paid as earnest money on the purchase price, and that there was then owing and unpaid the sum of $2,880. ‘We. fail to discover any semblance of error under this specification.-
Defendant’s fourth specification of error relates to some twelve of the twenty-seven special findings of .fact made by the trial court, and upon which the court based its conclusions of law and its final judgment. The special findings excepted to were 3, 4, 5, 6, 16, 17, 18, 22, 23, 24, 26 and 27. ' '
Checking these numbered special findings, we note that No. 3 is a finding that defendant had been guilty' of extréme cruelty toward plaintiff; No. 4 found that plaintiff was entitled to all the real estate (town lots) he owned at.the time of the marriage; No. 5, that there should be set aside to defendant all the real, and personal property owned by her at the time of the marriage or afterwards separately acquired by her (by -inheritance from .her mother) -and that she should also be given the equivalent of any personal property she owned at the time of her marriage -which was no longer owned by her; No. 6, that all other property was the joint accumulation of the parties and should be equally divided between them, and provision should be made out of the plaintiff’s share for the support and maintenance of the minor son; No. 7, that plaintiff .at the time of the marriage had $6,500 in cash on deposit in a Parsons bank, $6,000 of which was transferred to the Coffeyville bank in which defendant kept the family funds, and that plaintiff’s deposit in the latter bank steadily diminished until on December 14, 1933, it was extinguished; No. 16, that in October, 1923, there was a deposit of $3,079.04 in the Coffeyville bank in defendant’s name, but it represented the joint accumulation of 'the parties and was used in the purchase of the quarter section adjoining -the home place; No. 17, that while plaintiff and defendant never had a banking account in their names jointly, defendant wrote and signed practically all checks on the bank in handling their joint business transactions; No. 18, found that certain described town lots and personal property should be decreed to plaintiff absolutely free of any claim or title by defendant, and also an undivided half interest in the lands purchased and acquired by the parties; No. 19, found that the home place should be decreed to defendant free of any claim of plaintiff, and also an undivided one-half interest in all the after acquired lands, and likewise a scheduled list of the personal property to be set apart to her absolutely. No. 22 was a finding of $1,225 worth of farm animals and farm machinery which should be divided as jointly acquired property. No. 23 was a finding of some $605 worth of farm animals and machinery which should be set over to plaintiff absolutely; and No. 24 set over to defendant farm animals and machinery to the value of $620. No. 26 was a finding that provision should be made in a lump sum out of the property separately decreed to plaintiff for the support and maintenance of the minor son; and No. 27 was a finding that all the farm animals and farm machinery separately awarded to plaintiff by finding No. 23 and likewise the undivided one-half interest in one quarter section (SW1^, 4-34-18 E) separately decreed to plaintiff by finding No. 18 should be set aside and delivered to defendant for the support and maintenance of the minor son.
Passing finding No. 3 for the moment, we discern nothing in the trial court’s lengthy findings which supplies even a good talking point against them; and a careful perusal of the record convinces this court that the findings were supported by ample competent evidence which it would serve no helpful purpose to incorporate in this opinion. (State v. Rose, 124 Kan. 37, 257 Pac. 731; Newton v. Newton, 127 Kan. 624, 274 Pac. 247; State v. Martin, 155 Kan. 801, 805, 130 P. 2d 601.)
Error is also assigned on the trial court’s conclusions of law which were deduced from the findings of fact. It cannot be gainsaid that since the findings of fact were supported by evidence, the conclusions of law and judgment predicated thereon were proper — certainly in no material respect erroneous. In the apportionment and division of the accumulated property of discordant spouses being divorced, the trial court has a wide discretion which will not be disturbed unless its judgment is manifestly or demonstrably shown by the record to be palpably unjust. (Tillery v. Tillery, 115 Kan. 81, 222 Pac. 100; Wittig v. Wittig, 151 Kan. 440, 99 P. 2d 750; Leiter v. Leiter, 152 Kan. 287, 103 P. 2d 809.) Nothing of that sort is apparent in the case at bar.
Recurring now to the challenged finding No. 3, which found defendant guilty of extreme cruelty toward plaintiff, it is contended that the finding was not sustained by sufficient evidence. Extreme cruelty as a basis for the granting of a divorce under the statute (G. S. 1935, 60-1501) does not necessarily imply physical violence towards the party seeking a divorce. While plaintiff’s evidence of repeated acts of physical violence practiced upon him by his wife was clear and positive, her counsel say there was no corroboration of the husband’s evidence; and that standing alone it was insufficient to support plaintiff’s cause of action in view of G. S. 1935, 60-1509. But plaintiff’s testimony of his wife’s physical violence towards him was well corroborated in certain instances. Thus where plaintiff testified that his wife struck him in the face with a screw driver, and this blow raised a swelling which shut off the vision of one eye for a time, within a few days thereafter the husband and wife were at a neighbor’s house and the neighbor inquired how he got his eye hurt. The defendant wife spoke up, “I done it. I hit him in the eye with an iron I had in my hand.” The neighbor said, “You might have knocked his eye out.” The defendant replied, “That is what I intended to do.”
We regard this neighbor’s testimony as sufficient to satisfy the statutory requirement of corroboration.
There were other flagrant instances of violence which were practiced by defendant and her son on the plaintiff. Some of these were corroborated by circumstantial evidence, and in some instances perhaps not; but some such acts of physical violence were sufficiently proved to establish plaintiff’s cause of action. Moreover, and aside from instances of defendant’s physical violence and of the son’s physical violence aided and abetted by his mother, extreme cruelty as contemplated by the divorce statute is not limited to acts of physical violence. Indeed physical violence, which of course may furnish a cause of action for a divorce on the statutory ground of extreme cruelty, is perhaps rare in this jurisdiction, particularly by a wife against her husband; but there are other matters of unjustifiable marital misconduct which will support a cause of action for a divorce on the ground of extreme cruelty. In our notable early case of Carpenter v. Carpenter, 30 Kan. 712, 744, 2 Pac. 122, it was said: :
“It was formerly 'thought that to constitute -extreme cruelty, such as would authorize the granting of a divorce', physical violence is necessary; but the modern and better-considered cases have repudiated this doctrine as taking too low and sensual a view of the marriage relation, and it is now very generally held that any unjustifiable conduct on the part of either the husband or the wife, which so grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as to seriously impair the bodily health or endanger the life of the other, or such as in any other manner endangers the life of the other, or such as utterly destroys the legitimate ends and objects of matrimony, constitutes ‘extreme cruelty’ under the statutes, although no physical or personal violence may be inflicted, or even threatened. (Citations.)”
To the same effect were Avery v. Avery, 33 Kan. 1, 5 Pac. 418; Williams v. Williams, 106 Kan. 751, 189 Pac. 910. And see, also, 9 R. C. L. 335, 336; 17 Am. Jur. 174, 175; 27 C. J. S. 544-548.
The record in this case is replete with evidence showing a course of conduct on the part of defendant towards her husband which tended to humiliate and degrade him, and which could properly be characterized as extreme cruelty. One such incident occurred when defendant sought to have him prosecuted on a baseless charge of having burned the barn on the farm where they resided. Within the rule of Carpenter v. Carpenter, supra, the trial court’s finding No. 3, and its conclusion of law and its judgment based thereon were correct.
The other errors urged against the judgment have. been duly noted, but they do not warrant discussion.
Before concluding we note another matter complained of by defendant. After this case was appealed to this court and her abstract and brief were on file, plaintiff reappeared in the district court with a motion for a nunc pro tunc order to correct certain discrepancies in the court’s conclusions of law, particularly in respect to the numbers of the findings of fact to which the conclusions of law referred. The order was made. Counsel for defendant contend that the discrepancies in the findings of fact could not be corrected by an order nunc pro tunc, and that the term at which the judgment-had been entered had gone by. (Gaston v. Collins, 146 Kan. 449, 455, 72 P. 2d 84.) We do not think the order which the court made violated the rule that judgments may not be altered after the term. The corrections which were made might fairly be said to fall within the rule that manifest clerical inadvertencies in the record can be corrected nunc pro tunc. (30 Am. Jur. 873-877.) Moreover, the order nunc po'o tunc did not alter a word of the judgment, but only-altered what were obviously inadvertent figures used in the conclusions of law when referring to the numbered findings of fact. If the trial court had not made these corrections, this court would have had no difficulty in discovering for itself the particular findings of fact to which the conclusions of law were intended to refer.
We find no material error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to cancel an oil and gas lease and to recover money. Judgment was for defendant sustaining its demurrer to plaintiff’s evidence. Plaintiff appeals.
The petition set out two causes of action.
In the first, plaintiff pleaded ownership of the land in question and that on June 7, 1923, he and his wife gave an oil and gas mining lease to the Alcorn Oil Company and that at the time of filing the petition defendant claimed to be the owner of the oil and mining rights covered by the lease by reason of an assignment duly recorded which contained a provision—
“. . . that the oil and gas mining lease is now owned as to the oil mining rights by the Continental Oil Company, a corporation, and as to the gas mining rights by the Home Natural Gas Company.
“That Harris & Haun, Inc., completed a producing gas well on the south one-half of the Southwest Quarter (S % SW14) of Section 14, Township 34 South, Range 2 East, Sumner County, Kansas, and covered by the oil and gas mining lease above described, and said well having been completed as a producing gas well on the 11th day of January, 1928; that said well was deepened to 3490 feet and completed June 6, 1934, as a producing oil well.”
Plaintiff alleged that this record constituted a cloud on his title; that this gas well was the only well ever drilled on the premises and was completed just before the expiration of the primary term of the lease and in spite of this the defendant had neglected to undertake any more development; that plaintiff had demanded that this cloud be removed; that defendant had refused to do so; that plaintiff had been compelled to pay a fee of $200 to secure a lawyer to bring the action. Judgment was prayed against the Continental Oil Company canceling this lease.
For a second cause of action, plaintiff pleaded the ownership of the land in question; that on June 7, 1923, he and his wife had given this lease to the Alcorn Oil Company and defendant claimed to be the owner of this -lease until the month of January or February, 1933, at which time it abandoned it. Plaintiff alleged that the Alcorn Oil Company changed its name to the Marland Oil Company and the Marland Oil Company made a contract with Harris & Haun, Inc., on November 2, 1927, wherein it was recited—
“Whereas the parties hereto desire to enter into a contract for the purpose of developing said land for gas mining purposes.
“Seventh. It is specifically understood and agreed by and between the parties hereto that neither this agreement, nor the assignment made by virtue of the terms hereof, shall in any way affect the party of the first part, its successors or assigns, to develop said leasehold first above described for oil mining purposes.”
Plaintiff alleged that this contract was duly recorded in the office of the register of deeds; that just before the expiration of the primary term of this lease, which was on June 7, 1928, Harris & Haun completed a gas well on the 11th of February, 1928, by drilling to the approximate depth of 3,456 feet. Under the terms of the contract the Marland Oil Company was paid out of the proceeds of this well an overriding royalty; that Harris & Haun sold this gas to the Kansas-Oklahoma Gas Company and on July 15,1929, Harris & Haun sold all the natural gas rights and all personal property used in connection therewith to the Kansas-Oklahoma Gas Company; that the Kansas-Oklahoma Gas Company assigned this lease to the Home Natural Gas Company; that this well was the only well ever drilled on the property of the plaintiff and ceased to produce marketable gas in January or February of 1933, at which time the Home Natural Gas Company abandoned it. The petition further stated that sometime during February of 1933 all leases owned by the Marland Oil Company were assigned to the defendant; that after this gas well became depleted neither the Home Natural Gas Company nor the defendant oil company showed good faith in drilling additional wells on the land of plaintiff and by reason of such facts the plaintiff concluded that each company had forfeited its right so to do; that after fifteen months had intervened one Ben Grallop asked permission of the plaintiff to drill the abandoned well deeper, whereupon the plaintiff gave him permission so to do and Grallop struck oil in paying quantities; that just before the filing of this action plaintiff discovered that the defendant had filed in the office of the register of deeds a statement that this lease was then owned as to the oil rights by defendant; that this statement was placed on record fourteen months after the defendant had forfeited its leasehold privileges and defendant knew such statement to be false; that plaintiff had discovered that the defendant had been taking the proceeds of oil produced from plaintiff’s premises and that by reason of the false statements defendant has procured the written consent of producers to take three-fourths of the oil produced; that by reason of such acts one-eighth of the oil produced since June, 1934, and all oil hereafter produced was the property of plaintiff.
In this cause of action plaintiff asked for judgment for $2,500 and that this sum be trebled by reason of statutory provisions and judgment be entered against defendant in the sum of $7,500 and for judgment for exemplary damages in the sum of $500.
On account of the disposition which is to be made of this case it is not deemed necessary to set out the allegations of the defendant’s answer. When the case was tried the parties stipulated the chain of title. The stipulation was as follows:
“(a) Mr. Frank J. Tamsk and wife were, prior to 1923, the owners of the Southwest Quarter (SW %) of Section Fourteen (14), Township Thirty-four (34) South, Range Two (2) East, in Sumner County, Kansas. On the 7th day of June, 1923, they executed an oil and gas lease covering the land to the Alcorn Oil Company. The lease was for a term of five years and so long aa the land produced oil or gas.
“(b) On the 31st day of May, 1924, Alcorn Oil Company assigned the lease to the Marland Oil Company.
“(c) On the 27th day of March, 1928, the Marland Oil Company assigned the lease covering the gas rights to Hams & Haun, Incorporated; under this transfer the Marland Oil Company retained the oil rights.
“(d) Marland Oil Company assigned the oil rights to Marland Production Company on the 4th day of April, 1928.
“(e) On July 1, 1929, Marland Production Company was merged with Continental Oil Company, and Continental Oil Company acquired the oil rights under the lease.
“On February 18, 1928, during the 5-year term of the lease, Hams & Haun, Incorporated, drilled a gas well on the south half of this quarter section. This well produced gas until the spring or summer of 1933. Royalties were paid plaintiff until the well failed to produce.
“(f) On July 15, 1929, Harris & Haun, Incorporated, owners of the gas well and gas rights under the lease, assigned their rights to The Kansas-Oklahoma Gas Company.
“(g) On October 31, 1933, The Kansas-Oklahoma Gas Company assigned the gas rights under the lease to the Home Natural Gas Company.
“(h) On January 24, 1934, the Home Natural Gas Company assigned the gas rights to The Kansas-Oklahoma Oil & Gas Company.
“(i) On July 21, 1936, Continental Oil Company, the owner of the oil rights under the lease, assigned their oil rights to The Kansas-Oklahoma Oil & Gas Company, reserving from said conveyance an overriding royalty of one-sixteenth (1/16) of the oil to be produced from the South Half (S %) of Section Fourteen (14) of said lands.
“(j) On July 24, 1936, The Kansas-Oldahoma Oil & Gas Company assigned its oil rights to one H. Gussman.
“(h) On September 23, 1941, Continental Oil Company released to Frank J. Tamsk the oil and gas lease insofar as it covered the oil rights under the lease in the North Half (N Vz) of the Southwest Quarter (SW %) of Section Fourteen (14).
“(1) On February 27, 1942, Mr. H. Gussman, who had acquired the oil rights in the lease under the South Half (S %) of the Southwest Quarter (SW %) of Section Fourteen (14), released all of the oil lights, except the producing oil well and a tract of land 200 square feet to operate the well.”
It is also stipulated by the parties that plaintiff was the owner of one-fourth of the royalty interest in the minerals, he having sold three-fourths of his royalty interest prior to the filing of this action. It is also stipulated that after the gas well, to which reference has been made, became depleted it was deepened and became a producer in paying quantities at the time of the trial. Plaintiff's evidence further established that shortly after this well came in he and his wife signed a division order wherein it was stated that plaintiff was the owner of the one-fourth interest in the oil being produced and wherein he authorized the proceeds accruing to this interest be applied on a mortgage on the land in question. The payments have been made from June, 1934, to the present time.
The foregoing constituted substantially all the evidence upon which plaintiff relied. The trial court sustained the defendant’s demurrer and gave judgment for defendant.
The plaintiff first argues that the trial court erred in denying him a jury trial. This was an action to cancel an oil and gas lease. Such an action is in equity. See Mills v. Hartz, 77 Kan. 218, 94 Pac. 142. In a suit in equity the plaintiff is not entitled to a jury as a matter of right. See Spena v. Goffe, 119 Kan, 831, 241 Pac. 257; also In re Holloway’s Estate, 100 Kan. 368, 164 Pac. 298.
Plaintiff next argues that the trial court erred in refusing to make findings of fact as requested by him. This action was disposed of by sustaining a demurrer to the evidence because it did not prove a cause of action. Under such circumstances the trial did not reach the stage where findings of fact were required. The plaintiff was not prejudiced by this failure of the trial court. As we shall see presently, the evidence of plaintiff failed to establish a cause of action. In the absence of prejudice the failure to make findings is not grounds for reversal. See Marquis v. Ireland, 86 Kan. 416, 121 Pac. 486.
Plaintiff next argues that his evidence was sufficient to sustain an action to cancel the lease. It is a little difficult to follow the argument of counsel for plaintiff on this point. He seems to argue that because he demanded a release of the lease from defendant on September 12, 1941, and filed this action twenty days later, and four months later defendant filed a release with the register of deeds releasing its lease on only the north half of this property, the entire lease should be canceled.
In this connection he refers to G. S. 1935, 55-202 to 55-206. These sections provide a procedure whereby a landowner may clear his title of the cloud on it caused by a lease that has been forfeited. In order for these sections to apply, however, it must appear that the lease has become forfeited. Until that happens there is no occasion for the procedure under this statute. This court has passed on the question of what showing in the Way of failure to develop was necessary in order to warrant cancellation of a lease. In Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P. 2d 95, we reviewed these authorities in the light of the evidence in that case. We noted that the plaintiff did not allege that there were any producing wells immediately adjacent to his land on any side; that there had been any drainage of oil from his land or that there was any threat of such drainage. He did not allege any violation by lessee of obligation to drill offsetting wells. The rule is stated as follows:
“Neither the lessor nor the lessee under an oil and gas lease is the sole judge of what constitutes prudent development of the tract. Whatever would be reasonably expected of operators of ordinary prudence, having regard to the interests of both lessor and lessee, is what is required.” (Syl. If 2.)
In this case there is no allegation or proof that plaintiff’s land was suffering any damage or detriment by reason of development on other lands within the area or the failure to offset such development. Appellant made no proof whatever that an operator of reasonable prudence, with regard to the interests of both lessor and lessee, would have drilled, under the existing facts and circumstances, additional wells. There is a further reason why we shall not order a cancellation of the lease on this record. By a reference to the stipulation it appears that the lease on all this land has been released to plaintiff except that on a place 200 feet square where the producing well is located. The only interest the defendant has in that lease is a one-sixteenth of the working interest. This action for forfeiture is not brought against the other parties who own the balance of this working interest. Any order of cancellation that might be entered would operate against this one-sixteenth interest only.
In the next question argued plaintiff points out that in the instrument by which the Marland Oil Company assigned all its interest in this lease to Marland Production Company there was no description of the land. He argues that on account of this lack the assignment was a nullity, and since this assignment was one of the links in the defendant’s chain of title, defendant did not receive a good title to the lease, and hence its reservation of a sixteenth of the working interest was of no effect. The trouble about this argument is that the parties stipulated that the defendant acquired the oil rights under the lease. Furthermore, plaintiff in this petition pleaded that the oil and gas mining lease is now owned as to the oil mining rights by the Continental Oil Company.
We shall not pass on the question of whether the omission of' a description of the land made this lease void. It is clear that the-plaintiff may not raise that question now.
There is a further reason why plaintiff may not now raise the question of the right of the Continental Company to this one-sixteenth working interest. Shortly after the producing well was. brought in he and his wife signed a division order, under which they authorized the purchaser of the oil to pay out their royalty interest-to the holder of the mortgage on plaintiff’s farm. This order set up the various owners of interests in the oil rights and showed on its face that- defendant’s interest was a sixteenth. Payments were-made in conformity with this order from June, 1934, to the present time. Plaintiff has not pleaded or proved that he was deceived when he signed this order. Under such circumstances equity would not permit us to order a cancellation of this one-sixteenth interest of the defendant.
Plaintiff next argues that this lease should be canceled because only a gas well was drilled during its term. The burden of this argument is that when the original lessee assigned merely the gas rights in the lease and that assignee proceeded to drill the gas well, this did not constitute any development of the oil rights, hence the lease was forfeited as far as it covered oil developments. The answer to that is what we have already said in this opinion as to-whether or not under all the circumstances equity would permit a cancellation of this oil lease.
Other questions raised by the plaintiff have been examined and found to be without merit.
The plaintiff makes no argument in this court that -he proved facts to justify his claim for money.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
The appeal here is from a judgment for plaintiff in an action for damages to his truck sustained in a collision with defendant’s automobile.
Briefly stated, the pertinent facts are as follows: Plaintiff, a resident of Missouri and engaged in the business of an irregular common carrier, owned a certain Chevrolet truck, which on the day in question was being driven by his employee, Leo Trackwell, north on U. S. 50, a paved highway in Johnson county. The defendant Baehr about the same time was driving his Ford automobile south on the same highway and directing his attention to a train passing on a near-by railroad track. As he approached the truck he permitted his car to drift upon his left-hand side of the pavement in front of the oncoming truck. A collision resulted in which the truck and the automobile were damaged and Baehr was injured. Plaintiff sued Baehr for damages to his’truck, alleging the collision resulted from defendant’s negligence. Baehr carried a policy of liability insurance issued by the American Indemnity Company, in compliance with the terms of which the insurer provided attorneys to represent him. Through them Baehr filed an answer denying liability and a cross petition seeking to recover damages to his automobile and for personal injury, alleging the collision resulted from the negligence of plaintiff’s driver. These allegations were controverted by an answer to the cross petition.
A jury trial, February 9, 1943, resulted in a judgment for plaintiff for $1,625. Defendant’s motion for a new trial was filed in due time. On February 16, 1943, Baehr’s insurer, by its attorney, mailed a registered letter to Baehr which reads:
“Re: Muckey v. Baehr
“Dear Sir: As attorneys for the American Indemnity Company of Galveston, Texas, we hereby notify you that you have violated the provisions of your insurance contract with said Company by failure to cooperate in the defense of the above entitled lawsuit. We therefore advise you that the further defense of this action by said Company will be with reservation of their right to deny liability for the judgment rendered against you, and they will refuse to pay any judgment which has been or may be rendered in this action.”
Upon receipt of the letter Baehr employed an attorney to represent him personally. Upon the hearing of the motion for a new trial, March 2,1943, Baehr was represented by his personal attorney and by an attorney of the insurer, both of whom argued in support of the motion, which was overruled. On March 3, 1943, no stay of execution having been applied for by defendant, or on his behalf, and no supersedeas bond given, the plaintiff caused an execution to be issued and placed in the hands of the sheriff for the collection of the judgment. On March 15, 1943, Baehr and his personal attorney went to the office of the clerk of the court and paid the full amount of the judgment in favor of plaintiff with interest and costs of the action. The clerk disbursed the money to the persons entitled thereto. On March 23, 1943, Baehr, by his personal attorney, brought an action in the district court against his insurer to recover the amount he had been compelled to pay on the judgment and fees of his personal attorney. On March 31,1943, Baehr’s insurer, acting in his name, served and filed a notice of appeal from the judgment rendered on the verdict in favor of plaintiff of February 9,1943, and from the order overruling the motion for a new trial.
Appellee here, plaintiff in the trial court, has moved this court to dismiss the appeal upon the ground that his controversy with Baehr has become moot in view.of the fact that Baehr has paid the judgment in full. The rule is well settled in this state that a litigant who voluntarily satisfies a judgment against him is not thereafter in a position to appeal from it. See the following cases and authorities cited therein: Babbit v. Corby, Adm’x, 13 Kan. 612; State v. Conkling, 54 Kan. 108, 37 Pac. 992; York v. Barnes, 58 Kan. 478, 49 Pac. 596; Waters, as Treasurer, etc., v. Garvin, 67 Kan. 855, 73 Pac. 902; Seaverns v. The State, 76 Kan. 920, 93 Pac. 163; Round v. Power Co., 92 Kan. 894, 142 Pac. 292; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Hajny v. Hajny, 117 Kan. 419, 232 Pac. 611; Paul v. Western Distributing Co., 142 Kan. 816, 826-831, 52 P. 2d 379.
Counsel for Baehr’s insurer, representing him as appellant here, point out the fact that at the time Baehr paid the judgment an execution was in the hands of the sheriff for the collection of the judgment, and argue that the payment of the judgment by Baehr was not voluntary but was under duress and for that reason the appeal may be maintained, and cite in support of this view, Kerr v. Reece, 27 Kan. 469, and Feight v. Wyandt, 79 Kan. 309, 99 Pac. 611. We think the doctrine of those cases is not in point here. Baehr had been advised by his insurer that it would not pay the judgment. He was compelled to act upon his own judgment and that of his personal attorney with respect to his rights. No appeal had been taken by his insurer. He was forced or compelled to decide whether he should take an appeal and bear the expense of it himself. He did not pay to the sheriff; he went to the clerk of the court and paid the judgment in full, not under protest but voluntarily, and then brought an action against his insurer for reimbursement. Whether he pursued the best remedy for him is not before this court for decision.
We think it clear the appeal should be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to collect an assessment on a policy in an insolvent mutual insurance company. The defendant prevailed and the plaintiff appeals. The primary question is whether the trial court’s finding that the plaintiff had not sustained the burden of proof constitutes reversible error.
The action was begun before a justice of the peace in Pratt county, where the defendant resided. The allegations of the bill of particulars may be summarized as follows:
That J. C. Eubank, the defendant, was a motor carrier of gasoline, doing business as the Eubank Oil Company; as such carrier he became a policyholder in the Industrial Mutual Liability Insurance Company in April, 1939; his policy, covering public liability, was deposited, as provided by law, with the state corporation commission.
That the company became insolvent, and in an action instituted in Sedgwick county by the attorney general was placed in receivership in March, 1940, and that John I. Dotson was appointed receiver and proceeded to wind up the affairs of the company.
That the company’s policies, including the one to Eubank, carried the following provision:
“The insured agrees to pay, if assessed, an additional amount equal to but not in excess of the premium charged, herein, provided, however, the insured shall not be liable for any assessment unless the same is demanded within, one year after the termination, either by natural expiration or cancellation of this policy.” (Italics supplied.)
That in April, 1940, the receiver was directed to levy a full policy assessment and that he levied an assessment against Eubank for the full amount of the annual premium, to wit, $373.20, and within ten days thereafter notified Eubank of such levy.
That such assessment upon Eubank’s policy was “demanded within one year after the termination, either by natural expiration or cancellation” of said policy.
That said assessment was not paid by Eubank up to and including March 18, 1942, and that on that date the plaintiff, O. C. Herd-man, bought from the receiver Dotson all uncollected assessments on the policies of the company, such sale being made under order of the district court of Sedgwick county.
That the assignment made to plaintiff by the receiver in accord anee with such order and sale included an assignment of the amount of $373.20 owed by Eubank, under said assessment.
That Eubank had failed and refused to pay such assessment, although demands therefor had been duly made.
Lastly, plaintiff waived claim to $73.20, thus reducing the claim to $300, in order to bring the action within the jurisdiction of the justice of the peace.
Various exhibits purporting to support the allegations were attached.
In his bill of particulars, filed in district court, to which appeal had been taken, Eubank denied, generally and specifically, the indebtedness; denied that any demand had been made upon him for payment of any assessment on any insurance policy; that he had any policy of insurance in his possession; that any person was his agent in connection with any insurance.
The action went to trial on April 9, 1943, jury was waived, and evidence by both sides was received. At the conclusion of all the evidence defendant moved for judgment on the ground, first, that the plaintiff was not the real party in interest, and second, that he had failed to prove facts sufficient to establish a cause of action. On July 30, 1943 judgment was entered for the defendant on the second ground, supra. This appeal followed.
Prior to the formal entry of judgment the trial court submitted a memorandum opinion in which it reviewed the contentions at some length and ruled on both grounds asserted in defendant’s motion. On the first ground it held with the plaintiff. On the second ground it held with the defendant and discussed the question at considerable length. Shortly stated, the court found that if the receiver ever made any computation or levied any assessment or gave any notice the evidence didn’t disclose that approval thereof had been secured from the Sedgwick county court; that no form or notice of assessment used by the receiver had been offered in evidence; that while oral testimony had been offered to the effect that there were about 2,000 policyholders upon whose policies the court had ordered computations made, assessments levied and notices given, there was no convincing proof submitted showing an assessment actually, made upon the defendant’s policy, or the exact amount of any purported assessment, or that the required notice had been given defendant. Summarizing, the court said — “It would seem, therefore, that plaintiff has entirely failed to sustain the burden of proof.” The trial court also questioned the validity of the reasons assigned by the district court of Sedgwick county for ordering full assessment by the receiver. However, we predicate nothing upon the,'trial court’s’ view with reference to the latter question. It would appear — although we need not here decide the point — that the action of-the district court of Sedgwick county in ordering the assessment was not subject to collateral attack in this action.
Carefully reviewing the evidence, appellant contends that the trial court was in error in its finding that various material facts essential to right of recovery had not been established. We find, quite persuasive a number of appellant’s contentions. However, in view of the conclusion hereinafter stated with reference to one issue — which determines the result — no helpful purpose would be served by discussion of all the contentions.
One of the trial court’s findings was that the plaintiff had not proved timely notice to the defendant of an assessment and demand for payment. On this issue of fact we cannot, of course, weigh conflicting evidence. The lower court was trier of the facts and its finding must stand unless it clearly appears that the evidence compelled a contrary finding. We briefly note some of the evidence on this point.
Appellant had been an underwriter for the company and after the receiver was appointed he assisted him in various ways, including help in connection with computations, but had no authority to make assessments. He testified that notices were sent to over two thousand policyholders, that the notices were sent in alphabetical order, and that “Mr. Eubank’s notice should have been sent out within two or three days after the order” (order of April 2, 1940); that it was sent “between the 4th and 8th.” He did not personally prepare or send out a notice to Eubank. His testimony on whether he saw the notice to Eubank is quite confusing. His final answer on that appears to be “No, I wouldn’t say that I did.” At another point he testified that such a notice was sent. His knowledge, however, appears to be based, in most part if not wholly, upon his knowledge that such notices were being prepared and sent generally to policyholders. Neither the original nor copy of any assessment notices to stockholders was produced. Subpoena duces tecum had been issued to the defendant with directions to bring all pertinent letters and documents, and he was called as a witness by the plaintiff. He testified that he had no such notice in his possession and as far as he knew “never received any paper like it.” Appellant lays much stress upon the testimony of appellee that he received “some kind of a letter from them” but couldn’t say what it was as he paid no attention to it, didn’t know whether he even read it, as he “always let Bales look after my insurance for me” and gave it to Bales. In answer, however, as to whether he had any knowledge of any particular demand ever made upon him for payment of money, he answered “no there was not.” We need not review the evidence further. The argument which appellant here makes with reference to appellee’s testimony doubtless was made to the trial court which weighed the evidence and was judge of the credibility of witnesses. It is not for us to comment on its persuasiveness. Timely notice of an assessment — definite in amount — and demand for payment was required before the policyholder’s liability would attach. We cannot say on the record before us that the evidence required a finding that the condition precedent had been met.
Appellant argues that the defendant’s motion for judgment should be treated as a demurrer to plaintiff’s evidence, and that so treating it and indulging in his favor all reasonable inferences to be drawn from his evidence the motion should have been overruled. Assuming that the contention is correct and that plaintiff’s evidence would stand as against demurrer, where does that lead us? By agreement, the court was still trier of the facts. It would then be in the same position a jury would have been in under a like situation. With all the evidence before it the court found that the plaintiff had not sustained the burden of proof. Judgment for defendant would follow.
The conclusion already stated determines the appeal and makes unnecessary further discussion of the other contentions.
The judgment is affirmed.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is another chapter of litigation with which the probate and district courts of Cowley county and this court have been concerned for several years past. (Pennington v. Green, 152 Kan. 739, 107 P. 2d 760; In re Estate of Pennington, 154 Kan. 531, 119 P. 2d 488; Kininmonth v. Carson, 156 Kan. 808, 137 P. 2d 173.)
This appeal is concerned with the propriety of a judgment of the district court approving and sustaining the probate court’s decree of final settlement and distribution of the estate of the late Sarah C. Pennington of Cowley county.
Sarah had died on March 4, 1938. On the assumption that she had died intestate, A. S. Kininmonth was appointed and qualified as administrator on March 15, 1938, and he set about his duties in that capacity. Some time later Sarah’s will was discovered and offered for probate and probated October 6, 1939, and Kininmonth was appointed and qualified as administrator c. t. a. Kininmonth died later, following which L. S. Roberts was appointed administrator c. t. a., d. b. n.
Sarah’s will which had been executed on January 1, 1910, made some five-dollar bequest's to her brothers and sisters, including these appellants, also to a widowed sister-in-law and her children. The bulk of her considerable estate was devised to her sister Amanda C. Pennington. At the same time Amanda C. Pennington made a similar will devising the bulk of her estate to her sister Sarah.
Amanda died on April 23, 1939. A will she had executed on March 19,1937, and which she republished with an added codicil on April 16, 1938, was filed for probate on April 26, 1939, and was admitted to probate at some later date not shown. That order became a finality because the parties adversely concerned did not appeal within time. (In re Estate of [Amanda] Pennington, supra.) By the terms of the will of 1937, Amanda specifically revoked “any and all former wills or codicils.” In her testamentary instrument of 1938, she declared that she ratified and confirmed her will of March 19, 1937, subject only to the terms of the codicil.
No appeal was taken from the order of the probate court of October 6,1939, admitting Sarah’s will to probate. The administration of her estate was proceeded with by the successive administrators until July 20, 1943, at which time Roberts, the present administrator, pursuant to due notice to all concerned, presented his petition for final settlement and accounting in conformity with section 223 of the probate code, G. S. 1943 Supp. 59-2247.
At that hearing Henry D. Pennington and Martha J. Carson, appellants herein, filed a request that the assets of Sarah’s estate be assigned and distributed to Sarah’s heirs at law, and not according to her will, for the reason that the will was not offered for probate within one year after Sarah’s death on March 4, 1938, and because no proceedings to probate her will were commenced until September 13, 1939, and the will was not admitted to probate until October 6, 1939. But those objections were clearly untenable since they were not effectively raised against the probate of the will and by a timely appeal from the order admitting the will to probate.
Pennington and Carson further alleged that the estate of Amanda Pennington was not entitled to participate in the distribution of Sarah’s estate because Amanda had' possession of Sarah’s will and had withheld it from probate for more than one year after Sarah’s death, and that neither the estate of Amanda nor the devisees and legatees of Amanda’s will and codicil of 1937 and 1938 were entitled to any part of the estate of Sarah, for the reason that the wills of both Sarah and Amanda, executed on January 1,1910, were “mutual and reciprocal,” and that Amanda’s later will and codicil of 1937 and 1938 were violative of the “mutual, reciprocal, and contractual” wills of the two sisters executed in 1910.
The probate court rejected this belated claim of Pennington and Carson, approved the final account of the administrator, and made an order of final distribution in accordance with the terms of the will. Amanda, the principal beneficiary being dead, the bulk of Sarah’s estat.e, in cash, personal property and real estate was set over to Wasson and Green, executors of Amanda’s estate. The probate court also allowed a fee of $2,000 for attorney’s services in behalf of the appellees and $38.10 for his expenses and directed that payment thereof be made by the administrator.
Pennington and Carson appealed to the district court from the final decree of accounting and distribution of Sarah’s estate. No formal pleadings were filed, but the district court heard evidence in support of appellants’ objection to the probate court’s decree. It was shown or admitted that in the last few years of Sarah’s life, she was distracted; that on October 29, 1936, she was adjudged incompetent, and a guardian of her person and estate was appointed; and that Sarah died under that disability. It was also admitted that the same attorney drew the wills of the two sisters in 1910 and that both wills were executed the same day.
It was also stipulated that Pennington and Carson were the only surviving brother and sister of Sarah and Amanda, deceased, and were their next of kin.
Pertinent files of the probate court pertaining to the estates of the two sisters were admitted in evidence.
Some other matters of evidence were introduced, and some tenders of evidence were excluded. If material in this appeal they will be noticed later.
The trial court held that the decree of final settlement and distribution of Sarah’s estate which the probate court rendered on July 20, 1943, should be approved and sustained, and judgment was entered accordingly. The trial court also ordered and adjudged that an attorney’s fee of $500 should be allowed to counsel for the appellants Henry D. Pennington and Martha J. Carson, which fee, together with the costs of the action, should be taxed to the estate of Sarah C. Pennington.
The usual post-trial motions were filed and disposed of. Pennington and Carson appeal, and the administrator cross-appeals from the trial court’s allowance of the $500 fee to appellants’ counsel.
The first specification of error urged is based on the district court’s ruling which sustained the decree of the probate court directing that the bulk of Sarah’s estate should be set over and distributed to Wasson and Green, executors of Amanda Pennington’s estate. At this point the administrator, Roberts, raises the question whether Pennington and Carson could be heard to object to the final accounting and distribution of Sarah’s estate on the ground that Amanda by her will of 1937 and its codicil of 1938 breached an implied contract with her sister when they made their wills in favor of each other in 1910.
We give our attention to the point contended for by appellants— that by the making of the will of 1937 and its codicil of 1938, Amanda breached a contract with her sister, which had the effect of rendering nugatory the will of Sarah, with the consequence that Sarah died intestate, and Pennington and Carson, her surviv ing brother and sister, being the next of kin were entitled to her estate. While the former statutory term, “contest of a will” no longer appears in the new probate code, yet it is beyond cavil that the claim asserted by Pennington and Carson was one which should have been timely asserted against the estate of Sarah during the course of its administration. (In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278, syl. ¶¶ 5, 6.) If, however, we ignore that formidable barrier to the present consideration of the point which appellants press so insistently on our attention, and treat it on the merits, the weight of authority is to the effect that when two people make wills in favor of each other, and no provision is made for an alternative devise or bequest of the estate to a third party if the named beneficiary dies before the maker of the will, the will of the testator who dies first terminates whatever mutual, reciprocal or other relationship existed between them, and the survivor is free to make a different disposition of his property by will or otherwise. (136 A. S. R. 593; 28 R. C. L. 166-167; 69 C. J. 1297.)
Counsel for appellants characterize the wills of the two sisters, Sarah and Amanda, executed in 1910, as “mutual and reciprocal,” and as “mutual, reciprocal and contractual.” Without attempting niceties of distinction, we think the wills of 1910 were “mutual” as that term was defined in Carle v. Miles, 89 Kan. 540, 132 Pac. 146, where it was held:
“The separate wills of two persons which are reciprocal in their provisions giving the property of each to the other are mutual wills.” (Syl. HI.)
In the case just cited, a brother and sister had made testamentary disposition of their properties in favor of each other. Such disposition in each will was made in consideration of a reciprocal provision in the other. In the body of the opinion, the late Mr. Justice Benson, speaking for this court, quoted approvingly from an early New York case (Day, Ex Parte, 1 Bradf. 476) thus:
“ 'A mutual will, strictly called a reciprocal will, is one by which each testator makes a testamentary disposition in favor of the other. That such a will is valid and entitled to probate is beyond question.’ (Note, 2. A. & E. Ann. Cas. 26.)” (p. 542.)
In 1 Underhill on the Law of Wills, section 13, it is said:
“Mutual wills, whether joint or several, are revocable by either testator during the lifetime of the others so far as his disposition of property is concerned, without notice to or consent of the others, unless the making of the will is the result of a contract by which each has agreed to devise his property to the others.”
Footnotes are cited in support of the text, including the notable and closely analogous case of In re Cowley’s Estate, 136 Pa. St. 628, 20 Atl. 567.
Counsel for appellants contend that the wills of the sisters executed in 1910 were contractual. We do not so construe them. While each will says “in consideration of my sister . . . having made a will giving, bequeathing and devising the greater portion of her property to me and because of her devotion to me, I do make this will as above set forth,” etc., yet the essential recitals of a contract are wanting; and in the absence of evidence on the question courts generally do not regard such testamentary instruments in themselves as complementary parts of a binding contract. In Wilson v. Starbuck, 116 W. Va. 554, 182 S. E. 539, 102 A. L. R. 485, where it was held that when one party to a contract to make mutual wills has fully performed the undertaking and has died, the contract is enforceable in equity against the estate of the survivor. In the body of the opinion it was said:
“It must be pointed out, however, that this conclusion is not reached by holding in this case that where the wills are mutual with reciprocal provisions but not joint, that the wills themselves, without proof of the circumstances under which they were drawn and executed, are sufficient evidence to establish the contract. There are no declarations nor recitals in these wills that would be sufficient for that purpose. The general rule is, undoubtedly, in the case of mutual, but not joint wills, that the making of the wills themselves, although evidential of the contractual relationship, is insufficient to establish that relationship. The wills before us, with nothing more than their due execution shown, undoubtedly would fall within that rule.” (p. 558.)
See, also, Anno. — Joint and Mutual Wills, 102 A. L. R. 494-495.
. In the cases where wills have been held to be contractual, it will be found that either the wills expressly recited that they were contractual, or the fact that they were contractual was established by evidence. (Frontier Lodge v. Wilson, 139 Kan. 75, 30 P. 2d 307.) Here there was no evidence, and the court is asked to construe the wills of Sarah and Amanda as contractual by inference or implication. That we cannot do. (Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065; Anno.-Joint and Mutual Wills, 43 A. L. R. 1027-1028.) In Clements v. Jones, 166 Ga. 738, 144 S. E. 319, the rule is thus stated:
“The general rule is, that if two persons execute wills at the same time, either by one or two instruments, making reciprocal dispositions in favor of each other, the mere execution of such wills does not impose such a legal obligation as will prevent revocation, (a) Agreements to make wills are not established merely because two persons simultaneously make reciprocal testamentary dispositions in favor of each other, when the language of such wills contains nothing to the effect that the instruments are the result of a contract.” (Syl. 112.)
Moreover, if by the making of the will of 1937 Amanda had breached a contract with her sister Sarah in 1910, what would be the consequence? It would seem that the will of 1937 would merely be ineffectual to disturb her contractual will of 1910. When Sarah died both wills of 1910 would still be intact; and the administrator of Sarah’s estate could maintain an action against Amanda (or when she died against her executors) for specific performance or for damages. There is good authority for that view. (Wright v. Wright, 215 Ky. 394, 285 S. W. 188; Brown v. Webster, 90 Neb. 591, 134 N. W. 185, 37 L. R. A., n. s., 1196.) We note that in Georgia there is a statute which provides that the revocation by one party to a mutual will operates to revoke the other party’s will. (Clements v. Jones, supra.) In want of such a statute no such result could be declared.
After the death of Sarah, Amanda was free to make another will, and she did so on April 16, 1938, by republication of her will of 1937 with an added codicil. That will was probated against the objections of the present appellants, and their belated appeal to review the judgment of the district court upholding its probate was dismissed by this court. (In re Estate of Pennington, supra.)
We have gone into the merits of appellants’ main contention, not to accede to their view that their claim could properly be withheld or not pressed to an adjudication until the estate was ready to be closed on the administrator’s motion for a decree of final accounting and distribution, but because of a misconstruction of some language in Pennington v. Green, supra, page 742, which may have misled them. Certainly this court had no intention to hold that appellants could wait until the “last day in the morning” before closing Sarah’s estate to present the formidable claim they have here attempted to maintain.
Appellants complain of the |2,000 allowed as an attorney’s fee to counsel for the administrator and for the'executors of Amanda’s estate which is the principal beneficiary of Sarah’s estate. To this complaint there are two short but effective answers — first, we have no means of determining whether the fee was moderate, adequate or excessive. Two courts have sanctioned it, and it is not suggested how we can lay hold of it; and second, since we are concluding that Pennington and Carson, appellants herein, have no justiciable interest in the distribution of Sarah’s estate they have no concern with the fee allowed to counsel for the appellees.
A question of more direct importance, however, is projected in the cross appeal from the district court’s order allowing a $500 attorney’s fee out of Sarah’s estate to be paid to counsel for appellants. This court has not been too rigorous in its scrutiny of reasonable allowances of attorneys’ fees in litigation over wills and administration of estates; but wherever we have sanctioned them it will be found that in each instance the losing litigant and his counsel actually did contribute some helpful service towards the settlement of debatable legal questions confronting the administrator or executor which had to be adjudicated before the administration of the estate could be safely concluded. No such situation exists here. There has been a lot of litigation over these Pennington sisters’ estates, indeed, but we are compelled to say we cannot discern any contribution which by their litigation these appellants have made to the benefit of either estate. It follows that the $500 attorney’s fee allowed to appellants’ counsel cannot stand, and the judgment of this court will be that the cause is remanded to the district court with instructions to eliminate its allowance of the $500 fee, and when that is done the judgment of the district court will be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages for loss of cows due to alleged poisoning and to recover the first half of a pasture rental payment made by plaintiffs to defendants. The defendants appeal.
The appeal is from (1) an order granting a new trial; (2) an order overruling a demurrer of one of the defendants to plaintiff’s evidence; and (3) a ruling setting aside a previous order sustaining the demurrer of the other defendant to plaintiffs’ evidence.
Appellees and appellants are farmers. L. R. Underhill and Paul Underhill, appellees, are brothers associated in a farming enterprise. They had leased sixty acres of pasture land from the appellant, Susie Lacoe Motes. The appellant, Buard Motes, is a son of the lessor and Buard supervised the farming operations. Adjacent to the pasture appellants had an alfalfa field. It was appellees’ contention Susie Lacoe Motes had furnished poison to kill grasshoppers which were infesting the alfalfa and that appellees’ cows ate some of the poison near the pasture fence which separated the pasture from the alfalfa field and that the cows died as a result thereof. Appellant Susie Lacoe Motes filed an answer and cross petition in which she denied liability for loss of the. stock and also denied liability to appellees for a return of the first half of the rent she had received for the pasture. She sought to recover the balance or last half of the rent.
We shall first consider appellants’ contention the trial court erred in granting a new trial. Separate general verdicts were returned in favor of appellants. The jury also made certain special findings of fact. The trial court was dissatisfied with the special findings and the general verdicts. The court so stated. It will serve no useful purpose to discuss the particular special findings. It is sufficient to say the special answers were not frank. They disclosed prejudice and some of them were directly contrary to the evidence. Furthermore, aside from the special findings, the general verdicts were inconsistent with each other and could not stand. A demurrer of the appellant, Susie Lacoe Motes, had been sustained to appellees’ evidence. She therefore remained in the case only on her cross petition to recover the last half of the rental. Although the jury returned a general verdict in favor of the appellant, Buard Motes, which absolved him of liability for damages, the jury did not return a verdict in favor of Susie Lacoe Motes for any money judgment she sought. Manifestly, if neither, of the appellants were liable in damages the jury should have returned a verdict in favor of Susie Lacoe Motes for the balance of the rental due. The record also discloses the court was dissatisfied with the trial in other respects. When a trial court is dissatisfied with a verdict it should set aside the verdict. (Johnston v. Lanter, 92 Kan. 257, 139 Pac. 1031; Blake v. National Mutual Casualty Co., 155 Kan. 201, 124 P. 2d 478.) It is, of course, well settled that in order to permit a verdict to stand it must have the independent approval of the trial court. (Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P. 2d 149.)
Appellants contend that when a trial court grants a new trial and states the reasons therefor, which are not good, the ruling will be reversed. We have referred only to reasons stated which are unquestionably sound and sufficient. In order to sustain the ruling of the trial court we need, therefore, not consider other reasons discussed by the trial court, assuming they were insufficient.
Appellants concede the granting of a new trial generally had the effect of setting aside the former order sustaining the demurrer of Susie Lacoe Motes. They argue their demurrers should have been sustained for the reason appellees’ evidence failed to establish a cause of action against either of them for damages.
Appellees called Susie Lacoe Motes as their own witness. She, in substance, testified:
She leased the sixty-acre pasture to appellees for the pasture season beginning May 1, 1941, and ending November 1, 1941; the land south of the pasture on which the alfalfa was located was farmed in cooperation with her son, Buard; the latter supervised the farm; he received one-half of the crops and she received the other half; they seeded nine acres of alfalfa in the spring of 1941 under the Agriculture Conservation Act; under that act it seemed necessary to protect the alfalfa from grasshoppers; they got the grasshopper poison in 1940 from the Farm Bureau and they used it that season; they used it according to instructions; she obtained and receipted for the poison; Buard did the spreading; she knew it wasn’t all used in 1940; they decided to keep what was left over in 1940; shé knew the rest was kept over for use in 1941.
It is conceded Buard Motes in July, 1941, scattered the poison which was left over from 1940 and that he scattered it prior to July 20. In his own defense he testified he did not scatter it in chunks and that it was not scattered near enough to the pasture fence to permit the cows in the pasture to reach it through the fence. On demurrer we are, of course, concerned only with testimony offered on behalf of appellees. Those witnesses, in substance, further testified:
Some of the poison was found in chunks and sufficiently near the fence to enable cows in the pasture to reach it; appellees had placed additional cows in the pasture on July 20, 1941; one of those cows died July 24 and three of them died July 25; a veterinarian was called in the forenoon of July 24; he examined one of the cows and concluded she was ill from arsenic poisoning; he returned that afternoon and the cow had died; from the symptoms of her illness he was suspicious of grasshopper poison and directed appellees to make a search for it; he performed an autopsy on the cow, which confirmed his previous suspicion; the other cows that died had the same symptoms; he was very familiar with the effects of grasshopper poison, having had much experience with it in the treatment of cattle; numerous cattle had died from it in that country; the other three cows had the same symptoms as the cow on which he performed the autopsy; it was his opinion the cows had all died from a killing dose of arsenic which was contained in the grasshopper poison; the arsenic is usually mixed with bran, sawdust and molasses.
Appellees’ testimony further, in substance, disclosed:
That any person obtaining grasshopper poison from the Farm Bureau was required to sign a receipt in which such person agreed to use the grasshopper bait in the manner approved in the instructions attached to the sacks of poison bait and that the person receipting therefor agreed to assume full responsibility for its use; Susie Lacoe Motes receipted for the poison; the receipt also provided that the bait remained the property of the U. S. Department of Agriculture until spread and that any surplus remaining at the close of a control season was to be returned to the mixing station; directions for use expressly provided the bait should be scattered so as to fall on the ground in individual flakes, thus eliminating danger of poisoning domestic or wild animals or birds; the danger of scattering it in lumps was clearly emphasized; the person obtaining the poison was warned to keep it away from stock; the cows that died had been brought from another pasture of appellees; none of the cows in that pasture had been ill previously or thereafter; there was no evidence of grasshopper poison elsewhere in the neighborhood; cattle have a craving for grasshopper poison; it was the opinion of the veterinarian the cows had not died from hydrocyanic acid (weed poisoning) but from grasshopper poison which they had eaten from twenty-four hours to two days prior to their death; he explained the reasons for his conclusions.
Appellants state:
“We will concede, for the purpose of the demurrer, that the scattering of the grasshopper poison in chunks near the fence of a pasture containing cattle, or where cattle might be placed is negligence, but we contend the record is entirely barren of testimony showing, or tending to show, that the appellants, or either of them, scattered any grasshopper poison or caused it to be scattered in chunks, or along the fence of the pasture.”
The contention with respect to the facts cannot be sustained. Appellees’ testimony was sufficient to take the case to the jury as to both appellants.
The appellant, Buard Motes, also argues his motion for a directed verdict should have been sustained. In the light of what has been stated little, of anything, need be said on that point. He contends he was under no duty to notify appellees the poison had been scattered in the alfalfa field when it was scattered in a proper way.. Whether the poison was properly scattered and whether adequate diligence was exercised in keeping it out of the reach of appellees’ stock were questions of fact for the determination of the jury. If the poison was scattered in lumps and was washed down the slope to the pasture fence appellees were entitled to be notified of that fact by appellants in order that they might protect their stock against the unknown and hidden danger until appellants could remove it. These were all matters to be submitted to the jury under proper instructions.
On behalf of the demurrer of Susie Lacoe Motes it is also argued she did not personally scatter or actively participate in the manual operations of scattering the poison. It is true her son, the supervisor of her farm, scattered it. She and her son had agreed the portion of the poison which was l§ft over from 1940 should be stored for use in 1941. Manifestly she could not obtain a deadly poison under an agreement that she would assume full responsibility for its use and then escape liability for loss resulting from its negligent use by asserting she had not personally scattered it. Of course, this court is not determining any question of alleged negligence: We are simply reviewing the ruling on the demurrers. For that purpose appellees’ evidence and all reasonable inferences to be drawn therefrom must be accepted as true.
We do not deem it necessary to treat at length the subject of a person’s responsibility for the use and control of poisons or other hidden dangerous substances or instrumentalities in his possession. General rules pertaining thereto are treated in various texts. Among them are 20 R. C. L., Negligence, §§ 47, 48, 57, 65 and 67. See, also, statutes pertaining to the use of grasshopper poison. (G. S. 1935, 19-2401, 19-2403, 19-2408.)
We find no error in the rulings complained of and they are affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action brought under G. S. 1935, 60-961, for damages for wrongful garnishment. The case was here before (156 Kan. 779, 137 P. 2d 181), where we reversed an order of the trial court which had sustained a demurrer to plaintiff’s petition. Thereafter defendant filed an unverified answer, which contained a general denial. The action came on for trial in September, 1943. At the close of plaintiff’s evidence defendant filed a demurrer thereto, which was sustained by the court. Plaintiff filed a motion for a new trial, which was considered and overruled. Plaintiff has appealed from both of those rulings.
In our former opinion the statute involved was set out and the pleadings were summarized and the principles of law applicable to the case were discussed. These matters need not be repeated. Reading the evidence abstracted, we think it ample to show that plaintiff and defendant were both residents of this state when the merchandise was purchased and when the garnishment action was brought in'Missouri; that defendant had turned the account over to the Allied Bond Collectors, Inc'., a Kansas City, Mo., concern, for collection, and that the process of collection employed was by garnishment of plaintiff’s wages by an action in Missouri. These matters make out a prima facie case under the statute. The real purpose of the act was to deter the bringing of certain suits in courts outside of the state against a resident of the state in certain cases providing for recovery of damages. (Dassler’s Kansas Civil Code, 2d ed., p. 511.) Upon some of the points perhaps the testimony could have been more specific — indeed, "some of it was made more specific in an affidavit in support of the motion for a new trial — but even as it stood, when the demurrer was interposed, we think it is fairly summarized above.
Appellee argues that proof of damages was lacking. We think the jury might well have concluded from the evidence before it that plaintiff was entitled to some damages even though it may be said that plaintiff might have made the evidence on those points more definite and complete than was done..
In plaintiff’s motion for a new trial complaint was made of the ruling of the court in striking out evidence of the suit in the justice court of Jackson county, Missouri, and refusing to permit the records in that case to be introduced in evidence. Counsel for appellee in his brief says that the abstract does not show any reason for not admitting that evidence. We see no reason why it should not have been admitted. There was other testimony about the garnishment and the payment made to the garnishee, which we cannot understand from the record the reason for the court excluding from the evidence. However, since the case must be tried again there is no necessity of going into those matters fully, particularly in view of the fact that appellee contends some important parts of the abstract are not before the court. It was error for the trial court to sustain a demurrer to the evidence and overrule the motion for a new trial. Its judgment on those matters is therefore reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
The pleadings in this action in the court below were so framed as to present for decision the question whether the will of Jonas 'S. Delp created an estate tail in his daughter, Lillian Delp George, in the lands described in the third paragraph of the will. The trial court held that an estate tail was not created. Mrs. George has appealed.
Jonas S. Delp, a well-to-do resident of Norton county, died April 3, 1932, leaving three sons and two daughters as his only heirs at law and leaving a will, which had been executed July 22, 1925, and which was duly admitted to probate May 14, 1932, disposing of his property among his children and a grandson. The pertinent portions of the paragraph of the will in question read:
“To my daughter Lilian B. George, I devise and bequeath during her natural lifetime the [the real property, 480 acres of land, is described] and at her death to be divided among the children of the said Lilian B. George born to her, if any, but not adopted children; but in the event that the said Lilian B. George dies without issue of the body, that is children born to her, then in that event the said property herein willed to her during her lifetime shall descend to be divided among my other children ... or their children. . . . It is my intention to give to my said daughter, Lilian B. George, a life interest in the above described lands and on her death to be divided among the issue of her body, that is children born to her, but in the event of her death before any children are born to her that said property be divided among the rest of my children or grandchildren as hereinafter mentioned.”
Lilian B. George, named in the will, is the same person as Lillian Delp George named in the pleadings. She is married, was about forty-six years of age when the will was executed, and no child has been born to her. On May 17, 1943, she and her husband conveyed the land described in paragraph three of the will to Arthur R. Lee by warranty deed, and the next day Arthur R. Lee reconveyed the land to Lillian Delp George. Both deeds were duly recorded. Counsel agree, and for the purpose of this case we will assume without deciding, that these deeds barred the estate tail, if one had been created by the will. Since the will of Jonas S. Delp became effective on its probate, May 14, 1932, it is not affected by section 2 of the property act of 1939 (Laws 1939, ch. 181, sec. 2; G. S. 1943 Supp. 58-502). The will must be interpreted in harmony with the recognized law of this state existing at the date of its probate.
As argued by counsel, the question before us is whether the will of Jonas S. Delp provided for a gift over upon the definite failure of issue of his daughter, Mrs. George, or the indefinite failure of such issue.
In 11 R. C. L. 481 it is said:
“A definite failure of issue is where a precise time is fixed for the failure of issue, not in express terms, but inferable with reference to any particular time or event, as in the case of a devise to a designated person, but if he die without lawful issue living at the time of his death, then over.”
In 31 C. J. S. 35, it is said:
“The indefinite failure of issue which is an essential ingredient of a fee tail means a failure of issue which may occur at any time, rather than at any fixed time.”
These definitions accord with our decisions. See: Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682; Purl v. Purl, 108 Kan. 673, 197 Pac. 185; Farmers State Bank v. Howlett, 126 Kan. 610, 270 Pac. 605; Janssen v. Wilkens, reported with Brown v. Boone, 129 Kan. 786, 788, 789, 284 Pac. 436; Berthoud v. McCune, 130 Kan. 634, 287 Pac. 904; Burnworth v. Fellerman, 131 Kan. 186, 289 Pac. 433; Brann v. Hall, 141 Kan. 749, 43 P. 2d 229; Cress v. Hamnett, 144 Kan. 128, 58 P. 2d 61; Jonas v. Jones, 153 Kan. 108, 109 P. 2d 211.
See, also, 1 Bartlett’s Kansas Probate Law and Practice, p. 407. So far as it pertains to definite failure of issue these authorities accord with section 4 of the property act of 1939, now G. S. 1943 Supp. 58-504.
Appellant cites and relies strongly upon Allen v. Pedder, 119 Kan. 773, 241 Pac. 696, and Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475. While some other considerations controlled the decisions in those cases, insofar as they were based upon the view that the will under consideration did not fix a definite time when failure of issue was to be determined they are not in harmony with the other decisions of this state and are disapproved.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action by certain stockholders of a defunct corporation against the members of its last board of directors charging fraudulent manipulation of its assets and for an accounting and other proper relief.
In the petition reference was made to four different corporations, to wit: The Brosius Investment Corporation, The Wichita Investment Company, Inc., The Brosius Investment Company, and The F. W. Woolworth Company.
Plaintiffs alleged that the erstwhile Brosius Investment Corporation at the time its charter was canceled, December 30, 1933, owned a valuable 99-year lease on two lots on Douglas avenue in Wichita; that the F. W. Woolworth Company, a large nationally operated merchandising concern, had subleased the two lots at such a huge rental as to yield large profits; that defendants by some means unknown to plaintiffs “manipulated the disposition of the assets” of the Brosius Investment Corporation “to their own use”; that as to the 99-year lease “plaintiffs are not able to state the exact, nor all the frauds and breaches of trust” towards the plaintiffs. But plaintiffs alleged that on April '20,1938, defendants caused to be organized a corporation entitled “The Wichita Investment Company, Inc.”; that these defendants have obtained for themselves a loan of $52,000 from the Reconstruction Finance Corporation secured by the 99-year lease on the Douglas avenue property and by the sublease of the F. W. Woolworth Company.
It is alleged that at the time of the dissolution of the Brosius Investment Corporation the value of its assets was $250,000; that defendants have since then collected as rents the sum of $54,000 and that they have obtained by mortgaging the lease and sublease the sum of $52,000 and that they have obtained other assets and benefits unknown to plaintiffs.
Plaintiffs prayed that the lease on the Douglas avenue property be decreed to be the property of the Brosius Investment Corporation, and to be held for the benefit of its stockholders, that the sublease to the F. W. Woolworth Company be similarly decreed, and that plaintiffs have judgment against the defendants and also against the Wichita Investment Company, Inc., in the aggregate sum of $356,000 and for an accounting, and for other relief.
Attached to plaintiffs’ petition as Exhibit “B,” was a copy of an assignment by the Brosius Investment Company to the Wichita Investment Company, Inc., all the assignor’s right, title and interest in the lease covering the Douglas avenue property, wherein the fee-title owners and their spouses had leased to the Brosius Investment Company, a Kansas corporation, dated April 1, 1933, and duly recorded October 4, 1934. This assignment was dated April 25, 1938, and filed for record July 22, 1938.
This action was commenced on August 10, 1940, and plaintiffs’ amended petition was filed November 25,1940,
The individual defendants and the Wichita Investment Company, Inc., demurred to the amended petition on two grounds, (1) no cause of action pleaded, and (2) the action was barred by the two-year provision of the statute of limitations.
This demurrer was sustained, hence this appeal.
Considering first, the pertinancy of the statute of limitations: The petition alleged that the lease and sublease of the Douglas avenue property were the property of the Brosius Investment Corporation at the time its charter was canceled on December 30, 1933, and as against a demurrer that allegation, if well pleaded, would have to be taken as-true; but plaintiffs’ Exhibit “B,” attached to plaintiffs’ petition, recites that the lease itself had been granted by its lessors to the Brosius Investment Company, a Kansas corporation, on April 1, 1933, which was a distinct and different corporation from the Brosius Investment Corporation whose charter was canceled on December 30,1933. The assignment of that lease, dated April 25,1938, conveyed the interest of the named lessee to the Wichita Investment Company, Inc., and that assignment was recorded in the office of the register of deeds on July 22,1938. The recording of that assignment was constructive notice to all concerned of the status of the lease; and if at any time between April 1, 1933, and December 30, 1933, the lease had passed into the ownership of the Brosius Investment Corporation, whose-charter was canceled on the latter date, the record fails to show that fact. The record ownership of the lease stood in the name of the Brosius Investment Company, the original lessee, from October 4, 1934, until its assignment dated April 25, 1938, was recorded July 22, 1938.
If then, it be conceded that the Brosius Investment Corporation ever had a property interest in the lease, it is clear that the defendants as the last board of directors of that defunct corporation never asserted any right or interest in the lease, but suffered it to stand as the property of the Brosius Investment Company from December 1,1933, when the charter of the prior corporation was canceled until this action on behalf of its stockholders was begun on August 10, 1940 — a matter of six years, eight months and one day! If this long delay and inaction on the part of the plaintiff stockholders be excused on the ground that they had no information about the dealings of these several corporations, they were nevertheless bound by constructive notice of the status of the record ownership of the lease when it was recorded on October 4,1934, and again when the assignment of the lease was recorded on July 22, 1938 — a matter of two yeafs and ten days before this action was begun.
The allegations of the petition are indisputably framed to state a cause of action for relief on the ground of fraud. The prayer for an accounting and other relief are merely incidental to the cause of action pleaded. The time given by the statute to commence an action of this sort is two years. (G. S. 1935, 60-306, 3d clause, Civ. Code, § 17.) It is therefore clear that plaintiffs’ action was barred by the statute of limitations under the multiplied precedents of this court, a few of which are Black v. Black, 64 Kan. 689, 704, 68 Pac. 662; Foy v. Greenwade, 111 Kan. 111, 117-118, 206 Pac. 332; Keys v. Steele, 143 Kan. 826, 829, 57 P. 2d 28; Malone v. Young, 148 Kan. 250, 81 P. 2d 23. But if plaintiffs’ action were construed primarily as one for breach of trust, and not for relief on the ground of fraud, the same result would follow, since the trust (if trust it was) was repudiated more than two years before this action was begun. (Manka v. Martin Metal Mfg. Co., 153 Kan. 811, syl. ¶ 4, 113 P. 2d 1041,136 A. L. R. 653.)
And since plaintiffs were constructively put upon this inquiry touching the disposition of the principal asset alleged to have been the property of the Brosius Investment Corporation more than two years before they brought their action, they were similarly put upon their general inquiry touching the alleged frauds of its board of directors respecting any other assets which the defunct corporation may have possessed, and the trial court’s ruling on the demurrer to plaintiffs’ amended petition was correct.
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The opinion of the court was delivered by
Per Curiam:
On petition for review from State v. Crawford, 46 Kan. App. 2d 401, 262 P.3d 1070 (2011), Kenneth Crawford takes issue with the Court of Appeals’ rejection of two of his contentions of prosecutorial misconduct and with the standard used by the Court of Appeals when determining if a third instance, which it found to be misconduct, denied him a fair trial.
A multi-prong test applies to the determination of whether a defendant’s convictions should be reversed because of prosecuto-rial misconduct, one portion of which requires a court to determine whether the misconduct likely had little weight in the minds of the jurors. See State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Crawford argues this traditional test is flawed because it leaves open the possibility the misconduct affected the verdict.
After examining Tosh and subsequent caselaw, we conclude Crawford’s criticism is unwarranted. We also conclude the Court of Appeals reached the correct conclusions in this case: There is no merit to two of Crawford’s misconduct claims, and the prosecutor’s misconduct in using a jigsaw puzzle analogy did not deprive Crawford of a fair trial. Therefore, we affirm the Court of Appeals and district court.
Facts and Procedural Background
Nina Dozier and her husband were driving on a country road when they saw 12-year-old S.V. They stopped, offered S.V. assistance, and drove her to her mother’s workplace. S.V.’s mother called 911 after S.V. reported she had been sexually assaulted by Crawford.
At trial, S.V. testified that Crawford had come to her house to see S.V.’s mother. When S.V. told Crawford her mother was not home, he persuaded S.V. to take a ride in his truck. He drove around for a while and then stopped in a rural area near the location where the Doziers found S.V. Crawford asked S.V. to show him her breasts. When she refused, he replied, “What do you think we came down here for?”
S.V. tried to get out of the truck and run away, but Crawford grabbed her and pulled her onto the ground. He straddled her, put his hand over her breast, and “smeared” his face over hers. S.V. continually demanded that Crawford stop. She struggled with him, scratching him on his face and pinching his arm. During the struggle, S.V.’s lip became bloodied. Crawford told S.V. to shut up or he would kill her. After a period of time, estimated by S.V. to be about 5 minutes, she escaped and made her way to the place where the Doziers found her.
Forensic tests determined that S.V. had Crawford’s DNA under her fingernails, and law enforcement officers observed that Crawford had a scratch on his face and small injuries under his arm. Crawford explained that he had injured himself while shaving or working under his truck.
When interviewed by law enforcement officers, S.V. described a location in “the country” where Crawford had taken her, indicating she saw trees, grass, a shack, and a metal cross. S.V. directed them to a location, where a detective observed a small metal cross and something that looked like an oil spot in the wheat stubble between some tire tracks. Upon examining Crawford’s truck, law enforcement officers observed wheat grain and wheat stubble on the wheel rims and undercarriage and an oil leak under the front end. They did not test the spot in the stubble to verify if it was oil or if it matched fluids from Crawford’s truck.
Crawford, when interviewed by law enforcement officers, denied any wrongdoing or having S.V. inside his truck, and her fingerprints were not found in the truck. He also presented alibi evidence establishing he was at a garage with his mechanic at the time S.V. indicated he had come to her house and picked her up. Nevertheless, Crawford admitted he had stopped by S.V.’s house that evening to visit S.V.’s uncle, and he confirmed that he had driven around that evening and had turned around in a wheat stubble field.
Crawford was convicted by a jury of aggravated kidnapping, aggravated indecent liberties with a child under the age of 14, and criminal threat. The district court imposed consecutive sentences, resulting in a controlling prison term of 337 months.
On direct appeal to the Court of Appeals, Crawford argued there were four trial errors and two sentencing errors: (1) His statutory right to a speedy trial was violated; (2) the prosecutor committed three separate acts of prosecutorial misconduct; (3) the district court committed judicial misconduct; (4) he was denied a fair trial based on cumulative error; (5) the district court improperly aggregated three misdemeanors into one prior person felony when cal culating his criminal history score; and (6) the district court violated his constitutional rights when it relied on his prior convictions to increase his sentence. The Court of Appeals affirmed Crawford’s convictions and sentences. Crawford, 46 Kan. App. 2d 401.
Crawford petitioned this court for review, which this court granted in part by accepting review of only the second issue—the three prosecutorial misconduct claims. K.S.A. 22-3602(e) (party may petition the Supreme Court for review as provided in K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e) (2013 Kan. Ct. R. Annot. 74) (discretion in granting review); Supreme Court Rule 8.03(g)(1) (order granting review may limit the issues on review).
Specifically, Crawford argues the prosecutor committed misconduct by (A) improperly intimidating or influencing the jury during voir dire, (B) arguing facts not in evidence during closing arguments, and (C) misstating the law regarding the State’s burden of proof by using a jigsaw puzzle analogy during voir dire and closing arguments. He contends his convictions must be reversed because this misconduct denied him a fair trial.
Prosecutorial Misconduct Standards of Review
We begin with a discussion of the standards that govern our review of Crawford’s prosecutorial misconduct claims. Preliminarily, we note that a claim of prosecutorial misconduct based on comments made during voir dire or closing arguments, neither of which is evidence, will be reviewed on appeal even absent a contemporaneous objection. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014); State v. Dull, 298 Kan. 832, 836, 317 P.3d 104 (2014); State v. Stevenson, 297 Kan. 49, 51, 298 P.3d 303 (2013); State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
As to the prosecutorial misconduct standard, as explained in Tosh, 278 Kan. at 93, appellate review of allegations of prosecu-torial misconduct requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the ap pellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Armstrong, 299 Kan. at 416 (citing State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 [2013]; Tosh, 278 Kan. at 85).
In applying the first step in this case, the Court of Appeals panel found no merit in two of Crawford’s claims of misconduct. Specifically, it held the prosecutor did not (A) improperly intimidate or influence the jury during voir dire or (B) argue facts not in evidence. The Court of Appeals did find that the prosecutor committed misconduct by misstating the law regarding the State’s burden of proof when the prosecutor used a jigsaw puzzle analogy during voir dire and closing arguments.
Consequently, the Court of Appeals moved to the second step of the analysis to determine if the use of the jigsaw puzzle analogy deprived Crawford of a fair trial. In analyzing the second step of whether the defendant was denied a fair trial, an appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether the evidence was of such a direct and overwhelming nature that tire misconduct would likely have had little weight in the minds of jurors. No one factor is controlling. Tosh, 278 Kan. at 93; see State v. Huddleston, 298 Kan. 941, 953-54, 318 P.3d 140 (2014); Bridges, 297 Kan. at 1012.
The Court of Appeals panel cited and applied these factors. Crawford, 46 Kan. App. 2d at 414-15 (quoting State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 [2009]). The panel did not explain the third factor, however. In Tosh, this court elaborated on the meaning of this factor, stating that before it can ever override the first two factors, an appellate court must be able to say that the State can meet the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Armstrong, 299 Kan. at 417 (citing Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 85).
In Chapman, the United States Supreme Court directed that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. In Tosh, this court, in using the phrase “likely [had] little weight in the minds of the jurors,” observed that the phrase “echo[ed] the federal harmless error rule declared in Chapman“ and also noted the language “sound[ed] most like the harmlessness examination now required by K.S.A. 60-261.” Tosh, 278 Kan. at 96. In essence, the Tosh court used the phrase “likely [had] little weight in the minds of the jurors” as descriptive shorthand for application of the “dual standard” for determining harmlessness. 278 Kan. at 97.
Subsequently, in State v. Ward, 292 Kan. 541, 566, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), we explained that “our frequent reference, primarily in prosecutorial misconduct cases, to satisfying both harmlessness standards—K.S.A. 2010 Supp. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)—should not be read to imply there are two different tests. [Citations omitted.]” We explained that the two tests use the same benchmark—whether a trial error affected the outcome of the trial—but required different levels of certainty about this conclusion—either a reasonable probability or a reasonable possibility. Specifically, under the statutoiy standard, an appellate court declares reversible error if there is a reasonable probability the error affected the outcome of the trial in light of the entire record. A federal constitutional error can be declared harmless only if there is no reasonable possibility that the error contributed to the verdict. Ward, 292 Kan. at 566.
More recently, we observed that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the federal constitutional standard. “ ‘[B]oth the constitutional and nonconstitutional errors clearly arise from the veiy same acts and omissions,’ and the constitutional standard is more rigorous. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard.” Armstrong, 299 Kan. at 417 (citing Bridges, 297 Kan. at 1015; State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
Thus, as Crawford argues, ultimately an appellate court must determine whether there is a reasonable possibility that the verdict was affected by the prosecutor’s misconduct. While we can assume that the Court of Appeals panel understood this and applied the correct test, its truncated discussion legitimately led to Crawford’s doubts about what test was applied. We reiterate, however, that the phrase “likely [had] little weight in the minds of the jurors” incorporates the federal constitutional standard and is the test that applies under Tosh.
We next apply the test to the alleged misconduct in this case.
A. Comments During Voir Dire
First, Crawford contends that during voir dire the prosecutor suggested to the prospective jurors they would have to answer to the State or justify their verdict if they were selected to serve as jurors. Crawford argues this was a tactic that improperly intimidated or influenced the jury.
Prosecutors Statements
Crawford complains about the following statements:
“And in this case, I represent the State of Kansas, and I want to talk to you about—I’m going to ask you a number of questions, and as the judge indicated, I’m not trying to embarrass you. This is the last chance we’ll have to talk until after the case, and if you’re seated as a juror in this case, I can guarantee I’m probably going to want to talk to you when we’re done regardless of the outcome, because I like to find out what did you like, what things did you dislike, what are things we can improve on, things like that. So we’ll talk after the case is done.”
The prosecutor next asked if any of the potential jurors was nervous and admitted that he, too, was nervous.
No Misconduct
The analysis begins with the determination of whether the prosecutor committed misconduct. The Court of Appeals answered this question in the negative. Crawford, 46 Kan. App. 2d at 411. We agree and conclude the prosecutor’s comments were not improper.
It is well established that under Supreme Court Rule 169 (2013 Kan. Ct. R. Annot. 270), “attorneys may discuss a trial with willing jurors after their discharge from jury duty.” Williams v. Lawton, 288 Kan. 768, Syl. ¶ 9, 207 P.3d 1027 (2009); see Crystal, Limitations on Zealous Representation in an Adversarial System, 32 Wake Forest L. Rev. 671, 693 (1997) (“On balance, therefore, it seems proper for lawyers to be able to interview jurors after the case is over, so long as lawyers do not harass the jurors.”)- But Rule 169 also makes it clear that it is “inappropriate to harass or criticize jurors” and jurors are not required to speak with the attorneys. Williams, 288 Kan. at 794.
Recognizing that posttrial discussions with jurors can occur, Crawford argues the prosecutor’s comments were improper because he failed to explain that the jurors would not be required to talk to him after the trial. And, according to Crawford, the prosecutor offered a “guarantee” that the jurors would be subjected to “some land of post-verdict inquisition” in which they would have to defend an acquittal.
We disagree because the prosecutor’s comments, when read in context, are not intimidating and do not demand a defense of the verdict from the jurors. In fact, the prosecutor did not even guarantee that he would talk to the jurors. Rather, he indicated that he could “guarantee [he was] probably going to want to talk” to them after the trial “regardless of the outcome.” And the prosecutor said that he would want to ask about “things we can improve on.” The message was not one of intimidation but a road map of what to expect and an explanation that any discussion was to assist the prosecutor in improving his trial skills. See Williams, 288 Kan. at 793 (“postverdict communication with jurors assists attorneys in improving their trial technique and is a valuable educational tool”).
We conclude the prosecutor’s statements were not improper; they did not stray outside the wide latitude afforded prosecutors. Having found no misconduct, there is no need to continue to the harmlessness inquiry. See State v. Hunt, 285 Kan. 855, 866, 176 P.3d 183 (2008) (“Obviously, if the comments do not exceed the bounds of fair argument, there is no need to proceed to the second step of assessing plain error.”).
B. Argument Supported by Facts in Evidence
In addition, Crawford argues the prosecutor committed misconduct during closing arguments by improperly commenting on facts not in evidence. As Crawford correctly argues, it is well established that a prosecutor must limit his or her remarks in closing arguments to facts in evidence. State v. Baker, 281 Kan. 997, 1012, 135 P.3d 1098 (2006); see State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009). Nevertheless, there does not have to be direct evidence of every point argued. Instead, “a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence. [Citations omitted.]” State v. McCaslin, 291 Kan. 697, 722, 245 P.3d 1030 (2011), overruled on other grounds by State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014). The prosecutor may even use “picturesque speech” as long as he or she does not refer to facts not disclosed by the evidence. McCaslin, 291 Kan. at 722; State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000).
Here, Crawford complains that during closing arguments the prosecutor stated: “[The detective] said you could see tire marks, and when we got up closer, there was an oil spot where a truck had parked, oil spot right in the middle.” The prosecutor also stated: “And the other thing [the detective] noticed, there was that oil drip out in the field. Guess what? Defendant’s truck just happens to drip oil right between the two tires, fresh oil.”
According to Crawford, it was prosecutorial misconduct to argue that the evidence established that Crawford’s truck was at the alleged crime scene because the detective did not collect or test any sample of the “dark spot” in order to identify the material as oil or to link the material to Crawford’s truck. The State responds, correctly, that the prosecutor’s comments accurately reflected on the detective’s trial testimony and, therefore, the prosecutor did not commit misconduct.
During the detective’s testimony, there were numerous references to the detective’s belief that the “dark spot” was oil and that it came from Crawford’s truck. The detective testified on direct examination that he saw tire marks in the field: “You could see on the ground in the wheat stubble where a vehicle had driven. There were obviously two tire tracks that pushed the wheat stubble down.” The detective saw “tire marks as they pulled in where a vehicle was stopped” and “it looked to be a dark spot in the grass or in the wheat stubble that looked to be oil or something.” When identifying an exhibit, the detective said, “That’s the photograph I took of the oil.” Then, in describing the search of Crawford’s truck, the detective said he “noticed two oil spots underneath of it from the front end of the motor.”
On cross-examination, the detective testified that a “dark spot in the field” drew his attention because it was located between the tire tracks where “two wheels [had been] parked.” In other answers, he said the dark spot “looked to be oil” and, at least twice, referred to the spot as “an oil spot.” Again, on redirect examination, the detective indicated that he verified that Crawford’s truck leaked oil and that in the field he “found what appeared to be a spot of oil between two tire marks.”
The prosecutor’s comments were supported by evidence—including multiple references in the detective’s testimony to an oil spot and an oil leak—and were based on reasonable inferences drawn from the detective’s testimony. The prosecutor did not commit misconduct in commenting on the detective’s testimony.
C. Jigsaw Puzzle Analogy
The third instance of alleged prosecutorial misconduct occurred during voir dire and again during closing arguments when the prosecutor explained the State’s burden of proof using a jigsaw puzzle analogy. Crawford argues the prosecutor misrepresented tire definition of reasonable doubt and minimized the State’s burden of proof; therefore, according to Crawford, the error justifies reversing his convictions.
As mentioned, the Court of Appeals ruled partially in Crawford’s favor on this argument, finding that the prosecutor committed misconduct. State v. Crawford, 46 Kan. App. 2d 401, 414, 262 P.3d 1070 (2011). Of course, Crawford did not petition this court for review of this misconduct ruling. Nor did the State file a cross-petition for review. Hence, the Court of Appeals’ holding on misconduct stands, and the ruling is not before this court. See K.S.A. 2013 Supp. 60-2103(h) (to obtain appellate review of adverse rulings, appellee must file notice of cross-appeal); State v. Novotny, 297 Kan. 1174, 1180, 307 P.3d 1278 (2013) (same); Cooke v. Gillespie, 285 Kan. 748, 754-55, 176 P.3d 144 (2008) (same).
Rather, Crawford asks this court to review the Court of Appeals’ determination that the prosecutor s use of the jigsaw puzzle analogy did not deny him a fair trial. See Crawford, 46 Kan. App. 2d at 414-16.
Prosecutors Statements
In order to malee a determination of whether the misconduct was harmless, we must consider the prosecutor’s statements. The first misstatement was made during voir dire. The prosecutor first told the venire panel that “the burden is on the State of Kansas to prove [its case] beyond a reasonable doubt.” Then, the following colloquy took place between the prosecutor and one of the prospective jurors:
“[Prosecutor]: Okay. You have seen jigsaw puzzles. Have you seen jigsaw puzzles where maybe one or two pieces, a couple pieces are missing throughout the puzzle?
“[Potential Juror]: I don’t know. I suppose.
“[Prosecutor]: Okay. Go with me here then, just go with me for a second. We have got a big puzzle like this, the scene is a lighthouse and the ocean and the waves crashing against the rocks, a[nd] there’s [a] couple gulls flying around. Got that?
“[Potential Juror]: Got it.
“[Prosecutor]: Okay. If you’re missing some of the pieces to the lighthouse and some of the pieces to the ocean, do you then say, well, that just can’t be a lighthouse and an ocean because there’s some pieces missing?
“[Potential juror]: No.
“[Prosecutor]: Are you—so even though there’s some pieces missing, you’re able to say that looks like a lighthouse and an ocean?
“[Potential juror]: Yeah, I’m sure.
“[Prosecutor]: That’s kind of what I’m talking about is reasonable doubt. There’s probably always going to be some question something that doesn’t get answered. The question is, when you put the pieces together, even if there are some pieces missing, does that mean it didn’t happen? No. So—and that’s kind of why I bring that up. Thanks.” (Emphasis added.)
Additionally, during closing arguments, the prosecutor revisited the jigsaw puzzle analogy:
“You get to determine credibility of witnesses, and when I talked in voir dire about the jigsaw puzzle, and the scene with the lighthouse and the ocean, there are always going to be pieces of the puzzle missing because none of us were there. None of you were there. The question you got to ask yourself is just because a piece of the puzzle—pieces of the puzzle are missing, does that mean you can’t see the whole picture? Are those questions reasonable in your mincl?” (Emphasis added.)
Fair Trial Inquiry
In light of the Court of Appeals’ holding that these comments were outside the wide latitude allowed a prosecutor in making arguments, i.e., prosecutorial misconduct, we must determine whether the prosecutor’s conduct was harmless.
1. Gross and Flagrant
The first factor in the harmlessness inquiry is whether the misconduct was gross and flagrant. Bridges, 297 Kan. 989, Syl. ¶ 15; State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). In determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, violated well-established or unequivocal rules, or violated a rule designed to protect a constitutional right. State v. Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010); see Bridges, 297 Kan. 989, Syl. ¶ 18.
Crawford argues that the prosecutor’s statements fit within several of these factors: They were planned, repeated, violated longstanding warnings to prosecutors against trying to define reasonable doubt, and violated a fundamental principle of holding the State to its burden of proving guilt beyond a reasonable doubt. The Court of Appeals did not list these factors in its analysis. Nevertheless, the State attempts to explain reasons these factors do not apply.
First, the State attempts to minimize the fact that the jigsaw puzzle analogy was repeated by arguing that the first instance— the one during voir dire—involved the prosecutor’s attempt to explain reasonable doubt, but the second instance—the one during closing arguments—was “framed in the context of judging witness credibility.” This argument is not persuasive because the prosecutor’s use of the jigsaw puzzle analogy during closing arguments referred back to his earlier mention of the analogy and then referred to missing puzzle pieces and whether jurors were left with “reasonable” questions. Thus, at a minimum, a juror could have interpreted the statements to be referring to the State’s burden of proof.
Then, the State urges us to adopt the rationale of the Court of Appeals panel. The panel simply noted that although this court “has consistently held that it is prosecutorial misconduct when the State incorrectly defines its burden of proof, the court has also consistently found that the improper definitions did not constitute gross and flagrant misconduct.” Crawford, 46 Kan. App. 2d at 415. The panel cited State v. Magallanez, 290 Kan. 906, 235 P.3d 460 (2010), and State v. Sappington, 285 Kan. 176, 169 P.3d 1107 (2007), in which this court concluded a prosecutor’s attempt to elaborate on the meaning of reasonable doubt was not gross and flagrant.
There are several distinctions between this case and either Ma-gallanez or Sappington. Most significant is the additional warning these cases gave to prosecutors. In Magallanez, this court emphasized the danger “when prosecutors embellish the burden of proof required in criminal cases, and the prosecutor committed this error by diluting the reasonable doubt standard in this case.” Magallanez, 290 Kan. at 926-27. Acting on that warning, the court reversed the convictions. The Sappington court did not reverse convictions but discussed a long list of cases finding error based on similar statements, many of which resulted in reversal, before noting that the prosecutor had correctly stated the State’s burden at several points, including immediately before the misstatement, and, therefore, the conduct was not gross and flagrant. Sappington, 285 Kan. at 186.
As Crawford points out, these cases are among a long line of cases in which we have warned that efforts to define reasonable doubt often, perhaps inadvertently, lower the State’s burden, lead the jurors into “ ‘a hopeless thicket of redundant phrases and legalese,’ ” and “ ‘obfuscate rather than assist the juiy in the discharge of its duty.’ ” State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003) (quoting State v. Acree, 22 Kan. App. 2d 350, 356, 916 P.2d 61, rev. denied 260 Kan. 995 [1996]); see, e.g., State v. Wilson, 281 Kan. 277, Syl. ¶ 4, 130 P.3d 48 (2006) (“No definition or explanation can make any clearer what is meant by the phrase ‘reasonable doubt’ than that which is imparted by the words themselves.”); State v. Mitchell, 269 Kan. 349, 360, 7 P.3d 1135 (2000) (prosecutor’s remarks defining reasonable doubt “attempted to alter the State’s burden”); State v. Banks, 260 Kan. 918, 927, 927 P.2d 456 (1996) (noting that this court “has long held that a jury instruction defining reasonable doubt is unnecessary”); State v. Douglas, 230 Kan. 744, 745, 640 P.2d 1259 (1982) (stating that this court adheres “to die position long-established in Kansas jurisprudence that no definition could make the concept of ‘reasonable doubt’ any clearer than the words themselves”).
Furthermore, other courts have found trial error when a prosecutor used the puzzle analogy, giving warning to prosecutors to avoid its use. E.g., United States v. Pungitore, 910 F.2d 1084, 1128 (3d Cir. 1990), cert. denied 500 U.S. 915 (1991); People v. Katzenherger, 178 Cal. App. 4th 1260, 1264-68, 101 Cal. Rptr. 3d 122 (2009), rev. denied (2010); Lord v. State, 107 Nev. 28, 35, 806 P.2d 548 (1991); People v. Wilds, 141 App. Div. 2d 395, 398, 529 N.Y.S.2d 325 (1988); State v. Johnson, 158 Wash. App. 677, 685, 243 P.3d 936 (2010), rev. denied 171 Wash. 2d 1013 (2011).
In a letter of additional authority filed by Crawford pursuant to Supreme Court Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50), Crawford also asks us to consider State v. Stevenson, 297 Kan. 49, 54, 298 P.3d 303 (2013), as an additional authority issuing such a warning. The State counters that Stevenson undercuts Crawford’s argument.
In Stevenson, the prosecutor showed the jury a sign with the words “Wheel of Fortune” printed on it but with one letter missing and pointed out that, although there was a letter missing, there was no reasonable doubt about which letter was needed to complete the title. Stevenson, 297 Kan. at 52. The Stevenson court found no misconduct under the circumstances because the prosecutor used the analogy to explain that the State had to prove its case beyond a reasonable doubt, not beyond all doubt, and because the exhibit demonstrated the concept because only one letter was missing from a well-known title; in essence, the solution to the puzzle was so obvious there was no room for doubt.
In addition, we warned:
“The prosecutor’s comments in this case scuffed the line of misconduct without actually crossing it. Nevertheless, only a slight difference in wording would have resulted in error, and use of this analogy seems fraught with possibilities for stepping over die line of error. Especially troubling is the potential for quantifying reasonable doubt by discussing the difference between missing one letter as compared to more. Consequently, we discourage use of the “Wheel of Fortune’ analogy.” Stevenson, 297 Kan. at 55.
We reiterate and emphasize this warning. The prosecutor’s argument in this case demonstrates how differences in wording can move us from a conclusion that a prosecutor scuffed the line of misconduct to a conclusion that a prosecutor crossed the line. In this case the prosecutor did not attempt to distinguish between having no doubt and having a reasonable doubt, a distinction emphasized in the caselaw relied on in Stevenson. 297 Kan. at 53. Furthermore, based on the prosecutor’s descriptions in this case, neither the jury nor an appellate court can determine how much of the puzzle is left unfinished and how much guessing a juror is being asked to perform. We do not know how abstract the remaining image might be. While both analogies are dangerous attempts to quantify reasonable doubt, the argument in this case is so vague and ambiguous it is misleading. Thus, contrary to the State’s argument we do not see Stevenson as assisting its cause.
Granted, Crawford’s trial took place more than 3 years before this court decided Stevenson. Nevertheless, the general tone of the warning in Stevenson is not new. Given the consistent warnings in Kansas precedent, the calculated and repeated use of the analogy that created a tíreme, and the effect of the argument of minimizing the State’s burden of proof, we conclude the conduct was gross and flagrant.
2. Ill Will
The next step requires this court to examine whether the prosecutor was motivated by ill will. In making this determination, among the things this court has considered are “whether the conduct was deliberate or in apparent indifference to a court’s ruling. [Citation omitted.]” State v. Bridges, 297 Kan. 989, 1016, 306 P.3d 244 (2013); see State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). In finding the prosecutor did not act with ill will, the Court of Appeals noted that the prosecutor “did not persist in referring to the puzzle over sustained objections or admonitions” by the district court. Crawford, 46 Kan. App. 2d at 415. Nevertheless, as we have noted, the prosecutor acted against the repeated admonishments of this court.
While failing to avoid longstanding, and repeated warnings is a sign of ill will, we do not perceive from the record any indication that the prosecutor in this case was motivated by ill will toward Crawford or the court.
3. Harmlessness Inquiry
The final factor is whether the prosecutor’s misconduct had little effect on the minds of the jurors. In this regard, Crawford argues because the evidence was not direct and overwhelming, this court could conclude the prosecutor’s misconduct affected the verdict. The Court of Appeals declined to discuss the evidence and, instead, merely mentioned that Crawford did not challenge the sufficiency of the evidence on appeal. Crawford, 46 Kan. App. 2d at 416. Noting that the district court gave the correct instruction on the State’s burden of proof, compliant with PIK Crim. 3d 52.02, the Court of Appeals found that the prosecutor’s use of the jigsaw puzzle analogy “did not lead the jury into ignoring the [State’s] proper standard of proof, and the misconduct likely had little weight in the minds of the jurors.” Crawford, 46 Kan. App. 2d at 416.
Simply because evidence is sufficient does not mean the State is able to establish that the misconduct did not affect the verdict. Hence, we disagree with the Court of Appeals’ analysis on that point. But we agree that the fact the district court properly advised tire jury of the State’s burden of proof significantly mitigates the potential impact of the prosecutor’s misconduct. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) (“Although these instructions do not give the prosecutor a free pass on misconduct, they are appropriate considerations when evaluating whether a jury was misled.”); see also State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997) (“[W]e hold that the provisions of PIK Crim. 3d 52.02 accurately reflect tire law of this State and properly advise tire jury in a criminal case of the burden of proof, the presumption of innocence, and reasonable doubt.”)- And this court assumes the jury followed the district court’s instructions. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010) (“Appellate courts presume that a jury follow[s] the jury instructions.”), superceded by statute on other grounds as stated in State v. Todd, 299 Kan. 263, 323 P.3d 829 (2014).
Even so, we must evaluate the evidence. The State concedes that the evidence against Crawford was “perhaps not overwhelming,” but it argues that the evidence was “strong and direct” and urges this court to consider the fact that the trial court gave the proper pattern instruction on burden of proof and reasonable doubt. Crawford counters that the case against him was weak and points to, among other things, his alibi for the time when S.V. says he arrived at her house and various discrepancies in S.V.’s and her mother’s testimony and statements.
Overall, however, we agree with the State’s assessment. While the evidence is not overwhelming, the evidence that S.V. had Crawford’s DNA under her fingernails after she was found in the country with a bloodied lip is compelling—so compelling in fact that, despite the weaknesses in the State’s case argued by Crawford, we conclude the prosecutor’s misconduct would have had little weight in the minds of the jurors. More specifically, we conclude the State has met its burden of establishing beyond a reasonable doubt that the misconduct did not affect the outcome of the trial, i.e., there is no reasonable possibility that the misconduct contributed to the jury’s verdict. Further, the strength of this evidence is sufficient to overcome our conclusion that the prosecutor’s misconduct was gross and flagrant.
Hence, we conclude the Court of Appeals did not err in its determination that the misconduct does not require reversal of Crawford’s convictions.
Judgment of the Court of Appeals affirming the district court on the issue subject to our grant of review is affirmed. Judgment of the district court on that issue is affirmed.
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Per Curiam:
This is a contested attorney discipline proceeding against Ira Dennis Hawver, who was admitted to practice law in Kansas in 1975. A panel of the Kansas Board for Discipline of Attorneys made findings of fact and concluded Hawver violated the Kansas Rules of Professional Conduct (KRPC) in several respects while representing a client in a death penalty case. The panel majority and the office of Disciplinary Administrator recommend disbarment. One panel member recommends indefinite suspension. Additional background may be found in State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013) (reversing convictions and remanding for new trial due to ineffective assistance of counsel).
The panel unanimously determined that Hawver violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.5 (2013 Kan. Ct. R. Annot. 503) (fees); 1.7(a)(2) (2013 Kan. Ct. R. Annot. 517) (conflict of interest); 1.16(a)(1) (2013 Kan. Ct. R. Annot. 569) (declining representation); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on lawyers fitness to practice law). It further found Hawver failed to timely file an answer in the disciplinary proceeding in violation of Kansas Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356). Hawver challenges some factual findings and conclusions, as well as the recommended discipline.
We hold that clear and convincing evidence establishes attorney misconduct and that disbarment is the appropriate discipline.
Procedural Background
On August 20, 2013, the office of the Disciplinaiy Administrator filed a formal complaint against Hawver. A supplement to that complaint was filed October 8, 2013. Hawver filed an untimely answer to the formal complaint on October 30, 2013. Hawver appeared at the panel's November 19, 2013, hearing, after which the panel made the following findings of fact and conclusions of law, together with its recommendation for discipline:
“Findings of Fact
“8. In August, 2003, the respondent entered his appearance on behalf of Phillip Cheatham, in a pending criminal case, which included two felony drug charges. On December 12, 2003, the respondent advised Cheatham to leave town because the respondent believed the police were looking for an excuse to arrest Cheatham.
“9. On December 13, 2003, Annette Roberson, Gloria Jones, and Annetta Thomas were shot. Ms. Roberson and Ms. Jones died from the gunshot wounds. Ms. Thomas survived.
“10. After the shooting, Cheatham called the respondent and told the respondent that he was being implicated in the shooting. The respondent told Cheatham, “Well, you know that’s ridiculous because you’re in Chicago and were headed that way.’
“11. Thereafter, the State of Kansas charged [ ] Cheatham with two counts of murder, attempted murder, aggravated battery, and felon in possession of a firearm.
“12. Later, in April 2005, Cheatham retained the respondent to represent him in the murder case. Cheatham agreed to pay the respondent a fee of $50,000. However, Cheatham did not pay the fee.
“13. On June 24, 2005, the State amended its complaint to add one count of capital murder for the deaths of Roberson and Jones and, alternatively, a count of first-degree premeditated murder for each killing. The other charges were unchanged.
“14. The respondent agreed to represent Cheatham in a capital murder case even though the respondent had not previously tried a capital murder case and he had not tried a murder case for 20 years.
“15. Patricia Scalia, of the Kansas Board of Indigent Defense Services, contacted the respondent after he was retained to represent Cheatham. Ms. Scalia offered support to the respondent’s representation. Ms. Scalia offered to retain co-counsel, investigators, consultants, and expert witnesses for the defense of Cheatham. The respondent declined Ms. Scalia’s offer of assistance.
“16. The respondent did not have and did not seek proper training to defend a capital murder case. Specifically, the respondent was unfamiliar with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (hereinafter ‘ABA Guidelines’). The ABA Guidelines establish standards for an attorney defending a death penalty case. The respondent failed to comply with the ABA Guidelines. Further, the respondent was not familiar with death-qualifying and life-qualifying tire jury.
“17. The respondent failed to properly investigate potential alibi witnesses and the respondent failed to file a notice of alibi defense, under K.S.A. 22-3218.
“18. Prior to trial, the respondent did not reduce his regular case load in his practice. Additionally, the respondent was running for Governor of the State of Kansas.
“19. All totaled, the respondent spent approximately 60 hours preparing for the capital murder trial.
“20. Prior to trial, as part of tire evidence of the felon in possession of a firearm charge, the prosecution agreed to enter into a stipulation that Cheatham had previously been convicted of a felony, rather than seek the admission of the details of Cheatham’s voluntary manslaughter conviction. Despite the stipulation, during voir dire and again during his direct examination of Cheatham, the respondent informed the jury that Cheatham had previously been convicted of voluntary manslaughter. During trial, the respondent described Cheatham as a ‘professional drag dealer’ and a ‘shooter of people.’
“21. Regarding this issue, in this subsequent appellate decision, the Kansas Supreme Court stated:
‘During the Van Cleave proceedings, Hawver gave conflicting explanations as to why he introduced details about the prior conviction. In a deposition prior to the evidentiary hearing, he testified that he informed the jury of the conviction because he believed the State would be able to introduce it during the guilt phase of trial because it was an aggravating factor tire State would attempt to prove during the penalty phase. This misconception is evident by the following exchange:
‘A. [Hawver]: Well, I made tire decision that, in a sense, it was a capital case, and since the jury would be informed that he had done what he had to do in capital cases, unlawfully, feloniously, intentionally and with premeditation, ldll more than one person, that’s a capital murder requirement. Um, let’s see. Um, where he would be—it would be stated that he had committed a crime that would bring him into the capital realm, I thought it was better to explain to them what the deal was rather than let them wonder what he had done.
‘Q. [Cheatham’s counsel]: And so if I understand you, please correct me if I misstate this, you understood drat one of the aggravating factors that the State would attempt to prove if the penalty phase occurred was that Mr. Cheatham had on a prior occasion been convicted of this involuntary manslaughter?
‘A. [Hawver]: I thought they would be able to do drat during the guilt phase, the guilt phase.
‘Q. [Cheatham’s counsel]: And can you tell me under what dieory you believed diat evidence of involuntary manslaughter would have been admissible in the first phase?
‘A. [Hawver]: The fact that it was a capital case.
‘A. [Hawver]: And in order to get a capital case, my understanding you have to have done something like diat prior.
‘Q. [Cheadiam’s counsel]: All right. And so you believe diat because they charged it as a capital case, tiiat would give them die right to produce aggravating factors in the first phase of the trial?
‘A. [Hawver]: Correct.’
‘Hawver tiien said he attempts to win cases by “telling the trudi and letting the facts set, an understanding of the full scope of die presentation.” ’
“22. During the closing argument, die respondent ‘conceded that asking die jury to ignore Cheatham’s background when determining guilt required “some sort of superhuman fiction.” ’
“23. The jury convicted Cheatham of all the charges. During the closing argument of the penalty phase of the trial, the respondent told die jury that the killer should be executed. The jury sentenced Cheatham to deatii. Cheatham appealed, asserting that he was provided with ineffective assistance of counsel.
“24. The Kansas Supreme Court bifurcated the ineffectiveness arguments from other issues on appeal and remanded die case to the district court for a Van Cleave hearing.
“25. The respondent signed an affidavit prepared by Cheatham’s new counsel. The respondent testified that the contents of the affidavit are accurate. The affidavit provided:
T. I am over the age of 18 and if called upon to do so, I am competent to testify to die things discussed in this affidavit.
‘2. I am an attorney in good standing in die State of Kansas.
‘3. In 2005 I was a practicing lawyer widi a solo practice in Ozakawie [sic], Kansas in Jefferson County.
‘4. In April, 2005, I met with the accused Phillip Cheatham in die County jail where he was being held on murder charges in case number 03 CR 2635 in the Shawnee County, Kansas, District Court. The State had charged Mr. Cheadiam with two counts of Murder in die first degree, Assault in the first degree, as well as other lesser charges. Mr. Cheadiam requested that I represent him in the murder case.
‘5. In April 2005,1 was a private attorney with a general trial practice. I had a busy practice in which I represented people in civil and criminal matters in Jefferson, Shawnee, Douglas, and other counties. In addition, I was a candidate for governor of the State of Kansas, and as such I was spending considerable time attending public appearances throughout die state of Kansas. I appeared at all political functions dress [ed] as President Thomas Jefferson. In the year preceding my run for Governor, I ran for Congress, and in each instance, I was in the race to educate the public about the war in Iraq.
‘6. At the time I entered my appearance to represent Mr. Cheatham in his capital murder case I had considerable experience in a courtroom, but I had little experience in the preparation and trial of a murder case (the last murder case I handled was in 1985) and NO experience working on a capital murder case. I did not appreciate the differences between handling a murder case and a capital murder case when I agreed to represent Mr. Cheatham.
‘7. At the time I entered my appearance I did not consult with the BOARD OF INDIGENTS’ DEFENSE to explore whether funding might be available to support my representation of die client. Nor did I meet with any person widi experience in the pretrial investigation of a capital case nor did I meet widr any person about the complexities of trying a capital case. In truth, I should not have accepted the case given my lack of capital trial experience, and tíre unavailability of necessary funding which I now understand is required in the preparation and trial of cases, such as this one in which the client faces a possible death sentence.
‘8. At the time I entered my appearance I did not review any standards for die performance of defense counsel in a capital case. More specifically, I did not review the American Bar Associations Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. I did not read state or federal cases, such as Wiggin v. Smith, 539 U.S. 510 (S. Ct. 2003) which would have provided guidance regarding die requirements under die law for the pretrial investigation of mitigating evidence, and the requirements under the law for the trial presentation of mitigating evidence.
‘9. Mr. Cheatham did not have any funds with which to pay for my services nor did he have funds to pay for any investigation of his case. I agreed to represent Mr. Cheatham on the murder charges in exchange for his promise to pay $50,000 for my time, if he was found not guilty on the charges.
TO. On June 30, 2005 the prosecuting attorney filed notice to seek the deatii penalty in the case. This occurred following the client’s failure to accept a plea offered by the prosecuting attorney. Given the lurid publicity and the history of die accused, I was not surprised when the State made the case against Mr. Cheadiam a capital case.
Tl. After the State designated the case a capital case-1 understand that I received a call from Pat Scalia, director of the Board of Indigents’ Defense, who offered to assist with funding. I do not have a specific memory of this call but I would not contest Ms. Scalia’s assertion that this offer was made. I did not talk to her at any odier time during my representation of Mr. Cheatham.
T2. At the time of my entry of the case, I was generally aware of the Marsh decision, in which the Kansas Supreme Court struck down tire statutory scheme in death penalty cases on or about December 17, 2004.
T3. However, I never filed a motion asking the trial court to dismiss the death penalty pursuant to the 2004 Marsh decision. This was not- a strategic decision, it was an oversight, and therefore in error. My failure to raise this issue before the trial began in August 2005 prejudiced my client,
T4. On June 30,2005 the preliminary hearing was held in the above captioned case. I represented Mr. Cheatham at the hearing. A young lawyer who was interning at my office attended the hearing with me. This was the only opportunity I would have to see the State’s witnesses as I was without funds to conduct a pretrial investigation of the case. It was the only point in the pretrial phase or the trial phase when I had co-counsel. His role was limited to attending the hearing and taking notes.
‘15. Based on my review of the police reports, the character of the witnesses and a possible alternative suspect, I did not believe that State had a strong case against my client. I considered only one theory of defense and failed to explore other possible theories of defense. I now understand that this decision falls short of tire expectations of counsel in a capital case.
T6. My theory before trial and at trial was that my client was innocent and that a man named Todd Atkins was guilty. In my case, I took on the burden of proving the guilt of another man. I believed it was in the client’s best interest to get to trial as soon as possible. I did not see how time or investigation would change the theory of the case; therefore I never asked the court for time to investigate the case or to conduct an investigation of the client’s life history. I believe if I had asked for additional time to prepare the case the judge would have granted such a request.
T7. Therefore, this capital murder trial began less than 3 months after preliminary hearing. I now understand that on average capital cases take 20 months to prepare for trial.
T8. The truth is I banked on winning the case, and therefore I failed to prepare any case in the event of a finding of guilt by the jury. My decision to go forward as fast as we could was motivated by a false sense of strength of my theory, but should not be considered as a well thought through strategy. Proceeding as I did was done in error and my decision to forego a thorough first and second phase investigation prejudiced my client. In fact, I now know it made it more likely than not that a juiy faced with no meaningful mitigation would render death sentences in a double homicide.
T9. My decision not to hire an investigator to assist in the investigation of the trial facts was because I had no funds with which to hire an investigator. Truthfully, I did not see what I could have asked an investigator to do as my theory was Todd Atkins committed the murder in a jealous rage. I did not have any co-counsel to consult with or to assist in testing my theory of defense. I now understand that my failure to consider other trial strategies was prejudicial to my client. In addition, I failed to consider how my defense might impact a penalty phase of the case.
‘20. The client did identify a possible alibi witness, but without funds to hire an investigator I was unable to locate this potential witness. I failed to ask for time to find this potential exonerating witness. I failed to ask the court or the BOARD OF INDEGENTS’ DEFENSE to provide the funds to locate witnesses th[at] may have been able to account for the time of the accused in the critical time frame and therefore permitted the jury to here [sic] the evidence of alibi.
‘21. I was not able to evaluate the strength of my theory of defense by employing an investigator and putting him into the field to question the scores of witnesses which may have had information to share about the day of the crime, the credibility of certain key witnesses, the relationship of my client with the Topeka Police department and the resulting prejudice, the potential alibi witnesses or other critical evidence which would have uncovered with the help of competent investigator. I admit that I did not provide effective assistance of counsel when I decided to forgo a comprehensive investigation of the trial facts.
‘22. The trial in this case lasted approximately 10 days, and I spent long days working on the case in the days leading to the trial, and during the trial. The trial began on August 29, 2005, and the jury returned a sentencing verdict on September 12, 2005. I would estimate I spent at least 200 hours on the preparation and in the trial of the first phase of the case. Many of these hours were accrued during the approximately 10 day trial as the days which required 14-16 hour days.
‘23. I did not have co-counsel during either the pretrial or the trial stages of this case. I did not know that it is standard practice for the accused in a capital case to have two lawyers who are assigned to work on his case. I had not read the applicable case law or reviewed practice standards before concluding I would not seek the assistance of competent and experienced co-counsel. My failure to seek co-counsel in a capital murder case was below any reasonable professional standard as set out in Guideline 4.1 of the ABA Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases.
‘24. Prior to this case, I had never selected a jury in a capital case. I had never seen a jury selected in. a capital case. I did not prepare for die capital jury selection and approached the process with a single goal in mind which was to challenge the State’s case and lead tire jury to an acquittal of the client.
‘25. I did not become familiar with the requirements of “death qualification” questioning. At the time of the trial I was not familiar with the techniques to 1) expose those prospective jurors who would automatically impose the death penalty following a murder conviction or finding that the client was death eligible, regardless of the individual circumstances of my case; 2) uncover those prospective jurors who would be unable to give meaningful consideration to mitigating evidence; and 3) rehabilitate potential jurors whose initial indications of opposition to tlie death penalty made them possibly excludable.
‘26. I neither considered nor contacted a capital jury expert to assist with the juiy selection. I now know such experts are available in Lawrence, Kansas. I did not seek funding for this type of expert from the court or from the Kansas Board of Indigents’ Defense.
‘27. In truth, I was not aware of tlie obligations of defense counsel in questioning jurors to determine their views on the death penalty versus life in prison. I was not prepared to challenge jurors based on tlie capital case law. My failure to adequately prepare for capital jury selection prejudiced my client’s case, and was a grievous error.
‘28. I did not seek assistance from the Kansas capital unit, to determine whether or not they could have provided competent and/or learned co-counsel, nor did I seek help from the judge to assist me in finding learned capital co-counsel. As I saw it, the client did not have funds to pay for co-counsel, so die only option I had was to try the case alone or turn tlie case down.
‘29. I did not have a Legal Representation Plan as outlined in 4.1 of the ABA Guidelines of the Appointment and Performance of Defense Counsel in Capital Cases. Today, I understand that the ABA guidelines have been recognized by tlie U.S. Supreme Court in tlie Wiggins decision as tlie standards of representation for all capital defense counsel. I did not consider co-counsel, my lack of experience or tlie need for funds to pay for the representation as obstacles that should have prohibited my representation of tlie client.
‘30. I failed to conduct a penalty phase investigation. After tlie jury returned a verdict of guilty on the murder charges, I contacted Phillip Cheatham's mother in Kansas City, and asked her to travel from Kansas City to Topeka so that she could tell the jury she loved her son and would suffer if he was executed. Although I asked Mr. Cheatham’s mother to gather up other possible witnesses and bring them to court die next morning she was tlie only witness to appear 12 hours after my call to her. Mr. Cheat-ham and his mother were therefore tlie only witnesses I was able to present in the penalty phase of the trial. My failure to conduct a penalty phase investigation fell below the standards of practice and caused grievous harm to my client.
‘31. I admit I used a flawed and prejudicial argument in the penalty phase with a jury that had just determined my client had tolled two women, and then attempted to toll a third. Despite my knowledge that the jury had found my client guilty beyond a reasonable doubt of double murder, I told the jury I thought tlie toller should be executed for tlie crimes. This argument was clearly prejudicial to my client, who the jury believed, as evidenced by their verdict, was the killer.
'32, I had a single mitigator to offer the jury in sentencing, and that was my argument that my client was innocent. I admit that this was all I could offer given the failure to conduct any investigation into the life of my client. I admit that a jury, which had just decided my client was in fact guilty of the murders, had already rejected my theory of the case. I admit that my decision to present INNOCENCE as a mitigator was prejudicial to the client and may have even angered the jurors. I admit I did not have sufficient time or experience to weigh the advantages and/or disadvantages of this course of action.
‘33. In my experiences as a trial lawyer, I had never been called on to investigate the client’s life history, analyze the information and then form a trial strategy based on the client’s life history. I lacked the knowledge and the experience to present a competent mitigation case or to form the persuasive arguments that would assist the jury in forming a sentencing decision that would allow a sentence in prison for life without parole. The truth is I would not know how to begin such an investigation, nor would I know how to use the information to assist the jury in its job.
‘34. I did not attend training at either the local or at the national level to gather information about how to conduct a penalty phase investigation.
‘35. Prior to this case I was not aware that there were mitigation specialists who are trained to conduct life investigations, and work with the trial teams to interview mitigation witnesses, prepare witnesses for trial, find experts, gather documents and in some cases testify. I did not contact or hire any mitigations [sic] investigator or mitigation specialist to assist me in tire preparation and presentation of the case. I now understand that my failure to hire a mitigation specialist was below the professional standards set out for lawyers who accept capital appointments and/or take on capital cases.
‘36. I failed to hire a mitigation specialist and I failed to seek the necessary funding from the court or from the BOARD OF INDIGENTS’ DEFENSE. My failure to conduct an investigation was a grievous error and was in violation of the standards for the performance of defense counsel in capital cases.
‘37. I did not collect any education, medical, mental health, employment, juvenile, criminal justice or other records of Mr. Cheatham’s during the ■ 5 months I represented him. In all honesty, I did not know it was standard practice in the defense of capital cases to collect the client’s records.
‘38. I did not conduct interviews of the family of my client to learn about his birth, education, parental absence, parental crime and addiction, traumas in his life, criminalization by family and/or community, the impact of poverty and/or the impact of a violent inner city community on his de velopment. I did not know that an in-depth social history is standard practice in a death penalty case.
‘39. I did not consider seeking the help of any expert in this case. I did not know it was standard practice in a mitigation investigation to investigate intelligence, brain damage, and mental health issues. I admit I do not have the necessary expertise to evaluate or assess a client to determine if he is mentally ill or brain damaged without the assistance of experts.
‘40. I was not familiar with capital instructions prior to this case, and therefore was not familiar with how to prepare mitigation instructions nor did I appreciate the fact that a jury may consider any fact about the client’s life as mitigating, or in other words, as a reason to give a life sentence and not a death sentence. If I had understood tire law and tire range of possible mitigators which existed in my client’s life, I would have submitted additional evidence to support a host of other possible mitigation instructions. My failure to offer more than one mitigator was very prejudicial to my client, and left tire jury with a false impression about his life. In the end it gave the jury nothing upon which to base a life verdict.’
“26. During the Van Cleave hearing, the State stipulated that tire respondent provided ineffective assistance of counsel to Cheatham during tire sentencing phase of the trial but disputed that Cheatham received ineffective assistance of counsel during tire guilt phase of tire trial. The Van Cleave court upheld the convictions but reversed tire death sentence.
“27. On January 25,2013, tire Kansas Supreme Court issued an opinion, overturning Cheatham’s conviction based on ineffective assistance of counsel.
“28. After tire Kansas Supreme Court’s opinion in State v. Cheatham, was released, the disciplinary administrator docketed a complaint against the respondent. Thereafter, on March 2, 2013, the respondent provided a response to the initial complaint. In his response, the respondent denied violating the Kansas Rules of Professional Conduct.
“29. On August 20, 2013, Mr. Walczak filed a formal complaint. The respondent failed to provide a written answer to the formal complaint within 20 days. Thereafter, on October 8, 2013, Mr. Walczak filed a supplement to tire formal complaint, alleging that the respondent failed to file an answer to the formal complaint.
“30. On October 30, 2013, the respondent filed a ‘second answer to formal complaint and answer to the supplement to formal complaint.’ Rather than admit or deny the allegations contained in the formal complaint and the supplement to tire formal complaint, tire respondent’s pleading was more akin to a trial brief.
“Conclusions of Law
“31. While tire Kansas Supreme Court has previously determined that tire respondent provided ineffective assistance of counsel in his defense of Cheatham, tire standard for determining whether the respondent engaged in misconduct and, thus, violated the Kansas Rules of Professional Conduct, requires a different analysis.
“32. In order to determine whether tire respondent violated the Kansas Rules of Professional Conduct, the hearing panel must determine whether clear and convincing evidence supports the conclusions of specific violations of the Kansas Rules of Professional Conduct.
“33. The hearing panel concludes, based upon the above findings of fact, specifically including the affidavit executed by the respondent, that clear and convincing evidence supports the conclusions that the respondent violated KRPC 1.1, KRPC 1.5, KRPC 1.7(a)(2), KRPC 1.16(a)(1), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b), as detailed below.
“KRPC 1.1
“34. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The respondent was not competent to represent Cheatham.
‘a. The respondent had not tried a murder case for 20 years and had no experience in death penalty cases.
‘b. The respondent did not appreciate the differences between trying a murder case and trying a capital murder case.
‘c. The respondent did not obtain any training to defend a capital murder case.
‘d. The respondent did not reduce his other caseload in order to devote additional time to the representation of Cheatham.
‘e. Throughout the period of representation, the respondent was running for Governor of the State of Kansas.
‘f. The respondent was unfamiliar with the ABA Guidelines.
‘g. The respondent failed to hire co-counsel, an investigator, consultants, a capital jury expert, a mitigation specialist, and expert witnesses.
‘h. The respondent did not accept assistance from the Board of Indigents’ Defense Services.
‘i. The respondent failed to conduct a thorough investigation of the facts.
‘j. The respondent failed to assemble a trial team.
‘k. Rather than hire a mental health professional and without any experience, the respondent judged Cheatham to be mentally healthy.
1. The respondent did not know that he could compel tire attendance of out-of-state witnesses.
‘m. The respondent failed to track the cell phone to determine Cheatham’s location at the time of the murders.
⅛. The respondent failed to properly investigate possible alibi witnesses. Additionally, the respondent failed to file a notice of alibi.
‘o. The respondent was not familiar with how to death-qualify and life-qualify a jury.
‘p. While the respondent was familiar with tire Marsh decision, he failed to file a motion challenging the death penalty.
‘q. The respondent did not prepare a legal representation plan.
‘r. The respondent spent approximately 60 hours preparing for the capital murder trial.
‘s. During trial, the respondent described Cheatham as a “professional drug dealer” and a “shooter of people.”
‘t. The respondent believed that the manslaughter conviction would be admitted during the guilt phase of the trial.
‘u. The respondent was not familiar with capital jury instructions.
V. The respondent did not conduct investigation for the sentencing phase,
‘w. During the sentencing phase of the trial, the respondent presented only one mitigator—Cheatham’s innocence,
x. In the closing argument of the sentencing phase, after the same jury had concluded Cheatham was guilty of the murders, the respondent told the juiy that they ought to execute the killer.’
The respondent failed to represent Cheatham with tire legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.5 and KRPC 1.7(a)(2)
“35. KRPC 1.5 provides that ‘[a] lawyer’s fee shall be reasonable.’ KRPC 1.7(a)(2) provides:
‘(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(2) there is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.’
“36. The respondent charged Cheatham a fee of $50,000. The Kansas Supreme Court previously concluded that the fee was not a contingent fee, but rather a flat fee. Charging a flat attorney fee in a capital murder defense was unreasonable and created a conflict of interest.
“37. The ABA Guidelines ‘unequivocally disapprove of flat fees in death penalty cases precisely because such fee arrangements pit tire client’s interests against the lawyer’s interest in doing no “more than what is minimally necessary to qualify for the flat payment.’” Despite the fact that Cheatham did not pay the fee, charging a flat fee in this case became a disincentive to the respondent to do more than what is minimally necessary to qualify for the flat payment. Accordingly, the hearing panel concludes that the respondent’s flat fee was unreasonable and created •a concurrent conflict of interest, in violation of KRPC 1.5 and KRPC 1.7(a)(2).
“KRPC 1.16(a)(1)
“38. A ‘lawyer shall not represent a client... if tire representation will result in a violation of the Kansas Rules of Professional Conduct.’ KRPC 1.16(a)(1). In this case, accepting the representation of Cheatham resulted in a violation of KRPC 1.1. By accepting the representation of Cheatham, the respondent violated KRPC 1.1, as the respondent was not competent to represent a defendant in a capital murder case, as detailed in paragraph 34 above. The hearing panel concludes that the respondent violated KRPC 1.16(a)(1) in this regard.
“KRPC 8.4(d)
“39. KRPC 8.4(d) provides that ‘[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ The respondent engaged in conduct that is prejudicial to the administration of justice when he incompetently represented Cheatham in a capital murder case. As a direct result of the respondent’s ineffectiveness, the Kansas Supreme Court reversed Cheatham’s conviction for capital murder and the case will have to be tried again. Causing a retrial in a capital murder case is significant prejudice. Thus, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“KRPC 8.4(g)
“40. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he informed the jury during the guilt phase that Cheatham was a ‘professional drug dealer’ and a ‘shooter of people.’ Further, the respondent engaged in conduct that adversely reflects on his fitness to practice law when, during the sentencing phase of the jury trial, the respondent told the jury that they ought to execute the killer. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“Kan. Sup. Ct. R. 211(b)
“41. The Kansas Supreme Court Rules require attorneys to file answers to formal complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Kan. Sup. Ct. R. 211(b). The respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written answer to the formal complaint. The respondent’s response to the initial complaint was not an answer to the formal complaint. The respondent did not file an answer to the complaint until October 30, 2013, 71 days after the formal complaint was filed. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 211(b).
“American Bar Association Standards for Imposing Lawyer Sanctions
“42. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, tire potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“43. Duty Violated. The respondent violated his duty to his client to provide competent representation. The respondent violated his duty to his client to refrain from engaging in conflicts of interest. The respondent violated his duty to the public and to the legal profession to maintain his personal integrity.
“44. Mental State. The respondent intentionally violated his duties.
“45. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to the administration of justice. As a result of the respondent’s misconduct, a capital murder case has been remanded for a second trial.
“Aggravating and Mitigating Factors
“46. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“47. Prior Disciplinary Offenses. In 2003, the respondent participated in the attorney diversion program, under Kan. Sup. Ct. R. 203(d), for having violated KRPC 1.1 (competence).
“48. A Pattern of Misconduct. Throughout the representation of Cheatham, the respondent engaged in misconduct. As such, the hearing panel concludes that the respondent engaged in a pattern of misconduct.
“49. Multiple Offenses. The respondent violated KRPC 1.1, KRPC 1.5(a), KRPC 1.7(a)(2), KRPC 1.16(a)(1), KRPC 8.4(d), KRPC 8.4(g), and Kan. Sup. Ct. R. 211(b). The hearing panel concludes that the respondent engaged in multiple offenses.
“50. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1975. At tire time of the misconduct, the respondent had been practicing law for nearly 30 years.
“51. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, tire hearing panel, in this case, found the following mitigating circumstances present:
“52. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct was not motivated by dishonesty or selfishness.
53. The Present and Past Attitude of the Attorney as Shown by the Attorney’s Cooperation During the Hearing and the Attorney's Full and Free Acknowledg- ■rnent of the Transgressions. By signing the affidavit, the respondent acknowledged engaging in misconduct. Further, during die formal hearing, die respondent acknowledged tiiat he violated the Kansas Rules of Professional Conduct and the Kansas Supreme Court Rules. However, during the hearing on the formal complaint, die respondent repeatedly testified tiiat the reason the hearing was being held was because Cheatham was convicted and that had Cheatham been acquitted, no hearing would have been held.
“54. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.51 Disbarment is generally appropriate when a lawyer’s course of conduct demonstrates tiiat the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client.’
“Recommendation
“55. At tiie hearing on the formal complaint, the deputy disciplinaiy administrator recommended that the respondent be disbarred. The respondent recommended that he be directed not to take any additional murder cases and that he be allowed to continue to practice law.
“56. After careful consideration of the facts and rule violations, a majority of tiie hearing panel recommends that the Kansas Supreme Court enter an order of disbarment.
“57. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
The panel’s presiding officer, Philip D. Ridenour, filed a separate concurring-opinion. David H. Moses, a panel member, filed a separate concurring and dissenting opinion, agreeing with the findings and conclusions regarding the violations, but recommending indefinite suspension as the appropriate discipline.
Discussion
In a disciplinary proceeding, this court considers the evidence, the disciplinary panel’s findings, and the parties’ arguments to determine whether KRPC violations exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Hawver was given adequate notice of the formal complaint and the supplement to the formal complaint. He was also given adequate notice of tire panel’s hearing and tire hearing before this court.
Exceptions to the panel’s report
Hawver filed exceptions to portions of the panel’s final hearing report-. See Supreme Court Rule 212(c)(2) (2013 Kan. Ct. R. Annot. 376). We consider those first.
When a respondent does not take exception to a finding it is deemed admitted. In re Woodring, 289 Kan. 173, 174-75, 210 P.3d 120 (2009). But when an exception is taken, the panel’s findings are not typically deemed admitted, so the court must determine whether the disputed findings are supported by clear and convincing evidence. In re Bishop, 285 Kan. 1097, 1106, 179 P.3d 1096 (2008). In making this determination, the court does not weigh conflicting evidence, assess witness credibility, or redetermine questions of fact. In re Kline, 298 Kan. 96, 113-14, 311 P.3d 321 (2013). If a disputed finding is supported by clear and convincing evidence, it will not be disturbed. In re Mintz, 298 Kan. 897, 902, 317 P.3d 756 (2014); In re Frahm, 291 Kan. 520, 525, 241 P.3d 1010 (2010); 285 Kan. at 1106.
Hawver’s pleadings make it difficult at times to decipher exactly what exceptions he has to the panel’s specific findings and conclusions. For example, he broadly states exception “to each and every finding that he violated the Kansas Rules of Professional Conduct (KRPC) to a degree requiring discipline.” (Emphasis added.) This could mean the facts are admitted and the only dispute is about the panel’s recommendations for discipline. Hawver takes further exception “to any disciplinary finding that he committed improper conduct at the direction of a client, which should be subject to disciplinary action.” (Emphasis added.) This could mean the dispute centers only on those aspects of the case defense in which Cheatham participated or, again, only the recommended discipline. Hawver offers this explanation:
“When the client retained respondent, the client was exercising his rights to select counsel of his choice, not state appointed counsel, and to exercise his decisions in his defense tactics against the state’s charges of murder of capital murder. Respondent takes constitutional exception to the state’s action that the state can lawfully censor, punish, or deprive the respondent of a property right in the practice of law for his defense of his client, as directed by his client, under the First and Sixth Amendments of the United States Constitution.”
Hawver also makes generalized exceptions to some of the panel’s specific findings. These are: Paragraph 16 (failure to comply with ABA death penalty guidelines); Paragraph 17 (failure to properly investigate potential alibi witnesses and file the statutorily required notice of alibi defense); Paragraph 19 (total hours preparing for capital murder trial); Paragraph 20 (informing potential jury pool that client had prior voluntaiy manslaughter conviction, was a “professional drug dealer” and a “shooter of people”); Paragraph 21 (quoting from this court’s Cheatham decision); Paragraph 22 (quoting from Hawver’s closing argument during Cheatham’s trial); Paragraph 29 (noting Hawver’s failure to timely file answer to August 2013 formal complaint); and Paragraph 30 (noting Hawver’s October 2013 answer to supplemental formal complaint failed to admit or deny allegations and was “more akin to a trial brief’). But little detail is offered to explain the exception, and there is insufficient citation to the evidentiary record from which to base an attack against a specific finding.
Supreme Court Rule 212(e)(4) (2013 Kan. Ct. R. Annot. 377) provides that a respondent who files exceptions to the final hearing report, but does not file a brief, “will be deemed to have conceded that the findings of fact made by the hearing panel are supported by the evidence.” See also Bishop, 285 Kan. at 1106 (exception deemed abandoned or waived if respondent’s brief advances argument without proper citation to the record to support that exception). Hawver’s briefing lacks this required argument and citation to tire record to appropriately pursue his exceptions. He does not reference—as he must—the evidence presented at the hearing that might support his exceptions.
For example, the statement of facts in Hawver’s brief simply repeats what he stated in a prehearing “Second Answer to Formal Complaint and Answer to the Supplement to Formal Complaint”-—a pleading prepared before the evidentiaiy hearing. This is wholly inadequate to preserve Hawver’s enumerated exceptions to the panel’s factual findings. Similarly, Hawver’s brief is devoid of proper citation to the hearing panel’s evidentiary record.
We hold the panel’s findings of fact are deemed admitted to the extent they are not implicated by the legal arguments Hawver raises in his brief. See In re Small, 296 Kan. 759, 793, 294 P.3d 1165 (2013).
The record fully supports the panel's findings of misconduct
Even if we ignore Hawver’s procedural failures due to his failure to properly challenge his enumerated exceptions, we note he did not take specific exception to other specific findings made by the panel, which by themselves are sufficient to establish clear and convincing evidence of attorney misconduct. Those unchallenged findings are: Paragraph 12 (fee agreement with Cheatham); Paragraph 14 (no prior experience in a death penalty case); Paragraph 15 (Scalia phone call); Paragraph 18 (failure to reduce his regular caseload); Paragraph 23 (statement to the jury during the penalty phase that the killer should be executed); and, most notably, Paragraph 25 (Hawver’s affidavit, prepared before Cheatham’s Van Cleave hearing that admits the substantive facts relied on by the disciplinary panel, including Hawver’s admissions of professional incompetence in handling Cheatham’s case).
The Van Cleave affidavit recited in Paragraph 25 in particular provides clear and convincing evidence of attorney misconduct. In it, Hawver admitted the essential facts comprising the allegations of misconduct against him, e.g., “I did not appreciate the differences between handling a murder case and a capital murder case when I agreed to represent Mr. Cheatham.” (Affidavit ¶ 6); “In truth, I should not have accepted the case given my lack of capital trial experience, and the unavailability of necessary funding which I now understand is required in the preparation and trial of cases, such as this one in which the client faces a possible death sentence.” (Affidavit ¶ 7); “Proceeding as I did was done in error and my decision to forego a thorough first and second phase investí- gation prejudiced my client. In fact, I now know it made it more likely than not that a jury faced with no meaningful mitigation would render death sentences in a double homicide.” (Affidavit ¶ 18); “I now understand that my failure to consider other trial strategies was prejudicial to my client. In addition, I failed to consider how my defense might impact a penalty phase of the case.” (Affidavit ¶ 19); “I admit that I did not provide effective assistance of counsel when I decided to forgo a comprehensive investigation of the trial facts.” (Affidavit ¶ 21); “In truth, I was not aware [of] the obligations of defense counsel in questioning jurors to determine their views on the death penalty versus life in prison. I was not prepared to challenge jurors based on the capital case law. My failure to adequately prepare for capital jury selection prejudiced my client’s case, and was a grievous error.” (Affidavit ¶ 27); “My failure to conduct a penalty phase investigation fell below the standards of practice and caused grievous harm to my client.” (Affidavit ¶ 30); “Despite my knowledge that the jury had found my client guilty beyond a reasonable doubt of double murder, I told the jury I thought the killer should be executed for the crimes. This argument was clearly prejudicial to my client, who the jury believed, as evidenced by their verdict, was the killer.” (Affidavit ¶ 31); “I now understand that my failure to hire a mitigation specialist was below the professional standards set out for lawyers who accept capital appointments and/or take on capital cases.” (Affidavit ¶ 35); and “My failure to conduct an investigation was a grievous error and was in violation of the standards for the performance of defense counsel in capital cases.” (Affidavit ¶ 36).
At the panel’s hearing, Hawver repeatedly confirmed this affidavit’s accuracy, e.g., “[Hawver]: Well, it isn’t false. I don’t see anything in here is false.” And adding to these admissions from the affidavit are: (1) the unchallenged testimony presented by the Disciplinary Administrator’s office of Patricia Scalia, state director for the Board of Indigents’ Defense Services, and Ron Evans, chief defender for the State of Kansas Death Penalty Unit; (2) Hawver’s sworn testimony in the Van Cleave proceeding; and (3) the panel’s findings, which are deemed admitted due to Hawver’s failure to properly challenge them in his exceptions.
Taken together, the record supports the panel’s factual findings and establishes by clear and convincing evidence that Hawver violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.5 (2013 Kan. Ct. R. Annot. 503) (fees); 1.7(a)(2) (2013 Kan. Ct. R. Annot. 517) (conflict of interest); 1.16(a)(1) (2013 Kan. Ct. R. Annot. 569) (declining representation); 8.4(d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law); and Kansas Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356). Each of the panel’s findings is fully supported by the record under the applicable standard.
Hawver s First Amendment Challenge
Moving next to Hawver’s legal challenges, he first claims attorney discipline in this case would infringe his First Amendment rights. He argues attorney advocacy “is among the purest forms of protected First Amendment advocacy”; that the United States Supreme Court has “recognized the unlawfulness of a state court using the power of attorney discipline to punish [a] criminal defendant’s attorney’s lawful exercise of constitutional speech protections”; and “[t]he US Supreme Court has determined that the constitution protects the respondent’s conduct in precisely the circumstances that the disciplinaiy tribunal has recommended that the respondent be disbarred.”
Hawver’s argument appears to be that his conduct in representing Cheatham was protected speech under the First Amendment, which in turn protects him from disciplinaiy action for engaging in it. But this argument is without merit because neither tire nonex-pressive aspects of the Cheatham representation nor Hawver’s in-court advocacy are protected speech under these facts.
An attorney’s speech is limited both in and outside the courtroom. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1071, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (opinion of Rehnquist, C.J.). “It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to Tree speech’ an attorney has is extremely circumscribed.” 501 U.S. at 1071. And even a lawyer’s out-of-court advocacy may be subject to limitation when it conflicts with ethics rules that serve substantial government interests, such as guaranteeing criminal defendants’ rights to fair trials, or protecting public confidence in the legal system. See 501 U.S. at 1071, 1075-76 (government interest in preserving right to fair trial prevailed over attorney’s First Amendment interest in statements to press substantially likely to affect trial’s outcome or prejudice ven-iere panel); In re Landrith, 280 Kan. 619, 638-39, 124 P.3d 467 (2005) (First Amendment not defense to discipline for attorney’s false and inflammatory accusations in pleadings filed with the court against judges, attorneys, court staff, and others).
Hawver’s First Amendment argument is easily addressed simply by determining whether the conduct at issue is protected speech, and, if so, whether Are rule that punishes it serves a substantial State interest that outweighs the lawyer’s First Amendment interest in the speech. See Gentile, 501 U.S. at 1034-35, 1076. If the conduct at issue is not protected speech, then the second analysis is unnecessary.
Many of the deficiencies the panel found involved nonexpressive conduct, including Hawver’s failure to investigate for the guilt and penalty phases of Cheatham’s case, inadequately preparing for trial, failure to file an alibi notice, failure to seek out or accept financial assistance for trial preparation, and failure to devote sufficient time to the case. The free speech guarantee extends to the spoken and written word and to conduct “ "sufficiently imbued with elements of communication ” Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989). But whether conduct is so imbued depends on whether the actor intended to convey a particular message and whether “ "the likelihood was great that the message would be understood by those who viewed it.’ ” Johnson, 491 U.S. at 404. The nonexpressive conduct in this case clearly was not intended to convey any particular message, so it is not protected speech. Imposing attorney discipline for this nonexpressive conduct does not implicate First Amendment concerns.
On the other hand, some of the deficiencies involved expressive conduct, including telling potential jurors that Cheatham was a drug dealer and had previously been convicted of voluntary man slaughter for shooting and killing another person; telling tire jury during the guilt phase it would take “superhuman” efforts to see past Cheatham’s criminal history to find him not guilty; and telling the jury during the penalty phase that it should execute the person who committed the crimes for which it had just found Cheatham guilty. But this expressive conduct also was not protected speech.
A lawyer who undertakes a duty to act only in the client’s best interests possesses no First Amendment interest in such in-court speech. See Mezibov v. Allen, 411 F.3d 712, 720 (6th Cir. 2005), cert. denied 126 S. Ct. 1911 (2006) (attorney retains no personal First Amendment rights when representing clients in courtroom proceedings); see also In re Sawyer, 360 U.S. 622, 646-67, 79 S. Ct. 1376, 3 L. Ed. 2d 1473 (1959) (Stewart, J., concurring) (reasoning a lawyer’s “[ojbedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech”).
In Mezibov, the court faced the question whether an attorney may claim First Amendment protection on his own behalf for certain courtroom statements attacking the prosecutor and prosecution witnesses made while defending his client in a criminal case. In answering this question in the negative, the court explained that an attorney “voluntarily acceptfs] almost unconditional restraints on his personal speech rights, since his sole raison d’etre [is] to vindicate his client’s rights.” 411 F.3d at 720. The court reasoned that this undertaking is “in absolute conflict with [the attorney] exercising free speech,” noting the attorney’s duty within the attorney-client relationship is to make arguments only for the client’s benefit. 411 F.3d at 719. As the Mezibov court noted, an attorney’s challenge of a restriction on speech during a judicial proceeding is “grounded in the rights of tire client, rather than any independent rights of the attorney.” 411 F.3d at 718.
We hold that the First Amendment provides no protection for Hawver’s misconduct in the Cheatham case. This makes it unnecessary to consider whether the rules at issue serve a substantial State interest that outweighs the lawyer’s First Amendment interest in the speech. But even if we were to take that analytical path for some of Hawver’s statements during the trial, this court has held that the State may restrict a lawyer s exercise of personal rights when “a lawyer’s unbridled speech amounts to misconduct that threatens a significant state interest.” In re Landrith, 280 Kan. at 638-39 (First Amendment not defense to discipline for attorney’s false and inflammatory accusations in pleadings filed with the court against judges, attorneys, court staff, and others).
In Hawver’s case, discipline is being imposed for his statements as failing to satisfy professional standards for competence as outlined in the KRPC. The State possesses a substantial interest in regulating the practice of law within its borders. See Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 6, 84 S. Ct. 1113, 12 L. Ed. 2d 89 (1964); Sperry v. Florida, 373 U.S. 379, 383, 83 U.S. 1322, 10 L. Ed. 2d 428 (1963). “Disciplinary proceedings are for the protection and benefit of the public at large.” State v. Callahan, 232 Kan. 136, 142, 652 P.2d 708 (1982).
The KRPC safeguards the public’s confidence that licensed attorneys are “fit to be entrusted with professional and judicial matters, and to aid in the administration of justice as an attorney and as an officer of the court.” See Rule 202 (2013 Kan. Ct. R. Annot. 296). Attorney competence directly affects die fairness of our criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hawver’s misconduct in violation of KRPC 1.1, therefore, may properly be seen as a significant State interest, and restriction of his personal First Amendment rights by imposing attorney discipline would be appropriate.
Hawver s Sixth Amendment Challenge
Hawver next contends disciplining him for his conduct in representing Cheatham would infringe upon Cheatham’s Sixth Amendment rights because it would deprive Cheatham of the right to counsel of his choice and interfere with Cheatham’s defense. This argument is without merit because a lawyer cannot raise a client’s Sixth Amendment rights as a defense in a disciplinary proceeding.
“[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” United States v. Chronic, 466 U.S. 648, 658, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Government intrusion into the attorney-client relationship does not violate the Sixth Amendment guarantee unless “the intrusion substantially prejudices the defendant.” United States v. Irwin, 612 F.2d 1182, 1186-87 (9th Cir. 1980); see also Mickens v. Taylor, 535 U.S. 162, 168, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002) (defendant must demonstrate at least adverse effect on representation to obtain reversal based on lawyer s conflict of interest, except in limited circumstances of attorney s representation of codefendants); Strickland, 466 U.S. at 692 (prejudice required for violation of right to effective assistance of counsel based on deficient attorney performance).
Notably, Hawver makes no allegation that his disciplinary action will or is likely to prejudice Cheatham, nor do we perceive such a threat is possible. See Partington v. Gedan, 961 F.2d 852 (9th Cir. 1992) (holding Sixth Amendment did not permit attorney to withhold privileged client communications from attorney discipline investigators). In fact, the contrary is true in this instance because it was Hawver’s ethical misconduct that created the violation of Cheatham’s Sixth Amendment right to the effective assistance of counsel. See State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013) (reversing convictions and remanding for new trial due to ineffective assistance of counsel).
A criminal defendant’s choice of counsel is properly constrained by regulations governing the practice of law. In other words, the right to counsel of one’s choosing is not unlimited. See United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006) (“[A]n element of [the right to assistance of counsel] is the right of a defendant who does not require appointed counsel to choose who will represent him.”); Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988) (“[A] defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant.”). For example, the choice is limited to counsel who is admitted to practice law. Wheat, 486 U.S. at 159. And even during a pending criminal proceeding, ethical violations may override a defendant’s choice and permit counsel’s disqualification. See United States v. Nolen, 472 F.3d 362, 375-76 (5th Cir. 2006) (reversing district court’s revocation of out-of-state defense counsel’s pro hac vice admission because court failed to balance defendant’s Sixth Amendment rights against interests underlying ethics rules violated by defense counsel); United States v. Collins, 920 F.2d 619, 627 (10th Cir. 1990).
The Sixth Amendment does not prohibit discipline in this case. Hawver’s failure to comply with the KRPC is not excused simply because Cheatham asked Hawver to represent him in a criminal matter. As presiding officer Ridenour explained in his concurring opinion in this case:
“Under the provisions of KRPC 1.1 (Competence) and 1.16 (Declining or Terminating Representation), I have a professional duty to my client to decline to represent him on legal issues on which I am unqualified; correspondingly, I also have the unstated but universally understood duty to recognize those legal issues on which I am unqualified to represent my client.”
Hawver’s ethical duties were no less. Cheatham’s decision to have Hawver represent him does not insulate Hawver from discipline resulting from the course of that representation; nor is discipline an infringement on Cheatham’s Sixth Amendment rights.
Hawver s challenges to the panel’s KRPC 1.1 conclusions
Hawver appears to raise three additional arguments to attack the panel’s conclusion that he violated KRPC 1.1 (competence): (1) He is shielded from discipline because Cheatham approved his strategy decisions; (2) He was free to make judgments about whether to pursue investigations; and (3) ABA guidelines on the performance of death penalty defense counsel cannot be used as conclusive measures of attorney competence. We consider each argument in turn and hold each to be without merit.
A lawyer must undertake a client’s objectives competently
Hawver argues discipline is inappropriate because he was merely carrying out the defense strategy Cheatham directed. According to Hawver, the defense theory Cheatham approved was:
“Because Cheatham was an experienced and highly street smart and intelligent criminal, who dealt cocaine for a living, and had already been convicted of hilling another dope dealer who pulled a gun during a dope deal, if he had murdered tire two women, he would not have left an eye witness alive to identify him.”
To support his argument, Hawver attaches a one-page, handwritten document purporting to be directions from Cheatham regarding the case. Hawver includes this document as an appendix to his brief to this court, but it was not introduced at the panel hearing and is not in the record. So in addition to objecting to Hawver producing tire document now, the Disciplinary Administrator also argues the document is silent on much of Hawver s misconduct, such as his lack of knowledge and experience necessary to defend a death penalty case, failure to accept BIDS assistance or to investigate the facts of the case, inadequate juiy selection technique, and inadequate mitigation case. The Disciplinary Administrator further argues Hawver cannot hide behind Cheat-ham’s strategy choices because Hawver failed to adequately investigate the case and explain all potential problems with the chosen courses of action. The Disciplinary Administrator is correct on all points.
The document attached to Hawver’s brief is not properly before this court because it is not part of tire record. Rule 6.02(b) (2013 Kan. Ct. R. Annot. 39). “Material which is annexed to an appellate brief by way of an appendix . . . cannot be considered on appeal.” See also In re Gershater, 270 Kan. 620, 633, 17 P.3d 929 (2001) (declining to consider exhibits to lawyer’s brief because exhibits not part of record from disciplinary proceedings). Accordingly, we have not considered the letter, although this is of little substantive effect because Hawver’s testimony to the panel contains frequent references to what Hawver described as Cheatham’s consent to the defense strategy and we have taken that testimony into account. But Hawver cannot avoid discipline even if Cheatham approved the defense theory and strategy pursued at trial.
In a criminal case, a defendant has a right to decide specific aspects of the case, i.e., what plea to enter, whether to waive a jury trial, and whether to testify. Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006). Beyond these matters, “defense counsel is responsible for strategical and tactical decisions like preparation, scheduling, and the type of defense.” Flynn, 281 Kan. at 1163 (citing State v. Rivera, 277 Kan. 109, 117, 83 P.3d 169 [2004]); KRPC 1.2, comment 1 (2013 Kan. Ct. R. Annot. 460) (“[T]he lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.”). In carrying out his responsibility, Hawver was duty-bound to perform “inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners,” as well as explaining the “matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” KRPC 1.1, comment 5 (2013 Kan. Ct. R. Annot. 447); KRPC 1.4(b) (2013 Kan. Ct. R. Annot. 484).
Hawver was required to conduct himself in conformity with the KRPC both in counseling Cheatham on the decisions within Cheat-ham’s purview and in implementing them once they were made. But even so, Hawver’s “consent to strategy” argument against these ethical charges does not account for his failure to obtain training to defend a capital murder case, failure to track Cheatham’s cell phone to determine its location at the time of the murders, failure to file the statutorily required notice of alibi, failure to death-qualify and life-qualify tire jury, failure to challenge the death penalty’s constitutionality in light of then-existing caselaw, failure to present more than one mitigator in the case’s penalty phase, and closing argument during which Hawver told the jury it ought to execute the toiler.
Cheatham’s approval of Hawver’s general theory of defense— assuming it was given—would not immunize Hawver from responsibility for his KRPC violations in the course of this representation.
Decisions about pretrial investigations must be informed
Hawver next argues he cannot be disciplined for his investigative shortcomings because “counsel must be free to make judgments about whether or not to pursue investigations.” He argues:
“Disregarding their duty to base disciplinary recommendations on clear and substantial evidence, and without any evidence or testimony from Cheatham (which certainly cannot be disclosed where Cheatham is being retried), the tribunal has invented injuries to Cheatham including the failure to track down the alleged alibi witnesses and the failure to provide tire state ample opportunity to probe Cheat-ham’s psyche and otherwise explore substantiations to overcome his plea of innocence. This conduct by the panel is an invitation for this court to violate the law as it has been clearly established by our nation’s highest court
While counsel is free to make strategy decisions, including those concerning case investigation, that discretion is not unfettered. Such decisions are constrained by the attorney’s obligation to conduct the investigation reasonably necessary for the representation. KRPC 1.1, comment 5 (2013 Kan. Ct. R. Annot. 447) states:
“Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standard of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.”
An attorney’s decisions regarding die scope of pretrial investigation and preparation must be informed. See In re Samad, 51 A.3d 486, 495-96, 501 (D.C. 2012) (imposing discipline on attorney who made uninformed decision to forgo pretrial investigation and preparation, and instead intended to rely on defense formulated based on review of file and general discussions with client); see also Flynn, 281 Kan. at 1157 (under standard for measuring effective assistance of counsel, strategic choices based on thorough investigation “virtually unchallengeable,” and those based on less than complete investigation reasonable only to extent “reasonable professional judgment” supports limitation on investigation).
Hawver’s investigative efforts failed to meet the standard of competence. Based on his affidavit and testimony at the disciplinary hearing, the panel found Hawver spent approximately 60 hours preparing for Cheatham’s trial, failed to investigate a potential alibi witness, failed to interview witnesses, and failed to conduct any penalty-phase investigation. The evidence established these were not reasoned strategic decisions. The limited time Hawver spent preparing the case was due to his political activities and need to attend to profit-generating legal matters for other clients. His failure to investigate for the guilt phase of Cheatham’s case was based on lack of funds, despite having been offered financial assistance from tire Board of Indigents’ Defense Services. The extent of his investigation into potential alibi witnesses Cheatham had identified was a phone call to Cheatham’s mother and reviewing an unspecified police report.
In addition, Hawver was unaware he could subpoena out-of-state witnesses and that cell phone locations might be tracked. And he did not investigate at all for the penalty phase of his client’s capital murder case because he was unfamiliar with the substantive and procedural law governing the death penalty, “banked” on winning acquittal for Cheatham, and failed to familiarize himself with standard practices employed in death penalty cases, such as those described in the ABA guidelines. Finally, Hawver’s suggestion that Cheatham’s testimony was necessary during the disciplinary proceeding to prove injury is meritless because injury to the client is not an element of KRPC 1.1 or any other KRPC violations the panel found.
Hawver’s investigative failings were not based on reasonable professional judgment. The panel properly concluded that Hawver violated KRPC 1.1 in this regard.
The panel’s conclusions were not based solely on ABA guidelines
Hawver next argues the panel erred when it considered the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, asserting that “an attorney cannot be restrained by ABA guidelines and that the particular form of unlawful state interference with the conduct of a criminal defense by imposing standards threatens the fundamental liberty and Due Process rights of a defendant.” We construe this as a claim that the panel.erred by finding misconduct solely based on a failure to conform to ABA guidelines. This argument is without merit.
The guidelines do not establish mandatory standards for attorney conduct. Cheatham, 296 Kan. at 433. But Hawver’s argument is factually wrong because the panel did not conclude Hawver committed misconduct by failing to conform to the guidelines.
Instead, it considered that fact along with Hawver s- other conduct in ultimately concluding Hawver did not competently represent Cheatham. The panel’s findings that Hawver lacked the experience necessary to litigate a death penalty case; failed to devote sufficient time to overcome that deficiency and adequately prepare for the case; failed to conduct a sufficiently thorough fact investigation for either phase of Cheatham’s trial; and presented damaging arguments are amply supported by the record—most notably by Hawver’s own affidavit. The ABA guidelines were merely one touchstone with which the panel assessed the facts before it.
In the end, with or without the ABA guidelines, the panel was led by the totality of evidence to the virtually inescapable conclusion that Hawver violated KRPC 1.1.
Hawver s Fee Agreement
Hawver argues the panel erred when it
“adopted this court’s finding ‘that respondent’s flat fee arrangement, under tire facts of this case, resulted in a conflict of interest as it ‘provided a financial disincentive for respondent to actively investigate or promote Cheatham’s defense’ and respondent’s personal and business interests were contrary to Cheatham’s and tlrat conflict adversely affected respondent’s representation of Cheatham.” ”
He contends the panel assumed this finding
“without a hearing and testimony providing clear and convincing proof of the same .. . which would also include factual evidence on whether the requirements imposed by the Kansas Supreme Court in tire [Cheatham] decision would have the real and practical effect of violating the clearly established Sixth Amendment rights of indigent defendants to plead guilty and to choose a defense attorney not approved or controlled by the state
The panel’s record dispels any merit to this contention. The panel conducted a hearing and received evidence on this issue, including Hawver’s testimony. Its conclusion that Hawver violated KRPC 1.7 is supported by clear and convincing evidence.
“[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if... there is a substantial risk that the representation . . . will be materially limited ... by a personal interest of the lawyer.” KRPC 1.7(a)(2) (2013 Kan. Ct. R. Annot. 517). “[A] conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” KRPC 1.7, comment 8 (2013 Kan. Ct. R. Annot. 518). The phrase “other responsibilities or interests” in that rule includes the lawyer’s business and financial interests. See In re Davidson, 285 Kan. 798, 803, 175 P.3d 855 (2008) (KRPC 1.7 violated when lawyer from whom client sought advice on a business lease dispute obtained a financial interest in client’s business).
The record before us in Hawver’s disciplinary case similarly leads us to conclude the fee agreement created a conflict of interest in violation of KRPC 1.7. Hawver testified that he “didn’t think there was much chance if [he] lost [Cheatham’s] case that [he] was going to be paid” and that he in fact received no money for his work. He said he maintained his legal practice during his representation of Cheatham because he needed the fees to earn a living and Cheat-ham knew he was “putting in the amount of time [he] could on this thing
The combination of the flat-fee agreement, Cheatham’s inability to pay, and Hawver’s need to devote his time to fee-generating matters supports the panel’s conclusion that Hawver’s personal interests created a conflict of interest, causing him to materially limit Cheatham’s representation. Hawver had a financial disincentive under the circumstances to devote the necessary time and resources to Cheatham’s case.
Manifestations of this risk are found in the approximately 60 pretrial hours Hawver spent preparing for the case and, when coupled with his knowledge he was unlikely to be paid if Cheatham was convicted, Hawver’s admitted failure “to prepare any case in the event [the jury found Cheatham] guilty.” In short, there was clear and convincing evidence to support the panel’s conclusion Hawver violated KRPC 1.7.
Hawver s failure to answer the complaint
Hawver claims he answered the Disciplinary Administrator’s formal complaint. The record demonstrates otherwise.
In January 2013, the Disciplinary Administrator notified Hawver by letter that it had docketed a complaint against him. See Rule 209 (2013 Kan. Ct. R. Annot. 355) (complaints to be filed with Disciplinary Administrator, who must docket all complaints not determined frivolous or meritless). Hawver responded to this docketing notice by letter, dated March 2, 2013. In June 2013, the Disciplinary Administrator advised Hawver that a review committee had found probable cause to believe he violated the KRPC and a formal complaint would be filed. See Rule 210(c) (2013 Kan. Ct. R. Annot. 356) (after investigation, Disciplinary Administrator to recommend action on complaint to review committee). The Disciplinary Administrator filed that formal complaint on August 20, 2013, and advised Hawver of his obligation to file an answer. Haw-ver did not respond.
The Disciplinary Administrator then filed a supplemental complaint on October 8,2013, alleging a violation of Rule 211(b), which requires an attorney against whom a formal complaint is filed to answer the complaint within 20 days. Hawver responded to that supplemental complaint with a document titled “Second Answer to Formal Complaint and Answer to the Supplement to Formal Complaint,” in which he alleged he actually answered the original August 20 formal complaint with his earlier March 2 letter.
Hawver continues on that same claim in this court, contending the panel erred when it concluded he violated Rule 211(b) by failing to answer the formal complaint. He contends he “answered the original formal complaint in written answer dated March [2], 2013, and hand delivered to [the] Disciplinary Administrator . . . .” He further asserts punishing him for failing to answer the complaint is a pretext to retaliate against him for exercising his First Amendment rights. Hawver’s contention that he timely answered the formal complaint is without merit.
The March 2 letter does not constitute a response to the formal complaint because it was written and delivered to respond only to the notice. The formal complaint consisted of separately numbered paragraphs to which Hawver was required under our rules to address directly. The specifics in the formal complaint were not detailed prior to Hawver s March 2 letter, so it obviously could not constitute an answer to the formal complaint. The panel’s findings regarding the Rule 211(b) violation are supported by clear and convincing evidence.
Appropriate Discipline
Hawver does not advance any argument as to what discipline should be imposed. At the disciplinary hearing, he requested that he should simply be restricted from taking any more murder cases. The Disciplinary Administrator argued disbarment was appropriate because Hawver intentionally violated his duties in the Cheatham case and had previously entered into a diversion agreement for another prior violation of KRPC 1.1 (competence) during the time he was representing Cheatham.
The panel unanimously found Hawver intentionally violated duties owed to his client and to the legal system. It also found Haw-ver’s conduct “caused actual injuiy to the administration of justice” because it necessitated Cheatham’s retrial. And it was unanimous in its determination that several aggravating and mitigating factors existed.
The panel determined the aggravating factors were: (1) Hawver entered a diversion agreement for a prior disciplinary offense (a violation of KRPC 1.1 for which Hawver entered a diversion agreement); (2) Hawver engaged in a pattern of misconduct because he engaged in misconduct throughout his representation of Cheat-ham; (3) Hawver engaged in multiple offenses; and (4) at tire time of misconduct, Hawver had substantial experience in the practice of law. The mitigating factors the panel found were: (1) Hawver’s conduct was not motivated by dishonesty or selfishness; and (2) Hawver acknowledging his misconduct. In his brief, Hawver does not challenge the panel’s aggravating and mitigating findings.
In addition to the injury to the legal system found by the panel, it is important to note Hawver’s misconduct actually injured Cheat-ham, who was “improperly advised by [an] unqualified lawyer[ ]” resulting in a deprivation of Cheatham’s constitutional right to assistance of counsel. See In re Phillips, 226 Ariz. 112, 114-15, 118, 244 P.3d 549 (2010) (supervising attorney, among other things, allowed employee attorneys, and nonattorneys, not familiar with practice areas at issue to “close” retainer agreements with clients and advise clients on prospects of success). Moreover, Hawver’s inadequate performance—particularly as to the penalty phase of Cheatham’s trial—might have caused or contributed to the jury sentencing Cheatham to death.
In deciding that disbarment is the appropriate sanction under the circumstances, this court is mindful that one panel' member recommended indefinite suspension, while the remaining two recommended disbarment. We also recognize there may be some tension in reconciling the panel’s conflict of interest findings with its determination of a lack of selfishness as a mitigating factor.
But in this court’s view the essentially uncontroverted findings and conclusions regarding Hawver’s previous disciplinary history, his refusal to accept publicly financed resources to aid in his client’s defense, and his inexplicable incompetence in handling Cheat-ham’s case in the guilt and penalty phases of the trial are more than sufficient to require disbarment. See ABA Standard 4.51 (disbarment generally appropriate when a lawyer’s course of conduct demonstrates “the lawyer does not understand the most fundamental legal doctrines or procedures, and the lawyer’s conduct causes injury or potential injury to a client”). We hold that disbarment is the appropriate discipline.
Conclusion
It Is Therefore Ordered that Ira Dennis Hawver be disbarred in accordance with Supreme Court Rule 203(a)(1) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Luckert, J., not participating.
Hill, J., assigned.
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The opinion of the court was delivered by
Per Curiam,:
Defendant Reginald Dexter Carr, Jr., and his brother, Jonathan D. Carr, were jointly charged, convicted, and sentenced for crimes committed in a series of three incidents in December 2000 in Wichita. This is R. Carr’s direct appeal from his 50 convictions and 4 death sentences.
In the first incident on December 7 and 8, Andrew Schreiber was the victim. The State charged R. Carr and J. Carr with one count of kidnapping, one count of aggravated robbery, one count of aggravated batteiy, and one count of criminal damage to property. The juiy convicted R. Carr on all counts and acquitted J. Carr on all counts.
In the second incident on December 11, Linda Ann Walenta was the victim. The State charged R. Carr and J. Carr with one count of first-degree felony murder. The jury convicted both men.
In the third incident on December 14 and 15, Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims of an invasion at the men’s Birchwood Drive home that led to sex crimes, kidnappings, robberies, and, eventually, murder and attempted murder. The State charged R. Carr and J. Carr with eight alternative counts of capital murder, four based on a related sex crime under K.S.A. 21-3439(a)(4) and four based on multiple first-degree premeditated murders under K.S.A. 21-3439(a)(6); one count of attempted first-degree murder; five counts of aggravated kidnapping; nine counts of aggravated robbery, eight of which were alternatives, four based on use of a dangerous weapon and four based on infliction of bodily harm; one count of aggravated burglaiy; 13 counts of rape, eight of which were based on coerced victim-on-victim sexual intercourse and one of which was based on a victim’s coerced self-penetration; three counts of aggravated criminal sodomy, two of which were based on coerced victim-on-victim oral sex; seven counts of attempted rape, six of which were based on coerced victim-on-victim overt acts toward the perpetration of sexual intercourse; one count of burglary; and one count of theft. The State also charged R. Carr and J. Carr with one count of cruelty to animals because of the killing of Holly G.’s dog. The jury convicted R. Carr and J. Carr on all of the charges arising out of the Birch-wood incident.
In connection with the three incidents, the State also charged R. Carr alone with three counts of unlawful possession of a firearm. The jury convicted him on these three counts as well.
In the separate capital penalty proceeding that followed, R. Carr and J. Carr were sentenced to death for each of the four capital murders committed on December 15. They each received a hard 20 life sentence for the Walenta felony murder. J. Carr received a controlling total of 492 months’ imprisonment consecutive to the hard 20 life sentence, and R. Carr received a controlling total of 570 months’ imprisonment consecutive to the hard 20 life sentence for the remaining nondeath-eligible crimes.
In his briefs, R. Carr raises 21 issues tied to the guilt phase of his prosecution and 19 issues tied to the death penalty phase of his prosecution. In addition, because this is a death penalty case, this court is empowered to notice and discuss unassigned potential errors under K.S.A. 2013 Supp. 21-6619(b), which we do. R. Carr does not challenge the sentences he received for the Schreiber crimes; for the Walenta felony murder; for the crimes in which Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims that were not eligible for the death penalty; or for the cruelty to animals conviction.
Both sides sought many extensions of time to file briefs in this appeal and in J. Carr’s separate appeal. In R. Carr’s case, all of these extension requests were unopposed by the other side of the case. After completion of briefing, this court heard oral argument on December 17, 2013.
After searching review of the record, careful examination of the parties’ arguments, extensive independent legal research, and lengthy deliberations, we affirm 32 of R. Carr’s 50 convictions, including those for one count of capital murder of Heather M., Aaron S., Brad H., and Jason B. under K.S.A. 21-3439(a)(6); for the felony murder of Walenta; and for all of the crimes against Schreiber. We reverse the three remaining convictions for capital murder because of charging and multiplicity errors. We also reverse his convictions on Counts 25, 26, 29 through 40, and 42 for coerced sex acts for similar reasons. We affirm the convictions based on Counts 2, 9 through 24, 27, 28, 41, and 43 through 58.
We vacate R. Carr’s death sentence for the remaining capital murder conviction, because the district judge refused to sever the defendants’ penalty phase trials. We remand to the district court for further proceedings.
Factual and Procedural Background for Guilt Phase Issues
Resolution of R. Carr’s claims on this appeal demands a comprehensive review of the disturbing facts underlying his convictions and sentences. It also requires discussion of the actions now attributed to J. Carr, as the defendants’ cases were joined at the hip until appeal and their challenges to their convictions and death sentences are necessarily intertwined.
The Schreiber Incident and Investigation
The first incident began when Schreiber went to a convenience store at 21st and Woodlawn at 10:45 p.m. on December 7, 2000. He parked his 1998 Ford Expedition on the side of the building and went inside to make a purchase. Just after he returned to his car and sat down in the driver’s seat, a man holding a small, black, semi-automatic handgun palm down approached and placed the gun’s barrel against the glass of tire window in tire driver’s door. The man ordered Schreiber to move over to the front passenger seat.
As Schreiber followed the order and the man climbed into the driver’s seat, the man hit Schreiber in the back of the head with the gun and told him to hurry up. Once both were situated, the man backed the Expedition out of the parking lot and drove away. As he was driving, he asked Schreiber if he had any money. Schrei-ber said yes and handed over his wallet.
The man pulled into a nearby alley, and a second man came up to the front passenger window and pointed another gun at Schrei-ber. The driver ordered Schreiber to let the other man into the front passenger seat and then get into a middle seat behind the front seat of the Expedition. As the second man got into the car, he hit Schreiber in the head with his gun and told Schreiber not to look at him.
The two men asked Schreiber if he had an ATM card, remarking that someone who drove a car like tire Expedition must have money. When Schreiber said he had an ATM card, the driver gave Schreiber his wallet and had him get his ATM card out. Schreiber then handed the wallet back to tire driver.
The driver went to a nearby ATM, pulling up beside it so that Schreiber could access the machine through the rear passenger window. Schreiber told the men that he could withdraw only $300 at a time. They instructed him to withdraw $300, and, as the machine dispensed the money, the men told Schreiber to hand it over his shoulder without looking at them, which he did. The passenger grabbed the money. The two men tiren told Schreiber to hand them the receipt, which he did in the same way. When the passenger determined from tire receipt that Schreiber still had money, he said they were not done yet.
The driver went to a second ATM, where Schreiber again withdrew the maximum of $300. Again, the men asked for the receipt, and, after determining that Schreiber still had money in his account, they again said they were not done.
At a third ATM, Schreiber tried to withdraw $300, but there were insufficient funds to cover that amount. The men told Schrei- ber to try to get $200, and the transaction processed successfully. Schreiber handed the passenger the money and the receipt in the same way that he did at the first and second ATMs. When the passenger looked at the third receipt, he said they were going to leave Schreiber with 8 dollars and some change, which the two men appeared to find funny.
During the entire time the two men took Schreiber from ATM to ATM, the second man held a gun to Schreiber’s head. Schreiber described the passenger’s gun as a dark semi-automatic handgun. During the episode, including a stretch of driving when the Expedition moved north of the convenience store and then west on Kansas Highway 96, the men demanded that Schreiber remove any jewelry and give it to them. Schreiber handed over a silver Guess watch with a blue face. While he was removing the watch, he turned his head and was again hit on the head and told not to look at the two men.
The men also discussed what they were going to do with Schrei-ber, including tire possibility of dropping him off on a dirt road. After driving on several dirt roads bordered by open fields, however, the men determined that the locations were not remote enough for their purposes. The men also discussed the Expedition, the driver commenting on how much he liked it and wanted one. The passenger said at one point that he planned to take Schreiber’s pants and shoes when they dropped him off, because it was so cold outside. The passenger appeared to be amused by his own remark.
Eventually, the men took Schreiber back into town and stopped at a car wash near Windsor at Woodgate Apartments on East 21st Street. There, after two switches between the positions of the passenger and Schreiber, they told Schreiber to lie face down on the floor in front of the middle seat. They also discussed dropping the second man off at their car.
After leaving the car wash, the driver stopped the Expedition again and the passenger got out of the car. As he left, he reminded the driver to be sure to wipe down the Expedition. The driver told the passenger to follow him. Schreiber heard another vehicle. Both cars were driven for several more minutes and then stopped. The driver told the other man that they had not arrived at tire right spot and that the second man should continue to follow.
The two cars were driven for another 5 to. 10 minutes before they were stopped again. Schreiber could tell that this time the cars had left the paved road. Schreiber heard the driver turn off the ignition and then wipe the surfaces in the Expedition.
The driver then got out of the Expedition and had a discussion with the second man about whether they were going to leave Schreiber’s keys behind. The second man then told Schreiber that the two men were going to put the keys in the street. The driver asked Schreiber if he had a spare tire and Schreiber said that he did. The driver said he was going to slash the tires. Schreiber then heard someone fire three shots.
The driver instructed Schreiber to wait 20 minutes before leaving the scene. Schreiber heard the men get into the other car and drive away. As they did so, he peeked out of a window of the Expedition and saw die receding square taillights of the other car.
Schreiber found his keys. One of the Expedition’s tires had three holes in it, but he was able to maneuver the car back onto the paved road near 43rd Street and Webb Road and drive home, where he called 911.
When law enforcement responded to Schreiber’s call, he told police that the driver who accosted him was a black male in his 20s, approximately 5 feet 9 inches or 5 feet 10 inches tall and with a medium build. Schreiber said the driver was wearing a beanie or stocking cap of some type, blue jeans, and a long-sleeved dark t-shirt or sweatshirt. The driver had some facial hair but not a full mustache or a full beard. Schreiber described the second man as a black male who was taller than the driver, and who was wearing a winter jacket or parka.
The Walenta Incident and Investigation
The second incident, at about 9:40 p.m. on December 11, 2000, took place in the driveway of Walenta’s home on Dublin Court in east Wichita.
Walenta, who was a cellist with the Wichita Symphony, was arriving home from practice in her 2000 GMC Yukon. As she turned into one of the side streets near her home, she noticed a newer, light-colored, four-door Honda-type vehicle turn behind her.
The car continued to follow Walenta’s Yukon as she turned into her street, a dead end with a cul-de-sac. As Walenta approached her house, she noticed that the car had stopped in front of the residence directly south of hers. And, when she pulled into her driveway, she saw a black male get out of the front passenger side of the car and begin walking toward the driver’s side of her Yukon.
As tire man approached, he said he needed help. Walenta rolled her window down a few inches, and the man immediately pointed a handgun through the window, palm down and at her head. Wal-enta tried to start her Yukon, which ground the starter gear because the car was already running. The man then told Walenta not to move the Yukon, but Walenta shifted into reverse. When she did, the man shot her.
The gunman began to run away, and, as he did, the other car appeared to be leaving. Walenta was not sure whether tire gunman may have been left behind by whoever was driving the car that had followed her.
After Walenta had been shot, her across-the-street neighbor, Anna Kelley, heard a car horn honking. When Kelley looked outside, she realized that the honking was coming from Walenta’s Yukon, and that the Yukon’s lights were flashing. When Kelley opened her front door, Walenta began calling to her for help. Kelley’s husband called police as Kelley ran to Walenta’s car. The Yukon was still running; its driver’s window had shattered; and Walenta was slumped backward in tire driver’s seat.
While waiting for police to arrive, Walenta told Kelley she had been shot by a black man with wiry hair. She also said that a light-colored car had followed her into her street.
Once transported to the hospital, Walenta provided somewhat more detailed descriptions of the gunman, although they varied in certain respects from one another. She described the gunman as a black male in his 30s with a medium build. She said his hair was long, straight, and wiry, and described it as shoulder-length with corkscrews. At different points, she estimated his height at between 5 feet 7 inches and 6 feet; as between 5 feet 9 inches and more than 6 feet; and as approximately 6 feet. The only description she was able to give of the gunman’s clothing was that he might have been wearing a beige trench coat.
Walenta suffered three gunshot wounds, and one of the bullets severed her spinal cord, rendering her paraplegic. But she began recovering during her stay in the hospital and was scheduled to be transferred to a rehabilitation facility on January 2, 2001. That day, however, Walenta suffered a pulmonary embolus—a complication of her paralysis—and died.
The Quadruple Homicide and Crimes Leading to It
The third incident began on December 14, 2000, at a home shared by Aaron S., Brad H., and Jason B. at 12727 Birchwood, tire middle unit of a triplex at the intersection of 127th and Birch-wood.
Holly G., who was the girlfriend of Jason B., was with Jason B. at the home. Holly G. had her dog with her as well. Aaron S. and his friend, Heather M., also were at the home, as was Brad H.
As Holly G. and Jason B. began getting ready for bed at about 10:30 p.m., Holly G. pulled her hair back and fastened it with a plastic clip. Jason B. turned off the front porch light, made sure the front door was locked, and then came to bed. Holly G.’s dog was in Jason B.’s bedroom with Holly G. and Jason B.
A few minutes later, the porch light came on again. Holly G. heard Aaron S. talking to someone whose voice she did not recognize. Then Jason B.’s bedroom door burst open, and a tall black man with a gun came through the doorway. Jason B. screamed as the gunman yanked the covers off of the bed. A second black man, holding onto Aaron S. by the shirt, came into the room and pushed Aaron S. onto the bed with Holly G. and Jason B. The man also was armed.
The two intruders asked if anyone else was in the house and were told Brad H. was downstairs. One of the intruders went downstairs to get Brad H. while the other stayed in the bedroom. The intruder who stayed upstairs kept demanding to know if there was anyone else in the house, saying, “[D]on’t lie, don’t he.” Aaron S. eventually told him that Heather M. was in the other upstairs bed room. When the intruder who had gone downstairs returned to the bedroom with Brad H., he was carrying a golf club, and he ordered Brad H. onto the floor at the foot of the bed. One of the intruders retrieved Heather M. from the other bedroom and told her to get on the floor in Jason B.’s bedroom as well.
The intruders demanded to know where the phones in the house were and whether there was a safe. One of them was shouting, “Where’s the safe? A house this fucking nice[,] there’s got to be a safe!” One looked around the house while the other stood guard over the five friends. At one point, the intruders also said that someone needed to “shut . . . up” Holly G.’s dog or they would shoot it. Eventually the dog was muzzled.
The intruders also demanded to know who among Heather M., Aaron S., Brad H., Jason B., and Holly G. had money. When none had any cash, the intruders asked who had ATM cards. Each raised his or her hand, and the intruders asked each how much money he or she had in the bank. After obtaining this information, the intruders had a whispered discussion. They then ordered the five victims to remove their clothes. The intruders then pulled all of the clothes out of the closet in Jason B.’s bedroom, ordered the five into the closet, and told them to sit down. They were threatened not to speak to each other.
The intruders then conversed about wanting to watch two women engage in sex acts and ordered Holly G. and Heather M. to go to the bar area outside of Jason B.’s bedroom. They told the women to “suck that pussy.” Holly G. and Heather M. complied; Holly G. performed oral sex on Heather M., and then Heather M. performed oral sex on Holly G. The intruders also demanded that tire two women use their fingers to penetrate each other’s vaginas; again, the women complied. During these acts, both intruders watched and made further demands, telling the women again to “suck that pussy” and “do it deeper.” When Heather M. was performing oral sex on Holly G., one of the intruders hit Holly G.’s knee so that he could get a better view of what was happening.
Next, the intruders brought each of the three male victims out to the bar area one at a time and ordered each to have sexual intercourse with Holly G. Although one of the intruders had thrown a shirt or other piece of clothing over Holly G.’s face, she remained able to see her feet and distinguish between the three male victims during these acts. The first was Brad H.; the second, Jason B.; die third, Aaron S. At some point during these acts, Heather was moved from beside Holly G. to the closet.
Neither Brad H. nor Jason B. was able to achieve an erection, but penetration of Holly G. nevertheless occurred. The intruders made comments about “popping” someone’s “ass,” if the absence of an erection prevented fulfillment of their demands. Aaron S. initially defied the intruders, saying, “[N]o, I don’t want to do this.” One of the intruders then became angry and hit Aaron S. in the back of the head with something hard, causing him to ciy out in pain. Aaron S. then attempted to comply by having intercourse with G.
After these acts, the intruders ordered Holly G. back into the closet in Jason B.’s bedroom and brought Heather M. from the closet out to the bar area. They then commanded Aaron S., Jason B., and Brad H., in that order, to have sexual intercourse with Heather M.
During these events, the intruders threatened to shoot if one of the men did not achieve an erection. Holly G. heard one of them say words to the effect of: “[I]t’s 11:53, it’s 11:54, somebody better get their dick hard, get a hard on.” Holly G. heard Heather M. moaning in pain when each of the three men was outside of the closet. When Aaron S. was in the bar area with Heather M., Holly G. heard Aaron S. say again that he did not want to do what he was being ordered to do.
By this time, about midnight, Holly G. had seen enough of the two intruders that she was able to differentiate between them. The one she referred to as the first was a taller, thinner, black male who was wearing an orange and black sweater with the word “FUBU” on it, black jeans, a leather coat, and some kind of boots. The intruder Holly G. referred to as the second was stockier than the other and was wearing a black leather coat.
After the coerced victim-on-victim sex acts, the stockier of the two intruders took Brad H. to a series of ATMs. Before they could leave, there was a problem finding car keys, which caused the in truders to say that someone had better find his or her “fucking keys” or someone would be shot.
While Brad H. was gone with the stockier intruder, the taller, thinner intruder ordered Holly G. out of the closet. He ordered her to get on all fours and get herself “wet.” To comply, Holly G. placed her finger in her vagina. The intruder then vaginally raped her from behind. During the rape, Holly G. was able to see that the intruder had laid a small, silver handgun on the floor. The gun was 4 inches to 5 inches long and was not a revolver. The other gun Holly G. had seen that night was black.
When the taller, thinner intruder returned Holly G. to the closet, he ordered Heather M. out of it and raped or attempted to rape her. From inside the closet, Holly G., Jason B., and Aaron S. could hear Heather M. moaning. Aaron. S., in particular, was crying and saying, “[T]his shouldn’t happen this way.” Heather M. was never put back into the closet.
Brad H. and the stockier intruder were away from the home about 30 minutes. The stockier intruder then took Jason B. to two ATMs. Jason B. and the intruder were gone about 20 minutes.
There followed a discussion about which of the remaining victims would leave next with the stockier intruder. Holly G. said she would go. She got out of the closet, put on a white sweatshirt, and took her ATM card out of her purse. The stockier intruder took her through the front door to the outside and told her to get into the driver’s side of Jason B.’s silver Dodge Dakota pickup truck. The intruder sat slouched back in the comer of the passenger seat with what Holly G. believed to be a gun in his hand.
At the Commerce Bank ATM to which Holly G. drove at the stockier intruder’s direction, Holly G. withdrew $350, the maximum amount allowed in one withdrawal. She then unsuccessfully attempted a $200 withdrawal and then successfully made a $150 withdrawal. This exhausted her available money. When she leaned out of the truck to take the cash out of the machine, the stockier intruder groped her vagina with his gloved hand.
At one point during this trip, Holly G. asked the stockier intruder if he was going to shoot her and the other victims. He said no. She then asked him if he promised not to shoot them, and he said, “Yeah, I’m not going to shoot you.”
Also during the trip to the ATM, the stockier intruder asked Holly G. if the other intruder had had intercourse with her. When Holly G. said that he had, the stockier intruder wanted to know if she had enjoyed it. To appease him, Holly G. said yes. She had seen what she believed to be a gun in his lap: The stockier intruder also asked if she had ever had sex with a black person and if it was better with the taller, thinner intruder than with her boyfriend.
When Holly G. and the stockier intruder were walking back into the house, he told her it was too bad they had not met under other circumstances because she was kind of cute and they could have dated. She replied, “[Kjind of, yeah.” He then asked, “[Wjhat does that mean?” Holly G. responded that she wasn’t really having a good time.
When Holly G. returned to the closet, she told Aaron S., Brad H., and Jason B.: “I think we’re all going to be okay. I asked him, he said he’s not going to shoot us.”
Aaron S. was the next to leave the home with the stockier intruder. Holly G. thought Aaron S. put on pants and a shirt before they left.
While Aaron S. was gone, the taller, thinner intruder opened the closet door and offered the remaining victims a glass of whiskey, which they refused. Holly G. then heard someone handling a popcorn tin and a change jar. She heard the taller, thinner intruder ask Heather M., who was outside of tire closet at the time: “[W]hose is this?” Heather M. said she did not know, but it was probably Holly G.’s. He then asked which of the male victims was Holly G.’s boyfriend, and Heather M. said Jason B. The taller, thinner intruder then opened the closet door and asked for Jason B. When Jason B. identified himself, the intruder asked him if the item that had been found was the only one of its kind. Jason B. said yes. The item was an engagement ring Jason B. had purchased for but not yet given to Holly G.
When Aaron S. returned, the stockier intruder told Holly G. to leave the closet and pushed her into the dining room by jabbing her in the back with something she assumed was a gun. He said,
“Don't worry[.] I’m not going to shoot you yet.” The stockier intruder then made Holly G. get down onto all fours and vaginally raped her from behind. He then grabbed her, turned her around, ejaculated into her mouth, and ordered her to swallow. Holly G. was able to see the stockier intruder s face at this point.
Holly G. went to the bathroom, but, when she opened the bathroom door, she saw the taller, thinner intruder raping Heather M. from behind. Heather M. was on all fours, and the taller intruder was on his knees. The bathroom light was on, and the second intruder was only 2 feet to 3 feet in front of Holly G.; so she was able to see his face. The taller intruder shut the door, telling Holly G. he was not finished yet.
Holly G. waited outside the bathroom door for a few minutes and then opened it again. The taller intruder then directed Holly G. to get down on all fours. She complied and he again vaginally raped her from behind. After he stopped, Holly G. heard what sounded like a condom being removed, and then the toilet was flushed.
Holly G. was then directed back to the bar area, where Heather M. was already sitting. The three male victims remained in the closet in Jason B.’s bedroom. The women were cold and Holly G. put on a sweater. The two intruders were talking to each other, and then the stockier one went downstairs. When he came back upstairs, Holly G. heard him say something about a big screen television. Brad H. had a big screen television in his downstairs bedroom.
Holly G. also was able to get a better look at the stockier intruder at that time. She saw his face and noted that his hair was close to his head and not sticking out like the thinner intruder’s hair.
At some point, the intruders used cleaning solution to wipe various surfaces and things in the house. When they had finished this task, all five victims were taken to the garage. Holly G. and Heather M. were wearing nothing but sweaters. Aaron S. was still wearing pants and a shirt. Brad H. and Jason B. were naked.
Holly G. and Heather M. were directed to get into the trunk of a beige Honda Civic belonging to Aaron S. The intruders then tried to get all three of the men into the trunk, but they could not fit. Holly G. and Headier M. were then put into the back seat of the Honda, and the men were put into the trunk. Holly G. was then directed to get into the passenger side of Jason B.’s truck. After some discussion between die intruders, as the stockier intruder was taking Holly G. to the truck, the taller, thinner intruder said, “If she gives you any trouble ... let me know and well take care of that.”
The taller, thinner intruder drove away from die Birchwood home first in the Civic, followed by the stockier intruder driving the truck. As she rode with the stockier intruder, Holly G. asked him where they were going. He said they were going somewhere to drop the five victims off—away from their cars and the home. Again, Holly G. was able to see the stockier intruder s face; at this point, he was making no effort to keep her from, looking at him. Holly G. noted that the clock in the truck showed it was 2:07 a.m.
The Honda and the truck were driven to a soccer field at 29th Street and Greenwich Road, and the intruders got out. Holly G. was ordered to get into the drivers seat of the Civic. The two intruders talked to each other for a couple of minutes, and then the male victims were brought out of the trunk and made to kneel in front of the Civic.
At this point, Holly G. turned to Heather M. and said, “Oh my God, they’re going to shoot us.” She and Heather M. were then directed to get out of the car. Holly G. knelt by Jason B., and Heather M. knelt by Aaron S.
Holly G. saw that the two intruders were standing fairly close together. She then heard a shot, and everyone started screaming. Aaron S. was pleading, “Please, no” and used the word, “sir.” Holly G. heard three more shots.
Holly G. then felt an impact on the back of her head and everything went gray. She remained kneeling, but then she was lacked over and fell forward. She heard talking, heard one of the truck’s doors shut, heard its engine start, and then felt another impact. She thought she had been run over. She heard the truck drive away after pausing for a moment, and she waited until she could no longer hear it before she looked to see if the intruders and the truck were gone. She saw the truck go south on Greenwich Road and, when its lights disappeared, she got up and began checking to see if any of the four other victims was still alive.
Holly G. looked at Jason B. first. She rolled him over and saw blood coming from one of his eyes. She took her sweater off and tied it around Jason B.’s head to try to stop tire bleeding. After looking at the others, Holly G. decided she needed to get help. Looking for the nearest safe place, she spotted a house with white Christmas lights in the distance. Now naked and barefoot, Holly G. ran more than a mile through snow, crossing several fences, some with barbed wire, to get to that house.
It was approximately 2:15 a.m. on December 15, when Steve Johnson and his wife heard someone pounding loudly on their front door and ringing their doorbell. Johnson looked outside and saw a naked woman at his door. He opened the door and the woman, Holly G., told him that she and four friends had been abducted, taken to a nearby field, and shot. Holly G. had blood on her back, and her hair was matted as a result of some type of wound. The Johnsons let Holly G. inside, gave her blankets, and called 911.
Investigation Leading to R. Carr’s Arrest and Discovery of Evidence
Sedgwick County Emergency Communications dispatch received the Johnsons’ call at 2:37 a.m. Johnson tried to convey everything Holly G. was telling him to the 911 operator, but he ultimately handed the phone to Holly G. because she was giving him information too fast for him to pass it on. Holly G. was afraid she was not going to survive and wanted the police to know everything that she knew about the Birchwood crimes.
Holly G. told the 911 operator that two black men broke into the Birchwood home at 11 p.m. She said the two intruders put her and her four friends in a closet, took turns raping her and the other woman who was at the house, and took them one-by-one to ATMs to make them withdraw money from their bank accounts. She said the two men then took two of their vehicles, a silver Dodge Dakota pickup truck and a beige Honda Civic, and drove them to a field on Greenwich Road past 37th Street. There, tire two men made them get on their knees and then shot all five of them in the back of the head. The two intruders then drove away in the truck.
Holly G. also gave a description of her attackers to the dispatcher. She said one of the men was tall and skinny, about 6 feet tall, had hair like “Buckwheat,” and was wearing an orange and black sweater and black “jean-type” pants. The other had a heavier build, was also about 6 feet tall, and was wearing a black leather coat.
While Holly G. was being treated in a local hospital emergency room, officers obtained additional information from her. She said the intruder with the orange and black sweater was in his early 20s; was about 6 feet tall and weighed 175 pounds; had a bushy afro that stuck out about 2 inches; and was wearing black leather gloves and blue jeans. The other intruder was in his early 20s; was about 6 feet tall and weighed 190 to 200 pounds; and was wearing a black leather coat, black leather gloves, blue jeans, and boots. She said both men were carrying small semi-automatic handguns.
Holly G. had suffered a gunshot wound to the back of her head. The impact fractured her skull; but the bullet did not penetrate into her brain, apparently because it had been deflected by the plastic hair clip she was wearing. Holly G. also had other injuries, including bruises to her face and frostbite to her feet.
While Holly G. was transported and treated at the hospital, law enforcement found Aaron S/s Honda Civic and the bodies of the four other victims lying in a road at the snow-covered soccer field where they had been shot. Sheriffs Deputy Matthew Lynch was first on the scene. He detected no pulse in Heather M. Aaron S. appeared to be attempting to breathe, as did Brad H. Jason B. did not appear to be breathing and had no pulse. Lynch advised dispatch that there were four “code blue” victims, meaning each was at least in cardiac arrest. EMS arrived on the scene at 2:54 a.m.
Officers collected spent cartridge casings, a bullet fragment, an ATM receipt reflecting a withdrawal on December 15 at 1:17 a.m., and pieces of Holly G.’s plastic hair clip at the soccer field.
Meanwhile, Wichita Police Officer Michael Dean was dispatched to the Birchwood home. He arrived at approximately 3 a.m. About that same time, Sergeant John Hoofer also was dis patched to the home. On his way there, Hoofer saw a Dodge Dakota pickup passing him in the opposite direction at about 127th Street. Because the vehicle matched a description that had been put out over the police radio, he turned around to pursue it. In the process, he lost track of it.
Hoofer arrived at the Birchwood home at 3:19 a.m., and he and Dean went inside. The home appeared to have been ransacked. In the bedrooms, dresser drawers had been pulled out; clothes were strewn all over; and the beds had been stripped of their linens. In the living room, an entertainment center had an open space where a television would have been, and a coaxial cable had been pulled through the open space and was lying on the floor. Downstairs, there was a computer desk with no computer. In what law enforcement would later learn was Jason B.’s bedroom, there was a large pool of blood on the corner of the mattress and what appeared to be a bullet hole. On the floor below that part of the mattress was a dead dog. The two officers then went back outside and secured the home as a crime scene.
A short while later, Dean was standing by his patrol vehicle when he saw an older white Plymouth come down 127th Street and drive by the Birchwood residence. He thought this was unusual, because it was 4 a.m. in a secluded residential area where there had been very little traffic, and the streets were snow-packed, making driving conditions hazardous. It was just a few minutes later when Dean saw the same vehicle coming down Birchwood. As the car drove past, Dean saw that the 'driver was a black male wearing a stocking cap. The driver stared straight ahead as the car passed, never acknowledging the officer or looking at what was now an obvious crime scene surrounded by police tape. Dean thought this was highly unusual and noted the car’s Ford County license plate number. He watched as the vehicle turned onto 127th Street and headed back in the direction from which it had come the first time he saw it. He notified Hoofer that he needed to stop the vehicle and identify the driver.
At 4:13 a.m., Hoofer stopped the white Plymouth, a 1988 model, as it was driving away from the area of the Birchwood residence on 127th Street. He noticed a black leather coat on the back seat. The driver was R. Carr. He showed Hoofer a piece of paper identifying him and listing a Dodge City address. R. Carr told Hoofer he was driving to the apartment of his girlfriend, Stefanie Donley. From R. Cards description, Hoofer recognized the apartment’s location as the 5400 block of East 21st Street, the address of—the Windsor at Woodgate complex. At some point after R. Carr identified himself, the encounter with Hoofer ended; and R. Carr drove away.
At about 4:30 a.m., R. Carr arrived at Donley’s apartment. He stayed approximately 15 minutes and left again, returning about 45 minutes later.
About the same time R. Carr returned to the apartment complex, Christian Taylor, another resident of Windsor at Woodgate, was watching the local news as he got ready for work. He saw a report on a quadruple homicide during the previous night and noted that police were looking for a gray or silver Dodge Dakota pickup truck. As Taylor left his apartment to go to his car about 6:25 a.m., he saw a Dodge Dakota pickup truck fitting the description parked on the other side of an empty spot next to his car. The truck was backed in so that its tailgate was facing a fence; the tailgate was down. A large TV was in the bed of the truck. He then saw a black man, later identified as R. Carr, appear from behind the truck. Taylor described the man as in his 20s or 30s, with a few days’ growth of facial hair, wearing blue jeans and a black or brown leather jacket, and with a scarf or hood covering his head.
Thinking tire truck and the man he saw might have something to do with the quadruple homicide, Taylor got into his car, drove out of the parking lot, and headed to the nearest police station to report what he had seen.
Meanwhile, sometime after 6 a.m., Riwa Obel Nsangalufu, another resident of the Windsor at Woodgate complex, left his apartment to start his car and let it warm up. As he walked, he saw a man, later identified as R. Carr, trying to drag a large television on a blanket toward Building 8. Obel noticed a silver Dodge Dakota that was backed up against the fence with its tailgate down. R. Carr asked Obel to help, explaining he was moving in. After several requests, Obel agreed.
Obel helped R. Carr get the television up a set of stairs to Apartment 819. At that point, R. Carr told Obel that he could get the television inside by himself. R. Carr offered Obel a tip for helping him and displayed some folded bills. Obel refused the money.
R. Carr then knocked on the door of Apartment 819 and Donley came out. She asked R. Carr where he had been all night and said she had been waiting for him.
R. Carr told Donley that his sister had made him take his things out of her garage. He then began bringing various items into her apartment. He also had about $900 in cash that he took out of his pocket. R. Carr, according to Donley, was trying to reach J. Carr, and finally talked to him on the telephone at 5:30 a.m. to 5:45 a.m. R. Carr told Donley that J. Carr was seeing a married woman, that the woman’s husband came home, that there was a shootout, and that J. Carr had run off.
A short while later, R. Carr took a shower, and Donley noticed that he removed a pair of red shorts he had been wearing under his pants the previous evening.
An officer investigating Taylor’s report located tire Dodge Dakota at the apartment complex parking lot and confirmed it had belonged to Jason B. The tailgate of the truck was down, and there were footprints and drag marks in the snow that led to a multicolored comforter on a sidewalk. On the other side of the fence behind the truck, the officer saw clothing that appeared to have been thrown over the fence. There was also a blue-and-white-striped comforter in a trash dumpster next to the pickup truck. Law enforcement later confirmed that the bedding and clothing belonged to residents of 12727 Birchwood.
At about the time that the officer was observing the comforter in tire dumpster, Obel was leaving the apartment complex to go to work. The officer stopped Obel, and Obel told die officer about helping a man move a large TV from the truck to an apartment in Building 8. Obel showed the officer Apartment 819.
Officer Jamie Crouch was among the law enforcement agents who responded to the Windsor at Woodgate apartments and he stationed himself outside the balcony of Apartment 819. He heard other officers knock on the apartment’s door and announce their identity as police. A few seconds later, the apartment’s sliding glass door onto the balcony opened. R. Carr emerged from the apartment; and he placed his hands on a balcony railing as if he were going to jump from the balcony to the ground.
When the officers knocking on the door entered the apartment, Officer Renay Bryand observed R. Carr coming back into the apartment from the balcony. R. Carr was arrested. On his person, officers found a gas card bearing Jason B.’s name; a watch that belonged to Heather M.; and $996, including 49 $20 bills.
Inside Apartment 819, officers also found numerous items belonging to die residents of 12727 Birchwood. These items included Brad H.’s large television, Jason B.’s checkbook, a garment bag with an identification tag for Aaron S., computer equipment belonging to Aaron S., tools, electronic equipment, clothing and jewelry, and several travel bags. The officers also found a credit card belonging to Holly G. They also found Brad H.’s wallet and Schreiber’s Guess watch in a bedroom, under letters addressed to R. Carr. Shorts and t-shirts belonging to R. Carr were recovered from a bathroom and a sofa in the apartment. The officer also found a stocking cap, dark leather gloves, and a dark leather coat. Inside the pocket of the leather coat were two Intrust Bank receipts from 12:06 that morning. The receipts showed balance inquiries made on checking and savings accounts belonging to Brad H.
Inside the Dakota pickup truck, officers found an ATM card bearing Jason B.’s name and a wallet containing his driver’s license. They also found two Commerce Bank ATM receipts showing withdrawals that morning. One receipt showed a withdrawal of $200 at 12:31 a.m. from Jason B.’s bank account, and the other showed withdrawals of $350 and $150 at 12:53 a.m. from Holly G.’s bank account.
J. Carr’s Movements and Arrest and Discovery of Evidence
While police were following up on Holly G.’s appearance at the Johnsons’ door, J. Carr had called his friend, Tronda Adams, at 3:31 a.m. and said he missed a 2:30 a.m. train he had intended to take to Cleveland, Ohio. Adams granted J. Carr permission to spend the night at the home she shared with her mother, and he arrived there at approximately 3:45 a.m. He had driven Donley s Toyota Camry and was still wearing a brown leather jacket, an orange and black FUBU sweater, black pants, and brown or black boots—the same clothes he had been wearing the previous evening when he said goodbye to Adams at 9:30 p.m. and left her home with his brother, R. Carr.
J. Carr asked Adams if she had a $20 bill for singles, and she observed that he had more than $500 in his pocket. Adams had never seen J. Carr with that amount of cash in the past. When she asked him where he had gotten the money, J. Carr said he had gone to the bank and withdrawn all of his funds before he was to leave town. Adams thought this was strange because J. Carr was unemployed and did not ordinarily reside in Wichita. Adams would eventually testify that her cell phone records showed that J. Carr made a call to Dodge City at 4:25 a.m. and a call to his sister at 4:26 a.m. She would also testify he woke her sometime between 4 a.m. and 5 a.m. to say that R. Carr was coming over to trade cars.
Later that morning, Adams saw news reports about the quadruple homicide. The reports said the police were looking for two suspects, one wearing an orange FUBU shirt. Adams woke J. Carr to tell him what had happened and to see how he would react to the news report. When she asked him if he had heard about four people getting killed, he said no. When she told him that the gunmen had taken the victims to ATMs and forced them to withdraw cash, J. Carr asked how the police knew that fact. Adams told him that one of the victims had survived.
Adams’ mother, Toni Greene, was cleaning about 11 a.m. when she found a maroon jewelry box in one of the pockets of J. Carr’s jacket. Inside the box was a diamond engagement ring. Thinking it must be intended for J. Carr’s girlfriend in Ohio, she put the ring back where she found it.
About noon, Adams was watching the local television news while her mother and J. Carr were in the room with her. Adams saw video coverage of R. Carr being arrested and told J. Carr to go downstairs with her right away. Once downstairs, Adams asked J. Carr if he had seen the video of his brother being arrested. He said he did. When she asked him what had happened, he told her he was just hanging around drinking after he had missed his train, apparently at his sister s home. Adams told him that his story was not going to work: He had been wearing the orange FUBU sweater, and the police already had his brother. J. Carr became upset during this conversation and was crying.
While Adams and J. Carr were downstairs, Greene had continued watching the news. Although she did not recognize R. Carr as the person being arrested in the video, she learned that one of the items taken from the Birchwood residence was an engagement ring. She also learned that the police were looking for an older white Plymouth, and she had noticed a white Plymouth parked outside the house earlier that morning.
Greene checked outside to see if the Plymouth was still there. It was. She then called Adams upstairs and told her they needed to leave immediately. Greene told Adams that J. Carr was the person the police were trying to find. She specifically told Adams about the engagement ring she had seen in J. Carr s jacket pocket and the Plymouth that police were looking for parked outside. Adams and Greene went across the street to a neighbor’s house, and Greene and the neighbor called the police.
Looking back toward her house, Adams saw J. Carr come to its front door and make an inquiring gesture in her direction. He was again wearing the FUBU sweater. When the police arrived, J. Carr moved away from the door and went back inside. And, a short while later, Adams saw J. Carr running through an alley. He had again removed the FUBU sweater.
After a foot chase, officers apprehended J. Carr. They found more than $1,000 in cash on his person.
Inside Adams’ home, police found the orange and black FUBU sweater; leather gloves; and J. Carr’s brown leather jacket. The jacket pocket still contained the engagement ring Jason B. had purchased for Holly G., as well as an identification card for J. Carr.
In addition, several items were collected from the white Plymouth. These items included two clocks belonging to Brad H.
While J. Carr was being driven to a hospital after his arrest, pursuant to a warrant for bodily specimens, he asked the transporting detective and officer about an earlier quadruple homicide in Wichita. When told the suspects had been arrested and charged with capital murder, he asked what capital murder was, how the death penalty was administered, and whether a person who received a lethal injection felt pain.
Additional Investigation and Evidence Identifications
Initially, Schreiber was not able to identify either of the men who kidnapped him by viewing photo arrays. However, on the morning of December 15, when Schreiber saw news footage of R. Carr s arrest, he believed R. Carr was one of tire men. He called the detective assigned to his case and said he was “about 90 percent sure that [R. Carr was] the person who abducted” him the week before.
Later, at preliminary hearing and trial, Schreiber identified R. Carr as the man who approached his car outside of the convenience store. He did not identify J. Carr as the second kidnapper at either preliminary hearing or trial.
Walenta was shown two photo arrays at approximately 7:15 p.m. on December 15. Walenta said that the first and second photographs in one array fit the general appearance of the person who shot her. She said the eyes of the person in the second photograph “represented what she remembered about the suspect who shot her.” The person in the second photograph was R. Carr. The person in the first photograph was in prison at the time of the Walenta incident. Walenta was unable to identify anyone from the second array, which contained a photograph of J. Carr.
Holly G. had been shown two photo arrays at approximately 6:30 p.m. on December 15, and had been asked if she could identify “any of the people in the pictures as the intruders.”
Holly G. said she thought the person in position number two in the first array, the same shown later to Walenta, was one of the men. That person was R. Carr. When asked why she thought the person in position number two was one of the men, Holly G. noted his eyes, his features, and his hair.
When she viewed the second array, Holly G. said she thought the other intruder was in position number one, based on her recognition of him and “similar hair as to what [she] remembered,” a “Buckwheat” hairdo standing off the head, kind of clumped together. The person in position number one was not R. or J. Carr and was in custody at the time of the Birchwood crimes. J. Carr was in position number four in the second array.
At preliminary hearing, Holly G. was not able to identify the second, stockier intruder at the Birchwood residence. By the time of the hearing, R. Carr had shaved his head, and he intermittently wore glasses. Holly G. was able to identify J. Carr as the first, taller intruder.
At trial, Holly G. identified both R. Carr and J. Carr-—R. Carr as the second, stockier intruder and J. Carr as the first, taller intruder.
Autopsies
■ Heather M. died of a contact gunshot wound to her head. Her body showed bruising on her lower extremities. Injuries to her genital area were consistent with the application of force, and injuries to her knees were consistent with being placed on her hands and knees for the purpose of sexual intercourse.
- Aaron S. died of a contact gunshot wound to his head. He sustained blunt trauma injuries to his head and neck; and his legs showed bruises, red discoloration, and scrapes. Injuries on his forehead and head were consistent with being hit with a golf club and the gun associated with the murders.
Jason B. died of an intermediate-range gunshot wound to his head. In addition, his body showed blunt trauma injuries. An injury to his buttocks was consistent with being hit with a golf club.
Like Jason B., Brad H. died of an intermediate-range gunshot wound to his head. His face showed blunt trauma injuries.
All of the gunshot wounds to the four Birchwood murder victims were consistent with their bodies being in a kneeling position with their heads down when the bullets entered their skulls.
Holly G.’s dog sustained “severe injury and fracturing of the neck, almost to the point where the head had fallen down off of the support of the spinal cord and vertebrae.” Testimony at trial established that the dog’s injuries could have been caused by a golf club. The dog also sustained a puncture wound to its neck.
DNA and Other Biological Evidence
Semen collected from the carpet in the dining room of the Birch-wood home and a hair with attached.root from Jason B.’s bedroom matched J. Carr’s DNA.
J. Carr’s DNA also was found in samples from Holly G.’s. rape examination. Semen collected from Holly G.’s labia majora matched J. Carr’s DNA; and a sample of Holly.G.’s vaginal discharge was consistent with DNA from her and J. Carr, while all others at the Birchwood home were excluded as contributors. J. Carr was determined to be the major contributor to a mixed DNA profile found in semen from a swab of Holly G.’s lips, and all others at the home were excluded as contributors except for Holly G. and J. Carr.
A stain on J. Carr’s boxer shorts matched Heather M.’s DNA. The results on a second stain on the boxer shorts excluded possible contributors other than Holly G., Heather M., and J. Carr.
Heather M.’s DNA was found in blood on the pair of R. Carr’s red undershorts left on the bathroom floor when he took a shower at Donley’s apartment on the morning of December 15. Heather M.’s DNA was also detected on a white t-shirt on the sofa in Don-ley’s apartment. A test of DNA on a gray t-shirt from the sofa excluded everyone at the Birchwood residence except for Heather M. In addition, R. Carr’s semen was found on a white muscle shirt, which he also left on Donley’s bathroom floor.
Foreign material found on Holly G.’s thigh was tested and excluded everyone at the Birchwood residence except for her, R. Carr, and J. Carr.
An analysis of swabs from Heather M.’s vaginal entrance, clitoris, vagina, and vaginal vault was positive for the presence of seminal fluid. Blood also was detected on cervical swabs.
DNA samples from the penises of Aaron S., Brad H., and Jason B. also were tested. The sample from Aaron S. included him and Heather M. In addition to Brad H. himself, Holly G. could not be excluded on his sample. Jason B.’s sample was consistent with him, Holly G., and Heather M.
Testing was performed on three other hairs collected from the Birchwood residence.
A Wichita Police Department chemist trained in hair examination originally separated the total of four hairs from other hairs and fibers collected from the Birchwood home. She testified that she performed the separation macroscopically and that she had labeled three of the hairs Negroid and a fourth as “possibly” so.
On further testing, one of the hairs produced no result and may have been a non-human animal hair. Another did not match either R. or J. Carr, both of whom are African-American; that hair was more typical of a Caucasian or a person with European ancestry. Mitochondrial DNA testing on the third hair, which had been collected from the floor of Jason B.’s bedroom, showed that neither
R. Carr nor J. Carr could be excluded as the contributor. Persons within the same maternal line will have the same mitochondrial DNA; thus the two brothers would be expected to have the same mitochondrial DNA profile.
Blood on a golf club found at the Birchwood home was positively identified as nonprimate blood.
A law enforcement agent would eventually testify at trial that he observed warts on R. Carr’s penis after R. Carr was arrested. Don-ley had also noticed lesions on R. Carr that she believed to be genital warts. Holly G. learned a few months after the Birchwood crimes that she had contracted HPV (Human papillomavirus), a virus that can cause genital warts.
Schreiber’s Guess Watch also was tested for DNA, and the results were consistent with R. Carr.
Bank Account Transactions
Bank account records for Brad H., Jason B., Holly G., and Aaron S. showed the following chronology of transactions on December 14 and 15:
December 14, 2000:
Commerce Bank ATM
• 11:54 p.m. $350 withdrawal from Brad H.’s checking account
• 11:55 p.m. $350 withdrawal from Brad H.’s savings account
• 11:55 p.m. attempted $350 withdrawal from Brad H.’s account
• 11:56 p.m. attempted $350 withdrawal from Brad H.’s account
Prairie State Bank ATM
• 11:58 p.m. attempted $500 withdrawal from Brad H.’s account
• 11:58 p.m. attempted $350 withdrawal from Brad H.’s account
• 11:59 p.m. attempted $350 withdrawal from Brad H.’s account
December 15, 2000
Central Bank & Trust ATM
• 12:02 a.m. attempted $200 withdrawal from Brad H.’s account
Intrust Bank ATM
• 12:05 a.m. attempted $100 withdrawal from Brad H.’s account
• 12:06 a.m. balance inquiry on Brad H.’s account
Commerce Bank ATM
• 12:31 a.m. $200 withdrawal from Jason B.’s Prairie State Bank account
Prairie State Bank ATM
• 12:31 a.m. attempted $250 withdrawal from Jason B.’s Prairie State Bank account
• 12:31 a.m. attempted $200 withdrawal from Jason B.’s Prairie State Bank account
• 12:32 a.m. balance inquiiy on Jason B.’s Prairie State Bank account
• 12:32 a.m. attempted $200 withdrawal from Jason B.’s Prairie State Bank account
• 12:32 a.m. attempted $100 withdrawal from Jason B.’s Prairie State Bank account
• 12:32 a.m. attempted $100 withdrawal from Jason B.’s Capitol Federal account
• 12:34 a.m. $80 withdrawal from Jason B.’s Capitol Federal account
Commerce Bank ATM
• 12:53 a.m. $350 withdrawal from Holly G.’s account
• 12:54 a.m. attempted $200 withdrawal from Holly G.’s account
• 12:54 a.m. $150 withdrawal from Holly G.’s account
• 1:17 a.m. $350 withdrawal from Aaron S’.s account
Central Bank & Trust ATM
• 1:21 a.m. attempted $200 withdrawal from Aaron S.’s account
Gun Evidence
Between December 10 and December 12, Adams saw J. Carr with two guns: a small, silver revolver and a black handgun.
On December 10, she was having problems with her boyfriend, and J. Carr gave her the small, silver gun to use for her protection. At 11:15 p.m. on December 11, J. Carr showed up at Adams’ home after being dropped off by R. Carr. J. Carr asked Adams to give the small, silver gun back to him. In return, he gave her the black handgun, a semiautomatic.
The next evening, J. Carr told Adams that he needed the black gun back, and she gave it to him. He asked how she had been touching it and scolded her for doing so too much. J. Carr then thoroughly cleaned the gun. He wiped down the barrel and the grip and then he ejected the clip and removed the bullets and wiped down the clip and each bullet.
About 3 months after the quadruple homicide, on March 19, 2001, a Winfield Correctional Facility inmate on clean-up detail found a Lorcin .380 caliber handgun at the intersection of Kansas Highway 96 and Greenwich Road in Wichita. Ballistics testing demonstrated that all of the bullets, casings, and fragments associated with the Schreiber, Walenta, and Birchwood incidents came from the Lorcin .380 handgun. This included a casing found at the scene where Schreiber was left by his abductors, bullets and casings from Walenta’s Yukon, a bullet from Walenta’s chest, casings and a bullet fragment found at 29th and Greenwich Road, and a bullet from the body of Aaron S. Adams identified the Lorcin as the black handgun that J. Carr had given her the evening of December 11 and that she had returned to him on December 12.
Shoeprints and Cigar Ash
A print from J. Carr’s left Timberland shoe had the same size, shape, and sole design as a shoeprint found on a cardboard sunshade in the garage at 12727 Birchwood. A print from the left shoe of R. Carr’s pair of Buffalino boots had the same characteristics as a lift taken from a box under Jason B.’s bed. A print from R. Carr’s right Buffalino boot had the same class characteristics as a lift taken from a tarp under Jason B.’s bed. Investigators found ashes on a desk in the basement that were wider in diameter than those from a normal cigarette. There were no ashtrays, cigarettes, or any other kind of smoking material in the residence. Investigators collected the ashes because they found the presence of the ashes to be “unusual.” A partially smoked cigar was recovered from R. Carrs leather coat and another from the dashboard of his white Plymouth.
Birchwood Neighbor
After work on December 14, the night the Birchwood incident began, Jean Beck went to The Grape, a restaurant at Central and Rock Road in Wichita. The restaurant was a short distance from Walenta’s home. Beck left at approximately 10:45 p.m. in her 2000 BMW 323. As she was driving to her home at 12725 Birchwood, the triplex unit next door to 12727 Birchwood, she noticed a newer, tan Toyota four-door car behind her. As Beck turned off 13th Street into her residential area, the driver of the Toyota turned in behind her. Beck called her daughter and asked her to open the garage door at 12725 Birchwood; and, for safety, Beck stayed inside her car until the Toyota had passed her home. After the Toyota went by, it headed back toward 13th Street.
Defense Evidence
R. Carr put on a competing ballistics expert, who testified that his test firings from the Lorcin .380 were inconclusive in terms of a match to bullets and casings recovered from the crime scenes and bodies of the victims. However, the expert, Richard Ernest, admitted that he did not clean the gun before conducting the test firings and that the gun had significantly degraded by that time. He conceded that his conclusion could have been different if he had fired the Lorcin in the same condition as it was when the State’s expert fired it.
J. Carr introduced an exhibit confirming his purchase of an Am-tralc passenger train ticket from Newton to Cleveland, to depart at 2:40 a.m. on December 15, 2000.
Additional facts necessary to resolution of particular legal issues will be discussed below.
Renumbering of Counts in Jury Instructions and Capital Murder Theories
In its instructions to the jury and in the verdict forms, the alternative capital murder counts set forth in Counts 1 through 8 of the amended complaint were combined into Counts 1 through 4 of capital murder—one for each of the four Birchwood killings—r based on alternate theories of guilt under K.S.A. 2l-3439(a)(4) (underlying sex crime) or K.S.A. 21-3439(a)(6) (multiple first-degree premeditated murders). At an instructions conference, the State had asserted that it did not matter if the jury was not unanimous on the theory as long as it was unanimous on guilt. A similar combining and renumbering occurred for the alternative counts of aggravated robbeiy set out in Counts 15 through 22 of the amended complaint. The remaining counts in the amended complaint were renumbered accordingly in the instructions and verdict forms. Accordingly, the 58 charges in the amended complaint were reduced to 50 possible crimes of conviction. For clarity, this opinion consistently uses the count numbers from the amended complaint.
Guilt Phase Issues and Short Answers
We begin our discussion by setting out the questions we answer on the guilt phase of R. Carr’s trial. Many of these are also raised by or applicable to J. Carr. We have taken the liberty of reformulating certain questions to focus on their legally significant aspects or effects. We also have reordered questions raised by the defense and have inserted among them unassigned potential errors noted by us, because we believe this organization enhances clarity. We number all questions consecutively, 1 through 27, despite occasional intervening subheadings.
Our statement of each question is followed by a brief statement of its answer.
Issues Affecting All Incidents
1. Did the district judge err in refusing to grant defense motions for change of venue? A majority of six of tire court’s members answers this question no. One member of the court dissents and writes separately on this issue and its reversibility, standing alone.
2. Did the district judge err in refusing to sever the guilt phase of defendants’ trial? A majority of six members of the court answers this question yes. One member of the court dissents and writes separately on this issue. A majority of four members of the court agrees that any error on this issue was not reversible standing alone. Three members of the court dissent, and one of them writes separately for the three on the reversibility question, standing alone.
3. Was it error for the State to pursue conviction of R. Carr for all counts arising out of the three December 2000 incidents in one prosecution? The court unanimously answers this question no.
4. Did the district judge err (a) by excusing prospective juror M.W., who opposed the death penalty, for cause, (b) by failing to excuse allegedly mitigation-impaired jury panel members W.B., D.R., D.Ge., and H.Gu. for cause, or (c) by excusing prospective jurors K.J., M.G., H.D., C.R., D.H., and M.B., who expressed moral or religious reservations about the death penalty, for cause? The court unanimously agrees there was no error on any of these bases.
5. Did the district judge err by rejecting a defense challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986), to the State’s peremptory strike of juror and eventual foreperson W.B.? The court unanimously answers this question yes. A majority of four members of the court agrees that any error on this issue was not reversible standing alone. Three members of the court dissent, and one of them writes separately for the three on the reversibility question, standing alone.
Issues Specific to Walenta Incident
6. Was the district judge’s admission of statements by Walenta through law enforcement error under the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? The court unanimously answers this question yes. The court unanimously agrees that this error was not reversible standing alone.
7. Was the evidence of attempted aggravated robbery of Walenta sufficient to support R. Carr’s felony murder conviction? A majority of four of the court’s members answers this question yes. Three members of tire court dissent, and one of them writes separately for the three on this issue and its reversibility, standing alone.
8. Did the district judge err by failing to instruct the jury on second-degree murder as a lesser included offense of felony murder of Walenta? The court unanimously answers this question no.
Issues Specific to Quadruple Homicide and Other Birchwood Crimes
9. Did faulty jury instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital murders and a multiplicity problem on three of four K.S.A. 21-3439(a)(6) multiple-death capital murders combine to require reversal of three of R. Carr’s death-eligible convictions? The court unanimously answers this question yes.
10. Was a special unanimity instruction required for Counts 1, 3, 5, and 7 because of proof of múltiple sex crimes underlying each count? The court declines to reach the merits of this issue because it is moot.
11. Must sex crime convictions underlying capital murder Counts 1, 3,5, and 7 be reversed because they were lesser included offenses of capital murder under K.S.A. 21-3439(a)(4)? The court declines to reach the merits of this issue because it is moot.
12. Was the State’s evidence of aggravated burglary sufficient? The court unanimously answers this question yes.
13. Did tire State fail to correctly charge and the district judge fail to correctly instruct on coerced victim-on-victim rape and attempted rape, as those crimes are defined by Kansas statutes, rendering R. Carr’s convictions on those offenses void for lack of subject matter jurisdiction? The court unanimously answers this question yes.
14. Was the State’s evidence of R. Carr’s guilt as an aider and abettor on Count 41 for Holly G.’s digital self-penetration sufficient? A majority of four of the court’s members answers this question yes. Three members of the court dissent and one of them writes separately for them on this issue and its reversibility.
15. Were Count 41 and Count 42 multiplicitous? The court unanimously answers this question yes. The court unanimously agrees that this error requires reversal of R. Carr’s conviction as an aider and abettor on Count 42.
16. Was the evidence of R. Carr’s aiding and abetting of J. Carr’s rape of Holly G. and attempted rape and rape of Heather M. sufficient? The court unanimously answers this question yes.
17. Did Count 43 of the charging document confer subject matter jurisdiction to prosecute R. Carr for attempted rape of Heather M.? The court unanimously answers this question yes.
18. Did the district judge misapply the third-party evidence rule and hearsay exceptions, preventing R. Carr from presenting his defense? The court unanimously answers this question yes. The court unanimously agrees that any error on this issue was not reversible standing alone.
19. Was evidence of results from mitochondrial DNA testing of hairs found at the Birchwood home erroneously admitted? The court unanimously answers this question no.
20. Did the district judge err by denying R. Carr’s motion for mistrial after evidence developed at trial that R. Carr had genital warts and that the surviving victim, Holly G., contracted HPV after the second intruder she identified as R. Carr raped her? The court unanimously answers this question no.
21. Did the district judge err by failing to instruct on felony murder as a lesser included crime of capital murder? The court unanimously answers this question no.
Other Evidentiary Issues
22. Did the district judge err by automatically excluding eyewitness identification expert testimony proffered by the defense? The court unanimously answers this question yes. The court unanimously agrees that any error on this issue was not reversible standing alone.
23. Did the district judge err by permitting a jury view of locations referenced in evidence, in violation of the defendants’ right to be present, right to assistance of counsel, and right to a public trial? The court unanimously answers this question no.
Other Instructional Issues
24. Did the district judge err by failing to include language in the instruction on reliability of eyewitness identifications to ensure that jurors considered possible infirmities in cross-racial identifications? The court unanimously answers this question no.
25. Was tire instruction on aiding and abetting erroneous because (a) it permitted jurors to convict the defendants as aiders and abettors for reasonably foreseeable crimes of the other, regardless of whether the State proved the aider and abettor’s premeditation, (b) it failed to communicate expressly that an aider and abettor had to possess premeditated intent to ldll personally in order to be convicted of capital murder, or (c) it omitted language from K.S.A. 21-3205(2)? The court unanimously answers the first question yes. The court unanimously answers the second question no. The court unanimously answers the third question no. The court unanimously agrees that the error on the first question was not reversible standing alone.
Prosecutorial Misconduct
26. Did one of the prosecutors commit reversible misconduct by telling jurors to place themselves in the position of the victims? The court unanimously answers this question no.
Cumulative Error
27. Did cumulative error deny R. Carr a fair trial on his guilt? A majority of four of the court’s members answers this question no. Three members of the court dissent, and one of them writes separately for them on this issue.
1. Venue
The defendants argue that pretrial publicity was so pervasive and prejudicial in Sedgwick County that it prevented trial by a fair and impartial jury, violating their rights under tire Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights, and that District Court Judge Paul Clark abused his discretion by refusing to transfer this case to another county under K.S.A. 22-2616(1). To the extent only one defendant has explicitly raised a particular argument, we consider it on behalf of the other defendant as well under the authority of K.S.A. 21-6619(b).
Additional Factual and Procedural Background
The defendants first moved for a change of venue in March 2002. At a May 28, 2002, evidentiary hearing on their motion, they presented a spring 2002 venue study to demonstrate the depth of media saturation about this case in Sedgwick County.
The study was based on two telephone surveys, one of 401 Sedgwick County residents and one of 200 Wyandotte County residents. Lisa Dahl of Litigation Consultants, Inc., who conducted the surveys, testified that Wyandotte County served as a control county. It was selected because local media coverage of the case had been limited and it was a metropolitan area similar to Sedgwick County in demographic makeup, economy, and crime rates. At the time of the surveys, Sedgwick County had 452,000 residents and Wyandotte County had about 157,000 residents.
The Sedgwick County response rate was 80 percent. Dahl testified drat, although the Wyandotte County response rate was lower at 62.89 percent, it nevertheless fell within a range sufficient to provide an accurate representation of the views of the community at large.
The survey showed that 96 percent of the respondents in Sedgwick County were aware of this case, as compared to 29.5 percent in Wyandotte County. Further, 74.1 percent of those surveyed in Sedgwick County held an overall opinion that the defendants were guilty. Approximately half of these respondents said the defendants were “definitely guilty,” and the other half said they were “probably guilty.” In contrast, 22 percent of the Wyandotte County respondents believed the defendants were “definitely” or “probably” guilty, according to Dahl. Addressing their understanding of the quality of the evidence, 72.3 percent of the Sedgwick County respondents believed it to be “overwhelming” or “strong.” Only 16 percent of the Wyandotte County respondents believed likewise.
Personal discussions about this case correlated with more widespread beliefs on the defendants’ guilt. Of the 59.1 percent of respondents in Sedgwick County who had engaged in such personal discussions, 86 percent believed that the defendants were “definitely” or “probably” guilty. And, of the 56.4 percent of respondents who had merely overheard such discussions, 82 percent believed the defendants were “definitely” or “probably” guiliy.
Dahl also compiled extensive examples of news media coverage of this case, which included both print and online newspaper articles; internet coverage from websites other than those whose content was generated by newspapers; radio coverage, including audio, transcripts and notes from broadcasts, and printouts of stories on their websites; and television footage. Much of the coverage was, not surprisingly, unfavorable to the defendants.
The existence of unfavorable media coverage had been demonstrated in a hearing nearly a year before on the defendants’ motion to close proceedings to the media and the Wichita Eagle newspaper’s and KWCH-TV’s motion to intervene. Thomas David Beisecker, a professor of communication studies at the University of Kansas and president of Advocacy Research Associates, had testified about the content of media coverage in the first few months after the crimes. In addition to describing facts of the crimes and the legal proceedings, Beisecker said, the coverage included discussion of the good character of the victims, R. Carr’s parole status and criminal history, and the community’s fear and insecurity stemming from the crimes.
Coverage of the crimes in this case was especially intense immediately after the Birchwood crimes and the defendants’ arrests. Within 2 days of the crimes the Wichita Eagle had published a story about R. Carr’s recent release from jail after his parole violation and detailing his criminal history. The funerals of Heather M., Aaron S., Brad H., and Jason B. were covered extensively. Press coverage and public response to it also focused on fear among Wichita citizens as a result of the string of crimes attributed to the defendants.
Press coverage spiked again when Walenta died on January 2, 2001, and when the amended complaint was filed against the de fendants 2 days later. In the months following, various pretrial proceedings such as the April 2001 preliminary hearing and the discovery of the gun used in the crimes prompted additional stories. The 1-year anniversary of the quadruple homicide also prompted media stories.
Measurement of intensity of community opinion was another feature of Dahl’s surveys. She.testified that the surveys were done more than a year after the crimes and that, if the opinions of members of the public were going to dissipate, they would have done so by the time the telephone calls were placed. Because they had not, she expected that there would be little movement in the opinions evident from the survey results between the time of the survey and the start of the defendants’ trial a few months later.
Dahl admitted that her surveys did not explore the question of impartiality and that she was not aware of any studies in her field conclusively establishing that participants in such surveys who voiced opinions on guilt could not ultimately serve as impartial jurors.
After the evidentiary hearing on the motion to change venue, Judge Clark said that he would hear closing arguments from counsel after he had had an opportunity to review the exhibits.
Closing arguments were held on June 13, 2002. Immediately upon the completion of the arguments, Judge Clark spoke. He first found that Dahl was qualified to render an expert opinion and that the venue study was scientifically valid. He then ruled:
“The argument then comes to the emotionally biasing publicity. The purpose in selecting a juiy is not to find a jury free of knowledge. It is to find a jury free of bias and prejudice. The study shows and the evidence shows and experience shows that in this particular case, having reviewed the material furnished, the law[,] and the argument of counsel, that the venue in which the defendants will be assured of the greatest number of venire persons free of bias or prejudice from whom a jury may be selected to decide the case solely on the facts in evidence, viewed by the light of the instruments of law, is Sedgwick County, Kansas. The motion is overruled for both defendants.”
In late July 2002, a political committee ran an advertisement on local Wichita television stations supporting the candidacy of Phill Kline for Kansas Attorney General. The advertisement identified R. Carr and labeled him a murderer. Although the advertisement had run in at least one other Kansas media market, it did not identify R. Carr by name in that market.
The ads and reaction to them generated days of coverage on local television news in Wichita and in the Wichita Eagle. Among others quoted was Sedgwick County District Attorney Ñola Fouls-ton, the lead prosecutor on the case. She said that “placing this ad in front of a constituency of individuals in our community that are the same people that are going to form a jury pool could have a devastating effect.”
The Kline ad and related media prompted the defendants to renew their motion to change venue, and Judge Clark held another hearing on the subject on August 2, 2002. Again, he rejected the defendants’ arguments.
Judge Clark’s second oral ruling was even more, brief than his first: “I. . . know that on venue and fair trial and the ability to have a jury that will be fair, that’s determined by a questioning process we will try here first. I will overrule the motion. If it can’t be done, we will have a fair trial before this is over, one way or the other. That’s all I have on tire motions.” His written order denying the renewed motion said that he found the evidence was “not clear that a fair, impartial jury cannot be selected.”
In the month voir dire was to begin in September 2002, prospective jurors completed sworn questionnaires that inquired about their exposure to pretrial publicity and whether any opinions they held on the case were so set that they would not be able to set them aside. According to the questionnaire responses, 92 percent of the prospective jurors had been exposed to pretrial publicity on this case.
Judge Clark began voir dire on September 9, 2002, prepared to examine up to nine panels of 20 prospective jurors each until 60 were qualified for final selection. He began by excusing a handful of prospective jurors based on their questionnaire responses. He then conducted general voir dire, excusing several prospective jurors for reasons unrelated to pretrial publicity.
At the conclusion of general voir dire, Judge Clark permitted individual voir dire on the subjects of racial prejudice, pretrial pub licity, and the death penalty. After individual voir dire of 86 prospective jurors, a panel of 60, plus a panel of 8 prospective alternates, was established.
Nearly all 86 prospective jurors examined individually had been exposed to at least some publicity regarding the case. Several mentioned seeing articles about the case within days before the beginning of jury selection.
Fifty-two of the 86 said they had formed no opinion about the case. Of the 34 who said they had formed opinions about the case, all’but three said they could set them aside, presume the defendants’ innocence, and decide the case only on the evidence.
The defendants challenged 11 of the 86 prospective jurors for cause in whole or in part because of preconceived opinions of guilt. Judge Clark overruled 10 out of 11 of these challenges, relying on the prospective jurors’ statements that they could set their opinions aside and decide the case impartially on fhe evidence presented.
Jury selection lasted 19 days.
Of the 12 jurors seated after the parties exercised their peremptory challenges, 11 had been exposed to some degree of pretrial publicity; 5 of the 11 said that their exposure was minimal.
Eight of the 12 said they had formed no opinion on the defendants’ guilt; 4 had admitted during individual voir dire that they believed the defendants were guilty based on pretrial publicity: D.G., D.M., T.N., and J.S.
The defense had unsuccessfully challenged D.G. for cause. D.G. said that he had heard about the case from television and the newspaper. He had some difficulty recalling the details of the media coverage because of the passage of time since the crimes. Based on how the events were portrayed in media coverage, it appeared to him that the defendants were guilty. He continued to believe that until he was called to jury duty and asked whether he could keep an open mind. In his responses to the questionnaire, D.G. said without equivocation that he could set his opinion aside. During individual voir dire, one of the prosecutors asked him if he understood that it would be improper for a juror to consider outside information when deciding the case, and D.G. responded, “Hopefully, I can separate the two and just try to hear the facts and evidence presented.” The prosecutor suggested that D.G.’s use of the word “hopefully” might cause some to question the strength of his conviction and then asked D.G. a series of follow-up questions. D.G. said he agreed that the defendants were entitled to an impartial jury; acknowledged he would have to base his decision on the evidence, even if it conflicted with information from pretrial publicity; and said he would have no problem doing so. Several of D.G.’s statements were made in response to leading questions, such as this from the prosecution: “And you would agree with me that the defendants . . . are entitled to a jury that could decide their case based upon what is presented here in court?” In response to questioning from R. Carr’s counsel, D.G. confirmed his ability to consider only admitted evidence. But, later in the questioning, he occasionally said he would “hope” and “try” to set aside what he had learned from pretrial publicity.
The defense had also unsuccessfully challenged D.M. for cause. D.M. was exposed to television and newspaper coverage. Based on the coverage, D.M. said that he “suppose[dj” he had an opinion that would “lean toward guilt.” He said that he understood it would be improper to rely on information from outside the courtroom in making a decision. Then the prosecution asked: “And so you wouldn’t do that, would you?” And D.M. said that he “hopefully [would] not” do so. Again, the prosecutor explained that “hopefully” might not be good enough and that justice required a definitive answer. At that point, D.M. said, “Ah, yes. I believe I could put it aside, yes—what I’ve heard.” D.M. agreed that media coverage could he incomplete or inaccurate and that it would be unfair to find a defendant guilty on such information. In response to questions from defendants’ counsel, D.M. again confirmed his ability to set aside his previous opinion.
The defense had passed T.N. for cause. T.N said she believed R. Carr and J. Carr were guilty based on coverage in the newspaper. She expressed confidence she could set that opinion aside and said she would not convict someone based on information she read in the press. She said she understood that the media may not be privy to all of the facts and that it would be unfair to base her decision on such information. Some of T.N.’s statements re sponded to leading questions, such as this from the prosecution, “So you will not convict somebody based on what you may have read in the newspaper?” In response to questions from defense counsel, T.N. again confirmed that she could set aside her opinion and the information she acquired from pretrial publicity.
The defense had unsuccessfully challenged J.S. for cause. J.S. was exposed to pretrial publicity about the time the defendants were arrested. When asked whether he had formed an opinion of guilt based on the coverage, J.S. said, “Well, yeah, not really based on anything, just, you know, kind of the idea that . . . somebody gets arrested . . . there is bound to be evidence against them.” J.S. said that he understood not all persons arrested are guilty—an awareness that would make it easier for him to set his opinion aside. J.S. said that he would make a decision based solely on the evidence.
After voir dire was completed, the defendants orally renewed their motion for change of venue once more, arguing that the process of jury selection demonstrated that pretrial publicity had tainted the pool. Judge Clark overruled the motion, saying that jury selection confirmed “the contrary.”
The trial was televised, but Judge Clark restricted media access to evidence, made sure that microphones would not pick up the defendants’ confidential discussions with counsel, and allowed witnesses to decide whether their voices or images could be published or broadcast. The judge reserved six seats inside the courtroom for members of the press. He admonished jurors not to pay attention to any of the publicity surrounding the case during jury selection and again at trial. The record does not suggest that the media created any disruption or otherwise interfered with the judge’s conduct of the proceedings.
Items identified during testimony as belonging to the victims included Aaron S.’s Koch Industries business card; a ring that Heather M., a teacher, had bought while on a choir tour in Europe; Heather M.’s Catholic Family Credit Union debit card; and Brad H.’s Koch identification card. In describing the state of Aaron S.’s ransacked bedroom, an investigator testified that she had seen an envelope containing cash and checks “that were meant for a sld trip that he was planning for the youth organization in church.” Next to a toppled clock were some prayer books and religious material.
The juiy knew that R. Carr was charged with three counts of criminal possession of a firearm for possessing a gun within 10 years after being convicted of a felony. Donley testified that he was unemployed and made money fighting his dog. In addition, R. Carr s attorney elicited testimony from Donley that R. Carr sold illegal drugs.
General Legal Framework and Standards of Review
The defendants argue that Judge Clark’s refusal to grant a change of venue violated their right to an impartial jury under the Sixth and Fourteenth Amendments of the United States Constitution and under Section 10 of the Kansas Constitution Bill of Rights. They also argue that the judge abused his discretion under the Kansas statute governing change of venue, K.S.A. 22-2616(1).
The Sixth Amendment guarantees an accused “[i]n all criminal prosecutions” the right to a trial by “an impartial jury.” U.S. Const, amend. VI. This protection is incorporated into and made applicable to tire states through the due process provision of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
The Kansas Constitution includes a similarly worded guarantee for its citizens in Section 10 of the Bill of Rights, which recognizes a defendant’s right to a speedy and public trial “by an impartial jury of the county or district in which the offense is alleged to have been committed.” We have not previously analyzed our state constitutional language differently from the federal provision. See State v. Hall, 220 Kan. 712, 714, 556 P.2d 413 (1976). And neither the defendants nor the State urge us to do so today.
In addition, K.S.A. 22-2616(1) gives Kansans a vehicle to obtain a change of venue to prevent a local community’s hostility or preconceived opinion on a defendant’s guilt from hijacking his or her criminal trial:
“In any prosecution, the court upon motion of tire defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against tire defendant that he cannot obtain a fair and impartial trial in that county.”
The United States Supreme Court has examined Sixth Amendment venue challenges based on pretrial publicity in two contexts. Goss v. Nelson, 439 F.3d 621, 628-29 (10th Cir. 2006) (citing Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 [1963] [presumed prejudice]; Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 [1961] [actual prejudice]).
“The first context occurs where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in tire community. We ‘presume prejudice’ before trial in those cases, and a venue change is necessary.” 439 F.3d at 628. “In such cases, a trial court is permitted to transfer venue without conducting voir dire of prospective jurors.” House v. Hatch, 527 F.3d 1010, 1023-24 (10th Cir. 2008).
The second context, “actual prejudice,” occurs “where the effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.” Goss, 439 F.3d at 628; see Gardner v. Galetka, 568 F.3d 862, 888 (10th Cir. 2009). “In cases of actual prejudice, ‘the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole.’ [Citation omitted.]” Hatch, 527 F.3d at 1024.
As Professor Wayne R. LaFave and his colleagues have written, a claim that pretrial publicity has so tainted prospective jurors as to make a fair trial impossible cannot be “determined solely by the standards prescribed in the venue change statute or court rule. The federal constitution may also play a significant role.” See 6 LaFave, Israel, King, & Kerr Criminal Procedure, § 23.2(a) (3d ed. 2007). And, when in conflict, even constitutionally based provisions on the location of criminal trials must yield to those establishing a defendant’s right to an impartial jury. Skilling v. United States, 561 U.S. 358, 378, 130 S. Ct. 2896 177 L. Ed. 2d 619 (2010) (“The Constitution’s place-of-trial prescriptions ... do not impede transfer of die proceedings to a different district at the defendant’s request if extraordinary local prejudice will prevent a fair trial.”); United States v. McVeigh, 918 F. Supp. 1467, 1469 (W.D. Okla. 1996) (“right to an impartial jury in the Sixth Amendment. . . will override the place of trial provisions in both Article. Ill and the Sixth Amendment in extraordinary cases”)- The same certainly is true about the relationship between the fair trial provisions of the federal Constitution on tire one hand and state constitutional and statutory provisions prescribing the ordinary venue for criminal trials, see, e.g., Kan. Const. Bill of Rights, § 10 (granting right to speedy public trial by impartial jury of county, district where offense allegedly committed), on the other hand. The federal Constitution is supreme.
The defendants invoke both presumed prejudice and actual prejudice in this case. They agree with the State that our traditional standard of review on denial of a motion to change venue has been abuse of discretion. See State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001) (citing State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 [1999]). But they also urge us to consider whether an unlimited standard of review may be appropriate under Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (“trial courts must take strong measures to ensure” that defendants tried by impartial jury free from outside influences; appellate courts “have the duty to make an independent evaluation of the circumstances”), and our statutory duty to determine whether a sentence of death “was imposed under the influence of passion, prejudice or other arbitrary factor,” K.S.A. 2013 Supp. 21-6619(c)(1).
Because we have not previously been precise about how analysis of presumed prejudice differs from analysis of actual prejudice, about how the two theories are supported by and applied under the federal and state constitutions and in concert with our state venue change statute, or about how our standard of review on appeal may be affected, we begin our discussion of the defendants’ venue challenge by tearing apart and then reassembling these concepts.
We follow many of our sister state courts into this particular breach. See Crowe v. State, 435 So. 2d 1371, 1376 (Ala. Crim. App. 1983) (pretrial publicity warrants vemie change when de fendant can show presumed, actual prejudice); State v. Atwood, 171 Ariz. 576, 631, 832 P.2d 593 (1992) (prejudice from publicity may be presumed in rare instances); People v. Loscutoff, 661 P.2d 274, 276 (Colo. 1983) (identifying actual, presumed prejudice as alternative theories warranting venue change); State v. Sostre, 48 Conn. Supp. 82, 85, 830 A.2d 1212 (Super. Ct. 2002) (same); Sykes v. State, 953 A.2d 261, 272 (Del. 2008) (relief under venue statute may be satisfied under either presumed, actual prejudice theory); Noe v. State, 586 So. 2d 371, 379 (Fla. Dist. App. 1991) (recognizing presumed, inherent prejudice as basis for venue change); Isaacs v. State, 259 Ga. 717, 726, 386 S.E.2d 316 (1989) (analyzing presumed prejudice as basis for venue change); State v. Fee, 124 Idaho 170, 175, 857 P.2d 649 (Ct. App. 1993) (recognizing separate theories of presumed, actual prejudice available to demonstrate grounds for requested venue change); State v. Gavin, 360 N.W.2d 817, 819 (Iowa 1985) (same); Watkins v. Commonwealth, 2008-SC-000798-MR, 2011 WL 1641764, at *13 (Ky. 2011) (unpublished opinion) (showing of actual prejudice unnecessary when prejudice can be presumed) cert. denied 132 S. Ct. 1580 (2012); State v. Goodson, 412 So. 2d 1077, 1080 (La. 1982) (reviewing statutory venue challenge under federal standards established for actual, presumed prejudice); State v. Chesnel, 1999 Me. 120, 734 A.2d 1131, 1134 (1999) (recognizing actual, presumed prejudice as separate theories); Commonwealth v. Toolan, 460 Mass. 452, 462, 951 N.E.2d 903 (2011) (same); State v. Everett, 472 N.W.2d 864, 866 (Minn. 1991) (analyzing evidence for presumed, actual prejudice); State v. Kingman, 362 Mont. 330, 344, 264 P.3d 1104 (2011) (“As the basis of a motion for change of venue, the defendant may allege presumed prejudice, actual prejudice, or both.”); State v. Smart, 136 N.H. 639, 647, 622 A.2d 1197 (1993) (same); State v. Biegenwald, 106 N.J. 13, 33, 524 A.2d 130 (1987) (applying different standards to claims of presumed, actual prejudice); State v. House, 127 N.M. 151, 166, 978 P.2d 967 (Ct. App. 1999) (recognizing distinction between actual, presumed prejudice); State v. Knight, 81AP-257, 1981 WL 11437 (Ohio App. 1981) (unpublished opinion) (describing evidentiary standard for presumed prejudice claims); State v. Fanus, 336 Or. 63, 78, 79 P.3d 847 (2003) (citing United States Supreme Court authority for presumed, actual prejudice); Commonwealth v. Briggs, 608 Pa. 430, 468, 12 A.3d 291 (2011), cert. denied 132 S. Ct. 267, 181 L. Ed. 2d 157 (2011) (acknowledging doctrine of presumed prejudice as alternative to actual prejudice); Crawford v. State, 685 S.W.2d 343, 350 (Tex. App. 1984), aff'd and remanded 696 S.W.2d 903 (Tex. Crim. 1985) (“Pretrial publicity will entitle a defendant to a venue change if he can show either (1) news media coverage so damaging that it must be presumed no unbiased jury could be selected, or (2) from the totality of circumstances, actual prejudice.”); McBride v. State, 477 A.2d 174, 185 (Del. 1984) (same); State v. Snook, 18 Wash. App. 339, 349, 567 P.2d 687 (1977) (actual prejudice need not be shown where inherent, presumed prejudice exists); Sanchez v. State, 142 P.3d 1134, 1139 (Wyo. 2006) (recognizing presumed prejudice rarely invoked, applicable only in extreme circumstances).
Presumed Prejudice
The presumed prejudice doctrine originated in Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963).
In Rideau, law enforcement filmed the confession of defendant Wilbert Rideau to a bank robbery, kidnapping, and murder in Cal-casieu Parish, a community of approximately 150,000. Local television stations broadcast the confession, reaching approximately 24,000 people in the community the first day, 53,000 the following day, and 29,000 the day after that. Rideau was convicted at a juiy trial and sentenced to death. His jury included three persons who had seen the confession' on television and two deputy sheriffs from Calcasieu Parish. 373 U.S. at 723-25.
The Court presumed the existence of prejudice necessitating reversal of Rideau’s convictions without considering what was said by panel members during voir dire.
“For anyone who has ever watched television!,] the conclusion cannot be avoided that this spectacle, to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial—at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.
“ '[N]o such practice as that disclosed by this record shall send any accused to his death.’ ” Rideau, 373 U.S. at 726-27 (quoting Chambers v. Florida, 309 U.S. 227, 241, 60 S. Ct. 472, 84 L. Ed. 716 [1940]).
The Court invoked the doctrine of presumed prejudice again in Estes v. Texas, 381 U.S. 532, 538, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965), when extensive publicity before trial swelled into excessive media involvement and exposure during preliminary court proceedings. Reporters and television production crews overran the courtroom and bombarded the viewing public with the sights and sounds of the hearing. These led to disruption during proceedings and, according to the Court, denied defendant Billie Sol Estes the “judicial serenity and calm to which [he] was entitled.” 381 U.S. at 536.
In Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966), the Supreme Court presumed prejudice after pervasive, highly prejudicial publicity combined with a circus-like environment during the trial of defendant Samuel H. Sheppard, who was accused of bludgeoning his pregnant wife to death.
The media assumed an intensively active role from the outset of the sensational Sheppard case. Before trial, the press reported on the defendant’s refusal to take a lie detector test or be injected with a “truth serum.” 384 U.S. at 338-39. At trial, the courtroom overflowed with members of the press. Their presence inside the bar limited Sheppard’s ability to engage in confidential discussions with his counsel, and they roamed freely around the courtroom, at times creating so much noise that the presiding judge and the juiy could not hear witnesses’ testimony. 384 U.S. at 344. The jüdge permitted the local newspaper to publish the names and addresses of each juror, exposing them “to expressions of opinion from both cranks and friends.” 384 U.S. at 353. The judge’s admonitions to jurors was better characterized as “suggestions” or “requests” to avoid exposure to press coverage, and “bedlam reigned,” the Court said, thrusting jurors “into the role of celebrities.” 384 U.S. at 353, 355.
In reversing Sheppard’s murder conviction, the Court stated that publicity alone may not be sufficient to warrant relief, but, when it combines with a judge’s inability or lack of desire to control courtroom proceedings, violation of a defendant’s right to a fair trial is readily apparent. 384 U.S. at 354-58.
Since Sheppard, federal courts have refined the parameters of presumed prejudice claims, setting an extremely high standard for relief. United States v. McVeigh, 153 F.3d 1166, 1181 (10th Cir. 1998), disapproved on other grounds by Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999). A “court must find that the publicity in essence displaced the judicial process, thereby denying the defendant his constitutional right to a fair trial.” McVeigh, 153 F.3d at 1181. Reversal of a conviction will occur only “where publicity ‘created either a circus atmosphere in the court room or a lynch mob mentality such that it would be impossible to receive a fair trial.’ ” Goss v. Nelson, 439 F.3d 621, 628 (10th Cir. 2006), (quoting Hale v. Gibson, 227 F.3d 1298, 1332 [10th Cir. 2000]); McVeigh, 153 F.3d at 1181.
For its part, in its most recent review of a presumed prejudice question, the United States Supreme Court has identified seven relevant factors to be evaluated: (1) media interference with courtroom proceedings; (2) the magnitude and tone of tire coverage; (3) the size and characteristics of the community in which tire crime occurred; (4) the amount of time that elapsed between the crime and the trial; (5) the jury’s verdict; (6) the impact of the crime on the community; and (7) the effect, if any, of a codefendant’s publicized decision to plead guilty. See Skilling v. United States, 561 U.S. 358, 381-85, 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010); United States v. Mitchell, 752 F. Supp. 2d 1216, 1220 (D. Utah 2010) (recognizing, applying Skilling factors).
The federal appellate courts have been split on the appropriate standard of review for presumed prejudice claims.
The Tenth and Fifth Circuits apply de novo review, based on the directive from Sheppard relied upon by defendants here: appellate courts must conduct an “independent evaluation” of the circumstances. See McVeigh, 153 F.3d at 1179; United States v. Skilling, 554 F.3d 529, 557-58 (5th Cir. 2009), aff'd in part, vacated in part, and remanded by 130 S. Ct. 2896, 177 L. Ed. 2d 619 (2010).
But a majority of the federal circuits, all but one in an opinion filed before Skilling was decided by the United States Supreme Court, have reviewed presumed prejudice claims for abuse of discretion. See United States v. Misla-Aldarondo, 478 F.3d 52, 58-59 (1st Cir. 2007); United States v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010); United States v. Inigo, 925 F.2d 641, 654-55 (3d Cir. 1991); United States v. Higgs, 353 F.3d 281, 307-09 (4th Cir. 2003); United States v. Jamieson, 427 F.3d 394, 412-13 (6th Cir. 2005); United States v. Nettles, 476 F.3d 508, 513-15 (7th Cir. 2007); United States v. Rodriguez, 581 F.3d 775, 784-86 (8th Cir. 2009); United States v. Collins, 109 F.3d 1413, 1416 (9th Cir. 1997); Untied States v. Langford, 647 F.3d 1309, 1319, 1332-34 (11th Cir. 2011).
The Montana Supreme Court recently addressed tire standard of review question in State v. Kingman, and it elected to follow the abuse-of-discretion majority. 362 Mont. 330, 347, 264 P.3d 1104 (2011). The court acknowledged the position of the Tenth and Fifth Circuits, but it held that they failed to offer a “satisfactory explanation for why a trial court is accorded greater deference in evaluating actual prejudice than it is accorded in evaluating presumed prejudice.” 362 Mont. at 346. It reasoned that an abuse of discretion standard is more appropriate than de novo review because the “trial judge is uniquely positioned to assess whether a change of venue is called for due to prejudice in the community.” 362 Mont. at 347.
We disagree with tire Montana Supreme Court and the apparent majority among the federal appellate courts; we do see room for difference in the standard of review applied to presumed prejudice and actual prejudice claims, because presumed prejudice does not consider voir dire conducted in the presence of die trial judge. But we also disagree with the Tenth and Fifth Circuits.
In our view, a mixed standard of review must apply to a presumed prejudice challenge on appeal. The factors enumerated by the United States Supreme Court in Skilling require fact findings, whether explicit or necessarily implied, that we must review for support by substantial competent evidence in the record. If such evidence exists, we defer on the fact finding. However, overall weighing of the factors calls for a conclusion of law, and we must review the conclusion of law under a de novo standard.
We hasten to note that this pattern of review is far from revo-lutionaiy. Such a mixed standard is commonplace. It governs our evaluation of the voluntariness of a criminal defendant’s confession and the existence of probable cause or reasonable suspicion, for example. Moreover, it is a close analytical relative of the way in which our examination of district court judge decisions for abuse of discretion has evolved:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or tire exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594, 182 L. Ed. 2d 205 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
In other words, even our deferential abuse of discretion standard presupposes unlimited review of any legal conclusion upon which a discretionaiy ruling is based. See Gonzalez, 290 Kan. 747, Syl. ¶ 3; see also State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 (2007) (discretionaiy decision must be within trial court’s discretion, take into account applicable legal standards); State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (application of abuse of discretion standard of review does not make mistake of law beyond appellate correction).
We now turn to examination of the Skilling presumed prejudice factors in this specific case, as of the three points in time when Judge Clark rejected a defense motion for change of venue.
First Motion for Change of Venue
Judge Clark’s rulings on the three motions for change of venue were nothing if not pithy. He did not expressly mention the possibility of presumed prejudice rather than actual prejudice, and he made no discrete factual findings in support of any decision on presumed prejudice.
But, on the record before us, defendants never sought a more complete recitation or writing to explain Judge Clark’s venue rulings; and, if they thought the findings were insufficient for appellate review, they had an obligation to do so. See Fischer v. State, 296 Kan. 808, 825, 295 P.3d 560 (2013) (Notwithstanding district judge’s duties under Supreme Court Rule 165 [2013 Kan. Ct. R. Annot. 265], “a party also has tire obligation to object to inadequate findings of fact and conclusions of law in order to preserve an issue for appeal because this gives the trial court an opportunity to correct any findings or conclusions that are argued to be inadequate.”). We therefore assume that Judge Clark made the necessary factual findings to support his decision to deny a change of venue on any and all theories. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012) (when party fails to object to adequacy of district judge’s findings, conclusions, appellate court can presume judge found all facts necessary to support judgment).
The first factor to be examined for presumed prejudice under Skilling is media interference with courtroom proceedings. As mentioned above, there is no suggestion in the record that any media representative interfered with courtroom administration in this case at any time, including the period leading up to Judge Clark’s consideration of the first motion for change of venue. In each of the cases in which the United States Supreme Court has presumed prejudice 'and overturned a conviction, it did so in part because the prosecution’s “ ‘atmosphere . . . was utterly corrupted by press coverage.’ ” Skilling, 561 U.S. at 380. There was no such atmosphere here and this factor weighed against presuming prejudice at the time of the ruling on the defendants’ first motion.
The second Skilling factor is the magnitude and tone of the coverage. The magnitude of the coverage of the crimes and this prosecution was extremely high. But the Sixth Amendment does not demand juror ignorance. Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Goss, 439 F.3d at 627. “[Sjcarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.” Irvin, 366 U.S. at 722. For these reasons, “[e]xtensive pre trial media coverage of a crime alone has never established prejudice per se.” State v. Dunn, 243 Kan. 414, 424, 758 P.2d 718 (1988) (citing State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842 [1987]; State v. Porter, 223 Kan. 114, 117, 574 P.2d 187 [1977]). “ ‘[P]retrial publicity—even pervasive, adverse publicity—does not inevitably lead to an unfair trial.’ ” Skilling, 561 U.S. at 384 (quoting Nebraska Press Assn. v. Stuart, 427 U.S. 539, 554, 96 S. Ct. 2791, 49 L. Ed. 2d 683 [1976]).
Our review of the tone of at least the mainstream press coverage likely to reach a wide audience leads us to the conclusion that it was more factual than gratuitously lurid. See United States v. Angiulo, 897 F.2d 1169, 1181 (1st Cir. 1990) (where media coverage tends to be more “factual as opposed to inflammatory or sensational, this undermines any claim for a presumption of prejudice”). Although the coverage occasionally disclosed facts that would be inadmissible at trial, the State argues persuasively that some evidence of the victims’ good character and community involvement and of R. Carr’s criminal behavior would later be properly admitted—for example, the teaching and youth leadership of Heather M., Aaron S., Jason B., and Holly G. and the dog fighting and drug sales of R. Carr. Further, the United States Supreme Court has clarified that the presumed prejudice doctrine “cannot be made to stand for the proposition that juror exposure to information about a state defendant’s prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.” Murphy v. Florida, 421 U.S. 794, 799, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975); see Stafford v. Saffle, 34 F.3d 1557, 1566 (10th Cir. 1994) (pervasive pretrial publicity relating to defendant’s prior conviction for killing six people during armed robbery not presumptively prejudicial; “nothing in the record to suggest that this publicity was anything other than factual reporting”); United States v. Abello-Silva, 948 F.2d 1168, 1177 (10th Cir. 1991) (no prejudice presumed when press coverage consisted primarily of facts gathered from public records, pretrial hearings); United States v. Flores-Elias, 650 F.2d 1149, 1150 (9th Cir. 1981) (fact-based publicity focusing largely on victims, their un fortunate plight did not establish prejudice against defendant so great that fair, impartial trial not possible).
Finally, as we have observed many times when considering a defendant’s challenge to the admission of gruesome photographs of a crime scene or an ensuing autopsy of a victim into evidence, gruesome crimes give rise to gruesome photographs. See, e.g., State v. Green, 274 Kan. 145, 148, 48 P.3d 1276 (2002) (“Gruesome crimes result in gruesome photographs.”). Likewise, a quadruple execution-style homicide and an attempted first-degree premeditated murder preceded by hours of coerced sex acts and robberies naturally gives rise to press coverage that some may fairly characterize as at least occasionally sensational. It can hardly help but be so. See State v. Ruebke, 240 Kan. at 500-01 (court unwilling to adopt pretrial publicity rule that individual can commit crime so heinous “that news coverage, generated by that act will not allow the perpetrator to be brought to trial”). Yet, overall, we conclude that the primarily factual tone of the press coverage reviewed by Judge Clark at the time of the defendants’ first motion compensated for its sheer magnitude, and the second Skilling factor did not weigh in favor of presumed prejudice.
The third Skilling factor, the size and characteristics of the community in which the crimes occurred, did not weigh in favor of granting the defendants’ first motion for change of venue on the ground of presumed prejudice. Laying claim to 452,000 residents and the largest city in Kansas, Sedgwick County had the largest population in the state from which to draw potential jurors. Compare Skilling, 561 U.S. at 382 (large Houston population, with 4.5 million potential jurors, minimized potential for presumed prejudice) and Mu'Min v. Virginia, 500 U.S. 415, 429, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991) (potential for prejudice mitigated by size of metropolitan Washington, D.C., statistical area; population of more than 3 million among whom hundreds of murders committed each year), with Rideau, 373 U.S. at 724-25 (recognizing greater potential for prejudice in parish with 150,000 residents, where confession broadcast to audience of nearly 100,000 over 3-day period). The United States Supreme Court and at least one federal district court and one state supreme court have noted population sizes similar to Sedgwick County on the way to concluding that the risk of prejudice was diminished. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1044, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991) (reduced likelihood of prejudice when venire drawn from pool of more tiran 600,000); United States v. Diehl-Armstrong, 739 F. Supp. 2d 786, 793-94, 807 (W.D. Pa. 2010) (no presumed prejudice, in part because jury drawn from community with total population of 545,615); State v. Gribble, 165 N.H. 1, 19-20, 66 A.3d 1194 (2013) (potential for prejudice mitigated by juiy pool of more than 400,000 residents).
The fourth Skilling factor is the time that elapsed between the crime and the trial. At the time tire first motion to change venue was ruled upon, 17 months had passed since the crimes were committed. Approximately 3 and 1/2 months remained before voir dire would begin. In the ordinary case, one might expect these time frames to mean that public interest in the crimes and the defendants had begun to wane and that it would continue to do so. See United States v. Lehder-Rivas, 955 F.2d 1510, 1524 (11th Cir. 1992) (“The substantial lapse of time between tire peak publicity and the trial also weighs against a finding of prejudice.”) (citing Nebraska Press Ass’n, 427 U.S. at 554); State v. Sanger, 108 Idaho 910, 913, 702 P.2d 1370, 1373 (Ct. App. 1985) (lapse of 17 months substantially minimizes prejudice). But Dahl testified about the staying power of tire relevant press coverage and the extreme public opinions it fostered. Although she expected her surveys to demonstrate marked dissipation by spring 2002, she found less tiran expected. We consider this factor inconclusive on presumed prejudice at the time Judge Clark ruled on the defendants’ first motion for change of venue.
The jury’s verdict is tire fifth Skilling factor. It was unknown at the time that Judge Clark ruled on the defendants’ first motion for change of venue.
The sixth Skilling factor is the impact of tire crimes on the community.
The defendants’ evidence in support of their first motion included strongly hostile statements by members of the public in response to press coverage of the crimes and the prosecution, typ ically appearing in reader comments sections or on websites, at least some of which appear to have been sponsored by extreme and/or racist groups. It is difficult to extrapolate from these individual comments to the impact on the public as a whole. See Gribble, 66 A.3d at 1208 (defendant’s reliance on articles quoting residents who expressed anger, bewilderment, heartbreak over crimes “fails to demonstrate. . . how the sentiment expressed by a small number of residents in a county with over 400,000 residents is indicative of presumed prejudice in the potential jury pool”). And the Supreme Court has observed that venue changes have been granted in highly charged cases like “the prosecution arising from the bombing of the Alfred P. Murrah Federal Office Building in Oklahoma City,” while courts have properly denied such requests in other “cases involving substantial pretrial publicity and community impact, for example, the prosecutions resulting from the 1993 World Trade Center bombing . . . and the prosecution of John Walker Lindh, referred to in die press as the American Taliban.” Skilling, 561 U.S. at 378 n.11.
Still, certain press stories collected by Dahl and entered as exhibits in the evidentiary hearing on the defendants’ first motion documented more widespread public reaction to the crimes. For example, the Wichita Eagle reported on increased numbers of security system purchases in the wake of the Birchwood home invasion. We conclude that this sixth factor weighed in favor of presumed prejudice at the time Judge Clark considered the defendants’ first motion for change of venue.
The sevendi Skilling factor, publicity given to a codefendant’s confession, would never be applicable in this case, because neither defendant confessed to any of the crimes with which they were jointly charged. The pretrial publicity before Judge Clark at the time of the first motion thus lacked the smoking-gun type of information die Supreme Court has found to be uniquely prejudicial. See Rideau, 373 U.S. at 726 (publicity given to filmed confession “in a very real sense was Rideau’s trial—at which he pleaded guilty”); Sheppard v. Maxwell, 384 U.S. 333, 338-39, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966) (discussing impact of reports of defendant’s refusal to take lie detector test); Irvin v. Dowd, 366 U.S. 717, 725-26, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961) (discussing prejudice from defendant’s offer to plead guilty to avoid death penalty). The absence of publicity about smoldng-gun evidence weighed against presumed prejudice at the time the defendants’ first motion was considered. See Skilling, 561 U.S. at 382-83 (lack of smoking-gun type of evidence in pretrial coverage made it less memorable, mitigated prejudgment).
Our review of all of the Skilling factors at the time of the first motion leads us to conclude that, on balance, there was no presumed prejudice compelling Judge Clark to transfer venue of this case to another county.
We are not persuaded by the defendants’ reliance upon Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005), to support their argument for presumed prejudice. In that case, two law enforcement officers, Dennis Doty and Phil Trust, were shot and killed while attempting to execute an arrest warrant for defendant Jackson Chambers Daniels, Jr.
“The murders of Doty and Trust generated extensive and nearly continuous publicity immediately after the shootings and again before Daniels’s trial. [Citation omitted.] Articles described SWAT team searches of the neighborhood where Daniels was hiding. [Citation omitted.]
“News accounts described the perpetrator as a Black paraplegic, and Daniels was identified in press accounts as the killer from the very beginning.
“Although the publicity diminished after Daniels’s arrest, it resumed as trial approached. Three months before the trial, news articles covered the local school board’s proposal to rename its football stadium in honor of officer Doty. One month before Daniels’s trial was to begin, on the anniversary of tire killings, a statue commemorating fallen police officers was unveiled by the county. The publicity surrounding tire memorial and its unveiling ceremony largely referred to officers Trust and Doty. The memorial statue, standing nine feet tall, was located across tire street from the Riverside County courthouse where Daniels was tried.
“Based on our review of dre California Supreme Court’s findings, the public’s response to dris publicity clearly amounted to a ‘huge’ wave of public passion. As the California Supreme Court described it, police stations were ‘deluged’ with calls from citizens offering tips on the investigation and offering to establish a memorial fund. In addition, local newspapers printed numerous letters from readers calling for Daniels’s execution. The officers were turned into ‘posthumous celebrities,’ and approximately three thousand people attended tiieir funerals. That the news coverage saturated the county is reflected in the fact drat eighty- seven percent of the jury pool recognized the case from the media coverage. Two-thirds of those empaneled remembered the case from the press accounts-some recalled that the suspect was a Black paraplegic, others recalled that police officers were shot, and two jurors remembered Daniels by name.
“The press accounts did not merely relate factual details, but included editorials and letters to the editor calling for Daniels’s execution. In addition, news articles reflected the prosecution’s theory of the case by attributing the killings to Daniels’s desire to escape justice. Also well-publicized by the press was Daniels’s past criminal offenses, including an arrest for shooting at a police officer. Such information was highly prejudicial and would not have been admissible at the guilt phase of Daniels’s trial.” 428 F.3d 1211-12.
Based on these facts, the Ninth Circuit presumed prejudice and held that “[t]he nature and extent of the pretrial publicity, paired with the fact that the majority of actual and potential jurors remembered the pretrial publicity, warranted a change of venue,” and the refusal to transfer the case “violated Daniels’s right to a fair and impartial jury and thus, his right to due process.” 428 F.3d at 1212.
The defendants are correct that their case and Daniels shared certain characteristics—extensive coverage and citizen awareness; publication of reader viewpoints, some of which demanded vengeance for the victims’ murders; and reporting of some facts that would be inadmissible at trial. But the impact on and response from the community was considerably greater in Daniels, where the victims were police officers killed in the line of duty, and community sentiment was so strong that monuments were constructed in their honor.
We also are not persuaded by Daniels because it appears to be somewhat behind the United States Supreme Court’s most recent discussion of presumed prejudice in Skilling. Had the judges who decided Daniels had the benefit of Skilling at the time they filed their opinion, they may not have relied so heavily on extensive media coverage and a high level of community familiarity to reach their result. Skilling makes clear that more is needed before the Sixth Amendment requires a change of venue because of presumed prejudice.
Daniels also appears to be out of step among other Ninth Circuit decisions. See Hayes v. Ayers, 632 F.3d 500, 509 (9th Cir. 2011) (no presumed prejudice even though “stories about [defendant Royal Kenneth] Hayes were unflattering and included inadmissible evidence”; stories “contained no confession or other blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight”); Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998) (no presumed prejudice in death penalty case despite stories portraying victim as sympathetic, disclosing defendant’s criminal history; coverage accurate, factual); Harris v. Pulley, 885 F.2d 1354 (9th Cir. 1988) (no presumed prejudice in death penalty case despite media coverage of defendant’s confession, prior conviction for manslaughter, parole violations; editorials, letters called for defendant’s execution). At least one district court in the Ninth Circuit has categorized Daniels as an “extreme case likely to invoke strong and lasting impressions” of the defendant because he was “a cop killer, he was hunted by a SWAT team, and one of the men he killed was such an outstanding police officer that his name warranted special public recognition.” United States v. Celestine, 3:09-CR-00065 JWS, 2009 WL 3676497, at *5 (D. Alaska 2009) (unpublished opinion).
The pretrial publicity at the time of the defendants’ first motion, although sustained and unflattering to the defendants, had not made the prosecution into a circus or created a lynch mob mentality. See Stafford, 34 F.3d at 1566 (presumed prejudice appropriate only when publicity created circus-like atmosphere, created lynch mob mentality throughout venire). There was no error in Judge Clark’s failure to grant the defendants’ first motion for change of venue on a presumed prejudice basis.
Second Motion for Change of Venue
Our evaluation of presumed prejudice from the vantage point of tire second motion for change of venue—considered by Judge Clark in early August 2002 after several television stations aired the Kline ad and secondary coverage of the controversy it generated—changes little. We need only reexamine the second and fourth Skilling factors, the magnitude and tone of coverage and the timing of the crime and trial.
We acknowledge that these two factors were affected by the advertisement and resulting coverage, but, we think, only marginally. Although responsible press outlets had refrained from referring to either of the defendants as a murderer before the ad ran, we are confident that the ad’s photograph and reference to R. Carr by name as the murderer of the quadruple homicide victims would have been recognized by the vast majority of potential jurors as the overheated campaign pitch it was. There was minimal danger of it being regarded as reliable journalism. As counsel for R. Carr asserted during the hearing on the second motion, the ad was a poor excuse for political speech; but reasonably discerning potential jurors would have recognized that as well.
On the fourth Skilling factor, the timing of the crime and trial did not change. However, the ad and stories about its effect on the case and on the primary race fell 2 months closer to the beginning of jury selection than the hearing on the first motion. Although they may have ratcheted up public anticipation of the trial somewhat sooner than could have been expected in the ordinary course, eventually the ordinary course was bound to be followed. Again, sensational crimes inevitably produce at least some breathless press, but the amount attributable to the Kline ad and its secondary coverage was negligible in the grand scheme before us.
There was no presumed prejudice for Judge Clark to recognize by granting the defendants’ second motion for change of venue.
Third Motion for Change of Venue
The defendants’ third motion came after the completion of jury selection. In the defendants’ view, tire process of general and individual voir dire, the strikes for cause and the peremptory strikes, although executed in an orderly fashion, had confirmed their worst fears. They contended they were in the center ring at the circus, where a fair trial would be impossible.
This is the essence of the doctrine of presumed prejudice. If it exists, then, by definition, the problem of damning pretrial publicity and the public opinions on guilt it has spawned are not amenable to correction. No amount of juror education or admonition or instruction will fix them. No number of seemingly sincere assurances by a venire member that he or she can and will put aside preconceived ideas about the defendants’ culpability can be believed.
We simply cannot go there. When we reexamine the seven Skill-ing factors as of the time of the defendants’ third motion, again, we do not believe that Judge Clark erred because prejudice should have been presumed. The press still was not running amok in the courtroom. Judge Clark maintained appropriate control. Although the jury questionnaire responses and the content of individual voir dire confirmed Dahl’s earlier surveys showing that familiarity with pretrial publicity was wide and deep, defendants did not even claim that the tone of the coverage had altered in any significant way to their detriment. The other Skilling factors, on the record before us, also were static or remained inapplicable. The defendants and their counsel did not show that “an irrepressibly hostile attitude pervaded the community,” Stafford, 34 F.3d at 1566, requiring Judge Clark to transfer the case to a different county.
Even now, with the benefit of the full record of the trial, including the verdict, we cannot say that prejudice should be presumed. In Skilling, the Court observed that the jury’s acquittal of the defendant on several insider-trading charges was of “prime significance,” weighing heavily against such prejudice. 561 U.S. at 383. Here, the juiy acquitted R. Carr’s codefendant, J. Carr, of all charges stemming from the Schreiber incident despite media coverage connecting both defendants to all three incidents. “It would be odd for an appellate court to presume prejudice in a case in which jurors’ actions run counter to that presumption.” Skilling, 561 U.S. at 383-84 (citing United States v. Arzola-Amaya, 867 F.2d 1504, 1514 [5th Cir. 1989]). We agree.
Actual Prejudice
We now turn to actual prejudice, also a constitutional concern under the Sixth and Fourteenth Amendments and § 10 of the Kansas Constitution Bill of Rights.
“In reviewing for actual prejudice, we examine . . . whether the judge had a reasonable basis for concluding that the jurors selected could be impartial.’ ” McVeigh, 153 F.3d 1166, 1183 (10th Cir. 1998) (quoting United States v. Abello-Silva, 948 F.2d 1168, 1177-78) (10th Cir. 1991). The crucible for determination of actual prejudice is voir dire. Foley v. Parker, 488 F.3d 377, 387 (6th Cir. 2007) “The court must review the media coverage and the substance of the jurors’ statements at voir dire to determine whether a community-wide sentiment exists against the defendant.” 488 F.3d at 387.
The appellate standard of review of a district judge’s decision on actual prejudice is abuse of discretion. Jury selection is a task “particularly within the province of the trial judge.” Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976). Thus, when a district judge rules that a juror can set aside pretrial publicity and decide the case on the evidence, his or her ruling is entitled to special deference:
“Appellate courts making after-the-fact assessments of the media’s impact on jurors should be mindful that their judgments lack the on-the-spot comprehension of the situation possessed by trial judges.
“Reviewing courts are properly resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty. [Citation omitted.] In contrast to the cold transcript received by the appellate court, the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member’s fitness for jury service. We consider the adequacy of jury selection . . . therefore, attentive to the respect due to district-court determinations of juror impartiality and of the measures necessary to ensure that impartiality.” Skilling, 561 U.S. at 386-87.
“Negative media coverage by itself is insufficient to establish actual prejudice.” Foley, 488 F.3d at 387. And the fact that jurors entered the box with preconceived opinions of guilt alone does not overcome a presumption of juror impartiality. “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961). “The relevant question is not whether tire community remembered the case, but whether the jurors at . . . trial had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984); Goss v. Nelson, 439 F.3d 621, 627 (10th Cir. 2006) (defendant’s right to impartial tribunal satisfied when jurors can base decision on evidence).
In this case, although Judge Clark was brief in his ruling on the defendants’ third motion for change of venue, advanced at the conclusion of jury selection, his statement referenced his assessment that, despite widespread pretrial publicity, an unbiased jury had been selected in Wichita. Eight of the 12 jurors eventually seated in the defendants’ trial held no prior opinions on guilt. The four who admitted to forming such opinions ultimately said that they could set their opinions aside. See Hale v. Gibson, 227 F.3d 1298, 1320 (10th Cir. 2000) (defendants must show more than juror’s preconceived notion; defendant must show juror’s notion fixed). On their face, these voir dire responses provided Judge Clark with a reasonable basis for his ruling. See Gardner v. Galetka, 568 F.3d 862, 890 (10th Cir. 2009) (no actual prejudice despite 55 percent of prospective jurors with previous opinion on guilt, including four of 12 seated; court spent 5 days examining prospective jurors about knowledge of facts, ability to set aside opinions of guilt).
The defendants argue, nevertheless, that neither Judge Clark nor we can rely on the jurors’ declarations of impartiality, and there is some authority for setting aside juror declarations of impartiality in extreme cases.
In Irvin, the United States Supreme Court recognized that adverse pretrial publicity can create so much prejudice in a community that juror declarations of impartiality cannot be credited. Irvin involved a situation in which headlines before defendant Leslie Irvin’s trial “announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess.” 366 U.S. at 725. On tire day immediately before trial began, newspapers carried a story “that Irvin had orally admitted the murder of. . . (the victim in this case) as well as ‘the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelnrina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky.’ ” 366 U.S. at 726. The press also reported that Irvin had offered to plead guilty in exchange for a sentence other than death. In addition, the record in Irvin evidenced difficulty in impaneling his jury. The court was forced to excuse 268 of430 potential jurors because they expressed immovable opinions on Irvin’s guilt. 366 U.S. at 727. Of the jurors ultimately seated, eight of 12 had admitted to possessing some preconceived opinion on his guilt. Under these circumstances, the Court held that the trial judge erred in accepting the jurors’ representations about their ability to be impartial:
“The influence that lurks in an opinion once formed is so persistent that it unconsciously fights detachment from the mental processes of the average man. [Citation omitted.] Where one’s life is at stake—and accounting for the frailties of human nature—we can only say that in the light of the circumstances here the finding of impartiality does not meet constitutional standards. Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with the material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief. One said that he ‘could not. . . give the defendant the benefit of the doubt that he is innocent.’ Another stated that he had a ‘somewhat’ certain fixed opinion as to petitioner’s guilt. No doubt each juror was sincere when he said that he would be fair and impartial to petitioner, but psychological impact requiring such a declaration before one’s fellows is often its father. Where so many, so many times, admitted prejudice, such a statement of impartiality can be given little weight. As one of the jurors put it, ‘You can’t forget what you hear and see.’ With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other tiran one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt.” 366 U.S. 727-28.
Since Irvin, the Supreme Court has twice considered whether a juror’s declaration of impartiality should be discounted.
In Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), the jury convicted defendant Jon E. Yount of first-degree premeditated murder and rape of one of his female students. On direct appeal, the state court reversed Yount’s conviction and remanded for a new trial. He was again convicted after retrial, and he claimed that pretrial publicity deprived him of his right to trial by a fair and impartial juiy. The publicity leading up to his second trial disclosed the result of his first trial, his confession, and his earlier plea of temporary insanity—all information not admitted into evidence at the second trial. Voir dire demonstrated that all but 2 of 163 veniremen had heard of the case, and that 126 of the 163 would carry an opinion of guilt into the jury box. 467 U.S. at 1029. Eight of the 14 seated jurors and alternates admitted that they had formed an opinion of guilt. 467 U.S. at 1029-30. Nevertheless, tire Court distinguished Irvin and affirmed Yount’s conviction, because jurors’ opinions of guilt had weakened considerably in the 4 years that passed between the first trial and the second. “Many veniremen, of course, simply had let the details of the case slip from their minds,” the Court said. 467 U.S. at 1033. For others, “time had weakened or eliminated any conviction they had had . . . .” Ultimately, “the voir dire resulted in selecting those who had forgotten or would need to be persuaded again.” 467 U.S. at 1033-34.
Likewise, in Murphy v. Florida, 421 U.S. 794, 800-01, 95 S. Ct. 2031, 44 L. Ed. 2d 589 (1975), the Supreme Court refused to set aside juror declarations of impartiality when voir dire responses did not reflect the wave of community hostility present in Irvin.
Relying on this authority, the Tenth Circuit also has refused to set aside juror declarations of impartiality. In Hale v. Gibson, 227 F.3d 1298, 1333 (10th Cir. 2000), 6 of 12 jurors seated had held some opinion of the defendant’s guilt. 227 F.3d at 1333. But all confirmed their ability to be fair and impartial in response to inquiry from tire trial court. 227 F.3d at 1332. The panel distinguished Irvin, observing that voir dire did not uncover “an atmosphere of hostility toward the defendant, nor did the trial court have a difficult time in seating the jury.” 227 F.3d at 1333.
The Tenth Circuit reached the same result in Gardner, where 4 of 12 jurors had earlier formed an opinion of guilt. 568 F.3d at 887-90. The panel again distinguished Irvin, in part because protective measures taken by the trial court judge during jury selection bolstered the credibility of juror declarations of impartiality. Gardner, 568 F.3d at 889-90.
We are satisfied that this case is not as extreme as Irvin, and we decline the defendants’ invitation to second-guess jurors’ assurances that they could disregard pretrial publicity and their previous impressions. As discussed in relation to presumed prejudice, there was no smoking-gun reporting in this case. The jury pool here was far less polluted by preconceptions on guilt; in Irvin, 90 percent of potential jurors believed the defendant was guilty. Here, Judge Clark was not forced to excuse 60 percent of the jury pool at the outset. The number of jurors ultimately seated who had to set aside their earlier opinions was half of that who would have had to do so in Irvin; and none of them expressed community outrage. We also are reassured here by the protective measures taken by Judge Clark, including use of jury questionnaires and individual voir dire.
We do find it necessaiy to express a word of caution on the conduct of sound voir dire before leaving the subject of actual prejudice. Our review of the individual voir dire in this case reveals several instances when Judge Clark appeared to have taken it upon himself to rehabilitate a venire panel member. This effort typically took the form of summarizing the panel member s previous responses to questions in a way that would minimize evidence of bias and then aslring for confirmation. In addition, the questioning prosecutor used leading questions on several occasions to induce panel members to voice their ability to be impartial. These behaviors by a judge or a prosecutor cloud appellate evaluation of the record on the actual prejudice, particularly the difficulty of finding unbiased jurors, because we must be mindful of the unintended influence a trial judge and a lawyer for the State may have over lay jurors intimidated by the possibility of participation in deciding a difficult case in an unfamiliar environment. See Skilling, 561 U.S. at 455-56 (Sotomayor, J., concurring and dissenting) (criticizing trial judge for addressing topics of juror bias in cursoiy fashion, failing to use probing, open-ended questions about jurors’ opinions, beliefs).
We urge our district judges and all counsel to refrain from suggesting panel member answers that will defeat challenges for cause. Avoidance of these sorts of interactions is necessary to merit the deference inherent in our abuse of discretion review of a judge’s ultimate decision on actual prejudice. See Skilling, 561 U.S. at 447 (Sotomayor, J., concurring and dissenting) (“In particular, reviewing courts are well qualified to inquire into whether a trial court implemented procedures adequate to keep community prejudices from infecting the jury. If the juiy selection process does not befit the circumstances of the case, the trial court’s rulings on impartiality are necessarily called into doubt.”).
Statutory Claims
We have previously interpreted our state venue change statute to say that the “burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality.” State v. Anthony, 257 Kan. 1003, 1013, 898 P.2d 1109 (1995).
The first statutory claim by the defense is that we have interpreted and applied K.S.A. 22-2616(1) in an unconstitutional manner. The second is that Judge Clark abused his discretion in denying the defendants’ repeated K.S.A. 22-2616(1) motions for change of venue.
On the constitutional challenge to our interpretation and application of the statute, J. Carr has relied on language from Sheppard: “[Tjhere is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should . . . transfer it to another county not so permeated with publicity.” Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S. Ct. 1507, 16 L. Ed. 600 (1966). He argues that this language establishes a standard of proof of “reasonable likelihood” of unfair trial under the Sixth Amendment. In contrast, he asserts, Kansas courts have elevated the statutory standard of proof from “reasonable likelihood” to “absolute certainty.”
We disagree. The standard of proof in our precedent is “reasonable certainty” that the defendant cannot obtain a fair trial in the ordinary venue. Anthony, 257 Kan. at 1013; see State v. Lumbrera, 252 Kan. 54, 57, 845 P.2d 609 (1992); State v. Ruebke, 240 Kan. 493, 499, 731 P.2d 842 (1987). This is wholly consistent with that part of federal constitutional law on which J. Carr focuses. See Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir. 1980) (Supreme Court decisions create standard by which Sixth Amendment compels change of venue when party “adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to render virtually impossible a fair trial by an impartial jury drawn from that community”); Williams v. Vasquez, 817 F. Supp. 1443, 1473 (E.D. Cal. 1993), aff'd. Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995) (Sixth Amendment due process considerations require change of venue if trial court is “unable to seat an impartial jury because of pretrial publicity”); United States v. Campa, 459 F.3d 1121, 1143 (11th Cir. 2006) (venue change warranted only upon showing by defendant that widespread, pervasive pretrial publicity saturates community, “reasonable certainty that such prejudice will prevent him from obtaining a fair trial by an impartial jury”); see also Fed. R. Crim. P. 21(a) (“[T]he court must transfer the proceeding against that defendant to another district if tire court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.”); 33 A.L.R.3d 17, § 3(a) (numerous federal, state courts hold change of venue required only when “the prospects of tlie defendant not receiving a fair and impartial trial are “reasonably certain,” or “likely”).
Moving to the abuse of discretion claim, we have established a pattern of evaluating whether the level of prejudice warrants a venue change under the statute by examining nine factors. State v. McBroom, 299 Kan. 731, 750, 325 P.3d 1174 (2014). Several of the factors are similar to those set out in Skilling for presumed prejudice analysis. We review:
“[1] tlie particular degree to which the publicity circulated throughout the community; [2] the degree to which tlie publicity or that of a like nature circulated to other areas to which venue could be changed; [3] the length of time which elapsed from the dissemination of the publicity to the date of trial; [4] tlie care exercised and tlie ease encountered in the selection of the jury; [5] the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or tlie trial jurors; [6] the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; [7] the connection of government officials with the release of the publicity; [8] the severity of tlie offense charged; and [9] the particular size of the area from which the venire is drawn.” State v. Higgenbotham, 271 Kan. 582, 592, 23 P.3d 874 (2001) (citing State v. Jackson, 262 Kan. 119, 129, 936 P.2d 761 [1997]).
This court originally adopted these factors from an A.L.R. report published in 1970, which examined pretrial publicity as grounds for a venue change. See State v. Ruebke, 240 Kan. at 499-500 (cit ing 33 A.L.R.3d 17, § 2[a]). It has continued to employ them as recently as a few weeks ago. See McBroom, 299 Kan. at 750.
On the record before us, die first, second, fifth, and eighth factors favored transfer of venue out of Sedgwick County.
On the first factor, Dahl’s compilation of press and online publications supported the existence of a high degree of negative publicity circulated throughout the community. The July 2002 Kline advertisement and resulting coverage added to it. On the second factor, Dahl’s comparative telephone surveys demonstrated that the effects from pretrial publicity about the crimes and this case were considerably less pronounced in Wyandotte County. And the Kansas City version of the Kline ad did not name R. Carr or call him a murderer. On the fifth factor, Dahl’s research also showed that a significant percentage of the Sedgwick County jury pool was affected by what they read and heard about the defendants; and four of the trial jurors admitted that they came to the courtroom with opinions favoring guilt. On the eighth factor, the most serious charged offenses could not have been more severe or their potential consequences more irreversible.
The five other factors enumerated for the first time in Ruebke favored denial of the defendants’ motions.
On the third factor, 21 months elapsed between the first rush of publicity in tire immediate aftermath of the crimes and the defendants’ arrests and the beginning of jury selection. Although other spikes in publicity occurred in the interim, it is plain that none ever matched the breadth and intensity of early coverage. On the fourth factor, Judge Clark employed juiy questionnaires and individual voir dire, both of which had a natural tendency to encourage candor from prospective jurors asked about sensitive subjects. A preliminarily qualified group of 60 prospective jurors was assembled without the necessity of examination of tire nine panels of 20 Judge Clark was prepared to call. On the sixth factor, venire panel members who were unable or unwilling to set aside negative publicity about tire defendants or any opinion of guilt such publicity had a role in inducing were excused. On the seventh factor, nothing in the record would support an assertion that representatives of the State had any particular role in publicizing information about the crimes or the case, and the defendants have wisely conceded the point. And, finally, as discussed in relation to the Skilling presumed prejudice factors, the ninth factor of size of the community cut against venue transfer. Wichita exceeds other Kansas cities in population.
Our case precedents also provide useful parallels for this case. See McBroom, 299 Kan. at 750-54 (no error to deny venue change despite survey showing 69.3 percent of respondents believed defendant “probably,” “definitely” guilty); Higgenbotham, 271 Kan. at 593-95 (no error to deny motion to change venue despite defendant’s venue survey of Harvey county residents showing 95.7 percent of respondents recall case with minimal prompting, 60.6 percent of respondents believed defendant “definitely,” “probably” guilty); Jackson, 262 Kan. at 129-32 (no error to deny venue change despite defendant’s survey confirming 89.7 percent of respondents recalled case, 60 percent had already decided defendant “definitely,” “probably” guilty); State v. Anthony, 257 Kan. 1003, 1007, 1014-15, 898 P.2d 1109 (1995) (no error to deny motion to change venue despite defendant’s public opinion poll of Safina residents showing 97.5 percent had heard of case, 63.8 percent believed evidence strong); State v. Swafford, 257 Kan. 1023, 1035-36, 897 P.2d 1027 (1995) (companion case to Anthony, same).
The defendants’ attempt to distinguish these cases because the defendants were not being tried under threat of the death penalty is undercut by our decision in State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001). Verge was a death penalty prosecution.
In that case, defendant Robert L. Verge was convicted of one count of capital murder for the premeditated killings of Kyle and Chiystine Moore in Dickinson County. The defense had engaged Litigation Consultants, Inc., the same firm that prepared the venue survey in this case, to compare potential jurors in Dickinson County to those in Sedgwick County. The results showed 96.7 percent of the Dickinson County respondents could recall the case; 71.7 percent had talked about it; and 64 percent believed Verge was either “definitely” or “probably” guilty. 272 Kan. at 505. These results were similar to those reported in this case—96 percent of Sedgwick County respondents recalled the case and 74 percent held opinions on guilt. In Verge, we affirmed the district judge’s decision not to transfer venue.
Here, given tire mix of evidence on the nine factors we use to apply K.S.A. 22-2616(1) and our consistent caselaw handed down over more than two decades, we cannot say that “no reasonable person” would have agreed with Judge Clark’s decisions on the defendants’ motions for change of venue. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court.”).
The defendants’ statutory claims are without merit.
2.Severance
R. Carr challenges the district court’s repeated refusals to sever the guilt phase of the defendants’ cases, arguing that the error deprived him of his constitutionally protected right to a fair trial.
Additional Factual and Procedural Background
Defendants requested severance of their cases for preliminary hearing. The State opposed severance, saying there was no reason to think at that point that R. Carr and J. Carr would mount antagonistic defenses and that there were no problems with one of them making an incriminating statement that would affect the other. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (codefendant’s confession inculpating accused inadmissible against accused; Confrontation Clause requires defendant charged with crime to have opportunity for cross-examination of declarant). Judge Clark V. Owens II, who was handling the defendants’ case at the time, denied the severance request at the April 6, 2001, hearing on the motion. He said it was important to consider whether Holly G. would have to testify “twice or once.” He also said that analysis of whether the cases should be severed for trial would be “a totally separate issue,” inviting the defense to renew its motion before trial if it still believed severance was necessary and differentiating between the ability of a judge presiding over a preliminary hearing to analyze evidence and that of a jury at trial.
R. Carr filed another motion to sever trial on March 22, 2002. In a supplement to his memorandum in support of the motion filed under seal the same day, he outlined the theory of his defense. The State did not get a copy of this supplement, which stated:
“2. On the evening of December 14, 2000, Reginald Dexter Carr, Jr., and his brother, Jonathan Carr, met at the home of Tronda Adams and Toni Green. Reginald and Jonathan Carr were both traveling in a beige Toyota Camiy belonging to Stephanie Donnelly.
“3. After leaving the Green residence together, Reginald Dexter Carr, Jr. and Jonathan Carr traveled to the apartment complex located at 5400 E. 21st Street in Wichita .... Jonathan Carr dropped off Reginald Dexter Carr, Jr. and left in the beige Toyota. Reginald Dexter Carr, Jr., not wanting to alert Stephanie Don-nelly that he had loaned her car to his brother, left in his (Reginald’s) white Plymouth Fury .... Mr. Reginald Dexter Carr, Jr., traveled around the northern part of Wichita . . . and attempted to sell drugs.
“4. Mr. Jonathan Carr met another individual . . . and . . . went to 12727 East Birchwood and committed the crimes more fully set out in the Amended Complaint/Information ....
“5. Sometime after the commission of the crimes . . . Jonathan Carr located his brother . . . and made arrangements for Reginald Dexter Carr, Jr., to store the property taken from the Birchwood address in Stephanie Donnelly’s apartment at 5400 E. 21st Street, Apt. 819. Prior to the commission of the crimes at the Birchwood address, Reginald Dexter Carr, Jr. had no knowledge of the facts that were about to unfold, nor did he participate in any preparation or plan to effect the same.
“8. . . . Reginald Dexter Carr, Jr., . . . submits there is no forensic evidence that links him to the Dodge Dakota pickup truck, no conclusive forensic evidence that links him to the scene at 12727 Birchwood, no eyewitness accounts that place him at the Birchwood scene or the scene on Greenwich Road where the bodies were discovered.
“9. In contrast, . . . Jonathan Carr is identified by H.G. as being at both the Birchwood address and the scene on Greenwich Road. He is linked to the scene at Birchwood by forensic DNA evidence and implicated by his own statements to Tronda Adams.
“10. Accordingly, . . . should the Defendants ... be tried together, Mr. Reginald Dexter Carr, Jr.’s defense will ... be antagonist[ic] to any defense propounded by his brother, Jonathan Carr.”
At a motions hearing on April 23, 2002, the State requested copies of all documents filed in support of the motion, including the sealed supplement. R. Carr objected to disclosure of the supplement; his counsel said he would rather withdraw it than prematurely disclose his theoiy of defense to the State, even if nondisclosure meant he was left without a factual basis to support the motion to sever. The district judge ultimately ruled that the defense did not have to disclose the supplement, but he did not consider it in support of the motion.
During argument on the motion, R. Carr’s counsel observed that the failure to sever created a Bruton issue because Tronda Adams would testify regarding statements J. Carr made to her about R. Carr. Counsel further argued, without discussing particulars, that the defendants would advance antagonistic defenses. J. Carr’s counsel, Ronald Evans, confirmed that his client’s defense would be antagonistic to R. Carr:
“Judge, there is no way if this case proceeds the way it is now with these brothers being tried together that I cannot prosecute Reginald Carr. That’s true in the first stage, but it’s absolutely true in the second stage ....
“. . . I have to be Reginald’s prosecutor. That adds another prosecutor in the room. There is no way that doesn’t prejudice Reginald.
. . We’re going to get into things on Reginald that there’s no way the State would get to introduce into evidence against him if he was sitting there by himself.”
The prosecutor recognized the danger for prejudice in a joint trial and suggested that two juries could be impaneled.
Regarding Adams’ testimony specifically, the State said that it could easily avoid eliciting objectionable testimony from her. But counsel for J. Carr argued that he would nevertheless need to elicit the objectionable testimony from Adams in furtherance of his client’s defense.
The prosecutor then elaborated on the two-jury suggestion, stating that one jury could be removed from the courtroom for testimony that might be prejudicial to the defendant it was assigned, and then, if the defendants were found guilty of at least one capital crime, their juries could be separated to hear severed penalty phase trials. She said her proposal would solve the problem of how much “time and effort that all would have to place in this case and . . . assure that tire rights of the victims are protected as well as the rights of the defendants].”
R. Carr s counsel opposed the district attorney’s proposal. J. Carr’s counsel said that he was not opposed to the suggestion, but he would have to see the proposal in writing. He also said that “trying to do two juries is going to be more work than severing the case and just doing two trials.”
After a break, the district attorney repeated her proposal but said she was not advocating for severance. “[W]e could adequately, more than adequately, constitutionally protect the rights of the defendants and entitle the State to a fair trial without the necessity for severance,” she said.
The district judge denied the severance motion with leave to refile it if the situation warranted, “especially when all the discovery is closed
J. Carr filed another motion for severance on July 30, 2002, which R. Carr joined. At an August 9, 2002, pretrial conference, Judge Clark heard argument on the motion. Counsel for J. Carr first outlined J. Carr’s theoxy of defense:
“Number one, the defendants have an antagonistic defense. Judge, the clearest way I can put Jonathan Carr’s defense right now is he denies categorically his participation in the events he’s accused of. His defense will be he was in Tronda Adams’ house early the morning of December 15th. His big brother Reggie brought items over, cash, a ring, left those items with him. He was not told of tire crime. He did not participate in the crime. He is prepared to present an alibi to the jury.
“Now, that is as clear as I can make our defense. I can’t think of a way to put it that doesn’t put the State on notice of where we’re going.”
Counsel said that he had not been told the details of R. Carr’s planned defense, but R. Carr’s counsel confirmed his client intended to assert his innocence at trial and to point the finger at J. Carr.
The State argued that the parties had to demonstrate actual prejudice, not mere speculation, to be entitled to severance and demanded both defendants identify specific evidence or make proffers that would demonstrate actual prejudice.
R. Carr cited Adams’ testimony about statements made by J. Carr that would prejudice his client. One of the prosecutors acknowledged that this testimony would constitute a problem under Bruton, 391 U.S. 123. But she argued the State would not be able to introduce the statements at either a joint or separate trial because, absent a waiver, R. Carr’s Fifth Amendment rights would prevent it from doing so. Neither defense counsel responded to this assertion.
J. Carr’s counsel said that, in addition to sponsoring Adams’ testimony, he had planned to put on evidence of R. Carr’s prison record. However, because the court granted R. Carr’s motion in limine to exclude evidence of his record, after the State responded to the limine motion by saying it did not intend to introduce R. Carr’s criminal histoiy under K.S.A. 60-455, J. Carr could not do so in the joint trial. J. Carr’s counsel also said there would be no way relatives of the brothers could testily in a joint trial about which brother was tire leader and which the follower.
Again, Judge Clark refused to sever the proceedings, “for the same reasons . . . stated when it was first raised.”
The State filed successful pretrial motions in limine to prevent defendants from introducing out-of-court statements made by either one of them unless a hearsay exception applied. The State also moved successfully to prevent defendants from introducing evidence of any third party’s guilt for the crimes charged as a result of the Birchwood incident, arguing that Kansas’ third-party evidence rule prohibited a defendant from introducing circumstantial evidence of another’s guilt when the State’s case against the defendant was based on direct evidence. The flaws in these rulings are fully discussed in Section 18 of this opinion.
At trial, J. Carr’s defense was simply to hold the State to its burden of proof and to argue that any crimes proven were committed under the control and influence of his brother, R. Carr. J. Carr did not advance an alibi theoiy on any of the three incidents, that formed the basis of the charges.
On the other hand, R. Carr sought to defend on the basis that his brother had committed the Birchwood crimes with someone else.
During opening statements, R. Carr began his attack on J. Carr. His counsel conceded that R. Carr was guilty of possessing stolen property from the Birchwood home and victims, but he said the evidence would show R. Carr was not guilty of the many Birchwood crimes charged. Instead, he asserted, J. Carr and an unidentified, uncharged black male were present at the Birchwood home while R. Carr was not. R. Carr “spent the . . . late night hours of the 14th and the early morning hours of the 15th of December selling drugs in Wichita.” Counsel continued:
“He was not. . . with his brother until sometime in the neighborhood of 5:00 or 5:30. He, Reginald Carr, learned that Jonathan Carr was located near Tronda Adams’ house, he went there to help his brother, who was in trouble. While there he saw the Dodge Dakota truck, filled with items that had been stolen.
“In an attempt to help his brother, Reginald Carr took those items—he didn’t get into the Dodge Dakota truck, the evidence will be that he’s never been inside the Dodge Dakota truck. The Dodge Dakota truck was driven to Stephanie Don-ley’s apartment complex, not by Reginald, not by Jonathan, but by a third black male.”
J. Carr s counsel objected to this as “argumentative, unsupported by the evidence,” but Judge Clark overruled the objection.
Later that day, during a break in testimony, J. Carrs counsel moved for a mistrial, arguing that the “opening statements illustrate an argument that we’ve made many times early on in this case as to why we needed to be severed from this matter and have a separate trial from Reginald Carr,” and again moved for severance.
Judge Clark overruled the motion for mistrial and did not separately address the renewed motion for severance.
Each defendant continued to push for severance when evidence that pointed to the other defendant was admitted. J. Carr renewed the motion when the State moved the admission of photographs, of the victims’ property found in R. Carr’s possession, including photographs of Schreiber’s watch, Brad H.’s wallet, and Aaron S.’s television. J. Carr also renewed the severance motion when the State admitted evidence of R. Carr’s Buffalino boots, a wallet containing R. Carr’s birth certificate, and a witness statement law enforcement completed while interviewing Walenta’s husband. J. Carr renewed the motion again when he believed R. Carr opened the door for the State to introduce autopsy photographs of Heather M. R. Carr renewed the severance motion when a State expert witness testified to a DNA match between J. Carr and samples recovered from carpet at the Birchwood home.
Judge Clark rejected all of these renewed motions.
J. Carr also renewed the severance motion when the State’s witness discussed procedures for handling consumable DNA samples associated with R. Carr, and again when the State moved to admit the engagement ring recovered from J. Carr. Again, Judge Clark rejected the idea of severance.
During the State’s case, J. Carr contributed to the evidence tending to prove R. Carr’s guilt. During his cross-examination of Officer James Espinoza, for example, J. Carr focused the jury’s attention on property from the Rirchwood residence found in R. Carr’s possession. During cross-examination of Schreiber, J. Carr emphasized that Schreiber could identify only R. Carr as one of the men who kidnapped and robbed him.
“Q. But one thing you are certain of, Mr. Schreiber, let me get this clear. You’ve been certain about this over the last 20 months is Reginald Carr was the driver, is that correct?
“A. Yes.
“[J. Carr’s Counsel:] Q. Okay. No further questions. Thank you very much.”
Before Adams took the stand, J. Carr’s counsel reminded Judge Clark out of the hearing of the jury that R. Carr filed a motion in limine pretrial to exclude certain testimony about him from Adams. J. Carr’s counsel requested “guidance from the Court” about the permissible scope of his cross-examination of Adams.
One of the prosecutors informed the judge that there were two separate areas on which she had instructed Adams. One had to do .with ownership of a weapon given to Adams; J. Carr had mentioned that it belonged to R. Carr. The other area concerned a remark Adams had overheard J. Carr make during a telephone conversation on the morning of December 15: “[Wjhat’s Smoke got me into now?” “Smoke” was a nickname used by R. Carr. The prosecutor said she planned to put on evidence about the gun and telephone calls but “not the statement^] that [J. Carr] made that would in any way implicate Reginald Carr.”
Judge Clark said that evidence from Adams on J. Carr s statements about R. Carr remained inadmissible.
J. Carr s counsel made a proffer of Adams’ excluded testimony by examining her outside the presence of the jury. Adams said J. Carr initially provided her with a silver gun. When J. Carr came to her home on December 11, 2000, he had a black gun, gave it to Adams, and took back the silver gun. He told Adams that the black gun belonged to “Smoke” and the silver gun belonged to him. On December 13, 2000, Adams said J. Carr came over and took the black gun back. Adams also said that she overheard J. Carr say while on the telephone early on December 15: “[W]hat has Smoke got me into?”
J. Carr’s counsel renewed the severance motion again when Judge Clark ordered R. Carr to wear leg and hand restraints in the courtroom during tire guilt phase of the trial. That morning, R. Carr had refused to come to trial. And the Sheriff s Department reported that he was making threats to sheriffs officers. J. Carr’s counsel argued that R. Carr’s misconduct would prejudice his client. He said that Judge Clark was “probably tired of hearing it, but Reginald Carr continues to infect our right to a fair trial.”
One of the prosecutors then brought up examples of bad behavior by R. Carr in the courtroom the day before, “one of which was when [R. Carrs counsel] got up to look at a video, the defendant, Reginald Carr, took his chair, pushed [his counsel’s] chair by the court guards, physically moved his chair knee-to-knee contact with me in the courtroom.” This required court guards “to get up and move him,” she said.
Judge Clark said he had seen R. Carr do nothing in the courtroom “that seems disruptive to the process.” But he ordered the leg and hand restraints as security measures, making provision to shield them from the view of the jury. He again made no ruling on the renewed motion for severance.
Later that afternoon, Donley took the stand. During R. Carr’s cross-examination, counsel attempted to elicit statements R. Carr had made to her about J. Carr the morning of December 15,2000. J. Carr’s counsel objected on hearsay and Bruton grounds and renewed his motion for severance. Judge Clark sustained the objec tions, instructed R. Carr s counsel to avoid the line of questioning, but overruled the motion.
The defendants again argued unsuccessfully that Judge Clark should have severed their prosecutions when they moved for judgment of acquittal at the close of the State’s evidence. They did so again, unsuccessfully, at the close of all evidence admitted in the guilt phase.
J. Carr’s counsel devoted a significant portion of his closing argument on the evidence supporting R. Carr’s guilt. He reminded &e jury that Schreiber identified only R. Carr and that Schreiber’s watch was found in R. Carr’s possession. With regard to the Wal-enta murder, J. Carr defended the reliability of Walenta’s photo array identification of R. Carr.
Earlier in trial, when J. Carr had cross-examined the coroner on the Birchwood crimes, he attempted to establish that only one man fired the shots that killed the Birchwood victims.
“Q. Based on this, in your opinion, would it not be consistent with one shooter moving down the line shooting Headier and shooting Aaron, then shooting Brad and finally shooting Jason?
“A. I can’t comment on that. I can only tell you about the injuries that I found at autopsy.”
J. Carr’s counsel argued during closing that there was only one gun and one shooter:
“And that evidence shows who shot and killed four individuals. That person is Reginald Carr with that .380 black Lorcin handgun. Reginald Carr was not alone. But tlie evidence wiE show who was playing the lead role that night directing things, taking most of the tilings. That person again was Reginald Carr.”
He also reinforced the reliability of Holly G.’s in-court identification of R. Carr:
“[Holly G.J’s eyewitness identification of Reginald Carr is consistent and it’s solid. If you go chronologically through the order in which she talks to law enforcement, you wiE see the same description over and over again.”
And he attempted to explain Holly G.’s failure to identify R. Carr at preliminary hearing:
“Now, at the preliminary hearing she identified Jonathan as the person she picked out of the photo array, not Reginald. But we know Reginald shaved his head and was wearing eyeglasses at the preliminary hearing. And at the time of trial she malees that correction[] and malees the identification.”
J. Carr’s counsel also argued that the property found in R. Carr’s possession and law enforcement’s stop of his Plymouth near the Birchwood residence corroborated other evidence of R. Carr’s involvement in the Birchwood crimes. He then highlighted the State’s DNA evidence, cigar ash evidence, and Holly G’s contraction of HPV.
J. Carr’s counsel also argued that die black handgun connected to all three incidents belonged to R. Carr.
At the conclusion of his argument, counsel for J. Carr admitted to J. Carr’s involvement in some of the charged crimes, but he placed the bulk of moral responsibility on his codefendant brother:
“Please remember that some of these crimes do remain unproven as to Jonathan Carr’s guilt. Some of them he is actually innocent of. Now, just because the cod-efendant Reggie is guilty of all of the charges, just because tire evidence shows regarding Jonathan some involvement on some of the counts, don’t go back there and just check the box guilty all of the above. Please give Jonathan separate consideration on each count. Please consider his guilt or innocence separate from damning evidence against his brother Reginald. It shouldn’t be guilt by association. It should be guilt beyond a reasonable doubt. Remember the testimony and our sole admitted exhibit showed Jonathan was supposed to be on a train to Cleveland from Newton in the early morning hours of the 15th of December. . . . A train that would have taken him back to his family and friends, but a train he never made because of Reggie.”
Standard of Review and Legal Framework
The decision whether to sever a trial is one within the trial court’s discretion. State v. Reid, 286 Kan. 494, 519, 186 P.3d 713 (2008) (citing State v. White, 275 Kan. 580, 589, 67 P.3d 138 [2003]).
Judicial discretion is abused if judicial action is arbitrary, fanciful or unreasonable, or based on an error of law or fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).
Under Kansas law, “[t]wo or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes.” K.S.A. 22-3202(3). However, “[w]hen two or more defen dants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.” K.S.A. 22-3204.
“[Sjeverance should be granted when it appears- necessary to avoid prejudice and ensure a fair trial to each defendant.” State v. Davis, 277 Kan. 231, 239, 83 P.3d 182 (2004) (citing State v. Aikins, 261 Kan. 346, 360, 932 P.2d 408 [1997]); see Zafiro v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993) (district court should grant severance if there is serious risk that joint trial “would compromise a specific trial right of one of the defendants, or prevent the jury from making a rehable judgment about guilt or innocence”). Although a single trial may serve judicial economy and ensure consistent verdicts, the right of a defendant to a fair trial must be the overriding consideration. State v. Martin, 234 Kan. 548, 550, 673 P.2d 104 (1983).
We have employed several factors to determine whether there was sufficient prejudice to mandate severance. Davis, 277 Kan. at 240 (quoting State v. Butler, 257 Kan. 1043, 1063, 897 P.2d 1007 [1995], modified on other grounds 257 Kan. 1110, 916 P.2d 1 [1996]). We consider:
“ ‘(1) that the defendants have antagonistic defenses; (2) that important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) that evidence incompetent as to one defendant and introducible against another would work prejudicially to die former with the jury; (4) diat the confession by one defendant, if introduced and proved, would be calculated to prejudice die jury against the others; and (5) that one of die defendants who could give evidence for die whole or some of die other defendants would become a competent and compellable witness on the separate trials of such other defendants.’ ” 277 Kan. at 240 (quoting Butler, 257 Kan. at 1063).
The party moving for severance has the burden to demonstrate actual prejudice to the district court judge. State v. Hunter, 241 Kan. 629, 633, 740 P.2d 559 (1987). But the United States Supreme Court has said that a trial judge “has a continuing duty at all stages of the trial to grant a severance if prejudice does appear.” Schaffer v. United States, 362 U.S. 511, 516, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960); see United States v. Peveto, 881 F.2d 844, 857 (10th Cir. 1989).
On appeal from a denial of severance, the party claiming error has the burden to establish a clear abuse of discretion. State v. White, 275 Kan. 580, 589, 67 P.3d 138 (2003). We also have held: “When a decision is made regarding joinder or severance, even if it is determined that there was an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.” State v. Boyd, 281 Kan. 70, 80, 127 P.3d 998 (2006) (citing State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 [1994]). But evolving caselaw generally places the burden of demonstrating harmlessness on the party benefitting from the error. See Ward, 292 Kan. at 568-69. We apply that general rule in the severance context today.
Evaluation of Factors
In the guilt phase of this trial, there is no question that the defendants had antagonistic defenses, and the State concedes this point.
R. Carr argued that J. Carr committed the Birchwood crimes with another person. J. Carrs counsel emphasized the relative weakness of the evidence against his client in the Schreiber and Walenta incidents and consistently stressed the evidence of R. Carr s guilt in the Birchwood incident. Each defendant did his best to deflect attention from himself on tire Birchwood crimes by assisting in the prosecution of the other. R. Carr insisted he was not involved at all until a temporary storage arrangement was needed for the stolen property, and J. Carr essentially conceded guilt of both defendants but set up R. Carr as the leader, and thus the more culpable, of the pair. See White, 275 Kan. at 590 (quoting State v. Pham, 234 Kan. 649, 655, 675 P.2d 848 [1984]) (classic example of “intrinsically antagonistic defenses is where both defendants blame each other for the crime while attempting to defend against the State’s case”); see also Zafiro, 506 U.S. at 539 (interpreting federal rule on severance similar to Kansas statute: “When many defendants are tried together in a complex case and they have markedly different degrees of culpability, . . . risk of prejudice is heightened”, citing Kotteakos v. United States, 328 U.S. 750, 774-75, 66 S. Ct. 1239, 90 L. Ed. 1557 [1946]).
On the second factor, R. Carr contends that the denial of severance forced exclusion of testimony from Donley that was exculpatory to him but would have violated Jonathan’s Sixth Amendment confrontation rights under Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). See State v. Rodriquez, 226 Kan. 558, 561, 601 P.2d 686 (1979) (following Bruton).
On the second factor, it is also important for us to consider that each defendant apparently made at least one personally incriminating statement about being the one who fired the shots that killed Heather M., Aaron S., Brad H., and Jason B. Both of these statements were referenced during the penalty phase. Temica, the defendants’ sister, testified that R. Carr told her he shot the four friends. One of the prosecutors referenced a similar statement by J. Carr, apparently made to fellow prisoners while he was in jail awaiting trial. When the State argued to Judge Clark pretrial that an incriminating statement such as these by one defendant that implicated the other—in that instance, J. Carr’s “[W]hat’s Smoke got me into?” remark within earshot of Adams—would not have been admissible in a separate trial, it was plainly wrong. J. Carr’s remark about “Smoke,” given the context in which it was uttered, could have come in at a separate trial of R. Carr through J. Carr himself. R also qualified as a declaration against interest under K.S.A. 60-460(j), if it had to be admitted in a separate trial of either defendant through Adams or the person on the other end of J. Carr’s telephone call. In the case of each of the defendant’s statements about being the Birchwood shooter, no evidence of either statement could be admitted in the guilt phase of a joint trial under Bruton, 391 U.S. 123, because one defendant’s confession to that act inevitably incriminated the other as the aider and abettor of that act. But each defendant’s statement could have been admitted—and undoubtedly both would have been admitted by tire State—in that defendant’s separate trial. Each statement could have come into evidence through its hearer or as a declaration against interest under K.S.A. 60-460(j) or as a confession under K.S.A. 60-460(f). And R. Carr could have tried to use J. Carrs statement claiming personal responsibility for the shooting in the soccer field to bolster his “J- Carr-plus-third-person” defense.
This evidence that was inadmissible in a joint trial because of Bruton, 391 U.S. 123, but that would have been admissible at a separate trial of R. Carr, also includes R. Carr s eventually proffered own testimony about what J. Carr said to him during three telephone calls and in person on the night of the Birchwood crimes. Judge Clark ruled erroneously, as fully discussed in Section 18 of this opinion, that these portions of R. Carr s proffer must be excluded under Kansas’ third-party evidence rule and as hearsay. Had he not made these erroneous rulings, he would have had to consider the effectiveness of severance to enable R. Carr to get his defense before the jury that would determine his guilt alone.
The third factor from our precedent on severance is not applicable. The fourth factor cut in favor of the State because apparent confessions by each defendant could have come in at separate trials, as discussed above. The fifth factor would be inapplicable unless we assume that the State was willing to grant immunity to one brother to force him to testify against the other in the other’s separate trial. This seems unlikely to have happened.
We conclude that Judge Clark’s repeated refusal to sever the guilt phase of the prosecution against defendants for trial was an abuse of the judge’s discretion.
To begin with, two mistakes of law are immediately recognizable. See Ward, 292 Kan. at 550 (judge abuses discretion by making mistake of law). Judge Clark failed to do the necessary analysis when he ruled against severance at the pretrial hearing on August 9, 2002, “for the same reasons . . . stated when it was first raised.” There were three reasons stated when the subject of severance first arose: the absence of antagonistic defenses, the absence of an incriminating statement from either defendant, and the desire to avoid putting Holly G. through two trials. The first of these reasons no longer applied.
The second mistake was Judge Clark’s apparent willingness to follow the State’s misstatement of the law during the same pretrial hearing about the continued inadmissibility of Adams’ testimony about J. Carr s “[Wjhat’s Smoke got me into?” statement in separate trials.
Furthermore, we see an abuse of discretion in the dearth of record support for Judge Clark’s virtually indistinguishable, nearly completely unexplained rulings over time, even though the conflict between the defendant’s theories became more and more clear and the pile of evidence that would be excluded because of the joint trial grew ever taller. Given Judge Clark’s continuing duty to carefully consider severance to avoid prejudice to a defendant, and the overriding status of the defendant’s right to fair trial, Judge Clark’s decisions were progressively unreasonable.
Prejudice
R. Carr urges us to conclude that Judge Clark’s abuse of discretion led not just to prejudice but to prejudice requiring reversal.
R. Carr argues that the State’s evidence against J. Carr for the Rirchwood crimes was strong, far stronger than its evidence against him. The hair root recovered at the Birchwood home, matching semen samples from the victims, and test results confirming that bloodstains on J. Carr’s clothing matched or could not exclude victims Headier M. and Holly G. placed J. Carr at the scene as one of the intruders, and J. Carr failed to contest this in any meaningful way. Because J. Carr, as one of the perpetrators, had to know the identity of the second perpetrator, when J. Carr launched his trial strategy of minimizing his own role in these offenses and emphasizing Reginald’s predominant one, a vouching dynamic similar in force to inculpatory accomplice testimony was created, adding credence to die State’s case against R. Carr. Meanwhile, Bmton combined with Judge Clark’s erroneous rulings on the third-party evidence and hearsay to prevent R. Carr from using the State’s and his own evidence against J. Carr to even the playing field.
R. Carr suggests tiiat this skewed the appropriate burden of proof and that it means we cannot know whether the jury convicted him based on the State’s evidence, Jonathan’s vouching, or a combination of the two—rendering the verdict unreliable. See Zafiro, 506 U.S. at 543-44 (“Joinder is problematic in cases involving mutually antagonistic defenses because it may operate to reduce the burden on the prosecutor, in two general ways. First, joinder may introduce what is in effect a second prosecutor into a case, by turning each codefendant into the other’s most forceful adversary. Second, joinder may invite a jury confronted with two defendants, at least one of whom is almost certainly guilty, to convict the defendant who appears the more guilty of the two regardless of whether the prosecutor has proven guilt beyond a reasonable doubt as to that particular defendant.”); State v. McQueen, 224 Kan. 420, 425, 582 P.2d 251 (1978) (“[W]hen the evidence is clear and convincing as to one defendant and not so as to the other, failure to sever may well cause prejudice which will result in manifest injustice in violation of constitutional due process.”); but see State v. Holley, 238 Kan. 501, 508, 712 P.2d 1214 (1986) (“claim of disparate evidence justifies severance in only the most extreme cases”) (citing United States v. Bolts, 558 F.2d 316 [5th Cir. 1977]).
The State’s first response is that the strength of its case against R. Carr demonstrates the reliability of the jury’s verdict. It is correct that its independent case against R. Carr was overwhelming. See McQueen, 224 Kan. at 425 (“When the evidence of participation and identity of those charged is clear and convincing, prejudice from a joint trial may not be great.”)
Schreiber, Walenta, and Holly G. all identified R. Carr. Nuclear DNA testing implicated R. Carr as well as J. Carr, specifically blood from R. Carr’s shirts and shorts that matched Heather M. and foreign material recovered from Holly G.’s thigh that excluded all known contributors other than him and his brother. DNA from Schreiber’s watch was generally consistent with R. Carr’s genetic markers. Mitochondrial DNA testing pointed to R. Carr as a possible contributor of one hair collected from the Birchwood home. The State’s ballistics expert testified that the black Lorcin was used in all three incidents, and that gun was linked to R. Carr by the eyewitness identifications of him using a similar black gun. Two shoeprints observed at the Birchwood home were consistent with R. Carr’s Buffalino boots. Testimony from law enforcement personnel involved in R. Carr’s arrest tended to show he attempted to flee by preparing to jump off Donley’s balcony, and he gave an alias rather than his correct name. See State v. Phillips, 295 Kan. 929, 949, 287 P.3d 245 (2012) (evidence of flight, use of alias is probative of consciousness of guilt); State v. Ross, 280 Kan. 878, 881, 127 P.3d 249, cert. denied 548 U.S. 912 (2006) (citing State v. Walker, 226 Kan. 20, 21, 595 P.2d 1098 [1979]) (same). R. Can-had genital warts, and Holly G. learned a few months after her sexual assault drat she had contracted HPV, the virus that causes genital warts. Investigators collected larger-caliber ashes, consistent with those from a cigar, inside the Birchwood home. No other ashtrays, cigarettes, or other smoking materials were found in the home. When arrested, a partially smoked cigar with a plastic tip and a cigar box lid were recovered from the pockets of the leather coat Holly G. testified that R. Carr wore during the crimes. After R. Carr’s arrest, law enforcement recovered numerous pieces of property owned by the Birchwood victims and Schreiber, as well as other highly incriminating evidence such as ATM receipts connected to the Birchwood victims’ accounts, from R. Carr’s person, from his girlfriend’s apartment, and from the area and vehicles around it.
The State’s evidence also challenged the credibility of R. Carr’s defense, to the extent he was able to advance it.
The State’s witnesses placed R. Carr near the scene of the Birch-wood crimes shortly after they were reported. Holly G. testified that R. Carr drove Jason B.’s truck when the group traveled to the soccer field shortly after 2 a.m. Both intruders left together in the truck after the shootings. Sergeant John Hoofer testified about seeing a truck similar to Jason B.’s in the vicinity of tire Birchwood home shortly after 3 a.m. About an hour later, Hoofer stopped R. Carr in his white Plymouth, after he had twice driven by the Birch-wood home. R. Carr said he was on his way to Donley’s apartment. Donley confirmed R. Carr arrived at her apartment about 4:30 a.m.
Our review of the record persuades us that this was far from a case in which the State, by way of a joint trial, set the defendants upon each other and then coasted. Although its path to R. Carr’s convictions was made somewhat smoother and straighter by the judge’s related guilt phase errors on severance and on third-party evidence and hearsay, the State presented compelling evidence of R. Carr’s guilt, all of which would have been admissible in a severed trial. See State v. Pham, 234 Kan. 649, 654, 675 P.2d 848 (1984) (“When the evidence of participation and identity of those charged is clear and convincing, prejudice from a joint trial may not be great.”; citing McQueen, 224 Kan. at 425).
On the record before us, we hold that R. Carr is not entitled to reversal on this issue.
3. Joinder of Noncapital Counts
R. Carr challenges the joinder for trial of the noncapital and capital charges against him. His November 19, 2001, motion to sever the charges was denied.
Kansas’ criminal statute on joinder of charges and defendants provides:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” K.S.A. 22-3202(1).
‘Whether a defendant will be tried on all separate charges in a single trial is a matter within the discretion of the trial court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion.” State v. Bunyard, 281 Kan. 392, Syl. ¶ 2, 133 P.3d 14 (2006).
R. Carr argues that Judge Clark erred in denying his motion because the noncapital and capital charges in the amended complaint cannot be “of the same or similar character” because they are not subject to the same punishment. He further argues that the error requires reversal because it is possible that the jury considered or relied upon evidence pertaining to the Schreiber and Walenta incidents in deciding to impose a sentence of death, in violation of his rights under die Eighth and Fourteenth Amendments.
The State supports Judge Clark’s decision as legally appropriate, contending that similarity of punishment is merely one of several factors the court may consider in deciding whether offenses are “of the same or similar character.” It is not, the State asserts, a condition that must be satisfied before a district judge can exercise discretion to consolidate charges for trial. Should we reach a harmlessness inquiry, the State argues that ft. Carr suffered no prejudice from any joinder error because the statutory capital sentencing scheme in Kansas combined with the judge’s instructions properly limited the evidence tire jury could consider on aggravating circumstances justifying imposition of dre death penalty.
We have previously identified factors relevant to determining whether crimes qualify as “of the same or similar character.” Offenses that have general similarities, that “require die same mode of trial and the same kind of evidence, and occur in the same jurisdiction” are sufficiently alike to be tried together. See State v. Crawford, 255 Kan. 47, 53, 872 P.2d 293 (1994) (citing State v. Ralls, 213 Kan. 249, 256-57, 515 P.2d 1205 [1973]). We have also looked to similarity of punishment as another factor to consider. State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999).
The governing statute does not expressly require that joined offenses share common punishments. Crawford, 255 Kan. at 53. And we are loath to add a requirement not set out by the legislature. See State v. Hendrix, 289 Kan. 859, 862, 218 P.3d 40 (2009) (when statutory language plain, unambiguous, no need to resort to statutory construction; appellate court merely interprets language as it appears, does not speculate, read into statute language not readily found).
Indeed, the plain language of the statute explicitly provides that offenses with different punishments may be joined for trial. Joinder of offenses, “whether felonies or misdemeanors or both,” is permitted under K.S.A. 22-3202(1). And the punishments for felonies and misdemeanors are, without question, widely divergent. Compare K.S.A. 2013 Supp. 21-6804 and 6805 (Sentencing Guidelines Act grids for nondrug, drug felonies) with K.S.A. 2013 Supp. 21-6602 (defining classes of misdemeanors, setting out permissible terms of confinement).
This court embraced such an analysis in State v. Cromwell, 253 Kan. 495, 856 P.2d 1299, holding modified by State v. Willis, 254 Kan. 119, 864 P.2d 1198 (1993), where we examined whether a district judge abused his discretion by refusing to sever the trial of two sets of charges for rape, robbery, and murder committed on two separate occasions. The defendant argued that a difference in the ages of the two victims, a lapse of 4 years between the two crimes, and the applicability of a hard 40 sentence to one incident but not the other, rendered the sets of charges sufficiently dissimilar to require that they be tried separately. 253 Kan. at 511.
On the subject of punishment similarity, we said:
“The application of the ‘hard 40’ sentence to [one murder] but not to tire [other murder] is not material. The legislature did not consider differences in sentences to be dispositive because K.S.A. 22-3202(1) speaks of the similarities of the crimes, not the sentences, and contemplates potential trial of felonies and misdemeanors together. Moreover, while the consideration of aggravating factors may distinguish the hard 40 from other sentences, the jury considers whether to impose the hard 40 in a separate proceeding after the guilt phase of the trial is complete. Thus, evidence of and argument about aggravating factors need not taint the guilt phase of the trial.” 253 Kan. at 511.
This language from Cromwell is on point and persuasive. This court’s decision in State v. Thomas, 206 Kan. 603, 608, 481 P.2d 964 (1971), cited by R. Carr, is not.
The Thomas opinion mentioned the dissimilarity of murder and forgery punishments incidentally in its discussion on whether the crimes could be joined for trial as “of the same or similar character.” But a careful review of its language demonstrates that the court’s primary focus was a complete lack of relationship between the two crimes and the evidence it would take to prove them:
“Testing the offenses consolidated here, against the standards referred to, it cannot be said that murder and forgery are of the same general character; nor is the same kind of punishment required. As we have already observed, the murder evidence was totally unrelated to the forgery evidence—the evidence establishing one offense was no proof of any element of the other offense. The murder evidence was largely circumstantial, while that of forgery was documentary and eyewitness testimony. Except for police officers, who investigated aspects of both cases, the witnesses were separate and distinct with respect to each case.” 206 Kan. at 608.
This case is different from Thomas. The three December 2000 incidents giving rise to the noncapital and capital charges against R. Carr are related in several important ways. The victims of the crimes identified one or both defendants as the perpetrators. There was evidence that each incident had a gun in common. Certain aspects of the perpetrators’ modus operandi were consistent, at least between pairs of incidents—e.g., one of the perpetrators held a black gun palm down in both the Schreiber and Walenta incidents, the victims in both the Schreiber and Birchwood incidents were forced to drive to ATMs and withdraw money from their bank accounts, a light-colored car followed a woman driving home at night in the lead-up to both the Walenta and Birchwood incidents. Belongings of Schreiber and the Birchwood victims were discovered together. All of the incidents occurred within a few days of each other.
These multiple connecting points were more than enough to justify trying all of the charges arising out of the three incidents together. Identity of possible punishment between the noncapital and capital charges was not required under the plain language of the statute or our caselaw applying it. Judge Clark did not abuse his discretion in denying R. Carr s motion to sever the noncapital and capital counts for trial.
4. Jury Selection
R. Carr contends that Judge Clark erred in three ways on the parties’ challenges for cause: (a) by excusing prospective juror M.W., who opposed the death penalty; (b) by failing to excuse allegedly mitigation-impaired jury panel members W.B., D.R., D.Ge., and H.Gu.; and (c) by excusing prospective jurors K.J., M.G., H.D., C.R., D.H., and M.B., who expressed moral or religious reservations about the death penalty. The State responds that all of these rulings by Judge Clark are supported by the record and that he properly exercised his discretion.
'Excuse of M.W. for Cause
Additional Factual and Procedural Background
The defendants attempt to demonstrate that Judge Clark erred in excusing M.W. on the State’s challenge for cause, based on M.W.’s death penalty view, by comparing the record of his questionnaire responses and voir dire to those of 11 other prospective jurors whom the defense challenged unsuccessfully. We therefore summarize what we know about M.W. and the 11 panel members to whom the defendants compare him.
M.W.
M.W. said in his responses to tire questionnaire that he was morally opposed to the death penalty and could not vote to impose it under any circumstances.
During the State’s voir dire, M.W. confirmed that he could never sentence a person to death, even if the court instructed him to do so. M.W. explained that his moral objection was founded on Biblical grounds and that his belief was firmly held and would not change. At times during defense voir dire, however, M.W. vacillated. He declared his ability to impose the death penalty if forced to do so by law and confirmed that his “moral, philosophical, or religious beliefs” would not prevent him “from following the law in this case and doing [his] job as a juror.” Still, when counsel for R. Carr asked M.W. if he could sentence defendants to death, “[d]espite what the Bible says,” M.W. responded, “The [B]ible comes first.”
When the State challenged M.W. for cause because of his conflicting statements, Judge Clark inquired further on M.W.’s death penalty opposition:
“[W]liat I heai-d you say is you could do your job every step of the way of being a juror, but the good book comes above all in your mind and it says thou shalt not kill and vengeance belongs to the Lord and you could not cast a vote against the Bible; that is, to impose death on another human being.”
M.W. said, “Yes, six’”, confinning that Judge Clark had summarized his position accurately, and he was excused.
J.R.
In his questionnaire, J.R. expressed strong support of the death penalty and said he had difficulty understanding how mitigating circumstances could justify a different sentencing outcome.
However, during the State’s voir dire, J.R. said he would not support the death penalty in every case without regard to the particular facts. He agreed “absolutely” that the State should be required to prove that there were circumstances sufficient to warrant imposition of capital punishment, and he said he would consider mitigation evidence in this case.
J.R.’s statements during his voir dire by the defense were less than categorical. When asked whether he could truly give fair consideration to mitigating circumstances, J.R. responded, “I believe I could be fair. I will admit that I have a problem—I have a problem with” age as a mitigating circumstance. The defense asked, “Now by being fair, does that mean that if we get to the second stage is your mind going to already be made up that it’s death before we even present any evidence on mitigatorjs] or are you going to keep an open mind?” J.R. responded, “I would say I’d have to keep an open mind,” and he declared his ability to do so. Later, when defense counsel asked J.R. whether he would be leaning toward a sentence of death if the defendants were convicted of capital murder, J.R. said “[i]t would depend on the evidence.” When counsel pushed for a clearer response, J.R. said that he “would probably be leaning toward death.”
When the defense challenged J.R. for cause, Judge Clark asked several follow-up questions, some of which were leading. For example, after J.R. expressed some difficulty accepting age as a mitigating factor, Judge Clark inquired, “Even under instruction of law that that’s one of the things you have to give consideration to?” J.R. confirmed that he could enter the sentencing phase of this case, if any, with an open mind and could set aside his personal views about the death penalty. The judge rejected the challenge for cause.
D.Gr.
D.Gr. was another prospective juror who favored tire death penalty. But he said during voir dire that it would not be difficult for him to set aside his personal view and that he would consider evidence of mitigating circumstances fairly. He expressed his understanding that the law (as of the time of trial in this case, see State v. Kleypas, 272 Kan. 894, 1015-19, 40 P.3d 139 [2001], cert. denied 537 U.S. 834 [2002], later overruled by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 [2006]), required him to impose a life sentence if the State failed to prove aggravating cir cumstances outweighed mitigating circumstances, and he confirmed that he would follow die law. He agreed further that the death penalty would not be imposed automatically upon conviction for capital murder and that he would be required to consider aggravating and mitigating circumstances to decide the appropriate penalty. Some of D.Gr.’s statements responded to leading questions from tiie prosecutor, such as “you’re not of the frame of mind to just say okay, I’ve found them guilty of capital murder and it’s over and I’m just going to impose the death penalty?”
During R. Carr’s questioning, D.Gr. confirmed that in questionnaire responses he said that “the crime was too great, prison is not the answer.” When R. Carr’s counsel asked, “given the fact that you think the crimes committed were too great and that prison is not the answer, are you not, in fact, predisposed to vote for death if the State proves any of the aggravating circumstances that they’ve alleged?” D.Gr. responded, “If they’re proven, I would have to vote for the death penalty.” But, in responding to counsel’s followup question, D.Gr. agreed that if any mitigator is found to equal the aggravators that he would be required to vote for life. D.Gr. said that his personal opinions would not impair his ability to consider mitigating circumstances as support for a life sentence and that he would consider mitigators even if convinced beyond a reasonable doubt that the crimes were committed in an especially heinous, atrocious, or cruel manner. D.Gr. again confirmed his willingness and ability to give meaningful consideration to mitigation evidence in response to questions from J. Carr’s counsel. The judge rejected the defense challenge for cause.
D.Ge.
In questionnaire responses, D.Ge expressed strong support for the death penalty but also said that he neither favored nor opposed the penalty as a punishment; instead, he said, he would base his decision on the facts and law.
During the State’s voir dire, D.Ge. confirmed his undei'standing that a juror cannot impose the death penalty automatically upon conviction. D.Ge. also declared that he would apply the law and could impose a life sentence if the evidence and law supported that outcome. Several of D.Ge’s statements responded to leading questions from the prosecution, including the following exchange:
“[Prosecution]: Now, you understand now that just because they’re found guilty of the most severe crime doesn’t mean that they’re automatically given the death penalty. You agree with that now?
“[D.GE]: Yes, I agree with that.”
During questioning from R. Carr’s counsel, D.Ge. confirmed that he could not impose a sentence of death if the State failed to carry its burden to prove aggravating circumstances outweighed mitigating circumstances. He strongly supported the death penalty in cases of multiple murders and when a murder was committed in an especially cruel and heinous way. In such situations, he was unsure whether any mitigation could warrant a sentence other tiran death. D.Ge. confirmed, however, that he would first get the facts from both sides and weigh the evidence before arriving at his sentencing decision and that his personal beliefs would not interfere with his ability to do so.
S.T.
The defense challenged S.T. for cause because they believed her questionnaire responses demonstrated that she would automatically impose the death penalty. But S.T. said during voir dire that, when she answered the questionnaire, she was under the impression that the judge would impose the death penalty if the defendants were found guilty of capital murder; she was not aware of the jury’s role in sentencing. Once the process was explained, S.T. said she would not impose the death penalty automatically in the event the defendants were convicted. She confirmed her willingness to consider the defendants’ mitigation case fairly and to impose a life sentence if the State failed to prove that aggravating circumstances outweighed mitigating circumstances, and the judge rejected the challenge for cause.
R.P.
R.P. said that he would “go with the death penalty” if the defendants were found guilty beyond a reasonable doubt. On voir dire, R.P. explained, “[Wjell, heck, I just can’t really consider after what has happened here or in any murder when somebody takes a human life why you wouldn’t be in favor of [the death penalty],” and he expressed doubt whether mitigating circumstances could excuse the conduct alleged in this case. But R.P. also said that he would enter the sentencing phase with an open mind and that he would base his sentencing decision on the facts and law. He also said repeatedly during voir dire that he was committed to following the law, and his questionnaire responses indicated he was willing to consider sentences other than death if various mitigating circumstances were presented. He did not believe that his personal views substantially impaired his ability to serve as a juror.
Counsel for J. Carr asked R.P. whether, given his personal views, he would be coming in to the sentencing phase leaning toward death if the jury had just convicted the defendants of killing five people. R.P. responded, “No, it’s not—no I haven’t. I haven’t decided yet.” Counsel continued to press the issue: “At that stage— before you heard any of the aggravators or mitigators, are you leaning one way or another of life or death after having been convicted of capital murder?” R.P. said, “No, I haven’t really even considered it one way or the other yet. Pm just going to have to do it all when we get all tire evidence.”
When counsel for J. Carr challenged R.P. for cause, counsel appeared to recognize that, once the parties had explained the jury’s role in the sentencing phase, R.P. had clarified his willingness to consider and impose a sentence other than death.
Judge Clark responded to the challenge by asking R.P.:
“Mr. [P.], what I’ve heard you saying on those aggravators and mitigators— especially on [J. Carr’s counsel’s] questions—is if the State failed to prove, and you were saying not guilty, but if they failed to prove any aggravating circumstances or if the mitigating circumstances that the defendants put forward outweighed those aggravators, then you’d vote for life. Isn’t that what you said?”
R.P. replied, “Yes, sir.”
This apparently satisfied the judge that R.P. would be willing to consider evidence supporting aggravating and mitigating circumstances and would sentence to life imprisonment if die State failed to cariy its burden of proof. The judge rejected the defense challenge for cause.
B.Mc.
Counsel for R. Carr asked B.Mc. whether there was “any verdict other than death that is appropriate if an accused is convicted of capital murder.” She responded: “If that’s the only evidence that was presented and they were convicted of capital murder, no, it would be the death penalty, if that was the only evidence and that’s the only decision that was made.” Counsel then asked about aggravating and mitigating circumstances, and B.Mc. expressed her willingness to give fair consideration to mitigation evidence. She also said that, even if the State proved tire crimes were committed in an especially heinous, atrocious, or cruel manner, she would “have to really consider” a defendant’s lack of criminal history as a mitigating circumstance. B.Mc. said that, even drough she personally supported tíre death penalty, she would set that aside, listen to all of the evidence, and weigh it in a manner consistent with the law as instructed.
R. Carr’s counsel explained the state of the law on weighing of aggravating and mitigating circumstances, telling B.Mc. that, if the State failed to prove aggravators outweighed mitigators, then the jury would be obligated to impose a sentence of life imprisonment. Asked if she was comfortable with that concept, B.Mc. said, “Yes. I would obey the law in whatever was set before me.” In response to questions from J. Carr’s counsel, B.Mc. agreed that her personal belief in capital punishment would not “substantially impair [her] ability to consider evidence in mitigation.”
Judge Clark rejected the defense challenge to B.Mc. for cause, saying, “I hear her saying she’ll consider all the factors present and make a decision based on die evidence and the law.”
S.W.
S.W. responded to the questionnaire in a way that suggested he would vote to impose the death penalty automatically. But, like S.T., S.W. explained that he had completed the questionnaire without a full understanding of the capital sentencing process. Once Judge Clark and the parties explained the process, S.W. said it became clear that defendants are not to be sentenced to death automatically at the time of conviction, and he said he was com mitted to follow the law. Judge Clark rejected the defense challenge.
M.P.
M.P. was a criminal defense lawyer in private practice in Sedgwick County at the time of the trial. In his questionnaire and during the State’s voir dire, M.P. expressed his support for the death penalty but said he would not impose such a sentence automatically upon conviction. M.P. agreed to apply the law as instructed, not as he interpreted it or believed it should be. He also expressed his willingness to consider all mitigating evidence in the event of a sentencing phase. Judge Clark rejected the defense challenge.
K.M.
K.M. favored the death penalty but said she would decide the appropriate sentence based on the facts and the law. And, after the State explained the statutory weighing of aggravators and mitiga-tors, K.M. declared her willingness and ability to vote for a life sentence. She expressed far greater concern about her ability to live with a decision to end another person’s life. She also said that she would consider mitigating circumstances, but she did not know how much weight she could give them.
Judge Clark made further inquiry.
“I think the last question, Miss [M], was whether or not you think that everything you’ve stated here, and maybe it’s been yes or no to long questions, based on everything you’ve heard ... do you think your ability would be substantially impaired to give consideration to mitigating circumstances should you be selected to serve should the case reach that far?”
K.M. responded, “No.” The judge rejected the defense challenge.
T.F.
T.F. said he personally believed that the death penalty was the only punishment appropriate for taking another person’s life. However, after the judge and the prosecution elaborated on the duties and obligations of a juror in a capital trial, T.F. said he could set his opinion aside and give fair consideration to all of the evidence. He said he would not be leaning toward death in the event of conviction. And he said that he could give fair consideration to evidence the defendants offered in mitigation. Judge Clark rejected the defense challenge.
T.W.
T.W. admitted to having formed an opinion on the defendants’ guilt and said she did not believe it was acceptable that the defense did not have to prove mitigating factors beyond a reasonable doubt. Yet she said that her opinion on guilt was based on pretrial publicity and that she could set it aside and decide the case fairly on the evidence. She also said she was personally opposed to the death penalty but could apply it if the law required her to do so. T.W. said she could give fair consideration to mitigating evidence, even if the State proved the crimes were committed in an especially heinous, atrocious, or cruel manner. She also affirmed that she would hold the State to its burden on sentencing.
The defense challenged T.W. for cause, but not on her views on the death penalty. They challenged her because of her preconceived ideas about guilt.
Judge Clark rejected the challenge, ruling that T.W. had confirmed her ability to set those ideas aside and judge the case based on the evidence and law.
The Standard of Review and Legal Framework
K.S.A. 22-3410(2)(i) provides that a district judge may remove a prospective juror for cause where “[h]is [or her] state of mind with reference to the case or any of the parties is such that the court determines there is doubt that he [or she] can act impartially and without prejudice to the substantial rights of any party.” We have held
“that challenges for cause are matters left to the sound discretion of the trial court, which is in a better position to view the demeanor of prospective jurors during voir dire. A trial court’s ruling on a challenge for cause will not be disturbed on appeal unless it is clearly erroneous or amounts to an abuse of discretion.” Kleypas, 272 Kan. at 991 (citing State v. Dixon, 248 Kan. 776, 788, 811 P.2d 1153 [1991]).
K.S.A. 22-3410 is designed to protect a criminal defendant’s Sixth Amendment right to trial by an impartial jury, a right reinforced by the defendant’s Fifth Amendment right to due process. See Ristaino v. Ross, 424 U.S. 589, 597-98, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976). These protections are incorporated into and made applicable to the states through the due process provisions of the Fourteenth Amendment. Duncan v. Louisiana, 391 U.S. 145-149, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968). When applied to the jury selection process in a capital trial, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. See Witherspoon v. Illinois, 391 U.S. 510, 521, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). This right is balanced against the State’s strong interest in seating jurors who are able to apply the sentence of capital punishment within the framework provided for by the federal Constitution and state law. 391 U.S. at 521.
In Witherspoon, decided in 1968, the United States Supreme Court struck a balance between the competing interests and held “ That a sentence of death could not be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.’ ” Kleypas, 272 Kan. at 991-92 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841 [1985]). Witherspoon recognized a distinction of constitutional significance between prospective jurors who have strong opinions about the death penalty and those whose views would prevent them from applying the law; tire former remain eligible to serve, while tire latter must be excused. See 391 U.S. at 519-21. And the Court’s 1985 Witt decision
“clarified the standard for determining when a prospective juror may be excluded for cause because of his or her views on the death penalty. The Court stated that a prospective juror may be excluded for cause because of his or her views on capital punishment where ‘the jurors views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” ’ ” Kleypas, 272 Kan. at 991 (quoting Witt, 469 U.S. at 424).
See Lockhart v. McCree, 476 U.S. 162, 184, 106 S. Ct. 1758, 90 L. Ed. 2d 137 (1986) (“the Constitution presupposes that a jury selected from a fair cross section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case”).
In Witt, “The Court recognized that ‘this standard likewise does not require that a juror s bias be proved with “unmistakable clarity.” ’ ” Kleypas, 272 Kan. at 991 (quoting Witt, 469 U.S. at 424).
On appeal, the question before us is not whether we would have agreed with a district judge’s decision on a strike for cause prompted by a panel member’s opinion on the death penalty but whether the district judge’s decision is fairly supported by the record. Witt, 469 U.S. at 434; see Darden v. Wainwright, 477 U.S. 168, 176, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986) (appellate courts must examine context surrounding prospective juror’s exclusion, qualification). If the record contains conflicting or ambiguous information, the United States Supreme Court has expressed its belief that deference is owed to “the trial court, aided as it undoubtedly was by its assessment of [the prospective juror’s] demeanor.” Witt, 469 U.S. at 434.
Record Support for Judge Clark’s Rulings
When we consider, as we must, the universe of information from the juiy questionnaires and voir dire of M.W. and the 11 jurors the defendants compare to him in support of their argument on this issue, it is apparent that Judge Clark’s rulings are fairly supported by the record. See Brooks v. Armco, Inc., 194 S.W.3d 661, 664 (Tex. App. 2006) (“In reviewing the trial court’s decision on challenges for cause, we must consider the entire examination, not just answers that favor one side over the other.”).
With regard to M.W. specifically, his remarks in response to the questionnaire and to questions from counsel at voir dire were inconsistent. But he finally confirmed to the judge that he could never vote to impose a sentence of death. This response demonstrated that M.W. was not qualified to sit on the jury in this case under K.S.A. 22-3410(2)(i). And, even if it were less definite, we would defer to the district judge who was able to evaluate M.W.’s demeanor and nonverbal communication, here, whether he had stopped vacillating and given a clear answer. Although it would have been better, as mentioned in Section 1 of this opinion on' venue, if the judge had gotten to his final destination on M.W. without asking a leading question, we are satisfied that he did not abuse his discretion in excusing M.W. See State v. Johnson, 253 Kan. 75, 85, 853 P.2d 34 (1993) (district judge did not abuse discretion in excusing juror, despite declaration of ability to be fair to both sides, understanding that personal experiences not to be taken into account; panel member acknowledged four times that friends’ negative experiences with law enforcement might interfere with her obligations as juror); see also People v. Ayala, 24 Cal. 4th 243, 275, 99 Cal. Rptr. 2d 532, 6 P.3d 193 (2000) (trial judge properly exercised discretion to remove prospective juror for cause after she said she did not believe she had strength to sentence another person to die; reviewing courts should defer to trial court when prospective juror unclear); Humphreys v. State, 287 Ga. 63, 72, 694 S.E.2d 316 (2010) (appellate court refuses to substitute its judgment for trial court’s when three prospective jurors’ statements equivocal, contradictory about ability to give meaningful consideration to three sentencing options); Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. 2005) (’When a prospective juror’s answers are vacillating, unclear, or contradictory, we accord deference to the trial court’s decision. We will not second-guess the trial court when the prospective jurors are persistently uncertain about their ability to follow the law.”).
Furthermore, we are not persuaded otherwise by the defendants’ insistence that Judge Clark applied a differential standard as between M.W. and the 11 persons to whom M.W. is compared. Each of the 11 assured the judge that he or she could put aside personal opinions and decide this case on the evidence and the law. The fact that many of them shared one characteristic with M.W.—intermittent equivocation on whether he or she could do what would be asked of him or her—does not change the other, more salient fact: The 11 ultimately professed ability and willing ness to discharge their duties as jurors. One did not—M.W. Again, we see no abuse of discretion by Judge Clark. See State v. Nix, 215 Kan. 880, 882-83, 529 P.2d 147 (1974) (no abuse of discretion to deny challenge for cause; prospective juror confirmed ability to listen to evidence, decide case on evidence, court’s instructions).
Failure to Excuse W.B., D.R., D.Ge, and H.Gu. for Cause
The defendants argue that Judge Clark abused his discretion by denying their challenges against jurors W.B., D.R., D.Ge., and H.Gu for cause because these panel members’ voir dire responses established that they would impose a sentence of death automatically upon conviction or could not consider and give effect to mitigating evidence, i.e., they were “mitigation impaired.”
The State responds that each of the four prospective jurors stated unequivocally that he or she would follow the court’s instructions, even if they required a life sentence.
Additional Factual and Procedural Background
W.B.
W.B. expressed his support for the death penalty in his responses to the questionnaire. However, during the State’s voir dire, W.B. said he could give fair consideration to the evidence and apply the law. He said he understood a juror’s statutory duty to weigh aggravating circumstances against mitigating circumstances, and he expressed no objection to or concern with voting for a life sentence if the law required that result.
Under questioning by counsel for R. Carr, W.B. said that he had supported the death penalty “for almost forever.” When counsel for J. Carr asked why, W.B. said, “[W]hy not?” He then said that he supported the death penalty because it was the law of Kansas and served a societal purpose.
During continued voir dire by J. Carr’s counsel, Ron Evans, the following exchange occurred:
“J. Carr’s Counsel: Do you think after you convicted them, if you convict them, after you convict them of capital murder you would be leaning toward a death sentence?
“W.B.: According to the law, yes.
“J. Carr’s Counsel: What if the Judge instructed you that you have to have an open mind, even after you’ve convicted them of capital murder, as to what sentence you should impose?
“W.B.: I’m pretty sure the Judge would give us some kind of parameter of how open your mind should be.
“J. Carr’s Counsel: It should be completely open, as relates to—to the sentence. “W.B.: To the sentence, it would still be death.
“J. Carr’s Counsel: You would lean toward death based on your conviction of capital murder?
“W.B.: Right.
“J. Carr’s Counsel: That scale that’s on the judge’s desk, you’re saying that that scale, after you convicted them of capital murder, would be tilting toward death?
“W.B.: Yes.”
Counsel for J. Carr suggested to W.B. that such a position was likely to interfere with his ability to consider mitigating circumstances. W.B. disagreed, saying, “[Y]ou have to weigh it, you have to measure it, there has to be some storybook, you have to hear tire evidence!;] you’ve got to know die facts.” W.B. then said he held no opinion on whether the death penalty should be applied in this case.
The defense challenged W.B. for cause, asserting that he was mitigation impaired.
Before ruling on the challenge, Judge Clark said, “I don’t hear [him] saying that. I hear him saying he would be willing to follow the instructions of law, weighing mitigators and aggravators and malee a decision in his best judgment as he sees the facts in light of the law.” He then asked W.B. whether that was an accurate interpretation of his testimony. W.B. said it was.
Judge Clark rejected the defense challenge.
D.R
D.R. expressed strong support for the death penalty in her questionnaire responses. Yet she agreed in voir dire that the death penalty should not be imposed automatically upon conviction and that the State would need to prove that it was an appropriate sentence. D.R. identified several mitigating circumstances set out in the questionnaire as aggravating circumstances, but she said in voir dire that tiróse responses were based on an incomplete understanding of the capital sentencing process. Once she became aware of the sentencing phase, she expressed her willingness and ability to consider all mitigation evidence.
During voir dire by counsel for R. Carr, D.R. said she would listen and give fair consideration to his mitigation evidence. But she expressed doubt that certain mitigators, such as the age of a defendant or tire defendant’s minor role in the offense could excuse or justify tire crimes that formed the basis of the charges.
Judge Clark made further inquiry of D.R.:
“THE COURT: I think Miss R. is misunderstanding the questions being put in such a way. Let me say this: Should you be chosen to serve on the jury, you will receive a very detailed set of instructions rather than just two, and whether or not one aided or assisted or abetted in a crime would be determined in the guilt part.
“If your guilt was not as great, that might be determined, but if there is a possibility that the jury would say it doesn’t make any difference on participation, he’s guilty of capital murder, then you would take that evidence that the participation was relatively minor. Then you make a decision as to what would be the proper penalty under the facts for the individual who had a relatively minor role, whether it be the getaway man or didn’t know anybody was going to be killed, whatever the situation, you would consider it but you would consider it for a different reason when you are trying to figure out what the proper penalty is to be assessed against that individual under this set of facts.
“D.R.: Right.
“THE COURT: There’s probably been 20 years of litigation up in the Supreme Court of the United States and the State of Kansas. I think what you are confusing is these two parts. As you just said awhile ago, you didn’t know any of that August 28th and here it’s given to you this morning in a brief set and asked questions about it, and if you are saying that under no circumstances at all would you consider these mitigating factors. ... If there is no set of facts that would influence you to consider age or what part somebody played in a crime going forward, should a sentence of less than death be imposed, you are not a proper person for this j'uiy-
“But if you are saying that you can consider anything they bring forward and you’ll look at it and you’ll weigh it if they prove any aggravating factors, you’ll weigh it and make your decision by weighing what you think the mitigators and the aggravators are worih and listen to one of these and malee a decision on what is the proper penalty to be imposed on that individual under this set of facts. Is that what you are saying?
“D.R.: Yes.
“THE COURT: Okay.”
Still later, during voir dire by counsel for R. Carr, when asked whether she could follow tire law, D.R. said, “I’ll do what the Judge tells me.” Counsel said that people sometimes want to follow the law but cannot because of their beliefs; he asked whether D.R. agreed with this observation. D.R. replied, “You can’t step outside the law. You have to follow tire law.” Then counsel asked D.R. if she could set aside her beliefs and follow the law. D.R. answered, “I can try. That is all I can say. I’m sorry.”
The defendants challenged D.R. for cause, arguing that she “cannot tell us that she can follow the law. She says she will try but that’s no assurance.”
Again, Judge Clark spoke directly to D.R.:
“THE COURT: I don’t think that was the question. The answer was I’ll try. Will you follow the law that I say applies in the case?
“D.R.: Yeah.
“THE COURT: Will you base your decision on the evidence in foe case and not on any preconceived notions or anything?
“D.R.: Yeah, because I only read the silly headlines anyway. They don’t say much.
“THE COURT: Well, I think they were talking more about the preconceived notion about what you thought concerning the death penalty, what ought to happen concerning the death penalty.
“D.R.: No. Whatever you tell me, I’ll follow foe law.”
The judge then rejected the defendants’ challenge.
D.Ge.
D.Ge., discussed above as a comparison prospective juror for M.W., at times expressed unwillingness to consider a sentence other than death in the face of certain aggravating circumstances. But D.Ge. said on voir dire by the State that he understood a jury could not impose the death penalty automatically upon conviction. He also said that he would apply the law and could impose a life sentence if the evidence and law supported that outcome. D.Ge. confirmed that he could not impose a sentence of death if the State had failed to cany its burden to prove aggravating circumstances outweighed mitigating circumstances.
The defense challenged D.Ge. for cause, and Judge Clark rejected the challenge.
H.Gu.
During voir dire by counsel for R. Carr, H.Gu. was asked what sentence she would support, assuming the defendants were convicted of the capital murder charges. She initially said she would need to be “convinced” that a sentence other than death was appropriate. Explaining herself later in voir dire, H.Gu. said that she had been confused by the question; she thought counsel for R. Carr was asking about the verdict on the guilt phase, not about the sentencing phase. After counsel for R. Carr and Judge Clark clarified the law governing capital sentencing proceedings, H.Gu. said without equivocation that she would set aside her personal beliefs and apply the law as instructed. She also said she would give fair consideration to the defendants’ mitigation case.
The defense challenged H.Gu. for cause, and Judge Clark rejected the challenge.
The Standard of Review and Legal Framework
The same standard of review and legal framework applicable to a district judge’s decision to excuse a prospective juror who cannot set aside his or her objection to tire death penalty applies equally to decisions not to excuse prospective jurors challenged for cause based on their inability to consider a sentence other than death. See Morgan v. Illinois, 504 U.S. 719, 728-29, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992) (applying Witherspoon, 391 U.S. at 518, and Witt, 469 U.S. at 423-24). The United States Supreme Court has explained:
“A juror who will automatically vote for the death penalty in eveiy case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do. Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any pro spective juror who maintains such views. If even one such juror is empanelled and the death sentence is imposed, the State is disentitled to execute the sentence.” Morgan, 504 U.S. at 729.
In addition to a defendant’s rights under the Sixth Amendment and the Fifth Amendment’s Due Process Clause, the Eighth Amendment right not to be subjected to cruel and unusual punishment requires jurors in a death penalty case to be able to give consideration to evidence of mitigating circumstances. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (sentencer, in all but rarest capital case, must not be precluded from considering, as mitigating factor, any aspect of defendant’s character, record, or circumstances of offense).
Record Support for Judge Clark’s Rulings
The defendants assert that these four prospective jurors should have been removed for cause because they were mitigation impaired. In their view, these four prospective jurors confirmed that they would impose a sentence of death automatically upon conviction and/or they confirmed they could not fairly consider mitigating circumstances.
The defendants are correct that selected passages from the questionnaire and voir dire responses of these four prospective jurors yield cause for concern, but the entirety of the record on them convinces us that it fairly supports Judge Clark’s rulings. Again, our resolution of this issue has been complicated by the judge’s use of leading questions, particularly glaring in his rehabilitation of W.B. and his rehabilitation—twice—of D.R. But all four jurors eventually professed understanding of and fidelity to the law governing the jury’s role and function in capital sentencing. Thus we conclude that Judge Clark did not abuse his discretion in refusing to excuse them for cause. See Reaves v. State, 639 So. 2d 1, 4 (Fla. 1994) (no error in denial of challenge to four prospective jurors who suggested they would vote automatically for death penalty in event of conviction; record contained evidence prospective jurors rehabilitated); Brockman v. State, 292 Ga. 707, 739 S.E.2d 332, 347 (2013) (trial court did not err by rejecting challenges for cause; “When viewed as a whole, the voir dire of [two jurors] shows that, while they indicated a leaning toward the death penalty, they would listen to all the evidence and would fairly consider both sentencing options.”); Humphreys v. State, 287 Ga. 63, 72, 694 S.E.2d 316 (2010) (no abuse of discretion when trial court denied challenges on six panel members; all six jurors “expressed a leaning toward the death penalty, [but] they all stated that they would listen to and consider mitigating evidence and that they could give fair consideration to and vote for each of the three sentencing options”); State v. Odenbaugh, 82 So. 3d 215, 238-241 (La. 2011), cert. denied 133 S. Ct. 410 (2012) (no abuse of discretion to deny challenge for cause, although juror repeatedly stated death penalty justified in circumstances like those at issue in case, could not find situation in which life sentence would be proper under similar facts; juror did not suggest he would automatically impose death penalty upon conviction); Leatherwood v. State, 435 So. 2d 645, 654 (Miss. 1983) (no abuse of discretion in denying challenge for cause when prospective jurors strongly supported death penalty; “[w]hen questioned by counsel both jurors said that they could put aside their personal feelings, follow the law and instructions of the court[,] return a verdict based solely upon the law and the evidence^] and not vote for the death penalty unless the evidence warranted it.”); State v. Braden, 98 Ohio St. 3d 354, 360, 785 N.E.2d 439 (2003) (trial court in capital murder prosecution not required to grant challenge for cause to prospective juror who stated he would automatically go to death sentence upon finding defendant guilty; prospective juror stated he would have to hear all facts before making decision, would have to consider the alternatives, would have to weigh mitigating factors; other responses showed commitment to being fair-minded); Moore v. State, 999 S.W.2d 385, 400 (Tex. Crim. 1999) (“When the record reflects that a venireman vacillates or equivocates on his ability to follow the law, the reviewing court must defer to the trial court.”).
Violation of Section 7 of the Kansas Constitution Bill of Rights
R. Carr also argues on this appeal that Judge Clark violated Section 7 of the Kansas Constitution Bill of Rights by excusing six prospective jurors—K.J., M.G., H.D., C.R., D.H., and M.B.— based on their religious opposition to the death penalty.
Additional Factual and Procedural Background
Judge Clark excused tírese jurors because they said they could not impose the death penalty under any circumstance. K.J. said that her objection to the death penalty was “[n]ot only religious. There are other beliefs also that I feel that way.” M.G. relied on religious beliefs and general beliefs that the death penalty was morally unjust and humans should not be killing other humans. H.D. said she objected to the death penalty on moral and religious grounds; she said the two could not be separated easily because her moral code was founded upon or influenced by her religion. C.R. testified that her own personal moral code prevented her from imposing tire death penalty under any circumstance. D.H. expressed moral and religious opposition to the death penalty, which would prevent him from supporting any sentence other tiran life imprisonment. M.B. stated that his religious views, life experience, upbringing, and personal moral code would prevent him from supporting a sentence of death under any circumstance.
The Standard of Review and Legal Framework
Section 7 of the Kansas Bill of Rights provides that “[n]o religious test or property qualification shall be required for any office of public trust.” We have held that this section “does not provide any greater limitation than already provided under K.S.A. 43-156,” Kleypas, 272 Kan. at 993, which provides that “[n]o person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of. . . religion
Meanwhile, K.S.A. 22-3410(2)(i) provides that a prospective juror may be challenged for cause as unqualified to serve when he or she is partial or biased. A person who admits that he or she cannot follow the law requiring imposition of the death penalty in specific situations is, by definition, unqualified by partiality. See State v. Campbell, 217 Kan. 756, 765, 539 P.2d 329 (1975) (allegation of discrimination in selection of jury necessarily requires showing recognizable, identifiable class of persons, otherwise en titled to be jury members, purposefully, systematically excluded) (citing Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469 [1953]).
We recognize and acknowledge the existence of some tension between these statutes. The necessity of and process to achieve “death qualification” of jurors under K.S.A. 22-3410(2) (i) butts up against K.S.A. 43-156 when the reason a prospective juror can never participate in imposition of the death penalty, compelling removal of that person for cause, has a basis in a religious code.
This tension is resolved with a fine distinction with its roots in family law. We recently decided Harrison v. Tauheed, 292 Kan. 663, 256 P.3d 851 (2011), a case involving parents in conflict over custody of their child because of the mother s religious faith and related practices. In Tauheed, we drew a line between belief and behavior. We cautioned district judges resolving such disputes, instructing them to avoid discrimination between parents on the basis of religious belief or lack of belief but to act as required when behavior prompted by the belief or lack of belief was incompatible with the best interests of the child. 292 Kan. at 683-84.
Like parents, jurors cannot be discriminated against on the basis of their religious belief or lack of belief. But they can be excluded from jury service when their belief or nonbelief makes it impossible for them to act in conformance with the signature requirement of that service: impartiality under the rule of law.
Judge Clark did not abuse his discretion or violate Section 7 of the Kansas Constitution Bill of Rights or K.S.A. 43-156 when he excused K.J., M.G., H.D., C.R., D.H., and M.B. for cause. See Kleypas, 272 Kan. at 993 (no violation of Kansas Constitution Bill of Rights, statute when prospective jurors excused for inability to be impartial, follow oath).
5. Reverse Batson Challenge to Peremptory Strike
R. Carr argues that Judge Clark failed to follow the three steps required under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), when he refused to permit the defense to exercise a peremptory challenge to remove W.B from the jury. W.B., like tire defendants, is a black man. R. Carr argues further that Judge Clark’s error was structural and entitles him to reversal of all of his convictions on all counts. The State responds that Judge Clark did not err, and, in the alternative, that any error was harmless.
Additional Factual and Procedural Background
Of the panel of 60 prospective jurors qualified for final selection in this case, 3 were black, C.B., D.M., and W.B.
During individual voir dire, the defendants passed C.B. and D.M. for cause. The State challenged D.M. for cause based on his death penalty views. The defense successfully rehabilitated D.M., and the trial court rejected the State’s for-cause challenge. The State later exercised peremptoiy challenges to remove both C.B. and D.M. The defendants lodged an unsuccessful Batson challenge to the State’s strike of C.B. The defendants were successful in keeping D.M. on tire jury.
The defendants had challenged W.B. for cause unsuccessfully, as discussed in Section 4 of this opinion. Then R. Carr attempted to exercise his 12th, and last, peremptory strike against W.B.; and the State lodged a Batson challenge, arguing that the defense was striking “one of the remaining black males that we have.” Counsel for R. Carr replied:
“First, Your Honor, I think they have to make the prima [facie] case that I have engaged in a pattern of challenging based on race. I don’t think they’ve done that.
“Secondly, with the number of jurors having—I have to shepherd my peremptory challenges and not use them promiscuously. [W.B.] based on an answer on voir dire is one of the mitigation-impaired jurors we have. He told us he was in favor of death on most, if not all, of the mitigating circumstances. He left blank— he gave inconsistent answers with regard to the same. After being questioned, rehabilitated and questioned again, he indicated on the record that after a conviction he would be leaning towards death.
“Lastly, in response to Mr. Evans’ question, why are you in favor of the death penalty, based on my listening to [W.B.], he answered in a sarcastic and contemptuous manner, [’]why not[’]. This is not a racial challenge—there is not a racial reason for my challenge of [W.B.] ”
Judge Clark sought no more comment from the prosecution. Then he said:
“To me it works both ways. Once it’s raised, then tire reason that’s adequate under law must be stated. I find that the reason stated might be supported under a certain interpretation but they are not adequate under the law. I will sustain the Batson challenge.”
Counsel for J. Carr then announced that he too would exercise his final peremptory challenge to remove W.B. Anticipating the State would reassert its objection to the strike under Batson, counsel spoke, first referencing W.B.’s responses on the jury questionnaire:
“Our reasons for exercising a preempt on W.B. have absolutely nothing to do with his color. When I—when I got these questionnaires, obviously we didn’t know the color of W.B. and I had him rated at the very—as one of the very worst jurors of the first panel. I rated this based on his answers. On his marking 5 on the death penalty scale, that didn’t malee him one of the worst, but it started making me think that perhaps he would not be a favorable juror, especially on a death penalty case. He circled ‘D,’ in favor, based on tire law and tire facts. It’s another factor, though, that I look at in trying to rate tire jurors. I still don’t know whether he’s white or black.
“I come down, I look at his markings on tire aggravators and mitigators. He thinks that the defendant not having a significant history of prior criminal activity is an aggravator. He marked ‘F.’ He also marked ‘F,’ in favor of the death penalty, on tire mitigator and statutory mitigator ‘E.’ He marked ‘F’ on a third statutory mitigator, T the defendant acted under extreme distress or substantial domination of another person. He also marked ‘F’ on that statutory mitigator. He left ‘M,’ that’s the age mitigator, blank. It is my memory, and I don’t have any notes on this, it seems like someone asked him about that and I don’t think he expressed any interest in that being any sort of mitigation, the age of the defendant.
“Based on those answers, I had W.B. rated, at least from Jonathan Carr’s perspective, as a very poor juror. And it surprised me when, frankly, it probably shouldn’t have, it surprised me when he hit the juror box and I saw he was an African-American man.
“When he was questioned, I didn’t—didn’t take his answers to be favorable to us at all. And I would reiterate die reasons stated by [R. Carr’s counsel]. It’s my memory when we asked him those questions about which way he was leaning, if they found Jonathan Carr guilty of capital murder, he said he would be leaning toward death. And I was the one questioning him and I was looking him right in his eye when I asked him, why are you for death. And it was me diat he focused with his eyes, and I took it to be part sarcasm, and I saw some contempt in his eyes when he said to me, why not. And I gave him the laundry list of reasons why, you know, the - of why people are for die death penalty. And again, when he answered that, when I was trying to help him, give him a reason, I found his answer very unsatisfactory. Not a thoughtful answer.
“And last, -but certainly not least, Judge, we voted to strike W.B. for cause. We think that he—you know, with all due respect to you, Judge, I respect your ruling, but we moved for you to excuse him for cause because we think he’s mitigation impaired. I don’t think we have any choice but at least to move him excused— certainly peremptory challenge or we waive that error. I mean he is as bad a juror from a death perspective. I think he is tire worst juror from a death perspective Jonathan Carr could possibly have that’s left on the panel. And that has nothing— nothing to do with the fact he’s an African-American man, I would have been for striking him regardless of his race based on his answers. So those are my racially neutral reasons. It has nothing to do with the fact W.B. is an African-American. We move—he’s our 12th challenge.”
Judge Clark confirmed that the State intended to challenge the exercise of J. Carr’s peremptory strike of W.B. and, without hearing further argument, sustained the challenge.
Judge Clark seated W.B. on the jury, and W.B. was elected Presiding Juror.
Batsons Requirements and Standards of Review
Batsons central teaching is that the Equal Protection Clause of the Fourteenth Amendment forbids the prosecution from engaging in purposeful discrimination on the basis of race when it exercises peremptory challenges. 476 U.S. at 89; State v. Hood, 242 Kan. 115, 123, 744 P.2d 816 (1987) (adopting Batson framework). This prohibition was extended to a criminal defendant’s use of peremptory challenges in Georgia v. McCollum, 505 U.S. 42, 46-55, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992). When the State challenges a peremptory strike under McCollum, such a challenge has come to be known as a “reverse Batson” challenge. United States v. Thompson, 528 F.3d 110, 115 (2d Cir. 2008).
A district judge’s handling of a Batson or reverse Batson challenge involves three steps, each subject to its own standard of review on appeal. See State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012) (citing State v. Hill, 290 Kan. 339, 358, 228 P.3d 1027 [2010]; State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 [2006]).
“Under the first step, the party challenging the strike must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race.” McCullough, 293 Kan. at 992. “Ap pellate courts utilize plenary or unlimited review over this step.” 293 Kan. at 992 (citing Hill, 290 Kan. at 358).
“[I]f [a] prima facie case is established, the burden shifts to the party exercising the strike to articulate a race-neutral reason for striking the prospective juror. This reason must be facially valid, but it does not need to be persuasive or plausible. The reason offered will be deemed race-neutral unless a discriminatory intent is inherent in the explanation. The opponent of the strike continues to bear the burden of persuasion.” McCullough, 293 Kan. at 992 (citing Hill, 290 Kan. at 358). The scope of review on a district judge’s ruling that the party attempting the strike has expressed racially neutral reasons is abuse of discretion. State v. Sledd, 250 Kan. 15, 21, 825 P.2d 114 (1992) (citing Smith v. Deppish, 248 Kan. 217, 807 P.2d 144 [1991]).
In the third step, the district judge determines whether the party opposing the strike has carried its burden of proving purposeful discrimination. “This step hinges on credibility determinations because usually there is limited evidence on the issue, and the best evidence is often the demeanor of tire party exercising the challenge. As such, it falls within the trial court’s province to decide, and that decision is reviewed under an abuse of discretion standard.” McCullough, 293 Kan. at 992 (citing Pham, 281 Kan. at 1237; Hill, 290 Kan. at 358-59). As set forth above, judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable; or based on an error of law or fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).
Presemation
The State asserts that the defendants waived their right to pursue this issue on appeal by failing to object to the judge’s procedure in district court. Although there may be a debatable fact question on this point, because this is a death penalty case, K.S.A. 2013 Supp. 21-6619(b) makes this preservation attack beside the point. The statute requires us to consider all errors asserted on appeal in a death-penalty case. See State v. Cheever, 295 Kan. 229, 241, 284 P.3d 1007, cert. granted in part 133 S. Ct. 1460 (2013), vacated and remanded on other grounds 134 S. Ct. 596 (2013).
Judge Clark’s Error
We have no hesitation in ruling that Judge Clark erred in his consideration and grant of the State’s-reverse Batson challenge to each of the defendants’ peremptoiy strikes of W.B.
The record establishes that, after the State raised its objections to the defendants’ strikes of W.B.—merely pointing out on R. Carr’s strike that W.B. was “one of the remaining black males that we have” in the venire and merely answering, “Yes, your honor,” when the judge asked if the prosecution intended to renew its objection on J. Carr’s strike—Judge Clark did not make a finding on the record that the State had established a prima facie case of discrimination. Moreover, defense counsel for R. Carr and J. Carr each articulated more than one race-neutral reason for striking W.B., including his demeanor and death penalty views. See State v. Angelo, 287 Kan. 262, 274-75, 197 P.3d 337 (2008) (recognizing this court has upheld peremptory strikes based on counsel’s intuition, interpretation of juror demeanor, body language); Smith v. Deppish, 248 Kan. 217, 229, 807 P.2d 144 (1991) (characteristics of juror’s nonverbal communication, demeanor race-neutral); see also United States v. Barnette, 644 F.3d 192, 215 (4th Cir. 2011), cert. denied 132 S. Ct. 1740 (2012) (wavering personal view of death penalty race-neutral basis for strike under Batson); Berry v. State, 802 So. 2d 1033, 1042 (Miss. 2001) (“A challenge . . . based upon a juror’s views on the death penalty is an acceptable race neutral reason.”). Again, Judge Clark did not articulate why the reasons given by the defense in the second Batson step were inadequate; he did not hear any argument from the State on why the reasons stated by defense counsel should be dismissed as pretex-tual. Then Judge Clark simply sustained the State’s challenges, gliding by the third step under Batson entirely.
The State’s reliance on our decision in Angelo, 287 Kan. 262, to persuade us otherwise is misplaced. Angelo is distinguishable from stem to stern.
First, in that case, we reviewed an unsuccessful Batson challenge by the defense; it did not review a successful reverse Batson challenge by the State. In addition, the record was clear in that case that the district judge heard argument from the parties on each step of the required analysis before ruling. This court noted: “Specifically, after initially stating that it had not detected a pattern of discrimination, [the district judge] heard the State’s reasons and supporting information for striking the jurors and then asked for, and received, [the defendant’s] responses.” 287 Kan. at 274. This directly enabled our holding that the district judge had considered all of the information and “impliedly held [the defendant] failed to prove that the State’s reasons were pretextual and that he therefore failed in his ultimate burden to prove purposeful discrimination.” 287 Kan. at 275. What happened in Angelo did not happen here, and it is not persuasive authority.
An exercise of discretion built upon an error of law qualifies as an abuse of that discretion. See State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (“[A]buse-of-discretion standard does not mean a mistake of law is beyond appellate correction. A district court by definition abuses its discretion when it makes an error of law.”). Judge Clark abused his discretion on the State’s reverse Batson challenge to the defendants’ peremptory strikes of W.B.
Hamlessness
R. Carr argues that Judge Clark’s error was structural. The State urges us to apply harmless error analysis.
Our examination of these opposing viewpoints begins with a review of the United States Supreme Court’s decision in Rivera v. Illinois, 556 U.S. 148, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009).
In Rivera, the Court held that state courts have the authority to determine the appropriate remedy when a trial court judge erroneously denies a defendant’s peremptory challenge in good faith. Defendant Michael Rivera attempted to exercise a peremptory challenge against a Hispanic juror. 556 U.S. at 152-53. The trial court erroneously denied Rivera’s peremptory strike, exercising a sua sponte reverse Batson challenge. The juror eventually was elected foreperson of the jury, and Rivera was found guilty. 556 U.S. at 153-54. The Illinois Supreme Court agreed that the trial judge erroneously granted the reverse Batson challenge, but it rejected the notion that such error was reversible absent a showing of prejudice. 556 U.S. at 155. The United States Supreme Court granted certiorari “to resolve an apparent conflict among state high courts over whether the erroneous denial of a peremptoiy challenge requires automatic reversal of a defendant’s conviction as a matter of federal law.” 556 U.S. at 156.
The Court first characterized the right to peremptory challenge as one that arises under state law without federal constitutional protection:
“[T]his Court has consistently held that there is no freestanding constitutional right to peremptory challenges. [Citation omitted.] We have characterized peremptory challenges as ‘a creature of statute,’ [citation omitted] and have made clear that a State may decline to offer them at all. [Citations omitted.] When States provide peremptoiy challenges (as all do in some form), they confer a benefit beyond the minimum requirements of fair [jury] selection, [citation omitted] and thus retain discretion to design and implement their own systems [citation omitted],
“Because peremptory challenges are within the States’ province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution. ‘A mere error of state law,’ we have noted, “is not a denial of due process.” [Citations omitted.] The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but ‘the fundamental elements of fairness in a criminal trial.’ [Citations omitted.]” 556 U.S. at 157-58.
Accordingly, the Court left the duty to tailor appropriate relief for deprivations of this state law right to the state courts:
“Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal. States are free to decide, as a matter of state law, that a trial court’s mistaken denial of a peremptoiy challenge is reversible error per se. Or they may conclude, as the Supreme Court of Illinois implicitly did here, that the improper seating of a competent and unbiased juror does not convert the jury into an ultra vires tribunal; therefore the error could rank as-harmless under state law.” 556 U.S. at 161-62.
Under Rivera, the first issue we must decide is whether Judge Clark acted in good faith. If not, his error offends Fifth and Fourteenth Amendment due process protections and may require automatic reversal of all of R. Carr’s convictions. See Bell v. Jackson, 379 F. Appx. 440, 445 (6th Cir. 2010) (“Rivera leaves open the possibility that a Batson error might require reversal as a matter of due process if tire trial judge repeatedly or deliberately misapplie[s] the law or act[s] in an arbitrary or irrational manner.”)- ⅞ on the other hand, Judge Clark acted in good faith, his error does not implicate federal constitutional guarantees, and the decision on its remedy is a matter of state law.
At least two courts have considered a trial judge’s good and bad faith and their effects since Rivera.
In Pellegrino v. AMPCO System Parking, 785 N.W.2d 45 (Mich. 2010), die Michigan Supreme Court considered a trial court’s ruling on a reverse Batson challenge in a civil action. The court first observed that Rivera “contrasted a judge’s good-faith mistake with one arising because the judge deliberately misapplied the law or because die judge had acted in an arbitrary or irrational manner.” 486 Mich. at 350. The court determined that the trial judge “deliberately refused to follow the three-step process required under Batson because [the judge] thought that process required the court to ‘indulge’ in ‘race baiting.’ ” 486 Mich. at 351. Despite never finding a Batson problem in the first place, the judge “arbitrarily proceeded” as if the State had established such a violation and disallowed the defendant’s peremptoiy strike. 486 Mich. at 350-51. This required automatic reversal of the Court of Appeals decision, remand to the district court, and a new trial before a different judge. 486 Mich. at 354.
In Chinnery v. Virgin Islands, 55 V.I. 508, 2011 WL 3490267 (V.I. 2011), the Supreme Court of the Virgin Islands held that the trial judge erred in sustaining the prosecution’s reverse Batson challenge, and the prosecution argued that die error should be deemed harmless. The court recognized that Rivera granted it die authority to decide the standard of reversibility or remedy in such a situation, as long as the judge’s error was made in good faith. But this error was not made in good faith. During jury selection, die prosecution had challenged two of defendant’s peremptoiy strikes under Batson. Defense counsel explained that the strikes were based on die jurors’ social class and how they had looked at him. The judge responded: “I don’t do that,” and sustained the reverse Batson challenge. 2011 WL 3490267, at ®7. Still, the judge allowed the defendant to use his peremptoiy challenge to remove one of the two jurors. The Virgin Islands Supreme Court reacted to this behavior by the trial judge:
“[T]he Superior Court, like the judge in Pellegrino, denied [tire defendant] his right to exercise his peremptory challenges based on its own personal preferences rather than a good-faith attempt to follow Batson. Moreover, even if the Superior Court initially acted in good-faith—which we have no reason to doubt—its ultimate decision to nevertheless allow [the defendant] to choose to strike one of the two prospective jurors—notwithstanding tire fact that it had rejected [the defendant’s] race-neutral explanation and upheld the People’s Batson challenge with respect to both jurors—was inherently arbitrary and irrational.” 2011 WL 3490267, at “7.
The court reversed and remanded for new trial, because the absence of good faith meant that the error rose to tire level of a deprivation of due process. 2011 WL 3490267, at *7.
Here, the defense argument that Judge Clark’s error was not made in good faith rests entirely on the fact that his application of the three steps of Batson was incomplete. But acceptance of this argument would tend to elevate eveiy Batson error to one made in bad faith, and we are unwilling to take the first step in that direction. See Bell, 379 F. Appx. at 445 (“But aside from the brevity with which the trial court addressed his objections, [the defendant] offers nothing to show that any error was more tiran” one made in good faith).
Instead, we have carefully examined the entire record to determine whether Judge Clark’s conduct on the reverse Batson challenge was part of a pattern of hostile behavior toward the defense. As discussed throughout this opinion, although we have identified isolated instances in which Judge Clark’s performance might have been improved, the record does not demonstrate that either his general performance or his specific decision on this reverse Batson challenge is deserving of the perverse distinction of a bad faith label. This case is different from Pellegrino and Chinnery, in which trial judges defied or refused to apply Batson analysis or appeared to reverse themselves in midstream. The record discloses no such deliberate or erratic conduct on the part of Judge Clark.
We turn now to the question of the remedy for a good faith mistake, a question delegated to us for decision by Rivera. A review of the positions taken by other state and federal courts reveals a split of authority.
Several states have concluded that reversal is automatically required when a trial court erroneously denies a defendant his or her right "to exercise a peremptory challenge. The Iowa Supreme Court’s decision in State v. Mootz, 808 N.W.2d 207 (Iowa 2012), outlines tire arguments commonly advanced in support of a structural error approach well.
In Mootz, the defendant appealed his conviction for assault on a law enforcement officer resulting in bodily injury. During voir dire, the defense sought to use a peremptory strike to remove a Hispanic member of the venire, and the trial judge prevented it from doing so. The judge ruled erroneously that the strike was based on tire venire member’s race, and he was seated on the jury and elected foreperson.
At the Iowa Court of Appeals level, the panel held that the trial judge erred by denying the defendant his right to exercise the peremptory strike, but it treated the mistake as harmless error. 808 N.W.2d at 214. The panel analogized to State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993), in which the Iowa Supreme Court had held that prejudice would not be presumed when a defendant was forced to “waste” a peremptory challenge to correct an erroneous denial of a challenge for cause. Mootz, 808 N. W. 2d at 221.
On review of the court of appeals decision, the Iowa Supreme Court distinguished Neuendorf and its more recent holding in Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006) (prejudice will not be presumed when court erroneously grants litigant’s challenge for cause), because the Mootz venire member ultimately was seated on the jury, whereas prospective jurors in Neuendorf and Summy ultimately were not. The court also said it had limited ability to assess accurately what impact the objectionable juror had on the proceedings. 808 N.W.2d at 225. “A defendant could only show prejudice by showing that the juror he sought to remove was biased. However, if the juror were biased, then the juror would be removable for cause, and the question regarding the peremptory challenge would become moot.” 808 N.W.2d at 225. The Iowa Supreme Court found it unacceptable that a de fendant could be left with no remedy for a reverse Batson error, and it imagined the drafters of the state rule governing peremptory strikes would feel the same. 808 N.W.2d at 225-26.
Appellate courts in Alabama, California, Connecticut, Florida, Georgia, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, New York, South Carolina, Vermont, Washington, and Wisconsin are in accord with Iowa in holding that reverse Batson error committed by a trial judge in good faith is structural; seven of them arrived at the position after Rivera was handed down, and eight before. See Zanders v. Alfa Mut. Ins. Co., 628 So. 2d 360, 361 (Ala. 1993) (reversing judgment and remanding for new trial in civil action); People v. Gonzales, B224397, 2012 WL 413868 (Cal. Ct. App. 2012) (unpublished opinion) (where defendant forced to go to trial with a juror that they could not excuse due to an erroneously granted Batson/Wheeler [People v. Wheeler, 22 Cal. 3d 258, 148 Cal. Rptr. 890, 583 P.2d 748 (1978)] motion, error requires reversal); State v. Wright, 86 Conn. App. 86, 97-98, 860 A.2d 278 (2004) (reversing and remanding for new trial); Elliott v. State, 591 So. 2d 981, 987 (Fla. Dist. App. 1991) (reversing and remanding for a new trial); Jackson v. State, 265 Ga. 897, 899, 463 S.E.2d 699 (1995) (granting new trial without conducting harmless error analysis); State v. Pierce, 131 So. 3d 136, 144 (La. App. 2013) (denial of peremptory through erroneous Batson ruling “implicates a constitutional right guaranteed to the defendant by the State of Louisiana; thus, a harmless error analysis is inappropriate”); Parker v. State, 365 Md. 299, 311, 778 A.2d 1096 (2001) (granting new trial where trial judge erred in deeming the facially-valid, race-neutral reasons “unacceptable” and in reseating stricken jurors); Commonwealth v. Hampton, 457 Mass. 152, 164-65, 928 N.E.2d 917 (2010) (‘We continue to adhere to the view [post-Rivera] that, for purposes of State law, the erroneous denial of a peremptory challenge requires automatic reversal, without a showing of prejudice.”); State v. Campbell, 772 N.W.2d 858, 862 (Minn. App. 2009) (confirming structural error approach of Minnesota Supreme Court in State v. Reiners, 664 N.W.2d 826, 835 [Minn. 2003], will continue to be applied post-Rivera); Hardison v. State, 94 So. 3d 1092, 1101-02 (Miss. 2012) (follows lead of Iowa, Massachusetts, Minnesota, New York, Washington; post-Rivera “a trial court cannot deprive defendants of their light to a peremptory strike unless the trial judge properly conducts the analysis outlined in Batson .... when a trial judge erroneously denies a defendant a peremptory strike by failing to conduct the proper Batson analysis, prejudice is automatically presumed, and we will find reversible error”); People v. Hecker, 15 N.Y.3d 625, 662, 917 N.Y.S.2d 39, 942 N.E.2d 248 (2010) (refusing to depart from pre-Rivera precedent establishing automatic reversal as proper remedy when trial judge erroneously sustains reverse Batson challenge); State v. Short, 327 S.C. 329, 489 S.E.2d 209 (Ct. App. 1997), aff'd 333 S.C. 473, 511 S.E.2d 358 (1999) (automatic reversal proper remedy); State v. Yai Bol, 190 Vt. 313, 323, 29 A.3d. 1249 (2011) (reversal automatic where defendant “compelled to abide a juror not to his liking” as a result of erroneous Batson ruling); State v. Vreen, 143 Wash. 2d 923, 931, 26 P.3d 236 (2001) (erroneous denial of peremptory strike requires automatic reversal); State v. Wilkes, 181 Wis. 2d 1006, 513 N.W.2d 708 (Wis. App. 1994) (same) (unpublished opinion).
Several other states have chosen the path of the Illinois Supreme Court in Rivera—applying harmlessness analysis to reverse Batson errors made in good faith. For the most part, these courts reason that the primary purpose of statutory peremptory strikes is to ensure a defendant’s right to trial by a fair and impartial jury. And, as long as all seated jurors are qualified and impartial, a defendant has suffered no constitutional injuxy and any error can be deemed harmless. See State v. Darnell, 209 Ariz. 182, 98 P.3d 617, 621 (Ct. App. 2004), rev. denied and ordered depuhlished 210 Ariz. 77, 107 P.3d 923 (2005) (harmless error review applies when trial court wrongly grants Batson challenge to defendant’s use of peremptory strike); Pfister v. State, 650 N.E.2d 1198, 1200 (Ind. App. 1995) (harmless error applies; error in case could not be deemed harmless); Moore v. Commonwealth, 2011-SC-000700-MR, 2013 WL 1790303, at *4 (Ky. 2013) (unpublished opinion) (preserved Batson error subject to usual standards of harmless error analysis); State v. Letica, 356 S.W.3d 157, 165-66 (Mo. 2011) (erroneous Batson ruling resulting in denial of peremptory challenge subject to harmless error analysis; error harmless under facts); Cudjoe v. Com monwealth, 23 Va. App. 193, 203-04, 475 S.E.2d 821 (1996), overruled. on other grounds by Roberts v. CSX Transp., Inc., 279 Va. 111, 688 S.E.2d 178 (2010) (statutory harmless error statute supplants structural error; on record, unable to conclude error did not affect verdict).
In federal appellate courts, before Rivera was decided, the majority rejected harmlessness analysis when a trial judge erroneously prevented a defendant’s peremptory challenge. See Tankleff v. Senkowski, 135 F.3d 235, 248 (2d Cir. 1998); Kirk v. Raymark Indus., Inc., 61 F.3d 147, 159 (3d Cir. 1995); United States v. Hall, 152 F.3d 381, 408 (5th Cir. 1998); United States v. McFerron, 163 F.3d 952, 955-56 (6th Cir. 1998); United States v. Underwood, 122 F.3d 389, 392 (7th Cir. 1997), cert. denied 524 U.S. 937 (1998); Ford v. Norris, 67 F.3d 162, 170 (8th Cir. 1995); United States v. Annigoni, 96 F.3d 1132, 1143 (9th Cir. 1996) (en banc).
But these opinions were largely dependent upon language from Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965): “The denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice.” And the United States Supreme Court has now called this language into question.
In United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 782, 145 L. Ed. 2d 792 (2000), the Ninth Circuit had relied on Sioain to support its holding that the trial court’s erroneous denial of peremptory challenges required automatic reversal. The United States Supreme Court did not address this aspect of the Ninth Circuit’s decision because it found no error, but it observed in dicta that “the oft-quoted language in Swain was not only unnecessary to the decision in that case—because Swain did not address any claim that a defendant had been denied a peremptory challenge—but was founded on a series of our early cases decided long before the adoption of harmless-error review.” 528 U.S. at 317 n.4.
The Court took another swipe at the Swain language in Rivera, when it said that the language had been “disavowed” in Martinez-Salazar and further observed that it
“typically designate^] an error as ‘structural,’ therefore ‘requir[ing] automatic reversal,’ only when ‘the error necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ [Citation omitted.] The mistaken denial of a state-provided peremptory challenge does not, at least in the circumstances we confront here, constitute an error of that character.” Rivera, 556 U.S. at 160.
Since Rivera, the Ninth Circuit has abandoned its earlier practice of treating a trial judge’s erroneous denial of a defendant’s peremptory challenge as structural error. See United States v. Lindsey, 634 F.3d 541, 544 (9th Cir. 2011), cert. denied 131 S. Ct. 2475 (2011). Other federal circuits have followed suit. United States v. Gonzalez-Melendez, 594 F.3d 28, 33-34 (1st Cir. 2010); Jimenez v. City of Chicago, 732 F.3d 710, 715 (7th Cir. 2013), cert. denied 134 S. Ct. 1797 (2014); Avichail ex rel. T.A. v. St. John's Mercy Health Sys., 686 F.3d 548, 552-53 (8th Cir. 2012).
Kansas does not have a post -Rivera case on point.
Sixteen years before Rivera was decided, one Court of Appeals panel reversed a conviction when the trial judge erroneously interfered with a defendant’s right to exercise a race-neutral peremptory challenge under K.S.A. 22-3412. State v. Foust, 18 Kan. App. 2d 617, 624, 857 P.2d 1368 (1993). The panel said: “Although it may seem minimal, the deprivation of even one valid peremptory challenge is prejudicial to a defendant and may skew the jury process.” 18 Kan. App. 2d at 624.
In this court’s opinion in State v. Heath, 264 Kan. 557, 588, 957 P.2d 449 (1998), the defendant argued that the district judge’s error in failing to remove an unqualified juror for cause deprived him of his statutory right to exercise one of his peremptory challenges. The defendant used a peremptory strike to correct tire judge’s mistake on the challenge for cause. We held any error was harmless, reasoning that “[t]he whole purpose of peremptory challenges is as a means to achieve an impartial jury . . . [tjhere is no evidence that the jury constituted was not impartial.” 264 Kan. at 588.
In fact, this court long treated the Kansas peremptory challenge statute as little more than a procedural device to ensure compliance with a defendant’s constitutional right to trial by a fair and impartial jury:
“The constitutional guaranty is that an accused shall be tried by an impartial jury. The matter of peremptory challenges is merely statutory machinery for carrying out and securing the constitutional guaranty. Error in overruling a challenge to a juror is not ground for reversal unless the accused was prejudiced thereby. The real question is—’Was tire jury which tried defendant composed of impartial members?’ In the absence of any objection on the part of defendant to any member as it was finally drawn to try him we cannot say it was not impartial.” State v. Springer, 172 Kan. 239, 245, 239 P.2d 944 (1952).
Although there are authorities from our sister states and the federal courts that come down gracefully on both sides of tire issue, we are persuaded that an error such as the one committed in this case should be subject to harmlessness review. The mistake was made in good faith, and our Kansas precedent, although sparse, favors the view that a peremptory challenge is simply a procedural vehicle for vindication of a defendant’s right to an. impartial jury. The erroneous denial of a peremptory challenge does not require automatic reversal. This holding is not only permissible under Rivera, but also consistent with this court’s development of harmless error review in recent years and the legislature’s expressed preference for the same. See Pabst v. State, 287 Kan. 1, 13, 192 P.3d 630 (2008) (vast majority of errors fall within category of “trial error[sj” subject to harmless error review); K.S.A. 60-261 (“At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.”); K.S.A. 60-2105 (appellate courts shall disregard “mere technical errors and irregularities” not affecting substantial rights).
Having already decided in the previous section that there was no error in denying the defense challenge for cause to W.B., we see no prejudice from his ultimate seating on the juiy. R. Carr is not entitled to reversal of any .of his convictions because of Judge Clark’s error on the reverse Batson challenge. See State v. McCullough, 293 Kan. 970, 983, 270 P.3d 1142 (2012) (no reasonable probability that such error affected the outcome of the trial in light of the entire record).
6. Confrontation and Admission of Walenta Statements
R. Carr argues that admission of statements made by Walenta violated his Sixth Amendment right to confront the witnesses against him and requires reversal of his felony murder conviction.
All parties agree that our review of this constitutional question is unlimited. See State v. Belone, 295 Kan. 499, 502-03, 285 P.3d 378 (2012) (citing State v. Bennington, 293 Kan. 503, 507, 264 P.3d 440 [2011]; State v. Marquis, 292 Kan. 925, 928, 257 P.3d 775 [2011]; State v. Leshay, 289 Kan. 546, 547, 213 P.3d 1071 [2009]; State v. Ransom, 288 Kan. 697, 708-09, 207 P.3d 208 [2009]); see also State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007) (confrontation issues under both federal and state constitutions raise questions of law subject to unlimited appellate review).
All parties also agree that our analysis of the merits of this issue should be guided by Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Crawford, a 2004 United States Supreme Court decision on the Confrontation Clause, has superseded Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), which guided Judge Clark’s rulings at the time of the defendants’ trial.
Additional Factual and Procedural Background
During the several weeks that Walenta survived after she was shot, she made several statements about the crime and her attacker. Her initial statements were made to her neighbor Kelley, who came to Walenta’s assistance within minutes of the shooting. Walenta also was interviewed by several law enforcement investigators while in the hospital. One of the statements she gave to investigators included her tentative identification of R. Carr from a photo array. This conversation took place in the presence of Wal-enta’s husband.
No representative of the defendants was able to question Wal-enta before she died.
R. Carr filed a pretrial motion in limine to exclude any statement Walenta made to Detective Randall Reynolds. At a hearing on the unsuccessful motion, counsel clearly based the objection to Reynolds’ testimony on this subject on the federal Confrontation Clause.
At trial, neither R. Carr’s counsel nor J. Carr s counsel objected to Kelley s testimony about Walenta’s statements until after Kelley had testified that Walenta told her the person who shot her was a black man with wiry hair. At that point, the following exchange occurred:
“[J. Carr’s counsel]: Your Honor, at this time we’re going to go ahead and make an objection based on hearsay. There was an argument in a previous pretrial motion in this regard and we would ask that it be a continuous objection to anything Miss Walenta said.
“[R. Carr’s counsel]: Join, Your Honor.
“THE COURT: I’ll overrule the objection, but I’ll give you a continuing one to the line of testimony.”
After the continuing objection was granted, Kelley also testified that Walenta had told her she was shot three times and that a light-colored car had followed her onto her street.
Wichita Police Officer Joshua Lewis and Detective James Whit-tredge testified about statements Walenta made to them. Lewis testified that, on December 11, Walenta described her attacker as a black male about 6 feet tall, approximately 30 years old, with long black hair. She also told Lewis and Whittredge that she had been followed by a light-colored four-door vehicle. Whittredge testified that Walenta told him she did not know the gunman and that he had not tried to rob her but had indicated he needed help. Walenta also told Whittredge that the gunman—a black male in his 30s, 5 feet 7 inches to 6 feet tall, with long straight wiiy hair—disappeared veiy quickly after the shooting. Walenta associated the gunman with tire light-colored four-door vehicle that had been following her.
Reynolds testified that he spoke with Walenta about the crime on December 13 and 15. Among other tilings, during die first interview, Walenta told Reynolds that the man who shot her got out of the passenger side of die vehicle and that he held his gun palm down. She also told Reynolds that the man ran immediately after he shot her, and, at the same time, she noticed that the car that had followed her started to pull away. She was unsure whether the shooter was left behind.
Reynolds testified that he returned to the hospital to show Wal-enta photo arrays containing pictures of R. Carr and J. Carr after their arrests on December 15. Walenta said that a photo of R. Carr in the second position and a photo of another individual in tire first position in one array fit her attacker s general appearance. But she said that the photo of R. Carr had eyes matching what she remembered. Reynolds had Walenta write this information on the photo array containing R. Carr s picture. Walenta could not select anyone who looked familiar from tire array containing J. Carr s photo. Reynolds also testified that, after Walenta died, he asked her husband to help him decipher Walenta’s handwritten notes on the photo array containing R. Carr s picture.
Defense counsel lodged several objections during the testimony of the three law enforcement officers about Walenta’s statements. Judge Clark overruled all of the specific objections but twice granted additional continuing objections to such testimony.
Walenta’s husband, Donald/testified that he was present during most of the law enforcement interviews with his wife, including the one in which Reynolds showed his wife the photo arrays. Donald heard the words his wife spoke to Reynolds and observed her write on the photo array. He did not actually see what she had written until Reynolds spoke to him after Walenta’s death. Looking at the array while on the stand at trial, Donald testified that his wife wrote: “No. 1 and No. 2 represent the man who assaulted me. The general appearance of No. 1 . . . fits the assailant but the eyes, eye set of No. 2 also represents what I remember.” Neither defendant objected to Donald’s testimony.
Preservation of the Confrontation Clause Issue for Appeal
■ Because the Walenta felony murder was not subject to tire death penalty, we do not apply K.S.A. 21-6619(b), which requires us to overlook a preservation problem in the review and appeal from a judgment of conviction resulting in a sentence of death.
The State suggests that the defendants failed to preserve any Confrontation Clause issue on Walenta’s statements for our review.
We agree with the State as to the part of Kelley’s testimony that preceded Judge Clark’s granting of a continuing objection. The defense objections to Kelley s testimony that Walenta told her a black man with wiry hair was the gunman came too late.
We disagree with the State that lack of preservation bars our consideration of the Confrontation Clause issue as to the three law enforcement witnesses. The record reflects multiple defense objections during their testimony, at least one referencing the Confrontation Clause objection raised pretrial and at least two leading to more continuing objections being granted by Judge Clark.
We agree with the State that there is a preservation problem with a Confrontation Clause issue on the testimony from Walenta’s husband about what his wife said to and wrote for Reynolds in his presence. See K.S.A. 60-404 (contemporaneous objection rule); see also State v. McCaslin, 291 Kan. 697, 706, 245 P.3d 1030 (2011) (application of contemporaneous objection rule when Confrontation Clause objection not specific in district court).
It is true that we have made an exception to the general contemporaneous objection rule to consider Confrontation Clause arguments raised by defendants tried before Crawford was decided. See State v. Brown, 285 Kan. 261, 281, 173 P.3d 612 (2007) (citing State v. Miller, 284 Kan. 682, 709, 163 P.3d 267 [2007]). But doing so in this case would be inappropriate. Here, defense counsel repeatedly exhibited full awareness of the potential of a Confrontation Clause violation; they registered numerous objections to the testimony from Kelley and the law enforcement witnesses about what Walenta communicated to them. The total absence of a defense objection during Donald’s testimony looks far more like strategy than ignorance.
Violation of Sixth Amendment
Crawford, 541 U.S. at 53-54, established that the Sixth Amendment Confrontation Clause prevents out-of-court statements that are testimonial in nature from being introduced against a criminal defendant unless the declarant is unavailable and the defendant has had a previous opportunity to cross-examine him or her.
“The Confrontation Clause of the Sixth Amendment provides: ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.’ In Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), we held that this provision bars ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
This brings us to other points of agreement among the parties. First, the State and the defendants agree that, under the standards set out by the United States Supreme Court in Davis, and by this court in Brown, 285 Kan. at 291, Walenta’s statements presented through Kelley were not testimonial. They also agree that Walenta’s statements to the three law enforcement officers— Lewis, Whittredge and Reynolds—were testimonial.
“Statements . . . made in the course of police interrogation ... are testimonial when the circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis, 547 U.S. at 822.
The State and the defendants also agree as a general matter that, despite the general Crawford rule, testimonial statements of an absent declarant who has never been cross-examined by the defense may be admitted under the doctrine of forfeiture by wrongdoing. The doctrine applies when the declarant’s absence is attributable to wrongdoing by a defendant specifically intending to prevent the declarant from testifying. See Giles v. California, 554 U.S. 353, 388, 128 S. Ct. 2678, 171 L. Ed. 2d 488 (2008) (in order to apply doctrine, State must prove by preponderance of evidence that defendant’s wrongdoing specifically intended to prevent testimony); State v. Belone, 295 Kan. 499, 504, 285 P.3d 378 (2012) (district judge erred by admitting victim’s testimonial statements to police when defendants’ intent to prevent testimony not shown); State v. Jones, 287 Kan. 559, 567-68, 197 P.3d 815 (2008) (same).
That is the point at which the parties’ agreement ends. The State invokes the doctrine to save the testimony from the three law enforcement officers, and the defense argues that the doctrine was inapplicable. We need not settle this dispute because we are persuaded that answering the question of whether any error on this issue was harmless is dispositive.
Harmlessness
Harmless error analysis applies to errors under Crawford. Belong, 295 Kan. at 504-05; see Lilly v. Virginia, 527 U.S. 116, 139-40, 119 S. Ct. 1887, 144 L. Ed. 2d 117 (1999) (Confrontation Clause violation subject to harmless error review). A Kansas court cannot declare an error implicating a right guaranteed by the United States Constitution harmless unless it is persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome, i.e., that the error did not contribute to the verdict. State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013); State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011) (citing Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]), cert. denied 132 S. Ct. 1594 (2012). The State, as the party benefiting from any error here, bears the burden to establish that any Confrontation Clause error was harmless. Ward, 292 Kan. at 568-69.
The State can bear its burden here. The nontestimonial statements of Walenta to Kelley to which she testified and the statements and actions of Walenta in her husband’s presence to which he testified without objection make the law enforcement testimony harmless, because they covered much of the same ground. Walenta had told Kelley about the black man with wiry hair who shot her three times and about a light-colored car that followed her home, and Kelley passed this information on to the jury. Walenta’s husband was able to tell the jury about what was probably Walenta’s biggest contribution to the law enforcement investigation, her writing on the photo array containing R. Carr’s picture. Reynolds’ testimony about the composition of the photo array, including designation of R. Carr’s picture as “No. 2” had been properly admitted without any violation of Crawford. These facts were not communicated by Walenta at all.
In contrast, the only items of evidence drawn from Walenta’s statements that the three law enforcement witnesses may have added to the mix were her various and vague estimates of the perpetrator’s height and age, the fact that he held his gun palm down, and the fact that he ran away as the light-colored car appeared to be leaving immediately after the shooting. The specific way the gun was held was the only directly incriminating item against R. Carr among these, because Schreiber testified that the first man who approached him held his gun in the same way. Walenta’s age and height estimates were too vague to have much practical impact on the jury’s consideration. And the description of the light-colored car’s departure was no more significant, and probably less significant, than the circumstances of its arrival just behind Walenta’s Yukon on her dead-end street, a fact about which Kelley had already testified. As to J. Carr, the only other piece of incriminating information that came from one of die three officers was that the gunman exited the passenger side of the light-colored car. Like the car’s departure, this tended to show the involvement of a second perpetrator. But the idea that two people participated in the Wal-enta incident was testified to without objection by a different law enforcement witness.
Under these circumstances, we deem any error in admitting Walenta’s statements through the three law enforcement witnesses harmless beyond a reasonable doubt.
7. Sufficiency of Evidence on Walenta Felony Murder
R. Carr argues tíiat his felony murder conviction for the killing of Walenta must be reversed because the State failed to present sufficient evidence of the underlying attempted aggravated robbery.
Additional Factual and Procedural Background
There were no eyewitnesses to Walenta’s shooting who testified at trial. Walenta was alone when she was shot in the driver’s seat of her Yukon in her driveway and died a few weeks later.
Several other witnesses were permitted to testify to what Wal-enta told them about the crime before she died. Their information included the following: Walenta noticed a light-colored car following her as she drove home. When she pulled into her driveway, she saw the car park. A black male got out of the passenger side of the car, approached the driver’s side of her Yukon. Walenta said that the man did not try to rob her but instead indicated that he needed help. When Walenta rolled down her window a few inches, the man immediately stuck a handgun into the opening, holding it palm down and pointing it at her head. When she turned the ignition, the Yukon’s starter made a grinding sound because the car was already running. The man told her not to move the car. When she nevertheless shifted into reverse, the man shot her three times. Then he ran. Walenta saw the light-colored car begin to move away after the shots were fired, and it possibly left the gunman behind.
Evidence at trial also showed several common elements among the three incidents that gave rise to the charges against the defendants.
The gun used to shoot out one of Schreiber’s tires, to shoot Walenta, and to shoot at least Aaron S. in the soccer field after the crimes at the Birchwood residence was the black Lorcin Seen in the possession of J. Carr by Adams on tire night of Walenta’s shooting. A light-colored car followed Walenta home on the night she was shot, and a similar car followed a female next-door neighbor of the three friends who lived in the Birchwood triplex when she drove home alone shortly before the home invasion. The Schreiber and Birchwood incidents involved two black men, one of whom was identified by a victim as R. Carr. Walenta also picked R. Carr’s picture out of a photo array as the person whose eyes most resembled those of her attacker. The Schreiber crime began with a man identified as R. Carr approaching Schreiber’s driver’s side window. Both Schreiber and four of the Birchwood victims were taken to ATMs to withdraw money from their bank accounts, and the perpetrators took other property from them. All three incidents occurred within days of each other in the northeast part of Wichita: the Schreiber incident began on December 7; the Walenta incident occurred on December 11; the Birchwood crimes occurred on December 14 and 15.
During an instructions conference at the defendants’ trial, the State requested an instruction telling jurors they could consider evidence related to the Schreiber and Birchwood incidents “for the limited additional purpose of determining the intent, identity, and motive of tire defendant as alleged in the counts involving [Walenta] as an alleged victim.” R. Carr’s counsel objected to the instruction, and Judge Clark denied the State’s request. The jury did receive an instruction telling it that each charged crime was a separate and distinct offense and that the jury “must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge.” Judge Clark also informed the jury that, in order to find R. Carr guilty of felony murder, the State had to prove beyond a reasonable doubt that the tolling of Walenta “was done while in the commission of or attempting to commit aggravated robbery.”
Evaluation of Evidence
When the sufficiency of the evidence is challenged in a criminal case,
“the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or malee witness credibility determinations. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).” State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013).
A conviction for felony murder cannot stand without sufficient evidence of one of the enumerated inherently dangerous felonies listed in K.S.A. 21-3436. See State v. Williams, 229 Kan. 290, 300, 623 P.2d 1334 (1981). Sufficient evidence, even for the gravest of offenses, may consist entirely of circumstantial evidence. State v. Ward, 292 Kan. 541, Syl. ¶ 13 (2011).
R. Carr does not argue that we are prohibited from reviewing all evidence, including inadmissible evidence, to determine sufficiency of the evidence on his felony-murder conviction. That we assumed error on the admissibility of law enforcement statements in the previous section is no barrier to consider those same statements here. See State v. Jefferson, 297 Kan. 1151, 1166, 310 P.3d 331 (2013) (reviewing court considers erroneously admitted evidence in reviewing sufficiency of evidence).
When the evidence of the Walenta felony murder is considered in isolation, we agree with R. Carr that it was insufficient to support his conviction of aggravated robbery or attempted aggravated rob-beiy. There simply was nothing to support an inference that the man who shot Walenta took property or intended to take property from her. Cf. State v. Calvin, 279 Kan. 193, 200, 105 P.3d 710 (2005) (felony-murder conviction affirmed based on underlying felony of attempted aggravated robbery; testimony offered indicating defendant intended to rob murder victim). The State’s case was just as consistent with an intention to commit other crimes— e.g., aggravated assault, attempted rape or other sex crimes, attempted aggravated kidnapping.
But our agreement with R. Carr on this point does not entitle him to reversal.
We have recently decided in another case that jurors may consider evidence from a string of residential burglaries on the issue of whether one of the perpetrators of those burglaries was present and participating in yet another burglary in the string, one that ended in murder of the homeowner. See McBroom, 299 Kan. 731, 756-59, 325 P.3d 1174 (2014).
Likewise, the jury in this case could consider evidence against R. Carr on the joined charges arising from the Schreiber and Birch-wood crimes when deciding whether to find him guilty or not guilty on the Walenta felony murder. The Schreiber and Birchwood evidence did not qualify as suspect other crimes propensity evidence under K.S.A. 60-455 and did not require a limiting instruction. See State v. Cromwell, 253 Kan. 495, 509, 856 P.2d 1299 (1993). In addition, the instruction given on the jury’s duty to consider each charge “separately on the evidence and law applicable to it, uninfluenced by [the jury’s] decision as to any other charge” did not prevent jurors from considering all of the evidence admitted in this joint trial. Under McBroom, some of the evidence supporting tire Schreiber and Birchwood charges also supported or was, in the words of the instruction, “applicable” to the Walenta charge.
With these rules established, the jury in this case was free to take into account that the three incidents giving rise to the charges against R. Carr were close together in time. Both Schreiber and Holly G. identified R. Carr as one of their assailants, and Walenta selected R. Carr’s picture from a photo array as the one in which the eyes most resembled her attacker. Ballistics testing showed that the gun used in all three incidents was tire same. Schreiber described the man who approached him in the driver’s seat of his car as holding tliat gun palm down, which was die same as Walenta’s description of her attacker. The Schreiber and Birchwood crimes definitely involved two men, who committed multiple aggravated robberies, and the Walenta crime appeared to involve a confederate of the gunman who waited in the light-colored car that followed Walenta home. A light-colored car also made a similar pass on the street of the Birchwood triplex just before the home invasion and its aftermath. As with Walenta, the person driving the car had followed a female neighbor going home alone in the late evening.
Because all of this evidence could be considered in conjunction with Walenta’s communicated recollections of the circumstances surrounding her shooting—and because this evidence included multiple aggravated robberies facilitated by similar perpetrators using similar tactics and the same gun—we reject R. Carr’s challenge to the sufficiency of the evidence to convict him of Walenta’s felony murder based on aggravated robbery. A rational factfinder could have found R. Carr guilty of this murder beyond a reasonable doubt.
8. Lesser Included Offense Instructions for Felony Murder
R. Carr did not request any lesser included offense instructions for felony murder at trial. During deliberations, the jury asked: “Can a lesser count be considered for a defendant on [the Walenta killing]?” Judge Clark responded: “The answer is no.”
Because R. Carr sought no lesser included offense instructions, we review his assertion that Judge Clark nevertheless should have given them for clear error. K.S.A. 22-3414(3); State v. Briseno, 299 Kan. 877, 326 P.3d 1074 (2014); State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To malee that determination, the appellate court must consider whether tire subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If tire reviewing court determines that the district court erred in giving or fading to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiiy, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains tire burden to establish the degree of prejudice necessary for reversal.” Williams, 295 Kan. 506, Syl. ¶¶ 4-5.
Under K.S.A. 22-3414(3), a district judge must give lesser included offense instructions “where there is some evidence that would reasonably justify a conviction of some lesser included crime.” At the time of the trial in this case, felony murder was excepted from application of K.S.A. 22-3414(3) under a court-made rule. See State v. Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (lesser included offense instructions need not be given in felony murder case unless evidence of underlying felony weak, inconclusive, conflicting).
In State v. Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011), this court abandoned the court-made exception to K.S.A. 22-3414(3). And we said that the holding of Berry would apply to all cases then pending on direct appeal, which would include this one. 292 Kan. at 514.
After Berry was decided, the legislature eliminated all lesser included offenses of felony murder. See L. 2012, ch. 157, sec. 2; see also K.S.A. 2012 Supp. 21-5109(b)(1).
In State v. Wells, 297 Kan. 741, Syl. ¶ 8, 305 P.3d 568 (2013), we examined the legislature’s action and held that it “was not merely procedural or remedial but substantive,” which meant the new legislation was not retroactive and would not cover this case.
The 2013 legislature acted again in reaction to Wells, making explicit its intention that the abolition of lesser included offenses of felony murder be retroactive. See L. 2013, ch. 96, sec. 2 (adding subsections [d], [e] to K.S.A. 2012 Supp. 21-5402; [d] reiterates abolition; [e] expresses retroactive intention).
In light of these legal developments, this court ordered the parties to submit supplemental briefing. They did so. Those supplemental briefs do not address the prerequisites that a lesser included offense instruction be factually and legally appropriate, and, for purposes of argument, we assume that at least second-degree murder would have met those criteria under the Berry rule. The outcome on this issue then turns only on whether the 2013 statutory amendments eliminating lesser included offenses for felony murder apply in this case.
R. Carr argues that the amendments cannot apply without violation of the Ex Post Facto Clause. We have now decided this issue adversely to him in State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), and do not revisit the rule or rationale of that case here.
R. Carr does not make an explicit due process argument to defeat application of the amended statutes eliminating lesser included offenses to felony murder. But he does assert that a defendant’s theory that the State has overcharged and he or she should be convicted instead of a lesser included offense is a type of defense to the more serious charge. See State v. Plummer, 295 Kan. 156, 159, 168, 283 P.3d 202 (2012) (defendant’s theory of defense on aggravated robbery commission of theft followed by scuffle with security guard trying to prevent escape of suspect; district judge erred in refusing to instruct on theft). And a criminal defendant’s right to present a defense and have jury instructions supporting the defense given is based in due process principles. See State v. McIver, 257 Kan. 420, Syl. ¶ 1, 902 P.2d 982 (1995); State v. Wade, 45 Kan. App. 2d 128, 135, 245 P.3d 1083 (2010). Thus, to the extent R. Carr relies on due process, we dispose of that argument as well by observing that we have now decided this issue against his position. See State v. Gleason, 299 Kan. 1127, 329 P.3d 1102 (2014).
9. Instruction, Multiplicity on Capital Murder
Defendant J. Carr argues in his separate appeal that faulty instructions on the K.S.A. 21-3439(a)(4) sex crime-based capital murders and a multiplicity problem on three of the four K.S.A. 21-3439(a)(6) multiple-death capital murders combined to require reversals. R. Carr makes the multiplicity argument. Because J. Carr and R. Carr were tried together on the same alternative charges and a single set of jury instructions, and because their juiy completed identical verdict forms for the two defendants in exactly the same way, J. Carr’s arguments on this combination of infirmities and its effect apply equally to R. Carr. Thus, although R. Carr made a less comprehensive argument on these problems, we address it in his case as well. See K.S.A. 2013 Supp. 21-6619(b) (court authorized to recognize, react to unassigned errors appearing in record on capital case “if the ends of justice would be served thereby”).
We focus first on the jury instructions on sex crime-based capital murder and the wording of the verdict forms. Next this opinion addresses the multiplicity issue on three of the four capital murder convictions. Ultimately, we conclude that these errors require reversal of three of R. Carr s four capital murder convictions.
Additional Factual and Procedural Background
The amended complaint charged both defendants with capital murder in Counts 1 through 8. Each odd-numbered count among these eight was alternative to the even-numbered count following it.
The odd-numbered counts alleged capital murder of one person—Heather M., Aaron S., Brad H., or Jason B.—under K.S.A. 21-3439(a)(4), which prohibits premeditated murder of a victim of rape, criminal sodomy, or aggravated criminal sodomy in the commission of, subsequent to, or in the attempt of any of those three crimes.
The even-numbered counts alleged capital murder of all four victims of the quadruple homicide under K.S.A. 21-3439(a)(6), which prohibits the “premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.” Each count was drafted to accuse the defendants of killing one of the four victims in a transaction in which the three others also were killed. The only difference from one even-numbered count to the next was the position of the victims’ names.
A single set of jury instructions on the alternative capital counts applied to both defendants, and the eight capital counts from the amended complaint were combined into four instructions labeled Counts “One (1)” through “Four (4).” The heading of each instruction named one of the quadruple homicide victims as its subject, but the text of the four instructions was exactly the same, with the exception of the shifting positions of the four victims’ names on the multiple-homicide alternative.
For example, Instruction No. 12 on the capital murder of Heather M. read:
“INSTRUCTION NO. 12 “COUNT ONE (1)
“HEATHER [M.]
“Each defendant is charged in Count One with the crime of Capital Murder. Each defendant pleads not guilty to the charge.
“To establish this charge against an individual defendant, each of the following claims must be proved. Each must be proved beyond a reasonable doubt.
“1. That the defendant intentionally killed Heather [M.];
“2. That such killing was done with premeditation;
“3. (A.) That Heather [M.] was a victim of rape and/or aggravated criminal sodomy, and such killing was done in the commission of or subsequent to such rape and/or aggravated criminal sodomy;
“OR
“3. (R.) That the premeditated and intentional killing of Heather [M.] and the killing of Brad [H.], Jason [B.] and Aaron [S.] was [sic] a part of the same act or a part of two or more acts connected together or constituting parts of a common scheme or course of conduct;
“4. That this act occurred on or between the 14th day of December, 2000, and the 15th day of December, 2000, in Sedgwick County, Kansas.
“The elements of tire crime of Rape are found in Instruction No. 37 and those of Aggravated Criminal Sodomy are found in Instruction No. 39.”
Instruction number 37, incorporated into each of the four instructions on the elements of capital murder, read:
“INSTRUCTION NO. 37
“COUNT SEVENTEEN (17)
“H.G.
“Each defendant is charged in Count Seventeen with the crime of Rape. Each defendant pleads not guilty.
“To establish this charge against an individual defendant, tire following elements must be proved. Each must be proved beyond a reasonable doubt.
“1. That the defendant caused H.G. to commit an act of sexual intercourse with Heather [M.];
“2. That the act of sexual intercourse was committed without the consent of H.G. under circumstances where she was overcome by force or fear; and
“3. That this act occurred on or between the 14th day of December, 2000, and the 15th day of December, 2000, in Sedgwick County, Kansas.
“Sexual intercourse means any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Instruction 39, also incorporated into each of the instructions on the elements of capital murder, read:
“INSTRUCTION 39
“COUNT NINETEEN (19)
“H.G.
“Each defendant is charged in Count Nineteen with the crime of Aggravated Criminal Sodomy. Each defendant pleads not guilty.
“To establish this charge against an individual defendant, the following elements must be proved. Each must be proved beyond a reasonable doubt.
“1. That tire defendant caused H.G. to engage in sodomy with Heather [M.];
“2. That the act of sodomy was committed without the consent of H.G. under circumstances where she was overcome by force or fear; and
“3. That this act occurred on or between the 14th day of December, 2000, and the 15th day of December, 2000, in Sedgwick County, Kansas.
“Sodomy means oral contact or oral penetration of the female genitalia or oral contact of the male genitalia or anal penetration, however slight, of a male or female by any body part or any object.”
In other words, the four jury instructions on the elements of sex crime-based capital murder—whether the victim named in the heading was Heather M., Aaron S., Brad H., or Jason B.—directed jurors to Instructions 37 and 39 for the elements of the crimes capable of supporting convictions of the defendants for capital murder under K.S.A. 21-3439(a)(4). And Instructions 37 and 39 were tire elements instructions for rape and aggravated sodomy of Holly G., and not of any of the four homicide victims.
Instruction No. 72, the jury’s final instruction, said that its “agreement on a verdict must he unanimous.”
The verdict forms for each defendant also combined the alternative counts from the amended complaint into four counts and were identically worded from count to count and from defendant to defendant, with the exception of their headings and the shifting positions of the four victims’ names on the multiple-homicide alternative.
For example, the verdict form for R. Carr for Count 1, the capital murder of Heather M., read:
“We, the jury, being duly sworn upon our oath make the following findings concerning the crimes charged against the defendant Reginald D. Carr, Jr.:
“COUNT ONE (1)
“CAPITAL MURDER
“HEATHER [M.]
“1. _ Guilty of the Capital Murder of Heather [M.j
Please circle the letter (A. and/or B.) in front of each statement that you find has been proved by the evidence:
A. We find that the evidence proves that Heather [M.] was a victim of rape and/or aggravated criminal sodomy and she was killed in the commission of or subsequent to such rape and/or aggravated criminal sodomy.
B. We find that tire evidence proves that the premeditated and intentional killing of Headier [M.] and die killing of Brad [H.], Jason [B.J and Aaron [S.J was [sic] a part of die same act or a part of two or more acts connected togetiier or constituting parts of a common scheme or course of conduct.
OR
(FIRST LESSER INCLUDED OFFENSE)
"2. .-. Guilty of the First Degree Murder of Heather [M.]
OR
(SECOND LESSER INCLUDED OFFENSE)
“3. -- Guilty of the Second Degree Murder of Heather [M.J
OR
“4. _ Not guilty of Count One (1)
The juiy found both defendants guilty on all four counts of capital murder. On each of the four verdict forms for both defendants, the jury circled both the A and B options.
The Legal Framework and the Parties’ Arguments
The defense arguments on this issue have their genesis in a rule recognized by the United States Supreme Court in 1931 in Stromberg v. People of State of California, 283 U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931).
In that case, the defendant was charged with displaying a red flag in violation of a statute that prohibited the display “as a sign, symbol or emblem of opposition to organized government or as an invitation or stimulus to anarchistic action or as an aid to propaganda that is of a seditious character.” 283 U.S. at 361. The instructions charged the jury in the language of the statute, and jurors were told they could find the defendant guilty if she had displayed the flag for any of tire three listed purposes. The jury returned a general verdict of guilty. 283 U.S. at 361, 363, 367-68.
The state appellate court, while doubting the constitutionality of the statute’s prohibition of a display “as a sign, symbol or emblem of opposition to organized government,” nevertheless upheld the defendant’s conviction because it believed the rest of the statute to be constitutional. 283 U.S. at 361.
The United States Supreme Court rejected the state appellate court’s reasoning, saying:
“We are unable to agree with this disposition of the case. The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the [jurors were] instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of tírese clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause .... It follows that instead of its being permissible to hold, with the state court, that tire verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under tire Federal Constitution, the conviction cannot be upheld.” 283 U.S. at 367-68.
Stromberg was followed by two other United States Supreme Court cases relevant here.
In Yates v. United States, 354 U.S. 298, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), overruled on other grounds Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the Supreme Court applied the logic of Stromberg to a case in which neither of the two ways in which the jury could have arrived at conviction was constitutionally inadequate, but one of them was barred by the statute of limitations. “In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Yates, 354 U.S. at 312 (citing Stromberg, 283 U.S. at 367-68); Cramer v. United States, 325 U.S. 1, 36, 65 S. Ct. 918, 89 L. Ed. 1441 [1945]); Williams v. State of North Carolina, 317 U.S. 287, 291-92, 63 S. Ct. 207, 87 L. Ed. 279 [1942]).
In the other case, Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), the Court addressed a situation in which an absence of proof, rather than legal insufficiency, was at issue. The Court left the holdings of both Stromberg and Yates intact. See Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (“A conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one.”) (citing Stromberg, 283 U.S. 359; Yates, 354 U.S. 298).
Acknowledging that “a host of our decisions” before and after Yates had applied “ ‘the rule of the Stromberg case to general-verdict convictions that may have rested on an unconstitutional ground,” the Court recognized that Yates extended the holding of Stromberg to a new situation, one in which a possible basis of a general verdict “did not violate any provision of the Constitution but was simply legally inadequate.” Griffin, 502 U.S. at 55.
Griffin did not do likewise when the problem with a possible avenue to conviction was factual rather than legal. 502 U.S. at 59 (citing Duncan v. Louisiana, 391 U.S. 145, 157, 88 S. Ct. 1444, 20 L. Ed. 2d 491 [1968]).
Our Kansas precedent demonstrates at least some inclination to embrace the general rationale and result of Stromberg, as extended by Yates. See State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003) (when verdict shows jury specifically rejected legally sound theory in favor of what court deems legally unsound theory, conviction must be reversed).
Several federal circuit courts and other state courts follow Stromberg and Yates. See United States v. Lawson, 677 F.3d 629, 655 (4th Cir. 2012), cert. denied 133 S. Ct. 393 (2012) (Yates requires reversal when case submitted to jury on two or more theories, one theory legally inadequate; general verdict cannot rule out jury reliance on inadequate theory); United States v. Howard, 517 F.3d 731 736-37, (5th Cir. 2008) (same); People v. Morgan, 42 Cal. 4th 593, 612-13, 170 P.3d 129 (2007) (prosecutor’s argument on one legally adequate, one legally inadequate theory requires reversal when instructions did not guide jury; impossible to determine which theory formed basis of verdict); Fitzpatrick v. State, 859 So. 2d 486, 491 (Fla. 2003) (conviction resting on general jury verdict that may have been based on legally insufficient theory cannot be sustained); Robinson v. State, 266 S.W.3d 8, 14 (Tex. App. 2008) petition for discretionary review refused (Feb 25, 2009) (jury’s option to convict on legally defective theory egregious error in capital murder case).
In Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983), tire United States Supreme Court recognized two rules that could be taken from Stromberg:
“One rule derived from the Stromberg case requires that a general verdict must be set aside if the jury was instructed that it could rely on any of two or more independent grounds, and one of those grounds is insufficient, because the verdict may have rested exclusively on the insufficient ground. . . .
“The second rule derived from the Stromberg case . . . made clear that the reasoning of Stromberg encompasses a situation in which the general verdict on a single-count indictment or information rested on both a constitutional and an unconstitutional ground.” 462 U.S. at 881-82.
The defense argument is that all four of the capital murder convictions must be reversed; one conviction, because it rested on both a legally adequate and legally inadequate ground, and three convictions, because they rested on two legally inadequate grounds. The State argues that the jury unanimously found the defendants guilty on each ground and that at least one ground was valid for each conviction, preserving all four verdicts.
Our overview of the legal framework and the parties’ arguments brings us to the question of whether either or both of the capital murder theories pursued by the State was legally inadequate. As stated, we first focus on the instructions given for the sex crime-based K.S.A. 21-3439(a)(4) capital murder alternative.
K.S.A. 21-3439(a)(4) Instructions Evaluation
Neither defendant objected to the K.S.A. 21-3439(a)(4) instructions. Our review is therefore governed by K.S.A. 22-3414(3): “No party may assign as error the giving or failure to give an instruction . . . unless the party objects thereto . . . unless the instruction or the failure to give an instruction is clearly erroneous.” See State v. Kleypas, 272 Kan. 894, 939, 40 P.3d 139 (2001) (clearly erroneous standard applies in death penalty cases).
We have recently expanded on exactly what “clearly erroneous” means.
In State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), we said that the phrase serves as both a conditional grant of reviewability when the instruction issue was not preserved below and as a standard of reversibility if error in the instruction is identified. 295 Kan. at 515. We deal here with reviewability, which is not only provided for by K.S.A. 22-3414(3) itself; it is also provided for by K.S.A. 2013 Supp. 21-6619(b) for death penalty cases. Under Williams, once reviewability is resolved, we determine de novo whether there was any error in the instructions. To malee that determination, we “ ‘consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 4).
As we explained the concept of “legally and factually appropriate” in State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012):
“[A]n instruction must always fairly and accurately state tire applicable law, and an instruction that does not do so would be legally infirm ....
“Next, even if the instruction is legally appropriate when viewed in isolation, it must be supported by the particular facts of the case at bar.”
Under Williams, the burden to show error is always on the complaining party, in this case, the defendants.
The defense characterizes the portions of the capital murder instructions focused on K.S.A. 21-3439(a)(4) as legally inappropriate because they failed to state the elements required to prove the offense and thus violated the defendants’ rights under the Sixth and Fourteenth Amendments to the United States Constitution. In particular, J. Carr argues in his brief:
“[B]ecause a conviction of capital murder under K.S.A. 21-3439(a)(4) is dependent upon elements of a specific sex offense against the particular victim killed—indeed, it is the commission of the sex offense which elevates the intentional and premeditated killing of a particular person from ordinary premeditated first-degree murder to capital murder—the elements pertaining to tire underlying sex offense are essential elements of the crime of capital murder that must be submitted to a jury and found unanimously beyond a reasonable doubt as required under the Sixth and Fourteenth Amendments to the United States Constitution. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) (Sixth Amendment requires that finding of fact which increases tire maximum sentence be found by a jury beyond a reasonable doubt); Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556,122 S. Ct. 2428 (2002) (Sixth Amendment right to jury trial extends to finding of fact necessary to impose death penalty), overruling Walton v. Arizona, 497 U.S. 639, 111 L. Ed. 2d 511, 110 S. Ct. 3047(1990). See also Schad v. Arizona, 501 U.S. 624, 637-643, 115 L. Ed. 2d 555, 111 S. Ct. 2491 (1991) (when legislature’s definition of offense specifies facts which are ‘necessary to constitute the crime,’ due process and fundamental fairness, and the rationality that is a component of fundamental fairness, require that such facts be found by the jury beyond a reasonable doubt) (quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) . . .). Consequently, when the jury is instructed on the elements of a capital murder charge under K.S.A. 21-3439(a)(4), the instruction must specify and set forth the elements of the underlying sex offense on which the conviction of capital murder depends.” State v. Carr, No. 90,198, Brief of Appellant, 90-91.
This argument is correct. The portions of the capital murder instructions focused on K.S.A. 21-3439(a)(4) incorporated the elements from two other instructions, 37 and 39, that attempted to describe sex offenses against Holly G. rather than the victim of the murder. Although Judge Clark used the then-current PIK instruction on capital murder, he apparently did not fully grasp the import of the comments to that instruction, which included: “When defendant is charged with a capital murder done in the commission of or subsequent to another offense, tire elements of the other offense should be set out in a separate instruction.” PIK Crim. 3d 56.00-A (2002 Supp.). Instead, Judge Clark directed the juiy to instructions that, although they were separate, dealt with crimes against a victim other than those who were the victims of tire capital crimes. We note that the PIK Committee has now made the error committed here more obvious by placing the elements of the underlying offense against a capital murder victim in the capital murder instruction itself. See PIK Crim. 4th 54.020.
Numerous cases of this court have held that “[w]hen a statute makes the commission of a crime or the intent to commit a crime an element of another crime, the jury instructions must set out the statutory elements of the underlying offense.” State v. Richardson, 290 Kan. 176, 182, 224 P.3d 553 (2010) (instructions should have identified, defined moving violations forming basis for charge of felony fleeing, attempting to elude police officer) (citing State v. Rush, 255 Kan. 672, 679, 877 P.2d 386 [1994] [when judge instructed on burglary, element of defendant knowingly entering building “with intent to commit a theft therein” mentioned; yet instruction failed to instruct juiy completely on elements of theft]); State v. Linn, 251 Kan. 797, 801-02, 840 P.2d 1133 [1992] superseded by statute on other grounds State v. Hedges, 269 Kan. 895, 8 P.3d 1259 [2000] [aggravated burglary instruction must set out elements of offense intended by accused when making unauthorized entry]); see State v. Rivera, 48 Kan. App. 2d 417, 446-47, 291 P.3d 512 (2012) (defendant charged with involuntary manslaughter, endangering child; although elements of endangering child set out in instruction for that charge, error to omit them in instruction on involuntary manslaughter).
The disconnect between the K.S.A. 21-3439(a)(4) language in tire capital murder instructions and the incorporated language in Instructions 37 and 39 on rape and aggravated criminal sodomy means that those portions of the capital murder instructions were incorrect statements of the governing law. Because a complete and accurate listing of the elements of tire charged offense is fairly described as one of the most basic requirements of criminal juiy instructions, one of the indispensable building blocks of any resulting conviction, see In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), under Williams, the instructions were legally inappropriate; under Stromberg and Yates, they were legally inadequate. See Griffin, 502 U.S. at 55. For our purposes, we need not consider whether the instructions also were factually inappropriate.
Were we reviewing these instructions in isolation under Williams, we would next move to the reversibility under the “clearly erroneous” rubric. See Williams, 295 Kan. at 516. Under Strom-berg, however, tire next question is whether the other theory available to the jury was legally adequate. Consequently we turn to the alternatives based upon multiple homicides under K.S.A. 21-3439(a)(6) to determine whether they provided the jury a legally adequate alternative on which to base the capital convictions.
K.S.A. 21-3439(a)(6) Multiplicity Evaluation
R. Carr challenges three of his four capital murder convictions, to the extent they were based on the multiple-homicide theory of K.S.A. 21-3439(a)(6), as multiplicitous.
“When an appellate court reviews a ruling on a double jeopardy or multiplicity issue, an unlimited scope of appellate review applies. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009); State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d 28 (2007).” State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009). Such a claim raises a question of law. State v. Scott, 286 Kan. 54, 65, 183 P.3d 801 (2008) (quoting Harris, 284 Kan. 560, Syl. ¶ 3).
Multiplicity is the charging of a single offense in more than one count of a complaint or information. It creates the potential for multiple punishments for a single crime, offending the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights. Scott, 286 Kan. at 65 (quoting Harris, 284 Kan. 560, Syl. ¶ 1).
Although neither defendant objected at trial to the State pursuing multiple capital murder convictions under K.S.A. 21-3439(a)(6), their multiplicity claim can be considered for the first time on appeal in order to serve the ends of justice and prevent a denial of fundamental rights. Harris, 284 Kan. at 569; State v. Nguyen, 285 Kan. 418, 433, 172 P.3d 1165 (2007) (addressing mul tiplicity claim for first time on appeal because it implicates fundamental right not to be placed in jeopardy twice for same offense). In addition, K.S.A. 2013 Supp. 21-6619(b) requires us to “consider . . . any errors asserted” in a death penalty case.
All four capital convictions against the defendants rest, at least in part, on a juiy finding that each defendant intentionally and with premeditation lulled more than one person under K.S.A. 21-3439(a)(6). The State concedes that only one capital conviction under this statutory subsection can stand, and that the three others, to the extent they rest on that theoiy, are multiplicitous. See Harris, 284 Kan. at 571-78 (unit of prosecution under K.S.A. 21-3439[a][6] is more than one killing; more than one victim required to have prosecutable offense; killing of second, subsequent victim makes murder of group of victims punishable by death).
Under the language of the amended complaint and the jury instructions in this case, in order to avoid double jeopardy under the federal and state constitutions, R. Carr could be convicted and punished for only one count of capital murder under K.S.A. 21-3439(a)(6) for the killing of all four victims. The jury’s reliance on 21-3439(a)(6) to undergird his three other capital convictions was, therefore, legally inadequate under Stromherg and Yates.
We turn next to whether any of the capital convictions may yet stand because the constitutional error identified in Stromherg and Yates can be deemed harmless. See Hedgpeth v. Pulido, 555 U.S. 57, 60-61, 129 S. Ct. 530, 172 L. Ed. 2d 388 (2008) (Stromherg, Yates predated United States Supreme Court’s recognition in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967], of harmlessness of some constitutional error; error not structural, subject to harmless error test).
Under Chapman, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24. The issue is not whether the juiy would have reached a different verdict but rather whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24.
We begin by recalling that Zant, 462 U.S. at 881-82, identified two possible errors derived from Stromberg—one being that the jury may have chosen to base a conviction on a legally inadequate ground rather than the otherwise legally adequate grounds permitted in the instructions, and one being that a jury did rely on both an adequate and inadequate ground.
The jury had the option under Section 1 on Guilt of Capital Murder to circle A “and/or” B on the forms, indicating its finding that tlie State had proved both or just one theory of capital murder. Option A was sex crime-based capital murder under K.S.A. 21-3439(a)(4), and Option B was multiple-homicide capital murder under K.S.A. 21-3439(a)(6). The jury circled both options for each of the four victims.
On three of four of the capital verdict forms, because of the “and/or” between A and B on the verdict forms submitted to the juiy, it was permitted to find guilt by selecting a legally inadequate ground under die K.S.A. 21-3439(a)(4) instructions or a legally inadequate ground on the K.S.A. 21-3439(a)(6) multiplicitous charges. Because the jury circled both A and B, we know that die jury’s four guilty verdicts on capital murder counts actually were based on both subsections of the statute. This resembles the second type of Stromberg error, because we know the jury relied on a legally inadequate ground. And since there was no legally adequate ground presented on three of those charges, we conclude that three of the four capital convictions must be reversed.
On R. Carr’s remaining capital conviction, we are convinced that reversal is unnecessary under Chapmans harmless error standard.
We have two reasons for this holding.
First is die last line of the jury instructions given by Judge Clark: “Your agreement upon a verdict must be unanimous.” When this sentence is read in conjunction with the “and/or” language on the verdict forms, we believe the most sensible and by far most likely construction is that neither A nor B could be circled if jurors did not unanimously vote for guilt on the individual theory following that letter designation. There is nothing in the instructions or verdict form indicating that jurors were told or would have understood that they were free to cobble together theories to get 12 votes for guilt. This means that one of the jury’s unanimous verdicts on the K.S.A. 21-3439(a)(6) multiple-homicide theory was not polluted by either instruction error or multiplicity. This convinces us beyond a reasonable doubt that the instructional error on the sex-crime alternative for this count did not contribute to the verdict obtained on the valid multiple-homicide alternative.
Second is the nature of the evidence on the capital murders. There was no possible dispute that four persons were shot and killed in tire early morning of December 15, 2000, while kneeling side by side in the snow. The essence of R. Carr’s defense was that Holly G.’s identification of him was mistaken and that he was not one of the two men who participated in these shootings or the crimes that preceded them. He did not, and could not, credibly assert that only Heather M. or only Aaron S. or only Brad H. or only Jason B. died. This reinforces our decision to affirm one of the K.S.A. 21-3439(a)(6) convictions. That subsection of the statute focuses on multiple homicides; it is the fact that more than one person is killed that elevates the crime from premeditated first-degree murder to a death-eligible crime. The juiy in this case, indeed, no juiy who heard the same evidence as that put on in this case, could have concluded this was not a multiple-homicide situation. There was nothing about the instructions or verdict forms used here that could have altered that reality.
We are left with the task of specifying, for procedure’s sake, tire conviction that will be upheld. We note in doing so that the manner in which the State charged tire multiple murder counts ties each charge to a particular victim when, in fact, it was the murder of all four victims that is punishable by death. Because the charge alleging the capital murder of Heather M. was the first in the amended complaint, the juiy instructions, and the verdict forms, we choose that conviction to uphold. In doing so, we wish to make clear that we are upholding R. Carr’s capital conviction for the murder of all four of the victims.
10. Special Unanimity Instruction on Capital Murder
R. Carr asserts on appeal that the juiy should have been given a special unanimity instruction on alternative capital murder charges based on K.S.A. 21-3439(a)(4) because jurors may not have understood that they needed to be unanimous on the sex crime underlying each capital murder charge under this subsection.
R. Carr’s argument reflects a misunderstanding of the difference between a multiple acts issue and an alternative means issue. They differ in critical ways. See State v. Becker, 290 Kan. 842, 854-55, 235 P.3d 424 (2010).
At most, if more than one possible sex crime underlay each capital murder charge based on K.S.A. 21-3439(a)(4), that would set up tire possibility of an alternative means issue, requiring the State to put on sufficient evidence of each sex crime as a means of committing the one capital murder charged. See State v. Brown, 295 Kan. 181, 196-97, 284 P.3d 977 (2012).
If more than one possible sex crime underlay each capital murder charge based on K.S.A. 21-3439(a)(4), that would not set up a multiple acts issue requiring a special unanimity instruction or an election by the prosecution. See State v. Ultreras, 296 Kan. 828, 854-55, 295 P.3d 1020 (2013); State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794 (2007). There was a single offense committed for each of the alternative K.S.A. 21-3439(a)(4) capital murders charged in this case, i.e., the killing of each of the four victims of the quadruple homicide.
Having made these preliminaiy comments, we decline to further discuss the merits of this issue because it is moot. See State v. Dominguez, 299 Kan. 567, 593, 328 P.3d 1094 (2014) (appellate courts do not generally decide moot questions). We have already ruled that instructions on the K.S.A. 21-3439(a)(4) alternative capital murder charges were legally unsound and, to the extent R. Carr’s s four capital convictions rested upon them, they have to be reversed.
11. Sex Offenses as Lesser Included Offenses of Capital Murder
R. Carr argues drat his convictions for certain sex offenses must be reversed because the sex offenses constitute lesser included offenses of capital murder under K.S.A. 21-3439(a)(4). Because we have decided that all of the capital convictions, to the extent they rested upon this subsection of the statute, must be reversed because of fatal instruction error, we need not reach this lesser included offenses argument. It is moot, and appellate courts do not generally decide moot questions. See Dominguez, 299 Kan. at 593.
12. Sufficiency of Evidence of Aggravated Burglary
J. Carr has challenged the sufficiency of evidence to prove aggravated burglary of the Birchwood home in his separate appeal. We treat this issue as potential unassigned error in this appeal on behalf of R. Carr. See K.S.A. 2013 Supp. 21-6619(b). Because the defendants were tried together on the same evidence in support of the same complaint and under the same jury instructions, the legal arguments made on behalf of one defendant on this issue apply equally to the other. Under K.S.A. 2013 Supp. 21-6619(b), which permits us to notice unassigned error in a capital case, we take up all defense arguments in this opinion on the Birchwood crimes, regardless of whether any individual argument was raised first by R. Carr or by J. Carr.
Our standard of review on sufficiency of the evidence is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Lopez, 299 Kan. 324, 328, 323 P.3d 1260 (2014) (citing State v. Harris, 297 Kan. 1076, 1081, 306 P.3d 282 [2013], and State v. Qualls, 297 Kan. 61, Syl. ¶ 1, 298 P.3d 311 [2013]).
Aggravated burglary requires entering into or remaining within any occupied structure without authority and with intent to commit a felony therein. See K.S.A. 21-3716. The defense argues that there was no evidence in this case that the defendants entered into or remained widrin the Birchwood home without authority.
We disagree. Even the most serious crime can be proved by circumstantial evidence. See Lopez, 299 Kan. at 332 (citing State v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 [2002]). And, here, there was abundant evidence, albeit circumstantial, that the defendants entered into and remained within the home without authority.
Although Holly G. did not see the defendants enter the house from the outdoors, she testified that Jason B. had locked up and turned out the front porch light, that he and she had retired to his bedroom for the night, and that the porch light came back on and she heard Aaron S.’s voice and another voice she did not recognize. Right away, she said, the door to Jason B.’s bedroom burst open and the defendants, both holding guns, entered. One of them ripped the covers off the bed. The other brought Aaron S. into the room, holding him by the back of his shirt, and threw him onto the bed. Both defendants started shouting questions and orders. Brad H. had to be brought in from his bedroom in the basement of the home. Heather M. had to be brought in from Aaron S.’s bedroom. This testimony certainly supported an inference that any other visitor was unexpected and unwelcome.
It is true that Holly G. did not testify that any of the Birchwood victims ever demanded or requested that the defendants leave the home, but the absence of such an explicit demand or request, given the guns that the defendants persisted in waving around and their intermittent oral threats, cannot be equated with permission for their continued presence in the home.
The cases cited by the defense are distinguishable and unconvincing. See State v. Hall, 270 Kan. 194, 14 P.3d 404 (2000); State v. Gutierrez, 285 Kan. 332, 172 P.3d 18 (2007). They deal with situations in which defendants entered structures when they clearly had permission to do so and the issue was whether permission was withdrawn. The evidence before the jury in this case, viewed in the light most favorable to the State, supported a reasonable inference that Aaron S. responded to a knock at the front door and was met by two armed men who immediately threatened him with guns and entered without consent, taking him captive as they did so. It also supports the inference that the armed men remained in the home without permission, but only by terrorizing Holly G. and the four other victims.
This issue is without merit.
13. Coerced Victim-on-Victim Acts
Under assorted issue headings in their briefs to this court, the defendants have argued that there are three types of infirmities in their rape and attempted rape convictions on charges in which the defendants are alleged to have forced one of the Birchwood victims to engage in a sex act with another victim, i.e., “victim-on-victim” acts. The three types are: charging deficiency in tire amended complaint; juiy instruction error that mimicked the charging deficiency; and insufficiency of evidence.
Additional Factual and Procedural Background
The victim-on-victim rape and attempted rape counts as charged by the State in the amended complaint were: Count 25 for rape of Holly G. for her coerced digital penetration of Heather M.; Count 26 for rape of Heather M. for her coerced digital penetration of Holly G.; Count 29 for rape of Holly G. for her coerced sexual intercourse with Brad H.; Count 30 for rape of Brad H. for his coerced sexual intercourse with Holly G.; Count 31 for rape of Holly G. for her coerced sexual intercourse with Jason B.; Count 32 for rape of Jason B. for his coerced sexual intercourse with Holly G.; Count 33 for rape of Holly G. for her coerced sexual intercourse with Aaron S.; Count 34 for rape of Aaron S. for his coerced sexual intercourse with Holly G.; Count 35 for attempted rape of Aaron S. for his coerced attempted sexual intercourse with Heather M.; Count 36 for attempted rape of Heather M. for her coerced attempted sexual intercourse with Aaron S.; Count 37 for attempted rape of Jason B. for his coerced attempted sexual intercourse with Heather M.; Count 38 for attempted rape of Heather M. for her coerced attempted sexual intercourse with Jason B.; Count 39 for attempted rape of Brad H. for his coerced attempted sexual intercourse with Heather M.; and Count 40 for attempted rape of Heather M. for her coerced attempted sexual intercourse with Brad H. Count 41 for rape of Holly G. based on her coerced digital penetration of herself will be addressed separately below.
The language of each of the rape counts for victim-on-victim sex acts followed an identical pattern, typified by the first among them, Count 25:
“[0]n or between the 14th day of December, 2000, A.D., and the 15th day of December, 2000, A.D., in the County of Sedgwick, State of Kansas, one REGIN ALD D. CARR a/k/a REGGIE CARR and JONATHAN D. CARR a/k/a JONATHAN HARDING did then and there unlawfully, cause H[olly] G. to commit an act of sexual intercourse by digital penetration of the vagina of Heather [M.] while H[olly] G. did not consent to the sexual intercourse when H[olly] G. was overcome by force or fear; ....
“Contrary to Kansas Statutes Annotated 21-3S02(l)(a), Rape . . .
In other words, the amended complaint accused the defendants of causing one of the five persons at tire Birchwood home to engage in sexual intercourse with another of the persons at the Birchwood home, when the person caused to engage in the act did not consent and was overcome by force or fear.
The attempted rape counts contained the same causation language and allocated die roles among the participants in the same way. But, instead of alleging sexual intercourse, they alleged an overt act toward commission of sexual intercourse.
None of the victim-on-victim charges of rape or attempted rape stated that the second Birchwood participant did not consent or was overcome by force or fear.
Before trial, R. Carr moved to dismiss the victim-on-victim charges for rape and attempted rape, alleging that the complaint failed to allege criminal conduct under Kansas’ rape statute. According to R. Carr, Kansas’ rape statute did not criminalize the act of forcing two nonconsenting persons to engage in sexual intercourse. The district court denied the motion, saying, “ ‘[H]e who acts through another acts himself.’ ”
The trial evidence in support of each of the victim-on-victim rapes and attempted rapes came from Holly G.’s description of the events at the Birchwood home. This evidence did not differentiate between the defendants or parse their individual contributions to the causation described in the amended complaint.
Each of the judge’s instructions for the victim-on-victim sex crimes also followed an identical pattern, typified by the first among them, Instruction No. 37, on which Holly G. was the designated victim:
“Each defendant is charged in [Count 25] with the crime of Rape. Each defendant pleads not guilty.
“To establish this charge against an individual defendant, the following elements must be proved. Each must be proved beyond a reasonable doubt.
1. That the defendant caused H[olly]G. to commit an act of sexual intercourse with Heather [M.];
2. That the act of sexual intercourse was committed without the consent of H[olly]G. under circumstances where she was overcome by force or fear; and
Again, none of the instructions for the victim-on-victim sex crimes stated that the second participant in the completed or attempted rape did not consent or was overcome by force or fear. The person designated as the victim in each instruction was the person caused to engage in the criminal act perpetrated upon his or her friend.
In addition, Instruction No. 8 informed the jury that:
“A person who, either before or during its commission, intentionally aids, abets, advises, or counsels another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of die extent of the person’s participation, if any, in the actual commission of the crime.
“A person who, eidier before or during its commission, intentionally counsels, procures or uses force or the direat of force to compel another to commit a crime is responsible for the crime although the other who directly committed the act constituting die crime lacked criminal or legal capacity.”
The verdict forms for each of these crimes simply gave the jury the option of choosing guilty or not guilty of the crime against the victim designated in the relevant instruction.
The Standard of Review and the Controlling Statutes
Resolution of this issue requires us to interpret the rape, aggravated criminal sodomy, attempt, and criminal liability statutes; and interpretation of a statute raises a question of law subject to unlimited review on appeal. See State v. Johnson, 297 Kan. 210, 215, 301 P.3d 287 (2013).
In addition,
“ *[i]t has long been die rule in Kansas diat all crimes are established by legislative act. There are no common law crimes in the state, and diere can be no conviction except for such crimes as are defined by statute. State v. Young, 55 Kan. 349, 356, 40 P. 659 (1895).’
“ ‘It is also the rule in this state that a criminal statute will not be “extended by courts to embrace acts or conduct not clearly included within its prohibitions.” State v. Doyen, 224 Kan. 482, 488, 580 P.2d 1351 (1978).’ ” State v. Stewart, 281 Kan. 594, 598, 133 P.3d 11 (2006) (quoting State v. Sexton, 232 Kan. 539, 542-43, 657 P.2d 43 [1983]).
K.S.A. 21-3502 sets out the elements of rape. Its subsection (a)(1)(A) defines the crime as “[sjexual intercourse with a person who does not consent to the sexual intercourse . . . [wjhen the victim is overcome by force or fear.” K.S.A. 21-3501(1) defines “sexual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
An attempt, under K.S.A. 21-3301(a), 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. 21-3205 provides:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(3) A person hable under this section may be charged with and convicted of the crime although the person alleged to have directly committed tire act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on tire same act.”
Charging Deficiency
Because defendants filed a pretrial motion to question whether these counts in the amended complaint charged crimes under Kansas law, we apply the standard that predates our opinion in State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003) (charging document challenge raised for first time on appeal must meet higher burden). See State v. Reyna, 290 Kan. 666, 677, 234 P.3d 761 (2010). Under the pre-Hall standard, “ ‘[A] conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void.’ ” State v. Schultz, 252 Kan. 819, 835, 850 P.2d 818 (1993) (quoting State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 [1985]). This issue presents a question of law over which this court’s review is unlimited. Reyna, 290 Kan. at 675.
In all of the counts challenged, the defendants were charged with “causing” the victim of the rape or attempted rape to rape or attempt to rape another person. The State identified tire victim in each count by denoting the individual who did not consent to die sexual intercourse and who had been overcome by force or fear. The individual counts did not identify whether the other person involved did not consent or was overcome by force or fear. The defendants did not personally, physically rape or attempt to rape anyone under these counts. The coercion described in each count was exerted by the defendants only on the victim.
We see several interrelated problems with these charges.
First, our rape statute does not make causing a rape to be committed a crime. This is in contrast to. other Kansas statutes, such ■as tire one defining aggravated criminal sodomy. See K.S.A. 21-3506(a)(3)(A) (crime includes “causing a person, without the person’s consent, to engage in sodomy with any person ... [w]hen die victim is overcome by force or fear). Here, each defendant was properly charged, tried, and convicted of two counts of aggravated criminal sodomy for causing Holly G. to perform oral sex on Pleather M. and for causing Headier M. to perform oral sex on Holly G. The aggravated criminal sodomy statute and the two counts borrowing from its language make clear that the victim is the person unwillingly caused to engage in die sexual conduct by the defendants. The rape statute does not.
Second, the State’s eventual intermittent invocation of aiding and abetting theory under K.S.A. 21-3205(1) does not cure the charging deficiency, because aiding and abetting theory requires the existence of a principal. Aiding and abetting presupposes the existence of more than one actor, die defendant and the principal he or she assists. See United States v. Townsend, 924 F.2d 1385, 1394 (7th Cir. 1991). “ ‘[T]o establish guilt on the basis of aiding and abetting, the State is required to show that a defendant knowingly associated with the unlawful venture and participated in such a way as to indicate that [the defendant] was facilitating the success of the venture.’ ” State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012) (quoting State v. Baker, 287 Kan. 345, 366, 197 P.3d 421 [2008]). There was no principal for the defendants to have intentionally aided, abetted, advised, hired, counseled or procured to commit tire crimes under the language of these charges. The only person aided, abetted, advised, hired, counseled, or procured was the person each charge identified as the victim of the crime.
The State also has attempted to rely on innocent agent theory under K.S.A. 21-3205(3). At first, it attempted to persuade us that the victim of each of these crimes also qualified as the defendants’ innocent agent who committed the crimes at their behest. This theory is inconsistent with our precedent on innocent agency.
Our leading case on innocent agent theory is State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978). In that case, we held that Ross Doyen, a candidate for reelection to the Kansas Senate, could not be convicted of fraudulent campaign finance reporting after withholding campaign contributions from his treasurer. 224 Kan. at 491. The State charged Doyen with “causing false campaign finance reports to be filed” in violation of K.S.A. 25-4129, which prohibited intentionally making any false material statement in a campaign finance report. 224 Kan. at 484. The State also maintained that Doyen was liable as an aider and an abettor or under an innocent agent theory.
We rejected each of the State’s three arguments. First, the statutory definition of the crime did not support criminal culpability for “causing” fraudulent reporting. 224 Kan. at 488. The theory of the case thus required impermissible judicial extension of the conduct prohibited by tire legislature. 224 Kan. at 488-89. Second, the State’s aiding and abetting theory of the case failed because the treasurer had acted in good faith and fully and timely reported all contributions known to him. We explained: “The rule which holds an aider and abettor liable is thus not applicable since, under the facts of this case, there is no other person who committed a crime as the principal who was aided and abetted by the defendant Doyen.” 224 Kan. at 490. Finally, the State’s innocent agent theory failed because, as a candidate, Doyen was outside of the class of persons contemplated by the statute and could not himself violate it. 224 Kan. at 490-91.
“[A]s a general rule, if a person causes a crime to be committed through tire instrumentality of an innocent agent, he is the principal in the crime and punishable accordingly .... This general rule is applicable . . . only in factual situations where the defendant could be found guilty as a principal if he committed the act himself.” Doyen, 224 Kan. at 490.
Doyen could not be found guilty as a principal if he committed the act himself, because the statute did not make him responsible for filing campaign finance reports. Only the campaign treasurer had that responsibility. 224 Kan. at 488.
As in Doyen, tire governing statute does not make causing rape, as charged here, a crime. The purported principal, i.e., the person caused to commit rape or attempted rape, could not be convicted of the crime because, like Doyen’s campaign treasurer, he or she did not possess even general criminal intent to commit the actus reus necessary for the crime. See State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011) (mens rea for rape general intent); see also People v. Hamlin, 170 Cal. App. 4th 1412, 1460, 89 Cal. Rptr. 3d 402 (2009) (duress can negate intent, capacity to commit crime). Neither R. Carr nor J. Carr could be found guilty as a principal because, as with Doyen and the finance report filings, they did not physically participate in the completed or attempted crime.
More recently, the State also has argued that the innocent agent in each of these scenarios was the person upon whom the defendants caused the crimes to be perpetrated, e.g., Heather M. in Count 25. Given the facts as ultimately testified to by Holly G., this could have been properly charged under our rape statute, but it was not. See Kadish, Complicity, Cause and Blame: A Study in the Interpretation of Doctrine, 73 Cal. L. Rev. 323 (1985) (discussing difficulty of charging certain crimes when agency of another required). There is no question that the conduct the State attempted to punish demonstrated depravity on the part of the two intruders. But the language in each of the counts under examination stated only that the defendants compelled the victim to commit an act; it said nothing about how the other participant or anticipated participant in the actus reus, i.e., the sexual intercourse, came to be involved. The counts certainly did not treat the other participant as an essential component of the crime, the agent without whom the defendants committed no crime under Kansas law.
These charging weaknesses made certain problems of proof and jury instructions nearly inevitable. But we need not reach those problems today because we hold that the charging deficiencies deprived the district court of subject matter jurisdiction. This renders R. Carr’s convictions on Counts 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40 void.
Two final points bear mention.
The State is correct that the Kansas rape statute is gender-neutral on the identity of the rapist and the person raped. It is legally possible for a female to rape a male. See State v. Brooks, 46 Kan. App. 2d 601, 616, 265 P.3d 1175 (2011). But the definition of sexual intercourse in K.S.A. 21-3501(1) incorporated by the rape statute is anatomically specific; it makes the participation of a female indispensable, because it requires penetration, however slight, of a woman’s sex organ. Thus a male can only rape another male with female participation—whether contributed by a willing criminal confederate whom he aids and abets; a coerced participant, as here; or by one willing to participate in the sex act but unaware of the defendant’s nefarious behavior. The accused male can aid and abet a female principal, or he can act as a principal by employing a female agent, but he cannot accomplish the crime as defined by our legislature without her. Of course, a male can also aid and abet a male principal, regardless of how the principal commits the crime.
Count 41 of the amended complaint charged rape of Holly G. based on her digital penetration of herself after J. Carr told her to “get [herself] wet.” Count 41, despite defense argument to the contraiy, does not suffer from the same deficiencies as the vacated victim-on-victim rape and attempted rape counts. First, it is distinct because no second victim is involved. Also, again, it is possible under Kansas law for an accused male to be criminally culpable as tire principal in a rape of an unwilling female victim overcome by force or fear, even though the accused has acted through an innocent agent to accomplish penetration by the required finger, male sex organ, or object. As Count 41 charged, Holly G. was both the female victim whose sex organ was penetrated and the innocent agent who achieved penetration for the principal, J. Carr; and R. Carr was J. Carr s accomplice.
14. Sufficiency of Evidence on Count 41
In J. Cards separate appeal, he has challenged the sufficiency of evidence to support his conviction on Count 41. Because R. Carr also was convicted on Count 41 as an aider and abettor, we notice this unassigned potential error in his appeal under K.S.A. 2013 Supp. 21-6619(b).
On a sufficiency claim we determine whether, viewing all of the evidence in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
J. Carr’s argument is that Holly G.’s testimony was inadequate to establish that he “ordered her to commit an act of penetration, or that he even suggested it.” In his view, because other options were available to Holly G. to accomplish the end he desired, the State did not prove rape beyond a reasonable doubt.
The Count 41 rape was charged under K.S.A. 21-3502(a)(1)(A), which defines rape as “[sjexual intercourse with a person who does not consent” under circumstances when “the victim is overcome by force or fear.” K.S.A. 21-3501(1) defines “sexual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ or any object.”
As discussed in Section 13 of this opinion, the Kansas rape statute is gender-neutral on the identity of the penetrating participant. The finger used for a digital rape need not belong to a male. See K.S.A. 21-3502; State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010) (defendant convicted in digital rape case female). But the definition of sexual intercourse under Kansas law requires the participation of a female so that the necessary penetration of a female sex organ can occur. See K.S.A. 21-3501(1).
In addition, it is possible under Kansas law for an accused male to be criminally culpable as the principal in a rape of an unwilling female victim overcome by force or fear, even though the accused has acted through a—willing or unwilling, innocent or not-so-innocent—agent to accomplish penetration by the required finger, male sex organ, or object. See K.S.A. 21-3205(1); K.S.A. 21-3205(3).
On tire facts of this case, according to the State, Holly G. was both the female whose sex organ was penetrated and the innocent agent who achieved penetration for the principal, J. Carr. The State asserts that its proof of all of the other rapes committed at the Birchwood residence permitted the jury to draw a reasonable inference that J. Carr s intent when he ordered Holly G. to “get [herself] wet” was for her to do exactly as she did.
Although there may have been nonpenetration options available to Holly G. when J. Carr issued his order to her, we agree with the State. Viewing tire evidence in the light most favorable to the prosecution, we conclude that a rational factfinder could have convicted J. Carr as the principal and R. Carr as the aider and abettor on Count 41.
15. Multiplicity of Counts 41 and 42
Neither R. Carr nor J. Carr raises an issue on appeal of whether their convictions of rape on both Counts 41 and 42 in the amended complaint are multiplicitous. Under tire authority of K.S.A. 2013 Supp. 21-6619(b), we notice this unassigned error as to each defendant—in this appeal for R. Carr as tire aider and abettor and in J. Carr s separate appeal as the principal.
As discussed in Section 14, the Count 41 rape charge was based on Holly G.’s digital penetration of herself when J. Carr commanded that she “get [herself] wet.” The Count 42 rape charge was based on J. Carr’s penile rape of Holly G. immediately after she digitally penetrated herself.
When digital penetration is used to “assist” in accomplishing [the] ultimate goal of penile penetration, they are not factually separate; they constitute unitary conduct. See State v. Weber, 297 Kan. 805, 810-11, 304 P.3d 1262 (2013); State v. Colston, 290 Kan. 952, 964, 235 P.3d 1234 (2010). The digital penetration and penile penetration that form the basis for Counts 41 and 42 will not sup port two convictions here, and thus Count 42 must be reversed. See State v. Scott, 286 Kan. 54, 68, 183 P.3d 801 (2008) (reversal of multiplicitous conviction appropriate remedy).
16. Accomplice Culpability For Codefendant’s Sex Crimes
R. Carr does not argue on appeal that tire evidence was insufficient to convict him as an aider and abettor of J. Carr’s rapes and attempted rape of the two female Birchwood victims. But J. Carr does raise an aider and abettor sufficiency claim in his separate appeal, arguing that the State’s evidence did not support his guilt beyond a reasonable doubt for R. Carr’s rape and aggravated criminal sodomy of Holly G.
Because the evidence underlying all of these sex crimes was substantially similar in one respect—-Holly G. did not testify that the codefendant aider and abettor had actual, contemporaneous knowledge of the commission of the crime by tire principal or that the aider and abettor was present in the immediate vicinity of tire principal and the victim during the sex act—we notice this unassigned aider and abettor sufficiency claim for R. Carr under tire authority of K.S.A. 2013 Supp. 21-6619(b).
Additional Factual and Procedural Background
Counts 41 and 42 apparently charged rape of Holly G. by J. Carr, with R. Carr as the aider and abettor. The conduct leading to these counts, according to Holly G.’s testimony, occurred outside of Jason B.’s bedroom near the wet bar while the second intruder was out of the home to take Brad H. to make ATM withdrawals. Count 43 apparently charged attempted rape of Heather M. by J. Carr, with R. Carr as aider and abettor, during the same time window.
Holly G. was tire third person taken out of the home to make ATM withdrawals. At the time of her trip with the second intruder, whom she later identified as R. Carr, both intraders had already actively participated in coercing the victims to perform sex acts with each other while the intruders watched. During the ATM trip, the second intruder asked Holly G. whether the first intruder had raped her during his absence from the home. When she said yes, he asked her whether the rape had been her first sexual experience with a black man and, particularly perversely, how she would rate its comparative quality.
Soon after the second intruder finished his fourth trip to the ATM, he raped and sodomized Holly G. in the dining room of the home. Count 44 apparently charged this rape by R. Carr, with J. Carr as the aider and abettor. Count 45 charged aggravated criminal sodomy of Holly G., apparently by R. Carr, with J. Carr as the aider and abettor. These two crimes took place in the dining room of the home. Holly G. did not testify about J. Carr s exact position in the home during the commission of these crimes.
The second intruder evidently was near Holly G. when she went to the bathroom after he had raped and sodomized her. When Holly G. opened the door to the bathroom, she witnessed the first intruder raping Heather M. and was ordered to shut the door. This rape of Heather M. apparently was charged in Count 46, with R. Carr as the aider and abettor. After J. Carr had finished with Heather M., he raped Holly G. in the bathroom as well. This rape apparently was charged in Count 47.
Evidence in Support of Charges
Again, on a sufficiency claim we determine whether, viewing all of die evidence in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. See McCaslin, 291 Kan. at 710.
There was abundant evidence in this case to support the jury’s conviction of R. Carr as an aider and abettor of J. Carr on Counts 41, 42, 43, 46, and 47.
All of Holly G.’s testimony about what occurred during the intruders’ time at the Birchwood residence described their concerted, joint action and mutual encouragement. Even when they were temporarily in different rooms of the home, and even when the second intruder left the residence four times to take individual victims to malee ATM withdrawals, the two intruders encouraged and enabled one another in the commission of all of the sex crimes.
The evidence of the second intruder s conversation with Holly G. during their ATM trip is especially telling—strongly indicative of his approval of and willingness to facilitate the first intruder’s sexual violence. Knowing what the second intruder knew when he returned to the home with Holly G., there is no evidence that he did anything to discourage or disapprove of the first intruder. On the contrary, he eventually joined in by raping and sodomizing Holly G. himself, implicitly endorsing the first intruder’s similar behavior. The second intruder also did nothing to intervene in Heather M.’s rape by the first intruder, even though it is likely he became aware of it when Holly G. became aware of it. Finally, there is no testimony that he uttered a word of protest when tbe first intruder then raped Holly G.
It is simply not necessaiy that an aider and abettor be contemporaneously aware that his or her principal is committing a crime that the aider and abettor has encouraged or facilitated. It also is not necessary that an aider and abettor be in the immediate vicinity of the principal and the victim during commission of the crime. See K.S.A. 21-3205; State v. Wilson, 221 Kan. 359, 366, 559 P.2d 374 (1977) (driver of get-away vehicle intentionally aids, abets in commission of crime, may be charged with, convicted of crime despite not participating at scene); State v. Dunn, 243 Kan. 414, 430, 758 P.2d 718 (1988) (same).
R. Carr is not entitled to reversal of his convictions on Counts 41, 42, 43, 46, and 47 for insufficiency of the evidence. His conviction on Count 42 must be reversed as multiplicitous with his conviction on Count 41, as fully discussed in Section 15 of this opinion.
17. Subject Matter Jurisdiction on Attempted Rape
R. Carr challenges his conviction on Count 43 of the amended complaint, an attempted rape of Heather M., arguing that this count did not name him as a perpetrator and thus failed to confer subject matter jurisdiction on the district court.
The State argues that, if a jurisdictional defect existed in the complaint, it was one of personal rather than subject matter jurisdiction and that R. Carr’s failure to challenge the defect in a pretrial motion waived any claim of error. The State bases its argument on a reading of the complaint as a whole, observing that the caption of the amended complaint contained R. Carr’s name, and that, unlike the three counts charging criminal possession of a firearm against R. Carr, which do not contain J. Carr’s name at all, Count 43 does contain R. Carr’s name in its text.
Additional Factual and Procedural Background
Of the 58 counts in the amended complaint, 54 allege that both R. Carr and J. Carr committed the subject crime. Of the remaining four counts, three are the charges against R. Carr alone on criminal possession of a firearm. The remaining count, Count 43, reads:
“[A]nd on or between the 14th day of December, 2000, A.D., and the 15th day of December, 2000, A.D., in the County of Sedgwick, State of Kansas, one JONATHAN D. CARR a/k/a JONATHAN HARDING did then and there unlawfully, towards the perpetration of tire crime of Rape, as defined by K.S.A. 21-3502, commit the following overt act, to wit: attempt to cause Heather [M.] to engage in an act of sexual intercourse with REGINALD D. CARR a/k/a REGGIE CARR and JONATHAN D. CARR a/k/a JONATHAN HARDING while Heather [M.] did not consent to said sexual intercourse while Heather [M.] was overcome by force or fear, with the intention to commit said crime;
Contrary to Kansas Statutes Annotated 21-3301 and 21-3502(l)(a), Attempted Rape, Severity Level 3, Person Felony, Count Forty-Three”
In contrast, all other charges stemming from the Birchwood crimes begin with the words: “[A]nd on or between the 14th day . . . , one REGINALD D. CARR a/k/a REGGIE CARR and JONATHAN D. CARR a/k/a JONATHAN HARDING did then and there unlawfully
The jury instruction on the amended complaint’s Count 43 said that “each defendant” was charged with the attempted rape of Heather M., i.e., it did not contain the same error alleged in the complaint. And the jury found R. Carr guilty.
It is apparent that the State intended to charge both defendants for each crime in the amended complaint, one on the theory that he was the principal and one on the theory that he was the aider and abettor, with the exception of the three counts for criminal possession of a firearm. The original complaint charged only R. Carr with aggravated criminal sodomy of Holly G. and only J. Carr with rape of Holly G. In contrast, Counts 42 and 44 of the amended complaint each charge both defendants with rape of Holly G. Count 45 of the amended complaint charges both defendants with aggravated criminal sodomy.
The jury was instructed that a person who “intentionally aids, abets, advises, or counsels another to commit a crime” is criminally responsible for those crimes, as well as any other crime that “was reasonably foreseeable.” R. Carr s appellate challenges to this instruction are discussed in Section 25 of this opinion.
Personal or Subject Matter Jurisdiction
A jurisdictional issue raises a question of law over which we exercise unlimited review. See State v. Alonzo, 296 Kan. 1052, 1054, 297 P.3d 300 (2013).
Jurisdiction is typically divided into two separate components— personal and subject matter. State v. Bickford, 234 Kan. 507, 508, 672 P.2d 607 (1983). A court must be vested with both types of jurisdiction in order to act. 234 Kan. at 508-09. Personal jurisdiction requires that a “party must appear generally or submit to the jurisdiction of the court” and subject matter jurisdiction authorizes the court to hear and determine a case. 234 Kan. at 509.
Generally, an accused who pleads to the merits of the action “waives all objections with respect to the court’s jurisdiction of his person.” State v. Wharton, 194 Kan. 694, 696, 401 P.2d 906 (1965) (citing 22 C.J.S., Criminal Law § 162, p. 421; 4 Wharton’s Criminal Law and Procedure, § 1890, p. 759 [1957]). The State contends this is exactly what R. Carr did here. In contrast, the issue of subject matter jurisdiction may be raised at any point by any party, even tire court. State v. Patton, 287 Kan. 200, 205, 195 P.2d 753 (2008).
The State is incorrect on whether Kansas treats this type of alleged defect as a matter of personal or subject matter jurisdiction. If the omission here truly qualifies as an omission of R. Carr’s name from the charge, we believe there is a subject matter jurisdiction problem. See State v. Breedlove, 285 Kan. 1006, 1013, 179 P.3d 1115 (2008) (citing State v. Johnson, 283 Kan. 649, 656, 156 P.3d 596 [2007] [court without jurisdiction when jury instructed on crime not originally charged, nor lesser included of crime originally charged]; State v. Elliott, 281 Kan. 583, Syl. ¶ ¶ 1, 2, 133 P.3d 1253 [2006] [municipal courts without subject matter jurisdiction over felony driving under the influence]; State v. Belcher, 269 Kan. 2, 8-9, 4 P.3d 1137 [2000] [court without jurisdiction; crime of conviction not lesser included offense of charged crime]); see also State v. Chatmon, 234 Kan. 197, 205, 671 P.2d 531 (1983) (battery conviction clear violation of due process when neither charged in information nor lesser included offense of charged rape), abrogation on other grounds recognized by State v. Everett, 296 Kan. 1039, 1045, 297 P.3d 292 (2013).
Application of State v. Hall
This court has recognized that “the fundamental purpose of the pleading is to inform the defendant of the charge so that the defendant may prepare a defense.” State v. Hall, 246 Kan. 728, 754, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
In Hall, the defendant asserted for the first time on appeal that his conviction on a particular charge was void for lack of subject matter jurisdiction because of omission of an essential element of the crime in the charging document. This court recognized the error and reversed the conviction based on existing precedent. 246 Kan. at 746-47. But, at the conclusion of the opinion, we enunciated a new rule to be applied in future cases when a defendant complained of a defective charging document for the first time on appeal. 246 Kan. at 765. We said: “Common sense will be a better guide than arbitrary and artificial rules. The sufficiency of an information should be determined on the basis of practical rather than technical considerations when addressed for the first time on appeal.” 246 Kan. at 754 (citing State v. Wade, 244 Kan. 136, 141, 766 P.2d 811 [1989]; State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 [1987]; 1 Wright, Federal Practice and Procedure: Crim.2d § 125 p. 385 [1982]).
Since Hall, the proper procedure for a defendant to challenge a defect in the complaint, information, or indictment is to file a motion to arrest judgment under K.S.A. 22-3502. Hall, 246 Kan. at 760. The motion, to be filed within 14 days of the verdict, asks the district court to “arrest judgment if the complaint, information or indictment does not charge a crime or if the court was without jurisdiction of the crime charged.” K.S.A. 22-3502.
When such a motion “is timely filed, tire trial court, in reviewing the motion, shall test its merit by utilizing the rationale of our pre-Hu^ cases.” Hall, 246 Kan. at 764. The same is not true when a charging document’s ability to confer subject matter jurisdiction is challenged for the first time on appeal. Then
“we shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in tire preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under tire guarantees of the Sixth Amendment to tire United States Constitution and the Kansas Constitution Bill of Rights, ⅜ 10. If a defendant is able to establish a claim under eidrer (a), (b), or (c), dre defective information claim, raised for the first time on appeal, will be allowed.” 246 Kan. at 765.
In addition,
“[tjardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of die offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a motion for arrest of judgment will be upheld unless it is so defective drat it does not, by any reasonable construction, charge an offense for which the defendant is convicted.” 246 Kan. at 764 (citing United States v. Watkins, 709 F.2d 475, 478 [7th Cir. 1983]).
The omission of R. Carr’s name in the first part of the text of Count 43 is akin to a technical defect. He has not argued or demonstrated that he was misled by the wording error; that his defense would have been any different, had the error not occurred; or that he suffered any other undue prejudice. His failure to file a motion for arrest of judgment within 14 days of the verdict is fatal to this claim on appeal.
18. Third-Party Evidence and PIearsay Exceptions
R. Carr asserts that Judge Clark misapplied Kansas third-party evidence rule and erred by rejecting appropriate hearsay exceptions, making it impossible for him to testify on his own behalf about three telephone calls he received from J. Carr during tire night of tire Birchwood crimes and about face-to-face interaction with J. Carr and another black male in possession of Jason B.’s truck and other stolen property. See Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed 2d 37 (1987) (discussing federal constitutional underpinnings of right to testify in one’s own defense, relying on Fifth, Sixth, Fourteenth Amendments); Kan. Const. Bill of Bights, § 18 (right to remedy for injuries by due course of law). These errors by Judge Clark, R. Carr argues, also interfered with his due process right to present his theory of defense. See Rock, 483 U.S. 44; Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986); Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).
Additional Factual and Procedural Background
Review of the merits of this issue requires a fairly detailed examination of pertinent events at several stages of the district court proceedings to discern the bases of the parties’ positions and Judge Clark’s decisions.
R. Carr’s planned defense on the Birchwood incident was that all of the crimes were committed by J. Carr and an unknown and uncharged black male.
Nearly 6 months before trial began, R. Carr filed a sealed supplement to a memorandum in support of a motion to sever the defendants’ trials. The supplement was not provided to the State. Appellate counsel now describes its contents as a written proffer of R. Carr’s anticipated trial testimony. For ease of reference, we set out the pertinent part of the supplement here:
“2. On the evening of December 14, 2000, Reginald Dexter Carr, Jr. and his brother, Jonathan Carr, met at the home of Tronda Adams and Toni Green. Reginald and Jonathan were both traveling in a beige Toyota Canary belonging to Stephanie [Donley],
“3. After leaving the Green residence together, Reginald Dexter Carr, Jr. and Jonathan Carr traveled to the apartment complex located at 5400 E. 21st Street in Wichita, Sedgwick County, Kansas. Upon their arrival, Jonathan Carr dropped off Reginald Dexter Carr, Jr. and left in the beige Toyota. Reginald Dexter Carr, Jr., not wanting to alert Stephanie [Donley] that he had loaned her car to his brother, left in his (Reginald’s) white Plymouth Fury. After leaving the apartment complex, Mr. Reginald Dexter Carr, Jr. traveled around the northern part of Wichita, Sedgwick County, Kansas, and attempted to sell drugs.
“4. Mr. Jonathan Carr met another individual whose name is not now known to the defendant, Reginald Dexter Carr, Jr. Mr. Jonathan Carr and the other unknown individual went to 12727 East Birchwood and committed the crimes more fully set out in the [a]mended [c]omplaint....
“5. Sometime after the commission of the crimes associated with the [] Birch-wood address, Jonathan Carr located his brother, Reginald Dexter Carr, Jr. and made arrangements for Reginald Dexter Carr, Jr. to store the properly taken from the Birchwood address in Stephanie [Donley s] apartment....
“Prior to the commission of the crimes at the Birchwood address, Reginald Dexter Carr, Jr. had no knowledge of the facts that were about to unfold, nor did he participate in any preparation or plan to effect the same.
“6. After receiving information from his brother, Jonathan Carr, as to the approximate location of the origin of the property, Reginald Dexter Carr, Jr. drove by the area of 12727 E. Birchwood. Mr. Reginald Dexter Carr, Jr. was detained briefly and questioned by law enforcement officers on 127th Street East.
“7. Later that morning, December 15, 2000, Mr. Reginald Dexter Carr, Jr. was arrested at [Donley”s apartment,] after unloading the stolen property from the Dodge Dakota pickup truck owned by Jason [B.].”
A few weeks before trial was to begin, the State filed two in limine motions. One sought to prevent introduction of out-of-court statements made by any defendant who had not waived his right against self-incrimination and testified at trial. The other motion sought to prevent defendants from introducing “circumstantial evidence” that someone other than they had committed the charged crimes. The State quoted language from State v. Bornholdt, 261 Kan. 644, 666, 932 P.2d 964 (1997), disapproved on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004): “[W]hen the [S]tate relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such third party with the crime.”
R. Carr filed a written response but made an argument only on the third-party evidence motion, which he challenged as premature. He also argued that the motion failed to set forth a factual basis, giving it the appearance of a “discovery device.”
J. Carr filed more lengthy responses to both motions. His response to the hearsay motion argued that the State’s nonspecific request to exclude hearsay was overly broad and premature. On die third-party evidence motion, he also argued that the motion was premature and too vague to allow Judge Clark to “intelligently rule.” The State must specify, he said, the evidence it wanted to exclude. J. Carr also argued that there was no difference between the probative value of direct evidence and the probative value of circumstantial evidence and that the third-party evidence rule, as outlined by the State, would deprive him of his right to present a defense. He suggested that the proper standard for admission of third-party evidence should be whether the evidence raised an inference capable of leading a juiy to conclude there was reasonable doubt on the defendant’s guilt.
At the hearing on the two motions, the State said its hearsay motion had been filed because of statements at earlier court proceedings about the possibility of alibi defenses. The prosecutor said that the State was not seeking to exclude any out-of-court statements by a nontestifying defendant that would fall within an exception to the rule that hearsay is inadmissible; rather, the State wanted to raise the issue early to ensure that such information was not heard by the jury before Judge Clark had an opportunity to rule on the applicability of any exception.
On the third-party evidence motion, the State again asserted, citing to Bomholdt, that the Kansas rule prohibited a criminal defendant from introducing circumstantial evidence of a third person’s guilt when the State’s case would include direct evidence against the defendant:
“Direct must be countered with direct....
“[T]he direct evidence that the State is looking at in filing this motion is eyewitness direct testimony which must be countered by similar direct in order to disprove identification as opposed to circumstantial evidence that some other person did this crime. It is commonly called outside the courtroom .. . the SODDI defense, some other dude did it.”
The prosecutor also clarified that the State sought to eliminate circumstantial evidence of another perpetrator’s guilt only on the crimes charged as a result of the Birchwood incident, not on the charges arising out of tire Schreiber or Walenta incidents.
Counsel for J. Carr responded by acknowledging die Bomholdt language cited by the State and said that, if he were to introduce evidence of a third party’s culpability, he knew he would have to establish a link between the third party and die crimes beforehand. Counsel for R. Carr said he had nothing to add to the argument.
Judge Clark’s brief ruling contained die word “sustained” but was otherwise difficult to decipher:
“Everybody agrees then on Bornhol[d]t that direct and circumstantial type evidence and then the incidents that occurred on the 7th and 11th, any evidence concerning that would be circumstantial. So, I’ll sustain it then and just say that if any evidence like that is anticipated, please bring it to somebody’s attention so we can handle it properly.”
The State drafted the written order memorializing the court’s rulings on the motions. Although there are references to the “orders” in transcripts of later hearings, we have found no order on the hearsay motion in the record and the parties have not cited to one. The essential portion of the order on the third-party evidence motion simply indicated the motion was sustained. The order had no other substantive content.
The subject of third-party evidence did not come up again until the opening statement of R. Carr’s counsel at trial. He told the jury that the evidence on the Birchwood crimes would show that four “Negroid hairs” were recovered and submitted for mitochondrial DNA testing, that one ultimately was not tested, that two showed contributors with the defendants’ maternal lineage, and that the fourth came “from an as yet unidentified black person.” He also told the jury that R. Carr and J. Carr parted during the evening of December 14, 2000, and did not see each other again until about 5 a.m. the next morning, when J. Carr contacted R. Carr and asked that he come to Adams’ house. When R. Carr arrived, he saw J. Carr and another black male, who was in possession of a truck filled with stolen property. The three decided that the truck would be driven to Donley’s apartment by the other black male; that R. Carr would return Donley’s car, which J. Can-had, to Donley’s apartment, and that R. Carr would leave his old Plymouth for J. Carr.
Counsel for J. Carr objected to these statements by counsel for R. Carr as argumentative and unsupported by evidence. Judge Clark overruled the objection.
Counsel for R. Carr resumed his opening statement:
“He left—Reginald left his car with Jonathan, die third black male drove the truck. When they got to the apartment complex the third black male did not assist in carrying any of the stolen property into Ms. Donley s apartment, it was decided that person would pick up his share later.”
Counsel then turned to a description of R. Carr’s arrest and subsequent attempts by law enforcement to have the victims of the various crimes identify him. Counsel concluded his opening statement, however, by returning to the subject of the Birchwood crimes.
“The evidence will show diat the Birchwood address is replete widi Jonathan Carr’s DNA. The evidence will also show that diere is the DNA of an unidentified tiiird party there. The evidence will also show that the Lorcin automatic weapon that you heard talk about contains the DNA of three unidentified people, none of that DNA is Reginald Carr’s.
“Ultimately, the DNA evidence will show that Jonadian Carr, not Reginald Carr, Jonathan Carr committed most, if not all of the crimes which are alleged in die complaint and that he did it witii a diird black male who still walks the streets of Wichita.”
At that point, the prosecution objected to the comments, and the judge sustained the objection, labeling the remarks “improper.”
After opening statements were completed and testimony taken from three witnesses, the jury was excused from the courtroom for lunch. The State then asked the judge to impose sanctions on the lawyer for R. Carr who had made the opening statement, John Val Wachtel, and sought an instruction to the jury to disregard Wac-htel’s remarks about another perpetrator. The State argued that Wachtel had deliberately violated the judge’s order on the motions in limine, both by suggesting that J. Carr had made statements to R. Carr about the Birchwood crimes and by suggesting that a third black male was involved.
“Unless counsel intends to call some individual that he failed to name in his opening statement, some third individual that has confessed to this crime or made some other statements directly to Reginald Carr, that individual would fall in the category—or those statements would fall into the category of circumstantial evidence, unless based, again, on statements made by Jonathan Carr, which are not admissible, nor appropriate. The Court ruled on this.”
The prosecutor also said that she had spoken with counsel for both defendants that morning before the opening of court and that she believed each understood the opening statement material that was off limits under the court’s orders in limine.
“When I made those comments to [Wachtel] I told him that in addition to objecting, if there’s a violation of the Court’s orders in limine, diat that would certainly place us in a situation which might necessitate a mistrial and that he certainly would not want to do that. He indicated he would not be mistrying anything.”
Cocounsel for R. Carr responded to the prosecution’s argument about Wachtel:
“Well, first of all, let’s talk about the hearsay evidence when we’re talking about statements of Jonathan Carr. If I remember correctly, it was [the State] that initially started talking about conversations between Tronda Adams and Jonathan Carr. And I don’t think Mr. Wacht[e]l ever talked about conversations between Jonathan Carr and Reginald Carr. I think the record’s clear and I think the Court can examine it.
“As to the order in limine, when we had that hearing I believe it was all—we all understood that if there was evidence of—direct evidence of the defendants’ guilt and circumstantial evidence that someone else did it and we had evidence of that, unless we could connect it up, it wasn’t admissible.
“I think at this point in time, number one, it is premature; number two, I don’t think the State has any direct evidence that Reginald Carr committed this crime. They don’t have an in-court identification of the surviving victim. And were only talking about the events on the 14th and 15th. They’ve got a photo array where she goes well, it looks like tire guy. They don’t have any DNA evidence that connects him up with this thing, all’s they have is property that he has after the fact.
“On the other hand, the evidence that we’ve got that somebody else is involved in it is we’ve got DNA evidence in this apartment that nobody can identify, we’ve got a black Negroid hair that belongs neither to Jonathan Carr nor Reginald Carr. You know, my way of looking at it we’ve got more direct evidence that Reginald Carr didn’t commit this crime than we do direct evidence that he did.
"... I don’t think Mr. Wacht[e]l has violated any order in limine, we have followed the law as we know it to be. And he hasn’t done anything wrong. If the court finds at some later point in time that the evidence doesn’t support what he said in this opening statement, then perhaps that’s a different story. But as this Court well knows from sitting on many, many cases, we present this evidence as best we possibly can and we expect it to produce what Mr. Wacht[e]l has said.”
At that point, Judge Clark turned to counsel for J. Carr. J. Carr s counsel noted that the prosecutor alluded to the possibility of a mistrial and then moved for one. He said:
“And Your Honor, I think that Mr. Wacht[e]!s opening statements illustrate an argument that we’ve made many times early on in this case as to why we needed to be severed from this matter and have a separate trial from Reginald Carr. So if a mistrial were not granted, we again move to sever, withdraw from these proceedings to have our own separate trial.”
One of the prosecutors clarified that the State was not seeking a mistrial; instead, she said, it sought enforcement of Judge Clark’s earlier orders in limine. She argued further:
“This Birchwood case is a direct evidence case. [Holly G.] did identify Mr. Reginald Carr in a photo ID lineup, array. In addition to that, there’s DNA evidence that connects] Mr. Carr, Reginald Carr. The blood of [Heather M.] is on the clothing collected.
“Now, that may—could be argued as direct or circumstantial. In any event, the evidence certainly is strong in support of the ID that [Holly G.] made in the photo lineup.”
Judge Clark then spoke:
“First of all, the motion for mistrial on behalf of Mr. Jonathan Carr is overruled. The last statement [about die uncharged black male on the streets of Wichita], I believe I said that’s misconduct. So stated. And as I understand evidence, lawyers don’t get up and make declarations concerning evidence in opening statements that they don’t have. If that declaration made about this some other party isn’t supported in evidence, the inference that it’s intentional misconduct would be well supported.
“And what we’ll do is examine the evidence and see what the evidence is and I’ll instruct on what that means to the jury one way or the other.”
On the 10th day of trial, the State’s expert on the results of mitochondrial DNA tests on the four hairs testified. One of the hairs yielded no results, perhaps, according to the expert, because it came from an animal or was too old and degraded. Two matched the mitochondrial DNA samples taken from the defendants. One did not match those samples and, the expert said, contained more of a Caucasian or European profile.
At the end of that day, after the jury had been excused, Judge Clark took up several miscellaneous matters. Among other things, he again addressed the third-party evidence rule:
“Now, as to the law that if it be shown that a perpetrator at a crime is at the scene of the crime by direct evidence, then the circumstantial evidence may not be used to support the inference of a third party was there absent direct evidence of that fact. That’s the law. That will be the law of this case.”
After a brief interruption for the jury to pass through the courtroom, the judge continued:
“I think we’ve reached a point that I can advise you all because we’re getting close to the defense case in chief, so I think I’ve heard all the evidence that I need to, to make that decision.
“And looking at—in the order of proof, and let’s call it the 12727 Birchwood, H. G. puts both defendants present as perpetrators at that crime. Therefore, before any evidence to support the inference that a third party was there can be accepted, there must be direct evidence that a third party was there.”
No further argument or comments were made on the topic at that time.
Three trial days later, the State presented the testimony of the Wichita Police Department chemist who had been asked to separate Negroid hairs from other hairs and fibers from the Birchwood home for DNA testing. She had labeled three of the hairs Negroid and the fourth “possibly” so.
The next day, a nuclear DNA analyst for Sedgwick County testified that he had examined a root attached to one of the two hairs for which the defendants and their maternal relatives could not be ruled out and that he had determined it did not come from R. Carr. J. Carr could not be excluded.
Later in the trial, during R. Carr’s case-in-chief, his counsel advised Judge Clark outside the presence of the jury that R. Carr was weighing whether to testify. Counsel made an oral proffer to facilitate tire judge’s ruling on whether R. Carr’s testimony would be admissible under the hearsay rule and its exceptions.
Counsel said that R. Carr would testify that he and J. Carr were together in the early evening of December 14 at Adams’ house, that they parted ways, and that J. Carr then spent his time with the unknown, uncharged black male. Later that night and early on December 15, J. Carr called R. Carr three times. Counsel described those calls and related events and made a brief argument:
“Later on that night sometime—the time is unclear, but after 11:00 o’clock, Reginald Carr got a telephone call from Jonathan telling him that he needed to come to a location, and that Jonathan Carr said this dude—or this nigger is trippin and talked about shooting people. Mr. Carr was distraught and emotional when he made those statements.
“Mr. Carr received another phone call from Jonathan, at which time Jonathan told him that this third person was—Jonathan was at or near [Adams’] house. Jonathan called and told him with regard to the third person that the person was down the street, flipped out, trippin[’.] Jonathan was crying. Reginald asked about dealing with this person. Jonathan said the person had a gun. Reginald came to that location, spoke with the third person, and decisions were made with regard to what would be dealt with [on] that property. The decision was that the property would be taken to [Donley’s] house, [Donley’s] apartment.
“Also, there was another phone call in which Jonathan was distraught, talked about that same third person as, quote, trippin’, unquote, and that he had shot people. And that—warned Mr. Reginald Carr that the evidence was—that the material at Mr. Carr’s house was not only stolen, but that people had been ldlled and that Jonathan was leaving town.
“Those hearsay statements on behalf of Jonathan Carr and on behalf of the third party, we think are admissible in this case. Excited utterances.
“The—forgive me, your Honor, I don’t remember the name of the rule as I stand here right now, but there’s a rule that basically says no such statements about that fend of activity would not be made if they were not true [sic]. And the, statements with regard to the third person, identifying person of the res gestae of the possession of stolen property, are statements against interest. A simple rule on the earlier one.
“That is my proffer of what that hearsay testimony would be.”
Counsel for J. Carr had no objection to the admission of the proffered testimony, although it included out-of-court statements made by his client. He said that he would look forward to cross-examining R. Carr and that the content of the proffer strengthened his argument that the defendants had antagonistic defenses.
The prosecution did object to admission of the testimony, arguing it was “violative of the hearsay principles” and “inappropriate and improper” and “pure hearsay.” In addition, the prosecutor argued:
“[T]he Court has made it abundantly clear that he doesn’t get to do this on his ‘some other dude did it’ kind of defense when they’re direct cases. And this is inappropriate. And I still don’t have a name of anybody that I can go to, and apparently it’s in the possession of Mr. Wacht[e]l and his client.”
After clarifying for the State that R. Carr did not know tire name of the third party, counsel for R. Carr was asked to repeat the part of the proffer dealing with a phone call from J. Carr when he was near Adams’ house. Counsel did so, saying:
"There was a telephone call. I do not know the time. It was after 11:00 o’clock. It was from Jonathan to Reginald talking about this third person trippin’, shooting people, problems diat were going on, gave directions to the residence. There was another phone call which invited Jonathan—Reginald to Tronda’s house. Reginald went diere. There was another conversation about die fellow down die street flipped out, trippin’. Jonatiian was crying. Reginald went down and spoke to diat person. There was another phone call later on after the diird party had driven the truck to Reginald’s house. At diat time there were more discussions about people having been shot widi respect to die stolen property. That was Jonadian tiiat called Mr. Carr. And tiiat’s die proffer.”
One of the prosecutors asked a clarifying question—whether R. Carr spoke personally to the other unknown black male—and was apparently satisfied that she received an answer. The other prosecutor then argued that R. Carr wanted to admit “hearsay evidence which the Court has clearly said is unexceptional” as to J. Carr. She also repeated that admission of the testimony would result in a
“direct violation of the Court’s ruling under what we refer to as the SODDI defense, some other dude did it, or suggestion tiiereof.... [T]here is no direct evidence here unless Reginald Carr is saying diat he was diere and watched it as an eyewitness or sometiiing more direct. There would be no direct evidence under the proffer that’s made that should allow them to make tiiis suggestion about anodier person. Not only to make a suggestion about another person, but introduce hearsay evidence of an individual who’s not identified and [whom die defense is] refusing to identify, not only by name, but even by saying where they went down die street to speak to them. It’s highly inappropriate. They’ve not identified any particular exception diat [it] would clearly fall under because it doesn’t.”
Judge Clark offered counsel for R. Carr an opportunity to cite law in support of admission of the proffered evidence, and counsel said again that hearsay exceptions for declarations against interest and excited utterances should apply. The judge then ruled from die bench:
“The declarations proffered under Mr. Reginald Carr’s proffer just now fits no exception to the hearsay rule that I know of. They are not direct evidence of any participation by a third party. And based on everything I know right now, they’re not admissible in evidence. They’re offered to prove the truth of the matter stated therein. They’re hearsay.”
R. Carr did not testify at trial.
Third-Party Evidence Rule
The parties agree that the appellate standard of review for a district judge’s ruling on a motion in limine invoking the third-party evidence rule is abuse of discretion. See State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007) (application of third-party evidence rule subject to review for abuse of discretion); see also State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010) (standard of review on evidentiary decision depends on rule, principle applied by district judge). When a district judge exercises his or her discretion based on an error or misunderstanding of law, there is an abuse of that discretion. See Brown, 285 Kan. at 294.
The only third-party evidence case cited by the State before Judge Clark was State v. Bornholdt, 261 Kan. 644, 932 P.2d 964 (1997), disapproved by State v. Marsh, 278 Kan. 520, 102 P.3d 445(2004). The State was correct that Bomholdt parroted certain earlier cases saying “[wjhen the [Sjtate relies on direct evidence, circumstantial evidence that someone other than the defendant committed the crime charged is irrelevant in the absence of other evidence to connect such third party with the crime.” 261 Kan. at 666. But the State and Judge Clark failed to realize that Bomholdt’s treatment of the subject was superficial; it did not explore the rule’s origins or examine the soundness of its rationale.
The more recent and authoritative opinion at the time of trial of this case was State v. Hooker, 271 Kan. 52, 63, 21 P.3d 964 (2001), which stated a more complete, more nuanced third-party evidence rule and began to expose a recent tendency in some earlier caselaw to conflate uncorroborated evidence that someone else merely had a motive to commit the crime with circumstantial evidence that someone else actually did commit the crime.
Hooker involved a home invasion in which one of the victims identified Hooker as one of two men who forced their way into a townhome and shot one of the residents in an apparent robbery attempt. Hooker sought to introduce evidence that two other people had threatened to harm tire deceased victim. This court held that Hooker failed to provide evidence to connect the two other persons with the victim’s death.
In it, this court said:
“We have found that when the State’s case relies heavily on circumstantial evidence, it is error to exclude circumstantial evidence that someone else committed the crime when tire defendant’s proffered evidence includes the timely placement of another person at the murder scene. See State v. Hamons, 248 Kan. 51, Syl. ¶ 2, 60-61, 805 P.2d 6 (1991) (finding an abuse of discretion to exclude evidence that another person had threatened the victim and was at the scene of the murder near the time of die murder where there was no eyewitness identification, but concluding that the error was harmless).
“Conversely, we have been stricter on admission when the State relies on direct evidence, such as eyewitness identification. Circumstantial evidence drat someone other than the defendant committed the crime is irrelevant in die absence of other evidence to connect that other person with the crime charged. State v. Bornholdt, 261 Kan. 644, Syl. ¶ 19, 932 P.2d 964 (1997). We have found no abuse of discretion in excluding such evidence in cases involving eyewitness identification testimony. E.g., State v. Brown, 230 Kan. 499, 500, 638 P.2d 912 (1982); State v. Henderson, 205 Kan. 231, 239-40, 468 P.2d 136 (1970); State v. Potts, 205 Kan. 42, 44, 468 P.2d 74 (1970).
“Hooker failed to show drat the two people who allegedly made threats were involved in [the victim’s] death. We have said;
“ ‘There is a general rule supported by numerous decisions drat evidence of the motive of one other than the defendant to commit dre crime will be excluded where tírere is no other proof in tire case which tends to connect such other person witir the offense with which the defendant is charged. [Citations omitted.]’ State v. Neff, 169 Kan. 116, 123, 218 P.2d 248, cert. denied 340 U.S. 866 (1950).” Hooker, 271 Kan. at 65-66.
Within 2 years after trial of this case, we recognized and reasserted the lessons of Hooker in State v. Evans, 275 Kan. 95, 62 P.3d 220 (2003).
The facts in Evans were analogous to the facts here in many ways. Defendant Larry Evans was accused of shooting the victim, Michael Prince, during a heated discussion involving Evans, Prince, and a third man, Andrew Reed. Prince sprayed Reed and Evans with mace. Seconds later, á shot was fired, fatally wounding Prince. Evans was charged with first-degree murder. The State filed a pretrial motion in limine, anticipating a defense attempt to show Reed was responsible for the murder. The State argued that it had direct evidence that Evans committed the crime; thus Evans should be prohibited from presenting circumstantial evidence that Reed was responsible for Prince’s death.
“The State asserted that it had two eyewitnesses who observed Evans shoot Prince. The State hypothesized that the defense would attempt to put forth evidence of other witnesses who saw Reed with the gun immediately after the fatal shot was fired but who had not observed Reed shoot Prince with the gun. The State contended that circumstantial evidence that another had committed the murder was inadmissible absent corroborating evidence, stating that Evans had corroborating evidence if that evidence was not excluded as hearsay. The hearsay evidence the State was referring to was the testimony of a defense witness who would testify that after the shooting Reed admitted that he shot Prince and that he dumped Prince’s body in the woods.
“Defense counsel argued against the motion in limine, asserting that the circumstantial evidence the State sought to exclude was proper evidence for the jury to consider . . . .” Evans, 275 Kan. at 97.
On the first day of Evans’ trial, the trial judge advised the parties that he was sustaining die State’s motion, conditioned upon the State producing testimony that Evans was observed shooting at the victim. Ultimately, Evans was able to testily that, after he heard tire shot, he looked up and saw Reed putting a gun down to his side. And another witness testified that Reed admitted to him and to others that he had shot Prince. Evans was not allowed to present other witnesses who would have said they also saw Reed with the gun immediately after the shot was fired. 275 Kan. at 98.
Evans argued on appeal that the district judge erred by limiting his evidence of Reed’s guilt and that the interpretation of the third-party evidence rule applied in his trial was unconstitutional.
Our decision on the appeal observed that the third-party evidence rule had been correctly applied in previous cases to exclude defense evidence that someone else merely had a motive to commit the crime or that someone else merely bore a physical resemblance to a defendant. In those cases, the third-party evidence rule prevented mere speculation and conjecture. Evans’ evidence, on the other hand, linked a third party to the scene of the crime holding the murder weapon immediately after the fatal shot was fired. Such evidence should not be excluded under the rule. 275 Kan. at 104-105.
Returning to first principles, we dismissed any artificial distinction between direct and circumstantial evidence:
“This court has recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. See [State v.] Beard, 273 Kan.789, Syl. ¶ 5[, 46 P.3d 1185 (2002); State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001); State v. Juiliano, 268 Kan. 89, 97, 991 P.2d 408 (1999). Additionally, it must be noted that this court has stated that a conviction for even the gravest offense may be sustained on circumstantial evidence. State v. Sanders, 272 Kan. 445, Syl. ¶ 5, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002); [State v.] Clemons, 251 Kan. 473, 488, 836 P.2d 1147 (1992). Circumstantial evidence that would be admissible and support a conviction if introduced by the State cannot be excluded by a court when offered by the defendant to prove his or her defense that another lolled the victim.” Evans, 275 Kan. at 105.
We ultimately determined, under the K.S.A. 60-261 standard, that the exclusion of the additional evidence in Evans could not be labeled harmless and reversed the defendant’s murder conviction. This outcome on the state common-law claim eliminated the need for us to reach the constitutional question. 275 Kan. at 106.
Evans was followed by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), revd and remanded 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), and vacated in part 282 Kan. 38, 144 P.3d 48 (2006). Marsh explicitly disapproved of the oversimplification of the third-party evidence rule in Bornholdt and like cases. Marsh, 278 Kan. at 532. It also made important points about how to approach the admissibility of third-party evidence.
Marsh first made clear that the determination of admissibility of third-party evidence starts at the same place that the question of admissibility of any evidence starts:
“The general rule is that, unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is ‘evidence having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are designed to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999). We have also recognized the probative values of direct and circumstantial evidence are intrinsically similar, and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.’ State v. Scott, 271 Kan. 103, Syl. ¶ 2, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).” Marsh, 278 Kan. at 530.
Second, Marsh emphasized that Kansas’ third-party evidence rule, as originally conceived and applied, made admission of a third party’s motive alone improper.
“[T]he so-called third party evidence rule has limited application and is most assuredly subordinate to the general rules of evidence and the statutory definition of relevancy in K.S.A. 60-401(b).
“[W]hile evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to tire crime.” 278 Kan. at 531.
Marsh explicitly set out a corollary on circumstantial evidence connecting a third party to a crime: “[Such] evidence . . . will not be excluded merely because the State relies upon direct evidence of the defendant’s guilt. In short, there is no bright line rule.” 278 Kan. at 531.
And finally, Marsh gave direction to district court judges. “[T]here must be the sound exercise of judicial discretion dependent on the totality of facts and circumstances in a given case. . . . This require[s] the district judge to consider whether the evidence [is] relevant under K.S.A. 60-407(f), and [] failure to do so constitutes error.” 278 Kan. at 531-32.
Subsequent Kansas cases have applied the third-party evidence rule as described in Marsh. See State v. Inkelaar, 293 Kan. 414, 441, 264 P.3d 81 (2011) (“[I]n this case, none of the evidence proffered by the defense connected [the third party] to the charged crimes.”); State v. Tahah, 293 Kan. 267, 275, 262 P.3d 1045 (2011) (“We conclude that under the totality of facts and circumstances in this case, the [third-party evidence] neither indicate[s] [the third party’s] motive to commit the crimes nor otherwise connects] him to the murder.”); State v. Brown, 285 Kan. at 305 (“[N]one of the evidence offered by Brown amounted to anything more than base less innuendo. There is nothing tying these third parties to the shooting.”); State v. Adams, 280 Kan. 494, 505, 124 P.3d 19 (2005), disapproved on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012) (“[A] district judge must evaluate the totality of facts and circumstances in a given case to determine whether the defense’s proffered evidence effectively connects the third party to the crime charged.”)
These cases illustrate that neither the district judge in the first instance nor we on appeal should focus on the strength of the State’s case against a defendant when deciding the relevance of any third-party evidence that he or she has offered. Relevance is a function of whether the evidence has “any tendency in reason to prove any material fact,” K.S.A. 60-401(b). The ultimate fact to be determined in any criminal trial is the defendant’s guilt or innocence, and evidence having any tendency in reason to establish that material fact should be admitted regardless of its relative strength or weakness when compared to the State’s case. See State v. Krider, 41 Kan. App. 2d 368, 376, 202 P.3d 722 (2009) (“[W]e are convinced the district court appropriately applied the [third-party evidence] rule [when it] evaluated the totality of the defendant’s proffered evidence.” [Emphasis added.]); K.S.A. 60-407(f) (“all relevant evidence is admissible”); Krider v. Conover, 497 Fed. Appx. 818, 822 (10th Cir. 2012), cert. denied 133 S. Ct. 1469 (2013) (Kansas rule consistent with United States Supreme Court rule in Holmes v. South Carolina, 547 U.S. 319, 327, 126 S. Ct. 1727, 164 L. Ed. 2d 503 [2006]). The fact that third-party evidence consists solely of the defendant’s own testimony should make no difference. See Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (“[T]he most important witness for the defense in many criminal cases is the defendant himself. There is no justification today for a rule that denies an accused the opportunity to offer his own testimony.”)
These authorities lay the foundation for our conclusion that the State led Judge Clark into error on his application of the third-party evidence rule to exclude the testimony of R. Carr about the unknown, uncharged black male with J. Carr on the night of the Birchwood crimes.
Ignoring for the moment any elements of the proffered testimony that could be subject to challenge as hearsay, as well as the merits of any such challenge, R. Carr was prepared to testify not that the unknown person had a motive but that he observed him after being summoned to a location by a distraught J. Carr, that this observation of the third person with J. Carr took place in the time frame of the crimes, that the third person possessed property belonging to the Birchwood victims, and that he was present for at least one discussion between R. Carr and J. Carr on the general subject of the temporaiy storage of that stolen property. He also was prepared to testify that he saw the third party drive the truck to Donley s apartment complex.
Rather than evaluating the relevance of this evidence, the record demonstrates that Judge Clark based his third-party evidence ruling entirely on a faulty comparison between the strength of the State’s case, using a functionally nonexistent distinction between direct and circumstantial evidence. This was an abuse of discretion, and we decline the State’s invitation in its brief to reinforce it by ruling that R. Carr’s proffered evidence was irrelevant and inadmissible because it was unlikely to lead to acquittal on the Birch-wood crimes. Its persuasive power or lack thereof is a reversibility consideration, not a factor in whether we hold there was error. We will turn back to the question of reversibility after discussing the secondary argument advanced in the district court for the evidence’s exclusion: hearsay.
Hearsay and Its Exceptions
R. Carr argued to Judge Clark that the hearsay elements of his proffered evidence were admissible under two exceptions to the hearsay rule: declarations against interest and excited utterances. On appeal, he adds a third on out-of-court statements by codefen-dant J. Carr: confessions.
Before Judge Clark, the prosecutor never made a coherent legal argument in opposition to R. Carr’s attempt to admit out-of-court statements by J. Carr (and probably the third party) as declarations against interest or excited utterances.
Before trial, tire State’s motion in limine sought to exclude only defendant’s out-of-court statements, and the prosecutor said at the hearing on the motion that she was not addressing any statement to which a hearsay exception applied. The prosecutor’s objection at the time of counsel Wachtel’s opening statement reference to the “third black male who still walks the streets of Wichita” stated no ground for dre objection, and Judge Clark merely ruled at tíre time diat the reference was “improper” and later, “misconduct.” There was no argument from either side on hearsay when Judge Clark again took up the subject of third-party evidence after the testimony of tíre mitochondrial DNA analyst. When R. Carr’s counsel made the oral proffer, the prosecution’s hearsay objections were limited to: “violative of the hearsay principles”; “inappropriate and improper”; “pure hearsay”; “hearsay evidence which the court has clearly said is unexceptional,” an overstatement of Judge Clark’s previous action on the issue; “hearsay evidence of an individual who’s not identified”; “highly inappropriate”; and, after Wachtel had mentioned the hearsay exceptions for statements against interest and excited utterances, “They’ve not identified any particular exception that [it] would clearly fall under because it doesn’t.” Nevertheless, Judge Clark ruled in the State’s favor on the hearsay issue. He gave no explanation other than to say that any out-of-court statements covered by R. Carr’s proffer offered for trutíi of the matter asserted “fit[] no exception . . . that I know of.”
On appeal, the State still makes no direct effort to counter R. Carr’s arguments for application of the, now, three hearsay rule exceptions. Radier, it argues that a determination that tire evidence is not admissible under tíre third-party evidence rule is a determination that the evidence is not relevant; therefore, the hearsay argument is an attempt “to get in through the back door what tire totality of the evidence demonstrates he cannot properly admit through the front.” Of course, we have now decided tire third-party evidence issue in a way that means the State’s relevance-based argument is meritless.
Our standard of review is abuse of discretion. Again, this standard includes a review to determine that the discretion was not guided by erroneous legal conclusions. Brown, 285 Kan. at 294.
Our evaluation of the three hearsay exceptions argued by R. Carr is impeded by tire silence of the State and Judge Clark on the governing law and by the absence of any specific articulation of the statements supposed to have been made by J. Carr (and possibly the third party) in the record. Yet the State has never challenged the sufficiency of the proffer, and we forge ahead. See Marsh, 278 Kan. at 529 (in absence of challenge to proffer, issue preserved).
Declarations Against Interest
K.S.A. 60-460(j) defines a declaration against interest:
“Declarations against interest. Subject to the limitations of exception (f) [concerning confessions], a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the de-clarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.”
R. Carr relies primarily on State v. Brown, 258 Kan. 374, 904 P.2d 985 (1995), and Chambers v. Mississippi, 410 U.S. 284, 292, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973), to support his argument.
In Brown, the defendant sought to introduce statements that another person made to three witnesses admitting that he, not die defendant, shot the victim. This court noted that K.S.A. 60-460(j) “includes a requirement the defendant make a showing of trustworthiness by the out-of-court declarant.” 258 Kan. at 382. Quoting State v. Jones, 246 Kan. 214, 219, 787 P.2d 726 (1990), Brown recognized several factors that a district judge may consider in determining whether a hearsay statement is admissible as a declaration against interest.
“ ‘A trial judge has wide discretion in determining the admissibility of a declaration against interest and may consider such factors as tire nature and character of tire statement, the person to whom the statement was made, the relationship between the parties, and the probable motivation of the declarant in making the statement.’ ” 258 Kan. at 382.
Brown also discussed Chambers, noting tire four factors discussed in that case in determining that a third party’s admissions were admissible as declarations against interest:
“First, the admissions were made spontaneously to a close acquaintance shortly after the murder. Second, each confession was corroborated by some other evidence in the case. Third, each confession was unquestionably self-incriminatory and against interest. Finally, the third party who was said to have admitted committing the crime was present in the courtroom, had been under oath, and was available for cross-examination.” 258 Kan. at 382-83.
Brown recognized that the fourth factor listed in Chambers is inapplicable under K.S.A. 60-460(j).
R. Carr argues that J. Carr s statements to him fall clearly within these requirements:
“They were against his interest, as they implicated him in multiple homicides, they were corroborated by the DNA evidence and the physical evidence which placed Jonathan at the scene of the crime and, as they were made while the events were occurring, and immediately afterwards, were certainly spontaneous and there is no evidence of motivation to make tire statements.”
The material in the oral proffer that appears to quote J. Carr is limited. During the first phone call, J. Carr said that R. Carr needed to come to a location and that the third person was “ Trippin’ and talked about shooting people.” During the second call, J. Carr said he was near Adams’ house; that the third person had a gun. During the third call, J. Carr said that the third person had been “trippin’ ” and had shot people, that the property was stolen and people had been killed, and that J. Carr was tearing town. The proffer also indicated J. Carr’s in-person presence when the stolen property was obtained by R. Carr but attributed no particular statement to J. Carr.
These statements during the telephone calls were not clear on exactly what J. Carr’s role in the crimes had been, but they at least imply his presence when the crimes were committed. Viewed objectively, they made him vulnerable to at least cximinal investigation, if not prosecution. See State v. Hughes, 286 Kan. 1010, Syl. ¶ 8, 191 P.3d 268 (2008). Subjectively, J. Carr no doubt hoped his brother would help him avoid punishment. See State v. Cooper, 20 Kan. App. 2d 759, 763, 892 P.2d 909 (1995); State v. Palmer, 8 Kan. App. 2d 1, 6, 657 P.2d 1130 (1982).
The statements, as described, appear to have been spontaneous, and J. Carr’s presence at the Birchwood home and the soccer field certainly was eventually corroborated. In short, given the mix of factors to be evaluated under Brown and Chambers, we are comfortable concluding that the J. Carr statements meet the hearsay exception for declarations against interest, and Judge Clark abused his discretion by, at a minimum, ruling otherwise prematurely.
On the unknown third person, the proffer says only that R. Carr spoke to him and, somehow, at some unspecified later point, a decision on what to do with the stolen property was arrived at by someone. No part of the proffer quotes the unidentified third person. This part of R. Carr’s anticipated testimony was not hearsay at all, and the declaration against interest exception was unnecessary to malee it admissible as circumstantial evidence of the central fact in this case—R. Carr’s guilt or innocence.
Excited Utterances and Confessions
Because we have concluded that R. Carr’s anticipated testimony about statements made by J. Carr was admissible under the declarations against interest hearsay exception, we need not reach R. Carr’s alternative arguments on excited utterances under K.S.A. 60-460(d) or confessions under K.S.A. 60-460(f).
Reversibility
R. Carr argues that all of his convictions on the Birchwood crimes must be reversed, because Judge Clark’s exclusion of his proffered evidence under the third-party evidence rale and as hearsay was structural error that prevented him from presenting his defense.
We first examine the nature of a criminal defendant’s right to present a defense and then the possibility of a remedy for its violation.
Nature of Right to Present a Defense
Recognition of a defendant’s right to present a defense can be traced to Chambers, in which the United States Supreme Court rejected a state’s “voucher” rale, preventing a party from impeaching his own witness and its application of the hearsay rale, because their combination hamstrung a defendant’s effort “to develop his defense.” 410 U.S. at 296. The Court relied upon due process and the right of confrontation and the right of a defendant to present witnesses on his own behalf, concluding the combined effect of the voucher and hearsay rules denied the defendant “a trial in accord with traditional and fundamental standards of due process.” 410 U.S. at 302.
Since Chambers, the Court has reviewed many cases in which the defendant asserted his right to present a defense was denied by a procedural rule or evidentiary ruling. Summarizing this history, the Court recently described the “right” as follows:
" ‘[T]he Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense/ ” Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 [1984]), but we have also recognized that ‘ “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials/ ” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (quoting United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 140 L. Ed. 2d 413 [1998]). Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence. See [Holmes], 547 U.S., at 331, 126 S. Ct. 1727 (rule did not rationally serve any discernible purpose); Rock v. Arkansas, 483 U.S. 44, 61, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (rule arbitrary); Chambers v. Mississippi, 410 U.S. 284, 302-303, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973) (State did not even attempt to explain the reason for its rule); Washington v. Texas, 388 U.S. 14, 22, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967) (rule could not be rationally defended).’ Nevada v. Jackson, 569 U.S. _, 133 S. Ct. 1990, 1992, 186 L. Ed. 2d 62 (2013).
This court also has described a defendant’s right to present a defense, sometimes calling it “fundamental” and “absolute.” In one of our first post -Chambers cases, we said:
“The defendant’s theory of defense as to why the attack occurred was excluded by the trial court. The defendant had a right to present his theory of defense. He had the right to introduce into evidence what he believed was the motive and intent by the deceased for what he claimed was an attack by the deceased upon his person. This was an integral part of his claim of self-defense or justifiable homicide. It is fundamental to a fair trial to allow the accused to present his version of the events so that the jury may properly weigh the evidence and reach its verdict. The right to present one’s theory of defense is absolute. The trial court improperly used the evidentiary rules of establishing character to exclude relevant and material information pertaining to the defense.” State v. Bradley, 223 Kan. 710, 713-14, 576 P.2d 647 (1978).
See State v. Rowell, 256 Kan. 200, 209, 883 P.2d 1184 (1994), abrogated on other grounds by Shadden, 290 Kan. 803, 235 P.3d 436 (2010) (right to present theory of defense “absolute”); State v. Mays, 254 Kan. 479, 487, 866 P.2d 1037 (1994) (same); State v. Irons, 250 Kan. 302, Syl. ¶ 2, 827 P.2d 722 (1992).
In other cases, we have not used the same categorical terms:
“A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant’s theory violates tire right to a fair trial. However, a defendant’s right to call and examine witnesses is not absolute and on occasion will be overridden by ‘other legitimate interests in the criminal trial process.’ Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).” State v. Green, 254 Kan. 669, 675, 867 P.2d 366 (1994).
Most recently, we said this about the right:
“Under the state and federal constitutions, a defendant is entitled to present his or her theory of defense. But the right to present a defense is not absolute. Instead, the right is subject to statutory rules and caselaw interpretations of the rules of evidence and procedure.” State v. Astorga, 295 Kan. 339, Syl. ¶ 2, 284 P.3d 279 (2012), cert. granted, judgment vacated on other grounds 133 S. Ct. 2877 (2013).
When all of these authorities are laid side to side, our court’s description of the right to present a defense from State v. Green, 254 Kan. 669, Syl. ¶ 2, 867 P.2d 336 (1994), seems closest to the position taken by the United States Supreme Court. The right is fundamental but its protection tempered by sensible control of the criminal trial process. A defendant is entitled to a “meaningful opportunity to present a complete defense,” but the right is subject to procedural rules and evidentiary rulings that serve legitimate interests. See, e.g., Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (rule under consideration did not rationally serve any legitimate interest); but see Montana v. Egelhoff, 518 U.S. 37, 42, 116 S. Ct. 2013, 135 L. Ed. 2d 361 (1996) (“[T]he proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible.”). The right, a critical component of a fair trial, is violated when a district judge excludes relevant, admissible, noncumulative evidence that is an integral part of a defendant’s theory of defense. State v. King, 293 Kan. 1057, 1063, 274 P.3d 599 (2012) (proffered testimony of defense witnesses tending to establish bias, interest, improper motives of arresting officer admissible as integral part of defense); State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009) (exclusion of evidence of victim’s prior violence toward defendant’s family members not error because not relevant to self-defense theory); State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006) (expert opinion testimony on effectiveness of victim’s anti-hallucination medication relevant to defense theory, exclusion not error because not necessaiy for jury understanding of defense); State v. Lawrence, 281 Kan. 1081, Syl. ¶ 1, 135 P.3d 1211 (2006) (trial court rulings on evidence of effect of prior shooting on defendant’s state of mind not unconstitutional limit on presentation of imperfect self-defense theory).
We have already determined that R. Carr’s proffered evidence was relevant and admissible. It was not merely integral to his defense; it was his defense. Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987) (defendant’s testimony maybe indispensable). The State has not argued, and we do not divine, how either the third-party evidence rule, as understood and applied by Judge Clark, or the judge’s refusal to apply the hearsay exception for declarations against interest was supported by a legitimate interest sufficient to overcome R. Carr’s right to present his defense.
Remedy for Violation
R. Carr urges us to treat the violation of his right to present a defense—particularly given its effective preclusion of his ability to testily to anything useful to the defense—as structural error that is automatically reversible.
R. Carr cites a single case from the Supreme Court of Louisiana to support his argument, State v. Hampton, 818 So. 2d 720 (La. 2002). Hampton is too different from R. Carr’s situation to have much persuasive punch. In it, the defendant had told his counsel continuously that he wanted to testily; counsel responded that it was not the defendant’s decision to make. Here, the record before us indicates that R. Carr decided not to testify after consulting with counsel in the wake of the judge’s rulings.
In addition, although the United States Supreme Court has not ruled on the issue, it appears the majority of courts that have considered the issue have applied a constitutional harmless error standard to denial of a defendant’s right to testify. See Palmer v. Hendricks, 592 F.3d 386, 398 (3d Cir. 2010); Ortega v. O’Leary, 843 F.2d 258 (7th Cir. 1988); Wright v. Estelle, 572 F.2d 1071 (5th Cir. 1978); Quarels v. Com., 142 S.W.3d 73 (Ky. 2004).
The United States Supreme Court has held that denial of a defendant’s right to present a defense is subject to the constitutional harmlessness standard. See Crane v. Kentucky, 476 U.S. 683, 691, 106 S. Ct. 2142, 90 L. Ed. 2d 636 (1986).
Under the constitutional harmlessness standard, again, we must be persuaded beyond a reasonable doubt that there was no impact on tire trial’s outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011).
The State, as the party benefitting from the alleged error, must demonstrate harmlessness. It summarizes the evidence against R. Carr on the Birchwood crimes in its brief:
“ [Holly G.’s] identification of Reginald, both immediately following the attack and at trial, as one of the two black males responsible for the crimes perpetrated against her and her friends. [Holly G.’s] identification was buttressed by multiple scientific sources, including the mitochondrial DNA analysis, which revealed that of the four hairs collected from the Birchwood scene and submitted for analysis only two were of African-American lineage and defendant could not be excluded as the donor of either one; the nuclear DNA test results, which demonstrated defendant also could not be excluded as the donor of the DNA evidence recovered from [Holly G.’s] inner thigh and which identified the blood on defendant’s shirt and underwear as that of [Heather M.]; and the medical evidence, which demonstrated that a few short months after the attack [Holly G.] developed the same sexually transmitted disease that defendant carried.”
“Additional evidence to support the identification included footwear impressions taken from a Voicestream box and tarp at the Birchwood residence and determined to match the size, shape, and character of the ‘B-Boots’ Reginald wore. A cigar-type ash, . . . matched the diameter of the cigar recovered from Reginald’s coat pocket. Both pieces of evidence supported [Holly G.’s] assertion that Reginald played an active role in the commission of the offenses.
“Further, the court heard evidence that it was Reginald who was in possession of a vast majority of the property taken from the Birchwood residence, given that it was recovered from both the apartment where he was staying and his Plymouth vehicle. That property included a big screen TV, various electronics, bedding, luggage, a vast amount of clothing, and numerous personal items belonging to each victim—including checkbooks, wallets, credit cards, drivers’ licenses, sets of keys, gas cards, watches, and day planners—as well as numerous ATM receipts and just under $1000.00 in cash, a particularly notable fact given that Reginald was unemployed. Moreover, Reginald was stopped by law enforcement officers after driving by the Birchwood residence at approximately 4:00 a.m. on tire morning of the killings.
“Finally, at tire time of the proffer the court was aware of the evidence that highlighted Reginald’s link to tire Lorcin handgun used in tire commission of tire murders and that, despite his efforts to dispose of tire gun, it was ultimately recovered and tested, revealing that each bullet and cartridge was fired from that gun.”
Given the remarkable strength of the State’s case against R. Carr, we are persuaded beyond a reasonable doubt that there was no impact on the trial’s outcome from the exclusion of R. Carr’s proffered testimony.
19. Admission of Mitochondrial DNA Evidence
R. Carr argues on appeal that Judge Clark erred in admitting mitochondrial DNA test results on hairs found at the Birchwood home.
Two of four hairs collected from the Birchwood home by investigators had a mitochondrial DNA sequence matching both defendants. Expert testimony at trial established that persons who share a mother, such as R. Carr and J. Carr, would have the same mitochondrial DNA sequence. One of the two hairs, which included root material, was submitted for more precise nuclear DNA testing. R. Carr was excluded as a possible source of that hair, but J. Carr could not be excluded.
R. Carr filed a motion to exclude evidence of the results of the mitochondrial DNA testing pretrial and again objected to admission of the evidence during trial.
R. Carr argues on appeal that the results of the mitochondrial testing were more prejudicial than probative, that he should not be convicted merely because more precise nuclear DNA testing proved J. Carr’s presence at the crime scene, and that the mitochondrial test results could not measure up to a heightened scrutiny or reliability standard applicable in death penalty cases.
Standards of Review and Admissibility of Evidence
Appellate review of a district judge’s decision to admit or exclude evidence involves a multistep analysis. State v. Everett, 296 Kan. 1039, 1044, 297 P.3d 292 (2013) (citing State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 [2010]).
First, an appellate court determines whether the evidence is relevant.
“Evidence is relevant when it has ‘any tendency in reason to prove any material fact.' K.S.A. 60-401(b). Accordingly, relevant evidence must be both probative and material. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 [2009]). Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. Shadden, 290 Kan. at 817, 235 P.3d 436 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]).” State v. Bridges, 297 Kan. 989, 995-96, 306 P.3d 244 (2013).
Under the second step, the appellate court reviews de novo the district judge’s conclusion on which rules of evidence or other legal principles apply. Shadden, 290 Kan. at 817.
On the third step, this court reviews the district judge’s application of the rule or principle either for abuse of discretion or de novo, depending on the rule or principle being applied. 290 Kan. at 817. Admission of scientific or experimental test results such as the mitochondrial DNA testing performed on the two hairs here is reviewed for abuse of discretion. State v. Pennington, 254 Kan. 757, 759, 869 P.2d 624 (1994).
In addition, “a judge may, in his or her discretion, exclude otherwise admissible evidence if its probative value is substantially outweighed by the risk that its admission will unfairly prejudice the party against whom it is offered.” State v. Smith, 296 Kan. 111, 123, 293 P.3d 669 (2012) (citing K.S.A. 60-445; State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 [2001]); see State v. Marks, 297 Kan. 131, Syl. ¶ 5, 298 P.3d 1102 (2013) (“It is within a trial court’s discretion whether to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice.”).
In State v. Miller, 284 Kan. 682, 690-91, 163 P.3d 267 (2007), this court explained that
“tlie admission or exclusion of evidence lies within the sound discretion of die trial court. If the trial court determines die probative value of die evidence offered is substantially outweighed by the risk of unfair prejudice, die court may exclude relevant evidence. State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001).
“At the same time, the law in this state favors die admission of otherwise relevant evidence. [Citations omitted.] The Court of Appeals for die Tendí Circuit has explained with regard to Rule 403 of the Federal Rules of Evidence (which has similar language to K.S.A. 60-445 and tiiat used in Leitner, 272 Kan. at 415) that ‘[t]he exclusion of relevant evidence under Rule 403 is “an extraordinary remedy to be used sparingly.’ ” K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985) (quoting United States v. Plotke, 725 F.2d 1303, 1308 [11th Cir.], cert. denied 469 U.S. 843 [1984]).”
Analysis
The first step of the evidentiary analysis requires this court to determine whether the mitochondrial DNA evidence is relevant, i.e., both material and probative. “Material evidence tends to establish a fact that is at issue and significant under the substantive law of the case. [Citation omitted.] On the other hand, probative evidence only requires a logical connection between the asserted facts and the inferences they are intended to establish. [Citation omitted.]” Bridges, 297 Kan. at 999.
R. Carr makes an unconvincing argument that the evidence of the mitochondrial DNA test results on the two hairs was irrelevant. The identity of the perpetrators of the Birchwood crimes was material and in issue. And the mitochondrial DNA sequence in the two hairs had a logical connection to the material fact of identity. There was no other explanation for R. Carr s presence in the home, and tire evidence was certainly admissible.
R. Carr’s central argument is that Judge Clark should have intervened to keep the probative value of the mitochondrial DNA evidence from being substantially outweighed by the risk of undue prejudice from its admission. He insists that the expert testimony about him not being excluded as tire contributor of one of the hairs was “meaningless, as it was conclusively shown that [J. Carr] was at the crime scene, and, in fact, left one of the two hairs.” R. Carr says that admission of the mitochondrial DNA evidence, “in the context of this fact scenario, [was] dangerously misleading, as it was much more likely that hair came from [J. Carr] as well.”
Although it is true that J. Carr was linked to one of the hairs by more precise DNA testing that eliminated R. Carr as the source of that hair, R. Carr was not excluded as a contributor of the other hair. This evidence that he could not be excluded through mitochondrial DNA testing was not meaningless, because it narrowed the class of individuals who had been present at the crime scene. The relevant comparison is not to other evidence implicating J. Carr but to the absence of evidence implicating anyone not in the Carrs’ maternal line of descent.
Moreover, in an attempt to show that probative value was substantially outweighed by risk of unfair prejudice, R. Carr overstates the risk of juror confusion. During direct examination, the expert was very clear that all maternal relatives would have the same mitochondrial DNA profile and that mitochondrial DNA is not a “unique identifier.” The expert never suggested that the mitochondrial testing identified who contributed the hair, and she admitted that nuclear DNA testing was a “more discriminatory test” and could distinguish between individuals who have the same mother. On cross-examination of the expert, R. Carr’s counsel inquired about the “disadvantages” of mitochondrial DNA testing compared to nuclear DNA testing. The expert agreed that it would not tell her whether either hair belonged to R. Carr, J. Carr, their mother, or any other maternal relative. R. Carr’s counsel also succeeded in demonstrating during cross-examination of the analyst who conducted nuclear DNA testing on the hair with the root that it did not come from R. Carr.
The bottom line is that R. Carr’s arguments on the existence of an imbalance between probative value and undue prejudice are without merit. The mitochondrial DNA test evidence was admissible and any of its shortcomings when compared with nuclear DNA test evidence was fully explained to prevent juror confusion.
We also reject R. Carr’s arguments that he should not have been convicted because more precise nuclear DNA testing had already proved the presence of a maternal relative, J. Carr, at the crime scene, and because the prejudicial nature of the mitochondrial test results could not measure up to a heightened standard of reliability required of the procedures by which a state imposes a death sen tence. See Caldwell v. Mississippi, 472 U.S. 320, 340, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985) and Ford v. Wainwright, 477 U.S. 399, 411, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986).
The mountain of evidence against R. Carr included an eyewitness identification by a victim who was able to observe him off and on for several hours; his stop by the police in the Birchwood area very shortly after the home invasion and murders were reported; and the discoveiy of numerous possessions of the Birchwood victims in or recently in his possession when he was arrested early on December 15, 2000. His view that he was convicted of the Birch-wood crimes on the strength of mitochondrial DNA evidence from one hair is completely implausible. Any weaknesses in the evidence were fully vetted at trial, properly attacking weight rather than admissibility, and did not completely undermine that admissibility under any heightened standard of reliability applicable to capital cases.
20. Denial of Mistrial After Admission of Warts and HPV Evidence
R. Carr argues that Judge Clark erred by refusing to grant a mistrial after the admission of testimony from Holly G. that she had received a diagnosis of HPV after she was raped.
Additional Factual and Procedural Background
Before trial, R. Carr sought medical records for Holly G., and the prosecution discussed the obligation to produce such records with her. Holly G. did not disclose records in response.
At trial, both R. Carr’s girlfriend, Donley, and a detective who observed R. Carr during booking testified during cross-examination by R. Carr’s counsel that they had seen genital warts or lesions on R. Carr’s body. When Holly G. heard this testimony from the detective, she informed prosecutors that she had learned after she was raped that she had PIPV, the virus that causes genital warts or lesions.
After Holly G. informed the State of her diagnosis, the State immediately disclosed the new information to defense counsel. The State recalled Holly G. to testify, and she said that she received the diagnosis of HPV from her family doctor several months after she was raped at the Birchwood triplex.
Counsel for R. Carr did not object to this testimony and did not cross-examine, but he moved for mistrial because of the failure to disclose the HPV diagnosis before he had elicited the detective’s testimony on cross-examination. Counsel argued that Holly G.’s testimony “should [not] have been allowed because we had specifically requested the information.”
Judge Clark denied the motion for mistrial, stating:
“Let’s find that it was discoverable. . . . I’ll treat [the defense objection] as if it were contemporaneous under the theory that it could be cured with an instruction. I’ll find that. . . there is no fault as the District Attorney did not know it, nobody, even law enforcement, knew it until the cross-examination of [the detective] .... And then the witness H.G. made known her medical condition.
“The objection to it is overruled. I will allow it to stand but make the record clear that it’s something that’s been raised and objected to ... on the basis of it is—well, it doesn’t even rise to the level of excusable neglect. It’s just purely something that couldn’t have been discovered under any way that I know of by the District Attorney.”
Standards of Review
We review a district judge’s denial of a motion for mistrial for an abuse of discretion. State v. Waller, 299 Kan. 707, 722, 328 P. 3d 1111 (2014). “ ‘[T]he party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced.’ State v. Angelo, 287 Kan. 262, 283, Syl. ¶ 16, 197 P.3d 337 (2008) (citing State v. White, 284 Kan. 333, 161 P.3d 208 [2007]).” State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010). We first ask whether the district judge abused his or her discretion when deciding whether there was a fundamental failure in the proceedings. If so, we then examine whether the district judge abused his or her discretion when deciding whether the problematic conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice. State v. Harris, 293 Kan. 798, 814-15, 269 P.3d 820 (2012).
Abuse of discretion is also the governing standard of review when we evaluate a district judge’s decision on whether to admit or exclude evidence as a sanction for violation of a discovery order. See State v. Bridges, 297 Kan. at 998; State v. Johnson, 286 Kan. 824, 832, 190 P.3d 207 (2008). We have said that there is no due process right to have testimony excluded when a witness or party violates a discovery order, because K.S.A. 22-3212(g) grants discretion to a district judge to determine a “just sanction” for tire violation. Johnson, 286 Kan. at 832.
Discovery Violation
R. Carr frames the issue before us as one involving a discovery violation that resulted in admission of evidence causing unfair and harmful surprise, the consequence of which should have been the requested mistrial. We therefore begin our analysis by examining whether Judge Clark erred in his implicit ruling that there was no discovery violation. If this decision was based on an error of law, then Judge Clark abused his discretion by failing to exercise it properly. See State v. Ward, 292 Kan. 541, 570, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
When a criminal case is filed, a prosecutor is required to “endorse tire names of all witnesses known” on the charging document. K.S.A. 22-3201(g). At later times prescribed by the court, a prosecutor may endorse additional witnesses that have become known. K.S.A. 22-3201(g). “The purpose of the endorsement requirement is to prevent surprise to the defendant and to give the defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial.” State v. Shelby, 277 Kan. 668, 674, 89 P.3d 558 (2004).
In addition, K.S.A. 22-3212(a) requires that a prosecutor, upon request, provide the defendant with, among other things, the results of medical reports and scientific tests or experiments made in connection with the case. K.S.A. 22-3212(b) requires a prosecutor, upon request, to provide the defendant with access to documents material to the case that are in the possession of the prosecutor.
After initial compliance with a discovery order, if a party discovers additional material responsive to a previous request, “the party shall promptly notify the other party or the party’s attorney or the court of the existence of the additional material.” K.S.A. 22- 3212(g). I'f a party fails to comply with this obligation, the court “may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.” K.S.A. 22-3212(g).
In addition to these and other statutory discovery requirements, “[p]rosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant.” State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986).' [State v. Aikins,] 261 Kan. [346,] 381[, 932 P.2d 408 (1997)].” State v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006). This duty was first articulated by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The duty does not extend to inculpatoiy evidence. State v. McIntyre, 259 Kan. 488, 497, 912 P.2d 156 (1996).
In this particular case, R. Carr asked the State pretrial for any follow-up medical records for Holly G. Prosecutors attempted to comply by talking to Holly G., but she failed to disclose the existence of any such records or the information they would contain. When prosecutors learned during trial about Holly G.’s HPV diagnosis, they complied with K.S.A. 22-3212(g) immediately by sharing the new information with opposing counsel and the judge. The information, given the testimony of Donley and the detective about R. Carr’s genital warts or lesions, was inculpatory rather than exculpatory.
R. Carr does not allege that the State is responsible for Holly G/s discoveiy violation based on her mistaken belief that the follow-up diagnosis contained “private, confidential information.” And we see no discovery violation by the prosecutors. Judge Clark did not abuse his discretion in deciding as much.
Fundamental Failure
We also see no abuse of discretion in Judge Clark’s implicit decision that there was no fundamental failure in the proceedings.
R. Carr’s reliance on State v. Lewis, 238 Kan. 94, 708 P.2d 196 (1985), does not persuade us that Judge Clark should have recog nized a fundamental failure here. Lewis was a much more extreme case, involving prosecutorial misconduct in failure to disclose a critical piece of evidence, blood on a knife, about which the defense had been misled until late in the trial. Defendants had used the absence of blood as a lynchpin of their dreory of the case, claiming that the victim’s wounds came from broken glass rather than their knife attack. 238 Kan. at 95-96.
We simply are not faced with a situation where R. Carr’s identification as one of the men who raped Holly G. rose and fell on the circumstantial evidence of his visible genital warts or lesions and her later HPV diagnosis. Holly G. identified R. Carr directly as the second intruder at the Birchwood home. Any causal relationship between HPV and the genital warts or lesions observed on R. Carr was merely corroboration of what was no doubt compelling testimony from a woman who said she was sexually victimized repeatedly over several hours by R. Carr and his brother.
Having concluded that Judge Clark did not abuse his discretion by failing to recognize a fundamental failure in the proceedings, we need not reach the further question of whether measures other than mistrial could have cured such a failure.
21. Felony Murder as Lesser Included Offense of Capital Murder
R. Carr argued in his original brief to this court that Judge Clark erred by failing to give a requested instruction on felony murder as a lesser included offense of capital murder. In view of an intervening statutoiy change specifically eliminating felony murder as a lesser included offense of capital murder, see K.S.A. 2013 Supp. 21-5402(d), tire parties also now debate whether the new statutory language can be applied constitutionally to tire defendants.
Additional Factual and Procedural Background
Both defendants requested an instruction on felony murder as a lesser included offense of capital murder. Judge Clark agreed with the State that dre facts of the case did not support a felony murder instruction. He did give lesser included offense instruc tions on first-degree premeditated murder and second-degree intentional murder.
The Developing Law
In State v. Cheever, 295 Kan. 229, 284 P.3d 1007 (2012), vacated and remanded on other grounds, 134 S. Ct. 596 (2013), this court held, 11 years after trial of this case, that felony murder was a lesser included offense of capital murder and that an instruction should be given in any capital case where felony murder was supported by the evidence. 295 Kan. at 259.
After Cheever, the 2013 legislature passed Senate Substitute for House Bill 2093, effective July 1, 2013, (L. 2013, ch. 96, sec. 2) which amended the definition of murder in the first degree to provide that felony murder was not a lesser included offense of capital murder. See K.S.A. 2013 Supp. 21-5402(d). The amendment explicitly provided that it was to be applied retroactively to cases such as this. We ordered additional briefing on retroactive effect of this amendment from the parties.
Both defendants have argued that application of the amended statute to them to preclude a lesser included offense of felony murder would violate their Eighth Amendment and Fourteenth Amendment due process rights recognized by Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980). Both also argue that application of the amendment to them would violate the Ex Post Facto Clause of the United States Constitution.
A challenge to the constitutionality of a statute raises a question of law subject to our unlimited review. State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008).
In State v. Gleason, 299 Kan. 1127, Syl. ¶ 9, 329 P.3d 1102 (2014), we rejected the due process and ex post facto arguments advanced by the defense in this case. The amended statute abolishing felony murder as a lesser included offense of capital murder can be constitutionally applied to the defendants in this case.
This ruling eliminates any need for us to address the argument from the defense that a lesser included instruction on felony murder was supported by tire evidence admitted at trial.
22. Exclusion of Expert on Eyewitness Identification
R. Carr argues that his convictions must be reversed because Judge Clark denied defense motions to admit expert testimony by Scott Fraser on the reliability of eyewitness identification.
Additional Factual and Procedural Background
The defense made a written proffer of Fraser s anticipated testimony. The proffer stated that the testimony was intended to “aid the trier of fact in evaluating eyewitness recognition evidence.” It continued:
“[T]he proposed testimony, by providing the jury with scientific findings predicated upon empirical studies about eyewitness recognition, will aid the jury’s evaluation of that evidence
“The following is a summary of the potential topics . . . :
"1. Memory Decay—The rapidity of memory decay is much more significant than is commonly known. Instead of days or weeks, a substantial decline in a subject’s ability to accurately recall details occurs within hours. Dr. Fraser would testify that the scientific conclusions concerning memory decay are beyond the realm of a typical juror’s knowledge.
“2. Primacy of Opportunity for Identification—The earliest reliable test of a subject’s ability to select or reject a suspect has the highest degree of accuracy. Dr. Fraser would testify that scientific conclusions concerning the earliest test of recognition are not generally known.
“3. Own Race Effect—The accuracy of selections where the victim is of a different race than the perpetrator is significantly less than where the victim and the perpetrator are of tire same race. Dr. Fraser would testify that the available empirical evidence concerning this effect is not generally known to the average juror.
“4. Relative Reliability of Selections and Rejections—Rejections (non-selections) in recognition tests, like photographic lineups, are just as reliable as selections. Each should be accorded equal weight in terms of accuracy, authenticity, and information about a victim’s memory. Dr. Fraser would testify that tire relative validity of recognition test decisions is not generally known.
“5. Confidence—Contrary to common beliefs, a witness’ confidence in a selection is not strongly related to the accuracy of that selection.
“6. Post-Event Information—Information gathered after the event, from newspapers, television, or other sources, alters the subject’s memory of the episode without the subject’s awareness. This phenomenon, as Dr. Fraser would testify, is beyond the ken of the average juror.”
At a hearing on the defendants’ motions, the State argued that the evidence invaded the province of the jury; the evidence would not be helpful to the jury; and the PIK instruction on eyewitness identification provided adequate safeguards.
Relying on State v. Gaines, 260 Kan. 752, 763, 926 P.2d 641 (1996) (expert testimony regarding eyewitness identification should not be admitted), Judge Clark denied the motion.
Continued Viability of Gaines
On appeal, R. Carr and J. Carr argue that Gaines was wrongly decided.
The State cites State v. Schwarm, 271 Kan. 155, 164, 21 P.3d 990 (2001) (admissibility of expert testimony lies within sound discretion of trial court), to support its argument drat the standard of review on this issue is abuse of discretion. The defense acknowledges this general standard on admission of expert testimony, but it contends that the issue of whether Gaines is still good law in Kansas warrants de novo review. See State v. Jefferson, 287 Kan. 28, 33-34, 194 P.3d 557 (2008).
Both parties are correct. The continuing viability of an earlier holding is a question of law over which we exercise unlimited review. But, once tire legal standard is established, we review a decision to admit or exclude expert testimony for abuse of discretion. An abuse of discretion may arise through a failure to understand or apply the correct legal standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]), cert. denied 132 S. Ct. 1594 (2012).
In Kansas, we have long held that expert testimony on the reliability of eyewitness identification should not be admitted at trial. Gaines, 260 Kan. at 763. This has been true, despite our recognition of problems inherent in the area of eyewitness identification. See State v. Mitchell, 294 Kan. 469, 474, 275 P.3d 905 (2012) (“eyewitness identifications can be unreliable and result in wrongful convictions, causing some of the most tragic miscarriages of justice”); State v. Warren, 230 Kan. 385, 390-91, 635 P.2d 1236 (1981) (“problem of the potential unreliability of eyewitness iden tification has been with us for a long time”)- We have steadfastly resisted admission of expert testimony on the subject, asserting that admission of expert evidence on “ The reliability of eyewitness testimony is not the answer to the problems surrounding eyewitness identifications/ ” Gaines, 260 Kan. at 763 (quoting State v. Wheaton, 240 Kan. 345, 352, 729 P.2d 1183 [1986]); see also State v. Reed, 226 Kan. 519, 522, 601 P.2d 1125 (1979) (such testimony invades field of common knowledge, experience, education of laymen). We have relied on cross-examination, persuasive argument, and a cautionary instruction to provide safeguards against unreliable eyewitness identifications. See Mitchell, 294 Kan. at 474; Warren, 230 Kan. at 393.
The defendants attack the rationale underlying our precedent and note that several state and federal jurisdictions have recently rejected it. See, e.g., State v. Clopten, 2009 UT 84, 223 P.3d 1103, 1108 (Utah 2009) (“little doubt” juries generally unaware of deficiencies in human perception, memory, thus give great weight to eyewitness identifications; shortcomings of cross-examination, cautionary instruction as safeguards considered; caselaw excluding expert testimony overturned). Jurisdictions nationwide are split. Compare, e.g., State v. Guilbert, 306 Conn. 218, 251, 49 A.3d 705 (2012) (reliability of eyewitness identification not matter within knowledge of average juror; expert testimony admissible), with, e.g., State v. Young, 35 So. 3d 1042, 1050 (La. 2010) (expert testimony inadmissible; recognizing debate).
Two years ago, we changed course on another aspect of eyewitness identification evidence, specifically, on the instruction that directs juries to evaluate it especially carefully. In Mitchell, we held that the traditional PIK cautionary instruction on tire reliability of eyewitness identifications must be responsive to developing research and thus stop listing the witness’ degree of certainty as a factor to be evaluated. We were mindful that the instruction had the potential to assign more weight to an expression of certainty than modern scholarship would. We quoted cases from other jurisdictions in which studies on the correlation between eyewitness certainty and accuracy had been discussed, and we ultimately determined that “the available studies are not definitive on the ques tion whether there is a significant correlation between certainty and accuracy.” 294 Kan. at 481.
We conclude today that Kansas should evolve in a like manner on the subject of the potential contribution expert testimony can make when juries decide the reliability of an eyewitness identification.
At this juncture, with a deeper appreciation of all that we and the average juror do not know, we have little question that the subjects Fraser intended to address are outside the usual knowledge of persons without his education and experience. See State v. Willis, 240 Kan. 580, 585-86, 731 P.2d 287 (1987) (when defendant seeks addition of factors to eyewitness cautionary instruction, including cross-racial identification, unconscious transference, after-acquired experience, court concludes terms beyond ordinary lay person’s knowledge, experience; inclusion of factors would require expert testimony to support it); see also Kohnlcen and Maass, Eyeioitness Identification: Simulating the ‘Weapon Effect,” Law and Human Behavior, Vol. 13, No. 4 (1989) (only half of judges, jurors surveyed believed perpetrator’s use of a weapon had debilitating effect on eyewitness recognition; 88 percent of expert psychologists appreciated weapon’s influence on identification). Although many of us are aware of the general fallibility of human memory, we are not well versed in its scientifically documented tendencies to decay or become polluted by outside information and influences over time. We have not read widely and deeply on whether a certain degree of skepticism should accompany our examination of a witness’ identification of a person of a different race, but this subject is of legitimate concern when, as here, the victims in all three incidents were white and the defendants black. Neither the court nor laypeople generally are likely to be aware of expert arguments that a failure to identify can be just as significant as an identification. Again, this topic may have had specific bite in this case, notable for the State’s extensive rebanee on three victims’ identifications of at least one of tire two defendants; because there also were failures to identify. Schreiber did not identify either defendant in a photo array; Walenta did not identify J. Carr in a photo array; Holly G. did not identify J. Carr in a photo array, and she did not identify R. Carr at preliminary hearing.
Of course, had Fraser been permitted to testify, all of his testimony on these subjects would have been subject to the crucible of cross-examination, as well as probable examination by competing experts. There is no reason to suspect that our truth-finding system would have collapsed. The State would have been free to present its version of the authorities on which Fraser relied, and a better-educated jury would still have been free to accept or reject Fraser’s opinions.
The time has come to eschew Gaines’ automatic rule of exclusion in favor a more flexible approach—individual evaluation by the judge in each case whether proffered expert testimony on the reliability of eyewitness identifications will be helpful to the juiy— and whether it meets any other applicable test for admission of expert evidence. See United States v. Brien, 59 F.3d 274, 277 (1st Cir. 1995) (unwilling to adopt blanket rule on admissibility of expert testimony of eyewitness reliability). We do not pass today on tire outcome that should be reached in any particular case. We simply alter the map for reaching it.
We conclude that automatic exclusion of Fraser’s testimony rested on legal error, which means the judge’s decision qualified as an abuse of discretion. See Ward, 292 Kan. at 550 (citing Gonzalez, 290 Kan. at 755-56).
Harmlessness
Having concluded there was error in automatically excluding Fraser’s testimony under Gaines, we turn to whether its omission requires reversal of the defendant’s convictions, the evidence for all of which included eyewitness identifications. See K.S.A. 60-261; State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013) (quoting Ward, 292 Kan. 541, Syl. ¶ 6).
Given the hours Holly G. was in the presence of the two intruders—at the Birchwood home, on her trip with the second intruder to the ATM, and en route to the soccer field—we cannot be persuaded that the exclusion of Fraser’s evidence about the subjects listed in the proffer affected the outcome of the trial on any of the Birchwood crimes. Although we are somewhat less sanguine on the Schreiber crime and Walenta crimes, the commonalities of the gun and various elements of the modus operandi of the perpetrators of those crimes and the Birchwood crimes also mean we cannot be persuaded that admission of Fraser’s evidence would have made a difference for R. Carr.
23. Jury View of Locations Referenced at Trial
R. Carr challenges Judge Clark’s decision to permit a jury view of more than 20 different locations in Wichita, pursuant to K.S.A. 22-3418. He argues that the jury view violated his right to be present at all critical stages of his trial, his right to the assistance of counsel, and his right to a public trial.
Additional Factual and Procedural Background
The State filed a pretrial motion pursuant to K.S.A. 22-3418 requesting the jury view. Each of the more than 20 locations to be viewed was associated in some way with the Schreiber, Walenta, and Birchwood incidents. The prosecutor said that the view would allow jurors to “recall die evidence that they heard [in court] and associate it with the various places involved.”
R. Carr’s counsel objected and said, “I fear that the view will become the evidence as opposed to the evidence being that which has been here in court.” J. Carr’s counsel also objected and said that the view would be “very dangerous to everybody’s shot at a fair trial.”
Judge Clark granted the State’s motion.
J. Carr’s counsel then asked whether the defendants and counsel would be allowed to accompany the jury when it visited the different locations. Judge Clark declined to answer the question at that time, but said, “[I]f I had to decide right now the answer [would be] no.”
Near the end of the State’s case-in-chief, the district court judge discussed the jury view procedures with counsel.
“Now, at some point we re going to have a jury view. This is the way it’s going to be done. The jury’s going to be all together in the custody of the bailiff on a conveyance. There’s going to be a driver and a deputy sheriff on that conveyance as well. The role of the driver is obvious. The deputy sheriff s role will be to assist die bailiff. There will be no talk of the case by anybody. There will be marked law enforcement vehicles diat will lead the conveyance and trail die conveyance. The head of the trial security, Sergeant Cliff Miller, will follow the route directed by me. He will be in die lead car and die jury conveyance vehicle will follow that lead car. Any odier marked units will follow for security and to help widi traffic.
“The jury will receive an admonition before they leave from me that will be along diis line, tiiat any decision diat you jurors malee in diis case must be based on the evidence admitted in court, viewed in light of the law that I say must be applied to the evidence. You’re going to be taken for a view of certain locations diat have been discussed and/or depicted by photographs in the case. The purpose of diis jury view is to assist you in understanding die evidence presented in court. During die view do not discuss the case, do not allow any person to discuss the case with you, be alert to your surroundings during the trip, you may take your notebooks with you. And you all have the route, I’ve given you copies.”
R. Carr’s counsel renewed his earlier objection to the view, and J. Carr’s counsel again asked whether the defendants and counsel would be allowed to be present during tire jury view. In response, Judge Clark said:
“To me this is no different tiian what the bailiff has done at 3:00 o’clock for the seven weeks we’ve been in trial, tiiat is walks the jury outside at 3:00 o’clock and they have a walk around. There’s no cigarette smokers among die 16,1 understand they want to go out. This is no different. And diey will be in die custody of die bailiff... and one deputy will be there, not to say anydiing, just if die bailiff needs assistance diat’s all. So that will be the entire party on the conveyance.”
From the judge’s comments, it was clear to the defendants and their counsel that the answer to the question about accompanying the jury on the view—at least in the same conveyance—was still “no.” The record before us does not disclose whether any counsel or members of the public would be permitted to follow the law enforcement vehicles trading the jury’s conveyance.
Later, Judge Clark informed die jury about the plans for the view:
“As you know, any decision you jurors make in diis case must be based on die evidence admitted here in court, viewed in light of the law tiiat I say applies to that evidence. And you’re going to be taken for a view of certain locations tiiat have been discussed and/or depicted by photograph here in court. The purpose of the view is to assist you in understanding the evidence presented in court.
“Now, during die view do not discuss the case. Don’t allow anybody to discuss die case widi you. Be alert to your surroundings during die trip, and take your notebooks with you. They allow no food or drink on the conveyance you’re going to be on, I’m told. And on that conveyance you all are going to be together with Ms. Marquez, the bailiff. There will be one deputy sheriff. He’s there to help the bailiff if the bailiff needs help. And as I say, no talk by anybody. The person in the lead car that will be leading the conveyance will know where you’re going, and your driver of your conveyance will know to follow that car. There will also be marked vehicles following you to help with the traffic. Ms. Marquez will take you now downstairs on the conveyance, and we’ll see you as soon as you get back. Thank you very much for your attention. Follow the bailiff.”
Judge Clark expected tire jury view to take approximately 2 hours.
Before the jury retired to deliberate, it was instructed that “[t]he purpose of the jury view . . . was to assist you in understanding the evidence that has been admitted here in court.”
Standards of Review
A district judge’s decision to allow a jury view under K.S.A. 22-3418 generally is reviewed for abuse of discretion. State v. Engelhardt, 280 Kan. 113, 120, 119 P.3d 1148 (2005). But statutory interpretation and constitutional analysis raise legal questions subject to unlimited review on appeal. See State v. Prine, 297 Kan. 460, 474, 303 P.3d 662 (2013); State v. Anderson, 294 Kan. 450, 464, 276 P.3d 200 (2012).
Defendant’s Right to be Present
R. Carr first argues that the jury view under K.S.A. 22-3418 violated his right to be present at all critical stages of his trial. The statute provides:
“Whenever in the opinion of the court it is proper for the jurors to have a view of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which shall be shown to them by some person appointed by the court for that purpose. They may be accompanied by the defendant, his counsel and the prosecuting attorney. While the jurors are thus absent, no person other than the officer and the person appointed to show them the place shall speak to them on any subject connected with the trial. The officer or person appointed to show them the place shall speak to die jurors only to the extent necessary to conduct them to and identify the place or thing in question.”
We have said that, under K.S.A. 22-3405(1) and the confrontation and due process provisions of the federal Constitution, a de fendant in a felony case has both a statutory and constitutional right to be present at all “critical stages” of a prosecution. State v. Herbel, 296 Kan. at 1109 (quoting State v. Bell, 266 Kan. 896, 919-20, 975 P.2d 239, cert. denied 528 U.S. 905 [1999]). In determining whether a particular phase of a criminal proceeding is a critical stage, this court has examined “whether the defendant’s presence is essential to a fair and just determination of a substantial issue.” State v. Edwards, 264 Kan. 177, 197, 955 P.2d 1276 (1998). But the United States Supreme Court has ruled that due process does not require a defendant’s presence at a jury view. See Snyder v. Massachusetts, 291 U.S. 97, 117-18, 54 S. Ct. 330, 78 L. Ed. 674 (1934).
In 2005’s Engelhardt, defendant Robert Engelhardt was charged with first-degree murder in the stabbing death in a trailer home. At trial, the State moved for a jury view to permit jurors to walk through the trailer where the murder took place. The State contended that the view would assist the jury in understanding the amount of space in the trailer and its layout. Engelhardt’s counsel argued that Engelhardt had a right to be inside the trailer during tire jury view because it was a “ ‘critical stage’ ” of the proceeding and the jury would be seeing evidence. 280 Kan. at 120-21.
Citing the trailer’s close quarters, the district judge ruled that Engelhardt would not be allowed inside the trailer with the jurors. Engelhardt rejected the judge’s suggested compromise that would have had Engelhardt wait in a car across the street from the trailer during the view. Engelhardt also rejected the prosecutor’s suggestion that Engelhardt be permitted to stand outside the trailer with tire judge and counsel for both sides during the view. 280 Kan. at 121.
“Ultimately only the jurors were taken to tire scene by the bailiff. They had previously been directed by the district judge to enter the trailer two at a time, walk to one end and back, and then get back on the county bus that had transported them. The judge had further admonished the jurors not to talk among themselves or touch anything in the trailer.” 280 Kan. at 121.
On review, this court ruled that the jury view did not constitute a critical stage of the proceeding against Engelhardt. 280 Kan. 113, Syl. ¶ 3. We said that “the role of the jury view was strictly cor roborative,” notwithstanding our recognition that it “enabled the jury to more fully appreciate tire space available in the trailer and the distance between the place of the attack and the witnesses who had been in the bedrooms while the attack was taking place.” 280 Kan. at 123. The view also permitted members of the jury to see the results of post-crime cleaning described by witnesses. 280 Kan. at 123.
In reaching our conclusion in Engelhardt, we also noted that “Kansas cases have consistently upheld jury views outside the presence of defendants.” 280 Kan. at 123 (citing State v. Hickles, 261 Kan. 74, 88-89, 929 P.2d 141 [1996]; State v. Laubach, 220 Kan. 679, 681, 556 P.2d 405 [1976]; State v. McCorgary, 218 Kan. 358, 363-64, 543 P.2d 952 [1975], cert. denied 429 U.S. 867 [1976]; State v. Zakoura, 145 Kan. 804, 812-13, 68 P.2d 11 [1937]; State v. Harris, 103 Kan. 347, 352-53, 175 Pac. 153 [1918]; State v. Adams, 20 Kan. 311, 323-26 [1878]).
R. Carr recognizes this court’s decision in Engelhardt but urges us to reconsider its holding. He asserts that the modern majority position of courts from other jurisdictions is that “a jury view constitutes evidence, and is therefore a stage of the trial at which the defendant has the right to be present personally and through counsel.”
We are mindful of a split of authority from other jurisdictions on whether a jury view constitutes evidence and what appears to be the related issue of whether a criminal defendant has a right to be present. Compare Stephenson v. State, 742 N.E.2d 463, 493-94 (Ind. 2001) (defendant has no right to attend jury view under Sixth Amendment; jury view not evidence), with State v. Pauline, 100 Hawaii 356, 378, 60 P.3d 306 (2002) (jury view constitutes independent evidence; defendant has right to be present at view). We have long been mindful of the split among jurisdictions on whether a juiy view of a crime scene constitutes evidence. See State v. Adams, 20 Kan. 311, 323-26 (1878) (holding defendant need not be present; noting contrary authority); see also 30 A.L.R. 1357 (“Presence of accused during view by jury,” originally published in 1924).
Contrary to R. Carr’s contention about the modern majority position, it appears that the majority of other jurisdictions still favor the rule that “a view is not itself evidence; like a demonstrative aid, its purpose is only to assist the trier of fact in understanding and evaluating the evidence.” 2 McCormick on Evidence § 219 (7th ed. 2013). But the persistent majority certainly is not without its detractors. See United States v. Gray, 199 F.3d 547, 548-49 (1st Cir. 1999) (“[Mjost of the usual commentators on matters of evidence either question the rationale for excluding views from evi-dentiary status, observe that the position has lost favor, or both.”); 2 McCormick § 219 (7th ed. 2013) (citing six cases, including Pauline and Gray).
The Georgia Supreme Court has taken a modified approach under which it recognizes at least two types of juiy views: an “ ‘evi-dentiary view’ ” and a “ ‘scene view.’ ” See Jordan v. State, 247 Ga. 328, 345, 276 S.E.2d 224 (1981). An evidentiary view “permit[s] the juiy to view evidence introduced in the case which evidence is so large or affixed that it cannot be brought into the courtroom.” 247 Ga. at 345 (e.g., jury view of vehicle admitted as evidence). A scene view, on the other hand, “permit[s] the jury to view the premises relevant to the case to enable the jury to better understand the testimony and other evidence introduced in court .... A view of the scene is not ‘evidence’ in the case.” 247 Ga. at 345-46. The Georgia court held that a defendant’s right of confrontation was not violated if he or she was absent at a scene view, but it also observed in a footnote that the two types of views are not necessarily mutually exclusive. 247 Ga. at 345 n.23 (e.g., “bullet holes in the walls and ceilings viewed”).
We admit to some discomfort about our historical noneviden-tiaiy treatment of jury views outside of a defendant’s presence. But we also are cognizant that competing practicalities may sometimes have to control. In this case, for instance, it may have been, practically speaking, impossible for the defendants to ride on the conveyance with members of the jury without a heavier and potentially prejudicial security presence. On the other hand, it does not appear that it would have been impossible to permit counsel to ride with the jury in their clients’ stead or that it would have been impossible to permit the defendants and their counsel to be transported in a law enforcement vehicle traveling behind the jury’s conveyance.
We will for the time being continue to adhere to our precedent, the evident leaning of the United States Supreme Court when it said due process concerns were not implicated by the defendant’s absence from a jury view in the Snyder case, 291 U.S. at 117-18, and the continuing majority rule among other jurisdictions that a jury view is nonevidentiary and not a critical stage of the proceedings requiring the defendant’s presence. Neither the Kansas statute nor R. Carr’s right to be present was violated when Judge Clark excluded him from tire jury view in this case.
We nevertheless urge district judges in future cases to consider all reasonable alternatives to accommodate a criminal defendant’s presence at jury views, insofar as it is practically possible to effect it. As the Supreme Court of Hawaii put it in Pauline, we may not always continue to “assume that jurors, however they may be instructed, will apply the metaphysical distinction suggested and ignore the evidence of their own senses when it conflicts with the testimony of the witnesses.’ ” 100 Hawaii at 373 (quoting 2 McCormick on Evidence, § 216 [5th ed. 1999]).
Defendant’s Right to Assistance of Counsel
The Sixth Amendment also guarantees a defendant a constitutional right to counsel at all “critical stages” of a proceeding. State v. Lawson, 296 Kan. 1084, 1096, 297 P.3d 1164 (2013) (quoting Montejo v. Louisiana, 556 U.S. 778, 786, 129 S. Ct. 2079, 173 L. Ed. 2d 955 [2009]). Its Kansas codification in K.S.A. 22-4503 has potentially broader coverage; it provides that a defendant is entitled to have assistance of counsel at every “stage” of the proceedings against him or her. See Lawson, 296 Kan. at 1096 (critical stage “likewise a stage of the criminal proceeding” under K.S.A. 22-4503).
Having concluded that the nonevidentiary jury view in this case was not a critical stage of the proceeding, we also conclude that R. Carr’s Sixth Amendment right to counsel was not violated by it. Our ruling on the dispensability of defendant’s presence leads us to the same ruling on the dispensability of defense counsel’s. That being said, we still urge district judges faced with jury view requests in future cases to accommodate the presence of defense counsel where possible.
On the question of whether the legislature intended to provide greater protection for a defendant’s right to assistance of counsel than that provided by the Sixth Amendment, i.e., that its choice of the phrase “stage of the proceeding” over the phrase “critical stage of the proceeding” has legal significance, we are doubtful. If greater protection were the goal, the legislature would not have made defense counsel’s presence at a jury view discretionary under K.S.A. 22-3418. The better practice for Judge Clark would have been to allow defense counsel to attend the jury view, but the view did not qualify as a stage of the proceeding requiring counsel’s presence under K.S.A. 22-4503.
Defendant’s Right to Public Trial
We decline to reach R. Carr’s public trial argument because the record before us does not support it. After careful review, we see nothing in it to indicate that any member of the public’s ability to follow the jury’s conveyance from place to place during the view was disallowed or impeded in any way.
24. Modification of Eyewitness Identification Instruction
R. Carr argues that the district court erred when it denied his requested addition to the PIK cautionary instruction on the reliability of eyewitness identifications.
As given, the instruction read:
“The law places the burden upon the State to identify a defendant. The law does not require a defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of tire time of observation, and any limitation on observation like air obstruction or poor lighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
R. Carr proposed adding an eighth factor, informing jurors that they could consider “[t]he race of the witness and the race of the person observed.” Judge Clark rejected this proposal.
As discussed with regard to other instructions issues, our first question concerns reviewability. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012); State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). R. Carr’s request for the addition to the instruction in the district court preserved this issue for appellate review without imposition of the “clearly erroneous” burden under K.S.A. 22-3414(3). See Williams, 295 Kan. at 515-16.
We next address whether the requested additional language was legally appropriate, applying a de novo standard of review. See Plummer, 295 Kan. 156, Syl. ¶ 1. This is where R. Carr’s argument fails. The seventh factor set out in the instruction was a catch-all, covering “any other circumstances that may have affected the accuracy of the eyewitness identification.” In our view, it was not necessary to list additional factors or to fail to highlight additional factors for the jury’s consideration. Under the catch-all’s broad language, counsel for the defense were free to argue any factor the evidence would support.
Under K.S.A. 2013 Supp. 21-6619(b), which permits us to notice unassigned error in a capital case, we recognize that the PIK cautionary instruction on eyewitness identification reliability contained a factor we recently identified as erroneous. See State v. Mitchell, 294 Kan. 469, Syl. ¶ 4, 275 P.3d 905 (2012) (“Jurors should not be instructed that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony.”). No case to date has found the inclusion of this factor reversible error, and we continue that streak here. See State v. Dobbs, 297 Kan. 1225, 1241, 308 P.3d 1258 (2013). Under the circumstances of this case, there is no reasonable possibility the jury would have rendered a different verdict absent tire inclusion of the erroneous certainty factor. Reversal is not required.
25. Aiding and Abetting Instruction
Between the two of them, the defendants challenge the aiding and abetting instruction given by Judge Clark on three grounds. They argue that it was clearly erroneous because it permitted jurors to convict them as aiders and abettors for reasonably foreseeable crimes of the other, because it failed to communicate that an aider and abettor had to possess premeditated intent to kill personally in order to be convicted of capital murder, and because it omitted language from K.S.A. 21-3205(2).
To tire extent that one defendant or another does not advance an argument among these three, we notice any unassigned error under K.S.A. 2013 Supp. 21-6619(b). We cannot know which defendant was convicted as a principal and which as an aider and abettor on many of the joint charges, including those for capital murder. Thus all three arguments are equally applicable to each defendant.
Additional Factual and Procedural Background
After the close of tire evidence, the jury was instructed on the elements of capital murder. Jurors were told that, in order for them to find a defendant guilty, the State must prove beyond a reasonable doubt that the defendant intentionally tolled the victim and that “such tolling was done with premeditation.” The instruction also specified that “each defendant” was charged with the offense, and that “[ejach defendant pleads not guilty to tire charge.”
With respect to the attempted first-degree premeditated murder charge, the jury was instructed on the elements of attempt, includ ing specific direction that a finding of guilt could not be reached unless the defendant performed an overt act toward the commission of the crime of first-degree murder with the intent to commit that crime. The jury also was instructed on the elements of first-degree premeditated murder. Like the capital murder instruction, the instruction further specified that “each defendant” was charged with tire offense, and that “[ejach defendant pleads not guilty to the charge.”
Judge Clark also gave the jury Instruction No. 8 on accomplice liability, to which neither defendant objected. Part of this instruction has been quoted before in Section 13 of this opinion. We include a quote of the entire instruction here for ease of reference:
“A person who, either before or during its commission, intentionally aids, abets, advises, or counsels another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the person’s participation, if any, in the actual commission of the crime.
“A person who, either before or during its commission, intentionally aids, abets, advises, or counsels another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.
“A person who, either before or during its commission, intentionally counsels, procures or uses force or the threat of force to compel another to commit a crime is responsible for the crime although the other who directly committed the act constituting file crime lacked criminal or legal capacity.”
Given the multiple charges against the defendants, Judge Clark also instructed that “[ejach crime charged against an individual defendant is a separate and distinct offense,” and that the jury “must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge.” Judge Clark further instructed that the State bore the burden to prove “each individual defendant is guilty” and that the defendants must be presumed innocent.
The State had relied on an aiding and abetting theory to argue that J. Carr was guilty of capital murder of Heather M., Aaron S., Brad H., and Jason B. and guilty of attempted first-degree premeditated murder of Holly G., but one of the prosecutors also told the juiy during closing argument that it did not matter “who the shooter was” in those crimes. In reference to the criminal possession of firearm charges against R. Carr, one of the prosecutors told the juiy in closing that R. Carr should be found guilty on the basis of his possession of “[tjhis firearm,” referring to the black Lorcin, on December 7, December 11, and December 14 and 15.
Reasonable Foreseeability of Crimes of Another
The defendants argue that the “reasonably foreseeable crimes” paragraph of Instruction No. 8 requires reversal of their capital murder and attempted first-degree premeditated murder convictions, because it allowed the jury to find either of them guilty, not because he acted with premeditation, but because he aided and abetted his codefendant in the commission of one of the preceding Birchwood offenses and the victims’ shootings were a reasonably foreseeable outcome of those other offenses.
For example, if the jury believed that one of the defendants aided and abetted his codefendant in the commission of aggravated kidnapping of one of the Birchwood victims and that the four murders were reasonably foreseeable outcomes of the aggravated kidnapping, then the juiy could have convicted the defendant of capital murder, even if there was insufficient evidence that he acted with premeditation. In essence, in tire defendants’ view, the challenged language in the instruction allowed the jury to substitute a “reasonably foreseeable” standard for die essential element of premeditation for an aider and abettor of capital murder.
Again, we apply a “clearly erroneous” standard when a party fails to object to an instruction at trial. See State v. Williams, 295 Kan. at 510. We do so in death penalty cases as well as in other criminal cases. See State v. Kleypas, 272 Kan. 894, 939, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), abrogated on other grounds Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). Under tire clear error framework, tire first question we must address is whether error occurred at all.
The first paragraph of Instruction No. 8 was based on PIK Crim. 3d 54.05 (Responsibility for Crimes of Another), and the second paragraph was based on PIK Crim. 3d 54.06 (Responsibility for Crimes of Another—Crime Not Intended). PIK Crim. 3d 54.05 conforms to K.S.A. 21-3205(1). PIK Crim. 3d 54.06 conforms to K.S.A. 21-3205(2).
We have previously approved of both PIK Crim. 3d 54.05 and 54.06 when they have been used independently. See State v. Manard, 267 Kan. 20, 34, 978 P.2d 253 (1999) (PIK Crim. 3d 54.05); State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) (PIK Crim. 3d 54.06).
But we have held that a district judge commits error by giving both instructions together in a case when a defendant is charged with a specific-intent crime. State v. Overstreet, 288 Kan. 1, 13, 200 P.3d 427 (2009) (prosecution for attempted first-degree premeditated murder). We have agreed with the defense position here—in such a situation, the reasonably foreseeable language allows the jury to substitute a “reasonably foreseeable” standard for the specific intent element of the charged offense. See State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005). And, since our 2005 decision in Engelhardt, we have consistently applied this rule. See State v. Cofield, 288 Kan. 367, 373, 203 P.3d 1261 (2009) (“reasonably foreseeable crimes” aiding and abetting instruction erroneous in that it allowed the jury to apply a foreseeability standard to support conviction requiring specific intent of premeditation); Overstreet, 288 Kan. at 13 (PIK Crim. 3d 54.06 “reasonably foreseeable crimes” instruction improper when defendant charged with attempted first-degree premeditated murder).
Judge Clark committed error when he included both the first and second paragraphs of Instruction No. 8, without further explaining that the “reasonably foreseeable” language did not eliminate the State’s burden to prove an aider and abettor s specific intent on any crime requiring such an element, including capital murder and attempted first-degree premeditated murder.
Having held there was error, we turn to whether that error was reversible under K.S.A. 22-3414(3). To do so, we review the entire record to determine whether we are firmly convinced the jury would have reached a different verdict but for the error. The burden of demonstrating clear error rests with the defendants. Williams, 295 Kan. at 516.
When faced with the question of whether error of the type here merited reversal in prior cases, we have twice determined reversal was not necessaiy, see Cofield, 288 Kan. at 373-74 (large number of shots fired; defendant, cohorts took loaded guns on car ride; victims vulnerable; defendant confessed he fired at victims); Engelhardt, 280 Kan. at 133-34 (evidence established victim stabbed approximately 55 times; defendant clearly involved, not an innocent bystander), and once that it was, see Overstreet, 288 Kan. at 14-15 (evidence suggested defendant driver, not shooter; prosecutor s statements compounded instruction error). On one of the cases in which we ruled that reversal was not necessary, clear error was the governing standard. See Cofield, 288 Kan. at 372-73. On the case in which reversal was necessary, clear error also was the governing standard. See Overstreet, 288 Kan. at 9-10. Together, these cases lead us to conclude that the difference between ordinary error and clear error on this issue depends on the strength of the State’s case for the existence of premeditation and thus the likelihood that the “reasonably foreseeable” language may have played a role in the jury’s finding or findings of guilt.
Premeditation means
“to have thought over the matter beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” PIK Crim. 3d 56.04(b) (approved in State v. Saleem, 267 Kan. 100, 105, 977 P.2d 921 [1999]).
While the State can certainly establish a defendant’s premeditation with direct evidence, more frequently, it must rely on circumstantial evidence. State v. Scaife, 286 Kan. 614, 620, 186 P.3d 755 (2008).
“ ‘Circumstances which may give rise to the inference of premeditation include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.’ ” State v. Sanchez-Cazares, 276 Kan. 451, 459, 78 P.3d 55 (2003) (quoting State v. Murillo, 269 Kan. 281, 286, 7 P.3d 264 [2000]).
Both R. Carr and J. Carr begin their arguments in support of the existence of clear error with a simple observation: There were two defendants implicated in the capital murders and the attempted first-degree premeditated murder, but the identity of the shooter is unknown. This sets the stage for each to assert that the other was the actual triggerman and to plead ignorance of the trig-german s plan to shoot the victims.
Specifically, R. Carr suggests that the record lacks evidence of premeditation on his part. He points to the statements the Birch-wood intruder identified as him made to Holly G. He also points to the pattern of the first kidnapper's behavior in the Schreiber incident—Schreiber was kidnapped, driven to ATMs, then driven to a remote location and left alive with his damaged car. R. Carr asserts that this pattern demonstrates that he would have had every reason to expect tire same outcome when the Birchwood victims were driven to the soccer field. Finally, R. Carr also argues that the Birchwood intruder identified as J. Carr played the lead in the final stages of that incident—he drove the first car on the way to the scene of the shootings.
J. Carr makes a mirror-image argument, contending the record lacks evidence of his premeditation. He notes that, before the Birchwood incident, he had acquired a train ticket for travel out of the Wichita area very early on December 15, 2000. He had prepared for the trip the previous day by buying a box for his belongings with Adams. J. Carr observes that Holly G. discussed the possibility of the victims being shot only with the other Birch-wood intruder; during those conversations, the intruder identified as J. Carr was out of earshot. Despite his acquittal on the crimes charged as a result of the Schreiber incident, he also argues that the second kidnapper would have relied on the first kidnapper s pattern of behavior with Schreiber, including the fact that he was left alive in a remote area.
Both defendants have chosen well among the facts in evidence, but we do not have that luxury. In order to determine whether clear instruction error demands reversal, we must examine the entire record and malee a de novo determination. See State v. Phillips, 295 Kan. 929, 936-37, 287 P.3d 245 (2012).
Viewed in its entirety, we have no trouble concluding that the record contains a wealth of evidence of both the eventual principal’s and the eventual aider and abettor’s premeditation. Four of the five circumstances we have identified as influential on the question of premeditation plainly existed in this case.
Both Birchwood intruders were armed with handguns, and the victims were shot with one of them, the black Lorcin. Holly G. saw a black gun in the possession of the intruder identified as R. Carr. Adams had seen the black gun in J. Carr’s possession within a few days of the Birchwood incident. See Sanchez-Cazares, 276 Kan. at 459 (use of an SKS semi-automatic assault rifle circumstantial evidence of premeditation).
The record also convincingly establishes lack of provocation on the part of tire Birchwood victims. None knew R. or }. Carr. There was some evidence the entire encounter was accidental, because a light-colored car had followed the victims’ neighbor from the unit next door home just before the incident began. See State v. White, 263 Kan. 283, 295, 950 P.2d 1316 (1997) (lack of provocation, use of deadly weapon sufficient to infer premeditation).
Several facts concerning the Birchwood intruders’ conduct both before and after the killings also tend to show premeditation.
First, the black Lorcin was used in the gun-facilitated kidnapping and robbeiy of Schreiber and in tire shooting of Walenta in the days leading up to the Birchwood crimes. See State v. Drennan, 278 Kan. 704, 718, 101 P.3d 1218 (2004) (prior similar murder probative of premeditation in charged murder); State v. Henson, 221 Kan. 635, 645, 562 P.2d 51 (1977) (evidence of a previous similar incident relevant to show premeditation).
Second, during the crimes at the Birchwood home and again in the soccer field, the two intruders had conversations between themselves, giving rise to an inference of mutual consultation and planning.
Third, as events began to unfold at Birchwood, the intruders made some effort to conceal their identities. For instance, they covered Holly G.’s face with an article of clothing; and, when the intruder identified as R. Carr drove her to the ATM, he specifically instructed her not to look in his direction. By the time the group was en route in two vehicles to the soccer field, the intruder identified as R. Carr had stopped trying to conceal his identity. See State v. Hernandez, 232 Ariz. 313, 324, 305 P.3d 378 (2013) (jury could have found defendant acted as accomplice, intending to aid codefendant in committing capital murder, based on planned home invasion, no attempt to conceal his identity from victims); State v. Ellison, 213 Ariz. 116, 134, 140 P.3d 899 (2006) (evidence defendant planned home invasion, did not attempt to conceal identity, among other evidence, sufficient to establish aiding and abetting premeditated capital murder, imposition of death sentence).
At the soccer field, both intruders had the victims kneel down. See People v. Youngblood, 165 Mich. App. 381, 387, 418 N.W.2d 472 (1988) (premeditation can be based on circumstantial evidence of organized conduct suggesting existence of plan); State v. Stewart, 714 S.W.2d 724, 726 (Mo. App. 1986) (evidence supported finding of premeditation when defendant part of coordinated attack on victim). The two intruders were standing in close proximity to one another. As the shots began, and the victims started screaming, neither intruder attempted to intercede. See State v. Edgar, 281 Kan. 47, 68, 127 P.3d 1016 (2006) (defendant’s failure to oppose commission of crime supports inference defendant assented to, approved of, encouraged its commission; thus aided, abetted); State v. Ly, 277 Kan. 386, 395, 85 P.3d 1200 (2004) (failure to intercede in events culminating in homicide supports guilt on aiding, abetting). The five victims were shot execution-style. See People v. Robinson, 37 Cal. 4th 592, 630, 124 P.3d 363 (2005) (execution-style shooting of kneeling victim supported theory that murder premeditated); People v. Bloyd, 43 Cal. 3d 333, 348, 233 Cal. Rptr. 368, 729 P.2d 802 (1987) (execution-style killings at close-range “very strong evidence” of premeditation); see also Nguyen v. Knowles, CIV S-03-2381 MCE, 2011 WL 1076751, at *19 (E.D. Cal. 2011) (unpublished opinion), subsequently aff'd 475 F. Appx. 128 (9th Cir. 2012), cert. denied 133 S. Ct. 277 (2012) (“the speed and effectiveness with which the victim was killed indicated premeditation and deliberation by all four defendants”).
After the two intruders left the soccer field, the evidence suggests that they returned to the Rirchwood home to steal the victims’ belongings, including the big screen television mentioned in one of their conversations. The same morning, law enforcement found both defendants in possession of the victims’ property. The jury could have inferred that tire capital murders and the attempted first-degree premeditated murder were carried out, at least in part, to facilitate the subsequent stealing, again, demonstrating premeditation. See Drayden v. White, 232 F.3d 704, 709-10 (9th Cir. 2000) (defendant’s conduct after murder—including cleaning of scene, search of victim’s apartment, stealing of car, other property'—evidence of premeditated plan to rob victim, calculated strategy to lull him in furtherance of plan); People v. Kelly, 231 Mich. App. 627, 642, 588 N.W.2d 480 (1998) (premeditation supported by evidence defendant took victim’s automobile, items from her home after tolling, attempted to sell them); State v. Hardimon, 310 N.W.2d 564, 566 (Minn. 1981) (jury’s finding of premeditation supported by evidence defendant remained in house looking for items to steal after victims killed).
The two Birchwood intruders also made repeated threats throughout tire crimes. When Aaron S. resisted their demands, they struck him in the head, hard enough that he cried out in pain. When Holly G. asked the intruder identified as R. Carr if he and the other intruder planned to shoot the victims, he initially responded “no.” Later, however, after poking Holly G. in the back with what she believed to be a gun, he said, “[Djon’t worry, I’m not going to shoot you yet.” (Emphasis added.) See State v. Broadus, 206 Kan. 766, 769, 481 P.2d 1006 (1971) (prior threats, along with other circumstantial evidence, supports finding of premeditation).
In the end, the fact that the State could not firmly establish which Birchwood intruder was the principal and which the aider and abettor of the capital murders and attempted first-degree premeditated murder, even in light of the erroneous “reasonably foreseeable” language in Instruction No. 8, is overcome by the strength of the circumstantial evidence throughout the whole record on the intruders’ shared premeditation. See State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011) (quoting State v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 [2002]) (circumstantial evidence “sufficient to establish even the gravest offenses”)- The two intruders worked as a team throughout the night, and this included their concerted joint action at the soccer field. See State v. Bradford, 272 Kan. 523, 528, 34 P.3d 434 (2001) (defendant’s argument that he was not trigger-man failed to provide defense to accomplice liability for capital murder, in light of evidence of his collaboration); State v. Wakefield, 267 Kan. 116, 123, 977 P.2d 941 (1999) (evidence sufficient to convict defendant as aider, abettor, when he knew cohort ascending stairs of home to kill victims, continued removing items from home rather than intercede).
Furthermore, in this case, the State did not pin a legally flawed theory of guilt on the capital murders and the attempted first-degree premeditated murder to the erroneous instruction. See Overstreet, 288 Kan. at 14-15 (prosecutor’s argument reinforced erroneous instruction). Rather, one of the prosecutors told the juiy that the State had charged both defendants with all of the crimes against the Birchwood victims “because of their equal participation in those intended crimes.” The only time that the “reasonably foreseeable” language was mentioned was in reference to one of the rapes of Holly G. On the capital murders and the attempted first-degree premeditated murder, the State properly focused its arguments on the strength of its evidence of both intruders’ premeditation.
Judge Clark’s other instructions also emphasized the requirement of premeditation as a condition precedent to conviction of either defendant on the capital murders and the attempted first-degree premeditated murder. The judge also told the jury that it could convict defendants of second-degree murder as a lesser included offense of capital murder if there was no premeditation. See State v. Ellmaker, 289 Kan. 1132, 1139-40, 221 P.3d 1105 (2009) (reviewing court must “examine the instructions as a whole, rather tiran isolate any one instruction, and determine if the instructions properly and fairly state the law as applied to the facts of the case”).
The inclusion of tire “reasonably foreseeable” language in Instruction No. 8 was not clearly erroneous.
Personal Premeditated Intent to Kill
The defense also takes issue with the wording of the first paragraph of Instruction No. 8, asserting it was clearly erroneous because it failed to explain that an aider and abettor, not only a principal, must have personally possessed premeditation on the capital murders and attempted first-degree premeditated murder before conviction would be appropriate.
We have rejected this defense argument in two cases decided this year. See State v. Gleason, 299 Kan. 1127, Syl. ¶ 1, 329 P.3d 1102 (2014); State v. Betancourt, 299 Kan. 131, 138-41, 322 P.3d 353 (2014). We will not revisit those holdings or their supporting rationales at this time.
Omission of K.S.A. 21-3205(2) Language
The final defense complaint about the aiding and abetting instruction is that its second paragraph should have included an additional phrase from K.S.A. 21-3205(2) to avoid being labeled clearly erroneous.
As mentioned, this paragraph of the instruction was based on PIK Crim.3d 54.06, which, in turn, is based on K.S.A. 21-3205(2). That statute reads: “A person hable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” (Emphasis added.) The emphasized language was left out of Instruction No. 8.
J. Carr, in particular, argues that tire omission meant the jury never heard about a critical causation element of aider and abettor liability. In the words of his brief, “the unintended crime has to be more than reasonably foreseeable; it has to be foreseeable as a consequence of the actions taken to commit the intended crime.” (Emphasis added.) He relies on our decision in Overstreet, 288 Kan. at 14-15, in which we noted that the jury may have improperly convicted the defendant, not because he had the requisite intent, “but because the murder was a reasonably foreseeable consequence of’ an aggravated assault. (Emphasis added.)
J. Carr also argues that omission of the word “probable” before the word “consequence” means Instruction No. 8 failed to convey to tire jury how likely the unintended crime must be in order for an aider and abettor to be held criminally Hable. His last critical observation is that what may be a “probable consequence” for two defendants with a long histoiy, such as the defendants here, may be something different for two defendants who lack that histoiy.
We note that the newer version of the PIK instruction includes the language the defense campaigns for here, see PIK Crim. 4th 52.140, leading us to recommend its use as the better practice in the future. Still, because we have approved the PIK Crim. 3d version of the instruction without the language as recéntly as our 2004 decision in State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) we adhere to our precedent and hold that Judge Clark did not commit clear error in omitting the phrase from Instruction No. 8 at the defendants’ 2002 trial.
26. Prosecutorial Misconduct
R. Carr has not argued prosecutorial misconduct in his appeal. But J. Carr argues in his separate appeal that one of the prosecutors committed misconduct by encouraging jurors during closing argument to place themselves in tire position of the victims in the three incidents. Under K.S.A. 2013 Supp. 21-6619(b), we take up this argument as unassigned in R. Carr’s case.
Additional Factual and Procedural Background
The prosecutor began her closing argument in this way:
“Ladies and gentlemen of the jury, you have been here a long time and you’ve heard a lot of evidence. You’ve seen a lot of exhibits, over 850. You’ve heard from over 95 witnesses. There are multiple counts against the defendant Jonathan Carr, 47; 50 against tire defendant Reginald Carr. And we’ve been here in this well-lighted courtroom. You’ve seen a lot of pictures. But you view it at a distance. We view it in a place where it’s about 75 degrees, not 25. We view it in a place where there’s no wind chill. We view it in a place where we stand on ground or sit in cushioned chairs, no snow beneath our feet or below our knees. We view it at a distance in such a way that we cannot hear the sounds that were part of these crimes. We cannot hear the threats and tire demands made to Andrew Schreiber; Move over, Give us your wallet, Give us your watch, Get down. We cannot hear, We’re not done yet. We cannot hear the sounds of someone approaching and the glass breaking at Ann Walenta’s window. We cannot hear the sound of the engine when she’s tiying to start it again. We can’t hear in this courtroom that blasting horn, that plea for help. We can’t hear in this courtroom those demands that were made at Birchwood to those five young people. We can’t hear, We’re going to pop your ass. We can’t hear, Keep that dog quiet. We can’t hear the screams of [Jason B.] when he realizes someone is bursting into the bedroom in which he sleeps, or the screams of [Brad H.] when he’s assaulted first with gunpoint in the basement. We can’t hear those screams that were made and cries that were made in that closet while [Holly G.] was crying while the man she loved, [Jason B.], was at the mercy of a gunman taking all of his money out at the ATM’s. And we can’t hear the cries of [Aaron S.] in that same closet when he was hearing the moans of the woman he cared about being [brutally] raped. And, you know, we can’t hear in this courtroom—as much evidence as we fill it with, we cannot hear [Aaron S.] on his knees screaming, Please, sir, Please, God when he realizes a bullet has been fired into [Heather M.’s] head.
“So we’re distanced. But the reality of these crimes [is] in front of you for your decision, your decision based on evidence—overwhelming evidence that proves the guilt of these two men.”
Standard of Review
For many years, we have said that
“review of prosecutorial misconduct claims involves a two-step process. The court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we have said the court must determine whether the improper comments prejudiced the juiy and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).” State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Comment Within Wide Latitude Permitted Prosecutors
The defense argument is that this passage from the prosecutor’s closing did nothing to help the jury analyze the evidence, that it focused on the nature of the crimes instead of who committed them, and that it invited the jury to consider the crimes through the eyes of the victim. By focusing on these subjects, rather than the elements of the charged crimes, the suggestion is that the comment was equivalent to an improper victim impact statement or akin to a forbidden “golden rule” argument. See State v. Stano, 284 Kan. 126, 150, 159 P.3d 931 (2007) (prosecutor’s references to value of victim’s life to surviving wife improper); State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006) (“golden rule” generally improper); State v. Donesay, 265 Kan. 60, 82, 959 P.2d 862 (1998) (victim impact evidence improper); Walters v. Hitchcock, 237 Kan. 31, 33, 697 P.2d 847 (1985) (“golden rule” argument may improperly encourage jurors to place themselves in position of plaintiff).
The State contends that the quoted passage was appropriate commentary on the evidence. It cites cases approving prosecution explanations of evidence. See, e.g., State v. McHenry, 276 Kan. 513, 78 P.3d 403 (2003), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006); State v. Cravatt, 267 Kan. 314, 335-36, 979 P.2d 679 (1999).
“The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence.” State v. Ly, 277 Kan. 386, 393, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004). “In closing argument, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the juiy’s passions or prejudices or divert the juiy from its duty to decide the case based on the evidence and controlling law.” State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012), cert. denied 133 S. Ct. 529 (2012) (citing State v. Raskie, 293 Kan. 906, Syl. ¶ 3, 269 P.3d 1268 [2012]); Corbett, 281 Kan. at 313 (citing State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004]) (“Prosecutors should not make statements that inflame the passions or prejudices of the juiy or distract the juiy from its duty to make decisions based on the evidence and the controlling law.”).
We have approved of comparably dramatic performances by prosecutors. In State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), for example, the prosecutor said:
“[T]he blood on that sidewalk that was spilled that day is long since gone. The memories of that day though of the witnesses that you heard from are not. Thank goodness they were here to tell you what happened. And now it’s your responsibility to go back, view that evidence, not forget what happened, but expose what happened, and tell this man exactly what he’s guilty of: First-degree premeditated murder and criminal possession of a firearm.” 292 Kan. at 853.
The defendant challenged these comments on appeal, but we held that they were proper reminders to the jury “of their responsibility to review the evidence” and that the prosecutor could ask the jury “to return a guilty verdict based on that evidence.” 292 Kan. at 854.
Likewise, in State v. Bennington, 293 Kan. 503, 532-33, 264 P.3d 440 (2011), when the prosecutor told the jury, “ The victim’s not here to show, to tell you her side of the story.... Use your common sense, please, and remember what the DNA is doing for us here. It’s speaking for [the victim]. It’s telling us who committed these crimes,’ ” we held that the remarks were not an attempt to create inappropriate sympathy. 293 Kan. at 532-33; see Cravatt, 267 Kan. at 335-36 (“When examining the legal intricacies of this case, when reading this cold white paper, don’t ever forget the human life that was taken .... [The victim] was 21 years old. He’ll never live again. The defendant shot him in cold blood. Don’t let him get away with it’ comments designed to encourage jury to “seriously consider the nature of the defendant’s act towards the victim”).
Under these cases, we detect no error in the prosecutor’s remarks here. She properly acknowledged the jury’s efforts. She then commented on the enormity of the evidence and the unusually large number of charges. And, finally, she suggested that, despite the difference between in-court descriptions and lived experience, tire jury had heard and seen plenty of evidence to convict the defendants. She referenced only facts and events in evidence. She did not explicitly invite the jury to consider the crimes through the eyes of the victims. She did not allude to any lingering trauma or psychological damage to the victims or to their family and friends.
The wide latitude permitted a prosecutor in discussing the evidence during closing argument in a criminal case includes at least limited room for rhetoric and persuasion, even for eloquence and modest spectacle. It is not opening statement; it is not confined to a dry recitation of the evidence presented. Compare State v. Hilt, 299 Kan. 176, Syl. ¶ 9, 322 P.3d 367 (2014) (“A prosecutor may use analogies, similes, allusions, and other rhetorical devices in an attempt to bring order to the facts presented at trial, place them in a meaningful context, and construct the whole of a case. Within sensible limits set by similarity and dissimilarity to the facts of a case, a prosecutor’s appropriate rhetorical devices may include film allusions and comparisons or be otherwise theatrical.”), with Kley pas, 272 Kan. 894, Syl. ¶ 23 (“Opening statements by counsel in criminal prosecutions are not evidence. They are given for the purposes of assisting die jury in understanding what each side expects its evidence at trial will establish and to advise the jury what questions will be presented for its decision.”)
We reject the defense argument that the prosecutor exceeded the wide latitude permitted her in this case.
27. Cumulative Error
R. Carr s final challenge on the guilt phase of his trial is based on the cumulative error doctrine. ■
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover, this doctrine does not apply if no error or only one error supports reversal. See State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007).” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).
In assessing whether the weight of cumulative errors can be harmless, we examine the errors in the context of the entire record, including remedial efforts of the trial court, the nature and number of die errors and whether they are interrelated, and the strength of die evidence against the defendant. State v. Warrior, 294 Kan. 484, 517, 277 P.3d 1111 (2012).
Thus the final question we must answer in the guilt phase is whether the cumulative impact of multiple harmless errors was harmless beyond a reasonable doubt. See State v. Armstrong, 299 Kan. 405, Syl. ¶ 10, 324 P.3d 1052 (2014). This “task is undoubtedly more subtle than simply counting up the number of errors discovered.” See Grant v. Trammell, 727 F.3d 1006, 1025 (10th Cir. 2013).
We have held that there were several errors, none of them, standing alone, requiring reversal of all of R. Carr’s convictions. To recap, they are:
• The district judge erred in refusing to sever the guilt phase of defendants’ trial.
• The district judge erred when he rejected defendants’ challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), to the State’s peremptoiy strike of juror and eventual foreperson W.B.
• The district judge erred under the Sixth Amendment and Crawford v. Washington, 541 U.S. 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), when he admitted statements by Wal-enta.
• The instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital murders were erroneous.
• The convictions on three of four K.S.A. 21-3439(a)(6) multiple-death capital murders were multiplicitous.
• The convictions on the victim-on-victim rape and attempted rape offenses were void for lack of subject matter jurisdiction.
• Count 42 was multiplicitous with Count 41.
• The district judge erred when he misapplied tire third-party evidence rule and hearsay exceptions, preventing R. Carr from presenting his defense.
• The district judge erred by automatically excluding eyewitness identification expert testimony proffered by the defense.
• The district judge erred when he instructed the jury to consider an eyewitness’ degree of certainty when assessing that witness’ reliability.
• The instruction on aiding and abetting was erroneous.
With our standard of review in mind, we first consider which of the 11 identified errors carry any weight in our harmless error analysis. Significantly, 4 of the 11 errors cany no weight. Although we found the instructions regarding the sex-based capital murders to be erroneous, the multiple capital convictions multiplicitous, the victim on victim offenses void, and Counts 41 and 42 multiplicitous, we have cured these errors by vacating the convictions directly arising from these errors. See State v. King, 297 Kan. 955, 987, 305 P.3d 641 (2013) (discussing cumulative error, refusing to weigh impact of instructional, multiplicity errors already cured through reversal of affected convictions). Any indirect impact these errors may have had on the remaining convictions is negligible, at best, and does not factor into our analysis.
Similarly, the weight of the erroneous admission of Walenta’s statements is negligible given that this error directly affected only the convictions arising from that incident, and we easily held the error harmless because die critical information contained in Wal-enta’s statements otherwise was lawfully admitted.
Likewise, there was limited potential impact from the aiding and abetting instruction’s failure to convey that the aider and abettor must have premeditated the killings he assisted. There can be no question that both defendants intended and premeditated the killings when the facts demonstrated that they jointly herded their victims to the garage and forced them at gunpoint into two vehicles, strategically arranged and rearranged the victims between the cars, ultimately placing the three male victims in the trunk of one vehicle, jointly drove tire two cars to a remote location, and had a conversation between themselves before assisting one another in arranging the victims on the snow-covered ground. Significantly, neither man protested as the victims were shot, execution-style, one after another.
This leaves us with five errors that carry weight. Four of tírese errors are interrelated and affected the defendant’s ability to argue that he did not participate in the crimes—-the failure to sever the trials, the erroneous application of the third-party evidence rule, the erroneous exclusion of expert testimony on eyewitness identification, and an erroneous eyewitness identification instruction. The remaining error, tire reverse Batson error, more broadly affected the trial. But the combined weight of these individually harmless errors pales in comparison to tire strength of the evidence against the defendants.
Indeed, tire evidence of both of the defendants’ guilt of the Birchwood offenses was not simply strong; it was nothing short of overwhelming. The evidence supporting the defendants’ guilt need not be recounted in detail. Suffice it to say that biological evidence, in addition to other physical evidence, heavily implicated both defendants. Most notably, J. Carr’s seminal fluid was collected from Holly G., and both Holly G.’s and Heather M.’s DNA matched DNA found in J. Carr’s boxer shorts. Similarly, material found on Holly G.’s thigh implicated both R. Carr and J. Carr. And Heather M.’s blood was found on R. Carr’s undershorts.
This highly persuasive biological evidence coupled with other substantial physical evidence of guilt—such as footprints matching R. Carr’s found at the Birchwood residence; both men’s possession of property stolen from Birchwood, including cash and two vehicles—and the highly persuasive circumstantial evidence of guilt— such as R. Carr’s attempt to flee and the clothing J. Carr wore when arrested—lead us to conclude that any effort by either brother to suggest that he was not involved in the Birchwood crimes would be futile.
After weighing the cumulative errors from the trial against the overwhelming evidence of defendants’ guilt, we remain unshaken in our confidence in the jury’s verdicts. And, although we focus on the Birchwood crimes, having examined the entire record, we conclude beyond a reasonable doubt the cumulative impact of the multiple errors was harmless as to all of the verdicts we affirm today. Consequently, we hold the cumulative impact of those errors does not require reversal of any more of R. Carr’s convictions.
Conclusion for Guilt Phase
For the reasons set forth above, we affirm R. Carr’s capital murder conviction under Count 2. We reverse his three remaining capital murder convictions based on the alternative theories under K.S.A. 21-3439(a)(4) and (a)(6).
We affirm R. Carr’s convictions on Counts 9 through 24. Because four pairs of these counts were charged in the alternative, this results in affirmance of 12 rather than 16 convictions.
The convictions based on Counts 25, 26, and 29 through 40 are void for lack of subject matter jurisdiction. We affirm the convictions based on Counts 27 and 28.
We affirm R. Carr’s conviction on Count 41. We reverse his conviction on Count 42 because it is multiplicitous with Count 41.
We affirm R. Carr’s convictions on Counts 43 through 58.
Penalty Phase Issues and Short Answers
Our majority decision to affirm one of R. Carr’s death penalty- eligible convictions—that based on Count 2 for the murders of Heather M., Jason B., Aaron S., and Brad H. under the multiple-homicide theory of K.S.A. 21-3439(a)(6)—requires us to address several of his penalty phase questions. Again, we have taken the liberty of reformulating certain questions to focus on their legally significant aspects or effects. We also have reordered questions raised by R. Carr and have inserted among them any unassigned potential error noted by us, because we believe this organization enhances clarity. We number all questions consecutively, this time, PI through P20.
Our statement of each question is followed by a brief statement of its answer or our other response.
Because we conclude on the first question that R. Carr’s remaining death sentence must be vacated and the case remanded, we need not reach the merits on all of the other questions. On those questions on which we do reach the merits or otherwise provide guidance on remand, we need not analyze and discuss whether any error, standing alone, would have compelled vacation of the death sentence. Nor need we discuss cumulative error.
PI. Did the district judge err in refusing to sever the penalty phase of the defendants’ trial? A majority of six members of the court answers this question yes. One member of the court dissents and writes separately on this issue. A majority of six members of the court agrees that this error requires R. Carr’s remaining death sentence to be vacated and the case remanded. One member of the court dissents and writes separately on this issue.
P2. Despite compliance with K.S.A. 21-4624(a), was it constitutional error to omit the four aggravating circumstances asserted by the State from the amended complaint? To provide guidance on remand, the court unanimously answers this question no.
P3. Did the four aggravating circumstances asserted by the State adequately channel the jury’s discretion in arriving at the sentence of death? To provide guidance on remand, the court unanimously answers this question yes.
P4. Does the unavailability of a transcript of the juiy view deprive R. Carr of a meaningful opportunity for appellate review of his death sentence? To provide guidance on remand, the court unanimously answers this question no.
P5. Does K.S.A. 21-4624(c)\s allowance of testimonial hearsay (a) offend the heightened reliability standard applicable in death penalty cases or (b) violate the Confrontation Clause of the United States Constitution and Crawford, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? To provide guidance on remand, the court unanimously answers the first question no. The court unanimously answers the second question yes.
P6. Did the district judge err in excluding mitigating evidence of (a) likelihood of parole or (b) the anticipated impact of R. Carr s execution? To provide guidance on remand, the court unanimously answers tire first question no. The court discusses the standard that should govern consideration if the second question arises again.
P7. Did the district judge err by permitting the State’s rebuttal witness to testify that he had consulted other experts and that they agreed with his opinion? To provide guidance on remand, the court discusses the standard that should govern consideration if this question arises again.
P8. Did the district judge err in denying an opportunity for sur-rebuttal testimony? The court unanimously agrees that the distiict judge abused his discretion. The court declines to reach the issue of harmlessness because of the necessity of remand.
P9. Must R. Carr s sentencing on his noncapital convictions have occurred before the penalty phase of his trial, and, if so, should the jury have been informed of the sentences he would serve if he were not sentenced to death? The court declines to reach the merits of the first part of this question because it is moot and, to provide guidance on remand, unanimously answers the second part of the question no.
P10. Did the district judge err in failing to instruct the jury that the existence of mitigating factors need not be proved beyond a reasonable doubt? To provide guidance on remand, a majority of five members of the court answers this question yes. Two members of the court dissent, and one of them writes separately for the two on this issue.
Pll. Did the district judge err by failing to instruct jurors that “the crime” to be considered when evaluating aggravating circumstances was capital murder? We discuss this issue to provide guidance on remand.
P12. Was the jury instruction on the role of mercy clearly erroneous? To provide guidance on remand, the court unanimously answers this question no.
P13. Did the wording of Instruction 10, when read with the verdict forms, misstate the law on the need for jury unanimity on mitigating factors not outweighing aggravating factors? To provide guidance on remand, the court unanimously answers this question yes.
P14. Must R. Carr’s death sentence be vacated because a fact necessary to imposition of the penalty—-his age of 18 or older at the time of tire capital crime—was not submitted to the juiy or found beyond a reasonable doubt? The court declines to reach the merits of this issue because the situation that prompted it is unlikely to arise again on remand.
P15. Did the district judge err in failing to give a “no adverse inference” instruction? The court declines to reach the merits of this issue because the situation that prompted it is unlikely to arise again on remand.
P16. Does K.S.A. 21-3205 authorize punishing an aider and abettor the same as a principal? The court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and abettor.
P17. Is the death penalty an unconstitutionally disproportionate punishment as applied to aiders and abettors of capital murder under Section 9 of the Kansas Constitution Bill of Rights? The court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and abettor.
P18. Was the penalty phase infected by prosecutorial misconduct? The court declines to reach the merits of this issue because the situation that prompted it is unlikely to arise again on remand.
P19. Do verdict forms such as those used in this case pose a threat of double jeopardy? The court declines to reach tire merits of this issue because it is unripe.
P20. Does Kansas’ execution protocol protect against unnecessary pain? The court declines to reach the merits of this issue because it is unripe.
Factual and Procedural Background for Penalty Phase Issues
The day after the completion of the guilt phase of defendants’ trial, the penalty phase of their trial began.
At the beginning of the penalty proceeding, Judge Clark raised a question about whether courtroom security should be increased in keeping with increased jail security due to the defendants’ convictions. Specificálly, he asked whether J. Carr should wear leg restraints in tire courtroom. The judge acknowledged that J. Carr had not misbehaved, but he nevertheless ordered that he wear the restraints while in court, providing that they be placed so they could not be observed by the jury.
Meanwhile, counsel for R. Carr informed the judge that his client was no longer willing to cover the handcuffs he was ordered to wear with a sweater. The judge permitted R. Carr not to use the sweater, but he admonished him that, if the juiy saw the handcuffs, any later allegation of error arising from that view would be regarded as invited by R. Carr.
The State’s Case-in-Chief
The State elected to rely on the evidence from the guilt phase of the defendants’ trial as its case-in-chief during the penalty phase. It asserted the existence of four aggravating circumstances in the capital murders of Heather M., Aaron S., Brad H., and Jason B.: Defendants knowingly or purposely killed or created a great risk of death to more than one person; defendants committed the crimes for themselves or another for the purpose of receiving money or any other thing of monetary value; defendants committed the crimes in order to prevent a lawful arrest or prosecution; and defendants committed the crimes in an especially heinous, atrocious, or cruel manner..
The Defense Case
Defense witnesses testified about the defendants’ dysfunctional upbringing and their psychological profiles.
Family History
Defendants’ mother, Janice Harding, testified that she and the defendants’ father, Reginald, Sr., were 16 and 17 years old when their first child, Temica, was born in Cleveland, Ohio, in 1974. Temica lived with her paternal grandmother for the first year of her life. When Harding turned 18, she and Reginald, Sr., married. They then had three more children: R. Carr in 1977, Regina in 1979, and J. Carr in 1980. All of the Carr children were born prematurely, and J. Carr cried so much from infancy through his late preschool years that he was called “Screaming Man” by his mother and other family members.
Despite the 3-year age difference between her sons, Harding said that R. and J. Carr were “always real close,” and J. Carr looked up to R. Carr.
Regina developed a cancerous tumor when she was 2 years old and died before her third birthday. Harding testified that the family deteriorated after Regina got sick. Harding “fell out” with her mother-in-law, who reported Harding and Reginald, Sr., to child protective services after seeing bruises on Regina’s legs and arms and across her chest. Harding claimed the child protection case was dismissed because the bruises had been caused when family members had to hold Regina down to administer chemotherapy drugs. However, according to Dr. Michael Cunningham, a forensic psychologist who testified as a defense expert for J. Carr, Harding’s mother-in-law, Dorothy Wiley, had described taking .-Regina into her care because her parents were not clothing her properly. Wiley said she called child protective services after observing spoon-shaped bruises on Regina.
After Regina’s death, Harding and Reginald, Sr., began drinking heavily and fighting. The fights, according to Harding, involved screaming and hitting. Although Harding said the fights never took place in front of the children, she acknowledged that they may have seen them. Temica testified that she saw her father beat her mother with a stick. There was other testimony about Reginald, Sr., chasing Harding with a brick and about Harding hitting him with a baseball bat.
In addition to fighting with Reginald, Sr., Harding often disappeared, sometimes for several days at a time. Harding denied being romantically “involved with anyone in particular.” She said she was just “land of leaving to get away from” Reginald, Sr. Harding said she did not tell her children when she was leaving; she just packed up and went. She also admitted there were times when she left her children alone in the house, going out to a club with a neighbor after she put them to bed. Nevertheless, Harding described herself as a “stay-at-home” mom who “cooked eveiy day, cleaned house, did laundry,” and she said that Reginald, Sr., “worked, paid all the bills [;] nothing was behind.”
Temica testified about her mother staying out and not coming home in this period. When Harding did come home, Temica said, she would stay a couple of days and then leave again. During these episodes, either Reginald, Sr., would take care of the children, or he would take them to an aunt’s house.
Other family members also described Harding’s unpredictable disappearances from home while her children were growing up. Cunningham testified that a paternal aunt described Harding as “promiscuous,” saying she went to clubs and failed to come home at night. After days or weeks, the aunt said, Harding would return with “incredible stories about how she had been ill or had been in the hospital, even though the family had seen her at nightclubs, coming out of nightclubs, during the time that she was reporting to them that she had been in the hospital.”
Divorce and Abandonment by Father
Harding and Reginald, Sr., separated when R. Carr was 5 or 6, then divorced. Reginald, Sr., remarried 2 months after tire divorce and eventually lost all meaningful contact with his children from his first marriage.
R. Carr had always been his father s favorite. In the opinion of Harding’s sister, pediatrician Phyllis Harding, the divorce affected R. Carr more than the other children. Temica recalled that, as a youngster, R. Carr missed his fáther and cried often for him. Grief would turn to anger when his father promised to visit and failed to appear as arranged. In particular, both Temica and his mother recounted that when R. Carr was in his early teens and having trouble in school, arrangements were made for him to go to California to live with his father. Although R. Carr had a ticket for the trip, his father called the day his son was supposed to leave and said that he could not come to California after all. R. Carr saw his father only one time after that disappointment.
Temica herself last saw her father when she was in fourth or fifth grade. He refused to accept a collect telephone call from her on the night before she testified.
Post-Divorce Atmosphere
After the divorce, Temica testified, her mother also was not available to her children. She was “never at home, never at home .... [I]t was just me, Jonathan and Reginald there, period.” At one point, Harding began staying frequently with her future husband, Rick Austin, at his parents’ house.
When she was home, Harding was described as “holing up” in her bedroom and generally unaffectionate with her children. Cunningham reported that Harding would emerge from her bedroom, fix dinner, leave it on the stove, and carry her plate back to the bedroom, where she and Austin would remain, typically with the door shut. If the children wanted to interact with either Harding or Austin, they would have to knock on the door and sometimes have to talk through it.
Temica said she believed Austin was involved in chopping down stolen cars and was hiding from law enforcement. Harding testified that Austin once threatened her with a gun, which “pissed off’ R. Carr, who did not like Austin.
Temica also testified that, sometime after the divorce, her mother “just sent me to California” to live with her aunt, Phyllis; Temica did not know why. Temica attended fifth and sixth grades in California, and her mother never visited her while she was there. R. and J. Carr also were “shipped off,” Temica said; J. Carr went to Brownsville, Texas, at one point, and R. Carr was sent to West Virginia. Temica could not recall where she was living during these periods, saying, “I could have been living with anybody.”
Temica described eventually getting a job at 15 or 16 and buying school clothes for her brothers, as well as preparing many evening meals and attending school conferences when J. Carr experienced learning problems. When she told her mother that she did not think Harding loved them anymore, Harding beat her. Temica said R. Carr believed Harding did not like him because he had dark skin.
Temica attributed her mothers eventual move from Ohio to Dodge City to what she believed were Austin’s illegal activities. She said that R. Carr would have been 13 or 14 years old at the time of the move. Phyllis had moved to Dodge City about a year earlier, and Austin eventually moved to Dodge City as well. He and Harding had been married 8 years by the time of Harding’s testimony.
Because Temica was a senior in high school and wanted to graduate with people she knew, she resisted moving to Dodge City. Her mother left her in Ohio with “some guy named Patrick,” whom Temica had never met until her mother packed her things and took her to stay with him. Temica would not be reunited with her two brothers until years later, when R. Carr came home after a release from-prison in March 2000.
Methods of Discipline
To discipline her children when they were growing up, Harding said, she spanked her kids “the same way my momma spanked me.” This meant she used belts, a house shoe if there was one around, and, occasionally, an extension cord. The belts had names such as “Heat Daddy,” and the children would be required to choose the one she would use for a spanking.
Temica testified that whoever was getting a “whooping” would have to lie on tire floor in his or her underwear, and the two other children would hold down his or her arms and legs. Temica de scribed one occasion when she was required to take off all of her clothes and take the sheets off a bed. She was then placed on the bed like an “X” and beaten. If the child receiving the beating got up from being held down, then he or she received additional physical punishment.
The defendants’ cousin, Phyllis’ adopted daughter, Barbara, testified that she remembered being disciplined by Harding as well— with belts, spoons, or an electric cord. She also remembered that one of the other children would hold her legs down. Cunningham testified that J. Carr and Temica both described that their mother’s whippings with a belt or extension cord would leave them with welts, bruises, and blood blisters on their backs, legs, or buttocks.
Further defense testimony supported the idea that child maltreatment results in a desensitization to violence and is a major risk factor for future criminality and violence when the child becomes an adult.
Substance Abuse
Harding testified that she and Reginald, Sr., smoked marijuana on weekends, but, as far as she knew, the children were unaware of their drug use. Harding also told Dr. Thomas Reidy, a forensic psychologist who evaluated and testified for R. Carr, that she had used cocaine. J. Carr reported to Cunningham that he had seen his mother smoke marijuana. Cunningham testified that a parental model for drug use is “a broad risk factor, social and psychological risk factor, for relationship problems, for self-control problems, for feeling of defectiveness, psychological disorders and criminal behavior as well.”
Cunningham testified that a paternal cousin who grew up with Harding’s children reported that Temica told her when they were 10 or 11 years old that Harding and Austin would do drugs in Harding’s bedroom. Cunningham also said that two of J. Carr’s peers had told him while he was an adolescent that they sold crack to his mother.
Cunningham testified that accounts from family members led him to believe that Reginald, Sr., was an alcoholic. A sister of Reginald, Sr., said he was routinely drunk when he came to live with her after his marriage with Harding collapsed. Her daughter described this as well, remembering in particular that Reginald, Sr., would drink cough syrup by the bottle.
J. Carr told Cunningham that he had been given Thunderbird wine mixed with grape Kool-Aid by an uncle at age 8. R. and J. Carr visited the uncle weekly and all three would get drunk. The uncle and R. Carr often would have a girl there as well, while J. Carr would drink until he passed out.
J. Carr first smoked marijuana at age 13 with R. Carr. They would smoke “blunts,” cigar-like rolls of marijuana, “every day, all day.” After R. Carr was released from prison in March 2000, he and J. Carr smoked marijuana heavily together.
J. Carr also reported using hallucinogenic mushrooms routinely for about a month when he was 18 years old, but he stopped because he was getting delayed hallucinations. He also described smoking “wet”—tobacco or marijuana cigarettes dipped in a mixture of PCP “and typically embalming fluid”—at age 19.
R. Carr had started using drugs at an early age, and he attended school “stoned” during eighth and ninth grades. He was holding drugs for drug dealers by age 11, and selling drugs by age 13. He was using alcohol heavily by age 16.
Harding described police execution of a search warrant for drugs at 3 or 4 a.m. when R. Carr was about 15 years old. She said he was locked up for a probation violation when he was 16 because a urinalysis showed marijuana use. Harding also said she lacked R. Carr out of her house when he was 16 or 17 because she was under the impression he was selling drugs and “didn’t want that in the household.”
In 1995, R. Carr was arrested for drug possession. After conviction, he was incarcerated at Norton Correctional Facility for 5 years.
J. Carr told Cunningham that he and R. Carr had smoked 4 to 5 blunts in the 24 hours before the Birchwood crimes and had split two fifths of cognac between noon and the 11 p.m. entry into the triplex. J. Carr also told Cunningham that he bad smoked “wet” from 30 minutes to an hour before the series of Birchwood crimes began.
Childhood Sexual Abuse and Behavior
The defendants’ paternal aunt said that each had come to her separately and told her that the other was being sexually abused by one of their mother’s boyfriends; but each denied it when she spoke to him directly. Temica testified that she had heard her brothers were forced to have oral sex with her mother’s boyfriends. She also testified that, when she was a child, her father sexually abused her, including fondling and attempted rape. She said she never told anyone but thought R. Carr might know because “Reginald pays attention to people.”
A paternal cousin also reported that she had been sexually abused as a child by R. Carr, Sr., and her mother verified her report.
Cunningham testified that J. Carr reported to him that, when he was about 6 or 7 years old, R. Carr prompted a peer-age girl named Amber to begin having sexual contact with J. Carr. Apparently the girl had already been involved with R. Carr. Harding appeared to excuse this aspect of R. Carr’s early sexual activity by calling the girl “promiscuous.” Temica also confirmed J. Carr’s report of his involvement with the girl.
Barbara, who grew up with the defendants, testified that her maternal uncle, Michael, sexually abused her when she was 6 years old. Phyllis denied that the defendants’ uncle Michael had abused her daughter. Barbara said she did not report the abuse to her mother and grandmother until she was 15, and they both called her a “lying bitch.”
Barbara also testified that she had sexual contact with R. Carr, starting when she was 7 years old. She said R. Carr was perhaps 9 years old at the time. This contact continued for a few years, stopping when R. Carr was in high school. She also reported sexual contact with Temica.
R. Carr discovered explicit pornographic photographs of his mother when he was 13 years old, and he was suspended from school during the eighth grade for sexually harassing a teacher.
Rape Accusation and Suicide Attempts by J. Carr
In 1989, when J. Carr was in the third grade at Harvey Rice School in Cleveland, a girl in the school accused several boys, including J. Carr, of raping her. The case was dubbed the “Harvey Rice rape case,” and the boys’ names were mentioned in the newspaper. As a result, J. Carr was teased and called names by schoolmates. Eventually, the girl’s accusation was exposed as false.
J. Carr reported to Cunningham that, after the Harvey Rice allegation, his father began bringing him back early from visitation and then quit visiting with him at all, despite maintaining visitation with his brother. Harding sent him to live with Phyllis in Brownsville for more than a year; Harding said she did not visit J. Carr during that time because she “didn’t have the monies to travel.”
Eventually, J. Carr became so despondent over the incident that he tried to hang himself. At age 17, after dogs that J. Carr was fond of accidentally drank antifreeze and died, J. Carr again attempted to commit suicide—by drinking antifreeze. Harding thought J. Carr also was upset at the time because R. Carr had been sent to prison. After the second suicide attempt, J. Carr went to Ohio to live with a maternal uncle.
R. Carrs Teen Years and Early Adulthood
When his family moved from Cleveland to Dodge City, R. Carr initially adjusted well. He had many friends and was involved in extracurricular activities. He liked to draw and write poetry. He had an aquarium in his room and a pet dog.
But, as R. Carr got older, he began to struggle in school—fighting and getting suspended. He finally was expelled when he was 17 and sent to an adult education program. He passed his GED examination with high scores.
About the same time, R. Carr became a father for the first time. His first son was bom to Richelle Cossman in November 1994.
R. Carr began taking classes at a local community college, with the goal of becoming an X-ray technician, but his studies came to an end when he was arrested for robbing the college bookstore. He was placed in community corrections, but he violated his probation by smoking marijuana and was jailed for several months.
After release, R. Carr was seeing Amanda Lyons. But he was soon arrested again for possession of drugs. He was convicted of drug possession, theft, aggravated assault, and obstruction of legal process. He was held in the county jail until he turned 18, then sent to Norton, where he remained until he was 23. R. Carr was released from Norton on March 28, 2000.
Lyons’ first child with R. Carr, another son, was born in December 1996, when R. Carr was 19 years old and in prison in Norton. The couple married in May 1997, and their second child, a daughter, was born in April 2001, while R. Carr was awaiting trial in this case.
Harding believed that prison changed her son. She said that he had been outgoing, had kept his room clean, and was mannerly and respectful before he was in prison. After his release, he was “standoffish.” Other family described him as “hardened” by the experience of prison. They reported that he started going by die name of “Smoke” while in Norton.
Despite his incarceration, R. Carr maintained a relationship with both of his sons. Lyons brought both boys to Norton regularly for visits. When not in prison, R. Carr had exercised regular visitation with his oldest son and had taught him how to ride a bicycle. At the time of trial, his younger son was worried about where his father was sleeping and what he was eating. R. Carr would draw pictures for his children, and his boys wrote letters, made cards, and drew pictures for their father. Cossman and Lyons said that R. Carr’s children would continue to have relationships with him, if he were to be incarcerated rather than executed.
R. Carr was arrested for driving under the influence in Dodge City on November 19, 2000, and bonded out tire same day. He was arrested again 9 days later on a Department of Corrections warrant for a parole violation. Because of a mistake in calculating his good-time credit on his 1996 prison sentence, the Department declared that his parole expired on December 1, 2000, when it should have continued until June 1 of the following year. As a result, the Department withdrew its parole violation warrant. Even though R. Carr also was being held in jail in Ford County on a forgery charge, the withdrawal of the warrant enabled him to bond out again, this time on December 5,2000,2 days before the Schrei-ber incident.
R. Carrs Evaluations and Expert Testimony
Dr. Mitchel Woltersdorf, a clinical neuropsychologist who diagnoses brain disorders, put R. Carr through a battery of tests. R. Carr’s MRI and EEG were normal. But Woltersdorf diagnosed him with brain damage, evidenced by significant differences in levels of mental functioning that should be relatively equal. For example, R. Carr had a verbal scale IQ of 86, while his performance scale IQ was 111. Normal point spread would be 5 to 7; a 25-point difference occurs in less than 3 percent of the population. R. Carr also had a 19-point difference between his verbal comprehension score of 84, which reflects left brain hemisphere skill, and his perceptual organization score of 103, which reflects right hemisphere skill. That great a difference occurs in about 14 percent of the population. Woltersdorf said that R. Carr also demonstrated “huge” differences in memory and visual testing; these differences were “way too large” for a normal brain.
According to Woltersdorf, the type of brain dysfunction R. Carr suffered from was not consistent with the type of damage caused by drug or alcohol abuse. Rather, he probably suffered significant head trauma or traumas, most likely during the first 8 or 9 years of his life. The doctor could not say if the brain damage was due to abuse or was related to birth trauma. There was evidence that, at one point during their childhoods, J. Carr had shot R. Carr in the head with a BB gun.
Woltersdorf testified: “A person with a head injury has to make some wise choices to prevent that head injury from ruining [his or her] life.” If R. Carr were an ordinary patient, he would need to be placed on medication for mood control and anger control, and he would be counseled about a traumatic brain injury “lifestyle, swearing off caffeine, illicit substances, alcohol.” Consumption of caffeine, drugs, and alcohol can make a person with a head injury violent and aggressive.
Woltersdorf also tested R. Carr’s emotional status. He found that he suffered from depression, antisocial personality disorder, dis trust, and paranoia. In Woltersdorf s opinion, R. Carr’s condition was chronic: “[I]t’s been there forever.”
The antisocial personality disorder also showed up in problems with anger management and difficulties with authority, Wolters-dorf said. He emphasized that R. Carr did not choose the disorder. “It’s something that he was given, so to speak, in life, somewhere between birth and the fifth year of life .... it eventually manifests itself by the adolescent years.”
Reidy, the forensic psychologist, prepared a social history for R. Carr. He echoed Woltersdorfs statement that family circumstances are usually the cause of the development of an antisocial personality disorder, noting that families are the strongest socializing force in life, and “deviance begins at home.” He said: “The quality of attachments to the parents and other members of the family during childhood is central to how the child will relate to and value other members of society as an adult.” Reidy looked at how R. Carr went from being a happy toddler, a “good ldd” who liked to push a vacuum cleaner around, to a young adult convicted of four counts of capital murder.
Consequences of parental abandonment and neglect, Reidy said, included
“damage to one’s identity, lowered esteem, various and sundry psychological disorders, anxiety disorders, depression particularly!, ajcademic deficits, impaired capacity to trust and care for others!, deficient identification with social ideals. One—in this kind of environment, one tends to become morally corrupt and then various kinds of problematic, delinquent, violent behavior can occur.”
Reidy also testified that inappropriate sexual exposure at an early age also has lasting negative effects. The long-term risk is “disturbed sexual behavior” that gets expressed in a variety of ways in adulthood. One expression of disturbed sexual behavior is “deviant sexual hyperarousal.” This occurs when “[s]ex is viewed as a means of power and control, very much like a rape scenario.”. Early sexual exposure can lead to impaired sexual impulse control and can cause repetitions and re-enactments of sexual victimization. In sum, R. Carr grew up in a “sexually perverse family atmosphere,” Reidy said. This upbringing was likely to leave R. Carr with a distorted view of maleness and sexuality.
Reidy identified other risk factors and consequences for a negative outcome in R. Carr’s life, including early aggression and violent behavior evidenced by fights starting at a young age and early gang affiliation; antisocial behavior and attitudes as reflected in arrests for robbery, battery, drug and alcohol use, holding drugs for dealers, and stealing; and emotional and physical abuse. He said that R. Carr’s developmental trauma was severe and that protective factors were minimal to nonexistent.
Evaluation of J. Carr
Harding testified that she learned J. Carr was dyslexic when he was in third grade, right before he was sent to live with Phyllis in Brownsville. She also said he had trouble passing grades during his middle school years and was kept back in seventh grade.
Cunningham’s testing measured J. Carr’s current abilities at the second- or third-grade range. J. Carr had told Cunningham that he tried to disguise his inability to read in elementary school by avoiding or refusing to read aloud; when he was forced to read aloud, he was ridiculed by his classmates. He finally dropped out of school in tenth or eleventh grade.
Cunningham characterized J. Carr as emotionally disturbed from early childhood on. Cunningham identified the family situation—-involving physical and sexual -abuse, parental neglect, and emotional detachment—and-a genetic predisposition to mental illness and substance abuse as likely contributors to J. Carr’s pattern of emotional instability.
Cunningham testified that the family history showed that Harding’s solution to her children’s increased need, even in the greatest of crises, was to send them to someone else’s household. Cunningham said that it was important for a child to be with his brothers and sisters as well as his parents, because “when you move a child from one placement to another, particularly when you disrupt those sibling relationships as well, you are doing grave emotional harm to this child.’’
Cunningham testified that the neglect Jonathan experienced growing up was not primarily physical in nature. Rather, there was “an issue of very significant emotional neglect, of an absence of attachment and bonding to parents, of affection, of continuity of care, later on[,] of supervision and guidance.”
Cunningham testified that parental detachment such as that in the defendants’ home had “ominous implications” for the quality of Harding’s relationship with her children, how she sees herself as a mother, and “the quality of her responsibility ... to these kids.”
Cunningham also spoke about Harding’s methods of discipline. In his view, although it is damaging for a child to observe violence in the home, it is worse “to be made a party to it... . you are the one that’s helping administer this abuse, [and it] magnifies the emotionally] damaging effects of it.”
Cunningham also documented that J. Carr had a serious go-cart accident at age 15, which caused a concussion with unconsciousness of an hour or more and merited a hospital admission.
Cunningham said that he had documented a susceptibility to mental illness stemming from the maternal side of J. Carr’s family. Both the maternal grandmother and maternal uncle Michael had significant histories of mental illness. Phyllis described her mother’s repeated admissions to state mental hospitals and her noncompliance with medication that prevented her from becoming angry and ranting and raving. Barbara testified that her uncle Michael never took baths and used to “[w]alk around the house with his pants open so you can see his genitals.” Michael also exhibited symptoms similar to his mother’s, including unpredictable, explosive anger and noncompliance with his medication regimen.
Given significant developmental abuse and neglect, disruptive relationships, and the fact that J. Carr was carrying around a lot of emotional pain as he entered adolescence, Cunningham testified, J. Carr was a prime candidate to “self-medicate” with drugs and alcohol.
Cunningham said that J. Carr also told him that R. Carr was involved with a gang, but J. Carr nevertheless looked up to his older brother. Family members also said that R. Carr influenced J. Carr as they grew up. Temica, specifically, said that R. Carr would ridicule J. Carr as weak, calling him a “wuss” and other disparaging names when he did not do something R. Carr wanted him to do.
Harding said that she warned J. Carr to stay away from R. Carr when he got out of prison because J. Carr would “end up getting in trouble.” Her younger son, she said, was “a little different when he’s with Reggie.”
Using a United States Department of Justice study of risk factors that increase the likelihood of involvement in criminal violence, Cunningham found J. Carr had 18 or 19 out of approximately 22 risk factors. On protective factors, J. Carr exhibited some elements of positive social orientation. Regarding a second study breaking risk factors into categories of individual, family, social, peer, community, and neighborhood, Cunningham found J. Carr had a majority of the risk factors in each category. He said that other risk factors were J. Carr’s age and learning disabilities.
Cunningham summed up tire factors leading to J. Carr’s participation in the crimes as a combination of “some very problematic genetic predispositions,” in addition to “neurological abnormalities,” “a catastrophic family setting” leading to “substance abuse and disturbed adjustment that are aggravating each other during adolescence. Out of that, you have the influence of his older brother and intoxication at the time. And from that, you have the capital offense.”
Testimony of J. Carr’s Friends
Three of J. Carr’s friends testified for him during the penalty phase of the trial.
Leroy and Juanita Culver knew J. Carr when he lived in Dodge City. Jesse Harris knew J. Carr in Ohio through his daughter, who was J. Carr’s girlfriend.
J. Carr worked for Leroy for 3 or 4 years. Leroy said that J. Carr was a good worker who wanted to learn and that he was “looking for affection” from somebody. Juanita described J. Carr as “one of the nicest, polite, land, warm, giving, always—he was the epitome of the finest young man you could find.”
Jesse Harris said that J. Carr stayed with his family in Cleveland and that, at some point, he became engaged to his daughter. He never had harsh words or any trouble with J. Carr. He described him as “a real quiet young man,” whom he treated “like one of my own sons.”
Defendants’ Roles in Quadruple Homicide
During her testimony in the penalty phase, on questioning from J. Carr’s counsel, Temica said that R. Carr admitted to her that he shot “those people,” referring to Heather M., Aaron S., Brad H., and Jason B.
There was no testimony from any witness that J. Carr admitted to shooting the victims of the quadruple homicide, but the prosecution made reference to J. Carr claiming to have been the trig-german while he was in jail. During the State’s closing argument, when the claim was mentioned again, and defense counsel objected to facts not in evidence, Judge Clark sustained the objection.
Dueling PET Scan Experts and Denial of Continuance for Sur-rebuttal
The defense presented testimony from Dr. David Preston, a specialist in nuclear medicine who was qualified as an expert for the defense at the penalty phase regarding PET imaging and its use as a diagnostic technique. Preston said that a PET scan of a person’s brain is not accepted to predict or explain criminal behavior, but he did identify what he said were abnormalities in both R. Carr’s and J. Carr’s scans. Specifically, he said images of their temporal lobes demonstrated marked deficits in metabolism in the regions of the hippocampus and amygdala.
Preston testified that Exhibit A-39, an image of R. Carr’s brain, and Exhibit JC-2, an image of J. Carr’s brain, displayed images that were higher in back and lower in front to give a larger view of their temporal lobes. He also admitted on direct examination that he had mistakenly classified Exhibit A-40 as a PET scan of a normal young male for comparison purposes. In fact, it was an image of a 50-year old male with a memory problem.
Preston further testified that, in patients he has seen in the past, a closed head injury would be the first thing he would suspect as a cause of the type of deficits he observed in the defendants’ scans. But he said that no history of closed head injuries was provided to him in this case.
The State called Dr. Norman Pay, a neuroradiologist, in rebuttal to Preston. On direct examination, Pay testified that he consulted with the person at Via Christi Medical Center who performed the PET scans on the defendants, the doctor in charge of PET scans at Via Christi, and a neurologist at Via Christi. The State had Pay identify these colleagues, who were in the courtroom, and asked each of them to raise a hand, which they did. Pay said all three were in agreement with him that Exhibits A-39 and JC-2 were skewed in color and were manipulated so that the anterior portion of the temporal lobe, which includes the amygdala, would not appear in the images. When the prosecutor asked Pay if the manipulated images were “by design,” he responded, “We were told.”
Pay further testified that, looking at all of the PET images, he and the others he consulted had reached the opinion that the scans showed normal metabolism in both defendants’ brains.
J. Carr’s counsel objected to admission of opinions from Pay’s colleagues in the courtroom, but the objection was overruled.
On cross-examination, Pay admitted that he normally does not read PET scans, despite being asked to do so in this case. He said that the difference between JC-2 and State’s Exhibit 912, another of J. Carr’s PET scan images on which he was relying to give his opinion, might be the presence of “scatter” in 912. Scatter can produce a halo effect that can be eliminated by reducing the background color.
When asked if he could tell whether Preston had manipulated the images so that they would be higher in back and lower in front, Pay responded, “You know, we have to have Dr. Preston here to testify because I don’t really know what he did.” Pay agreed that if two dots in one of the images were indicative of J. Carr’s eyes, it might necessarily involve the area of the hippocampus and amyg-dala. He also testified on cross-examination that he did not attempt to contact Preston to ask him how he arrived at his conclusions and that he was not there to cast any aspersions on Preston’s integrity or competence.
The defense requested a continuance to confer with Preston and recall him as a witness in surrebuttal. Counsel argued that he must be permitted to address the State’s allegation that he manipulated the PET images “by design.”
Judge Clark characterized the disagreement between Preston and Pay as “a fact question for the jury . . . between experts” and said that Preston “would be repeating what he had said in direct.” He denied the motion for continuance.
In closing argument, one of the prosecutors argued that the “truth” as revealed by the “doctors” showed that Preston’s “slick” PET scan images and related testimony were “hocus pocus.” The prosecutor said that the “foundation of the [defendants’] sympathy and abuse excuse and blame” had come “crashing down” and that they were simply dragging their “laundry” into court.
Additional facts necessary to resolution of particular legal issues will be discussed below.
PI. Severance
R. Carr challenges Judge Clark’s failure to sever the penalty phase of his trial from the penalty phase of J. Carr’s trial. The failure to sever, R. Carr asserts, violated his Eighth Amendment to the United States Constitution right to an individualized capital sentencing determination and requires us to vacate the death sentence on the remaining capital conviction and remand the case for further proceedings. J. Carr makes at least one distinct argument in favor of severance of the penalty phase: He asserts the joint trial inhibited the jury’s individualized consideration of him because of family characteristics tending to demonstrate future dangerousness that he shared with his brother.
Although R. Carr’s visible handcuffs are not specified as another source of prejudice to J. Carr, they also factor into our decision under K.S.A. 2013 Supp. 21-6619(b). See Deck v. Missouri, 544 U.S. 622, 624, 635, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005), abrogated on other grounds by Fry v. Pliler, 551 U.S. 112, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) (Constitution forbids use of visible shackles during penalty phase of capital prosecution, unless justified by essential state interest specific to defendant on trial; shackling inherently prejudicial; negative effects cannot be shown from transcript; when court, without adequate justification orders defendant to wear shackles that will be seen by jury, defendant need not demonstrate actual prejudice to malee out due process violation; State must prove beyond reasonable doubt error did not contribute to death verdict); see also United State v. Jarvis, 792 F.2d 767, 769-70 (9th Cir. 1986) (jurors’ observation of shackled codefendants in courthouse elevator likely to be prejudicial to cod-efendant alleged to be closely affiliated with them); Reynolds v. Gomez, No. 97-16126, 1998 WL 869908, at *1 (9th Cir. 1998) (unpublished opinion) (defendant prejudiced by codefendant’s unconstitutional shackling; recognizing danger of guilt by association when prosecution’s evidence of codefendants’ guilt “inexorably intertwined”).
Ultimately, we agree with the defendants that Judge Clark’s failure to sever the penalty phase of their trial was error requiring vacation of their remaining death sentences and remand to ¿strict court.
Both defendants renewed all motions, which included their motions to sever, in the penalty phase of the prosecution. Judge Clark denied the motions.
In general, during the penalty phase, J. Carr continued the pattern he had set in the guilt phase by emphasizing that R. Carr was tire more culpable actor and a negative influence in J. Carr’s life.
The Eighth Amendment to the United States Constitution requires the jury to make an individualized sentencing determination. It does not categorically mandate separate penalty phase proceedings for each codefendant in a death penalty case. United States v. Tipton, 90 F.3d 861, 892 (4th Cir. 1996) (joint trials in death-eligible cases are not per se unconstitutional); United States v. Rivera, 363 F. Supp. 2d 814, 823 (E.D. Va. 2005) (“The defendants [in a capital case] have an Eighth Amendment right to an Individualized determination’ of their penalty phase sentence, however, this important right does not compel an individual penalty phase hearing.”).
R. Carr is partially correct when he argues that J. Carr’s mitigation evidence qualified as antagonistic to his mitigation case. See State v. White, 275 Kan. 580, 590, 67 P.3d 138 (2003) (citing State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 [1980]).
To the extent mitigation evidence on behalf of J. Carr merely proved R. Carr s criminal history and engagement in a deviant lifestyle that continued at the time of the Birchwood crimes, it was not in conflict with R. Carr s penalty phase case. The jury had already heard R. Carr s counsel and Donley talk about R. Carr’s drug sales during the guilt phase. Then, in the penalty phase, jurors heard more on these subjects from witnesses called by R. Carr. Lyons and Cossman testified about his convictions on various offenses. Woltersdorf testified about R. Carr’s diagnosis of anti-social personality disorder, for which there is no successful treatment protocol, and he had no disagreement with clinical profiles characterizing R. Carr as a “self-centered and poorly socialized” individual, “primarily concerned with instant gratification of his immediate wants and needs.” Reidy testified about R. Carr’s early affiliation with a gang, his gang-related fights, his drug-related conflicts, his illegal narcotics use, and his prior arrests.
However, to the extent mitigation evidence on behalf of J. Carr was used by him to differentiate between his and R. Carr’s levels of moral, not legal, culpability for the killings of Heather M., Aaron S., Brad H., and Jason B., the penalty phase cases of R. Carr and J. Carr were antagonistic.
Cases in which we have rejected a claim of antagonism attributed to similar fingerpointing between codefendants over which was the likely principal and which the likely aider and abettor when neither was exposed to the death penalty—see State v. Boyd, 281 Kan. 70, 82, 127 P.3d 998 (2006); White, 275 Kan. at 590-91 (citing Myrick, 228 Kan. at 416-17; State v. Sully, 219 Kan. 222, 225, 547 P.2d 344 [1976])—are not controlling. In fact, they are not even minimally persuasive.
To begin with, we state the obvious: Until a 2013 amendment of the “Hard 50” statute in response to Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), noncapital cases have not required penalty phase trials to juries at all. Compare K.S.A. 21-4635 with K.S.A. 2013 Supp. 21-6620(b)(2) (re quiring separate sentencing proceeding before juiy to determine applicability of “Hard 50” sentence).
More important and, perhaps, less obvious: Fingeipointing focused on which of two codefendants was the principal and which the aider and abettor has absolutely no bearing on whether a fact-finder should find either guilty or not guilty of the crime. A principal and an aider and abettor are equally culpable under the law. See K.S.A. 2013 Supp. 21-5210 (aider and abettor criminally responsible for crime committed by principal); State v. Soto, 299 Kan. 102, Syl. ¶ 2, 322 P.3d 334 (2014) (“The Kansas aiding and abetting statute does not add distinct material elements to the definition of a charged crime, thus creating alternative means of committing that crime. Rather, the aiding and abetting statute simply extends criminal responsibility to a person other than the principal actor.”).
Whether a defendant is legally guilty or not guilty under the law is no longer at issue in the penalty phase of a capital case. But differentiation in the moral culpability of two defendants can have determinative bearing in a joint trial on whether a juror decides to show mercy to one while refusing to show mercy to the other. State v. Kleypas, 272 Kan. 894, 1103, 40 P.3d 139 (2001) (mitigating circumstances allow juror to consider factors that “may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense”; improper for prosecutor to argue certain circumstances should not be considered as mitigating circumstances because they do not excuse or justify crime). And mercy from a single juror is all it takes to send a capital defendant to prison rather than to execution. See State v. Cheever, 295 Kan. 229, 267-68, 284 P.3d 1007 (2012), cert. granted in part 133 S. Ct. 1460 (2013), vacated and remanded, 134 S. Ct. 596 (2013) (approving instruction on “exercise of mercy” as proper mit-igator). Mercy may overcome even the most obvious imbalance between forceful evidence of aggravators from the State and a defense mitigation case that is so weak it would not pull the skin off a rice pudding.
Our conclusion that the defendants’ penalty phase cases were at least partially antagonistic to each other is cemented by J. Carr’s cross-examination of Temica, the defendants’ sister. That cross-examination elicited Temica’s testimony that, during a visit she made to R. Carr in jail, he admitted to shooting the Birchwood victims. Furthermore, we are not satisfied that this testimony inevitably would have been admitted in a severed penalty phase.
Although one may speculate that the State’s routine questioning of defense witnesses who had visited R. Carr in jail about the conversations they had there would have prompted Temica to give the same testimony in a separate proceeding, one cannot do better than speculate on this point. On the record before us, it is at least as possible that the State was completely unaware of R. Carr’s admission to Temica until J. Carr’s counsel exposed it in the middle of R. Carr’s mitigation case. The State did not put Temica on the witness stand during its penalty case. It merely followed up during her cross-examination. Once a skilled lawyer is told what to look for, there is a far greater likelihood that he or she will find it and exploit it. And Temica’s testimony about R. Carr’s admission did not soften so much during her examination by the State—“I believe I heard him tell me something like that. I don’t remember . . . like when he asked me who he shot and all that, I don’t remember who was, you know, shot by who[m]”—that its probable influence on the jury was neutralized. We have often observed that a confession is tire most persuasive evidence in the State’s arsenal. See State v. Yurk, 230 Kan. 516, 519, 638 P.2d 921 (1982) (confession “one of the strongest forms of physical evidence available to the prosecution”); State v. Watkins, 219 Kan. 81, 90-91, 547 P.2d 810 (1976) (same). If any juror was inclined to show mercy to R. Carr because of residual doubt, as R. Carr argues, or because of a belief that J. Carr was the one who fired the black Lorcin in the soccer field, that juror was much less inclined to do so after Temica’s testimony was introduced by J. Carr’s counsel.
Such a change in perspective would not have been ameliorated by one of the prosecutor’s three later references during questioning to J. Carr’s jailhouse boasts about being the triggerman—e.g., that he had “lined [the Birchwood victims] up in a ditch and went. . . pop, pop, pop, in the back of the head.” As mentioned, the State never put on evidence to support the prosecutor’s references, and Judge Clark ultimátely directed the jury to disregard them. In addition, we note drat one of the statements attributed to J. Carr by the prosecutor directly implicated R. Carr, not J. Carr, by describing R. Carr’s motivation to rape one of the victims in particularly disgusting and demeaning language.
In addition to focusing on antagonism and the possibility that some of the evidence introduced by J. Carr was unlikely to come into evidence during a severed penalty phase, R. Carr argues that J. Carr’s mitigation was prone to being used as improper, nonsta-tutory aggravating evidence against him.
Again, we are compelled to agree.
Although Judge Clark correctly instructed the jury that each defendant was entitled to have his sentence decided on the evidence and law applicable to him, and that “[a]ny evidence in this phase that was limited to only one defendant should not be considered by you as to the other defendant,” this is a rare instance in which our usual presumption that jurors follow the judge’s instructions is defeated by logic. In view of the defendants’ joint upbringing in the maelstrom that was their family and their influence on and interactions with one another, including testimony that tended to show that R. Carr was a corrupting influence on J. Carr, the penalty phase evidence simply was not amenable to orderly separation and analysis. See United States v. Aquart, 3:06CR160, 2010 WL 3211074, at *7 (D. Conn. 2010) (unpublished opinion) (ordering separate, sequential penalty phase proceedings when jury might view codefendant brother’s lesser culpability as reason for concluding defendant more deserving of déath penalty; defendants’ plan to call family members to testify about upbringing, character created risk jury could conclude positive traits of one brother missing from other); see also United States v. Catalan-Roman, 376 F. Supp. 2d 96, 106 (D.P.R. 2005) (sequential penalty phase proceedings warranted when one defendant’s evidence would show jury how codefendant more culpable); United States v. Green, 324 F. Supp. 2d 311, 325-26 (D. Mass. 2004) (penalty'phase severed when government asserts same aggravating circumstance against defendants; defendants likely to argue mitigation by shifting blame to other; by arguing not as worthy of death as codefendant); cf. Espinosa v. State, 589 So. 2d 887, 894-95 (Fla. 1991), cert. granted, judgment rev'd 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 (1992) (J. Barkett, dissenting) (when defendants presenting antagonistic defenses, severance should always be rule in penalty phase of capital case).
This inevitable effect was compounded by the fact that the ag-gravators against which the evidence must be compared were precisely the same for both defendants. And similarly, the court’s instructions identified the same statutory mitigating circumstances for both R. Carr and J. Carr.
In short, Judge Clark’s refusal to sever the defendants’ penalty phase was error that violated both R. Carr’s and J. Carr’s Eighth Amendment right to an individualized capital sentencing determination. Can this error be considered harmless? Satterwhite v. Texas, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988); Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). We have identified the appropriate harmless error standard when considering the penalty phase of a capital trial.
“[T]he standard of review and the ultimate question that must be answered with regard to whether [error] in the penalty phase of a capital trial was harmless is whether the court is able to find beyond a reasonable doubt that the [error], viewed in the fight of the record as a whole, had little, if any, likelihood of changing the jury’s ultimate conclusion regarding the weight of the aggravating and mitigating circumstances.” Kleypas, 272 Kan. at 1087-88.
The test is not whether a death penalty sentence would have been imposed but for the error; instead the. inquiry is whether the death verdict actually rendered in this trial was surely unattributable to the error. Kleypas, 272 Kan. at 1087-88.
We conclude that R. Carr’s Eighth Amendment right to an individualized sentencing determination was fatally impaired by this failure to sever. The evidence that was admitted, the especially damning subset of it that may not have been admitted in a severed proceeding, and the hopelessly tangled interrelationship of the mitigation cases presented by the defendants persuades us that the jury could not have discharged its duty, to consider only the evi dence limited to one defendant as it arrived at their death sentences. We cannot say that the death verdict was unattributable, at least in part, to this error.
We therefore order vacation of R. Carr’s remaining death sentence and remand to the district court. If a new penalty phase is conducted, it must be severed from any for J. Carr and must be tried before a jury that does not also hear J. Carr’s penalty phase.
P2. Notice of Aggravating Factors
R. Carr moved to bar his penalty phase on the ground that the State failed to give him constitutionally sufficient notice of the aggravating factors it intended to rely upon to seek death, despite its compliance with K.S.A. 21-4624(a).
Our review of this question of law is unlimited. See Gaudina v. State, 278 Kan. 103, 104, 92 P.3d 574 (2004); State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
R. Carr relies on Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002); Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999); and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). We have already disposed of this argument unfavorably to his position. See State v. Scott, 286 Kan. 54, 101-02, 183 P.3d 801 (2008). R. Carr has not brought any new considerations to our attention that would merit a change of course on this issue.
P3. Channeling of Jury’s Discretion
J. Carr has argued in his separate appeal that the four aggravating factors the State relied upon to pursue the death penalty against him were inadequate to channel the jury’s discretion. We notice this unassigned error in R. Carr’s appeal under K.S.A. 2013 Supp. 21-6619(b).
The State alleged the existence of four specific aggravators: that the defendants knowingly or purposely killed or created a great risk of death to more than one person; that they committed the crime for themselves or for another for foe purpose óf receiving money or any other thing of monetary value; that they committed the crime in order to avoid or prevent a lawful arrest or prosecution; and that they committed the crime in an especially heinous, atrocious, or cruel manner. See K.S.A. 2013 Supp. 21-6624(b) (multiple murder), (c) (monetary gain), (e) (avoidance of arrest, prosecution), and (f) (especially heinous, atrocious, cruel).
We have rejected the defense arguments advanced here on each of the four aggravators, when those arguments were made on behalf of other death penalty defendants. See State v. Scott, 286 Kan. at 108-10 (rejecting argument on multiple murder, monetary gain); State v. Kleypas, 272 Kan. at 1025, 1029 (rejecting argument on avoidance of arrest; especially heinous, atrocious, cruel). The defense has not given us cause to revisit these holdings in this case.
P4. Unavailability of Transcript of Jury View
R. Carr argues that the judge’s failure to have a court reporter present at the jury view during the guilt phase of his trial deprived him of an opportunity to make a record sufficient for meaningful appellate review of his death sentence, violating the Eighth and Fourteenth Amendments.
“[D]ue process requires a reasonably accurate and complete record of the trial proceeding in order to allow meaningful and effective appellate review.” State v. Holt, 298 Kan. 531, 537, 314 P.3d 870 (2013) (citing Entsminger v. Iowa, 386 U. S. 748, 752, 87 S. Ct. 1402, 18 L. Ed. 2d 501 [1967]; see Kheireddine v. Gonzales, 427 F.3d 80, 84 [1st Cir. 2005]). And, when a claim appears to have a substantial foundation based on the available record but the claim cannot be reviewed because of the incomplete or inaccurate transcript, the proper remedy is reversal. Holt, 298 Kan. at 538 (citing United States v. Wilson, 16 F.3d 1027, 1031 [9th Cir. 1994]). Still,
“[a] defendant does not have a constitutionally protected right to a totally accurate transcript of the criminal proceedings. See, e.g., Tedford v. Hepting, 990 F.2d 745, 747 (3d Cir.), cert. denied 510 U.S. 920, 114 S. Ct. 317, 126 L. Ed. 2d 264 (1993); Robinson v. Smyth, 258 Fed. Appx. 469, 471 (3d Cir. 2007) (unpublished opinion). A record that is incomplete but that involves no substantial or significant omissions does not require reversal. See, e.g., United States v. Cashwell, 950 F.2d 699, 703 (11th Cir. 1992); United States v. Selva, 559 F.2d 1303, 1306 n.5 (5th Cir. 1977). Appellants seeking reversal on the grounds that they are denied due process because of an inaccurate or incomplete transcript must make the best feasible showing possible that a complete and accurate transcript might have changed the outcome of the appeal. Ortiz-Salas v. I.N.S., 992 F.2d 105, 106 (7th Cir. 1993); see Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009).” Holt, 298 Kan. at 538.
See State v. Stafford, 223 Kan. 62, 64, 573 P.2d 970 (1977) (inability of State to provide transcript does not entitle defendant to new trial per se); State v. Jefferson, 204 Kan. 50, 51-52, 460 P.2d 610 (1969) (same; defendant must make good faith effort to obtain secondary statement of transcript).
As discussed fully in Section 23 of this opinion, R. Carr s substantive jury view arguments do not lead to relief. There is no claim of misconduct by anyone during the view and no other claim with a substantial foundation that requires us to know more than we know now about the view or anything that occurred during it. We are aware of no effort to construct a substitute for a transcript of the view. See Supreme Court Rule 3.04(a) (2013 Kan. Ct. R. An-not. 23) (procedure to be followed when transcript unavailable).
Under these circumstances, we cannot conclude that any constitutional violation has occurred because of the absence of a transcript of the jury view. R. Carr has been provided a reasonably accurate and complete record of the proceedings against him. That is what he is entitled to under the United States Constitution.
P5. K.S.A. 21-4624(c)
R. Carr challenges the allowance of hearsay under K.S.A. 21-4624(c) during his penalty phase trial. He argues that this statute violates the heightened reliability standard applicable to capital cases. See State v. Scott, 286 Kan. at 76 (references to “heightened scrutiny” applied in capital case); State v. Marsh, 278 Kan. 520, 525, 102 P.3d 445 (2004), rev’d and remanded 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), vacated in part 282 Kan. 38, 144 P.3d 48 (2006) (“We begin by observing that there is a heightened scrutiny of trial proceedings in a capital case.”) (citing Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct 2382, 65 L. Ed. 2d 392 [1980]). He also argues that his constitutional rights were violated by the introduction of hearsay evidence under the authority of this statute during the penalty phase of his trial.
We briefly address these arguments to provide guidance on remand. R. Carr s pretrial motion to challenge the constitutionality of tire statute was rejected by Judge Clark.
The Statute and the Standard of Review
K.S.A. 21-4624(c) provides for a relaxed evidentiary standard during the penalty phase of a capital proceeding:
“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of tire aggravating circumstances enumerated in K.S.A. 21-4625 and amendments thereto and any mitigating circumstances. Any such evidence which the court deems to have probative value may be received regardless of its admissibility under the rules of evidence, provided that the defendant is accorded a fair opportunity to rebut any hearsay statements. Only such evidence of aggravating circumstances as the state has made known to tire defendant prior to the sentencing proceeding shall be admissible, and no evidence secured in violation of the constitution of tire United States or of tire state of Kansas shall be admissible.”
“When the application of a statute is challenged on constitutional grounds, this court exercises an unlimited, de novo standard of review.” State v. Cook, 286 Kan. 766, 768, 187 P.3d 1283 (2008) (citing State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 [1996], cert. denied 521 U.S. 1118 [1997]).
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appeal' that the statute violates the constitution. In determining constitutionality, it is tire court’s duty to uphold a statute under attack rather tiran defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of tire superior law is clear beyond reasonable doubt. [Citations omitted.]” ’ ” State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).
Heightened Standard of Reliability
R. Carr recognizes that his argument based on the existence of a heightened standard of reliability in capital cases was rejected in Scott. That holding stands.
In Scott, we addressed defendant Gavin Scott’s due process challenge to the constitutionality of K.S.A. 21-4624(c). 286 Kan. at 99. We rejected it, based on federal cases holding a similar federal provision constitutional. See 286 Kan. at 100 (citing, e.g., United States v. Fell, 360 F.3d 135 [2d Cir. 2004]). The Kansas statute’s relaxed standard of admission was consistent, we said, with the United States Supreme Court’s “ ‘all relevant evidence’ ” doctrine, which demands “ ‘that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.’ ” Scott, 286 Kan. at 100 (quoting Jurek v. Texas, 428 U.S. 262, 276, 96 S. Ct. 2950, 49 L. Ed. 2d 929 [1976]).
K.S.A. 21-4624(c), we explained,
“provides for an individualized inquiry, and does not limit the discretion of the sentencer to consider relevant circumstances offered by the defendant. K.S.A. 21-4624(c) provides that only relevant evidence is to be admitted, thus assuring the evidence actually has probative value. Moreover, evidence secured in violation of the United States Constitution or the Kansas Constitution is inadmissible. Consequently, we conclude the relaxed evidentiary standard is sufficient to protect the defendant’s right to a fair trial and does not violate either the United States or Kansas Constitutions.” Scott, 286 Kan. at 100-01.
In the words of the Fell opinion upon which we relied in Scott: “[T]he Supreme Court has . . . made clear that in order to achieve . . . ‘heightened reliability,’ more evidence, not less, should be admitted on the presence or absence of aggravating and mitigating factors .... [A relaxed evidentiary standard] does not undermine ‘heightened reliability’!;] it promotes it.” Fell, 360 F.3d at 143-44.
R. Carr argues that tire statute’s relaxed evidentiary standard should apply only to a capital defendant’s mitigating evidence. But his argument is rejected by the authority he cites to support it. See Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (best practice “not to impose restrictions” on State’s evidence offered at presentence hearing, as long as defendant not prejudiced).
Although R. Carr accurately observes that K.S.A. 21-4624(c) lacks any balancing test to weigh the probative value of information against any prejudice the defendant may suffer from its admission, a district judge nevertheless continues to fill an inherent role as “gatekeeper of constitutionally permissible evidence.” Fell, 360 F.3d at 145 (“[I]t remains for the court, in the exercise of its judgment and discretion, to ensure that unconstitutional evidence oth erwise admissible under applicable evidentiary rules is excluded from trial.”).
Confrontation Clause
On the Confrontation Clause, R. Carr argues that K.S.A. 21-4624(c) allows introduction of testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In fact, it cannot do so if the federal Constitution forbids it. Cf. United States v. Cheever, 423 F. Supp. 2d 1181, 1194 (D. Kan. 2006) (federal Constitution superior to federal rule of evidence).
The United States Supreme Court handed down its opinion in Crawford well after the trial of this case in 2002. See 541 U.S. 36. Crawford held that the Sixth Amendment bars “ ‘admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’ ” Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (quoting Crawford, 541 U.S. at 53-54).
Thus the first question before us is whether Crawford’s interpretation and application of the Confrontation Clause reaches the penalty phase of a capital proceeding. The United States Supreme Court has not yet answered this question. United States v. Umaña, 750 F.3d 320, 360 (4th Cir. 2014) (Gregory, J., dissenting). Until we have a definitive answer from that Court, we recognize that other jurisdictions are split and we accept convincing arguments that confrontation law is applicable to a capital penalty phase trial. Compare United States v. Fields, 483 F.3d 313, 324-338 (5th Cir. 2007) (Sixth Amendment confrontation rights do not apply); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir. 2002) (same); Muhammad v. Secretary, Florida Dept. of Corrections, 733 F.3d 1065, 1077 (11th Cir. 2013) (same), cert. denied 134 S. Ct. 893 (2014); Petric v. State, No. CR-09-0386, 2013 WL 598118 (Ala. Crim. App. 2013) (same); State v. Shackelford, 155 Idaho 454, 314 P.3d 136, 142-44, reh. denied (2013) (same); People v. Banks, 237 Ill. 2d 154, 203, 934 N.E.2d 435 (2010) (same); State v. Berget, 2013 S.D. 1, 826 N.W.2d 1, 21, reh. denied (2013) (same), with Vankirk v. State, 2011 Ark. 428, 385 S.W.3d 144 (2011) (Sixth Amendment confrontation rights apply); State v. Rodriguez, 754 N.W.2d 672, 681 (Minn. 2008) (same); State v. Hurt, 208 N.C. App. 1, 19, 702 S.E.2d 82 (2010) (same) (2012), rev'd 743 S.E.2d 173 (N.C. 2013); see Note, The Confrontation Clause at Capital Sentencing: Should Prison Incident Reports Be Admissible in South Carolina, 3 Charleston L. Rev. 739, 742-48 (2009) (detailing split of cases before publication of article in 2009).
Assuming application of Sixth Amendment confrontation rights in the penalty phase of a capital proceeding, R. Carr is right to question whether the State's mention of witness statements recorded in police reports during cross-examination of several defense witnesses should have been permitted. Out-of-court statements of witnesses to investigating law enforcement officers introduced to prove the fact of the matter asserted are textbook testimonial hearsay. See State v. Jones, 287 Kan. 559, 565-66, 197 P.3d 815 (2008) (discussing factors to determine whether hearsay statement testimonial).
It is not a wholly satisfactory response to say that the prosecutor s questions did not qualify as admitted evidence, that the statements were used only to impeach defense witnesses, or that the statements were not offered for the truth of the matter asserted. Inclusion of the statements as an explicit basis for the prosecutor s questions obviously implies to the jury that they have a basis in fact, regardless of whether the statements qualify for the label of evidence. But nothing in the record before us demonstrates that such a basis was ever tested. Any impeachment should only be effective if a sound basis for the prosecutor s impeaching question exists. And a sound basis exists only if the statements are true.
At any repeat penalty phase hearing on remand, we caution the parties and the district judge that Kansas now holds that the Sixth Amendment applies in the proceeding and that out-of-court testimonial hearsay may not be placed before the jury without a prior opportunity for the defendant to cross-examine the declarant. This includes any testimonial hearsay referenced in questions posed by counsel.
P6. Exclusion of Mitigating Evidence
R. Carr challenges Judge Clark’s exclusion of evidence of R. Carr’s likelihood of parole and the impact of his execution. We provide guidance on these issues for any retrial of the penalty phase on remand.
Additional Factual and Procedural Background
R. Carr sought to admit testimony of Bill Miskell, public information officer at the Kansas Department of Corrections, about the number of prisoners serving a life sentence who had been paroled and the number who had died in prison. During Miskell’s direct examination, counsel for R. Carr asked about Defendant’s Exhibits A-33 and A-34. The exhibits showed that, in the previous 20 years, 847 offenders had been incarcerated in Kansas for first-degree or capital murder. Of those, 202 convicted of first-degree murder had been paroled, and 37 inmates convicted of first-degree murder had died in prison. Of those paroled, six had been returned to prison on a new felony conviction. The exhibits also showed that “die average length of time between the admission date and die first parole eligibility date [was] 16 years [] 11 months and 17 days” and that “[t]he average length of time between the first parole eligibility date and the release date [was] 11 months and 17 days.”
The State objected:
“The State believes these letters are objectionable, one, because they contain the hearsay of [R. Carrs counsel]; and two, because the content... is irrelevant.... following the ruling of State v. Kleypas, [272 Kan. 894, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), abrogated on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006),] unless it goes to the defendant’s individual characteristics.”
When asked to explain the purpose of the testimony, R. Carr’s counsel stated:
“I wanted to provide the jury with as much information as I could . . . about [the alternative sentence] .... Since Kansas has not had a hard 50 for long enough for a 50-year sentence to be completed, to actually determine how long a person actually selves before they see the parole board and eventually are released, averaging out. I thought we would do a brief historical analogy with the life sentence in Kansas ranging from the 15-year minimum, which was traditionally what a life sentence meant, up through the 40-year sentence, which we went to after that, to die 25 and die 50.”
After hearing from all counsel, Judge Clark ruled:
“To me the issue is, and what we’ll instruct on, unless somediing changes between then and now, is that the jury must decide if aggravating circumstances exist. Then they must decide if those aggravating circumstances they find to exist under the law outweigh the mitigating circumstances. And in doing that they must look at the individual being considered in. that determination. I do not find relevance in the proffered Exhibits A-33 or A-34. Objection sustained.”
R. Carr also proffered the testimony of Marilyn Scafe, then chair of the Kansas Parole Board. Scafe would have explained to tire jury that the Board looked at seven statutory requirements to determine whether someone serving a life sentence should be paroled. According to Scafe, those requirements
“encompass the conditions of the crime, the severity of the crime itself, the background of the offender, taking into consideration their criminal history. It takes into consideration how theyve responded since they’ve been incarcerated, the programs they’ve taken, their discipline reports they have had or haven’t had. Then it also considers all of the plans they have for the future. The parole plan, where they plan to reside, what employment opportunities there are, their support and their opposition. We also have public comments which are solicited from the county of conviction, the judge, the—any of the officials, the judge, the district attorney’s office, the sheriff and the police department. And the victim is notified and we take comments from tire victim at that point, too.”
Scafe also would have said that a prisoner would not necessarily be paroled on the date first eligible. In addition, she would have said that, up to that point, the Board had yet to consider parole for a person sentenced to a hard 25 life sentence.
The State’s relevance objection to Scafe’s testimony also was sustained.
Judge Clark also excluded certain testimony R. Carr sought to admit from his sister, Temica. Counsel asked her, “[D]o you have any idea what you would like the jury to do in regard to Reggie’s sentence?” and “How do you think it will affect you if Reginald Carr is executed?” The State objected to both questions on relevance, and Judge Clark sustained the objections.
The record contains no proffer of Temica’s anticipated answers on tire two questions to which the State successfully objected. R. Carr s brief states without citation to record support that Temica would have testified ab'out “the value of Reginald’s life to her, and the pain she would suffer should Reginald be executed.”
Likelihood of Parole
As we have discussed in other sections of this opinion, relevance encompasses both materiality, reviewed de novo, and probative value, reviewed under an abuse of discretion standard. See State v. Hilt, 299 Kan. 176, 188-89, 322 P.3d 367 (2014). Whether the information R. Carr sought to introduce on likelihood of parole was relevant turns on whether it was probative on the material question of his likelihood of eventual parole.
In a capital sentencing proceeding, the Eighth and Fourteenth Amendments require that a capital defendant be allowed to present evidence to the jury of mitigating factors, and the juiy must be permitted to consider “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978); see Abdul-Kabir v. Quarterman, 550 U.S. 233, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007); Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) abrogated on other grounds Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). This requirement to allow evidence that bears on the defendant individually does not expressly prohibit broader evidence, but we have ruled that such evidence having to do with general conditions of incarceration may properly be excluded in a penalty phase of a death penalty case, unless it is designed to counter evidence from the State that prison life would be easy. Kleypas, 272 Kan. at 1071, 1073.
Neither Miskell’s statistical information nor Scafe’s testimony about the statutory rubric for granting parole and the fact that it had not yet been considered for anyone serving a hard 25 life sen tence appeared to have much, if anything, to do with R. Carr individually. They would have told the jury nothing meaningful about his actual likelihood of being granted parole at some point in the distant future, and thus Judge Clark’s decision to exclude this evidence was not an abuse of discretion.
Execution Impact Testimony
Other jurisdictions that have addressed the admissibility of execution impact testimony are split.
Three jurisdictions whose cases are cited by both parties do not allow such testimony. See State v. Dickerson, 395 S.C. 101, 122-23, 716 S.E.2d 895 (2011) (testimony that defendant’s family had already lost two members to homicide; suffering would be exacerbated by defendant’s death); Ross v. State, 954 So. 2d 968, 1012-13 (Miss. 2007) (motion in limine to prevent defendant’s family from testifying about impact death sentence would have properly granted); People v. Armstrong, 183 Ill.2d 130, 154-55, 700 N.E.2d 960 (1998) (testimony of defendant’s sister “regarding the death penalty’s effect on the defendant’s family” properly excluded as irrelevant).
Oregon permits admission of such testimony. See State v. Stevens, 319 Or. 573, 879 P.2d 162 (1994). At issue in the Oregon case was whether tire defendant’s wife could answer the following question: “Do you have an opinion as to whether it would be better for [your daughter] if her father lived in prison for the rest of his life without possibility of parole or died?” 319 Or. at 576. Because the anticipated testimony might be informative about the defendant’s character, it was permissible. 319 Or. at 585.
We agree with the Oregon court that any admitted testimony of this nature needs to have some bearing on the material question of the defendant’s character, i.e., be probative on that material fact. This principle should be the lodestar for the district judge conducting any severed penalty proceeding on remand. At this stage, without a proffer of the testimony Temica would have given, see State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003) (proponent of excluded evidence has duty to make known substance of expected evidence in proffer), we can only prescribe the proper question, not predict its correct answer.
P7. Agreement of Other Experts
R. Carr argues on appeal that the State’s rebuttal expert should not have been able to testify about witness colleagues’ out-of-court agreement with his opinions. We provide guidance on this issue for any retrial of the penalty phase on remand.
Additional Factual and Procedural Background
The State’s rebuttal expert, Pay, was extremely critical of defense expert Preston’s conclusions and the PET scan images upon which Preston had relied. Pay said that the images failed to show the brain structures Preston had claimed they did, that they used an odd color reduction, and that they had been manipulated—according to what he was told-—-by design. Pay also testified that tire scans did not show abnormal brains and that Preston’s conclusions to the contraiy were wrong.
Pay also testified that the scans had been performed at Via Christi by a respected technologist, Susan Stratton, at Preston’s direction and in his presence. It was clear from Pay’s testimony that some of the information upon which his criticisms rested had come from Stratton. When he identified her as the technologist who had performed the scans, the prosecutor instructed Pay to point her out in the courtroom. After he did so, the prosecutor asked Dr. Pay:
“Q. And you have also been in consultation with other members and colleagues in the neurological field; is that correct?
“A. Yes.
“Q. In fact, Dr. Flynn is the head of PET scans; is that correct?
“A. Yes.
“Q. And he is in the courtroom today?
“A. Right.
“Q. Raise your hand, Dr. Flynn.
(Dr. Flynn complies)
“Q. And you also have conferred with Dr. Bart Grelinger, who is a neurologist in our community. Dr. Grelinger, please raise your hand.
(Dr. Grelinger complies).
“Q. So each of these documents was reviewed, looked at, and discussed with regard to the findings that were apparent; is that right?
“A. Yes.”
After Dr. Pay testified that the images had been manipulated, tire prosecutor asked him how. He replied:
“Susan Stratton will attest to this more, but they were manipulated so that the temporal zones are very markedly'—well, they are markedly diminished. You don’t see too much of it and you don’t see the cerebellum at all. It’s very, veiy odd.”
And, again, after testifying that the scans simply missed the brain structures Preston was targeting, he was asked:
“Q. You came to leam that that was by design?
“A. We were told.”
Finally, the prosecutor sought Pays opinions about Preston’s conclusions:
“Q. In fact, if you were to look at all those pictures and you have conferred with other radiologists and other experts and is there a conclusion as to the function of Jonathan Carr’s brain?
“A. You mean with his interpretation?
“Q. With this.
“[J. Carr’s counsel]: Objection to other folks’ opinions beside Dr. Pay’s, Your Honor.
“THE COURT: I will overrule the objection.
“Q. You may answer.
“A. Could you repeat the question, please?
“Q. I guess I should, shouldn’t I? When you reviewed this and as we talked about the number of individuals who called in to look, did you reach a consensus as to this brain being normal?
“A. Yes.
“Q. Do you have any quarrel?
“A. No.
“Q. Anybody have a problem with that?
“A. No.
“Q. Now looking at Reginald Carr’s, if you would, Doctor. . . . What can you tell us about Reginald Carr’s brain from the documents you have here?
“A. There’s normal metabolic function of both temporal lobes.
“Q. And this again is a consensus opinion?
“A. Yes.
“Q. And you concur?
“A. Yes.”
During the State’s redirect, this exchange occurred:
“Q. The fact of it is that here in Court today are your colleagues that all work in that area in the different disciplines that worked with you and looked and came to a consensus on both of these tests?
“A. Yes.
“[R. Carr’s counsel]: Objection, Your Honor, leading.
“THE COURT: It does suggest the answer.
“Q. Did you confer with colleagues?
“A. Yes, I did.
“Q. Did you reach a conclusion?
“A. Yes.
“Q. Did you reach a consensus?
“A. Yes.
“Q. What is that consensus?
“A. That they’re both normal.”
On recross-examination by R. Carr’s counsel, he asked about the colleagues that were consulted:
“Q. Dr. Pay, the colleagues that you consulted with are, I assume, the people that do PET scans? Why aren’t they here?
“A. He is here, one of them is here.
“Q. Why didn’t he testify?
“A. He could testify for you if you wanted to. He looked at the same scans.
“Q. But you don’t read PET scans but you are coming in here giving an opinion about PET scans; is that correct?
“A. Yes.”
Confrontation Clause Applicability
Both R. Carr and J. Carr characterize this issue as one arising under the Sixth Amendment Confrontation Clause and Crawford v. Washington, 541 U.S. 36.
We have already said in Section P5 of this opinion that the Confrontation Clause should apply in the penalty phase of capital proceedings and controls over any contrary interpretation or application of K.S.A. 21-4624(c) regarding relaxed evidentiary standards.
This means that, should the State attempt to admit Pay’s testimony about the agreement of his colleagues again on remand, the controlling question will be whether the out-of-court statements of agreement by Pay’s colleagues qualify as testimonial hearsay under the Sixth Amendment and Crawford.
P8. Surrebuttal Testimony
R. Carr challenges Judge Clark’s refusal to allow a brief continuance so that defense expert Preston could be present during State rebuttal expert Pay’s testimony and then testify in surrebuttal.
Additional Factual and Procedural History
Pay was contacted by the State the day before he was called to the witness stand to testify in rebuttal about Preston’s PET scan evidence. Neither Pay nor the State had provided the defense with an expert report or any summary of Pay’s anticipated testimony.
The defense initially sought a continuance so that Preston could return to the courtroom before Pay’s testimony began. Judge Clark was unwilling to grant such a continuance. He commented:
“If Dr. Preston is coming to say what he did was right, he has already said that. And he has explained why he did the color and he explained why he made the cut .... Sounds like experts disagreeing. If that is what it is Dr. Preston has to say, I don’t think it is surrebuttal. I think it’s evidence presented in direct, not rebutted.”
Although additional discussion followed, Judge Clark remained unwilling to grant a continuance. His decision was based on the idea that Preston could properly testify in surrebuttal only if he said something new. If, instead,.the defense intended to have him explain to the jury what he did, why he did it, and why what he did was not deceitful or deceptive, the testimony would not be proper surrebuttal.
Judge Clark did allow time for defense counsel to interview Pay before cross- examining him before the jury. He also told counsel: “Then what I will let you do is use my telephone and call Dr. Preston. Ask him what he would say to these questions and I will revisit whether or not to wait until that time. We won’t shut everything down until I malee that final decision.”
Although the record is not crystal clear on the amount of time the defense needed to bring Preston back to court, we see that Pay testified on the morning of November 13, more than 2 months after the trial started with juiy selection on September 9. As late as “lunchtime”—the precise time is not in the record, but court recessed for lunch after hearing the parties on this matter—counsel for the defense told Judge Clark that Preston could be back to testify in surrebuttal by 3:30 p.m.
Ultimately, Judge Clark denied the defense request to have Preston return and testify.
During closing argument, the State referred to Preston’s support for the defendants’ abnormal mental processes as a “house of cards” that came crashing down under the weight of Pay’s testimony; the prosecutor repeatedly emphasized a theme in which Preston’s testimony was nothing more than “hocus pocus.”
Denial of Continuance and Surrebuttal
The use and extent of rebuttal and surrebuttal rests in the sound discretion of the district judge, and his or her ruling will not be reversed unless the discretion has been abused to a party’s prejudice. State v. Martin, 237 Kan. 285, 291-92, 699 P.2d 486 (1985). In addition, we review denial of a continuance for abuse of discretion. See State v. Haney, 299 Kan. 256, 259, 323 P.3d 164 (2014); State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006).
As we have said in other sections of this opinion, discretion is abused if its exercise has relied on an incorrect legal standard. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (citing Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 (2010).
The rules regarding rebuttal evidence were set out in State v Martin-.
“ ‘Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony.’ ” 237 Kan. at 291-92 (quoting State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 [1980]).
In this case, Judge Clark insisted that the defense must produce something new through any surrebuttal testimony from Preston. The State continues to hew to this standard in its briefs to this court. But there is no inflexible legal requirement that rebuttal or surrebuttal evidence be new. It may be evidence that is used to explain or counteract or simply corroborate previous testimony. Judge Clark abused his discretion on the allowance of surrebuttal and the continuance to facilitate it by exercising his discretion on the basis of a legal error. See Ward, 292 Kan. at 550 (citing Gonzalez, 290 Kan. at 755-56.
Moreover, even if newness had been a valid legal requirement, Preston should have been permitted to retake the stand to defend his methods against suggestions by Pay and the State that he had deliberately misled the jury. It is hard to imagine a situation in which the allowance of surrebuttal would be more sensible and its denial more arbitrary. Judge Clark also abused his discretion because no reasonable person presiding over a death penalty case that had been in court for more than 2 months would have agreed with his decision to disallow surrebuttal requiring a delay of, at most, a couple of hours. See Ward, 292 Kan. at 550 (citing Gonzalez, 290 Kan. at 755-56). We need not discuss harmlessness because of the prior necessity of remand.
P9. Sentencing on Noncapital Convictions
R. Carr argues that sentencing on his noncapital convictions should have preceded the penalty phase on his capital convictions and that tire jury should have been informed of the exact sentence he would serve if he were not sentenced to death.
The first argument is likely to be moot, because, on remand, R. Carr s sentencing on his remaining noncapital convictions will already have occurred. The terms handed down on those convictions have not been appealed.
We briefly discuss the second question on whether a capital sentencing juiy must be told the exact sentence a defendant will serve if not sentenced to death, because we wish to provide guidance to the district judge on remand.
The defendants filed an unsuccessful joint pretrial motion to have Judge Clark determine and then inform the juiy of the exact duration of their sentences, should the juiy not return the death penalty. At the instructions conference, J. Carrs counsel renewed the argument, asserting that the jury should be informed “with as much exactitude as possible” of the sentence his client could expect to receive if not sentenced to death. R. Carr’s counsel joined in that argument.
Judge Clark instead included the following in his penalty phase instructions to tire jury:
“Should the responsibility to fix a proper sentence in all counts—to include the first four (Capital Murder) fall to me, you are instructed that the total sentence would be such that the individual defendant would not be eligible to appear before The Parole Board for a certain period of time. The period would be a minimum of 50 years and a maximum of 268 years. It is for the court to decide.”
R. Carr argues that the exact length of his sentences if no death penalty were imposed had to be shared with the jury under the Eighth and Fourteenth Amendments and Section 9 of the Kansas Constitution Rill of Rights, because the length of the sentences qualified as mitigating. Under Kansas law, the list of statutory mitigating facts includes the following: “A term of imprisonment is sufficient to defend and protect the people’s safety from the defendant.” K.S.A. 21-4626(9).
The defense relies on the United States Supreme Court’s decision in Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), and on our decision in Kleypas, 272 Kan. 894, 1080, 40 P.3d 139 (2001).
In Simmons, the Court specifically addressed whether a capital defendant’s due process rights required his sentencing jury to be informed that he would be ineligible for parole, when the State had used the defendant’s future dangerousness as an aggravating circumstance. According to the plurality decision, the prosecution had argued that “a verdict for death would be ‘a response of society to someone who is a threat. Your verdict w[ould] be an act of self-defense.’ ” Simmons, 512 U.S. at 157. The defense had asked the trial judge to clarify for the jury that “life imprisonment” would mean no possibility of parole, but the judge refused. Then, during deliberations, the jury sent out a question on exactly that topic: “Does the imposition of a life sentence carry with it the possibility of parole?” 512 U.S. at 160. The judge responded:
“ ‘You are instructed not to consider parole or parole eligibility in reaching your verdict. Do not consider parole or parole eligibility. That is not a proper issue for your consideration. The terms life imprisonment and death sentence are to be understood in their plan [sic] and ordinary meaning.’ ” 512 U.S. at 160.
The plurality held that the defense was entitled to inform the jury of the defendant’s parole ineligibility. 512 U.S. at 171. “The Due Process Clause does not allow the execution of a person ‘on the basis of information which he had no opportunity to deny or explain.’ ” 512 U.S. at 161.
“In assessing future dangerousness, the actual duration of the defendant’s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant’s future nondangerousness to the public tiran the fact that he never will be released on parole. The trial court’s refusal to apprise tire juiy of information so crucial to its sentencing determination, particularly when tire prosecution alluded to the defendant’s future dangerousness in its argument to tire jury, cannot be reconciled with our well-established precedents interpreting tire Due Process Clause.” 512 U.S. at 163-64.
In a concurring opinion, Justice Sandra Day O’Connor noted that “[i]n a State in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact,” and that “[t]he decision whether or not to inform the juiy of the possibility of early release is generally left to the States.” 512 U.S. at 176 (O’Connor, J., concurring) (citing California v. Ramos, 463 U.S. 992, 1013-14, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 [1983]).
In this case, the judge’s decision not to inform the jury of R. Carr’s exact sentences in the event of no capital sentences did not deprive him of the opportunity to argue that a term of imprisonment was sufficient to protect the public, i.e., was mitigating. In fact, R. Carr’s counsel argued exactly that point during closing:
“Reggie is going to be incarcerated. He will be put in prison basically forever. He is going to be caged up. And Reggie needs to be caged up with the lions in the penitentiary, so all of us rabbits will be safe. That’s not going to be a problem with us .... By the time he is first eligible to see the parole board, if he gets the minimum sentence he can possibly get, his oldest son will be older than Val Wachtel over there. That’s how long he is going to be in the penitentiary. He is actually going to be in there forever. He is never going to be able to walk out and get in his car and drive off.”
The situation here was completely different from that before the Simmons Court. In Simmons, the jury was prevented from considering tire clearly mitigating fact that tire defendant would never be paroled. R. Carr s jury was not only told his shortest possible sentence, 50 years, a length likely to be mitigating in and of itself, but the possibility that he would face more than five times that long in prison, 268 years or more. Jurors also heard his counsel draw tire sensible conclusion that his client would never leave prison alive. On this record, we conclude that Simmons did not demand more than R. Carr received in Judge Clark’s jury instruction.
Our own decision in Kleypas, 272 Kan. at 1080, gives us a bit more pause.
In that case, we ruled that defense counsel’s refusal of the district judge’s offer to instruct on tire possibility of a life sentence with initial parole eligibility at either 25 or 40 years meant that any error based on the absence of that instruction was invited. 272 Kan. at 1080. We also ruled that the district judge’s failure to instruct sua sponte on the sentences the defendant would receive for his other felony convictions was not error. 272 Kan. at 1080-81. We rejected the notion that the Eighth Amendment required a system “in which the court is required to instruct on the potential sentences a defendant will receive for convictions arising from the same trial as the capital-murder conviction.” 272 Kan. at 1081.
Still, we set a somewhat higher bar for a district judge to meet on instructions about a capital defendant’s potential term of imprisonment in future cases:
“In the absence of a request, the trial court has no duty to inform the jury in a capital murder case of tire term of imprisonment to which a defendant would be sentenced if death were not imposed. Where such an instruction is requested, the trial court must provide tire jury with tire alternative number of years that a defendant would be required to serve in prison if not sentenced to death. Additionally, where a defendant has been found guilty of charges in addition to capital murder, the trial court upon request must provide the jury with the possible terms of imprisonment for each additional charge and advise the jury tlrat the determination of whether such other sentences shall be served consecutively or concurrently to each other and tire sentence for the murder conviction is a matter committed to the sound discretion of the trial court.” 272 Kan. at 1081-82.
Meypas was decided in 2001. The trial in this case was held in 2002. The only portions of tire express language of the Meypas future directive from which Judge Clark deviated were its requirement that the jury instruction contain information on possible terms of imprisonment “for each additional charge" and a statement that the judge would be responsible for deciding whether sentences were consecutive to or concurrent with each other. Apparently Judge Clark did rely on tire possible terms of imprisonment for each additional charge and concurrent or consecutive status when he gave the juiy the combined range of initial parole eligibility from 50 to 268 years.
We would not regard either omission or the omissions together as particularly serious. Judge Clark’s instruction did not pose a reasonable likelihood that the jury failed to consider constitutionally relevant evidence in mitigation. Plowever, because it is possible on remand for any district judge presiding over a new, severed penalty phase to give precise information on the unappealed sentences already handed down on R. Carr s noncapital convictions, as well as tire sentence he will be subject to on his remaining capital conviction if he does not receive the death penalty, it seems wise to do so. We see no reason to keep that information, if available, from the juiy, unless the defense objects. The provision of adequate societal protection through service of a specific long prison sentence is a statutory mitigator under Kansas law, and the judge should enable the ability of R. Carr s counsel to fully argue its application.
P10. Burden of Proof on Mitigating Factors
R. Carr has argued that the instructions in his penalty phase were fatally flawed because they failed to tell the jury that mitigating factors need not be proved beyond a reasonable doubt. Because this issue may arise again on remand, we provide the following brief guidance to tire district judge.
The State acknowledges that the trial court did not expressly instruct the juiy on the burden of proof for mitigating circumstances. The aggravating circumstances instruction and the verdict forms informed the jury specifically that the State was required to prove aggravating circumstances beyond a reasonable doubt.
In Kansas, a district judge must instruct a penalty phase jury in a capital case not only that it need not be unanimous on the existence of a mitigating circumstance but also that a mitigating circumstance need not be proved beyond a reasonable doubt. See State v. Gleason, 299 Kan. 1127, 1195-97, 329 P.3d 1102 (2014) (discussing Scott, 286 Kan. at 106-07; Kleypas, 272 Kan. at 1078); see also K.S.A. 21-4624 (State expressly burdened with proving existence of aggravating circumstance beyond reasonable doubt; statute silent on standard of proof on mitigating circumstance). When nothing in the instructions mentions any burden other than “beyond a reasonable doubt,” jurors may be “prevented from giving meaningful effect or a reasoned moral response to” mitigating evidence, implicating a defendant’s right to individualized sentencing under the Eighth Amendment. Gleason, 299 Kan. at 1197 (citing Scott, 286 Kan. at 107). This is unacceptable.
Were we not already vacating R. Carr’s death sentence on Count 2 and remanding the case because of Judge Clark’s failure to sever the penalty phase, error on this issue would have forced us to do so. See Gleason, 299 Kan. at 1197. In any new penalty phase on remand, the district judge must ensure that jurors understand that mitigating circumstances need not be proved beyond a reasonable doubt.
Pll. “The Crime” in Aggravating Circumstances Instruction
R. Carr argues that a reference to “the crime” in the instruction on his aggravating circumstances was too vague and may have led tire juiy to rely on his conviction of a crime other than capital murder to find the existence of an aggravating circumstance. We address the merits of this issue to provide guidance on remand.
Additional Factual and Procedural Background
In Instruction No. 5, Judge Clark identified the aggravating circumstances in issue for R. Carr. The parts of this instruction pertinent to this issue said that the State sought to prove R. Carr committed “the crime” for monetary gain; to evade arrest; and in a heinous, atrocious, or cruel manner.
After the close of evidence in the penalty phase, Judge Clark made a few introductory comments before instructing the jury. Among other things, he explained:
“As you know, our focus here is on the first four counts, those are the capital murder counts.
“It is the responsibility of the jury to decide the proper sentence for the individual defendants in those four counts .... It is my responsibility to decide on the proper sentence for the individual defendant on all other counts in which you returned a verdict of guilty.”
The opening penalty phase instruction also emphasized that the jury sentencing responsibility arose out of its earlier guilty verdicts on capital murder:
“The laws of Kansas provide that a separate sentencing proceeding shall be conducted when a defendant has been found guilty of capital murder to determine whether tire defendant shall be sentenced to death. At the hearing, the trial jury shall consider aggravating or mitigating circumstances relevant to the question of the sentence.”
In Instruction No. 9, Judge Clark told the jury to mark the verdict form to coincide with its sentencing decision. He said that jurors had “been provided verdict forms which provide for three alternative verdicts in each of the four counts of Capital Murder.” Each verdict form also referenced the capital murder counts and made no mention of any other offense.
During the State’s closing, the prosecutor reminded the jury to consider all of the guilt phase evidence relevant to the capital murder charges:
“If you recall at the conclusion of the case after the juiy’s verdict came out, what our position was, was to adopt all of those days of testimony, everything you heard in that Court, and give it to you in this phase saying that the body of the crime, that information should be and can be reconsidered in these aggravating factors, as they would apply to the capital death of Jason [B.] and Aaron [S.], Brad [H.], and Headier [M.].”
Then the prosecutor discussed the aggravating circumstances instructions, including Instruction No. 5, explaining that aggravating circumstances were those facts and circumstances that enhanced the crime of capital murder:
“In a legal sense, the Court explained that aggravating circumstances are those that increase the guilt or enormity of the crime or add to its injurious consequences but which are above and beyond the crime itself. And you know that the crime of capital murder has been found.
“Now you look at the circumstances that would enhance those crimes from the perspective of a rational!], thinking jury to say . . . these aggravators make that crime even worse. And that is what an aggravator is. So we point specifically, we point to each defendant, two defendants, two brothers, two culprits, two criminals, two individuals all found to be culpable of capital murders of four people.” (Emphasis added.)
The State never mentioned the Schreiber and Walenta incidents in its closing, concentrating only on the reasons the capital murders and aggravating circumstances justified death verdicts.
References to “The Crime”
There is some question about the correct standard of review for an alleged error in penalty phase instructions in a capital case that was never raised before the district court.
As discussed in other sections of this opinion, in die ordinary criminal case and in the guilt phase of a capital prosecution, re-viewability and reversibility of an alleged jury instruction error not raised below are governed by K.S.A. 22-3414(3). We have not previously discussed in detail how that standard meshes with the “constitutional standard” for instruction error set out in United States Supreme Court cases—whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violated the Constitution. See Jones v. United States, 527 U.S. 373, 389-90, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999); Victor v. Nebraska, 511 U.S. 1, 6, 114 S. Ct. 1239, 127 L.Ed.2d 583 (1994); Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 116 L.Ed.2d 385 (1991); Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L.Ed.2d 316 (1990). But we have relied on the “constitutional standard.” State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008); see also State v. Gleason, 299 Kan. at 1191. The issue in Scott had surfaced in the district court, but our Gleason opinion assumed applicability of the constitutional standard without discussing any potential oveiiap of the “clearly erroneous” language of K.S.A. 22-3414(3).
We need only raise, not settle, this standard of review issue today in order to provide the guidance needed for the district judge who must handle this case on remand. He or she will be trying to avoid error in the first place. And, regardless of the applicable standard of review, an earlier statement from this court in Scott and an opinion from a panel of the United States Court of Appeals for the Tenth Circuit should help him or her to do that.
Although Scott did not decide the issue raised in this case, it did say that it was “inadvisable” for an aggravating circumstances instruction to refer to a generic crime rather tiran capital murder. 286 Kan. at 114. Likewise, in United States v. Chanthadara, 230 F.3d 1237, 1263-64 (10th Cir. 2000), the court said that it must be clear to a jury applying the Federal Death Penalty Act that the aggravating circumstance of pecuniary gain must flow from the victim’s death, not an underlying felony.
Highly summarized, the motto on remand for drafting of the aggravating circumstances instruction should be: Caution Through Unmistakable Clarity. Given all of the clarification provided by the judge and by the prosecutor’s closing argument here, we may ultimately have been able to determine that any error was not reversible under the governing standard of review, but the risk of reversal on this issue can easily be eliminated when this case returns to district court.
P12. Instruction on Role of Mercy
R. Carr argues that Judge Clark erred by defining mercy as a mitigating factor and linking it with sympathy for the defense, rather than conveying to tire jury that mercy is “an impulse that comes from the grantor, regardless of whether the recipient deserves it.” We briefly address this issue to provide guidance on remand.
The mitigating circumstances instruction in this case included the following on the role of mercy in the jury’s deliberations:
“Mitigating circumstances are those which in fairness may be considered as extenuating or reducing the degree of moral culpability or blame or which justify a sentence of less than death, even though they do not justify or excuse the offense.
“In this proceeding, you may consider sympathy for a defendant. The appropriateness of exercising mercy can itself be a mitigating factor in determining whether the State has proved beyond a reasonable doubt that the death penalty should be imposed.”
R. Carr argues that Judge Clark should have instead told jurors that they could “recommend mercy for the Defendant and sentence him to life imprisonment,” regardless of whether mitigating circumstances outweighed aggravating circumstances. He did not raise this issue in the district court.
As noted in the previous section of this opinion, the intersection of the “clearly erroneous” language we apply in other contexts and the “constitutional standard” that has been applied to instruction challenges arising out of penalty phases in capital cases is unclear. See State v. Scott, 286 Kan. 54.
Again, we need not settle the issue today to dispose of this issue. Rather, we adhere to our precedent rejecting the argument drat equating mercy to a mitigating factor is error at all. See Kleypas, 272 Kan. at 1035-36 (mercy instruction per se simply not required by federal, state law; nor is specific type of mercy instruction); see also State v. Cheever, 295 Kan. 229, 268, 284 P.3d 1007 (2012), cert. granted in part 133 S. Ct. 1460 (2013), and vacated and remanded 134 S. Ct. 596 (2013); Scott, 286 Kan. at 99. R. Carrs assertion that we have already moved away from this precedent in State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004), rev’d and remanded 548 U.S. 163 (2006), and vacated in part 282 Kan. 38, 144 P.3d 48 (2006), is without merit.
P13. Verdict Forms Instruction
In his separate appeal, J. Carr takes issue with the wording of the verdict forms instruction, No. 10, when read in combination with the wording of the Verdict Form (3). He argues that these elements of Judge Clark’s instructions did not prepare jurors for a situation in which they were unanimous on the existence of one or more aggravating circumstances but were unable to agree upon whether mitigators outweighed the aggravators.
We notice this unassigned error on behalf of R. Carr under the authority of K.S.A. 2013 Supp. 21-6619(b).
Additional Factual and Procedural Background
The focal point of this issue is the third paragraph of Instruction No. 10, when combined with the verdict form for the jury’s third option.
The first three paragraphs of the instruction, which informed the jury about the use of the three verdict form options they were given for each capital count, read:
“When considering an individual defendant, if you find unanimously beyond a reasonable doubt that there are one or more" aggravating circumstances and that they outweigh mitigating circumstances found to exist, then you shall impose a sentence of death. If you sentence die particular defendant to deatíi, you must designate upon the appropriate verdict form widi particularity the aggravating circumstances which you unanimously find beyond a reasonable doubt. That is Verdict Form (1).
“If you find that the evidence does not prove any of the claimed aggravating circumstances beyond a reasonable doubt, your presiding juror should mark the appropriate verdict form. That is Verdict Form (2). The court will fix a proper sentence for the particular defendant.
“If one or more jurors is not persuaded beyond a reasonable doubt that aggravating circumstances exist or that those found to exist do not outweigh mitigating circumstances, tiren you should sign die appropriate alternative verdict form indicating the jury is unable to reach a unanimous verdict sentencing the defendant to death. That is Verdict Form (3). In that event, the court will fix a proper sentence for the particular defendant.”
Verdict Form (3) was the same for each victim of capital murder. For Heather M. as the victim and R. Carr as the convicted defendant, it read:
“VERDICT FORM (3)
COUNT ONE (I)
CAPITAL MURDER HEATHER [M.]
As to . . ., Capital Murder of Headier [M.], we the jury being duly sworn upon oath state that we are unable to reach a unanimous verdict sentencing die defendant, Reginald D. Carr, Jr., to deadi.
(PLEASE INDICATE BY X IN THE RLANK SPACE)
-A. We are not able to agree unanimously that the evidence proves an aggravated circumstance exists.
-B. We are not able to agree that the aggravated circumstance(s) that were proved to exist outweighs the mitigating circumstance(s) shown to exist by the evidence.
Date:_ _
Presiding Juror”
Neither R. Carr nor J. Carr objected to Instruction No. 10 or Verdict Form (3) at trial.
Adequacy of Instruction No. 10 and Verdict Form (3)
The State maintains that the clearly erroneous standard of K.S.A. 21-3414(3) should apply when we review an allegation of instruction error in the penalty phase of a capital case. See State v. Kleypas, 272 Kan. 894, 909, 939, 40 P.3d 139 (2001) (clearly erroneous standard governs in guilt phase of capital case). J. Carr s brief instead invokes the standard set out by the United States Supreme Court in Boyde v. California, 494 U.S. 370, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990): “The claim is that the instruction is ambiguous and therefore subject to an erroneous interpretation. We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U.S. at 380.
We employed the Boyde standard plus the traditional Kansas non-clearly erroneous jury instruction review standard in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008):
“In considering a claim that a jury instruction in the penalty phase of a capital trial prevented the juiy from giving proper consideration to mitigating evidence, our standard of review is “whether there is a reasonable likelihood that tire jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 108 L. Ed. 2d 316 (1990). However, we consider the instructions as a whole and do not isolate any one instruction. Even if erroneous in some way, instructions do not result in reversible error if they properly and fairly state the law as applied to the facts of the case and could not reasonably have misled the jury. State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).” 286 Kan. at 104-05.
But, as mentioned in Section 11 of this opinion, Scott did not involve a situation in which the jury instruction issue had not been raised in the district court.
Again, as in Sections 11 and 12 of this opinion, we need not traverse the thicket created by tire overlap of clearly erroneous review and Boyde review today. The choice of standard of review on this issue is not outcome-determinative, and our purpose is to assist the district court in avoiding error on remand. We therefore concentrate on whether there was error at all, rather than on whether any error would have qualified as reversible.
As discussed, under the Eighth and Fourteenth Amendments, a capital defendant must be allowed to put before the jury his evidence of mitigating factors; the jury must be allowed to consider and weigh relevant mitigating evidence; and the jury must have a method by which it can give effect to its consideration. The question before us is whether Instruction No. 10 and Verdict Form (3). were so confusing and misleading that the defendants’ juiy was deprived of a meaningful method of giving effect to mitigating evidence.
The first and second paragraphs of Instruction No. 10 covered what were, in essence, the “all” or “nothing” choices before the juiy. In Kleypas, 272 Kan. at 1060-61, we said that K.S.A. 21-4624 contemplated only two options: Either (1) The jury would agree unanimously and beyond a reasonable doubt that one or more aggravating circumstances existed and that such aggravating circumstance or circumstances outweighed the mitigating circumstance or circumstances found to exist, meaning it would sentence the defendant to death; or (2) the jury would not unanimously find aggravating circumstances outweighed mitigating circumstances.
Verdict Forms (1) and (2) were consistent with the “all” and “nothing” options. It was clear that Verdict Form (1) was to be used when the jury unanimously found the existence of an aggravating circumstance or circumstances and that the aggravating circumstance or circumstances outweighed any mitigators. Verdict Form (2) was to be used when the jury found no aggravators existed. It was clear that, in such a situation, there was no need for the jury to reach the next step, weighing of aggravators and miti-gators.
Verdict form (3) staked out the middle ground—when jurors agreed unanimously that an aggravating circumstance or circumstances existed but could not agree unanimously on whether mit-igators outweighed aggravators. But what was fairly clear in this verdict form was garbled in the third paragraph of Instruction No. 10, which we repeat here for ease of reference:
“If one or more jurors is not persuaded beyond a reasonable doubt that aggravating circumstances exist or that those found to exist do not outweigh mitigating circumstances, then you should sign the appropriate alternative verdict form indicating tire jury is unable to reach a unanimous verdict sentencing the defendant to death.” (Emphasis added.)
The italicized portion of the instruction is simply wrong because it contains an extra “not” that reverses the meaning of the condition precedent to use of Verdict Form (3). Under the controlling law at the time of defendant’s trial, the correct italicized portion should have read “or that those found to exist outweigh mitigating circumstances.”
This error may or may not have met the threshold for reversal under either K.S.A. 21-3414(3) or the Boyde standard. It does not matter. What matters is that it can, and should, be easily corrected on remand.
P14. Defendant’s Age of 18 or Older at Time of Capital Crime
After briefs were filed in this case, R. Carr sought and received permission to file a supplemental brief based on this court’s decision in State v. Cheever, 295 Kan. 229, 265, 284 P.3d 1007 (2012) (Jessica’s Law precedent on necessity of instruction that jury find defendant’s age of 18 or older at time of crime may apply in capital case penalty phase), cert. granted in part 133 S. Ct. 1460 (2013) and vacated and remanded, 134 S. Ct. 596 (2013). He asserted that Judge Clark erred by failing to instruct the jury it must find beyond a reasonable doubt that the defendants were 18 years old or older at the time of the capital murders, in order for the death penalty to apply. The State filed a responsive brief.
As in Cheever, we need not reach the merits of this issue today. Now that the State is aware of this potential appellate issue, it is highly unlikely that it will permit the jury in any new, severed penalty phase to begin deliberations without an instruction on R. Carr’s age at the time of the quadruple homicide.
P15. No-Adverse-Inference Instruction
R. Carr sought a no-adverse-inference instruction, which, when given in a guilt phase of a criminal prosecution at the time of the trial, would have provided:
“A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference of guilt from the fact that the defendant did not testify, and you must not consider this fact in arriving at your verdict.” PIK Crim. 3d 52.13.
J. Carr opposed the instruction, and Judge Clark did not give it.
The giving of such an instruction, if requested in a penalty phase, has been required in at least three of our sister jurisdictions and has been described as the wisest course in a fourth.
In State v. Storey, 986 S.W.2d 462, 463-64 (Mo. 1999) (enbanc), the Missouri Supreme Court reasoned:
“The privilege against self-incrimination guarantees the right to remain silent and the right not to have adverse inferences drawn from exercising the privilege. U.S. Const. amend. V; Mo. Const. art. I, sec. 19; Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 1121, 67 L. Ed. 2d 241 (1981). ‘[T]he Fifth Amendment requires that a criminal trial judge must give a “no-adverse-inference” jury instruction when requested by a defendant to do so.’ Carter, 450 U.S. at 300. There is ‘no basis to distinguish between the guilt and penalty phases of [a] capital murder trial so far as the protection of the Fifdr Amendment privilege is concerned.’ Estelle v. Smith, 451 U.S. 454, 462-63, 101 S. Ct. 1866, 1872-73, 68 L. Ed. 2d 359 (1981). Therefore, when a defendant does not testify in the penalty phase of a capital murder trial, tire court must give a ‘no-adverse-inference’ instruction if the defendant so requests.”
See State v. Munn, 56 S.W.3d 486, 501-02 (Tenn. 2001) (right against self-incrimination “so fundamental that [it] should be protected at all stages of criminal process”; criminal defendant has constitutional right to no-adverse-inference instruction during penalty phase when properly requested); Burns v. State, 699 So. 2d 646, 651 (Fla. 1997) (right against self-incrimination continues through sentencing phase of capital murder trial; failure to give requested no-adverse-inference instruction subject to harmless error analysis); see also State v. Arther, 290 S.C. 291, 298, 350 S.E.2d 187 (1986) (absent request, failure to give instruction not reversible error; but “better course is to give a no adverse inference charge in both the guilty and penalty phases of a capital trial”).
However, the United States Supreme Court has recently held that such a rule is not so clearly established by its precedent. See White v. Woodall, 572 U.S. _, 134 S. Ct. 1697, 1703, 188 L. Ed. 2d 698 (2014) (state court’s refusal to give no-adverse-inference instruction did not warrant federal habeas relief under Antiterrorism and Effective Death Penalty Act of 1996; Act requires showing of unreasonable application of Supreme Court precedent; discussing earlier cases holding court may not draw adverse inference from defendant’s silence when determining facts about crime that bear on severity of sentence).
Again, we need not reach the merits of this issue today or parse the applicable standard of review, because the situation giving rise to this claim can easily be avoided on remand. Assuming the State goes forward with severed penalty phase trials, the district judge will be able to avoid any question on appeal about a no-adverse-inference instruction by giving the instruction in the case of the defendant who desires it and not giving the instruction in the case of the defendant who does not.
P16. Capital Punishment for Aider and Abettor under K.S.A. 21-3205
This issue was raised in J. Carr’s brief to this court. We notice it on behalf of R. Carr under the authority of K.S.A. 2013 Supp. 21-6619(b), but we do not reach its merits.
The record on this appeal does not establish which of the two defendants was convicted of the murders of Heather M., Aaron S., Brad H., and Jason B. as a principal and which as an aider and abettor. Without that information, there is no factual predicate for examination of this issue.
P17. Capital Punishment for Aider and Abettor under Section 9
This issue was raised in J. Carr’s brief to this court. We notice it on behalf of R. Carr under the authority of K.S.A. 2013 Supp. 21-6619(b), but we do not reach its merits.
The record on this appeal does not establish which of the two defendants was convicted of the murders of Heather M., Aaron S., Brad H., and Jason B. as a principal and which as an aider and abettor. Without that information, there is no factual predicate for examination of this issue.
P18. Prosecutorial Misconduct
The defendants challenge what they believe to be numerous instances of prosecutorial misconduct during the penalty phase of their trial.
With the exception of one aspect of one issue raised by J. Carr in his direct appeal and unique to him, which we address in our opinion in his case to provide guidance, we need not reach the merits of the prosecutorial misconduct challenge today. Now that the State has been put on notice of the behaviors and comments by its prosecutors likely to give rise to appellate challenge, we are certain it will consider carefully whether engaging in the same behaviors or making the same or similar comments during any proceedings pursued on remand would be worth the substantial risk of undermining those proceedings.
P19. Dourle Jeopardy
J. Carr claims in his separate appeal that the wording of die verdict forms in this case pose a risk of double jeopardy in the future. We notice diis claim on behalf of R. Carr under the authority K.S.A. 2013 Supp. 21-6619(b).
Under the authority of State v. Burnett, 293 Kan. 840, 849, 270 P.3d 1115 (2012), we regard this claim as unripe and dius do not reach its merits.
P20. Execution Protocol
R. Carr alleges that the Kansas execution protocol is constitutionally deficient in three ways—because no doses of the execution drugs are specified, because qualifications for the IV team are not specified, and because there is no directive to ensure that the prisoner is unconscious before a second and a third drug are administered.
This issue was raised by way of pretrial motion in the district court, and the Secretary of the Department of Corrections testified at that time that the execution protocol was “evolving.” Judge Clark first said at the hearing on the motion that it was unripe and then in his written ruling that he presumed the Secretary of Corrections “will discharge the duties assigned to [him] in a constitutional manner, therefore the defendants’ motion shall be overruled.” Judge Clark made no findings of fact and issued no other conclusions of law.
This sparse record, made 12 years ago while the Kansas protocol was “evolving,” is simply inadequate for us to address the protocol’s constitutionality as of today. Moreover, given our other rulings in this opinion, R. Carr’s execution is merely a possibility, not a certainty. We therefore regard the issue as unripe, see Burnett, 293 Kan. at 850, and do not address its merits.
Conclusion for Penalty Phase
Because the district judge’s failure to sever the penalty phase of defendants’ trial violated R. Carr’s Eighth Amendment right to an individualized sentencing determination and cannot be declared harmless error, the death sentence on R. Carr’s remaining K.S.A. 21-3439(a)(6) conviction for the murders of Heather M., Aaron S., Brad H., and Jason B. is vacated. This case is remanded to district court for further proceedings consistent with this opinion.
Beier, J., concurring in part and dissenting in part: This case is hard. It is beyond hard. And those of us who have made a life in the law often repeat an old saying: Hard cases make bad law. See Northern Securities Co. v. United States, 193 U.S. 197, 364, 24 S. Ct. 436, 48 L. Ed. 679 (1904) (Holmes, J., dissenting); see also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 899, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (recognizing legal aphorism).
Unfortunately, it appears that three of the majority’s decisions on the guilt phase of this case are examples of why this old saying came to be. I must, therefore, respectfully dissent.
I. Cumulative Error
Considered collectively, cumulative error
“may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007).” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675(2009).
“If any one of the errors involves a constitutional violation, the harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), must be applied to the determination of whether the defendant was denied a fair trial.” State v. Armstrong, 299 Kan. 405, Syl. ¶ 10, 324 P.3d 1052 (2014). That is the standard that applies here.
A majority of this court has identified 11 errors in Reginald Carr’s trial on guilt.
• Six members of the court agree that District Court Judge Paul Clark erred by refusing to sever.
• All seven members of tire court agree that Judge Clark committed reverse Batson error by seating W.B after peremptory challenge by the defendants.
• All seven members of the court agree that Judge Clark erred in allowing the admission of Linda Ann Walenta’s statements through law enforcement testimony.
8 All seven members of the court agree that Judge Clark erred in interpreting and applying the third-party evidence rule and the hearsay rule, preventing R. Carr from pursuing his defense to the Birchwood crimes.
• All seven members of the court agree that Judge Clark gave a faulty instruction on the sex-crime-based capital murders.
• All seven members of the court agree that three of the multiple-homicide-based capital murder convictions were mul-tiplicitous with the first.
• All seven members of the court agree that the district court lacked subject matter jurisdiction over any sex crime charges based on coerced victim-on-victim sex acts.
• All seven members of the court agree that one of R. Carr’s convictions for the rape of Holly G. was multiplicitous with the other.
• All seven members of the court agree that Judge Clark erred by automatically excluding testimony from an expert on the reliability of eyewitness identifications.
• All seven members of the court agree that Judge Clark erred in instructing the jury to consider an eyewitness’ degree of certainty.
• All seven members of the court agree that Judge Clark erred by giving an aiding and abetting instruction that discussed foreseeable crimes.
Two of these errors, standing alone, at least arguably require reversal of all of R. Carr’s convictions.
It is hard to imagine, for instance, a single error with more pervasive likely impact on the direction and content of the evidence before the jury than Judge Clark’s refusal to sever the defendants’ prosecutions. See State v. Martin, 234 Kan. 548, 551-52, 673 P.2d 104 (1983) (antagonistic defenses, weaker evidence against one codefendant lead to reversal of codefendant’s convictions); Neill v. State, 827 P.2d 884, 885-90 (Okla. Crim. 1992) (antagonism between defendants arose out of testimony codefendants elicited on cross-examination, statements made by counsel during opening closing; “no judge could have protected the defendants against their own hostility”; “each [codefendant] could only convince the juiy of his own innocence by convincing them to convict his [cod-efendant]”; irreparable prejudice from failure to sever obvious); see also People v. Bailey, 182 Ill. App. 3d 867, 870-71, 538 N.E.2d 718 (1989) (trial “more of a contest between two defendants than between the People and each defendant”; reversible prejudice also arose from admission of codefendant’s statements to law enforcement); State v. Sauls, 356 N.W.2d 516, 517-19 (Iowa 1984) (law enforcement statements, trial testimony of each codefendant implicated other codefendant); Lafevers v. State, 819 P.2d 1362, 1366 (Okla. Crim. 1991) (no option but to reverse when codefendants’ “interlocking” statements placed both at crime scene but each claimed other committed rape, murder, burning of victim; both defendants testified; other errors in joint trial also identified); Silva v. State, 933 S.W.2d 715, 717-19 (Tex. App. 1996) (joint trial prevented admission of codefendant’s statement to impeach his testimony; clear prejudice shown).
And, as the majority describes, 16 of our sister states have either stepped into or already occupied the space expressly left open by the United States Supreme Court in its decision in Rivera v. Illinois, 556 U.S. 148, 161-62, 129 S. Ct. 1446, 173 L. Ed. 2d 320 (2009): They have declared reverse Batson error is not subject to harmlessness analysis or have treated it in a wray that makes this rule evident. See State v. Mootz, 808 N.W.2d 207, 225-26 (Iowa 2012) (“A defendant could only show prejudice by showing that the juror he sought to remove was biased. However, if the juror was biased, then the juror would be removable for cause, and the question regarding the peremptory challenge would become moot.”); see also Zanders v. Alfa Mut. Ins. Co., 628 So. 2d 360, 361 (Ala. 1993) (civil action); State v. Wright, 86 Conn. App. 86, 95-98, 860 A.2d 278 (2004); Elliott v. State, 591 So. 2d 981, 987 (Fla. Dist. App. 1991); Jackson v. State, 265 Ga. 897, 899, 463 S.E.2d 699 (1995); State v. Pierce, 131 So. 3d 136, 144 (La. App. 2013); Parker v. State, 365 Md. 299, 311, 778 A.2d 1096 (2001); Commonwealth v. Hampton, 457 Mass. 152, 164-65, 928 N.E.2d 917 (2010); State v. Campbell, 772 N.W.2d 858, 862 (Minn. App. 2009); Hardison v. State, 94 So. 3d 1092, 1101-02 (Miss. 2012); People v. Hecker, 15 N.Y.3d 625, 662, 917 N.Y.S.2d 39, 942 N.E.2d 248 (2010); State v. Short, 327 S.C. 329, 335-36, 489 S.E.2d 209 (Ct. App. 1997), aff'd 333 S.C. 473, 511 S.E.2d 358 (1999); State v. Yai Bol, 190 Vt. 313, 322-23, 29 A.3d 1249 (2011); State v. Vreen, 143 Wash. 2d 923, 932, 26 P.3d 236 (2001); People v. Gonzales, No. B224397, 2012 WL 413868 (Cal. App. 2012) (unpublished opinion); State v. Wilkes, No. 93-2408-CR-FT, 1994 WL 5547 (Wis. App. 1994) (unpublished opinion). And, 16 years before the United States Supreme Court decided Rivera, a panel of our Court of Appeals recognized the unknowable harm done by a reverse Batson error: “The proper use of the peremptory challenge is vital to the conduct of a criminal defendant’s defense. . . . Although it may seem minimal, the deprivation of even one valid peremptory challenge is prejudicial to a defendant and may skew the jury process.” State v. Foust, 18 Kan. App. 2d 617, 624, 857 P.3d 1368 (1993).
The overarching goal of Batson—race-neutral jury selection— and the record demonstrating that Judge Clark expressly denied R. Carr s selection of W.B. as the target of his last peremptory challenge because of R. Carr’s and W.B.’s shared race are in irreconcilable conflict. And, to me, the rationales and outcomes of our 16 sister jurisdictions and our Court of Appeals treating such a conflict as automatically reversible, standing alone, make sense. What good is a right to a peremptory challenge if violation of the right inevitably has no remedy?
But neither the court nor I need go this far in this case.
Under the cumulative error doctrine, I would hold that, when the refusal to sever and reverse Batson errors are considered in conjunction with the nine other errors the majority of the court has identified, reversal of all of R. Carr’s convictions is required. Research reveals no other Kansas appellate case affirming in the face of such a large number of mostly interlocking errors. Despite the public passion attached to this hard case—indeed, in part because of the public passion attached to this hard case—we should not begin disregarding errors that numerous or mutually reinforcing here.
I readily acknowledge that the evidence against R. Carr on the Andrew Schreiber and Birchwood incidents was unusually strong. But it was not inevitably invincible, particularly if the governing rules had shifted in the directions the majority holds that they should have. My colleagues and I simply cannot know with the degree of comfort generally required in a death penalty case, see State v. Marsh, 278 Kan. 520, 525, 102 P.3d 445 (2004), rev'd and remanded, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), and vacated in part, 282 Kan. 38, 144 P.3d 48 (2006) (heightened scrutiny applies to review of capital trial proceedings) (citing Beck v. Alabama, 447 U.S. 625, 637-38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 [1980]), that the contours of a severed guilt phase with no reverse Batson error and in which R. Carr was permitted to defend himself under a correct application of the third-party evidence and hearsay rules would have differed so little as to be insignificant. Any anticipated change in perspective could have intensified, had expert testimony on modern research on eyewitness identification been permitted, or had the aiding and abetting and eyewitness instructions contained no error.
II. Insufficiency of Evidence on Felony Murder
I also dissent from the majority’s decision that the State’s evidence of the attempted aggravated robbery underlying R. Carr’s felony-murder conviction in the killing of Walenta was sufficient. There was simply no proof that the man who accosted and shot Walenta in her driveway was trying to rob her, as opposed to committing or attempting to commit another inherently dangerous felony.
The hole in the prosecution’s case on the Walenta felony murder is far larger than that facing the State in the recent case State v. McBroom, 299 Kan. 731, 325 P.3d 1174 (2014). In that case, the State relied on evidence from a string of burglaries committed by two friends to support one friend’s participation in another burglary that led to the killing of the homeowner. We affirmed.
R. Carr’s participation was not the missing piece here. In fact, the State’s evidence on that was sufficient to satisfy a reasonable factfinder. The missing piece was the entire underlying felony. The State charged and Judge Clark instructed on only aggravated robbery. The circumstances surrounding the crime against Walenta were different enough from those when Schreiber and the five friends from Birchwood were the victims that the evidence against R. Carr in two other incidents could not supply the entire underlying crime in the Walenta incident.
III. Insufficiency of Evidence on Digital Rape
Finally, I also dissent from the majority’s holding that the evidence against R. Carr for aiding and abetting J. Carr’s rape of Holly G. through her digital self-penetration was sufficient. As base and coarse as J. Carr’s command may have been, based on Holly G.’s testimony, it did not eliminate other options for the achievement of his goal. On this evidence, a rational factfinder could not find guilt beyond a reasonable doubt on Count 41. Accordingly, I would affirm R. Carr s Count 42 conviction for aiding and abetting J. Carr’s rape of Holly G., because reversal of the Count 41 conviction renders any multiplicity issue moot.
Conclusion
The facts of this case are so vivid, the wrongs done to the victims so callously inflicted, that any human cannot help to be tempted by the siren song of retribution. The song is what makes this case hard; it robs the sailor of reason. But it is the job of judges to resist making bad law, even when the siren’s seductive power is at its height. This hard case must be treated as other, less hard cases are treated.
I would reverse all of R. Carr’s convictions under the doctrine of cumulative error and would remand the entire case to the district court for further proceedings scrubbed of the 11 errors tire majority of the court has identified.
Luckert and Johnson, JJ., join the foregoing concurring and dissenting opinion.
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The opinion of the court was delivered by
Johnson, J.:
Quartez Brown (Quartez) directly appeals from his convictions for felony murder, the alternative charge of second-degree murder, aggravated burglary, and aggravated assault. The charges arose out of an incident in which Quartez, Kevin Brown (Brown), Kiara Williams, and Jalessa Bonner went to the apartment of Otis Bolden, where Quartez and Brown entered the apartment, assaulted Ashley Green with a handgun, and fatally shot Bolden.
Quartez contends: (1) The district court abused its discretion in not inquiring into the reasons behind his pro se motion for new counsel before allowing its withdrawal outside Quartez’ presence and without a hearing; (2) insufficient evidence supported his aggravated burglary, felony murder, and aggravated assault convictions; (3) the district court should have given lesser included offense instructions on voluntary manslaughter, reckless second-degree murder, and involuntary manslaughter; (4) the district court erred in journalizing his second-degree murder conviction as an off-grid crime; and (5) the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by considering his prior convictions at sentencing.
Finding that the district court erred in not inquiring before allowing the apparently nonconsensual withdrawal of Quartez’ pro se motion for new counsel, we remand on this issue. We also remand for a nunc pro tunc order correcting the severity level of Quartez’ second-degree murder conviction. We reject Quartez’ remaining claims of error.
Facts and Procedural Background
The events leading to this criminal prosecution began to unfold in the early morning hours of April 26, 2010, when Williams and Bonner, together with their friend, Rika Evans, left a local club and gathered at Bolden’s apartment, along with Reader Watley. After Bonner accompanied Bolden into his bedroom, she interpreted a comment he made as indicating that he had participated with a group of men who had raped her some 2 years earlier. That prompted Bonner to ask to leave the apartment.
Bolden drove the three women—Bonner, Williams, and Evans—to the home of Bonner and Evans on Glendale, albeit Williams would return to Bolden’s apartment to stay the night. En route back to his apartment, Bolden picked up Green. Bolden and Green spent the night in his bedroom, while Williams and Watley spent the night on the couch. There was conflicting testimony as to whether there was any sexual activity involving Williams. Watley drove Williams home the next morning.
That same morning, Bonner told her boyfriend, Brown, about Bolden’s involvement in her prior rape. Additionally, according to Bonner, Williams told Brown that Watley and Bolden had sexually assaulted her the night before. Brown then called his cousin, Quar-tez, who came to the Glendale house where the group discussed a course of action. Evans noted that Brown was visibly upset but Quartez was not. Quartez, Brown, Williams, and Bonner left in Quartez’ car to go to Bolden’s house. Evans and Bonner both testified that they believed the Brown cousins intended to fight Bol-den but neither believed the men would kill Bolden. But on the way to Bolden’s house, the group stopped at “Drop’s” house, ostensibly to pick up firearms.
The Brown cousins were not friends with Bolden and had never been to Bolden’s apartment, so Bonner directed them. When the group arrived at the apartment complex, Quartez backed into a parking spot. The Brown cousins left the car and opened the unlocked door to Bolden’s apartment. They first encountered Green in the living room and, at gunpoint, (Erected her to lie on the ground and asked for Bolden’s location. Initially, Green thought the men were Bolden’s friends that were “playing” with him. Nevertheless, Green was afraid and felt threatened by the cousins’ actions. The cousins proceeded to the bedroom indicated by Green, and she heard gunshots, together with the inquiry, “[W]hy did you rape my home girl?” Green then heard a window shatter and saw one of the assailants exit the apartment through tire living room. Apparently, Bolden jumped through a bedroom window and attempted to get away, although he would be discovered later on the sidewalk at the complex.
When Bonner saw Bolden limping around tire apartment building, she moved to the driver s seat of the vehicle and retrieved the Brown cousins. The group briefly stopped at Drop’s house before returning to the Glendale house. Once back at the Glendale house, Bonner asked Brown what happened at Bolden’s apartment. He explained that they were just going to talk to Bolden, but it looked as if Bolden was about to reach for something in his side-table drawer, so Brown shot him. Brown said that after his gun jammed, Quartez shot.
Passersby discovered Bolden on an apartment complex sidewalk and summoned emergency personnel, who transported Bolden to the hospital, where he died from multiple gunshot wounds. Bolden had superficial wounds at his genital area and an entrance and exit wound on his left thigh, but the majority of Bolden’s gunshot wounds entered his body from the back side.
A crime scene investigation revealed no signs of forced entry into Bolden’s apartment. In the bedroom, an investigator found five .25 caliber shell casings, one .45 caliber shell casing, and a Bluetooth earbud that was still blinking. The deoxyribonucleic acid (DNA) profile found on the earbud was a mixture of at least three individuals, but the DNA of the major contributor was consistent with Quartez’ profile. At trial, the State presented three photos from Quartez’ cellphone depicting a man presumed to be Quartez wearing a Bluetooth earbud.
Based on these events, the State charged Quartez with first-degree premeditated murder, or in the alternative, first-degree felony murder, aggravated burglary, and aggravated assault. Before his trial began, Quartez filed a pro se motion requesting the district court to appoint him new counsel. The motion was set for a hearing, but on the day the hearing was scheduled, the record indicates that the motion was withdrawn. The record does not indicate who withdrew the motion. The motion is not discussed again on the record until Quartez mentioned it during his sentencing hearing.
A jury found Quartez guilty of first-degree felony murder, second-degree murder as a lesser included offense of first-degree premeditated murder, aggravated burglary, and aggravated assault. The district court did not impose a sentence for the second-degree murder conviction, but at the request of the State and with defense counsel’s approval, the district court did not dismiss the second-degree murder conviction. The district court then imposed sentences of 20 years to life imprisonment and postrelease supervision of life for the felony-murder conviction, 34 months’ imprisonment for aggravated burglary, and 12 months’ imprisonment for aggravated assault, ordering the sentences to run concurrently.
Of the other three participants, Bonner entered a plea, was sentenced, and has not appealed. The other two—Brown and Williams—went to trial, were convicted, and have appeals pending before this court which were heard on the same docket with Quar-tez’ case. However, the three pending appeals raise completely different issues, prompting us to treat them as separate cases.
Withdrawal of Pro Se Motion for New Counsel Without Inquiry
Quartez first argues that the district court abused its discretion in allowing someone to withdraw his pro se motion for new counsel without making a sufficient inquiry into the circumstances prompting the motion. The State does not defend the district court’s actions on the merits, but rather it counters with a procedural strategy. Specifically, the State contends that, pursuant to K.S.A. 2013 Supp. 22-3501, Quartez only had 14 days to make his claim for a new trial and that his oral motion at sentencing was too late, depriving the district court of jurisdiction to consider the claim of error, and, thus, precluding our consideration of his complaint.
Standards of Review
Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
If we clear the jurisdictional hurdle, we review the district court’s inquiry into a potential conflict of interest under the abuse of dis cretion standard. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013). That standard is stated as follows:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
The defendant bears the burden of showing that the district court abused its discretion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
Analysis
Before proceeding further, we pause to observe that this case highlights how a cavalier approach to making a record in the district court can impede, if not foreclose, a meaningful appellate review and, thus, needlessly consume scarce judicial resources. In a case from the same judicial district, where the practice is to memorialize rulings on motions with preprinted minute sheets upon which the presiding judge inks a checkmark in a box or two and, perhaps, scribbles a few words of ciyptic explanation, we set forth the following cautionary instruction:
“It is true that to facilitate a meaningful appellate review, the district court must make sufficient findings of fact and conclusions of law on the record. State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000); Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239). This obligation is emphasized in Rule 165, which states in part that ‘[i]n all contested matters submitted to a judge without a jury . . . , the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.’ ” (Emphasis added.) State v. Edwards, 290 Kan. 330, 335, 226 P.3d 1285 (2010).
Unfortunately, a scant 9 months after the foregoing statement of a district court’s obligation to explain its ruling, the Eighteenth Judicial District failed to do so in this case. There is no record that a judge made an oral ruling on the motion’s disposition and the written ruling is a checkmark in the box next to the preprinted words, “Withdrawn,” on a minute sheet.
What we do know from the record is that, before his trial began, Quartez filed a pro se mo don requesting that the district court appoint him a new defense counsel. The motion alleged that there had been a “lack of performance” by current counsel, as well as a “complete breakdown of communication,” whereby current counsel “refus[ed] to communicate ‘at any level.’ ” The motion also alleged that Quartez was filing a complaint against his attorney with the office of the Disciplinary Administrator.
The record also tells us that the motion was set for hearing before District Judge Warren M. Wilbert, to be heard on January 21, 2011. But there is no record of a hearing being held on that date; we only have the minute sheet indicating that the motion was withdrawn. Moreover, the appearance docket lists District Judge Gregory L. Waller as the presiding judge on the hearing date, and the illegible signature affixed to the minute sheet appears to match an earlier order that identified Judge Waller as the signatory. As we have suggested, the minute sheet does not reveal who requested the withdrawal or whether the movant consented to that disposition.
As the State points out, the record does not reveal whether Quar-tez repeated his complaints about his defense attorney prior to or during his jury trial, which was presided over by yet another judge, District Judge Anthony Powell, who also presided over the sentencing. But at sentencing, when Quartez was specifically asked by the court whether he had anything to say, the following colloquy occurred:
“THE DEFENDANT: Yes, I would like to say something. The first thing I would like to say—I wrote this down. This is information on the record. December 29th, 2010, I filed a motion to fire my attorney. I was set a court day for this motion on January 21st, 2011. My lawyer then came to see me and pleaded with me not to fire him. I told him that I did not wish to speak with him until court. When my court date came, I never was called to be in the courtroom. My lawyer came in on a later visit and said that the judge withdrew my motion, so this whole time I’ve been trying to fire him and never got a chance to hear it in front of a judge. I feel with me not given die appropriate—opportunity to fire him, I might have had a greater chance at being—beating my case because he was not working in my favor.
“MR. [STEVEN] MANK [Defense counsel]: Well, that’s news to me, Judge.
“THE COURT: Well, Mr. Brown, that’s really something. I find your statement to be, with all due respect, outrageous. You have got one of the best lawyers in this community. Mr. Mank is one of the most respected, able defense attorneys—
“THE DEFENDANT: Well—
“THE COURT:' Don’t speak. Do not speak—that I’ve had the pleasure to work with. And I think anyone, and you ask any lawyer, and they would say the same thing about Mr. Mank. The fact is, from my observations in court, you got an able defense, I think the best under the facts of the case. The facts are what the facts are, and you’re responsible for tiróse facts.
“I think for you to come into this court now on the date of your sentencing and to raise an issue of why—that you wanted to fire your lawyer, I find that to be particularly troubling to this Court. But you have tire right to file such a motion and you can make tiróse proper motions if you wish to do so, but I will tell you right now that my observations of defense counsel, that his representation was more tiran is constitutionally adequate. It was superior in every respect. And it’s unfortunate that you seek, even today, even after what you’ve heard, seek to blame others for your predioament. The only reason that we’re here is because of what you did.
“One of the speakers said that you’re a follower when leadership was required, and here at the opportunity that I give you to make some amens, you choose once again to be a follower and not a leader, and I find it to be most despicable, with all due respect, sir. What you’ve done—and tire reason I allowed tire victims to speak is so you would understand tire gravity of the acts drat you’ve done, drat you would understand that the things tirat you’ve done can’t be undone, and it would appear tirat all that appears to be lost on you and you want to talk about firing your lawyer. I just—I find it incredible. Mr. Mank was appointed to this case. He didn’t ask to serve. He was asked by the court to serve. Mr. Mank can go and do private work and get paid far more money for far less hassle, but he agreed to represent you for the minimal amount that the government, tirat the State pays because he knew that you were entitled to a defense. Unbelievable.
“MR. MANK: Judge, if I may add something for tire record. I met with my client last Thursday. We went over the presentence investigation report. We discussed sentencing. None of this was mentioned to me.
“THE DEFENDANT: Your Honor, I asked for him to take some of my things and to defend me. Because I have things that I did want him to say tirat he did not say, and I asked him to file motions tirat I would need him to file but also—
“THE COURT: You’re not the lawyer in this case, are you, Mr. Brown? You’re not the lawyer. You don’t have legal training. Right?
“THE DEFENDANT: But I also—
“THE COURT: Mr. Mank has the right to decide your trial strategy, not you. He’s the one with the legal knowledge. Why do you think that you want to play lawyer?
“THE DEFENDANT: I didn’t want to player lawyer, Your Honor. I just wanted him to ask these questions. And I also have an apology to the family also, but I just wanted to bring this forward.
“THE COURT: Mr. Brown, you have the right to file a motion, an action alleging ineffective assistance of counsel after your appeals are exhausted. Once your appeals are exhausted, you have a year from that time to file any ineffective assistance of counsel claims that you wish to do. So I’ll just advise you of your right to do that, and if you wish to do it at that time you can do it.”
Jurisdiction
The State sets up its jurisdictional argument by characterizing Quartez’ statements at allocution as a motion for new trial based upon ineffective assistance of trial counsel. Then, it shoots down the “new trial motion” as untimely because it was made more tiran 14 days after the trial ended. See K.S.A. 2013 Supp. 22-3501(1) (new trial motion on any other grounds than newly discovered evidence must be filed within 14 days of verdict or finding of guilty). Curiously, the State’s brief also points out the Tather obvious circumstance that the timely filed new trial motion, prepared and filed by trial counsel, did not claim that the district court erred in not removing trial counsel. That would have certainly placed trial counsel in a conflicted posture.
Nevertheless, as we read the defendant’s statements at sentencing, he is complaining that the district court refused to hear his pro se motion for new counsel, which was timely filed, prior to trial. His complaint on appeal is that the district court failed to perform its duty to inquire into a potential conflict he had with his attorney, after being put on notice of the conflict by defendant’s pro se motion. In recent direct appeals, this court has considered the issue of a trial court’s duty to inquire into a potential attorney conflict. See, e.g., State v. Sharkey, 299 Kan. 87, 322 P.3d 325 (2014); Stovall, 298 Kan. 362; State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013). We see no jurisdictional impediment to do so again in this case.
Failure to Inquire
We begin by stating the well-known principle that both our federal and state constitutions guarantee the' right of criminal defendants to have the assistance of counsel. That right to counsel “requires more than the presence of an attorney; it guarantees the right to effective assistance from the attorney.” (Emphasis added.) State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012).
Yet, our constitutions do not guarantee the defendant the right to choose which attorney will be appointed to represent the defendant. If a defendant seeks substitute counsel, the defendant “must show justifiable dissatisfaction’ with his or her appointed counsel,” which can be “demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.” Wells, 297 Kan. at 754. The defendant bears the responsibility of providing “ ‘an articulated statement of attorney dissatisfaction,’ ” which will, in turn, “ Trigger the district court’s duty to inquire into a potential conflict’ ” of interest. (Emphasis added.) Wells, 297 Kan. at 755 (quoting State v. Rand, No. 106,774, 2012 WL 6634397, at *5 [Kan. App. 2012] [unpublished opinion]); see also State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999) (discussing Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097, 67 L. Ed. 2d 220 [1981], for proposition that district court aware of possible conflict of interest between attorney and defendant charged with felony has “a duty to inquire further”).
Here, Quartez’ motion for new counsel contained sufficient information to trigger the district court’s duty to make further inquiry. The record does not reflect that the district court even attempted to fulfill that duty.
To the contrary, Quartez’ in-court statement suggesting that the judge sua sponte withdrew the motion without Quartez’ consent and without his knowledge is the only statement before us as to what occurred. Contrary to tire State’s argument, we view the defense counsel’s response—“Well, that’s news to me, Judge”—as being ambiguous, at best, especially in the context of counsel’s later statements. Interestingly, the sentencing transcript does not reflect that either the sentencing judge or the prosecutor attempted to refute Quartez’ description of how his pro se motion for new counsel was handled. That description, in addition to raising due process concerns, obviously refutes the notion that the district court made the requisite inquiry into whether the alleged problems between Quartez and his attorney rose to the level of justifiable dissatisfac tion. Moreover, when the court was given another opportunity to inquire during defendant’s allocution at sentencing, the court actually prevented defendant from providing further information on the conflict by demanding that he not speak while the judge gratuitously and strenuously opined on trial counsel’s virtues. We have recently found such a failure to inquire to be an abuse of discretion. See State v. Sharkey, 299 Kan. at 98 (district court abused its discretion by failing to make appropriate inquiry into potential conflict of interest); Stovall, 298 Kan. at 370 (district court abuses its discretion when it makes no inquiry into nature of conflict).
Quartez relies heavily on State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006), where this court held that the trial court abused its discretion by failing to consider the defendant’s pretrial pro se motion to discharge counsel. Vann followed up with a letter to the clerk inquiring about the motion and later requested to proceed pro se, but he did not mention the motion for new counsel again until the hearing on his motion for new trial. The district court told Vann that he should have raised the new counsel issue when the court considered his other pro se pretrial motions. Vann complained again at sentencing, arguing that he could not have had a fair trial when he and his counsel had a conflict of interest. The district court ignored the complaint and proceeded to sentencing. The Court of Appeals similarly rejected Vann’s arguments, ruling that Vann had multiple opportunities after he filed his pro se motion to discharge his counsel to bring the motion to the court’s attention and failed to do so until posttrial, which the Court of Appeals deemed to be too late.
This court disagreed with the lower courts, finding that the district court knew of Vann’s pretrial motion to discharge his counsel, his follow-up letter to the clerk, and his pretrial motion to proceed pro se, and that knowledge, together with the posttrial assertions of a conflict, rendered the court’s failure to inquire an abuse of discretion requiring remand to the district court. Vann, 280 Kan. at 792. The State’s attempt to distinguish Vann as a case involving the right to proceed pro se is unavailing. But we must clarify the portion of Vann that distinguished the prior Court of Appeals de- cisión in State v. Boyd, 27 Kan. App. 2d 956, 965, 9 P.3d 1273, rev. denied 270 Kan. 900 (2000).
In Boyd, the Court of Appeals rejected Boyd’s argument that the trial court violated his constitutional rights by ignoring his pro se pretrial motion to dismiss counsel, reasoning as follows:
“There is nothing in the record to indicate that Boyd ever objected to the appearance of his trial counsel. Boyd appeared with his attorney at the motions hearing, the jury trial, the motion for new trial, and at sentencing. He had ample opportunity to object to the presence of his attorney. Also, an issue not presented to the trial court, as is the case here, will not be considered for tire first time on appeal.” 27 Kan. App. 2d at 965.
Vann distinguished Boyd by noting that Vann had “raised the issue of his pro se motion for new counsel on repeated occasions before the district court.” Vann, 280 Kan. at 790. While that factual distinction was present, we discern that Boyd’s rationale simply does not comport with our current decisions. A district court’s duty to inquire into a potential attomey/client conflict emanates from its responsibility to assure that a defendant’s constitutional right to effective assistance of counsel is honored. Sharkey, 299 Kan. at 96 (quoting State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 [2007]). The duty to inquire accrues when the court first learns of the potential conflict, and that duty does not decay or dissipate just because a pro se defendant fails to give the court multiple reminders of its duty throughout the proceedings. As noted in Wells, what a defendant is obligated to do to invoke the trial court’s duty to inquire is to provide an articulated statement of attorney dissatisfaction. 297 Kan. at 754. We decline to add a further requirement of repetitive notice.
We pause to clarify that we are not saying that a district court cannot permit a pro se movant to withdraw his or her motion for new counsel. But such a withdrawal must be the personal, voluntary, and knowing act of the defendant, and the record must reflect that circumstance. Otherwise, a district court receiving a motion for new counsel that contains an articulated statement of attorney dissatisfaction acquires the duty to make reasonable inquiry into the potential conflict of interest and the failure to do so constitutes an abuse of discretion. Moreover, after a defendant has triggered the district court’s duty to inquire into a potential attomey/client conflict, the defendant does not thereafter waive his or her right to conflict-free counsel by failing to renew the motion for new counsel periodically throughout the proceedings.
Here, the record reflects that Quartez triggered the district court’s duty to inquire into a potential attorney/client conflict with his pro se motion for new counsel. The record does not reflect that Quartez personally, voluntarily, and knowingly withdrew the motion, and tire record does not reflect that the district court made an inquiry into the potential conflict of interest. Consequently, the district court abused its discretion.
On the other hand, as the State points out, this court is not in a position to make the factual findings that would be necessary to reverse Quartez’ convictions. Without the district court’s inquiry we do not have a suitable record on appeal to assess the alleged conflict of interest or to determine whether any conflict found to exist “ ‘adversely affected his counsel’s performance.’ ” Vann, 280 Kan. at 792 (quoting State v. Gleason, 277 Kan. 624, 653-54, 88 P.3d 218 [2004]). Therefore, we remand with instructions for die district court to conduct a hearing on Quartez’ claim of attorney dissatisfaction, at which the defendant is to be represented by conflict-free counsel. At the conclusion of the hearing, the district court shall determine whether Quartez has established justifiable dissatisfaction with his counsel and whether that conflict adversely affected the adequacy of the attorney’s representation.
Sufficiency of the Evidence
Quartez also argues that insufficient evidence supported his aggravated burglary, felony murder, and aggravated assault convictions. Notwithstanding our remand on the first issue, we must analyze the sufficiency issue to determine whether Quartez is entitled to an outright reversal.
Standard of Review
Our standard of review for sufficiency of the evidence challenges is well established:
“When the sufficiency of evidence is challenged in a criminal case, this court reviews all the evidence in the light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In determining whether there is sufficient evidence to support a conviction, this court will not reweigh the evidence or reassess the credibility of the witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).” State v. Brown, 298 Kan. 1040, 1054, 318 P.3d 1005 (2014).
Aggravated Burglary
One of Quartez’ convictions was for aggravated burglary, which is defined in K.S.A. 21-3716 as “knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony . . . therein.” In this case, the jury was instructed that die State had to prove the following elements:
“1. That the defendant knowingly entered a building;
“2. That the defendant did so without authority;
“3. That the defendant did so with the intent to commit aggravated assault [against Bolden] a felony therein;
“4. That at the time there was a human being in the building; and
“5. That this act occurred on or about the 26th day of April, 2010, in Sedgwick County, Kansas.” (Emphasis added.)
Quartez asserts that the State failed to present sufficient evidence to prove diat his entry into Bolden’s apartment was without authority. Quartez points to State v. Harper, 246 Kan. 14, 25-26, 785 P.2d 1341 (1990), where this court found that the legislature intended “entry without audiority and entry with intent to commit a felony or theft to be two separate elements.” While Harpers legal holding is applicable here, the factual differences in this case do not mandate the same result.
In Harper, the defendant had an “extremely broad grant of authority to enter and use” the office at a softball complex where he worked. 246 Kan. at 25. Specifically, Harper had a key to the office and authority to enter the office for his duties as the complex’s groundskeeper, in his role as umpire, for the construction work he was contracted to perform for the complex, and when he had too much to drink to drive home. The Harper court found that because he had authority to enter the building, he could not be convicted of burglary even though he did not have permission to taire the records he was in the office to obtain. The court reasoned that Harper’s authority to enter the office was not negated even where his entiy was for an unlawful purpose. 246 Kan. at 20.
Quartez argues that his authority to enter the apartment emanated from the fact that Bolden did not lock the door to his apartment and did not even have a key to tire entry door. Apparently, Quartez believes that an unlocked entry door is an invitation for anyone to walk into the abode unannounced at any time. One can only imagine the euphoria among members of law enforcement upon learning that an unlocked apartment door provides them with the authority to enter at will. Of course, such a ludicrous proposition does not comport with either common sense or the law. Any rational person should know that, without more, a closed door at a residence—whether locked or not—signals the need to obtain permission to enter. Legally, our legislature “eliminated the common-law requirement that a burglary involve a ‘breaking.’ ” State v. Storey, 286 Kan. 7, 12, 179 P.3d 1137 (2008) (citing Judicial Council Comment, 1968, to K.S.A. 21-3716 [Weeks]); see also 3 Wharton’s Criminal Law §§ 317-318 (15th ed. 1995) (“There is an actual break if the defendant makes an opening in the dwelling house, i.e., he removes some obstruction in order to enter. ... It is enough merely that he open a closed but unlocked door.”). Here, Green testified that Quartez and Brown opened the door to enter the apartment unannounced and without permission.
Quartez also argues that he had apparent permission to enter the apartment, based upon: (1) Watley’s testimony that people came and went as they pleased from Bolden’s apartment and people “crashed” there; and (2) Green’s testimony that she initially thought Quartez and Brown were playing a joke on Bolden. Again, we reject the premise. Granting some people permission to enter the apartment at will does not imply that all persons have the same authority. See State v. Fondren, 11 Kan. App. 2d 309, 315-16, 721 P.2d 284 (discussing implied and express authority with respect to school building), rev. denied 240 Kan. 805 (1986).
Here, viewing the evidence in tire light most favorable to the State, the Brown cousins did not have either express or implied authority to enter Bolden’s apartment. Bonner testified that she did not believe that the cousins had permission to enter the apartment and Bolden did not invite them in. Bonner further explained that prior to the early morning in question, she had never been to Bolden’s apartment and, to her knowledge, Brown and Bolden were not friends and the Brown cousins had not previously been to Bolden’s apartment. The evidence that other people freely entered and left Bolden’s apartment did not establish an implied authority for strangers to enter the apartment uninvited. Consequently, we find that the State presented sufficient evidence to establish all of the elements of aggravated burglary.
Felony Murder
Quartez next argues that the State presented insufficient evidence to support his felony-murder conviction because the evidence was insufficient to support the underlying felony of aggravated burglary. We can dispose of this issue forthwith.
First, the State was not required to prove that Quartez was convicted of the aggravated burglary, just that the killing was done while he was in the commission of the underlying felony. See State v. Wise, 237 Kan. 117, 122-23, 697 P.2d 1295 (1985) (completion of underlying felony not essential element of felony murder; acquittal of underlying felony not inconsistent with felony-murder conviction). Nevertheless, the simple answer is that the State did present sufficient evidence of the underlying felony, so that the evidence was sufficient for the felony-murder conviction, as well.
Aggravated Assault
Quartez’ final sufficiency of the evidence challenge is to his conviction for the aggravated assault against Ashley Green. Aggravated assault under K.S.A. 21-3408 and K.S.A. 21-3410(a) “is intentionally placing another person in reasonable apprehension of immediate bodily harm” committed with a deadly weapon. Quartez argues the State did not prove Green was in immediate apprehension of bodily harm. See Spencer v. State, 264 Kan. 4, 6, 954 P.2d 1088 (1998) (“[Tjhere can be no crime of assault without apprehension by the victim of bodily harm.”).
Quartez argues Green’s direct examination established that she was not afraid until after the threat to her had passed. The following exchange occurred after Green described the shooting:
“[Prosecution] Q. Okay. Wliat were you doing this whole time?
“A. On the floor, covering my eyes, praying, head down.
“Q. Were you—this may seem hice a silly question, but were you afraid?
“A. Yes.”
Quartez also argues that Green’s cross-examination established that Green thought that the Brown cousins were friends of Bol-den’s, did not threaten her, and did not seem interested in her. Quartez’ argument is based upon die following exchange:
“[Defense counsel] Q. After the two guys came in, it appeared to you that they weren’t even interested in you, didn’t it?
“A. I don’t know.
“Q. I mean, they told you to get down and they went into Otis’s room?
“A. Yeah.
“Q. They didn’t even threaten you, did they?
“A. No. I mean'—
“Q. You even told the detective that you thought initially they were his friends, didn’t you?
“A. (Witness nodding head.) Yeah.
“Q. And why did you think that?
“A. I thought they was playing. I didn’t know.
“Q. So—
“A. I didn’t know. I didn’t know. I thought they was playing. I didn’t know that'—I don’t know.
“Q. Were those the land of friends that Otis would have as somebody that would come into his house, carrying guns?
“A. I don’t know.
“Q. But that’s what you thought, they could be his friends?
“A. I don’t know.”
On redirect examination, the prosecutor asked Green: “[Defense counsel] asked you did they ever threaten you. Did the two people who came in the apartment point their guns at you?” Green responded: “That’s considered a threat to me.”
Quartez relies on State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), in which the defendant was convicted of aggravated assault for pointing a gun at his mother-in-law, after he had shot his wife. The mother-in-law was holding the defendant’s baby and testified that she did not fear for her own safety because she thought Warbritton would hit the baby first if he shot and would not hurt her. A majority of this court reversed the aggravated assault conviction because the victim’s testimony negated the element that she be placed in immediate apprehension of harm to herself. 215 Kan. at 538.
Without commenting further on the Warbritton opinion, we find that tire facts presented here are more akin to those in State v. Lessley, 271 Kan. 780, 26 P.3d 620 (2001). There, Lessley confronted his ex-girlfriend, Lisa Sears, with a gun in an apartment complex parking lot. During the confrontation, Sarah and Darrell Blackman drove toward Lessley and Sears. Sears blocked the path of the Blackmans’ car and asked them to stop. Sarah rolled down the car window, and Sears pleaded with the Blackmans not to drive away. Lessley showed Sarah his gun and told the Blackmans to continue driving. After the Blackmans drove away, Lessley shot and killed Sears.
On appeal, Lessley argued Warbritton entitled him to relief because the State did not present sufficient evidence that Sarah was placed in immediate apprehension of bodily harm. Lessley relied upon Sarah’s testimony during cross-examination that she did not feel threatened as long as she did not get involved. She explained on redirect examination that she felt if she and her husband got involved, their lives would be at stake and that she felt threatened. On recross-examination, Sarah agreed that Lessley had not verbally threatened her life and “ ‘[h]arm was not being immediately threatened against’ her.” 271 Kan. at 788.
After discussing both the majority and dissent in Warbritton, the Lessley majority concluded that despite Sarah’s testimony that she did not feel threatened as long as she complied with Lessley’s demands, “Sarah obviously had great fear for her safety and well-being.” 271 Kan. at 790. The majority focused on the evidence establishing that Sarah was less than 3 feet from a man with a gun, panicked when she saw the gun and asked her husband to keep driving, and was hysterical while she and her husband looked for a telephone to call for help. The dissent focused on the notion that Sarah did not feel threatened if she complied with Lessley’s demands. 271 Kan. at 800 (Allegrucci, J., dissenting).
Similarly, in State v. Hurt, 278 Kan. 676, 688-89, 101 P.3d 1249 (2004), this court found sufficient evidence to establish reasonable apprehension of immediate bodily harm notwithstanding some inconsistent testimony from the victim. Pointedly, in Hurt, the victim ran away when Hurt pointed a gun at him and then Hurt fired the weapon at tire victim as he ran away. Certainly, the victim’s actions were most consistent with his testimony that he was scared when he ran away from tire gun and the shots.
Unlike in Warbritton, we are not faced with unequivocal testimony that Green was not afraid for herself. See 215 Kan. at 537-38. At most, the defendant can point to some inconsistencies in the victim’s testimony, as in Lessley and Hurt. Although Green testified that she initially thought the men might be playing a joke on Bolden, she clearly said that she considered it a threat when they pointed the guns at her. Moreover, if she were not afraid, why did she immediately comply with the armed men’s demand to get on the ground? If a person complies with a demand made at gunpoint, it is logical to infer that the compliance was motivated by a fear of bodily harm. If Green truly did not experience an apprehension of immediate bodily harm, she would not have hit the ground and given up the location of Bolden. See State v. Nelson, 224 Kan. 95, 96, 577 P.2d 1178 (1978) (noting that circumstantial evidence can establish victim’s fear of bodily harm); see also State v. Powell, 266 Kan. 282, 291, 971 P.2d 340 (1998) (noting that because the Warbritton opinion did not discuss circumstantial evidence, this court must assume there was none). The evidence was sufficient to support the juiy’s conviction for aggravated assault.
Lesser Included Offense Instructions
Quartez next contends that the district court erred in denying his requested lesser included offense instructions on voluntary manslaughter, reckless second-degree murder, and involuntary manslaughter. Obviously, if the district court determines, after conducting the aforementioned hearing with conflict-free defense counsel, that a conflict existed between Quartez and his trial coun sel that adversely affected the adequacy of trial counsel’s representation, the district court will order a new trial and the instruction issues presented in this appeal will be moot. But we proceed to determine whether the instruction issues provide an independent basis for ordering a new trial for Quartez as a prophylactic measure against the possibility that the district court would determine that the conflicted counsel issue did not warrant a new trial, standing alone. Cf. State v. Sharkey, 299 Kan. 87, 101, 322 P.3d 325 (2014) (clarifying that a new trial contingent on district court’s decision at remand hearing on ineffectiveness of counsel).
Standard of Review
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Voluntary Manslaughter
There is no dispute that Quartez properly preserved this issue for appellate review by requesting a voluntaiy manslaughter instruction as a lesser included offense of second-degree murder. The requested instruction was also legally appropriate. This court has “held on numerous occasions that voluntary manslaughter is a lesser included offense of both first- and second-degree murder as a lesser degree’ of those crimes under K.S.A. 21-3107(2)(a).” State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).
Even if an instruction is legally appropriate, the instruction is only required when “ ‘there is some evidence which would reasonably justify a conviction of [the lesser included offense.]’ ” Plummer, 295 Kan. at 161 (quoting K.S.A. 22-3414[3]). Where, as here, die defendant has requested the instruction, the evidence is viewed in the light most favorable to the defendant. 295 Kan. at 162. But this court still gives deference to the district court, in that this court does not reweigh the evidence or pass on witness credibility. 295 Kan. at 162.
Under the theory propounded by Quartez on appeal, voluntary manslaughter required the “intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403. The key elements of voluntary manslaughter under K.S.A. 21-3403(a) are (1) an intentional killing, and (2) legally sufficient provocation. State v. Foster, 290 Kan. 696, 711, 233 P.3d 265 (2010) (citing Gallegos, 286 Kan. at 874). Quartez argues that the jury could have concluded the killing was intentional, but was a result of heat of passion.
“In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). “Heat of passion” is “any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse -without reflection.” 236 Kan. at 796; see also State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012) (“The hallmark of heat of passion is taking action upon impulse without reflection.”).
Quartez relies on the reports of sexual assault by Bonner and Williams as the provocation for the Brown cousins’ attack on Bol-den. We find Quartez’ argument to be unavailing for at least two reasons: The evidence did not establish that Quartez’ emotional state reached the level to be described as a heat of passion; and, even if tire alleged provocation initially generated a heat of passion, there was a sufficient cooling-off period to preclude the defense.
First, Quartez cannot point to any evidence that he experienced an intense or vehement emotional excitement. To the contrary, Evans testified that aldrough Brown was visibly upset, Quartez was not. She testified that she did not see Quartez get mad or yell. Bonner testified that at the Glendale house, she told the Brown cousins that they should fight Bolden, but neither agreed to do anything. She explained that on the way to Bolden’s house, the group simply listened to music and did not discuss what was going to happen once they arrived.
Additionally, even if Quartez could clear the first hurdle of establishing that he was provoked into a state of emotional excitement, he had an adequate opportunity to cool down and regain his composure before entering Bolden’s apartment. The State points to State v. Henson, 287 Kan. 574, 197 P.3d 456 (2008), where we found that a voluntary manslaughter instruction was not warranted where 20 to 30 minutes separated the provocation of the victim punching tire defendant and the act of shooting the victim. The defendant had not immediately reacted to being hit, but instead drove home with a friend, cleaned himself up, got his gun, talked to his wife, introduced his wife to his friend, and drove back to the garage before he shot and killed the victim. Although recognizing that a reasonable cooling off period is not set by rule, we found “ ‘[a]n act of violence separated from the provocation by sufficient cooling time is the product of malice and cold calculation rather than heat of passion.’ ” 287 Kan. at 583 (quoting State v. Follin, 263 Kan. 28, 38, 947 P.2d 8 [1997]).
Viewing the evidence in a light most favorable to Quartez, we will assume Quartez did not learn about the assaults until he arrived at the Glendale house at around 10:30 a.m. Accordingly, approximately 30 minutes passed before the group left the Glendale house to go to Drop’s house. The Brown cousins were in Drop’s house for approximately another 5 minutes. The group then drove to Bolden’s house, where Quartez backed into a parking spot. Quartez and Brown entered Bolden’s apartment and interacted with Green shortly after 11 a.m. As in Henson, we find that even if Quartez was still angiy, he had control of his actions. Therefore, the district court did not err in declining to instruct the jury on voluntaiy manslaughter.
Reckless Second-Degree Murder and Involuntary Manslaughter
There is no dispute that Quartez properly preserved this issue for appellate review by requesting the lesser included offense instructions of reckless second-degree murder and involuntary manslaughter. The requested instructions were also legally appropriate. See State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005). But, as with voluntary manslaughter, Quartez is unable to show that “ ‘there is some evidence which would reasonably justify a conviction of [the lesser included offenses.]’ ” Plummer, 295 Kan. at 161 (quoting K.S.A. 22-3414[3]).
In order to be entitled to instructions upon unintentional but reckless second-degree murder and involuntary manslaughter, there must be “evidence to support a finding that the killing was unintentional.” State v. McCullough, 293 Kan. 970, 979, 270 P.3d 1142 (2012). Unintentional but reckless second-degree murder is “tire killing of a human being committed: . . . (b) unintentionally but recklessly under circumstances manifesting extreme indifference to tire value of human life.” (Emphasis added.) K.S.A. 21-3402(b). Reckless involuntary manslaughter is an unintentional killing committed recklessly. K.S.A. 21-3404(a). Reckless involuntary manslaughter differs from unintentional but reckless second-degree murder “only in the degree of recklessness required to prove culpability.” Engelhardt, 280 Kan. at 135.
In denying the requested instruction, the district court relied on State v. Bailey, 263 Kan. 685, 690, 952 P.2d 1289 (1998), where this court found that neither Kansas caselaw nor legislative history supported the defendant’s argument “that an intentional act done without regard to the consequences is reckless.” Subsequently, however, in State v. Deal, 293 Kan. 872, 885, 269 P.3d 1282 (2012), this court opined that Bailey’s focus “on whether the conduct was intentional rather than whether the killing was intended” was not the correct interpretation of K.S.A. 21-3402. Rather, “K.S.A. 21-3402 focuses culpability on whether a killing is intentional or unintentional, not on whether a deliberate and voluntary act leads to death.” 293 Kan. at 885.
At the time of Bolden’s death, K.S.A. 21-3201(c) defined reckless conduct as “conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger.” In Deal, we found “an unintentional but reckless second-degree murder ... is a lulling of a human that is not purposeful, willful, or knowing but which results from an act performed with knowledge the victim is in imminent danger, although death is not foreseen.” (Emphasis added.) Deal, 293 Kan. at 884.
Despite the district court’s reliance on Bailey, the district court’s reasoning supports the notion that Quartez intended the result that occurred:
“[T]he acts in this case where defendant pointed the gun, I guess we could differ as to what point blank range is, but certainly it wasn’t at a distance. It was at close range, six to ten feet, and pointed the gun and shot. I don’t think those facts show reckless conduct but intentional conduct.”
Quartez compares his case to State v. Cordray, 277 Kan. 43, 55-56, 82 P.3d 503 (2004), where the evidence was held sufficient to support a recldess second-degree murder conviction. There, Cordray killed a car’s occupant when he fired seven “warning shots” in the direction of a car he knew was occupied. This court found the evidence sufficient to support extreme recklessness even though Cordray did not intend to kill any of the car’s passengers and presented evidence that his shots did not go where he intended. 277 Kan. at 56. Quartez argues his case is similar because he and Brown participated in “shooting into Bolden’s bedroom, that they knew to be occupied.” (Emphasis added.)
As the State points out, Quartez’ argument mischaracterizes the evidence because all the bullet casings and Quartez’ earbud were found within Bolden’s bedroom. The evidence established that the Brown cousins entered Bolden’s house, immediately asked where Bolden was, went into Bolden’s room, and shot Bolden multiple times from inside the bedroom. The evidence showed that the majority of Bolden’s entry bullet wounds were on the back side of his body, indicating Bolden was shot as he fled through the window.
Even if one could discern some evidence to support recklessness in the shooting of the victim in the back, there is no possibility that the jury would have reached a different verdict if it had been given the options of reckless second-degree murder or involuntary man slaughter. Accordingly, any error in refusing those lesser included offenses would be harmless error.
Nunc Pro Tunc Order to Correct the Journal Entry of Judgment
Quartez points out that the journal entry of judgment incorrectly describes Quartez’ second-degree murder conviction as an “off-grid” severity level crime, when that crime is actually a severity level 1, person felony. K.S.A. 21-3402. The State concedes the error. Accordingly, we remand for a nunc pro tunc correction. See K.S.A. 22-3504(2).
Criminal History Score
Quartez finally argues that his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated because the State did not include Quartez’ prior convictions in the complaint or prove those convictions to the juiy beyond a reasonable doubt. The State points out that Quartez did not raise this issue to the district court. Quartez agreed with his criminal history score and did not protest its use at sentencing. Issues not raised to the district court may not be raised on appeal. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007). Moreover, we decline to reconsider our well-settled law that refutes Quartez’ argument. See State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Conclusion
We remand to the district court with instructions to: (1) Conduct a hearing on Quartez’ claim of attorney dissatisfaction, at which the defendant is to be represented by conflict-free counsel; and (2) correct the journal entry of judgment to reflect that second-degree intentional murder is a severity level 1 offense.
Reversed and remanded with directions.
Moritz, J., not participating.
David J. King, District Judge, assigned. | [
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In a letter signed July 28, 2014, addressed to the Clerk of the Appellate Courts, respondent Mark A. Sherman, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2013 Kan. Ct. R. Annot. 396).
At the time the respondent surrendered his license, his license to practice law was administratively suspended for failure to comply with the annual continuing legal education and attorney registration requirements. In addition, at the time the respondent surrendered his license, there was a panel hearing pending on a complaint in accordance with Supreme Court Rule 211 (2013 Kan. Ct. R. Annot. 356). The complaint alleged that respondent violated Kansas Rules of Professional Conduct 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4 (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(a)(1) (2013 Kan. Ct. R. Annot. 569) (declining or terminating representation); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); 8.1(b) (2013 Kan. Ct. R. Annot. 646) (bar admission and disciplinary matters); 8.4(d) and (g) (2013 Kan. Ct. R. Annot. 655) (misconduct); Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (duties of the bar and judiciary); Supreme Court Rule 208 (2013 Kan. Ct. R. Annot. 349) (registration of attorneys); Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356) (file an answer to the formal complaint); and Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406) (notice to clients, opposing counsel, and courts following suspension).
This court, having examined the files of the office of the Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that tire respondent should be disbarred.
Dated this 5th day of August, 2014.
It Is Therefore Ordered that Mark A. Sherman be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Mark A. Sherman from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218. | [
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The opinion of the court was delivered by
Luckert, J.:
William Holt II was convicted by a jury of premeditated first-degree murder and aggravated burglary. Utilizing K.S.A. 21-4635, the sentencing judge imposed life imprisonment without the possibility of parole for 50 years for Holt’s premeditated first-degree murder conviction. Now, Holt appeals his convictions and murder sentence, arguing: (1) Three comments by the prosecutor during opening and closing arguments constituted reversible misconduct; (2) the jury instruction on reasonable doubt was clearly erroneous; (3) even if none of those alleged errors— the three separate instances of prosecutorial misconduct or the instructional error—-is individually reversible error, the cumulative error doctrine requires reversal of his convictions; and (4) the sentencing judge erred in imposing a hard 50 sentence because (a) the hard 50 sentencing statute in effect at the time of Holt’s sentencing is unconstitutional, and (b) there was insufficient evidence to support the single aggravating circumstance relied upon by the sentencing judge when imposing the hard 50 sentence.
We reject all of Holt’s arguments except his contention that K.S.A. 21-4635 is unconstitutional. We, therefore, affirm his convictions, vacate his hard 50 sentence imposed under the unconstitutional statute, and remand for resentencing.
Facts and Procedural Background
This case involves the September 2010 shooting death of Mitch Vose in Topeka. At that time, Vose had recently started dating Wendy Henderson who had been in an on-again/off-again relationship with Holt over the course of several years. Back in 2008, Holt had moved out of the Topeka apartment he shared with Henderson and relocated to Ohio where he enrolled in college classes. Despite the long distance between them, the couple had continued their relationship for a time, talking on the phone eveiy day. Also, Holt had made annual visits to Topeka, staying at a motel for 2 weeks at a time.
In July 2010, Henderson met Vose, and the two started dating. Henderson tiren called Holt and tried to break up with him, telling him that she was pursuing a relationship with Vose. Despite Henderson’s new boyfriend, Holt came to Topeka in mid-August 2010 as previously planned. Henderson met with him to discuss the breakup, and Holt tried to talk Henderson out of ending their relationship.
Around this time, Henderson discovered that she was pregnant with Vose’s child, and she mentioned this to Holt. She had not yet told Vose. Henderson testified that Holt’s response was that she should not tell Vose about the pregnancy and should have an abortion. Law enforcement officers who interviewed Henderson after Vose’s murder testified that Henderson told diem that Holt tried to convince her to move to Ohio, where she and Holt could raise the child together. Henderson did not follow Holt’s advice. Instead, she stayed in Topeka, informing Vose she was pregnant about a week before he was killed. Henderson testified that she continued to try to end the romantic relationship with Holt, speak ing to Holt by telephone. Each time, Holt was sad and upset and tried to talk her out of breaking up with him.
During one of Henderson’s telephone conversations with Holt, Vose asked if he could speak with Holt. Holt agreed, and Henderson handed the phone to Vose. Although Henderson could not hear what Holt was saying, she observed Vose’s reaction and described him as being “in awe” and “shock.” Later, when Henderson asked Vose about the conversation, he indicated that Holt had threatened to ldll him.
Despite the breakup, Henderson remained in contact with Holt, texting.him and talking on the phone. At one point, Holt mentioned that a mutual friend had told him that Vose lived on Maryland Street, which Henderson confirmed, and Holt told Henderson that if anything happened to Vose, he was not a part of it. But then at another point, Holt gave the impression that he had moved on and accepted that his romantic relationship with Henderson had come to an end. Henderson testified that Holt told her “we could be friends, but if it got too hard for him, he would . . . move on.”
Just before the weekend of September 17, 2010, Henderson and Holt were talking about Henderson’s weekend plans. Henderson said that she was going to be at Vose’s house, watching his 8-year-old son. Holt indicated that he did not want her to go there that weekend because he wanted to play online video games with her. On the night of September 17, Henderson went to a bar with a girlfriend. She had previously texted Holt and told him that she was going out and was planning to spend the night at a friend’s house. But, unbeknownst to Holt, Henderson’s plans changed. She ended up sleeping at Vose’s house.
In the early morning hours of September 18, 2010, just before 5 a.m., Henderson and Vose were asleep in the same bed. Vose’s son was asleep in the adjacent bedroom. Henderson awoke when she heard whispering, like someone was making a “shushing sound,” telling someone else to be quiet. Henderson could not see well without her glasses, and it was dark in tire room. Henderson called out, “Hello?” because she thought maybe Vose’s son was up, but nobody answered. Then, she saw a shadowy figure appear in the doorway of the bedroom. Henderson realized that this silhou ette was taller than Vose’s son. She could not tell who the person was, but “it was a big land of stalky-like person,” and she thought maybe it was Vose’s neighbor, Joshua Jones, “who had maybe forgotten something and was just in the house.” Henderson again called out, “Hello?” but got no answer.
Henderson woke up Vose and told him that she thought somebody was in the house. Vose sat up and called out something like, “[C]an I help you?” There was no answer. Henderson suggested that they turn on the light, so Vose crawled over Henderson and got out of bed to flip the light switch on the wall. Henderson grabbed her phone off the night stand and curled up in a fetal position under the covers. Vose turned on the light, and Henderson heard a “pop and then a gasp for like air—it was just like a catching of breath and then it was silent.” Henderson lay still because she did not know what would happen next, but she thought Vose had been shot. She dialed 911 without ever speaking into the phone because she did not want to make a sound. Then, after Henderson heard the phone operator speaking, she hung up the phone. Not knowing whether the emergency responders could trace her call, Henderson then texted a friend, who called 911 for her. Law enforcement officers arrived shortly thereafter, swept the house for intruders and moved Henderson and Vose’s son outside. Upon inspecting the house, officers discovered that a screen in an open kitchen window had been cut on three sides. A shotgun blast to Vose’s chest had been fatal.
Vose’s neighbor, Jones, testified that around 4 a.m. on September 18, he was sitting on his front porch diagonally across the street from Vose’s house. Jones saw an unfamiliar car pull up to Vose’s house and shut off its lights. Thinking this was strange, Jones started approaching by walking through his yard. When Jones got to the street, the driver turned on the headlights and pulled to the front of Jones’ house to speak to him. Jones identified Holt as the driver of the car. Holt told Jones he was going to meet some friends on California Street, and Jones gave him directions.
Holt drove away, and Jones went back to his front porch. Approximately 15 minutes later, Jones saw Holt drive back down the street from the opposite direction. Then, after another 15 minutes, Jones saw Holt drive down the street a third time, and this time he was driving faster. Jones went inside his house to make sandwiches, and, not long after, he saw numerous police cars outside Vose’s home.
Brandy Mullins was also on the porch with Jones that morning. She testified that she saw the same car pull up to Vose’s house and that she went with Jones to approach the car. She was sure that the car drove by a second time and thought it drove by a third time as well. Mullins also identified Holt as the driver of the car.
Kansas law enforcement officers requested that Ohio law enforcement officers go to Holt’s Ohio residence and ask about his whereabouts during the time of the shooting. Holt initially said he had been in Ohio at the time. Later, he admitted that he had driven to Topeka that night to see Henderson. Holt also admitted to being in Vose’s neighborhood near the time of the shooting, but he denied shooting Vose. Law enforcement had the license tag number from the silver car that Holt was seen driving in Topeka, and it matched a car located at an Enterprise Rent-A-Car in Ohio.
Holt’s friend Greg Haffner testified that Holt arrived at Haff-ner’s Ohio residence around 5 p.m. on September 18, 2010, and told him that someone had been shot in Kansas and that the police were looking for him (Holt). Holt asked Haffner to take his 12-gauge shotgun for “a couple days,” and Haffner agreed. Holt then removed his shotgun from the trunk of a silver rental car and gave it to Haffner. Holt also gave him $200. Haffner testified that he had been with Holt on September 11, 2010, when he purchased the shotgun and several rounds of ammunition at Bass Pro Shops. The weapon came with two barrels, one for hunting and one for home defense. Officers retrieved the shotgun from Haffner.
When law enforcement officers searched Holt’s residence, they found a carton for a shotgun, a nylon shotgun case, a spare barrel, a box of 12-gauge shotgun shells, and a receipt from Bass Pro Shops for the purchase of the shotgun. Officers also found Holt’s Enterprise Rent-A-Car agreement. Forensic testing of the rental car revealed that samples taken from the backseat contained “particles that were highly indicative of gunshot residue.”
Haffner had saved a spent shell casing when he and Holt went to test fire die shotgun the day after Holt purchased the gun, which was 6 days before Vose’s murder; he turned the shell casing over to law enforcement officers. Forensic testing on the shotgun revealed that the shell casing seized from Holt’s residence matched the one submitted by Haffner. But the forensic scientist could not conclude whether Holt’s shotgun was the weapon that killed Vose.
Holt was charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a), and aggravated burglary, in violation of K.S.A. 21-3716. At trial Holt’s defense theory—brought out through cross-examination and argument—was that Henderson thought the intruder’s silhouette matched the build of Jones, who was Holt’s neighbor and had been a drug dealer who provided marijuana to Vose. At the time of the shooting, Jones had recently lost his job and his child after someone informed law enforcement of his drag dealing. The defense theory suggested that Jones killed Vose out of suspicion that he was the informant.
The jury convicted Holt as charged. Now Holt brings a timely appeal. This court has jurisdiction under K.S.A. 22-3601(b)(1) (off-grid crime; maximum sentence of life imprisonment imposed).
Prosecutorial Misconduct
We first consider Holt’s arguments that the prosecutor committed misconduct at three points during the trial. Holt argues that each instance justifies a reversal of his convictions.
Appellate review of allegations of prosecutorial misconduct requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether tire statements prejudiced the jury against the defendant and denied tiie defendant a fair trial. State v. Crawford, 300 Kan. 740, Syl. ¶ 2, 334 P.3d 311 (2014); State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014) (citing State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 [2013]; State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]).
1. Opening Statement—Appeal to Sympathy
According to Holt, the prosecutor improperly appealed to the jury’s sympathy at two points in the trial. One statement was made during opening remarks and the other was made during the rebuttal portion of the State’s closing argument.
As Holt points out, it is well known that jurors “must decide a case on evidence and controlling law, and not on sympathy, emotion, or prejudice.” State v. Jones, 298 Kan. 324, 338, 311 P.3d 1125 (2013). Therefore, “ ‘[prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.’ State v. Baker, 281 Kan. 997, 1016, 135 P.3d 1098 (2006).” State v. Brown, 295 Kan. 181, 212-13, 284 P.3d 977 (2012). This means that a prosecutor has a duty to refrain from making improper, leading, inflammatory, or irrelevant statements to the jury and “must guard against appeals to jurors’ sympathies or prejudices. [Citation omitted.]” State v. Hall, 292 Kan. 841, 853, 257 P.3d 272 (2011).
a. Misconduct
Holt’s first argument focuses on the following argument made during the State’s opening statement:
“And you’ll learn drat die 8-year-old son, who’s now 9, of Mitch Vose[] was in the neighboring next-door bedroom at the time die defendant tolled his fatiier, and that [Henderson] has given birth to a new son, so tiiat now diere is a 9-year-old boy and a newborn boy botii witii no dad.”
Holt argues the fact that the victim’s sons now have “no dad” was not relevant to the issues in the case and improperly appealed to sympathy. For support, Holt cites State v. Henry, 273 Kan. 608, 44 P.3d 466 (2002), and State v. Adams, 292 Kan. 60, 253 P.3d 5 (2011).
In Henry, this court reversed and remanded the case for a new trial, in part, because the prosecutor urged the jury to “ ‘think about Mother’s Day yesterday, [the victim’s] mom how she must have felt. How [the victim] will never have a chance to be a mother, this young professional sharp, security conscious woman ....’” Henry, 273 Kan. at 640. The Henry court found tiiat the prose cutor’s reference to the mother’s grief and her testimony was not relevant to the case, and the prosecutor “clearly intended to inflame the passion and prejudice of the jury.” 273 Kan. at 641.
In the other case cited by Holt, Adams, 292 Kan. 60, during the rebuttal portion of the State’s closing argument, tire prosecutor stated: “ ‘This case doesn’t just mean something to the defendant. It means something to [the victim]. This is the only chance [the victim] will ever have to have someone held accountable for taking his life. So this day is as much about him if not more than anyone else.’ ” 292 Kan. at 67. The Adams court found this was an improper appeal that “focused on sympathy for the victim” and diverted “attention from the jury’s function of determining guilt based on the instructions rather than because of sympathy.” 292 Kan. at 68.
The State does not address Henry or Adams in its appellate brief. Instead, tire State argues that the prosecutor was merely stating facts that were later presented to the jury and did not ask the jury to base its deliberations on sympathy for the victim or divert the jury from the evidence. But the State acknowledges that “[t]he statement may have appealed to the jury’s emotion[s].”
The State is correct that the jury would learn through evidence that Vose had been a father. Further, this evidence was relevant. Henderson initially thought Vose’s 9-year-old son might be the person who woke her, and her pregnancy with Vose’s child explained Holt’s motive for the killing—jealousy. But the prosecutor took a step beyond reciting this evidence and noting its significance; the prosecutor emphasized that the children were left without a father, a fact not relevant to proving the charged crimes and significant only as an appeal to sympathy. Thus, the statements were similar to the improper comments in Henry and Adams and were misconduct. See Kansas Rules of Professional Conduct (KRPC) 3.4 (2013 Kan. Ct. R. Annot. 601) (“A lawyer shall not ... [e] in trial, allude to any matter that the lawyer does not reasonably believe is relevant . . . .”); KRPC 3.8 (2013 Kan. Ct. R. Annot. 614) (special responsibilities of a prosecutor).
b. Not Reversible
As discussed in Adams, this court has held that a prosecutor s argument regarding the impact of a crime on a victim or a victim’s family may constitute reversible error because it diverts attention from the evidence and law. Adams, 292 Kan. at 67; see Tosh, 278 Kan. at 92 (finding that prosecutor’s statements that jury should convict defendant in order to protect his daughter was one of the bases for reversible prosecutorial misconduct); State v. Donesay, 265 Kan. 60, 85-88, 959 P.2d 862 (1998) (murder victim’s widow testified in detail regarding her relationship with her husband and her husband’s friendly disposition; the admission of this testimony was irrelevant as to the crime charged and constituted reversible error).
Nevertheless, the determination of reversibility depends on the circumstances of each case. To determine whether a prosecutor’s misconduct is reversible—that is, whether the statements prejudiced tire jury against the defendant and denied the defendant a fair trial—an appellate court considers three factors: (1) whether the misconduct was gross and flagrant, (2) whether it was motivated by prosecutorial ill will, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight -in the minds of jurors. No one factor is controlling. Tosh, 278 Kan. at 93; see State v. Huddleston, 298 Kan. 941, 953-54, 318 P.3d 140 (2014); Bridges, 297 Kan. at 1012.
In determining whether the statement about Vose’s children not having a dad was gross and flagrant, we consider whether the comments were repeated, emphasized improper points, were planned or calculated, violated well-established or unequivocal rules, or violated a rule designed to protect a constitutional right. See Bridges, 297 Kan. 989, Syl. ¶ 18; State v. Kemble, 291 Kan. 109, 123-24, 238 P.3d 251 (2010).
Under the circumstances of this case, compelling factors suggesting that the conduct was gross and flagrant include the prosecutor’s emphasis of an improper point and tire prosecutor’s violation of a well-established rule. As already discussed, Kansas caselaw has long established that a prosecutor should not make statements intended to inflame the prejudices of the jury or to divert the jury’s attention from its duty to decide the case based on the evidence and the controlling law. Tosh, 278 Kan. at 90. We, therefore, conclude the statement was gross and flagrant misconduct.
The nfext step is to examine whether the statement was made with ill will. Relevant factors include “whether the conduct was deliberate or in apparent indifference to a court’s ruling. [Citation omitted.]” Bridges, 297 Kan. at 1016; see State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). While the statement was contrary to well-established caselaw, the record in this case does not reveal any other indications of ill will. The fact that two children were left without a father was not emphasized again; the prosecutor did not return to die point during either opening statements or closing arguments. We, therefore, see no indication of ill will.
The final factor is whether the prosecutor’s misconduct had little effect on tire minds of the jurors. As a majority of this court recently reiterated in Crawford, before this factor can override the other two factors, an appellate court must be able to say that the State can meet both the statutory harmlessness standard stated K.S.A. 60-261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford, 300 Kan. 740, Syl. ¶ 4; Bridges, 297 Kan. at 1012-13 (citing Tosh, 278 Kan. at 97).
We have observed that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the Chapman constitutional standard. “ ‘[B]oth the constitutional and non-constitutional error clearly arise from the very same acts and omissions,’ and the constitutional standard is more rigorous. Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard.” Armstrong, 299 Kan. at 417 (citing Bridges, 297 Kan. at 1015; State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]). Under the constitutional standard die State must establish “beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011) (citing Chapman, 386 U.S. 18), cert. denied 132 S. Ct. 1594 (2012).
Here, die State is able to meet the Chapman standard. Properly admitted evidence established diat Vose’s sons were left widiout a father. Thus, even widiout the prosecutor s prompting, jurors could have easily concluded that Vose’s 9-year-old and newborn sons were fatherless. As a result, the impact of the prosecutor’s improper appeal to sympadiy is limited. Further, the point was not emphasized or a dieme, and die evidence against Holt was strong. Consequendy, we conclude beyond a reasonable doubt the statement did not affect the verdict.
2. Prosecutors Closing Rebuttal—Appeal to Sympathy
The other statement that Holt also argues improperly appealed to the sympathy of die jurors was made during the rebuttal portion of the State’s closing argument. Holt complains about the italicized portion of die following comments:
“But what I want you to know is that while your deliberations may be difficult, they are a privilege. I’m not undermining the difficulty, but it is a privilege that all of you have to right a wrong. You and only you can right the wrong that the defendant has committed in taking a young mans life who just wanted to drive a truck for AAA. It is your opportunity, your privilege!,] to hold the defendant accountable for killing Mitch Vose out of spite and revenge. This, in essence, then is a top-line case, and it’s a top-line case because when you find that the defendant is guilty, your verdict is the defendant[’s] top line, guilty, first-degree murder; top line, guilty, aggravated burglary.”
a. Misconduct
With regard to die prosecutor’s statement that the jurors had a privilege to “right the wrong that the defendant has committed in taking a young man’s life,” Holt argues that it was designed to improperly distract the jury from its duty to determine whedier he was guilty beyond a reasonable doubt. He cites State v. Finley, 268 Kan. 557, 998 P.2d 95 (2000), to support his position.
The prosecutor in Finley informed the jurors that they were the ones who enforce die laws in this country and that “ ‘this land of drug use in our community’ ” cannot be tolerated, especially when a person dies, and therefore the jury had to find the defendant guilty. 268 Kan. at 572. This court found the comment constituted reversible misconduct because it was completely unrelated to any question the jury should have considered. Also, it was not clear whether the error had little, if any, likelihood of changing the result of the trial. 268 Kan. at 572.
The Finley court relied, in part, on State v. Ruff, 252 Kan. 625, 847 P.2d 1258 (1993), where the prosecutor committed reversible misconduct by urging the jury, “ ‘[D]o not allow this conduct to be tolerated in our county.’ ” 252 Kan. at 631. This court found the prosecutor’s implication problematic—that if the jury found Ruff not guilty, her conduct would be tolerated. 252 Kan. at 636; see State v. Martinez, 290 Kan. 992, 1013-14, 236 P.3d 481 (2010) (prosecutor improperly asked jury to return a guilty verdict in order to tell a child rape victim that “ ‘she did the right thing’ ” by reporting the crime).
In countering Holt’s arguments, the State cites two cases—State v. Fielden, 42 Kan. App. 2d 710, 217 P.3d 986 (2007), and State v. Nguyen, 285 Kan. 418, 172 P.3d 1165 (2007)—to support its contention that the statement was not improper; instead, it was an appropriate “general” appeal for justice. In Fielden, the Court of Appeals determined that a closing argument that included, among other things, a comment that “ ‘the peace that [the victim and her son] are entitled to will only come’ ” with guilty verdicts was not outside the wide latitude allowed in closing arguments. This was true even though the comment “may be categorized as appealing to the jury’s emotion.” 42 Kan. App. 2d at 717.
In Nguyen, which was filed approximately 10 months after Fiel-den, the prosecutor mentioned the upcoming July 4th holiday and argued that the victim “ ‘had his life, his liberty, his pursuit of happiness taken away from him. All that he has left is justice.’ ” 285 Kan. at 423. Then, the prosecutor asked the jury to give the victim “ ‘justice.’ ” 285 Kan. at 423. The Nguyen court noted that there was support in other jurisdictions for the notion that it is improper to tell the jury to “ ‘do its job’ ” or that the jury’s oath requires it to find the defendant guilty. 285 Kan. at 424. But the Nguyen court was not persuaded that the prosecutor’s “justice” statements were akin to telling the jurors to do their job or that their oaths required a guilty verdict. 285 Kan. at 425. The court stated that it is permissible, if not expected, for a prosecutor to generally argue for justice, e.g., justice for the citizens of Kansas. Yet the court specified that it was hesitant to make a bright-line rule on the matter. Instead, the court indicated that “[pjerhaps the touchstone is whether the argument seeks to divert the jury from the evidence so as to obtain a conviction based upon sympathy for the victim.” 285 Kan. at 425. Because the prosecutor s argument was largely based on the evidence, and because the juiy was instructed immediately after closing arguments that it could not “ ‘consider this case based on sympathy or prejudice,’ ” this court concluded the prosecutor did not exceed the bounds of permissible argument. 285 Kan. at 426.
Consistent with this distinction, since Fielden, several decisions by this court have followed the stricter view adopted in Finley and, as in Finley and Ruff, found that statements regarding justice for the victim—as opposed to justice for the citizens of Kansas—fall outside the bounds of permissible argument discussed in Nguyen. Recently, this court reiterated that “a prosecutor cannot ask the jury to convict a defendant in order to give the victim justice. [Citation omitted.]” State v. Schumacher, 298 Kan. 1059, 1073, 322 P.3d 1016 (2014). In Schumacher, the prosecutor stated in his rebuttal closing argument that “ ‘[y]ou can laugh about justice, that word, but it means something and it certainly means something for [the victim],’ ” and “ ‘[y]our verdict is the last word for [the victim], and it’s the last word for justice.’ ” 298 Kan. at 1072. This court noted that it has often refused to condone an act or statement by the prosecutor that draws the jury’s attention away from the fundamental task of weighing evidence and instead invites the juiy to rely on underlying emotions to convict. 298 Kan. at 1073. The Schumacher court concluded that the prosecutor’s requests for justice for the victim appeared to have been intended to appeal to jurors’ empathy instead of their duty to weigh and evaluate the evidence to determine the defendant’s guilt. Thus, although the statements did not create reversible error, they were inappropriate. 298 Kan. 1073-74.
Similarly, other recent cases have found misconduct when the prosecutor focuses on justice for the victim. See, e.g., State v. Anderson, 294 Kan. 450, 462-63, 276 P.3d 200 (finding prosecutor erred in referring to defendant as a “ little, little man’ ” and asking for “ ‘redemption’ ” for victim, as this request was akin to asking for justice for victim and improperly diverted jury’s attention from its task), cert. denied 133 S. Ct. 529 (2012); State v. Simmons, 292 Kan. 406, 418-19, 254 P.3d 97 (2011) (prosecutor’s comment that appealed for sympathy for victim inappropriately diverted jury’s attention from its fundamental task); State v. Brinklow, 288 Kan. 39, 52, 200 P.3d 1225 (2009) (court determining that “arguing for a conviction to give the victim justice is prosecutorial misconduct”). Other recent cases draw a line between generally asking for justice and asking for justice for a victim. See State v. Britt, 295 Kan. 1018, 1031, 287 P.3d 905 (2012); State v. McCorkendale, 267 Kan. 263, 284-86, 979 P.2d 1239 (1999), overruled on other grounds by State v. King, 288 Kan. 333, 204 P.3d 585 (2009).
Applying these cases to the present facts, stating that the jury has the “privilege ... to right a wrong,” and “[y]ou and only you can right the wrong that the defendant has committed in taking a young man’s life” is akin to asking the jury to administer justice for the victim. See State v. Bailey, 677 N.W.2d 380, 404 (Minn. 2004) (prosecutor engaged in misconduct in murder trial by appealing to passion and prejudice of the jury when prosecutor said the State prosecuted defendant to “ ‘right a wrong’ ” and that victim’s family deserved resolution to this case). The prosecutor’s argument was more than a general appeal for justice. It focused on the defendant and the victim, thereby seeking to “divert the jury from the evidence so as to obtain a conviction based upon sympathy for the victim.” Nguyen, 285 Kan. at 425. Consequently, we conclude the prosecutor strayed from the line of appropriate argument.
b. Not Reversible
We, therefore, must consider whether this misconduct requires us to reverse Holt’s convictions. Regarding whether the conduct was gross and flagrant, the comments were not repeated or emphasized, but they appear to have been planned and calculated. Furthermore, as our discussion reveals, over the last 7 or more years this court has disapproved of prosecutors’ arguments calling for justice for the victim and imposing on the jury a duty of protecting the community. Because the conduct violated this established caselaw, we conclude the conduct was gross and flagrant.
We do not perceive any ill will, however. The point was not a theme in the prosecutor s argument and was not emphasized. And following the improper statements the prosecutor urged the jury to consider all the evidence: “Take the time to talk about it, sort through all of the evidence, and when you’re done, we will be waiting for you, and we know that you will agree that the defendant is guilty.” Further, the prosecutor’s general conduct during the trial and closing arguments did not exhibit a sense of ill will against either Holt or the court.
Finally, the State has satisfied the Chapman harmless error test and persuades us beyond a reasonable doubt that the prosecutor’s comments did not affect the outcome of the trial in light of the entire record. See Ward, 292 Kan. 541, Syl. ¶ 6 (citing Chapman, 386 U.S. 18). The evidence against Holt was sufficiently strong to persuade us that there is no reasonable possibility the comments contributed to the verdict. Holt’s attempts to cast doubt by pointing to Vose’s next door neighbor, Jones, as a suspect in the murder fall short in light of the circumstantial evidence and Holt’s admissions.
Holt had made a death threat to Vose; and shortly before the shooting, Holt had told Henderson that if anything happened to Vose, Holt was not a part of it. Then, just days before the September 18,2010, shooting of Vose, Holt purchased a shotgun and asked Henderson not to stay at Vose’s house the weekend of the shooting. Holt eventually admitted that he had driven a rental car to Topeka the weekend of the shooting to see Henderson, who was his “whole world.” He also admitted to being in Vose’s neighborhood near the time of the shooting. And witnesses spotted Holt in the rental car at and near Vose’s house around the time of the shooting. Finally, Holt arrived at his friend Haffner’s Ohio residence approximately 14 hours after the murder, reporting that “somebody was shot” and die “police were looking for [Holt].” At that point, Holt asked Haffner to “look after his shotgun,” which Holt retrieved from the trunk of his rental car.
These incriminating circumstances and statements are sufficient to convince us beyond a reasonable doubt that the prosecutor’s appeal for justice for the victim, while misconduct, is not a basis for reversing Holt’s conviction.
3. Rebuttal Argument—Burden of Proof
Turning to the third instance of alleged misconduct, Holt argues the prosecutor erred during the rebuttal portion of the State’s closing argument by misstating the prosecution’s burden of proof. The prosecutor discussed Instruction No. 5, which stated, in part: “Your only concern in this case is determining if the defendant is guilty or not guilty.” Then the prosecutor said, “I want to give you an example,” and she used the following analogy involving a child with a crayon:
“[Y]ou see the little boy standing there with a purple crayon [in] his hand and there’s a pretty big rainbow drawn on die bedroom wall, and you say, come on, what did you draw that on the wall for? And the boy with his purple crayon with a purple rainbow says, I didn’t do it.
“What you get to do is to know that that is a guy right in the area with the tools he needs, which is the purple crayon, he draws something that favors to him, which is the sunshine. In this case, the favors [sic] to the defendant is [Henderson]. And he—the little boy can say I didn’t do it all day long, but your responsibility is to decide the difference between possible and probable.” (Emphasis added.)
At that point, defense counsel objected on the basis that the argument “misstates the burden of proof.” The trial judge asked the attorneys to approach the bench, and then they discussed the matter outside the presence of tire jury. The judge asked the prosecutor what the rest of her argument was going to be, to which the prosecutor answered, “That tire defendant’s denial that he didn’t do it is not probable, that diere is enough evidence of guilt beyond a reasonable doubt.”
In response to the prosecutor’s assertion that she had said nothing objectionable, defense counsel argued, “[Tjhere’s nothing about distinguishing possible and probable in the [jury] instructions, and I think it greatiy misstates the burden of proof and I think it’s improper for drat reason.” The judge then denied defense counsel’s objection, finding that “[t]he statement that was made does not go to the burden of proof in this case. The statement that was made goes to the believability of the evidence in this case and certain aspects of it.”
When the rebuttal argument resumed, the prosecutor told the jury, “Your responsibility is to decide what is possible and what is probable. And the probability of the evidence in this case, including the defendant’s denial, [in] your deliberations. It’s the same probability of the little boy saying I didn’t draw the rainbow.” The prosecutor concluded her rebuttal without any mention of reasonable doubt.
a. Misconduct
On appeal, Holt renews his argument that the prosecutor incorrectly defined and impermissibly diluted the State’s burden of proof. As he points out, if the prosecutor did incorrectly define reasonable doubt or impermissibly dilute the State’s burden of proof, the prosecutor’s statements would be outside the wide latitude given to prosecutors in closing arguments. State v. Peppers, 294 Kan. 377, 397, 276 P.3d 148 (2012); State v. Magallanez, 290 Kan. 906, 914-15, 235 P.3d 460 (2010); see State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012) (“A defendant is denied a fair trial when a prosecutor misstates the law and the facts are such that the jury could have been confused or misled by the statement.”).
The State contends that the prosecutor did not misstate the burden of proof—the prosecutor merely used the crayon-boy analogy to refer to Holt’s credibility and the plausibility of his denial of involvement in the crimes. If this was clear, the prosecutor arguably would not have committed misconduct because a prosecutor is given considerable latitude to address the weaknesses of the defense. State v. Stone, 291 Kan. 13, 18, 237 P.3d 1229 (2010) (citing State v. Burden, 30 Kan. App. 2d 690, 703, 46 P.3d 570 [2002], rev'd on other grounds 275 Kan. 934, 69 P.3d 1120 [2003]). Likewise, when a case turns on conflicting stories, it is proper for a prosecutor to assert reasonable inferences based on the evidence and to argue that certain testimony is not believable, but the jury must be left to draw ultimate credibility determinations. State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
For example, in State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003), this court found three challenged statements to be reasonable inferences drawn from the evidence and appropriate arguments regarding why testimony was not believable. First, the prosecutor argued the victim’s statements were more credible than the defendant’s because the victim made his statements to a law enforcement officer while in an emotional state, and the defendant made his statements after 10 months “with plenty of time for reflection and creation.” 275 Kan. at 122. Second, the prosecutor argued the evidence indicated that the victim “should be believed.” 275 Kan. at 122. Finally, the prosecutor claimed the defendant’s allegation that the victim “set this whole thing up” was not believable. 275 Kan. at 123. This court held that the prosecutor was within the latitude afforded to the State during closing arguments because the prosecutor “stated reasonable inferences based on the evidence,” and the statements did not constitute vouching for the victim’s credibility. 275 Kan. at 122-23.
There are some similarities between the examples in Davis and the crayon-boy analogy in that the prosecutor asked the jury to weigh the credibility of Holt’s denial of participation in the crimes—“that is a guy right in the area with the tools he needs” and “the little boy can say I didn’t do it all day long.” But the prosecutor continued by saying that “[yjour responsibility is to decide what is possible and what is probable” and “[ijt’s the same probability of the little boy saying I didn’t draw the rainbow.” These comments can be interpreted as asking the jury to find it probable that Holt was guilty, especially since the prosecutor told the jury that she was giving them an example of determining “whether or not the defendant is guilty.” The ambiguity was made even more misleading when, after the bench conference, the prosecutor told tire jury it was their “responsibility ... to decide what is possible and what is probable.” The statement sounds like a representation of the State’s burden of proof.
In summaiy, while the prosecutor’s intent may have been to solely discuss the credibility of certain evidence or inferences, that message was garbled, and the effect was to dilute the State’s burden of proof to a mere probability. Any attempt to lower the burden of proof—or even to define reasonable doubt—is misconduct. See Magallenez, 290 Kan. at 914 (“[Pjrosecutors embellish on the definition of the burden of proof in criminal cases at their peril.”); State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003) (“ ‘Efforts to define reasonable doubt, other than as provided in PIK Crim. 3d 52.02 [burden of proof, presumption of innocence, and reasonable doubt], usually lead to a hopeless thicket of redundant phrases and legalese, which tends to obfuscate rather than assist the jury in the discharge of its duty.’ ”).
We, therefore, conclude the prosecutor’s comments regarding the boy and his crayon were misconduct.
b. Not Reversible
As we consider whether this instance of misconduct was reversible error, we turn to the first factor of whether the conduct was gross and flagrant. See State v. Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010). We again have a situation where the statement violated long-established caselaw prohibiting a prosecutor from diluting the State’s burden of proof or attempting to define reasonable doubt. Further, the prosecutor represented to the judge that she would continue her argument by discussing the State’s burden of proof beyond a reasonable doubt, which might have clarified any ambiguity, but she failed to do so. Consequently, we conclude the misconduct was gross and flagrant.
Under the second factor, this court must determine whether the prosecutor’s statements were made as a result of ill will. See State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013). As we have discussed, the prosecutor’s comments appear to be an ill-phrased attempt to ask the jurors to weigh the evidence and the credibility of Holt. The fact the message was garbled appears to be more a result of the extemporaneous nature of the rebuttal comments than a planned attempt to dilute the State’s burden of proof. Given the context of the statement, it does not appear that the prosecutor was motivated by ill will.
Finally, we turn to the third factor in the harmlessness inquiry, whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. 297 Kan. at 1012-13. Significantly, as will be discussed in the next issue and not withstanding the prosecutor's inept analogy, the trial court properly instructed the jury on the burden of proof using the pre-2005 version of PIK Crim. 3d 52.02 (burden of proof, presumption of innocence, and reasonable doubt). This court presumes the jury followed the trial court’s instructions, and it may be concluded that the court’s guidance served to mitigate any potential harm caused by the prosecutor’s statements. See State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) (“Although these instructions do not give the prosecutor a free pass on misconduct, they are appropriate considerations when evaluating whether ajuiy was misled.”); State v. Bunyard, 281 Kan. 392, 406-07, 133 P.3d 14 (2006) (prosecutor’s misstatement of the law must be considered in the context of the jury instructions given by the court), disapproved on other grounds by State v. Flynn, 299 Kan. 1052, 329 P.3d 429 (2014); State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (noting jury had been given proper PIK 'instruction and was told counsel’s statements were not evidence); State v. Jamison, 269 Kan. 564, 572-73, 7 P.3d 1204 (2000) (prosecutor’s misstatement on the law on premeditation was not reversible error when the jury was properly instructed on the law).
Further, as we have discussed, the circumstantial evidence against Holt is strong and leads us to conclude beyond a reasonable doubt that the prosecutor’s misstatements did not affect the outcome of the trial. See Huddleston, 298 Kan. at 957 (citing Bridges, 297 Kan. 989, Syl. ¶ 15). The improper comments do not warrant reversing Holt’s convictions.
Reasonable Doubt Instruction
Next, Holt argues for the first time on appeal that Instruction No. 7, the reasonable doubt instruction, was erroneous because it lowered the State’s burden of proof, which resulted in structural error. Instruction No. 7, which was identical to the pre-2005 version of PIK Crim. 3d 52.02, stated:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to tire truth of any of the claims required to be proved by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of the claims required to be proved by tire State, you should find the defendant guilty.” (Emphasis added.)
See PIK Crim. 3d 52.02 (1995 Supp.).
Holt, who failed to object to the instruction at trial, must establish that the instruction was legally inappropriate. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). In attempting to do so, Holt focuses on the second paragraph of the instruction and argues the trial judge erred by using the word “any” in both portions of the concluding sentence. Instead, Holt contends “each” should have been substituted for the second “any,” which would make the last sentence read as follows: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant' guilty.” Holt’s proposed language is identical to the reasonable doubt instruction found in PIK Crim. 3d 52.02 and PIK Crim. 4th 51.010. See State v. Gallegos, 286 Kan. 869, 877-78, 190 P.3d 226 (2008) (approving current version of PIK Crim. 3d 52.02). Holt contends that the second use of the word “any” caused the State’s burden of proof to be diluted.
Since Holt submitted his appellate brief this court has repeatedly rejected his argument. In State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), this court concluded that “[wjhile the older PIK instruction used in Herbel’s trial was not the preferred instruction, it was legally appropriate. [Citations omitted.]” 296 Kan. at 1124. Subsequently, this ruling has been consistently applied. See, e.g., Miller v. State, 298 Kan. 921, 936-38, 318 P.3d 155 (2014); State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 (2013); State v. Waggoner, 297 Kan. 94, 98-99, 298 P.3d 333 (2013).
Consistent with these cases, we reject Holt’s argument that the reasonable doubt instruction was erroneous.
Cumulative Error
In the alternative, Holt contends that cumulative trial errors require reversing his convictions. Specifically, he contends that the instances of prosecutorial misconduct and the trial court’s use of the any/any reasonable doubt instruction, when considered collectively, violated his constitutional right to a fair trial, and, therefore, tire case must be remanded for a new trial. We have rejected his reasonable doubt instruction argument but have concluded there were three instances of prosecutorial misconduct. Thus, we must consider whether the prosecutor’s three misstatements collectively have so great an impact on the trial as to warrant reversing Holt’s convictions.
The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. See State v. Tully, 293 Kan. 176, 205-07, 262 P.3d 314 (2011). In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the context of the record as a whole considering how the trial judge dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and tire strength of the evidence. See State v. Ward, 292 Kan. 541, 578, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). “No prejudicial error may be found upon this cumulative effect rule . . . if the evidence is overwhelming against the defendant.” State v. Colston, 290 Kan. 952, Syl. ¶ 15, 235 P.3d 1234 (2010); see, e.g., Alvarez v. Boyd, 225 F.3d 820, 824-25 (7th Cir. 2000) (listing various factors to be considered in cumulative error analysis), cert. denied 531 U.S. 1192 (2001); United States v. Fernandez, 145 F.3d 59, 66 (1st Cir. 1998) (same). Because the standard under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), applies to the three instances of prosecutorial misconduct, “ ‘the cumulative error must be harmless beyond a reasonable doubt.’ ” Tully, 293 Kan. at 205 (quoting United States v. Toles, 297 F.3d 959, 972 [10th Cir. 2002]).
As we examine the three statements in combination, it is significant that the three errors had no relationship with one another. Although two instances appealed to sympathy, they did so in veiy different ways. Further, as we have noted, the prejudicial impact of these two statements was largely ameliorated by other comments of the prosecutor, including her urging the jury to “[t]ake the time to talk about it, sort through all of the evidence.” And the potential prejudice caused by die crayon-boy analogy was ameliorated by the reasonable doubt instruction, which the jury is presumed to have followed.
Finally, as already stated, the evidence against Holt was strong when considered as a whole. Under the totality of the circumstances, we are convinced beyond a reasonable doubt that, even in light of any cumulative effect, the three instances of prosecutorial misconduct did not affect the jury’s verdict.
Error in Imposing a Hard 50 Sentence
After Holt’s conviction, die State filed notice of its intent to seek a hard 50 sentence, alleging that (1) Holt knowingly or purposefully created a risk of deadi to more dian one person; (2) he committed die crime in an especially heinous, atrocious, or cruel manner; and (3) the victim was particularly vulnerable at the time of the killing. See K.S.A. 21-4636(b), (f). At the sentencing hearing, defense counsel argued that the evidence did not support die aggravating circumstances alleged by the State, and several mitigating circumstances weighed against the imposition of a hard 50 sentence. Holt presented evidence regarding several mitigating circumstances including: his age (26 years old) at the time of die crime, his lack of criminal history, his service to this countiy as a Marine, and the ongoing support of his parents. Holt’s parents testified in support of diese claims.
The sentencing judge found by a preponderance of the evidence that a hard 50 sentence was warranted based on the first circumstance alleged by die State, i.e., Holt knowingly or purposefully created a risk of death to more than one person. See K.S.A. 21-4636(b). The judge further concluded the aggravating circumstance outweighed any mitigating circumstances.
On appeal, Holt argues the hard 50 sentencing statute in effect at the time of his sentencing, K.S.A. 21-4635, is unconstitutional. Citing Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), he argues the statute violates the Sixth Amendment to the United States Constitution because based on factors not submitted to a jury and proven beyond a reasonable doubt, it imposes additional punishment, a minimum of 50 years’ imprisonment rather than 25 years that would otherwise be imposed for premeditated first-degree murder. Holt’s arguments and the State’s counter arguments regarding the constitutionality of K.S.A. 21-4635 were considered and addressed by this court in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014).
In Soto, this court held that K.S.A. 21-4635, which also governed Soto’s sentencing hearing, violates the Sixth Amendment because it “permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.” 299 Kan. 102, Syl. ¶ 9. Given the holding in Soto, we need not address the specifics of either Holt’s or the State’s arguments. Under tire Soto holding, Holt’s sentence was unconstitutionally imposed.
This conclusion leads to the question of how to remedy Holt’s unconstitutional sentence. The State, as it did in Soto, argues the defect should be considered harmless because we can determine a jury would have been convinced beyond a reasonable doubt that Holt knowingly or purposefully created a risk of death to more than one person. More specifically, the State argues the aggravated circumstance is “necessarily proved” by the verdict. Holt disagrees and also argues that remand is inappropriate because the evidence is insufficient to support a jury finding that an aggravated factor exists.
Similar harmless error arguments were considered in Soto. There, we noted that “an Alleyne error is also an Apprendi [v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)] error and this court has recognized that an Apprendi error may be subject to harmless error review.” Soto, 299 Kan. at 124. We also noted, however, that Soto, much like Holt does in the current appeal, argued that a hard 50 error should not be subject to harmless error review because the sentencing court applied a preponderance of the evidence standard when considering the existence of aggravating circumstances, not a beyond-a-reasonable-doubt standard as required by Alleyne. We recognized in Soto that a higher standard of proof—the reasonable doubt standard—was constitutionally required. 299 Kan. at 126. We also noted that a jury had not determined if mitigating circumstances existed and, if so, whether beyond a reasonable doubt the aggravating circumstances outweighed any mitigating circumstances. 299 Kan. at 126-28.
Given those procedural failures that would exist in any application of K.S.A. 21-4635, the Soto court concluded that “only in a rare instance could a hard 50/Alleyne error be harmless. [Citation omitted.]” 299 Kan. at 127. Consequently, the Soto court determined it would “defer any decision as to whether a modified harmless error standard can apply to a hard 50 error until a case presents itself in which the evidence approaches meeting this exacting test.” 299 Kan. at 128. This is not that case. We, therefore, vacate Holt’s hard 50 sentence.
Remand
In Soto, the court determined the case should be remanded for resentencing. 299 Kan. at 128. In this appeal, the State asks for the same remedy as an alternative if we reject, as we have, its arguments regarding the constitutionality of the statute and the harmlessness of any error. K.S.A. 2013 Supp. 21-6620(e) provides authority for a remand. It states:
“(e) Notwithstanding the provisions of subsection (f), for all cases on appeal on or after the effective date of this act, if a sentence imposed under this section, prior to amendment by this act, or under K.S.A. 21-4635, prior to its repeal, is vacated for any reason other than sufficiency of the evidence as to all aggravating circumstances, resentencing shall be required under this section, as amended by this act, unless the prosecuting attorney chooses not to pursue such a sentence.” (Emphasis added.)
Holt argues remand is not appropriate under that provision because (1) the only hard 50 sentencing provision that applies to him is unconstitutional, and (2) the evidence was insufficient to support tire aggravating circumstance relied on by the sentencing judge. The State responds by arguing that on remand the sentencing court may utilize the amended hard 50 statute enacted by the Kansas Legislature following the filing of Alleyne. See K.S.A. 2013 Supp. 21-6620. The State also argues the evidence was sufficient to establish the aggravating factor relied on by the sentencing judge. These same general arguments were raised in Soto.
1. Retroactive Application of K.S.A. 2013 Supp. 21-6620
In Soto, this court declined to resolve the question of whether K.S.A. 2013 Supp. 21-6620 could be retroactively applied. The State, as it does in this case, acknowledged that its arguments relating to the constitutionality of applying die amended hard 50 statute on remand were not ripe because the State has not yet sought application of die amended hard 50 statute. See Soto, 299 Kan. at 128-29. Given that the issue was not ripe, the Soto court “decline[d] the parties’ invitation to issue an advisory opinion on diese issues. [Citations omitted.]” 299 Kan. at 129. The Soto court noted that “[o]ur decision does not foreclose the parties from presenting their arguments regarding application of the amended statute to the district court at resentencing.” 299 Kan. at 129.
The same conclusions apply in this appeal. We cannot resolve the retroactivity question because it is not ripe. See State v. Williams, 298 Kan. 1075, 1082, 319 P.3d 528 (2014) (“Generally, Kansas appellate courts do not decide moot questions or render advisory opinions.”); Gannon v. State, 298 Kan. 1107, Syl. ¶ 2, 319 P.3d 1196 (2014) (stating that under separation of powers doctrine, Kansas courts do not issue advisory opinions but decide actual cases or controversies). But, as in Soto, if the State seeks the hard 50 on remand, the parties are not foreclosed from presenting arguments regarding the retroactive application of K.S.A. 2013 Supp. 21-6620.
2. Sufficiency of Evidence Regarding the Aggravating Factor
The Soto court did, however, address Soto’s claim that the evidence of the aggravating factor was insufficient, in which case re mand would have been inappropriate under K.S.A. 2013 Supp. 21-6620(e). The Soto court stated: “While we decline to decide at this juncture whether Soto could be resentenced under the amended hard 50 statute, we find it prudent to address Soto’s claim that the evidence of the aggravating circumstance was insufficient.” 299 Kan. at 129. We followed this same approach in several subsequent cases. See State v. Hayes, 299 Kan. 861, 327 P.3d 414 (2014); State v. Lloyd, 299 Kan. 620, 325 P.3d 1122 (2014); State v. DeAnda, 299 Kan. 594, 324 P.3d 1115 (2014); State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014); State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014).
Recently, in State v. Roeder, 300 Kan. 901, 942, 336 P.3d 831 (2014), we reexamined this line of cases and concluded that “[ojnce the court determined that Soto’s sentence had to be vacated because of the unconstitutional sentencing scheme, the question of whether sufficient evidence existed to meet the requirements of the unconstitutional statute was rendered moot.” In this case, like in Roeder, questions regarding the sufficiency of any aggravating factor evidence will be germane only if the prosecutor elects to seek resentencing of Holt under the retroactive provision of K.S.A. 2013 Supp. 21-6620(e). And if the prosecutor so elects, the evidence—and even the aggravating factors relied upon-—may differ from what was previously presented. Consequently, “[wjhether the sentence might also have been subject to being vacated based upon an insufficiency of the evidence if the sentencing scheme had not been found unconstitutional is an academic question we need not answer.” Roeder, 300 Kan. at 943.
Consistent with our holding in Roeder, we do not address whether sufficient evidence supported the aggravating factor found by the sentencing court in this case—that Holt knowingly or purposefully created a risk of death to more than one person. We vacate Holt’s hard 50 sentence and remand for resentencing.
Convictions affirmed, sentence vacated in part, and case remanded for resentencing.
Moritz, J., not participating.
Gerald T. Elliott, District Judge, assigned. | [
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The opinion of the court was delivered by
Beier, J.:
This is a direct appeal from denial of appellant Tracie Miles’ postsentencing motion to withdraw her pleas of no contest to premeditated first-degree murder, aggravated robbeiy, and forgery. Miles was sentenced to life in prison, with no parole eligibility for 25 years, followed by consecutive 51-month and 9-month sentences.
Miles argued that she should be permitted to withdraw her pleas, on the basis of the motion filed nearly 11 years after sentencing, because her lawyer told her she had no chance of acquittal and would receive the death penalty or a hard 40 life sentence if she exercised her right to jury trial. Miles also alleged that she did not understand the lengdi of the prison sentence to which she could be subject if she entered tire pleas.
The district judge conducted an evidentiary hearing on the motion to withdraw pleas, at which Miles testified that she did not learn until after her pleas were entered that the State had never filed a capital murder charge against her. The judge denied the motion. Miles argues on this appeal that the district judge abused her discretion.
A motion to withdraw plea filed after sentencing is subject to a manifest injustice standard. K.S.A. 2013 Supp. 22-3210(d)(2). An appellate court does not reverse a district judge’s ruling on such a motion absent an abuse of discretion. See State v. Szczygiel, 294 Kan. 642, 643, 279 P.3d 700 (2012); State v. Bricker, 292 Kan. 239, 244, 252 P.3d 118 (2011). We may conclude there has been an abuse of discretion on one or more of three bases: (1) the judicial action is arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the trial court; (2) the judicial action is based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion; or (3) the judicial action is based on an error of fact, i.e., substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Further, a defendant’s proof of prejudicial ineffective assistance of counsel may contribute to a conclusion that manifest injustice occurred. See State v. Green, 283 Kan. 531, 545-46, 153 P.3d 1216 (2007); State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
The transcript of Miles’ plea hearing persuades us that Miles is not entitled to relief on appeal.
The transcript demonstrates that the district judge who accepted Miles’ pleas first engaged in a long colloquy with Miles, including recitation and confirmation of the results of plea negotiations entered into with the State and a verbatim review of the contents of a written plea agreement. This colloquy fully informed Miles of the outstanding charges and the possible sentences. Miles expressed on the record that she understood all of this information, including that the State had dismissed four other charges and had agreed not to seek a hard 40 sentence and would stand mute on the subject of sentence altogether.
In short, even if Miles’ attorney had previously misinformed or failed to fully inform Miles of the charges and possible penalties, any prejudice from that error was eliminated by the judge’s thoroughness at the plea hearing.
The district judge did not abuse her discretion in refusing to allow Miles to withdraw her pleas because of manifest injustice.
The district court decision is affirmed.
Michael J. Malone, Senior Judge, assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, William E. Colvin, of Overland Park, an attorney admitted to the practice of law in Kansas in 1990.
On December 13, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of tire Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on January 6, 2014. On February 19, 2014, and March 11, 2014, the parties entered into written stipulations of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 11, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 3.1 (2013 Kan. Ct. R. Annot. 584) (meritorious claims and contentions); 3.3(a)(1) (2013 Kan. Ct. R. Annot. 594) (candor toward tribunal); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law).
Upon conclusion of the hearing, the panel made tire following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“9. In September, 1999, P.S. filed an action in divorce from lier husband, J.S. Later that month, on September 30, 1999, P.S. and J.S. entered into a written separation agreement. The court granted the divorce and on December 23,1999, the court entered a decree of divorce.
“10. In the divorce decree, the court incorporated the terms of the separation agreement, which provided that J.S. was to pay P.S. $175,500 and one-half of J.S.’s 401(k) account as it existed at tire time of the divorce. Neither the parties in the separation agreement nor the court in the divorce decree specified whether a qualified domestic relations order (hereinafter ‘QDRO’) would be prepared or when the payments were due. J.S. did not pay the $175,500 or one-half of the balance of the 401(k) account to P.S.
“11. On August 31, 2001, David K. Martin, counsel for P.S. wrote to J.S. regarding the $175,500 payment and the division of the 401(k) account. In the letter, Mr. Martin stated:
‘[P.S.] contacted me recently. Apparently numerous provisions of the Separation Agreement and court ordered Decree of Divorce have not been complied with. The most significant items are the $175,000 payment and division of the 401(K) account.
1 want to have a discussion of what steps are necessary to have the provisions of the court ordered Decree of Divorce satisfied. I need to speak with you or an attorney of your choice within the next 14 days to begin that discussion.
‘If I do not hear from you or an attorney on your behalf within 14 days, I will recommend to [P.S.] that further action be taken in front of the court to enforce tire provisions of the Decree of Divorce and Separation Agreement.’
J.S. did not respond to Mr. Martin’s letter and no further action was taken by P.S. or on behalf of P.S. following the demand letter.
‘12. Thereafter, P.S. retained Jeffrey A. Kincaid to represent her in an attempt to collect the outstanding amounts from J.S. On December 18,2003, Mr. Kincaid, sent J.S. a letter demanding payment of the $175,500, plus interest to date. The letter provided:
‘This is to inform you that this law office represents [P.S.] concerning her claim against you for nonpayment of monies due pursuant to the Property Settlement Agreement, “Agreement”, incorporated into the Decree of Divorce entered in 1999. This correspondence relates to a debt and any information derived shall be used for that purpose.
‘According to the information given me, you have not tendered the sum of $175,500 set forth in the Agreement, section B. Division of Net Worth paragraph l.d. As of this date, including interest, the sum due and owing is $234,924.78. I have not been advised of any basis for the nonpayment of this judgment.
‘You have tlie right to dispute the claim of $234,924.78. In the event that you dispute all or part of this claim, you must contact this office within thirty (30) days of the date of this letter. Further, should you demand verification of the claim, you must contact this office within thirty (30) days of the date of this letter. Your failure to do so will lead us to the conclusion that neither the claim nor the amount of the claim is in dispute. You must contact the undersigned within thirty (30) days of the date of this letter. The failure to do so will result in our pursuing this matter to the fullest extent allowed by law, including wage and property garnishment and execution upon nonexempt property.’
J.S. did not respond to the letter. Thereafter, P.S. took no further action nor was action taken on her behalf to collect the amounts owing at diat time.
“13. In July, 2009, P.S. retained the respondent to assist in collecting the amounts due from J.S. On September 9, 2009, the respondent wrote to J.S., demanding payment of the outstanding amounts. The letter provided:
‘Please be advised that I have been retained by your former wife, [P.S.] regarding various issues relative to your divorce that remain unresolved. [P.S.] has asked me to attempt to contact you directly in an effort to negotiate a final resolution privately, without initiating further litigation. I hope you will accept this letter as a good faith effort to accomplish this objective.
‘My records indicate that you and [P.S.] executed a Separation Agreement, effective November 20, 1999, that settled all ownership rights and interests relative to certain assets accumulated by you and [P.S.] as part of the dissolution of your marriage. A Decree of Divorce was entered by default in Johnson County District Court on December 23, 1999. The Decree of Divorce incorporated the Separation Agreement, which was adopted by tire Court. Specific provision for the distribution of assets to [P.S.] were incorporated in the Separation Agreement. These provisions include the following:
1. Page 4, Section B.l.d. The “Division of Net Worth” states that [P.S.] is entitled to payment of $175,000 [sic] from you. After nearly ten (10) years following the divorce, this amount has still not been paid.
3. Page S, Section B.l.f This section states that [P.S.] is entitled to ½ of your 401(k) account effective as of the date of your divorce, plus any appreciation/gain on this asset, less any tax liability relative to any transfer. My records indicate that the beginning balance of your 401k [sic] account on January 1, 2000, was $80,151.25. To date, [P.S.] has not received her division of funds from this asset.
1 would welcome an opportunity to discuss your position relative to these matters. Please contact me within ten (10) days of tire date of this letter if you would like to exercise this option. If I have not heard from you within such time, my client has authorized me to take any and all legal action within my perusal to enforce the provisions of the divorce decree.’
Again, J.S. did not respond to the respondent. Because J.S. did not respond to the respondent’s demand letter, the respondent filed a breach of contract action, Johnson County District Court case number 09CV9367. Additionally, the respondent filed a motion in the divorce case to ‘resolve the divorce decree’.
“14. In the motion, the respondent argued that the decree was not final and was therefore unenforceable because tire incorporated separation agreement did not include a due date for payment of the $175,500 payment or require the creation of a QDRO to divide the 401(k) account. The respondent argued that these omissions were ‘clerical errors’ that should be corrected under K.S.A. 60-260(a).The respondent requested, in tire alternative, that tire court conduct an evidentiary hearing and render a final adjudication of all unresolved issues relative to tire property rights of the partes. The relief the respondent sought in the motion to resolve the divorce decree was based upon a previous ruling by tire Kansas Court of Appeals in In re Marriage of Haynes, 115 P.3d 181, 2005 WL 1661517 (Kan. Ct. App. 2005) (unpublished opinion in Docket No. 92,807, filed July 15, 2005).
“15. On October 23, 2009, J.S. sent P.S. an electronic mail message, offering her one-half of tire easting balance of the 401(k) account. Under J.S.’s offer, P.S.’s share would have been approximately $32,000. It is unclear whether P.S. or the respondent responded to J.S.’s offer.
“16. On Januaiy 8, 2010, through counsel, J.S. filed a response to the motion. In his response, J.S. argued that the separation agreement became a judgment when it was incorporated into the divorce decree and was, therefore, effective on December 23,1999, the date the decree was entered. J.S. further argued that the judgment was extinguished and thus, tire court lacked jurisdiction to hear the matter because P.S. failed to timely execute or timely revive the judgment.
“17. On February 10, 2010, the district court denied the motion to resolve the decree of divorce, concluding that the judgment against J.S. for payment of $175,500 and one-half of the 401(k) account had become effective and due upon the filing of the decree and that the judgment had become dormant and had not been revived.
“18. Based on the court’s denial of P.S.’s motion, J.S. filed a motion to dismiss the breach of contract case, arguing that the court lacked jurisdiction over the breach of contract action on the theory of res judicata.
T9. On March 30, 2010, the district court denied J.S.’s motion to dismiss. The court held a scheduling conference, granted P.S. leave to amend her petition on or before April 2, 2010, ordered discovery to be completed on or before September 24, 2010, ordered that all dispositive motions be filed by October 22, 2010, and set the final pretrial conference for December 13, 2010. Further, the court ordered that a pretrial order be prepared consistent with the local rule. Finally, the court ordered P.S. to provide a statement of her itemization of damages as part of her factual contentions.
“20. On April 2,2010, the respondent filed an amended petition in the breach of contract case.
“21. On April 12, 2010, the respondent filed a motion to amend the journal entry in the divorce case. With the motion, the respondent provided an affidavit from P.S., which stated that she intended ‘that payment would become due and owing upon my demand’ and ‘[tjhat on September 9, 2009, [the respondent] mailed written demand for payment of these debts to [J.S.] at my direction.’ Neither tire affidavit nor dre motion mentioned the two earlier letters P.S.’s attorneys had sent to J.S. in 2001 and 2003.
“22. On May 14, 2010, P.S. submitted to a deposition. P.S. testified tiiat her theory, as set out in die affidavit, was that the statute of limitations for the $175,500 and 401(k) debts did not begin to run until the respondent sent the September 9, 2009, demand letter and tiiat the respondent’s demand letter was the first time she had ever made demand for payment of those debts. When J.S.’s counsel showed P.S. the August 31, 2001, letter Mr. Martin sent to J.S., P.S. testified she had never seen the letter before.
“23. On May 20, 2010, J.S. filed a motion for sanctions against P.S. and the respondent under K.S.A. 60-211. On July 14, 2010, J.S. filed a supplement to the motion that included the 2003 letter sent by Mr. Kincaid to J.S. demanding payment of the $175,500, plus interest.
“24. In responding to the motion for sanctions, the respondent argued that the affidavit was not false, as it did not state tiiat the September 9, 2009, demand letter was the first and only demand letter. The respondent also argued tiiat because J.S. did not agree that the debts were due on P.S.’s demand, the letters were not relevant to J.S.’s claims. Finally, the respondent raised a new argument— tiiat the statute of limitations only began to run upon J.S.’s repudiation of the September 9, 2009, demand for payment.
“25. On August 30, 2010, the respondent stipulated that the demand letters sent by Mr. Martin and Mr. Kincaid were genuine and authentic. The respondent however, did not stipulate that P.S. specifically directed each attorney to send each letter.
“26. After two days of hearing, the district court granted J.S.’s motion for sanctions. Additionally, the court denied the respondent’s motion to amend the journal entry. The court concluded that die respondent violated K.S.A. 60-211. Further, the court concluded that the failure to mention the two prior demand letters in the affidavit when mentioning the September 9, 2009, letter was misleading by omission, that omission was material because the purpose of the motion’s due-on-demand theory was to set aside the March 30, 2009, order ruling that the debts were ‘effective and due’ on the date the divorce decree was filed; the respondent had failed to correct the omission as soon as he became aware of the prior letters demanding payment and instead ‘maintained the position ... tiiat tlie demand for payment and performance was first made by [the respondent] in 2009,’ and up to the date of the hearing and during the hearing, the respondent ‘persisted in contesting and denying’ whether the 2001 and 2003 letters were ‘authorized’ by P.S.
“27. On November 4, 2010, the court ordered the respondent and P.S., jointly and severally, to pay J.S. $2,500 in attorney fees and expenses.
“28. On November 24, 2010, P.S. appealed the district court’s decisions on the motion to resolve tire decree and the motion to amend. Both P.S. and the respondent appealed the sanctions order.
“29. On December 8, 2010, the court dismissed the breach of contract case. “30. In approximately February, 2011, the respondent deposited $2,500 with the court as a supersedeas bond, pending appeal.
“31. On May 4,2012, the Kansas Court of Appeals affirmed the district court’s denial of the motion to resolve the decree. Additionally, the Kansas Court of Appeals affirmed the district court’s sanctions order. Finally, the Kansas Court of Appeals dismissed the appeal of the motion to amend the journal entry as moot.
“32. In affirming the sanctions order, the Kansas Court of Appeals held that the respondent violated his duty of candor to the court when he faded to correct the omission of the prior demand letters in the motion and affidavit:
‘Even if we were to entertain the notion that [P.S.] forgot having authorized the Martin and Kincaid demand letters and did not notify [the respondent] of their existence, [the respondent] at the very least became aware of the Martin letter during [P.SJ’s deposition on May 14, 2010, and the Kincaid letter on July 14, 2010, when Jeffrey included it with the supplemental motion for sanctions. [The respondent] had ample time to either withdraw or amend the motion before the district court conducted the September 1, 2010, hearing. In short, [the respondent] failed to take remedial measures to fulfill his responsibility to be candid towards the district court in advancing the merits of [P.S.] motion to amend journal entry so as to not undermine the integrity of the adjudicative process and cause unnecessary delay and expense.’
Smith v. Smith, No. 105,365, unpublished opinion filed May 4, 2012, at p. 13.
“33. The Kansas Court of Appeals also found that the appeal was frivolous and awarded attorney fees in the amount of $10,000 against the respondent and P.S. under Supreme Court Rule 7.07(c) (2011 Kan. Ct. R. Annot. 64). Smith, at p. 14.
“34. On May 4, 2012, the Kansas Court of Appeals forwarded a copy of the Court’s unpublished decision to the Disciplinary Administrator. Based on the Kansas Court of Appeals’ opinion, die disciplinary administrator docketed a complaint against the respondent.
“35. On May 25, 2012, the respondent filed a written response to the complaint.
“36. On July 30, 2012, the respondent paid the $10,000 sanction ordered by the Kansas Court of Appeals.
“Conclusions of Lato
“37. Based upon the findings of fact and the stipulations of the parties, the hearing panel concludes as a matter of law that the respondent violated KRPC 3.1, KRPC 3.3(a)(3), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g), as detailed below.
“KRPC 3.1
“38. Lawyers must refrain from bringing frivolous proceedings. KRPC 3.1 provides:
‘A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
In this case, the respondent violated KRPC 3.1 by appealing the district court’s denial of the motion to resolve the divorce decree and the motion to amend the journal entry. The Kansas Court of Appeals concluded that the appeal was frivolous and ordered the respondent to pay $10,000 in attorney fees. As such, the hearing panel concludes that the respondent violated KRPC 3.1.
“KRPC 3.3
“39. KRPC 3.3(a)(1) provides that ‘[a] lawyer shall not knowingly . . . fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.’ In the pleadings, the respondent argued that tire $175,500 and tire proceeds from the 401(k) did not become owing until P.S. made the demand in 2009. The respondent, however, failed to inform the court thatP.S. had previously made two demands for the money.
“40. Assuming that the respondent did not initially know about the letters, he certainly knew about Mr. Martin’s letter on May 14, 2010, and of Mr. Kincaid’s letter on July 14, 2010. Yet, the respondent failed to correct the false statement by omission.
“41. As the Kansas Court of Appeals stated, the respondent ‘had ample time to either withdraw or amend the motion before the district court conducted the September 1, 2010, hearing. In short, [the respondent] failed to take remedial measures to fulfill his responsibility to be candid [to] the district court in advancing the merits of [P.S.] motion to amend journal entry so as to not undermine the integrity of die adjudicative process and cause unnecessary delay and expense.’ Smith, at p. 13.
“42. Accordingly, the hearing panel concludes that the respondent violated KRPC 3.3(a)(1) by failing to correct a false statement of material fact previously made to the court by the respondent.
“KRPC 8.4(c)
“43. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved misrepresentation when he failed to inform the court of the existence of the two previous demand letters. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).
“KRPC 8.4(d)
“44. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he appealed the district court’s decision denying the motion to resolve the divorce decree, denying the motion to amend the journal entry, and the award of sanctions. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“KRPC 8.4(g)
“45. ‘It is professional misconduct for a lawyer to . . . engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’ KRPC 8.4(g). The respondent engaged in conduct that adversely reflects on his fitness to practice law when he persisted with arguments which lacked merit. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“American Bar Association Standards for Imposing Lawyer Sanctions
“46. In making this recommendation for discipline, the hearing panel considered the factors outlined by the American Rar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“47. Duty Violated. The respondent violated his duly to the public to maintain his personal integrity.
“48. Mental State. The respondent knowingly violated his duty.
“49. Injury. As a result of the respondent’s misconduct, the respondent caused injury to the administration of justice.
“Aggravating and Mitigating Factors
“50. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“51. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct when he persisted in making arguments which lacked merit. The respondent filed a breach of contract case, in addition to motions in the divorce action, which alleged the same frivolous arguments.
“52. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 3.1, KRPC 3.3(a)(1), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“53. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted die respondent to practice law in the State of Kansas in 1990. At the time of the misconduct, the respondent has been practicing law for more than 20 years.
“54. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“55. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“56. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts and the rule violations.
“57. Imposition of Other Penalties or Sanctions. The respondent paid $12,500 in sanctions in this case. The district court ordered the respondent to pay $2,500 in sanctions. Additionally, the Kansas Court of Appeals ordered the respondent to pay $10,000 in sanctions. The respondent paid the sanctions. The respondent satisfied these orders in 2011 and 2012, respectively.
“58. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
‘6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.’
“Recommendation
“59. During closing argument, the disciplinary administrator stated that it was difficult to determine whether the appropriate sanction in the case was censure or suspension. However, the disciplinary administrator recommended that tire respondent be censured by the Kansas Supreme Court. The disciplinary administrator further argued that the censure should be published in the Kansas Reports. Additionally, the respondent also recommended that the Kansas Supreme Court censure him in a published opinion.
“60. The hearing panel is mindful that the parties agreed that the respondent should be publicly disciplined by a published censure. Had the respondent not stipulated that he engaged in dishonest conduct, the hearing panel might have agreed to that recommendation. However, because the respondent characterizes his behavior as dishonest conduct, in violation of KRPC 3.3(a)(1) and KRPC 8.4(c), the hearing panel concludes that a short suspension is warranted. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of 30 days.
“61. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinaiy proceeding, this court considers the evidence, tire findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before tire panel and the hearing before this court. The respondent did not file exceptions to tire hearing panel’s final hearing report. As such, the findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 3.1 (2013 Kan. Ct. R. Annot. 584) (meritorious claims and contentions); 3.3(a)(1) (2013 Kan. Ct. R. Annot. 594) (candor toward tribunal); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer’s fitness to practice law), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
At the hearing before this court, at which tire respondent appeared, the office of the Disciplinary Administrator and the respondent recommended that the respondent be censured publicly. The hearing panel recommended that the respondent be suspended for a period of 30 days.
This court is not bound by the recommendations of the Disciplinary Administrator or the hearing panel. In re Mintz, 298 Kan. 897, 911-12, 317 P.3d 756 (2014). The court bases each disciplinary sanction on the specific facts and circumstances of the violations and aggravating and mitigating circumstances presented in the case. Mintz, 298 Kan. at 912. This court has taken the position that, while prior cases may have some bearing on the sanctions that the court elects to impose, those prior cases must give way to consideration of the unique circumstances that each individual case presents. In re Busch, 287 Kan. 80, 86-87, 194 P.3d 12 (2008). This court concerns itself less with the sanctions that were appropriate in other cases and more with which discipline is appropriate under the facts of the case before us. In re Dennis, 286 Kan. at 738.
While we understand the serious nature of the dishonest conduct that the respondent stipulated to, we agree with the Disciplinary Administrator’s recommendation and find published censure to be appropriate in this case.
Conclusion and Discipline
It Is Therefore Ordered that William E. Colvin be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Per Curiam,-.
Roger W. Hollister was convicted by a jury of capital murder under K.S.A. 21-3439(a)(2) for the intentional and premeditated killing of Patricia Kimmi, pursuant to a contract or agreement to kill her. Hollister filed this direct appeal, but he passed away before oral arguments were conducted. His death raises the question of whether his appeal is moot.
In Kansas, the death of a criminal defendant does not automatically abate a defendant’s appeal. We hold, however, that this non-abatement rule does not require us to consider all issues in an appeal. Rather, an appellate court should consider whether an issue: (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that would exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition. Only issues meeting one of tírese criteria should be addressed.
In this case, the only issue that meets these criteria is an issue that might clear Hollister’s name, specifically his claim that the evidence was insufficient to support his conviction. Finding no merit to that issue, we affirm Hollister’s conviction. Further, because we conclude the remaining issues are moot, we dismiss the remainder of this appeal.
Facts and Procedural Background
Patricia and Eugene Kimmi had been married for 37 years when they divorced in March 2008. When the acrimonious divorce proceedings concluded, Eugene frequently complained to numerous individuals about the division of marital property and his ongoing maintenance obligations. Several people heard him say that he wanted Patricia dead. For example, Eugene’s nephew, D.J. Kimmi, who had worked at tire Kimmi sawmill with Eugene for 25 years, testified he heard Eugene make such a statement at least once a week after tire divorce.
On Saturday, November 7, 2009, Patricia’s best friend and her children became concerned because Patricia had not answered either her cell phone or house phone and had not returned their calls since the prior day. Because this was unusual, two of Patricia’s and Eugene’s four children went to their mother’s house on 326th Road in Atchison County to check on her. When they arrived, they found her vehicle outside her house and her keys, cell phone, and purse inside. Several items were out of place or knocked over. When they could not locate their mother, they called law enforcement officers who began a search. The officers noticed carpet threads on the deadbolt lock and “drops of blood . . . spattered about a two foot by two foot area” of the gravel driveway.
As the search expanded, several pieces of evidence were located along 326th Road in an area not far from Patricia’s house. This area became known as the “second scene.” The items found at the second scene included a camouflage ball cap embroidered with Saylor Insurance Service, Inc.; a bloody money clip; a bloody cologne bottle and detached cap; a bloody velvet brown bag that had another bag inside it with eight .22 Magnum live rounds and some .22 Magnum shells; and a bloody latex glove. Law enforcement officers also observed an area of blood-stained grass. Months later, it was determined that a DNA profile from the ball cap was consistent with the profile of Hollister and the blood on the money clip, plastic cologne cap, cologne bottle, velvet bag, latex glove, and grass was consistent with the DNA of Patricia. Other evidence established that Hollister used the brand of cologne found at the second scene and that he often kept a bottle in his pickup truck. Eventually, after months of denying any involvement in Patricia’s disappearance, Hollister admitted the money clip was his.
About a mile away from the second scene, searchers found a Walmart receipt dated November 6, 2009, which was the first day Patricia had not answered her friend’s and family’s telephone calls. Officers were able to track the customer through the receipt and question him. The customer told officers he and a friend had been drinking alongside 326th Road on that night. As they left, he drove down 326th Road and along the way saw a red Dodge dually pickup truck beside the road. He could see legs kicking in the air behind the truck in the grass. The legs appeared to have on green pants and cowboy boots.
Law enforcement issued a release to the public that included pictures of the Saylor Insurance ball cap, the money clip, and a description of the red dually pickup truck. This led to an anonymous tip that Hollister owned all of the items described in the release. Investigators then verified that Hollister was a customer of Saylor Insurance and had insured a pickup truck through the agency.
Slightly over 1 month after Patricia’s disappearance, Atchison County Undersheriff Larry Myer interviewed Hollister at his farm. Hollister admitted he knew Eugene and did business at Kimmi’s sawmill, but he denied ever meeting Patricia. Hollister also admitted that he had owned a red dually pickup truck, but he explained he had sold it to an individual for $2,000. When asked if he owned any Saylor Insurance ball caps, he told Myer he had several because he was friends with the owner.
Contraiy to Hollister’s statement about selling his pickup truck, law enforcement officers learned that he had sold his truck a few days after Patricia’s disappearance to the Brinkman Brothers Chevy dealership in Tecumseh, Nebraska. The dealership accepted Hol-lister’s 1998 red Dodge crew cab dually pickup truck, which was described as “extremely clean,” as a trade-in when Hollister purchased a 2000 Chevy truck. The day after the sale, Hollister called the dealership and asked if there was a money clip in his old pickup truck; there was not. A week later, Hollister called and asked if the dealership still had his old pickup truck because he wanted to purchase it back. The truck had not been sold, and Hollister purchased it.
Myer interviewed Hollister again several times. During one interview, Myer told Hollister that investigators knew he had sold his pickup truck to the Brinkman Brothers dealership. Hollister responded by saying that he bought the truck back from the dealership for $5,400 and then sold it for $6,500, and made $1,100 profit. When questioned again about the Saylor Insurance ball cap, Hollister said his dog got a hold of it and “ ‘it’s laying [sic] in the yard, part of it’s still there, the dog chewed it up.’ ” Hollister also showed officers a money clip that was similar to but not identical to the one found at the second scene.
In addition, investigating officers checked into Hollister’s business at Kimmi’s sawmill. D.J. remembered Hollister and specifically recalled one occasion in September 2009 when Hollister and Eugene sat in the office talking and drinking for about 45 minutes. Once Eugene started telling Hollister about the divorce, D.J. left the office. D.J. also recalled Hollister calling the sawmill about 2 months after Patricia disappeared. D.J. did not hear the conversation, however, because Eugene moved outside before talking to Hollister.
A week after the telephone call, Hollister was at the sawmill when D.J. arrived for work. After learning Eugene was not there, Hollister told D.J. he had been questioned by law enforcement and had given them a DNA sample. After D.J. told Hollister that law enforcement had taken Eugene’s DNA as well, Hollister said, “I told Eugene to watch what he wished for, that I would take care of his problem for him.” D.J. asked Hollister what he meant, and Hollister replied, “I know this hit man that comes through the country and he called me awhile back and told me that he was coming through and he would take care of this problem for me.” Hollister asked D.J. if Eugene was still paying Patricia alimony, and D.J. indicated he was. Hollister told D.J., she “will never be found. . . . [S]he’s not here to take him back to court, so he doesn’t need to keep paying her.”
Hollister then talked about the money Eugene owed him, saying, “When he came through, it cost me $70,000.00. . . . [I]t wiped me out, it took all my money. . . . I’m here to recoup my money.” Hollister also wanted “$10,000.00 to pay for his pickup that he had to have crushed because it matched die description of the pickup that they were looking for and he couldn’t take any chances.” D.J. told Hollister that Eugene did not have that land of money and his bank accounts were being monitored, but Hollister replied that Eugene had told him that he had some money stashed. Hollister told D.J. to tell Eugene diat he was looking for him, he needed his money, and if anyone asked about his visit to the sawmill to tell them that he was there to get some oak lumber.
Later, when Myer asked Hollister about this conversation, Hol-lister indicated the “younger man” at the sawmill brought up die investigation and a $70,000 payment. Hollister denied talking about a hit man.
Law enforcement officers looking for Hollister’s red dually pickup truck learned that Hollister had recently done business witii Smitty’s Salvage Yard in Axtell. An officer explained to the salvage yard’s owner that investigators were looking for a red pickup truck. The owner showed the officer a crushed and burnt cab of a four-door pickup truck that had been anonymously left on what appeared to be a homemade grain cart; red paint could still be seen around the edges of the cab. Investigators were able to identify the vehicle identification number on one portion and a derivative number on another portion. These numbers matched the vehicle identification number on the title of a Dodge pickup truck belonging to Hollister.
Based on the information gathered through the investigation, law enforcement officers obtained and executed a search warrant at Hollister’s property. The executing officers found a bum pit in which they located a muffler and other vehicle parts. Nearby, they found backhoe tracks in the snow, leading them to dig in a ditch where they found a buried partial bed of a pickup track that had been burnt and smashed.
After the search, Hollister and his attorney contacted Myer and offered to malee yet another statement. Hollister began the recorded interview by saying he had previously tried to hide what had happened because he was scared for his life and his daughter’s life. He then told officers that on the Friday night Patricia disappeared, Eugene knocked on Hollister’s door and asked to borrow Hollister’s dually pickup truck. Although Hollister did not know Eugene very well, they had done business together and Hollister trusted him; consequently, he allowed Eugene to take the pickup truck. When Hollister woke up Saturday morning, the pickup truck had been returned; it was extremely clean and had a full tank of gas. A few days later, Hollister traded in the pickup truck for another at the dealership in Nebraska.
A few days after he traded in the pickup truck, Hollister and his wife were parked outside the John Deere dealership in Hiawatha when Eugene pulled up beside him. Eugene asked where Hollis-ter’s red dually pickup truck was. When Hollister told him, Eugene became very angiy and told Hollister that if he cared for his life and his family’s lives he would get the pickup truck back. Eugene said he would pay $10,000 for the truck and another $70,000 to keep Hollister’s mouth shut. Hollister told Eugene he did not want the money.
Nevertheless, Hollister got the pickup track back, destroyed it, and took it out to Smitty’s Salvage Yard. Repeatedly during the interview, Hollister indicated he was afraid and adamantly denied going with Eugene or having anything to do with Patricia’s disappearance.
Hollister was taken into custody on other charges on March 4, 2010. The next day, Hollister and his attorney contacted Myer and offered to give another statement. In this recorded statement, Hoi- lister admitted to going to Patricia’s house with Eugene. Hollister indicated drat in the September 2009, conversation at the sawmill, Eugene had said, “If I could just find someone to take care of my wife for $70,000.” Hollister denied saying anything in reply.
Then, on Friday, November 6, 2009, Eugene knocked on Hol-lister’s door asking to borrow his dually pickup truck. Because Hol-lister would not let anyone borrow his truck, he told Eugene he would drive. Eugene directed him to a house and told him to wait in the pickup truck. Hollister saw Eugene drag a rolled-up carpet out of the house and put it in the back of the truck. Eugene then instructed Hollister to drive west. A short distance down the road, it sounded like something fell out of the back, of the truck. Eugene told Hollister to stop and to keep watch. While Hollister stood by the truck, another vehicle drove by.
Eugene then pushed tíre roll of carpet back into the pickup truck and asked Plollister for some pliers because he wanted to secure the load with some wire. In the process, Eugene knocked over a box on the floorboard that contained Hollister’s money clip. Once the truck was reloaded, Eugene instructed Hollister to drive to Hollister’s house. When they arrived, Eugene slid tire cargo out of Hollister’s truck and into Eugene’s truck. Hollister then went inside.
Approximately 2 months later, Rebecca Hollister and her attorney contacted law enforcement and reported that Rebecca had discovered potential evidence. The next day, Rebecca directed law enforcement officers to a location near tire creek on adjoining property that belonged to Hollister’s brother but was managed by Hollister. Rebecca showed the officers a piece of green fabric and some human remains. A forensic pathologist examined the vertebral body and the few ribs that were still attached and noticed a line of destruction where the ribs appeared to have been cut in a straight line. There was no way to determine whether the destruction to the bones was antemortem or postmortem. Nor could the pathologist determine the cause of death from the remains, but he did determine the death was a homicide. A reverse maternity test determined there was a “99.99 percent” chance the bones were from Patricia Kimmi, mother of the Kimmi children.
A juiy hearing this evidence convicted Hollister of capital murder under K.S.A. 21-3439(a)(2) for the intentional and premeditated killing of Patricia, pursuant to a contract or agreement to kill. The sentencing court imposed a life sentence without the possibility of parole. Hollister timely appealed his convictions.
Effect of Hollister’s Death
At oral argument in this appeal, both counsel acknowledged that Hollister had passed away after this appeal had been filed. This led to questioning by the court about the status of the appeal and a subsequent motion by Hollister’s appellate counsel in which she argued that a criminal defendant’s direct appeal is not abated by death. See, e.g., State v. Salts, 288 Kan. 263, 265, 200 P.3d 464 (2009) (defendant’s death 12 days after his notice of appeal was filed did not render his direct appeal moot); State v. Burnison, 247 Kan. 19, 32, 795 P.2d 32 (1990) (“[I]n Kansas the death of a defendant does not abate his direct appeal as it is in the interest of the public that the issues raised on appeal be adjudicated upon the merits.”); State v. Jones, 220 Kan. 136, Syl. ¶ 1, 551 P.2d 801 (1976) (“Death of an appellant during the pendency of his direct appeal from the conviction of a criminal offense does not abate the appeal.”); State v. Ellvin, 51 Kan. 784, Syl. ¶ 1, 33 P. 547 (1893) (court reviewed judgment for costs related to late defendant’s conviction for selling intoxicating liquors); State v. Fisher, 37 Kan. 404, 405, 15 P. 606 (1887) (considered merits of case after defendant’s death to resolve issue of costs).
By not abating an appeal on a criminal defendant’s death, Kansas stands apart from many other jurisdictions. The most common approach—one that has been adopted by the federal courts and more state appellate courts than any other approach—is to apply the doctrine of abatement ah initio. Under this doctrine, a criminal defendant’s death abates the appeal and all proceedings from the beginning of tire criminal case. Courts adopting this approach often reason that the purpose of a criminal proceeding is punishment, and tire death divests a court of jurisdiction to either enforce a judgment or, if a conviction is reversed, to conduct a new trial. In another approach, several state courts have held that tire death renders the appeal moot; in these cases, the appeal is dismissed, and the conviction stands. See State v. Burrell, 837 N.W.2d 459, 462-67 (Minn. 2013) (discussing various approaches and listing cases using each approach).
Kansas and a few other states follow a third approach that allows an appellate court to consider the merits of tire appeal. In Jones, this court explained the reasons it was adopting this approach. First, the court noted the “state and the defendant (not to mention his family) have endured the strain, the tribulation and the expense of trial and appeal” and have an interest in the final determination of a criminal case. 220 Kan. at 137. Additionally, a “right to inherit, or to take by will or otherwise, may be affected.” 220 Kan. at 137. Given these considerations, the court concluded that “under the circumstances of this appeal,” the “proceeding should be adjudicated upon the merits.” 220 Kan. at 137; see Burnison, 247 Kan. at 32 (stating, “it is in the interest of the public that the issues raised on appeal be adjudicated upon the merits”).
More recently, this court subtly indicated not all issues will be reviewed, stating: “The issues may be fully reviewed and adjudicated when doing so is in the public interest or when it is in the interest of the appellant’s family and estate.” (Emphasis added.) State v. Karson, 297 Kan. 634, Syl. ¶ 1, 304 P.3d 317 (2013). In Karson, the court held the defendant’s death did not abate his appeal “in light of the public interest considerations attendant to the case.” 297 Kan. at 638. Specifically, the court noted the issue touched on the constitutionality of a statute, raised an issue common in several other appeals but under “somewhat different” facts, and involved the review of a published Court of Appeals decision. 297 Kan. at 637-38; see State v. Hand, 297 Kan. 734, 736, 304 P.3d 1234 (2013) (despite defendant’s death, court considered merits of petition for review concerning the sentencing judge’s reliance on fair market value of property stolen because it was in public interest).
Both Karson and Hand reached this court on petitions for review, which means this court’s review was entirely discretionaiy. See K.S.A. 20~3018(b); K.S.A. 60-2101(b); Supreme Court Rule 8.03 (2013 Kan. Ct. R. Annot. 74). While this discretion might explain the use of “may” in Karson, the context clarifies that the statement applies to any criminal defendant’s direct appeal where the defendant has died. Karson instructs us that the general non-abatement rule—i.e., that the death of a criminal defendant does not abate the defendant’s direct appeal from his or her criminal convictions—does not require an appellate court to consider the merits of every issue raised in the deceased defendant’s appeal.
The approach taken in these cases is consistent with this court’s broader approach to addressing moot issues in other contexts. We have explained that the “ ‘mootness doctrine is one of court policy.’ ” Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005) (quoting Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, Syl. ¶ 1, 912 P.2d 716 [1996]). In exercising this policy, “ ‘[a]n appellate court may sometimes elect to entertain issues which, although moot, are subjects of real controversy and include issues of statewide interest and importance’ or ‘is one capable of repetition.’ ” Martens, 279 Kan. at 244 (quoting Duffy, 259 Kan. 500, Syl. ¶ 2).
In light of this caselaw, we hold that an appellate court should consider whether an issue: (1) is of statewide interest and of the nature that public policy demands a decision, such as those issues that would exonerate the defendant; (2) remains a real controversy; or (3) is capable of repetition. Only issues meeting one of these criteria should be addressed.
In this case, as the factors discussed in our past cases were explored during oral arguments, the parties seemed to agree that the only issue that would clear Hollister’s name is an insufficiency of evidence issue; all other issues would require a remand for a new trial if error was found, but a new trial would be impossible given Hollister’s death. Further, the State advised it did not believe there were any issues of statewide interest alleged in the case. We agree.
Hollister’s counsel attacks Hollister’s convictions, raising four issues in addition to the sufficiency of the evidence: (1) The trial court committed reversible error in failing to instruct the jury on the lesser included offense of second-degree intentional murder; (2) the trial court committed reversible error in modifying the element instruction on capital murder to include aiding and abetting liability which eliminated an element of the offense; (3) the pros ecutor committed reversible misconduct by telling the juiy the State did not have to prove where the victim died; and (4) the cumulative effect of the errors deprived Hollister of a fair trial.
These four issues are unique to this case and are heavily fact dependent. As the State suggested, none of them would settle an issue of public policy given their case-specific nature. Accordingly, the issue that might exonerate Hollister—whether there was sufficient evidence to sustain Hollister s conviction for capital murder—is the only issue we will consider.
Evidence Was Sufficient
An appellate court’s standard of review on a sufficiency issue is well known: “When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. 292 Kan. at 581.
In this case, we must apply this standard to determine whether there was sufficient evidence of each of the elements of capital murder. As that offense was charged against Hollister, the State had to prove beyond a reasonable doubt that Hollister intentionally and with premeditation killed Patricia pursuant to a contract or agreement to kill her or that Hollister was a party to a contract or agreement pursuant to which Patricia was killed. See K.S.A. 21-3439(a)(2).
Hollister’s counsel contends that so little is known about the circumstances surrounding Patricia’s disappearance and death that no rational factfinder could find each of these elements had been proven beyond a reasonable doubt. Specifically, counsel attacks the evidence of a contract and of premeditation. In making the argument that there is insufficient evidence of a contract, counsel points out that it was well known that Eugene wanted Patricia dead but there was no evidence that Hollister agreed to help Eugene. In addition, Hollister’s counsel argues there is no evidence of any payments. As to premeditation, counsel argues there is no evidence as to the weapon involved, no evidence as to whether any blows were inflicted, and no evidence of statements or threats made by Hollister to Patricia.
Contract for Hire
The focus of Hollister’s argument is on the lack of direct evidence of payments or, more generally, of an agreement. But evidence of a contract, like other elements, can be proven by circumstantial evidence. See State v. Lowrance, 298 Kan. 274, 297, 312 P.3d 328 (2013) (“[I]t is well established that a conviction for even the gravest offense may be sustained by circumstantial evidence.”). The question, therefore, is whether there is evidence, including circumstantial evidence, to answer the determinative question of whether a binding contract was entered into, which “ ‘depends upon the intention of the parties.’ ” Price v. Grimes, 234 Kan. 898, 904, 677 P.2d 969 (1984). We hold that there was sufficient circumstantial evidence of a contract to support the juiy’s verdict.
Specifically, Hollister admitted that Eugene had made an offer when Eugene said, “If I could just find someone to take care of my wife for $70,000.” Other evidence indicates Hollister took Eugene up on this offer. D.J. testified that Eugene and Hollister had at least a 45-minute conversation in September and that Eugene talked about his divorce during the conversation. Then, after Patricia’s disappearance, Hollister told D.J., “[Wjell I'told Eugene to watch what he wished for, that I would take care of his problem for him.” D.J. also reported that Hollister indicated he knew “this hit man that comes through the country and he called me awhile back and told me that he was coming through and he would take care of this problem for me.” The conversation moved from possibilities to action when Hollister told D.J. that when the man came through “it cost me $70,000. . . . [I]t wiped me out, it took all my money. . . . I’m here to recoup my money.” Hollister then made a statement that indicated he had fulfilled his part of the contract by saying, “[T]he subject will never be found. . . . [Sjhe’s not here to take him back to court, so he doesn’t need to keep paying her.” Finally, in demanding his payment, Hollister would not accept D.J.’s statement that law enforcement had control of all of Eugene’s money as an excuse for Eugene’s failure to pay; according to Hollister, Eugene had said that he had some money stashed.
Hollister’s counsel also argues that the State’s case is insufficient because there is no evidence that money was ever exchanged. He suggests that the lack of consideration implies there was no agreement. But Hollister’s actions speak loudly and communicate that he understood there to be an agreement. At most, therefore, the lack of payment indicates that Eugene breached his portion of the contract, not that there was no agreement. See Cornett v. Roth, 233 Kan. 936, 944, 666 P.2d 1182 (1983) (“ ‘bilateral contract that has either been wholly performed on one side, or in which the promises are independent, a breach as to one or any number less than the whole of the promised acts is generally partial’ ”) (quoting 5 Williston on Contracts, § 1290, p. 3676 [rev. ed. 1937]).
This evidence, when viewed in the light most favorable to the State, was sufficient for a rational factfinder to determine Hollister had contracted with Eugene for the murder of Patricia.
Premeditation
Hollister similarly focuses on the lack of direct evidence of premeditation. As he argues, there is no direct evidence of this element, but premeditation, like other elements, can be proven by circumstantial evidence. To assist in the evaluation of the circumstances for proof of premeditation, this court has utilized several considerations: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. See State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011); State v. Scaife, 286 Kan. 614, 617-18, 186 P.3d 755 (2008); State v. Scott, 271 Kan. 103, 109, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). “Not all factors must be present before premeditation can be inferred.” State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013); State v. Morton, 277 Kan. 575, 581-83, 86 P.3d 535 (2004). “In some cases, one factor, standing alone, may be compelling evidence of premeditation.” State v. Cook, 286 Kan. 1098, 1102-03, 191 P.3d 294 (2008) (stating, “This is from Tami in Wichita” before the shots were fired obviously manifested a premeditated intent to kill); Morton, 277 Kan. at 581-83 (evidence supporting second and third factors sufficient in finding premeditation).
Hollister correctly identifies tiróse factors for which there is no evidence in this case: There is no evidence of the nature of the weapon used, any provocation, or any threats or even prior contact between Hollister and Patricia. Nevertheless, Hollister’s conduct both before and after the killing and the evidence that lethal acts continued after Patricia had been rendered helpless are factors that weigh toward a finding of premeditation.
Most significant is the evidence we have already discussed that supports the conclusion Hollister entered into an oral contract with Eugene to either help arrange or participate in the felling of Patricia. In addition, Hollister admitted he was present when Patricia was kidnapped from her home. Physical evidence substantiates his presence, linking him to evidence found at the second scene through his DNA, his admission that some of the articles belonged to him, and the eyewitness’ description of his red dually pickup truck. D.J.’s testimony provides evidence that Hollister knew Eugene wanted Patricia dead. Also, even if a juror believed that Eugene had just showed up on Hollister’s doorstep and there had not been a prearranged plan, the State presented evidence describing the route Hollister would have driven from his house to Patricia’s, a route that was described as at least a 10-minute drive. This evidence establishes that Hollister had an opportunity to consider his actions after Eugene allegedly showed up on Hollister’s doorstep. The State also introduced evidence through D.J. establishing that Eugene was not a strong man; rather, D.J. performed the physical labor of operating the sawmill. This testimony casts doubt on Hol-lister’s statement that he just sat in his pickup truck while Eugene carried a rolled-up carpet out of Patricia’s house, a task that common sense suggests could not be performed by someone who had difficulty performing heavy labor. And it was a reasonable inference that Patricia was in the carpet.
Furthermore, Hollister admits he went to great lengths to destroy his red dually pickup truck. And circumstantial evidence, such as the location where Patricia’s vertebral bones were found, suggests he had a role in either dismembering Patricia’s body or, at least, in burying her body parts in an attempt to hide the crime.
Summary
Hence, there is evidence that Hollister premeditated his involvement with the killing of Patricia and that he had agreed to help kill Patricia or to arrange for her murder in exchange for money. Accordingly, viewing tire evidence in the light most favorable to the State, we hold that a rational factfinder could have found beyond a reasonable doubt that Hollister was guilty of the offense of capital murder pursuant to an agreement or contract to kill Patricia Kimmi.
Obviously, our conclusion does not exonerate Hollister. Thus, even if there was a trial error on any of the issues raised by Hol-lister, we would remand for a retrial. Those remaining issues are fact- and case-specific and do not raise matters of public interest. Therefore, we do not address those issues and instead dismiss those issues as moot. See State v. Benn, 364 Mont. 153, 274 P.3d 47 (2012).
Affirmed in part and dismissed in part.
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The opinion of the court was delivered by
Luckert, J.:
On petition for review of a decision of the Court of Appeals, we consider Christina Mika Isabel Ortega’s appeal from her convictions of attempted aggravated interference with parental custody and disorderly conduct. The Court of Appeals found several of Ortega’s nine issues lacked merit but found multiple trial errors. Nevertheless, the Court of Appeals affirmed Ortega’s convictions after a majority of the Court of Appeals panel concluded these errors did not deprive Ortega of a fair trial. State v. Ortega, No. 106,210, 2013 WL 192714 (Kan. App. 2013) (unpublished decision).
Before us, Ortega argues the Court of Appeals erred in rejecting some of her claims of error and, where it found error, in determining that she was not deprived of a fair trial. The State did not file a cross-petition asking us to revisit any of the Court of Appeals’ determinations of error.
We reject Ortega’s arguments that there were additional trial errors beyond those found by the Court of Appeals, but we agree with Ortega’s arguments that two of the errors, both relating to her defense of ignorance or mistake, were sufficiently prejudicial to warrant the reversal of her conviction for attempted aggravated interference with parental custody. This prejudice did not taint
Ortega’s conviction for disorderly conduct, however. Nor do any other claimed errors. We, therefore, affirm the Court of Appeals and district court in part and reverse in part.
Facts and Procedural Background
The charges against Ortega stem from an incident in August 2010 at Kenneth Henderson Middle School in Garden City, where Ortega’s 14-year-old daughter, V.O., was a student.
In the weeks before the incident, Ortega had been in Colorado. She had left her children, including V.O., with her mother. Despite Ortega’s original intention to stay in Colorado for just a few days, she remained for “a little over a month” because she lost her purse and did not have any money or identification. While in Colorado, Ortega did not have a forwarding address, but she called her mother twice a week from borrowed phones “to make sure that the children were okay.”
Because Ortega left V.O. and was gone for 6 weeks, a child in need of care (CINC) petition was filed. On August 30, 2010, the Finney County District Court held a CINC hearing. Ortega’s mother attended, the hearing, but Ortega was not present. The court issued an order removing V.O. from her grandmother’s home and granting custody to Social and Rehabilitation Services (SRS). Subsequently, SRS placed V.O. in foster care with Saint Francis Community Services (St. Francis).
There was evidence that Ortega was unofficially aware, at least in general terms, of the court order because her mother testified that she informed Ortega that V.O. was in SRS custody or foster care when Ortega called to check on the children. There is no record of whether Ortega was officially notified of the CINC hearing or received a copy of the order or any other paperwork regarding V.O.’s custodial status. The first documented contact between SRS and Ortega occurred on September 9, 2010.
Ortega had returned from Colorado on the evening of September 8, 2010. Her mother told her “[t]hat the children were taken from her and that [Ortega] could go pick them up.” Ortega’s mother did not know that Ortega could not pick up the children.
Ortega went to Kenneth Henderson Middle School on the morning of September 9, 2010, to see V.O. Ortega entered the front office and reported to the school’s attendance secretary that “she had a good job in Colorado” and “was there to take [V.O.] with her to Colorado.” Ortega, who appeared upset and nervous, also told the attendance secretary “how unhappy she was with this p«»ing state” and mumbled something about St. Francis.
The attendance secretary pointed to the “Student Check-Out Sheet” and told Ortega school policy required a parent to sign the sheet if they wanted to take their child out of school. The sheet included the following columns: “Date,” “Student’s Name,” “Reasons for Leaving,” “Time Left,” “Checked Out By,” and “Time Returned.” The attendance secretary saw Ortega sign the sheet and fill it out by writing: “9/9,” V.O., “going out of town,” and “11:00 p.m.” In addition, Ortega mistakenly signed the teacher “Sign Out Sheet,” which includes the following columns: “Name,” “Reason for Leaving,” “Date,” “Time Out,” and “Time In.” Ortega filled out the sheet as follows: V.O., “trip,” “9/9,” and “8:49.” The attendance secretary did not see Ortega fill out this sheet.
The attendance secretary was hesitant to release V.O. to Ortega because she knew V.O. was in foster care through Saint Francis. The secretary went to the associate principal to discuss the release of V.O. While the attendance secretary was talking to the associate principal, the school’s head secretary saw Ortega and asked Ortega if she needed help. Ortega replied that she was there to get her daughter. The head secretary asked if it was for an appointment, and Ortega indicated she was taking her daughter out of town and mentioned Colorado.
The associate principal summoned the school resource officer and another school secretary to assist in determining whether V.O. should be allowed to leave with Ortega. Meanwhile, the associate principal went to V.O.’s classroom to tell V.O. her mother was there. V.O. reported she was in foster care, was not allowed to have contact with her mother, and would not leave with her mother. The associate principal went back to the front office where the school resource officer, who had called St. Francis, confirmed that Ortega did not have authority to take V.O.
The school resource officer went to the lobby where the campus supervisor had intercepted Ortega to ensure that she did not go anywhere else in the school. Ortega was yelling: “You white bitches can’t keep me from my child”; “You white bitches have picked on the wrong . . . Mexican, and you going to regret this”; “[T]his £*«#ing school is nothing but a bunch of prejudiced people, including you Mother Fws*er”; “Kansas is black and white, and I’m Mexican, . . . F***fting Kansas is stupid”; and “Kansas doesn’t know who they’re messing with, . . . When Aztlan rises, we’re going to take our lands back.” The school resource officer called another police officer for backup. When the school resource officer told Ortega that V.O. was in SR.S custody and could not be taken, Ortega said angrily that “it didn’t matter . . . she was going to take [V.O.] anyway” because “she ha[d] a house and a job in Colorado and she was going to raise her lads there, and that Kansas is not the place to raise kids.”
The school resource officer told Ortega she had to leave the school and could contact St. Francis with any questions. The officer thought Ortega might come back to the school because her parting words were: “[Yjou’re going to regret this. You’re . . . messing with the wrong Mexican. . . . Don’t worry, you haven’t seen the last of me.” Consequently, school officials locked every outside door except the front ones, which they monitored for the remainder of the school day. Ortega made no additional attempts to contact or see V.O.
The next day St. Francis contacted tire Garden City Police Department to report that Ortega had been there. An officer found Ortega and arrested her. When the officer informed Ortega she was being charged with attempted aggravated interference with parental custody and disorderly conduct, she responded: “That was my goal, to piss everyone off.”
At Ortega’s trial, the jury heard from the various school officials and law enforcement officers who were involved in the altercation with Ortega. The jury also heard testimony from a social worker with Garden City SRS who testified about Kansas’ child custody process. She desciibed the process related to a child becoming a ward of the State, in particular the process in which V.O. was placed in SRS custody. In addition, the social worker explained a biological parent cannot take the child out of town or state if the child is in SRS custody. The social worker testified that St. Francis, as a foster care provider under contract with SRS, is required to notify parents, if their whereabouts are known, within 24 hours of a SRS referral.
The jury also heard testimony through an interpreter from Ortega’s mother. She testified that she thought Ortega would pick up V.O. but she did not think Ortega would take her to Colorado “because in Colorado she didn’t have anywhere to live.”
Ortega took the stand in her own defense. She testified that she was not aware V.O. was in SRS custody; her mother had merely told her that V.O. had been “taken away”; and she had no idea what “SRS custody” meant. Therefore, she did not know she could not have contact with V.O. or take V.O. out of school. Although Ortega told school officials she might be taking V.O. out of town, she explained to the jury that she “wasn’t really planning on going anywhere” because she “didn’t have any money to go out of town.” Further, she testified that she had no intention of going to Colorado “in the immediate future” because she only had $10 in her pocket, no household belongings or suitcases packed in her car, and no home or job in Colorado. She explained that she just wanted to take V.O. out of school because she had been gone for over a month and did not want to wait until the end of the school day to see V.O.
Ortega further testified that had she been able to collect V.O., V.O. would have been back at school the next day. Ortega admitted she was upset, did not want V.O. to be in SRS custody, and “to a certain extent” would have done whatever she could to prevent V.O. from living in a foster home. But she would not have intentionally broken the law to get V.O. out of SRS custody.
The jury convicted Ortega of attempted aggravated interference with parental custody, in violation of K.S.A. 21-3301 and K.S.A. 21-3422a(a)(2)(C), and disorderly conduct, in violation of K.S.A. 21-4101. The district court granted Ortega’s motion for durational departure and sentenced her to a controlling term of 10 months’ imprisonment.
Court of Appeals’ Decision
Ortega filed a timely appeal with the Court of Appeals, raising nine issues: (1) Was the evidence sufficient to prove that Ortega performed an overt act toward taking her child out of state, a requisite to attempted aggravated interference with parental custody? (2) Is the interference with parental custody statute an alternative means statute, and, if so, did the State present sufficient evidence of each alternative means? (3) Did the prosecutor commit misconduct by vouching for witnesses? (4) Did the trial court err in using an outdated version of the pattern reasonable doubt instruction? (5) Did tire prosecutor commit misconduct by misstating the law regarding the defense of ignorance or mistake? (6) Did the trial court commit clear error by failing to instruct the jury regarding the law relating to the defense of ignorance or mistake? (7) Did the trial court commit clear error by failing to instruct on the lesser included offense of attempted interference with parental custody? (8) Did the prosecutor commit misconduct requiring reversal of the attempted aggravated interference conviction by violating the trial court’s order in limine? and (9) Should Ortega’s convictions be reversed because of cumulative errors?
The Court of Appeals rejected Ortega’s insufficiency arguments; held K.S.A. 21-3422, which defines the crime of interference with parental custody, did not state alternative means of committing the crime; and concluded the prosecutor did not commit misconduct by improperly vouching for the credibility of witnesses. But tire Court of Appeals panel found several trial errors, including two instances of prosecutorial misconduct and three jury instruction errors. As to the prosecutor’s misconduct, the panel held the prosecutor misstated the law regarding the defense of ignorance or mistake and violated a motion in limine. The jury instruction errors included a failure to instruct on the defense of ignorance and mistake, a failure to instruct on the lesser included offense of interference with parental custody, and the use of an outdated pattern instruction on reasonable doubt. The Court of Appeals majority determined none of the errors—either individually or cumulatively—required reversing Ortega’s convictions. Ortega, 2013 WL 192714.
Chief Judge Malone dissented. He would have reversed Ortega’s conviction for attempted aggravated interference with parental custody. In explaining his rationale, he first cited the trial court’s error in failing to give the lesser included offense instruction, noting there was a substantial fact dispute about whether Ortega intended to remove V.O. from Kansas—the element that differentiates aggravated interference with parental custody from the lesser included offense of interference with parental custody. Applying the clearly erroneous standard for reversal, he stated that he was “firmly convinced there is a real possibility that the jury could have found Ortega guilty of the lesser offense of attempted interference with parental custody had the district court given the appropriate jury instruction.” 2013 WL 192714, at *13 (Malone, C.J., dissenting). In addition, he concluded the prosecutor denied Ortega a fair trial by committing “gross and flagrant misconduct by blatantly disobeying the order in limine and by misstating the law on the defense of ignorance or mistake.” Ortega, 2013 WL 192714, at *14 (Malone, C.J., dissenting). These errors required reversing Ortega’s attempted aggravated interference with parental custody conviction, according to Chief Judge Malone, but “probably had no impact on the disorderly conduct charge.” 2013 WL 192714, at *14 (Malone, C.J., dissenting).
Ortega filed a petition for review seeking this court’s review of the Court of Appeals’ decision. This court accepted review and has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 60-2101(b).
In Ortega’s petition for review, she argues the Court of Appeals erred in rejecting three of her claims of error, specifically her claims that (1) The evidence was insufficient to establish that she committed the offense of attempted aggravated interference with parental custody; (2) the crime of attempted aggravated interference with parental custody, which incorporates the elements of interference with parental custody, includes alternative means that were not supported by sufficient evidence; and (3) the prosecutor committed misconduct by vouching for the credibility of witnesses. In addition, Ortega argues the Court of Appeals erred in concluding that the three instructional errors and two instances of prose-cutorial misconduct did not prejudice her right to a fair trial. Fi nally, she emphasizes that even if these errors were not individually prejudicial, cumulatively they justify reversing her convictions.
We have taken the liberty of reorganizing Ortega’s issues to first discuss the three issues that were rejected by the Court of Appeals and then to discuss whether the Court of Appeals erred in concluding neither of her convictions should be reversed. We begin with Ortega’s two insufficiency arguments, both of which relate to her conviction for attempted aggravated interference with parental custody.
Evidence of Overt Act Sufficient
In Ortega’s first insufficiency argument, she claims the State failed to prove beyond a reasonable doubt that she made an overt act toward “leading, taking, carrying away, decoying or enticing away any child under the age of 16 years with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child” (K.S.A. 21-3422[a] [defining interference with parental custody]) or the additional element that makes the crime aggravated—“tak[ing] the child outside the state without the consent of either the person having custody or the court” (K.S.A. 21-3422a[a][2][C] [defining aggravated interference with parental custody]; K.S.A. 21-3301[a] [attempt]). Ortega argues the Court of Appeals erred in rejecting her argument and urges us to reverse her conviction for attempted aggravated interference with parental custody.
In considering this argument, we apply a well-known standard of review: “When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012) (citing State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]; State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564 [2010]). In evaluating the evidence, “ ‘[t]he appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence.’ ” State v. Spear, 297 Kan. 780, 791, 304 P.3d 1246 (2013) (quoting Raskie, 293 Kan. at 920); see State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013); State v. Ta, 296 Kan. 230, 237, 290 P.3d 652 (2012).
Applying this standard, the Court of Appeals panel stated that “a rational factfinder could have found that Ortega performed the first step in a direct movement toward the crime by going to V.O.’s school, and a subsequent step toward the crime by filling out the sign-out sheets.” Ortega, 2013 WL 192714, at *10. In addition, the panel determined that Ortega’s comments to the school officials provided evidence that she performed these acts with the intent to take V.O. to Colorado.
In Ortega’s petition for review, she asserts the acts of visiting V.O.’s school and filling out the “Student Check-Out Sheet” did not constitute a “direct movement towards the commission of [aggravated interference with parental custody] after preparations are made” because she did not have any belongings packed, had no money for gas, and did not have a house or job lined up in Colorado. In making this argument, Ortega implies that the elements cannot be established by circumstantial evidence, the State must prove a specific sequence of direct movements toward die commission of the offense, and, in this case, the State had to prove diat Ortega did everything but drive across die state line.
Contrary to the first of these suggestions, “[i]t is well established that a conviction for even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.]” Lowrance, 298 Kan. at 297. In finding there was circumstantial evidence of an overt act, the Court of Appeals relied on State v. Peterman, 280 Kan. 56, 118 P.3d 1267 (2005), which also answers Ortega’s arguments about the sequencing of overt acts.
In Peterman, this court explained: “Kansas law does not provide definitive rules as to what constitutes an overt act for attempting crime. The overt act necessarily must extend beyond mere preparations made by die accused and must approach sufficiently near to the consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. [Citation omitted.]” 280 Kan. at 60-61. The Peterman decision also made it clear that the State does not need to prove “the last proximate act in the consummation of the crime.” 280 Kan. at 61.
Applying these principles to this case, Ortega focuses on circumstances that suggest she was not going to immediately leave the state. She essentially argues that even if sufficient evidence of attempted interference with parental custody was presented, there was no evidence of the element that distinguishes that crime from its aggravated form, i.e., removing the child from the state without the permission of the custodian or a court. This ignores the obvious need for Ortega to have had V.O. with her when she left Kansas in order for the State to establish the elements of the completed crime of aggravated interference with parental custody. In other words, having physical custody of V.O. was a necessary step toward the completion of the crime of aggravated interference with parental custody.
To gain physical custody of V.O., Ortega had to physically remove V.O. from St. Francis’ control, and removing V.O. from school presented an opportunity to do so. Thus, Ortega’s act of going to the school and complying with the school’s requirements for signing a student out were overt acts of gaining physical custody of V.O. See, e.g., Lowrance, 298 Kan. at 297-98 (defendant’s act of virtually canying the victim to his car and driving her to a place where they could be alone, combined with the fact that the victim was legally intoxicated, was sufficient evidence of an overt act); Peterman, 280 Kan. at 64 (defendant’s act of driving to meet someone to pick up a child he intended to have sexual intercourse with constituted an overt act); State v. Garner, 237 Kan. 227, 239, 699 P.2d 468 (1985) (holding that the defendant committed an overt act toward the crime of attempted theft when he went to the owner’s property to prepare cattle for shipment the next day).
In addition, Ortega’s statements when signing not one, but two sign-out sheets evidenced her intent to gain physical custody of V.O. She wrote on one sheet that she was taking V.O. out of school because they were “going out of town” and on the other one that they were taking a “trip.” Ortega even admitted in her trial testimony that she told the school secretaries she was going to take V.O. out of town.
Although this evidence related to the lesser offense, it established necessary elements of the greater offense because the lesser offense elements are included in the greater offense. Nevertheless, that evidence by itself would be insufficient to establish the aggravated form of the crime. But additional evidence established that when Ortega went to the school to gain physical custody of V.O., she did so with the intent of removing V.O. from Kansas. Specifically, school personnel testified about Ortega’s statements that she planned to go to Colorado.
Consequently, even though Ortega had not taken all of the steps necessary to complete the crime of aggravated interference with parental custody by taking V.O. out of Kansas, she had taken a first movement toward the completion of the crime. The fact that these movements were also evidence of the lesser included offense did not preclude the jury from finding evidence of the aggravated offense, where an intent to commit the aggravated crime was established and the first step toward completion of tire aggravated crime had occurred.
Accordingly, the evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational factfinder to have found Ortega guilty of attempted aggravated interference with parental custody beyond a reasonable doubt.
Not an Alternative Means Crime
In a related sufficiency issue, Ortega points out the interference with parental custody statute lists several alternatives for committing the offense by stating it occurs by “leading, taking, carrying away, decoying or enticing away any child.” K.S.A. 21-3422. These elements are incorporated into the offense of aggravated interference with parental custody. See K.S.A. 21-3422a(a)(2). She also notes that the jury was instructed on all these “explicit means.” While conceding there is evidence of the first three alternatives— leading, taking, or carxying away—she contends the State failed to present any evidence establishing that she attempted the final two alternatives—“decoying or enticing away.” Ortega argues the State was required to prove both these and all other alternative means contained in K.S.A. 21-3422. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (in alternative means cases, jury needs not be unanimous as to which means defendant utilized but there must be substantial competent evidence of each instructed means), overruled on other grounds by State v. Nunez, 298 Kan. 661, 316 P.3d 717 (2014).
The Court of Appeals held that K.S.A. 21-3422 does not state alternative means; instead the listed alternatives merely describe the factual circumstances that could prove the gravamen of the crime—removing a child from lawful custody. State v. Ortega, No. 106,210, 2013 WL 192714, at *11-12 (Kan. App. 2013) (unpublished decision); cf. State v. Wiggett, 273 Kan. 438, 444, 44 P.3d 381 (2002) (stating in the discussion of the crime of interference with parental custody that the “removal of the child from his or her parent or lawful custodian must be accomplished with the specific intent to detain or conceal the child”).
Ortega asserts that the Court of Appeals erred in its determination that the gravamen of the offense is removal from lawful custody because removal is not an element of the crime. She contends that the “only listed elements are the alternative acts of‘leading, taking, carrying away, decoying or enticing away any child.’ ”
Ortega’s argument is partially correct. Without question, the word “remove” is not in the statute. But removal is implicit in several of the words or phrases in the statute, including leading, taking, carrying away, and enticing away. Each implies a physical movement from one location to another—a removal. But “decoying” does not require movement or removal. Nevertheless, the full requirement is to decoy the child with the intent to “detain or conceal” the child from his or her legal custodian. While expressing the mens rea requirement, these words convey the legislature’s intent to prohibit an act of detaining or concealing a child from his or her lawful guardian. Arguably detaining or concealing a child from his or her lawful guardian is a somewhat broader concept than “removing” a child. The Court of Appeals’ use of the word “removing” does not necessarily undercut its conclusion that the statute does not include alternative means, however.
To determine if K.S.A. 21-3422 includes alternative means, we must examine whether the legislature prohibited distinct alterna tive acts—the actus reus element—or distinct alternative states of mind that a defendant must have when committing the act—the mens rea element. State v. Brown, 295 Kan. 181, 195, 284 P.3d 977 (2012). If alternatives in the statute do not state an “additional and distinct material element” but merely describe a “material element or . . . factual circumstances in which a material element may be proven,” the alternatives are not alternative means but “options within a means” and evidence of each option need not be presented to the jury. 295 Kan. at 196-97.
Here, the full context of the statute reveals the legislature defined tire gravamen of the crime as detaining or concealing a child from his or her legal custodian. The alternatives state the factual circumstances that can establish whether an act was taken to detain or conceal the child—Ortega could have either led, taken, carried, decoyed, or enticed away V.O. in an effort to interfere with another’s custody. See K.S.A. 21-3422.
Hence, we agree with the Court of Appeals that the alternatives in K.S.A. 21-3422—“leading, taking, carrying away, decoying or enticing away”— merely “describe the factual circumstances in which a material element may be proven.” Brown, 295 Kan. at 196-97. As such, the alternatives are options within a means and not material elements constituting alternative means. See 295 Kan. at 197.
Thus, we need not reach the question of whether sufficient proof of each of the listed alternatives was presented to the jury. See State v. Haberlein, 296 Kan. 195, 208, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148 (2013); Brown, 295 Kan. 181, Syl. ¶ 11.
Prosecutor Did Not Vouch for Witnesses
We next turn to the last issue rejected by the Court of Appeals and consider whether the Court of Appeals erred in holding that the prosecutor did not commit misconduct by vouching for the credibility of the school employees. Citing State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011), the Court of Appeals correctly noted a two-prong test applied, the first prong of which requires an appellate court to decide if a prosecutor’s arguments to a jury are outside the wide latitude allowed a prosecutor in discussing the evidence. If the court finds misconduct under the first prong, it moves to the second prong and conducts a harmlessness test. While the Court of Appeals held the prosecutor committed misconduct during the trial, it rejected Ortega’s specific argument that the prosecutor committed misconduct by vouching for witnesses’ credibility. Ortega, 2013 WL 192714, at *9.
Ortega’s argument is based on statements that occurred during the State’s closing argument. While discussing the elements of disorderly conduct, the prosecutor pointed to the discrepancy in witnesses’ testimony and reminded the jury that they are “going to have to judge the credibility of witnesses.” The prosecutor continued stating:
“The defendant obviously has a reason for shading the truth in her direction; she doesn’t want to be convicted of any crimes. But remember, witnesses came in here and they testified that they saw the defendant, they knew it was her, and they knew that she said these things. What reason do they have to lie to you? Perhaps somebody who might think, well, police officers do this all the time. I don’t necessarily know why you would think that, but that’s the most cynical possible thing I can think of. Well, set that aside. Do middle school secretaries come into court and lie all the time? Did Ms. Perez or Ms. Delarosa, the principal, have a reason to come in here and tell you that the defendant did something or said something that she didn’t really do?”
In concluding these comments were not misconduct, the Court of Appeals reasoned that the prosecutor’s statements were based on reasonable inferences drawn from the evidence, and the prosecutor was merely explaining what the jury should look for in assessing the credibility of the school officials. Thus, the statements were within the wide latitude afforded the State in discussing evidence. Ortega, 2013 WL 192714, at *9.
We agree with this reasoning. Although it is improper for a prosecutor to offer his or her personal opinion as to the credibility of a witness, a prosecutor has “ 'freedom ... to craft an argument that includes reasonable inferences based on the evidence’ ” and, “when a case turns on which [version] of two conflicting stories is true, [to argue] certain testimony is not believable.” State v. King, 288 Kan. 333, 352, 204 P.3d 585 (2009) (quoting State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 [2003]); State v. Pabst, 268 Kan. 501, 507, 996 P.3d 321 (2000). For example, it is not improper for a prosecutor to offer “comments during closing argument regarding the witness’ motivations [or lack thereof] to he untruthful.” King, 288 Kan. 353; see State v. McReynolds, 288 Kan. 318, 326, 202 P.3d 658 (2009) (prosecutor may offer the jury an explanation of “ ‘what it should look for in assessing witness credibility’ ”); State v. Scaife, 286 Kan. 614, 624, 186 P.3d 755 (2008) (same). But a prosecutor must do so by basing the comment on evidence and reasonable inferences drawn from that evidence and without stating his or her own personal opinion concerning a witness’ credibility or accusing a witness or defendant of lying. State v. Akins, 298 Kan 592, 607, 315 P.3d 868 (2014); State v. Marshall, 294 Kan. 850, 856-58, 281 P.3d 1112 (2012); King, 288 Kan. at 353; State v. Elnicki, 279 Kan. 47, 60-62, 105 P.3d 1222 (2005); Davis, 275 Kan. at 121; Pabst, 268 Kan. at 506-07.
Ortega argues that the prosecutor’s statements are akin to those in State v. Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010), where this court found the prosecutor’s statement to be misconduct. In Magallanez, the prosecutor stated during closing arguments: “ ‘[Y]ou trust children until you have a reason not to. We assume that. We assume we have taught them correctly.’ ” 290 Kan. at 914. This court held that this statement was unsworn testimony about tire truthfulness of teenagers and children and improperly bolstered the credibility of the State’s witnesses.
In contrast, this court has distinguished between bolstering witness credibility and proper comments on the evidence. For example, in McReynolds, the prosecutor stated in closing argument that “ ‘[n]o police officer benefits from this investigation, no police officers benefit from concocting stories and making Mr. McRey-nolds agree to those stories.’ ” McReynolds, 288 Kan. at 325. This court determined that because the credibility of the police officers had been challenged, “the prosecutor properly offered the jury an explanation of ‘what it should look for in assessing witness credibility.’ [Citation omitted.]” Thus, the prosecutor’s comments were within the wide latitude allowed to prosecutors when commenting on the evidence. 288 Kan. at 326.
Similarly, in Scaife the prosecutor stated: “ ‘Now, why believe Patrick Ross? Folks, you saw him, youve heard him from the very beginning of this case which was seconds after it began. Evaluate his testimony, evaluate his demeanor, evaluate what he told you, and you don’t have any other conclusion.’ ” Scaife, 286 Kan. at 623. This court concluded that the prosecutor’s statements were answering the defense’s attack on Ross’ credibility by explaining to the jury what it should look at when assessing that credibility. 286 Kan. at 624; see State v. Stone, 291 Kan. 13, 19-20, 237 P.3d 1229 (2010) (prosecutor suggested evidence supported juxy concluding witness was credible; argument was within wide latitude allowed in closing argument).
The statements made by the prosecutor in this case are more similar to the statements made in McReynolds, Scaife, and Stone. The prosecutor merely asked rhetorical questions that probed whether there was any motivation for the school employees to lie. Examining whether a witness has a motive to he is a valid consideration in weighing credibility. See McReynolds, 288 Kan. at 326 (prosecutor’s explanations to the jury about what it should look for in assessing credibility is not outside the wide latitude afforded the State); Scaife, 286 Kan. at 624 (same); Stone, 291 Kan. at 19-20 (same). Accordingly, the prosecutor’s statements were within the wide latitude allowed the State when discussing evidence.
Reversible Error
Thus, we affirm the Court of Appeals’ holdings on those issues where it concluded there was no error. We next turn to Ortega’s issues where the Court of Appeals found trial error. The Court of Appeals found three jury instruction errors and two instances of prosecutorial misconduct.
The State did not file a cross-petition challenging the Court of Appeals’ holdings that there was instructional error and prosecu-torial misconduct. Hence, the question of error as to any of these issues is not before us; we only review the Court of Appeals’ conclusion that the errors were harmless. See K.S.A. 60-2103(h) (to obtain appellate review of adverse rulings, appellee must file notice of cross-appeal); State v. Novotny, 297 Kan. 1174, 1181, 307 P.3d 1278 (2013) (same); Cooke v. Gillespie, 285 Kan. 748, 754-55, 176 P.3d 144 (2008) (same).
Ortega emphasizes the cumulative prejudice arising from the various errors and also urges us to adopt Chief Judge Malone’s reasoning in his dissent regarding the prejudice individually caused by some of the errors that would have led him to reverse Ortega’s conviction for attempted aggravated interference with parental custody.
Reasonable Doubt Instruction Not Prejudicial
We begin with an issue that has the potential to impact both convictions: Was the trial court’s failure to use the current reasonable doubt pattern jury instruction so prejudicial it deprived Ortega of a fair trial?
This issue arises because the reasonable doubt instruction given by the trial court was identical to the pre-2005 version of PIK Crim. 3d 52.02 and stated, in part: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) See PIK Crim. 3d 52.02 (1995 Supp.). By the time of Ortega’s trial, this portion of the instruction had been revised to read: “If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) PIK Crim. 3d 52.02 (2005 Supp.).
The Court of Appeals panel relied on State v. Beck, 32 Kan. App. 2d 784, 785, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004), and stated that “an instruction error occurs where, as here, the old pattern reasonable doubt instruction is used.” State v. Ortega, No. 106,210, 2013 WL 192714, at *6 (Kan. App. 2013) (unpublished opinion). But, the panel noted that Ortega had not objected at trial, and thus the error was reversible only if it was clearly erroneous, which it was not according to the majority. 2013 WL 192714, at *7; see State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012) (to determine reversibility under clear error review, appellate court makes de novo determination of whether it is firmly convinced that the jury would have reached a different verdict had the instructional error not occurred).
As we consider the Court of Appeals’ conclusion that this instruction was not clearly erroneous, we have an unusual situation that causes us to circle back to the merits of Ortega’s argument. After the panel’s decision in this case, this court has repeatedly accepted a trial court’s giving of the prior version of the pattern reasonable doubt instruction as legally appropriate even if it was not a preferable rendition of the State’s burden of proof. Miller v. State, 298 Kan. 921, 939, 318 P.3d 155 (2014); see PIK Crim. 3d 52.02 (1995 Supp.); see, e.g., State v. Smyser, 297 Kan. 199, 206, 299 P.3d 309 (2013) (“We hold the [older PIK] reasonable doubt jury instruction was legally appropriate and not error.”); State v. Waggoner, 297 Kan. 94, 99, 298 P.3d 333 (2013) (“[W]e conclude the [older] reasonable doubt instruction in this case was not erroneous.”); State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013) (“While the older PIK instruction . . . was not the preferred instruction, it was legally appropriate.”).
Although the question of whether there was error is not before us, we cannot ignore these recent cases in determining if the giving of the older PIK instruction requires reversal as clear error. Because the instruction is legally appropriate, we cannot say we are firmly convinced that the jury would have reached a different verdict had the jury received the current PIK instruction. See Williams, 295 Kan. at 510 (discussing clearly erroneous standard).
Errors Relating to Ortega’s Defense of Mistake of Fact
The remainder of Ortega’s arguments relate solely to her conviction for attempted aggravated interference with parental custody. Two of these issues relate to Ortega’s defense of ignorance or mistake, which was based on K.S.A. 21-3203(1). K.S.A. 21-3203(1) states, in part: “A person’s ignorance or mistake as to a matter of either fact or law ... is a defense if it negatives the existence of the mental state which the statute prescribes with respect to an element of the crime.” See State v. LaMae, 268 Kan. 544, 556, 998 P.2d 106 (2000). Ortega largely focuses on the cumulative effect of these errors. These two errors are so intertwined that we will discuss them together and consider their cumulative impact. To understand whether these errors were prejudicial, we must first consider their nature and the Court of Appeals’ rationale.
At trial, Ortega’s defense was that she had not been notified of die CINC hearing, had not received any paperwork regarding V.O.’s custodial status, and had no idea what “SRS custody” meant. Specifically, she emphasized that she did not know that she could not have contact with V.O. or take her out of school. Therefore, she asserts that she could not have formed the specific intent to interfere with SRS’s custody of her daughter.
On appeal, Ortega argues two trial errors interfered with her presentation of diis defense to the jury: (1) the prosecutor misstated the law regarding this defense, and (2) the trial court failed to instruct the juiy on the correct law. The Court of Appeals unanimously found error in both respects, i.e., the prosecutor misstated the law in closing arguments and the trial court should have but did not instruct the jury on the law.
The Court of Appeals panel explained Ortega’s prosecutorial misconduct claim and gave the following rationale:
“By saying, ‘[Ortega’s] mother said to her, . . . “[Y]ou can go ahead and take the kids.” That’s not a defense,’ the prosecutor correctly explained that Ortega could not assert the mistake-of-law defense, i.e., she did not know a child in SRS custody could not be taken. See K.S.A. 21-3203(2) (‘A person’s reasonable belief that his conduct does not constitute a crime’ is only a defense in enumerated circumstances.).
“Conversely, by saying, ‘[WJhether or not [Ortega] got notice about that custody hearing is irrelevant,’ the prosecutor incorrectly suggested that Ortega could not assert the mistake-of-fact defense, i.e., she did not know V.O. was in SRS custody. See K.S.A. 21-3203(1) (‘A person’s ignorance or mistake as to a matter of either fact or law ... is a defense if it negatives tire existence of the mental state which the statute prescribes with respect to an element of the crime.’). That suggestion constituted misconduct because it misstated the law.” State v. Ortega, No. 106,210, 2013 WL 192714, at *9 (Kan. App. 2013) (unpublished opinion).
Although the panel found misconduct, a majority concluded it was not so prejudicial as to deny Ortega a fair trial. Ortega, 2013 WL 192714, at *9. Chief Judge Malone disagreed. 2013 WL 192714, at *14 (Malone, C.J., dissenting).
With regard to the trial court’s failure to instruct on the defense of ignorance or mistake, tire Court of Appeals panel unanimously held that even though Ortega had not requested an instruction, an error occurred because Ortega’s version of events established that she was ignorant of the fact that V.O. was in SRS custody and her ignorance “negated the specific intent necessary to commit attempted aggravated interference with parental custody.” 2013 WL 192714, at *5. However, a majority of the panel determined that the error was not clearly erroneous. 2013 WL 192714, at *6. Again, Chief Judge Malone disagreed. 2013 WL 192714, at *14 (Malone, C.J., dissenting).
Prosecutorial Misconduct Regarding Defense of Ignorance or Mistake
Accepting the panel’s finding of misconduct, we consider whether Ortega was denied a fair trial. This involves a three-factor inquiry: (1) whether tire misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. No one factor is controlling. State v. Crawford, 300 Kan. 740, 745, 334 P.3d 311 (2014); State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004). Before the third factor can ever override the first two factors, an appellate court must be able to say that the State can meet both the statutory harmlessness standard stated in K.S.A. GO-261 and the constitutional standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford, 300 Kan. at 745-46, Bridges, 297 Kan. at 1012-13 (citing Tosh, 278 Kan. at 97).
We have observed that, as a practical matter, the result of the harmless error evaluation depends on the outcome of the Chapman constitutional standard. “[Bjotli the constitutional and non-constitutional error clearly arise from the very same acts and omissions,” and the constitutional standard is more rigorous. Bridges, 297 Kan. at 1015 (citing Herbel, 296 Kan. at 1111). Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard.
Applying the three factors, the Court of Appeals majority first determined the prosecutor s misstatements were not gross and flagrant. We disagree because most of the factors for determining if a prosecutor s misconduct is gross and flagrant are implicated. As explained in State v. Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112 (2012), these factors include whether there are repeated comments emphasizing an improper point, planned or calculated statements, violations of a well-established rule, and violations of a rule designed to protect a constitutional right. Here, the prosecutor told the jury not once, but twice to disregard a fact that it should have considered in determining guilt, i.e., a fact impacting the determination of whether Ortega had tire requisite intent. In addition, the comments misstated the law relating to a defense that is defined by statute and, therefore, is well established. And the effect was to impede Ortega’s constitutional right to present her defense because the evidence that Ortega did not receive notice of the custody hearing went directly to her defense that she did not know SRS had custody of V.O.
Regarding the second factor of ill will, a prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct.’ [Citations omitted.]” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). As we have noted, tire prosecutor twice misstated the law on ignorance or mistake. Additionally, the prosecutor emphasized that if the juiy remembered anything they should remember that the lack of notice of the CINC hearing could not be considered in determining whether Ortega was guilty. Encouraging the jury to remember an improper statement of law suggests deliberate misconduct aimed at undermining the defense. Thus, there was evidence of ill will.
Finally, in considering the prejudicial impact of the statements, the misstatements of law went to the heart of Ortega’s defense. Not only did Ortega testify to the lack of knowledge, there was no evidence proving she had received official notice or any evidence that she had a reason to doubt her mother’s representation that she could get her child.
Ortega argues the prosecutor’s misstatements of law alone are sufficient to require us to reverse her conviction for attempted aggravated interference with parental custody. But she also asserts that the panel failed to accumulate this harm and the harm caused by the trial court’s failure to instruct the jury on the law regarding the defense of ignorance or mistake, and she urges us to do so. Specifically, Ortega contends that the only way to have mitigated the prosecutor’s misstatements of law would have been to give a jury instruction on the law. See State v. Qualls, 297 Kan. 61, 71, 298 P.3d 311 (2013) (defendant “entitled to instructions on the law applicable to his defense theory if there was evidence to support that theory, as long as the evidence when viewed in the light most favorable to him was sufficient to justify a rational factfinder finding in accordance with that theory”). But the trial court failed to do so.
Hence, we will consider the lack of an instruction before continuing our evaluation of the prejudice, if any, caused by the prosecutor’s statements.
Instructional Error
The Court of Appeals held that the trial court should have instructed the jury on the law regarding the defense of ignorance or mistake but determined the error was not reversible under a clear error standard. Ortega, 2013 WL 192714, at *4; see Williams, 295 Kan. at 526 (to determine reversibility under clear error review, appellate court makes de novo determination of whether it is firmly convinced that tire jury would have reached a different verdict had the instructional error not occurred). In ruling that tire failure to give the instruction was not clear error, the Court of Appeals relied on State v. Diaz, 44 Kan. App. 2d 870, 873, 241 P.3d 1018 (2010), rev. denied 291 Kan. 914 (2011).
In Diaz, another panel of the Court of Appeals stated: “Although termed a ‘defense,’ the mistake-of-fact doctrine merely encapsulates the State’s burden to prove every element of the offense: the State cannot convict the defendant if it fails to show that the defendant had the required mental state when committing the crime.” 44 Kan. App. 2d at 873. Here, the panel reasoned that Ortega was allowed to present evidence that Ortega lacked the intent to detain or conceal V.O. The panel observed that, in fact, the defense had presented evidence that Ortega did not know the meaning of “SRS custody” or that V.O. was in SRS’s custody. “But the jury evidently believed the sea of contrary evidence presented by the State.” Ortega, 2013 WL 192714, at *5.
In reaching this conclusion, the panel did not note a significant difference between this case and Diaz. In Diaz, the defendant was convicted of failure to appear after he did not attend the pretrial conference in his felony case and did not turn himself in for over 8 months. Diaz argued that his failure to appear was not willful and that a mistake instruction should have been given. The Court of Appeals determined that Diaz’ claimed mistake did not negate the required mental state for aggravated failure to appear because it was a general intent crime; he needed only to intend to “not appear” and “not turn himself in.” 44 Kan. App. 2d at 875. Thus, an instruction on mistake would not have been legally appropriate. In this case, interference with parental custody is a specific intent crime and Ortega’s claimed mistake could have negated the required mental state. See State v. Brown, 291 Kan. 646, 654-55, 244 P.3d 267 (2011) (holding attempt is a specific intent crime); State v. Wiggett, 273 Kan. 438, 444, 44 P.3d 381 (2002) (describing interference with parental custody as removal of the child “with the specific intent to detain or conceal the child” from his or her parent or lawful custodian).
Significantly, nothing in the trial informed the jury that Ortega’s mistaken belief could be a valid defense. Contrary to the panel’s conclusions and State’s arguments, the elements instruction for attempted aggravated interference with parental custody did not provide this information—it simply instructed that intent was an element. Further, defense counsel’s ability to present evidence and argue regarding the defense provided only part of what the jury needed. Without an instruction, the jury had no directions from the court about how to consider the information. Consequently, the only direction the jury received was misdirection in the form of the prosecutor’s statement that the lack of notice was irrelevant and did not matter.
Thus, it cannot be said that the jury applied the correct legal standard in assessing Ortega’s intent to commit the crime. See State v. Cummings, 297 Kan. 716, 732, 305 P.3d 556 (2013) (finding that the State’s manipulation of an instruction’s “reasonable probability” language to its advantage in closing argument firmly convinced the court that the jury applied the incorrect legal standard to assess criminal culpability); State v. King, 297 Kan. 955, 983-84, 305 P.3d 641 (2013) (concluding that the failure to give a unanimity instruction was clearly erroneous because review of the record led to the conclusion that the inconsistencies in the evidence could have led to the jury’s disagreement and confusion regarding responsibility).
In other words, the harm of the instructional error is compounded by tire prosecutor’s misconduct. A properjury instruction might have mitigated the prosecutor’s misstatement of law. On the other hand, the failure to give an instruction increased the likelihood that the statements of the prosecutor—standing uncorrected by the trial court—affected the verdict.
As we assess the reversibility standards for prosecutorial misconduct and instructional error under a clearly erroneous standard, the State has the more difficult burden on the prosecutorial misconduct claim—it must establish beyond a reasonable doubt that the misconduct did not affect the outcome of the trial in light of the entire record. We conclude it cannot meet this burden, especially when the misconduct was not corrected by an instruction from the trial court. Hence, we reverse Ortega’s conviction for attempted aggravated interference with parental custody.
Lesser Included Offense Error
Ortega also asserts the trial court committed clear error by failing to instruct the jury on the lesser included offense of attempted interference with parental custody.
Addressing whether the lesser included offense instruction should have been given, the Court of Appeals panel unanimously held that an “instruction error did occur because there was conflicting evidence regarding where Ortega intended to take V.O.” Ortega, 2013 WL 192714, at *5. The panel split in its determination of whether the error was clearly erroneous. A majority concluded it was not. 2013 WL 192714, at *6-7. In the dissent, Chief Judge Malone indicated he was firmly convinced there was a real possibility the jury could have found Ortega guilty of the lesser offense because whether she was going to leave the state was a substantial fact dispute. 2013 WL 192714, at *13 (Malone, C.J. dissenting).
On petition for review, the only issue before us is whether die reversibility decision was correct. Our decision to reverse Ortega’s conviction for attempted aggravated interference with parental custody means we need not consider that question. Thus, on remand, the trial court and parties should take heed of the Court of Appeals’ holding, assuming the evidence again supports the giving of the lesser included offense instruction.
Other Claim of Prosecutorial Misconduct
The final error we have yet to address is another claim of pros-ecutorial misconduct. In this issue, Ortega focuses on a portion of the State’s opening argument in which the prosecutor told the jury that there was another uncharged act by Ortega involving one of her other children. The Court of Appeals held that the prosecutor violated the motion in limine, but the violation did not deprive Ortega of a fair trial. Ortega, 2013 WL 192714, at *8. Once again, the only issue before us is whether the Court of Appeals erred in holding the error did not require us to reverse Ortega’s conviction for attempted aggravated interference with parental custody. And again, we need not address this issue because we are reversing the conviction on other grounds.
Cumulative Error
In her final issue, Ortega argues the cumulative impact of the trial errors resulted in an unfair trial and her convictions must be reversed. We have already determined that cumulative error requires reversing Ortega’s conviction for attempted aggravated interference with parental custody. The remaining question is whether cumulative error requires us to reverse Ortega’s conviction for disorderly conduct as well. But the errors we have found impact only the attempted aggravated interference with parental custody conviction. We have determined that there was no merit to any of the issues that might impact the entire trial, and no issue was specific to Ortega’s conviction for disorderly conduct. Therefore, the cumulative error doctrine does not apply to our consideration of Ortega’s disorderly conduct conviction. See State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009) (cumulative error doctrine does not apply if no error or only one error supports reversal).
Hence, while we reverse Ortega’s conviction for attempted aggravated interference with parental custody, we affirm her conviction for disorderly conduct.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the district court is affirmed in part, reversed in part, and remanded.
Moritz, J., not participating.
Gerald T. Elliott, District Judge Retired, assigned. | [
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The opinion of the court was delivered by
Rosen, J.:
Billy J. Stanley is a persistent sex offender who is involuntarily committed to Lamed State Security Hospital. He seeks review of a published Court of Appeals opinion affirming a district court order dismissing his three petitions for writs of habeas corpus. The courts below agreed that Stanley s failure to exhaust administrative remedies precluded habeas corpus relief.
In August 2012, Stanley filed a petition seeking habeas corpus relief in district court case number 12CV71. He alleged that five documents, which are not included in the pleadings, were posted on resident computers in violation of his constitutional right to remain free from unlawful restraint, an asserted liberty interest.
He also filed a petition in district court case number 12CV74, seeking relief through habeas corpus from an asserted condition of confinement involving keeping bright lights shining on inmates’ beds during normal sleeping hours. He alleged that the condition constitutes cruel and unusual punishment and also violates a liberty interest.
Finally, he filed a petition in district court case number 12CV85, in which, as in the first petition, he challenged a document posted on resident computers. He contended that a document captioned RIGHT-106 changed disciplinaiy procedures in a manner that violated his constitutional right to due process.
In all three cases, without requiring responses from the Secretary of the Kansas Department for Aging and Disability Services (Secretary) and without conducting hearings, tire district court dismissed the petitions for failure to exhaust administrative remedies. Stanley appealed, and the Court of Appeals, after consolidating the three cases, affirmed the district court. This court granted Stanley’s petition for review.
This appeal addresses the manner in which patients who are involuntarily committed to sexual predator treatment programs may seek relief from the conditions of their confinement. Both the legal mechanism for confinement of such patients and the mechanisms for seeking relief from the conditions of the confinement are statutoiy creations. Interpreting and construing statutes raise questions of law subject to unlimited review on appeal. State v. Looney, 299 Kan. 903, Syl. ¶ 2, 327 P.3d 425 (2014).
The portion of the statutory scheme on which the district court and the Court of Appeals relied in the present cases is found in K.S.A. 2013 Supp. 59-29a24, governing civil actions and the requirement of exhausting administrative remedies. That law, which became effective on July 1, 2012, reads in its entirety:
“(a) Any patient in the custody of tire secretary of social and rehabilitation services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, prior to filing any civil action naming as the defendant pursuant to the rules of civil procedure, the state of Kansas, any political subdivision of the state of Kansas, any public official, the secretary of social and rehabilitation services or an employee of the department of social and rehabilitation services, while such employee is engaged in the performance of such employee’s duty, shall he required to have exhausted such patient’s administrative remedies, established by procedures adopted pursuant to subsection (d) of K.S.A. 59-29a22, and amendments thereto, concerning such civil action. Upon filing a petition in a civil action, such patient shall file with such petition proof that the administrative remedies have been exhausted.
“(b) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that:
(1) The allegation of poverty is untrue, notwithstanding the fact that a filing fee, or any portion thereof has been paid; or
(2) the action or appeal:
(A) Is frivolous or malicious;
(B) fails to state a claim on which relief may be granted; or
(C) seeks monetary relief against a defendant who is immune from such relief.
“(c) In no event shall such patient bring a civil action or appeal a judgment in a civil action or proceeding under this section if such patient has, on three or more prior occasions, while in the custody of tire secretary of social and rehabilitation services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, brought an action or appeal in a court of the state of Kansas or of the United States that was dismissed on the grounds that it was frivolous, malicious or failed to state a claim upon which relief may be granted, unless the patient is under imminent danger of serious physical injury.
“(d) The provisions of this section shall not apply to a writ of habeas corpus.“ (Emphasis added.)
The fundamental rule of statutory interpretation is that the intent of the legislature is dispositive if it is possible to ascertain that intent. Looney, 299 Kan. at 906. This court deems the language of a statute to be the primary consideration in ascertaining the intent of the legislature because the best and only safe rule for determining the intent of the creators of a written law is to abide by die language that they have chosen to use. Looney, 299 Kan. at 906. The courts therefore look to the plain and unambiguous language of a statute as the primary basis for determining legislative intent. State v. O’Connor, 299 Kan. 819, 822, 326 P.3d 1064 (2014).
Although the Court of Appeals superficially acknowledged this rule of statutoiy construction, it proceeded to set out an extensive history of cases that led it to conclude that inmates and others seeking relief through writs of habeas corpus are under a common-law requirement to exhaust whatever administrative remedies are available. See, e.g., Battrick v. State, 267 Kan. 389, 398-99, 985 P.2d 707 (1999); Levier v. State, 209 Kan. 442, 452, 497 P.2d 265 (1972); Wilcox v. Fisher, 163 Kan. 74, 80, 180 P.2d 283 (1947). And, in the absence of K.S.A. 2013 Supp. 59-29a24, the Court of Appeals might be correct in determining that common-law requirements of exhaustion of remedies would govern.
The 2012 enactment of K.S.A. 2013 Supp. 59-29a24, however, superimposed a statutory scheme over whatever common-law requirements and limitations on actions existed. As a general rule, statutory law supersedes common law. See Schoenholz v. Hinzman, 295 Kan. 786, Syl. ¶ 1, 289 P.3d 1155 (2012); Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974). “If the legislature has spoken, the statement supersedes common law . . . .” U.S.D. No. 501 v. Baker, 269 Kan. 239, 243, 6 P.3d 848 (2000).
K.S.A. 2013 Supp. 59-29a24(d) states in clear and unambiguous terms that the exhaustion requirements imposed on involuntary patients who have been adjudicated persistent sexual offenders do not apply to writs of habeas corpus. Because the legislative language controls this requirement, confined persons in Stanley’s position are not required to demonstrate exhaustion of administrative procedures.
This court has repeatedly emphasized that the plain language selected by the legislature, when it does not conflict with constitutional mandates, trumps both judicial decisions and the policies advocated by parties. See, e.g., Casco v. Armour Swift-Eckrich, 283 Kan. 508, 524-26, 154 P.3d 494 (2007); Perry v. Board of Franklin County Comm'rs, 281 Kan. 801, 808-09, 132 P.3d 1279 (2006); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 822, 104 P.3d 378 (2005); Mary E. Lane, Admr. v. The National Bank of the Metropolis, 6 Kan. 74, 80-81 (1870).
Apparently dissatisfied with the words chosen by the legislature, however, the Court of Appeals elected to turn to testimony presented to House and Senate committees to ascertain what the legislature should have enacted into law.
The Court of Appeals first posited that the phrase “this section” is ambiguous. It could, the court explained, mean the entire section, or it could mean only the immediately preceding subsection (c) relating to successive frivolous civil actions. Stanley v. Sullivan, 49 Kan. App. 2d 732, 739-40, 314 P.3d 883 (2013). Because of this asserted ambiguity, the Court of Appeals elected to rely on evidence of the circumstances surrounding the enactment of the bill.
Is the phrase “this section” really ambiguous? Might the phrase refer only to paragraph (c) of the law?
The legislature has obviously chosen to distinguish between sections and subsections of statutes in many other situations. Subsections are typically identified by parenthetical lower-case letters. Examples are numerous; see, e.g., K.S.A. 1-302b(d) (“As an alternative to the requirements of subsection (a) . . . .”); K.S.A. 2-142(a) (“Except as provided by subsection (b) . . . .”). In fact, the very section at issue refers to subsections by parenthetical lowercase letters. K.S.A. 2013 Supp. 59-29a24(a) (“established by procedures adopted pursuant to subsection (d) of K.S.A. 59-29a22”).
There is also statutory support for our conclusion that the legislature intends that the word “section” refers to the entirety of K.S.A. 2013 Supp. 59-29a24. K.S.A. 77-133(c) directs the Revisor of Statutes to prepare and include in the Kansas Statutes Annotated “the history of each statutory section.” The Revisor has used the word “section” to refer to a numbered statute identified by a chapter, a hyphen, and a section number. Subsections do not receive separate histories. K.S.A. 77-136(b) delineates headings for “sections, subsections or subparts.” Furthermore, the law enacted to create K.S.A. 2013 Supp. 59-29a24 identifies that statute in its entirety as “New Section 1.” L. 2012, ch. 90, sec. 1. Historically, this court has treated references to “this section” as referring to the entire statutory section, not merely to one subsection. See, e.g., Downtown Bar and Grill v. State, 294 Kan. 188, 190, 273 P.3d 709 (2012); Lorey v. Cox, 176 Kan. 621, 272 P.2d 1114 (1954) (case refers to civil code by “chapter and section numbers”).
The Court of Appeals cited 1A Singer & Singer, Statutes and Statutory Construction (7th ed. 2009), as authority that statutory exceptions sometimes apply only to immediately preceding sections and sometimes to entire statutes or acts. Stanley, 49 Kan. App. 2d at 739. The Singer & Singer treatise does not, however, tell us that the word “section” is ambiguous. On the contraiy, it explains the desirability of a caption or heading “for each section,” which “performs the same function for tire section as the title does for an act.” 1A Singer & Singer, Statutes and Statutory Construction § 21:4 (7th ed. 2009). And so it is in the statute at hand, which contains this section heading: “Civil actions; exhaustion of administrative remedies required.” Subsection (c) of K.S.A. 2013 Supp. 59-29a24 has no section heading; after all, it is not a section.
Clearly, if the legislature had intended that subsection (d) refer only to subsection (c), the legislature could have and probably would have drafted the exception to read “The provisions of the preceding subsection shall not apply to a writ of habeas corpus” or “The provisions of subsection (c) shall not apply to a writ of habeas corpus.”
We do not see how the legislature could have written the law any more clearly to show that writs of habeas corpus are not subject to the exhaustion requirements of K.S.A. 2013 Supp. 59-29a24. Conversely, it required a strained construction by the Court of Appeals to find ambiguity in the wording.
The Secretary argues that a conflict exists between K.S.A. 2013 Supp. 59-29a24 and K.S.A. 2013 Supp. 60-1501(c). In the same legislative act that created K.S.A. 2013 Supp. 59-29a24, the legislature amended K.S.A. 60-1501 to include a new subsection (c), which reads:
“Except as provided in K.S.A. 60-1507, and amendments thereto, a patient in the custody of the secretary of social and rehabilitation services pursuant to K.S.A. 59-29a01 et seq., and amendments thereto, shall file a petition for writ pursuant to subsection (a) within 30 days from tire date the action was final, but such time is extended during the pendency of the patient’s timely attempts to exhaust such patient’s administrative remedies.” (Emphasis added.) L. 2012, ch. 90, sec. 2.
The Secretaiy argues that an exhaustion requirement must be implicit in K.S.A. 2013 Supp. 59-29a24 because, if there were no exhaustion requirement, K.S.A. 2013 Supp. 60-1501(c) would be unnecessary. Without mandatory exhaustion, patients would have no need for a tolling provision while they pursue administrative remedies. Even if the language of K.S.A. 2013 Supp. 59-29a24 were plain and unambiguous in not requiring exhaustion, the Secretary argues, it would still be in conflict with the plain and unambiguous language of K.S.A. 2013 Supp. 60-1501(c) requiring exhaustion, and tire courts must harmonize and reconcile provisions of acts in pan materia and must construe statutes to avoid unreasonable or absurd results. See, e.g., Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, Syl. ¶ 5, 296 P.3d 1106 (2013).
There is no reason, however, to find the two statutes at odds. The plain language of K.S.A. 2013 Supp. 59-29a24(d) exempts petitioners from requirements of exhausting administrative remedies. The plain language of K.S.A. 2013 Supp. 60-1501(c) exempts petitioners from the 30-day limitation on filing during a patient’s “timely attempts to exhaust such patient’s administrative remedies.” Statutes should be read as consistent with one another whenever it is possible to do so. In re Marriage of Phillips, 272 Kan. 202, 205, 32 P.3d 1128 (2001). Reading the two statutes together, a patient may forego administrative remedies and must then file a K.S.A. 2013 Supp. 60-1501 petition within 30 days of the action for which relief is sought, or the patient may pursue administrative remedies, which tolls the 30-day limitation period. Furthermore, the Secretaiy’s position renders the second part of K.S.A. 2013 Supp. 60-1501(c) superfluous. There would be no need to extend the time to file a petition because no complaint would become final until administrative remedies had been exhausted. This court presumes that the legislature does not intend to enact superfluous or redundant legislation. See Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 322, 255 P.3d 1186 (2011).
Not only is there no need in the present case to resort to legislative history, resorting to such extratextual sources contravenes the first rule of statutory construction—reliance on the plain language of the statute. The courts are charged with applying laws as the legislature enacted them, not as witnesses advocated for them or as legislative committee chairs understood them.
The 2012 legislature expressly exempted habeas corpus proceedings from the exhaustion requirements of K.S.A. 2013 Supp. 59-29a24. We will not engage in second-guessing the legislature. The decision of the Court of Appeals affirming the district court is reversed. The decision of the district court is reversed. The cases are remanded to the district court.
Michael J. Malone, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Beier, J.:
A.M.M.-H. appeals execution of his adult prison sentence the terms of conditional release on his juvenile sentence. We accepted his petition for review of the Court of Appeals decision affirming the district court.
Factual and Procedural Background
In early 2011, A.M.M.-H. pleaded guilty to one count of aggra vated indecent liberties with a minor in violation of K.S.A. 21-3504(a)(3), a severity level 3 person felony, and one count of aggravated intimidation of a witness, K.S.A. 21-3833, a severity level 6 person felony.
A.M.M.-H. was sentenced in an extended juvenile jurisdiction proceeding. In such a proceeding, a juvenile is given both a juvenile sentence and an adult sentence. The adult sentence is stayed pending successful completion of the juvenile sentence. If the juvenile either violates the terms of his juvenile sentence or commits a new offense, the adult sentence may be executed in certain circumstances.
As a violent II juvenile offender under K.S.A. 2010 Supp. 38-2369(a)(1)(B), A.M.M.-H. received 24 months’ incarceration and an aftercare term of 24 months. His adult sentence, stayed pending successful completion of his juvenile sentence, was 59 months for the aggravated indecent liberties count and 18 months for the aggravated intimidation of a witness count. The adult sentences were ordered to run concurrently, and the district judge ordered lifetime postrelease.
A.M.M.-H. was placed in the Kansas Juvenile Correctional Complex on April 20, 2011. Because of time already served, he was scheduled to be released in September 2012.
That month, A.M.M.-H. entered into a “Conditional Release Contract,” which contained several conditions of release, including attending school; obeying all federal, state, county, and local laws; and contacting his community supervision officer within 48 hours of release. The contract also stated:
“Any violation of the Conditional Release Contract is a violation of State Law (K.S.A. 38-2375) and may result in court action to extend the terms of your Release Contract and/or to modify the conditions of your Conditional Release Contract, or to return you to the Juvenile Correctional Facility.”
A.M.M.-H. also entered into a “Juvenile Intensive Supervision Contract” that contained additional terms of his release to remain in effect until his final discharge from the court. Clause 14 contained the consequences for violating the contract:
“The Respondent may be placed in confinement at the Juvenile Detention Center (or Adult Detention Center if over the age of 18), placed on House Arrest, or directed to appear in front of the Juvenile Field Services Review Board, if he/she does not comply with the Supervision Contract, Case Supervision Plan, and/or Conditional Release Contract.”
Finally, A.M.M.-H. signed a “Formal Acknowledgment of the Conditional Release Contract,” which stated that he
“[had] reviewed the court-ordered conditions of my Probation with my Intensive Supervision Officer. This is to acknowledge I fully understand the requirements of tire court order and I realize failure to complete any or all of the probation conditions can result in a revocation of probation being brought to the Court’s attention.”
A permanency hearing for A.M.M.-H. was held on September 17, 2012. The district judge found that he had “been reintegrated and is ordered to follow all conditions of conditional release.”
In November, A.M.M.-H.’s brother contacted an Intensive Supervision Officer (ISO) to report that A.M.M.-H. had left home the previous day and failed to return. A bench warrant was issued, and a district magistrate judge ordered A.M.M.-H. to be placed in the custody of the Juvenile Detention Center.
The State filed a motion to revoke A.M.M.-H’s juvenile sentence and execute the adult-prison sentence. According to the State’s motion, A.M.M.-H. had violated the “court-ordered conditions of the juvenile sentence, his juvenile intensive supervision contract” by: (1) failing to notify his ISO within 48 hours of any contact with police, (2) violating his curfew, (3) failing to malee payment for his Johnson County Department of Corrections fees and costs, and (4) associating with persons with criminal records and who were known gang members.
District Judge Thomas E. Foster held an evidentiary hearing on the State’s motion in January 2013. The judge found that A.M.M.H. “violated the terms of his Conditional Release Contract” and revoked conditional release. The judge then ordered A.M.M.-H. to serve his adult prison sentence.
A.M.M.-H. argued on appeal to the Court of Appeals that what he characterized as “technical violations” of the terms of his conditional release on his juvenile sentence were not violations of the sentence itself, and thus the district judge was without authority to order execution of the adult prison sentence. A.M.M.-H. relied primarily on the fact that terms of conditional release are imposed by the Juvenile Justice Authority and community corrections officers rather than a district judge.
The State responded that the district judge’s sentence included a requirement that A.M.M.-H. follow “ 'all conditions of conditional release.’ ”
The Court of Appeals panel agreed with the State, holding that a “juvenile who completes tire incarceration portion of a juvenile sentence under . . . extended juvenile jurisdiction proceedings and [who] is granted conditional release may be ordered to serve the adult sentence previously entered by the court if the juvenile violates the provisions of the conditional release under K.S.A. 2012 Supp. 38-2364(b) and K.S.A. 2012 Supp. 38-2369(4)(C).” In re A.M.M.-H., 49 Kan. App. 2d 647, Syl. ¶ 4, 312 P.3d 393 (2013).
Discussion
Issues of statutory interpretation and construction raise questions of law reviewable de novo on appeal. State v. Frierson, 298 Kan. 1005, 1010, 319 P.3d 515 (2014). We first
“ ‘attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. [Citation omitted.] When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature’s intent. [Citation omitted.]’ ” State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014) (quoting State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 [2010]).
Before addressing the arguments of the parties, it is helpful to briefly outline the underlying statutory framework.
A proceeding under the Juvenile Justice Code (JJC) is commenced when the State files a verified complaint alleging a juvenile to be a juvenile offender. K.S.A. 2013 Supp. 38-2327. A juvenile is presumed to be subject to the JJC unless proved otherwise. K.S.A. 2013 Supp. 38-2304(c).
In a typical juvenile case, “[i]f the court finds that the juvenile committed the offense charged . . . the court shall adjudicate the juvenile to be a juvenile offender and may issue a sentence.” K.S.A. 2013 Supp. 38-2356(b). But, at any time before sentencing, the State may file a motion requesting designation of the case as an extended juvenile jurisdiction proceeding. K.S.A. 2013 Supp. 38-2347(a)(3). In general, the burden is on the State to prove the appropriateness of the designation; but, in certain circumstances, such as when the juvenile has already been adjudicated once for a felony, the burden shifts to the juvenile to rebut the designation. K.S.A. 2013 Supp. 38-2347(a)(4).
If the juvenile pleads guilty or is found to be guilty in an extended juvenile jurisdiction proceeding, the court shall: (1) impose one or more juvenile sentences and (2) impose an adult criminal sentence, which “shall be stayed on the condition that the juvenile offender not violate the provisions of the juvenile sentence and not commit a new offense.” (Emphasis added.) K.S.A. 2013 Supp. 38-2364(a)(l)-(2).
The juvenile sentences available to the district judge are listed in K.S.A. 2013 Supp. 38-2361(a). They include: “(12) Commit the juvenile directly to the custody of the commissioner [of the Juvenile Justice Authority] for a period of confinement in a juvenile correctional facility and a period of aftercare pursuant to K.S.A. 2013 Supp. 38-2369, and amendments thereto.” K.S.A. 2013 Supp. 38-2361(a).
When the juvenile is sentenced to the custody of tire commissioner and given a period of aftercare pursuant to K.S.A. 2013 Supp. 38-2361(a)(12), the district judge does not hold a perma-nencyhearing under K.S.A. 2013 Supp. 38-2365 until the juvenile’s release from the juvenile correction facility. K.S.A. 2013 Supp. 38-2361(a)(12). The district judge is statutorily required to hold such a hearing within 7 days of the juvenile’s release. K.S.A. 2013 Supp. 38-2361(a)(12).
The provisions outlining aftercare and conditional release are contained in K.S.A. 2013 Supp. 38-2374:
“(a) When a juvenile offender has satisfactorily completed tire term of incarceration at the juvenile correctional facility to which the juvenile offender was committed or placed, the person in charge of the juvenile correctional facility shall have authority to release the juvenile offender under tire appropriate conditions and for a specified period of rime. Prior to release from a juvenile correctional facility, the commissioner shall consider any recommendations made by the juvenile offender’s community case management officer.”
“Conditional release” is defined to mean a “release from a term of commitment in a juvenile correctional facility for an aftercare term . . . under conditions established by the commissioner.” K.S.A. 2013 Supp. 38-2302(b).
The limits of the district judge’s involvement in setting the terms of conditional release are.set forth in subsections (b) and (c) of K.S.A. 2013 Supp. 38-2374. At least 21 days before release, the juvenile correctional facility notifies tire committing court of the date of the juvenile’s release and the proposed conditions of the release. K.S.A. 2013 Supp. 38-2374(b). After reviewing the proposed conditions of the release, the district judge “may recommend modifications or additions to the terms.” K.S.A. 2013 Supp. 38-2374(c). Subsection (e) gives the commissioner the authority to request the assistance of the appropriate court to supervise compliance with the conditions of release during conditional release and the authority to require the juvenile’s parents to cooperate and participate with the conditional release.
If a juvenile offender who has been conditionally released fails to obey the specified conditions, the State or an officer assigned to supervise the release may inform the committing court of the alleged violation. K.S.A. 2013 Supp. 38-2375. After a hearing to determine if the juvenile has violated the terms, the “court may modify or impose additional conditions of release that the court considers appropriate or order that the juvenile offender be returned to the juvenile correctional facility to serve the conditional release revocation incarceration and aftercare term set by the court pursuant to the placement matrix.” K.S.A. 2013 Supp. 38-2375. Upon finding a conditional release violation, the district judge may also:
“(A) . . . commit the offender directly to a juvenile correctional facility for a minimum term of three months and up to a maximum term of six months. The aftercare term for this offender shall be a minimum of two months and a maximum of six months, or the length of the aftercare originally ordered, whichever is longer.
“(B) Enter one or more of the following orders:
(i) Recommend additional conditions be added to those of the existing conditional release.
(ii) Order the offender to serve a period of sanctions pursuant to subsection (f) of K.S.A. 2013 Supp. 38-2361, and amendments thereto.
(hi) Revoke or restrict the juvenile’s driving privileges as described in subsection (c) of K.S.A. 2013 Supp. 38-2361, and amendments thereto.
“(C) Discharge the offender from the custody of the commissioner, release the commissioner from further responsibilities in the case and enter any other appropriate orders.” K.S.A. 2013 Supp. 38-2369(a)(4).
In an extended jurisdiction juvenile proceeding, as here, there is another possible consequence flowing from a violation of conditions of release on the juvenile sentence. K.S.A. 2013 Supp. 38-2364(b) provides:
“When it appears that a person sentenced as an extended jurisdiction juvenile has violated one or more conditions of the juvenile sentence or is alleged to have committed a new offense, the court, without notice, may revoke tire stay and juvenile sentence and direct that the juvenile offender be immediately taken into custody and delivered to the secretary of corrections .... The court shall notify the juvenile offender and such juvenile offender’s attorney of record, in writing by personal service ... of the reasons alleged to exist for revocation of the stay of execution of the adult sentence. If the juvenile offender challenges the reasons, the court shall hold a hearing on the issue at which the juvenile offender is entitled to be heard and represented by counsel. After tire hearing, if the court finds by a preponderance of tire evidence that the juvenile committed a new offense or violated one or more conditions of the juvenile’s sentence, tire court shall revoke the juvenile sentence and order the imposition of tire adult sentence previously ordered pursuant to subsection (a)(2) or, upon agreement of the county or district attorney and the juvenile offender’s attorney of record, the court may modify the adult sentence previously ordered pursuant to subsection (a)(2). Upon such finding, the juvenile’s extended jurisdiction status is terminated, and juvenile court jurisdiction is terminated. The ongoing jurisdiction for any adult sanction, other tiran tire commitment to tire department of corrections, is with the adult court. The juvenile offender shall be credited for time served in a juvenile correctional or detention facility on the juvenile sentence as service on any authorized adult sanction.” (Emphases added.)
Again, the crux of A.M.M.-H’s argument on appeal is that the terms of his conditional release were not a part of his juvenile sentence because they were not imposed by the sentencing judge. Moreover, he argues, the statutes addressing violations of condi tional release, K.S.A. 2013 Supp. 38-2375 and K.S.A. 2013 Supp. 38-2369(a)(4), do not include lifting of the stay of the adult sentence as a potential consequence.
The first question we must address is whether the district judge’s finding that A.M.M.-H. “violated the terms of his Conditional Release Contract” was equivalent to a finding that he “violated one or more conditions of the juvenile sentence.”
The terms of conditional release were not explicitly included in A.M.M.-H.’s sentence, but that sentence did include 24 months of aftercare. By violating the terms of his conditional release, A.M.M.H violated the terms of his aftercare and thus the provisions of his juvenile sentence. See K.S.A. 2013 Supp. 38-2302(b) (defining “conditional release” as release from juvenile correctional facility for term of aftercare). Neither K.S.A. 2013 Supp. 38-2375 nor K.S.A. 2013 Supp. 38-2369(a)(4), each of which govern violations of conditional release generally, specifically addresses the violation of a conditional release that is a part of an extended jurisdiction juvenile proceeding. The more specific statute here is K.S.A. 2013 Supp. 38-2364(b). See In re Adoption of H.C.H., 297 Kan. 819, 833, 304 P.3d 1271 (2013) (specific statute applicable rather than general statute; specific provision within statute applicable over more general provision within statute).
The second question we must answer is whether K.S.A. 2013 Supp. 38-2364(b) makes revocation of the stay of the adult sentence mandatory or within the district court’s discretion. Implicit in A.M.M.-H.’s argument is a concern that the terms of the conditional release are beyond the district judge’s control and that, once the district judge finds a term of conditional release has been violated, the lifting of the stay is mandatoiy. Our Court of Appeals has read the applicable statute to require the execution of the adult sentence upon a finding of a violation of the juvenile sentence. See State v. J.H., 40 Kan. App. 2d 643, 646-47, 197 P.3d 467 (2007) (interpreting earlier version of statute invoking substantial competent evidence standard rather than preponderance of evidence standard).
We think K.S.A. 2013 Supp. 38-2364(b) is a bit more nuanced than previously recognized.
The first sentence of tire governing statutory subsection is permissive. When an extended jurisdiction juvenile has violated a condition of his or her sentence, a district judge “may revoke” the stay without notice and “direct that the juvenile offender be immediately taken into custody and delivered to the secretary of corrections.” Once notice of the allegations supporting revocation are served on the juvenile and the juvenile’s attorney of record, the juvenile may challenge the allegations. If no challenge is asserted, the statute is silent. If a challenge is asserted, a hearing is held. After such a hearing, if the district judge finds by a preponderance of the evidence that the juvenile violated a condition of his or her sentence, then the punishment for the violation is no longer permissive. Rather, die district judge “shall revoke” the stay of the adult sentence originally pronounced unless the State and the defense agree to a modification of that sentence. Under the plain language of the statute, the preponderance finding triggers automatic termination of the extended jurisdiction of the juvenile court and endows the adult court with ongoing jurisdiction for any adult sanction other than prison.
In short, K.S.A. 2013 Supp. 38-2364(b) requires a mandatory execution of the adult sentence only if the juvenile has requested a hearing and the court has found a violation by a preponderance of the evidence. The statute does not specifically address the situation before us here, where the district judge apparently scheduled a hearing on the State’s motion to revoke before the juvenile asserted any challenge to the allegations of violation. We hold that in such a situation, the district judge retains discretion to determine whether a particular violation warrants revocation of the stay of the adult sentence just as he or she does if no notice has been provided to the juvenile at all.
It is an abuse of discretion for a district judge to fail to appreciate that he or she has discretion and then to exercise it. State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264 (2011). Because it is unclear from the record on appeal whether Judge Foster knew he had discretion not to execute the adult sentence upon a finding of violation of the terms of A.M.M.-H.’s conditional release, we remand to the district court for reconsideration of the State’s motion to revoke.
Conclusion
The decision of the Court of Appeals is reversed. The decision of the district court is reversed, and the case is remanded to district court.
Moritz, J., not participating.
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The opinion of the court was delivered by
ROSEN, J.:
DeWhite Cameron appeals from his juiy convictions of one count of felony murder and one count of aggravated batteiy arising from the injuries sustained by two young children.
Cameron lived in a house in Wichita with Shaneekwa Saunders and her three boys, Sedrick and 2-year-old twins Damion and Tray-vion, and her young daughter Sanna.
On the morning of September 19, 2008, a neighbor across the street from Cameron started to walk to a store when he heard Cameron calling out that his son was not breathing. The neighbor told Cameron to call 911, but Cameron said he had no telephone. The neighbor returned to his own house and directed Diane Davis, a woman who was visiting, to call 911.
Davis testified that she went across the street and into Cameron’s house. She saw two small children eating something off the floor and another little boy standing with his hands behind his back facing a comer. Davis asked the boy in the comer where his father was, and the boy replied, “Well, I can’t talk to you because I’ll get in trouble.”
Cameron then walked in the house through a back door and took Davis to a hallway where another child was lying on the floor. The child was not breathing and had scratches on his neck and bruises on his face. He was wearing a diaper that looked like it had not been changed for a couple of days. Cameron told Davis that the child had fallen off the potty and hit his head. Cameron proceeded to press on the child’s chest and slap the child’s face, and Davis heard a liquid, gurgling sound coming from the child’s chest.
When paramedics arrived, Davis noticed that one of the younger boys had bruises and scratches much like die unconscious child’s injuries, and she encouraged the paramedics to take that child with them to the hospital. As Davis was walking away from the house, she overheard that child tell another neighbor, Euva Parker, “My daddy did it.”
Parker, who lived four houses down the street from Cameron, testified that she heard Davis running out of Cameron’s house screaming to call the police, which prompted Parker to check on what was wrong. Parker entered Cameron’s house and, upon seeing a little boy lying on the floor with his twin brother standing over him, asked Cameron what had happened. He responded that the child fell out of the bathtub and had water in his lungs. She asked Cameron again, and this time he responded that the child had fallen off the toilet and hit his head.
Cameron told Parker the other children were in the kitchen. When she looked in the kitchen, she saw the little girl sitting on the floor eating cereal and Sedrick standing in the corner facing the refrigerator. Sedrick did not move from the corner during the entire time Parker was there, and he told her that he could not talk because he would get in trouble. Parker noticed that both of the twins had similar patterns of scratches and bruises. Parker returned and watched Cameron pushing on Damion’s chest and slapping his face. Parker heard liquid sounds coming from the child’s chest, and Cameron again told her that the child had fallen in the bathtub.
Parker and Davis escorted the two remaining children to Parker’s house. While they were walking down the street, Sedrick told Parker, “My daddy hurt my brother.” When Parker said, “What?” Sedrick responded, “My daddy hurt my brother, he make my brother not breathe.” There was testimony that Sedrick routinely referred to Cameron as his “daddy.”
Another neighbor watched Cameron take a black trash bag out of his house, return to the house, and then go back outside and walk over to a tree in his backyard. About 5 to 10 minutes later, the neighbor heard and saw the ambulance arrive at Cameron’s house. A police officer later went into Cameron’s backyard and located a bag of trash containing a towel that had fresh blood on it.
The paramedics who responded to the call found Damion lying unresponsive on the floor. Cameron told one of the paramedics that Damion had fallen in the bathtub and hit his head. Lieutenant Thomas Benefiel of the Wichita Fire Department also arrived in response to the 911 call. He asked Sedrick what had happened, and Sedrick responded, “Daddy got mad.”
When Damion arrived at the hospital, his heart was not beating and his airway was full of blood. The medical staff was able to resuscitate Damion briefly and reestablish a heart beat. Shortly afterward, however, a pair of blood-flow scans showed that Damion was brain dead. Trauma surgeon Dr. Don Vasquez concluded that the injuries leading to his death occurred within 6 hours of his death.
An autopsy showed that the cause of Damion s death was multiple blunt-force traumas and brain swelling. At least 20 blunt-force injuries were identified on his head. Three physicians testified that the traumas were so severe that the injuries would have become critical almost immediately.
Dr. Vasquez took special notice of Trayvion, observing that he lacked the affect of a typical 2-year-old child and that he looked like he “had been in a bar fight.” He had two black eyes, cuts on his lip, and a scratch on the front of his neck. A CT scan revealed that Trayvion had what appeared to be a “healing liver laceration,” which is an injuiy that Dr. Vasquez had never seen in an infant. Trayvion also had a fractured rib and a bruised lung.
The other children were brought into the hospital for examination. Sedriclc asked Kim Tanner, a registered nurse, whether his father was in jail. She asked why he would be in jail, and then she asked Sedrick whether his father had spanked his brothers. He replied, “No, he whooped [or whipped] them.”
The State charged Cameron with one count of felony murder for the death of Damion and one count of aggravated battery for the injuries to Trayvion. A jury found Cameron guilty of both charges. The trial court sentenced Cameron to a hard 20 life sentence for murder and a consecutive high-end guideline sentence of 172 months ‘ imprisonment for the aggravated battery.
Involuntary Manslaughter as a Lesser Included Offense of Felony Murder
Cameron contends that he was entitled to an instruction on involuntary manslaughter as a lesser included offense of felony murder because the evidence would have supported a conviction based on reckless conduct.
After Cameron’s trial, the legislature amended the first-degree murder statute, K.S.A. 21-3401. The recodified statute, K.S.A. 2013 Supp. 21-5402(d) states that the provisions of K.S.A. 2013 Supp. 21-5109 relating to lesser included crimes are not applicable to murder in the first degree under K.S.A. 2013 Supp. 21- 5402(a)(2), which defines felony murder. See L. 2013, ch. 96, sec. 2. The legislature also inserted a subsection (e) to 21-5402, which reads: “Tlie amendments to this section by this act establish a procedural rule for the conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.” L. 2013, ch. 96, sec. 2.
Following oral argument in this case, we issued our opinion in State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), in which we determined that tire amendments in K.S.A. 2013 Supp. 21-5402 eliminated lesser included offenses of felony murder and that the amendments are to be applied retroactively. The issue of involuntary manslaughter as a lesser included offense of felony murder is therefore without merit, and by operation of the statute, it was not error for the trial court to fail to give the instruction that Cameron requested.
Reckless Aggravated Battery as a Lesser Included Offense of Intentional Aggravated Battery
The jury convicted Cameron of intentional aggravated batteiy against Trayvion. On appeal, Cameron contends that it was reversible error not to instruct the juiy on a theory of reckless aggravated battery.
At trial, Cameron objected to the instruction on intentional aggravated battery “as not being supported by tire evidence.” Cameron did not object to the instruction based on an argument that a lesser included offense instruction of reckless aggravated batteiy was appropriate. On appeal, however, he changed his challenge to the batteiy instruction to one of a failure to add a lesser included offense instruction. Because Cameron did not raise this objection or propose the lesser included offense instruction to tire trial court, the standard of review is clear error. See, e.g., State v. Tapia, 295 Kan. 978, 995, 287 P.3d 879 (2012); State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010) (changing the theory of an objection to an instruction from trial to appeal is tantamount to not having objected below because trial court did not have opportunity to consider particular argument).
When a party fails to object to the failure to give an instruction, including raising a lesser included offense instruction, reversal is not permitted unless the failure to give that instruction is clearly erroneous. K.S.A. 22-3414(3); State v. Cheffen, 297 Kan. 689, 703, 303 P.3d 1261 (2013). In order to establish that the failure to give an instruction was clearly erroneous, the reviewing court must initially determine whether there was error at all. This requires demonstrating that giving the instruction would have been legally and factually appropriate based on an unlimited review of the entire record. If the court finds error, it moves to an inquiry of whether reversal is warranted based on an assessment of whether it is firmly convinced that the jury would have reached a different verdict if the instruction had been given. 297 Kan. at 703.
At the time of the crime, K.S.A. 21-3414(a) defined aggravated battery. K.S.A. 21-3414(a)(l) required a showing that the defendant acted “intentionally”; K.S.A. 21-3414(a)(2) required a showing that the defendant:
“(A) recklessly caus[ed] great bodily harm to another person or disfigurement of another person; or
“(B) recklessly caus[ed] bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.”
Reckless aggravated batteiy is a lesser included offense of intentional aggravated battery. See State v. McCarley, 287 Kan. 167, 177-78, 195 P.3d 230 (2008).
Cameron presented no evidence showing that he engaged in reckless conduct toward Trayvion, and he did not argue that his conduct was reckless. He instead contended that he simply was not the cause of Trayvion’s injuries. The contemporaneous statements of the other children strongly suggested that Cameron had beaten both the twins. The testimony of medical professionals showed that Trayvion had suffered multiple injuries over a period of time, some perhaps weeks earlier and some perhaps that day.
Cameron argues on appeal that the jury might have speculated that the injuries were the result of an indifference to the imminence of danger to Trayvion rather than tire products of intentional acts of violence, but this speculation lies at the far end of what the evidence could have proven. The multiple injuries suffered by Trayvion over a period of time persuade us that no jury reasonably would have found beyond a reasonable doubt that Cameron engaged in merely reckless conduct toward Trayvion.
Even if we were to find that the failure to give the lesser included offense instruction constituted error, it did not rise to the level of clear error. The evidence, consisting of the out-of-court statements of Trayvion’s older brother Sedrick and the testimony of the medical professionals, strongly implicated Cameron in the intentional aggravated batteiy of Trayvion.
Under the clear error standard of K.S.A. 22-3414(3), tire defendant bears the burden of firmly convincing the court that the jury would have reached a different verdict if an asserted instructional error had not been committed. State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012). The tenuous nature of Cameron’s argument for the recldess aggravated batteiy instruction, combined with the compelling evidence supporting intentional aggravated batteiy, leads us to conclude that it was not clear error to omit the instruction that was not requested.
We therefore find no reversible error in the failure to give a reckless aggravated battery instruction.
Sedrick’s Out-of-Court Statements
On the day of Damion’s death, his older brother Sedrick made statements to various people implicating Cameron as the cause of Damion’s and Trayvion’s injuries. Before the trial, Cameron sought to disqualify Sedrick as a witness, arguing that his young age rendered him unable to distinguish between truth and falsehood. The court elected to allow Sedrick to testify, but his trial testimony contradicted statements that other witnesses had already ascribed to him.
Well after those witnesses had testified, Cameron moved for a mistrial, arguing that Sedrick’s testimony was so detached from reality that he was unqualified to be a witness and was therefore not subject to cross-examination. The trial court reiterated its earlier findings that Sedrick was qualified and held that Cameron had waived Ms rigM to cross-examine. Cameron reasserts tMs issue on appeal.
The decision to grant or deny a motion to disqualify a witness is reviewed for abuse of discretion. See State v. Thrasher, 233 Kan. 1016, 1018-19, 666 P.2d 722 (1983). A court abuses its discretion if it takes action that is arbitrary, fanciful, or unreasonable; that is based on an error of law; or that is based on an error of fact. Fischer v. State, 296 Kan. 808, Syl. ¶ 8, 295 P.3d 560 (2013). Because the statutory grounds for disqualifying a witness require a finding of fact, the third part of the test is at issue here.
Cameron’s theory regarding the trial error in allowing the out-of-court statements is unclear. He appears to argue that the statements were inadmissible hearsay, but he did not raise contemporaneous objections. He also appears to argue that the trial court erred when it held that Sedrick was a qualified witness, but he does not specifically appeal that decision. Finally, he appears to request a de novo review of his assertion that Sedrick was unavailable for cross-examination, but he did not contemporaneously raise that objection at trial.
Cameron filed a pretrial motion to disqualify Sedrick as a witness because he was 3 years and 11 months old at the time of Damion’s death and was “not capable of understanding the duty of a witness to tell the truth.” A hearing was held to determine whether Sedrick was qualified. He was examined and cross-examined at that hearing. In denying the motion, the judge stated:
“I have observed [Sedrick], I have observed him take the oath, I have observed him testify, answer questions of counsel. At this time, I believe that he is a qualified witness. However, as I also said, that is subject to change, because, unfortunately, young people of [Sedriclc’s] age, five years and the like, could at other times not be qualified.”
Several witnesses testified that Sedrick implicated Cameron as the individual who caused Damion’s death. These statements included: “My daddy did it,” “My daddy hurt my brother,” “[H]e make my brother not breathe,” “Daddy got mad,” and “He whooped them.” After those witnesses had testified, Sedrick was called as a witness. He was 5 years old and in prekindergarten at the time of the trial.
When asked what happened to Damion, Sedrick testified, “He got dead.” When asked, “What got him dead?” Sedrick said, “God.” He also testified that Trayvion and their sister were not in the house when Damion died. When asked what was going on in the house when Damion died, Sedrick testified, “Nothing.” And when asked what made Damion lie down in the hallway, he testified, “Hisself.”
The prosecution then asked Sedrick what he told the neighbor ladies about how Damion died. He answered, “Cause God. . . . Because God killed him.” The following dialogue ensued:
“Q: Okay. Was anybody mad at Damion that morning?
“A: No.
“Q: Did you tell Ms. Euva somebody was mad at you that morning?
“A: Yes.
“Q: Who did you say was mad at you?
“A: Nobody.
“Q: Who did you say was mad at Damion?
“A: Nobody.”
Shortly afterward, this dialogue took place:
“Q: What did you tell the firemen?
“A: My brother died.
“Q: You told the firemen your brother died?
“A: Yes.
“Q: Did you tell the firemen why your brother died?
“A: Yes.
“Q: What did you tell them?
“A: Because God.
“Q: Did you talk to—did you go to the hospital?
“A: Yes.
“Q: And when you were in die hospital, did you talk to the nurses?
“A: Yes.
“Q: And did you talk to them about Damion?
“A: Yes.
“Q: What did you tell the nurses about Damion?
“A: Cause God did it.
“Q: Did you—just a second. Sedrick, can you look at me. When you talked to those nurses, did you tell them about Damion?
“A: Yes.
“Q: What did you tell them about Damion? Can you look up at me, Sedrick.
“A: That he died.
“Q: That he died?
“A: Yes.
“Q: Did you tell them what happened to him in the house that day?
“A: Yes.
“Q: What did you tell them?
“A: He died.
“Q: Did you tell them why he died?
“A: Because God did it.
“Q Okay. Did you see your brother get hurt?
“A: Yes.
“Q: What did you see, Sedrick? Can you look at me. What did you see?
“A: Something that I don’t know.
“Q: You saw something that you don’t know?
“A: Yes.
"Q: Sedrick, is it something that you don’t know, or is it something that you don’t want to talk about?
“A: Don’t want to talk about.
“Q: ‘When you were telling the nurses about what happened to Damion— “A: Yes.
“Q: —what did you tell them?
“A: God got him. Got him. Got him.
“Q: I heard you, dear-. Did you—you know, it occurs to me, Sedrick, that God may mean different tilings to different people. When you say ‘God did it,’ what do you mean?
“A: That he did it.
“Q: How did God do it?
“A: He made him.
“Q: Look at me. What?
“A: He made him.
“Q: He made who?
“A: Trayvion die. I mean Damion die.
“Q: How did God make Damion die?
“A: He just did it by hisself.”
The direct examination continued in a similar vein for a short time, when objections from defense counsel based on repetitious questioning brought the testimony to a close. The court then specifically found that it still had not seen anything indicating that Sedrick was not a competent witness. Following drat judicial determination, defense counsel elected not to cross-examine Sedrick.
K.S.A. 60-407 provides that every person is qualified to be a witness unless otherwise provided by statute. K.S.A. 60-417 pro vides that a trial judge is to disqualify a witness if the judge finds that the proposed witness is incapable of expressing himself or herself concerning the subject of testimony so as to be understood by the judge and jury or if the proposed witness is incapable of understanding the duty of a witness to tell the truth.
The burden of establishing the incompetence of a witness lies with the party challenging competence. State v. Warden, 257 Kan. 94, 123, 891 P.2d 1074 (1995). Age alone is not a valid criterion for disqualification. State v. Winkel, 243 Kan. 570, 573, 757 P.2d 318 (1988).
It must be noted initially that Cameron did not object to Sed-rick’s out-of-court statements as the various witnesses presented them to the jury. This court still adheres to the requirement that appellate review of the admission of evidence through questions to witnesses and their answers is permitted only when a party preserves the issue byway of a contemporaneous objection. K.S.A. 60-404; State v. Bridges, 297 Kan. 989, Syl. ¶ 13, 306 P.3d 244 (2013). Outside of a pretrial motion to disqualify Sedrick as a witness because he might be unable to distinguish truth from untruth, the record contains no objection before or during the witnesses’ testimony.
When Davis began her testimony about what Sedrick told her, the record shows that counsel approached the bench. The transcript then records: “(An off-the-record discussion was had by Court and counsel at tire bench out of the hearing of the jury and tire reporter.)’’ The transcript does not indicate what the topic of the discussion was or whether the judge made any sort of ruling. Although Cameron asserts that the off-the-record discussion involved the introduction of the out-of-court statements, it is impossible to ascertain from the record whether that was the case or how the trial court ruled. Furthermore, no hint of an objection was raised when the other two witnesses testified about Sedrick’s out-of-court statements.
Cameron had the opportunity to cross-examine Sedrick but elected not to do so. Although Cameron contends that Sedrick was “unavailable” for cross-examination, Sedrick testified at some length under direct examination, contradicting tire testimony of the three earlier witnesses about what he told them. The trial judge twice found that Sedrick was qualified to testify, once at the pretrial motion hearing and again during a bréale in his testimony.
Out-of-court statements are inadmissible at trial unless the State can prove that the person making the statement is unavailable and that the defendant had a prior opportunity to cross-examine the declarant. State v. Johnson, 297 Kan. 210, 224, 301 P.3d 287 (2013). Cameron’s counsel never attempted to cross-examine Sed-rick, perhaps believing that his testimony supported Cameron’s position or perhaps believing that cross-examination of a frightened 5-year-old child would be prejudicial to his case. Either way, there is no evidence before this court that Sedrick was unavailable. The court found Sedrick was qualified to testify, he did in fact testify, and the defense waived the right to cross-examine him.
We conclude there was no error in admitting the out-of-court statements.
Constitutional Presumption of Innocence
Jury Instruction No. 8 read: “Your concern in this case is determining if the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the court.” Cameron contends on appeal that the language of this instruction unconstitutionally shifted the burden to him to prove that he was not guilty.
Because Cameron failed to object to the instruction, this court applies a clearly erroneous standard of review. See K.S.A. 22-3414(3); State v. Raskie, 293 Kan. 906, 921-22, 269 P.3d 1268 (2012).
In Raskie, this court considered a nearly identical argument. There, we held that this instruction, based on PIK Crim. 3d 51.10, should be read together with other instructions that define the jury’s duty and the burden of proof borne by each party. When the instructions as a whole set out the proper burden of proof, the challenged instruction was an accurate statement of the law and did not improperly shift the burden of proof to the defendant. 293 Kan. at 922.
In the present case, Instruction No. 2 explained to the jury:
“The State has the burden to prove tire defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to dre trudi of any of the claims required to be proved by die State, you must find die defendant not guilty. If you have no reasonable doubt as to die trudi of each of the claims required to be proved by the State, you should find the defendant guilty.”
In Instruction No. 4, the court informed the jury that the burden of proving the required criminal intent “never shifts to the defendant.”
Because these other instructions clearly and accurately stated the burden of proof, the challenged instruction did not dilute or undermine the presumption that Cameron was not guilty. See Raskie, 293 Kan. at 922.
Evidence Supporting Felony Murder
Cameron argues that because Damion did not die until he was at the hospital, his killing did not occur “in the commission of. . . an inherently dangerous felony.” He contends that Damion died “long after” the child abuse had ended, thus taking away a temporal relationship between the abuse and the death.
When the defendant challenges the sufficiency of the evidence used to prove the elements of felony murder, the standard of review is whether, after reviewing all the evidence as viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Phillips, 295 Kan. 929, 940, 287 P.3d 245 (2012).
In order to establish felony murder, the State must prove two causation elements. First, the death must lie within the res gestae of the underlying crime, which is defined in this context as acts committed before, during, or after the happening of the principal occurrence, when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence. Second, the felony and the homicide must have a direct causal connection, which exists unless an extraordinary intervening event supersedes the defendant’s act and becomes the sole legal cause of death. State v. Berry, 292 Kan. 493, 498, 254 P.3d 1276 (2011).
Cameron does not argue that there was an extraordinary intervening event between the child abuse and the child’s death. To be sure, the medical staff was able to resuscitate Damion for a short time, but there is no suggestion in the record that anything other than the injuries that he sustained from tire abuse directly caused his death.
Cameron’s argument instead focuses on whether the acts leading to the death were part of the res gestae of the underlying crime, child abuse. Cameron apparently contends that the death was too remote in time to qualify as a killing done before, during, or after the principal occurrence.
This situation is markedly different from the one that the court confronted in Berry, where the court wrestled with the temporal connection between the underlying felony and the act that resulted in the victim’s death. There, the question revolved around the connection between a traffic fatality and a cocaine possession charge. Here, the underlying felony was essentially the same as the cause of death; the two occurrences were inextricably intertwined.
The evidence that was presented to the jury established a compelling case that Damion was killed as a direct consequence of child abuse. It would not have mattered if Damion had actually died weeks or months after the abusive conduct; tire commission of the crime of child abuse was identical in time to the cause of death resulting in the murder.
Jury Misled by Prosecutors Comments
Cameron asserts that the State repeatedly misled tire jury in setting out the burden of proof, both during voir dire and during closing argument.
When reviewing allegations of prosecutorial misconduct, this court first considers whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. If they were, the court next determines whether tire improper comments prejudiced tire jury against the defendant and denied tire defendant a fair trial. In this analytic step, the court considers three fac tors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. None of these three factors is individually controlling. State v. Novotny, 297 Kan. 1174, 1188, 307 P.3d 1278 (2013).
During closing argument, the prosecutor made the following statements to the juiy:
“We move the evidence from this courtroom to you for your reasonable, common sense assessment of what you know fits. There are a number of circumstances that you will work together, after that door closes, to determine what makes sense here. What is reasonable and what is not reasonable. What does not fit with our common sense. . . . Do not speculate, decide this case based on what you heard in this courtroom and your common sense.
“Now we move in this case to what happened on that morning on Erie. When you try to go through the idea of is it possible someone else was there? Possible, that’s not tire test. The test is reason, common sense. Beyond a reasonable doubt. It’s not beyond—remember the words, the words are not beyond all doubt. In life we have possibilities.”
The State did not define “reasonable doubt,” either during voir dire or closing argument. The State explicitly assured the juiy that the burden of proof was reasonable doubt. For example, the prosecutor stated to one juror during voir dire:
“Well, that’s—that’s the test. The State has to prove the defendant’s guilt beyond a reasonable doubt.
“And we do—we have to prove the elements of the crime ....
“So those things proven beyond a reasonable doubt in order to find the defendant guilty of the murder of a particular child ....
“And your civil juiy service is different than the application of law that’s required here in making a decision. Do you understand that the burden of proof on the State is higher?”
Later during voir dire, the prosecutor asked a prospective juror, “You have to decide the testimony or proof, whether or not it proves an individual beyond a reasonable doubt of guilt; do you understand that? . . . Under the law, one witness, if that witness convinces you beyond a reasonable doubt that the defendant is guilty, could you vote guilty?”
In State v. Stevenson, 297 Kan. 49, 298 P.3d 303 (2013), the prosecutor analogized reasonable doubt to a missing letter in the “Wheel of Fortune” game show. In affirming the conviction, this court noted that “tire prosecutor s argument in this case did not state or imply that the State’s burden of proof was anything less than beyond a reasonable doubt. In fact, the prosecutor reiterated the State’s burden of proving guilt beyond a reasonable doubt.” 297 Kan. at 54.
We distinguished Stevenson from State v. Finley, 273 Kan. 237, 248-49, 42 P.3d 723 (2002), where the prosecutor stated in closing argument:
“ ‘I would submit to you that a reasonable doubt is really nothing more than a fair doubt that’s based on reason and common sense and arises from tire status of the evidence. It’s impossible for me to prove everything to you by an absolute certainty. At the same time, a defendant should not be convicted just on speculation and conjecture . . .
In Finley, the court affirmed the conviction because the prosecutor’s definition of reasonable doubt was adequate, even if it was not complete. 273 Kan. at 249.
In State v. Mitchell, 269 Kan. 349, 360-61, 7 P.3d 1135 (2000), we held that the prosecutor made an erroneous and misleading statement of law when remarking, “ ‘[T]he State’s burden of proof in this type of criminal case and in any criminal case is a common sense burden.’ ” But the court concluded that the single comment did not deny the defendant a fair trial, primarily because of the weight of the evidence against him and the unlikelihood that the remark changed the result of the trial. 269 Kan. at 361.
Viewing the prosecutor’s statements to the jury in tire context of all the statements that she made, there was no error. The prosecutor properly told the jury that it could rely on its reason and properly reinforced the concept of proof beyond a reasonable doubt.
Cameron also contends that tire prosecutor made an impermissible appeal to community values during closing argument when she stated to the jury, “The defendant committed the brutal violence that you saw here. You’re not asked by die State to be inflamed by the brutality of this act, but you are asked to hold this man, who had the power that day to take a life, accountable for what he did.”
In Finley, 273 Kan. at 243-45, this court considered whether a prosecutor improperly appealed to community values when she argued that the jury should hold tire defendant accountable and that he was not accepting responsibility for what he did. This court noted that a “prosecutor’s comments asking the jury not to let the defendant get away with the crime is in most instances permissible comment.” 273 Kan. at 244. We see nothing more in the prosecutor’s comment in the present case than a request for accountability.
We conclude that the prosecutor’s statements to the jury during voir dire and closing argument lay well within the wide latitude afforded to prosecutors.
Cumulative Error
Finally, Cameron suggests that, even if individual assigned errors were not so egregious as to warrant reversal, when viewed collectively they denied him his right to a fair trial. This court is not required to reverse for cumulative error if the evidence against the defendant is overwhelming. State v. King, 297 Kan. 955, 987, 305 P.3d 641 (2013). This court will not find cumulative error when the record fails to support the errors that the defendant raises on appeal. One error, standing alone, is insufficient to support reversal under the cumulative effect rule. Novotny, 297 Kan. at 1191. Having found no multiple errors, we find no cumulative reversible error.
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The opinion of the court was delivered by
Beier, J.:
Defendant Tynisha Story appeals her first-degree murder conviction in the January 1, 2010, shooting death of Lak-easha Ross, a social guest of Story’s girlfriend, Ela Bartley. The district court judge sentenced Story to a hard 25 life sentence.
Story raises several issues that we have combined: (1) admission of and failure to give limiting instructions on evidence of other crimes or civil wrongs; (2) failure to instruct on voluntary manslaughter; (3) prosecutorial misconduct arising from references to school shootings during closing argument; and (4) cumulative error.
None of the issues raised by Story requires reversal of her conviction, and we affirm the judgment of the district court.
Factual and Procedural Background
Story and Bartley dated nonexclusively for several years. On December 31,2009, Bartley and her two sisters, Jonice Dickerson and Talisa Silas, attended a party at Story’s mother’s house. Bartley had driven to the party, but Story drove the three sisters home. After dropping the sisters off at their apartment, Story left in Bartley’s car.
The three sisters stayed up talking and watching movies. At some point, Ross, a woman Bartley had dated for “a couple of days” several years earlier, called Bartley and said she was coming over. Once Ross arrived, the women continued to talk and watch movies. Silas would later testify that Story called Bartley several times during this period. Eventually everyone went to sleep: Bartley and Ross in one bedroom and Dickerson in another; Silas slept in the front room.
The next morning, as Silas awoke, she heard Bartley tell Ross that Ross needed to leave before Story returned the car. About this time, Story called to tell Bartley she was coming over; Bartley said “OK” and hung up. Within minutes, Bartley called Story back to tell her that she “had company” and that Story could keep the car until the “company was gone.” Bartley again told Ross that she needed to leave because Story was on her way.
Not long after the second call, Story arrived at Bartley’s apartment. Without knocking, Story used Bartley s keys to enter. Bartley and Silas would later testify that, upon entering, Story looked around the room and, without saying a word, began shooting at Ross. Story fired approximately four shots before Bartley pushed her out the door.
Bartley’s versions about what happened next differed from one another. At trial, she and Silas would testify that Story stopped shooting when she was pushed out the door. But, immediately after the shooting, Bartley told Detective Clayton Bye that Story pushed her back “and just started shooting at least four more times. And I finally just—’cause she was at the doorway—and I finally just pushed her out and locked it.”
After Story was outside the apartment, both Bartley and Silas called 911.
Officer Scarlet McConnell was the first officer to arrive on the scene. She found the apartment with the front door open and the three sisters inside screaming. Seeing Ross lying on the floor, McConnell immediately went to check Ross’ pulse and found that she was dead.
Based on statements given by Bartley and her sisters, police developed several leads on Story’s whereabouts. Police contacted their counterpart in Kansas City, Missouri, for assistance. Based on a tip, police officers in Missouri followed a vehicle to a house where a passenger who matched Story’s description jumped out and ran inside. The officers secured the area and waited for backup.
After backup arrived, officers knocked on the front door. Edward Chism, Story’s uncle, answered and allowed the officers inside. The officers found Story and arrested her. After Story’s arrest, Chism consented to a search of the house. Officers found a nickel-plated gun in a pile of clothes in one of the bedrooms, which, according to Chism, was not his. A ballistics test would later match the gun to shell casings and bullet fragments found at the crime scene.
Ross’ autopsy report stated that she had been hit by eight shots: one in the head, one in the left shoulder, four in the left side of her chest, one in the back of her left arm, and one in her right thumb. Of the eight shots, at least four would have been fatal. The location of the wounds demonstrated that Ross was in a defensive position and trying to shield herself when she was shot.
Story’s first trial ended in a hung juiy.
At Story’s second trial, Officer Claude Harper testified to his observation of the missing serial number of the gun found at Chism’s and explained how removal of such a number makes it more difficult to determine who purchased the gun. He also described the method that may have been used to remove the particular gun’s serial number.
Story did not object to Harper’s initial testimony. But, at a later bench conference before Harper left the stand, Story’s counsel asserted that the evidence about the serial number’s removal should not have been admitted. Counsel said he could not remember if the district judge had ruled on the admissibility issue previously. The prosecutor said that the district judge had held that the evidence would be admissible. The district judge acknowledged that the gun had been admitted into evidence at the first trial, and he said his notes indicated that the serial number had been filed off. The prosecutor then said:
“My memory’s very clear [Stoiy’s counsel] has objected to this continuously from the get-go, I mean throughout the last trial through now. It’s my understanding he had a continuing objection to that and I would never dispute that for appellate purposes. And it has been admitted. The court had ruled it was admissible. The reason the State admitted that point, which is similar to the reason that we’re admitting negative DNA and negative fingerprint evidence is because this gun was recovered, and as you might remember at the last trial which resulted in a hung jury, [Story’s counsel] was allowed to argue you can’t trace that to the defendant, you can’t do it. I want to make, you know—I want it to be clear to the jurors that they tried to do everything they could ... to [tie] that gun. However, I never argued last time that it was herself that filed it off, never. I never made that [argument] and I don’t intend to this time.”
After reviewing his notes from the first trial, the district judge asked the prosecutor if she planned to present KBI testimony about how the serial number had been removed. The prosecutor said she did. The district judge then concluded the bench conference: “Well, let’s put it this way ... at this point I take what [Story’s counsel is] saying as an objection to any further testimony about that. And based upon the discussion we had here, that motion would be overruled.”
KB I firearm expert David Wright testified later in Stoiy’s second trial about the filed-off serial number, volunteering that it had been “obliterated” while giving a general description of the gun. Later, when the prosecutor asked Wright about the utility of gun serial numbers in identifying gun owners and about the chemical process Wright had used in his attempt to restore the visibility of the serial number of this particular gun, Story’s counsel did not object. On cross-examination, Wright was again asked about the serial number.
Story’s counsel did object to testimony about Stoiy’s use of another inmate’s telephone personal identification number (PIN) while in jail. Detective Sherry Anderson Simpson testified for the State about several telephone calls Story had made. When asked about the PIN Story had used to make a particular call, Anderson responded: “And I apologize because she’s used several people’s PIN numbers.” Story’s counsel made an objection at the bench to any testimony about the use of other inmates’ PINs because it was evidence of another crime. The district judge overruled tire objection. Simpson further testified that inmates use other inmates’ PINs in an attempt to hide their identity.
Story requested a heat-of-passion voluntary manslaughter jury instruction based on a quote from one of the recorded telephone calls admitted by the State. In the call, an unidentified woman said to Story:
“I believe you because I’m like when you came in, I just you was yourself when you came in, but like as soon as you stepped in the mother fucking door like your whole face like turned a different mother fucking color, like—I’m like you wasn’t even your mother fucking self because I know you. I know you from any fucking body.”
Story’s counsel argued that this passage supported a theory that Story acted in the heat of passion. After hearing argument from the State, tire district judge rejected the requested instruction.
During the defense’s closing argument, Story’s counsel challenged the sufficiency of the State’s evidence of premeditated murder. Counsel also tried to distinguish Ross’ murder—where the evidence showed Story did not know specifically that Ross was at the apartment—from cases that qualified as clearer examples of premeditation—such as cases in which the killer Mes in wait for a specific victim.
The State addressed this argument during the rebuttal portion of the prosecutor’s closing argument:
“Before I continue on, I just want to tell you something about premeditation. You don’t have to know someone’s there before it happens to premeditate on killing someone. All of us can think of examples of that. Quick one, school shootings. How many of those have we had? People who go to these schools, they bring a gun and they have no idea who’s coming in and out of that school like at Virginia Tech or Texas and yet not a single one of us in this room would doubt that they went there with tire intent to kill somebody for whatever their reasons are. You can all think of examples of that. That’s not a requirement, it’s not in tire law and we promised not to read things into the law that aren’t there.
“Fact is she knew company was over, she knew what it meant. Thei'e are some facts that might suggest she didn’t know Ms. Ross was over there, but I don’t have to prove that to you beyond a reasonable doubt. Fact is she was going to ldll whoever was there. She was going to ldll whoever was there and she does not have to know specifically it’s Lakeasha Ross to form the intent to ldll somebody, and that is common sense.”
Also during the rebuttal portion of the State’s closing argument, the prosecutor mentioned the serial number on the gun, in the context of investigators’ various attempts to find direct evidence tying Story to tire weapon.
Evidence of Other Crimes
Story argues that evidence of the filed-off serial number on the gun constituted evidence of another crime under K.S.A. 2010 Supp. 60-455 and that the district judge failed to follow the statute and erred in interpreting caselaw on admission of, and jury instruction for, such evidence. The State has chosen not to contest Story’s characterization of the evidence as evidence of another crime; so we accept that characterization for purposes of this appeal. The State also does not contest that the “evidence does not appear to be admissible pursuant to K.S.A. 60-455.” Although this court is not bound by a party’s concession on a question of law, we accept this concession for purposes of this appeal because it is not, ultimately, dispositive.
In its brief, the State does challenge Story’s preservation of this issue, arguing that the lack of a contemporaneous objection, apparently to Harper’s initial testimony, means we should not reach this issue’s merits. But the prosecutor stated at trial that she understood there to be a continuing objection already in place and that she “would never dispute that for appellate purposes.” We hold the State to its trial concession of the fact of the prior existence of a continuing defense objection to admission of Harper’s initial testimony. In addition, later testimony by Harper and similar evidence admitted through Wright also would have been admitted subject to the continuing objection.
The State’s lone substantive response on this issue is that K.S.A. 2010 Supp. 60-455 only applies to crimes that occurred at a time other than that of the charged crime. In its view, both the charged murder and the crime of obliterating the serial number of a gun occurred simultaneously. Although K.S.A. 21-4205(b) malees possession of a gun with an obliterated serial number prima facie evidence that the possessor is the one who obliterated the number, the criminal act is die obliteration itself. See K.S.A. 21-4205(a). Because there is no evidence in the record even tending to show when the gun’s serial number was removed, let alone that Story performed the obliteration while committing the murder, the State’s fact-based argument is unpersuasive.
This brings us to harmlessness. In general, the nonconstitutional harmlessness standard of K.S.A. 2010 Supp. 60-261 is applicable to violations of K.S.A. 2010 Supp. 60-455. See State v. Preston, 294 Kan. 27, 35-36, 272 P.3d 1275 (2012). Under that standard “the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial’s outcome in light of the entire record.” State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012).
The evidence of the filed-off serial number consisted of statements by two witnesses explaining their efforts to trace the gun’s ownership. The gun itself was admitted into evidence, and there is no indication that Story objected to its admission. The State never implied that it was a crime for Story to be in possession of such a gun, or that she had personally filed off tire serial number at any particular time. Possession of such a gun is not a violent crime. Nor is it a crime whose mere mention is inherently prejudicial. Although the prosecutor did reference the obliterated serial number during closing, the context was its possible relationship to concealment. This is a far cry from suggesting that a person who would remove a gun s serial number has a propensity to commit first-degree murder.
Moreover, die other evidence against Story was strong. Two eyewitnesses testified to seeing Stoiy come in the apartment without knocking and immediately start shooting at Ross. The eyewitness accounts were consistent with evidence found at the crime scene. The autopsy indicated that Ross was in a defensive position when she was shot. And the ballistics analysis indicated that the gun found where police arrested Stoiy was the one used in the shooting.
In light of the entire record, there is no reasonable probability the error affected the trial’s outcome. Any error in admitting the evidence of the filed-off serial number was harmless.
Story also malíes a K.S.A. 2010 Supp. 60-455 limiting instruction argument on evidence that she used other inmates’ PINs to make telephone calls while in jail awaiting trial. Again, regardless of whether the district judge erred by failing to give a limiting instruction on this evidence, any such error would have been harmless on the record before us. Even if Story’s use of other inmates’ PINs qualified as a violation of a jail policy or rule, we are confident the jury’s awareness of it did nothing to contribute to Story’s conviction for first-degree murder.
Voluntary Manslaughter Instruction
At the conclusion of evidence, Stoiy requested a heat-of-passion voluntary manslaughter instruction.
We outlined the framework for analyzing jury instruction issues in State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012):
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider tire reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).”
In addition, generally “a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory.” State v. Friday, 297 Kan. 1023, Syl. ¶ 10, 306 P.3d 265 (2013). This court views the evidence that would have supported the instruction in the light most favorable to the defendant. 297 Kan. 1023, Syl. ¶ 10.
Our first inquiry focuses on reviewability. “To fully preserve a claim that the district court erred in failing to give a lesser included offense instruction, the defendant must distinctly state an objection to the omission before the jury retires to consider its verdict. K.S.A. 22-3414(3).” State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). Story fulfilled her obligation to preserve this issue.
Next, we determine whether the requested instruction was legally appropriate. Voluntary manslaughter is a lesser included offense of first- and second-degree murder, and therefore an instruction on its elements was legally appropriate. See Wade, 295 Kan. at 924; State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).
On whether the instruction was factually appropriate, i.e., “ ‘there [was] some evidence which would reasonably justify a conviction of some lesser included crime/ ” Plummer, 295 Kan. at 161, we do not “speculate about hypothetical scenarios.” Wade, 295 Kan. at 925. “[F]or a lesser included offense to be factually appropriate, there must be actual evidence in the record, together with reasonable inferences to be drawn from that actual evidence, that would reasonably support a conviction for the lesser crime.” 295 Kan. at 926.
The form of voluntary manslaughter instruction sought here would have defined tire crime as an “intentional killing of a human being committed . . . [u]pon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403(a). “ ‘Sudden quarrel is one form of provocation for “heat of passion” and is not separate and apart from “heat of passion.” ’ ” State v. Johnson, 290 Kan. 1038, 1047, 236 P.3d 517 (2010) (quoting State v. Coop, 223 Kan. 302, 307, 573 P.2d 1017 [1978]). The provocation—-whether it be “sudden quarrel” or some other form of provocation—must be sufficient to cause an ordinary person to lose control of his or her actions and reason. Johnson, 290 Kan. at 1047. The test is objective, not subjective. State v. Hill, 290 Kan. 339, 356, 228 P.3d 1027 (2010). In addition, we have defined “heat of passion” as “ ‘ “any intense or vehement emotional excitement of the land prompting violent and aggressive action.’” [Citations omitted.]” Wade, 295 Kan. at 925. “The hallmark of heat of passion is taking action upon impulse without reflection.” 295 Kan. at 925. It “ ‘includes an emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror.’ ” Coop, 223 Kan. 302, Syl. ¶ 1.
Story relies on her telephone caller’s statements that Stoiy did not look like herself to support tire necessity of a voluntary manslaughter instruction. To the extent that this is evidence of Story’s emotional state of mind at the time of the shooting, it merely establishes her subjective state of mind. The evidence does not demonstrate an objective basis for finding that she acted in the heat of passion.
Further, the other evidence introduced at trial also does not establish any objective basis for instructing on heat of passion. Eyewitness testimony, corroborated by the physical evidence, demonstrated that Story began shooting immediately after she entered the apartment. Ross was shot while sitting in a chair, and her injuries indicated she was shot in a defensive position; she had turned away and tried to cover her face with her hands. Any objective provocation Story was reacting to would have had to have occurred before she arrived at the apartment. Before Story arrived, all she knew was that Bartley had “company.” There was no evidence that Story knew that Bartley and her “company” were or had been intimately involved or even that Story’s relationship with Bartley was such that fidelity could be expected. See State v. Hilt, 299 Kan. 176, 195, 322 P.3d 367 (2014); Wade, 295 Kan. at 925.
Although Stoiy and Bartley may have had a passionate relationship, as Stoiy contends, there is no evidence in the record that, in combination with reasonable inferences, would reasonably support a conviction of voluntaiy manslaughter. The district judge correctly refused to give that lesser included offense instruction.
Prosecutorial Misconduct
Our review of a claim of prosecutorial misconduct is a two-step process:
“ ‘The appellate court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, the court must determine whether the improper comments prejudiced die jury and denied die defendant a fair trial.’ ” State v. Dull, 298 Kan. 832, 836, 317 P.3d 104 (2014).
In determining whether the defendant has been so prejudiced that a new trial should be granted, this court considers three factors:
“ ‘(1) whetíier the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether die evidence against die defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in die minds of the jurors. Under Tosh, none of these diree factors is individually controlling. And before the tiiird factor can ever override the first two factors, an appellate court must be able to say diat the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been met.’ State v. Bridges, 297 Kan. 989, Syl. ¶ ¶ 14, 15, 306 P.3d 244 (2013).” Dull, 298 Kan. at 836.
This court begins with the constitutional harmlessness analysis when both the constitutional and nonconstitutional errors arise from the same acts and omissions. 298 Kan. at 837. If the constitutional error requires reversal of a defendant’s conviction, it is unnecessary to conduct the nonconstitutional harmlessness analysis. 298 Kan. at 837.
Under the constitutional harmless error analysis, as defined in Chapman,
“ ‘ “the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.” State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).’ ” Dull, 298 Kan. at 836.
This court will consider a prosecutorial misconduct claim based on statements made during closing argument even without a defense objection at trial. State v. King, 288 Kan. 333, 344-45, 204 P.3d 585 (2009).
In response to comments made about premeditation by defense counsel in closing arguments, the prosecutor used school shootings as examples of crimes in which the perpetrators do not necessarily know exactly who their victims will be. The point was that premeditation still can be demonstrated under governing law. Story argues that these statements were outside the wide latitude given to prosecutors discussing the evidence during closing arguments because they were “calculated to play to the jurors’ emotions” and “inflame the passions of the jury” by “equating [the crime here] to a horrific school shooting.”
“In closing argument, a prosecutor may draw reasonable inferences from die evidence but may not comment on facts outside the evidence.” State v. Novotny, 297 Kan. 1174, Syl. ¶ 7, 307 P.3d 1278 (2013). A prosecutor may not make comments “intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and the controlling law.” State v. Raskie, 293 Kan. 906, Syl. ¶ 3, 269 P.3d 1268 (2012). “But a prosecutor may use ‘analogies, similes, allusions (be they historic, poetic, literaiy, or scientific), and other rhetorical devices’ in an attempt To bring order to the facts presented at trial, place them in a meaningful context, and out of this collection of bits and pieces construct the whole of a case.’ State v. Henderson, 32 Kan. App. 2d 1202, 1210, 96 P.3d 680 (2004).” Hilt, 299 Kan. at 198.
In this case, the prosecutor could have chosen a different historical reference to make her point, but we cannot say that the statement exceeded die wide latitude afforded a prosecutor during closing. Story’s counsel had attempted to persuade the jury that the State’s evidence of premeditation was insufficient because Story did not know the identity of Bartley’s guest. The prosecutor used the school shootings only as clear examples of premeditated killings in which the shooter does not know the specific victims. The prosecutor did not suggest that Story’s crime was comparable in any other of its characteristics and did not make any comments about the factual details of any school shooting. We hold, therefore, that there was no prosecutorial misconduct.
Cumulative Error
Story’s final argument on appeal is that “the cumulative effect of the district court’s errors mandates a new trial.”
“Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009).” State v. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013).
We have identified only one error, admission of and failure to instruct on the evidence that the gun’s serial number had been •obliterated. We have merely assumed instruction error on the evidence that Story used other inmates’ telephone PINs. Even when these two items are considered together, in the context of the record as a whole, any prejudicial effect flowing from them would have been minimal to nonexistent. See State v. Tully, 293 Kan. 176, 205-06, 262 P.3d 314 (2011) (appellate court examines errors in context of record as whole; court considers strength of evidence). Story received a fair trial untainted by cumulative error. See State v. Magallanez, 290 Kan. 906, 926, 235 P.3d 460 (2010) (totality of circumstances examined; fair trial as touchstone for reversal).
Conclusion
We affirm the judgment of the district court.
Moritz, J., not participating.
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The opinion of the court was delivered by
Per Curiam:
This is an original action under Article 3, Section 3 of the Kansas Constitution by petitioner Chad Taylor against respondent Kansas Secretary of State Kris Kobach. Taylor seeks a writ of mandamus prohibiting Kobach from including Taylors name on the ballot for the United States Senate in the November 4, 2014, general election. The heart of their controversy is whether Taylor s September 3, 2014, letter to Kobach requesting that his name be withdrawn from nomination for election complies with the requirements for withdrawal set forth in K.S.A. 25-306b(b). We hold that it does.
Facts
During the August 5, 2014, Democratic Party primary for United States Senate for Kansas, Taylor received the most votes and was declared the winner by the State Board of Canvassers. Taylor and his campaign manager, Brandon Naylor, eventually drafted a letter of withdrawal from the Senate race and took the unsigned original to the Secretary of State’s office around 4 p.m. on Wednesday, September 3, which was the latest date by which a candidate could withdraw to be left off the ballot in the November 4 election.
The body of Taylor’s letter states in its entirety:
“I, Chadwick J. Taylor, Democratic nominee for tire United States Senate race, do hereby withdraw my nomination for election effective immediately and request my name be withdrawn from tire ballot, pursuant to K.S.A. 25-306b(b).”
Taylor signed the letter in front of a notary public who worked in the Secretary of State’s office and left it for filing with that office.
The next day, September 4—tire day after the statutory deadline for withdrawal—Taylor’s attorney received a letter signed by Ko-bach. The letter stated:
“The purpose of this letter is to inform you that, after conferring with the office of tire Kansas Attorney General, I have concluded that the written request filed by Mr. Taylor does not meet the requirements of K.S.A. 25-306b(b) because Mr. Taylor did not ‘declared that [he is] incapable of fulfilling the duties of office if elected.’ Therefore, Mr. Taylor’s name will appear on the ballot for the office of United States Senator for the November 4, 2014, general election.”
On September 9, Taylor filed with this court a petition for writ of mandamus and emergency motion for temporary restraining order. He also filed his memorandum in support of his petition as well as his affidavit. Per those pleadings, Taylor seeks (1) an order directing Kobach to recognize and effectuate Taylors letter of withdrawal from the United States Senate race and prohibiting Kobach from including Taylor s name on the ballot for the 2014 general election; (2) a temporary restraining order barring Kobach from printing ballots that identify Taylor as a candidate; and (3) such further relief deemed just and proper by this court. Taylor requested the court take immediate action because Kobach had publicly announced that the names of the candidates for the general election had to be finalized by September 18.
The next day, September 10, Kobach filed a notice regarding scheduling. In it, he confirmed that the list of candidates for the general election had to be finalized by September 18, because the statutory deadline for sending ballots to members of the United States Armed Forces serving overseas is 45 days before the general election, i.e., September 20. Kobach represented that ballots would be prepared and printed on September 19.
On September 11, this court issued an order rejecting Kobach’s suggestion of referral to a district court or commissioner and retaining our jurisdiction because of the expedited nature of the case and the necessity for an authoritative ruling. The court also stayed Taylor’s emergency motion for temporary restraining order and ordered Kobach to file a response to Taylor’s petition by noon on Monday, September 15. The court further ordered that any additional briefing also was required to be filed by noon that day.
Taylor timely filed a supplemental memorandum in support of his petition. Kobach also timely filed his response to die petition, which includes a 154-page appendix containing affidavits from two of his employees, letters of withdrawal from other candidates, and legislative history materials regarding K.S.A. 25-306b(b). After the deadline, Kobach also filed a supplemental affidavit from one employee, to which he attached additional letters of withdrawal from other candidates.
The court held oral argument in this mandamus matter on September 16.
Analysis
Issue: The “pursuant to KS.A. 25-306b(h)” language contained in Taylor’s letter conforms to the statutory requirement that a withdrawing candidate declare he is “incapable of fulfilling the duties of office if elected.”
Nature of relief requested
We have held that “[m]andamus is a proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion.” State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, Syl. ¶ 4, 112 P.3d 131 (2005). And “[u]nless the respondent’s legal duty is clear, the writ should not issue.” Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642 (2010). “ ‘ “Whether mandamus lies is dependent upon an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review.” [Citations omitted.]’ [Slusher, 285 Kan. at 443].” Svaty, 291 Kan. at 620. The petitioner has the burden of showing a right to such relief. 291 Kan. at 620.
Discussion
The statutory subsection at the heart of the controversy in this mandamus action, K.S.A. 25-306b(b), provides in full:
“(b) Any person who has been nominated by any means for any national, state, county or township office who declares that they are incapable of fulfilling the duties of office if elected may cause such person’s name to be withdrawn from nomination by a request in writing, signed by the person and acknowledged before an officer qualified to take acknowledgments of deeds. Any such request shall be filed with the secretary of state in the case of national and state offices and with the county election officer in the case of county and township offices. Except as provided in subsection (d), in the case of national and state offices, any such request shall be filed within seven days, including Saturdays, Sundays and holidays, after the meeting of the state board of canvassers for the final canvass of primary election provided for in K.S.A. 25-3205, and amendments thereto. Except as provided in subsection (d), in the case of county and township offices, any such request shall be filed within 10 days after the meeting of the county board of canvassers to canvass the primary election as provided in K.S.A. 25-3104, and amendments thereto. No name loithdraum as provided in this section shall be printed on the ballots for such office for the general election.” (Emphasis added.)
For ease of reference, we repeat the entire body of Taylor s September 3 letter of alleged withdrawal:
“I, Chadwick J. Taylor, Democratic nominee for the United States Senate race, do hereby withdraw my nomination for election effective immediately and request my name be withdrawn from the ballot, pursuant to KS.A. 2S-306b(b).” (Emphasis added.)
Taylor contends his letter fully complies with the statute, even though his letter failed to include a verbatim, or otherwise explicit, statement that he is “incapable of fulfilling the duties of office if elected.” Kobach clearly disagrees, as his own letter states: “I have concluded that the written request filed by Mr. Taylor does not meet the requirements of K.S.A. 25-306b(b) because Mr. Taylor did not 'declare!] that [he is] incapable of fulfilling the duties of office if elected/ ”
The parties make many arguments, e.g., whether substantial compliance with the statute suffices. But each party’s threshold arguments are based upon his insistence that the “plain language of the statute” supports him. This approach appears to acknowledge that this court historically begins its statutory analysis with the plain language used by the legislature.
We have often expressed that the best and only safe rule for ascertaining the intention of the makers of any written law is to abide by the language they have used. See Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (citing Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]); Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014). If the makers’ language is plain and unambiguous, there is no need to use canons of construction or legislative history or other background considerations to con strue the legislature’s intent. See In re A.M.M.-H., 300 Kan. 532, 535, 331 P.3d 775 (2014).
Kobach argues in his response that the plain language of subsection (b) of K.S.A. 25-306b establishes only one basis for a primary winner to request withdrawal of his or her name from tire ballot: That he or she admits to being incapable of fulfilling the duties of office if elected. Taylor does not appear to dispute this general conclusion.
In Kobach’s response, he further asserts that post-primary withdrawals are limited to this specific statutory purpose—and to the two purposes contained in subsection (c) (“death”) and subsection (d) (“successive vacancies under either or both of the first two provisions”)—because of the legislature’s plain “intent to make post-primary withdrawals rare and difficult.” He concludes: “[T]hese three circumstances cover the entire field: the legislature made Section 306b the only provision allowing post-primary withdrawal.” Taylor does not appear to dispute this general conclusion either. And neither do we, based upon the plain language of the statute. See Gannon, 298 Kan. at 1143.
With this as the starting point, Taylor contends that his letter’s use of the phrase “pursuant to” subsection (b) of K.S.A. 25-306b could not help but declare that he “is incapable of fulfilling the duties of office if elected.” He argues:
“The meaning of the phrase ‘pursuant to K.S.A. 25-306b(b)’ could not be clearer: Petitioner was withdrawing his nomination for the reason set forth in (and thus was incorporating by reference the language of) K.S.A. 25-306b(b)—namely, that he is incapable of fulfilling the duties of office if elected.”
Kobach responds that Taylor needs to expressly declare in writing that he specifically “is incapable of fulfilling the duties of office if elected.” In Kobach’s response, he contends that K.S.A. 25-306b(b) demands the withdrawing candidates admit—by declaring in writing—that they are in fact incapable of fulfilling tire duties of office, and “it does not allow candidates to dodge or replace it widr a legal citation, plea, or argument that their request simply be accepted pursuant to Section 306b(b)’ or pursuant to’ or ‘under’ any other provision.” So Kobach offers no position on what is meant by “pursuant to.” He simply denies the phrase is sufficient to meet the statutory requirement that a candidate declare he or she is “incapable of fulfilling the duties of office if elected.”
To resolve this controversy and determine whether Taylor’s letter sufficiently states he is incapable of fulfilling the duties of office if elected by using tire phrase “pursuant to K.S.A. 25-306b(b),” we look at the plain meaning of the phrase “pursuant to.” Black’s Law Dictionary defines the phrase as “in compliance with; in accordance with; under [or] ... as authorized by.. . [or] in carrying out.” (Emphasis added). Black’s Law Dictionary 1356 (9th ed. 2009) (cited with approval in United States v. Lee, 659 F.3d 619, 622 [7th Cir. 2011]). Accord: Black’s Law Dictionary 1431 (10th ed. 2014) (“1. In compliance with; in accordance with; under.”); The American Heritage Dictionary of the English Language 1062 (1981) (“pursuant” is “Proceeding from and comformable to; in accordance with. Used with to.”).
An earlier decision by the United States Supreme Court described the phrase in similar terms. “ ‘Pursuant to’ is defined as ‘acting or done in consequence or in prosecution (of anything); hence, agreeable; conformable; follotoing; according.’ ” (Emphasis added.) Old Colony Trust Co. v. Comm’r of Internal Revenue, 301 U.S. 379, 383, 57 S. Ct. 813, 81 L. Ed. 1169 (1937) [Citing Webster’s New International Dictionary, Unabridged (2d ed. 1935)] (“The words of the statute [i.e., “pursuant to”] are plain and should be accorded their usual significance in the absence of some dominant reason to the contrary.”).
In light of these authorities, we conclude the plain meaning of “pursuant to K.S.A. 25-306b(b)” contained in Taylor’s letter effectively declares he is incapable of fulfilling the duties of office if elected. Simply put, the phrase operates as an incorporation by reference of this particular requirement contained in subsection (b). See Black’s Law Dictionary 834 (9th ed. 2009) (incorporation by reference is “[a] method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one.”).
Our determination that the uncontroverted contents of Taylor s September 3 letter timely satisfy the statutory requirements for withdrawal now leads us to Kobach’s clearly defined duty imposed by the law. Kobach’s attorney admitted at oral arguments that if the letter was held to comply with the statute, Kobach would have no discretion. This admission is consistent with the plain language of the last sentence of the statutory subsection: “No name withdrawn as provided in this section shall be printed on ballots for such office for the general election.” K.S.A. 25-306b(b). Accordingly, the issuance of a writ of mandamus is appropriate. See Slusher, 279 Kan. 789, Syl. ¶ 4 (“Mandamus is a proceeding designed for the purpose of compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion.”); see State v. Becker, 264 Kan. 804, 807, 958 P.2d 627 (1998).
With this determination, we need not consider the parties’ numerous other arguments. Nor do we need to act on Kobach’s allegation that a ruling for Taylor would require the Kansas Democratic Party State Committee to name his replacement nominee per K.S.A. 25-3905. The Kansas Democratic Party is not a party to this original action, and this court does not issue advisory opinions. Gannon v. State, 298 Kan. at 1119.
Before closing, however, we do address the issue of Kobach’s late filing of the supplemental affidavit that attached additional letters of withdrawal from other candidates. Our order of September 11 was clear: additional briefing was due at noon, and the court would not extend the deadline. While we have not considered the affidavit and attachments in reaching our decision, we regard their filing as Kobach’s attempt to meet any ethical obligation under the Kansas Rules of Professional Conduct.
Taylor’s petition for writ of mandamus is granted, and Kobach is ordered to comply with his clearly defined duty imposed by K.S.A. 26-306b(b). He shall not include Taylor’s name on any bal lots for the office of United States Senate for the general election on November 4, 2014.
Michael J. Malone, Senior Judge, assigned. | [
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The opinion of the court was delivered by
Johnson, J.:
After Christian W. Reese was convicted of driving under the influence of alcohol (DUI), the district court imposed the enhanced sentence applicable to a person with four prior DUI convictions. Reese contends that a change in the law, effective July 1, 2011, should have applied at his August 2011 sentencing to exclude all of his pre-July 1, 2001, DUI convictions for sentence-enhancement purposes. The Court of Appeals held that the shortened look-baclc provision of the new law is a substantive change that cannot be applied retroactively and, therefore, the amended method of determining whether a DUI conviction is a first, second, third, fourth, or subsequent conviction can only apply to DUIs committed on or after July 1, 2011, regardless of the sentencing date. State v. Reese, 48 Kan. App. 2d 87, 90-91, 283 P.3d 233 (2012).
Finding that the plain statutory language and the unique nature of the DUI sentencing scheme dictate that the number of prior DUI convictions applicable to the current DUI sentence is to be calculated at the time of sentencing on the current conviction, we hold that the shortened look-back period in K.S.A. 2011 Supp. 8-1567(j)(3) should have applied to Reese’s post-July 1, 2011 sentencing. Accordingly, the Court of Appeals and the district court are reversed, Reese’s sentence is vacated, and the matter is remanded for resentencing.
Factual and Procedural Overview
Reese was arrested for DUI on July 3, 2009, but he was not convicted of the offense until June 6, 2011. His sentencing was scheduled for August 10, 2011, and a presentence investigation report identified four prior DUI convictions, all occurring before July 1, 2001. Reese filed a motion entitled “Defendant’s Objection to and Motion to Strike Priors,” arguing that pursuant to K.S.A. 2011 Supp. 8-1567(j), which was effective July 1, 2011, only convictions occurring on or after July 1, 2001, were to be considered for sentence enhancement, i.e., to be used in determining whether the current conviction was a first, second, third, fourth, or subsequent conviction. The motion was denied, and Reese was subsequently sentenced as a fourth or subsequent DUI offender pursuant to K.S.A. 2009 Supp. 8-1567(o)(3), which then provided that all prior DUI convictions during a defendant’s lifetime were counted for sentence enhancement purposes.
The Court of Appeals affirmed Reese’s enhanced sentence. The panel first noted the “fundamental rule of criminal procedure in Kansas [is] that a defendant is sentenced based on the law in effect when the crime was committed.” Reese, 48 Kan. App. 2d at 89 (citing State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 [2010]). The panel did not discern any language in the statutory amendment indicating that the legislature clearly intended for the provision to apply “retroactively” to DUIs that were committed prior to, but not sentenced until after, the amendment’s effective date. Then, because the statutory amendment was a substantive change in the law, the panel held the absence of clear legislative intent meant that the law applied prospectively only. 48 Kan. App. 2d at 89-90. Finally, the panel rejected Reese’s argument that criminal defendants should receive the benefit of ameliorative sentencing amendments because the panel could not discern any Kansas caselaw supporting such an argument. 48 Kan. App. 2d at 91.
We granted Reese’s petition for review pursuant to K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Statutory Interpretation of K.S.A. 2011 Supp. 8-1567
To reiterate, when Reese committed the current DUI offense, the applicable law said that a sentencing court must count all DUI convictions during the defendant’s lifetime to determine whether the current conviction was a first, second, third, fourth, or subsequent offense for purposes of imposing an enhanced sentence, where applicable. We will refer to that prior law as the “lifetime look-back provision.” When Reese was sentenced, the law had changed to provide that “only convictions occurring on or after July 1,2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2011 Supp. 8-1567(j)(3). We will refer to the new law as the “limited look-back provision.”
The question presented, then, is which statute applied to Reese’s sentencing, the one in effect when he was sentenced or the one in effect when he committed the acts giving rise to his conviction. We discern that, historically, a DUI defendant’s criminal history of prior DUIs has been established at the time of sentencing and that the applicable statutory language is consistent with that procedure, i.e., the determination of whether the current conviction is the first or fifth for sentencing purposes need not occur until sentencing.
The Court of Appeals began its analysis by stating a general rule—that a defendant is sentenced based upon the law in effect when the crime was committed—before pivoting to the policy considerations this court set out in Williams, 291 Kan. at 560 (fixing penalty parameters on crime commission date “ ‘is fair, logical and easy to apply’ ”). But the sentencing question presented on appeal in this case is a function of statutoiy law. As with all such questions, the first step is to look at the statutory language before applying common-law rules or considering policy matters. Specifically, what we must interpret, construe, and apply is the following language from the amended DUI statute:
“(j) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
“(3) only convictions occurring on or after July 1, 2001, shall be taken into account when determining die sentence to be imposed for a first, second, third, fourth or subsequent offender.” K.S.A. 2011 Supp. 8-1567(j)(3).
Standard of Review/Rides of Statutory Construction
Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). But if a statute is plain and unambiguous, this court will not speculate about legislative intent or turn to canons of construction or legislative history. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). On the other hand, where a criminal statute is silent or ambiguous on a matter, the rule of lenity applies to mandate that the statute be construed in favor of the accused. Cf. State v. Thompson, 287 Kan. 238, 249, 200 P.3d 22 (2009) (statute silence or ambiguity on unit of prosecution construed in favor of defendant).
Analysis
Presumably because it started from the standpoint of the fundamental rule—that the law in effect at the time of the offense always controls sentencing—the Court of Appeals discerned that the only way the limited look-back provision could govern Reese’s sentencing was if the amended statute were to be applied retroactively. From that perspective, we have no quarrel with the panel’s recitation and application of the law, including the panel’s statements that a statute operates prospectively unless there is clear language indicating the legislature intended otherwise and that a statutory amendment modifying the severity of punishment for a conviction alters substantive rights. Reese, 48 Kan. App. 2d 87, Syl. ¶¶ 2, 4; see State v. Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013); State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001).
But general rules promulgated by appellate courts, even tiróse designated as “fundamental rules” or those generated as a “policy matter,” do not trump statutory provisions or legislative intent. If the legislature intended for the K.S.A. 2011 Supp. 8-1567(j)(3) determination of whether the person convicted of DUI was “a first, second, third, fourth, or subsequent offender” to occur at the time of sentencing, then applying the limited look-back provision of the July 1, 2011, amendment to all sentences imposed after that date would be a prospective, not a retroactive, application of tire statutory provisions. The statutory language, when considered in tire context of how DUI criminal history has previously been treated by the courts and legislature, convinces us that the legislature intended the limited look-back provision of K.S.A. 2011 Supp. 8-1567(j)(3) to be applied at the time of sentencing, beginning with sentencings occurring on or after July 1, 2011.
To get to the aforementioned context, we pause to look at the nature of tire DUI statutory scheme, its historical development, and how prior offenses have historically been handled.
Kansas’ DUI law is a self-contained criminal statute, which means that all essential components of the crime, including the elements, severity levels, and applicable sentences, are included within the statute. Given that the DUI statute provides its own sentencing provisions, cases relating to the proper application of the Kansas Sentencing Guidelines Act (KSGA) are of minimal precedential value. See K.S.A. 21-4704(i) (sentence for violating K.S.A. 8-1567 provided by specific mandatory sentencing requirements of that statute and not subject to sentencing guidelines). K.S.A. 8-1567 is also considered a habitual criminal or recidivist statute because it imposes progressively enhanced sentences for repeat offenders. The philosophy underlying a recidivist or habitual criminal statute is that where a less severe penalty has failed to deter an offender from repeating a violation of the same law, a more severe penalty is justified to serve as an object lesson that hopefully will cause tire offender to accomplish his or her refor mation. City of Dodge City v. Wetzel, 267 Kan. 402, 409, 986 P.2d 353 (1999).
When the DUI statute was originally enacted in 1937, it provided, in relevant part, that “[o]n a second or subsequent conviction [the offender] shall be punished by imprisonment for not less than ninety days nor more than one year, and, in the discretion of the court, a fine of not more than $500.” K.S.A. 1937 Supp. 8-530(b). Our DUI statute did not provide for enhanced penalties after the second offense until 1982, when the legislature increased penalties for a third or subsequent conviction. See K.S.A. 8-1567(e) (Ensley 1982). At that time, the legislature also added a look-back provision, which provided that “only convictions occurring in the immediately preceding five years . . . shall be taken into account” when determining whether a conviction was a first, second, third or subsequent conviction for purposes of sentencing under the statute. K.S.A. 1983 Supp. 8-1567(i). That paradigm continued for nearly two decades, until 2001, when the legislature amended the statute to enhance the penalties for a fourth or subsequent conviction of DUI and extended the look-back provision from 5 years to a lifetime. See K.S.A. 8-1567(g) and (1)(3). The stated purpose of the 2001 amendments was to impose harsher penalties in an attempt to enhance public safety. See State v. Sedillos, 279 Kan. 777, 784-85, 112 P.3d 854 (2005). Another decade later, the legislature inexplicably softened the lifetime look-back provision by amending K.S.A. 8-1567 to limit the convictions that could be counted as a prior offense to those occurring on or after July 1, 2001. K.S.A. 2011 Supp. 8-1567(j)(3).
Prior DUI convictions have been consistently and repeatedly treated as sentence enhancements, rather than elements of the crime. Recently, in State v. Key, 298 Kan. 315, 319-20, 312 P.3d 355 (2013), we once again clarified that point:
"[T]his court lias also consistently held that a prior DUI is a sentencing enhancement factor for, not an element for trial proof of, K.S.A. 8-1567 DUI. See State v. Chamberlain, 280 Kan. 241, Syl. ¶ 6, 120 P.3d 319 (2005) (showing of prior convictions goes only to question of defendant’s classification; legislature has declared repeated violations justify enhanced penalty); State v. Helgeson, 235 Kan. 534, 536, 680 P.2d 910 (1984) (prior DUI ‘not a statutory element of the crime under K.S.A. 8-1567,. .. merely bears on tire penalty imposed’), overruled in part on other grounds by State v. Masterson, 261 Kan. 158, 929 P.2d 127 (1996); see also State v. Loudermilk, 221 Kan. 157, 159-60, 557 P.2d 1229 (1976) (previous DUI conviction not element of substantive crime, serves only to enhance punishment). This has been true before and since statutory amendments distinguishing a misdemeanor DUI from a felony DUI. See State v. Moody, 282 Kan. 181, 197, 144 P.3d 612 (2006) (prior convictions not elements of DUI); State v. Larson, 265 Kan. 160, 164, 958 P.2d 1154 (1998) (same); Masterson, 261 Kan. 158, Syl. ¶ 1 (trial proof of prior conviction not necessary to establish guilt of later DUI, but defendant entitled under due process to notice in information, complaint of severity level being charged).”
Key also pointed out that “this court has allowed a DUI defendant who has gone to trial to attack the validity of an earlier DUI conviction to prevent it from being used as a sentencing enhancement.” 298 Kan. at 320. Granted, “the State must put on evidence of at least two prior misdemeanor DUIs at a preliminary hearing on a felony DUI charge in order to demonstrate probable cause and bind over the defendant.” 298 Kan. at 319. But due process concerns aside, the exact number of prior convictions that will act to enhance a current DUI sentence does not need to be established until the sentencing hearing.
We presume that the legislature knew that this court historically characterized prior DUI convictions as merely sentence enhancements determinable at sentencing when it enacted the 2011 amendments. See State v. Henning, 289 Kan. 136, 144-45, 209 P.3d 711 (2009) (courts generally presume that the legislature acts with full knowledge of existing law). Indeed, the legislature has previously taken explicit action to correct any notion that only the number of prior convictions existing when the person committed the current offense can be used to determine, at sentencing, whether the person is a first, second, third, fourth, or subsequent offender, as discussed below.
In State v. Osoba, 234 Kan. 443, 672 P.2d 1098 (1983), the defendant committed a first DUI in Sumner County, and while that case was pending, she picked up a second DUI arrest in Sedgwick County. Osoba pled guilty to the Sedgwick County DUI first and then argued in Sumner County that she should be sentenced as a first-time offender because she had no priors when she committed the Sumner County DUI, even though she had the prior Sedgwick County conviction at the time of sentencing in Sumner County. Ultimately, this court agreed that she should have been sentenced as a first-time offender in Sumner County because that offense was committed before the Sedgwick County offense, i.e,, the defendant had no DUI criminal history when she committed the Sumner County offense. 234 Kan. at 445. The legislature responded by amending the DUI statute to clarify that when determining whether a conviction is the first, second, or third for sentence enhancement purposes “it is irrelevant whether an offense occurred before or after conviction for a previous offense.” L. 1985, ch. 48, sec. 9; see also Wetzel, 267 Kan. at 406 (stating that legislature amended K.S.A. 8-1567 to change the result in Osoba).
Against this backdrop, we turn to the statutory language employed. We first note that K.S.A. 2011 Supp. 8-1567(j) refers to “determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section.” (Emphasis added.) That phrasing is consistent with the concept of establishing the prior convictions at the time of sentencing. The provision goes on to say that “only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed.” (Emphasis added.) K.S.A. 2011 Supp. 8-1567(j)(3). The determination of the sentence to be imposed is made at the sentencing hearing, so that “when” must refer to the time that the sentencing hearing is being conducted. Accordingly, the provision could be paraphrased as follows: The convictions occurring during the limited look-back period shall be counted at the time of the sentencing hearing to determine whether the current conviction is a first, second, third, fourth, or subsequent conviction for sentence enhancement purposes. That phrasing makes it clear that the new limited look-back period in K.S.A. 2011 Supp. 8-1567(j) was intended to be applied at sentencing. Given that Reese’s sentencing occurred after the effective date of the amendment, it applied to him.
In arriving at this plain language interpretation, we have not overlooked our recent decision in Williams, where we applied the fundamental rule upon which the Court of Appeals relied. 291 Kan. at 559-60. But that case involved the KSGA, rather than the unique sentencing scheme applicable to DUIs. Moreover, the statutory provisions involved in Williams provided absolutely no guidance on legislative intent, whereas the statutory language here comports with the historical treatment of prior DUI convictions under K.S.A. 8-1567.
We have likewise not overlooked Reese’s argument that the holding in Dorsey v. United States, 567 U.S. _, 132 S. Ct. 2321, 2340, 183 L. Ed. 2d 250 (2012), mandates that criminal defendants are always entitled to the benefit of ameliorative sentencing schemes. Reese reads too much into Dorsey. It specifically dealt with tire federal Fair Sentencing Act and Congress’ intent to apply that Act’s provisions to any offender sentenced after the Act’s effective date, regardless of the offender’s conviction date. While the decision might well provide us with an excellent example of how to apply our own rule of lenity, it does not compel the result that Reese contends.
Finally, we respond briefly to the panel’s determination that there is no law supporting Reese’s argument that he should be entitled to the benefit of the ameliorative amendment. A principle that is collaterally related to that argument is the rule of lenity, which directs us to interpret ambiguous or silent statutes in a manner that favors the accused, so long as die interpretation is reasonable. “If. . . there are two reasonable and sensible interpretations of a criminal statute, the rule of lenity requires the court to interpret its meaning in favor of the accused.” Coman, 294 Kan. at 97. Arguably, there is only one reasonable interpretation of K.S.A. 2011 Supp. 8-1567(j)(3), but even if the language and historical context could support the Court of Appeals’ interpretation, it would not comport with the rule of lenity. But cf. Williams, 291 Kan. at 559-62 (selecting an interpretation alternative that disfavored the accused).
In conclusion, we find tiiat K.S.A. 2011 Supp. 8-1567(j)(3) provides that the sentencing court is to take into account prior DUI convictions occurring during the limited look-back period and determine at the time of sentencing whether the current conviction is a first, second, third, fourth, or subsequent offense for purposes of imposing a sentence enhancement. Accordingly, a prospective application of the amended statute would be to apply its provisions to every DUI sentencing that occurs on or after July 1, 2011, tire statute’s effective date. Consequently, we reverse the Court of Appeals and the district court, vacate the sentence imposed, and remand with directions to resentence Reese in conformance with K.S.A. 2011 Supp. 8-1567(j)(3).
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The opinion of the court was delivered by
BILES, J.:
Gabriel De La Torre appeals from his convictions of one count of abuse of a child and one count of felony murder, arising from the death of an 11-month-old child who was in De La Torre’s care. There were two trials because the first jury, which convicted De La Torre on the child abuse charge, could not reach a unanimous verdict on the felony-murder charge. The second jury trial resulted in his conviction of felony murder. De La Torre raises several issues relating to each trial and one sentencing issue.
As to the first trial, De La Torre argues his abuse of a child conviction must be reversed because: (1) The district court failed to give a unanimity instruction despite evidence of multiple acts; (2) there was insufficient evidence to support the conviction; and (3) there was prosecutorial misconduct. The State concedes evidence of multiple acts was presented but argues the failure to give a unanimity instruction does not require reversal because De La Torre presented a unified defense. We disagree with the State on the latter point. We hold De La Torre did not present a unified defense to the child abuse charge and the failure to give a unanimity instruction was clearly erroneous. De La Torre’s conviction for child abuse is reversed. This outcome renders the remaining issues from the first trial moot, including the sentencing issue.
As to the second trial, De La Torre argues his felony-murder conviction should be reversed because: (1) The district court erred in fading to instruct die jury on die lesser included offense of reckless second-degree murder; (2) diere was insufficient evidence to support the conviction; and (3) die prosecutor committed misconduct. We hold the first two issues are without merit. As to the third, we agree there was prosecutorial misconduct but hold it does not require reversal. We affirm the felony-murder conviction.
Factual and Procedural Background
On September 6, 2009, De La Torre brought 11-month-old Jo-selyn Hernandez to the emergency room at a Dodge City hospital. Joselyn was wet, pale, not taking deep or frequent-enough breaths, and had a low body temperature. Dr. Ben Short, the emergency room physician, observed Joselyn’s eyes were partially rolled up into her upper eyelids and her pupils were nonresponsive, indicating brain injury due to trauma or lack of oxygen. Joselyn was put on a helicopter bound for Wichita’s Wesley Medical Center. The helicopter returned about 5 minutes after departure because Joselyn’s condition had worsened. Short continued treatment of Joselyn for about 45 minutes until he pronounced Joselyn dead.
A Dodge City police corporal and an officer were dispatched to tire emergency room. Using a hospital janitor as an interpreter, De La Torre spoke with emergency room doctors about what happened while the officers listened. The officers understood De La Torre to say he had given Joselyn a bath and was carrying her into a bedroom when he collided with a bed and fell, landing on Joselyn. De La Torre said Joselyn appeared to stop breathing or was struggling with her breathing, so he attempted to give her rescue breaths.
Before tire helicopter departed, the police obtained De La Torre’s permission to photograph tire infant and the house where the incident occurred. While at tire house, before learning Joselyn had died, De La Torre told tire corporal he had been standing with her, turned and hit the corner of the bed, fell between the bed and the dresser, and heard the infant gasp for air.
A Dodge City police detective also investigated. He observed bruises on Joselyn’s forehead, cheeks, the back of her head, under her left ear, and on her body—including under her right arnrpit, on her right arm, and on her left lower leg. He also saw small lacerations to Joselyn’s forehead and under her chin. The detective spoke to De La Torre at the hospital. De La Torre told the detective he was working outside and noticed Joselyn was tired. He said he gave Joselyn a bath to help her fall asleep and while carrying her into the bedroom afterward he tripped over a blanket and fell directly onto the floor without hitting any furniture.
An autopsy revealed Joselyn’s death was caused by blunt trauma to the chest that tore her heart’s septum and caused the pericardial sac to fill with blood. It also revealed a number of bruises on Jo-selyn’s face and in her scalp. The medical examiner testified these bruises ranged in age from a few hours to a week or .10 days old.
Nine days after Joselyn died, De La Torre consented to an interview with the detective. During this interview, De La Torre denied ever seeing anyone hit or harm Joselyn and denied seeing Joselyn bang her head, although he said he had seen her fall on her bottom. De La Torre also said approximately 4 days before Joselyn died, she fell off the couch and hit her head, causing a bruise on the left or right side. But De La Torre had no explanation for the child’s other bruises, despite admitting he was the only person who watched her.
Lorena Hernandez, Joselyn’s mother, said the only bruise she had seen on Joselyn’s head was on tire left side approximately 1½ weeks before Joselyn died. When an investigator told her Joselyn had over 44 bruises on her scalp, Lorena “became extremely distraught and started crying.”
The State charged De La Torre with abuse of a child and felony murder with the underlying felony of child abuse. See K.S.A. 21-3609 (child abuse); K.S.A. 21-3401(b) (felony murder). The State alleged the child abuse occurred between August 15, 2009, and September 6, 2009.
In the first trial, the jury convicted De La Torre of abuse of a child but could not reach a verdict on the felony-murder charge. Based on this deadlock, the district court declared a mistrial on that charge. In tire second trial, the new jury convicted De La Torre of felony murder. The trials had virtually complete factual overlap.
Unanimity Instruction on the Abuse of a Child Charge
In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Foster, 290 Kan. 696, 712, 233 P.3d 265 (2010); State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). This creates the potential for uncertainty as to whether the juiy unanimously agreed on a particular act underlying each specific charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007).
De La Torre argues his right to a unanimous jury verdict was violated because the district court failed to give a unanimity instruction, i.e., the jury was not told to unanimously agree on the specific act underlying the child abuse conviction. He claims the State presented evidence at the first trial that he committed multiple acts of child abuse that were alleged to have occurred over a 3-week period. He further notes that, in addition to the district court not giving a special unanimity instruction, the State failed to elect a specific instance of abuse on which it relied to support the abuse of a child charge.
The State agrees its evidence presented a potential multiple acts case but attempts to salvage the conviction by arguing failure to give a unanimity instruction was not reversible error because De La Torre presented a unified defense by denying criminal responsibility for any of Joselyris injuries. De La Torre acknowledges he did not request a unanimity instruction.
Standard, of Review
Unanimity instruction errors are reviewed under a three-part framework. First, the reviewing court determines whether a multiple acts case is presented. The threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. State v. King, 299 Kan. 372, Syl. ¶ 1, 323 P.3d 1277 (2014). This is a question of law subject to unlimited review. State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d 1 (2014) (citing Voyles, 284 Kan. at 244). If the case is a multiple acts case, the next question is whether error was committed. To avoid error, the State must have informed the jury which act to rely upon or the district court must have instructed the jury to agree on the specific act for each charge. Failure to elect or instruct is error. Finally, the court determines whether the error was reversible or harmless. Santos-Vega, 299 Kan. at 18. When, as here, the defendant failed to request a unanimity instruction, the court applies tire clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3). See Voyles, 284 Kan. at 252-53. Under this test, to find the error reversible,
“an appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. See State v. King, 297 Kan. 955, 979-80, 305 P.3d 641 (2013); see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (noting court’s decision to omit the ‘real possibility’ language from Voyles test to avoid confusion with the constitutional harmless error test).” Santos-Vega, 299 Kan. at 18.
Additional Facts
Besides the evidence already discussed, the State elicited testimony in the first trial from Dr. Jaime Oeberst that, in addition to the fatal injury to Joselyn’s heart, Joselyn had multiple bruises on her scalp and face, some of which predated her death by up to 10 days. When asked if she had formed an opinion about how the bruises would have been inflicted on Joselyn’s head, Oeberst said, “Separate episodes of blunt force injuiy.” She also said the injury did not appear to be accidental. In explaining this, Oeberst said:
“Again, some of it is common sense. Some of it is just experience and training. It’s not tlie usual course of affairs to have 35 bruises on a child’s head. And, there is no explanation and nothing offered in the circumstances surrounding ¡Joselyn’s] death that coidd explain this number of injuries. And, then, also, they’re not just in one location or one [plane]. So, if you have a fall, you would expect that you’re gonna have—you know you’re gonna bump one part of your head. You’re not gonna bump all four sides of your head. So, it’s inconsistent with a single episode of trauma.” (Emphasis added.)
Lorena testified De La Torre watched Joselyn while she was at work. She said she never hit Joselyn nor saw her children, De La Torre’s children, or Joselyn’s former daycare provider hit Joselyn. She did testify Joselyn always had bruises on her cheeks because De La Torre’s son would often grab them. She also said she noticed a knot on Joselyn’s head, like a small ball, before she left for work on the day Joselyn died.
De La Torre testified he was outside fixing a fence on the day Joselyn died and she was with him. He went in to take a shower and put Joselyn to bed. He gave her a bath and then went into the bedroom. He said he stepped on a comforter with his right foot and his left foot got stuck, causing him to fall on top of Joselyn. He heard “the air come out” of Joselyn and heard her head hit the floor. He started giving Joselyn rescue breaths and touching her face and head. Joselyn began breathing again so he put her diaper and clothes on and took her to the hospital. He said Joselyn stopped breathing on the way, but he was able to revive her by repositioning her head and administering more rescue breaths.
Wilson Hayes, Ph.D., a biomechanics expert, testified as a prosecution witness. He concluded De La Torre could not have tripped and fallen on Joselyn in the manner De La Torre described. Hayes testified De La Torre would have fallen on or into furniture within the room instead of flat on the floor. He also testified that reflexive reactions normally experienced by falling people would have reduced the force generated by tire fall to less than that required to cause the tear in Joselyn’s heart. He said that injury could have been produced by a fist into the abdomen, lacks, stomps, compression of Joselyn’s chest, or compression of her abdomen. He further testified De La Torre possessed sufficient physical strength to cause Joselyn’s injuries.
Discussion
We must first decide whether this is a multiple acts case, which is a question of law. We are guided—but not bound by—the State’s concession on this point. In a multiple acts analysis, a court must decide whether the defendant’s conduct is part of one act or multiple acts that are separate and distinct from each other. Voyles, 284 Kan. at 244 (quoting State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 [2005]). “Multiple acts” are legally and factually separate incidents that independently satisfy the elements of the charged offense. See King, 299 Kan. at 379; State v. Soto, 299 Kan. 102, 111, 322 P.3d 334 (2014). Incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a criminal act is motivated by a fresh impulse. Factually separate and distinct incidents are not unitary conduct. King, 299 Kan. 372, Syl. ¶ 2.
“Courts must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues.” Foster, 290 Kan. at 713. And it has been noted that a multiple acts problem may arise even when the factual details about the multiple incidents are indefinite as to precisely when each occurred or even how many acts occurred. See Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Law in Kansas, 44 Washburn L.J. 275, 323-25 (2005) (discussing special issues posed by “generic evidence” cases, prevalent in child abuse cases, in which witnesses to criminal conduct are incapable of specifically describing separate and distinct incidents); cf. State v. Akins, 298 Kan. 592, 596, 619, 315 P.3d 868 (2014) (in dicta, noting multiple acts of aggravated indecent solicitation; at trial, victim testified genetically that defendant asked her to expose herself multiple times).
On the child abuse charge, the district court instructed the first jury that the State was required to prove: (1) De La Torre “intentionally cruelly beat or inflicted cruel and inhuman bodily punishment upon Joselyn”; and (2) tire abuse occurred “on or between August 15, 2009, and September 6, 2009 . . . .”
There was circumstantial evidence this crime occurred on more than one occasion during the time frame alleged by the State. Oeb- erst’s testimony established separate blunt-force trauma episodes, some up to 10 days before Joselyn died. And Lorena’s testimony placed De La Torre alone with Joselyn while Lorena was at work during that time and ruled out abuse by her, other members of the household, and others responsible for Joselyn’s care. On the other hand, there was no direct testimony De La Torre ever hit Joselyn and no testimony tending to define specific, separate, identifiable acts of abuse. In other words, the State’s evidence was generic but raised the inference that De La Torre “cruelly beat” or “inflicted cruel and inhuman bodily punishment” on Joselyn— i.e., inflicted bruise-inducing wounds to her head and face on multiple, unspecified occasions between August 15 and September 6, 2009—and that he inflicted the injuries that killed her on September 6, 2009.
Although this is a close question, we are convinced the manner in which the State charged this crime—specifically, the wide time frame during which the alleged the abuse occurred—coupled with the evidence, gives credence to the State’s concession that this is a multiple acts case. And since there was no unanimity instruction given and the State did not elect a specific instance of abuse on which it relied to support the charge, we hold the district court erred. See Santos-Vega, 299 Kan. at 11, Syl. ¶ 3; Voyles, 284 Kan. at 244-45. But finding error is not enough. We must also decide whether the failure to give the instruction was clearly erroneous and, therefore, reversible.
The test applied is whether the court is “firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given.” Santos-Vega, 299 Kan. at 18. “Kansas appellate courts have held a ‘failure to instruct’ in multiple acts cases to be reversible error except when the defendant presents a unified defense, e.g., a general denial. If there is no unified defense, we do not tolerate verdict uncertainty in these cases.” Voyles, 284 Kan. at 253; see also State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013) (after refining language of clearly erroneous test, court noted that it did “not discern a practical difference” between the Voyles formulation and the refined language).
The State argues the error is not reversible because De La Torre presented a unified defense that turned the case into a “credibility contest between the forensic evidence . . . and the Defendant’s explanations of the accident.” It contends the defense was unified because De La Torre claimed no abuse ever happened. We disagree.
Although De La Torre denied any criminal conduct, he did not present a unified, general denial defense as to all acts alleged. He presented a general denial as to tire bruises on Joselyn’s face and scalp, denying any wrongdoing and disclaiming any knowledge at all about how she sustained most of them. He also denied ever hitting Joselyn, and explained that perhaps she obtained some bruises by falling or because another child pinched her cheeks. And he presented testimony and argument that some bruises on her face and head that appeared fresh the day Joselyn died arose from repositioning her head for mouth-to-mouth resuscitation in his efforts to revive her after the fall. But he did not deny involvement in Joselyn’s death. His defense as to that incident was that he caused the fatal wounds—but did so accidentally.
Each juror in the first trial could have agreed on various permutations of whether De La Torre criminally inflicted the older bruises on Joselyn and whether he lulled Joselyn—criminally or accidentally. Put another way, a jury might have rejected or accepted his innocent explanation for the fatal wounds he admitted inflicting on Joselyn, but that would not be conclusive as to whether it would have rejected or accepted his general denial of involvement in causing Joselyn’s other injuries.
De La Torre did not present a unified defense, so it is not enough to say the juiy either believed De La Torre or did not. And the first jury reached a result that can be interpreted to indicate it was not unanimous as to whether it accepted De La Torre’s explanation of the injuries that caused Joselyn’s death when it found him guilty of child abuse between August 15 and September 6, while failing to reach a verdict on the felony-murder charge. Under these circumstances, we do not tolerate uncertainty. Voyles, 284 Kan. at 253.
We reverse De La Torre’s abuse of a child conviction and remand that charge to the district court. This result makes it unnecessary to consider the other claims of error relating to the first trial, including the claimed sentencing error.
Moving to the second trial, De La Torre argues his felony-murder conviction must be reversed because: (1) The district court erred in failing to instruct the jury on the lesser included offense of reckless second-degree murder; (2) there was insufficient evidence to support the conviction; and (3) the prosecutor committed misconduct. We consider those arguments next.
Lesser Included Offense of Reckless Second-Degree Murder
De La Torre argues the district court erred when it failed to instruct the jury at his second felony-murder trial on the lesser included offense of reckless second-degree murder. This issue is without merit.
At the time of De La Torre’s trial, Kansas law applied a judicially created lesser included offense rule in felony-murder cases in which lesser included offense instructions were necessary only when evidence of the underlying felony was weak, inconclusive, or conflicting. See State v. Boone, 277 Kan. 208, 219, 83 P.3d 195 (2004) (quoting State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 [2001]). In State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), the court abandoned this court-made “felony murder instruction rule.” It held instead that the statutory mandate in K.S.A. 22-3414(3) governed the use of lesser included offense instructions in felony-murder cases. See 292 Kan. at 513 (holding lesser included offense instructions should issue in felony-murder cases if there is some evidence that would reasonably justify conviction of the lesser included crime). De La Torre’s argument is based on Berry.
But in 2012 the legislature amended the criminal code to provide that there is no lesser degree.—one type of lesser included offense—of felony murder. L. 2012, ch. 157, sec. 2 (codified at K.S.A. 2012 Supp. 21-5109). This court subsequently held the 2012 amendment would not apply retroactively to cases tried before the amendment. State v. Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013). In response to that decision, the legislature amended the first-degree murder statute to provide that the elimination of lesser included offenses for felony murder shall apply retroactively to all pending cases. L. 2013, ch. 96, sec. 2 (codified at K.S.A. 2013 Supp. 21-5402[d] and [e]).
In State v. Todd, 299 Kan. 263, 278-79, 323 P.3d 829 (2014), this court held the new retroactivity language both controls and withstands constitutional ex post facto challenges, preventing appellate argument that a district court erred in failing to instruct on any lesser included offenses of felony murder. Todd then held that because the amendment eliminating lesser degrees of felony murder was retroactive, a second-degree murder instruction would not have been legally appropriate, so the trial court did not err in failing to give one. Todd, 299 Kan. 279 (citing State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 [2012]). Accordingly, De La Torre’s lesser included offense argument fails.
Insufficient Evidence to Support the Felony-Murder Conviction
De La Torre argues next that the evidence was insufficient to support his felony-murder conviction because the State failed to demonstrate during the second trial that he inflicted “cruel and inhuman corporal punishment.” The question is essentially whether the phrase “cruel and inhuman corporal punishment” requires proof of defendant’s specific intent to “punish” the child. And to support their divergent statutory interpretations to resolve this question in their favor, the parties argue at length whether K.S.A. 21-3609 (the abuse of a child statute) creates an alternative means crime. That issue is dispositive.
Standard of Review
The meaning of statutory language and the question whether a statute creates an alternative means crime are both issues of statutory interpretation subject to de novo review. See State v. Garza, 295 Kan. 326, 331, 286 P.3d 554 (2012); State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012) (whether statute creates alter native means is issue of statutoiy interpretation reviewable de novo on appeal).
Additional Facts
At De La Torre’s second trial on the felony-murder charge, the district court instructed the jury that the State needed to prove De La Torre killed Joselyn while committing abuse of a child. It further instructed the jury that to prove abuse of a child, the State was required to show De La Torre “intentionally inflicted cruel and inhuman bodily punishment” on Joselyn.
As mentioned, the evidence presented at the second trial was nearly identical to that presented at the first trial. Short and Oeb-erst again testified, respectively, about Joselyn’s emergency room condition and treatment and the injuries discovered during the autopsy. Hayes testified again that Joselyn could not have received her fatal injury in the fall De La Torre described and that De La Torre had sufficient strength to cause Joselyn’s fatal injury. Oeb-erst’s testimony was somewhat different as to the age of Joselyn’s bruises. She testified:
“Q. [Prosecutor]: Okay. So, some of these bruises could have come within a couple of hours?
“A. [Oeberst]: Yes.
“Q. And others within 24 hours?
“A. For the most part. I think there was a couple that maybe had some little brown areas, and that kind of thing. So, they might have been a little bit older. But, the majority of them appear to be relatively of the same age.”
Testifying again in his defense, De La Torre recounted the same explanation given at tire first trial: that he fell on top of Joselyn after tripping on a comforter but knew nothing about the other bruises and denied ever hitting Joselyn. De La Torre did elicit testimony when cross-examining Oeberst that a child who was awake when receiving the bruises Joselyn had on her body would cry. And he offered additional evidence in his defense—a detective’s testimony that the defendant’s children, who were home when Joselyn died, submitted to forensic interviews in which they denied “hearing anything” that day.
Discussion
On the date of Joselyn’s death, the abuse of a child statute read:
“Abuse of a child is intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3609.
De La Torre argues the term “cruel and inhuman corporal punishment” differs from the other types of child abuse enumerated in the statute because it requires proof the defendant intended to discipline tire victim; the jury was instructed it could convict De La Torre only upon concluding he inflicted cruel and inhuman corporal punishment on Joselyn; and the State presented no evidence he inflicted Joselyn’s fatal wounds for disciplinary purposes. Under De La Torre’s interpretation, abuse of a child by inflicting cruel and inhuman corporal punishment is a specific intent crime because it requires, “in addition to the nearly omnipresent general intent requirement,” proof of “a further particular intent which must accompany the prohibited acts.” State v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 (2009) (quoting State v. Cantrell, 234 Kan. 426, Syl. ¶ 7, 673 P.2d 1147 [1983], cert. denied 469 U.S. 817 [1984]).
If this is correct, the statute necessarily sets out alternative means because abuse of a child accomplished by “torturing,” “cruelly beating,” or “shaking which results in great bodily harm” require no proof of the defendant’s specific intent to discipline the victim. See, e.g., State v. Hupp, 248 Kan. 644, 653, 809 P.2d 1027 (1991) (abuse of a child accomplished by hitting and hurting— intent to injure not an element). Accordingly, specific intent to discipline would be a material, distinct mens rea requirement, unique to the “cruel and inhuman corporal punishment” clause of the statute. See Brown, 295 Kan. at 194.
In support of his claim that the statute sets out alternative means of committing abuse of a child, De La Torre relies principally on language in State v. Carr, 265 Kan. 608, 963 P.2d 421 (1998), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). In Carr, the court affirmed a felony-murder conviction based on the underlying offense of abuse of a child. On appeal, the defendant argued the jury instructions violated her right to a unanimous jury verdict because they permitted the jury to convict her on proof “the defendant intentionally cruelly beat, inflicted cruel and inhuman bodily punishment upon, or shook [tire child], which resulted in great bodily harm to [the child].” 265 Kan. at 616. She claimed some jurors might have alternately found she cruelly beat the child, while others found she intentionally inflicted cruel and inhuman bodily punishment, while still others found she shook the child.
The Carr court disagreed. It explained without analysis that “[t]he three methods outlined above by the defendant are alternative means by which child abuse may be committed,” but “in this case, there was sufficient evidence for the jury to conclude that die defendant cruelly beat, inflicted cruel and inhuman bodily punishment on, and shook [the child].” 265 Kan. at 618.
But two things undercut Carr’s persuasive value. First, the case was decided before this court refined its alternative means analysis in Brown, 295 Kan. 181. Second, the alternative means language in Carr referenced by De La Torre is incidental to its holding that the defendant’s right to jury unanimity was not undermined by evidence of multiple acts. Carr did not consider the possibility that the defendant’s unanimity argument might not have presented either a multiple acts problem or an alternative means problem. See 265 Kan. at 618.
Under Brown, we explained that the legislature creates an alternative means crime when it defines a crime with two or more alternative, distinct, mens rea, actus reus, or causation elements. 295 Kan. at 199-200. Options within a means that do not state additional and distinct ways of committing the crime but rather describe a material element or a factual circumstance that proves the crime do not create alternative means. 295 Kan. at 196-97; see State v. Cheffen, 297 Kan. 689, 702, 303 P.3d 1261 (2013) (killing during attempt to commit, commission of, or flight from inherently dangerous felony not alternative means of committing felony murder but factual circumstances proving material element of engaging in inherently dangerous felony); State v. Aguirre, 296 Kan. 99, 108, 290 P.3d 612 (2012) (“preventing or dissuading” and “attempting to prevent or dissuade” victim from reporting crime not alternative means of committing aggravated intimidation of a victim).
In State v. Ahrens, 296 Kan. 151, 160, 290 P.3d 629 (2012), cited by the State, this court held that the legislature did not intend the words “operating” and “attempting to operate” to create alternative means in the Kansas driving under the influence statute, but rather to “encompass a broader set of factual circumstances that could establish die driving element.” The court construed the statute to have two elements: “(1) driving and (2) being under the influence, while the language following that phrase simply sets out the factual bases that will satisfy the elements of the crime.” 296 Kan. at 161. For support, the court cited a subsequent statutory amendment that added prefatory language to the statute stating that “[djriving under the influence is operating or attempting to operate . . . .” 296 Kan. at 160-61.
The abuse of a child statute similarly lists various factual scenarios that suffice to prove the element of “abuse” rather than setting out alternative means of committing the offense. As in Ah-rens, the legislature’s recent amendments to die abuse of a child statute reinforce this view. The statute now reads:
“(a) Abuse of a child is knowingly:
(1) Torturing or cruelly beating any child under the age of 18 years;
(2) shaking any child under tire age of 18 years which results in great bodily harm to the child; or
(3) inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 2013 Supp. 21-5602.
This court’s recent decision in Cheffen is also supportive. Relying in part on Ahrens, we held that “committing,” “attempting to commit,” and “fleeing from” an inherently dangerous felony are not alternative means of committing felony murder, reasoning:
“The felony-murder statute has two primary elements—killing and simultaneously engaging in an inherently dangerous felony. The second element can be established through proof diat the killing occurred while the defendant was committing, attempting to commit, or fleeing from an inherently dangerous felony. These are simply factual circumstances in which a material element may be proven. Therefore, this language in the felony-murder statute does not create alternative means . . . .” Cheffen, 297 Kan. at 702.
Applying Brown and Ahrens, the elements of abuse of a child set out in K.S.A. 21-3609 are (1) abusing; and (2) a child under 18 years old. And while we acknowledge that the current statute’s subsection structure might cut toward applying an alternative means label at first blush, we nevertheless view these subsections as merely setting out examples of factual circumstances that could prove tire actus reus. The types of abuse enumerated in the statute, such as “cruelly beating” and “cruel and inhuman corporal punishment,” simply describe two factual circumstances that could satisfy the abuse element. K.S.A. 21-3609 does not define an alternative means crime.
This conclusion necessarily renders impossible De La Torre’s interpretation of tire phrase “cruel and inhuman corporal punishment.” The legislature did not set out alternative sets of material elements of abuse of a child. It also did not intend this phrase to include a unique specific intent prerequisite not required to prove abuse under the other factual circumstances the statute describes. Our conclusion is further buttressed by the lack within the statute of words commonly used to signal specific intent crimes, such as “with intent to.” See Richardson, 289 Kan. at 122-23.
Proof of intent to discipline was not necessary to make out a claim that De La Torre inflicted “cruel and inhuman corporal punishment” on Joselyn. De La Torre’s argument that his convictions must be reversed for lack of evidence that he “inflicted [Joselyn’s] injuries as a form of punishment” fails.
Prosecutorial Misconduct
De La Torre alleges four instances of prosecutorial misconduct at his second trial. We will consider each in turn, as well as any cumulative impact. It is important to recall the evidence at the second trial was virtually indistinguishable from the evidence at the first, except for some variation in the medical testimony about Jo-selyn’s bruising. And relevant to one misconduct claim, De La Torre testified he had been convicted of perjury and identity theft arising from signing a form with a name other than his own to obtain a job.
Standard of Review
Appellate review of a prosecutorial misconduct claim based on improper comments requires a two-step analysis. First, an appellate court decides whether the comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001) (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90 [2000]), cert. denied 534 U.S. 1047 (2001). This latitude allows a prosecutor to make reasonable inferences based on the evidence, but it does not extend so far as to permit arguing facts not in evidence. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011). Arguments must remain consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and on appellate review the court must consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. See Bridges, 297 Kan. at 1014-15.
Appellate courts consider three factors in analyzing the second step: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors’ minds. But none of these factors individually controls; and before the third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).
When both constitutional and nonconstitutional errors clearly arise from the same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the con stitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefiting from the error bears the burden to demonstrate harmiessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
The comment there were 30 bruises on Joselyn’s head and body that “led to her death” was not improper.
In opening statements the prosecutor said, “This is difficult evidence. Joselyn suffered over 30 bruises on her head and her body that led to her death.” (Emphasis added.) De La Torre argues this constituted improper argument of facts not in evidence because the State did not present any proof the bruises on Joselyn’s head were connected to her death. The State responds that the prosecutor was discussing tire nature of the evidence—not affirmatively arguing those particular injuries actually caused the child’s death. It also notes the manner of death was not a contested issue at trial.
Opening statements are given to assist the jury in understanding what each side expects the evidence will prove and to frame the questions tire jury will have to decide. Misconduct occurs when the prosecutor strays outside “the wide latitude granted the prosecutor in stating facts he or she proposes to prove.” See State v. McCorkendale, 267 Kan. 263, 277-78, 979 P.2d 1239 (1999), disapproved on other grounds by State v. King, 288 Kan. 333, 203 P.3d 585 (2009); see, e.g., State v. Alger, 282 Kan. 297, 304, 306, 145 P.3d 12 (2006) (prosecutor did not cross “line between mere recitation of expected evidence and forbidden argument” when he said victim would “forever be two years old and her last memory will forever be that of the Defendant violently shaking the life out of her”).
De La Torre is technically correct that Joselyn’s head injuries were not causally related to her death; but this statement did not exceed the prosecutor’s latitude to lay out the State’s case for the jury. The bruises on Joselyn’s head and body were important evidence that De La Torre killed Joselyn while abusing her, rather than her death being accidental. The statement also is seen as a sequential recitation of the evidence that these head injuries preceded the fatal injuries, such that the prosecutor s statement could be considered more about chronology than about medical causation. We hold the comment was not improper.
The commentary about what Joselyn might have thought of the world was improper.
Near the beginning of closing arguments at the second trial, the prosecutor said:
“Joselyn was 11 mondas old, just a toddler, not able to walk, certainly not able to talk. But, she could feel pain. But, she wasn’t able to tell anyone about it.
“I wonder what she must have thought this world was all about these last couple ofdaijs.” (Emphasis added.)
De La Torre argues the comments impermissibly encouraged the jury to create an imaginary script and speculate on facts not in evidence, i.e., what Joselyn was thinking in the time immediately before she died. We agree.
“A prosecutor should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and controlling law.” State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). The prosecutor’s observation that he personally wondered what Joselyn drought about the world during the period of alleged abuse crosses the line. This court has said it is improper for a prosecutor to refer to the victim’s thoughts or create an “imaginary script” by putting words in the victim’s mouth. See State v. Kleypas, 272 Kan. 894, 1113, 40 P.3d 139, cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).
As De La Torre points out, there was no permissible reason to discuss what Joselyn might have thought “this world was all about” as a result of De La Torre’s abuse. This commentary is not related to explaining why the conduct or testimony of a witness was consistent with the State’s theory, nor did it have anything to do with De La Torre’s guilt. It was intended to impermissibly inflame the jury’s passions and prejudices in a similar fashion as “golden rule” arguments in which the prosecutor asks jurors to put themselves in the victim’s place. See State v. Corbett, 281 Kan. 294, 313, 130 P.3d 1179 (2006) (recognizing general impropriety of “golden rule” arguments”). We hold the statement was improper commentary.
Commentary that there was “no dispute” about the elements of felony murder was not improper.
Just after the comment about what Joselyn must have thought the world was all about, the prosecutor said:
“I want to go over the elements of the case which the State is asking you to find in this case in order to return a verdict of guilty.
“What the State has to prove beyond a reasonable doubt, but not beyond all doubt, just beyond a reasonable doubt, which is a burden we, of course, willingly and gladly accept, and it should be that way. One, that the Defendant lolled [Joselyn], I don’t think there is any dispute about that. Two, that such killing was done while in the commission of abuse of a child. I don’t believe there is any dispute about that. And, that this act occurred on or about the 6th day of September, 2009 in Ford County, Kansas. No dispute about that.”
“Now, the elements of abuse of a child are you have to be able to find in order for it to be in the commission of the felony of child abuse, that the Defendant intentionally inflicted cruel and inhuman punishment upon [Joselyn], that [Jose-lyn] was a child under the age of 18 years, and, that this act occurred between the 15th day of August and the 6th day of September, 2009 in Ford County.
“So, let’s look to—first, to the facts of the case.” (Emphasis added.)
The prosecutor then went on to discuss the testimony of the State’s witnesses and De La Torre’s testimony. He concluded: “And, that’s for you to determine, and that’s what the State has asked you to determine, is to find that this was no accident, that this was a killing done in the commission of abuse of a child.”
De La Torre argues the prosecutor impermissibly expressed a personal opinion about his guilt when the prosecutor told the jury he did not believe there was a dispute that De La Torre killed Joselyn in die commission of abuse of a child. The State argues the prosecutor was not saying that the fact Joselyn was killed in the commission of child abuse was undisputed; rather, it argues, the prosecutor was saying there was no dispute that it was an element the State had to prove. The State further argues De La Torre’s interpretation is “nonsensical” because it was obvious there was “a furious dispute about whether the evidence showed [Joselyn] was killed during an episode of child abuse [or accidently]”.
A prosecutor may not state a personal opinion about a defendant’s ultimate guilt or innocence. State v. Peppers, 294 Kan. 377, 399, 276 P.3d 148 (2012). But a prosecutor may argue the evidence demonstrates guilt. 294 Kan. at 399-400. “[T]his court has allowed a ‘directional’ statement by a prosecutor that can ‘best be characterized’ as serving ‘as an opening for the prosecutor’s upcoming summation of evidence.’ ” 294 Kan. at 399 (quoting State v. Mann, 274 Kan. 670, 689, 56 P.3d 212 [2002]). But these must be accompanied by additional statements “akin to ‘the evidence shows defendant’s guilt’ in order to make a statement merely directional and not an expression of tire prosecutor’s personal opinion.” 294 Kan. at 400.
The statement here occupies a middle ground between the impermissible opinion in Peppers and the permissible directional statement in Mann. It was made near the beginning of the prosecutor’s remarks and did not explicitly include directional language cuing the jury that he would be offering reasons supporting the stated “belief’ that there was no dispute the killing occurred “in the commission of abuse of a child.” But after reciting the elements along with the objected-to comments, he directed the jury toward the facts, then discussed the evidence in tire case at length, and bookended the statement with reminders about the State’s burden of proof and the jury’s role in assessing whether the State met drat burden. He explained it was the State’s burden to prove each element beyond a reasonable doubt, and he concluded after discussing the evidence drat it was for the jury to determine whether the State had proven the element.
We hold the comment was not improper in the context of the argument that followed it.
References to De La Torre’s testimony being a “story” were improper.
After recounting Hayes’ testimony about tire biomechanics of falling, the prosecutor said:
“And, there is a reason the defendant didn’t do any of tiróse tilings [that Hayes testified people normally do when they fall], or couldn’t explain any of those tilings, and the reason is that there 'was no fall. There was no accident. Had there been a fall, had [tire defendant], in fact, tripped on the bedspread, which, the evidence would show there is serious, serious doubt as to whether that is true, had he indeed done that, then the laws of physics would have taken over, bio-mechanics would have taken over. Just as a cat flips up on its legs when it’s upside down, just like you would take your hand off a hot stove, natural reaction, you would do everything you could to lower your center of gravity, take a recoveiy step, fall to your knees. And, in effect, you would create a zone of protection for whatever it was you were carrying, whether it be a glass vase, a glass of ice tea or a child. None of that was done by the Defendant, because it didn’t happen.
“That’s just die story. You’re hearing this story from an individual who has admitted to two crimes of dishonesty.
“So, die fact is, one of the instructions is you have die power, die right to determine the truth and the credibility of witnesses, who is telling the truth and who is not. You can measure the—you have the evidence to measure the credibility of the Defendant’s version of how Joselyn received the injuries that caused her deatii, or you have die evidence from Dr. Hayes and your own experience and common knowledge about how people fall.” (Emphasis added.)
De La Torre argues the emphasized language was impermissible commentary about his credibility. We agree.
A prosecutor is forbidden from offering his or her personal opinion that the defendant’s testimony is untruthful. State v. Akins, 298 Kan. 592, Syl. ¶ 6, 315 P.3d 868 (2014). The rationale for the rule “ ‘is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.’ ” State v. Graham, 277 Kan. 121, 128-29, 83 P.3d 143 (2004) (quoting State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 [2000]). The prohibition extends not only to using the word “he,” but to also to its “derivative.” State v. Elnicki, 279 Kan. 47, 58-59, 62, 105 P.3d 1222 (2005) (prosecutor called defendant’s testimony a “fabrication,” “yam,” “final yam,” “fairy tale,” “tall tale,” “the yam spun here,” and “four-part yam”); see also Akins, 298 Kan. at 607 (prosecutor asked if jury “bought” defendant’s story and said his testimony was “not credible”). But prosecutors are permitted “to point out inconsistencies in a defendant’s statements and to argue evidence that reflects poorly on a defendant’s credibility.” Akins, 298 Kan. at 608; see State v. Duong, 292 Kan. 824, 831-32, 257 P.3d 309 (not improper commentary on credibility to identify specific evidence supporting wholly evidence- based argument victim’s testimony was more believable than defendant’s). The comments are considered in the context in which they were made, not in isolation. Duong, 292 Kan. at 831.
It is impossible to view the prosecutor’s comments about De La Torre’s “story” without it communicating by an impermissible euphemism that he was lying. Prosecutors simply may not do this. We hold the use of the characterization of his testimony as a “story” to be improper.
The prosecutorial misconduct is not reversible error
Having determined the prosecutor committed misconduct, we turn to the second step in our analysis, which consists of applying the three factors used to determine whether the misconduct denied De La Torre a fair trial. First, we must determine if the misconduct was gross and flagrant. See Bridges, 297 Kan. at 1012. Often in examining this factor we assess whether the statement is contrary to a long-standing rule of law. See State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include repeated comments, emphasis on improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); see also Bridges, 297 Kan. at 1015-16 (prosecutor’s conduct was gross and flagrant because it violated the well-established rule prohibiting comments on the defendant’s credibility). Under the second factor, it must be determined whether the prosecutor’s statement was a result of ill will. A prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct.’ ” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011) (quoting State v. Madkins, 42 Kan. App. 955, 961, 219 P.3d 831 [2009]).
We note the prosecutor’s comments were repeated in substantially identical form in both the first and second trial. Therefore, they were deliberate and not the product of a “heat-of-the-moment” excuse. In addition, the prosecutor’s comments violated long-standing mies against inflaming juror passions, consideration of irrelevant matters, and euphemisms regarding a defendant’s credibility. Given these circumstances, we conclude the prosecutor’s comments were gross and flagrant and motivated by ill will.
Lastly, we consider whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors’ minds. The evidence in the second trial was strong that Joselyn’s fatal injuries, sustained while De La Torre was caring for Joselyn, were not accidental. There was significant evidence of child abuse, along with expert testimony undercutting De La Torre’s innocent explanation. We hold there is no reasonable possibility the prosecutor’s improper comments affected the trial’s outcome. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).There is no reversible error.
Affirmed in pail, reversed in part, and remanded.
Moritz, J., not participating.
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Per Curiam.-.
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Brian R. Johnson, of Topeka, an attorney admitted to the practice of law in Kansas in 1988.
On August 15, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent untimely filed an answer on September 25,2013. On September 25, 2013 and September 29, 2013, the parties signed a written stipulation of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 1, 2013, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 1.2(a) (2013 Kan. Ct. R. Annot. 459) (scope of representation); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Kansas Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356) (failure to file answer in disciplinary proceeding); and Kansas Supreme Court Rule 218(a) (2013 Kan. Ct. R. Annot. 406) (notification of clients upon suspension).
Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“8. On May 18,2012, tlie Kansas Supreme Court suspended the respondent’s license to practice law in tlie State of Kansas for one year. The Court required that before reinstatement, tlie respondent comply with Kan. Sup. Ct. R. 218 and undergo a hearing pursuant to Kan. Sup. Ct. R. 219.
“9. At tlie time the Court ordered the respondent to comply with Rule 218, that rule provided, in pertinent part, as follows:
‘(a) In tlie event any attorney licensed to practice law in Kansas shall hereafter be . . . suspended from the practice of law pursuant to these Rules, . . . such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’ [2012 Kan. Ct. R. Annot. 397.]
“DA11638
“10. Following tlie respondent’s suspension from the practice of law, on June 4, 2012, he provided Pro Tern. Judge James T. George with a cover letter and packet of information regarding cases for which he was appointed counsel in Douglas County, Kansas. In the cover letter, die respondent informed Judge George that he was ‘prohibited from practicing law for the present time’ and he requested diat the judge appoint another attorney to represent his clients. The packet of information included police reports, driving records, citations, and a handwritten note regarding a possible plea. Judge George was not the presiding judge in all of the cases included in the packet.
“11. The respondent did not provide any notice to his clients. The respondent did not provide notice to each judge presiding over the cases. The respondent did not provide notice to opposing counsel. Finally, the respondent did not file any motions to withdraw from the representations.
“12. Specifically, tlie respondent had been appointed to represent M.G. in a criminal case before Judge Peggy C. Kittel. The respondent failed to notify M.G. that he was suspended and could no longer represent M.G. On July 6,2012, M.G. appeared in court for sentencing and expected tlie respondent to appear. Prior to the hearing, M.G. had attempted to contact the respondent but was unable to do so.
“13. Judge Kittel informed M.G. that tlie respondent had been suspended from the practice of law and could no longer represent him. Judge Kittel appointed M.G. a new attorney and continued the sentencing hearing.
“14. On July 26, 2012, Judge Kittel forwarded a complaint to the disciplinary administrator’s office regarding the respondent’s failure to comply with Sup. Ct. R. 218. The disciplinary administrator provided the respondent with a copy of the complaint and directed the respondent to provide a written response within 20 days. The respondent failed to provide a written response as directed.
“15. Eventually, on November 26, 2012, the respondent provided a written response to Judge Kittel’s letter. In the letter, the respondent stated:
‘On June 4, 2012,1 forwarded correspondence to the Douglas County Pro Tem with material associated with all of my Court appointed cases. I further notified the Pro tem [sic] of my prohibition from practicing law and requested him to reassign my cases.
‘Due to the press of time with the case schedules of the clients, I believed it more prudent to notify the Court immediately. Sending correspondence to the clients, unaware if it would reach them due to a lack of forwarding address or unstable living arrangements, seemed at that time to be ineffectual. Moreover, sending correspondence to tire clients, knowing that they may not have the where withal [sic] to take the steps to secure counsel through the court, it seem [sic] at the time may prove to be effectual. Unfortunately one client, identified in my correspondence with the Pro Tem, fell through at no fault of the court.
‘Finally, while the Judge correctly points to tire fact that I did not file a formal withdrawal, I did in fact notify the Pro tem [sic] of my prohibition from practicing law and requested him to reassign my cases. The Pro Tem reviewed my correspondence and took the appropriate action concerning my future representation of the clients.
‘In conclusion, I have forwarded correspondence on November 12th to Attorney Shaye L. Downing concerning the other inquiry. I stand ready to answer any other inquiry the office may have.’
“16. On December 17, 2012, the respondent wrote to the investigator, using Johnson Law Office letterhead. In that letter, the respondent stated:
1 have reviewed your response to my correspondence concerning the above referenced matter. To be clear, my response was not to convince you that I complied with the rule. As is required by all attorneys, when ordered to respond to a complaint, I just attempted to honestly comport [sic] the facts.
‘If your review of the facts establishes that I violated a rule I will accept it. All I can say is that I did not have the addresses of my clients. Those that I had were not rehable. I was appointed to all the case [sic] by the Pro Tem. As such, I deemed the most expedient was [sic] to attain counsel for the clients was to contact the Pro Tem. I [sic] spite of the foregoing, it would appear tire Rule was not satisfied.
‘To be clear, my response is not written to absolve myself of any rule violation. My response is to give you a factual narrative of my conduct. Thank you for your patience and fairness I [sic] how you conducted this investigation. Please fill [sic] free to contact me to discuss this matter further.’
“DAI 1648
“17. B.R. retained the respondent to file a breach of contract and conversion suit against Haase & Long, Inc., a medical billing company. On May 9, 2011, the respondent filed suit. Later, Haase & Long, Inc. answered and filed a counterclaim against B.R. Judge Robert Fairchild, Douglas County District Court, presided over the suit.
“18. During the litigation, die parties agreed that an expert witness would be necessary to support the claim. The respondent named an expert witness, Jeff McDonald. However, Mr. McDonald informed die respondent that he could not serve as an expert witness as he did not feel qualified to do so. Mr. McDonald agreed to assist the respondent by reviewing documents. After he completed his review of die documents drat the respondent provided to him, Mr. McDonald informed the respondent that it was necessary to review specific additional documents. The respondent failed to take any action to obtain the documents which Mr. McDonald indicated were necessary to review.
“19. The respondent failed to comply with discovery requests. Haase & Long, Inc. filed a motion to compel the respondent comply widr discovery requests. The Court ordered the respondent to provide a response by March 2, 2012. The respondent did not provide a response as ordered by the Court.
“20. On March 9, 2012, Haase & Long, Inc. filed a motion for sanctions for failure to properly designate an expert witness and to complete discovery responses. The Court scheduled a hearing on die motion for sanctions for April 2, 2012.
“21. Immediately before the April 2, 2012, hearing, the respondent filed a motion to dismiss the breach of contract case witiiout prejudice. Haase & Long, Inc. moved the court for a dismissal with prejudice. The Court granted Haase & Long’s motion and dismissed the breach of contract claim with prejudice.
“22. Additionally, at die April 2, 2012, hearing, the respondent agreed to dismiss the conversion claim, as the conversion claim was for only $202.34.
“23. According to B.R., the respondent did not discuss the possibility of dismissing the breach of contract or conversion claims. According to the respondent, he discussed dismissing die breach of contract claims widiout prejudice with B.R. The respondent acknowledged that he did not discuss dismissing die conversion claim with B.R.
“24. Judge Fairchild directed counsel for Haase & Long, Inc. to prepare a journal entiy, memorializing the dismissal. At the time of the respondent’s suspension from the practice of law, the journal entiy had not been filed and the respondent remained counsel of record. The respondent failed to inform B.R., opposing counsel, or die Court of his suspension. Additionally, the respondent failed to file a motion to wididraw from die representation.
“25. B.R. learned that the respondent’s license to practice law was suspended through local media. B.R. contacted the respondent, requesting that his file be returned to him. B.R. went to the respondent’s office and found the office to be vacant. The respondent failed to return B.R.’s file to him.
“DA11781
“26. On March 5, 2012, the respondent filed an application for an insurance license. That same day, the Kansas Commissioner of Insurance issued Kansas Resident Insurance Producer License #16007094 to tire respondent.
“27. Question 2 on the application asks:
‘2. Have you ever been named or involved as a party in an administrative proceeding, including FINRA sanction or arbitration proceeding regarding any professional or occupational license or registration?
“ ‘Involved” means having a license censured, suspended, revoked, canceled, terminated; or, being assessed a fine, a cease and desist order, a prohibition order, a compliance order, placed on probation, sanctioned or surrendering a license to resolve an administrative action. “Involved” also means being named as a party to an administrative or arbitration proceeding, which is related to a professional or occupational license, or registration. “Involved” also means having a license, or registration application denied or the act of withdrawing an application to avoid a denial. INCLUDE any business so named because of your actions, in your capacity as an owner, partner, officer or director, or member or manager of a Limited Liability Company. You may EXCLUDE terminations due solely to noncompliance with continuing education requirements or failure to pay a renewal fee.
‘If you answer yes, you must attach to this application:
a) a written statement identifying the type of license and explaining die circumstances of each incident,
b) a copy of die Notice of Hearing or other document that states die charges and allegations, and
c) a copy of the official document, which demonstrates the resolution of the charges or any final judgment.’
The respondent falsely answered this question ‘no.’ The respondent had previously been the subject of administrative proceedings regarding his license to practice law on four occasions.
“28. First, on January 24, 2001, the disciplinary administrator informally admonished the respondent in DA7488. Next, on March 21, 2002, the disciplinary administrator informally admonished the respondent in DA8073. Then, on October 31, 2003, the Kansas Supreme Court issued an unpublished opinion censuring the respondent for having engaged in misconduct. Finally, at the time the respondent filed the insurance application, the case which resulted in the respondent’s suspension was pending before the Kansas Supreme Court—the case was docketed on October 11, 2011, the respondent filed his brief on January 6, 2012, and oral arguments had been scheduled for April 16, 2012.
“29. On June 18, 2012, the respondent wrote to the Kansas Commissioner of Insurance and informed the Commissioner that his license to practice law was suspended for a period of one year.
“30. On September 17, 2012, the Kansas Commissioner of Insurance issued a Summary Order, revoking the respondent’s insurance license.
‘14. The Commissioner finds that Respondent’s license is revoked pursuant to K.S.A. 40-4909(a)(l) because Respondent provided incomplete and untrue information on his license application.
T5. The Commissioner also finds that sufficient grounds exist for the revocation of Respondent’s insurance agent license pursuant to K.S.A. 2011 Supp. 40-4909(a)(8) based on the findings of tire Kansas Supreme Court in Case No. 106,793.
T6. The Commissioner also finds that sufficient grounds exist for the revocation of the Respondent’s insurance agent license pursuant to K.S.A. 2011 Supp. 40-4909(b) because “the interests of the insurer or the insui'able interests of the public are not properly served under such license.’ ”
“31. On March 11, 2013, Susan Ellmalcer, Staff Attorney with the Kansas Commissioner of Insurance, filed a disciplinary complaint against the respondent. On May 3, 2013, the respondent provided a written response to Ms. Ellmaker’s complaint. The respondent’s response provided as follows:
‘This is a response to the complaint authored by Susan Ellmaker. The complaint is correct, that I submitted an application that was in error. This error was not intended to conceal the pending disciplinary proceeding. I understand explanations are frowned upon. As such, I will not be giving one. Upon suspension I notified the Insurance authorities. But let’s be clear, on substance, the disciplinary proceeding was not disclosed as defined by question 2.
‘Further, little of the facts identified with Purcell is factual. I did not lose my Insurance license in October of 2012. Upon notification that my license may be suspended, I appealed. As a result, my license stayed in effect. Moreover, I was not terminated from my employ at Purcell’s in October 2012. I told her that I did not want to continue to sale [sic] insurance under the circumstances. However, I remained employed with Purcell until January of 2013 serving in a different capacity. Finally, any contention that I forwarded an authorized letter to the Insurance authorities is false. I wrote the letter and Purcell signed it.’
“Conclusions of Law
“32. Based upon die partial stipulation and die findings of fact, die hearing panel concludes as a matter of law that the respondent violated KRPC 1.2, KRPC 1.4, KRPC 1.16, KRPC 8.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218, as detailed below.
“KRPC 1.2(a)
“33. Lawyers are bound by their clients’ decision concerning the representation. KRPC 1.2(a) provides the rule in this regard:
‘A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, tire lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.’
In this case, the respondent violated KRPC 1.2(a) when he dismissed B.R.’s case without authority. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.2(a).
“KRPC 1.4
“34. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed to keep M.G. and B.R. reasonably informed regarding dre status of their cases. Thus, die healing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 1.16
“35. KRPC 1.16 requires lawyers to take certain steps to protect clients after the representation has been terminated. Specifically, KRPC 1.16(d) provides die requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably pracdcable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The respondent violated KRPC 1.16(d) when he failed to return B.R.’s file. The hearing panel concludes that the respondent repeatedly violated KRPC 1.16(d).
“KRPC 8.4(c)
“36. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent engaged in conduct that involved dishonesty when he falsely answered question 2 on the insurance license application. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).
“KRPC 8.4(d)
“37. ‘It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The respondent engaged in conduct that was prejudicial to the administration of justice when he failed to inform M.G., the Court, and opposing counsel that his license to practice law was suspended and when he failed to file a motion to withdraw from M.G.’s case. Had the respondent taken appropriate action, the Court could have appointed new counsel for M.G. and the sentencing hearing scheduled for July 6, 2012, would not have had to be continued. Additionally, the respondent violated KRPC 8.4(d) when he failed to inform odier clients, the Court, and opposing counsel that his license to practice law was suspended and when he failed to file motions to withdraw in the other pending cases. Finally, the respondent violated KRPC 8.4(d), when he failed to inform B.R., the Court, and opposing counsel that this license had been suspended and when he failed to file a motion to withdraw from his representation of B.R. The hearing panel, therefore, concludes that the respondent violated KRPC 8.4(d).
“Kan. Sup. Ct. R. 211(b)
“38. The Kansas Supreme Court Rules require attorneys to file answers to formal complaints. Kan. Sup. Ct. R. 211(b) provides the requirements:
‘The respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’ Kan. Sup. Ct. R. 211(b).
The respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a timely written answer to the formal complaint. Accordingly, the hearing panel concludes that the respondent violated Kan. Sup. Ct. R. 211(b).
“Kan. Sup. Ct. R. 218
“39. Upon suspension or disbarment, an attorney must take certain action. Kan. Sup. Ct. R. 218(a) provides the requirements in this regard:
‘In the event any attorney licensed to practice law in Kansas shall hereafter be disbarred or suspended from the practice of law pursuant to these Rules, or shall voluntarily surrender his or her license, such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’ [2012 Kan. Ct. R. Annot. 397.]
Upon suspension, the respondent was required to forthwith notify his clients, opposing counsel, and the courts, in writing, of his inability to continue the representation. Additionally, the respondent was also required to file motions to withdraw from cases where he was counsel of record. The respondent failed to notify his clients, opposing counsel, and the courts, in writing, of his inability to continue the representation. Also, the respondent failed to file appropriate motions to widr- draw from the representations. Thus, the hearing panel concludes that the Respondent violated Kan. Sup. Ct. R. 218(a).
“American Bar Association Standards for Imposing Lawyer Sanctions
“40. In making this recommendation for discipline, the hearing panel considered the factors outlined by die American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by die lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“41. Duty Violated. The respondent violated his duty to his clients to provide reasonable communication. The respondent violated his duty to the public to maintain his personal integrity. The respondent violated his duty to the legal profession to refrain from interfering widi die administration of justice.
“42. Mental State. The respondent knowingly violated his duties.
“43. Injury. As a result of die respondent’s misconduct, the respondent caused actual injury to his clients and the legal profession.
“44. Aggravating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“45. Prior Disciplinary Offenses. The respondent has been previously disciplined on four occasions. First, on January 24, 2001, in DA7488, die disciplinary administrator informally admonished die respondent for having violated KRPC 1.5. Next, on March 21,2002, in DA8073, the (disciplinary administrator informally admonished die Respondent for having violated KRPC 1.16 and Kan. Sup. Ct. R. 207. Third, on October 31, 2003, the Kansas Supreme Court issued an unpublished opinion censuring the respondent for having violated KRPC 1.15, KRPC 1.16(d), and KRPC 5.5. Finally, on May 18, 2012, the Kansas Supreme Court issued an opinion suspending die respondent’s license to practice law for a period of one year for having violated KRPC 1.7(a)(2), KRPC 5.5(a), KRPC 8.4(c), and Kan. Sup. Ct. R. 208.
“46. Additionally, the respondent has previously been subject to five administrative suspensions. In 1989, the Respondent failed to pay the CLE fee and his license was suspended. In 1993, the Respondent failed to pay the CLE fee and his license was suspended. In 1995, die Respondent failed to complete the requisite CLE hours and his license was suspended. In 2000, the Respondent failed to pay the attorney registration fee and his license was suspended. In 2001, the Respondent failed to pay the CLE fee and his license was suspended.
“47. Dishonest or Selfish Motive. The respondent’s misconduct in the case involving the Kansas Commissioner of Insurance was motivated by dishonesty and selfishness. He provide false information on this application for a license to sell insurance.
“48. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct by repeatedly failing to comply with the rules of the Kansas Supreme Court.
“49. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.2, KRPC 1.4, KRPC 1.16, KRPC 4.1, KRPC 8.4(c), KRPC 8.4(d), Kan. Sup. Ct. R. 211, and Kan. Sup. Ct. R. 218(a).
“50. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1988. At the time of the misconduct, the respondent had been practicing law for more than 20 years.
51. Mitigating Factors. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstance present:
“52. The Present Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent entered into a partial stipulation, admitting many of the facts and rule violations.
“53. In addition to die above-cited factors, die hearing panel has tiioroughly examined and considered die following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any odier intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that serious adversely reflects on die lawyer’s fitness to practice.’
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.’
‘8.1 Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, die legal system, or die profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or die profession.’
‘8.2 Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct tiiat cause injuiy or potential injury to a client, the public, the legal system, or the profession.’
“Recommendation
“54. The disciplinary administrator recommended that the respondent be suspended from the practice of law for an indefinite period of time. The disciplinary administrator further recommended that the effective date of the indefinite suspension not'he made retroactive to the respondent’s existing suspension. The respondent stated that he was comfortable with an indefinite suspension, however, he preferred a definite suspension.
“55. Given tire respondent’s disciplinary hearing and his 15 year indifference to courts and tire administration of justice, the hearing panel considered recommending that the respondent be disbarred. However, it appears to the hearing panel that the respondent has begun a personal transformation from an attorney with a bad attitude and a disregard for the rules to an attorney with respect for the rules which govern our profession. Further, the respondent did not personally gain by his misconduct. Accordingly, based upon the partial stipulation, the findings of fact, the conclusions of law, the Standards listed above, and what the hearing panel perceives to be tire seeds of a personal and professional change, the hearing panel unanimously recommends that the respondent be indefinitely suspended from the practice of law.
“56. Costs are assessed against die respondent in an amount to be certified by the Office of die Disciplinaiy Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court. The respondent entered into a partial stipulation before the hearing panel, and he did not file exceptions to die hearing panel’s final hearing report. As such, die findings of fact are deemed admitted. Supreme Court Rule 212(c) and (d) (2013 Kan. Ct. R. Annot. 375).
Moreover, we determine that the evidence before the hearing panel supported the panel’s conclusions of law. Specifically, the clear and convincing evidence established drat the respondent’s misconduct violated KRPC 1.2(a) (2013 Kan. Ct. R. Annot. 459) (scope of representation); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Kansas Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 356) (failure to file answer in disciplinary proceeding); and Kansas Supreme Court Rule 218(a) (2013 Kan. Ct. R. Annot. 406) (notification of clients upon suspension).
Both the hearing panel and the Disciplinaiy Administrator’s office ultimately recommended a sanction of indefinite suspension. “The recommendation of the panel or the Disciplinaiy Administrator as to sanctions to be imposed shall be advisory only and shall not prevent the Court from imposing sanctions greater or lesser than those recommended by the panel or the Disciplinary Administrator.” Supreme Court Rule 212(f) (2013 Kan. Ct. R. Annot. 377).
Before making its final recommendation, the panel considered the sanction of disbarment. That consideration was appropriate, given that respondent has violated our rules of professional conduct multiple times over a period of many years, while also accumulating a number of suspensions for failing to comply with the administrative responsibilities required of every attorney. Accordingly, a minority of this court would disbar the respondent. But a majority of die court defers to the assessments of the panel and the Disciplinary Administrator’s office that respondent’s change in attitude warrants an indefinite suspension, in lieu of disbarment.
Conclusion and Discipline
It Is Therefore Ordered that Brian R. Johnson be indefinitely suspended from the practice of law in die state of Kansas, effective die date of this order in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406), and in the event the respondent would seek reinstatement, he shall comply with the requirements of Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Nuss, C.J.:
Patrick B. Grossman filed a motion for postconviction relief under K.S.A. 60-1507, alleging his counsel at a probation revocation hearing was unconstitutionally ineffective. The district court denied his motion after a preliminary hearing, and the Court of Appeals affirmed. We granted his petition for review.
We agree with Grossman that the Court of Appeals erred by applying the doctrine of res judicata to bar his claim. But because his claim is meritless, we affirm both lower courts’ denials of his motion.
Facts and Procedural History
In 2007, Grossman entered a no contest .plea to one count of violating the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. The district court granted his request for a downward dispo-sitional departure to 36 months’ probation, with an underlying prison term of 53 months. The terms of probation included Gross-man’s agreement to refrain from illegal drug use.
In early 2009, Grossman’s intensive supervision officer (ISO) filed a warrant with the district court, alleging Grossman had violated the terms of his probation on 10 occasions. A month later, his ISO filed another warrant alleging an additional violation. The district court authorized Grossman’s arrest for a hearing on the alleged violations.
At the hearing to determine whether Grossman’s probation should be revoked, the court detailed the allegations against him. Grossman’s counsel responded, “Mr. Grossman is prepared to admit those allegations and make a presentation on mitigation in support of reinstatement.” Grossman did not object to his attorney’s statement.
The court then revoked Grossman’s probation, stating, “The defendant having waived his right to a formal hearing, admitting to the allegations contained within both those warrants, the Court finds the terms and conditions of his probation have been violated. I will hereby revoke his probation, [and] move on to the disposi-tional phase of the proceedings . . . .” Neither Grossman nor his attorney objected to any part of the court’s ruling.
As for disposition, the State and the ISO both recommended Grossman be ordered to serve the remainder of his prison sentence. Grossman’s attorney responded that several mitigating factors instead justified further probation. In counsel’s response, he repeatedly admitted multiple violations of Grossman’s probation terms without objection from Grossman.
Grossman dren personally addressed the court, arguing that mitigating factors justified further probation instead of prison. During his presentation, Grossman expressly, and repeatedly, admitted the State’s allegations of violating the terms of his probation. For example, in response to tire court’s question about his drug use, Grossman stated, “I understand, Your Honor, and I’m not pointing fingers. I haven’t pointed fingers at anybody. I have admitted each time that it was my fault.” He also said, “I mean, I did take responsibility for my actions. I admitted to it. I have never told you that I wasn’t smoking pot.” After Grossman’s presentation, the court ordered him to serve the balance of his prison sentence.
Grossman argued to the Court of Appeals that the district court violated his due process rights by failing to determine whether his admission and waiver of an evidentiary hearing were knowing and voluntary. State v. Grossman, 45 Kan. App. 2d 420, 423, 248 P.3d 776 (2011). The panel rejected his arguments and affirmed. It held that through his counsel’s admissions, Grossman freely waived his right to contest the allegations, and the district court did not violate his due process rights by accepting the admissions as his voluntary waiver. 45 Kan. App. 2d at 425.
In September 2011, Grossman filed the present pro se 60-1507 motion. He asserts his counsel was unconstitutionally ineffective at the 2009 probation revocation hearing because counsel allegedly ignored Grossman’s instructions to dispute the ISO’s accusations and to request an evidentiaiy hearing.
The district court held a preliminary, nonevidentiary hearing on the motion where Grossman was represented by counsel. His 60-1507 counsel argued the probation revocation counsel’s admission and waiver were “absolutely opposite of what [Grossman] instructed counsel to do.” The court denied the motion, concluding, “All this stuff that’s come up after the fact is just not credible to die Court.” It continued, stating, “He’s had his shot at the Court of Appeals [on direct appeal] where they examined this issue and found it was a knowing and intelligent waiver of his right to a hearing and a valid admission.”
A panel of the Court of Appeals affirmed, ruling that the prior panel had already rejected Grossman’s assertion that his waiver of an evidentiary hearing and admission to the alleged probation violations were not knowing and vo'luntaiy. It expressly held the doctrine of res judicata barred Grossman’s present claim because his “present habeas corpus motion is merely the same issue resubmitted under the guise of an ineffective assistance of counsel claim.” Grossman v. State, No. 107,929, 2013 WL 4564814, at *2 (Kan. App. 2013) (unpublished opinion). We granted Grossman’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Analysis
Issue: Grossman is not entitled to an evidentiary hearing on his K.S.A. 60-1507 motion.
Grossman argues the district court erred in failing to hold a full evidentiary hearing to investigate his claim of ineffective assistance by his probation revocation counsel in 2009. He contends such a hearing would disclose evidence to support his claim.
The State responds that Grossman’s 60-1507 motion does not justify an evidentiary hearing because his arguments are precluded by res judicata. In the alternative, the State contends the record does not support his claim, noting both Grossman and his attorney admitted his probation violations at the revocation hearing.
Standard of reviera
When, as here, a district court denies a 60-1507 motion based only on the motion, files, and records after a preliminary hearing, we are in as good a position as that court to consider the merits. So we exercise de novo review. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).
Discussion
We begin our review of Grossman’s claims by acknowledging his burden. “A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must malee more than conclusoiy contentions and must state an eviden-tiary basis in support of the claims or an evidentiary basis must appear in the record.” Sola-Morales, 300 Kan. 875, Syl. ¶ 3. Once a movant satisfies that burden, we are “required to grant a hearing, unless the motion is ‘second’ or ‘successive’ and seeks similar relief.” Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011) (quoting Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010]).
Because Grossman’s 60-1507 motion is based on the purported ineffectiveness of his probation revocation counsel, the substantive guarantees of effective counsel would typically control whether he is entitled to an evidentiary hearing. An accused’s right to counsel guaranteed under the Sixth Amendment to the United States Constitution includes the right to effective assistance of that counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984).
But before we consider the substance of Grossman’s constitutional claim, we first address whether the Court of Appeals panel correctly barred the claim by applying the doctrine of res judicata.
Res judicata
■ Grossman argues the doctrine of res judicata does not apply under his circumstances because this claim is neither a claim he actually raised on direct appeal nor one he could have raised there. The State agrees with the panel. But as discussed below, we agree with Grossman.
We have held: “The doctrine of res judicata provides that ‘where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.’ ” State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014) (quoting State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 [1990]).
Here, Grossman did not actually raise his current claim on his direct appeal. Simply put, his due process claim raised then is different from his ineffective assistance of counsel claim raised now. Although each claim relates to his admission and waiver, that relation does not transform the two distinct claims into the same one for purposes of res judicata. Cf. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009) (ruling on direct appeal regarding a jury instruction did not foreclose ineffective assistance of counsel argument related to the same jury instruction in 60-1507 motion).
Additionally, as Grossman points out, his ineffective assistance of counsel claim is not one he typically could have presented on direct appeal. See State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014) (“The merits of a claim of ineffective assistance of counsel ordinarily are not addressed for the first time on direct appeal.”). Because not all of the elements of res judicata are present, the panel erred by holding that doctrine bars his present claim.
Ineffective assistance of counsel
Despite the panel’s error on the res judicata issue, we agree with the State that Grossman is still not entitled to an evidentiary hearing on his ineffective assistance of counsel claim. Grossman expressly, and repeatedly, admitted the State’s allegations of his drug use that demonstrate violation of the terms of his probation. Accordingly, we conclude he would be unable to elicit evidence of sufficient reliability at an evidentiary hearing to overcome his numerous admissions and prove his counsel was unconstitutionally ineffective. See Sola-Morales, 300 Kan. at 889. (“ ‘Admissions against interest made by a party are the strongest kind of evidence and override other factors.’ ”) (quoting City of Wichita v. Sealpak Co., 279 Kan. 799, 802, 112 P.3d 125 [2005]).
So the district court properly denied Grossman’s 60-1507 motion after a preliminary hearing because there is no substantial issue for resolution at an evidentiary hearing. See Holmes, 292 Kan. at 274 (conclusory allegations do not justify evidentiary hearing). In other words, the motion, files, and records—specifically, the transcript from the probation revocation hearing—conclusively establish that Grossman is not entitled to relief. Accordingly, although the panel erred by applying res judicata, we affirm the denial of Grossman’s 60-1507 motion after the preliminary hearing. See State v. May, 293 Kan. 858, 869-70, 269 P.3d 1260 (2012) (lower court’s reason for ruling immaterial if ruling correct for any reason).
Affirmed.
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The opinion of the court was delivered by
Nuss, C.J.:
Santiago Sola-Morales filed a motion for postconviction relief under K.S.A. 60-1507, alleging his trial counsel was unconstitutionally ineffective. The district court denied his motion without conducting an evidentiary hearing, and the Court of Appeals affirmed. We granted his petition for review.
We hold the district court erred in denying the motion without conducting an evidentiary hearing. Accordingly, we reverse the decisions of the Court of Appeals and district court and remand to the district court for such a hearing.
Facts and Procedural History
In April 2005, the State charged Sola-Morales with second-degree murder. The charges arose from an incident in Wichita where Frank Sibat was fatally shot in his home. After his arrest, Sola-Morales admitted he was with Sibat that night and gave law enforcement officers several inconsistent accounts of Sibat’s death. Sola-Morales eventually told them he shot Sibat but maintained he had done so in self-defense. He ultimately pled not guilty.
Pro se motion to dismiss
After a May 6, 2005, preliminary hearing and arraignment, the district court initially set trial for June 27, but the case was continued. According to later statements made by Sola-Morales’ counsel appointed to represent him at the January 2010 hearing on his 1507 motion, Sola-Morales believed his trial was being delayed unreasonably and several times asked his trial counsel, “What’s going on? Why is this taking so long? I thought I had a right to speedy trial?” Per his 1507 counsel’s repeating Sola-Morales’ version, “His [trial] counsel says, . . . ‘the State keeps asking for continuances, and the Court keeps granting them.’ ” His 1507 counsel explained to the court that Sola-Morales therefore understood the State had asked for tiróse continuances. In Sola-Morales’ affidavit attached to his 1507 motion he swore, “That based upon my knowledge and belief, I state that my court appointed attorney told me that the continuances that were taken in my case were taken by the state.” According to his 1507 counsel, “So Mr. Sola-Morales files his own Motion to Dismiss the case, and says let’s get rid of this case because it’s not progressing appropriately.”
On February 21, 2006, Sola-Morales indeed had filed a pro se motion to dismiss—nearly 8 months after the initial trial setting. He alleged the State had violated his statutory speedy trial rights by failing to bring his case to trial within 90 days without cause.
In Sola-Morales’ motion, he specifically alleged he had been incarcerated for 313 days, and the State had requested three trial continuances. But in its March 2, 2006, response, the State contended defense counsel had requested six continuances and it had requested none. So it opposed dismissal on speedy trial grounds, arguing the delay should be charged to Sola-Morales. The response’s certificate of service shows a copy was sent to Sola-Mo-rales’ trial counsel. The record on appeal does not disclose a copy of the response was ever provided—from any source—to Sola-Mo-rales.
The district court scheduled a March 10, 2006, hearing on Sola-Morales’ pro se motion to dismiss. But at the 2010 hearing on Sola-Morales’ 1507 motion, his 1507 counsel and the prosecutor both agreed his trial counsel had withdrawn the motion. There is no record of a 2006 hearing about the motion. Nor is there an order or journal entry of disposition in the record on appeal. The only documentary evidence concerning the motion’s disposition is an entry on the district court’s record of action for activities occurring on March 10, 2006—and it states “withdrawn.”
According to Sola-Morales’ 1507 counsel at the 2010 hearing, his trial counsel’s continuances were obtained without his client’s knowledge. His 1507 counsel argued the withdrawal of Sola-Mo-rales’ motion to dismiss also was accomplished without Sola-Mo-rales’ knowledge, much less his consent. Indeed, Sola-Morales’ affidavit in support of his 1507 motion states that on the day scheduled for his hearing on his pro se motion to dismiss he was never taken to court for the hearing. Rather, he swears “my attorney told me that ‘the court dismissed my motion.’ ” In other words, he was not told the motion had been voluntarily withdrawn by his counsel.
Trial
Trial began 18 days after disposition of Sola-Morales’ pro se motion to dismiss: March 28, 2006. There, the State presented testimony from Pedro Medina. Pertinent to Sola-Morales’ issue in the current appeal, Medina testified he worked with Sola-Morales and Sola-Morales told him he had fought and killed a person. Medina testified generally about Sola-Morales’ description of the incident and that Sola-Morales was drunk at work the day after the incident. According to Medina, Vladimir Martinez was also present during part of this conversation. Although defense counsel subpoenaed Martinez, he never testified.
Before Sola-Morales’ case-in-chief, his counsel asked the district court to permit testimony from Stephen Peterson about the violent tendencies of the decedent Sibat. The court accepted the proffer that Peterson would testify about specific instances of Sibat’s prior violent conduct. During his proffer, defense counsel told the court he knew opinion and reputation testimony about Sibat’s propensity for violence was admissible. But emphasized he was particularly seeking admission of testimony about specific instances of violence.
During trial, the court ruled that Peterson’s anticipated testimony about specific instances of violence was inadmissible. Although the court implied it would admit opinion or reputation testimony about Sibat’s propensity for violence, it did not explicitly address that issue. Sola-Morales’ trial counsel never called Peterson as a witness to offer such testimony. According to Sola-Morales’ affidavit attached to his later 1507 motion, if Peterson were called as a witness he would have testified about Sibat’s reputation as being a “mean drunk” and his “reputation in the community for violence.”
Germane to the other issue on appeal, the district court ultimately instructed the jury on second-degree murder, voluntary manslaughter, and on the version of involuntary manslaughter requiring an unintentional killing during the commission of a lawful act in an unlawful manner. The jury convicted Sola-Morales of voluntary manslaughter, and the court sentenced him to 216 months’ imprisonment. The Court of Appeals affirmed on direct appeal, and we denied his petition for review. See State v. Sola-Morales, No. 97,011, 2008 WL 2510154 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 769 (2009).
Motion under K.S.A. 60-1507
Sola-Morales then filed the present pro se 1507 motion for post-conviction relief. Although the initial motion raised multiple issues, the only issue before this court is his allegation that his trial counsel was ineffective in violation of the Sixth Amendment to the United States Constitution. More specifically, Sola-Morales claims his counsel was ineffective in three distinct ways: (1) by failing to object to the allegedly incomplete involuntary manslaughter instruction, (2) by failing to adequately investigate and elicit essential trial testimony from Martinez and Peterson, and (3) by failing to be honest with Sola-Morales, e.g., about who had requested the pretrial continuances, which effectively denied his statutory right to a speedy trial.
As noted, the district court held a preliminary hearing on the 1507 motion in January 2010 where Sola-Morales was represented by different court-appointed counsel. But he did not appear personally, and no additional evidence was taken.
After oral argument, the court denied the motion, adopted the State’s response, and instructed the State to prepare a journal entry. That journal entry states Sola-Morales failed to show that deficient performance by his counsel caused him prejudice to support any of his three allegations of ineffective assistance of counsel. As for the speedy trial issue in particular, tire court ruled that trial continuances can be requested unilaterally by counsel, citing State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 (1994) (“[T]he decision of whether to move for a continuance ‘does not require a specific consultation between the attorney and client.’ ”).
Court of Appeals
A panel of the Court of Appeals affirmed the district court’s denial of 1507 relief. See Sola-Morales v. State, No. 104,388, 2011 WL 4440414 (Kan. App. 2011) (unpublished opinion). We granted Sola-Morales’ petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
More facts will be added as necessary to tire analysis.
Analysis
Issue: The distñct court erred by denying Sola-Morales’ K.S.A. 60-1507 motion without conducting an evidentiary hearing.
Sola-Morales argues the district court erred in failing to hold a full evidentiary hearing. The State responds the court correctly denied the motion after the preliminary hearing because, as the court’s journal entry stated, “the motion, files, and records conclusively show movant is not entitled to the relief requested.”
Standard of review
We have held that when considering a 60-1507 motion, a district court has three options:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from tire motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822-23, 295 P.3d 560 (2013).
Our standard of review depends upon which approach the district court used to dispose of the motion. When, as here, a court denies a 60-1507 motion based only on the motion, files, and records after a preliminary hearing, we are in as good a position as that court to consider the merits. So we exercise de novo review. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008) (citing Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 [2007]).
Discussion
We begin our review of Sola-Morales’ claims by acknowledging his burden. “A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an eviden-tiary basis in support of the claims or an evidentiary basis must appear in the record.” Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). Once a movant satisfies that burden, we are “required to grant a hearing, unless the motion is ‘second’ or ‘successive’ and seeks similar relief.” 292 Kan. at 274 (quoting Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010]). Because Sola-Morales’ 60-1507 motion is based on the purported ineffectiveness of his trial counsel, the substantive guarantees of effective counsel control whether he is entitled to an evidential hearing.
The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have tire Assistance of Counsel for his defence.” This right to counsel is applicable to state proceedings under the Fourteenth Amendment. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). This guarantee includes the right to more than the mere presence of counsel but also the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). We have acknowledged that “[t]he purpose of the effective assistance guarantee ‘is simply to ensure that criminal defendants receive a fair trial. ” State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at 689).
We have interpreted United States Supreme Court caselaw as distinguishing among three categories of ineffective assistance of counsel claims:
“The first category includes cases in which it is claimed that the attorney’s performance was so deficient that the defendant was denied a fair trial. The second category applies when the assistance of counsel was denied entirely or denied at a critical stage of the proceeding. The third category includes situations where the defendant’s attorney ‘actively represented conflicting interests.’ ” Galaviz, 296 Kan. at 181 (quoting Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 [2002]).
Claims of ineffective assistance of counsel for deficient performance under the first category are the “general rule” and controlled by Strickland. Galaviz, 296 Kan. at 181 (citing Mickens, 535 U.S. at 166). To prevail on such a claim, a criminal defendant must establish (1) tire performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007); see Strickland, 466 U.S. at 687.
The second category of claims falls under an exception to the general rule known as the Cronic exception. It applies only when a defendant is completely denied the assistance of counsel or denied counsel “at a critical stage of a proceeding.” Galaviz, 296 Kan. at 181 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984)]). Under these circumstances, a court may presume the defendant was prejudiced, i.e., he or she is “spared . . . the need of showing probable effect upon the outcome.” 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166); see State v. Stovall, 298 Kan. 362, 375, 312 P.3d 1271 (2013). The parties apparently concede, and we agree, the Cronic exception does not apply in this case.
The third category of claims involves attorney conflicts of interest. The right to counsel extends a duty of loyalty from counsel to the client so “[a] defendant in a criminal trial must have ‘ “representation that is free from conflicts of interest.’ ” [Citations omitted.]” State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). To prevail on such a claim, the defendant must first establish his or her attorney “ 'actively represented conflicting interests.’ ” Galaviz, 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166). Beyond this starting point, the type of alleged conflict dictates what the defendant must additionally establish to prevail. The United States Supreme Court has recognized three subcategories of conflict of interest claims: (1) the automatic reversal exception, (2) the adverse effect exception, and (3) what we have labeled the “Mickens reservation.” See 296 Kan. at 181-85 (discussing the three Mickens subcategories).
The first subcategory of conflict of interest claims, i.e., the automatic reversal exception, is relevant only in cases of “multiple concurrent representation,” which is when defense counsel “is simultaneously representing codefendants with antagonistic interests in the same proceeding.” Stovall, 298 Kan. at 376 (citing Galaviz, 296 Kan. at 183). This exception additionally requires an objection to the representations before or during the proceedings and also a failure of the district court to inquire and determine there is no conflict. Galaviz, 296 Kan. at 183. Under this exception, as with the Cronic exception, reversal is automatic—unless the district court determines there is no conflict of interest. 296 Kan. at 183; see State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004).
While the second subcategoiy, i.e., the adverse effect exception, also requires an attorney conflict of interest through concurrent representation of codefendants, it is dissimilar from the automatic reversal exception because it arises when no objection to the conflict is lodged before or during the proceedings. Stovall, 298 Kan. at 376 (citing Galaviz, 296 Kan. at 183). And under this particular exception, “ ‘a defendant must demonstrate that “a conflict of interest actually affected the adequacy of his representation.” ’ ” (Emphasis added.) Galaviz, 296 Kan. at 183 (citing Mickens, 535 U.S. at 168); see Gleason, 277 Kan. at 650. This standard is lower than Strickland’s, which imposes a burden on defendant to show actual prejudice by tire attorneys performance, i.e., “probable effect upon the outcome of the trial.” 296 Kan. at 184 (citing Mickens, 535 U.S. at 174).
The third subcategory, i.e., the Mickens reservation, is relevant where a conflict is “ Tooted in counsel’s obligations to former clients’ ” or “ ‘counsel’s personal or financial interests.’ ” Galaviz, 296 Kan. at 184 (quoting Mickens, 535 U.S. at 174). We have referred to this subcategory as the Mickens reservation because the Supreme Court did not articulate what additional burden, e.g., prejudice or adverse effect, a defendant must satisfy before receiving relief based on such conflicts of interest. Mickens, 535 U.S. at 176; 296 Kan. at 184-86; see State v. Cheatham, 296 Kan. 417, 449-50, 292 P.3d 318 (2013).
Against this backdrop, we now address the three distinct instances of ineffective counsel alleged by Sola-Morales.
(1) Failure to object to the involuntary manslaughter instruction
Sola-Morales first argues his trial counsel was unconstitutionally ineffective because counsel failed to object to the district court’s alleged erroneous involuntary manslaughter instruction. Sola-Mo-rales’ contention falls in the deficient performance category, and therefore, we analyze it under Strickland. See, e.g., Gleason, 277 Kan. at 643-49 (allegation of deficient trial performance due to failure to object analyzed under Strickland). So to eventually prevail on his motion, Sola-Morales must establish (1) his trial counsel’s failure to object to the instruction constitutes deficient performance under the totality of the circumstances, and (2) prejudice, i.e., there is a reasonable probability the jury would have reached a different result absent the deficient performance. Bledsoe, 283 Kan. at 90.
This means that to warrant an evidentiary hearing so Sola-Mo-rales has an opportunity to meet this standard, he must first state some evidentiary basis in support of his motion or an evidentiary basis must appear in the record. Holmes, 292 Kan. at 274. But no evidentiary hearing is warranted if the court can conclusively determine from the motion, files, and records that he is not entitled to relief.
Specifically, Sola-Morales contends his counsel should have objected to the deletion of the reckless alternative in the proposed involuntary manslaughter instruction. The State responds that the Court of Appeals correctly held that he was not prejudiced by the lack of this variant on the given instruction because the jury never would have considered it, i.e., it “never came into play.” Sola-Morales, 2011 WL 4440414, at *2.
Sola-Morales’ trial counsel submitted a proposed jury instruction for involuntary manslaughter providing the jury could find Sola-Morales guilty of that offense only if the State proved he unintentionally killed the victim (1) recklessly or (2) during the commission of a lawful act in an unlawful manner. The district court suggested the trial evidence did not support an instruction involving recklessness. Defense counsel agreed, and the court gave the following involuntary manslaughter instruction without the reckless alternative:
“If you do not agree that tire defendant is guilty of murder in die second degree or voluntary manslaughter, you should then consider the lesser included offense of involuntary manslaughter.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant unintentionally killed Frank F. Sibat;
“2. That it was done during the commission of a laioful act in an unlawful manner, and
“3. That this act occurred on or about tire 30th day of March, 2005, in Sedgwick County, Kansas.” (Emphasis added.)
The State focuses its argument on the second prong of the Strickland test, i.e., there is no prejudice caused by trial counsel’s deficiencies. We will focus there also. See Edgar v. State, 294 Kan. 828, 843, 283 P.3d 152 (2012) (citing Strickland, 466 U.S. at 697) (court may first consider prejudice prong of ineffective assistance of counsel inquiry).
The given instruction begins with a transitional statement that offers an orderly method by which the jury can consider possible verdicts. See State v. Lawrence, 281 Kan. 1081, 1091, 135 P.3d 1211 (2006). That provision instructed the jury to consider involuntary manslaughter only if it did not agree the defendant is guilty of second-degree murder or voluntary manslaughter. The jury found Sola-Morales guilty of voluntary manslaughter, meaning it never considered the allegedly incomplete instruction for the lesser offense of involuntary manslaughter. See State v. Tague, 296 Kan. 993, 1008, 298 P.3d 273 (2013) (jury presumed to follow instructions). So Sola-Morales could not have suffered prejudice from his counsel’s failure to object to the lesser offense instruction given to the jury.
Sola-Morales claims this conclusion does not end our inquiry because the jury should be permitted to consider all of the instructions together. But that argument is contrary to our well-established precedent regarding transitional statements in juiy instructions. See State v. Adams, 292 Kan. 60, 75-78, 253 P.3d 5 (2011) (approving transitional statements). Sola-Morales has given us no reason to revisit the use of transitional statements, and we decline to do so.
In short, there is no need for an evidentiary hearing to develop new facts because we can conclusively determine from the motion, files, and records—and arguments of counsel at the 1507 preliminary hearing—that Sola-Morales is not entitled to relief. So we affirm the district court’s denial of his motion without an eviden-tiary hearing on this issue.
(2) Failure to conduct an adequate pretrial investigation and elicit essential testimony
Sola-Morales next argues his trial counsel was unconstitutionally ineffective for failing to elicit (1) testimony from Martinez to impeach Medina, and (2) opinion or reputation testimony from Peterson regarding decedent Sibaf s violent tendencies. Sola-Morales claims this ineffectiveness resulted from his counsel’s failure to adequately investigate and interview both witnesses before trial. The State responds these omissions represent counsel’s strategic decisions, which are virtually unassailable.
This issue fits under the deficient performance category and also must be analyzed under Strickland, requiring a defendant to show deficient performance and resultant prejudice. See, e.g., Gleason, 277 Kan. at 643-49 (allegation of failure to prepare for trial analyzed under Strickland). As with the involuntary manslaughter instruction previously analyzed, no evidentiary hearing is warranted if the court, from the motion, files, and records, can conclusively determine Sola-Morales is not entitled to relief.
Turning first to the State’s argument, the State is correct that generally“[i]t is within the province of a lawyer to decide what witnesses to call, whether and how to conduct cross-examination, and other strategic and tactical decisions.” Thompson v. State, 293 Kan. 704, 716, 270 P.3d 1089 (2011) (citing State v. Ward, 227 Kan. 663, Syl. ¶ 1, 608 P.2d 1351 [1980]); see also Strickland, 466 U.S. at 690-91 (“[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.”).
But “ ‘[m]ere invocation of the word “strategy” does not insulate the performance of a criminal defendant’s lawyer from constitutional criticism,’ especially when counsel lacks the information to make an informed decision due to inadequacies of his or her investigation.’ ” State v. Gonzales, 289 Kan. 351, 358, 212 P.3d 215 (2009) (quoting Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 [2008]). So where counsel lacks the information to make an appropriate decision on these matters due to lack of investigation, “ ‘any argument of “trial strategy” is inappropriate.’ ” Thompson, 293 Kan. at 716 (quoting Mullins v. State, 30 Kan. App. 2d 711, 716-17, 46 P.3d 1222 [2002]). Consistent with Strickland’s burden on a defendant to establish deficient performance, the defendant bears the burden of demonstrating that trial counsel’s alleged deficiencies were not the result of strategy. Gleason, 277 Kan. at 644 (citing Ferguson v. State, 276 Kan. 428, 446, 78 P.3d 40 [2003]).
Although the State emphasizes our generally deferential review of strategic decisions after a thorough investigation, Sola-Morales argues his counsel’s decisions were deficient precisely because of a failure to adequately investigate. And Sola-Morales specifically contends this deficient performance claim cannot be adequately analyzed without an evidentiary hearing.
Regarding Sola-Morales’ claim his counsel failed to interview Martinez or call him to testify, both lower courts concluded Sola-Morales did not show how this failure caused prejudice. As to Peterson, the Court of Appeals concluded the failure to elicit his testimony was insufficient to undermine the trial’s fundamental fairness. So it affirmed the district court’s rejection of Sola-Morales’ argument about Peterson’s testimony even though that court had relied on an erroneous rationale, i.e., that the issue had already been decided on direct appeal. Sola-Morales, 2011 WL 4440414, at *3-4 (citing State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 [2008]).
Because both lower courts essentially relied on the lack of prejudice under Strickland to deny Sola-Morales’ claim, we will again first address this “second prong.” See Edgar, 294 Kan. at 843. At trial, Sola-Morales relied on a theory of self-defense, with his counsel conceding a shot fired by Sola-Morales killed Sibat. Given this admission, it is particularly important for defense counsel to present evidence, if any, to justify the defendant’s actions. See State v. King, 293 Kan. 1057, 1063, 274 P.3d 599 (2012) (evidence integral to defendant’s theory of self-defense essential for a fair trial).
According to Sola-Morales, Martinez—the father of Sola-Mo-rales’ common law wife—would have testified that Medina had never spoken to Sola-Morales. Accordingly, Martinez would have refuted Medina’s testimony that Sola-Morales was drunk at work the day after the incident, and they had a short conversation. Mar tinez additionally would have refuted that Medina was also present during part of this conversation and that Sola-Morales said he had fought and killed a person.
Sola-Morales argues Martinez’ testimony would have cast doubt on Medina’s testimony. But after reviewing the evidence, including that cited by the lower courts, we agree with them that Sola-Mar-tinez could not show sufficient prejudice under Strickland to establish a reasonable probability the jury would have reached a different result had Martinez so testified.
Medina’s testimony was consistent with the story Sola-Morales himself provided during a police interview. Sola-Morales did not testily or otherwise ever recant this information or suggest it was inaccurate. To the contrary, his theory was self-defense, and thus he admitted he and Sibat had been in a fight that resulted in Sibat’s death. In his police statement Sola-Morales admitted, and his counsel later conceded at trial, that Sola-Morales had fired the fatal shot. At best, Martinez simply would have eliminated Medina’s corroboration of these important admissions already made by the defense. Cf. City of Wichita v. Sealpak Co., Inc., 279 Kan. 799, 802, 112 P.3d 125 (2005) (“ ‘Admissions against interest made by a party are the strongest kind of evidence and override other factors.’ ”). Accordingly, any alleged trial counsel failures to have Martinez testily would not undermine the essential fairness of the trial. See Strickland, 466 U.S. at 689.
As for Peterson’s testimony, although as proffered it was rejected as providing specific instances of Sibat’s prior violence, the court did not deny that Peterson could testify to Sibat’s violent reputation. The Court of Appeals held defense counsel’s failure to call Peterson to so testify did not meet Strickland’s prejudice prong because tire trial evidence showing “the victim was unarmed; he was badly beaten; and he was then fatally shot” was “wholly inconsistent with a claim of self-defense.” Sola-Morales, 2011 WL 4440414, at *4.
These specific facts must be considered with other facts in the record, however. For example, Medina and another witness testified that Sola-Morales’ face was scratched the next day. Additionally, the responding officer testified that he saw a lamp on the floor with its shade smashed, a large aquarium near Sibat’s body was off-balance with some water spilled out, and the scene was consistent with a scuffle. Finally, a crime scene investigator testified a coffee table was skewed or dislocated.
Moreover, according to the testimony of a police investigator, Sola-Morales eventually told police that when he tried to leave Sibat’s house, Sibat pulled a gun on him and they were wrestling over the gun when it went off. The gun was never located, and nothing in the record indicates the owner of the gun.
Unlike the panel, from this record we cannot hold that “[w]hatever limited weight reputation evidence about the victim might have had, it would not have changed the essential nature of that evidence^ e.g., the bad beating,] or the jury’s verdict based upon that evidence.” Sola-Morales, 2011 WL 4440414, at ”4. Simply put, too much of this evidence could just as well support Sibat as the aggressor, at least initially, which would support Sola-Mo-rales’ claim of self-defense. See State v. Jordan, 250 Kan. 180, 184, 825 P.2d 157 (1992) (defendant entitled to raise self-defense where there is evidence of physical aggression on part of victim).
In short, at this stage, we are not satisfied the motion, files, and records conclusively show Peterson’s testimony would not have changed the jury’s verdict. See Strickland, 466 U.S. at 687 (defendant must establish there is a reasonable probability the jury would have reached a different result absent the deficient performance). Consequently, an evidentiaiy hearing is necessary so the district court can inquire more particularly about the content of Peterson’s anticipated testimony and consider whether it would have caused the jury to reach a different verdict.
Because the evidentiaiy hearing may uncover Strickland-deimed prejudice to Sola-Morales due to the content of Peterson’s testimony, the district court may also need to determine in that hearing whether counsel’s performance was deficient under Strickland’s first prong. Both lower courts decided Sola-Morales is not entitled to relief without hearing any evidence about the adequacy of his counsel’s pretrial investigation—a potentially crucial factor in analyzing whether his claims merit relief. See Holmes, 292 Kan. at 281 (nothing in record to indicate videotape and transcript’s ab sence from record on appeal was due to appellate counsel’s strategy or instead due to his error; “[l]ack of strategic choice is a further step for Holmes to make in establishing his ineffective assistance of appellate counsel claim”).
Accordingly, we reverse the district court and Court of Appeals and remand to the district court for an evidentiaiy hearing regarding the content of Peterson’s anticipated testimony about Sibat’s reputation for violence and potentially the alleged failure of Sola-Morales’ trial counsel to adequately investigate and pursue this issue.
Although already remanding the case to the district court on the Peterson issue, we address Sola-Morales’ remaining claim of ineffective assistance of counsel should it have any merit and need to be the subject of the evidentiary hearing as well.
(3) Failure to be honest with Sola-Morales about continuances
For Sola-Morales’ last contention, he basically argues his trial counsel was unconstitutionally ineffective because counsel was dishonest with him. For example, Sola-Morales contends his counsel requested and received numerous trial continuances without consulting him. He alleges counsel then falsely told him the State caused the pretrial delay, leading Sola-Morales to file a pro se motion to dismiss the criminal charges on speedy trial grounds.
At oral argument before this court, Sola-Morales’ court-appointed appellate counsel clarified his contention. Specifically, trial counsel’s conduct demonstrated a conflict of interest that caused a breakdown in the attorney-client relationship, effectively relieving Sola-Morales of his Strickland burden to prove deficient performance caused him prejudice.
The State argues that although the lower courts expressed some concern about the delay before trial, they properly concluded this particular allegation fails to justify an evidentiaiy hearing under Strickland’s test. The State specifically contends that, even accepting Sola-Morales’ allegations as true, he is unable to show the requisite prejudice under the second prong. But the State does not directly address Sola-Morales’ arguments under his clarified conflict of interest theory.
Despite Sola-Morales’ assertion that the unilateral pretrial continuances and alleged dishonesty of his trial counsel involved a conflict of interest, he failed to specify the precise conflict of interest subcategory he relies on for this claim. But because there is no evidence of concurrent multiple representations of clients, by default his allegations necessarily constitute a claim of ineffective assistance of counsel under the Mickens reservation. In other words, he argues a claim of a conflict “ ‘rooted in . . . “counsel’s personal or financial interests.” ’ [Citations omitted.]” State v. Bowen, 299 Kan. at 347.
At the outset of our analysis, it is helpful to examine Sola-Mo-rales’ specific contentions as stated in his petition for review granted by this court:
“Mr. Sola-Morales stated he was told by trial counsel that the State had taken the continuances in his case. The district court found that defense counsel had the right to get continuances without the permission of the defendant and that the defendant failed to show how he was prejudiced by tire delay. This finding by the court, again, totally misses the point of the argument. Mr. Sola-Morales relied on his attorney for information. According to Mr. Sola-Morales, his counsel gave him false information; information upon which Mr. Sola-Morales relied in filing his motion to dismiss. An evidentiaiy hearing was necessary to discern whether or not counsel lied to Mr. Sola-Morales regarding the many delays in his case. If counsel was untruthful ioith Mr. Sola-Morales, then the entire case and defense presented on Mr. Sola-Morales’ behalf by counsel comes into question. ” (Emphasis added.)
The petition for review argues the panel’s similar holding also “missed the point.” It continues:
“[A]s noted above, the issue was whether or not counsel was being trudiful with Mr. Sola-Morales. Mr. Sola-Morales believed that his speedy trial time had run because counsel had told him that the State had taken die continuances. If trial counsel was lying to Mr. Sola-Morales, then Mr. Sola-Morales was prejudiced by ha.vmg counsel engaged who 'was not representing Mr. Sola-Morales’ best interests and was preventing Mr. Sola-Morales from participating in his own defense.” (Emphasis added.)
It is unclear what facts were known to any one person in the spring of 2006 around the time Sola-Morales’ motion to dismiss was on file. So we begin by establishing what was known to the court at the January 2010 hearing on Sola-Morales’ pro se 1507 motion.
There, Sola-Morales’ 1507 counsel informed the court that trial counsel had responded to his chent’s speedy trial complaints with a he. Specifically, the repeated trial continuances keeping him in jail for more tiran 300 days were at the State’s request. Sola-Mo-rales rehed upon the lie by using it as his factual basis to support his pro se motion to dismiss the charges on speedy trial grounds. His 1507 counsel also informed the court that Sola-Morales obviously had never been consulted about, nor given consent to, his trial counsel requesting continuances. Sola-Morales’ affidavit attached to his 1507 motion—the subject of tire entire court hearing—essentially corroborated this information. He swore, “That based upon my knowledge and belief. . . my court appointed attorney told me that die continuances that were taken in my case were taken by the state.”
Additionally, Sola-Morales’ 1507 counsel and the prosecutor both told the court that his trial counsel had withdrawn Sola-Mo-rales’ pro se motion—apparendy soon after receiving die State’s response blaming him for the trial continuances. The district court’s 2006 record of action, also available to the 2010 court, appeared to confirm counsel’s withdrawal of the motion with its entxy of March 10 simply showing that the motion was “withdrawn.”
Moreover, his 1507 counsel informed the court that this withdrawal by trial counsel of Sola-Morales’ own motion to dismiss, like counsel’s requests for trial continuances, also had been done without Sola-Morales’ knowledge or consent. Indeed, Sola-Morales’ affidavit not only supports this accusation but also essentially attributes a second he to his trial counsel. Specifically, Sola-Morales swore his counsel told him the “court dismissed my [pro se] motion,” i.e., he was not told the motion had been voluntarily withdrawn by his counsel.
Given these facts made available to die district court, we turn to what more, if anything, the court could have done witii them. Sola-Morales essentially contends the court was presented with a breach of the duty of loyalty that trial counsel owed to him as client. We observe the Strickland court held: “Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes a duty of loyalty, a duty to avoid conflicts of interest.” Strickland, 466 U.S. at 688; accord Bowen, 299 Kan at 342 (“The right [to counsel] extends a duty of loyalty [from counsel] to the client.”). Indeed, the Strickland Court described the duty of loyalty as “perhaps the most basic of counsel’s duties.” 466 U.S. at 692.
As we recently affirmed, “[a] district court’s duty to inquire into a potential attorney-client conflict emanates from its responsibility to assure that a defendant’s constitutional right to effective assistance of counsel is honored.” State v. Brown, 300 Kan. 577, 331 P.3d 797, 808 (2014). Furthermore, “[t]he duty to inquire accrues when the court first learns of the 'potential conflict.” (Emphasis added.) 331 P.3d at 808. So we now proceed to determine if the 1507 court’s duty to inquire was triggered, e.g., by the allegations of Sola-Morales’ trial counsel’s lying to his client and allegations of his counsel’s unilateral trial continuances and unilateral withdrawal of his client’s pro se motion to dismiss.
We begin by recognizing this court has held it is unethical for an attorney to lie to his or her client—or to the court and opposing counsel. See In Re Gershater, 256 Kan. 512, 517, 886 P.2d 343 (1994). In concluding the attorney deserved discipline for lying to her client, the Gershater court relied upon Kansas Rules of Professional Conduct (KRPC) Rule 8.4(c) (2013 Kan. Ct. R. Annot. 655), which prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and KRPC 8.4(d), which prohibits engaging in conduct that is prejudicial to tire administration of justice. While an ethical violation does not automatically constitute grounds for an attorney’s deficient performance or conflict of interest, the United States Supreme Court has held it may be considered in the calculus. Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (quoting Strickland, 466 U.S. at 688) (“Strickland mandates that ‘[prevailing norms of practice as reflected in American Bar Association Standards and the like, . . . are guides to determining what is reasonable, but they are only guides.’ ”).
This information made available to the district court in 2010 also appears to raise other ethical considerations affecting the attorney-client relationship. Specifically, if the pro se motion to dismiss was based upon a lie that trial counsel told Sola-Morales, counsel may have faced divided loyalties once he learned of tire motion’s existence and its contents. In other words, he could either admit to the court and tire prosecution that his lie to his client was the foundation for the motion, or he could simply withdraw the motion before his involvement in the he could be discovered by them.
Toward that end, we have held “[t]he Kansas Rules of Professional Conduct prohibit a conflict of interest, precluding a lawyer from representing a client, where the representation may he materially limited by the lawyers own interests. KRPC Rule 1.7(b) (2005 Kan. Ct. R. Annot. 407).” (Emphasis added.) State v. McGee, 280 Kan. 890, 896, 126 P.3d 1110 (2006); see also KRPC 1.7(b), Cmt. 10 (2013 Kan. Ct. R. Annot. 519) (“The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.”).
In an analogous situation to the instant case, the McGee court analyzed defendant’s pro se motion for new trial counsel, alleging a conflict of interest. After reviewing the transcript of the hearing where both McGee and his counsel testified and citing KRPC 1.7(b), we ruled the disputed facts did not rise to the level of a conflict of interest which would meet the requirement of “justifiable dissatisfaction” with counsel to warrant appointment of new counsel. Trial counsel’s contradiction of McGee’s “facts did not compromise any confidential information, concede McGee’s guilt, or establish that McGee’s counsel had any interest that materially limited his representation of McGee.” (Emphasis added.) 280 Kan. at 896. Here, of course, neither Sola-Morales nor his trial counsel were allowed to testily at the nonevidentiary hearing on the 1507 motion. This testimony might have aided the court had it analyzed the facts for a conflict of interest and then needed to determine whether counsel’s representation of his client was limited by his own interest.
Trial counsel’s withdrawal of Sola-Morales’ motion to dismiss— allegedly without his client’s knowledge or consent—may also suggest a chosen path of self-interest when faced with divided loyalties: Tell the client the truth, or hide the truth by withdrawal of the client’s motion that is based upon counsel’s lie. The same suggestion of self-interest arguably can be made about counsel’s alleged decision to tell Sola-Morales the court essentially was to blame by “dismissing” the motion. A court dismissal implies the issue of denial of speedy trial rights was irrevocably closed. His purported second lie further reduces the chances that an ethics complaint or a motion for substitute counsel per McGee will be filed for his alleged first lie. In short, counsel may have sought to avoid disclosure of his purported lie by more lies—placing his own interests over his client’s.
The rationale underlying KRPC 1.7 discussed in McGee is well-illustrated in a case cited by this court in State v. Cheatham, 296 Kan. 417, 292 P.3d 318 (2013), where we stated: “ ‘An actual conflict of interest exists if “the defense attorney was required to make a choice advancing his own interests to the detriment of his client’s interests.” ’ ” 296 Kan. at 452 (quoting Stoia v. United States, 22 F.3d 766, 771 [7th Cir. 1994]).
Stoia contains some parallels to the instant case. There, the defendant filed a habeas petition alleging he was denied effective assistance of counsel because one of his defense attorneys had been burdened by an actual conflict of interest. The Seventh Circuit relied upon its caselaw providing that a conflict existed “where there is a danger that the defense attorney would ineffectively represent his client because of fear that authorities might become aware of the attorney’s own misconduct if he undertook effective representation.” Stoia, 22 F.3d at 771 (citing United States v. Balzano, 916 F.2d 1273, 1293 [7th Cir. 1990]).
The Stoia court also relied upon Solina v. United States, 709 F.2d 160, 164 (2d Cir. 1983) (conflict of interest when an attorney was in a position where he was required to choose between his own interest in not being discovered as an unlicensed lawyer and the defendant’s interest in receiving a vigorous defense), and United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984) (conflict of interest when attorney allegedly had engaged in criminal conduct related to that for which the defendant client was standing trial).
The Seventh Circuit in Stoia held that if the defense attorney had reason to be concerned that the United States’ attorney would learn counsel was representing criminal defendants like Stoia in violation of his plea agreement with that prosecutor, he “would undoubtedly have an actual conflict of interest.” Stoia, 22 F.3d at 772. The court analogized his situation to the attorneys in Solina and Cancilla: Conduct an unimpeded defense of Stoia and run the risk that the authorities would discover his apparent plea agreement violation or sacrifice Stoia’s defense in hopes that his conduct would remain secret. “If such a scenario existed, the danger created would be unacceptable and amount to an actual conflict of interest.” 22 F.3d at 772.
Defendant Stoia submitted affidavits from his three other defense attorneys, who described the subject attorney as calling the shots—and who failed to interview certain witnesses and failed to appear in court. The Stoia court held a possibility existed that Stoia’s Sixth Amendment rights were violated and an evidentiary hearing was warranted.
Given these facts and considerations, we conclude the district court erred at the 1507 hearing in not inquiring about the conflict of interest issue. See Brown, 331 P.3d at 808 (“duty to inquire accrues when the court first learns of the potential conflict”). Instead of addressing this issue, that court and the Court of Appeals focused on Sola-Morales’ failure to show counsel’s alleged deficient performance caused prejudice under Strickland.
Both courts held that under State v. Bafford, 255 Kan. 888, 879 P.2d 613 (1994), Sola-Morales’ counsel’s unilateral trial continuances were acceptable and therefore caused no prejudice to his client. 255 Kan. at 895 (“The decision of whether a motion for a continuance should be filed does not require a specific consultation between the attorney and client. . . . Counsel was not required to obtain Bafford’s permission prior to moving for a continuance.”) (citing State v. Ward, 227 Kan. 663, 667, 608 P.2d 1351 [1980]). In Ward, the court rejected defendant’s claim he was denied speedy trial rights because, among other things, he had objected to continuances requested by one of his attorneys.
The lower courts’ focus is misplaced. The district court in 2010 considering Sola-Morales’ 1507 motion should have not only reviewed the available facts for a conflict of interest analysis. But it should also have considered the state of the law as of March 2006 in its basic calculus. Had it included that consideration, it would have learned Bafford was not dispositive. In 2000, 6 years after Bajford, this court released State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000). Two years later in 2002 the Court of Appeals released State v. Arrocha, 30 Kan. App. 2d 120, 39 P.3d 101, rev. denied 273 Kan. 1037 (2002).
In Hines, defense counsel requested a continuance of the trial scheduled for 3 days later because his grandmother had died the day before. The State did not object, but the defendant “strenuously objected” to any continuance and requested the trial proceed as scheduled, even if he had to represent himself. 269 Kan. at 700. After the judge continued the trial beyond the statutoiy speedy trial date to protect Hines’ right to effective assistance of counsel, another judge later dismissed all charges for violation of Hines’ speedy trial rights. We affirmed the dismissal, holding the continuance would not be counted against defendant.
In Arrocha, the Court of Appeals interpreted Hines, holding “[it] appears to represent a unique exception for circumstances when defense counsel and the defendant openly disagree about setting a trial date beyond the statutory time limit. Generally . . . defense counsel’s actions or statements that result in delay bind tire defendant.” (Emphasis added.) Arrocha, 30 Kan. App. 2d at 126. The panel concluded if “the defendant and defense counsel disagree as in Hines, the State must beware.” 30 Kan. App. 2d at 127. But tire Arrocha panel reversed its trial court’s dismissal of charges on speedy trial grounds because “Arrocha was bound by his counsel’s action when he failed to speak out against it.” (Emphasis added.) 30 Kan. App. 2d at 127.
Here, because of trial counsel’s alleged conduct, Sola-Morales appeared to have lost any opportunity to timely and “strenuously object” to continuances his counsel proposed and later received. See Hines, 269 Kan. at 700. Sola-Morales also appeared to have lost any opportunity to “speak out against” the continuances, e.g., to advise the court of his opposition. See Arrocha, 30 Kan. App. 2d at 127. So he arguably may also have lost any opportunity to avail himself of tire arguments, rationale, and holding in Hines, as corroborated in Arrocha. As Sola-Morales argues in his petition for review, counsel’s lies—and other questionable conduct—seemingly prevented him from participating in his own defense.
These apparent losses are sufficient to warrant remand for an evidentiary hearing on the full consequences of trial counsel’s reputed conflict of interest. We acknowledge that on remand the district court must first determine whether a conflict exists before moving to this next analytical step. See, e.g., Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) (“But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.”).
But if Sola-Morales can make this conflict showing, the district court must then determine the level of any harm caused by the conflict. After opportunity for the parties to brief and argue the issue, we leave it to the district court to determine which test is applicable in this Mickens reservation analysis: The standards of Cuyler (adverse effect on counsel’s representation) or Strickland (prejudice, i.e., a reasonable probability the jury would have reached a different result absent tire deficient performance). See, e.g., Cheatham, 296 Kan. at 450 (applying adverse effect test where defendant alleged unwritten fee agreement demonstrated defense counsel’s personal or business interests were contrary to client’s, because the State did not argue any other test applied and because defendant benefitted from the lower standard).
In conclusion, the motion, files, and records fail to conclusively show Sola-Morales is not entitled to relief. Fischer, 296 Kan. 808, 822, 295 P.3d 560 (2013). Consequently, we reverse the Court of Appeals and district court and remand for an evidentiary hearing on Sola-Morales’ allegations concerning not only trial counsel’s performance regarding Peterson but also concerning the trial continuances and counsel’s alleged dishonesty about the delay.
Our holding should not be misconstrued as a determination that an attorney s conflict of interest exists or that reversible harm has been caused by any such conflict. We are merely stating that the facts presently in the record are not determinative—one way or the other—of either issue.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded to the district court for an evidentiary hearing.
Biles, J. and Moritz, J., not participating. | [
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In a letter dated August 26, 2014, addressed to the Clerk of the Appellate Courts, respondent Richard Dean Dinkel, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2013 Kan. Ct. R. Annot. 396).
At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2013 Kan. Ct. R. Annot. 375). The hearing panel found by clear and convincing evidence that the respondent violated Rule 8.1(b) (2013 Kan. Ct. R. Annot. 646) of the Kansas Rules of Professional Conduct when he failed to respond to information from a disciplinary authority; Rule 8.4(b) (2013 Kan. Ct. R. Annot. 655) when he was convicted of two felonies and two misdemeanors involving dishonesty, trustworthiness, or fitness; Rule 8.4(c) when he engaged in conduct involving dishonesty; and Rule 211(b) (2013 Kan. Ct. R. Annot. 356) by failing to file an answer to the formal complaint.
This court, having examined the files of the office of tire Disciplinary Administrator, finds the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Richard Dean Dinkel be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Richard Dean Dinkel from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that the Clerk of the Appellate Courts remove the case of Richard Dean Dinkel from the September 12, 2014, docket.
Dated this 3rd day of September, 2014.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with the provisions of Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406). | [
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The opinion of the court was delivered by
Luckert, J.:
In State v. Alexander, 268 Kan. 610, 1 P.3d 875 (2000), this court held that a defense of dwelling juiy instruction should not be given in a trial where the person defending a dwelling is the alleged victim rather than a defendant. We reexamine that holding in this appeal and conclude the defense of dwelling instruction should be given when necessary to fully inform the jury regarding the legal principles that govern the case, even if it is the alleged victim who defended his or her dwelling, radier than the defendant. In this case, the trial judge gave the pattern instructions regarding defense of a dwelling and defense of self, and we conclude this was not error under the facts of this case.
In addition to giving the pattern instructions, the trial judge inserted a sentence in the defense of dwelling instruction that told the jury self-defense is not available to someone who is being forced out of a dwelling by an individual who is lawfully defending tire dwelling. This addition to the pattern instructions misstated the law because the two defenses are not mutually exclusive; self-defense is still available if a person reasonably believes another’s use of force is unlawful. Nevertheless, we conclude this erroneous addition to the pattern instruction was harmless, and we affirm James R. Andrew’s convictions.
Facts and Procedural Background
The parties agree that the Court of Appeals’ decision fairly and adequately summarized the facts in this case, stating:
“On die evening of January 25, 2008, Andrew’s son arrived home to find his fatiier lying face down on dre floor at the bottom of the stairs. Andrew was unconscious and bloody, and the house was in disarray. According to the son, it ‘land of looked like someone was going through, maybe to try and find somedring.’ The son called 911, and the police spoke with both Andrew and his son.
“After dre police left Andrew’s house, the son went to a neighboring house where [Mitchell] Garlach and A.J. Brewer lived. Although Brewer was not home at the tíme, Garlach was diere with some of his friends. Before leaving Andrew’s house, die son told Andrew where he was going and told him not to follow. However, about 20 minutes later, Andrew entered Garlach and Brewer’s house without knocking.
“Garlach testified diat he did not know Andrew and confronted him when he came into die house. According to Garlach, he asked Andrew who he was and told him to get out of his house. Andrew, who Garlach testified appeared to be extremely drunk, said that he was looking for his son or Brewer. Garlach testified that Andrew asked him if he wanted to ‘get stuck’ and pulled a kitchen knife out of his pocket. Garlach claimed diat he did not have any type of weapon displayed prior to Andrew pulling out die knife.
“Andrew’s son, however, recalled the events somewhat differently. He testified that Garlach got angry when Andrew came into the house, drat Garlach pulled a billy club out of his pocket, and that he started ‘talking smack.’ According to the son, when Garlach and some of his friends started to close in, Andrew pulled the kitchen knife out of his pocket. The son, who was standing between Garlach and Andrew, called 911. It appears, however, that the son did not mention the billy club during the 911 call or in his written statement to tire police.
“Andrew was subsequently charged with two counts of aggravated assault—one against his son and one against Garlach. The charge against Andrew for assaulting his son was dismissed at trial for insufficient evidence.” State v. Andrew, No. 104,666, 2011 WL 6942933, at *1 (Kan. App. 2011) (unpublished opinion).
Andrew did not testify at trial. Instead, he relied on evidence of the circumstances, as primarily established through his son’s testimony, to assert that he acted in self-defense. The trial judge accepted Andrew’s argument and, during the juiy instruction conference, proposed using the pattern instruction regarding self-defense, PIK Crim. 4th 52.200 (Use of Force in Defense of a Person). The judge also proposed using PIK Crim. 4th 52.210 (Use of Force in Defense of a Dwelling, Place of Work, or Occupied Vehicle).
As adapted to this case, the proposed self-defense instruction explained Andrew’s claim that he reasonably believed force was necessary to defend himself against Mitchell Garlach’s imminent use of unlawful force. In the defense of dwelling instruction, the trial judge proposed instructing that a person “is permitted to use force to the extent that it appears to him and he reasonably believes such force is necessary to prevent another person from unlawfully remaining in his dwelling.” Both proposed instructions explained that “ [reasonable belief requires both a belief by the person and the existence of facts that would persuade a reasonable person to that belief.” In addition, both proposed instructions indicated that someone acting in lawful self-defense or in defense of another person is not required to retreat.
All of these statements were consistent with tire pattern juiy instructions. But the trial judge proposed the following language be added to the defense of dwelling instruction: “When acting within this permitted use of force, self-defense is not available to the person being forced out.”
Andrew objected to the proposed defense of dwelling jury instruction, arguing it was not factually appropriate because Andrew was not in Garlach’s house unlawfully. Although Andrew had not testified, he proffered evidence of what his testimony would have been if he had known that the judge was going to instruct the jury on the law regarding the defense of a dwelling. The substance of the proffer established that Andrew had been in Garlach’s home previously to visit A.J. Brewer. He supported this point by also proffering the testimony of other witnesses who had not been called to testify during the trial. In addition, he argued the proposed addition to the pattern instruction was a misstatement of law.
The trial judge decided to give the instruction as proposed despite Andrew’s objections. The judge explained his rationale for giving the modified defense of dwelling instruction:
“[I]f [Garlach is] within his rights to put his hand on and use force against the defendant to force him out of the house[,] ... it makes no sense at all for the defendant to be allowed to use force back against [Garlach],
“Similar situation would be where tire police are using legal force on somebody and they place their hands on somebody, put them into handcuffs, and the person resists and wants to claim self-defense in his battery on a law enforcement officer. It makes no sense to allow somebody who is having force legally applied to them to be able to use force back.
“I’ve got to tell the jury if [Garlach] is using lawful force, the defendant can’t use force. I understand [the defense’s] position that [Andrew] wasn’t involved in a violent felony, he can claim self-defense, but he can’t if force is being applied lawfully to him.”
Applying these instructions, the jury convicted Andrew of the aggravated assault of Garlach.
Andrew timely appealed to the Court of Appeals, raising two issues: (1) whether the jury instruction regarding defense of a dwelling correctly stated Kansas law as applicable to the facts of this case, and (2) whether the trial judge erred in refusing to instruct the jury on voluntary intoxication. In a split decision, a majority of the Court of Appeals affirmed Andrew’s conviction. The majority distinguished Alexander and essentially concluded the statement in Alexander prohibiting the use of the defense of dwelling instruction in any case where the defense relates to the actions of an alleged victim was dicta. Andrew, 2011 WL 6942933, at *2-5. Judge Amold-Burger dissented, arguing the holding in Alexander controlled and, therefore, the defense of dwelling instruction should not have been given. Judge Amold-Burger further concluded the trial judge’s addition to the instruction was incorrect because the theories of self-defense and defense of a dwelling are not mutually exclusive. 2011 WL 6942933, at *6 (Arnold-Burger, J., dissenting).
Andrew timely filed a petition for review raising the same two issues as he did before the Court of Appeals. We granted review on only the defense of dwelling instructional issue. K.S.A. 2013 Supp. 22-3602(e) (party may petition the Supreme Court for review as provided in K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e) (2013 Kan. Ct. R. Annot. 74) (discretion in granting review); Supreme Court Rule 8.03(g)(1) (order granting review may limit the issues on review).
Defense of Dwelling and Self-Defense Instructions
In reviewing a claimed instructional error, an appellate court conducts a four-step analysis. Those steps, with the accompanying standards of review, are:
“(1) First, tlie appellate court should consider the reviewability of die issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whetiier diere was sufficient evidence, viewed in die light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, die appellate court must determine whether die error was harmless, utilizing die test and degree of certainty set fortli in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Here, under the first step of the analysis, Andrew objected to the defense of dwelling jury instruction and articulated specific reasons for his objection. Thus, he fully preserved this issue.
Next, we must consider whether giving the defense of dwelling jury instruction was factually appropriate. As we have noted, in Alexander, 268 Kan. 610, this court indicated the instruction should not be given when it is tire alleged victim who asserts the defense of dwelling defense, not the defendant. Alexander is the only published Kansas case cited by the parties to discuss whether the instruction should be given when it is the victim who defended a dwelling. If Alexander is correct, it was error to give the jury instruction in the present case. Nevertheless, as the Court of Appeals majority observed, there are significant factual distinctions between Alexander and this case.
The defendant in that case, Patricia Alexander, had been involved in a longstanding dispute with Walter Young; they fought several times over a several-week period. Initially, the sldrmishes caused black eyes and other minor injuries. These sldrmishes escalated to a knife fight in which Alexander fatally stabbed Young three times.
On the day of the knife fight, Young and Alexander first fought outside Young’s house. Young then went inside his house. Despite Young’s retreat, Alexander pounded on Young’s door with a plastic baseball bat and then broke into and entered the house. Witnesses heard scuffling from inside and then saw the two emerge with Young holding Alexander in a headlock and pressing a large knife to her throat. A neighbor gained control of the knife, and the fight broke up.
Alexander, however, refused to leave, and the two went back into Young’s house. Later, Young went to Alexander’s niece’s house and told the niece to “come over and get your Auntie before I kill her.” Before Young made it back to his house, Alexander met Young in the street and threatened him with a knife. Young attempted to run away, but Alexander caught him. The two struggled, and at that point Alexander fatally stabbed Young.
As accurately explained by the Court of Appeals majority:
“In Alexander the evidence revealed that the stabbing occurred in the street— not in a dwelling. In fact, the victim’s defense of his dwelling had taken place earlier in tire day, and the Kansas Supreme Court found that the two events were ‘disconnected from each other.’ 268 Kan. at 614. Thus, the defense of dwelling instruction given in Alexander was not relevant to the defendant’s claim of self-defense at the time of the stabbing.” Andrew, 2011 WL 6942933, at *3-4.
Because Young was not defending his home when he was stabbed by Alexander, the defense of dwelling jury instruction was not factually appropriate. Alexander, 268 Kan. at 613-14.
While the fatal fight in Alexander occurred in the street, in this case Andrew assaulted Garlach in Garlach’s home after Garlach threatened the use of force by displaying a billy club. See K.S.A. 2013 Supp. 21-5221(a)(l)(A) (defining “use of force” to include “[wjords or actions that convey the threat of force”).’ Given these facts, a jury could have reasonably concluded Garlach was defending his home after Andrew—a stranger to Garlach—walked in uninvited and did not immediately retreat when Garlach asked Andrew why he was in Garlach’s home. As the Court of Appeals noted: “Here, it is undisputed that Andrew pulled a knife while Garlach was trying to remove Andrew from his home. Unlike the victim in Alexander, Garlach’s actions in defending his dwelling are directly connected to Andrew’s claim of self-defense.” Andrew, 2011 WL 6942933, at *3. Thus, we conclude tire defense of dwelling jury instruction was factually appropriate.
This leads to the question of whether the instruction was legally appropriate. Again, Alexander appears to control this determination with its holding that the instruction should not be given if the defense justifies the actions of the alleged victim. But it is unclear why the Alexander court made this statement. The statement was not necessary to the resolution of the case because the instruction was not factually appropriate, and the case could have been resolved solely on that basis. Further, in adding the statement, the Alexander court did not explain its reasoning nor did it cite supporting authority.
Given the facts of this case, tírese deficiencies in the Alexander analysis raise valid questions about the statement found in the opinion. Thus, we must reexamine whether a defense of dwelling jury instruction can be given if it is the victim who defended his or her dwelling.
In doing so, we recognize that the purpose of jury instructions is to state the law as applied to the facts of tire case. See State v. Torres, 294 Kan. 135, 147, 273 P.3d 729 (2012) (jury instructions fail their purpose if they “omit[] words that may be essential to a clear statement of the law”)- This leads to the question of whether the jury could fully understand the law that dictates the outcome of this case without understanding whether Garlach acted lawfully when he incited a reaction from Andrew. The trial judge and the Court of Appeals majority concluded that both instructions—defense of a dwelling and defense of self—were necessary to a full understanding of the law. As tire Court of Appeals noted: “[T]he jury in this case had to decide whether Andrew was in Garlach’s home unlawfully, whether Andrew provoked the incident, whether Garlach used reasonable force in an attempt to remove Andrew from his home, and whether Andrew was entitled to use force to defend himself in Garlach’s home.” Andrew, 2011 WL 6942933, at *3. As the Court of Appeals concluded, applying Alexander would leave the jury without any guidance regarding tire law relating to the lawfulness or unlawfulness of Garlach’s efforts to remove Andrew from Garlach’s home.
Further, we can find no authority or basis for a rule absolutely prohibiting giving a defense of dwelling juiy instruction when the defense is used to justify the actions of the alleged victim. The defense of a dwelling is statutorily defined, and the language of the statute does not make the distinction. Rather, K.S.A. 2013 Supp. 21-5223, refers generically to a “person,” stating:
“(a) A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessary to prevent or terminate such other’s unlawful entry into or attack upon such person’s dwelling, place of work or occupied vehicle.
“(b) A person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any dwelling, place of work or occupied vehicle if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or another.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person’s dwelling, place of work or occupied vehicle.” (Emphasis added.)
The legislature could have limited the applicability of the statute to a “defendant” but instead it referred to a “person.” In this regard, the lack of a limitation on the applicability of the statute makes the legislature’s intent clear and unambiguous. When a statute is unambiguous, a court attempting to determine legislative intent merely interprets the statutory language, it is not free to read words into the statute. State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977 (2013). Consequently, it would be inappropriate to read tire statute as being limited to a defendant. We, therefore, disapprove of the statement in Alexander that “[b]ecause Young [the victim] was not on trial, Instruction No. 14 [the pattern defense of dwelling instruction] should not have been given.” Alexander, 268 Kan. at 613.
In this case, Andrew entered Garlach’s house without knocking. Both Andrew’s son and Garlach testified that no one opened the door to let Andrew in; Garlach just heard the door shut as Andrew stepped inside. Although Andrew had been to the house before, there was no evidence he had permission to enter the home whenever he wished. Thus, a jury question arose as to whether Garlach could reasonably defend his dwelling under the circumstances. Consequently, we hold the trial judge did not err in providing the jury with both PIK Crim. 4th 52.200 (Use of Force in Defense of a Person) and PIK Crim. 4th 52.210 (Use of Force in Defense of a Dwelling, Place of Work, or Occupied Vehicle).
This does not end our analysis, however, because the trial judge modified the defense of dwelling pattern instruction by adding the following sentence: “When acting within this permitted use of force, self-defense is not available to the person being forced out.” In dissent, Judge Arnold-Burger concluded this additional sentence “ ‘confuse[d] or muddle[d] the issue of self-defense’ ” by advising the jury that the two theories were mutually exclusive. Andrew, 2011 WL 6942933, at *5 (Arnold-Burger, J., dissenting). Consequently, Judge Arnold-Burger determined that “[t]he instruction erroneously informed the jury that Garlach’s defense of his dwelling eradicated Andrew’s claim of self-defense.” 2011 WL 6942933, at *6 (Arnold-Burger, J., dissenting).
To determine whether the defenses are mutually exclusive we consider the self-defense statute, K.S.A. 2013 Supp. 21-5222, which provides:
“(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other’s imminent use oí unlawful force.
“(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.
“(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.” (Emphasis added.)
The language of the self-defense statute is also unambiguous. In sum, it provides that a person is justified in the use of force only when the person reasonably believes force is necessaiy against another’s imminent use of unlawful force. A legally sufficient claim of self-defense requires evidence supporting both (1) a subjective belief on the part of the defendant that (a) the use of unlawful force is imminent and (b) the use of force is necessary and (2) an objective determination that a reasonable person would have come to the same conclusions. State v. Walters, 284 Kan. 1, 9, 159 P.3d 174 (2007).
In order for it to be objectively reasonable for a defendant to use force in self-defense, the defendant must “reasonably believe it to be, ‘unlawful’ force—meaning, in general, that it be a crime or tort (generally assault and battery) for the adversary to use the force. Thus one cannot properly defend himself against known lawful force.” 2 LaFave, Substantive Criminal Law § 10.4 (2d ed. 2003). For example, considering the analogy used by the trial judge, a self-defense instruction is generally not available for resisting arrest by an identified, uniformed police officer. If an officer must use force to malee an arrest, the arrestee cannot respond with force. State v. Tyler, 251 Kan. 616, 626, 840 P.3d 413 (1992).
Nevertheless, the rule is qualified by stating that self-defense is not available against “known lawful force.” (Emphasis added.) 2 LaFave, Substantive Criminal Law § 10.4. This rule was followed by tins court in Tyler, which is instructive.
In Tyler, several sheriff officers executed a search warrant. They entered a house with a battering ram, announcing who they were. St. John Tyler, however, was in the ldtchen at the back of the house and did not hear the officers’ announcement. When an officer came into the kitchen, Tyler shot the officer. Tyler testified that he thought the officer was a robber when the officer, who had long hair and a beard, ran into the kitchen with his gun drawn. He and other witnesses explained there had been rumors that the house was going to be robbed, and while the officer wore a jacket with a sheriff office insignia, he was not in full uniform. Tyler requested jury instructions on self-defense and defense of a dwelling. The trial judge refused the request, reasoning the defenses are only available when one is defending against unlawful force, and the officer’s force was lawful. In other words, the trial judge adopted the same position as that taken by the trial judge in this case.
On appeal, this court in Tyler found the trial judge’s reasoning was flawed. “Under the circumstances where a person unidentifiable as a law enforcement officer uses force to execute a warrant where a reasonable person would believe the officer was an unlawful aggressor, then force is justified to repel the aggressor.” 251 Kan. at 626.
Likewise, in this case, the trial judge’s ruling and his addition to the pattern instruction was too broad and, consequently, incorrect. Contrary to the defense of dwelling jury instruction read to the jury by the judge in this case, defense of self is not absolutely prohibited when another party has used lawful force. As applied under the facts of this case, even if the use of force in defense of a dwelling is lawful, an individual responding to that force may counter with reasonable force if he or she reasonably believes the force used to defend the dwelling is unlawful. Thus, the trial judge’s modification of the pattern instruction was erroneous.
In the final step of our analysis, we “must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” Plummer, 295 Kan. 156, Syl. ¶ 1. Here, the instructional error impacts a constitutional right, the right to present a theoiy of defense. Consequently, we must assess whether the error was harmless under tire federal constitutional harmless error standard, i.e., whether there was “no reasonable possibility” that the error contributed to the verdict. See Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967); Ward, 292 Kan. 541, Syl. ¶ 6; see also State v. Flynn, 299 Kan. 1052, 1069, 329 P.3d 429 (2014) (applying federal constitutional harmless error standard to instructional error where error implicated defendant’s theory of defense).
Judge Arnold-Burger concluded the error was reversible, stating:
“At trial there was evidence presented through Andrew’s son, who was a prosecution witness and also an alleged victim in the case, that Andrew knew the cotenant, Brewer, and had been in the house before. . . . Andrew and Garlach did not know each other. . . . Therefore, the jury could have concluded that Andrew reasonably believed he had permission to be in the house because he knew Brewer; that he did not know Garlach had authority to ask him to leave because he did not know Garlach; and that Andrew brought out the knife to defend himself against Garlach and his friends who started to surround him. But based on the instruction given, if the juiy believed that Garlach did in fact have the authority to use force to convince Andrew to leave, Andrew was prohibited from claiming self-defense.” State v. Andrew, No. 104,666, 2011 WL 6942933, at *6 (Kan. App. 2011) (unpublished opinion) (Arnold-Burger, J., dissenting).
While we otherwise have agreed with Judge Arnold-Burger s analysis, at this point we depart, largely because we believe that it is irrelevant that Andrew had previously been a guest in Garlach and Brewer s home. There was no evidence that Andrew had a standing invitation to enter the house at will. Rather, he entered as a person with no explicit privilege to be where he was.
Other courts have recognized that people who enter a home without permission “face the possibility of lawful physical force by a person defending against the trespass [and] are not in the same position as an otherwise innocent person . . . with respect to the privilege of using force in self-defense.” People v. Toler, 9 P.3d 341, 353 (Colo. 2000). The Colorado Court of Appeals applied Toler and further explained that “[b]ecause every person is generally presumed to know the law [citation omitted], it is presumed that defendant knew the victim could employ lawful force against him if he unlawfully entered her dwelling.” People v. Hayward, 55 P.3d 803, 806 (Colo. App. 2002); cf. K.S.A. 2013 Supp. 21-5224(a)(1)(A) (“a person is presumed to have a reasonable belief that deadly force is necessary” if the force is used against someone who “[i]s unlawfully or forcefully entering” a dwelling); K.S.A. 2013 Supp. 21-5220 (K.S.A. 2013 Supp. 21-5224 to be applied retroactively). The parties do not cite these Kansas statutes or argue for their application in this case; consequently, we do not base our decision on them. Nevertheless, we find the rationale of our sister state persuasive.
As a result, when measuring Andrew’s actions against an objective standard, we begin with the presumption that Andrew should have recognized that the law allowed anyone who dwelled in the home to use force against him. Even though there was evidence that Andrew did not know Garlach, Andrew’s son testified that as soon as Andrew entered, Garlach asked: “ 'Why are you in my house?’ ” The reference to “ ‘my house’ ” clearly identified Garlach as someone with the right to defend his home. We do not know what Andrew thought when he heard this statement because he did not testify—i.e., there is no direct evidence of the subjective prong. The State does not challenge Andrew’s request on this basis, however. Rather, the State asks us to focus on the objective prong, and Andrew’s testimony is not necessary in order for us to do so.
Based on our evaluation, we conclude Andrew’s use of force against Garlach was objectively unreasonable. Once Andrew knew he was in Garlach’s house against Garlach’s wishes, Andrew was presumed to know that Garlach’s use of force was lawful. See State v. Moore, 287 Kan. 121, 131-33, 194 P.3d 18 (2008) (discussing cases where appellate court determines use of force objectively unreasonable); State v. Jackson, 262 Kan. 119, 123-24, 936 P.2d 761 (1997) (after defendant had been repeatedly told to leave a club, bouncer placed hands on defendant and again told him to leave; defendant’s use of force not objectively reasonable because bouncer’s actions were lawful); Tyler, 251 Kan. at 626 (finding use of force objectively unreasonable).
Consequently, under the facts of this case, Andrew’s use of force was unlawful, and diere is not a reasonable possibility that the error in the jury instructions affected the outcome of the trial.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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The opinion of the court was delivered by
ROSEN, J.;
Following the reversal by this court of his conviction in his first trial, John Henry Horton appealed from his conviction of first-degree felony murder at his second trial. While retaining jurisdiction over the case, this court remanded the case to the district court for evidentiaiy findings and conclusions relating to the narrow issue of reopening the defense case based on evidence that came to light after the jury began its deliberations. The district court ruled adversely to Horton on remand, and he reasserts that issue before this court. All issues raised by the parties in the appeal from his second trial are now ripe for decision.
In July 1974, 13-year-old L.W. disappeared on her way home from a public swimming pool in Prairie Village. Skeletal remains were found in a nearby undeveloped field several months later. In 2003, DNA confirmed that the remains were L.W.’s. The State charged Horton with first-degree felony murder. More detailed facts underlying his conviction are set out in the decision in the original appeal, State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007), and the decision remanding for further proceedings, State v. Horton, 292 Kan. 437, 254 P.3d 1264 (2011). Facts necessary for determining specific issues will be explained in our discussion of those issues below.
Reopening the Case After the Jury Began Its Deliberations
After hearing arguments on the second appeal, this court remanded the case for a hearing limited to the issue of reopening the case based on the correct legal standards. Following the hearing and judgment of tire district court, the parties reargued the issue before this court. The record is now sufficiently complete to allow appellate review.
Two inmates who were incarcerated at the same facility as Horton, Danny Barnhouse and Sergio Castillo-Contreras, testified at the second trial. Barnhouse testified that Horton had told him that he was in prison because he had accidentally killed a little girl. Barnhouse said that Horton told him he abducted the girl and used chloroform on a rag to render her unconscious. He then had intercourse with her until she woke up and began fighting with him, scratching his face. He became angry and applied the chloroform again until she stopped moving. Horton then said that he dumped her body in a field.
Castillo-Contreras similarly testified that Horton had told him that Horton had used a rag containing a chemical to make a girl unconscious and that he tolled her when she woke up during his sexual assault and fought with him. Castillo-Contreras also testified that Horton said he should have chopped up tire body to prevent it from being found.
A third inmate, Michael Buddenhagen, testified that Barnhouse asked him for assistance in looking up the opinion from Horton’s first appeal on a computer legal opinion data base. Buddenhagen testified that boda Barnhouse and Castillo-Contreras looked at the opinion in his presence. His testimony was introduced for the purpose of suggesting that the other two inmates might have crafted their testimony based on what they read instead of reporting what Horton really told them.
Following the testimony of other witnesses on a variety of topics, the parties rested and made closing arguments to the jury. Then, on the morning of March 5, 2008, while tire jury was still deliberating, counsel for Horton made a motion to suspend jury deliberations in order to allow counsel to procure an accurate translation of a recorded telephone conversation of July 2007 between Castillo-Contreras and Castillo-Contreras’ mother. The defense requested a 2-day continuance in order to determine whether it would be appropriate to ask to reopen the evidentiary presentation.
The defense had subpoenaed the telephone records in February 2008 before the trial began. The phone records were received about a week later and were turned over immediately to a translator. Unfortunately, problems arose in obtaining a translation because the conversation involved a Chilean dialect of Spanish and because specific software was required in order to listen to the conversation. Furthermore, tire software had idiosyncrasies that made it difficult for the translator to hear the speech.
As explained in Horton, 292 Kan. 437, the district court, operating under the belief that it had no authority to reopen the presentation of evidence after the parties rested, denied the motion to suspend jury deliberations. This court pointed out that Kansas has long recognized the discretion of a district court to reopen cases under appropriate circumstances and held that the district court abused its discretion by refusing to exercise its lawful discretion. See 292 Kan. at 438-40. We suspended the appeal and remanded the case to the district court for determination of the narrow issue of whether it should have reopened the presentation of evidence to allow the jury to hear evidence relating to the recording of Castillo-Contreras’ telephone conversations and any rebuttal evidence offered by the State. 292 Kan. at 441.
The task of the district court was to determine what it would have done at the time of trial with the proffer of testimony if it had applied the proper legal principles in making its decision. In making this determination on remand, the district court conducted several hearings and reviewed translated transcripts of the telephone conversations that triggered tire motion as well as additional recorded conversations between Castillo-Contreras and his family, even though the defense did not refer to these additional conversations at the time it moved to reopen the case.
On remand, the district court had available the complete transcripts of the telephone conversations. Of course, at the time of the motion at the original trial, the district court did not have these transcripts available, and the contents of the conversations were speculative at that time. A review of the transcribed conversations reveals some statements by Castillo-Contreras drat might lead a fact-finder to question his veracity, but there is no point at which he expressly says or even strongly hints that his testimony was perjured in exchange for a reduced term of incarceration. The transcripts contain no direct confession of perjury.
The primaiy conversation is subjectively unclear and ambiguous; it refers to unidentified people and it appears to assume that the participants already knew what is going on. It apparently deals with two, possibly related topics: a deal that Castillo-Contreras wanted to work out with the district attorney and with payments that were sent to Castillo-Contreras’ family, perhaps as a form of protection money extorted from Horton’s family in exchange for Horton’s safety in prison. It appears from the conversations that the prosecution did not originally want to use Castillo-Contreras as a witness, but other witnesses were proving to be unreliable. Castillo-Contreras insisted that he be released to Chilean jurisdiction in exchange for his testimony.
Two additional telephone conversations between Castillo-Contreras and his family were transcribed, translated, and presented to the district court at the remand hearing. They related to his hope for deportation in exchange for his testimony and his efforts to communicate with an attorney.
In addition to reading the transcribed telephone conversations, the district court heard the sworn testimony of several witnesses. Yolanda Bustamante, a court-certified interpreter, informed the court that she received CDs of the telephone conversations before the trial began and finished listening to them while the trial was in progress. She was instructed by defense counsel to let him know if she heard anything “interesting,” and it was her recommendation that the recordings be transcribed and translated.
Brad Cordts, a Kansas Bureau of Investigation agent assigned to work on the Horton case in 2007, was called to the witness stand by the defense. Cordts had testified at the trial that prosecutor Steve Maxwell told him about Castillo-Contreras and that Maxwell was contacted by Robert Stevenson, chief investigator at Norton Correctional Facility. Cordts then interviewed Castillo-Contreras at the Johnson County Jail. Cordts also testified at the remand hearing but did not disclose any information calling into question Castillo-Contreras’ candor.
Stevenson, who was assigned to the case by the Kansas Department of Corrections and whose name was mentioned in the transcribed conversations, testified about his knowledge of Castillo-Contreras reliability as a jailhouse informant. Castillo-Contreras was a jailhouse informant at Norton Correctional Facility and was used to help monitor the Hispanic population. Stevenson testified that he had no memory of Castillo-Contreras being used to target a particular person.
In Horton, 292 Kan. at 438-41, we directed the district court to apply the factors set out in State v. Murdock, 286 Kan. 661, 672-73, 187 P.3d 1267 (2008). In Murdock, this court, quoting from United States v. Blankenship, 775 F.2d 735, 741 (6th Cir. 1985), explained the factors a trial court should consider in exercising its discretionary authority to allow a party to reopen its case:
“ ‘In exercising its discretion, the court must consider the timeliness of the motion, the character of the testimony, and the effect of the granting of the motion. The party moving to reopen should provide a reasonable explanation for fail[ing] to present the evidence in its case-in-chief. The evidence proffered should be relevant, admissible, technically adequate, and helpful to the jury in ascertaining the guilt or innocence of the accused. The belated receipt of such testimony should not “imbue the evidence with distorted importance, prejudice the opposing party’s case, or preclude an adversary from having an adequate opportunity to meet the additional evidence offered.” [Citation omitted.]’ ” Murdock, 286 Kan. at 672-73.
The district court took into account both tire transcribed conversations and the testimony of the witnesses. In reaching its decision on remand that it would be inappropriate to reopen the case to allow Horton to bring in tire telephone conversations, the district court considered several factors.
First, the district court determined that tire late introduction of the evidence would overemphasize that particular testimony to the jury and would be prejudicial to the State because the State would have to overcome the likely undue importance attached to the evidence. Second, the character of the evidence did not strongly indicate dishonesty on the part of Castillo-Contreras and did not offer information that was not available at trial. While the transcription showed that he wanted a deal and was not testifying only “because it was the right thing to do,” the transcription did not show that a deal was actually made. The transcription may have hinted that the prosecution coached Castillo-Contreras on the facts of the case and what it wanted to hear him say. It was brought out at trial that he had read the published opinion from tire first appeal and understood the facts from that trial. Third, the district court considered the practical effect of granting the defense motion. As it turned out, the transcription and translation of the recording required nearly 60 days and 250 hours to complete. Postponing jury deliberations for such an extended time would have severely impaired the jury’s ability to consider the evidence fairly. Finally, the delay on the part of the defense in attempting to introduce the telephone conversations was understandable and forgivable because technical problems hindered the defense in ascertaining whether die conversations might be useful in presenting its case. As soon as the defense was alerted that the conversations had content that related to the case, it acted to inform the court.
The district court concluded that the transcribed telephone conversation met “the low threshold of admissibility because it does affect Mr. Castillo-Contreras’ credibility to a certain extent.” The court went on to decide, however, that the potential prejudice to the State and the likely disruption to the trial proceedings outweighed the probative value of the evidence and that- reopening the case would have brought about an unjust result.
Horton argues that the prejudicial delay aspect of the Murdock criteria is negated by an analysis of the reasons for the delay. The essence of his argument is that defendants should not suffer prejudice because circumstances beyond their control compelled them to wait until late in tire trial process to present relevant evidence.
While Horton’s argument has force, it should be kept in mind that tire Murdock factors represent a balancing of interests. Waiting until after the juiy has begun deliberating may prejudice the opposing party; and not allowing a defendant to present substantial, relevant evidence may also create prejudice against a-defendant. Furthermore, strong justification for a party’s failure to present tire case during the regular statement of the parties’ cases may help excuse tire failure to present the evidence in a timely manner.
An important additional factor, however, is the weight of the evidence. A district court may, in its discretion, admit tangentially relevant evidence during a case-in-chief that it'would not allow after juiy deliberations have begun because the potential prejudice against the State would be greater than the potential prejudice against the defendant, even if the late admission were not the fault of the defendant. The defendant’s degree of fault may therefore become a nonissue under tire Murdock factors, and the district court was not required to address that as a factor in explaining why it reached its decision.
Horton also challenges the district court’s evaluation of the character of the proffered evidence. The district court made passing reference to the inadmissibility of hearsay statements by Castillo-Contreras’ family members, which Horton challenges as an inaccurate statement of the law. Because the statements were not being offered as proof of the matters asserted, Horton argues the district court erred as a matter of law.
While Horton’s argument is correct in the abstract, it does not present this court with reversible error. The statements of the family members were of minor substance and tended to repeat or confirm what Castillo-Contreras was presenting as either a monologue or a series of directions. A review of the telephone conversations does not produce any evidence beyond that which Castillo-Contreras himself stated and which the district court considered in its ruling.
Horton then attacks the district court’s analysis of tire effect that admitting the evidence would have had on the trial. The essence of his argument is drat it should have been left to the jury to evaluate whether the recordings undermined Castillo-Contreras’ tes timony. Although it is true that to a limited extent the district court placed itself in the jury’s stead, we note that courts often step into the role of determining whether admitting certain evidence would have made a difference to a jury. In a sense, the harmless error doctrine invades the province of the jury, but appellate courts frequently engage in weighing the possible effects of evidence on a jury. See, e.g., Fry v. Pliler, 551 U.S. 112, 116, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007) (lower harmless error standard in federal habeas corpus collateral review of state court decision); Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (Supreme Court has repeatedly recognized that most constitutional errors can be harmless); State v. Sampson, 297 Kan. 288, 299-300, 301 P.3d 276 (2013) (abuse of discretion subject to harmless error standard of review). Therefore, application of the harmless error standard does not impermissibly intrude on the province of the jury.
As the district court noted, this court has held that newly discovered evidence merely tending to impeach or discredit the testimony of a witness is not grounds for granting a new trial. See, e.g., Baker v. State, 243 Kan. 1, 11, 755 P.2d 493 (1988). The evidence that Horton sought to introduce after the jury began deliberating was not newly discovered; at that point in time, the defense did not know whether it had anything to present to the jury.
The telephone conversation evidence which Horton urges this court to send to a jury as part of a retrial is very weak in terms of its probative value. In some ways, it bolsters the State’s case— Castillo-Contreras told his mother that he overheard Horton acknowledging his crime. In other ways, the evidence merely adds additional emphasis to what was already before the jury, such as information that Castillo-Contreras had read the facts of the case before he spoke with prosecutors. And some of the evidence casts doubt on his motives for testifying, such as his vehement insistence that he receive some sort of deal in exchange for testifying, even though no deal was assured.
These statements are isolated examples extracted from a lengthy conversation in which Castillo-Contreras explicitly and without any prompting told his mother that Horton confessed to him that he had committed murder. While cross-examination based on those statements might have opened up further doubt about his credibility, the defense had already challenged that credibility at trial, especially by pointing out that Castillo-Contreras had read the published opinion of this court before testifying. Horton asks this court to find that tire district court abused its discretion because it held that it would not have interrupted jury deliberations to allow the defendant to introduce this marginally relevant impeachment evidence. Such an appellate determination would substantially lower the threshold for abuse of discretion.
We conclude that the district court performed the duty that we instructed it to carry out on remand. It was thorough in creating and reviewing a record of the issue and analyzing the law. We find no abuse of discretion in its conclusions.
Animated Reconstruction Video
Over Horton’s objection, the State introduced into evidence an animated reconstruction video of the relative locations and movements of L.W., Horton, and witnesses. Horton argues on appeal that allowing the juiy to view the video constituted prejudicial error.
In the first appeal, Horton raised the issue of whether the State could introduce a reconstruction report, including a diagram with a posited path of travel for the victim. We declined to address tire issue, citing the lack of a contemporaneous objection. Horton, 283 Kan. at 63. During the second trial, the State expanded on that reconstruction through an animated video that it presented to the jury.
Before the second trial began, Horton moved to exclude the video. The district court conducted an evidentiary hearing in limine and considered the testimony of John Glennon, a forensic automotive technologist, who testified that the assumptions underlying the reconstruction were speculative and flawed. The court nevertheless elected to allow the State to present the video in support of its case.
Over Horton’s repeated objections, the jury later watched the video reconstruction and heard the testimony of Captain Dan Meyer, who provided data used in creating the video, and Roy Buchanan, who created the video and explained to the jury what the video purported to represent. According to the video reconstruction, based on their previously observed speeds and directions of travel, Horton and L.W. would have found themselves in the same place at a particular time, giving Horton the opportunity to abduct her.
Horton urges this court to reverse his conviction because tire video assumed facts not in evidence and permitted the jury to consider expert testimony that was speculative in nature.
Under K.S.A. 60-456, the opinion testimony of experts on an ultimate issue is admissible only so far as the opinion will aid the jury in interpreting technical facts or understanding the material in evidence. An expert’s opinion is admissible up to the point where expressing the opinion requires the expert to pass upon the credibility of witnesses or the weight of disputed evidence. State v. Bressman, 236 Kan. 296, Syl. ¶¶ 3, 5, 689 P.2d 901 (1984).
The weight that an expert’s opinion is to be given lies in the hands of the jury. State v. Johnson, 286 Kan. 824, 837, 190 P.3d 207 (2008); City of Mission Hills v. Sexton, 284 Kan. 414, Syl. ¶ 8, 160 P.3d 812 (2007). Under K.S.A. 60-456(b), although the district judge controls expert opinion evidence that has the potential to unduly prejudice or mislead a jury or confuse the question at issue, it is generally preferred to allow the jury to resolve disputed evidence. Cross-examination, the submission of contrary evidence, and the use of appropriate jury instructions are the favored methods of resolving factual disputes. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 461, 14 P.3d 1170 (2000).
We find no error in the decision by the district court to allow the State to play the video for the jury. The video and accompanying testimony helped illustrate the State’s complex theory, and the video served as nothing more than an aid to the jury in understanding that theory. Rather than proving that Horton and L.W. were in the same place at the same time, the video may be understood as establishing the plausibility of the State’s theory that Horton and L.W. crossed paths. The jury had the opportunity to evaluate the reliability of the video and its assumptions. Many of the assumptions underlying the reconstruction were based on the statements of witnesses whose credibility was already before the jury, such as the fact that L.W.’s younger brother was running along a certain path and that Horton was standing by certain trees.
The Exclusion of Exculpatory Dog-Search Evidence
Administrative records showed that almost 3 weeks after L.W. disappeared, on July 27, 1974, Tom McGinn, a dog handler from Pennsylvania, brought two dogs to perform a search of the high school where L.W. was last seen. The dogs had been exposed to and later alerted to L.W.’s clothes. The dogs alerted to tire victim’s scent on steps leading from the lower parking lots to the upper parking lots south of the high school. They did not alert to her presence in Horton’s car or on his clothes.
At trial, however, Horton’s counsel was unable to locate McGinn and was unable to. identify the authors of the Federal Bureau of Investigation report favorably referring to the search. The district court elected to exclude the evidence because there was no basis for establishing the reliability of the reports. On appeal, Horton challenges this exclusion.
When a foundation in the expertise of a dog handler has been established, including factors such as training, experience, and certification, as well as the reliability of the dog, evidence stemming from a canine search may be admitted into evidence. See, e.g., State v. Brown, 266 Kan. 563, 573-74, 973 P.2d 773 (1999); State v. Netherton, 133 Kan. 685, 690-91, 3 P.2d 495 (1931); State v. Fixley, 118 Kan. 1, Syl. ¶¶ 1, 2, 233 P. 796 (1925); State v. Adams, 85 Kan. 435, Syl. ¶ 3, 116 P. 608 (1911). An element of allowing such foundation evidence is whether the opposing party has the opportunity to carry out adequate cross-examination of the witness. See Brown, 266 Kan. at 574; see also State v. Barker, 252 Kan. 949, Syl. ¶ 6, 850 P.2d 885 (1993) (probable cause for vehicle search based on canine sniff requires foundation testimony; minimum requirement includes description of the dog’s conduct, training, and experience by knowledgeable person who can interpret the conduct as signaling the presence of a controlled substance).
In the present case, Horton was unable to produce the authors of the 35-year-old FBI report relating to the dog search tending to exonerate him. He maintains, in essence, that die probative value of the report outweighs its questionable reliability. He suggests that because the report included police and FBI records, the report must be rehable.
In the first appeal, State v. Horton, 283 Kan. 44, 60-62, 151 P.3d 9 (2007), this court held that the trial court did not err in allowing tiie State to present evidence tending to show that hairs found in tiie high school, inside the passenger compartment of Horton’s car, and inside one of the canvas bags in Horton’s trunk belonged to the victim, even though the original hairs had been destroyed in the intervening years and could not be positively tested for DNA compatibility. Horton argues that admitting testimony relating to tiie hairs while excluding the canine-search report unfairly favored the State.
We held in the first appeal:
“The failure to positively identify a piece of evidence does not preclude the admission of the evidence. The lack of positive identification affects the weight of the evidence as opposed to its admissibility. [Citations omitted.] In this case, the State’s inability to positively and indisputably identify the source of every hair that was compared does not preclude the admission of the evidence. Rather, the possibility for contamination affects the weight to be given the evidence. The jury bears the responsibility for weighing the evidence, resolving conflicts in the testimony, and drawing reasonable inferences to determine the ultimate facts. [Citation omitted.]” 283 Kan. at 61.
The differences between the evidence of the hairs and the evidence of the dog search lie in both the foundation that could be established for each and the cross-examination to which each could be subjected. Even though the hairs taken from Horton’s car had been destroyed, the State provided a witness who had examined tiie hairs and who testified about the procedures he used to compare the evidence from the car with hairs taken from the victim’s brush. The defense cross-examined the witness about his conclusions and the reliability of the evidence.
Although the dog-scent evidence was relevant and material, in that it had a direct bearing on a central question of whether Horton had physical contact with the victim, that was not enough to make it admissible. Because the parties could not subject McGinn to direct or cross-examination, the jury could have only speculated on how reliable the search was. It is unknown what experience McGinn had with the particular dogs that were used; it is unknown how the dogs were trained; it is unknown how they would alert in different situations; it is unknown how consistent their alerting was; it is unknown whether McGinn had problems with the dogs’ reliability in other settings; and it is unknown on what basis the FBI reporters evaluated McGinn’s reliability.
For these reasons we conclude that the trial court did not err as a matter of law and did not abuse its discretion in excluding the dog-search report.
The Jury Instruction
Horton objects on appeal to a jury instruction directing the jury to try to resolve any differences of opinion and reach a consensus.
Jury Instruction 23 read in its entirety:
“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 tire 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 sides.
“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 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.
“You may be as leisurely in your deliberations as the occasion may require and take all the time you feel necessary.”
Horton’s counsel offered a general objection, stating that the proposed jury instruction was “unnecessary.” He went on to say, “I believe it will be coercive on the jury. I believe it would give them the impression that they don’t have the freedom to disagree and state their points.” After taking the matter under advisement, the court elected to give the proposed jury instruction.
When analyzing a properly preserved jury instruction issue on appeal, this court follows a progressive step analysis:
“For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012.)
In determining whether a specific juiy instruction was erroneous, this court considers the instructions as a whole without isolating any one instruction and reviews the instruction to see whether it properly and fairly stated the law as applied to the facts of the case and could not have reasonably misled the jury. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
The jury instruction at issue generally resembles that approved in Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Until recently, a line of Kansas cases upheld the language that is the subject of this appeal. See, e.g., State v. Nguyen, 285 Kan. 418, 436-37, 172 P.3d 1165 (2007); State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007); State v. Makthepharak, 276 Kan. 563, 569, 78 P.3d 412 (2003); State v. Noriega, 261 Kan. 440, 454, 932 P.2d 940 (1997); State v. Roadenbaugh, 234 Kan. 474, 483, 673 P.2d 1166 (1983); State v. Irving, 231 Kan. 258, 265-66, 644 P.2d 389 (1982).
Horton’s second trial took place in March 2008. This court subsequently determined that the language that “another trial would be a burden on both sides” is error because it is misleading and inaccurate: “Contrary to this language, a second trial may be burdensome to some but not all on either side of a criminal case. Moreover, the language is confusing. It sends conflicting signals when read alongside [an] instruction that tells jurors not to concern themselves with what happens after they arrive at a verdict.” State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009). We concluded, however, that the standard of review was clear error, and we were firmly convinced that there was no real possibility that the jury would have rendered a different verdict had the error not occurred. 288 Kan. at 267.
While it is true that Horton objected to the instruction, his objection was based on the allegedly coercive and superfluous nature of the instruction, not on the confusing elements that formed the grounds for error that we found in Salts. It is not sufficient simply to lodge an objection in order to preserve an issue; the articulated basis of the objection must be specific to tire error asserted on appeal. See K.S.A. 60-404 (objection must be “so stated as to make clear the specific ground of objection”); State v. McCaslin, 291 Kan. 697, 707-08, 245 P.3d 1030 (2011) (while there maybe some overlap of objections, that overlap does not satisfy the specificity requirement of the objection); State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (hearsay objection at trial not sufficient to raise issue of Confrontation Clause violation on appeal).
In the absence of a sufficiently specific objection, this court will review the instruction for clear error. See K.S.A. 22-3414(3) (party-may not assign error to instruction unless party objects “stating distinctly tire matter to which the party objects and the grounds of tire objection unless the instruction ... is clearly erroneous”); State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012).
If a jury instruction that was not adequately preserved for appeal is erroneous, then this court inquires into reversibility and assesses whether it is firmly convinced that tire jury would not have reached • a different verdict had the instruction error not occurred. The party asserting a clearly erroneous jury instruction has the burden of establishing the degree of prejudice necessary for reversal. Williams, 295 Kan. 506, Syl. ¶ 5.
In his brief, Horton points to various statements made by jurors in voir dire and by witnesses at trial that referred to the previous trial and conviction. Horton argues that there was a real possibility drat the juiy was influenced by language reminding it of the burden of a subsequent trial.
Notliing in the record suggests, however, that the jury was confused by the instruction or that the juiy was close to a deadlock. The jury did not submit questions relating to its burden or inform the judge that it was having difficulty reaching a decision. Furthermore, witnesses from the time of the murder linked Horton to the victim, and witnesses who spoke with him while he was incarcerated testified that Horton acknowledged committing the crime. For these reasons, we are not firmly convinced that the juiy would have returned a different verdict if the instruction had not been given. The instruction was therefore not clearly erroneous. See State v. King, 297 Kan. 955, 985-86, 305 P.3d 641 (2013) (in the absence of evidence of deadlock and in the presence of compelling evidence of guilt, no clearly reversible error in giving Allen-type instruction).
While the juiy instruction was not legally appropriate, the objection was not sufficiently specific to avoid a clear error harmlessness test. The record simply does not support reversal on this issue.
Finding no reversible error, we affirm the conviction.
Moritz, J., not participating.
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Per Curiam:
This is a contested original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Mark R. Singer of Overland Park, an attorney admitted to the practice of law in Kansas in 1975.
On August 16, 2013, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on September 9, 2013. On November 20, 2013, the parties entered into a written joint stipulation of facts. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 20, 2013, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 4.1(b) (2013 Kan. Ct. R. Annot. 617) (truthfulness in statements to others) and 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation).
Upon conclusion of the hearing, the panel arrived at the following findings of fact and conclusions of law, together with its recommendation to this court:
“Findings of Fact
“5. The respondent represented BQI, LLC, the buyer in a real estate transaction involving the Delaney House and Country Inn & Suites, Holyoke, Massachusetts. Finance California, Inc. agreed to loan $3 million to BQI for the pur chase. Lorraine Halica with Lawyers Title Insurance Corporation served as the escrow agent for the sale.
“6. On behalf of BQI, the respondent received loan transaction documents, reflecting a $3 million transaction. The respondent prepared real estate transaction documents to reflect a transaction price of $10.9 million, which included assumed debt and balance of the purchase price. However, the actual price was $9 million.
“7. In a consulting agreement, BQI agreed to pay the seller $1.9 million for services and that was included as part of the real estate transaction. However, the $1.9 million was not paid by BQI to the seller. The $1.9 million was a credit.
“8. During the preparation of the closing statement, the respondent directed Ms. Halica to not disclose the consulting agreement on BQTs closing statement, pursuant to BQI’s instructions. Subsequently, during the disciplinary investigation, the respondent stated:
‘... Later, consistent with the agreement between Seller and Buyer, I indicated to the escrow agent in anticipation of closing, the Seller’s counsel confirmed, that by virtue of the management agreement/consulting agreement, Seller would be deemed to have received $1,900,000 of the purchase price through that agreement. At the request of my client, I requested that die escrow agent not reflect on the closing statement that $1,900,000 of the “amount due from Buyer” was deemed paid by the management agreementiconsulting agreement. I advised my clients that they should not expect the escrow agent to agree to that and that, notwidistanding the confidentiality direction, somehow the lender would inevitably discover diat Buyer had not delivered $1,900,000 in cash to the closing, with resulting ramifications. I indicated that, if asked, I would provide accurate copies of the questionable documents to die requestor. Through the combination of occurrences including the escrow agent’s acquiescence to the request about reflecting die credit on the closing statement and what may have been the lack of diligence on die part of lender’s counsel (there are alternate explanations), the closing occurred as my clients wanted it to.’
Additionally, the respondent testified that he directed Ms. Halica to change die wording of the closing statements from ‘cash due’ to ‘amount due.’
"9. The respondent knew diat Finance California required BQI to contribute equity to die purchase. Regarding diis issue, the United States District Court specifically found:
‘Both Ms. Halica’s and Mr. Singer’s testimony supported die conclusion that Ms. Halica was the passive tortfeasor, and Mr. Singer the active one. Ms. Halica testified that she did not know and had no reason to know diat showing a cash contribution rather than a credit on the Buyer’s closing statement was a material alteration; and that she “had no knowledge that there was anything being hidden” from Finance California. Ms. Halica also testified that if she had even an inkling that the Consulting Agreement was illusory, or that she was being asked to facilitate a fraud, she would have contacted her superiors and not gone forward with die closing. Moreover, Mr. Singer testified diat he was aware of Finance California’s requirement that the Buyer contribute equity to the purchase, and that his instructions to Ms. Halica were motivated in part by a concern that Finance California would find out about the Consulting Agreement. Mr. Singer admitted that he sent an email to Ms. Halica that stated affirmatively that the information which he had asked her to keep confidential “shouldn’t matter” to the lender—and would only matter to a lender that was “a vulture.” It was uncontroverted that Mr. Singer himself—who knew about Finance California’s equity requirement—communicated the misleading closing statement to Finance California’s representatives without telling Finance California or its attorney about the credit. Mr. Singer’s testimony clearly demonstrated that he, rather than Ms. Halica, was in total control of the situation, that he manipulated the situation for his client’s benefit, and that he purposely kept Ms. Halica in the dark. When Third-Party Plaintiffs’ counsel suggested that Mr. Singer “just kept leading [Ms. Halica] on” and that Ms. Halica was “just marching along with [his] instructions about how to show [tire credit],” Mr. Singer admitted, “Well, I guess that’s true.’ ”
Lawyers Title Ins. Corp. v. Singer, 792 F. Supp. 2d 306, 311-12 (2011) (citations to record omitted).
“10. In the agreement, BQI had an option to terminate the consulting agreement within the first 6 months for a termination fee of $95,000. BQI and the seller agreed to that term.
“11. On August 9, 2002, the transaction closed. That same day, BQI terminated the consulting agreement. After the consulting agreement was terminated, the only equity that BQI contributed was a $50,000 initial deposit.
“12. Approximately 1 month after closing, Finance California, assigned the mortgage to a third-party. Shortly thereafter, BQI defaulted on the loan and the senior lienholders foreclosed on the mortgage.
“13. BQI did not have sufficient equity to satisfy Finance California’s subordinate mortgage.
“14. Lawyers Title Insurance Corporation sued Finance California. Additionally, Lawyers Title Insurance Corporation filed a third-party claim against the respondent on a claim for indemnification. In the diird-party claim, Lawyers Title Insurance Corporation alleged fraud, breach of fiduciary duty, breach of the covenant of good faith and fair dealing, breach of contract, and intentional breach of contract.
“15. Prior to trial, the court ordered all parties to attend mediation. The respondent did not appear in person, but rather allowed his attorney to appear on his behalf. All parties reached a settlement except for the respondent. The case against the respondent proceeded to jury trial.
“16. On February 10, 2011, the jury returned its verdict. In returning its verdict, the jury made a number of findings, detailed in its verdict form.
“17. Specifically, the jury found clear and convincing evidence that the respondent made a false statement to Ms. Halica about an existing fact, or omitted to state a material fact, while Ms. Halica was acting as escrow agent. The jury found clear and convincing evidence that the respondent knowingly made the false statement or material omission; or drat the respondent made the statement or omission with reckless disregard for the truth of the matter. The jury also found clear and convincing evidence that the respondent made the statement or omission in order to induce Ms. Halica to act in reliance on it. Additionally, die jury found clear and convincing evidence that Ms. Halica did rely on the respondent’s false statement or omission in the course of her duties as escrow agent, and that this reliance was justified. The jury found a preponderance of evidence tiiat Finance California was injured by its reliance on the respondent’s false statement or omission. The jury further found, by a preponderance of evidence, that die respondent’s fraud—whether by false statement or omission—was the direct and immediate cause of Finance California’s injury. Also, the jury found by a preponderance of evidence that the respondent was in control of the events that led to Finance California’s injury. The jury found that by a preponderance of evidence Üiat Finance California did not know of tire respondent’s wrongful conduct, that it had no reason to anticipate his wrongful conduct, and that it was reasonable for it to rely on the respondent not to engage in the wrongful conduct. The jury also found by a preponderance of the evidence that Lawyers Title Insurance Corporation and Ms. Halica were potentially liable to Finance California for the claim of breach of fiduciary duty. The jury found by a preponderance of the evidence that the settlement amount paid by Lawyers Title Insurance Corporation and Ms. Halica ($1.7 million) was reasonable under the circumstances. Finally, the jury found $1.7 million in damages.
“18. As a result of the juiy’s verdict, on February 11, 2011, the United States District Court for the District of Connecticut entered a judgment against the respondent in the amount of $1.7 million.
“19. The respondent filed a motion to set aside verdict and a corrected motion to set aside verdict. On May 16, 2011, the United States District Court for the District of Connecticut considered and denied the respondent’s motion. In its opinion, the court stated:
‘The jury heard Mr. Singer testify that on three separate occasions, he instructed or reminded Ms. Halica to take actions that served to conceal tire fact of the credit from Finance California. Mr. Singer admitted that as an escrow agent, Ms. Halica had obligations to all the parties to the Loan Transaction— including Mr. Singer’s clients—and that it was part of her duties to take instructions from Mr. Singer.’
Lawyers Title Ins. Corp. v. Singer, 792 F. Supp. 2d 306, 311 (2011) (citations to record omitted).
“20. The respondent appealed from the judgment to the United States Court of Appeals for the Second Circuit. On February 4, 2013, the Second Circuit Court of Appeals affirmed the judgment, finding:
‘UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.
‘Third-Party-Defendant-Appellant Mark Singer (“Singer”) appeals from the jury verdict, rendered February 10,2011, finding in favor of Third-Party-Plaintiffs-Appellees, Lorraine Halica (“Halica”) and Lawyers Title Insurance Co., and the district court’s May 16, 2011, ruling and order denying his Rule 50(b) and Rule 59 motions. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
‘The district court properly determined that Singer failed to satisfy the high standards required to overturn a jury verdict. Quite simply, the record contains ample evidence in support of Halica’s position advanced at trial that she was a passive tortfeasor deserving of common law indemnification from the active tortfeasor, Singer, who committed fraud. Halica testified that she had no knowledge that the consulting agreement was illusory, and that she “had no knowledge that there was anything being hidden” from Finance California (“Finance California”). Singer, on the other hand, testified that he was aware of Finance California’s requirement that the buyer contribute cash at closing, and that he nonetheless instructed Halica to keep confidential the undisclosed “credit” provided by the buyer from the valueless consulting agreement between the buyer and the seller. This direct testimony permits a reasonable jury to conclude, based on the evidence of Singer’s fraud and manipulation of Hal-ica and the charge given to the jury, that Singer had the requisite control of the transaction sufficient to support die jury’s award of indemnification under Connecticut law.
We have considered all of Singer’s otiier arguments and found each of diem to be without merit. Accordingly, die judgment of the district court is hereby AFFIRMED.’
“Conclusions of Law
“21. Based upon the findings of fact, die hearing panel concludes as a matter of law that die respondent violated KRPC 4.1(b) and KRPC 8.4(c), as detailed below.
“KRPC 4.1(b)
“22. Lawyers are required to be truthful in their statements to others.
‘In the course of representing a client a lawyer shall not knowingly:
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.’
KRPC 4.1(b). In this case, the respondent failed to disclose a material fact to Ms. Halica and the disclosure was necessary to avoid assisting his client, BQI, in a fraudulent act. Thus, the hearing panel concludes tiiat the respondent violated KRPC 4.1(b).
“KRPC 8.4(c)
“23. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The respondent’s conduct in tins case was dishonest, fraudulent, and deceitful. In order to avoid detection, the respondent directed Ms. Halica [to] refrain from putting certain information in the closing statement. Further, the respondent changed the language of‘cash’ due to ‘amount’ due in die closing documents. The respondent’s word-smithing is further evidence of his fraudulent conduct. As such, the hearing panel concludes that die respondent violated KRPC 8.4(c).
“American Bar Association Standards for Imposing Lawyer Sanctions
“24. In making this recommendation for discipline, the hearing panel considered die factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, file potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“25. Duty Violated. The respondent violated his duty to the public to maintain his personal integrity.
“26. Mental State. The respondent intentionally violated his duty.
“27. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to the lender and to the title company.
“Aggravating and Mitigating Factors
“28. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“29. Dishonest or Selfish Motive. The respondent’s conduct was motivated by dishonesty.
“30. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1975. At the time of the misconduct, the respondent had been practicing law for more than 25 years.
“31. Indifference to Making Restitution. To date, the respondent has not made any payments toward restitution nor has he set aside any funds for the payment of restitution.
“32. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“33. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“34. The Present and Past Attitude of the Attorney as Shown by the Attorney’s Cooperation During the Hearing and the Attorney’s Full and Free Acknowledgment of the Transgressions. The respondent entered into a written joint stipulation of facts.
“35. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. Ms. Kellee P. Dunn-Walters testified about the respondent’s good character and reputation.
“36. Imposition of Other Penalties or Sanctions. The court entered a judgment against the respondent in the amount of $1.7 million.
“37. Remorse. At tire hearing on the formal complaint, the respondent appeared remorseful for having engaged in die misconduct.
“38. In addition to die above-cited factors, the hearing panel has thoroughly examined and considered die following Standards:
‘5.11 Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentionally interference with the administration of justice, false sweating, misrepresentation, fraud, extortion, misappropriation, or dieft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of diese offenses;
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on die lawyer’s fitness to practice.
‘5.12 Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain die elements listed in Standard 5.11 and that seriously adversely reflects on die lawyer’s fitness to practice.
‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct tiiat involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injuiy or potential injury to a client, the public, or the legal system.’
“Recommendation
“39. At the hearing on the formal complaint, dre deputy disciplinary administrator recommended that the respondent be suspended for a period of 1 year and following the period of suspension, the deputy disciplinary administrator recommended that tire respondent’s practice be supervised for a period of 2 years. The respondent requested that he be granted probation and be subject to the terms and conditions of probation set forth in his proposed probation and supervision plan.
“40. Kan. Sup. Ct. R. 211(g)(3) sets forth the requirements that must exist before a hearing panel may recommend that a respondent be placed on probation:
‘(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) .the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.’
Kan. Sup. Ct. R. 211(g).
“41. While the respondent provided a substantial, detailed, and workable plan of probation and the respondent implemented the plan of probation prior to the hearing on the formal complaint, the misconduct in this case cannot be corrected by probation and it is not in foe best interests of foe citizens of foe State of Kansas to place foe respondent on probation in this case. Thus, foe hearing panel concludes foat probation is not appropriate in this case.
“42. Engaging in conduct foat involves dishonesty, fraud, and misrepresentation is serious misconduct and calls for serious discipline. The hearing panel studied foe ARA Standards for Imposing Lawyer Sanctions and concluded that Standard 5.11(b) appears to apply in this case. Standard 5.11(b) suggests that disbarment is the appropriate discipline to impose. However, in this case, foe respondent presented compelling evidence of mitigating circumstances and based upon those mitigating circumstances, foe hearing panel concludes foat a period of suspension is appropriate.
“43. The hearing panel turned to In re Rausch, 272 Kan. 308, 32 P.3d 1181 (2001), for guidance. In foat case, the respondent had been convicted of a misdemeanor crime, deceptive business practices, and had a civil fraud judgment entered against him. As a result of that misconduct, the Kansas Supreme Court entered an order suspending Mr. Rausch for a period of 2 years.
“44. Based upon foe similarities between foe respondent’s misconduct and Mr. Rausch’s misconduct, foe hearing panel unanimously recommends foat the respondent be suspended from the practice of law for a period of 2 years.
“45. Further, because dishonest conduct cannot be corrected by probation, tire hearing panel concludes foat a period of supervision following the period of suspension would serve no purpose. Finally, foe hearing panel recommends foat, prior to applying for reinstatement, the respondent make a good faith effort to obtain a satisfaction of judgment.
“46. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of tire parties and determines whether violations of KRPC exist and, if they do, die discipline that should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes die factfinder to believe that “the trutii of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer, and adequate notice of the hearing before the panel and the hearing before this court.
The respondent filed exceptions and amended exceptions to the hearing panel’s final hearing report, but these did not challenge the basic factual findings or legal conclusions of the panel. In addition, his brief to this court made no argument in support of the exceptions to the findings of fact and conclusions of law. See In re Johanning, 292 Kan. 477, 486, 254 P.3d 545 (2011) (a respondent who does not advance arguments in a brief to this court that support exceptions to the final hearing report is deemed to have abandoned the exceptions). Its arguments and authorities were limited to the subject of the discipline to be imposed.
We adopt the findings of fact and conclusions of law of the hearing panel, unamended by respondent’s suggested additions in his exceptions and amended exceptions. Clear and convincing evidence—among it, the parties’ written joint stipulation and the Connecticut jury verdict affirmed by the Second Circuit on appeal— demonstrates that respondent violated KRPC 4.1(b) and 8.4(c).
Respondent sought a panel recommendation of supervised probation, and he continues to seek that discipline before this court. The panel expressed an unwillingness to recommend such a sane tion because of the general rule that fraudulent behavior is not amenable to correction by probation. We agree with this general rule, although there may be particular situations in which it does not apply. This case does not present one of those particular situations. Respondent’s conduct here was deceitful; and we are not persuaded by his counsel’s or his own statements before this court that probation is an appropriate response to that conduct. We agree with the panel’s ultimate recommendation that a period of suspension is necessary.
We therefore hold that respondent should be suspended from the practice of law in Kansas for a period of 2 years from the filing of this opinion. He shall not be subject to a reinstatement hearing under Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407).
Conclusion and Discipline
It Is Therefore Ordered that Mark R. Singer be suspended for 2 years from the practice of law in the State of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Johnson, J.:
Rodney Turner seeks review of the Court of Appeals decision that reversed the district court’s dismissal of a multiple-count indictment returned against him by a citizen-initiated grand jury. The petition to convene the grand jury alleged wrongdoing by the officers and directors of the Board of Public Utilities (BPU) of the Unified Government of Wyandotte County/Kansas City, Kansas (Unified Government). Turner, an attorney who did consulting and legal work for BPU, was indicted by die grand jury on 2 counts of theft and 55 counts of presenting a false claim, based upon die tiieory that he had not performed die work for which he had submitted monthly invoices to the BPU.
The district court granted Turner’s motion to dismiss the indictment, finding that Turner had been prejudiced by grand jury abuses and violations of his constitutional rights. But the Court of Appeals reversed the dismissal, finding that Turner did not possess the full panoply of constitutional rights at the investigatory proceedings by the grand jury and that the constitutional violations that did occur during the grand juiy proceedings did not prejudice Turner because the record contained sufficient evidence to establish probable cause to support the indictments. State v. Turner, 45 Kan. App. 2d 744, 250 P.3d 286 (2011). Because the record before us establishes grave doubt that the grand jury’s decision to indict was free from the substantial influence of the abuses of process and constitutional violations caused by the State’s agents during the grand juiy proceedings, we reverse the Court of Appeals and affirm the district court’s dismissal of the indictment.
Factual and Procedural Overview
In January 2008, T.J. Reardon filed a petition to summon a grand juiy in the District Court of Wyandotte County for the purpose of investigating claims relating to the BPU and Unified Government. The petition set forth allegations that BPU executives and directors, as well as city and county officials, had violated the law and misappropriated public funds in various ways. The petition did not specifically refer to Turner or allude to the consulting and legal work that he performed for BPU, albeit one of the statements in the petition directed that “BPU no-bid contracts and fixing with possible bribery charges should be investigated.”
The grand jury was convened in March 2008. The Court of Appeals referred to the grand juiy proceedings as “a 6-month inves tigation,” 44 Kan. App. 2d at 761-62, but the record indicates that the grand jmy actually convened 17 times between its first meeting on March 5, 2008, and its last session on August 27, 2008; i.e., the grand jury averaged approximately 3 days in session per month. Wyandotte County District Attorney Jerome Gorman (DA) and Assistant District Attorney Kristiane Gray (ADA) presented evidence, examined witnesses, and provided legal advice during the grand jury proceedings. Special Agent William Delaney of the Kansas Bureau of Investigation (KBI) was assigned to investigate matters for the grand jury and played an integral role in the proceedings, testifying before the grand jury on 10 of the 17 days it was in session. The agent often advocated for an indictment against Turner, at times intimating that such an indictment might lead to a resolution of an unrelated 20-year-old murder case.
During his appearance on the first day of the proceedings, Delaney directed the grand jury’s attention toward Turner by characterizing his consulting and legal work arrangement with BPU as an example of a “no-bid contract” to which the petition had referred. Subsequently, the grand juiy would be presented evidence that from 2003 through 2008, Turner had submitted monthly invoices to BPU that totaled in the neighborhood of $400,000. The invoices were routinely approved by both the general counsel and the general manager of BPU, notwithstanding that they contained only the number of hours worked and the hourly rate, without a detailed itemization of the nature of work performed. The general counsel, Marc Conklin, was also a target of the investigation.
The State called several witnesses, including two former executive assistants to BPU’s general manager, two Board members, and an attorney who was acquainted with Turner, to testify that they did not know the nature of the work that Turner had actually performed for BPU. But other Board members, including the Board’s secretary, testified about the nature of Turner’s work for BPU of which they were aware, as did the former general manager of BPU who served from 1995 to 2005. The current BPU general manager opined that the amount of money paid to Turner was not out of line in comparison with what BPU spent on attorney fees and that he had accepted the general counsel’s explanation that Turner “was offering a lot of legal advice and counsel to [the general counsel] and that [the general counsel] valued [Turner’s] legal opinions.”
At that first grand jury session, in response to a juror’s question about when the agent had begun his BPU investigation, Delaney referred to a 20-year-old murder case that remained open. Delaney added that he remained interested in “BPU people because of some interest in another case that I probably can’t discuss or shouldn’t discuss on this Grand Juiy.”
Nevertheless, at the next session, Delaney told the grand jury that he had been “concerned and interested in BPU because some of the people that we were hearing were involved in the BPU we thought were involved in a murder case in Wyandotte County.” Delaney then told the grand jury about that murder case, namely that Chuck Thompson, a local politician and attorney, was murdered in December 1987, and the case remained unsolved. Delaney further related that he was again approached in 2005 to do an investigation of BPU and that Turner’s name continued to come up on both the BPU investigation and the Thompson murder. The agent spoke of doing interviews on the “Thompson case/BPU case” and tied Turner to both cases by telling the grand jury:
“[Y]ou guys know, that there is some kind of legal work or some kind of work being done by Rod Turner I think over a period of 2003 to 2005. I think I saw the figures over $400,000 worth of work. All we’ve seen is invoices. I would be interested to see what’s behind those invoices, what’s causing those invoices, 40 hours a week at $150 an hour. He’s got—I would think he would be able to justify why he’s submitting those bills to the BPU.
“I think that’s a very interesting area that you really ought to look at pretty closely. Again, we have an interest in Turner because supposedly he had information about this other case.”
The agent went on to intimate that Turner was a dangerous person by telling the grand jury he had warned Reardon, the instigator of the grand jury petition, that he was “dealing with people that you need to be concerned about, don’t put yourself in a position where you can become like a Chuck Thompson.”
When the grand jurors were provided an opportunity to ask their own questions of Delaney, the following exchange took place:
“GRAND JUROR 392119: On the Chuck Thompson, I’m not even going to ask you to get into detail there. I don’t think it’s fair or relevant. Rut are you finding it easier to tie this all together?
“[DELANEY]: Some of the same names that came up in that have come up in this. And it’s always been the people that probably weren’t directly involved but people that are behind the scenes. That’s the information, without getting in a lot of detail on die homicide, but tírese same names are coming up.
“GRAND JUROR 406292: If we get Rod Turner in here and ask him about die $400, and is there something else—something else you might be licking your chops on?
“[DELANEY]: He wouldn’t talk to us about the homicide. I would like to talk to him about the homicide, but I don’t think he would be cooperative.”
Delaney concluded his testimony at the April 2 session by reiterating that his agenda was to “solve the Thompson murder and help resolve the BPU issues if possible. And somewhere in between we’ll find the right mix hopefully.” He said that whenever he interviews someone on the BPU matter, he always asks about the Chuck Thompson murder.
Delaney next appeared two sessions later, on April 16, and provided an update on his witness interviews, after which the following exchange occurred with the assistant district attorney:
“[PROSECUTOR], Obviously, you have a lot more experience in investigating things than any of us do. And obviously, you got a tremendous amount of information that you have been working on and a—
“[PROSECUTOR]. What would be your suggestion as far as things that we can look into or direction that you think that we should take? . . .
“[DELANEY], ... In all seriousness, obviously, I have kept a file open for a long time for a reason.
“The Rod Turner thing, I got to tell you guys, there has got to be an answer to why is he getting paid the money that he’s getting paid. We’re being told by many, many people that he’s not doing nothing. Whether that’s fifing false claims, I think you need to seriously look at it. ... I think you ought to bring Rod Turner in. I don’t think that he will talk. I don’t know.”
After Delaney relayed his thoughts to the grand jury on where they should focus their investigation and explained that the grand jury only had a limited time to act, a grand juror again brought up the Chuck Thompson murder:
“419001: In your heart you mentioned the murder at Jalisco. In your heart, do you think there is any land of relationship here?
“A. As I told you the first time I testified or when I testified about that issue, some of the same names in that case are coming up today. I will leave it at that. Murder is—there is never a statute of limitations and I have been working on it for 20 years and, you know, sometimes people get in a bind and get charged or indicted and they want to cooperate. Sometimes that will help us. I always look for that road too.
“419001: That is still open?
“A. Yes, it is very open.
“419001: If something comes out of this you can charge somebody?
“A. If something would come out of this or I mean, I actually think I know who did it and why, but to present it to 12 people, I don’t know that we’re ready, so.”
In response to the question of whether he believed that Reardon was credible, Delaney responded by again tying Turner to the murder case:
“And I mean you hear something about Rod Turner. You just don’t go to Rod Turner and say ‘Hey, is this true?’ Because, you know, I told you we tried talking to him on another case and he didn’t see a need to talk to us, so I’ll be shocked if he comes in and talks to you. Does that answer the question?”
Two sessions later, on April 30, 2008, Delaney provided another update to the grand jury and again referenced Turner s connection to the Thompson murder in explaining Turner’s relationship with a possible witness.
“And actually I think a surveillance report I did probably on the Chuck Thompson murder case—again keeping—trying to keep track of some of these people, I think he was seen with Rod Turner and Pat Scherzer out at an I-Hop or something out at the Kansas Speedway.”
The grand jury subpoenaed Turner to appear and testily at its session scheduled for June 25, 2008. Turner’s attorney sent a letter to the DA objecting to Turner’s appearance before the grand jury based upon Turner’s privilege against self-incrimination under the Fifth Amendment to the United States Constitution and invoking the attorney/client privilege with respect to his representation of BPU. The record is silent on whether any effort was made to obtain a waiver of the attorney/client privilege from BPU, and the grand jury refused to release Turner from the subpoena.
Immediately before Turner was called to testify, a district judge appeared before the grand jury and announced that he was there to give the grand jury additional instructions, copies of which would be provided for the jurors. Interestingly, the instruction referred to “[t]he defendant's invocation of his Fifth Amendment Right,” even though, as the Court of Appeals noted, Turner was not technically a defendant at that point. (Emphasis added.) The recitation of the instruction was as follows:
“Comes now the Court and by way of additional instructions to the Grand Jury does state as follows: The defendant’s invocation of his Fifth Amendment Right. A person properly summoned before the Grand Jury is required to appear as a witness for purpose of giving testimony. No witness before the Grand Jury shall be required to incriminate the witness’ self.
“If any witness appearing before the Grand Jury refuses to testify or to answer any questions asked in the course of the witness’ examination, the facts shall be communicated to a district judge of the judicial district in writing on which the question refused to be answered shall be stated.
“The judge shall then determine whether the witness is bound to answer or not. And tire Grand Jury shall be immediately informed of that decision. The Grand Jury shall not draw any inference of guilt from the fact that a defendant does not testify or refused to answer particular questions. You must not consider these facts in arriving at your decision regarding any indictment.
“These additional instructions to the Grand Jury must be considered in conjunction with the Grand Jury instructions and charges which you’ve already received. All instructions provided must be given equal weight in consideration during your deliberations.
“These additional instructions to tire Grand Jury, presented to the Grand Jury this 25th day of June, 2008. Signed by myself at this time.”
The district judge left the jury room after delivering the additional instruction. Then, prior to questioning Turner, the DA advised him of his statutoiy rights: “No. 1 is you have the right to not incriminate yourself. And No. 2, that you have tire right to counsel.” The DA then noted for the record that Turner had availed himself of the right to counsel, who was present. Turner’s counsel then made a record of certain matters, including the June 19 letter he sent to the DA, raising objections to the proceedings and to Turner’s appearance at the proceeding. The attorney noted that the DA had been advised that Turner would invoke his rights under the Fifth Amendment. Additionally, counsel referred to the Amer ican Bar Association rules concerning prosecutors calling witnesses before the grand jury who are the subject of the investigation and recited the special responsibility of a prosecutor under Kansas Rules of Professional Conduct (KRPC) 3.8(e) (2013 Kan. Ct. R. Annot. 614) to “not subpoena a lawyer in a grand jury... to present evidence about a past or present client” except under limited circumstances. The attorney also requested the DA to instruct the jury that no adverse inference could be drawn from Turner s assertion of his Fifth Amendment right, to which the DA replied that the grand jury had been “so instructed by Judge Lampson.”
The DA then commenced upon a course of plethoric questioning that elicited over 100 identical successive responses from Turner in which he refused to answer on the grounds that it may tend to incriminate him, i.e., in which he invoked the statutory right of which the DA had just advised him. Many, if not most, of the DA’s questions were leading questions that may have suggested to the jurors what tire DA believed the facts to be. The DA did not communicate in writing with tire district judge about Turner s refusal to testify or about tire questions Turner refused to answer, as the district judge’s additional instructions had directed.
The DA then invited the jurors to join in, and one of the grand jurors asked four pointed questions, all of which elicited the same response from Turner: “I refuse to answer on the grounds it may tend to incriminate me.” The DA jumped back in to ask eight more unanswered questions before another grand juror concluded the one-sided interrogation of the nonresponsive witness by asking: “As a citizen of Wyandotte County don’t you think in your opinion that we ought to know as citizens where our money is going?” The jurors, like the DA, failed to communicate in writing with the district judge as he had just finished instructing them to do.
When Delaney next appeared before the grand jury, on July 30, 2008, he suggested an adverse inference might be drawn from Turner’s exercise of his constitutional and statutory right against self-incrimination because if Turner were innocent he would have shown the grand jury proof. Specifically, in response to the question from ADA Gray as to what had raised red flags or were big things for the investigator, Delaney responded:
“The consulting is an issue. I think the outside counsel is an issue.. .. The Rod Turner to me is just so blatant. I mean, I can't explain—I’m not a lawyer, but if he’s got proof of what he’s doing for the BPU why doesn’t he show it to us, or why doesn’t he show it to you. That’s just an opinion of mine. I’m not a lawyer. I’m just a cop.”
At that July 30 grand jury session, Delaney once again alluded to the Thompson murder case when testifying about statements obtained from Pat Scherzer, BPU’s insurance agent and a close acquaintance of Turner, who had also been a one-time target of the grand jury investigation. Specifically, Delaney said:
“And also an interesting tidbit of information I thought was, he asked about me, the KBI being involved in the BPU case, and that we were trying to use the BPU case to solve the Chuck Thompson murder. If you remember that’s the politician that was lolled in 1987.
“And apparently Mr. Scherzer thought supposedly thought that we were writing a book about it. And that’s the farthest thing from the truth. But anyway—it’s interesting that he’s concerned about this case, and then all of a sudden he’s interested in the Chuck Thompson murder. So just a little tidbit for your information.”
Delaney next testified on August 13, 2008, and again discussed Scherzer’s alleged statements that Delaney was using the BPU case to help solve the Thompson murder and that Delaney was going to write a book about solving the case. Delaney declared:
“Well, that ain’t happening. I ain’t writing a book. It is happening, we are trying to solve the Chuck Thompson murder. When there’s individuals involved in that murder and if their names came up in this case, so be it. That’s the way it goes. By the way, I’m not writing a book.”
Delaney also testified about conversations that an attorney, who was representing BPU Board members before the grand juiy, had with District Attorney Gorman about Delaney’s use of the grand jury proceedings to solve the Chuck Thompson murder. Delaney related:
“Yesterday Jerry Gorman, your district attorney, said Tom Bath, who is representing the Board of Public Utilities board members, apparently has been approached by some board member, their concern that Bill Delaney asking BPU people connected—people connected to the BPU case, this case, that I’m asking them questions about the Chuck Thompson murder. That apparently concerns them for some reason. I don’t know why.
“But I guess they don’t like people with BPU or somehow involved in a murder, you know, they are concerned about that. And they were apparently asking—this board member or board members thought that they should go to my supervisor and complain.
“Mr. Bath said, let me talk to Mr. Gorman and see what’s going on. Mr. Gorman advised me of this yesterday. I don’t know when that conversation took place. I don’t care when it took place. I’ve called my bosses and told my bosses—I have two. I have an assistant director in Topeka. I called him and actually the director oftheICBI.
“I said, just to let you know, you may be getting a complaint on me but—you may be getting a complaint on it, but just to let you know it’s going to happen and that I don’t really care. And I want to be right up-front about diat.”
The grand jury returned a sealed indictment charging Turner with 2 counts of theft and 55 counts of presenting a false claim arising from Turner’s submission of invoices that were not itemized. Conklin, BPU’s general counsel who had approved Turner’s invoices, was also indicted for 2 counts of theft and 55 counts of allowing a false claim, albeit he died prior to being prosecuted. No other individuals were indicted, and none of the actual specific allegations in the petition used to convene the grand jury was the basis for any criminal charge.
Turner filed a motion to dismiss the indictments for grand jury abuse and violation of his constitutional rights. He complained about the grand jury’s requirement that he appear and invoke his Fifth Amendment privilege after each of the hundred-plus questions. Turner also argued that he was unduly prejudiced by Delaney’s frequent references to his alleged connection to the Thompson murder. After conducting a hearing on the motion, the trial court determined that Turner’s “rights were prejudiced by the grand jury abuses and the State’s violation of his Constitutional rights,” and the court sustained Turner’s motion to dismiss the indictment after specifically finding that:
“1. The State and its investigative officer undermined the grand jury process and deprived Mr. Turner of due process and his Fifth Amendment rights.
“2. The grand juiy was repeatedly subjected to unsupported statements concerning the murder of Chuck Thompson, which occurred over twenty years ago. The murder was irrelevant to the alleged [BPU] violations that the grand juiy was charged with investigating, but the State allowed information and speculation about the murder to be thrust into the hands of the grand juiy proceeding.
“3. While testifying before the grand juiy, the State’s investigator attempted to link Mr. Turner to the murder or at least give the illusion that he was somehow connected thereto. This was highly improper and prejudicial and his comments tainted the grand jury and violated . . . Mr. Turner’s rights of due process.
“4. The State caused Mr. Turner to appear before the grand jury even though it knew that he would exercise his Fifth Amendment rights and that he would not waive his attorney-client privilege held by his relationship with the BPU.
“5. During the grand jury proceeding, the State’s investigator was permitted to cast doubt on Mr. Turner’s constitutional rights by commenting that Mr. Turner should come forward with information about the Thompson murder and about his dealings with the BPU.
“6. The State failed to conduct a fair grand juiy proceeding and allowed information to be presented to the grand jury in a manner that caused the grand juiy to become prejudiced against Mr. Turner.”
The State appealed the indictment dismissal to the Court of Appeals, which reversed the district court’s decision. State v. Turner, 45 Kan. App. 2d 744, 250 P.3d 286 (2011). The Court of Appeals first considered the district court’s determination that Turner’s Fifth Amendment rights had been violated. The panel found that the district court had applied an incorrect legal standard in determining that the prosecutor had violated Turner’s Fifth Amendment right against self-incrimination because, in the panel’s opinion, a witness may be required to appear before the grand jury and assert his or her Fifth Amendment rights on a question-by-question basis. 45 Kan. App. 2d at 754. The panel did find that Delaney had violated Turner’s constitutional right to remain silent in testimony given after Turner had invoked that right, but the panel determined that Turner had not shown that he was prejudiced by that constitutional error. 45 Kan. App. 2d at 756.
Next, the panel found “that it constituted an abuse of discretion for the district court to find that the State Tailed to conduct a fair grand juiy proceeding’ without reading all the transcripts of the entire grand jury proceedings.” 45 Kan. App. 2d at 757. Nevertheless, the panel embarked upon its own review of the entire record and discovered that Delaney had made “multiple references to his involvement in the Thompson murder investigation” and that “[a]ll of these references were irrelevant and unnecessary to die grand jury’s investigation of Turner and the BPU.” 45 Kan. App. 2d at 758. But the panel held that, because the errors occurred as isolated episodes over the course of a 6-month investigation and because substantial evidence was presented before the grand jury to support probable cause for Turner s indictment, “it seems unlikely that Delaney s improper testimony had ‘a substantial effect on the grand jury’s decision’ to indict Turner.” 45 Kan. App. 2d at 764 (quoting Bank of Nova Scotia v. United States, 487. U.S. 250, 263, 108 S. Ct. 2369, 101 L. Ed. 2d 228 [1988]). Moreover, the panel proffered the alternative justification that “Turner’s constitutional rights can be protected at trial.” 45 Kan. App. 2d at 764.
Turner petitioned for review of the Court of Appeals decision, in part complaining that the Court of Appeals disregarded the abuse of discretion standard of review “by wholly substituting its own decision for that of the District Court” and that the panel essentially abolished important constitutional rights in grand jury proceedings. Turner argues that the district court’s determination that the State violated Turner’s Fifth Amendment and due process rights by conducting improper and prejudicial grand jury proceedings was supported by at least three State actions: (1) The DA required Turner to repeatedly invoke his Fifth Amendment right to remain silent over 100 times in the presence of the grand jury, after being advised beforehand that Turner would invoke that constitutional and statutory right; (2) the State’s chief investigator im-permissibly commented on Turner’s invocation of his Fifth Amendment right to remain silent after Turner had been called as a witness; and (3) the State’s chief investigator repeatedly testified about, and linked Turner to, an unrelated murder. We agree on all counts.
Dismissal of Grand Jury Indictment
Although the Court of Appeals reversed the district court’s dismissal of Turner’s indictment, the panel did not do so because the proceedings were free of error. To the contrary, the panel found Delaney’s multiple references to the Thompson murder to be “irrelevant and unnecessary” to the grand jury inquiry and ultimately labeled that portion of the State’s evidence as “Delaney’s improper testimony.” 45 Kan. App. 2d at 758, 764. The State did not seek review of that portion of the Court of Appeals’ decision. Likewise, the panel found constitutional error in Delaney’s comments on Turner’s exercise of his right to remain silent. Again, die State has not asked us to reverse that Court of Appeals holding.
Accordingly, the disposition of this review will hinge upon die question of whether the irregularities and improprieties in the grand jury proceedings already determined by the courts below justified the district court’s dismissal of the ensuing indictment. En route to that determination, we will review the Court of Appeals’ assessment of the nature and extent of grand juiy abuses in this case.
Standard of Review
The Court of Appeals declared that it was utilizing an abuse of discretion standard to review the district court’s dismissal of Turner’s indictment. Turner, 45 Kan. App. 2d at 749-50. The panel relied in part upon its determination that the district court had used an incorrect legal standard and in part upon its determination that the entire record did not support the lower court’s holding. We have clarified that both legal and factual infirmities can form the basis for an abuse of discretion:
“Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. [Citation omitted.] In some cases, this three-part standard may narrow the broad discretion previously allowed when this court routinely applied only the no-reasonable-person-would-take-the-same-view standard. [Citation omitted.]” State v. Ward, 292 Kan. 541, 550-51, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Within that context/where we are called upon to determine whether constitutional rights have been violated, we review the district court’s factual findings for substantial competent evidence, but the ultimate legal conclusion is reviewed as a question of law utilizing an unlimited standard of review. State v. Bell, 280 Kan. 358, 362, 121 P.3d 972 (2005). In addition, whether a defendant’s due process rights are violated is a question of law over which this court exercises de novo review. See State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008).
Analysis
The Court of Appeals began by discussing Turners Fifth Amendment rights, albeit those guarantees are actually enforced against state actions through the Fourteenth Amendment of the United States Constitution. See Malloy v. Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Nevertheless, to avoid confusion, we will continue the panel’s reference to Fifth Amendment rights. The part of that amendment that is relevant to our inquiiy reads as follows: “[N]or shall [any person] be compelled in any Criminal Case to be a witness against himself.” U.S. Const, amend. V. Further, we would also note in passing that our state constitution contains a privilege against self-incrimination as well. Kansas Constitution Bill of Rights, § 10.
Moreover, the right to remain silent is a deep-rooted, fundamental privilege. It is universally applicable to protect an individual from being compelled to answer “official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). Clearly, then, the constitutional right against self-incrimination was available to protect Turner from being compelled to answer official questions put to him by the prosecutor at a grand jury proceeding where the answers might incriminate Turner in a future criminal proceeding, such as one arising from an indictment by the grand jury before which he was testifying. Indeed, K.S.A. 22-3008(4) specifically codifies the constitutional right for grand jury proceedings: “No witness before a grand jury shall be required to incriminate the witness’ self.” Any suggestion that the constitutional right was somehow diluted'or diminished because a grand jury is an investigatory proceeding rather than a criminal action ignores the purpose of the privilege.
State’s Questioning
The first Fifth Amendment issue addressed by the panel was Turner’s complaint that the DA should not have made him invoice his right against self-incrimination over 100 times in front of the grand jurors. The Court of Appeals relied heavily upon In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 475, 932 P.2d 1023 (1997), where a Court of Appeals panel opined that pursuant to statutory language and interpretive caselaw, “a person called as a witness in an inquisition under K.S.A. 22-3101 et seq. is not provided blanket immunity from answering questions, and the district court correctly required the witness to assert a Fifth Amendment right on a question-by-question basis.” The panel in this case declared: “Due to the similarities between an inquisition and a grand jury proceeding, the analysis of a witness’ Fifth Amendment rights in the context of an inquisition is applicable to a grand jury proceeding as well.” Turner, 45 Kan. App. 2d at 752. We reject that premise because the inquisition analogy is fallacious.
While inquisitions and grand jury proceedings share some common procedural statutes, they are pointedly different in the areas impacting the protection of an individual’s constitutional rights. First, and foremost, an inquisition does not involve any nonlawyers; layperson jurors are not in charge of an inquisition. Compare K.S.A. 22-3101 with K.S.A. 22-3001(3). A prosecuting attorney applies to a judge to conduct an inquisition, and the judge is charged with issuing subpoenas. K.S.A. 22-3101(1). In the course of the inquisition, the judge has the hands-on responsibility to prevent the prosecutor from abusing the judicial process. See Alpha Med. Clinic v. Anderson, 280 Kan. 903, 918, 128 P.3d 364 (2006). Upon completion of the inquisition, nothing happens until the prosecuting attorney exercises his or her professional judgment and discretion to file a complaint. See K.S.A. 22-3103.
The absence of nonlawyers participating in an inquisition is important for a number of reasons, not the least of which is that the prosecutor has no one to improperly influence by asking numerous leading questions to a witness invoking Fifth Amendment rights. Pointedly, T.H. did not even address whether requiring a question-by-question invocation of Fifth Amendment rights could be prejudicial to those rights, presumably because none of the participants at an inquisition should be confused about the meaning of such a refusal to answer. In contrast, a layperson would naturally intuit that a person refusing to answer on the grounds that it might incriminate the witness is simply trying to hide his or her guilt. If the witness has nothing to hide, why doesn’t the witness just answer the questions? KBI Agent Delaney would put that thought into the heads of these grand jurors.
Moreover, both the prosecutor and the presiding judge at an inquisition are subject to rules of professional conduct, as well as having taken an oath of office to uphold the law, including our constitutions. Although lay grand jurors also take an oath, failure to comply does not put their professional livelihood at risk.
Further, the disposition in a grand jury differs significantly from the purely investigative function of an inquisition. In the event that the State’s law-trained representative exercises his or her prose-cutorial discretion and files a criminal complaint based upon information gleaned during an inquisition, the defendant still has a right to a probable cause determination under the Fourth Amendment to the United States Constitution and a Kansas statutoiy right to a preliminary hearing. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975) (“the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest”); K.S.A. 22-2902(1) (preliminary hearing procedures).
In stark contrast, the endgame for a grand jury is to issue an indictment upon the concurrence of 12 of the 15 jurors. K.S.A. 22-3011. In that event, no further test for probable cause is required and the indicted defendant is not entitled to a preliminary hearing. See State v. Clemons, 261 Kan. 66, 68, 929 P.2d 749 (1996). In Vasquez v. Hillery, 474 U.S. 254, 263, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986), the United States Supreme Court held that the intentional discrimination in grand jury selection is a grave constitutional trespass and, en route to that holding, the Court recognized that a grand juiy’s power transcends mere investigation:
“Nor are we persuaded that discrimination in the grand jury has no effect on die fairness of the criminal trials diat result from diat grand jury’s actions. The grand jury does not determine only that probable cause exists to believe diat a defendant committed a crime, or that it does not. In die hands of the grand jury lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offense—all on the basis of the same facts.”
Granted, a grand júry does not determine the guilt or innocence of a defendant, like a petit jury, but the consequences of a grand jury indictment are serious. See K.S.A. 22-3011(3) (“Indictments found by the grand jury shall be presented by its presiding juror, in the jury’s presence, to the court and shall be filed and remain as records of the court.”). Moreover, the need to protect an accused individual’s constitutional rights before factfinders who are not trained in the law and consequently do not know and understand those constitutional rights is precisely the same with a grand jury as it is with a petit jury.
Finally, although the Court of Appeals pointed out similar statutory provisions relating to inquisitions and grand juries, it overlooked some significant textual differences. Specifically, K.S.A. 22-3008 deals with immunity for grand juiy witnesses and provides, in relevant part:
“(3) If any witness appearing before a grand jury refuses to testify or to answer any questions asked in the course of the witness’ examination, the fact shall be communicated to a district judge of the judicial district in writing, on which the question refused to be answered shall be stated. The judge shall then determine whether the witness is bound to answer or not, and the grand jury shall be immediately informed of the decision.” (Emphasis added.)
The disjunctive—refuses to testify or to answer any questions-—certainly suggests that “any witness” has the option of refusing to provide any testimony before a grand jury until a judge orders otherwise, rather than having the sole choice of refusing to answer question-by-question. No similar provision is found in the inquisition statutes. Instead, those statutes provide that a witness may not be compelled to self-incriminate, but the witness may be judged in contempt of court if he or she refuses to answer any “proper question propounded during the inquisition.” K.S.A. 22-3101(3).
Turner suggests that he should not have been required to appear before the grand jury at all after his attorney advised the DA that Turner would invoke his Fifth Amendment rights. But we need not wrestle with that question here. Turner appeared before the grand jury and clearly invoked his constitutional and statutory rights against self-incrimination, and the DA failed to follow the procedure set forth in K.S.A. 22-3008(3). The DA did not communicate in writing to the judge that Turner refused to testify and then await direction from the court. Instead, the DA chose to ask a hundred plus questions, knowing that Turner could not refute the substance of tire questions without waiving his Fifth Amendment right to remain silent. An example of the DA’s tactics follows:
“Q. Was Marc Conklin just submitting the bills to the BPU for Rodney L. Turner?
“A. I refuse to answer on the grounds it may tend to incriminate me.
“Q. Did you and Mr. Conklin discuss this matter airead of time?
“A. I refuse to answer on the grounds it may tend to incriminate me.
“Q. The monies that you’ve received, some $411,000 or $412,000 for the period of 2003 through March of 2008, did you share those monies with anyone else?
“A. I refuse to answer on the grounds it may tend to incriminate me.
“Q. Were those monies received for legal services?
“A. I refuse to answer on the grounds it may tend to incriminate me.
“Q. Can you name one legal service you performed for the Board of Public Utilities?
“A. I refuse to answer on the grounds it may tend to incriminate me.”
By that ploy, the DA could suggest to the grand juiy what the State believed the facts to be. And perhaps more damning, the questioning could create the impression that for each and eveiy question that Turner refused to answer, he must have something to hide. In State v. Crumm, 232 Kan. 254, Syl. ¶ 1, 654 P.2d 417 (1982), where the defendant attempted to call as a witness a potential suspect in the case whose counsel had advised that the witness would claim her Fifth Amendment rights, this court clarified that “[i]t is improper conduct for either the prosecution or the defense knowingly to call a witness who will claim a privilege, for the purpose of impressing upon the juiy the fact of the claim of privilege.” The Crumm Court expanded on the reasons behind that prohibition:
“ ‘Further, a witness’s reliance on the Fifth Amendment “may have a disproportionate impact upon the minds of the jurors.” [Citation omitted.] “The jury may diinlc it high courtroom drama of probative significance when a witness ‘takes the Fifth.’ In reality, the probative value of die event is almost entirely undercut by the ... fact that it is a form, of evidence not subject to cross-examination. “ [Citation omitted.] Because the impact of a witness’s refusal to testify outiueighs its probative value, "[i]t is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to tire prosecution or the defense.” [Citations omitted.]’ ” (Emphasis added.) 232 Kan. at 260 (quoting Com. v. Hesketh, 386 Mass. 153, 157, 434 N.E.2d 1238 [1982]).
It is difficult to discern how a grand juror would be immune to those adverse consequences from which we scrupulously protect a petit juror. Granted, here, the district judge had instructed the grand jury that it was not to draw any adverse inference from Turner s invocation of his Fifth Amendment privilege. But tire DA’s incessant and probing questioning sent an entirely different message. We know from the record that at least some of the jurors received the DA’s message loud and clear, as demonstrated by the jurors’ pointed questions to Turner, including one juror’s manifestation of bias against Turner: “As a citizen of Wyandotte County don’t you think in your opinion that we ought to know as citizens where our money is going?” In other words, the district court’s admonition to the grand jurors to refrain from drawing any adverse inference from Turner’s invocation of his Fifth Amendment rights did not survive to the end of the State’s questioning, and the DA did nothing to correct the questioning jurors or to reinforce the district judge’s admonition.
Additionally, the questioning went beyond creating inferences or suspicions with regard to the padded invoices allegations being investigated. For instance, the DA referred to a letter in which the correspondent had copied the Disciplinary Administrator and then inquired: “Can you explain to me what that was about?” Of course, the DA knew that Turner had to leave the suggestion of unethical conduct dangling before the jurors without a response. Similarly, the DA inquired about some real estate investments, intimating that Turner, Conklin, and others were in cahoots on some shady deals.
But the DA did not do all of the damage by himself. The prosecutors permitted, if not aided and abetted, Delaney to encourage the grand jury to call Turner as a witness and to suggest to the jurors that Turner should be willing to tell them what he did to justify tire invoices. Then, after Turner appeared and refused to testify, the prosecutors permitted Delaney to again tell the jurors that Turner should prove what work he had been performing for BPU. The jurors did not have to draw adverse inferences from Turner’s refusal to testify because the State’s chief investigator outright told them that Turner was wrong to invoice his constitutional right to remain silent.
Accordingly, we agree with the district court that the DA’s persistent questioning of Turner, after learning that he was invoicing his Fifth Amendment right against self-incrimination, was improper and would provide at least part of the justification for dismissing the resulting indictment. We reverse the Court of Appeals’ holding to the contrary.
Comment on Silence
Next, the panel addressed the district court’s holding that “ ‘[djuring the grand jury proceeding, the State’s investigator was permitted to cast doubt on Mr. Turner’s constitutional rights by commenting that Mr. Turner should come forward with information about the Thompson murder and about his dealings with the BPU.’ ” State v. Turner, 45 Kan. App. 2d 744, 754, 250 P.3d 286 (2011). Curiously, the panel first opined that “there is no direct legal authority for the proposition that a comment by a witness to a Kansas grand jury about another witness’ silence at a grand jury is improper, much less a violation of constitutional rights.” 45 Kan. App. 2d at 756. But then the opinion summarily declares that “Delaney’s comment on Turner’s refusal to testify, after he had expressly invoked his right to remain silent, violated his constitutional rights under the Fifth Amendment.” 45 Kan. App. 2d at 756.
We agree with the panel’s conclusion, and we find support in the rationale behind Doyle v. Ohio, 426 U.S. 610, 619-20, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), and its progeny for prohibiting the State from using a witness’ silence for impeachment purposes at a grand jury proceeding. Doyle and its progeny are founded upon the notion that it is fundamentally unfair to advise a person that he or she has the right to remain silent and then impeach that person with the fact that he or she exercised the right. Turner had both a constitutional and statutoiy right to remain silent when called before the grand jury, and the prosecutor dutifully advised Turner of that right. When tire State’s chief investigator, Delaney, suggested to the grand jury that it should draw an adverse inference from Turner’s failure to explain his billing invoices and the prosecutor did nothing to correct that impropriety, the State violated the Due Process Clause of the Fourteenth Amendment. Cf. Doyle, 426 U.S. at 619; State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d 387 (1976). Where we part company with the Court of Appeals is when it opines that Turner had the burden and failed to prove that the State’s constitutional violation prejudiced him. We will discuss the harmlessness of the various errors below.
Abuse of the Grand Jury Process
In dismissing the indictment, the district court made the additional finding that the “State failed to conduct a fair grand jury proceeding and allowed information to be presented to the grand jury in a manner that caused the grand jury to become prejudiced against Mr. Turner.” That finding was based upon Delaney’s repeated references to the 1987 Thompson murder, intimating that Turner had information about that crime and suggesting that indicting Turner on the false claims and theft charges could help the KBI agent solve the murder case.
The panel reviewed the abuse of process complaint as a matter of due process. Citing to a quarter-centuiy old Wyoming case, Hennigan v. State, 746 P.2d 360 (Wyo. 1987), the Court of Appeals rejected the notion that due process rights attach in a grand jury proceeding in the same manner as in a criminal trial. Turner, 45 Kan. App. 2d at 760. But the panel did not explain what process Turner was due in these proceedings, opting instead to decide that Turner was not prejudiced by the improper testimony in the grand jury proceeding and, without prejudice, due process rights are not deemed to be violated. 45 Kan. App. 2d at 764.
The Fifth and Fourteenth Amendments to the United States Constitution protect an individual’s due process rights and prohibit the deprivation of a significant life, liberty, or property interest. Hudson v. State, 273 Kan. 251, 259, 42 P.3d 150 (2002). Obviously, the target of a grand jury investigation has a significant liberty interest at stake and is entitled to due process protection. The essence of due process is fairness between the State and the individual dealing with the State. See Chiles v. State, 254 Kan. 888, 902, 869 P.2d 707 (1994). “A State’s decision regarding the administration of justice is subject to proscription under the Due Process Clause of the Fourteenth Amendment to the United States Constitution if ‘ “it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Citations omitted.)’ ” State v. Bethel, 275 Kan. 456, 461, 66 P.3d 840 (2003) (quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 53 L. Ed. 2d 281 [1977]).
Our grand jury statutes provide some insight into the due process requirements in such proceedings. For instance, K.S.A. 22-3002(2) permits dismissal of an indictment based upon an objection to the “array or on die lack of legal qualification of an individual juror,” suggesting that a target of an investigation is entitled to a grand jury free from discrimination. See Vasquez, 474 U.S. at 263. K.S.A. 22-3003, which governs the grand juror’s oath, specifically provides that grand jurors are required to be fair and impartial. See also State v. Chong, 86 Hawaii App. 290, 293, 949 P.2d 130 (1997) (In Hawaii, constitutional due process requires a fair and impartial grand jury proceeding.). But most importantly for our purposes here, the grand juror’s oath directs that the juror is to base the indictment on “legal evidence.” K.S.A. 22-3003. Legal evidence has been defined as “[a]ll admissible evidence, both oral and documentary, of such a character that it reasonably and substantially proves the point rather than merely raising suspicion or conjecture.” Black’s Law Dictionaiy 598 (8th ed. 2004).
Thus, our statutes contemplate that due process mandates that a Kansas grand jury should only issue an indictment based on legal evidence, rather than suspicion or conjecture. See also People v. Backus, 23 Cal. 3d 360, 393, 152 Cal. Rptr. 710, 590 P.2d 837 (1979) (When the extent of incompetent and irrelevant evidence before the grand jury is such that, under instructions and advice given by the prosecutor, it is unreasonable to expect that the grand jury could limit its consideration to admissible, relevant evidence, defendants have been denied due process.). But cf. Bracy v. United States, 435 U.S. 1301, 1302, 98 S. Ct. 1171, 55 L. Ed. 2d 489 (1978) (while presentation of inadmissible evidence at trial may pose substantial threat to integrity of factfinding process, its introduction before grand jury poses no such threat).
Here, the irrelevant and unnecessary evidence of Turner’s involvement in or knowledge of the unrelated Thompson homicide was more than extraneous clutter that the jurors had to wade through. Delaney presented drat evidence as part of the basis upon which the grand jury should indict on the padded billings charges, i.e., so that the agent could coerce Turner’s cooperation to solve the murder case. Certainly, then, where the indictment is potentially ¿«sed on irrelevant evidence, the process has not attained the fundamental fairness required by due process protections. We have no problem labeling as a due process violation Delaney’s irrelevant and unnecessary testimony about tire Thompson murder case, which was sponsored, or at least enabled, by the prosecutors.
Dismissal of the Indictment
To review, we have identified the following errors in the grand jury proceedings: (1) The DA violated Turner’s Fifth Amendment right against self-incrimination by asking him numerous questions in front of the grand jury which required him to invoke the privilege over 100 times; (2) the State’s chief investigator for the grand jury impermissibly commented on Turner’s silence in violation of his Fifth Amendment right against self-incrimination; and (3) the State-sponsored testimony of the chief investigator violated Turner’s due process rights by introducing irrelevant and unnec-essaiy evidence about an unrelated murder case and suggesting that the grand jury should indict on the present case to help solve the prior murder case. Our final step is to determine whether those errors warranted a dismissal of the indictment.
Before proceeding, we pause to briefly address the Court of Appeals’ declaration that the district court erred in not reading the entire grand juiy transcript before ruling that the egregious errors pointed out by Turner were prejudicial. Pointedly, the panel did not identify what portions of the unread transcript provide an excuse or cure of the constitutional violations pointed out by tire defense. Moreover, as the panel pointed out, the entire transcript is provided on appeal and the State is free to point out to us those portions of the transcript that favor the State’s position.
Although the Court of Appeals found a constitutional violation, it placed the burden on Turner to establish that the errors were prejudicial. Cf. State v. Ward, 292 Kan. 541, 568-69, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (burden to show harmless error on party benefiting from the error; constitutional violations require greater degree of certainty of harmlessness). Relying on Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S. Ct. 2369, 101 L. Ed. 2d 228 (1988), the panel held that, given the existence of substantial competent evidence in the record to support the indictment, Turner had failed to meet his burden of establishing prejudice. Turner, 45 Kan. App. 2d at 764. We disagree with several aspects of the panel’s holding.
Our first disagreement is with the panel’s placing the burden of proof on Turner to establish that the constitutional violations committed by agents of the State were not harmless error. The district court ruled in favor of Turner and the State appealed, acknowledging that errors occurred in the grand jury proceedings which would have caused a reversal of a trial verdict but arguing that the errors were harmless in the context of this grand jury proceeding. The State needed to prove its theory of appeal; Turner was not required to prove the fallacy of the State’s argument. Moreover, since Ward, we have consistently placed the burden of proving harmlessness upon the party that benefitted from die error.
Next, we do not read the Supreme Court’s holding in Bank of Nova Scotia as supporting the proposition for which die panel uses it. Nowhere in the opinion did the Bank of Nova Scotia Court declare that the existence of sufficient evidence to support an indictment renders harmless any and all errors in the proceedings, as a matter of law. To the contraiy, the issue presented in that case was whether “a district court may invoke its supervisory power to dismiss an indictment for prosecutorial misconduct in a grand jury investigation, where the misconduct does not prejudice the defen dants.” 487 U.S. at 252. In answering the prejudice question, the Supreme Court looked at the effect of the violations on the decision-making process, rather than considering whether the evidence was sufficient without the errors. Specifically, the Supreme Court applied a nonconstitutional harmless error standard, which it stated as follows:
“[T]he District Court had no authority to dismiss the indictment on the basis of prosecutorial misconduct absent a finding that petitioners were prejudiced by such misconduct. The prejudicial inquiry must focus on whether any violations had an effect on the grand jury’s decision to indict. If violations did substantially influence this decision, or there is grave doubt that the decision to indict was free from such substantial influence, the violations cannot be deemed harmless.” (Emphasis added.) 487 U.S. at 263.
Certainly, if nonconstitutional violations cannot be deemed harmless where there is grave doubt that the decision to indict was free from the substantial influence of the errors, constitutional violations cannot be deemed harmless under that standard. The substantial influence of the State’s violations is readily apparent in the record before us, creating grave doubt about the efficacy of the indictment, i.e., the Bank of Nova Scotia test has been met in this case.
Although the Court of Appeals applied its own test for prejudice, we nevertheless take issue with the panel’s rationale for finding no prejudice. For instance, the panel declared that the alleged errors “occurred as isolated episodes over the course of a 6-month investigation involving at least 27 witnesses and 97 exhibits.” Turner, 45 Kan. App. 2d at 761-62. That declaration cannot stand up to closer factual scrutiny. While the time span between the grand jury’s first meeting on March 5, 2008, and its last meeting on August 27, 2008, is almost 6 months on a calendar, the grand jury was in session on only 17 days during that time span. In other words, describing the grand juiy proceedings as a 2]/2-week investigation appears more accurate tiran calling it a 6-month investigation. And within that shorter time frame, Delaney’s erroneous presentation of the irrelevant and unnecessary evidence of the unrelated murder case played a relatively major role in the proceedings, when compared to die other witnesses and exhibits to which the panel alluded. The KBI agent appeared before the grand jury on 10 of the 17 days it was in session, i.e., over ½ of die days the jury met, it was exposed to the influence of Delaney. None of the other witnesses came close to dominating the jury’s time in such a fashion. On 6 of those days in which Delaney testified, i.e., over ½ of all of the sessions, the KBI agent improperly and unconstitutionally attempted to connect Turner to the Thompson murder. “Pervasive” more accurately describes the frequency of errors; they were certainly not “isolated.”
Moreover, ADA Gray signaled the jury as to the weight it should give to Delaney’s testimony, as compared to the other witnesses, when she inquired of the agent as follows: “Obviously, you have a lot more experience in investigating things than any of us do. And obviously, you got a tremendous amount of information that you have been working on and a— . . . What would be your suggestion as far as things that we can look into or direction that you think that we should take?” Accordingly, the KBI agent’s suggestions that the jurors needed to indict Turner on the false claims and theft charges in order to permit the agent to solve a murder case would have been compelling for a lay juror in that context. In other words, the errors would have substantially influenced the grand jury’s decision to indict, if not compel such a result.
Against that backdrop, the State’s remaining evidence pales in comparison. As the panel recited, the State presented witness after witness who testified that they did not know what work Turner did for BPU. One suspects that Are prosecutors could have presented a couple of hundred thousand other people who could have also truthfully testified that they did not know what work Turner performed for BPU. To be clear, these witnesses did not testify that they had personal knowledge that Turner did not earn tire amount he billed. They just did not know what he had done to earn it, in contrast to those witnesses that had personal knowledge that Turner did perform work for BPU, which die panel conveniently overlooked. Those witnesses included Board members John Petty, Loretta Colombel, and Mark Jones; Board secretary Terry Edison; chief counsel for the Unified Government Hal Walker; and former BPU general manager Leon Daggett, who said he could discuss the business he transacted with Turner if BPU waived its attorney/ client privilege. In sum, the only evidence supporting the indictment was Turner s unitemized bills, testimony from certain individuals who were unaware of the specific nature of work Turner did for BPU, and witnesses who refused to breach the attorney/ client privilege in order to answer the grand jury’s questions about what work was performed. Contrary to the Court of Appeals’ belief, such equivocal nonproof testimony does not cure or trump the egregious errors visited upon these proceedings that polluted the process and denied fundamental fairness.
Consequently, we reverse the Court of Appeals and affirm the district court’s dismissal of the indictment.
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Per Curiam:
This is an uncontested attorney discipline proceeding against Andrew M. Delaney of Hiawatha, an attorney admitted to the practice of law in Kansas in 2002.
On April 3, 2014, the office of tire Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). Respondent answered on April 15, 2014, admitting the allegations in the formal complaint. In December 2013 and January 2014, counsel for respondent submitted drafts of a proposed probation plan to the Disciplinary Administrator for comments and suggestions. On April 8, 2014, counsel for respondent finalized the proposed probation plan and submitted it to the hearing panel and the Disciplinary Administrator.
A panel of the Kansas Board for Discipline of Attorneys held a hearing on May 6, 2014, at which respondent appeared in person and through counsel. The hearing panel determined the respondent violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication); KRPC 1.8(e) (2013 Kan. Ct. R. Annot. 528) (conflict of interest); KRPC 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); KRPC 8.1 (2013 Kan. Ct. R. Annot. 646) (timely response to disciplinary inquiry); and Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (duty to aid Disciplinary Administrator in investigation of complaints).
Upon conclusion of the hearing, the panel made the following findings of fact by clear and convincing evidence and then made its conclusions of law, together with its recommendation to this court:
“Findings of Fact
“8. Andrew M. Delaney (hereinafter ‘the respondent’) is an attorney at law, Kansas attorney registration number 20476. His last registration address with the clerk of the appellate courts of Kansas is . . . Hiawatha, Kansas .... The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on April 26, 2002.
“DA11078 and DA1152
“9. In 2010, two complaints were filed against the respondent. Following the investigation, the respondent entered into the attorney diversion program in connection with the two disciplinary complaints. The respondent did not successfully complete the diversion program.
“10. Kan. Sup. Ct. R. 203(d)(2)(vii) provides the procedure to follow when an attorney fails to complete the terms and conditions of diversion:
‘Failure to Complete the Attorney Diversion Program. If the Respondent fails to complete the agreed tasks in a timely manner at any point in the diversion process, he or she may be terminated from the program. If such a termination occurs, traditional formal disciplinary procedures will resume. When the complaint is returned to the formal disciplinary process, the Respondent’s termination from the Attorney Diversion Program may be cited as an additional aggravating factor in recommending discipline and as a violation of Supreme Court Rule 207 and KRPC 8.1.’
“11. Additionally, pursuant to Kan. Sup. Ct. R. 203(d)(2)(i), ‘[b]y entering into [the] diversion agreement, the Respondent stipulate[d] to the factual allegations and rule violations . . . that can be mutually agreed upon by the Disciplinary Administrator and the Respo'ndent.’ In die diversion agreement, die Disciplinary Administrator and the respondent agreed to the following facts and rule violations:
‘8. The Disciplinary Administrator and the Respondent stipulate to the following facts:
DA 11,078
a. [C.B.] retained Respondent in October 2007 for a divorce.
b. The case was heard in February 2008. There was difficulty getting a hearing date.
c. Respondent prepared a journal entry and sent it to opposing counsel.
d. Respondent did not receive the signed journal entry back, so on March 31, 2008, he sent opposing counsel another copy.
e. The journal entry was filed April 7, 2008.
f. The QDRO provided Respondent’s client receive 100% of a 401K that was administered by Albaugh, Inc. The same day as the hearing, February 29, 2008, Respondent sent a request to Albaugh asking for advice on how to proceed.
g. The QDRO paperwork was complete on August 14, 2008.
h. Respondent admits he forgot about the QDRO until the next January.
i. Respondent contacted Albaugh on how to withdraw the funds. By this time, the account had lost $3000 due to the decline in the stock market. However, at the time of the divorce, the ex-husband was only 60% vested and there was a 10% early withdrawal penalty. The actual financial harm to the client from the delay is estimated to be less than $2,000.
j. The same client, in the spring of 2009, engaged in a relationship with a man who was willing to adopt her son.
k. The ex-husband consented to the adoption and signed a consent form in April 2009.
l. Complainant requested the adoption be completed before tire child started school, so he could enter schqol with his name already changed.
m. Respondent suggested they wait on the adoption until after they were married.
n. Complainant got married in September 2009.
o. The adoption case was not set until December 2009. The court would not accept the consent form signed by die ex-husband because it had been signed in April 2009.
p. The Respondent tracked the ex-husband down and got anodier consent form signed. The adoption was completed.
q. The Respondent waived his fee and did not require Complainant to pay tlie filing fee. Respondent refunded $300.00 of his $500.00 retainer and gave Complainant $500.00 in cash to be used to buy Christmas presents.
DA 11,152
a. [C.M.B.] engaged Respondent in February 2009 for help in dissolution of a partnership. No fee was paid.
b. A petition for dissolution of partnership and for partition was filed in April 2009.
c. Motions for default judgments were filed in June 2009.
d. Respondent had difficulty obtaining service on all parties.
e. In December 2009, Respondent apologized to Complainant for the delay. This was one of the very few contacts Respondent had with Complainant, despite Complainant’s attempts to contact him.
f. In February 2010, Complainant attempted to secure new counsel.
g. In March 2010, Complainant threatened to file a disciplinary action against Respondent. Respondent did not contact Complainant. A complaint was filed in July 2010.
‘9. The Disciplinary Administrator and the Respondent agree that the Respondent violated KRPC 1.3,1.4, 1.8(e) and 3.2.’
“DAI 1784
“12. On March 13, 2013, N.R. filed a complaint against the respondent for issues arising out of the respondent’s representation of N.R. in a' child in need of care proceeding. It appears that N.R. complained that the respondent failed to appear in court for a hearing, that he failed to return her telephone calls, and that he provided her with bad advice on how to get her children returned to her custody. [The review committee of tire Kansas Board for Discipline of Attorneys determined that probable cause did not exist to conclude that the respondent violated the Kansas Rules of Professional Conduct with regard to the respondent’s representation of N.R. Case number DA11784 is before the hearing panel solely on the allegation that the respondent failed to cooperate in the disciplinary investigation.]
“13. On March 22, 2013, Ms. Knoll wrote to the respondent, enclosed a copy of N.R.’s complaint, and directed the respondent to provide a written response to tire complaint within 20 days. The respondent failed to provide a written response to tire complaint.
“14. Thereafter, the disciplinary administrator referred N.R.’s complaint to the Topeka Ethics and Grievance Committee for investigation. Lucky DeFries, chair of the Topeka Ethics and Grievance Committee, appointed Stephen W. Cavanaugh to investigate the complaint. On April 16, 2013, and on May 7, 2013, Mr. Cavanaugh wrote to the respondent, directing the respondent to provide a written response to the complaint filed by N.R. The respondent failed to provide a written response as directed by Mr. Cavanaugh.
“15. On June 3, 2013, William C. Delaney, special investigator for the disciplinary administrator was assigned to attempt to locate die respondent. On June 6, 2013, Mr. Delaney personally contacted the respondent at the Brown County Courthouse in Hiawatha, Kansas. Mr. Delaney met with the respondent at the courthouse to discuss tire complaint filed by N.R. The respondent informed Mr. Delaney that he was aware of the complaint and had no excuse for failing to provide a written answer to the complaint. The respondent promised to provide a written response to the complaint within the next few days. The respondent stated that he was not ‘snubbing’ tire disciplinary administrator’s office but that he had a number of issues at that time. Mr. Delaney provided the respondent with 10 additional days to provide a written response to N.R.’s complaint.
“16. On June 13, 2013, the respondent forwarded a written response to the complaint filed by N.R., to Mr. Delaney.
“Conclusions of Law
“17. Based upon the respondent’s admissions in his answer, the respondent’s stipulations in the diversion agreement, and the findings of fact above, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.8(e), KRPC 3.2, KRPC 8.1, and Kan. Sup. Ct. R. 207, as detailed below.
“KRPC 1.3
“18. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent C.B. by failing to taire action on die QDRO and by failing to timely complete the adoption. The respondent failed to diligendy represent C.M.B. by failing to timely get service on the defendant and prosecute the dissolution of partnership case. Because the respondent failed to act widi reasonable diligence and promptness in representing his clients, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“19. KRPC 1.4(a) provides diat ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the respondent violated KRPC 1.4(a) when he failed remain in contact widi C.M.B., despite C.M.B.’s attempts to contact the respondent. Accordingly, the hearing panel concludes diat the respondent violated KRPC 1.4(a).
“KRPC 1.8(e)
“20. The respondent also violated KRPC 1.8(e). KRPC 1.8(e) provides:
‘A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
‘(1) a lawyer may advance court costs and expenses of litigation, die repayment of which may be contingent on the outcome of the matter; and
‘(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.’
In his representation of C.B., the respondent paid the filing fee and gave C.B. $500 in cash to be used to purchase Christmas presents. As such, the hearing panel concludes that the respondent violated KRPC 1.8(e).
“KRPC 3.2
“21. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. The respondent caused unnecessary delay in C.B.’s adoption case and in C.M.B.’s dissolution of partnership case. Thus, the hearing panel concludes that the respondent violated KRPC 3.2.
“KRPC 8.1 and Kan. Sup. Ct. R. 207(b)
“22. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority.. .’ KRPC 8.1(b).
Tt shall be the duty of each member of the bar of this state to aid the Supreme Court, tire Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The respondent knew that he was required to forward a written response to the initial complaints—he had been repeatedly instructed to do so in writing by Ms. Knoll and Mr. Cavanaugh. Because the respondent knowingly failed to provide a timely written response to the initial complaint filed by N.R., tire hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“American Bar Association Standards for Imposing Laioijer Sanctions
“23. In making this recommendation for discipline, the hearing panel considered tire factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by tire lawyer’s misconduct, and tire existence of aggravating or mitigating factors.
“24. Duty 'Violated. The respondent violated his duty to his clients to provide diligent representation and adequate communication. The respondent also violated his duty to the legal system to expedite litigation. Finally, the respondent violated his duty to the legal profession to cooperate in disciplinary investigations.
“25. Mental State. The respondent knowingly violated his duties.
“26. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to C.B., C.M.B., the legal system, and the legal profession. The harm to C.B. can be quantified at less than $2,000.
“Aggravating and Mitigating Factors
“27. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“28. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct.
“29. Multiple Offenses. The respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.8(e), KRPC 3.2, KRPC 8.1, and Kan. Sup. Ct. R. 207. Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“30. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The respondent failed to comply with requests for information made by the disciplinary administrator. As such, the hearing panel concludes that the respondent obstructed the disciplinary proceeding.
“31. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 2002. At the time of the misconduct, the respondent has been practicing law for more than 10 years.
“32. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, die hearing panel, in this case, found the following mitigating circumstances present:
“33. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“34. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from major depressive disorder. It is clear that the respondent’s depression contributed to his misconduct.
“35. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. While the respondent failed to cooperate during the disciplinary investigation, he fully cooperated with the disciplinary process during the prosecution of the formal complaint. Additionally, the respondent admitted the facts that gave rise to the violations.
“36. Previous Good Character and Reputation in the Community Including Any Letters from Clients, Friends and Lawyers in Support of the Character and General Reputation of the Attorney. The respondent is an active and productive member of the bar of Hiawatha, Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by the testimony of a number of attorneys.
“37. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“38. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.32 Suspension is generally appropriate when a lawyer knows of a conflict of interest and does not fully disclose to a client the possible effect of that conflict, and causes injury or potential injuiy to a client.
‘4.33 Reprimand is generally appropriate when a lawyer is negligent in determining whether the representation of a client may be materially affected by the lawyer’s own interests, or whether the representation will adversely affect another client, and causes injury or potential injury to a client.
‘4.42 Suspension is generally appropriate when:
‘(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
‘(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
‘4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injuiy to a client.
‘7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injuiy or potential injury to a client, the public, or the legal system.’
“Recommendation
“39. The disciplinary administrator and the respondent recommended that the respondent be placed on probation, under die respondent’s proposed plan of probation. The disciplinary administrator would have recommended that the respondent be suspended for a period of six months followed by a reinstatement hearing, under Kan. Sup. Ct. R. 219, had the respondent not taken so many proactive steps to get his house in order.
“40. Accordingly, based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent be suspended for a period of six months. The hearing panel further recommends that the suspension be suspended and the respondent be placed on probation for a period of 2 years, subject to the following terms and conditions:
“a. KALAP. The respondent will comply with the terms and conditions of the monitoring agreement, executed on September 20,2013. If the monitoring attorney or Anne McDonald determines that die monitoring agreement should be changed or extended, the respondent will consent to the changes or extensions. The respondent will provide the monitoring attorney and KALAP with an appropriate release of information to allow the monitoring attorney and KALAP to provide information to the practice supervisor, tire counselor, and die disciplinary administrator.
“b. Inventory of Cases and Clients. The respondent will maintain an inventory of all open cases and clients. The respondent will update the inventory on a daily basis. The inventory will include die client’s name, the client’s contact information, die client’s goal, the tasks that remain to be completed, all pending deadlines, and the forum (if any) in which the matter is pending.
“c. Client Communication. The respondent will return all telephone calls within 48 business hours. The respondent will contact each client by letter at least once every three months regarding tire status of the matter.
“d. Restitution. The respondent will refund $2,000 to C.B. within 90 days of the date of this report.
“e. Practice Supervision. William R. McQuillan will serve as the respondent’s practice supervisor. The respondent will provide the practice supervisor with an updated copy of the inventory of cases and clients on a monthly basis. The respondent will allow the practice supervisor access to his client files, calendar, and trust account records. The respondent will meet with tire practice supervisor once a week. The meetings will be face-to-face or by telephone, in the judgment of the practice supervisor. The respondent will comply with any requests made by the practice supervisor. The practice supervisor will prepare a quarterly report to the disciplinary administrator regarding the respondent’s status on probation. The respondent will provide tire practice supervisor with an appropriate release of information to allow tire practice supervisor to provide such information to the counselor, KALAP, the monitoring attorney, and tire disciplinary administrator. The practice supervisor will be acting as an officer and an agent of the court while supervising the probation and monitoring the respondent’s legal practice. As supervising attorney, the practice supervisor will be afforded all immunities granted by Kan. Sup. Ct. R. 223 during the course of his supervising activities.
“f. Psychological Treatment. The respondent will continue his treatment for depression throughout the period of supervised probation, unless the counselor determines that continued treatment is no longer necessary. The counselor will notify the practice supervisor and tire disciplinary administrator in the event that the respondent discontinues treatment against the recommendation of the counselor during the probationary period. The respondent will provide the counselor with an appropriate release of information to allow die counselor to provide such information to the practice supervisor, KALAP, the monitoring attorney, and the disciplinary administrator.
“g. Medication. The respondent will comply widi the prescription medication plan developed by this primary care physician or psychiatrist.
“h. Office Procedures. Within ten days of this report, the respondent will provide die practice supervisor and die disciplinary administrator with written office procedures designed to monitor die status, deadlines, and court appearances of all matters in which he has undertaken representation. The respondent will modify that procedure if directed to do so by the practice supervisor or the disciplinary administrator. The respondent will follow the written office procedures.
“i. Calendar. On a weekly basis, the respondent and the supervising attorney will review the respondent’s calendar to ensure diat appropriate notices have been sent, diat the respondent is properly prepared for all events on his scheduled, and that all files have been properly updated.
“j. Mail. Someone, other dian the respondent, should be charged with opening the respondent’s mail on a daily basis.
“k. Billing, Fee Agreements, and Conflict List. The respondent will review all billing procedures with the practice supervisor. The respondent will have a written fee agreement on each and every case in his inventory. A conflict list will be prepared and kept at the office to ensure that no conflicts arise in any of the new cases the respondent undertakes. The conflict list will be reviewed by the supervising attorney.
“1. Audits. Within thirty (30) days of tire date of this report, the practice supervisor will conduct an initial audit of the respondent’s files. Thereafter, every six months, the practice supervisor will conduct additional audits. If the practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, die practice supervisor will include such information in his report. The practice supervisor will provide the disciplinary administrator and the respondent with a copy of each audit report. The respondent will follow all recommendations and correct all deficiencies noted in the practice supervisor’s periodic audit reports. At the conclusion of the period of probation, the respondent wiE submit to the practice supervisor a detailed account of his active files and the practice supervisor will conduct a final audit.
“m. Continued Cooperation. The respondent will continue to cooperate with the disciplinary administrator. If the disciplinary administrator requests any additional information, the respondent will timely provide such information.
“n. Additional Violations. The respondent will not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the respondent will immediately report such violation to tire practice supervisor and the disciplinary administrator. The disciplinary administrator will take immediate action directing the respondent to show cause why the probation should not be revoked.
“41. Costs are assessed against the respondent in an amount to be certified by the office of the disciplinary administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the disciplinary panel’s findings, and the parties’ arguments to determine whether KRPC violations exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster, 292 Kan. 940, 945, 258 P.3d 375 (2011); see Supreme Court Rule 211(f) (2013 Kan. Ct. R. Annot. 356). Clear and convincing evidence is “ ‘evidence that causes the factfinder to believe that “the truth of the facts asserted is highly probable.” ’ ” In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]).
Respondent was given adequate notice of the formal complaint, to which he filed an answer. The Disciplinaiy Administrator’s office and respondent entered into a written stipulation upon which the panel’s final hearing report was based in part. Respondent filed no exceptions to the final hearing report. As such, the panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2013 Kan. Ct. R. Annot. 375).
The evidence before the hearing panel establishes by clear and convincing evidence the charged misconduct violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4 (2013 Kan. Ct. R. Annot. 484) (communication); 1.8(e) (2013 Kan. Ct. R. Annot. 527) (conflict of interest); 3.2 (2013 Kan. Ct. R. Annot. 587) (expediting litigation); 8.1 (2013 Kan. Ct. R. Annot. 646) (timely response to disciplinary inquiry); Kansas Supreme Court Rule 207 (2013 Kan. Ct. R. Annot. 336) (duty to disciplinary administrator), and it supports the panel’s conclusions of law. We adopt the panel’s findings and conclusions.
The only remaining issue for this court is determining the appropriate discipline for respondent’s violations. At die hearing before this court, the Disciplinary Administrator and respondent jointly requested that this court adopt the hearing panel’s recommended discipline, as recited in the hearing panel’s report at Paragraph 40. The hearing panel’s recommendations are advisory only and do not prevent us from imposing greater or lesser sanctions. Supreme Court Rule 212(f) (2013 Kan. Ct. R. Annot. 375); see In re Kline, 298 Kan. 96, 212-13, 311 P.3d 321 (2013).
We agree with the parties that hearing panel’s recommendation as recited in Paragraph 40 of its report is the appropriate discipline, with the modification that if the probation is revoked and a suspension invoked due to respondent’s failure to comply with the terms and conditions in the probation plan, he must have a reinstatement hearing pursuant to Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407).
Conclusion and Discipline
It Is Therefore Ordered that Andrew M. Delaney be suspended from the practice of law in the state of Kansas, in accordance with Supreme Court Rule 203(a)(2) and (5) (2013 Kan. Ct. R. Annot. 300), for a 6-month period but imposition of this discipline shall be stayed and respondent placed on probation under the terms and conditions set out in Paragraph 40 of the hearing panel report as modified by this court in this decision for a 2-year period beginning the date this opinion is filed.
It Is Further Ordered that if Andrew M. Delaney during his probationary period fails to comply with the terms and conditions of his probation, a show cause order shall issue and this court will take whatever disciplinary action appears just and proper without further formal proceedings.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Luckert, J.:
Willie E. Reed was convicted by a jury of two counts of aggravated indecent liberties with a child under the age of 14, in violation of K.S.A. 21-3504(a)(3)(A). The offenses, which occurred approximately 2 years apart, involved two 8-year-old girls, C.T. and A.R. The sentencing judge imposed concurrent life sentences without the possibility of parole for 40 years. Now Reed appeals, raising five issues relating to alleged trial errors and one issue relating to sentencing: (1) Was the evidence sufficient to support Reed’s convictions; (2) did the trial judge err by admitting into evidence two handwritten notes, one from each victim describing her version of events; (3) did the trial judge err by admitting into evidence the victims’ recorded statements; (4) during Reed’s testimony, did the trial judge err by allowing the prosecutor to ask questions which, according to Reed, pointed to his postarrest silence; (5) even if no single error warrants setting aside Reed’s convictions, does the cumulative error doctrine entitle Reed to a new trial; and (6) does Jessica’s Law, K.S.A. 21-4643, as applied to Reed, constitute cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution?
Reed failed to preserve several of these arguments by not making a timely and specific objection to evidence or not creating a suffi cient record for appeal. Reed’s remaining arguments lack merit, leading us to affirm Reed’s convictions and sentences.
Facts and Procedural Background
The incident involving C.T. took place at her home between August 1, 2006, and September 30, 2006. C.T.’s stepfather regularly invited friends, including Reed, to watch Sunday football at the family’s home. According to C.T.’s trial testimony, one day while Reed and others were at her house watching football, Reed entered her room. C.T. was on her bed, lying on her stomach, and reading a book. Reed leaned over her and “humped [her] back and forth.” When asked which of Reed’s body parts was touching her, C.T. said it was his “hip area and down,” and C.T.’s mother testified that C.T. also referred to him touching her with his “private.” C.T. further explained that Reed rubbed against “tire middle of [her] back and down” to the “knee area.” Reed then went into the bathroom, which could only be accessed through C.T.’s bedroom or the master bedroom. When he came out, he told C.T. “to get on the ground so he could see what [she] was reading.” C.T. knelt next to her bed and leaned on the bed with the book in front of her. Then, Reed knelt down behind her and “humped [her] back and forth again” with his “private.” C.T. said she got up to get a drink of water, and he left.
C.T. told her parents about Reed’s conduct a couple of weeks later. C.T.’s parents decided they would not report tire incident to law enforcement, but C.T.’s mother suggested C.T. write about the incident in her journal. C.T.’s mother explained to the jury that Reed was no longer welcome in their home, and if they and Reed happened to attend the same event, C.T.’s parents would either leave or keep their daughter close to them.
The incident involving A.R. occurred 2 years later on or about September 1, 2008, at a Labor Day barbecue at which Reed, A.R., and A.R.’s family were guests in a mutual friend’s home. A.R. testified she wanted to play in the backyard with her 14-year-old brother and some other children, but her brother told her to go to the front yard. As they argued, Reed came up to A.R. and told her it was “okay” and she did not “have to worry about it.” He told her to “come on” and started walking with A.R. around the house to the front yard. Reed draped his arm over her shoulder and placed his hand on her buttocks. According to A.R., when they got to tire “vent” (air conditioning unit) at the side of the house, Reed stopped her and pulled her in front of him. He then pressed the “front of his pants” against her “butt.” A.R. explained to the jury that by “front of his pants,” she meant the area used for “peeing.” A.R. told him to stop and ran away.
At some point, Reed approached A.R.’s brother and asked him something like, “[I]f somebody ever touch[ed] my sister, would I take up for her, or would I do something for her.” A.PCs brother found the question odd and simply told Reed, “[Y]eah, I would take up for her.”
Later that night, A.R. told her mother about her encounter with Reed. At some point that night or the next day, A.R. also told her aunt. A.R.’s mother, like C.T.’s mother, told her daughter to write a note about what happened at the barbecue. A.R. did so on September 8, 2008, approximately 1 week after the incident.
C.T.’s mother heard about the incident involving A.R. from A.R.’s aunt. This led to C.T’s and A.R.’s mothers visiting. The two mothers decided to file police reports and to turn over their daughters’ handwritten descriptions of what had happened with Reed.
Reed was charged with two counts of aggravated indecent liberties with a child under the age of 14. At trial, Reed testified in his own defense and denied ever touching either girl. With regard to the 2006 allegation involving C.T., Reed acknowledged that because of the layout of the house, he passed through C.T.’s bedroom to access the bathroom. When asked if he had ever seen C.T. “over at the house,” Reed said, “Yes.” But he denied seeing C.T. on her bed reading a book on tire day in question. With regard to the 2008 allegation involving A.R., Reed denied having any contact with A.R. or even seeing her at the barbecue. He testified that the “[fjirst time I laid eyes” on A.R. was at the trial.
A jury convicted Reed as charged. Because he was over 18 years old when he committed these crimes and because of prior convictions for sex offenses, the sentencing judge, pursuant to K.S.A. 21-4643(a)(1)(C) and (b)(1), imposed a life sentence with a mandatory minimum term of 40 years’ imprisonment for each count and ordered the sentences to run concurrent. Reed brings a timely appeal, over which this court has jurisdiction under K.S.A. 22-3601(b)(1) (convicted of off-grid crime; case docketed before July 1, 2011).
Evidence Was Sufficient
First, Reed argues that the evidence presented by the State was insufficient to support his convictions. “When examining tire sufficiency of the evidence in a criminal case, the standard of [appellate] review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. 292 Kan. at 581; see State v. Spear, 297 Kan. 780, 791, 304 P.3d 1246 (2013).
In order to apply this standard in this case, we must consider the evidence as it relates to the elements of aggravated indecent liberties with a child under 14 years of age. To prove the charges, die State had to show that (1) Reed lewdly fondled or touched C.T. and A.R.; (2) he engaged in this conduct with die intent to arouse or satisfy die “sexual desires of either the child or the offender, or both”; (3) C.T. and A.R. were under the age of 14 at the time of die acts; and (4) the conduct took place in Wyandotte County on or about the dates alleged in the criminal complaint. See K.S.A. 21-3504(a)(3)(A); PIK Crim. 3d 57.06 (aggravated indecent liberties with a child).
Reed challenges the sufficiency of the evidence regarding the first two elements, i.e., the act of lewdly fondling or touching and the specific intent to arouse or satisfy his sexual desires, the sexual desires of the girls, or both.
Lewd Fondling or Touching
Consistent with Kansas law, the jury was given the following pattern instruction in which the term “lewd fondling or touching” was defined:
“As used in these instructions, ‘lewd fondling or touching’ means fondling or touching in a manner which tends to undermine the morals of the victim, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the victim or tire offender or both. Lewd fondling or touching does not require contact with tire sex organ of one or the other.”
See PIK Crim. 3d 53.00 (definitions and explanations of terms).
Reed acknowledges that the PIK instruction correctly describes the prohibited conduct, but he argues his conduct does not meet the definition. He notes that he and each girl were fully clothed and there was no sldn-to-skin contact between him and either girl. He also argues he did not use his hands to reach under their clothes and touch their “actual body parts or skin,” nor did he ask the girls to touch him. Although the evidence showed that Reed touched A.R.’s buttocks, Reed attempts to minimize this act by noting that A.R.’s testimony showed he “only touched her fully-clothed bottom,” and he suggests the buttocks are not a sex organ, which he describes as the “breasts or private area.” He argues there was no evidence he touched either girl in these areas.
These arguments attempt to recast the elements of the offense by adding requirements not found in the statutory definition of aggravated indecent liberties with a child under the age of 14, as defined in K.S.A. 21-3504(a)(3)(A). The legislature did not restrict the prohibited conduct by identifying body parts that could or could not be fondled or touched. Nor did the legislature specify that there must be skin-to-sldn contact or that the offender must use his or her hands to fondle or touch the victim for there to be a violation of the law. See State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977), overruled on other grounds by State v. Ta, 296 Kan. 230, Syl. ¶ 5, 290 P.3d 652 (2012). Instead, a touch is prohibited if it meets “the common meaning of the term lewd,’ drat is, whedrer a touch[] is 'sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious.’ ” Ta, 296 Kan. at 242-43 (quoting Wells, 223 Kan. at 98); see Black’s Law Dictionary 1047 (10th ed. 2014) (defining “lewd” as “[o]bscene or indecent; tending to moral impurity or wantonness”). In considering if a touch is lewd, a factfinder—in this case, the jury-—should consider whether the touch “tends to undermine the morals of a child [and] is so clearly offensive as to outrage the moral senses of a reasonable person.” Wells, 223 Kan. at 98; see State v. Colston, 290 Kan. 952, 967, 235 P.3d 1234 (2010).
When the evidence in this case is viewed in the light most favorable to the State, the State presented evidence that Reed’s touching of both C.T. and A.R. was lewd. C.T. testified that Reed “humped me back and forth.” There was also evidence indicating that Reed approached C.T. while she was alone in her bedroom, positioned himself behind her and, through their clothing, rubbed his “private,” i.e., his penis, against her buttocks and lower back. According to C.T., Reed rubbed his “private” on her both before and after he went into the adjoining bathroom.
As for the incident involving A.R., the State presented evidence that Reed led her to the side of the house, away from the other guests attending the barbecue, and touched her buttocks as they walked side by side. Reed attacks the credibility of A.R., suggesting A.R.’s testimony should be “discarded” because she was inconsistent in her description of Reed’s touching her buttocks and in other ways. This argument ignores the oft-stated rule that an appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013). Instead, we examine the evidence in the light most favorable to the State.
Accepting A.R.’s testimony without any reweighing, she established that Reed “was like, touching my bottom, like really touching my bottom.” Then, Reed stopped A.R. at the air conditioning unit and pulled her in front of him. At that point, he rubbed tire “front of his pants” on A.R.’s buttocks. She explained that the part of his body that touched her buttocks was the area used for “peeing.” In her interview with a social worker at Sunflower House, Inc., a child abuse prevention center, A.R. said Reed was “humping” her by moving up and down. A.R. testified that she told him to “stop” and got away from him.
Even with everyone fully clothed, a rational factfinder could have found that these touches tended to undermine the morals of C.T. and A.R. and to outrage the moral sense of a reasonable person. As such, the touches can be characterized as indecent, obscene, salacious, unchaste, or licentious. See Wells, 223 Kan. at 98. Hence, the State presented sufficient evidence that Reed committed “lewd fondling or touching” of C.T. and A.R.
Intent to Satisfy Sexual Desires
Reed also contends the State failed to present sufficient evidence of a specific intent to satisfy his sexual desires, tire sexual desires of the girls, or both. As he points out, there was no direct evidence of actual arousal or sexual intent. But this court has stated that “[a]ctual arousal or satisfaction of tire sexual desires of either participant is not necessary for the existence of the crime.” State v. Brown, 295 Kan. 181, 201, 284 P.3d 977 (2012). This construction arises from the plain language of K.S.A. 21-3504(a)(3)(A), which says nothing about actual arousal and instead prohibits “lewd fondling or touching. .. with the intent to arouse.” (Emphasis added.) See State v. Clark, 298 Kan. 843, 849, 317 P.3d 776 (2014). And it is well established that tire State can prove specific intent, which in this case includes sexual intent, with circumstantial evidence. State v. Hurd, 298 Kan. 555, 568, 316 P.3d 696 (2013); State v. Becker, 290 Kan. 842, 852, 235 P.3d 424 (2010), superceded by statute on other grounds as stated in State v. Todd, 299 Kan. 263, 273-74, 323 P.3d 829 (2014).
Reed attempts to deny the existence of sexual intent by arguing the points he made with regard to lewd touching. Namely, he notes that he did not touch the girls under their clothes, he did not touch their “breasts or private area,” and he did not ask the girls to touch him. Again, his argument fails. The existence of these circumstances would have strengthened the State’s case against Reed, but tire absence of them does not mean the evidence of intent was insufficient. Similar arguments regarding a lack of direct evidence were made by the defendant in Clark—where the victims’ grandfather draped his arm around the girls and rubbed their breasts over their clothing—and were rejected. Clark, 298 Kan. at 849-50. There, we held that regardless of the fact the defendant and the victims were fully clothed, “the repeated rubbing of both girls’ breast area, as opposed to an area of die body without sexual connotation, by its very nature suggests a sexual intent.” Clark, 298 Kan. at 850.
Likewise, in this case, circumstantial evidence showed Reed’s intent to arouse or satisfy sexual desires. He placed his hand on A.R.’s buttocks. And while there was no evidence of his placing his hand on C.T.’s buttocks, Reed’s pattern of conduct with both girls was consistent and demonstrates his sexual intent. Reed approached both girls in an area of isolation, he positioned himself behind them, and then he rubbed his genitalia against their buttocks. Reed’s act of rubbing the girls’ buttocks with his genitalia in a “humping” motion by its veiy nature suggests a sexual intent. See Clark, 298 Kan. at 850. Moreover, although Reed did not make any sexually charged comments to the girls, Reed’s awareness of the inappropriate nature of his actions, at least with respect to A.R., can also be inferred in Reed asking if A.R.’s brother would “take up for her” “if somebody ever touchfed]” his sister. See, e.g., State v. Huddleston, 298 Kan. 941, Syl. ¶ 3, 318 P.3d 140 (2014) (“A jury may draw an inference of intent when a defendant’s actions or words demonstrate that the defendant is conscious of his or her guilt.”).
Viewed in the light most favorable to the State, a rational fact-finder could conclude beyond a reasonable doubt that Reed’s actions, coupled with the circumstantial evidence that surrounded the incidents, was sufficient to demonstrate his intent to arouse or satisfy his sexual desires, the sexual desires of the girls, or both. See State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011) (“conviction of even the gravest offense ‘ “can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom” ’ ”), overruled on other grounds by State v. Astorga, 299 Kan. 395, 402, 324 P.3d 1046 (2014).
Handwritten Notes Were Admissible
Reed also argues the trial judge erred by admitting into evidence two handwritten notes, one from each victim, in which the girls described their versions of events. C.T.’s note stated:
“When daddy was in die other room his friend had came in my room and went to the restroom and when he came out he ask[ed] what I was reading[.] Then he leaned over me and started going up and down[.] Then he told me to get on the ground[.] [H]e got on me and did it again[.] Before that I told him I wanted some water and he waited for me and [sic] to come bacl<[.] Then did it a second time.”
A.R.’s note, which was not introduced into evidence until after she had testified, stated:
“To whom it may concern:
“He was touching the way I did not like. [H]e touched me on the butt and tryed [sic] to hump me[.] [H]e pull me over to him. We was on the side of the house. [B]ecuse [sic] he was talking to me[.] Because I was back there with my brother and my brother did not want me back there so he came [and] took [me] on the side of the house[.] [H]e playing like he talking to me and why [sic] we was walking he was touching on my butt and he told me to stop on the side of the house and start to hump me and I said stop.”
When the State sought to introduce each of the notes, Reed objected based on relevancy and hearsay. In response, the State argued the applicability of the hearsay exception found at K.S.A. 60-460(a), which allows the admission of a “statement previously made by a person who is present at the hearing and available for cross-examination.” The State further suggested the notes tended to show consistency in the girls’ statements and should be admissible because the defense’s theory was to “discredit these girls, that they are misremembering [sic] or they were blending memories.” After considering the parties’ arguments, the trial judge overruled Reed’s objections and found the evidence admissible.
In Reed’s brief before this court, he states the issue on appeal was whether the trial judge erred in admitting the notes because the notes “were impermissible hearsay and unnecessarily cumulative evidence causing great prejudice to Defendant’s right to a fair trial.” Yet, in the body of his argument the only authorities he cites are K.S.A. 60-407(f) (“all relevant evidence is admissible”) and State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 (1998), for its statement that “ ‘ “[t]he determination of relevancy is a matter of logic and experience, not a matter of law. [Citations omitted.]’ Thus, Reed mentions (1) hearsay, (2) cumulative nature, and (3) relevancy as the reasons tire handwritten notes should not have been admitted into evidence. Reed is not entitled to relief on any of these three grounds.
Significantly, all Reed does is mention hearsay in stating the issue! He cites no hearsay-related authority and does not explain why the hearsay exception cited by the State—K.S.A. 60-460(a) (prior statement of person who is present and available for cross-examination)—does not apply. “An issue not briefed by an appellant is deemed waived and abandoned.” State v. Boleyn, 297 Kan. 610, Syl. ¶ 10, 303 P.3d 680 (2013).
In addition, as the State argued, the handwritten notes were prior statements of the two girls, who were present and available for cross-examination. Although the State did not seek to admit A.R.’s statement until after Reed’s attorney had cross-examined A.R., the trial judge allowed Reed’s counsel to cross-examine her regarding the statement. Thus, the hearsay exception in K.S.A. 60-460(a) clearly applies.
As to Reed’s cumulative evidence argument, the cumulative nature of a prior statement and trial testimony are inherent in the hearsay exception relied upon by the State—K.S.A. 60-460(a). Furthermore, Reed did not object during the trial to the cumulative nature of the evidence. Thus, he has failed to satisfy K.S.A. 60-404, which provides that a verdict will not be set aside by reason of the erroneous admission of evidence unless “there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” This provision “dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). This court has emphasized the statutory requirement that the objection be specific, stating that “the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted.” State v. Richmond, 289 Kan. 419, 429, 212 P.3d 165 (2009). The statutory language also precludes appellate review when a party objects to evidence based on one ground at trial but then asserts a different ground on appeal because to allow otherwise “undercut[s] the purpose of contemporaneous objections.” 289 Kan. at 429; see State v. Huffmier, 297 Kan. 306, 319, 301 P.3d 669 (2013) (defendant may not object to admission of evidence on one ground at trial and then argue a different ground for objection on appeal); McCaslin, 291 Kan. at 707 (same).
Finally, Reed’s relevancy argument lacks merit. In arguing the victims’ handwritten notes were not relevant, Reed points out the notes were not used to refresh either witness’ recollection. Instead, the exhibits “did nothing but improperly bolster” the witnesses’ testimony. Reed then discusses reasons the victims’ statements and testimony are not credible. Ironically, his credibility argument validates the material and probative nature of the victims’ handwritten notes. As this court has previously recognized, prior statements by a witness are generally material and probative, i.e., relevant, because the consistency or lack thereof between the statement and the testimony either corroborates or undercuts the witness’ credibility. E.g., State v. Martinez, 290 Kan. 992, 1001, 236 P.3d 481 (2010); see K.S.A. 60-401(b) (evidence is relevant if it has “any tendency in reason to prove any material fact”); State v. Prine, 297 Kan. 460, 477, 303 P.3d 662 (2013) (discussing definition of relevant evidence); State v. Reid, 286 Kan. 494, 504-05, 186 P.3d 713 (2008) (same). Relevancy does not depend on whether the victims’ memories needed to be refreshed.
Our de novo assessment of the materiality of the evidence and our abuse-of-discretion review of the evidence’s probative value leads to the conclusion that the evidence was relevant. See State v. Shadden, 290 Kan. 803, 817, 235 P.3d 436 (2010) (citing Reid, 286 Kan. at 507-09, for de novo standard for materiality and abuse of discretion standard for probative-value determinations). Hence, the trial judge did not err in admitting the handwritten notes of each victim.
Video Recording Arguments Were Not Preserved
In Reed’s next argument, he contends the trial judge erred by admitting into evidence the statements of C.T. and A.R. through video recordings of their interviews with social workers at Sunflower House and through the testimony of those social workers.
During the trial, Reed objected to the admission of this evidence based solely on hearsay. Specifically, defense counsel referred to K.S.A. 22-3433, governing the admission of recorded statements of victims under the age of 13, and argued the statements were hearsay because, at that time during the progression of the trial, C.T. and A.R. had “not yet testified themselves as to what happened.” This was the extent of Reed’s objection. Both girls later took the witness stand and testified for the prosecution. On appeal, Reed concedes the girls’ statements to the social workers were not inadmissible hearsay. Reed also acknowledges that K.S.A. 22-3433 was repealed before his trial began.
Abandoning the trial objection, on appeal Reed argues that evidence of the girls’ statements “amounts to nothing more than an impermissible comment on the credibility of the child witnesses and improper cumulative testimony of what the children would say.” As a result, he contends the introduction of this evidence unfairly prejudiced him and deprived him of a fair trial. Further, Reed takes issue with specific portions of the video recordings, even though each video recording was admitted in its entirety with no discussion about redactions.
These arguments fail to clear the preservation hurdle we have already discussed—the need to make a timely and specific objection at trial in order to preserve an evidentiary objection. See K.S.A. 60-404. None of these objections was stated at trial. Posttrial, Reed filed a motion for new trial in which he raised the “cumulative evidence” argument. But this court has stated that raising different grounds for an evidentiary objection in a motion for new trial is “posttrial” and is “too late.” McCaslin, 291 Kan. at 708; see State v. Brinkley, 256 Kan. 808, 824, 888 P.2d 819 (1995) (declining to address an evidentiary challenge raised for the first time in a post-trial motion for new trial). The evidence was admitted widrout the trial judge having an opportunity to consider whether the evidence was inadmissible under the new grounds asserted by Reed.
Moreover, although Reed argues that he was denied his constitutional right to a fair trial, even “constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review.” State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). While there are exceptions to this general rule, Reed does not mention or brief them. And an issue not briefed by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012).
In light of Reed’s pursuit of new arguments on appeal—arguments he failed to preserve at trial—we do not address the merits of this issue. We note, however, that a portion of his argument overlaps with the relevancy arguments that we have already rejected with regard to the victims’ handwritten notes. See Martinez, 290 Kan. at 1001.
No Doyle Violation
Next, Reed argues the trial judge erred by allowing the prosecutor, over defense counsel’s objection, to introduce evidence of what he contends was his postarrest silence, citing Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). He contends the introduction of that evidence violated his constitutional right to remain silent. In response, the State argues there was no Doyle violation because, in the State’s view, the prosecutor’s questions focused on Reed’s prearrest silence, not postarrest silence.
Standard of Review
The parties disagree on which standard of review should apply. In the State’s appellate brief, it relies on a passing reference in Reed’s brief to prosecutorial misconduct and cites the standard of review applicable to allegations of prosecutorial misconduct; it addresses die merits of Reed’s arguments from that perspective alone. But Reed did not brief a prosecutorial misconduct issue. Therefore, that issue is not properly before this court. See Boleyn, 297 Kan. 610, Syl. ¶ 10 (“An issue not briefed by an appellant is deemed waived and abandoned.”).
Reed on the other hand cites the multistep standard of review that applies when an appellate court reviews a trial judge’s decision to admit or exclude evidence. See State v. Bridges, 297 Kan. 989, 995-96, 306 P.3d 244 (2013); Shadden, 290 Kan. at 817. Under this multistep analysis, the first question is relevance. Shadden, 290 Kan. at 817. Here, Reed does not argue relevancy in his appellate brief; thus, the argument is waived. See Boleyn, 297 Kan. 610, Syl. ¶ 10.
Second, it must be determined which rules of evidence or other legal principles apply. This conclusion is reviewed de novo. Shadden, 290 Kan. at 817; see State v. Sampson, 297 Kan. 288, 301, 301 P.3d 276 (2013) (claim that trial judge’s evidentiary ruling violated the defendant’s rights is reviewed de novo); State v. White, 279 Kan. 326, 331-33, 109 P.3d 1199 (2005) (same). The third step involves the application of the appropriate evidentiary rule or principle. This court’s review depends on the rule applied by the trial judge. Shadden, 290 Kan. at 817. If constitutional rights are not implicated, tire propriety and scope of cross-examination lies within the trial judge’s discretion and is reviewed on appeal for an abuse of discretion. See State v. Sharp, 289 Kan. 72, 97, 210 P.3d 590 (2009); see also State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (defining abuse of discretion).
Reed’s arguments focus on the second and third steps. The resolution of the second and third steps of the admissibility analysis in this case is dependent on whether Reed’s constitutional rights as protected by Doyle were implicated during the prosecutor’s cross-examination of Reed, which involves a question of law that is reviewed de novo. State v. Murray, 285 Kan. 503, 520, 174 P.3d 407 (2008), overruled on other grounds by State v. Marshall, 294 Kan. 850, 859-60, 281 P.3d 1112 (2012).
The Questions
Reed bases his argument on questions asked by the prosecutor during the State’s cross-examination of Reed. The prosecutor asked, “And you’ve had two years to think about how you would explain this to a jury, haven’t you?” After defense counsel objected, there was a bench conference after which the prosecutor again asked, “Mr. Reed, you’ve had nearly two years to think about how you would explain this to a jury?” Reed replied, “Nearly two years to drink about explaining it to a jury? It’s been almost two years.” Apparently die prosecutor took this statement as less of an answer to her question and more of a challenge to the calculation of the 2-year time frame because the prosecutor then tried to establish a starting point for the period. She asked, “And you knew about the allegations shortly after September, correct, of 2008?” Defense counsel objected and the prosecutor reframed the question, asking, “Are you saying you never had a conversation with anyone in [A.R.’s] or [C.T.’s] family or friends about what the girls had said prior to January of 2009?” Reed answered, “Not at all.”
Legal Principles
Reed suggests that tire prosecutor’s questions can be characterized as a Doyle violation. Doyle established that when a defendant invokes his or her right to remain silent after being given the Miranda warnings, the State may not “ ‘attempt to impeach a defendant’s credibility... by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent. State v. Brinkley, 256 Kan. 808, 820, 888 P.2d 819 (1995).’ ” State v. Drayton, 285 Kan. 689, 707, 175 P.3d 861 (2008) (quoting State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 [1998]); see Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966); State v. Kemble, 291 Kan. 109, 123, 238 P.3d 251 (2010).
This court has indicated that the “sequential, temporal relationship” between the reading of the Miranda warnings and the assertion of the right to remain silent is critical because “the Doyle Court held that ‘die use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated tire Due Process Clause of the Fourteenth Amendment.’ ” State v. Tully, 293 Kan. 176, 186, 262 P.3d 314 (2011) (quoting Doyle, 426 U.S. at 619). The rationale for this limitation is that “Doyle and its progeny did not provide unlimited protection to tire criminal defendant who testifies in his own behalf; rather, they stand for the principle that a defendant’s silence induced by government action cannot be used to impeach his credibility. [Citations omitted.]” State v. Massey, 247 Kan. 79, 82, 795 P.2d 344 (1990). This in ducement comes in the form of the Miranda warnings, which “imply that a person’s invocation of his or her right to silence will carry no penalty,” and because the exercise of the right to silence has been induced by that implication; thus, “a later breach of that bargain at trial offends due process.” State v. Wilkerson, 278 Kan. 147, 157, 91 P.3d 1181 (2004). As a result, a prosecutor’s reference to a defendant’s prearrest silence is not a Doyle violation. Jenkins v. Anderson, 447 U.S. 231, 238-40, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980).
In the present case, there are basically two references at issue. First, the prosecutor indicated during Reed’s cross-examination that Reed had had nearly 2 years since the September 2008 incident “to think about how you would explain dris to a jury.” Second, the prosecutor asked Reed whether he ever had a conversation with the victims’ family or friends “prior to January of 2009.” This date was apparently used because it is the date of Reed’s arrest. Presumably, Reed received Miranda warnings at this point.
We must merely assume this fact because the record does not establish when Reed was given the Miranda warnings. The failure to establish the point when the warnings were given is by itself sufficient to defeat Reed’s argument. See Wilkerson, 278 Kan. at 157 (noting record did not establish whether person was in custody or had received Miranda warnings before refusing to talk to investigators); 3 LaFave, Israel, King & Kerr, Criminal Procedure § 9.6(a), p. 497 n.47 (3d ed. 2007) (where a defendant asserts a Doyle violation, the defendant “ordinarily bears the burden of showing that Miranda warnings were given prior to the post-arrest silence used by the state for impeachment purposes”).
Nevertheless, even if we accept that the date of arrest sufficiently establishes the date on which Miranda warnings were given, Reed’s argument fails. The prosecutor’s second reference focused on the time period “prior to January of 2009” and thus only targeted Reed’s prearrest silence. To the extent it implies Reed’s prearrest silence, it did not violate Reed’s rights under Doyle. See State v. Hernandez, 284 Kan. 74, 91-92, 159 P.3d 950 (concluding Doyle violation not established when prosecutor’s question was unclear regarding whether referring to pre- or post-Miranda silence), cert. denied 552 U.S. 1025 (2007); Tully, 293 Kan. at 188 (no Doyle violation when reference is to pr e-Miranda silence).
The prosecutor s first reference—indicating that, at the time of trial, Reed had had nearly 2 years “to think about how you would explain this to a jury”—focused on the period between September 2008 and the trial in July 2010 and necessarily included both prear-rest and postarrest time. Nevertheless, tire prosecutor never mentioned law enforcement officers or Reed’s refusal to speak to them; thus, there was no indication Reed’s silence, if any, was induced by governmental action or the exercise of his constitutional rights.
Further, the question was poorly worded and led to an exchange between the prosecutor and Reed in an effort to pin down how the 2 years was being calculated, and the answer was at best ambiguous. Ultimately the question was rephrased to ask whether Reed had talked to either C.T.’s or A.R.’s families or friends about the accusations, which was permissible because it did not target governmentally induced, post-Miranda silence.
Consequently, Reed fails to provide a record establishing a Doyle violation.
No Error to Accumulate
In Reed’s final attack on his convictions, he claims the cumulative effect of the errors in the case, when considered in total, merits reversal. As the previous discussions have shown, however, we have not found any trial errors, and the cumulative error doctrine “does not apply if no error or only one error supports reversal.” State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 (2009) (citing State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 [2007]).
Not Cruel and/or Unusual Punishment
Finally, Reed argues that the imposition of life sentences without the possibility of parole for 40 years, under the circumstances of this case, is cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth Amendment to the United States Constitution. Citing State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), and its factors for evaluating whether a particular defendant’s sentence is cruel or unusual, Reed argues that when “[vjiewed on a continuum of other cases involving the crime of Aggravated Indecent Liberties with a Child, the acts in this case are far less egregious than the typical case.” He lists various factors that he believes should minimize his punishment. Specifically, Reed argues that his actions against C.T. and A.R. were not violent, and his encounter with each girl was “short in duration.” Reed recognizes that he was a registered sex offender at the time of the offenses in this case but attempts to diminish this fact by arguing, with no citations to the record, that his past convictions “involved consensual sexual contact with a 15-year-old girl.” In addition, Reed argues that he was a “hard-working husband and father” and was “gainfully and steadily employed” at the time of trial; again, he does not provide citations to the record to support these assertions.
The trial judge did not malee findings regarding these alleged facts. Nevertheless, in his appellate brief, Reed essentially asks this court to make the necessary factual findings or to remand the case to the district court for the same. This argument loses on three fronts.
First, “appellate courts do not make factual findings but review those made by district courts.” State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010).
Second, this court has consistently declined to address a defendant’s appellate argument regarding cruel and/or unusual punishment when the defendant has failed to develop the record below or, at least, cite to the record. See, e.g., State v. Roberts, 293 Kan. 1093, 1096-97, 272 P.3d 24 (2012); State v. Levy, 292 Kan. 379, 384-85, 253 P.3d 341 (2011); State v. Trevino, 290 Kan. 317, 320-22, 227 P.3d 951 (2010); State v. Mondragon, 289 Kan. 1158, 1163-65, 220 P.3d 369 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 159-61, 194 P.3d 1195 (2008); see also Supreme Court Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39) (facts included in appellant’s brief “must be keyed to the record on appeal by volume and page number”; court presumes “that a factual statement made without a reference to volume and page number has no support in the record on appeal”).
Reed attempts to distinguish these cases by pointing out that he raised his constitutionality argument at his sentencing hearing. In this regard, he is correct—he did more than some other defendants. Yet, he did not do enough, which brings us to the Üiird front on which his argument fails: Reed ignores the fact that he neither objected to the judge’s insufficient findings at the hearing, nor subsequently filed a motion under Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) or otherwise asked the sentencing judge to make factual findings.
In State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009), this court made it clear that “a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessaiy.” See Supreme Court Rule 165. Reed’s sentencing took place on October 8, 2010, and his journal entiy was filed on October 12, 2010. The Seward opinion was filed on October 2, 2009, a full year before Reed’s sentencing. A remand for factual findings is not appropriate in this case.
Because of the factual components of Reed’s arguments, Reed should have been aware that he was responsible for making sure there were adequate findings on the record. Having failed to do so, Reed’s state and federal constitutional challenges fail, and we affirm the sentencing judge’s imposition of concurrent life sentences without the possibility of parole for 40 years.
Affirmed.
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The opinion of the court was delivered by
Luckert, J.:
In this interlocutory appeal, a divided Court of Appeals panel affirmed a district judge’s order suppressing evidence seized during a warrantless vehicle search conducted incident to a traffic stop. State v. Jones, 47 Kan. App. 2d 866, 878, 280 P.3d 824 (2012). The three judges on the panel agreed the district judge erred in concluding that the pretextual nature of the traffic stop rendered the seizure constitutionally invalid, but a majority of the panel concluded the district judge’s decision to suppress the evidence should be affirmed on alternate grounds. Specifically, the majority held the law enforcement officer did not have a reasonable suspicion that justified the search. In the dissent, the third member of the panel concluded it was inappropriate to do anything but reverse and remand the case for additional findings by the district court regarding whether a reasonable suspicion existed.
On petition for review of that decision, we affirm the Court of Appeals majority. Although the dissenting judge was correct that an appellate court cannot conduct factfinding, an appellate court conducts a de novo review of the totality of the circumstances to determine whether reasonable suspicion exists. Hence, as long as the facts are undisputed or a reasonable suspicion determination can be made based on the district judge’s factual findings, an appellate court can assess whether reasonable suspicion exists. In this case, the undisputed facts and the district judge’s findings of fact are sufficient for appellate review of the totality of circumstances. Based on that review, we agree with the Court of Appeals majority that the circumstances did not establish a reasonable suspicion that justified a search of the vehicle. Thus, the search of the vehicle was invalid, and the evidence was appropriately suppressed.
We, therefore, affirm the district court and the Court of Appeals.
Procedural and Factual History
Kala Jones was stopped by Garden City Police Officer Bill Powers late one night when she was “just driving around” her mother’s neighborhood; she explained that she and her passengers—her little brother and one of his friends—wanted to hear the end of a song and so kept driving rather tiran stopping at her mother’s home. Officer Powers observed Jones “driving erratically.” He explained that he observed Jones “[tjurning abruptly, turning going [the] opposite direction[]” from the one she had been travelling and turning without signaling. Officer Powers suspected the driver was trying to avoid detection and pulled the vehicle over for various traffic infractions, including the failure to use a turn signal.
Officer Powers stopped Jones and asked for her identification. As Jones responded, according to the officer, “Her mouth appeared to be dry, to me, like she had cotton mouth. And her words were slurred.” Officer Powers also observed an empty, clear plastic baggy, which led to a “suspicion that there was something inside of the vehicle.” He testified that “from my training and experience, [the presence of a plastic baggy] indicates . . . the possibility of controlled substances.”
Officer Powers asked Jones for permission to search the vehicle, but Jones refused. Officer Powers contacted his immediate supervisor, who arrived 5 to 10 minutes after the stop, and then called for a K-9 unit. Officer Powers testified that approximately 15 to 20 minutes elapsed between the traffic stop and tire arrival of the K-9 unit; in comparison, it typically takes him approximately 10 to 15 minutes after initiating a traffic stop to write a citation. Jones disputed Officer Powers’ estimate of time, testifying that it took 10 or 15 minutes to run the check on her license and 40 minutes for the K-9 unit to arrive.
The K-9 detected the presence of illegal substances in the vehicle. A subsequent search of the vehicle revealed a purse in which three pen tubes were located. Officer Powers believed tire tubes were used to ingest cocaine. Officer Powers arrested Jones for possession of cocaine in violation of K.S.A. 2010 Supp. 21-36a06(a) and possession of drug paraphernalia in violation of K.S.A. 2010 Supp. 21-36a09(b)(2). He did not write a traffic citation or conduct any tests to determine whether Jones had been driving under the influence of drugs or alcohol.
Before Jones’ preliminary hearing, she filed a motion to suppress the evidence obtained during the warrantless search of her vehicle. An evidentiary hearing was conducted before District Magistrate Judge Ricklin J. Pierce at which both Officer Powers and Jones testified. The district magistrate judge denied the motion to suppress.
Before trial, Jones filed a second motion to suppress that was considered by District Judge Michael L. Quint. The State again presented Officer Powers’ testimony. Although the officer’s testimony was substantially similar to his previous testimony before the district magistrate judge, there were differences, and the hearing resulted in a different outcome. In a written order, the district judge suppressed the evidence obtained during the search of Jones’ vehicle. The judge acknowledged that the officer had testified to what he labeled as “erratic driving” and that there was conflicting evidence regarding the duration of tire stop. The judge then concluded:
“13. It is this Court’s finding, based upon the testimony, that the officer was playing a hunch and the traffic stop and the ticket for no use of a turn signal was merely a pretext to hold the Defendant illegally for as long as necessary to get a K-9 unit there in the hope of securing a probable cause finding for searching the vehicle.
“14. If a traffic citation was justified, the officer had only as long as it was reasonably necessary to write the ticket and then release the Defendant to go on her way. Obviously since no ticket was ever [written], it adds weight to the claim that the stop was only a pretext and that the officer violated the Defendant’s constitutional right against unreasonable search and seizures.”
On interlocutory appeal, a majority of a divided Court of Appeals panel affirmed the district judge’s ruling, although on different grounds. Jones, 47 Kan. App. 2d at 878. The majority held that the district judge’s decision was erroneous because he relied on the pretextual nature of the traffic stop. 47 Kan. App. 2d at 878. Nevertheless, the majority analyzed whether there was a basis to extend the traffic stop. Listing the factors articulated by the officer when asked what he observed that was “out of the ordinary”—Jones’ slurred speech and cotton mouth and the presence of an empty, clear plastic baggy—the majority concluded “there was no reasonable suspicion to justify further detention of the suspect.” 47 Kan. App. 2d at 869, 872. Then, assuming alternatively that the officer’s suspicion was objectively reasonable, the majority considered whether the detention had been reasonably extended. Noting that a traffic stop cannot exceed the duration necessary to carry out the purpose of the stop, the majority held the wait for the K-9 unit, which the majority concluded was an additional 20 to 30 minutes, unreasonably prolonged die traffic stop. 47 Kan. App. 2d at 876-78.
Judge Buser dissented even though he agreed with the majority that the district judge’s legal basis for suppressing the evidence— the pretextual nature of the stop—was erroneous. According to Judge Buser, the majority should have ended its analysis there and remanded the case to the district court for consideration of whether the officer held a reasonable suspicion. Judge Buser viewed the majority’s focus on the reasons articulated by the officer as an adoption of a subjective standard rather than the objective standard imposed' by the United States Supreme Court. In addition, he observed that the district judge had not mentioned or analyzed whether the officer had a reasonable suspicion to extend the traffic stop. Therefore, “the record on review does not support a presumption that the [district judge] found all the facts necessary to support the judgment.” 47 Kan. App. 2d at 879 (Buser, J., dissenting).
Finally, Judge Buser commented on the majority’s consideration of the duration of Jones’ detention, raising three points. First, he noted the lack of a finding by the district judge regarding whether Officer Powers or Jones’ testimony about the duration of the detention was more believable. Second, Judge Buser believed that the majority’s timeframe of 20 to 30 minutes was not supported by the evidence. Third, he assexted that the majority relied on improper caselaw; he quoted State v. Anderson, 281 Kan. 896, 903, 136 P.3d 406 (2006), for its holding that a driver may be detained beyond the conclusion of a traffic stop for a K-9 sniff if officers have “ 'ample information to support a reasonable suspicion that [the driver] was engaged in illegal drug activity.’ ” 47 Kan. App. 2d at 888 (Buser, J., dissenting).
The State petitioned this couit for review of the Court of Appeals’ decision, and this court granted the request. See K.S.A. 22-3602(e) (party may petition the Supreme Court for review as provided in K.S.A. 20-3018[b]); K.S.A. 20-3018(b) (party aggrieved by a decision of the Court of Appeals may petition the Supreme Court for review); Supreme Court Rule 8.03(e)(2) (2013 Kan. Ct. R. An-not. 74) (discretion in granting review).
Analysis
In briefs filed with this court, the State primarily builds on points made in Judge Buser’s dissent and . asserts the Court of Appeals majority improperly applied a subjective analysis to determine whether reasonable suspicion existed to extend the traffic stop. The State argues that if the Court of Appeals had applied an objective standard and considered the totality of the circumstances, it would have concluded that the officer’s suspicion was objectively reasonable. Alternatively, the State contends the case should be remanded so the district court can make the necessary factual findings regarding whether Jones was diiving erratically and regarding the duration of the stop.
Jones replies that the district judge’s factual findings were sufficient, supported by the recoi'd, and justified the finding that Officer Powers did not have a reasonable suspicion to detain Jones for any longer than necessary to check her driver’s license, registration, and proof of insurance and to issue a traffic ticket.
The Seizure
We begin our analysis at the point that was the basis for the district judge’s ruling—the traffic stop. In her motion to suppress, Jones argued the initial stop was unconstitutional and that the “sub sequent search of her vehicle, her passengers and her purse [was] never free of ‘taint’ from an improper initial encounter.”
As Jones argues, when a law enforcement officer displays authority and restrains an individual’s liberty by stopping a vehicle on a public roadway, constitutional issues arise because a seizure occurs within the meaning of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights, both of which protect individuals against unreasonable searches and seizures. See, e.g., State v. Garza, 295 Kan. 326, 331-32, 286 P.3d 554 (2012); State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007); Anderson, 281 Kan. at 901. In order for a law enforcement officer’s seizure of a citizen to be constitutionally reasonable, the officer must know of specific and arti culable facts that create a reasonable suspicion the seized individual is committing, has committed, or is about to commit a crime or traffic infraction. Garza, 295 Kan. at 332 (citing K.S.A. 22-2402[1] and Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]).
If a seized individual believes this standard has not been met and, therefore, files a motion to suppress, the State has the burden of establishing the reasonableness of the seizure and generally may do so by producing the officer’s testimony that he or she observed a driver commit a traffic infraction before initiating the stop. This observation and testimony suffices because a traffic infraction provides an “ ‘ “objectively valid reason to effectuate a traffic stop.” ’ ” State v. Marx, 289 Kan. 657, 662, 215 P.3d 601 (2009) (quoting Moore, 283 Kan. at 350); see Anderson, 281 Kan. at 901 (“State bears the burden to demonstrate that a challenged seizure or search was lawful.”).
In diis case, the district judge recognized that Officer Powers stopped Jones after he observed Jones commit traffic infractions; the infraction specifically mentioned by the district judge was Jones’ failure to use a turn signal. See K.S.A. 8-1548(a) (“No person shall turn a vehicle . . . without giving an appropriate signal.”). Nevertheless, the judge did not believe this justified the seizure because the officer was “playing a hunch and the traffic stop... was merely a pretext to hold the Defendant illegally for as long as necessary to get a K-9 unit there in the hope of securing a probable cause finding for searching the vehicle.” The judge also reasoned that the fact the officer did not write a ticket “adds weight to the claim that the stop was only a pretext.”
On appeal, all three members of the Court of Appeals panel agreed that a bifurcated standard of review applied to its consideration of this ruling. Specifically, “an appellate court generally reviews the factual findings underlying the district court’s suppression decision using a substantial competent evidence standard and the ultimate legal conclusion drawn from those factual findings by applying a de novo standard. [An appellate] court does not reweigh the evidence.” Jones, 47 Kan. App. 2d at 870 (citing State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 [2009]); see Garza, 295 Kan. at 330-31; State v. Coleman, 292 Kan. 813, 817, 257 P.3d 320 (2011); State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007).
In addition, all three members of the Court of Appeals panel agreed the initial stop was constitutionally legitimate. Each of them concluded substantial competent evidence supported the district judge’s factual finding that Officer Powers observed Jones commit at least one traffic infraction. And they were unanimous in holding that the district judge erred in his legal conclusion that the pretex-tual nature of the stop made the seizure illegal.
We agree with these holdings. The officer’s testimony provides substantial competent evidence of a traffic infraction, and the district judge made an error of law. The United States Supreme Court has specifically held that a traffic stop is not rendered invalid by the fact it is “a mere pretext for a narcotics search.” United States v. Robinson, 414 U.S. 218, 221 n.1, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); see Whren v. United States, 517 U.S. 806, 812, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (“an officer’s motive [does not] invalidate[] objectively justifiable behavior under the Fourth Amendment”). This court has adopted foe same view. See, e.g., Garza, 295 Kan. at 332; Marx, 289 Kan. at 662; Moore, 283 Kan. at 350; Anderson, 281 Kan. at 901; State v. DeMarco, 263 Kan. 727, 733, 952 P.2d 1276 (1998).
In the State’s petition for review, it does not take issue with the panel’s conclusion that foe initial stop was valid. Jones, however, in her supplemental brief submitted to this court, argues her motion to suppress “makes it clear” that she objected to the initial stop. But Jones did not file a cross-petition for review asking us to hold that the Court of Appeals erred in this unanimous determination. Moreover, she does not even suggest why the stop was invalid. Nor does she cite authority for support. Consequently, her objection to the initial stop and her seizure has not been preserved for our review. State v. Boleyn, 297 Kan. 610, Syl. ¶ 10, 303 P.3d 680 (2013) (issue not briefed on appeal is deemed waived and abandoned); Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 172, 298 P.3d 1120 (2013) (“party aggrieved by a decision of the Court of Appeals on a particular issue must seek review in order to preserve the matter for Kansas Supreme Court review); see also State v. Ward, 292 Kan. 541, 580, 256 P.3d 801 (2011 (issue not raised in petition for review deemed abandoned), cert. denied 132 S. Ct. 1594 (2012).
In light of Jones’ failure to counter the application of the general rule that a pretextual stop is constitutionally valid, we hold Officer Powers’ seizure of Jones was valid. We next consider whether tire officer’s investigatory detention of Jones was constitutional.
The Terry Detention
While a traffic infraction is a legitimate basis for law enforcement to initiate a vehicle stop, the United States Supreme Court has emphasized that the seizure must be of short duration if it occurs “ ‘in situations where’. . . the stop is justified by suspicion (reasonably grounded, but short of probable cause) that criminal activity is afoot.” Arizona v. Johnson, 555 U.S. 323, 330, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009) (quoting Terry, 392 U.S. at 24). “ ‘[Mjost traffic stops,’ ” according to the United States Supreme Court, “ ‘resemble, in duration and atmosphere, the fend of brief detention authorized in Terry.’ ” Johnson, 555 U.S. at 330 (quoting Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104 S. Ct. 3138, 82 L. Ed. 2d 317 [1984]). Nevertheless, “[a] seizure that is justified solely by the interest in issuing a warning [or traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005).
Consistent with these principles, the legitimacy of the duration of a traffic stop is measured by the time it takes for an officer to ask for, obtain, and record the driver’s license, proof of insurance, and vehicle registration; run a computer check; and issue a citation. Coleman, 292 Kan. at 816. As a general principle, once the officer determines that the driver has a valid license and the purpose for die traffic stop has ended, the driver must be allowed to leave without further delay. Coleman, 292 Kan. at 816; Anderson, 281 Kan. at 902; State v. Mitchell, 265 Kan. 238, 245, 960 P.2d 200 (1998).
In tiiis case, Officer Powers asked Jones for her driver’s license, registration, and insurance and then asked her to get out of her vehicle. The request to step out of the car has been determined by the United States Supreme Court to be constitutional because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit die vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 110-11, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Thus, up to this point, die stop remained valid.
While Officer Powers waited for verification of the validity of Jones’ driver’s license, he asked Jones about her views regarding controlled substances. This change in the direction of the officer’s investigation from a traffic infraction to questioning about drugs did not infringe on Jones’ constitutional rights because “[a]n officer’s inquiries into matters unrelated to the justification for die traffic stop ... do not convert the encounter into sometiiing other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” Johnson, 555 U.S. at 333; Coleman, 292 Kan. at 816; State v. Morlock, 289 Kan. 980, 986-89, 218 P.3d 801 (2009). Nothing in the record indicates thattiiese initial questions measurably extended die duration of the stop.
From that point, the officer focused on the drug investigation. He did not issue a citation nor did he investigate whetiier Jones had been driving under the influence, despite his belief she had been “driving erratically” and his observation that “[h]er mouth appeared to be dry . . . like . . . cotton mouth. And her words were slurred.” Instead, the officer contacted other officers and arranged for the K-9 unit. Employing a drug-sniff was constitutionally valid, as long as it did not prolong the stop beyond the time necessary to accomplish the original purpose of issuing a traffic citation. See Caballes, 543 U.S. at 407; Anderson, 281 Kan. at 903.
Addressing the duration of the stop, the district judge noted: “If a traffic citation was justified, the officer had only as long as it was reasonably necessary to write the ticket and then release the Defendant to go on her way.” The judge also found that Officer Powers conceded that the duration of the stop was longer than a typical traffic stop. This finding, which is supported by substantial competent evidence, draws into question the constitutionality of the extended detention.
The Extended Detention
An officer may expand the investigative detention beyond the duration necessary to fulfill the purpose of the initial stop only if there is an objectively reasonable and articulable suspicion that criminal activity was or is taking place. See Coleman, 292 Kan. at 816-17 (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 84 L. Ed. 2d 605 [1985]; United States v. Williams, 271 F.3d 1262, 1267 [10th Cir. 2001]; State v. Thomas, 291 Kan. 676, Syl. ¶ 8, 246 P.3d 678 [2011]; K.S.A. 22-2402). The district judge, although focusing on the pretextual nature of the stop, indicated the “officer was playing a hunch” and held Jones “illegally for as long as necessary to get a K-9 unit there in the hope of securing a probable cause finding for searching the vehicle.”
Although ambiguous, the district judge’s use of the word “hunch” is a significant conclusion in light of the frequent statements in opinions of the United States Supreme Court and this court indicating that an officer must be able to articulate more than an “inchoate and unparticularized suspicion” or “hunch” of possible criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); Thomas, 291 Kan. at 688.
The State essentially ignores the district judge’s conclusion that the officer acted on nothing more than a hunch and argues we should conclude the officer possessed an objectively reasonable suspicion or, alternatively, should remand this case to the district court for further factual findings; Judge Buser, in his dissent, agreed with this position. The State paints with too broad a brush, however, because the question of whether reasonable suspicion exists is a question of law and is reviewed de novo by appellate courts. See Coleman, 292 Kan. at 817; State v. Walker, 292 Kan. 1, Syl. ¶ 5, 251 P.3d 618 (2011) (appellate courts use a mixed question standard of review, the legal conclusion is reviewed de novo and the district court’s factual findings are reviewed for substantial competent evidence); Moore, 283 Kan. at 350 (same); see, e.g., Thomas, 291 Kan. at 688-89 (district court concluded voluntary encounter between law enforcement and defendant and did not consider reasonable suspicion; this court disagreed finding the encounter turned into an investigatory detention and considered whether the officer had reasonable suspicion to support the detention).
Furthermore, this de novo appellate determination of whether an officer had a reasonable suspicion of illegal activity rests on the same standard as the one that applies when a district judge makes the same determination: Any court making a reasonable suspicion determination must be able to find by a preponderance of the evidence that the State has presented “at least a minimal level of objective justification” which, when examined under the totality of the circumstances, justifies a reasonable suspicion of the presence of illegal drugs or of some other serious criminal activity. Coleman, 292 Kan. at 817-18; Mitchell, 265 Kan. 238, Syl. ¶ 4. Because an appellate court makes a de novo determination under this standard, appellate review is not necessarily precluded simply because a district judge failed to explicitly state whether an officer had a reasonable suspicion of illegal activity. Thus, while we read the district judge’s order to include an implicit determination that Officer Powers lacked a reasonable suspicion to extend the stop, appellate review is not precluded even if we are overreading the meaning of the district judge’s order.
Nevertheless, an appellate court’s de novo review can only be based on factual findings made by the district judge. An appellate court cannot resolve disputed facts. State v. Hicks, 282 Kan. 599, 608, 147 P.3d 1076 (2006) (district court’s findings of fact control and should be accepted as the basis upon which the district court’s suppression of evidence is reviewed). Thus, we must evaluate whether there are disputed facts that were not resolved by the district judge.
In doing so, we examine only the evidence presented to the district judge because this appeal arises from the district judge’s-— not the district magistrate judge’s—order. The State started anew in the hearing before the district judge by presenting testimony, and diere is no indication in the record that the district judge was asked to consider the transcript from the hearing before the magistrate judge. See Garza, 295 Kan. at 329 (“an appellate court only obtains jurisdiction over the ruling identified in the appeal”); Hicks, 282 Kan. at 608 (the findings of fact of the district court control and should be accepted as the basis upon which the district court’s suppression of evidence is reviewed). Significantly, there were differences in the evidence the State had submitted to the district magistrate judge. The Court of Appeals majority cited two differences. First, before the district judge, tire officer did not mention the appearance of Jones’ eyes, but before the magistrate judge he testified that Jones’ “ ‘eyes were bloodshot.’ ” State v. Jones, 47 Kan. App. 2d 866, 872, 280 P.3d 824 (2012). Second, according to the Court of Appeals majority, in contrast to the hearing before the magistrate, “[a]t no time [in the hearing before the district judge] did the officer indicate that his reasonable suspicion was based in part on the driving violations that formed the basis of his vehicle stop.” 47 Kan. App. 2d at 872-73.
The officer also gave Afferent responses when asked to summarize the basis the suspicion that justified the search. As the Court of Appeals majority stated: “At the initial suppression hearing before the magistrate judge, he stated, ‘She had cotton mouth, dry mouth. . . . Her eyes were bloodshot. Her words were slurry. I saw a clear plastic baggy inside of the truck.’ ”47 Kan. App. 2d at 872. In contrast, before the district judge, when the officer was “asked what he observed that was ‘out of the ordinary’ about Jones, he indicated, “ ‘[J]ust slurred speech and the cotton mouth’ and then added his observation of ‘a clear plastic baggy.’ ” 47 Kan. App. 2d at 872.
In the State’s petition for review and brief submitted to this court, the State takes issue with the majority’s focus on only those factors die officer articulated in answer to this single question. According to the State, this narrow focus on the officer’s articulated basis for his reasonable suspicion converted die reasonable suspicion evaluation from an objective to a subjective standard. The State also argues the majority inappropriately ignored facts that support a reasonable suspicion, specifically Jones’ bloodshot eyes and her erratic driving. We disagree.
As to the first point regarding the subjective versus objective nature of the inquiry, the United States Supreme Court has explained the State does not meet its burden by simply proving that the officer believed the circumstances were sufficient to form a reasonable suspicion. Rather, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21. Consequently, “[a] court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion.” United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).
Yet, the officer’s articulation of facts does not end the review because “[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.” Terry, 392 U.S. at 21. This detached review requires application of an objective standard: “[Wjould the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate?” 392 U.S. at 21-22. The United States Supreme Court has explained that courts “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” United States v. Arvizu, 534 U.S. 266, 273-74, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 [1981]).
Thus, the Court of Appeals majority was correct in looking to the record for factors the officer articulated as the basis for his determination of reasonable suspicion. Nevertheless, we disagree with the Court of Appeals majority’s suggestion, which is implied in its language although not specifically stated, that the officer must neatly package the factors in a single succinct answer. Because of the requirement that a court consider the totality of the circumstances, all facts and inferences, not a select few, must be considered. Therefore, we should not focus on a single answer and overlook an officer’s omission of a factor when asked to list the basis for a reasonable suspicion if at some point in the officer’s testimony he or she indicated the circumstance was a factor in developing a suspicion of illegal activity.
This leads to the State’s second argument, which is that by focusing on the officer’s answer to a single question about what the officer observed that “was out of the ordinary,” the majority ignored significant facts, including Jones’ bloodshot eyes and erratic driving. But the State runs into problems with the record on both of these factors.
Regarding Jones’ bloodshot eyes, the State does not cite to a point in the hearing before the district judge where the officer gave such a description. Like the Court of Appeals, we can only find that testimony in the transcript of the hearing before the district magistrate judge. Thus, there is no evidence to support the State’s contention that the district judge or the Court of Appeals as it reviewed the district judge’s ruling should have considered the appearance of Jones’ eyes in evaluating whether reasonable suspicion existed to extend the traffic stop. We agree with the Court of Appeals majority’s conclusion that the State is not entitled to a “second bite of the apple” to meet its burden of establishing the rea sonableness of the detention by having the officer add to his testimony. Jones, 47 Kan. App. 2d at 873.
The State faces a different problem with regard to the erratic driving. Contrary to die majority’s conclusion that the officer did not mention erratic driving as a basis for his suspicion, the officer did testify before the district judge that he observed “die vehicle driving erratically.” He also described what he meant by this, citing Jones’ abrupt turns and her driving in the opposite direction from the direction she appeared to be travelling. Additionally, he testified that “it’s not out of reason and it’s happened to me in the past that people, when driving erratic such as that, will discard items, like, under the seat.” This experience, he indicated, played into his conclusion there might be illegal substances in Jones’ vehicle, even though the plastic baggie was empty. As the State and Judge Buser point out, the majority did not factor erratic driving into its evaluation of whether there was a reasonable suspicion.
But as Judge Buser also points out, the evidence of erratic driving was disputed. Jones, in her testimony, explained she was merely “driving regular [ly]” near her mother’s home because she wanted to hear the end of a song before she got out of her vehicle. While the district judge cited the officer’s testimony that he observed “erratic driving,” the judge did not make a factual finding resolving the dispute. We agree with Judge Buser’s view that it would be inappropriate for us or any appellate court to make tire factual finding and resolve a disputed point. See State v. Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010) (appellate court only reviews factual findings made by district court; it does not make findings).
Judge Buser opined that this case should be remanded to allow the district judge to make those findings. Before us, the State agrees that remand is appropriate if additional factfinding is necessary. Such a remand would be futile, however, if adding the factor of erratic driving to the consideration of the totality of circumstances would still leave the State short of its burden of establishing the basis for a reasonable suspicion that Jones possessed illegal substances or drug paraphernalia. Like tire district judge, we conclude the circumstances, even with the erratic driving, merely es tablished the basis for a “hunch,” not an articulable reasonable suspicion.
According to the officer, Jones’ driving was erratic because she backtracked and did not drive in a purposeful direction, instead changing direction for no apparent purpose and turning without properly signaling. The officer indicated that in his experience drivers sometimes drive in a similar manner when they are attempting to stash illegal substances. We must give some deference to an officer’s training and experience. Arvizu, 534 U.S. at 273 (Officers may “draw on their own experience and specialized training to make inferences from and deduction about the cumulative information available to them that "might well elude an untrained person.’”); Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996) (reviewing court must give “due weight” to factual inferences drawn by resident judges and local law enforcement officers).
Nevertheless, we have cautioned:
“We do not advocate a total, or substantial, deference to law enforcement’s opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an ‘inchoate and unparticularized suspicion’ or ‘hunch ‘ of criminal activity. [Citation omitted.] Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion.” State v. Moore, 283 Kan. 344, 359-60, 154 P.3d 1 (2007).
We also are called upon to employ common sense and ordinary human experience in evaluating the totality of the circumstances. See United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997).
Applying these principles to this case, as a matter of common sense, driving in an unusual travel pattern cannot by itself be a license to search a vehicle; if it was, the Fourth Amendment would offer no protection to a driver who is driving in an unfamiliar area and approaches an address from different directions in an attempt to spot a particular house number.
Adding the officer’s observation of the clear, empty plastic baggie does not significantly add to the suspicion. Common sense suggests that if the bag had been used to package illegal substances, Jones or her companions would have hidden the bag along with its contents. There is no evidence of an attempt to do so before, dur ing, or after the stop. Furthermore, as the Court of Appeals majority observed, there are a multitude of innocent uses for clear plastic bags and the presence of such a bag is not suspicious, at least by itself. See State v. Ramirez, 278 Kan. 402, 408, 100 P.3d 94 (2004) (discussing more stringent probable cause standard but concluding standard not met simply because person possesses type of packaging that on other occasions had been used to conceal narcotics); 2 LaFave, Search and Seizure § 3.6(b), pp. 379-410 (5th ed. 2012) and 2013-2014 Supp., pp. 11-13 (collecting cases holding probable cause not established by possession of packaging that can be used for illegal purposes where legal uses are commonplace).
Granted, suspicion might arise if the corner of the baggie had been cut off in a manner often used for packaging illegal substances or the bag had been tied in a knot. Here, at one point in the officer’s testimony before the district judge, he described what he observed as the corner of a baggie. When that description was challenged, however, the officer admitted he could not recall the specific appearance and could not say that it was just a corner. Instead, the officer continued to refer to the clear plastic baggie. Thus, all the record establishes is that there was a clear plastic baggie, an article commonly possessed by law abiding citizens.
Even when the totality of these circumstances is considered, we agree with the district judge that the officer acted on a hunch, not reasonable suspicion. Under the facts of this case, a reasonable suspicion sufficient to justify the search of a vehicle did not arise under the totality of the circumstances, which included evidence that the vehicle’s driver drove erratically, had cotton mouth, slurred speech, and possessed an empty plastic baggy. Thus, it was impermissible to extend the traffic stop beyond the duration necessary for the stop’s legitimate purpose, i.e., for obtaining Jones’ identification, the vehicle registration, and proof of insurance; running a computer check; and writing a citation. Because the officer admitted the duration was extended beyond what was necessary for these purposes, we need not remand this case for additional factfinding.
Nor do we need to consider the final point in the Court of Appeals’ rationale, which related to tire length of the stop. As Judge Buser noted, the duration of the stop was contested and the district judge did not make a finding regarding the length of the stop. This lack of factual finding makes the majority’s discussion suspect. The discussion was unnecessary and essentially dicta; therefore, we need not examine the merits of the majority’s analysis, which was not essential to the majority’s conclusion that the district judge did not err in suppressing die evidence.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
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The opinion of the court was delivered by
King, J.:
We consider this case on a petition for review filed by Allen R. Julian. He contends that evidence seized from his automobile in a warrantless search incident to his arrest should be suppressed. The district court granted Julian’s motion to suppress. The State filed an interlocutory appeal. A divided Court of Appeals panel held that the search was authorized by Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and reversed the district court’s suppression order. State v. Julian, No. 105,695, 2012 WL1759405 (Kan. App. 2012) (unpublished opinion).
This was a warrantless search of a vehicle incident to arrest for the purpose of discovering evidence. At the time the search was conducted, searches incident to arrest in Kansas were governed by statute. K.S.A. 22-2501 (repealed July 1, 2011). At the time of the search of Julian’s vehicle, K.S.A. 22-2501 did not authorize searches for evidence. The search of Julian's vehicle was therefore illegal.
We conclude that by relying on Fourth Amendment caselaw rather than the Kansas statute governing searches incident to arrest, the district court and the Court of Appeals applied the incorrect legal standard to this case. In doing so, the Court of Appeals reached an incorrect result. The trial court reached the correct result, but it did so for the wrong reasons.
Factual and Procedural Background
The material facts are not in dispute.
On Januaiy 17, 2010, Rice County Sheriff s Deputy Jeff Pieplow stopped Allen Julian for driving a vehicle with a defective headlight. Pieplow had prior reports that Julian was involved in methamphetamine manufacture but, prior to the stop, had no grounds to believe Julian’s car contained anything illegal.
As Pieplow approached Julian’s car, he saw Julian make what he described as “furtive movements,” consisting of Julian raising a blanket and appearing to shove items underneath it. Pieplow removed Julian from the car and placed him under arrest when he could not produce proof of insurance. Incident to the arrest, Pie-plow conducted a pat down search. He found a loaded firearm in Julian’s jacket pocket and a metal tin containing marijuana, two knives, rolling papers, and lighters in his pants pocket.
Pieplow placed Julian under arrest for carrying a concealed weapon, possession of marijuana, and possession of drug paraphernalia. Pieplow secured Julian in the back of his patrol car and went back to Julian’s car to search it. He testified he was searching for more marijuana and items used to manufacture methamphetamine. Pieplow found a bowling bag containing items associated with the manufacture of methamphetamine.
In addition to the traffic violations for defective headlight and no proof of insurance, the State charged Julian with five felonies: (1) attempting to manufacture methamphetamine, (2) possession of pseudoephedrine, (3) possession of drug paraphernalia, (4) possession of marijuana, and (5) possession of a firearm.
Julian filed a motion to suppress the evidence recovered from his vehicle. The district court granted his motion. The State pursued an interlocutory appeal. The Court of Appeals reversed the suppression ruling by a 2-1 vote.
This court granted Julian’s petition for review.
Standard of Review
If the material facts are not in dispute, review of a decision on a motion to suppress evidence is a question of law subject to de novo review. The State bears the burden to demonstrate a war-rantless search was lawful. State v. Pettay, 299 Kan. 763, 768, 326 P.3d 1039 (2014).
Searches Incident to Arrest: 1969 to Present
The Fourth Amendment to the United States Constitution protects individuals and their property from unreasonable searches and seizures. Section 15 of the Kansas Constitution Bill of Rights provides similar protection. State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The Fourth Amendment contemplates that a “reasonable,” and, thus, a constitutionally valid search, is one conducted pursuant to a warrant issued by a judicial officer based on a factual showing of probable cause. Warrantless searches “conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Conn, 278 Kan. 387, 390, 99 P.3d 1108 (2004).
A warrantless search incident to a lawful arrest is one of the exceptions to tire warrant requirement of the Fourth Amendment. See Weeks v. United States, 232 U.S. 383, 392, 34 S. Ct. 341, 58 L. Ed. 652 (1914). The justification for the exception “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Arizona v. Gant, 556 U.S. at 338. The Fourth Amendment constitutes the baseline protection against unreasonable searches. No state may authorize searches on grounds more permissive than tire Fourth Amendment allows. States are, however, allowed to adopt rules more protective of individual rights than the baseline Fourth Amendment protection. A state may do this by its state constitution, court decision, or statutory enactment.
Section 15 of the Kansas Constitution Bill of Rights protects individuals and their property from unreasonable searches and seizures. This court has consistently held that the protection afforded by § 15 of the Kansas Constitution is co-extensive with the Fourth Amendment protection. State v. Daniel, 291 Kan. 490, Syl. ¶ 5, 242 P.3d 1186 (2010); State v. Henning, 289 Kan. 136, Syl. ¶ 4, 209 P.3d 711 (2009).
While it was in effect, K.S.A. 22-2501 represented a codification of the authority to make warrantless searches incident to arrest. It also represented the State’s authority to adopt measures more protective of an individual’s rights than the Fourth Amendment requires. Conn, 278 Kan. at 391; State v. Anderson, 259 Kan. 16-22, 910 P.2d 180 (1996).
Although this case turns on application of K.S.A. 22-2501 to the search at issue, a brief review of Fourth Amendment caselaw developments related to searches incident to arrest between 1969 and 2009 is appropriate for reasons of context and to assist in understanding the interrelation of the statute and the permissible constitutional parameters of searches incident to arrest.
In 1969, the United States Supreme Court held that the war-rantless search of a person’s entire home incident to the person’s arrest is prohibited by the Fourth Amendment. It limited the search to the area “from which the person arrested might obtain weapons or evidentiary items.” Chimel v. California, 395 U.S. 752, 766, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), reh. denied 396 U.S. 869 (1969). The Court found that tire warrantless search of the arrestee’s person and the area “within his immediate control” was not contraiy to tire Fourth Amendment. 395 U.S. at 763.
The year after Chimel was decided, Kansas adopted a statute pertaining to warrantless searches incident to arrest. K.S.A. 22-2501 provided:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and tire area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.” L. 1970, ch. 129, sec. 22-2501.
When it was enacted, K.S.A. 22-2501 represented a codification of existing federal law on warrantless searches incident to arrest, as expressed in Chimel. See State v. Youngblood, 220 Kan. 782, 784, 556 P.2d 195 (1976).
In 1981, the United States Supreme Court applied Chimel to a warrantless search of an automobile incident to the arrest of an occupant of the vehicle. The Court held that when there has been a lawful arrest of the occupant of a vehicle, the officer “as a contemporaneous incident of that arrest” may search the passenger compartment of the vehicle and any containers found therein. New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768, reh. denied 453 U.S. 950 (1981).
Belton was widely interpreted to expand the authority to make a warrantless search of a vehicle incident to arrest. In fact, United States Supreme Court Justice Sandra Day O’Connor later observed that “lower courts seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.“ Thornton v. United States, 541 U.S. 615, 624, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (O’Connor, concurring in part).
In State v. McClain, 258 Kan. 176, 184, 899 P.2d 993 (1995), this court observed: “Since its filing in 1981, Kansas courts have consistently applied Belton to allow an officer to search the passenger compartment of an automobile when its occupant is arrested.”
One year after our decision in McClain we decided Anderson, 259 Kan. 16. In Anderson, 259 Kan. at 22, we noted that in dealing with an issue involving a search incident to arrest “we need not discuss federal law further,” as federal caselaw applying the Fourth Amendment did not control such searches:
“In Kansas, we have a statute that sets forth the permissible circumstances and purposes under which a search incident to arrest can be made. The statute may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.” 259 Kan. at 22.
Since Anderson, this court has consistently held that K.S.A. 22-2501 governs searches incident to arrest and sets forth the “permissible circumstances, purposes, and scope” of such searches. State v. Pettay, 299 Kan. 763, Syl. ¶ 4; State v. Carlton, 297 Kan. 642, Syl. ¶ 4, 304 P.3d 323 (2013); State v. Dennis, 297 Kan. 229, Syl. ¶ 5, 300 P.3d 81 (2013); State v. Conn, 278 Kan. at 391.
In 2006, the legislature amended K.S.A. 22-2501. The amendment changed but a single word in the statute, but that change has had profound implications. Before the amendment, K.S.A. 22-2501(c) (Furse) authorized a search incident to arrest for the purpose of “[discovering the fruits, instrumentalities, or evidence of the crime.” After the amendment, K.S.A. 22-2501(c) authorized a search incident to arrest for the purpose of “[discovering the fruits, instrumentalities,'or evidence of a crime.”
The precise reasons for this change are not known; however, some proponents of the amendment argued that changing “the” to “a” made Kansas law consistent with Belton. State v. Henning, 289 Kan. at 142-44.
In 2009, the United States Supreme Court held that warrantless vehicle searches incident to an arrest are prohibited unless “the arrestee is within reaching distance of tire passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Arizona v. Gant, 556 U.S. at 351.
Two months after Gant was decided, this court found that, based on Gant, the 2006 amendment to K.S.A. 22-2501(c) now placed that provision on the wrong side of constitutionally permissible searches. K.S.A. 22-2501(c) was “facially unconstitutional” and no longer conformed to the baseline protections of the Fourth Amendment. Henning, 289 Kan. at 148-49.
On July 1, 2011, the legislature repealed K.S.A. 22-2501 in its entirety. L. 2011, ch. 100, sec. 22. Between 2006 and 2011, K.S.A. 22-2501 continued to control the “permissible circumstances, purposes, and scope” for warrantless searches incident to arrest in Kansas.
The Lower Courts’ Decisions
Both the district court and the Court of Appeals declined to apply K.S.A. 22-2501 to this case and decided Julian’s motion to suppress on the basis of Gant. By relying on Fourth Amendment caselaw rather than K.S.A. 22-2501, the district court and the Court of Appeals applied the incorrect legal standard to this case.
The Court of Appeals majority acknowledged that K.S.A. 22-2501 “controlled the permissible circumstances, purposes, and scope of a search incident to arrest,’ ” yet declined to apply it to resolve the issue before it. The majority stated: “Both parties cite the statute when briefing Gant’s impact on K.S.A. 22-2501(c) .... The parties do not brief the other provisions of K.S.A. 22-2501, however, and Julian does not argue the statute’s applicability on appeal.” State v. Julian, No. 105,695, 2012 WL 1759405 at *3 (Kan. App. 2012) (unpublished opinion).
We do not concur in the Court of Appeals majority’s determination that Julian did not argue the statute’s applicability on appeal. Admittedly, the focus of argument by both Julian and the State has centered on Fourth Amendment caselaw and Gant in particular. However, Julian has consistently asserted the applicability of K.S.A. 22-2501.
The record before the Court of Appeals demonstrated Julian had argued the applicability of the statute in the district court. In his motion to suppress, Julian argued the applicability of K.S.A. 22-2501 to the search in question. He argued that pursuant to State v. Anderson, “the constitutionally permissible purposes of the search incident to lawful arrest must be as the current Kansas statute set out, and not extending the purpose of the search any further.” He went on to argue that “[t]he search of Julian’s vehicle was not legal under either Gant or either of the constitutionally permissible purposes outlined within K.S.A. 22-2501(a) or (b).”
Although he did not file a brief with the district court, the prosecuting attorney at the hearing on the motion to suppress argued the applicability of K.S.A. 22-2501, but he did so in an unusual way. He argued that the officer did not need to have probable cause to search Julian’s car, because “[t]his is a statutory search pursuant to K.S.A. 22-2501 subsection ‘c’ which allows a search incident to arrest for fruits and instrumentalities of the crime of arrest.” The prosecuting attorney went on to note that the Kansas Supreme Court had ruled the 2006 amendment to K.S.A. 22-2501(c) unconstitutional, and then he made the curious argument “and so in essence we are back to the old statute that says fruits and instru-mentalities of the crime of arrest. . . . It’s a statutory search.”
Julian came to the Court of Appeals as the appellee, armed with a favorable ruling from the district court on his motion to suppress. Julian did not have the burden to prove the illegality of the search. Julian was not responsible for the reasoning the district court used to sustain his motion to suppress.
In his brief to the Court of Appeals, Julian included the following as part of his argument that the district court was correct to suppress the evidence:
“The permissible scope of a vehicle search incident to lawful arrest of an occupant has also been addressed by the Kansas courts. In State v. Anderson, 259 Kan. 16, 910 P.2d 1080 (1996), the court followed the long-held standard as outlined in Chimel with regard to the basic scope of car searches incident to lawful arrest, stating that the constitutionally permissible purposes of the search incident to lawful arrest must be as the current Kansas statutes set out, not extending the purpose of the search any further. Id. 23-24. The Court held that officers could conduct searches incident to lawful arrest for the three (3) purposes which were enumerated within K.S.A. 22-2501: (1) officer safety; (2) preventing an arrestee from escaping; or (3) discovering tire fruits or instrumentalities, or evidence to support only the crime of arrest. Id.
“However, K.S.A. 22-2501 was amended in 2006 changing the word in subsection (c) from ‘the’ crime to ‘a’ crime. Senate Bill 431. L. 2006, ch. 211, sec. 8. This legislative change came on the heels of and completely undermined the Court’s ruling in Anderson, and its observance of the long-standing Chimel rule. See State v. Henning, 289 Kan. 136, 145, 209 P.3d 711 (2009). The modification of the single word from ‘the’ to ‘a’ has resulted in countless unconstitutional vehicle searches incident to lawful arrest in this State. The practical effect of the statute’s modification was that law enforcement officers were given unlimited access to any vehicle incident to the lawful arrest of an occupant for any reason.
“After the Gant decision, the Kansas Supreme Court revisited the search incident to arrest issue and ruled that K.S.A. 22-2501 was ‘facially unconstitutional under the Fourth Amendment and the search and seizure provisions of the Kansas Constitution Bill of Rights.’ Henning, 289 Kan. at 148. ‘The district judge was right to be suspicious of the statute’s wording: its breadth cannot be reconciled with the narrowness of the search and seizure concept it was meant to codify, not automatically in a vehicle context nor in the context of any other area within immediate control of an arrestee.’ [289 Kan. at 149.]”
Rather than a “failure to argue the statute’s applicability on appeal,” a fair reading of Julian’s argument from the above-quoted excerpt of his brief is: Anderson held that the constitutionally permissible purposes of a search incident to arrest must be as set out in K.S.A. 22-2501; after Gant and Henning, the statute did not allow a search for the purpose of discovering evidence; and, therefore, the search for evidence in Julian's car was prohibited by K.S.A. 22-2501.
Although the majority acknowledged that K.S.A. 22-2501 “controlled the permissible circumstances, purposes, and scope of a search incident to arrest’ ” it declined to apply the statute to the facts in this case and instead decided the case on “the constitutional issue.” Julian, 2012 WL 1759405, at *3. When it did this it imper-missibly departed from longstanding precedent of this court. Since we decided Anderson, our decisions have consistently demonstrated the centrality of K.S.A. 22-2501 to issues involving searches incident to arrest. See State v. Pettay, 299 Kan. 763, Syl. ¶ 4; State v. Carlton, 297 Kan. 642, Syl. ¶ 4; State v. Dennis, 297 Kan. 229, Syl. ¶ 5; State v. Conn, 278 Kan. at 391. As we stated in Anderson, in dealing with an issue involving a search incident to arrest “we need not discuss federal law further” as K.S.A. 22-2501, and not federal caselaw applying the Fourth Amendment, controls such searches. 259 Kan. at 22.
Regardless that the parties may have focused their arguments on Fourth Amendment caselaw, for the Court of Appeals majority to reject applying K.S.A. 22-2501 to resolve the case resulted in applying a clearly incorrect legal standard to the issue in this case. The statute in effect at the time of the search in this case did not allow for a search for evidence. By applying Gant, the Court of Appeals deprived Julian of a basic protection afforded to him according to Kansas law that was applicable at tire time.
The Search of Julians Vehicle
The broadened authority to search occasioned by the 2006 amendment to K.S.A. 22-2501(c); the United States Supreme Court redefining the permissible purposes of searches incident to arrest (embracing the idea that searches for evidence are allowed, but that the basis for such searches does not come from Chimel)-, and the determination by this court, in light of Gant, that K.S.A. 22-2501(c) is facially unconstitutional, represent a confluence of events that has spawned a series of search incident to arrest cases before this court. To date, these cases include: State v. Pettay, 299 Kan. 963, 326 P.3d 1039; State v. Carlton, 297 Kan. 642; State v. Karson, 297 Kan. 634, 304 P.3d 317 (2013); State v. Dennis, 297 Kan. 229; State v. Daniel, 291 Kan. 490.
In all these cases, the sole basis offered to justify the search was that it was authorized as a search incident to arrest. In all of these cases, the court found K.S.A. 22-2501 governed the authority to search. In all of these cases, the purpose of the search in question was for discoveiy of evidence and not for officer safety or to prevent escape. The searches all involve facts where the search was conducted after the operative date of the amendment to K.S.A. 22-2501(c) but before the Supreme Court’s decision in Gant or this court’s decision in Henning. In Daniel, Dennis, Karson, and Carlton, this court determined that the search was illegal pursuant to Gant; however, it applied a good-faith exception to the exclusionary rule to save the search.
Most recently, in State v. Pettay, this court considered for the first time tire authorized scope of a search incident to arrest under K.S.A. 22-2501. We held that a search for evidence in Pettay s vehicle after he had been arrested and secured away from the vehicle was outside the permissible scope of the statute as it was not a search of the area within the “immediate presence” of the person arrested. 299 Kan. 763, Syl. ¶ 5.
In his petition for review, Julian argued that “any search under K.S.A. 22-2501 require [sic] the search to take place in ‘the area within such person’s immediate presence.’ ” Although Julian has argued the applicability of K.S.A. 22-2501 throughout these proceedings, his argument has always been that the. search was not conducted for one of the purposes the statute permitted. This is the first instance of Julian raising an issue regarding the scope of the search of his vehicle. This court will ordinarily not consider an issue that was not raised in the district court or before the Court of Appeals. No exceptions to this rule apply to this case.
The search of Julian’s car took place on January 17, 2010. At that time K.S.A. 22-2501 governed the warrantless search of Julian’s vehicle incident to his arrest. At the time of the search the only purposes authorizing a search incident to arrest pursuant to K.S.A. 22-2501 were officer safety or to prevent escape. Neither of tiróse purposes applies to the search of Julian’s vehicle. At the time of the search of Julian’s vehicle, Kansas law did not permit a warrantless search incident to arrest for the purpose of discovering evidence.
Julian’s case is the first search incident to arrest case this court has considered where tire search was conducted (1) after the 2006 amendment to the statute, (2) after the United States Supreme Court’s decision in Gant, and (3) prior to the 2011 repeal of K.S.A. 22-2501.
The sole basis offered to justify the search of Julian’s car is as a search for evidence incident to arrest. The State’s position, approved by the Court of Appeals, that Gant serves as authority permitting this search is unavailing. K.S.A. 22-2501 had not been re pealed as of the time of the search of Julian’s vehicle. Accordingly, K.S.A. 22-2501, and not Fourth Amendment caselaw, controlled the “permissible circumstances, purposes, and scope” of the search. Conn, 278 Kan. at 391.
The State has argued throughout this proceeding that Gant and Henning had the effect of reviving the pre-2006 version of K.S.A. 22-2501(c). Such an argument is untenable and has been specifically rejected by this court. See Carlton, 297 Kan. at 647.
No argument has been made that this case is subject to any exception to the exclusionaiy rule. At no time has the State argued that this case is subject to the good-faith exception to the exclusionary rule. Such an argument would be of no avail as this court has previously noted on multiple occasions such exception could only be considered to apply to searches conducted prior to the date Gant was decided. See Carlton, 297 Kan. at 646-47; Karson, 297 Kan. at 640; Dennis, 297 Kan. at 230; Daniel, 291 Kan at 493.
Conclusion
This was a warrantless search of a vehicle for evidence incident to arrest, conducted at a time when searches incident to arrest were governed in Kansas by statute, and the statute in effect at the time did not authorize searches for the purpose of discovering evidence. The search of Julian’s vehicle was therefore illegal.
The judgment of tire Court of Appeals reversing the district court is reversed. The judgment of district court is affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Per Curiam,-.
Defendant Jonathan D. Carr, and his brother, Reginald Dexter Carr, Jr., were jointly charged, tried, convicted, and sentenced for crimes committed in a series of incidents in December 2000 in Wichita. This is J. Carr s direct appeal from his 43 convictions and four death sentences.
Our opinion in codefendant R. Carr s direct appeal also is filed today. State v. Carr, 299 Kan. 1, 331 P.3d 544. With the exception of the brief introduction to follow, this opinion will refer to the opinion in R. Carr s appeal as much as possible, rather than repeat facts, procedural history, or legal discussions and resolutions.
The first incident giving rise to the charges in this case occurred on December 7 and 8. Andrew Schreiber was the victim. The State charged J. Carr and R. Carr with one count of kidnapping, one count of aggravated robbery, one count of aggravated battery, and one count of criminal damage to property. The jury acquitted J. Carr on all counts and convicted R. Carr on all counts.
In the second incident on December 11, Linda Ann Walenta was the victim. The State charged J. Carr and R. Carr with one count of first-degree felony murder. The jury convicted both men.
In the third incident on December 14 and 15, Heather M., Aaron S., Brad H., Jason B., and Holly G. were the victims of an invasion at the men’s Birchwood Drive home that led to sex crimes, kidnappings, robberies, and, eventually, murder and attempted murder. The State charged J. Carr and R. Carr with eight alternative counts of capital murder, four based on a related sex crime under K.S.A. 21-3439(a)(4) and four based on multiple first-degree premeditated murders under K.S.A. 21-3439(a)(6); one count of attempted first-degree murder; five counts of aggravated kidnap ping; nine counts of aggravated robbery, eight of which were alternatives, four based on use of a dangerous weapon and four based on infliction of bodily harm; one count of aggravated burglary; 13 counts of rape, eight of which were based on coerced victim-on-victim sexual intercourse and one of which was based on a victim’s coerced self-penetration; three counts of aggravated criminal sodomy, two of which were based on coerced victim-on-victim oral sex; seven counts of attempted rape, six of which were based on coerced victim-on-victim overt acts toward the perpetration of rape; one count of burglary; and one count of theft. The State also charged J. Carr and R. Carr with one count of cruelty to animals because of the killing of Holly G.’s dog. The jury convicted J. Carr and R. Carr on all of the charges arising out of the Birchwood incident.
In connection with the three incidents, the State also charged R. Carr alone with three counts of unlawful possession of a firearm. The jury convicted him on these three counts as well.
After J. Carr’s acquittal on the Schreiber incident and the defendants’ convictions on all other charges, in a separate capital penalty proceeding, J. Carr and R. Carr were sentenced to death for each of the four capital murders committed on December 15. They each received a hard 20 life sentence for the Walenta felony murder. J. Carr received a controlling total of 492 months’ imprisonment consecutive to the hard 20 life sentence, and R. Carr received a controlling total of 570 months’ imprisonment consecutive to the hard 20 life sentence for the remaining non-death-eligible convictions.
In his briefs, J. Carr raises 21 issues tied to the guilt phase of his prosecution and 16 issues tied to the death penalty phase of his prosecution. In addition, because this is a death penalty case, this court is empowered to notice and discuss unassigned potential errors under K.S.A. 2013 Supp. 21-6619(b), which we do. J. Carr does not challenge the sentences he received for the Walenta felony murder; for the crimes in which Headier M., Aaron S., Brad H., Jason B., and Holly G. were the victims that were not eligible for the death penalty; or for the cruelty to animals conviction.
Both sides sought many extensions of time-to file briefs in this appeal and in R. Carr s separate appeal. In J. Carr s case, all of these extension requests were unopposed by the other side of the case. After completion of briefing, this court heard oral argument on December 17, 2013.
After searching review of the record, careful examination of the parties’ arguments, extensive independent legal research, and lengthy deliberations, we affirm 25 of J. Carr’s 43 convictions, including those for one count of capital murder of Heather M., Aaron S., Brad H., and Jason B. under K.S.A. 21-3439(a)(6) and for the felony murder of Walenta. We reverse the three remaining convictions for capital murder because of charging and multiplicity errors. We also reverse his convictions on Counts 25, 26, 29 through 40, and 42 for coerced sex acts for similar reasons. We affirm the convictions based on Counts 2, 9 through 24, 27, 28,41, and 43 through 55.
We vacate J. Carr’s death sentence for the remaining capital * murder conviction, because the district judge refused to sever the defendants’ penalty phase trials. We remand to the district court for further proceedings.
Factual and Procedural Background for Guilt Phase Issues
The general factual and procedural background for the guilt phase issues in this case is set out in full in the R. Carr opinion. We need not repeat it or supplement it here. To the extent additional, issue-specific factual or procedural background is necessary to resolve any legal issue unique to J. Carr, it will be included in the discussion sections below.
Guilt Phase Issues and Short Answers
We begin our discussion by setting out the questions we answer today on the guilt phase of J. Carr’s trial. We have taken the liberty of reformulating certain questions to focus on their legally significant aspects or effects. We also have reordered questions raised by the defense and have inserted among them unassigned-potential errors noted by us, because we believe this organization enhances clarity. We number tire questions disposed of by our opinion in It. Carr s appeal 1 through 21, despite occasional intervening subheadings. We do not repeat our full discussion of these questions in this opinion; rather, we include only their short .answers and references to the appropriate sections of the R. Carr opinion that control the resolution of the similar issues raised or noticed in this appeal. We number the four additional questions not disposed of by our opinion in R. Carr’s appeal J1 through J4. Our short answer to each question follows the question. We then discuss these four questions fully in individual sections of this opinion.
Issues Disposed of by Opinion in R. Carr Appeal
Issues Affecting All Incidents
1. Did the district judge err in refusing to grant defense motions for change of venue? A majority of six of the court’s members answers this question no for reasons explained in Section 1 of the R. Carr opinion, while one member of the court dissents and writes separately on this issue and its reversibility, standing alone.
2. Did the district judge err in refusing to sever the guilt phase of defendants’ trial? A majority of six members of the court answers this question yes for reasons explained in Section 2 of the R. Carr opinion, while one member of the court dissents and writes separately on this issue. A majority of four members of the court agrees that any error on this issue was not reversible standing alone for reasons explained in the R. Carr appeal, while three members of the court dissent, and one of them writes separately for the three on the reversibility question.
3. Was it error for the State to pursue conviction of J. Carr for all counts arising out of tire three December 2000 incidents in one prosecution? The court unanimously answers this question no for reasons explained in Section 3 of the R. Carr opinion.
4. Did tíre district judge err (a) by excusing prospective juror M.W., who opposed the death penalty, for cause, (b) by failing to excuse allegedly mitigation-impaired jury panel members W.B., D.R., D.Ge., and H.Gu. for cause, or< (c) by excusing prospective jurors K.J., M.G., H.D., C.R., D.H., and M.B., who expressed moral or religious reservations about the death penalty, for cause? The court unanimously agrees there was no error on any of these bases for reasons explained in Section 4 of tire R. Carr opinion.
5. Did the district judge err by rejecting a defense challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986), to the State’s peremptory strike of juror and eventual foreperson W.B.? The court unanimously answers this question yes for reasons explained in Section 5 of the R. Carr opinion. A majority of four members of the court agrees that any error on this issue was not reversible standing alone for reasons explained in Section 5 of the R. Carr opinion, while three members of the court dissent, and one of them writes separately for the three on the reversibility question.
Issue Specific to Walenta Incident
6. Was the .district judge’s admission of statements by Walenta through law enforcement error under the Sixth Amendment and Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? The court unanimously answers this question yes for reasons explained in Section 6 of the R. Carr opinion, but the court also unanimously agrees that this error was not reversible standing alone.
Issues Specific to Quadruple Homicide and Other Birchwood Crimes
7. Did faulty jury instructions on all four K.S.A. 21-3439(a)(4) sex-crime-based capital murders and a multiplicity problem on three of four K.S.A. 21-3439(a)(6) multiple-death capital murders combine to require reversal of three of J. Carr’s death-eligible convictions? The court unanimously answers this question yes for reasons explained in Section 9 of the R. Carr opinion.
8. Was a special unanimity instruction required for Counts 1, 3, 5, and 7 because of multiple sex crimes underlying each count? The court declines to reach the merits of this issue for reasons explained in Section 10 of the R. Carr opinion.
9. Must sex crime convictions underlying capital murder Counts 1, 3, 5, and 7 be reversed because they were lesser included offenses of capital murder under K.S.A. 21-3439 (a)(4)? The court declines to reach the merits of this issue for reasons explained in Section 11 of the R. Carr opinion.
10. Was the State’s evidence of aggravated burglary sufficient? The court unanimously answers this question yes for reasons explained in Section 12 of the R. Carr opinion.
11. Did the State fail to correctly charge and the district judge fail to correctly instruct on coerced victim-on-victim rape and attempted rape, as tiróse crimes are defined by Kansas statutes, rendering J. Carr’s convictions on those offenses void for lack of subject matter jurisdiction? The court unanimously answers this question yes for reasons explained in Section 13 of the R. Carr opinion.
12. Was the State’s evidence of J. Carr’s guilt as a principal on Count 41 for Holly G.’s digital self-penetration sufficient? A majority of four of the court’s members answers this question yes for reasons explained in Section 14 of the R. Carr opinion, while three members of the court dissent, and one of them writes separately for the two of them on this issue and its reversibility.
13. Were Count 41 and Count 42 multiplicitous? The court unanimously answers this question yes and reverses J. Carr’s conviction as a principal on Count 42 for reasons explained in Section 15 of die R. Carr opinion.
14. Was evidence of results from mitochondrial DNA testing of hairs found at the Birchwood home erroneously admitted? The court unanimously answers this question no for reasons explained in Section 19 of the R. Carr opinion.
15. Did die district judge err by failing to instruct on felony murder as a lesser included crime of capital murder? The court unanimously answers this question no for reasons explained in Section- 21 of the R. Carr opinion.
Other Evidentiary Issues
16. Did the district judge err by automatically excluding eyewitness identification expert testimony proffered by the defense? The court unanimously answers this question yes for reasons explained in Section 22 of the R. Carr opinion, but the court also unanimously agrees that any error on this issue was not reversible standing alone.
17. Did the district judge err by permitting a jury view of locations referenced in evidence, in violation of the defendants’ right to be present, right to assistance of counsel, and right to a public trial? The court unanimously answers this question no for reasons explained in Section 23 of the R. Carr opinion.
Other Instructional Issues
18. Did the district judge err by failing to include language in the instruction on reliability of eyewitness identifications to ensure that jurors considered possible infirmities in cross-racial identifications? The court unanimously answers this question no for reasons explained in Section 24 of the R. Carr opinion.
19. Was die instruction on aiding and abetting erroneous because (a) it permitted jurors to convict the defendants as aiders and abettors for reasonably foreseeable crimes of the other, regardless of whether tire State proved the aider and abettor’s premeditation, (b) it failed to communicate that the defendant aider and abettor had to possess the premeditated intent to kill in order to be convicted of capital murder, or (c) it omitted language from K.S.A. 21-3205(2)? The court unanimously answers the first question yes for reasons explained in Section 25 of the R. Carr opinion. The court unanimously answers the second question no for reasons explained in Section 25 of the R. Carr opinion. The court unanimously answers the third question no for reasons explained in Section 25 of the R. Carr opinion. The court unanimously agrees that the error on the first question was not reversible standing alone for reasons explained in Section 25 of the R. Carr opinion.
Prosecutorial Misconduct
20. Did one of the prosecutors commit reversible misconduct by telling jurors to place themselves in the position of the victims? The court unanimously answers this question no for reasons explained in Section 26 of the R. Carr opinion.
Cumulative Error
21. Did cumulative error deny J. Carr a fair trial on his guilt? A majority of four of the court’s members answers this question no for reasons explained in Section 27 of the R. Carr opinion, while three members of the court dissent, and one of them writes separately for them on this issue.
Issues Not Disposed of by Opinion in R. Carr Appeal
Jl. Did the district judge err by refusing to grant a mistrial when the opening statement by R. Carr s counsel implicated J. Carr and another unknown man as the perpetrators of the Birchwood crimes? A majority of four of the court’s members answers this question no. Three members of the court would hold this to be error and include it among those considered under the cumulative error doctrine.
J2. Did admission of Walenta’s statements violate J. Carr’s confrontation rights under Section 10 of the Kansas Constitution Bill of Rights? The court declines to reach the merits of the Section 10 argument.
J3. Did J. Carr’s conviction on the Walenta felony murder depend upon impermissible inference stacking, meaning the State’s evidence was insufficient? A majority of six members of the court answers this question no. One member of the court dissents and writes separately on this issue and its reversibility, standing alone.
J4. Was tire State’s evidence of J. Carr’s guilt as an aider and abettor of R. Carr’s rape and aggravated criminal sodomy of Holly G. sufficient? The court unanimously answers this question yes.
Jl. Refusal to Grant Mistrial After Opening Statements
This court rules today in the R. Carr appeal that District Judge Paul Clark erred by refusing to sever the defendants’ guilt phase trials but that the error does not require reversal standing alone. See State v. Carr, 299 Kan. at 281-82. These holdings apply equally to this appeal on behalf of J. Carr.
J. Carr has argued additional reasons peculiar to him why severance was required—that a joint trial limited his ability to introduce certain hearsay testimony through Tronda Adams, that it allowed R. Carr to act as a second prosecutor by introducing testimony from Stephanie Donley and a statement from Holly G. that were inculpatory of J. Carr, and that it permitted the jury to - observe and be prejudiced by R. Carr’s improper courtroom be havior. But these reasons, if meritorious, would only add weight to our holding that the failure to sever was error. They would not persuade us that reversal of all of J. Carr s convictions is required as a result of that error.
We mention the severance issue in this context because it is distinct from but related to the unique challenge J. Carr makes on this appeal to Judge Clark’s refusal to grant him a mistrial after opening statements.
R. Carr’s counsel told the jury during opening statement that his client merely stored property stolen from the Birchwood victims for J. Carr and another unknown, uncharged third man, suggesting that J. Carr and the third man were responsible for all of the charged Birchwood crimes. These remarks prompted an objection from counsel for J. Carr on the grounds that they were argumentative and unsupported by the evidence. Judge Clark overruled the objection.
This ruling by Judge Clark was correct. Counsel for R. Carr began his explanation of what happened on the night of December 14 and 15, 2000, with the phrase “the evidence will show.” That phrase signals tire purpose of opening statement; it provides an opportunity for counsel to outline a version of events that he or she expects the evidence to prove to the jury. State v. Kleypas, 272 Kan. 894, Syl. ¶ 23, 40 P.3d 139 (2001) (purpose of opening statement to assist jury in understanding expected evidence; attorneys given reasonable latitude to state facts expected to be proved). In addition, the objection by J. Carr’s counsel that the opening statement was unsupported by evidence was virtually impossible to sustain at that stage of the case, when all evidence was yet to be admitted.
R. Carr’s counsel continued to discuss the involvement of J. Carr and the third unknown man in the Birchwood crimes, finally observing that “tire Birchwood address is replete with Jonathan Carr’s DNA .... Ultimately, the DNA evidence will show that Jonathan Carr, not Reginald Carr, Jonathan Carr committed most, if not all of the crimes which are alleged in the complaint and that he did it with a third black male who still walks the streets of Wichita.”
At this point the State objected, and Judge Clark sustained the objection, saying, “It’s an improper comment.”
During that day s lunch break, outside the presence of the jury, the State argued that the opening statement by counsel for R. Carr had violated rulings on motions in limine and that he should be sanctioned for misconduct. The prosecutor also asked the judge to instruct the juiy to disregard the statement. J. Carr moved for a mistrial. The grounds his counsel advanced in support of the motion, although abbreviated, were exactly the same as those advanced in support of J. Carr s multiple motions for severance: The defenses of J. Carr and R. Carr were mutually and irreconcilably antagonistic.
When examining an appellate claim arising out of denial of a mistrial, we review the district judge’s decision for an abuse of discretion. State v. Waller, No. 106,102, 299 Kan. 707, 722, 328 P.3d 1111 (2014). “ ‘[T]he party alleging the abuse bears the burden of proving that his or her substantial rights to a fair trial were prejudiced.’ State v. Angelo, 287 Kan. 262, 283, Syl. ¶ 16, 197 P.3d 337 (2008) (citing State v. White, 284 Kan. 333, 161 P.3d 208 [2007]).” State v. Leaper, 291 Kan. 89, 96-97, 238 P.3d 266 (2010). We first ask whether the district judge abused his or her discretion when deciding whether there was a fundamental failure in the proceedings. If so, we then examine whether the district judge abused his or her discretion when deciding whether the problematic conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice. State v. Harris, 293 Kan. 798, 814-15, 269 P.3d 820 (2012).
Having already held that defense motions for severance of the guilt phase should have been granted, we also hold that Judge Clark abused his discretion by failing to recognize a fundamental failure in the proceedings when R. Carr’s counsel made his remarks during opening statement. Those remarks made the irreconcilable antagonism of the codefendants’ cases inescapably clear. However, also in line with the majority view on severance, we further hold that there was no abuse of discretion in refusing to grant a mistrial to cure that failure.
At the time R. Carr’s counsel wrapped up his opening statement, the jury was immediately told that his remarks were “improper.” No evidence to support the third-party theory of the case was ever introduced. And, ultimately, the jury received the usual instruction that statements of counsel are not evidence. Under these circumstances, we do not discern enough additional damage to J. Carr’s case attributable to the opening statement by R. Carr’s counsel— i.e., any damage beyond that J. Carr’s case already was bound to suffer because of the denial of severance—to persuade us that all of his convictions must be reversed.
J2. Confrontation Rights under Section 10 of Kansas Constitution Bill of Rights
Like R. Carr, J. Carr challenges tire admission ofWalenta’s statements under the Sixth Amendment and the Confrontation Clause. We have fully discussed those arguments in Section 6 of the R. Carr opinion and need not revisit them here. J. Carr also invoked Section 10 of the Kansas Constitution Bill of Rights in support of his position on this issue, and it is that invocation that prompts us to malee a brief response in this opinion.
We have not previously differentiated the rights of a defendant protected by the Sixth Amendment and those protected by Section 10. See State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007). And we need not do so here. We leave die merits of any argument under Section 10 to the next case.
J3. Sufficiency of Evidence on Walenta Felony Murder
J. Carr challenges the evidence supporting his conviction ofWal-enta’s felony murder as insufficient, arguing that impermissible inference stacking was required in order for the jury to convict.
Additional Factual and Procedural Background
Count 51 in the amended complaint charged both defendants with first-degree felony murder of Walenta while committing or attempting to commit the inherently dangerous felony of aggravated robbery.
Summarized for ease of reference, the evidence showed Walenta was approached by a black male shortly after she pulled into her driveway about 9:40 p.m. on the evening of December 11, 2000. Walenta saw the man get out of a light-colored four-door car that had followed her and then parked near her house. The man indicated in some way that he needed assistance, and Walenta rolled down her driver’s-side window a few inches to talk to him. As soon as she did so, the man stuck a black handgun into the car, holding it palm down and pointing it at her head. When she attempted to put her Yukon in reverse to get away, the man shot her three times. He then ran away and the light-colored car pulled away. Walenta said she was not sure whether the gunman had been left behind by whoever was driving the light-colored car.
Later on the evening of December 11, about 11:15, J. Carr showed up at Adams’ house. Adams testified in pertinent part:
“Q. Do you remember what he was driving?
“A. I think he was dropped off that night and his brother came back to pick him up.
“Q. And so you are not sure of the vehicle?
“A. The Camiy, it would have been the [light-colored four-door] Camry.
“Q. Okay. So when his brother returned, did you see him to the door?
“A. No, I don’t think so.
“Q. Do you recall whether you saw the Camry the early morning hours of the 12th?
“A. No, I don’t, no.”
Adams also testified that J. Carr had a black handgun with him on the same night, which he left with her. Late the next day he asked her to return the gun to him, scolded her for touching it too much, and then proceeded to clean it and every bullet in it thoroughly. Adams identified tire black Lorcin at trial as the gun J. Carr had with him on the night of December 11, 2000.
A few days later, after J. Carr and R. Carr had been arrested in the wake of the Birchwood crimes, Walenta picked two pictures out of a photo array as representative of the general appearance of the man who had shot her. One of those pictures was of R. Carr. She also said that the eyes of the man in the photo of R. Carr represented what she remembered of the gunman’s eyes. She did not see anyone else at the scene of the shooting and was not able to pick any photo from an array containing a photo of J. Carr.
Ballistics expert testimony established that the black handgun used in the shooting of Walenta was the same black Lorcin .380 used to shoot out Schreiber s tire and to murder the four friends from the Birchwood home.
J. Carr was acquitted on the four charges arising out of the Schreiber incident and convicted on all charges against him arising out of the Walenta and Birchwood incidents.
Evidence Sufficiency
Our standard of review on sufficiency claims is often stated and familiar:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, examined in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.] While the State must sustain its burden of proof on each element of an offense charged, circumstantial evidence and the logical inferences therefrom are sufficient to support a conviction of even the most serious crime. [Citations omitted.] If an appellate court holds that evidence to support a conviction is insufficient as a matter of law, the conviction must be reversed; and no retrial on the same crime is possible. See Burks v. United States, 437 U.S. 1, 11, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (double jeopardy precludes second trial once appellate court reverses for insufficient evidence); State v. Houck, 240 Kan. 130, 135-36, 727 P.2d 460 (1986) (conviction reversed without remand, where evidence did not support conviction of offense charged).” State v. Scott, 285 Kan. 366, 372, 171 P.3d 639 (2007).
In addition, appellate courts do not reweigh evidence, resolve ev-identiary conflicts, or make witness credibility determinations. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
We do not agree with J. Carr that his conviction of Walenta’s felony murder required inference to be stacked upon inference.
Walenta saw the gunman emerge from the passenger seat of the light-colored car, and she saw the car pull away from its parking place immediately after the shooting. A juror need only make one inference from these facts to arrive at a finding that there was another person driving the car that followed her. Adams testified that J. Carr was with his brother on the night of the crime. Adams’ testimony on whether she ever saw J. Carr in the company of R. Carr on the night of December 11 is ambiguous; she may have seen them together, but she may not have. Regardless, she had many ways of knowing they had been together. Her testimony on that point was not ambiguous or unclear, and it placed J. Carr with R. Carr not long after Walenta was shot. This testimony did not require the jury to draw an inference at all. Adams’ testimony on the car J. Carr and R. Carr would have been using was equally clear. The phrasing of the questions put to her gave her every opportunity to say that she was unsure; she did not. This testimony, again, did not require any inference to be stacked on any other inference. Finally, J. Carr’s possession of the black gun later identified as the Walenta murder weapon also was clear. He had it in his possession on December 11, 90 minutes after Walenta’s shooting; he gave it to Adams; he took it back from her on December 12; he was unhappy that she had been handling it, and he cleaned it and the bullets it held—remarkably thoroughly. These were direct observations of Adams. No inference of any kind was required.
What was required was the jury’s willingness to be persuaded of J. Carr’s guilt on circumstantial evidence. This is expressly allowed under Kansas law. See State v. Lowrance, 298 Kan. 274, Syl. ¶ 15, 312 P.3d 328 (2013) (even most serious of crimes may be proved by circumstantial evidence). Circumstantial proof is still proof. It is not equivalent to impermissible inference-stacking. It can rise to the level of beyond a reasonable doubt.
Particularly when we view the evidence in the light most favorable to die prosecution, we conclude the evidence in this case was sufficient to convict J. Carr of Walenta’s murder. This conclusion is reinforced by our recent decision in State v. McBroom, 299 Kan. 731, 756-58, 325 P.3d 1174 (2014), in which we held that evidence of the defendant’s participation in a string of burglaries with a friend could be relied upon by a jury to find he also participated in a burglary/homicide that was apparently committed by more tiran one person in the same general area and time frame. In this case, the evidence against J. Carr on the Birchwood incident would naturally have reinforced the evidence on the Walenta incident.
J4. Accomplice Culpability for Codefendant’s Sex Crimes
J. Carr also challenges his conviction as an aider and abettor of R. Carr’s rape and aggravated criminal sodomy of Holly G.
We fully discussed the mirror image of this challenge in our opinion on the R. Carr appeal, in Section 16. There we ruled that R. Carr could be found guilty as an aider and abettor of J. Carr’s sex crimes against Holly G. and Heather M., even though R. Carr was out of the Birchwood home on a trip with a victim to one or more ATMs or in another room when the crimes occurred. The all-night joint enterprise of the Birchwood intruders was plainly and repeatedly demonstrated by the State’s evidence, particularly Holly G.’s lengthy and detailed testimony. Under the standard of review recited in the previous section of this opinion, we have no hesitation in holding that the evidence J. Carr aided and abetted R. Carr’s rape and aggravated criminal sodomy of Holly G. was sufficient. See State v. Pratt, 255 Kan. 767, 773, 876 P.2d 1390 (1994) (aider and abettor need not be physically present when crime committed; sufficient evidence to support defendant’s attempted rape conviction).
Conclusion for Guilt Phase
For the reasons set forth above and in the opinion filed today in R. Carr’s appeal, State v. Carr, 299 Kan. 1, 331 P.3d 544 (2014), we affirm J. Carr’s capital murder conviction under Count 2. We reverse his three remaining capital murder convictions based on the alternative theories under K.S.A. 21-3439(a)(4) and (a)(6).
We affirm J. Carr’s convictions on Counts 9 through 24. Because four pairs of these counts were charged in the alternative, this results in affirmance of 12 rather than 16 convictions.
The convictions based on Counts 25, 26, and 29 through 40 are void for lack of subject matter jurisdiction. We affirm the convictions based on Counts 27 and 28. We affirm J. Carr’s conviction on Count 41. We reverse his conviction on Count 42 because it is multiplicitous with Count 41.
We affirm J. Carr’s convictions on Counts 43 through 55.
Penalty Phase
The general factual and procedural background for the penalty phase issues in this case is set out in full in the R. Carr opinion. We need not repeat it or supplement it here. In addition, nearly all penalty phase legal issues raised by J. Carr are discussed as needed and disposed of in the R. Carr opinion. We therefore merely list them with accompanying short responses.
PI. Did the district judge err in refusing to sever the penalty phase of defendants’ trial? A majority of six members of the court answers this question yes for reasons explained in Section PI of the R. Carr opinion and because of the family circumstances argument raised by J. Carr. The majority also relies on the prejudice to J. Carr flowing from R. Carr’s visible handcuffs during the penalty phase. One member of the court dissents and writes separately on this issue. A majority of six members of the court agrees that this error requires J. Carr’s remaining death sentence to be vacated, consistent with Section PI of the R. Carr opinion. One member of the court dissents and writes separately on this issue.
P2. Despite compliance with K.S.A. 21-4624(a), was it constitutional error to omit the four aggravating circumstances asserted by the State from the complaint? To provide guidance on remand, the court unanimously answers this question no for reasons explained in Section P2 of the R. Carr opinion.
P3. Did the four aggravating circumstances asserted by the State adequately channel the jury’s discretion in arriving at the sentence of death? To provide guidance on remand, the court unanimously answers this question yes for reasons explained in Section P3 of the R. Carr opinion.
P4. Does the unavailability of a transcript of the jury view deprive J. Carr of a meaningful opportunity for appellate review of his death sentence? To provide guidance on remand, the court unanimously answers this question no for reasons explained in Section P4 of the R. Carr opinion.
P5. Does K.S.A. 21-4624(c)’s allowance of testimonial hearsay (a) offend the heightened reliability standard applicable in death penalty cases, or (b) violate the Confrontation Clause of the United State Constitution and Crawford v. Washington, 541 U.S. 36, 56, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? To provide guidance on remand, the court unanimously answers the first question no for reasons explained in Section P5 of the R. Carr opinion. To provide further guidance on remand, the Court unanimously answers the second question yes for reasons explained in Section P5 of the R. Carr opinion.
P6. Did the district judge err in excluding mitigating evidence of (a) likelihood of parole, or (b) the anticipated impact of J. Carr s execution? To provide guidance on remand, the court unanimously answers the first question no for reasons explained in Section P6 of the R. Carr opinion. To provide further guidance on remand, in Section P6 of the R. Carr opinion, the court discusses the standard that should govern consideration if the second question arises again.
P7. Did the district judge err by permitting the State’s rebuttal witness to testify that he had consulted other experts and that they agreed with his opinion? To provide guidance on remand, in Section P7 of the R. Carr opinion, the court discusses the standard that should govern consideration if this question arises again.
P8. Did the district judge err in denying an opportunity for sur-rebuttal testimony? For reasons explained in Section P8 of the R. Carr opinion, the court unanimously agrees that the district judge abused his discretion. The court declines to reach the issue of harmlessness because of the necessity of remand.
P9. Must J. Carr’s sentencing on his noncapital convictions have occurred before the penalty phase of his trial, and, if so, should the juiy have been informed of dre sentences he would serve if he were not sentenced to death? For reasons explained in Section P9 of the R. Carr opinion, the court declines to reach the merits of the first part of this question because it is moot and, to provide guidance on remand, unanimously answers the second part of the question no.
P10. Did the district judge err in failing to instruct the jury that the existence of mitigating factors need not be proved beyond a reasonable doubt? To provide guidance on remand, for reasons explained in Section P10 of the R. Carr opinion, a majority of five members of the court answers this question yes. Two members of the court dissent, and one of them writes separately for the two on this issue.
Pll. Did the district judge err by failing to instruct jurors that “the crime” to be considered when evaluating aggravating circumstances was capital murder? In Section Pll of the R. Carr opinion, we discuss this issue to provide guidance on remand.
P12. Was the jury instruction on the role of mercy clearly erroneous? To provide guidance on remand, for reasons explained in Section P12 of tire R. Carr opinion, the court unanimously answers this question no.
P13. Did the wording of Instruction 10, when read with the verdict forms, misstate the law on the need for jury unanimity on mitigating factors not outweighing aggravating factors? To provide guidance on remand, for reasons explained in Section P13 of the R. Carr opinion, the court unanimously answers this question yes.
P14. Must J. Cards death sentence be vacated because a fact necessary to imposition of the penalty—-his age of 18 or older at the time of the capital crimes—was not submitted to the jury or found beyond a reasonable doubt? For reasons explained in Section P14 of the R. Carr opinion, the court declines to reach the merits of this issue because the situation that prompted it is unlikely to arise again on remand.
P15. Does K.S.A. 21-3205 authorize punishing an aider and abettor the same as a principal? In Section P16 of the R. Carr opinion, the court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and abettor. This is also true of J. Carr, and no further discussion of the issue is warranted in this opinion.
P16. Is tire death penalty an unconstitutionally disproportionate punishment as applied to aiders and abettors of capital murder under Section 9 of the Kansas Constitution Bill of Rights? In Section P17 of the R. Carr opinion, the court declines to reach the merits of this issue because the record on appeal does not demonstrate that R. Carr was convicted of capital murder as an aider and abettor. This is also true of J. Carr, and no further discussion of the issue is warranted in this opinion.
P17. Was the penalty phase infected by prosecutorial misconduct? J. Carr argues that one prosecutor s multiple references to his unadjudicated criminal conduct and his jailhouse bragging about shooting the Birchwood victims and the crude reason for raping one of the female victims were misconduct. Even though one such reference during closing argument was the subject of a successful objection and an order for the jury to disregard it, J. Carr argues the damage was incurable. Defense counsel’s earlier objection suggesting that the prosecutor could not refer to such material without being able to “prove it up” had been overruled. This objection probably should have been sustained by Judge Clark. See State v. McCaslin, 291 Kan. 697, Syl. ¶ 12, 245 P.3d 1030 (2011) (prosecutor, once challenged, must demonstrate good faith basis for facts underlying questions, argument). For reasons explained in Section P18 of the R. Carr opinion, the court declines to reach the further merits of this issue because the situations that prompted it are unlikely to arise again on remand.
P18. Do verdict forms such as those used in this case pose a threat of double jeopardy? For reasons explained in Section P19 of the R. Carr opinion, the court declines to reach the merits of this issue because it is unripe.
P19. Does Kansas’ execution protocol protect against unnecessary pain? For reasons explained in Section P20 of the R. Carr opinion, the court declines to reach tire merits of this issue because it is unripe.
Conclusion for Penalty Phase
Because the district judge’s failure to sever the penalty phase of defendants’ trial violated J. Carr’s Eighth Amendment right to an individualized sentencing determination and cannot be deemed harmless error, the death sentence for J. Carr’s remaining K.S.A. 21-3439(a)(6) conviction for tire murders of Heather M., Aaron S., Brad H., and Jason B. is vacated. The case is remanded to the district court for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Biles, J.:
Keaira Brown appeals her convictions for felony murder and attempted aggravated robbery. She was 13 years old at the time the crimes occurred, and she was tried as an adult. She received a controlling hard 20 life sentence. She challenges the district court’s waiver of juvenile jurisdiction, her convictions, and her life sentence.
As to the juvenile jurisdiction waiver, Brown argues the district court erred in analyzing the statutorily enumerated factors that guided its decision. Regarding her convictions, she claims: (1) error instructing the jury that a killing in the flight from an attempt to commit an inherently dangerous felony constitutes felony murder; (2) insufficient evidence to support a conviction for each alternative means she claims the statute specifies for felony murder; (3) in sufficient evidence to support her aggravated attempted robbery conviction; and (4) prosecutorial misconduct. Finally, Brown argues her hard 20 life sentence must be vacated because mandatory life sentences are unconstitutional as applied to offenders who were younger than 18 at the time of their crimes. We affirm.
Factual and Procedural Background
On July 23, 2008, 16-year-old Scott Sappington, Jr., sustained a fatal gunshot wound to the upper right side of his face. The wound was inflicted from point-blank range. Sappington’s body was found with the head and torso lying across the driver’s seat of his car with his legs and feet hanging out the driver’s side window. The head wound was inflicted in the short period of time between Sapping-ton approaching his car, which was parked in front of his grandmother’s house, and the car coming to rest on a neighbor’s curb after crashing into a fire hydrant and light pole as it rolled down the street.
Eyewitnesses saw a person walking toward Sappington’s vehicle just before hearing two people argue, saw die vehicle roll down the street, heard a crashing noise, and saw a person leave the scene on foot after the car had stopped. Near the crime scene, other witnesses saw a person headed south on foot. And several blocks further south, a person approached two children who were playing outside, gave them some bloody clothing, and used a garden hose to wash off.
During the police investigation, Brown was identified as a suspect. Her DNA and fingerprint were discovered on the exterior of the front passenger side door of Sappington’s car. The witness descriptions of die person seen approaching and leaving Sappington’s vehicle matched Brown. Additional evidence and witness identifications further established Brown was die person seen heading south from the crime scene and who abandoned the bloody clothing. Neidier the murder weapon nor any shell casings were found.
The State instituted juvenile proceedings alleging Brown committed felony murder with the underlying felony of aggravated robbery or attempted aggravated robbeiy. The State moved for au thorization to prosecute Brown as an adult, which the district court granted after an evidentiary hearing.
At trial, Brown testified. She admitted being at the crime scene. She said, she came upon a black car and noticed it was beat up or wrecked and that a pole had been knocked down. She saw a pair of feet sticking out of the car s driver s-side window and said, “hey,” but no one answered. She said she entered the vehicle’s passenger side and tried to shake Sappington to get a response, causing blood to get on her “hands and stuff.” She said Sappington just looked hurt, not dead. She said she left die scene because she heard sirens and was not supposed to be in the area without permission. She denied witnessing any altercation or a shooting.
Brown said she “just ran” and did not know where she went. She admitted abandoning her clothes and using a water hose to wash off. She said she went with her cousin to meet her sister at a friend’s house, stayed out until about 11 p.m., and then went home to sleep. She did not tell her mother, cousin, or sister what she had seen.
The jury found Brown guilty of first-degree felony murder and attempted aggravated robbery. The district court sentenced Brown to a hard 20 life sentence for first-degree murder and a concurrent 32-month sentence for attempted aggravated robbery. She timely appealed. Jurisdiction is proper. See K.S.A. 22-3601(b)(l). Additional facts will be discussed as applicable to the issue addressed.
The Juvenile Jurisdiction Waiver
Brown argues the district court erred when it waived juvenile jurisdiction and authorized the State to prosecute her as an adult. She asserts the district court abused its discretion in analyzing the statutorily-enumerated factors governing such decisions and that certain factual findings by tire district court lacked substantial competent evidence.
Standard of Review
K.S.A. 2013 Supp. 38-2347(e) directs the district court to consider eight statutory factors when deciding whether to certify a juvenile for adult prosecution. On appeal, that decision is subject to a dual standard of review. The district court’s factual findings are reviewed for substantial competent evidence. State v. Bailey, 292 Kan. 449, 453, 255 P.3d 19 (2011); In re D.D.M., 291 Kan. 883, 893, 249 P.3d 5 (2011). But the district court’s assessment of the eight statutory factors, which is based upon proved facts, should be reviewed for an abuse of discretion. 291 Kan. at 893. The district court is not constrained by the insufficiency of evidence to support one or more of the factors. The statute connotes trial court discretion in “evaluating and weighing the factors to determine whether the juvenile ‘should’ be prosecuted as an adult.” 291 Kan. at 893.
Substantial competent evidence “ ‘is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.’ ” 291 Kan. at 893. The appellate court accepts as true all evidence and the inferences to be drawn from that evidence supporting or tending to support the district court’s findings. The appellate court does not reweigh the evidence, substitute its evaluation of the evidence for the trial court’s, or pass upon witness credibility. 291 Kan. at 893.
A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the trial judge; (2) a ruling is based on an error of law; or (3) substantial competent evidence does not support a finding of fact on which the exercise of discretion is based. State v. Huddleston, 298 Kan. 941, 960, 318 P.3d 140 (2014).
Additional Facts
At the waiver hearing, the State put on evidence about the crime. It also presented evidence of prior, uncharged incidents involving Brown: (1) a journalist said Brown threw rocks at his news vehicle while he was driving it in Kansas City, Missouri, in April 2008; (2) evidence that Brown, during an argument with her aunt, hit her in the face with an iron; and (3) a witness said she was in a fight with Brown’s sister at a club and that about a week before Sappington was killed, Brown fired three or four gunshots at the witness’ car while the witness was driving it.
The administrator of the juvenile detention center where Brown was being held also testified for the State. She said Brown participated in school lessons at the facility, had regular meetings with a therapist at least twice a month, and had attended cognitive behavioral classes for 2 hours once a week since January 2009. She also said Brown had approximately 57 disciplinary infractions since being admitted to the facility, 37 of them considered major. Those major infractions included fights, threats to other residents, and security violations. In one instance, Brown accessed a security panel and pressed buttons to release locked doors.
Brown put on testimony from a pastor who had visited her several times since she was detained. He said she acted like a child in her dealings with him and did not hold herself out as an adult. He said he was aware of programs in the juvenile justice system that could help Brown, such as a diversion program, a probation program, and prevention programs. But he agreed that, outside the probation program, all those he identified focused on intervening before a juvenile commits a crime; that his opinion was based on knowledge of services available to people unlike Brown; and that he had no first-hand knowledge, experience, or training to base his opinion that juvenile justice system programs could help Brown.
An intensive supervision officer for the juvenile division of Wy-andotte County Community Corrections testified she works with children in the juvenile system and was familiar with programs offered to juvenile offenders at the Beloit Juvenile Correctional Facility. She said she found these programs helped offenders, even ones accused of “pretty bad things.” On cross-examination, she admitted she was not aware of any program designed for youth accused of off-grid crimes, such as the felony murder charge against Brown, and that just as many juveniles do poorly after release as those who do well. She had no statistics on recidivism. She also testified juvenile offenders can remain in the system until they are 22½ years old; but she admitted she had never seen that happen, though she said she had seen some offenders remain into their 20s.
Brown’s mother, who Brown lived with except from 2003 to 2006 when the mother was incarcerated for conspiracy to import co caine, testified she had not known Brown to have weapons. She acknowledged hearing about a few delinquent acts at school. A sister and a family friend testified Brown acts like a kid.
Brown’s father testified he had never seen Brown use a gun or be violent. He said Brown developed an emotional disorder and tried to hurt herself when her mother was incarcerated. He said he was against medication because he believed Brown’s behavior was caused from missing her mother. On cross-examination, the State asked him about Brown’s school records, which reflected dis-ciplinaiy problems in middle school including drug possession, weapon possession, fighting, an out-of-school suspension for assault, defiance of authority, dangerous behavior, and sexual harassment. The State also asked about records of an out-of-school suspension in second grade for assaulting another student. He denied Brown was disciplined or suspended for violence at school.
Bruce Cappo, a psychologist, evaluated Brown and diagnosed her with conduct disorder, noting a prior diagnosis of major depression with past suicide attempts, and numerous self-harm concerns while incarcerated. Cappo said Brown sometimes looked to her mother for responses during his evaluation, which he believed is something a girl her age would do and inconsistent with someone trying to present themselves as equal to adults. Cappo said rehabilitative programs geared toward violent offenders existed, giving Beloit as an example. Cappo said it was possible to change Brown’s behavior because she was still in her formative years and the juvenile system still had almost 7 years to work with her. On cross-examination, Cappo agreed the future risk of delinquency and harm to others was greater tire earlier aggressive behavior begins, so a person who becomes aggressive at 13 is at a statistically greater risk of reoffending than one who becomes aggressive at 17.
Ruling from the bench, the district court waived juvenile jurisdiction. It cited tire seriousness of the offense; that the offense was committed in an aggressive, violent, and willful manner; that it was a person offense; that the evidence fell short of establishing a likelihood Brown could be rehabilitated before juvenile jurisdiction expired; and that the interest of the community, i.e., community protection, would be better served waiving juvenile jurisdiction. The court did not believe the evidence of the prior uncharged offenses was substantial enough to weigh toward waiver and that Brown’s prior history weighed only slightly in favor of waiving jurisdiction. Similarly, tire court did not find the evidence of Brown’s maturity level was enough to consider that factor in the analysis. The district court also ruled there was probable cause to bind Brown over for trial on all charges.
In its written decision that followed, the district court reached the same conclusion but changed its rationale somewhat. It wrote: “In any conflict between the findings and holding announced from the bench and the contents of this memorandum, those made orally from the bench should control.” Relevant here, the district court stated that Brown’s sophistication and maturity level weighed in favor of waiver (when it had been a “wash” in the oral ruling) because her consistent infractions at the juvenile detention center indicated a disdain for authority and lack of fear of consequences, which was not found in child-like people. The court further noted Brown had decided to stop attending school regularly and had a record of disciplinary trouble and violence early on. In analyzing this factor, the district court reasoned that the way Brown allegedly approached Sappington, killed him, then calmly left the scene and disposed of evidence was relevant to her emotional attitude but specifically noted that did not make her responsible as an adult. It then stated Brown’s “choice at her young age to adopt the grooming habits and clothing of a boy are also indications of a [more] mature attitude.”
Discussion
The Revised Kansas Juvenile Justice Code (Revised Code), K.S.A. 2013 Supp. 38-2301 et seq., generally governs proceedings concerning juveniles. K.S.A. 2013 Supp. 38-2304. For the Revised Code’s purposes, a “juvenile” is a person under 18 years old, but at least 10 years old, who is alleged to be a juvenile offender. K.S.A. 2013 Supp. 38-2302(i). The term “juvenile offender” includes “a person who commits an offense while 10 or more years of age but less than 18 years of age which if committed by an adult would constitute a felony or misdemeanor as defined by K.S.A. 2013 Supp. 21-5102 . . . .” K.S.A. 2013 Supp. 38-2302(n).
After commencing proceedings under the Revised Code, the county or district attorney may move for authorization to prosecute the juvenile as an adult. K.S.A. 2013 Supp. 38-2347(a)(l). “The juvenile shall be presumed to be a juvenile unless good cause is shown to prosecute the juvenile as an adult.” K.S.A. 2013 Supp. 38-2347(a)(l). But if the juvenile was 14 or older at the time of the alleged offense and the offense would, for example, be an off-grid crime if committed by an adult, the juvenile is presumed to be an adult and “the burden is on the juvenile to rebut the presumption by a preponderance of the evidence.” K.S.A. 2013 Supp. 28-2347(a)(2).
The district court may authorize adult prosecution “if the court finds from a preponderance of the evidence that tire alleged juvenile offender should be prosecuted as an adult for the offense charged.” K.S.A. 2013 Supp. 38-2347(f)(l). The statute sets out the decision-making process as follows:
“In determining whether or not prosecution as an adult should be authorized or designating the proceeding as an extended jurisdiction juvenile prosecution, the court shall consider each of the following factors:
“(1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult or designating the proceeding as an extended jurisdiction juvenile prosecution;
“(2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
“(3) whether the offense was against a person or against property. Greater weight shall be given to offenses against persons, especially if personal injury resulted;
“(4) the number of alleged offenses unadjudicated and pending against the juvenile;
“(5) the previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender under this code or the Kansas juvenile justice code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
“(6) the sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult;
“(7) whether there are facilities or programs available to the court which are likely to rehabilitate the juvenile prior to the expiration of the court’s jurisdiction under this code; and
“(8) whether the interests of the juvenile or of the community would be better served by criminal prosecution or extended jurisdiction juvenile prosecution.
“The insufficiency of evidence pertaining to any one or more of the factors listed in this subsection, in and of itself, shall not be determinative of the issue. Subject to the provisions of K.S.A. 2013 Supp. 38-2354, and amendments thereto, written reports and other materials relating to the juvenile’s mental, physical, educational and social history may be considered by the court.” K.S.A. 2013 Supp. 38-2347(e).
Brown first argues that the district court abused its discretion by improperly shifting the burden of proof to her when it concluded the absence of evidence on the seventh factor concerning available rehabilitation programs weighed in favor of adult prosecution. But this argument mischaracterizes the district court’s analysis. “[T]he district court is certainly permitted to consider evidence which is elicited through the cross-examination of . . . witnesses.” In re D.D.M., 291 Kan. at 893.
Brown’s psychologist (Cappo) testified about the opportunity for Brown’s rehabilitation within the juvenile justice system. And in considering that this factor weighed in favor of adult prosecution, the district court relied on Cappo’s cross-examination concessions that Brown would be a “challenging case,” that prior interventions failed to end Brown’s antisocial behavior, and that programs “could help rehabilitate Brown.” It also noted Cappo stopped short of concluding the programs were “likely” to rehabilitate Brown. In short, the State put on evidence supporting the district court’s determination that available facilities or programs were not likely to rehabilitate Brown before juvenile jurisdiction expired.
Brown next argues the district court erred by separately considering the first three factors concerning the seriousness of the offense; whether it was committed in an aggressive, violent, premeditated, or willful manner; and whether the offense was against a person or property. She claims those factors are duplicitous when the alleged offense is an off-grid crime. Her contention is that an off-grid crime necessarily satisfies all three factors, so the second and third factors are surplus. She asserts the legislature did not intend the second and third factors should enter the waiver analysis with off-grid offenses, so the district court abused its discretion by determining all three factors weighed in favor of adult prosecution. This argument is meritless.
Each of these first three factors concern different subject matter. See K.S.A. 2013 Supp. 38-2347(e)(l)-(3); cf. State v. Vargas, 260 Kan. 791, 800, 926 P.2d 223 (1996) (under prior code utilizing same factors, substantial competent evidence supported adult prosecution for murder when district court “considered not only tire gravity of die offense, but also . . . the aggressive manner in which die crime was committed [and] the fact that the crime was against a person rather than property . . . .”)• They are not redundant or surplus just because they might necessarily weigh in favor of adult prosecution when particular crimes are alleged.
Moreover, the argument that legislative intent is subverted by considering all three factors when the juvenile is accused of an off-grid crime finds no support in the statute. Brown’s interpretation contravenes the statute’s express language, which commands that die district court “shall consider each of die . . . factors.” K.S.A. 2013 Supp. 38-2347(e). And the legislature enumerated all three factors while simultaneously recognizing the possibility the juvenile could be charged with an off-grid offense. See K.S.A. 2013 Supp. 38-2347(a)(2) (juveniles 14-17 presumed adult when offense alleged would be off-grid if committed by adult).
Brown next argues the district court erred when assessing Brown’s “sophistication or maturity ... as determined by consideration of [Brown’s] home, environment, emotional attitude, pattern of living or desire to be treated as an adult.” This factor “is designed to ascertain whether a juvenile has sophistication and maturity beyond that of a juvenile.” State v. Stephens, 266 Kan. 886, 892, 975 P.2d 801 (1999). Brown contends the district court erred, first by relying on the facts of tire crime in its assessment, and second, by relying on evidence of Brown’s grooming habits.
In its oral ruling, the district court said:
“I find—frankly that that factor is a wash. I think there are reasons to believe that there are—are aspects of Miss Brown that are 13 years of age, and there are aspects of her that are of an adult age. So I don’t believe that is particularly helpful in this case.”
In its memorandum opinion, the court added:
“The Court is careful not to rely too heavily on the adult-like nature of the crime charged. While the Court does believe that it is relevant to the factor, it is clear in a large majority of waiver cases the crime will fit, by level of violence or planning or some other measure, into adult-type behavior. In Ais case, it certainly Ad. For a person to arm Aemselves, calmly approach a scene, slay a young man and Aen calmly leave the scene and Aspóse of incriminating evidence all are very adult activities. While this is relevant to her emotional attitude etc., as an isolated incident, it does not simply make the person responsible (if that is established) an adult. The question requires more study.” (Emphasis added.)
While these passages make clear the district court did consider the circumstances of tire crime when assessing Brown’s maturity level, they equally demonstrate those considerations were not conclusive to tire district court’s ultimate assessment of this factor. Brown’s argument as to this aspect of the district court’s analysis is without merit.
Finally, Brown challenges the district court’s statement in its memorandum opinion that Brown’s “choice at her young age to adopt the grooming habits and clothing of a boy are also indications of a [more] mature attitude.” We also question the relevancy that Brown’s grooming habits might have and what inferences are properly drawn from them, but this was not part of the oral ruling that tire district court expressly designated as controlling nor was this the only evidence referenced in the memorandum opinion underlying the analysis of this factor. Therefore, we conclude that even if the district court erred by determining Brown’s maturity level weighed in favor of waiver based on her grooming habits, this error alone would not require reversal. See In re D.D.M., 291 Kan. at 894 (upholding district court’s decision not to waive juvenile jurisdiction, but observing portion of district court’s analysis that juvenile’s lack of maturity favored this result was not entitled to deference because it iacked evidentiary support and noting insufficient evidence as to one or more factors is not determinative).
Based on our review of the district court’s collective analysis of the factors, we hold there was no abuse of discretion in waiving juvenile jurisdiction.
Felony-Murder Instruction
Brown argues next that the district court erred by instructing the jury it could find her guilty of felony murder if it found she killed Sappington while in “flight from attempting to commit aggravated robbery.” The thrust of her claim is that felony murder cannot be based upon a killing done while in flight from attempted aggravated robbery. Some additional facts are helpful.
Without objection by Brown, the district court instructed the jury:
“In Count One of the Information, [Brown] is charged with the crime of murder in the first degree—felony murder while in the commission of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That [Brown] killed Scott Sappington, Jr.;
“2. That such killing was done while in the commission of, attempt to commit, or flight from attempting to commit aggravated robbery; and
“3. That this act occurred on or about the 23rd day of July, 2008, in Wyandotte County, Kansas.
“The elements of the completed crime of aggravated robbery are as follows:
“1. That the defendant intentionally took property from the presence of Scott Sappington, Jr.;
“2. That the taking was by force;
“3. That the defendant inflicted bodily harm on Scott Sappington, Jr.; and
“4. That this act occurred on or about the 23rd day of July, 2008.” (Emphasis added.)
Standard of Review
When a party fails to object to or request a jury instruction at trial, review on appeal is limited to determining whether the instruction was clearly erroneous. K.S.A. 22-3414(3); see State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). The application of this standard consists of two parts. “First, ‘the reviewing court must . . . determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.’ ” 296 Kan. at 1121 (quoting State v. Williams, 295 Kan. 506, Syl. 4, 286 P.3d 195 [2012]).
“If error is found, then the second part is considered, i.e., the clearly erroneous analysis moves to a reversibility inquiry and
‘the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ ” 296 Kan. at 1121 (quoting Williams, 295 Kan. 506, Syl. ¶ 5).
Discussion
At the time of Brown’s crimes, first-degree murder was defined as the killing of a human being committed, “(b) in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401. Aggravated robbery is an “inherently dangerous felony.” K.S.A. 21-3436(4).
As the State points out, the version of PIK Crim. 3d in effect at the time conformed to the instruction actually given. See PIK Crim. 3d 56.02 (Supp. 2009). The use of that form and the identical “flight from attempting to commit” language was accepted in State v. Griffin, 279 Kan. 634, 112 P.3d 862 (2005) (approving language in PIK Crim. 3d 56.02A given when premeditated first-degree murder and felony-murder were both charged). Like Brown, the defendant in Griffin argued that language misstated the law because that combination of acts was not included in the felony-murder statute. The court held:
“As can be seen in this excerpt from the pattern instruction, flight from attempting to commit an inherently dangerous felony is included. ‘The Pattern Instructions for Kansas were developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions, and while they are not required, they are strongly recommended for use by Kansas trial courts.’ [Citation omitted.] Although it might have been better practice for the trial judge to have selected [from the pattern instruction] only the parenthetical phrases that fit the facts of this case, in which event the challenged phrase would not have been included in the jury instruction, the phrase is not a misstatement of the law.” Griffin, 279 Kan. at 662.
We note PIK Crim. 4th 54.120 modified this pattern instruction to remove the flight from attempting to commit language. But the felony-murder instruction given in Brown’s trial was an accurate statement of the law as previously noted in Griffin and, unlike in Griffin, was also factually appropriate given the evidence presented at Brown’s trial, i.e., the jury could have concluded Brown shot Sappington to facilitate her escape after he interrupted her failed attempt to steal his car. The instruction was not error.
Felony-Murder Alternative Means
Brown argues her convictions must be reversed because K.S.A. 21-3401(b) set out alternative means of committing felony murder; and the State failed to present evidence of each alternative means, e.g., that she killed Sappington while committing aggravated robbery and while attempting to commit aggravated robbery. This argument is readily disposed of by our decision in State v. Cheffen, 297 Kan. 689, 303 P.3d 1261, cert. denied 134 S. Ct. 627 (2013). In Cheffen, we held lulling a person while committing, attempting to commit, or fleeing from an inherently dangerous felony are not alternative means of committing felony murder. 297 Kan. at 702. Brown offers no argument as to why Cheffen is in error. We hold this argument is without merit.
Sufficiency of Evidence for Attempted Aggravated Robbery
Brown next argues the State failed to present sufficient evidence to support her attempted aggravated robbery conviction because the evidence established her taking of Sappington’s car was complete when she fatally shot Sappington. In other words, she contends there was no evidence of an attempted taking, only a completed one.
Standard of Review
“When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, tire appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or malee witness credibility determinations. State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013) (citing State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 [2011]).
Discussion
At the time of Brown’s crime, aggravated robbery was defined 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.” K.S.A. 21-3427. A “[r]obbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. “An attempt is any overt act toward the preparation 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).
“[T]o constitute a taking, the prospective robber must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein.” State v. Valdez, 266 Kan. 774, 786, 977 P.2d 242 (1999). Asportation is not required to complete a taking. 266 Kan. at 787 (holding that taking of car had occurred when owner’s unconscious body in back seat of vehicle). A taking is incomplete when it “is immediately resisted by the owner before the thief can remove [the property] from the premises or the owner’s presence.” State v. Long, 234 Kan. 580, 586, 675 P.2d 832 (1984).
Brown claims the State presented no evidence she failed to obtain possession and control over Sappington’s vehicle. We disagree. One witness testified she heard an argument during the incident. And in the process of rolling to its final stopping place, the vehicle struck a fire hydrant on one side of the road and a light pole on the other. Another witness saw Brown abandon the vehicle immediately after it crashed. Sappington’s body was found with the torso lying on the driver’s seat. From this evidence, a reasonable factfinder could conclude Brown failed to complete the talcing of Sappington’s vehicle because Sappington’s resistance or his body’s position after the shooting prevented her from obtaining possession of and control over the car.
Brown contends the taking was complete as a matter of law the instant she shot Sappington because Sappington was immediately incapacitated and, in her view, the presence of the vehicle owner’s incapacitated body inside a vehicle does not “qualify tire taking.” She relies on Valdez, but that case stands only for the proposition that defendants’ possession of the victim’s car keys, alone, did not constitute a taking of the vehicle. We can find no support for the broad, bright-line rule Brown proposes—that a taking always occurs when a would-be robber is present somewhere inside a vehicle at the same time as the vehicle owner’s incapacitated body.
We hold there was sufficient evidence that Brown tried to but failed to take Sappington’s car. In turn, we hold the evidence was sufficient to support Brown’s attempted aggravated robbery conviction.
Prosecutorial Misconduct During Closing Arguments
Brown argues the prosecutor committed reversible misconduct by repeatedly referring to her testimony as a “story” or “tale.” She objects to two statements made during the State’s closing argument:
First, the prosecutor said:
“[A witness] then heard the car take off. Shortly after she hears this confrontation between tírese two people, she hears tire car take off. She told tire police, back when it was fresh in her mind over two years ago that she heard gunshots after the car took off and then she saw the car crash.
“She turned momentarily to tell her mom to call 911, and then she went back out, went to look at the crash. Remember the things [Broum] says because they’re not consistent—her tale that she happened upon the car after it crashed. That’s not what [the witness] saw.” (Emphasis added.)
Later, the prosecutor said:
“You have Ke’Aira Brown’s DNA and a fingerprint of hers on [Sappington’s] car. Now, she’s had two years, a little over—two years and three months to come up with a story about how she’s going to explain that to the jury. How am I going to explain my DNA in the car? How am I going to explain my fingerprint in that car?
“She had all weekend this past weekend to decide how she’s going to respond to all of the evidence that she heard here in the courtroom last week. And she comes up with this story that she’s trying to help Scott Sappington, that she just happened upon this car wreck and saw him there, went to the driver side around to the passenger side, opened it up because that will explain DNA and my fingerprint. But then she didn’t. She said she was trying to help Scott Sappington but she didn’t. She don’t stop and try to get a neighbor to call 911. She didn’t try to render any assistance. She just shook him according to her. She did nothing to help him.” (Emphasis added.)
Brown argues the emphasized language was impermissible commentary about her credibility. We agree.
Standard of Review
Appellate review of a prosecutorial misconduct claim based on improper comments requires a two-step analysis. First, an appellate court decides whether the comments at issue were outside the wide latitude a prosecutor is allowed, e.g., when discussing evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (2001) (citing State v. Miller, 268 Kan. 517, Syl. ¶ 4, 997 P.2d 90 [2000], cert. denied 534 U.S. 1047 [2001]). But that latitude does not extend to a prosecutor stating a personal opinion that the defendant’s testimony is untruthful. State v. Akins, 298 Kan. 592, 608, 315 P.3d 868 (2014).
Appellate courts consider three factors in analyzing the second step: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. But none of these factors individually controls; and before tire third factor can override the first two, an appellate court must be able to say the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), have been met. State v. McCullough, 293 Kan. 970, 990-91, 270 P.3d 1142 (2012).
When both constitutional and nonconstitutional errors clearly arise from the same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been met. Bridges, 297 Kan. 989, Syl. ¶ 16. Under both standards, the party benefitting from the error bears the burden to demonstrate harmlessness. Herbel, 296 Kan. at 1110.
Discussion
A prosecutor is forbidden from offering a personal opinion that the defendant’s testimony is untruthful. Akins, 298 Kan. at 608. The rationale for this rule “ ‘is that expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, not commentary on the evidence of the case.’ ” State v. Graham, 277 Kan. 121, 128-29, 83 P.3d 143 (2004) (quoting State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 [2000]). The prohibition extends not only to using the word “lie” but also to its “derivative.” See State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005) (prosecutor called defendant’s testimony a “fabrication,” “yarn,” “final yam,” “the yarn spun here,” and “four-part yarn”); see also Akins, 298 Kan. at 607 (prosecutor asked did the jury “buy” defendant’s story and said his testimony was “not credible”).
But prosecutors are permitted “to point out inconsistencies in a defendant’s statements and to argue evidence that reflects poorly on a defendant’s credibility.” Akins, 298 Kan. at 608; see State v. Duong, 292 Kan. 824, 831-32, 257 P.3d 309 (2011) (not improper commentary on credibility to identify specific evidence supporting wholly-evidence-based argument victim’s testimony was more believable than defendant’s). The comments are considered in the context in which they were made, not in isolation. Duong, 292 Kan. at 831.
We hold the prosecutor’s statement that Brown had the weekend to “decide” how to testify in response to die evidence against her was misconduct. The clear thrust to such a statement was that Brown must have lied because an honest person does not have to “decide” what the truth is. And in this case the prosecutor seasoned this suggestion by referring to Brown’s testimony as a “tale” and a “story.” Given our caselaw, a prosecutor’s time during closing arguments is better spent discussing the evidentiary strengths of the case at hand, rather than devising different ways to euphemistically accuse a criminal defendant of lying on the witness stand.
Having found misconduct, the next step is applying the three factors used to determine whether the misconduct denied Brown a fair trial. First, we must determine if the misconduct was gross and flagrant. Bridges, 297 Kan. at 1012-13. Often in examining this factor, we assess whether the statement is contraiy to a longstanding rule of law. See State v. Kemble, 291 Kan. 109, 121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include repeated comments, emphasis on an improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); see also Bridges, 297 Kan. at 1015-16 (prosecutor’s conduct was gross and flagrant because it violated the well-established rule prohibiting comments on the defendant’s credibility). Under the second factor, it must be determined whether the prosecutor’s statement was a result of ill will. A prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct . . . .’” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011).
We conclude the misconduct was gross and flagrant because it runs afoul of our long-standing rule against a prosecutor’s personal commentary on witness credibility. Moreover, the comments were calculated to highlight this point by emphasizing not only Brown’s opportunity to invent her testimony in the time between the crime and trial but also her opportunity to refine it to address the evidence the State presented in its case-in-chief.
But we do not believe the improper statements were motivated by ill will. Despite Brown’s argument that the prosecutor engaged in repeated misconduct, the record reflects offending statements occurred only once in a limited portion of the prosecutor’s argument. And the transcript reflects the prosecutor attempted to tetlier her assertions about the falsity of Brown’s testimony to evidence conflicting with the account.
Lastly, we consider whether the evidence against Brown was so direct and overwhelming that the misconduct would likely have little weight in the minds of the jurors. We conclude there is no reversible error.
Brown attempts to characterize the trial as a credibility contest, but the evidence of Brown’s guilt came from multiple sources and was overwhelming despite her testimony. A neighbor saw a person fitting Brown’s description walking toward Sappington’s car, heard an argument, and saw the car crash. Another neighbor heard the crash, looked outside, and saw a person fitting Brown’s description fleeing on foot. Brown’s own testimony, DNA evidence, and fingerprints confirm she was the person these witnesses saw. The same evidence places Brown inside Sappington’s car after he was shot but before anyone else arrived on the scene. Yet neighbors, passers-by, and first responders all arrived within minutes. No witness—including Brown—saw anyone else in the moments immediately before and after Sappington was shot at point-blank range who could have committed these crimes. Meanwhile, Brown fled die scene and abandoned her blood-soaked clodies several blocks away.
On this evidence, we hold there is no reasonable possibility the prosecutor’s improper commentaiy affected the trial’s outcome. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Mandatory Hard Life Sentence Imposed On Juvenile Offender
Finally, Brown argues her hard 20 life sentence must be vacated because the sentencing scheme under which it was imposed violates the Eighth Amendment to the United States Constitution by preventing the sentencing court from taking into account a minor defendant’s age before imposing it. We disagree.
A person convicted of felony murder is subject to a mandatoiy sentence of life imprisonment. See K.S.A. 21-4706(c). A person serving a life sentence for a felony murder committed after July 1, 1999, becomes parole eligible after 20 years of confinement. K.S.A. 22-3717(b)(2).
The Eighth Amendment to the United States Constitution prohibits “cruel and unusual punishments.” “Embodied in the Constitution’s ban ... is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ ” Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). From the proportionality principle flows certain categorical rules concerning punishment of juveniles. The United States Supreme Court has held that the death penalty cannot be imposed on offenders who were under 18 at the time of their crimes and that a non-homicide offender who was under 18 at the time of the offense cannot be subject to a prison sentence of life without the possibility of parole. See Miller v. Alabama, 132 S. Ct. 2455, 2458, 183 L. Ed. 2d 407 (2012) (citing Graham, 560 U.S. at 82, and Roper v. Simmons, 543 U.S. 551, 578, 125 S. Ct. 1183, 161 L. Ed. 2d 1 [2005]).
The Court has also held the finality of the death penalty differentiates it from sentences of imprisonment such that “in capital cases the fundamental respect for humanity underlying the Eighth Amendment [citation omitted] requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensible part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).
Recently the Court extended Woodsons individualized sentencing requirement and held mandatory life-without-parole sentences violate the Eighth Amendment when imposed on defendants who were under 18 at the time of their crimes. See Miller, 132 S. Ct. at 2475. It reasoned that this result was compelled by (1) its caselaw imposing categorical restrictions in the context of sentencing juveniles based on juveniles’ lesser degree of culpability and the severity of the crime being sentenced; and (2) its caselaw analogizing juvenile life without parole sentences to capital punishment. 132 S. Ct. at 2464-67. The Court’s decision does not “foreclose a sen-tencer’s ability [to sentence a juvenile to life without parole] in homicide cases, [but] require[s] it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” 132 S. Ct. at 2469.
Brown asks us now to extend the Court’s Miller decision and hold mandatory life-with-parole sentences are unconstitutional as applied to persons who were under 18 at tire time they committed their crimes. We decline to do so because Millers rationale is inapplicable. The parallels between life-without-parole sentences and the death penalty that made Woodson applicable in Miller are not present in this case. A hard 20 life sentence does not irrevocably adjudge a juvenile offender unfit for society. Rather, in line with the concerns expressed in Graham, it gives the offender a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” by permitting parole after the mandatory 20-year minimum prison term is served. See Graham, 560 U.S. at 75; see also K.S.A. 22-3717(b)(2). Brown’s constitutional challenge is without merit.
Affirmed.
Moritz, J., not participating.
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The opinion of the court was delivered by
Per Curiam-.
The United States Court of Appeals for the Seventh Circuit requests our answers to two certified questions regarding the proper classification of FedEx Ground Package System, Inc. (FedEx) delivery drivers under the provisions of the Kansas Wage Payment Act (KWPA), K.S.A. 44-313 et seq. Specifically, the Seventh Circuit inquires:
“1. Given the undisputed facts presented to the district court in this case, are the plaintiff drivers employees of FedEx as a matter of law under die KWPA?
“2. Drivers can acquire more than one service area from FedEx. ... Is the answer to the preceding question different for plaintiff drivers who have more than one service area?” Craig v. FedEx Ground Package System, Inc., 686 F.3d 423, 431 (7th Cir. 2012).
We answer yes to the first certified question. As applied to those drivers who are members of the certified class, i.e., those drivers who “ ‘drive a vehicle on a full-time basis,’ ” we answer no to the second question, i.e., the answer to the first question remains the same. See 686 F.3d at 425, n.1.
Facts and Procedural Overview
This case began as numerous class actions filed throughout the country against FedEx by current and former drivers for the company. The plaintiff drivers allege they are employees, rather than independent contractors, under both state and federal law. The Judicial Panel on Multidistrict Litigation consolidated the class actions, transferred the consolidated action to the United States District Court for the Northern District of Indiana (District Court), and designated the Kansas class action as the lead case.
The District Court certified a nationwide class seeking relief under the Employee Retirement Income Security Act (ERISA) and certified statewide classes under Federal Rule of Civil Procedure 23(b)(3). Craig, 686 F.3d at 425. There are 479 Kansas class plaintiffs who allege that they were improperly classified as independent contractors under the KWPA. They seek repayment of all costs and expenses that they expended on behalf of FedEx during their time as FedEx drivers, and they claim entitlement to unpaid overtime wages. The Kansas class is defined as follows:
“ ‘All persons who: 1) entered or will enter into a FXG Ground or FXG Home Delivery form Operating Agreement . . . ; 2) drove or will drive a vehicle on a full-time basis (meaning exclusive of time off for commonly excused employment absences) from February 11, 1998, through October 15,2007, to provide package pick-up and delivery services pursuant to the Operating Agreement; and 3) were dispatched out of a terminal in the state of Kansas.’ [Citation omitted.]” Craig, 686 F.3d at 425, n.1.
Pursuant to this class definition, plaintiffs must be full-time drivers. Accordingly, we will also refer to plaintiffs as “drivers.”
All parties filed cross-motions for summaiy judgment on a stipulated record that included a form Operating Agreement (OA) entered into between FedEx and the drivers, as well as evidence relating to certain FedEx work practices. The District Court determined that the Kansas class plaintiffs were independent contractors under the KWPA. Consequently, tire court granted summary judgment to FedEx and denied tíre Kansas class plaintiffs’ summaiy judgment motion. 686 F.3d at 425. Subsequently, the District Court relied on its decision in the Kansas Craig case to enter summary judgment in favor of FedEx on the respective plaintiffs’ employment status challenges in all the other statewide class actions. See In re FedEx Ground Package System, Inc., 758 F. Supp. 2d 638 (N.D. Ind. 2010).
All state class plaintiffs appealed, presenting substantially the same issue: Whether the district court erred by deciding, as a matter of law, that plaintiffs were independent contractors, rather than employees, under each respective state’s substantive law. The Seventh Circuit chose to proceed with review of the Craig appeal while suspending briefing in the remaining appeals.
The Seventh Circuit began its analysis by noting that under Kansas law the “ ‘right of control’ test is the most important consideration in determining whether an employment relationship exists, but it is not the only one.” Craig, 686 F.3d at 427. Ultimately, the Seventh Circuit opined that our Kansas cases addressing the right to control test did not clearly indicate to the Seventh Circuit how it should decide a close case, such as the one presented by the facts of this case. The Seventh Circuit explained its need to propound certified questions to this court as follows:
“Where some of the factors weigh in favor of finding employee status, some weigh in favor of independent contractor status, and some ‘cut both ways,’ a court must weigh the factors according to some legal principle or principles. But other than the point that the right of control is the primary factor, what is the underlying principle (or principles) that guides that weighing process in close cases such as this seeking to establish an employment relationship under the KWPA? We are unsure.” 686 F.3d at 428.
A lengthy recitation of the uncontroverted facts relied upon by the federal courts is set forth in the District Court’s opinion. In re FedEx Ground Package System, Inc., 734 F. Supp. 2d 557, 560-75 (N.D. 2010). Although we have carefully reviewed all of the recited facts, we will not repeat the entire recitation here but rather we will refer to the relevant facts as they become germane to our discussion.
FedEx Delivery Drivers’ Status under the KWPA
The simple question is whether FedEx’s delivery drivers are employees for purposes of the KWPA. The answer defies such simplicity. As FedEx’s counsel acknowledged at oral argument, the company carefully structured its drivers’ operating agreements so that it could label the drivers as independent contractors in order to gain a competitive advantage, i.e., to avoid the additional costs associated with employees. In other words, this is a close case by design, not happenstance. Notwithstanding the form or labels utilized, we must determine whether the substance of the relationship between FedEx and its delivery drivers renders the drivers employees within the meaning of the KWPA. Ultimately, we determine that form does not trump the substantive indicia of an employer/employee relationship.
Authority/Standard of Review
K.S.A. 60-3201, entitled “Power to answer,” provides us with the authority to respond to the Seventh Circuit’s request. That statute provides, in relevant part:
“The Kansas supreme court may answer questions of law certified to it by . . . a court of appeals of the United States,... when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.” K.S.A. 60-3201.
By statutoiy definition, certified questions present questions of law, and we exercise unlimited review over such questions. See Nationwide Mutual Ins. Co. v. Briggs, 298 Kan. 873, 875, 317 P.3d 770 (2014); Eastman v. Coffeyville Resources Refining & Marketing, 295 Kan. 470, 473, 284 P.3d 1049 (2012).
Moreover, with these particular certified questions, we must interpret and apply the KWPA, which is also a question of law subject to de novo review. See Salon Enterprises, Inc. v. Langford, 29 Kan. App. 2d 268, 270-71, 31 P.3d 290 (2000).
Overview of the KWPA
We begin by reviewing the applicable statutory provisions. The KWPA is an “expansive and comprehensive legislative scheme that is broad in its scope and the rights created for Kansas workers to secure unpaid wages earned from their labors.” Campbell v. Husky Hogs, 292 Kan. 225, 233, 255 P.3d 1 (2011). It was enacted in 1973 and primarily sought to address problems being encountered by employees of small businesses. See An Act Providing for Wage Payment and Collection: Hearing on H.B. 1429 Before the Senate Comm. on Public Health and Welfare, 1973 Leg., 68th Sess. (Kan. 1973) (statement of Rep. Jim Parrish, Member, Plouse of Representatives). The KWPA’s primary concern was to protect low income workers who were shorted, docked, or cheated out of pay for services performed. See An Act Providing for Wage Payment and Collection: Hearing on H.B. 1429 Before the House Comm. on Labor and Industry, 1973 Leg., 68th Sess. (Kan. 1973) (statement of T. McCune, Kansas Department of Labor). A goal of the legislation was to protect Kansas employees who were not then covered by the Fair Labor Standards Act (FLSA), minimum wage requirements, or the National Labor Relations Board. (McCune Statement, p. 1).
The KWPA controls several aspects of wages and benefits for the Kansas worker that are not covered by the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 (2012) et seq. The KWPA governs when wages must be paid, the manner in which they must be paid, and the circumstances in which wages can be withheld. See K.S.A. 2007 Supp. 44-314; K.S.A. 2007 Supp. 44-319. The KWPA also requires employers to provide certain notice requirements with respect to tire payment of wages and the provision of benefits. See K.S.A. 2007 Supp. 44-319a; K.S.A. 44-320. It provides for remedies and penalties for violation of its requirements. K.S.A. 44-322; K.S.A. 2007 Supp. 44-322a. Notably, the KWPA does not contain any express provision relating to die payment of overtime, which is typically pursued under a FLSA claim.
Getting to the crux of the presented questions, the KWPA applies to “employees,” defined as “any person allowed or permitted to work by an employer.” K.S.A. 2007 Supp. 44-313(b). Independent contractors are specifically excluded from the definition of employee under die KWPA: “ ‘Allowed or permitted to work,’ within the meaning of K.S.A. 44-313(b), shall not include an independent contractor, as defined by rules, regulations, and interpretations of the United States secretary of labor for the purposes of the fair labor standards act.” K.A.R. 49-20-l(e) (Kansas regulation promulgated for the purpose of administering and enforcing provisions of the KWPA).
Test for Determining Employment Status under the KWPA
As the Seventh Circuit discovered, this court has not specifically identified a test that will definitively determine employment status under the KWPA. In Herr v. Heiman, 75 F.3d 1509, 1512 (10th Cir. 1996), tlie Tenth Circuit cited to a Kansas employment security law case—Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990)—to discern the proper test for determining employment status under the KWPA. The Herr panel identified 20 factors that had been used in Crawford to consider when determining whether an employer/employee relationship exists. The panel noted that these factors were to be considered as a whole, with “particular emphasis placed on the employer’s right to control the worker.” Herr, 75 F.3d at 1512. These 20 factors were also considered in Hartford Underwriters Ins. Co. v. Kansas Dept. of Human Resources, 272 Kan. 265, 271, 32 P.3d 1146 (2001), a workers compensation case wherein we found an employer/employee relationship existed under the right to control test.
Neither Crawford nor Hartford identified the genesis of the 20-factor test, and neither opinion engaged in an individual discussion of each factor, which might explain why some of the factor descriptions appear to be inscrutably duplicative, e.g., “19) whether the employer has the right to discharge the worker; and 20) whether the employer has the right to terminate the worker.” Hartford, 272 Kan. at 271. An earlier source for a nearly identical 20-factor test is a 1987 Internal Revenue Service (IRS) revenue ruling, Rev. Rul. 87-41, 1987-1 C.B. 296, which discussed how to determine employment status under Section 530(d) of the Revenue Act of 1978. The description of each factor set forth in that revenue ruling eliminates any suggestion of duplication and provides clarification as to how to apply each factor. Accordingly, we will amend the Crawford factors to eliminate the ambiguous or duplicative descriptions and will hereafter refer to them as the 20-factor test.
But Kansas courts have long emphasized the right to control test when determining a worker’s status.
“The primary test used by the courts in determining whether an employer-employee relationship exists is whether the employer has the right of control and supervision over the work of the alleged employee, and the right to direct the manner in which the work is to be performed, as well as the result which is to be accomplished.” Jones v. City of Dodge City, 194 Kan. 777, 780, 402 P.2d 108 (1965).
We have utilized this test in cases involving the Kansas Employment Security Act, Workers Compensation Act, and negligence based on respondeat superior. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 102-03, 689 P.2d 787 (1984) (unemployment taxes); Knoble v. National Carriers, Inc., 212 Kan. 331, 332-33, 510 P.2d 1274 (1973) (workers compensation); Aspelin v. Mounkes, 206 Kan. 132, 135-37, 476 P.2d 620 (1970) (respondeat superior).
In Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 644, 154 P.3d 1080 (2007), while determining that the KWPA applied to an undocumented worker, this court observed that the “definition of employee in the workers compensation statute is virtually identical to the definition of employee in the wage payment statutes.” That definitional identity would seem to counsel in favor of simply utilizing our workers compensation cases to inform our determination of “employees” under the KWPA. But a potential impediment to a direct correlation is found in our administrative regulations, specifically, K.A.R. 49-20-l(e). Granted, that regulation is not binding on this court. See In re Tax Appeal of Chief Industries, Inc., 255 Kan. 640, 650, 875 P.2d 278 (1994) (“Administrative regulations do not supplant statutory law[,] nor do they preempt judicial statutoiy construction.”). Nevertheless, the absence of binding effect does not entirely remove an administrative regulation from the de novo interpretation of a statute, especially given that the authority to promulgate regulations emanates from a statute.
K.S.A. 44-325 authorizes the Kansas Secretary of Labor to adopt rules and regulations necessary to administer and enforce the provisions of the KWPA. In response to that authority, the Kansas Secretary of Labor promulgated K.A.R. 49-20-1, which defines specific terms utilized in the KWPA. K.A.R. 49-20-l(e) pertains to the term “ ‘[ajllowed or permitted to work’ ” and, as noted above, the regulation specifies that the term “shall not include an independent contractor, as defined by rules, regulations, and interpretations of the United States secretary of labor for the purposes of the fair labor standards act.” (Emphasis added.) In other words, our department of labor has deferred to the United States Department of Labor’s definition of an independent contractor.
The FLSA defines an employee as “any individual employed by an employer” and “employ” is defined as “to suffer or permit to work.” 29 U.S.C. § 203(e)(1) and (g) (2012). The principal congressional purpose in enacting the FLSA was to protect all covered workers from substandard wages and oppressive working hours. Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981). The definition of employee under the FLSA was intended to make the scope of employee coverage under the FLSA very broad. Johns v. Stewart, 57 F.3d 1544, 1557 (10th Cir. 1995). However, similar to the KWPA, independent contractors cannot maintain a claim under the FLSA. Johnson v. Unified Government of Wyandotte, 371 F.3d 723, 727-28 (10th Cir. 2004).
Although there are no relevant federal regulations defining “independent contractor” for purposes of the FLSA, courts have considered the economic realities of the employment relationship when determining whether the individual is an employee or independent contractor under the FLSA. Johnson, 371 F.3d at 729; see Lumry v. State, 49 Kan. App. 2d 276, 286, 307 P.3d 232 (2013). “The ‘economic realties’ test seeks to look past technical, common-law concepts of the master and servant relationship to determine whether, as a matter of economic reality, a worker is dependent on a given employer.” Barlow v. C.R. England, Inc., 703 F.3d 497, 506 (10th Cir. 2012). The economic reality test focuses on whether the worker is economically dependent on the business to which he or she renders service or whether the worker, as a matter of economic fact, is in business for himself or herself. Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1440 (10th Cir. 1998); Doty v. Elias, 733 F.2d 720, 722-23 (10th Cir. 1984).
In applying the economic reality test, courts generally look at the following factors:
“(1) die degree of control exerted by die alleged employer over die worker; (2) the worker’s opportunity for profit or loss; (3) the worker’s investment in the business; (4) die permanence of the working relationship; (5) the degree of skill required to perform die work; and (6) the extent to which die work is an integral part of the alleged employer’s business.” Barlow, 703 F.3d at 506.
The test also considers “whether the alleged employer has the power to hire and fire employees, supervises and controls employee work schedules or conditions of employment, determines the rate and method of payment, and maintains employment records.” Baker, 137 F.3d at 1440. None of the individual factors are dispositive; instead, the court must employ a totality of the circumstances approach. Barlow, 703 F.3d at 506 (citing Baker, 137 F.3d at 1440).
Several of these economic reality factors are considered under the Kansas common-law right to control test for determining a worker’s status. See, e.g., McCubbin v. Walker, 256 Kan. 276, 281, 886 P.2d 790 (1994) (length of contract, independent nature of business, and method of payment); Wallis, 236 Kan. at 106 (right to discharge, furnishing equipment, and method of payment). In addition, all but one component of the economic reality test—the degree of skill— are included within the 20-factor test, which we restate here as follows:
(1) the employer’s right to require compliance with instructions (economic reality test’s degree of control factor);
(2) the extent of any training provided by the employer;
(3) the degree of integration of the worker’s services into the business of the employer (economic reality test’s integral part of employer’s business factor);
(4) the requirement that the services be provided personally by the worker;
(5) the extent to which the worker hires, supervises, and pays assistants;
(6) the existence of a continuing relationship between the worker and the employer (economic reality test’s permanence of tire working relationship factor);
(7) the employer’s establishment of set work hours;
(8) the requirement that the worker devote full-time to the employer’s business;
(9) tire degree to which the work is performed on the employer’s premises;
(10) the degree to which the employer sets the order and sequence of work;
(11) the requirement that tire worker submit regular or written reports to the employer;
(12) tire manner of payment to the worker, e.g., by the hour, day, or job;
(13) the extent to which the employer pays the worker’s business or travel expenses;
(14) the degree to which tire employer furnishes tools, equipment, and material (economic reality test’s investment in business factor);
(15) the incurrence of significant investment by the worker (economic reality test’s investment in business factor);
(16) the ability of the worker to malee a profit or suffer a loss (economic reality test’s opportunity for profit or loss factor);
(17) whether the worker can work for more than one firm at a time;
(18) whether tire worker makes his or her services available to the general public on a regular and consistent basis;
(19) whether the employer has tire right to discharge the worker; and
(20) whether the worker has the right to terminate the relationship at any time without incurring liability.
The primary distinction between the right to control test and the economic reality test is that under the latter, the right to control is not considered the single most important factor in determining the workers status. Slayman v. FedEx Ground Package System, Inc., No. 12-35525, 2014 WL 421422, at *11 (9th Cir. 2014); Herr, 75 F.3d at 1512. Given the KWPA’s purpose and plain language, the regulations promulgated to govern tire administration of the KWPA, and our long-standing adherence to the right to control test in determining employer/employee relationships, we discern that the 20-factor test as restated above is the tool to be used in Kansas to determine whether an employer/employee relationship exists under the KWPA. This test includes economic reality considerations, while maintaining the primary focus on an employer s right to control.
The District Court in this case primarily focused on the OA’s statements of FedEx’s right to control the drivers, opining that the actual control that FedEx exercised over the drivers was not tire question. In re FedEx, 734 F. Supp. 2d at 560. But we consider the manner in which FedEx implemented the OA to be a compelling factor in determining the substantive question of the company’s right to control its drivers.
Are Plaintiff Drivers Employees under the KWPA?
Although the Seventh Circuit expressed some uncertainty as to the underlying principle(s) that should guide the decision in a close case regarding the applicability of the KWPA, it actually asks this court to make that close-call decision based upon the undisputed facts presented to the district court. Before embarking upon an analysis of the 20 factors, we pause to take a historical look at how we have previously characterized the employment status of truck drivers under other circumstances and to take a look at how other jurisdictions have decided the status of FedEx drivers.
Kansas Precedent Classifying Truck Drivers
In most of the Kansas cases involving a worker who owned and operated a truck that was used extensively in a company’s business, especially in workers compensation cases, the courts have classified the owner/operator truck driver as an employee rather than an independent contractor. See Anderson v. Kinsley Sand & Gravel Inc., 221 Kan. 191, 198-99, 558 P.2d 146 (1976) (workers compensation case finding employer/employee relationship based on fact that driver’s work was inherent part of employer’s business, employer often selected route for driver to take, employer determined land and quantity of material to be delivered as well as delivery destination); Knoble, 212 Kan. at 334-37 (workers com pensation case finding existence of employer/employee relationship because employer told driver what materials to deliver, employer told driver where and when to deliver materials, employer required driver to call in two times a day, employer placed restrictions on driver s use of truck, and employer furnished driver with company identification card); Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 377, 450 P.2d 10 (1969) (workers compensation case finding employer/employee relationship because employer provided materials to be delivered, employer told driver when and where truck was to be loaded, employer required truck to be clean, employer instructed on where materials were to be delivered, employer instructed driver on time of destination, and employer required driver to unload materials in accordance with client’s demands); Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 513, 313 P.2d 725 (1957) (workers compensation case finding employer/employee relationship where driver could refuse to take a load but could not pick or choose what loads to take, and where employer used check-out procedure before driver could leave); Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P.2d 1 (1938) (re-spondeat superior case finding employer/employee relationship where company had right to control manner in which work was done); Shay v. Hill, 133 Kan. 157, 160-64, 299 P. 263 (1931) (workers compensation case holding that delivery driver was employee where driver worked full time performing integral part of company’s business, driver had no say over what hauls he picked up, and employer instructed driver on how to pick up haul); Baker v. Petroleum Co., 111 Kan. 555, 560, 207 P. 789 (1922) (respondeat superior case holding that driver was employee where company had “general charge of the truck and driver, was authorized to direct generally the character and land of work to be done, and had full and complete control of the operations of the work it might direct to be done by the truck and driver”).
Nevertheless, we have precedent in respondeat superior cases holding that a delivery driver was an independent contractor, rather than an employee, based on the company’s lack of control over the driver’s performance. See Christensen v. Builders Sand Co., 180 Kan. 761, 763-65, 308 P.2d 69 (1957) (drivers chose their own jobs and routes, drivers kept no regular hours, company exercised no control over how deliveries were to be conducted, and company and had no expectations of how many deliveries any particular driver would .make); Sims v. Dietrich, 155 Kan. 310, 313, 124 P.2d 507 (1942) (driver performed work that was not an integral part of company’s business, company only told driver where to deliver posts, and company provided no instruction on route to take or time of delivery); Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 210-12, 19 P.2d 474 (1933) (contracting dairy company sold milk to distributor for cash on daily basis and had no further say or control over what distributor did with milk). But it does not appear drat applying die 20-factor test will create any inconsistencies with the manner in which this court has decided these cases in the past.
Other Jurisdictions' Analyses of FedEx Drivers
Other jurisdictions considering the status of FedEx drivers have reached different results. Two jurisdictions—die United States District Court for the Eastern District of Missouri and the California State Court of Appeals—determined that the FedEx drivers are employees. Wells v. FedEx Ground Package System, Inc., 979 F. Supp. 2d 1006, 1024 (E.D. Mo. 2013); Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1, 9, 64 Cal. Rptr. 3d 327 (2007). In both Wells and Estrada, FedEx drivers brought suit against FedEx claiming they were misclassified as independent contractors and seeking reimbursement for business expenses and back pay for overtime.
Both Wells and Estrada applied common-law right to control tests. Wells declared Missouri’s concept of the right to control to be “ ‘more intricate .. . dian most other states,’ [citation omitted],” and listed the factors as:
“(1) the extent of control, (2) the actual exercise of control, (3) the duration of the employment, (4) the right to discharge, (5) the method of payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to which the work is the regular business of the employer, and (8) the employment contract.” 979 F. Supp. 2d at 1014.
Estrada noted that because the California Labor Code does not expressly define “employee,” the common-law test of employment applies, the essence of which is the “ ‘control of details’—that is, whether the principal has the right to control tire manner and means by which the worker accomplishes the work.” 154 Cal. App. 4th at 10. But the court noted that there were
“a number of additional factors in the modem equation, including (1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the land of occupation and locality, the work is usually done under the principal’s direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal’s regular business, and (8) whether the parties believe they are creating an employer-employee relationship.” 154 Cal. App. 4th at 10.
In Wells, the court found that FedEx had the right to control and did control the means and manner of the drivers’ work to such an extent that the drivers were employees and not independent contractors. 979 F. Supp. 2d at 1024. The court found the following facts supported a finding of right to control: FedEx’s requirements with regard to vehicles, uniforms, and personal appearance; FedEx’s right to determine the drivers’ “Primary Service Areas”; FedEx’s right to determine the services drivers must provide to FedEx customers; FedEx’s right to determine the prices charged for the services; FedEx’s right to determine the customer service standards that drivers must meet; FedEx’s right to determine some time parameters for providing services to customers; FedEx’s right to determine the days drivers must deliver packages; FedEx’s right to require drivers to deliver all packages assigned to them that day on a 9- to 11-hour work day; and FedEx’s right to conduct customer service lides to verify that the drivers were meeting standards of customer service required in the OA. 979 F. Supp. 2d at 1024-25.
In addition to the right to control and actual control factors, the Wells court also found the remaining six factors weighed in favor of employee status. With regard to “duration of employment,” the court found that drivers had long-term relationships with FedEx, indicating that drivers were not hired by the job. 979 F. Supp. 2d at 1025. Next, the court determined that the drivers could “effectively be terminated at will given that the OA provides for nonre-newal without cause.” 979 F. Supp. 2d at 1025. The court determined the method of payment favored employee status because drivers were paid weekly, based on nonnegotiable factors. 979 F. Supp. 2d at 1025. The court acknowledged that drivers had to pay for their own equipment but found this factor still weighed in favor of employee status because FedEx “was intricately involved in the purchasing process, providing options for leasing and/or financing.” 979 F. Supp. 2d at 1025. The court found that the drivers’ work was the essence of FedEx’s business and that even though the OA evidenced an intent for drivers to be considered independent contractors, the contractual designation was not conclusive where the evidence overcame such a designation. 979 F. Supp. 2d at 1021-22, 1025. Lastly, the court acknowledged that while drivers could “sell” their routes to approved drivers, they did not “own” the routes because customer accounts were based on contracts between FedEx and its customers. FedEx exercised complete control over any ability to solicit additional customers, and FedEx had control to unilaterally change the size and configuration of a driver’s route at any time without tire driver’s approval. 979 F. Supp. 2d at 1025.
In Estrada, the court rejected FedEx’s argument that the OA language giving drivers the sole authority to determine the “manner and means” of performing their job indicated that FedEx did not have the right to control, finding that “the evidence shows unequivocally that FedEx’s conduct spoke louder than its words.” 154 Cal. App. 4th at 11. Similarly, the court rejected FedEx’s argument that it could not terminate drivers at will. “Although the Operating Agreement provides for termination with cause, it also provides for nonrenewal without any cause at all—and substantial evidence established that FedEx discharges drivers at will.” 154 Cal. App. 4th at 11. Lastly, the court found that substantial competent evidence supported the trial court’s findings with regard to FedEx’s right to control the drivers. Specifically, the court determined the following facts established that drivers were employees based on FedEx’s right to control:
“The drivers must wear uniforms and use specific scanners and forms, all obtained from FedEx and marked with FedEx’s logo. The larger items—trucks and scanners—are obtained from FedEx-approved providers, usually financed through FedEx, and repaid through deductions from the drivers’ weekly checks. Many standard employee benefits are provided, and the drivers work full time, with regular schedules and regular routes. The terminal managers are the drivers’ immediate supervisors and can unilaterally reconfigure tire drivers’ routes without regard to tire drivers’ resulting loss of income. The customers are FedEx’s customers, not the drivers’ customers. FedEx has discretion to reject a driver’s helper, temporary replacement, or proposed assignee.” 154 Cal. App. 4th at 12.
The court also determined the following driver characteristics indicated an employer/employee relationship: Drivers were not required to possess any special skills, they were required to report to FedEx terminals at certain times for sorting and packing and could not leave the terminal until the process was complete, they did not engage in a separate profession, they had to work exclusively for FedEx, they had limited opportunity for profit that could be lost at the discretion of FedEx managers through “flexing” and withholding approval for additional drivers, and most drivers had worked for FedEx for a long time. 154 Cal. App. 4th at 12. In sum, the court found the drivers “look like FedEx employees, act like FedEx employees, are paid like FedEx employees, and receive many employee benefits. . . . [I]f it looks like a duck, walks like a duck, swims like a duck, and quacks like a duck, it is a duck.” 154 Cal. App. 4th at 9.
On the flip side of the coin, two jurisdictions have determined that FedEx drivers are independent contractors, albeit one of those determinations was reversed on appeal. In FedEx Home Delivery v. N.L.R.B., 563 F.3d 492 (D.C. Cir. 2009), FedEx appealed the National Labor Relations Board’s (NLRB) determination that FedEx committed an unfair labor practice in violation of the National Labor Relations Act (NLRA) by refusing to recognize a union organized by drivers. The appeals court held that the NLRA was not applicable because FedEx drivers were independent contractors pursuant to a common-law test of agency. 563 F.3d at 504.
The FedEx Home Delivery court opined that when factors cut both ways, the governing principle was whether the position presented opportunities and risks inherent in entrepreneurialism. 563 F.3d at 497. The court concluded that the following indicia of entrepreneurial opportunity indicated that the drivers were independent contractors: driver’s ability to operate multiple routes, driver’s right to hire additional driver and helpers and sell routes without permission, and the parties’ intent as expressed in the contract. 563 F.3d at 498-99. In addition to the factual disparity regarding the need for permission to sell a route, FedEx Home Delivery found significance with other facts not present here, e.g., some drivers used their FedEx vehicle for other purposes, including a home delivery service, and one driver was able to negotiate for higher fees. 563 F.3d at 498-99. The court discounted FedEx’s requirements with regard to uniform, personal appearance, and customer service rides, finding that those factors did not indicate control over drivers but rather they were designed to appease customer safety concerns and ensure that “once a driver wears FedEx’s logo, FedEx has an interest in making sure her conduct reflects favorably on that logo.” 563 F.3d at 501.
In Anfinson v. FedEx Ground, 174 Wash. 2d 851, 281 P.3d 289 (2012), FedEx drivers brought suit under state law claiming a right to overtime pay. The trial court held that the drivers were independent contractors under a right to control test. The Washington Court of Appeals rejected the trial court’s use of the right to control test in favor of an “economic dependence” test, whereby the court determines, as a matter of economic reality, whether the alleged employee is dependent upon the business to which he or she renders service. 174 Wash. 2d at 866-71. The Washington Supreme Court agreed, reversing and remanding the matter for retrial utilizing the correct test. 174 Wash. 2d at 867. It would seem that one would be hard pressed to say that the FedEx delivery drivers were not, as a matter of economic reality, dependent upon FedEx’s delivery business.
Given that Wells and Estrada utilized a version of tire right to control test, they are most persuasive for our purposes. Our 250% expansion of the number of enumerated factors considered in testing for the employer/employee relationship does not lead us to a different result. To the contrary, the expanded analysis serves to corroborate and reinforce the California trial court’s observation that FedEx’s OA is a “ ‘brilliantly drafted contract creating the constraints of an employment relationship with [the drivers] in the guise of an independent contractor model’—because FedEx ‘not only has the right to control, but has close to absolute actual control over [the drivers] based upon interpretation and obfuscation.’ ” Estrada, 154 Cal. App. 4th at 9.
We pause to briefly note that, while this opinion was being finalized, the Ninth Circuit Court of Appeals issued opinions on cases arising out of class actions from California and Oregon dealing with the same subject matter as our certified questions. See Alexander v. FedEx Ground Packages System, Inc., Nos. 12-17458 and 12-17509, 2014 WL 4211107 (9th Cir. 2014) (California) and Slayman, 2014 WL 4211422 (Oregon). Focusing on the extent to which FedEx exercised its right to control the drivers, the Ninth Circuit held that, as a matter of law, the FedEx drivers were employees, not independent contractors. Alexander, 2014 WL 4211107, at *6-11, 14; Slayman, 2014 WL 4211422, at *5-11. Those recent decisions do not alter our answers to the certified questions presented to us from the Seventh Circuit.
20-Factor Test Indicates Employer/Employee Relationship
Next, we proceed to consider each of the individual factors, keeping in mind that the goal is not to simply compare the number of factors favoring one result against the number of factors favoring the other result. To the contrary, we are tasked with viewing the factors as a whole. But where FedEx Home Delivery emphasized entrepreneurialism when considering factors cutting both ways, we place the particular emphasis on the company’s right to control the worker to tip the scales.
The Seventh Circuit indicated that it was looking for overarching principles to guide the weighing process. If there are such principles, one would be that the KWPA is broadly construed to effect its purpose of protecting workers against the overreaching of employers, such as artificially designating an employee as an independent contractor to permit the withholding of wages for business expenses. On the other hand, the KWPA should not be construed in such a manner that it prevents a worker from having the op portunity to enter into a mutually advantageous business arrangement that provides the worker with a legitimate opportunity to generate a profit over and above what a pure wage earner could expect to earn. But perhaps the most fundamental principle is that form should not be elevated over substance, e.g., if a worker is hired like an employee, dressed like an employee, supervised like an employee, compensated like an employee, and terminated like an employee, words in an operating agreement cannot transform that worker s status into that of an independent contractor. With those principles in mind, we proceed to the factors.
1. FedEx’s Right to Require Compliance with Its Instructions
FedEx does not refute that it requires all newly hired drivers to execute a standard agreement, i.e., the OA. See In re FedEx Ground Package System, Inc., 734 F. Supp. 2d 557, 560 (N.D. Ind. 2010). Likewise, it is undisputed that a drivers failure to comply with the instructions in the OA is a ground for termination. Accordingly, FedEx can require compliance with its instructions by threatening termination.
But FedEx argues that the provisions of the OA specifically refute that it has the right to require tire drivers to comply with its instructions, pointing to certain OA declarations, including that the driver’s services are provided “ ‘strictly as an independent contractor, and not as an employee’ ” for any purpose; that the agreement sets fordr the parties’ “ ‘mutual business objectives’ that the multiple contractual requirements placed upon the driver are merely intended to achieve FedEx’s desired results; that “ ‘the manner and means of reaching these results are within tire discretion of the [driver]’ ”; and that “ ‘no officer or employee of [FedEx] shall have the authority to impose any term or condition . . . contrary to this understanding.’ ” 734 F. Supp. 2d at 560.
However, as the California court found in Estrada, “FedEx’s conduct spoke louder than its words.” 154 Cal. App. 4th at 11. Moreover, a closer look at the OA’s requirements for drivers negates the notion that the drivers have any room for discretion in the manner and means of performing their jobs. Those requirements direct such things as the delivery days and times; delivery methods; reporting requirements; vehicle identification, specifications, and maintenance; and driver appearance. As noted in Estrada, FedEx endeavors to control “every exquisite detail of the drivers’ performance, including the color of their socks and the style of their hair.” 154 Cal. App. 4th at 11-12.
We first note that there is no indication that any particular “driver” can exercise his or her independence by modifying the OA to the driver’s advantage. In other words, the document more closely resembles a unilaterally proffered, take-it-or-leave-it employment contract. Moreover, in conjunction with having to sign the standard OA, prospective drivers must pass background checks and then undergo training. In addition, the OA is not the sole source defining a driver’s relationship with the company; there are manuals, handbooks, memoranda, training videos, and other means of communication that direct the manner and means of delivering packages. In short, the procedure by which a driver becomes qualified to deliver packages for FedEx more closely resembles the process by which employees are hired than the process by which independent contractor agreements are negotiated.
With respect to the driver’s appearance, the OA requires them to wear a FedEx uniform that is maintained in good condition and requires them to maintain a personal appearance that is “ ‘consistent with reasonable standards of good order as maintained by competitors and promulgated from time to time by [FedEx].’ ” In re FedEx, 734 F. Supp. 2d at 564. The notion that such requirements are merely unenforceable suggestions is negated by the fact that FedEx reserves the right to refuse to allow a driver to perform his or her deliveries if tire driver is not properly dressed or groomed. 734 F. Supp. 2d at 565.
FedEx counters that its appearance standards do not connote the exertion of control over its drivers; rather, those standards are designed and intended to assure its customers that they may feel safe in opening their homes and businesses to drivers displaying the FedEx brand. Of course, the irony of that argument is that FedEx’s customers would not feel safe in the presence of the FedEx logo if they did not believe that FedEx’s branding of its drivers meant that the company had taken responsibility to con form the drivers’ actions to replicate the integrity of the company. Certainly, holding out its drivers to the public as being personal representatives of the FedEx company is inconsistent with the argument that the drivers are merely independent contractors who happen to be doing business with FedEx.
FedEx also requires that drivers comply with strict vehicle appearance, specification, and maintenance requirements. For example, each vehicle must be painted “FedEx White” and bear FedEx logos and advertising. 734 F. Supp. 2d at 565. The trucks must be maintained in a clean and presentable fashion free of body damage and extraneous markings. FedEx reserves tire right to inspect trucks to ensure they comply with FedEx appearance standards. The vehicles must meet FedEx’s minimum specifications for height, width, length, bumper height, interior shelving requirements, and, in some cases, age restrictions. FedEx decides what size and configuration of truck is appropriate for a particular route. FedEx managers may remove a vehicle from service if it does not meet appearance standards or a driver fails to timely submit maintenance reports. 734 F. Supp. 2d at 565-66. And, again, the failure to comply with the vehicle appearance standards constitutes a breach of the OA, which can result in termination.
The Wells court opined that “[t]he right to determine and enforce driver and vehicle appearance and vehicle suitability standards also favors employee status.” 979 F. Supp. 2d at 1019; accord In re Corporate Express Delivery Systems and Teamsters Local 886, 332 NLRB 1522, 1523 (2000) (finding truck owner/operators were employees for purposes of National Labor Relations Act because, inter alia, they were required to display company’s logo on their vehicles.); cf. C.C. Eastern, Inc. v. N.L.R.B., 60 F.3d 855, 858 (D.C. Cir. 1995) (finding that owner/operators were not employees for purpose of National Labor Relations Act because, inter alia, company did not require tractors to be of any specific type, size, or color).
FedEx argues that vehicle appearance standards merely relate to the results for which the company is contracting. For support, FedEx points to Martin v. Wichita Cab Co., 161 Kan. 510, 517, 170 P.2d 147 (1946), which it argues stands for the proposition that a company may require a worker to utilize its brand without creating an employer/employee relationship. But the factual distinctions in drat case render it unpersuasive here. Martin involved a company’s liability for federal withholding taxes on fares collected by cabdrivers. The company owned multiple cabs that were painted black and white and bore the company’s logo. Drivers paid a daily rental for the cabs and did not wear a uniform. The cabdrivers were not paid by the company; they kept their own fares. The company had no control over what area a driver worked or how many fares the driver collected. The holding most germane for our purposes is found in the following statement:
“In our opinion the fact that the company put conditions on the use of its cars and service was just as consistent with a contract of bailment as with a master and servant relationship. There is no evidence that the company directed the drivers in the performance of their work.” 161 Kan. at 518.
Here, there is plenty of evidence that FedEx directed the drivers in the performance of their work.
Similarly, FedEx’s citation to Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P.2d 474 (1933), is unavailing. In Brownñgg, milk distributors were permitted, but not required, to paint the dairy company’s name on their delivery trucks. But the determination that the distributors were not employees for respondeat superior purposes hinged on the fact that the dairy company maintained no control over the distributors, e.g., the company did not direct the distributors where to deliver milk or assign them fixed routes or districts. 137 Kan. at 210-12. The facts here are pointedly different; FedEx does assign routes and tell the drivers where to deliver the packages.
The OA provides strict requirements with regard to the handling and delivery of packages. Drivers are required to “[h]andle, load, unload and transport packages using methods that are designed to avoid theft, loss and damage.” In re FedEx, 734 F. Supp. 2d at 561. In addition, the OA provides that drivers agree to “[c]ooperate with [FedEx’s] employees, customers and other contractors, to achieve the goal of efficient pick-up, delivery, handling, loading and unloading of packages and equipment, and provide such electronic and/or manual data pertaining to package handling as is reasonably necessary to achieve this goal.” 734 F. Supp. 2d at 561. FedEx also requires drivers to record information on all package deliveries. 734 F. Supp. 2d at 568 (“FedEx drivers must record information about all package deliveries.”). Again, violation of the OA is a ground for termination; therefore, FedEx retains the right to ensure compliance with these requirements.
FedEx also utilizes multiple oversight methods with regard to the OA’s handling and delivery requirements. In other words, the company supervises the drivers to assure that the designated manner and means of delivering packages are being followed. Specifically, FedEx managers are to conduct daily van service audits of every driver to ensure compliance with FedEx’s procedures for undelivered packages. Failure to follow FedEx’s procedures for proper release of packages may constitute a breach of the OA and serve as a ground for termination. 734 F. Supp. 2d at 561, 571 (OA requires drivers to handle packages using methods that are designed to avoid theft, loss, and damage). FedEx also hires experts to perform random security reviews in order to ensure that drivers are securing their vehicles properly when delivering packages. Failure to properly secure a vehicle is also considered a violation of the OA. 734 F. Supp. 2d at 571.
Further, FedEx requires at least two, but not more than four, customer service rides (CSR) each year. The CSRs provide FedEx managers with the opportunity to see if drivers are complying with FedEx’s customer service standards and ensure that drivers are operating their vehicles safely. FedEx managers are trained to observe certain things during a CSR, such as the driver’s check-in and check-out procedures; how the driver operates, parks, and enters and exits his or her vehicle; the driver’s delivery and pickup methods; and whether tire driver experiences any delay time in performing his or her work. In addition, the FedEx manager is supposed to make multiple specific written observations regarding the driver’s performance in the areas of package quality at delivery, quality assurance, driver release, professional appearance, customer courtesy, and service. 734 F. Supp. 2d at 572-73. During some of the CSRs, a FedEx manager analyzes the driver’s primary service area by documenting such things as the .time the driver arrives and departs from each stop, the number of minutes at each stop, the number of minutes between stops, the last three digits of the driver s odometer reading at each stop, and the approximate distance a driver must walk to pick up or deliver a package. 734 F. Supp. 2d at 573.
FedEx managers are expected to conduct at least two “business discussions" with drivers each year. 734 F. Supp. 2d at 570. The business discussions are considered procedures and not mandatory policies. The business discussions are designed to allow FedEx managers to provide recommendations and counseling to drivers in performing their contracted work. A FedEx manager may request a business discussion for multiple reasons, including problems with the driver's performance related to undelivered packages, missed pickups, and improper documentation. Although FedEx may not force a driver to participate in a business discussion, failure to participate may reflect poorly on the driver’s opportunity to renew his or her OA. Moreover, documentation from business discussions can be used to support contract termination. 734 F. Supp. 2d at 571.
Further, FedEx managers are encouraged to conduct a “business plan” discussion with drivers each year. 734 F. Supp. 2d at 573. During the documented discussion, FedEx managers go over problem areas, agreed-upon solutions, delivery areas, and driver expectations. A business plan discussion form provides spaces for the manager to document the following information: the driver’s total number of stops, packages, miles, and DOT hours of work; anticipated changes in the driver’s primaiy service area; the condition and appearance of the driver’s equipment; any deficiencies and expected correction dates; the number and types of complaints the driver has received in the last 12 months; the driver’s contingency plan in the event of a vehicle breakdown; and any comments or questions the driver may have. 734 F. Supp. 2d at 573.
FedEx maintains that the audits, CSRs, and business discussions result in recommendations, not mandatory requirements that drivers must follow. Nevertheless, FedEx acknowledges that the audits, CSRs, and discussions are at times used to instruct drivers that have violated the OA by failing to deliver packages, improperly scanning or recording packages, missing set times for the pickup of packages, having customer complaints, or other “service failures.” 734 F. Supp. 2d at 573. Given that the oversight procedures can eventually lead to a driver’s termination, the “advisoiy” nature of the procedures appears to be suspect, at best. But more importantly, one would expect to find such close supervision of the means and manner by which the driver effects deliveries in an employer/ employee relationship. If there is an independent contract to deliver a package to a specific location in a timely manner, the place that the independent contractor parks or the number of steps the contractor must walk to fulfill the contract should not be a concern for the company, so long as the package is delivered when and where the customer expected.
In that vein, FedEx fashions an argument that characterizes the control it exercises over the drivers as affecting the results of the work to be completed rather than the means and methods the driver must employ to reach those results. Of course, FedEx must utilize that characterization to comport with our caselaw.
In Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991), we defined an independent contractor as one who, in exercising an “independent employment, contracts to do certain work according to his [or her] own methods, without being subject to the control of his [or her] employer, except as to the results or product of his [or her] work.” (Emphasis added.) In contrast, in an employer/ employee relationship, the employer has the right to direct the manner in which the work is to be performed, in addition to the result to be accomplished. 249 Kan. at 64. Some 60 years earlier, in Shay v. Hill, 133 Kan. 157, 159, 299 P. 263 (1931), we obtained a definition of an independent contractor from the American Law Institute Restatement on Agency:
“ ‘Sec. 6. An independent contractor is a person who undertakes to execute certain work or to accomplish a stipulated result for another, under such circumstances that the right of control of the doing of the work, and of the forces and agencies employed in doing it, is in the contractor.
“ ‘Comment: (a) The characteristics of the independent contractor are that he is a person (usually carrying on a distinct occupation) who for a stipulated com pensation (usually a lump sum) undertakes to do a piece of work (usually of some magnitude) by Iris own forces and instrumentalities (usually supplying labor and materials), being responsible to his employer for the stipulated results, but (essential characteristic) being left in control of the operation of the forces and in-strumentalities by which the stipulated result is to be accomplished.’ [American Law Institute, Agency: Restatement No. 1 § 6 (Tentative Draft 1926)].”
FedEx would have us blur the distinction between what work is to be done and how the work is to be done. There is some precedent for such obfuscation. In Lorenz Schneider Co., Inc. v. N.L.R.B., 517 F.2d 445, 451 (2d Cir. 1975), the court found difficulty in making the distinction between controlling the means and controlling the result:
“Yet the test as thus stated is almost impossible to apply, since the ‘result’ is a function of the ‘manner and means.’... All that can be meaningfully said is that the more detailed the supervision and the stricter the enforcement standards, the greater tire likelihood of an employer-employee relationship, and conversely.” (Emphasis added.)
FedEx provides package pickup and delivery services to residential and business clients. We do not discern a great deal of difficulty in distinguishing between the results to be accomplished in that business and the manner and means by which those results are accomplished. For instance, requiring a driver to wear clothes of a certain type or to exit the delivery vehicle in a certain manner is clearly exercising control over the manner and means by which packages are picked up or delivered. But even if we apply the Lorenz standard above, the extensive detail of FedEx’s supervision of its drivers and the strict enforcement of the OA requirements under penalty of termination point to an employer/employee relationship. Cf. North American Van Lines, Inc. v. N.L.R.B., 869 F.2d 596, 599 (D.C. Cir. 1989) (global oversight is compatible with independent contractor relationship, whereas control over details of a performance is indicative of employer/employee relationship).
2. The Extent of Training Provided by FedEx
Whether FedEx trains its drivers is a factor because ordinarily one does not hire an independent contractor that requires training. Cf. Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 106-07, 689 P.2d 787 (1984) (finding that vacuum cleaner dealers were employees based, in part, on fact that distributor maintained direction and control with respect to dealers’ training). The undisputed facts in this case do not clearly favor either status.
FedEx requires all new drivers to undergo an orientation program during their first 30 days to familiarize them with various service quality procedures. In re FedEx, 734 F. Supp. 2d at 564. As of 2005, new FedEx drivers with 6 months’ verified experience as a commercial motor vehicle operator within the previous 5 years are not required to participate in a FedEx program entitled “Quality P & D Learning” (QPDL). 734 F. Supp. 2d at 563. QDPL is a multiday course consisting of classroom and on-the-road instruction designed to ensure compliance with federal safety regulations. The QDPL manual also contains instruction regarding a number of topics, including customer service skills, vehicle entrance and exit routines, route planning, delivery techniques, package handling techniques, proper scanning, and documentation. 734 F. Supp. 2d at 564.
FedEx claims that QDPL is not training but is rather a precondition to becoming a driver. Moreover, in November 2007 FedEx began accepting training from an “approved” FedEx vendor in lieu of tire prior experience exemption or completion of the QDPL course. 734 F. Supp. 2d at 563. In other words, some of tire FedEx drivers are not trained by FedEx.
FedEx also offers a “CARE” training program for drivers seeking to expunge a verified customer complaint from their FedEx record. The CARE program instructs drivers on ways to achieve customer satisfaction and practices to follow in order to avoid further customer complaints. 734 F. Supp. 2d at 564.
At one time, FedEx provided a handbook entitled the “Contractor’s Companion” to drivers, which provided information concerning customer service tips, scanner troubleshooting, daily supply checklists, vehicle pretrip inspections, C.O.D. handling, driver release guidelines and tips, pickup tips, and FAQs for different types of situations the driver might encounter. 734 F. Supp. 2d at 564. FedEx no longer provides the handbook to its drivers, al though the record does not indicate when this practice stopped. 734 F. Supp. 2d at 564.
3. The Degree of Integration of the Drivers’ Services into FedEx’s Business
Where tire services that a worker performs for a principal are an integral part of the principal’s business, the scale tips in favor of that worker being an employee. Businesses do not ordinarily trust their core functions to independent contractors, over which the business has minimal control.
FedEx argues that the drivers’ services are complementary to, but distinct from, FedEx’s business. To the contrary, the Estrada court looked at the FedEx scenario and determined that “[i]n practice, . . . the work performed by the drivers is wholly integrated into FedEx’s operation.” Estrada v. FedEx Ground Package System, Inc., 154 Cal. App. 4th 1, 9, 64 Cal. Rptr. 3d 327 (2007). We agree.
FedEx’s business is to take a package from one person or entity and deliver it to another person or entity; it does not manufacture or sell any product or perform any other service. A driver delivering hamburger to a fast-food restaurant is performing a service that complements the business of selling sandwiches. A driver leaving a Frito-Lay plant with a semitrailer full of potato chips is performing a service that complements the business of manufacturing and selling snack foods. To the contrary, when a FedEx driver delivers a package, he or she has performed the sole service that FedEx offers. There is nothing complementary about that because without the delivery drivers there is no FedEx business. Indeed, a former chief executive officer of FedEx testified that the drivers are the “ ‘centerpiece’ of FedEx’s work force,’ ” and are “an ‘essential component of [FedEx’s] business.’ ” In re FedEx Ground Package System, Inc., 734 F. Supp. 2d 557, 562 (N.D. Ind. 2010).
In short, the plaintiff drivers are integrated into FedEx’s business to the highest degree possible, and this factor weighs heavily in favor of an employer/employee relationship. Cf. Olds-Carter v. Lakeshore Farms, Inc., 45 Kan. App. 2d 390, 403, 250 P.3d 825 (2011) (holding that plaintiff truck driver was employee for workers compensation purposes based, in part, on finding that employee’s duties were integral part of employer’s commercial trucking operation).
4. The Requirement that the Services he Provided Personally hy the Drivers
If the principal is only controlling the result—not the manner and means by which the result is accomplished'—the principal would ordinarily not be concerned whether the actual work was personally performed by the worker. Consequently, a requirement that the worker personally perform the job suggests that the principal is interested in the methods used to accomplish the work, not just the results, which is indicative of an employer/employee relationship.
First, we note that because the certified class is defined as including full-time drivers, all of the plaintiffs in this action are personally providing services to FedEx. FedEx acknowledges that the class is limited to full-time drivers who signed the OA, but it contends that the issue is whether “class members possess the right to hire others, not the extent to which individual contractors exercise those rights.”
FedEx’s point is well taken. The efficacy of this factor hinges on whether tire principal requires personal service, rather than depending on whether the worker chooses to personally perform the agreed-upon tasks. In that regard, FedEx does allow its drivers to hire others to drive their trucks in the drivers’ assigned service areas, subject to FedEx’s approval and supervision. Although FedEx maintains considerable control over the replacement drivers, this factor nevertheless tilts toward finding an independent contractor relationship.
5. The Hiring, Supervision, and Compensation of Assistants
Closely related to the preceding factor is the consideration of whether drivers are responsible for hiring, supervising, and paying any assistants they might require. Under the OA, FedEx drivers are allowed to run their own routes, hire helpers, or hire replacement drivers. But as noted above, FedEx makes a number of requirements in that area. For instance, it requires that nondriver helpers must be 18 years old and pass a background check. Replacement drivers must be approved by FedEx and are subject to several conditions, such as completing a road test; submitting a driver information sheet; and, depending on experience, completing a FedEx-approved training course. In re FedEx, 734 F. Supp. 2d at 562-63.
But most importantly for our purposes, drivers are responsible, at their own expense, for training their assistants to operate the equipment, for ensuring that any replacement driver conforms to a driver s obligations under the OA, and for compensating replacement drivers. Again, notwithstanding the tighter than usual control exerted by FedEx over a driver s assistants, this factor shades in favor of an independent contractor relationship.
6. The Existence of a Continuing Relationship between Drivers and FedEx
Next, we consider the continuity and duration of the relationship between FedEx and its individual drivers. A short-term or intermittent relationship is more typical with respect to independent contractors. See Baker v. Flint Engineering & Const. Co., 137 F.3d 1436, 1442 (10th Cir. 1998) (short duration relationship indicative of independent contractor status). On the other hand, in an employer/employee relationship, a worker expects to be engaged for an indefinite period of time. See Dole v. Snell, 875 F.2d 802, 811 (10th Cir. 1989) (expectation to work for employer indefinitely is indicative of employer/employee relationship).
FedEx contends that this factor favors its position because the OAs are for a fixed term, between 1 and 3 years, with no guarantee of renewal. For support, FedEx cites to Home Design, Inc. v. Kansas Dept. of Human Resources, 27 Kan. App. 2d 242, 2 P.3d 789, rev. denied 269 Kan. 932 (2000), claiming that it stands for the proposition that choosing to renew a fixed-term contract is not inconsistent with an independent contractor relationship. But that case did not revolve around the renewal of continuing contracts but rather it involved the letting of serial contracts. Siding installers that did a good job for Home Design could expect repeat business, i.e., could expect to be hired again to side other homes. The critical factor in Home Design was “that there was no continuity in the relationship between Home Design and the siding installers.” 27 Kan. App. 2d at 247.
Here, in contrast, drivers work continuously for FedEx until terminated. The OAs are automatically renewed for 1-year terms in the absence of a notice of nonrenewal or a breach of the agreement. In re FedEx, 734 F. Supp. 2d at 574. Ironically, FedEx argues elsewhere that the OAs are not arbitrarily terminated for any “perceived breach” but rather FedEx is obliged to act reasonably and in good faith. Moreover, there is no evidence that the OAs are not automatically renewed where drivers are performing satisfactorily. To the contrary, FedEx encourages a long and continuous relationship by providing bonuses based upon a driver s longevity, and providing a time-off program that is tied to a driver s seniority.
In short, the duration and continuity of the relationship between FedEx and its delivery drivers point directly to an employer/employee relationship.
7. The Degree to Which FedEx Establishes Set Work Hours for Drivers
Obviously, telling a worker what hours he or she must work is the type of control over manner and means that is typical in an employer/employee relationship. As anyone who has contracted for the replacement of a roof during a Kansas August knows, an independent contractor will expect to set working hours to suit the contractor. But FedEx drivers do not have the unfettered discretion to set their own hours, as for example to only work during the coolest part of a summer day.
FedEx argues that it does not set the work hours for its drivers and, in fact, it does not even require a driver to personally drive the truck. But, as noted, the members of the certified class in this case all personally drive for tire company. And while FedEx does not set a time certain that a driver must appear at the terminal or a time certain that a driver quits for the day, it sets other rules and conditions that effectively outline the hours of work.
First, drivers are required to provide service on the days that FedEx is open for business, and FedEx retains the authority to change the days of service. There is no set time that a driver must report to the terminal, but packages can only be picked up during the hours that a terminal is open, and all packages are expected to be delivered the same day. Further, FedEx can require that certain packages be delivered or picked up within a specified time frame when so requested by customers. For instance, the company offers its home delivery customers the option to have packages delivered between 5 p.m. and 8 p.m., and drivers must honor that time frame or have another driver make the delivery. Drivers who only deliver packages are not required to return to a FedEx terminal at the end of the day unless they have collected C.O.D. charges or have undelivered packages. Drivers who pick up packages from customers must return to the terminal by a certain time and perform a “check-in” process. In re FedEx, 734 F. Supp. 2d at 569.
In sum, this factor cuts both ways. While FedEx’s control over the work hours of a delivery driver is not as strictly defined as that of a typical employee, neither does the company afford the driver complete discretion on when to perform his or her work. To meet FedEx’s requirements and stay in compliance with the OA, a driver must work long hours that can include a time frame that is dictated by the company.
8. A Requirement that Drivers Devote Full Time to FedEx’s Business
Overlapping with the foregoing factor is the consideration of whether the principal requires the worker to be engaged full time. It would not be unusual for an independent contractor to be concurrently working on several projects at a given time, whereas working full time, all the time, for one entity connotes an employment scenario.
Again, FedEx asserts that it does not specifically require its drivers to be engaged in full-time work. But that assertion cannot withstand a reality check. The OA directs that a driver must “[m]ake reasonable efforts to retain and increase the base of shippers and consignees served and the number of packages per shipper within Contractors Primary Service Area.” 734 F. Supp. 2d at 561. Of course, FedEx establishes the service area, the customer base, the packages to be delivered, etc., and directs that it all must be done the same day. The goal of FedEx managers is to establish a workload that will require 9 to 11 hours to complete. 734 F. Supp. 2d at 590. While FedEx claims that the policy of establishing long work days was intended to benefit the drivers, it nevertheless results in the drivers working full time for the company. Moreover, as will be discussed later, those long days are a logistical impediment to tire drivers being able to work for anyone else.
9. The Degree to Which Work is Performed on FedEx’s Premises
If the work is performed on the principal’s premises, it can suggest that the principal has more control over the worker, especially if the work could have been performed elsewhere. But under the facts of this case, this factor is not separately compelling beyond our previous discussion of the control that FedEx exerts over tire drivers. The services that FedEx provides are, for the most part, performed off of its premises, regardless of whether the driver is an employee or an independent contractor.
The only work performed by drivers on FedEx’s premises is the daily pickup and loading of packages, as well as any required end-of-the-day return of packages, documentation, or money. On the other hand, none of the work is performed on the driver’s own premises. Nevertheless, this factor is essentially neutral.
10. The Degree to Which FedEx Sets the Order and Sequence of the Drivers Work
FedEx does not directly mandate the order in which packages must be delivered, except in those instances where a customer has requested a specific time for the pickup or delivery of a package. But there is at least implicit oversight of such matters, as evidenced by the manager’s analysis of a driver’s primary service area during a CSR. The manager will observe and document such things as the number of minutes at each stop, the number of minutes between stops, the odometer reading at each stop, and the distance a driver must walk to pick up or deliver a package. Presumably, that data is utilized to improve the driver s order and sequence of work. As with other aspects of the OA, FedEx has cleverly disguised its control over a driver s ordering and sequencing of his or her worldoad. Nevertheless, FedEx does not explicitly retain the right to set the order or sequence of deliveries.
11. Required Oral or Written Reports
Requiring a worker to submit regular or written reports is a form of control. The OA provides that drivers must record information about all package deliveries. Drivers are required to record on-duty time, dispatch and return times, package tracking information, and odometer readings. 734 F. Supp. 2d at 568. Federal regulations require FedEx to monitor drivers’ on-duty and driving times, as well as some information related to shipping. 734 F. Supp. 2d at 568.
FedEx does not directly address this factor in its briefing, but presumably the company would claim that the reporting requirements are necessary to comply with the company’s regulatory responsibilities and to meet customer demands for information. Nevertheless, FedEx does have control over reporting requirements, and a driver’s failure to comply puts the driver’s job in jeopardy.
12. The Manner of Payment to the Drivers, e.g., by the Hour, Day, or Job
The manner of determining compensation is a factor because, typically, an hourly or daily rate of pay is more common for an employee, while a flat-rate, per-job arrangement is used more often for independent contractor relationships. McDonnell v. The Music Stand, Inc., 20 Kan. App. 2d 287, 291, 886 P.2d 895 (1994), rev. denied 256 Kan. 995 (1995).
The weeldy compensation for FedEx drivers combines both daily rates and piece rates. Plus, there are various bonuses, including bonuses for years of service and performance. Although some drivers receive additional payment for delivering packages in “low density, low package volume areas,” generally drivers are compensated based on the number of packages delivered, as well as the quality of service they provide. In re FedEx, 734 F. Supp. 2d at 567. Per haps most telling, the compensation rates are not negotiable by an individual driver. 734 F. Supp. 2d at 567.
Likewise, FedEx offers additional forms of compensation that seem to be inconsistent with an independent contractor scenario. For instance, the company matches contributions to tire “Service Guarantee Account,” which is an interest-bearing fund that allows a driver to save for unexpected expenses and may be withdrawn at the driver’s discretion; it offers a college scholarship for drivers with children; and it maintains a time-off program based on seniority. 734 F. Supp. 2d at 567-68.
13. The Extent to Which FedEx Pays Drivers’ Expenses
Drivers are responsible for all costs and expenses associated with their vehicles, including maintenance, fuel, taxes, and insurance. 734 F. Supp. 2d at 565. Fed Ex does not pay any expenses related to health insurance, welfare, pension, income taxes, unemployment insurance premiums, or Social Security taxes. 734 F. Supp. 2d at 568. This factor weighs heavily against a finding of an employer/ employee relationship.
14. The Degree to Which FedEx Furnishes Tools, Equipment, and Material
Ordinarily, one expects an independent contractor to possess the tools, equipment, and materials necessary to fulfill its obligations under the contract. Often, the principal would not, as a matter of course, have occasion to possess the tools, equipment, and materials necessary for the contracted job.
Here, FedEx requires the plaintiff drivers to purchase all of the tools, equipment, and materials necessary to perform their services under the OA. Specifically, drivers are required to purchase trucks, uniforms, scanners, printers, and communications-related equipment. 734 F. Supp. 2d at 566. Pointedly, most of the items that the drivers are required to purchase are unique to FedEx’s everyday operations rather than being necessary items for generic delivery drivers. For instance, the drivers, as independent contractors, could not use FedEx’s uniforms or scanners to move furniture after hours. In other words, tire fact that the worker owns his or her own tools and equipment is not as compelling a factor when that ownership is not for the benefit of the worker.
Likewise, FedEx has again injected its control into the process. The company provides a mechanism for drivers to purchase their tools and equipment directly from FedEx and then to pay for them through weekly payroll deductions. 734 F. Supp. 2d at 566. Granted, the drivers are not required to purchase their tools and equipment from FedEx, but as a practical matter, that is what happens; 99 percent of the drivers exercise the payroll deduction purchase option. 734 F. Supp. 2d at 566.
In short, this factor superficially supports an independent contractor relationship, albeit the context must be considered in reviewing the totality of the circumstances.
15. Whether Drivers Must Make a Significant Investment
Obviously, from the preceding factor, it is evident that drivers must make a significant personal investment in order to have the privilege of driving for FedEx. The only mitigating circumstance is that FedEx softens the financial hit by carrying the paper on that investment.
16. The Ability of Drivers to Make a Profit or Suffer a Loss
The concept of profit and loss, i.e., the ability to generate an unlimited amount of revenue in excess of expenses while risking that expenses might exceed revenues, is generally associated with the operation of an independent business. But the fact that a worker’s income can vary according to the effort expended by the worker does not necessarily negate the existence of an employment relationship. See S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 357-58, 256 Cal. Rptr. 543, 769 P.2d 399 (1989) (fact that sharefarmers can earn more money by picking more and better quality cucumbers is not indicative of ability to incur a loss or profit); Quality Medical Transcription v. Woods, 91 S.W.3d 181, 189-90 (Mo. App. 2002) (fact that tran-scriptionist can earn more money by completing more transcriptions is not indicative of ability to incur a profit or loss). The Tenth Circuit has declared that “toiling for money on a piecework basis is more like wages than an opportunity for ‘profit.’ ” Dole v. Snell, 875 F.2d 802, 809 (10th Cir. 1989).
To truly have the ability to make a profit, a business owner must have control over the amount of revenues generated and control over the amount of expenses incurred. Under FedEx’s compensation formula for a class member'—one who drives his or her vehicle full time—the only practical way to increase “profits” is to increase the number of packages the driver delivers in a day. FedEx’s required specifications for the vehicles, tools, equipment, materials, and clothing a driver must use malees any significant reduction on tire expense side impracticable. Interestingly, FedEx even attempts to insulate its drivers from suffering losses by paying additional compensation when the number of customers or accounts is reduced because of the company’s route reassignment. In re FedEx, 734 F. Supp. 2d at 574.
Even on the l'evenue side of the equation, FedEx restricts a driver’s control over the “profits” that can be earned. For example, if FedEx determines a driver is unable to deliver all the packages in his or her service area for the day, FedEx may reassign those packages to another driver. 734 F. Supp. 2d at 570. Likewise, FedEx used to employ a “Service Flex Range” that determined the “ ‘minimum and maximum number of stops that can be delivered by a trained contractor working at “industry standard” time.’ ” (Emphasis added.) 734 F. Supp. 2d at 570. In 2005, FedEx eliminated the minimum number of stops, but it still sets the maximum number of stops it believes a driver, “while utilizing his vehicle fully, reasonably can handle on any given day.” 734 F. Supp. 2d at 570. FedEx also reserves the right to reconfigure a driver’s route unless the driver establishes, during a set period of time, that he or she can “continue to provide in such Primary Sendee Area the level of service called for in this Agreement.” 734 F. Supp. 2d at 574.
Granted, some provisions are consistent with the drivers being business owners. For instance, drivers are allowed to sell excess stops as an alternative to reconfiguration, and they can even sell their routes upon 30 days’ written notice to FedEx, albeit the company must approve the buyer. Conversely, a driver whose contract is terminated for cause may not sell or assign his or her route to another. In re FedEx Ground Package System, Inc., 734 F. Supp. 2d 557, 574 (N.D. Ind. 2010).
Ultimately, a drivers ability to make a profit is constrained by FedEx’s control over the route assignments and the number of deliveries a driver can malee, while the company’s policies also serve to reduce a driver’s risk of suffering a loss. While FedEx has been creative in structuring the “business arrangement” to look like an independent contract, the drivers’ business opportunities are tightly controlled.
17. Whether Drivers Can Work for More than One Company at a Time
Technically, FedEx does not prohibit its drivers from working for another company, but it malees some stringent requirements. For instance, even though a driver must own and maintain the delivery truck, the driver cannot use that truck to do other work without masking or removing all markings that identify FedEx.
More importantly, however, the plaintiffs, by class certification definition, “drive a vehicle on a full-time basis” for FedEx. Craig v. FedEx Ground Package System, Inc., 686 F.3d 423, 425 n.1 (7th Cir. 2012). If a worker is employed full time by one entity, he or she can only work for another company during the worker’s free time, i.e., after hours, weekends, days off. The fact that a full-time worker is not prohibited from pursuing other jobs during the worker’s free time is not a compelling factor. See Dole, 875 F.2d at 808 (allowing worker to pursue other jobs not compelling where job could have been done “by any employee on his or her own time after hours, on weekends, or days off’).
Moreover, it would be impracticable, if not illegal, for the drivers to deliver for another company on days the drivers work for FedEx. FedEx endeavors to provide drivers with 9 to 11 hours of work each day. That leaves scant time to mask all the required markings on the vehicle to commence another job. Further, DOT places limitations on how many hours a driver can operate each day, thus limiting the drivers’ ability for after-work jobs. See 49 C.F.R. § 395.3 (2013) (maximum driving time for property-carrying vehicles).
Thus, outwardly this factor supports the notion of an independent contractor. As a matter of reality and practicality, the full-time drivers are unable to work for more than one company at a time. Cf. Dole, 875 F.2d at 808 (“ ‘[I]t is not what the [workers] could have done that counts, but as a matter of economic reality what they actually do that is dispositive.’ ” [quoting Brock v. Mr. W. Fireworks, Inc., 814 F.2d 1042, 1047 (5th Cir. 1987)]).
18. Whether Drivers’ Services Are Regularly and Consistently Made Available to the General Public
Obviously, an employee regularly serves the employer, not the general public, whereas an independent contractor would be expected to advertise the availability of the contractor’s services. Here, there was no evidence that any of the drivers regularly offered to serve the general public. Given our discussion in the foregoing factor about the lack of time available to work for others, it is difficult to perceive how a driver could regularly make his or her services available to the general public. This factor does not favor an independent contractor relationship.
19. Whether FedEx Has the Right to Discharge Drivers
Neither Crawford nor Harford explained the significance of the right to discharge a worker. But the IRS, in Revenue Ruling 87-41, provided the following explanation:
“19. RIGHT TO DISCHARGE. The right to discharge a worker is a factor indicating that the worker is an employee and the person possessing the right is an employer. An employer exercises control through the threat of dismissal, which causes tire worker to obey the employer’s instructions. An independent contractor, on the other hand, cannot be fired so long as the independent contractor produces a result that meets the contract specifications. Rev. Rul. 75-41, 1975-1 C.B. 323.” Rev. Rul. 87-41, 1987-1 C.B. 296.
While FedEx can exercise control over the drivers through the threat of dismissal for violating the OA, the company does not possess the right to discharge drivers without cause. To the contrary, if a FedEx manager seeks to terminate the OA for a “ ‘contractor who has breached or failed to perform . . . contractual ob ligations, as evidenced by repeated customer complaints, failure to service his/her work area, integrity issues, unsafe driving, D.O.T. and/or maintenance violations, or other such problems,’ ” the manager is to compile documentation establishing such violations and advise whether steps were taken to counsel, train, and otherwise help the driver to overcome the violations. In re FedEx, 734 F. Supp. 2d at 575. After an internal review process is complete and the recommended termination is found to be warranted, a driver may request arbitration in order to pursue a claim of wrongful termination. If the arbiter determines termination was not within the terms of the OA, FedEx may either reinstate the driver with damages from the date of termination through the date of reinstatement or maintain the termination and pay damages from the date of termination through the expiration of the contract term.
In short, FedEx does not possess the right to discharge a driver without cause.
20. Whether Drivers Have the Right to Terminate the Relationship
The revenue ruling describes the significance of this factor as follows:
“20. RIGHT TO TERMINATE. If the worker has the right to end his or her relationship with the person for whom the services are performed at any time he or she wishes without incurring liability, that factor indicates an employer-employee relationship. See Rev. Rul. 70-309.” Rev. Rul. 87-41, 1987-1 C.B. 296.
The OA provides that a driver can unilaterally end the relationship upon giving 30 days’ written notice. Notwithstanding the notice requirement, the fact that a driver can quit before the end of the OA term without financial consequences supports the existence of an employment relationship. Ordinarily, independent contractors are expected to complete all of the work contemplated by the contract.
Conclusion
Viewing the factors as a whole leads to the conclusion that FedEx has established an employment relationship with its delivery drivers but dressed that relationship in independent contractor cloth ing. Even where the factors should point us toward finding that the drivers are independent businesspersons, FedEx’s control and micromanaging undermine the benefit that a driver should be able to reap from that arrangement. For instance, the-ability to make more money than a deliveiy driver who is an employee is diminished, if not destroyed, by FedEx’s control over the number of deliveries a driver can make, as well as essentially dictating the driver’s required expenditures for vehicles, tools, equipment, and clothing. Moreover, one would reasonably expect that independent businesspersons could decide for themselves the amount of work they “reasonably can handle on any given day,” In re FedEx Ground Package System, Inc., 869 F. Supp. 2d 942, 958 (N.D. Ind. 2012), yet FedEx makes that decision for them and sets a maximum number of stops for each driver.
Consequently, we hold that under the undisputed facts presented, the FedEx delivery drivers are employees for purposes of the KWPA.
Question 2: Multiple Route Drivers
In its second question, the Seventh Circuit refers us back to our answer to the first question. Our answer to the first question was predicated on the definition of the class members as being full-time drivers. Accordingly, we interpret the second question as asking whether a full-time FedEx driver, who we have determined to be an employee of FedEx, loses that status with respect to the driver’s personal route when the driver acquires one or more other routes for which he or she is not tire driver. We answer “no” to our reformulated question. In other words, the employer/employee relationship between FedEx and a full-time delivery driver with respect to tire assigned service area is not terminated or altered when the driver acquires an additional route for which he or she is not the driver.
Our statutory authority for entertaining certified questions, K.S.A. 60-3201, specifies that we may answer such questions “when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court.” (Emphasis added.) See Pfeifer v. Federal Express Corporation, 297 Kan. 547, 548, 304 P.3d 1226 (2013). Given that the certified class only includes full-time drivers, we decline to opine on a driver s status with respect to any assigned service area for which he or she is not a full-time driver.
Moritz, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
This case arises out of a Kansas Insurance Department decision imposing sanctions on appellant Golden Rule Insurance Company for unfair claim settlement practices. The Department’s final order was upheld in district court. Then, on appeal to our Court of Appeals, the panel reversed. We accepted a petition for review filed by appellees, Assistant Commissioner of Insurance Robert M. Tomlinson and the Department.
Although the underlying facts in this case are undisputed, the Court of Appeals’ conclusion that Dirk McClary was not acting as Golden Rule’s soliciting agent when he submitted an application for health insurance that failed to disclose proposed insured Patti Denney’s preexisting condition is not inevitable under the governing law. We reverse the Court of Appeals’ decision on the agency question. On the further issue of whether Golden Rule engaged in unfair claim settlement practices, we affirm in part and reverse in part the district court’s judgment, which means that we also affirm in part and reverse in part the Department’s order. We affirm the remedy granted to Denney by the district court and the Department.
Factual and Procedural Background
The Court of Appeals’ opinion effectively captures the facts of this case as well as its lengthy and somewhat unusual procedural history. The parties do not take issue with the panel’s summary; we therefore adopt the summary for purposes of our decision.
“Denney and her husband, both self-employed, had family health insurance coverage through an individual policy with Blue Cross and Blue Shield of Kansas City (Blue Cross). The coverage was expensive, and Denney began looking for a more affordable policy.
“Apparently based upon her inquiries into alternative coverage, Denney’s name appeared on a list of insurance prospects maintained by Design Benefits, an independent insurance brokerage firm in Wichita. Design Benefits gave Denney’s name to McClary, a Kansas licensed insurance agent who officed in Overland Park, as somebody who might be interested in buying health insurance. McClaiy contacted Denney.
“McClary was affiliated with Design Benefits as well as another Kansas independent brokerage firm named Hosfield. He was also affiliated with USA Benefits Group, which changed its name to America’s Health Care Plan, a brokerage firm located in Illinois that is licensed in Kansas and markets insurance products of Golden Rule. These brokerage firms apparently had contracts with various insurance companies to market their insurance products in Kansas.
“McClary was not a captive agent of Golden Rule; that is, he was not an employee of Golden Rule soliciting business solely for that company. McClary submitted applications for health insurance policies to several insurance companies doing business in Kansas that competed with one another for insurance business. McClaiy’s contract with Golden Rule was entitled an ‘Independent Broker’s Contract,’ and it clearly stated that McClary was not an agent of Golden Rule.
“During September 2007, Denney met with McClary in [Denney’s] office to discuss Denney’s insurance coverage options. [McClary] gave Denney his business card[,] which indicated he was affiliated with US A Benefits but made no reference to Golden Rule. Two of Denney’s employees, JoAnn Combs and Jodi Davis, were present during the meeting because they were also interested in securing new insurance policies. Davis testified that she believed that McClary was representing Golden Rule because McClary held himself out as its representative. Combs also believed that McClary represented Golden Rule. McClary testified that he did not take the time to explain his agency agreement to Denney. McClaiy referred to himself as an agent rather than a broker. McClary confirmed that he received a commission from Golden Rule for obtaining Denney’s medical policy. Denney did not know the difference between an agent and a broker, and she ‘placed her faith’ in McClaiy and the information he was providing to her.
“Denney had a history of surgeries and procedures relating to digestive issues. Denney informed McClary of her medical condition and her previous surgeries because she did not want to risk losing health insurance for her family. Combs confirmed that Denney told McClary about th[is] medical condition[] at the be ginning of the meeting. Denney told McClary the dates of her previous surgeries, including the fact that she had hernia surgery in the previous 6 months.
“McClary first submitted Denney’s application, disclosing her digestive condition!], to Assurant Health, a company that sells insurance products that are underwritten by the Time Insurance Company. Denney’s application did not receive favorable consideration, so McClary contacted Denney by phone, and received her authorization to submit an application on her behalf to another insurance company, Golden Rule, based on the information that she had previously provided to him. Golden Rule is a competitor of Assurant Health and Time Insurance Company, and these two companies are not affiliated in any way with Golden Rule. Denney testified that McClary told her 'not to worry’ because Golden Rule would go back only 90 days into her medical history. McClary denied making any such assurance.
“The application McClary submitted to Golden Rule did not disclose Denney’s preexisting medical condition. Denney did not have the opportunity to review or sign the Golden Rule application before its submission. McClary could not explain why Denney’s information was not accurately reported to Golden Rule except to say that he made a mistake.
“Denney did not review the application prior to its submission because McClary received her consent to submit the application over the phone. However, the application contained a section immediately above the electronic signatures entitled ‘STATEMENT OF UNDERSTANDING’ that instructs the applicants to ‘[r]eview the completed application and read the section below carefully before signing.’ The section states:
“ 1 certify that I have personally completed this application. I represent that the answers and statements on this application are true, complete, and correctly recorded. I Understand and Agree that: (1) this application and the payment of the initial premium do not give me immediate coverage; (2) there will be no benefits for any loss incurred in the first year of coverage due to a preexisting condition; (3) incorrect or incomplete information on this application may result in voidance of coverage or claim denial; (4) this completed application, and any supplements or amendments, will be made a part of any policy which may be issued; (5) the broker is only authorized to submit the application and initial premium, and may not change or waive any right or requirement; and (6) continuation of other coverage existing on the Golden Rule effective date for more than 90 days after the Golden Rule effective date will void this coverage.’
“The application also contains a section entitled ‘BROKER STATEMENT’ that directs the broker to ‘[r]eview the completed application before signing below.’ Directly above McClaiy’s electronic signature, it states that ‘[e]ach question on tire application was completed by the applicant(s).’ Of course this did not happen.
“On October 13, 2007, Golden Rule issued a policy covering Denney and her family members. Denney then cancelled her policy with Blue Cross.
“In January 2008, Denneys physician, Dr. Mark Strehlow, sent a letter to Golden Rule requesting advance approval of coverage under the policy for surgery for Denney. Strehlow”s letter stated that Denney had an extensive medical history related to various digestive conditions. Strehlow said that Denney was scheduled to undergo ‘abdominal reconstructive surgery.’ Strehlow later testified that Golden Rule denied payment for the procedure, and he immediately requested that Golden Rule reconsider. Strehlow told Golden Rule that Denney was experiencing a number of gastric problems and she ‘certainly does not feel she can wait three to six months to have this procedure done.’ Golden Rule denied that it rejected Strehlow’s request and claims that it simply took the matter under advisement pending further investigation.
“From late January 2008 into April 2008, Golden Rule conducted an investigation into Denney’s medical history and her application for insurance. Golden Rule requested more information regarding Denney’s medical history from Den-ney’s various physicians.
“On April 28, 2008, Golden Rule denied coverage for Denney’s proposed surgery based on the fact that the conditions documented in Denney’s medical records were not disclosed in her application for insurance. Golden Rule stated that if Denney’s medical history had been accurately disclosed, Golden Rule’s offer of insurance would have contained a rider that excluded all coverage for digestive system diseases or disorders. Golden Rule informed Denney that ‘we need to take the same action we would have taken if we had been aware of this information when you applied for insurance.’ Golden Rule offered to keep the policy in force but exclude coverage for any digestive system problems. When Denney refused to accept the exclusionary rider, Golden Rule cancelled the policy.
“On May 5, 2008, Denney filed a complaint with dre Department based on Golden Rule’s refusal to provide coverage for treatment of her preexisting medical condition. Denney asserted that McClaiy misrepresented how far back Golden Rule would examine her medical history.
“Responding to the complaint, McClary denied knowledge of Denney’s medical conditions with the exception of a hernia repair in July 2007. McClaiy stated that he was ‘astonished to learn’ that the information regarding Denney’s hernia repair was not accurately represented on the application for insurance that he filled out on Denney’s behalf. Golden Rule asserted that McClary was an independent insurance broker and not Golden Rule’s agent.
“On August 13, 2008, the Department issued an ex parte emergency order finding that Golden Rule had violated K.S.A. 40-2404(9)(d), (f) and (i), which regulate unfair claim settlement practices in the business of insurance. The emergency order stated that Golden Rule had wrongfully denied Denney coverage for a medically necessary procedure and ordered Golden Rule to pay Denney’s claim.
“On August 26, 2008, the Department filed an action in the district court seeking civil enforcement of the emergency order. But tire district court determined that the evidence did not establish an emergency and stayed the emergency order pending final disposition of the claims against Golden Rule. The district court ultimately remanded the matter to the Department for an administrative hearing.
“At the administrative hearing on February 19, 2009, McClary testified that he initially submitted Denney’s application for insurance to Assurant Health. After learning that Assurant Health would not issue Denney a policy, McClaiy withdrew the application. He then called Denney and requested permission to submit her application to Golden Rule based on the information that she had previously provided to him. Denney agreed to McClary s plan to submit her application to Golden Rule, but the application submitted on her behalf did not disclose her medical condition or past surgeiy. McClary testified that the omission was unintentional and claimed that he must have made a mistake. Denney testified to her dealings with McClaiy and her belief that he was acting as an agent for Golden Rule. She acknowledged that all the representations about McClaiy’s status came from ‘the words out of his mouth’ and not from anything Golden Rule had provided to enable McClaiy to make the sale.
“On May 28, 2009, the Assistant Commissioner of Insurance . . . orally announced his decision, finding that Golden Rule had violated K.S.A. 40-2404(9)(d) and (f) but not K.S.A. 40-2404(9)(i). The Assistant Commissioner concluded that Golden Rule should pay for the reconstructive surgeiy as well as for Denney’s future medical services. The Department entered its order on September 3,2009.
“On September 28, 2009, Golden Rule filed a petition for reconsideration pursuant to K.S.A. 77-529(a)(l). Golden Rule argued there was insufficient evidence to establish any unfair claim settlement practice. Following a hearing on October 15, 2009, die Department denied Golden Rule’s motion for reconsideration and issued its final order.
“Golden Rule then filed a petition for judicial review under die Kansas Judicial Review Act (KJRA), K.S.A. 2011 Supp. 77-601 et. seq. On July 16, 2010, the district court affirmed die Department’s final order and ruled that Golden Rule violated K.S.A. 40-2404(9)(d) and (f) of die Kansas unfair trade practices law. Golden Rule’s subsequent motion to alter or amend the memorandum decision was denied, and Golden Rule appealed to [the Court of Appeals].”
Before the Court of Appeals, Golden Rule continued to assert that McClaiy was an independent broker who represented Den-ney. Relying on the Uniform Insurance Agents Licensing Act, K.S.A. 2013 Supp. 40-4901 et seq., and caselaw, the Department maintained that McClaiy was Golden Rule’s agent.
The Court of Appeals rejected the Department’s licensing argument, concluding that “[t]he issuance of a license does not define an agent’s powers to bind an insurance company, nor does it change the general law of agency.” Golden Rule Ins. Co. v. Tomlinson, 47 Kan. App. 2d 408, 422, 277 P.3d 421 (2012). Then, turning to the common law, the panel stated that a broker employed to procure insurance generally becomes die agent of the person for whom the insurance is procured. 47 Kan. App. 2d at 423. It disapproved of the district court’s rebanee “on the notion that McClary was a ‘soliciting agent’ as described in” Earth Scientists v. United States Fidelity & Guar., 619 F. Supp. 1465 (D. Kan. 1985), and it discussed caselaw defining brokers and soliciting agents. Golden Rule, 47 Kan. App. 2d at 425-27.
“Earth Scientists, 619 F. Supp. at 1472, recognized the holding in Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 421-22, 243 P. 1023 (1926), that an independent broker is the agent of the proposed insured rather tiran the insurer for the purpose of obtaining an insurance policy. The court in Rosedale declared that an insurance broker is one ‘who solicits contracts from the public under no employment by any special company, but, having secured an order, places tire insurance with a company selected by the [proposed] insured, or, in the absence of any selection by him, then with the company selected by such broker.’ 120 Kan. 415, Syl. ¶ 1. An insurer is not responsible for the actions of an independent broker. The court in Earth Scientists distinguished Rosedale by stating:
“ ‘Rosedale deals only with independent brokers and not soliciting agents. It holds that an independent broker is the agent of the insured rather than the insurer for the purpose of obtaining the policy. Id. at 421-22, 243 P. at 1026. Thus, an insurer may not be held hable for any representations made by the broker. Rosedale defines an insurance broker as “one who solicits contracts from the public under no employment from any special company, but, having secured an order, places the insurance with a company selected by the [proposed] insured or, in the absence of any selection by him, then with the company selected by such broker.” 120 Kan. at 415, Syl. ¶ 1, 243 P. at 1023.’
“ ‘A soliciting agent, on the other hand, is defined as one who taires applications for insurance, forwards them to the company that issued the policy, collects the premiums and delivers tire policies to the insured. Pettijohn v. The Saint Paul Fire and Marine Ins. Co., 100 Kan. 482, 485, 164 P. 1096, 1097 (1917).’ Earth Scientists, 619 F. Supp. at 1472.
“The notion of a ‘soliciting agent’ involves much more than the Earth Scientists court acknowledged. In Pettijohn v. Insurance Co., 100 Kan. 482, 164 P. 1096 (1917), the source of the district court’s notion of a soliciting agent, tire soliciting agent in question was William Weikert.
“ Weikert was the representative of defendant [St. Paul Fire & Marine Insurance Co.] at Norton through whom plaintiff had procured his policy. ... It appears that Weikert had been the agent of defendant at Norton for twelve or thirteen years, drat he took applications for insurance and adjusted losses on farm property, and he had authority to issue certain kinds of policies on city property. His territory extended from Salina to the Colorado line. . . .
“ ‘. . . He was recording agent for the insurance of city properly, and for a number of years had acted for the company in adjusting losses in a large district.’ Pettijohn, 100 Kan. at 483-84.
“There is no evidence that McClaiy had a relationship with Golden Rule anywhere near resembling the relationship between Weikert and St. Paul Fire & Marine Insurance Co. There is no evidence that McClary was Golden Rule’s designated representative in Denney’s community. There is no evidence that McClary had a designated territory within which he could solicit business for Golden Rule. There is no evidence that McClary had tire authority to issue policies on behalf of Golden Rule or adjust loss claims made by Golden Rule’s insureds.” Golden Rule, 47 Kan. App. 2d at 425-27.
The panel concluded that “[t]he description of tire insurance broker in Rosedale fits McClary to a T.” 47 Kan. App. 2d at 427.
“McClary first attempted to obtain coverage for Denney from Assurant Health, a competitor of Golden Rule in the health insurance market. But Time Insurance Company, the carrier to whom Assurant Health referred Denney’s application for underwriting, rejected Denney’s application. Upon learning of tire rejection, whom did McClary consult about what he should do next in attempting to obtain coverage for Denney? He consulted with Denney. McClary was an independent insurance broker who had access to several insurers that wrote health insurance policies in Kansas. His recommendation and ultimate selection of Golden Rule did not alter the fact that in doing so he was acting on behalf of Denney, not on behalf of Golden Rule. We find no evidence drat McClary was employed solely as a captive agent or as a soliciting agent of Golden Rule.” 47 Kan. App. 2d at 427.
Because McClary was viewed as an independent broker rather than Golden Rule’s agent, the panel held that Golden Rule was not responsible for McClary’s omissions on Denney s application. The panel thus summarily rejected the Department’s argument that Golden Rule committed unfair claim settlement practices in its dealings with Denney, noting that Golden Rule “initiated a prompt and reasonable investigation from January 2008 to April 2008.” 47 Kan. App. 2d at 428.
Discussion
In order to decide whether Denney and thus the Department can bind Golden Rule through the acts of McClary, we must first decide whether the evidence before the Department supported tire existence of an agency relationship between Golden Rule as principal and McClaiy as agent. Next, we must decide whether McClary’s acts were within the scope of his authority as agent or were otherwise binding on Golden Rule. If McClary’s acts were within the scope of his authority or were otherwise binding on the company, then we move to examination of the Department’s decision on the merits of the alleged statutory violations by Golden Rule and the appropriateness of the remedy it ordered.
The Court of Appeals, because it ruled that no agency relationship between Golden Rule and McClary existed, did not directly determine the scope of McClary’s authority. It was prompted in the direction it took by the common law and statutory arguments advanced by the parties, which focused on the relationship question alone—specifically, whether McClary was a soliciting agent or an insurance broker, terms that we will define and discuss in more detail below. This focus was understandable, given some historical imprecision in Kansas agency law, particularly as articulated and applied in insurance cases. In this opinion, on the way to resolving the parties’ particular dispute, we attempt to improve upon the clarity of Kansas agency law.
Standards of Review
We begin with a statement of the applicable standards of review.
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., establishes the standard of review for appeals from state administrative agency decisions. It enumerates eight circumstances in which a court shall grant relief. K.S.A. 2013 Supp. 77-621(c). Golden Rule, as the party asserting the invalidity of an agency’s action, bears the burden of proving invalidity. K.S.A. 2013 Supp. 77-621(a)(1). Although Golden Rule sets forth the eight circumstances enumerated in K.S.A. 2013 Supp. 77-621(c), it fails to specify which provision or provisions should lead to the appellate relief it seeks.
For its part, the Court of Appeals, in Golden Rule, 47 Kan. App. 2d at 416, identified three “relevant” subsections in K.S.A. 2013 Supp. 77-621(c):
“ ‘(4) the agency has erroneously interpreted or applied the law;
‘(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
‘(8) the agency action is otherwise unreasonable, arbitrary or capricious.’ ”
We focus on the first two of these three subsections.
The legislature’s use of the phrase “in light of the record as a whole” in subsection (7) of K.S.A. 2013 Supp. 77-621(c) means that we must review evidence both supporting and contradicting the agency’s findings; examine the presiding officer’s credibility determination, if any; and review the agency’s explanation as to why the evidence supports its findings. K.S.A. 2013 Supp. 77-621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 182, 239 P.3d 66 (2010). While conducting this analysis, the court does not reweigh the evidence or engage in de novo review. K.S.A. 2013 Supp. 77-621(d).
In Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446-47, 827 P.2d 24 (1992), this court explained:
“What constitutes agency and whether there is competent evidence reasonably tending to prove the relationship is a question of law. Although what constitutes agency is a question of law, resoludon of conflicting evidence which might establish its existence is for the finder of fact. Aetna Casualty and Surety Co. v. Hepler State Bank, 6 Kan. App. 2d 543, 548, 630 P.2d 721 (1981). The weight to be given evidence and resolution of conflicts therein are functions of the trier of facts in the determination of whether there is a relationship of principal and agent. Where the existence of agency is disputed, its existence or nonexistence is ordinarily a question of fact for the jury, to be determined upon proper instructions. CIT Financial Services, Inc. v. Gott, 5 Kan. App. 2d 224, 229-30, 615 P.2d 774, rev. denied 228 Kan. 806 (1980). ‘The province of an appellate court is to determine if the record reveals evidence on which a finding of agency could be based, not to decide whether, under proper instructions relating to the law of principal and agent, it existed as a matter of fact.’ Traylor v. Wachter, 3 Kan. App. 2d 536, Syl. ¶ 2, 598 P.2d 1061 (1979), aff'd in part, rev’d in part 227 Kan. 221, 607 P.2d 1094 (1980).”
The nature and scope of an agent’s authority and the inclusion within the scope of that authority of a particular act are ordinarily questions to be determined by the “ ‘trier of facts in accordance with the evidence adduced in the particular case/ ” Citibank, N.A. v. Data Lease Financial Corp., 828 F.2d 686, 691 (11th Cir. 1987).
One further standard of review has bearing on resolution of this case: Statutory interpretation is subject to unlimited review on appeal. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010) (reviewing agency action under KJRA). No deference is paid to an agency’s statutoiy interpretation. 290 Kan. at 567. Rather,
“[t]he intent of the legislature, if ascertainable, governs the interpretation of statutes. This court presumes that tire legislature expressed its intent through the language of the statutoiy scheme, and, if a statute is plain and unambiguous, this court will neither speculate regarding tire legislative intent nor read into the statute something that is not readily found in it. When the meaning of a statute is ambiguous, this court may turn to legislative history, canons of construction, and other background considerations to construe the intent of the legislature.” Hays v. Ruther, 298 Kan. 402, 404-05, 313 P.3d 782 (2013).
General Common Law Agency Principles
Because the Department depends upon common law for one of its alternative arguments for the existence of a principal-agent relationship between Golden Rule and McClary in this case, a brief review of general common law agency principles provides helpful context.
The Third Restatement of Agency, published in 2006, defines agency as “the fiduciary relationship that arises when one person (a principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) of Agency § 1.01 (2005); see Sullivan v. Finch, 140 Kan. 399, 404, 36 P.2d 1023 (1934) (defining agency in similar terms; citing Restatement [First] of Agency § 1 [1933]). Although “manifestation” was not defined in either the First or Second Restatement, the Third Restatement defines it as follows: “A person manifests assent or intention through written or spoken words or other conduct.” Restatement (Third) of Agency § 1.03 (2005). “Agency encompasses a wide and diverse range of relationships and circumstances.” Restatement (Third) of Agency § 1.01, comment c; see also 2A C.J.S., Agency § 3 (“Agency is a comprehensive term which, in its broadest sense, includes every relationship in which one person acts for or represents another by his or her authority.”).
The common law of agency recognizes three distinct bases on which the legal consequences of the agent’s action are attributable to the principal—actual authority, apparent authority, and re-spondeat superior. Restatement (Third) of Agency, ch. 2 Introductory Note at 79 (2005).
“An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that tire principal wishes the agent so to act.” Restatement (Third) of Agency § 2.01 (2005). An agent’s actual authority can either be express, i.e., “stated in very specific or detailed language,” or implied, i.e.,
“actual authority either (1) to do what is necessary, usual, and proper to accomplish or perform an agent’s express responsibilities or (2) to act in a manner in which an agent believes the principal wishes the agent to act based on the agent’s reasonable interpretation of the principal’s manifestation in light of the principal’s objectives and other facts known to the agent.” Restatement (Third) of Agency § 2.01, comment b.
See 2A C.J.S., Agency § 139.
In contrast, “[a]pparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03 (2005). Apparent authority “does not presuppose the present or prior existence of an agency relationship.” Restatement (Third) of Agency § 2.03, comment a. Thus, an actor who appears to be an agent but is not may nevertheless bind a principal in certain instances. Similarly, agents with actual authority who act beyond the scope of their authority may also bind a principal under the doctrine of apparent authority. Whether an actor or an agent, a principal’s liability requires that the third party reasonably believe the agent to be authorized and that such belief be traceable to a manifestation of the principal. Unlike an agent acting with actual au thority, an actor or agent with apparent authority may be liable to a principal for any loss incurred. Restatement (Third) of Agency § 2.03, comment a.
Respondeat superior assigns liability to an employer for the torts committed by its employees while acting within the scope of their employment. Restatement (Third) of Agency § 2.04 (2005).
Accordingly, any agency analysis begins by first identifying whether a principal-agent relationship exists and, if so, determining the nature and scope of the agent’s audiority. If no principal-agent relationship exists or an agent has acted outside of his or her actual authority, the inquiry moves to whether the actor or agent had apparent authority to act.
Kansas Common Law Agency Principles
Kansas caselaw has been consistent with the general common law agency principles outlined above in substance if not always in form. A notable difference between Kansas cases and the Restatements is our jurisdiction’s focus on “types of agencies” rather than types of audiority.
For example, in Professional Lens Plan, Inc. v. Polaris Leasing Corp., this court stated:
“ ‘The law recognizes two distinct types of agencies, one actual and the other ostensible or apparent. The authority of an actual agent may be either express or implied. [Citation omitted.]
“ ‘It is an express agency if the principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. It is an implied agency if it appears from the statements and conduct of tlie parties and other relevant circumstances that the intention was to clothe the agent with such an appearance of audiority that when the agency was exercised it would normally and naturally lead odiers to rely on the person’s acts as being authorized by the principal. An ostensible or apparent agency may exist if a principal has intentionally or by want of ordinary care induced and permitted third persons to believe a person is his or her agent even though no authority, either express or implied, has been actually conferred upon the agent.’ ” (Emphasis added.) Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390-91, 710 P.2d 1297 (1985) (quoting Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 236-37, 613 P.2d 1342 [1980]).
This court’s statements in Professional Lens Plan, Inc. had their genesis in much older caselaw, which in turn relied on then current statements of agency law made in various treatises. See, e.g., Greep v. Bruns, 160 Kan. 48, 54-56, 159 P.2d 803 (1945) (citing 1 Mechem on Agency, 2d ed.; 2 C.J.S., Agency; and 2- Am. Jur., Agency, to describe basic agency principles).
The most notable distinction between the terminology of our caselaw and that employed by the Third Restatement of Agency is that our terminology often identifies types of agencies based on the actor’s or agent’s type of authority. See In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 538, 920 P.2d 947 (1996) (distinguishing between “actual agent” and “apparent agent”); Professional Lens Plan, Inc., 238 Kan. at 390-91 (discussing “express agency,” “implied agency,” and “ostensible or apparent agency”). Distinguishing between actual agents and apparent agents may suggest that the two are inevitably mutually exclusive when they are not. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 271-72, 225 P.3d 707 (2010) (bank employee lacked actual authority to honor overdrafts as it was expressly prohibited by bank rules, but had apparent authority to do so); Restatement (Third) of Agency § 2.03, comment c (“Apparent authority often coincides with actual authority.”).
Historical Application of Kansas Common Law Agency Principles to Insurance Cases
Under common law, “[insurance intermediaries are generally characterized as either ‘agents’ or ‘brokers.’ ” 1 Thomas & Mootz, New Appleman on Insurance Law § 2.03[4][a] (Libraiy ed. 2014); see Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 P. 1023 (1926); Pettijohn v. Insurance Co., 100 Kan. 482, 164 P. 1096 (1917); see also Restatement (Third) of Agency § 3.14, comment c (2005). “Traditionally, an ‘agent’ is the representative of the insurer, while the ‘broker’ is the representative of the insured, except that the ‘broker’ is a representative of the insurer for the purpose of receiving the first premium.” 1 Harnett, Responsibilities of Insurance Agents and Brokers § 2.02 (2008); see Rosedale, 120 Kan. at 418-19. But it is not these characterizations that are important for our inquiry; it is the intentions of the insurer and intermediary in creating an agency relationship and the authority the insurer vests with the intermediary that are critical. See Curran v. Industrial Com'n of Arizona, 156 Ariz. 434, 437, 752 P.2d 523 (Ct. App. 1988) (“Where the insurer s actions create actual or apparent authority for a broker to act on its behalf, the broker becomes the agent of the insurer.” [citing Couch on Insurance and Appleman]). Moreover, “the distinction between brokers and agents does not prevent a broker from acting as an agent, and a person may be both an insurance agent and an insurance broker, functioning at different times in different capacities.” 3 Plitt, Maldonado & Rogers, Couch on Insurance 3d § 45:3 (2011); see Stamps v. Consolidated Underwriters, 205 Kan. 187, 197, 468 P.2d 84 (1970) (“For some purposes and under certain circumstances, a broker may represent either the insured or insurer, or both.”); Rosedale, 120 Kan. at 421-22 (broker may be agent of insurer under some conditions); Restatement (Third) of Agency § 3.14, comment c (“The same actor may occupy different roles at successive points in an ongoing interaction among the same parties.”).
Determining whether an intermediary was acting as a representative of the insured or the insurer is important because it can determine whether an intermediary’s knowledge and acts are imputable to die insured or the insurer. 1 Appleman § 2.03[2] (noting general agency principles apply); 3 Couch § 45:1; see Restatement (Third) of Agency § 5.03 (2005) (knowledge of fact agent knows or has reason to know imputed to principal if knowledge of fact material to agent’s duties to principal).
Both this court and other jurisdictions have identified and defined several common relationships in the insurance industry, e.g., soliciting agent and broker. These identifiers and accompanying definitions are useful for referring to particular agency relationships characterized by particular grants of authority. Nevertheless, the appropriate industry label to apply is secondary to conducting an agency analysis based on the facts of a case.
In Earth Scientists v. United States Fidelity & Guar., Chief Judge Earl E. O’Connor of the federal District of Kansas defined a soliciting agent as “one who takes applications for insurance, forwards them to the company that issued the policy, collects the premiums and delivers the policies to the insured.” 619 F. Supp. 1465, 1472 (D. Kan. 1985) (citing Pettijohn, 100 Kan. at 485). Judge O’Connor noted that a soliciting agent is not a general agent, and a soliciting agent “has no authority to accept notices, make agreements, or waive provisions in the contract.” 619 F. Supp. at 1472-73. None of these limitations on a soliciting agent’s authority is at issue in this case.
We agree with the Earth Scientists definition of soliciting agent, which is in line with several other authorities. See 3 Couch § 45:23 (“A soliciting agent is authorized by an insurer to sell insurance, receive applications, deliver policies, and collect premiums but has no authority to bind the insurer.”) (citing Earth Scientists opinion, others); 1 Harnett § 2.02[2] [a] (soliciting agent is “[t]he salesman type operative who sells, gets applications and forwards them to the general agent or insurer, delivers policies, and picks up the premium”); Black’s Law Dictionary 70 (8th ed. 2004) (defining soliciting agent as “[a]n agent with limited authority relating to the solicitation or submission of applications to an insurance company but usufally] without authority to bind the insurer, as by accepting the applications on behalf of tire company”); 43 Am. Jur. 2d, Insurance § 133, p. 178-79 (“[A soliciting agent’s] authority is limited to soliciting insurance, submitting applications, and performing acts incidental to that power, including collecting the first premium. A soliciting agent would be expected to have the power to explain the lines of insurance sold by the company, take applications, quote premium rates, and explain the terms and limitations of the insurer’s products.”).
Our acceptance of the Earth Scientists definition of soliciting agent means we must reject the Court of Appeals panel’s evident effort to expand it by adding requirements based on a distinguishable case. See Golden Rule Ins. Co. v. Tomlinson, 47 Kan. App. 2d 408, 426-27, 277 P.3d 421 (2012) (citing Pettijohn v. Insurance Co., 100 Kan. 482, 483-84, 164 P. 1096 [1917]).
We also discern that the Court of Appeals erred in applying our definition of broker.
In Rosedale, this court defined broker as “one who acts as middleman between the insured and the insurer; one who solicits contracts from the public under no employment from any special com pany, but, having secured an order, places the insurance with a company selected by the insured, or, in the absence of any selection by him, then with the company selected by such broker.” 120 Kan. 415, Syl. ¶ 1; see 3 Couch § 45:1 (“A broker represents the insured by acting as a middleman between the insured and the insurer; soliciting insurance from the public under no employment from any special company; and, upon securing an order, places it with a company selected by the insured, or if the insured has no preference, with a company selected by the broker.”). The Rosedale court held that generally “an insurance broker is the agent and representative of tire insured for the purpose of making the application and procuring the policy.” 120 Kan. 415, Syl. ¶ 2. The major distinction between the definition of a soliciting agent and a broker is the broker s ability to place insurance, in the absence of any selection by the client, with a company selected by such broker.
The Court of Appeals erred when it concluded that McClary’s “recommendation and ultimate selection of Golden Rule did not alter the fact that in doing so he was acting on behalf of Denney, not on behalf of Golden Rule.” (Emphasis added.) Golden Rule, 47 Kan. App. 2d at 427. The record simply contains no support for the idea that McClary had authority, in the absence of any choice by Denney, to select an insurer to provide her health coverage. The only evidence demonstrates exactly the contrary. Before submitting the application, McClary contacted Denney and asked for her permission to submit it to Golden Rule. McClary could not unilaterally select a company.
Finally, we also disagree with the panel’s conclusion that the description of an insurance broker as outlined in Rosedale fit “McClary to a T.” Golden Rule, 47 Kan. App. 2d at 427. There are several key factual differences between McClaiy and the broker in that case. The broker in Rosedale was in no way affiliated with the defendant insurance company. The insured had directed the broker to apply for insurance on his automobile, but “he did not designate the land of insurance to apply for.” 120 Kan. at 417. The broker placed the insurance through agents for the defendant-insurance company. None of these facts was present in this case.
Kansas Statutory Law on Insurance Agents and Brokers
The Department’s alternative argument for the existence of a principal-agent relationship between Golden Rule and McClaiy is based on current Kansas statutes.
In its decision, the Court of Appeals summarily dismissed the Department’s assertion of a statutory basis for McClary’s status as agent for Golden Rule, relying on this court’s 1920 decision in Eikelberger v. Insurance Co., 107 Kan. 9, 12, 190 P. 611 (1920). Golden Rule, 47 Kan. App. 2d at 422.
In Eikelberger, this court reviewed two statutes, one of which required insurance agents be licensed by tire state insurance department. As the Court of Appeals noted in Golden Rule, Eikel-berger held that “the license issued by the insurance department to a local insurance agent, at the request of his principal, is merely the state’s permit for him to ply his business, and a tacit admission by the insurance superintendent that so far as he is advised the licensee is an honest man, or at least a man of fair business reputation.” 107 Kan. at 11. Accordingly, the Court of Appeals held that “[t]he issuance of a license does not define tire agent’s powers to bind an insurance company, nor does it change the general law of agency.” Golden Rule, 47 Kan. App. 2d at 422.
The Department discounts the Court of Appeals’ reliance on Eikelberger, because the opinion predated the current statutory scheme for insurance agent licensing and appointment “by eight decades.”
The Kansas Uniform Insurance Agents Licensing Act makes it unlawful for any person to “sell, solicit or negotiate any insurance within this state unless such person has been issued a license as an insurance agent in accordance with this act.” K.S.A. 2013 Supp. 40-4905(a). The Act defines “insurance agent” and “agent” as “any person required to be licensed [under the insurance code] to self solicit or negotiate insurance.” K.S.A. 2013 Supp. 40-4902(k). A “broker” is “any individual who acts or aids in any manner in negotiating contracts of insurance, or in placing risks or in soliciting or effecting contracts of insurance as an agent for an insured other than such individual and not as an agent of an insurance company or any other type of insurance carrier.” K.S.A. 2013 Supp. 40-4902(d). The Act also provides that “[flor the purposes of this act, whenever the terms ‘agent’ or ‘broker’ .appear [in the insurance code], each term shall mean insurance agent unless the context requires otherwise.” K.S.A. 2013 Supp. 40-4902(k). We read these statutes to mean that a principal-agent relationship, as defined at common law, may exist between an insurance agent and an insurer or between an insurance agent and an insured. Thus statutory definitions of agent and broker cover more than insurance agents clothed with express actual authority by a principal insurance company.
In addition, as for the effect of licensing under the Act, it appears the Court of Appeals was correct. Although the current Act is more detailed on the ins and outs of the licensing process than its, predecessor statutes in effect at the time of the Eikelberger decision, licensing remains a mere permitting process. It does not affect the viability or applicability of the general common law of agency on particular facts.
Under die Act, licensing is distinct from appointment. An insurance company may appoint a licensed insurance agent “as the insurance agent of the company under the license in effect for the insurance agent.” K.S.A. 2013 Supp. 40-4912(a). In fact, such appointment and certification is required in order for an agent or broker to transact business of the insurer. K.S.A. 2013 Supp. 40-241 (issuance of license confers no authority until agent certified by company); K.S.A. 2013 Supp. 40-4912.
Golden Rule suggests that no particular agency status should be read into the undisputed fact of its appointment of McClary, because it views appointment as simply a feature of the Kansas permitting process. But this suggestion blurs the statutory distinction between licensing and appointment. Golden Rule was not required to appoint McClaiy; it (fid so because the appointment would further Golden Rule’s interests. Appointment enabled McClary’s direct placement of business with Golden Rule, rather than dirough another insurance agent. See K.S.A. 2013 Supp. 40-4910(d) (“An insurance agent may place a land or kinds of business, for which such insurance agent is licensed pursuant to this act, with an in surer for which such insurance agent is not an agent, by placing such business through an agent of such insurer.”).
That being said, Golden Rule’s appointment of McClaiy also does not automatically dispose of the agency issue in the Department’s favor. The Department contends that the appointment under K.S.A. 2013 Supp. 40-4912 was enough on its own to bind Golden Rule to the acts and representations of McClary, seemingly without limitation. But such an interpretation is not supported by the plain language of the statute. And we see no other indication that the legislature intended to supplant the whole of agency common law and make insurance companies strictly liable for die acts of their appointed agents. At most, K.S.A. 2013 Supp. 40-4912 and K.S.A. 2013 Supp. 40-4910(d) provide modest assistance in determining when an insurance intermediary is acting for the insurer or for the insured. Appointment is a fact but not the only fact to be considered in determining the existence of a principal-agent relationship. More importantly, appointment also does not define the scope of any appointed agent’s authority.
Substantial Evidence Viewed in Light of Record as a Whole
We now turn to application of the law as we have clarified it, particularly whether die evidence supporting the Department’s conclusion diat McClaiy acted as Golden Rule’s agent is substantial when viewed in light of tire record as a whole. Again, our obligation to examine the record includes the responsibility to consider evidence contrary to the Department’s position. See K.S.A. 2013 Supp. 77-621(d).
We recognize, as did the Court of Appeals, that the Department’s explicit factual findings are sparse. But Golden Rule has not challenged the adequacy of die findings, presumably because the parties treat the underlying evidence as undisputed. That evidence includes:
• Golden Rule appointed McClaiy to transact business under K.S.A. 2013 Supp. 40-4912.
• McClary initiated contact widi Denney.
• McClary and Denney were not acquainted before McClary initiated contact.
• McClary sought Denneys permission to submit the application to Golden Rule.
• McClary submitted Denney s application directly to Golden Rule.
• Golden Rule provided an online portal for McClary’s use to submit appbcations, a portal not available to consumers, and it expressly authorized McClary to sobcit and submit appb-cations directly to it.
• After learning of McClary’s conduct, Golden Rule sent him a letter that informed him he was not permitted to sign, either physically or electronically, insurance applications or supporting administrative forms for applicants.
• McClary was Denney’s only contact with Golden Rule during the application process.
• Denney believed that McClary represented Golden Rule.
• McClary collected a voided check from Denney to enable Golden Rule to draw premiums electronically from Denney’s bank account.
• Denney did not compensate McClary for his services.
• Golden Rule paid McClary a commission after the sale of the policy; McClary did not keep a portion of the premiums paid by Denney as his commission.
The evidence also includes Golden Rule’s independent broker contract signed by McClary. That contract states in pertinent part:
“Independent Status. You are an independent contractor relative to the Company. Although this Contract entitles You to submit applications to the Company on behalf of prospective Clients, You shall not represent to anyone that You act on behalf of the Company, except as expressly set forth in this Contract.
“Nothing contained in this Contract, or any written material or correspondence of tire Company, shall be construed to create an employer-employee or principal-agent relationship between You and the Company. The parties recognize that:
“(a) Due to a particular state’s licensing requirements, You may be appointed in that state as an ‘agent’; and
“(b) From time to time the Company or others may refer to You as an ‘agent.’ These references may occur because of the general use of these words in everyday vocabulary.
“It is expressly intended and agreed that You are an independent contractor, acting as the agent of Your Clients and not as Our agent. You are free to exercise Your own judgment as to the time, place, and manner of dealing with Your Clients and potential Clients.”
The contract also specifies that McClary is “authorized to: . . . Obtain and submit applications for Insurance Products to Us for Our consideration on behalf of persons for whom You are acting as broker.”
It is on these facts that the Department ruled that McClary was an agent of Golden Rule and that Golden Rule was liable for McClary’s omission. We must affirm if substantial evidence, when viewed in light of the record as a whole, supports the Department’s decision under tire agency analysis we have outlined above.
On the initial question of whether a principal-agent relationship existed, we note that Golden Rule made McClary its appointed agent under K.S.A. 2013 Supp. 40-4912. In addition, Golden Rule and McClary entered into an agreement that set forth duties for each party.
Golden Rule argues that the contract “clearly prohibits McClary from acting as an agent of Golden Rule or in any capacity except as an independent broker on behalf of his own clients or prospective clients.” But that portion of the contract does not necessarily settle the issue of whether Golden Rule and McClaiy had a principal-agent relationship.
“Many insurance companies provide in their applications, policies, or agency contracts drat dre broker is the agent of the insured. Courts will often disregard the wording, finding that tire broker represents tire insurer and not the insured. Additionally, an agency contract specifying that an individual is an independent contractor and not an employee of the insurance company is not determinative of an individual’s status as a broker representing the insured or as an agent representing the insurer.” 3 Couch § 45:6.
See 43 Am. Jur. 2d, Insurance § 134, p. 179 (contract identifying intermediary as independent contractor “does not preclude the possibility that, in procuring information for an insurer, the soliciting agent was acting as an agent of the insurer”); see also In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 541, 920 P.2d 947 (1996) (implied agency relationship may exist notwithstanding denial by alleged principal).
Here, the contract expressly provides for McClary’s independent status and identifies him as both a broker and an independent contractor, but it also authorizes McClary to “[o]btain and submit,” i.e., solicit, applications for insurance and to collect initial premiums in exchange for commissions paid by Golden Rule. The contract provides that McClary is “prohibited from engaging in any act not expressly authorized by [Golden Rule].” The contract binds McClary to a confidentiality agreement, requires that he ensure the accuracy of applications he submits, and allows him to use Golden Rule advertising material, provided he does not combine the company’s advertising material with another company’s advertising material. All of these elements of the contract demonstrate Golden Rule’s control of McClaiy’s behavior and its delineation of the limits of his authority. They could certainly be relied upon by a factfinder to prove an agency relationship between Golden Rule and McClary.
We conclude that substantial evidence supported the existence of a principal-agent relationship. But the existence of a principal-agent relationship alone is not dispositive on whether Golden Rule is hable for McClary’s omission. We must next decide whether evidence supported a finding that McClary had actual authority to solicit and submit applications to Golden Rule or, if not, whether he had apparent authority to do so.
Determining tire scope of an agent’s actual authority will often require looking at the same evidence that established the existence of the relationship in the first place. Here, as mentioned above, the agreement between McClary and Golden Rule authorized McClary to “[o]btain and submit” applications for insurance. This express declaration vested McClary with actual authority to solicit and submit applications to Golden Rule. In addition, Golden Rule’s appointment of McClary under tire statute allowed him to submit insurance applications directly to Golden Rule, and Golden Rule provided him an online portal to do so. Substantial evidence supports the conclusion that McClary had the actual authority to solicit and submit applications directly to Golden Rule. This is the type of relationship and the scope of authority commonly held by a soliciting agent, as that term has been defined in the caselaw.
In its brief, Golden Rule emphasized that McClaiy was able to sell policies for multiple insurance companies and quoted Damon's Missouri, Inc. v. Davis, 63 Ohio St. 3d 605, 611, 590 N.E.2d 254 (1992). Damon’s states that “an insurance agent has a fixed, permanent and exclusive relationship with tire insurance company that the agent represents.” But Golden Rule failed to quote the additional holding from the case:
“[A]n insurance broker becomes an agent for a particular insurer when: (1) tire broker notifies its customer that he or she intends to place the customer’s insurance coverage with a particular insurer; or (2) the broker accepts an application for insurance on behalf of tire customer.” 63 Ohio St. 3d at 612.
It thus appears that, on the same facts as those before us here, an Ohio court would hold that an agency relationship between Golden Rule and McClary existed. McClary clearly was not a captive or exclusive agent, but his simultaneous appointment by other insurance companies did not make it impossible for him to qualify as a soliciting agent for Golden Rule. This is exactly the conclusion reached by two other sister states examining Golden Rule’s activities in their jurisdictions. See Golden Rule Ins. Co. v. Montgomery, 435 F. Supp. 2d 980, 991-92 (D. Ariz. 2006) (holding sufficient evidence to raise question of fact whether broker agent of insurance company under similar facts); Tassin v. Golden Rule Ins. Co., 94-0362 (La. App. 1 Cir. 12/22/94), 649 So. 2d 1050, 1055-56 (holding broker agent of insurance company under similar facts).
Our decision on the existence and scope of McClaiy’s actual authority eliminates the need for this court to examine apparent authority. We pause only to recognize again that actual authority does not preclude the existence of apparent authority, and certain of the facts in this case would support its existence as well.
Violations of K.S.A. 2013 Supp. 40-2404(9) and Remedy
Because we have decided that substantial evidence when considered in light of the record as a whole supported the Department’s determination that McClary was Golden Rule’s agent and that his actions were within his authority, we must review the Department’s identification of two violations of K.S.A. 2013 Supp. 40-2404(9) and the remedy it ordered under K.S.A. 40-2407(a)(3).
K.S.A. 2013 Supp. 40-2404(9) provides:
“It is an unfair claim settlement practice if any of the following or any rules and regulations pertaining thereto are: (A) Committed flagrantly and in conscious disregard of such provisions, or (B) committed with such frequency as to indicate a general business practice.
“(d) refusing to pay claims without conducting a reasonable investigation based upon all available information;
“(f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.”
On subsection (d), in the Department’s view, Golden Rule violated K.S.A. 40-2404(9)(d) when it effectively refused to pay any claim associated with Denney’s preexisting condition, instead coupling a demand for an exclusionary rider redefining the insurance coverage with a threat of policy termination.
As the Court of Appeals noted, Golden Rule conducted a 4-month investigation after Denney sought preapproval for surgery. The Court of Appeals characterized this investigation as “prompt and reasonable.” 47 Kan. App. 2d at 428. But there is a problem with that characterization. The investigation’s sole focus was verification of Denney’s preexisting medical condition. No investigation of the nature of the relationship between Golden Rule and its appointed agent, McClaiy, was pursued, even after Golden Rule became aware that McClary, rather than Denney, was likely to blame for the misleading omission in Denney’s insurance application. Golden Rule’s lack of any effort to reasonably investigate the agency relationship provides a sufficient basis for the Depart-' ment’s finding of a K.S.A. 2013 Supp. 40-2404(9)(d) violation, as Golden Rule’s stonewalling conduct qualified as gross and flagrant in light of the circumstances of this case.
On subsection (f), in contrast, we cannot affirm tire Department’s determination that Golden Rule did not “attempt[] in good faith to effectuate prompt, fair and equitable settlements of claims” on which liability had become “reasonably clear.” The Department did not identify facts in the record that support this ruling, and our review does not uncover any. The agency status at the heart of this case needed to be investigated, but it remained in valid dispute up to today. In other words, Golden Rule’s liability had not become “reasonably clear.” We must therefore reverse the Department and district court on their ruling that Golden Rule violated subsection (f).
Because we affirm the finding of a violation of K.S.A. 2013 Supp. 40-2404(9)(d), the Department was authorized to order a remedy under K.S.A. 40-2407. Its subsection (a)(3) permits the commissioner to order “redress of tire injury by requiring the refund of any premiums paid by, the payment of any moneys withheld from, any consumer . . . .” The phrase “moneys withheld” necessarily includes payments authorized under an insurance policy but unpaid by the insurance company. We therefore affirm the Department’s authorized and appropriate remedy.
Conclusion
Under the authorities and rationales described above, we (a) reverse the Court of Appeals’ opinion reversing the district court’s judgment affirming the Kansas Insurance Department’s final order; (b) affirm the district court’s judgment in part and reverse in part; and (c) affirm the Kansas Insurance Department’s final order in part and reverse in part.
Moritz, J., not participating.
Michael E. Ward, District Judge, assigned. | [
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Opinion by
Holt, C.:
This action was tried at the September term, 1888, of the Cowley district court, and the defendant convicted on two counts in the information charging him with violating the prohibitory liquor law; he appdkls to this court. The information was verified by the county attorney on information and belief, and affidavits of John W. Kreamer and L. E. Woodin jr. were filed with it. The date of filing was March 12, 1888; the information was sworn to by the county attorney on the 10th and the said affidavits on the 12th of March, 1888. There was no motion to quash the information, or in arrest of judgment, but the defendant made a motion for a new trial as follows:
“1. The court admitted illegal testimony on the trial of this case.
“2. The court misdirected the jury in a material part of law on the trial of this cause, by stating to the jury and the attorney for defendant on the argument of said cause that the sworn statements of the witnesses John W. Kreamer and L. E. Woodin jr., taken by the county attorney under the provisions of § 8, chapter 149, Laws of 1885, commonly called the prohibitory liquor law, and filed with the information in this case, which said information Was verified on information and belief only, the names of said witnesses being also indorsed on said information. The court refused to allow the defendant’s attorney to compare the said statements so filed with the information, and refused to instruct the jury that the defendant could not be convicted of any violation of said law not referred to and set forth in said statements — said statements being all the statements filed by the county attorney with said information. The court by so refusing deprived the defendant of his rights under the law. The court erred in refusing to allow defendant to read said statements to the jury for the purpose of limiting the conviction, if any should be, to the violations named in said statements.
“3. The verdict is contrary to law, and is contrary to the evidence.”
The defendant complains that the verification of the information is insufficient. It is questionable whether this objection is fairly raised in the record. We think, however, that the verification was sufficient, certainly under the objections made to it. The information with accompanying affidavits were all filed at the same time, and surely that was sufficient to authorize the issuing of the warrant. It is not necessary that the information sworn to by the county attorney on information and belief should be based upon an affidavit made before the information is sworn to. He may have been informed by a reliable witness under oath, not in writing, of the specific offense of which the defendant was afterward convicted, and may have had them in his mind at the time the information was verified.
Another objection urged is, that the court refused to allow defendant’s attorney to read the affidavit of John W. Kreamer, who was also a witness at the trial. The record shows that after the examination of Kreamer and before the state had rested, the attorney for the defendant asked leave to read this affidavit. This was objected to by the county attorney, and the court then asked the defendant’s attorney if he offered the affidavit in evidence; he replied, “ I simply desire to read it to the jury as being part of the files in this case.” The court refused to allow him to read the affidavit at that time. This was not error. The state had not completed the introduction of its evidence, and it would have been an irregular and uncalled-for proceeding for the defendant’s attorney to read this paper at that time. Being part of the files of the case, it could have been used by the defendant when he introduced his own testimony, or he might have read it in his argument to the jury. There is an inference from his motion for a new trial that this was not allowed by the court, but there is nothing in the record to substantiate it.
The only other complaint of the defendant that we care to notice is, that L. E. Woodin jr. was permitted to designate the place where the liquors were sold and kept for sale in violation of law. He did not personally know of the guilt of defendant; he simply testified that the premises, describing them, were occupied as a restaurant known as “the European restaurant;” but other witnesses clearly established the fact that this restaurant, at the time this offense was committed, was occupied by the defendant.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is contended that the facts set forth in the information do not constitute any public offense, and that the information cannot be so amended that the provable facts will meet the objections taken against it. In support of this it is claimed: First, that it does not appear from the information that a member of the school board is a public officer within the meaning of §§ 193 or 198 of the crimes act; and second, that whether he be such an officer or not, there was not any public or official duty devolved by law upon George W. Ragon, as a member of the school board, respecting the performance or non-performance of which there was an attempt to bribe him. It is said that school directors and other officers of a school district are not officers of the state or of any county any more than county officers are state officers, or than state officers are county officers; that while the term public officer includes all officers appointed or chosen under the law, yet classification, as federal officers, state officers, county officers, township officers, city officers, and school-district officers, is too well fixed and too well recognized to require argument that the designation of any one of these particular classes must exclude it from any other class than the one so designated; hence that § 198 has reference only to state officers and county officers, those two classes of public officers only being named in §193.
Again, it is said that the district board had no lawful authority to contract with Bozeman for the erection of lightning- rods upon the school building without having affirmative authority by a vote of the electors of the district; and not being within the scope of their authority, the acts complained of did not come within any of the cases mentioned in §193 of the crimes act.
Section 193 reads:
“Every persou who shall, directly or indirectly, give any money, goods, rights in action, or any other valuable consideration, gratuity or reward, or any promise, undertaking or security therefor, to any officer of this state or of any county: First, with intent to influence his vote, opinion, judgment or decision of any question, matter, cause or proceeding which may be then pending, or may be by law brought before him in his official capacity, or to induce him to neglect or omit the performance of any official duty, or to perform such duty with partiality or favor, otherwise than is required by law; or, second, in consideration that such officer hath given any vote, opinion, judgment, or decision, in any particular manner, upon any particular side, or more favorable to one side than the other, in any matter, question, cause, or proceeding, or hath omitted to perform any official act or duty, or hath performed such act or duty with partiality or favor, or otherwise, contrary to law, shall, on conviction, be adjudged guilty of bribery, and be punished by confinement and hard labor for a term not exceeding seven years.”
The information, however, is founded upon §198 of the crimes act, which provides:
“If any person shall, by any of the means mentioned in the preceding sections of this act or otherwise, offer or attempt to bribe any officer or other person, in any of the cases herein-before mentioned, he shall, upon conviction, be punished by confinement, and hard labor for a period not exceeding five years, or by imprisonment in the county jail for a term not exceeding one year, and a fine not less than one thousand dollars.”
Said § 198 refers to the offer or attempt to bribe any officer or other persou. These officers or persons are not merely officers of a state, or of a county. The language in said § 198 is comprehensive, and the scope thereof is broad enough to include the officers of a school district, or any other officer or person in the eases referred to in § 193. The expression in §198, “by any of the means mentioned in the preceding sections of this act,” refers to the language in § 193, which reads as follows: “Every person who shall, directly or indirectly, give any money, goods, rights in action, or any other valuable consideration, gratuity or reward, or any promise, undertaking or security therefor;” and the language in said § 198, to the effect that “in any of the cases hereinbefore mentioned,” refers to numbers 1st and 2d in §193: therefore, the crime of offering or attempting to bribe any officer or other person under §198 includes school district-officers, as well as state and county officers.
As to the other objection to the information, Wharton says: “The offense of attempting to bribe is complete when an offer is made, although in a matter not within the jurisdiction of the officer.” (2 Crim. Law, §1857.)
Mr. Justice Dalrimple, speaking for the court, said, in The State v. Ellis, 33 N. J. L. 102:
“It is contended in the next place, that the facts set forth in the indictment constitute no offense, inasmuch as the common council had not jurisdiction to grant the application for which the vote was sought to be bought. In my opinion, it is entirely immaterial whether council had or had not jurisdiction over the subject-matter of the application. If the application was in point of fact made, an attempt to procure votes for it by bribery was criminal. The offense is complete when an offer of reward is made to influence the vote or action of the official. It need not be averred that the vote if procured would have produced the desired result, nor that the official or the body of which he was a member had authority by law to do the thing sought to be accomplished. Suppose an application made to a justice of the peace in the court for the trial of small causes, for a summons in case of replevin, for slander, assault and battery, or trespass, wherein title to lands is involved: over these actions a justice of the peace has no jurisdiction, and any judgment he might render therein would be coram nonjudice, and void. Yet I think it can hardly be contended that a justice thus applied to may be offered, and with impunity accept, a reward to issue a summons in any case without his jurisdiction. If the common council of Jersey City had not authority to grant the application referred to, the act of the defendant in endeavoring to procure the grant asked for was only the more criminal, because he sought by the corrupt use of money to purchase from council an easement which they had no authority to grant. He thereby endeavored to induce them to step beyond the line of their duty and usurp authority not committéd to them. The gist of the offense is said to be the tendency of the bribe to pervert justice in any of the governmental departments — executive, legislative, or judicial. (2 Bishop’s Crim. Law, §86.) Would it not be a plain perversion of justice to buy the votes of councilmen in favor of a surrender of the streets of the city for the purposes of a railroad, when such surrender is unauthorized by law ? The rights of the citizens of the municipality thus corruptly tampered with and bargained away might be regained after a long and expensive litigation, or in some other mode; nevertheless, bribery and corruption would have done, to some extent at least, their work, and the due course of justice have been disturbed.”
But it cannot be said that a school board has no authority under our statute to contract for a lightning-rod to a schoolhouse. Section 57, chapter 92, Comp. Laws of 1885, reads:
“The district board shall provide the necessary appendages for the school-house during the time a school is taught therein, and shall keep an accurate account of all expenses thus iucurred, and present the same for allowance at any regular district meeting.”
It is probable that a lightning-rod might be considered a “necessary appendage for a school-house.” In Hemme v. School District, 30 Kas. 377, an appendage to a school-house was construed to include a well constructed on the premises on which the school-house was situated. Mr. Justice Valentine, in that case, referring to the foregoing statute, said:
“Unless this language can be construed so broadly as to authorize the school board to construct a well, or a fence, or a privy upon the grounds upon which the school-house is situated, it would seem that neither the board nor the school district itself has any authority to construct any such improvements. We would therefore think that the legislature must have used the word 'appendage’ in said §25, and also in subdivision 5, §11, art. 3 of said chapter, in a very broad and comprehensive sense, and intended to include these improvements as well as many other things which might come within the general definition of ‘appendages.’ Webster defines the word ‘appendage’ as ‘something added to a principal or greater thing, though not necessary to it, as, a portico to a house.’ Worcester defines the'word as ‘something added, attached, or annexed; a concomitant.’ As before stated, we think the word ought to be construed broadly, so as to include a well constructed on the same premises on which the schoolhouse is situated; and therefore we think the court, instead of instructing the jury that a well is not a necessary appendage to a school-house, should have left the question as to whether it is a necessary appendage, or not, to the jury.”
The case of the Monticello Bank v. District Township, referred to in 51 Iowa, 350, is not clearly applicable, because it does not appear that the Iowa statute is in terms exactly as our statute.
We think upon the matters presented, that the prisoner must be remanded for trial.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The plaintiff in error, who was plaintiff below, is and has been a resident of Pennsylvania; visiting this state in 1878, he placed a filing under the timber-culture law, upon the northwest quarter of section 26, town 17, range 18, Ellis county, and left the defendant as his agent in charge of the land. It was afterward taken by his agent, the defendant, in his own name, at the local land office, for the purpose, he says, of preventing it from being “jumped” by other parties. The plaintiff, in his petition, asked judgment for $800, the amount he says defendant received for the improvements on the land, etc., which he had sold.
We are precluded from examining the merits of this case under the record, for after comparing the motion for a new trial with the petition in error, we find the only question we can consider is, whether the answer of defendant was sufficient to authorize the admission of the evidence introduced. The petition sets forth in detail the relationship of the parties and the plaintiff’s claim against defendant. Defendant’s answer was a general denial. At the trial he testified to the expenditure of large sums of money for his principal in payment for the cultivation of the land. At the time this testimony was given no objection to its introduction was made, on the ground that no sufficient allegations had been made in his answer to authorize it. While the testimony introduced would not have been proper under a general denial when objection was made to it for that reason, yet if it was admitted without objection, and the action tried and evidence admitted as though the pleadings were sufficient to justify its introduction, it is too late for the plaintiff to make his objection for the first time in a motion for a new trial to the sufficiency of the pleadings.
This disposes of the case; we therefore recommend an affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the condemnation proceedings, B. M. Anderson, one of the appellants, was named as the probable owner of the laud appropriated. The right-of-way was taken from a quarter-section of land occupied as the residence of the family of B. M. Anderson as a homestead. The title of the land was in the wife, Irene E. Anderson. From the award of the commissioners an appeal was taken by both B. M. Anderson and his wife, Irene E. Anderson. B. M. Anderson testified as a witness in the case, at very great length. The railroad company objected to his testifying, and also moved to strike out his testimony, upon the ground that he was an incompetent witness under § 323 of the civil code. This section reads:
“The following persons shall be incompetent to testify: . . . Third, husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterwards.”
In my opinion, the constitutional provision and the statute which forbid the alienation of the homestead without the joint consent of the husband and wife, when that relation exists, do not affect the right of the husband or wife to dispose of the money awarded to either having the ownership and title thereof as compensation for the taking of any part of the land under the law of eminent domain. (Canty v. Latterner, 31 Minn. 239.) In my opinion, condemnation proceedings may be commenced and carried on against the owner of the homestead. The power of the state to appropriate the property is unquestioned, but the right of the owner to be paid for it is secured by the constitution. The power of the state is subject to no restrictions but that of making compensation. The correlative constitutional right to demand and receive the value of the property can only be asserted by the owner. In this case it would seem to me that the party to demand and receive the value of the property is the owner, and that is the wife, Irene E. Anderson, and that- her husband is not a necessary party.
The majority of the court are of the opinion that the appeal was properly taken by both Irene E. and her husband Benjamin M. Anderson, as the premises were occupied as a homestead by them, and therefore that both were joint parties, having a joint interest in the action. Within the letter of the statute, if Irene E. and Benjamin M. Anderson were joint parties and had a joint interest in the action, Benjamin M. Anderson, the husband, was a competent witness. Therefore, in the opinion of a majority of the court the trial court did not err in admitting the testimony of Benjamin M. Anderson. Of course where the title to real estate is really in controversy, the title cannot be proved by oral evidence. (Douglass v. Geiler, 32 Kas. 502.) But the evidence showed that both Irene E. and Benjamin M. Anderson were in possession of the premises, and therefore the title was not in dispute, if, as decided by a majority of the court, the parties were jointly interested.
The other matters discussed are disposed of upon the authority of C. K. & W. Rld. Co. v. Grovier, 41 Kas. 685.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
Joseph Whitaker appealed from the award of commissioners condemning a right-of-way for the Leavenworth, Northern & Southern Railway Company through certain lots owned by him in an addition to the city of Leavenworth. Trial had at the December term of the court for 1887. Judgment was rendered for Whitaker for $1,812.37. The railway company excepted, and brings the case here. Whitaker has filed two motions — one to strike from the files the case-made, and the other to dismiss this proceeding. The petition in error, with a small part of the transcript, was filed in this court on February 23, 1888. The case-made was not settled and signed until July 16, 1888. It was filed in this court on July 20, 1888. At that time the railway company filed its motion for leave to attach the case-made to the petition in error.
We think the motions of Whitaker must be overruled, as the motion to amend the petition in error was filed before the expiration of the year in which the company had the right to commence its proceeding to review the judgment of the trial court. (Civil Code, §§ 139, 556.)
For good cause shown and in furtherance of justice, this court has the power to allow a petition in error to be amended. The motion to amend, by attaching the case-made to the petition in error, will therefore be sustained.
Upon the record as amended and completed, we cannot decide whether there were “any errors of law occurring on the trial,” because of the omission in the motion for a new trial. The motion stated that the verdict was not sustained by sufficient evidence, and that it was procured by the fraud of the prevailing party. This and nothing more. No complaint was made of “any error of law occurring at the trial;” all such errors not referred to in the motion must be considered as having been waived. (Nesbit v. Hines, 17 Kas. 316; City of Atchison v. Byrnes, 22 id. 65; Clark v. Imbrie, 25 id. 424.)
The principal errors complained of by the railway company concern the instructions that were given to the jury. If these instructions were erroneous, they were “errors of law occurring at the trial,” and the attention of the trial court should have been called to them in the motion for the new trial. This was not done. Hence, no complaint can now be made of the instructions in this court.
In the judgment which was rendered it was provided that the railway company should pay the damages assessed, of $1,812.37, within thirty days after the rendition of the judgment, in order to entitle it to the continuous use of its right-of-way through the lots owned by Whitaker. We do not think that this order was within the issues in the case, or proper under the circumstances. On an appeal in condemnation proceedings, the inquiry is limited to the land taken for railway purposes, the value thereof, and the damages sustained by the property-owner by reason of the appropriation of the right-of-way. In this case there was no petition or pleading filed to broaden or widen the ordinary proceeding in an appeal. Whitaker was not attempting in this proceeding to eject the railway company, nor was his appeal taken for any such purpose. If the railway company finds the award of the jury so large as to render it expedient to go around the lots instead of through them, it can decline to pay, and leave the land-owner undisturbed in his possession. (Blackshire v. A. T. & S. F. Rld. Co., 13 Kas. 514.) If a railway company fails to deposit the amount of damages awarded by the commissioners with the treasurer of the county, and upon appeal refuses to give the bond prescribed by the statute, the company has no lawful right to use or occupy land or lots attempted to be appropriated for its right-of-way. Full compensation must be first made in money, or secured as provided by the statute, before any right-of-way can be used or occupied by a railway company. (Railroad Co. v. Callender, 13 Kas. 496.)
If a railway company takes possession of land for its right-of-way, and refuses to comply with the provisions of the constitution and the statute, the latter decision shows the remedy of the property-owner.
While the order as-to the payment of the amount of damages was in our opinion not within the issues of the appeal, it was harmless. It did not prevent the examination of the case in this court, or otherwise harm the railway company. It has spent its force, if it had any, and is now of no effect.
The judgment therefore upon the record as presented must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is whether the judge of the district court of Allen county, at chambers, erred or not in dissolving an attachment. The facts of the case appear to be substantially as follows: On August 5, 1886, the defendants, J. W. McClure and William H. McClure, who were merchants doing business under the firm-name of McClure Bros., in the city of Iola, Allen county, and the city of El Dorado, Butler county, were in an embarrassed condition financially, and by agreement with their creditors the time for the payment of their debts was extended as follows: They gave to each of their creditors three promissory notes, each for one third of the debt due such creditor, due in three, six and nine months. The notes were payable at El Dorado, and were placed in the hands of A. L. Redden of that place, who was to collect the same and pay the amount thereof over to the creditors, and the defendants were to continue in their business, paying to Redden all the money that could be spared from their business. At that time the defendants were owing the plaintiffs $1,479.78, and each note was for $493.26, the first payable on November 5, 1886, the second payable on February 5, 1887, and the third payable on May 5,1887. The first note was paid by Redden at the time it became due. The second note was not paid when it became due, for the reason that Redden did not have a sufficient amount of money belonging to the defendants with which to pay the same. He had received from the defendants enough to pay all the creditors about 35 per cent, of their second notes, which were then due. He immediately notified all the creditors of these facts, and asked for a further extension of time for payment. Nearly all the creditors agreed to such further extension of time, but the plaintiffs refused to do so. The plaintiffs then withdrew their notes from Redden, and on February 23,1887, commenced this action in the district court of Allen county against the defendants, upon the second promissory note; or, in other words, the one due on February 5, 1887. On the same day the plaintiffs filed an affidavit for garnishment, for the purpose of garnishing Redden. On March 15, 1887, the garnishment proceedings as to Redden were discharged and vacated by order of the judge of the district court, at chambers. On March 19, 1887, Redden was appointed judge of the twenty-sixth judicial district, and ceased to further act as the trustee of the parties. On March 25, 1887, the defendants filed their answer admitting the execution of the note sued on, but alleging that it was paid. On April 20, 1887, the defendants executed a chattel mortgage on all their goods to Thomas K. Hanna & Co. and others of their creditors, not, however, including the plaintiffs, to secure the amount of $9,318.30. On April 23, 1887, the plaintiffs procured an order of attachment in this case upon the following grounds, as stated in their affidavit, to wit:
“That said defendants, J. W. McClure and Wm. H. McClure, are about to convert their property, or a part thereof, into money, for the purpose of placing it beyond the reach of their creditors, and have property and rights in action which they conceal, and are about to assign, remove and dispose of their property, or a part thereof, with the intent to defraud, hinder and delay their creditors, and fraudulently contracted the debt and incurred the liability and obligation for which the above-named suit has been brought.”
Immediately afterward the aforesaid order of attachment was levied upon the defendants’ goods as their property, and immediately afterward the goods were replevied by Thomas K. Hanna & Co., and were permitted to remain in the hands of the defendants. On April 26, 1887, the defendants executed a second chattel mortgage upon their goods to others of their creditors, not including the plaintiffs, to secure the sum of $5,686.06; and they also about the same time executed a real-estate mortgage to secure still other debts to others of their creditors, not including the plaintiffs.
On May 13, 1887, the defendants filed a motion to dissolve the attachment, the principal grounds for such dissolution being that the grounds set forth by the plaintiffs in their affidavit for their order of attachment were not true; and on May 14, 1887, the defendants filed an affidavit sustaining their motion, and setting forth that the grounds set forth in the plaintiffs’ aforesaid affidavit for their order of attachment were wholly untrue and false. The motion to dissolve the attachment was heard by the judge of the district court at chambers upon the evidence, on June 8, 1887, and the judge decided the motion on Juue 10,1887, finding “that the grounds laid for said attachment in plaintiffs’ affidavit are not true, and that said attachment was issued wrongfully, and without right or authority of law,” and he dissolved the attachment; and the plaintiffs have brought the case to this court for review.
I. The plaintiffs claim that the defendants’ motion to dissolve the attachment should have been overruled, and the attachment sustained, for the reason that the defendants filed a false answer setting forth that they'had paid the note sued on, when in fact they had not done so. And this claim was made upon the further claim that the filing of such false answer tended to hinder and delay these plaintiffs in the collection of their debt. Of course the filing of a false answer, when it is known to be false, is an inexcusable wrong, but it is not every wrongful act on the part of a debtor, operating to hinder or delay a creditor in the collection of his debt, that will authorize or sustain an attachment. The hindering or delaying of a creditor in the collection of his debt must, in order to be sufficient to authorize or uphold an attachment, be in some manner connected with the disposition of the debtor’s property, as by his assigning it, or removing it, or disposing of it in some other manner, or by his being about to so dispose of it or some part thereof with the intent to hinder or delay his creditors. (Tootle v. Coldwell, 30 Kas. 125; Civil Code, § 190.) In this case there was no attempt or intent on the part of the defendants to in any manner dispose of their property, except for the laudable purpose of paying their debts or of securing their payment.
II. It is also claimed by the plaintiffs that the attachment ought to be sustained on the ground that the defendants executed the aforesaid chattel mortgages. This is certainly not a sufficient ground for an attachment, for these chattel mortgages were executed in the best of faith and to secure a large proportion of the defendants’ creditors, and not with any intent to defraud any of them. (Tootle v. Coldwell, supra.) But in this connection it is claimed that the defendants violated their agreement to use their property only for the benefit of all their creditors, and this by selling the same and depositing the proceeds thereof with Redden. The fact however is, that the plaintiffs themselves were the first to violate this contract, and this long before any chattel mortgage was executed. They withdrew their notes from Redden and commenced this action on one of such notes long before that time; and commenced garnishment proceedings against Redden for the purpose of taking away from him and from the other creditors an amount of money sufficient to pay their own note — the one sued on — although by the agreement the money in Redden’s hands was to be used for the benefit of all the creditors, and although at that time there was only money enough in Redden’s hands to pay about 35 per cent, of the amount then due the creditors.
III. The plaintiffs further claim that the judge of the court below erred in dissolving the attachment, for the reason that the chattel mortgages conveyed the property away from the defendants to Thomas K. Hanna & Co. and other creditors of the defendants, and therefore that the defendants had no sufficient interest in the property to authorize them to make a motion to dissolve the attachment. The defendants, however, continuously had the possession of the property from the first, and continued to dispose of the same for the purpose of paying their debts, and this up to the time when the motion to dissolve the attachment was heard; and all this was with the consent of Thomas K. Hanna & Co. and the other mortgagees; and besides, the plaintiffs have no reason to complain of the order of the judge as to the property, for their entire attachment was vacated and dissolved, and they therefore could not have any right or interest in or to this property or to any other property under such attachment, and it could therefore make no difference to them, so far as the attachment is concerned, as to which should have the possession of the property, the mortgagees or the defendants. But if it could make any difference to the plaintiffs, it would probably be better for them that the defendants should continue to retain the possession of the property instead of the mortgagees, for then the defendants might in the end be able to sell enough of the property to pay all their debts — those which they owe to the plaintiffs as well as those which they owe to the other creditors. If the mortgagees are satisfied to let the defendants retain the possession of the property, the plaintiffs should not complain. This question in effect has already been decided by this court. (Boot & Shoe Co. v. Derse, 41 Kas. 150; same case, 21 Pac. Rep. 167.)
We do not think that the judge of the court below committed any error in dissolving the attachment, and therefore his oi’der in that regard will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The objection that the indictment is not sufficient to sustain the verdict and judgment is fatal to the conviction. The appellants were manifestly prosecuted under § 38 of the crimes act. It provides that—
“Every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, or assault or beat another with a deadly weapon, or by any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish or rob such person, or in the attempt to commit any burglary or other felony, or in resisting the execution of legal process, shall be punished by confinement and hard labor for a term not exceeding ten years.”
The court charged the jury that before they could find the defendants guilty, they must be satisfied that they had made the assault with “ intent to unlawfully and feloniously kill or maim, as charged in the indictment filed in this case against them.” The assumption of the court that the indictment charged an intent to unlawfully kill or maim, is. not borne out by an examination of that pleading. While it charges that an assault was feloniously made with a deadly weapon, it fails to allege a specific intent to kill, maim, ravish, or rob, or any other intent necessary to constitute the crime of which the defendants were convicted. The indictment sufficiently alleges an assault, which is a misdemeanor, but it omits the allegation iMent, which makes the offense a felony. When a misdemeanor is committed with a certain intent jj. becomes a felony, and therefore the specific intent is a material fact to be alleged and proved. The assault may be committed with any one of the several intents mentioned in the statute — that is, to kill, or maim, or rob, or ravish, or an attempt to commit burglary, or in resisting the execution of legal process. The charge, however, cannot be made disjunctively or in the alternative — that is, that the assault was made with intent to kill or ravish, or with intent to rob or maim. It will be readily seen that the gist of the offense consists in the intent with which the assault was committed, and hence that intent must be distinctly alleged and proved. It is a well-settled rule of criminal pleading that when a specific intent is required to constitute an offense, such intent must be averred; and no description of the offense is complete without it. (Wilson v. The People, 24 Mich. 411; Commonwealth v. Boynton, 12 Cush. 500; The State v. Freeman, 6 Blackf. 248; The State v. Card, 34 N. H. 510; Johnson v. The State, 1 Tex. App. 146; Bartlett v. The State, 2 S. W. Rep. 829; United States v. Wentworth, 11 Fed. Rep. 52; Whart. Crim. Pl. and Pr., § 163a; Chitty, Crim. Law, 233.) The allegation in the indictment that the assault was made unlawfully and feloniously, does not remedy the defect. In charging the commission of a consummated offense the omission of a specific intent is not necessarily fatal, where it is alleged to have been done on purpose, of malice aforethought, unlaw fully and feloniously; but where the act is not consummated, and the intent characterizes and forms a part of the offense, then it is clear according to all the authorities that the intent must be alleged. (Commonwealth v. Hersey, 84 Mass. 180, and authorities cited.)
In Commonwealth v. Slack, 19 Pick. 307, it is said:
“So if an offense at common law is by statute punishable with additional severity, when committed with the intention to perpetrate another and greater offense, the criminal intention must be directly averred in the indictment, or the offender cannot be subjected to the additional punishment. It is not sufficient that the indictment concludes contra formam statuti. So if a misdemeanor is declared to be felony when committed with a certain criminal intent, it is not sufficient to aver in the indictment that the criminal act was done feloniously.”
It is intimated that the indictment is sufficient under §§41 and 42, but there is the same necessity for the allegation of intent under § 41 as under § 38, arid it is apparent from the indictment, charge to the jury, and verdict, that the prosecution is not based on § 42. The indictment is a sufficient charge of assault and battery, and it is suggested on the part of the state that if the conclusion is reached that the indictment is not sufficient to sustain the offense of felony, and therefore the sentence of the defendants to imprisonment in the penitentiary at hard labor was erroneous, this court should change the punishment from that suitable to the commission of a felony to such a sentence as would be suitable to the commission of willful assault and battery. This we J cannot do. It is the district court and not the supreme court that is authorized to pronounce the sentence, and to exercise its discretion in determining what punishment between the minimum and maximum penalty should be imposed. The appellants were tried for felony and not for a misdemeanor, and the court failed to charge the jury on the lower degrees, such as assault, and assault and battery. Upon conviction for assault and battery the defendants may be fined in a sum not exceeding $500, or by imprisonment not exceeding one year. We have no means of knowing what punishment the court would have imposed, whether imprisonment or fine, and if a fine, the amount of the same, or if imprisonment, the length of term. We cannot change the verdict nor fix the penalty, and can only reverse the judgment erroneously rendered, and remand the case for such further action as the state may desire to take. That will be the judgment of this court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
B. C. Smith, who was the plaintiff below, and is now the defendant in error, was a member of a copartnership firm of which H. J. O’Brien and E. H. Hudson, the defendants below and the pláintiffs in error, were the other members. Smith, the first-mentioned partner, sued the other two partners for services performed by him, not for the defendants, but for the partnership. Can he maintain the action? It appears from the findings of the court below that the defendants wrongfully dissolved the copartnership, and wrongfully discharged Smith as manager of the partnership affairs; but Smith does not sue for these wrongs. Whether any damages resulted to Smith or not from these wrongs is not shown, nor were the same in issue under the pleadings in the case. The plaintiff simply sued for his services rendered by him to the partnership before its dissolution and before his discharge, and for nothing else. There is no pretense that this action was for an accounting. The defendants, besides interposing their general denial, also set up in their answer an affirmative cause of action; but their claim was only for damages alleged to have resulted from the mismanagement of the plaintiff of the partnership affairs, and they did not ask for any accounting.
But returning to the plaintiff’s case: Can he maintain his action? We think not. The services rendered by him were rendered to and for the partnership, including himself as well as the defendants, and not for the defendants at all as individuals. And the services were to be paid for, not by the defendants, but by the partnership; and they were to be paid for out of the partnership funds, and only out of the profits of the business, to wit, “ one-third of all profits arising from the business, after deducting necessary expenses.” What the compensation for his services is or should be in dollars and cents no one can tell until there shall be a final accounting. If there were no profits, he is not entitled to anything for his services; and whether there were any profits or not has not been shown in this case. The defendants claim that there were none, and that there was a great loss. But even if there were profits, still, as they have never been ascertained, and as the plaintiff himself was a member of the partnership firm, he cannot maintain an action for the value of his services, nor for compensation, except in connection with some kind of proceeding by which a full accounting as between the partners and of all the partnership affairs can be had. This has not been done in the present case, nor has it been asked for by either the plaintiff or the defendants.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal question involved in .this case is with regard to the ownership and status of a certain block or square of ground in the city of Paola, generally known as “Seminary Square.” Originally the land which afterward became the town-site of what is now the city of Paola was Indian land, allotted and belonging to Baptiste Peoria. He was an Indian, and could not sell or convey the land except with the consent of the secretary of the interior. The Paola Town Company was a corporation organized in 1855. (Krutz v. Paola Town Co., 20 Kas. 397; Paola Town Co. v. Krutz, 22 id. 725.) The town company purchased the land from Peoria, and he and his wife executed a deed therefor to the town company on December 13, 1860, and the secretary of the interior approved the same on February 12,1861, and the same was recorded on March 21, 1861. On April 17, 1861, the town company filed in the office of the register of deeds its map or plat of the town, now city, of Paola. This plat shows the land to have been laid out and divided into lots, blocks, streets, and alleys. All the blocks except two were numbered, and were also divided by an alley running through them, east and west, and were also subdivided into lots, and each lot was numbered; but neither of those two blocks or squares above mentioned was divided, or subdivided, or numbered. One of them was marked on the plat “Public Square,” and the other was marked on the plat “Seminary Square,” and they were not designated in any other manner. In 1865 the town company ceased to exist as a corporation, but its affairs were afterward managed by W. R. Wagstaff until they were finally settled. On June 30, 1871, Wagstaff, as agent for the Paola Town Company, executed a quitclaim deed to the city of Paola for the “Public Square,” designating it as “block 34.” This block has been improved and beautified, and has at all times been used by the public as a public square or park. On April 4, 1881, W, G. Krutz and wife executed a quitclaim deed to W. R. Wagstaff and the Paola Town Company for all Krutz’s interest in the Paola Town Company, and on November 27, 1882, Wagstaff, as “manager of the late corporation known as the Paola Town Company,” executed a deed of conveyance to Alfred and Francis M. Wilgus for “ Seminary Square,” designating the same in the deed as “block 25.” On September 3, 1886, W. G. Krutz and wife executed a quitclaim deed for “Seminary Square” to the board of education of the city of Paola, and on the same day the city of Paola by its mayor executed a deed for the same property to the said board of education. Up to the time of the execution of the deed from Wagstaff to the Wilguses, and afterward, “Seminary Square” remained vacant and unoccupied, and not in the actual possession of anyone; but some time afterward the Wilguses took the possession of the square, and planted a large number of walnut trees thereon. Afterward, and about June 15, 1886, the city of Paola took the possession of the square, and inclosed it with a barbed-wire fence; but afterward the Wilguses again got the possession of the same, and they and their successors held the possession thereof up to the time of the commencement of this action. From the time of the filing of the town plat aforesaid up to the time when the town company went out of existence it never exer cised any control over “Seminary Square,” but always treated it as public ground; and after the town company ceased to-exist as a corporation, and up to the time when all its affairs were settled by Wagstaff, who was the general manager thereof, and afterward up to the time when Wagstaff executed the deed to the Wilguses, this square or block was never considered as any part of the assets of the corporation, but was always treated as public ground, to be used for seminary purposes; and up to-that time it was never assessed or taxed, which it would have been if it had been considered private property. Other things occurred after the organization of the Paola Town Company, and up to the time when the company obtained its title to the Paola town-site, which we have not deemed material to this case and have not mentioned. There are still other facts which we have omitted, not deeming them material. Indeed we have mentioned only such of the facts as we thought might possibly have some bearing in the case.
The only question now presented in this ease is, whether this “Seminary Square” belongs to the public for seminary purposes, or whether it belongs to F. M. Wilgus, surviving partner and trustee of A. & F. M. Wilgus. We think it belongs to the public; and as authority for this opinion, see the following cases: Comm’rs of Franklin Co. v. Lathrop, 9 Kas. 453; Comm’rs of Wyandotte Co. v. Presbyterian Church, 30 id. 620; Maywood Co. v. Village of Maywood, 118 Ill. 61; same case, 6 N. E. Rep. 866, and note; San Leandro v. Le Breton, 72 Cal. 170; Weeping Water v. Reed, 21 Neb. 261; same case, 31 N. W. Rep. 797; Scott v. City of Des Moines, 64 Iowa, 438; Reid v. Board of Education, 73 Mo. 295. A seminary is certainly such a public institution that the public may take charge of and operate the same. See our constitution and laws relating to schools and institutions of learning. In the case of Chegary v. Jenkins, 5 N. Y. 378, it is said that-“a seminary of learning is a school, and a school is a seminary of learning.” In the case of Curling v. Curling, 33 Am. Dec. 475, it is held that a “devise to a public seminary is a valid charity;” and see the definitions of the word “seminary” in any of the dictionaries.
It is said, however, by counsel for Wilgus, that the plat filed in the register’s office was not acknowledged by the town company. Now the record is not very clear upon this subject, but even if it is a fact that such plat was not acknowledged, still it can make no possible difference so far as this case is concerned. If the plat was never acknowledged, then the town company and its agents committed a great many violations of law by selling and conveying town lots before such plat was acknowledged. (Laws of 1859, and Comp. Laws of 1862, ch. 24, §5; see also Laws of 1855, ch. 156, §5; and Bemis v. Becker, 1 Kas. 227.) The town company and its agents, from the beginning, sold and conveyed, and continued to sell and convey, town lots from the aforesaid plat, and as shown by such plat, uutil all its lots were sold and the town-site had become a city; and all this took place before Wagstaff executed the aforesaid deed to the Wilguses. And therefore in our opinion the purchasers of the aforesaid lots had the right to believe that the aforesaid block designated on the plat as “Seminary Square” would be devoted to seminary purposes, and that it would forever belong to the public for such purposes. And in our opinion neither the Wilguses nor any ether person or persons claiming under the deed from Wagstaff to the Wilguses have any right to claim that the aforesaid block shall be devoted to any other than public seminary purposes. Besides, see § 28 of the conveyance act of 1868, which is still in force, and which makes all instruments in writing affecting real estate, and which were then recorded in the office of the register of deeds, notice to all persons and competent evidence, although not acknowledged, to the same extent that such instruments would be notice or evidence if the same had been duly and completely acknowledged.
Upon the facts of this case, and the authorities above cited, we think that “Seminary Square” in the city of Paola belongs to the public for seminary purposes; and as the judgment of the court below was rendered upon a different view of the law, such judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 28th day of July, 1888, about 7 o’clock in the morning, the dead body of .Bertha Miller, a woman of medium height, weighing about one hundred and seventy-five pounds, and described as being “very fleshy,” was found in her own house on Hydraulic avenue, in the city of Wichita. This house was on the west side of a street running north and south, faced the east, and consisted of three rooms on the ground floor and one above. The north front room was a sitting-room; immediately south of and adjoining the sitting-room was a bed-room, with a communicating door between them, and in the rear of the bed-room was a kitchen. The dead body of Bertha Miller when first found by a neighbor was lying on the floor of the sitting-room, two or three feet from the door leading into the bed-room, with her head toward that door and her feet extended toward a north window in the sitting-room, face downward, the body fully extended, her right arm extended, with the fist of the right hand clutched, the other arm somewhat under her body. Her hair was very long, and thrown forward. Her face, nose, chin and breast showed distinct marks or indentations of the carpet upon which the body rested. There were no fractures of any of the parts. There were no bruises or marks of a blow about the head. There was a crease or mark about the neck that looked as if it might have been produced by a cord. There were some bruises about the neck, and distinct finger-marks about the neck and shoulders. There was a kind of cut or bruise upon the extended hand. The only clothing upon the body was a chemise and nightgown. There was a bed in the south room, and the bed-clothing was somewhat disarranged. A small revolver was found in the bed, but the record does not show whether it was loaded when found, or had been recently. There was a small tub or tobacco pail sitting in the room, covered by a bed-quilt, and it contained bloody water. There was no blood on the body or about the rooms. One witness testified that he saw some white foam or froth on the carpet close to the mouth of the deceased. The evidence of the only medical witness that was examined was, that the woman had died of suffocation and strangulation; and he added, “In other words, you might say that she had been smothered and held down and strangled at the same time.” He also stated that if a woman of her weight had fallen right on the face, and struck the face and forehead, that would have been sufficient to produce the indentations of the carpet; and that he was not able to state whether these impressions were caused by the falling of the body itself, or by an outward and external force applied after the .body had fallen. When the body was first discovered, and until its removal to the place where the coroner’s inquest was held, the exposed parts were very dark and much congested; but exposure to the air during removal, or some other cause, removed much of the congestion. The doctor was also of opinion from the indications that the finger-marks upon the neck and shoulder were made before death. He first saw the body about nine o’clock in the morning, and thought she had been dead from ten to fourteen hours. The neighbor who first discovered the dead body by looking in the north window of the sitting-room stated that the screen on that window was partially torn off from its fastenings and rolled up. The lower light in. a front window had been broken half out, and the broken glass was lying on the inside of the house on the carpet, but the opening was so small that an ordinary-sized man could not pass through. The kitchen door was not fastened. There was some evidence tending to show that Bertha Miller was troubled with lung disease, and that she had told an acquaintance some time before her death that “she was liable to die” or drop off at any time. She was living alone, having been separated from her husband for about one year before her death. The husband testified that she had lung troubles and female weakness. So far as the record disclosés, there was no robbery of the house at the time of her death; her purse, containing some money, was found, and turned over to the sheriif.
The appellant, Frank E. Wilson, is charged with the murder of Bertha Miller. He had a preliminary examination on the 6th day of September, 1888, and on the 10th day of December following an information was filed against him. The first count charges a willful, deliberate and premeditated killing, by placing a cord or other fabric around the neck; and by drawing it tight and twisting it around did strangle and kill, etc. The second count charges a willful, deliberate and premeditated killing, by means of an assault and throwing the body down, and by pressing the face and nostrils until the deceased was strangled and choked to death. The third count charges a willful, deliberate and malicious killing, by placing a cord or some unknown fabric on and around the neck of the deceased, and by throwing the body on the ground, and by twisting and drawing tight the cord, choking and strangling her to death. At the trial the court stated in the instructions to the jury that the state had elected to stand on the second count. The appellant was convicted of murder in the first degree, and sentenced accordingly. The evidence for and against him may be briefly summarized as follows: Mrs. Mary O’Rourke testified that on the morning of the 28th day of July, between the hours of 9 and 11 o’clock, Frank E. Wilson came to her house on Ellis avenue, and said, “ ‘Have you heard the news"?’ and I says, ‘No; what?’ and he says, ‘They have got Page in jail.’ ‘Page in jail,’ I says; ‘ what for ?’ and he says, ‘For murder.’ And I says, ‘Who?’ and he says, ‘The murder of a woman down on Hydraulic avenue last night, by the name of Miller.’ I says, ‘Frank, I don’t believe it, for Mr. Page was at our house last night until 11 o’clock.’ And he says, ‘It’s so; yes,’ he says, ‘it’s so.’ ‘Yes,’ he says, ‘I have got him now right where I want him. He will get the rope, or the penitentiary for life. He has done enough with me and mine.’ I says, ‘Frank, that is a hard thing to say. A person is always innocent until he is proven guilty.’ ‘Guilty,’ Wilson says; ‘that letter is enough.’ I says, ‘What letter?’ He says, ‘A letter that was found lying by the dead body’s side with his name signed to it — Emanuel Page.’ And I says, ‘Where from?’ And he says, ‘From Kingman, Kansas.’ I says, ‘Frank, did you see that letter?’ He says, ‘Yes, I did.’ And says I, ‘Was you there?’ And he says, ‘Yes, I was.’ ‘Were there many there?’ ‘Yes,’ he says, ‘quite a good many.’ ‘Now take a friend’s advice and keep' your mouth shut, or they will arrest you.’ ”
To understand the force and effect of this evidence, it is necessary to state that Wilson and his wife had been living apart for some time; that the cause of that separation, as alleged by Wilson, was Page’s attention to his wife. Before the time of the death of Bertha Miller, the wife of Wilson had procured a divorce from him, and had married Page. Near the dead body of Bertha Miller a letter was found, that, from the post-marks, had apparently been mailed at King-man, Kansas, and directed in ink to Emanuel Page, Wichita, Kansas, and in pencil, 1024 N. Meade, and 605 N. Market. The letter reads as follows:
“Kingman, Kansas, July 7, ’88. — Old Friend: My luck has run high ever since I left Wichita. I have on hand about $250 in cash, and on night before last succeeded in getting two very fine gold watches. I heard you had left your family. I am glad of that. Let me know if you are still at lumber yard, for I will be down in a few days, and want you to help me to do up Wichita. Let me know if Tom went to Kansas City. Keep things as still as a mouse, and look every way for Sunday. Write immediately. I am yours, and etc.
Gnt.”
It is admitted that the address of this letter is a forgery; that it does not bear the mark of the Kingman post office, or the reception-mark at the Wichita post office; but that these indorsements are stupid imitations of the same. This letter was found by a policeman, and was not made public until after the arrest of Page, and that occurred some time after 12 o’clock of the 28th, and hence it is claimed that Wilson must have had some previous knowledge of the letter. His repeated threats against Page, and his knowledge of the letter before it was made public, are the strong points against him, as elicited by the testimony of this witness. The witness, Mrs. O’Rourke, persisted in fixing the time of this important conversation in the forenoon of the 28th, and between the hours of 9 and 11 o’clock. She stated, however, that Wilson was at her house on the evening of the 28th, and stayed there until about half-past 12 o’clock, and that during his stay they talked about the murder.
On the other hand, Charles A. Parsons, a hardware merchant at 406 East Douglas, testified that Wilson was in his store the morning of the 28th, about 8 o’clock. C. L. Stancel, a clerk in a boot-and-shoe store at 118 West Douglas, testified that to the best of his recollection Wilson was at the store between 8 and 9 o’clock on the morning of the 28th, and went west from there. Mrs. Eliza Bulgamore, who resides on Vine street, in West Wichita, testified that she was well acquainted with Wilson; that he came to her house on the morning of the 28th, a little after 9 o’clock in the morning, and stayed there until after half-past eleven; that she asked him to stay for dinner, but he declined, claiming that he could get to his boarding-house in time for dinner; Miss Nettie Mermot, who resides with Mrs. Bulgamore, corroborated the evidence of that lady in every respect. Thomas Shaw, a music dealer, testified that he was at the house of Mrs. Bulgamore that day about one hour, from 10 to 11 o’clock, and that the defendant Wilson was there all that time. He fixed the date by a reference to his books, he having delivered a piano to Mrs. B. on that day.
J. W. High, a grocery man at 818 East Douglas, said that shortly after 2 o’clock on the 28 th, he saw Wilson passing his door, and knowing him very well, called him in, and told him that he saw by the paper that Page had been arrested; that Wilson came into the store, and High read to him from the Journal the account of the arrest of Page for the murder of Mrs. Bertha Miller.
Mrs. Susan Corn testified that she lived on Hydraulic avenue— on Mosley avenue, at the time of the death of Mrs. Miller; and that Wilson was at her house the next morning after the killing, and had eaten breakfast there; that he said he had killed Mrs. Miller, but he was drinking when he told it at the table. She was then asked by the county attorney, “What did he say?” and answered, “why, I don’t remember what he did say; he was saying something about his wife and Mr. Page, and I couldn’t really tell what he did say.” “ My husband was at the table, and the children — one child going on eleven and one nine. Do not remember the language he used with reference to the killing of Mrs. Miller.” “It was early in the morning — between 7 and 8 o’clock.” “The oldest child was named Kitty Corn, and is now living on Forest avenue; she was at the table and heard the conversation.” “My husband heard the same talk.” “Wilson was drunk.” “I did not testify on the preliminary examination that Wilson said that Jack [meaning Page] and his son murdered Mrs. Miller.” “I do not remember what I did tell.” “He might have said something like that; I don’t remember no more what he did say, it was so long.” “I think Wilson was at our house again in the forenoon of that day.” “I did not state at the examination that Wilson was at our house for supper; it was my husband said so.” The accused, having laid the proper foundation, introduced the notes of Mrs. Corn’s evidence at the preliminary examination, and from them it appears that she stated that Wilson came to her house to breakfast on Saturday morning after the body had been found, and said “that Jack and his son killed the woman; and that they were in jail.” “I had not heard of the killing at that time.” She made no statement about his being drunk, or that her husband and her two children heard the talk, and said she did not remember who were at home.
John Etchley, a witness, testified that just before the fair last fall he had a talk with Mrs. Corn about the Wilson case, in which she wanted to show him an agreement between a detective and her in which she was to have $500. She said that Frank had told her “that he killed Mrs. Miller, and that she might as well tell it; that Frank told her, and that she was going to tell it.” The witness did not see any agreement. The accused then offered evidence tending to show that there were rewards amounting to $1,000 for the conviction of the murderer of Mrs. Miller — $300 by the state, $200 by Sedgwick county, and $500 by Mr. Miller.
John Handley, an engineer, testified that he knew Susan Corn; that he had a conversation with her after Wilson was arrested and put in jail; that he was an acquaintance of Wilson’s, and was going to the jail to see him, and stopped in at Mrs. Corn’s house to see if there were any shirts for Wilson, as Mrs. Corn was doing his washing. He asked her if she had heard anything more about the murder; she said “she had; that they were getting a lot of new evidence against Wilson; that he had said enough in her house the morning after the murder to convince her that he had committed the murder; he said he had killed the woman.” Witness then said to her, “ I want to ask you a fair question: Did he say that he killed that woman?” She said, “No; but if I say that he killed the woman I am to get half the reward-money; and he is just as well off to lay in jail as he is to get out and get mobbed; for if he gets out of jail he will be mobbed anyhow, and he is just as well in there; and if I get half that reward-money it will do me good.” He told her “it was pretty hard to swear a man’s life away for a little money,” and she said, “Yes, but it was pretty hard times, and she was pretty hard up, and it would help her out right smart.”
Mrs. C. A. Handley testified that she was acquainted with Mrs. Corn; called on her sometime in August, after the body of Mrs. Miller was found. “We were talking about the arrest of Wilson, and I asked her if she thought Frank did the crime; she said she didn’t. I told her the detectives were looking for somebody to swear, and she said they talked to her two or three hours, but that she would not swear a lie to save their lives or anybody else.” The contradictory statements of Mrs. Corn, to say nothing of the testimony of Etchley and Mr. and Mrs. Handley, render her evidence unreliable.
Mrs. Wilhelma Christ, who lived on Hydraulic avenue, about eighty steps from the Miller house, stated that at about 2 o’clock on the morning that the dead body was found, she heard some strange noises at Mrs. Miller’s house; the little dog belonging to Mrs. Miller barked, ánd this made her own dog bark, and a short time thereafter two men came along from the direction of Mrs. Miller’s house singing.
Mrs. O’Rourke also testified that on Saturday-evening about lamp-lighting, “A tall, slim man that wore a cap, came to her house inquiring for Wilson;” that Wilson came presently, and she told him of this inquiry, and he went away, but returned in a few minutes, and stayed until half-past 12 o’clock.
Wm. Miller, the husband of Bertha Miller, testified that either on Saturday or Monday after the death of his wife, he found a cord in the stove in the house. The cord was one that he had used to tie the shafts of his buggy, that he had painted and brought home on the Wednesday preceding the death of his wife. He positively identified the cord as being the same one used on the buggy. When he pulled the cord out of the stove some hair came out with it, and it looked to him as if she had been combing her hair, and, taking the loose hair from the comb, had thrown the hair in the stove; the cord was on top of the hair.
J. A. McMahon testified that he was at the house of Bertha Miller on Saturday morning after the body was found; that he made a careful examination of the premises for the purpose of discovering some clews to the perpetration of the crime; that among other things he examined the stove very carefully, and he did this because of some papers he found in there, that had been recently burnt; that at that time there was no cord or hair in the stove. He was with Miller at the house on Tuesday, when Miller claims to have found the cord and hair, and is quite positive that it was not in the stove on the morning the body of Mrs. Miller was found, when he made a careful examination of the stove. On that day (Tuesday) Miller showed him a letter from a young man at Salt Lake City, that Miller claimed to have found under the carpet, and Miller remarked that the intimacy between the young man and his wife was something he-never dreamed of. The name of the young man was Rotan.
Mrs. Miller told Mrs. Minch some time before her death that she had a gentleman friend in California by the name of Wilson, from whom she received letters. The accused had been in California, and returned about one month before the death of Mrs: Miller.
These are the material facts as developed at the trial. It is insisted on behalf of the appellant that it was error to try the accused without having served either him or his counsel with a copy of the information; that there was no arraignment; that the letter addressed to Page was not admissible against the accused without some proof that he wrote it or procured it to be written; and that the court erred in overruling his motion for a new trial.
1. 1. Information— fendantto0" ■certified copy, I. We think that the clerk should have furnished a copy of the information either to the defendant or his counsel at least forty-eight hours before the arraignment. J ° ^ ^ ° This seems to be a positive requirement of the Sf.aju^ made for the benefit of the defendant, and one that he can insist shall be strictly performed. Of ■course it can be waived by pleading and going to trial without objection; but if there was such a waiver the record ought to show it. In cases of this character, embracing the highest crime, the record ought to affirmatively disclose that every ■■statutory step had been duly taken, or that they had been waived by the accused. The record in this case recites an objection by the defendant to trial because of a want of compliance with this statutory command; but it is urged that this ■objection came too late, because before it was made'the jury had been impaneled and sworn to try the case. If the record had shown that the accused had been arraigned, and had announced himself ready for trial, the objection would then have been too late; but there is no recitation in the record that the accused was arraigned, or pleaded to the information.
II. The record fails to show that the accused was arraigned, ■or that he pleaded to the information, or that he announced himself ready for trial, or that he consented to go to trial. After the jury was sworn, he made a motion to be discharged from custody because of the want of service of a copy of the information, and because he had not been arraigned and required to plead. His motion was too broad, but it called the attention of the court to the fact that two very plain requirements of the criminal code had not been complied with. Under these circumstances, the court could have delayed the trial until a copy of the information pacj ;n pjg possession the required time, and should have had the prisoner arraigned and required him to plead to the information.
This case differs from that of The State v. Cassady, 12 Kas. 550, in this: that in the reported case the record affirmatively shows that the accused announced himself ready for trial, and made no objection at any time before conviction, that he had not been arraigned. In the reported case the defendant was charged with larceny only. In this case the accused is charged with the commission of a capital offense, and the record fails to show that he voluntarily went to trial, and does show that he objected to trial because he had not been arraigned. We think that the record in capital cases should affirmatively show that the accused was arraigned and required to plead to the indictment or information.
III. The only other question we shall discuss is the ruling of the trial court on the motion for a new trial. The affidavits filed in support of the motion tended to show this state of facts: That the accused knew that on the night of the death of Bertha Miller he was in the presence and sight of one Kramer until about 12 o’clock of that night; at that time he went up the stairway (with Kramer) that led to his bedroom, went to bed, and remained there until between the hours of 7 and 8 o’clock the next morning; that Kramer remained on the premises during the entire night, be being engaged in business in the store-room immediately under the bed-room of Wilson; that this is about one mile distant from the house of Bertha Miller; that Wilson could not have emerged from his bed-room except down the front stairway adjoining the store-room of Kramer; that Kramer had occasion to go past the bed-room of Wilson several times from 12 o’clock until 7 o’clock next morning, and saw and conversed with Wilson during that time. The accused had two subpenas issued for Jake Kramer, but both were returned by the sheriff of Sedgwick county, “ not found; ” that Kramer’s name is J. E. Kramer; that he did not know when the trial came off. This affidavit of Wilson is supplemented by one from J. E. Kramer, reciting the'facts substantially as detailed by Wilson. The affidavit of Mrs. M. D. Page, the former wife of Frank Wilson, is to the effect that on the evening of the 27th day of July, 1888, at various times during the evening, she saw Wilson sitting in front of the Kramer building, where he slept, and noticed him up until sometime between 11 and 12 o’clock; and that while she was a witness for the state on the trial, she did not communicate the knowledge of this fact to either the accused or his attorneys until after the trial.
The affidavit of J. B. Williams recites that a short time after the arrest of Frank Wilson for the murder of Bertha Miller, two persons in his presence and hearing conspired together for the purpose of convicting the said Wilson, in order to get the reward; that in conversation it was agreed that one of them should confer with Susan Corn and her husband, and propose to them to swear to such facts on the trial of Wilson as would lead to his conviction; that affiant never made these facts known until after the trial.
The affidavit of Wilson shows that, with the exception of Kramer, about whose first name he was mistaken, he had no knowledge of any of these facts until after the trial.
We doubt whether, under all the peculiar circumstances of this case, this proposed evidence can fairly be called cumulative. We are inclined to think that the administration of justice can be better subserved by granting the accused a new trial, than by refusing it. The trial courts should require that in capital cases a copy of the information or indictment should be delivered to the accused or his counsel at least forty-eight hours before arraignment. The positive command of the legislature is reason enough why this should be done. It is not the province of this court to criticise either the wisdom or policy of the legislation, but our duty is to see that such commands are obeyed. There must be an arraignment in such cases at some time before trial, apart from the positive requirement of our criminal procedure. The universal practice of all courts having criminal jurisdiction is, to give the accused an opportunity to plead. It has been almost universally held by courts of last resort that if there has been no arraignment, there is no issue made, and that a conviction under such circumstances cannot be upheld. Eor these reasons, in addition to the showing on a motion for a new trial, we recommend that the cause be reversed, and remanded, with instructions to grant a new trial.
As the case goes back for a new trial, it is not necessary to pass upon the instructions, except to say in a general way that it does not seem to us that there was any evidence that required the trial court to charge upon the subject of accessory or accomplice.
By the Court: It is ordered that the cause be reversed, and remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
The order of the judge of Allen district court dissolving the attachment in these cases will be affirmed, upon the authority of the case of Hosea v. McClure, just decided. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to recover money. Judgment was for the defendant on a cross petition. The plaintiff appeals.
The plaintiff is in the business of making rivets in Chicago. It alleged that between certain dates in 1941 it furnished merchandise to the defendant and that there was still owing it the sum of $615.87. Judgment was prayed for this amount.
The defendant operates a planing mill in Topeka. It alleged by way of cross petition that it had a contract with the government to build certain field desks in accordance with specifications, which specified the size and quantity of rivets needed; that it furnished the plaintiff with a copy of these plans; that it was required to complete the making of the desks within a certain time, all of which was known by the plaintiff. The answer .further alleged that the plaintiff agreed to make prompt delivery of all the rivets needed by defendant for the work; that plaintiff, pursuant to the oral .contract, sent tó defendant certain machines for use in fastening the rivets which were the wrong size and kind, and that the plaintiff sent rivets of the wrong size and shape so defendant was required to expend $320 in making these rivets so they could be used; that plaintiff also agreed to take certain rivets back and defendant paid freight charges in the sum of $14 and that on account of the failure of plaintiff to furnish these rivets promptly the defendant expended $16.48 in telephone calls and telegrams and that defendant returned to plaintiff rivets amounting to $90.44. The answer further alleged that the failure of the plaintiff to furnish a proper machine and the rivets as provided in the oral contract caused the defendant delay in the delivery of the desks and to be penalized by the government at the rate of $60 per day or a total of $1,020, and on account of this failure in its efforts to complete the contract on time defendant was compelled to pay overtime to its workmen in the amount of $480. Judgment was prayed by the defendant for $1,940.92.
In response to a motion by the plaintiff the court ordered the defendant to make its answer and cross petition more definite and certain, and the defendant did so by stating the names of the individuals with whom the oral agreement pleaded in its answer and cross petition was made, and that the plaintiff agreed to make delivery of the machine and rivets in not more than thirty days after the date of the oral agreement.
The reply was a general denial and an allegation that the rivets and the machines had been delivered promptly.
The case was submitted to the trial court without a jury. The court found in effect that sometime prior to December 5, 1940, the defendant bid for the construction of 1,020 field desks, Type III, and 2,000 of another type known as Type II; that the Type III desks were to be made of 5-ply wood and Type II of 3-ply wood; that about December 5, 1940, a representative of the defendant called on the plaintiff in Chicago with blue prints and specifications for these desks; that the representatives of the defendant told plaintiff that it was not versed in the use of rivets, whereupon plaintiff assured defendant that it knew the riveting business and could take care of defendant’s needs and wants with respect to rivets and riveting machines, and the defendant could rest assured that if it got the government contract its riveting machine needs would be taken care of promptly and properly; that the defendant did get the contract and thereafter on December 11, 1940, it wired plaintiff that it had received the contract and requested shipment of about 20 per cent of the rivets and the machines at once, and on December 14, 1940, the plaintiff submitted to the defendant a list of the rivets required for both types of desks; that plaintiff knew that this was a rush job; that after the contract with the government was entered into the defendant started the construction of the desks and the plaintiff entered upon the business of furnishing it with the necessary rivets and machines. The court further found that the defendant had some difficulty in getting the plaintiff to furnish the rivets necessary to construct samples of the two types to be submitted to the government for inspection, but finally they were furnished and it developed that one of the machines furnished to set the rivets did not perform the work for which it was intended and that some of the split rivets furnished for the large desks were not suitable because by reason of their manner of construction the points spread out and did not properly clinch; that the desks were subject to government'inspection and the inspector refused to accept those constructed with these rivets and the defendant notified the plaintiff of this condition about the 28th of February, 1941; that in order that certain unsuitable rivets might be used the defendant reground some of them at an additional cost of $320; that plaintiff was informed that some of the rivets were unsuitable and sent its personal representative to defendant’s place of business sometime between February 28 and March 2; that on March 6, 1941, the plaintiff admitted that the 12/16 rivets and 13/16 rivets originally planned for the large desk were not of correct design, whereupon the plaintiff redesigned the rivets and sent the defendant a supply about March 14, 1941; that the redesigned rivets proving satisfactory were shipped to defendant, the last on April 3, 1941. The court further found that on January 18 the plaintiff shipped a riveting machine; that machine proved unsatisfactory and plaintiff sent its representative to make alterations on the machine; that these were completed and the machines ready for use on January-27, 1941; that under the terms of the government contracts 320 large desks were to be delivered on February 9,1941, and 700 additional large desks on March 11, 1941; that 500 small desks were to be delivered February 9, 1941, and 1,500 on March 11, 1941; that defendant failed to make delivery of the desks within the time specified, and penalties were imposed against the defendant in the amount of $4,174.48; that no desks were delivered to the government under these contracts prior to March 26, 1941, and this was fifteen days subsequent to the time when penalties attached; that a wood production company had brought an action in the Shawnee district court against the defendant in this case for the price of ply-wood furnished the defendant for these desks in the amount of $5,075.80; that this defendant had ' claimed in a cross petition in that action that it had been damaged by failure of the wood company to furnish materials; that this action was settled by the planing mill company paying the wood company $2,500. The court further found that the defendant had paid a $14 freight bill in returning some rivets; that it returned two shipments of rivets that were sent in the amount of $54.85 and spent-$16.48 in telephone calls; that of all the delay chargeable to defendant by the government seventeen days was occasioned by the failure • of the plaintiff to furnish rivets of the proper size and shape for use upon these field desks and the failure of the plaintiff to furnish a machine suitable to such rivets and that the average penalty per day was $56, or a total of $952.- The court further found to the effect that it was impossible to tell from the evidence how much overtime had been paid by defendant and refused to allow anything to the defendant for that claim. The court further found that except for the claim made by the defendant in its cross petition the plaintiff would be entitled to recover judgment against the defendant in the sum of $615.87.
The conclusions of law were that the defendant was entitled to $1,357.33 on its cross petition that from this should be deducted $615.87, the amount of plaintiff’s claim, which would leave a balance of $741.46, for which the court gave judgment for the defendant against the plaintiff.
The plaintiff filed its motion for a new trial and a motion to set aside the judgment and to amend the findings of fact and conclusions of law in various particulars. These motions were overruled. Hence this appeal.
Plaintiff points out -here that the defendant pleaded in its cross petition a contract whereby the plaintiff agreed to furnish rivets. It then refers to the findings of the trial court and argues that these amount to a finding that no such contract was made. Plaintiff argues that under the court’s findings what took place on December 5 was a mere conference and bound no one.
We are unable to reach this conclusion. As has already been noted in this opinion, the court found that on December 5 when defendant called on plaintiff in Chicago it had a blue print of the large desk showing the rivets needed for this desk. The court further found that defendant was assured by plaintiff that if it obtained the contract plaintiff would take care of its riveting needs promptly and properly. We think that this finding when considered with the one wherein the court found that on December 11, 1940, the defendant wired plaintiff for shipment of twenty percent of the rivets followed by a letter of plaintiff submitting a list of the rivets required amounted to a finding that a contract was consummated on either December 5 or December 14, 1940. It makes but little difference which date it was. This in view of the finding -that after the contracts were entered into with the government defendant started making desks and the plaintiff entered on the business of furnishing it with rivets. There was substantial evidence to sustain these findings. As a matter of fact, there was very little conflict in the oral testimony. Most of what transpired between the parties consisted of letters and telegrams about which there was no dispute at all. Under the circumstances the findings of the trial court on the issue of the making of the contract will not be disturbed. See Voiland Painting Co. v. Christman, 138 Kan. 289, 31 P. 2d 17, and Solomon v. Lampl, 135 Kan. 469, 11 P. 2d 1028.
The plaintiff next argues that the conference of December 5, the telegram of December 11 and the letter of December 14, 1940, did not constitute an agreement because the telegram was indefinite as to amount, terms and kind and character of rivets and was an attempt to limit the order to only a small proportion of the rivets needed. We are not impressed with this argument. The defendant’s agents had the blueprints and specifications for the large desk with them at the conference of December 5. The specifications for both types of desks were available to the plaintiff at the office of the army quartermaster in Chicago. It knew how many of each type desk the defendant had contracted to make. This furnished it with as much information as to amount, kind and character of rivets required as was possessed by defendant. All these matters are covered by the trial court’s findings upon substantial evidence. As to terms, .that matter does not appear to have been discussed by the parties in any of the lengthy correspondence that passed between them. Plaintiff went ahead and completed the contract. It brought this action and was credited with the full amount for which it sued. Under such circumstances it cannot now claim there was no contract because the court did not make a finding as to the terms.
The next argument of plaintiff is that there, was no evidence to sustain the allowance of $320 for grinding rivets. The record discloses that the defendant reached a point where it was necessary for it to grind the points on some rivets that had been furnished and which were otherwise satisfactory. There was substantial evidence that this was done, while defendant was waiting for the delivery of proper rivets. There is no dispute as to the fact that about two hours time at fifty cents an hour was spent grinding the rivets for each desk and the rivets were ground for 320 desks and this would make $320 which is allowed for that item.
Plaintiff next argues that the court erred in allowing the damages for seventeen days delay at $56 per day or $952. The contract the defendant had with the government contained the following clause:
“Delays — Liquidated Damages: If the contractor refuses or fails to make delivery of the materials or supplies within the time specified, or any extension thereof, the actual damage to the government for the delay will be impossible to determine and in lieu thereof the contractor shall pay to the government, as. fixed, agreed, and liquidated damages for each calendar day of delay in making delivery, a sum equal to one-fifth of one percentum (% of 1%) of the price of each unit for each day’s delay after the date or dates specified for deliveries.”
The basis of the argument of plaintiff in this connection is that defendant testified and the court found that some delay was occasioned by the failure of the company which was supplying the plywood to get it to defendant on time and the testimony of defendant as to the seventeen days was only an estimate as to how much of the delay was caused by plaintiff, not based upon any exact figures as to the particular dates on which the failure of the plaintiff to furnish the rivets caused delay. This is not quite correct. There was some evidence that the failure of the plaintiff to ship the sort of a riveting machine that would work on these rivets caused thirty days delay. There is also evidence that about four to six weeks delay was caused by the defendant being compelled to wait while the plaintiff manufactured new rivets. The plaintiff knew at the time it entered upon the business of furnishing rivets to defendant that there would be government inspection on the desks; that requirements must be fully met and that it was a rush job and delay would cause liquidated damages to be assessed against the defendant. Under such circumstances it had reason to foresee that its failure to send the proper riveting machine or proper rivets would result in damages and should be held liable for it. See Gulf States Creosoting Co. v. Loving, 120 F. 2d 195, also 25 C. J. S. 493, sec. 28. In the case of Skinner v. Gibson, 86 Kan. 431, this court said:
“It is a general rule that damages may be recovered when they arise naturally — that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.” (S'yl. ¶ 1.)
See, also, Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, and 15 Am. Jur. 447, § 47.
. The plaintiff contends that the court erred in allowing credit for the unsuitable rivets returned, for the telephone and telegraph expenses and for the freight charges in returning the rivets. These were all expenses that the plaintiff’s delay in furnishing rivets caused and were proper items of damage. The plaintiff filed a somewhat lengthy motion asking the trial court to amend its findings of fact in several particulars. It will add nothing to this opinion to discuss those requests item by item for the reason that the theory upon which they were asked has already been discussed. We find no error in the refusal of the trial court to amend its findings. They were all sustained by substantial evidence.
The judgment of the trial court is affirmed. ■ | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a life insurance policy. The policy was for $500' on the life of the insured and provided for the payment of an additional $500 if death of the insured should be accidental. The action was to recover on the latter provision.
The petition alleged the issuance of the policy and that on the second day of November, 1940, the insured died as a result of an accident within the meaning of the policy; that by reason of this death plaintiff was entitled to recover $1,000; that the defendant had only paid him $500 and had refused to pay $500. Judgment was prayed for $500:
The defendant answered by denying first that the death of the insured resulted from bodily injuries caused directly and solely through external, violent and accidental means and further alleged that following the death of insured the defendant had paid plaintiff $507.28, being the entire amount due under the policy; and that plaintiff had executed and delivered to defendant a death claim receipt, which was attached to the answer, and that this receipt was in full settlement of all claims under this policy.
The plaintiff replied that the agent of the defendant had stated to him at the time he paid him the $500 that this was all that was due under the policy and that defendant knew at that time that there was $1,000 due under it rather than $500 and that defendant through its agent had made out the receipt for $507.28 for the purpose of cheating and defrauding plaintiff; that the receipt was signed by plaintiff without having read it and that no consideration passed between the plaintiff and defendant at the time the receipt was given for the amount now claimed by plaintiff and that the defendant had wrongfully concealed from plaintiff that insured died as the result of an accident.
At the close of the evidence of plaintiff, defendant demurred to it on the ground that it failed to prove a cause of action. This demurrer was overruled. After the introduction of defendant’s testimony the issues were submitted to a jury which returned a verdict in favor of the plaintiff. The motion of the defendant for a new trial was overruled. The court also allowed the plaintiff $200 attorney fees. • The appeal is from that judgment and the order overruling the motion for a new trial.
The policy was one with which we are somewhat familiar. On its face it was for a $500 death benefit and contained-the following provision:
“Upon receipt of due proof at the company’s home office that the insured after attainment of age five and prior to the attainment of age seventy, has sustained’bodily injury directly and solely through external, violent and accidental means occurring after the. date of this policy and resulting in the death of the insured within ninety days from the date of such bodily injury, . . . the company will pay in addition to any other sums due under this policy . . . a benefit for death by accidental means equal to the sum insured.”
The evidence disclosed that the insured died on November 2,1940, while undergoing a surgical operation. It also showed that on November 9,1940, the beneficiary, the plaintiff here, signed a document which was denominated at the top “Death Claim Receipt” and in typewriting near the top of this receipt appears the figures $500; then $7.50; then 22^. After the $7.50 is a notation “Voluntary Payment.” After the 22^ there is a notation of “Last Prem.” then the notation in typewriting $507.28. The receipt states that the beneficiary had received that amount “in full settlement, discharge and satisfaction of all claims or demands of every nature against said company, under or arising out of this policy or contract of insurance.”
In his reply the insured, as has been noted, alleged that the company defrauded him by representing to him that $500 was all that was due under the policy when as a matter of fact it knew that $1,000 was due under it and also that there was no consideration for the receipt as to the amount claimed by the plaintiff in this action.
On the trial of the action one of the burdens plaintiff assumed was to prove one or the other of these defenses. He testified that the agent for the company handed him a check at his home for $507.28 and said that the $7.28 was accumulated dividends. At the same time he handed him a receipt which he told him to sign; that plaintiff did not read the receipt but did sign it; that the agent told him that the check was in full of everything that he had coming; that he did not know that the statement to the effect that the payment was in full satisfaction of all claims or demands of. every nature against the company was on the repeipt and that.he would, not have signed it had he known that and that he ¡thought when he signed it it was a receipt on the face amount of the policy. He also testified that he did not know at that time when he signed this receipt what caused his wife’s death and he learned from a doctor sometime later that her death was accidental; that when he learned this he went to see a lawyer and this suit followed.
The doctor witnesses testified that the insured died a few minutes after an operation for the removal of the thyroid gland had commenced. Their testimony was further than an autopsy disclosed that she was afflicted with what they called “status thymicus lymphaticus;” that this was a peculiar and rare disease that is due to, the enlargement of the thymus gland; that all children have this gland at birth; that it usually disappears when an individual becomes an adult, but is occasionally found in an adult, and when it is so found any sudden shock may cause death; and that in this case the cause of insured’s death was the shock of the operation and the fact that she had an enlarged thymus gland, or as the doctors say “status lymphat-icus.” The two doctors who testified were the anesthetist and a specialist who had treated insured prior to the operation. The doctor who was performing the operation was not present at the trial because he was in the armed service. The hospital record signed by him was introduced, 'however. His comment entered on this record was as follows:
“The patient died suddenly on the operating table with apparently insufficient reason.”
The autopsy revealed typical manifestations of the syndrome of “status thymicus lymphaticus.” The insured was referred to the surgeon by the specialist.
It was necessary for plaintiff to establish that he should not be bound by this receipt before he could recover in this action. He pleaded that he should not be bound by it because the agent of the company fraudulently told him at the time he signed it that it was in full settlement of his claim against the company and that the agent concealed from him the fact that there was further liability on the policy by reason of the accidental nature of the death of insured. In order to prove this allegation it was incumbent on plaintiff to prove that the company knew that death was accidental before the check for $507.28 was handed to plaintiff and his signature to the receipt obtained. Counsel for plaintiff does not point out any evidence whatever to prove this fact. We have been unable to find any such evidence in the record. There was a failure of proof on behalf of plaintiff to prove that this receipt was obtained by fraud.
In overruling the demurrer to the evidence the trial court stated that there was no evidence that any consideration was paid plaintiff for the release at the time it was signed by him.
We are unable to reach this conclusion. There was only one liability on the policy. It is true that the liability was to be greater under certain circumstances but all the liability was on the same contract. In fact, the plaintiff had this same idea when he pleaded in his petition that defendant’s liability on the policy was $1,000 and only $500 had been paid.
The defendant tendered plaintiff a check in payment of its liability on the policy. Defendant accepted this check and signed the release in question. There is no evidence in this record that a payment for only a portion of the liability was being made. The amount to be recovered was fixed by the terms of the policy. (See 1 C. J. 515.) It follows that there was a consideration for the release and the demurrer of the defendant to the evidence of plaintiff should have been sustained.
The judgment of the trial court is reversed with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by -
Hoch, J.:
This was an action for possession of real estate brought in the city court of Salina under the forcible entry and detainer statutes (G. S. 1935, 61-1301 et seq.). A motion by defendant to dismiss — in effect a demurrer — was sustained and appeal was taken to the district court where the demurrer was again sustained. This appeal followed.
The questions presented are:
1. Are the Emergency Price Control Act of 1942 of the United States and the regulations issued thereunder with reference to rent control valid and binding upon the courts of this state?
2. Does an action by a landlord to evict a tenant for nonpayment of rent fall within the purview of the price control act?
3. Is a .bill of particulars or petition, which otherwise states a cause of action under Kansas laiy for eviction of a tenant and for possession of real estate, demurrable for the reason that it fails to allege that the notices required by the price control act have been given?
These questions are substantially the same as those considered by this court and this day determined in the case of Ritchie v. Johnson, ante, p. 103, 144 P. 2d 925. They are fully discussed in the opinion in that case, written by Mr. Justice Thiele. We need not here deal with them again at any great length. It will be sufficient to note and consider briefly the special aspects of the instant-case, and to summarize the controlling principles of law involved. Comments here indulged, and authorities cited, are intended, in the main, to be supplementary only.
It is conceded that as far as Kansas statutes are concerned the bill of particulars was good as against demurrer. In it plaintiffs alleged that they were the owners of the real estate described and entitled to its possession; that the defendants were “unlawfully, wrongfully and forcibly” withholding possession from them-; that defendants were indebted to them for past-due rent in the sum of $109.50; that the statutory notice required before instituting action for possession had been duly served upon defendants — copy of such notice being attached — and that none of the defendants was or had been within thirty days prior thereto in the military service of the United States or otherwise subject to the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940. Prayer was for immediate possession and for costs of the action.
Defendants demurred for the following reasons:'
“1 — That the bill of particulars heretofore filed herein fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against defendant.
“2 — That the above named court has no jurisdiction to hear said cause for the reason plaintiff has failed to comply with the O. P. A. regulation in such cases made and provided; that the purported notice heretofore served on defendants was not served on the area rental director within twentyrfour (24) hours after having been served upon the above named defendants.”
In sustaining the demurrer and motion to dismiss the trial court stated that it did so “for the reason that plaintiffs’ petition failed to show on its face that plaintiffs had complied with subsection (b) (1) and subsection (d) of section 1388.586 of the maximum rent-regulation 57 of the Office of Price Administration.”
Before proceeding further it is well to note that subsequent to the trial in the court below the rent regulations involved have been redesignated and their numbering simplified. What was denominated “Maximum Rent Regulation No. 57” became — effective June 1, 1943 — “Rent Regulation for Housing” (8 Fed. Reg. 7322). Section 1388.586 referred to by the trial court is now section 6. (In referring herein to the regulations the current designations will be used.)
The Emergency Price Control Act' (56 Stat. 23, 50 U. S. C. A. 901 et seq.) deals, among other matters, with certain rent controls to be exercised by the federal government, within areas designated as defense-rental areas. (Sec. 902 [b], 50 U. S. C. A.) Saline county, in which the property here involved is located, is a part of such a defense-rental area, under regulations issued by the administrator of the act.
The constitution and laws of the United States made in pursuance thereof are the supreme law of the land (U. S. Const, art. VI) and are binding upon state as well as federal courts. (Claflin v. Houseman, Assignee, 93 U. S. 130, 23 L. Ed. 833, 838.) It follows that regulations issued under the authority of federal law and having the force and effect of law are likewise binding upon state courts. The Federal Register Act of 1935 (49 S'tat. 501, 44 U. S. C. A. Supp., § 301 et seq.) provided for the filing and publication of regulations of federal administrative officers having the force and effect- of law, and further provided that “every document or order which shall prescribe a penalty shall be deemed to have general applicability and legal effect.” (Fed. Reg. Act, sec. 5, 44 U. S. C. A., § 305a.) It further provided that “the contents of the federal register shall be judicially noticed.” (49 Stat. 502, 44 U. S. C. A., § 307.) In any event the provisions of the regulations involved were called to the trial court’s attention, for consideration in passing upon the demurrer, and appellants make no contention that the regulations applicable to the Salina defense-rental area were not duly issued and filed.
The primary questions relating to the constitutionality of the price control act are adequately treated in Ritchie v. Johnson, supra, and need not be gone into generally here. We have there held that the act fixes standards oí administration sufficiently definite to fortify it against attack as a delegation of legislative power; that it constitutes a valid exercise of the war powers of congress; that it does not violate the fifth amendment or other provisions of the federal constitution, and that under its provisions state courts are without jurisdiction to pass upon the validity of regulations duly issued under the act — a special Emergency Court of Appeals, created by the act, being clothed with exclusive jurisdiction over such questions, subject to review by the United States Supreme Court.
Having determined that the price control act and the regulations issued under it are valid and were binding upon the trial court, we now consider briefly the contentions made with reference to distinctive aspects of the instant case.
Appellants urge that the whole purpose of the price control act is to prevent the sky-rocketing of rents and especially to protect the dependents of men in the military service; that in the instant case the monthly rental has been approved by the federal authorities and is in no way involved; that defendants are neither in the military service nor dependents of any persons in such service; that the cause of action is based solely upon nonpayment of rent and that therefore the case falls wholly outside the purview of the price control act.
In the first place, the price control act is by no means limited to properties occupied by men in the military service or by their dependents. The broad purposes of the act, as a war measure, are outlined in Ritchie v. Johnson, supra, and need not be discussed here.
In the second place the act itself not only does not provide that it shall not apply to actions to evict for nonpayment of rent bút specifically provides that: “Regulations, orders and requirements under this act may contain such provisions as the administrator deems necessary to prevent the circumvention or evasion thereof.” (50 U. S. C. A., § 902 [g].) The regulations include specific provisions as to notice in the case of actions to'evict for nonpayment of rent. It is true that the provisions as to notice in paragraphs (1), (2), (3), (4), (5) and (6) of section 6(a) of the regulations appear to relate only to cases where the tenant has continued to pay rent, but section 6 (d) (1)- — both now and at the time of the instant trial— relates to notices in all cases, regardless of the grounds for eviction. At the time of trial the pertinent provisions were:
“(d) (1) Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant. A written copy of such notice shall be given to the Area Rent Office within 24 hours after the notice is given to the tenant.
“No tenant shall be removed or evicted from housing accommodations, by court process or otherwise, unless, at least ten days prior to the time specified for surrender of possession and to the commencement of any action for removal or eviction, the landlord has given written notices of the proposed removal or eviction to the tenant and to the Area Rent Office, stating the ground under this section upon which such removal or eviction is sought and specifying the time when the tenant is required to surrender possession.
“Where the ground for removal or eviction of a tenant is nonpayment of rent, every notice under this paragraph (d) (1) shall state the rent for the housing accommodations, the amount of rent due and the rental period or periods for which such rent is due.” (Italics supplied.)
The landlord was and is only relieved from the necessity of serving such notices upon the rent area office if he has prior thereto secured a certificate from the administrator authorizing him to “pursue his remedies in accordance with the requirements of the local law.” (Sec. 6 [b] [1].) It was not alleged nor is it now contended that such a certificate had been issued in this case.
It was not for the trial court to consider whether it was necessary to include in the regulations a requirement as to notice where the sole ground for eviction is nonpayment of rent. It was the function of the administrator to determine whether such'provisions were necessary in order to make effective the broad purposes of the' act and to prevent its evasion. Citizens or courts may disagree with the administrator’s views and may be burdened, fairly or unfairly, by some of the regulations adopted to enforce the act which congress deemed necessary in prosecution of the mighty struggle in which the nation is now engaged, but the regulations must stand and be observed, subject only to the administrative relief and the judicial review provided in the act.
In this connection it may also be well to note that the regulations in no way preclude eviction for nonpayment of rent. Section 6(a) specifically recognizes such right. The only requirement is that the rent area director be notified that action is to be begun — presumably for the purpose of protecting the act against evasion.
All that remains to consider is whether failure to serve notice on the rent area director was entirely a matter of defense to be raised by answer. In other words, whether the question was raised by demurrer. This question is also answered in Ritchie v. Johnson. Since no tenant may be evicted unless the requirements as to notices have been complied with, it follows that a pleading which fails •to allege such compliance lacks an element essential to judgment and therefore fails to state a cause of action. In addition to the textbook statements bearing upon the question and cited in Ritchie v. Johnson we add the recent case of Johnson v. Swanson, decided by the superior court of Washington on March 5, 1943 (O. P. A. Service [Pike & Fischer] 622:89), which is directly in point, the syllabus reading:
■ “The requirement of section 6 (d) of the maximum rent regulations, that notice be given to the area rent office before institution of an eviction action, is mandatory and a complaint in an eviction action which fails to allege compliance with the section fails to state a cause of action.”
(See, also, to same effect Kinkopf v. Martoni, an Ohio court of common pleas case, decided September 11, 1942; O. P. A. Service [Pike & Fischer] 622:95; and Hamrick v. Dufford [1943], 71 Ohio App. 552, 50 N. E. 2d 566.)
The demurrer was properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
In this action the State Highway Commission seeks to recover damages for the destruction of a bridge on a public highway. The judgment in the district court was for the replacement cost of the bridge less depreciation for the period of time it had been in use. The commission appeals.
The defendants make some complaint regarding rulings of the trial court in permitting the plaintiff to amend its petition after the trial and with respect to the legal effect of such amendments but, since there' was no cross-appeal, those complaints will be disregarded and the pleadings will be treated as if no amendments had been made.
Allegations of the amended petition can be summarized in substance as follows: On December 13, 1939, plaintiff owned a steel and wood bridge, referred to as a “pony truss” pin-connected span resting on masonry abutments, which was a part of State Highway K-8 and located over and across Middle Beaver creek in Smith county and had, as authorized by G. S. 1939 Supp. 8-5,123, prohibited traffic thereon of a weight of more than six tons; on such date a large semitrailer truck, owned and operated by defendants, Clarence G. Stadler and Emery W. Stadler, who were insured by defendant, National Mutual Casualty Company, while loaded greatly in excess of the amount permitted by the commission under its weight posting limits for the bridge in question, was negligently and carelessly driven into and upon such bridge with the result it was broken, bent, demolished and ruined to the commission’s damage in the sum of $2,094.49. .
Defendants’ answer denied negligence in the operation of its truck and alleged the bridge because of its age and bad state of repair collapsed without fault on the part of the defendants or their driver, but, in their opening statement although denying other acts of negligence alleged in the amended petition they admitted their truck was driven upon the bridge while loaded in excess of the weight limit permitted by the commission and conceded their action in that respect caused the collapse of the bridge and injury thereto about as alleged by plaintiff in its amended petition. • . ■
The cause was submitted to the court, a jury having been waived. . At the trial the plaintiff’s undisputed evidence disclosed the bridge had recently been repaired, it was serving the needs of the public, its collapse was caused by the operation of defendants’ truck and the only way to replace it was to build a new structure. There was evidence from which the trial court might have concluded the collapse of the bridge was caused by the truck, either as it approached from the south on the wrong side of the road and struck the southwest batter post or as it was driven upon such bridge loaded in excess of the weight it would carry without collapsing. In fact the last situation was admitted by defendants. Experts for both parties testified as to cost of replacement of the bridge, defendants’ witness estimating that cost at $1,633.31 and plaintiffs’ witnesses from $1,655.80 to $2,084.54. Defendants’ expert witness also testified the life of the structure, which was 49 years old on the date of the accident, had a range of from 70 to 100 years. Assuming its life to be 100 years and basing allowance for depreciation on lumber and steel in the structure on the number of years such materials had been a part of it, he estimated, after deducting the amount of depreciation found by him, the present value of the bridge to be $981.24. ’ Assuming .its life to be 70 years, and using the same method, he estimated that value to be $745.59.
On the evidence just related and considerable other testimony, to which we have deemed it unnecessary to refer, the trial court found the cost of replacement of the bridge on the date of its injury to be $1,700, deducted $800 for depreciation on the theory it had been in existence 49 years, and rendered judgment in favor of the commission for $900. As a part of its judgment it expressly found the action was purely a statutory proceeding and refused to allow any recovery whatsoever for consequential damages claimed by the petition. The commission then filed a motion for a new trial and when it was overruled gave notice of appeal.
Briefly stated, appellant’s first contention is that the provisions of G. S. 1943 Supp. 8-5,124 do not limit its right to recover damages for injuries to its highways and highway structures. In other words that it has a common law right of action against those who negligently injure the highways and highway structures of the state and may sue for and obtain such damages as might be recoverable in a common law action notwithstanding the legislature has seen fit to enter the field and by legislative fiat decree what its right of recovery might be under such conditions and circumstances. We do not believe appellant’s position is wtell taken. Reference to earlier statutes dealing with the same subject may be helpful in reaching a proper conclusion. In 1929 the legislature enacted chapter 84, section 5 of which reads:
“Any person who shall willfully or negligently damage a highway shall be liable for the amount of such damages and the state highway commission may prosecute claims or suits for the amount of such damage.”
Certainly after the enactment of this statute it must be conceded whatever common law cause of action existed in favor of a governmental agency for negligent destruction of its highway, and it must go unquestioned that a bridge is a portion of the highway (Cloud County v. Mitchell County, 75 Kan. 750,757, 90 Pac. 286; G. S. 1935, 77-201 [5], and G. S. 1941 Supp. 8-126 [s]), was superseded by the new statutory cause of action for negligence provided for therein. Later the legislature passed Laws of 1931, chapter 244, section 7, prohibiting the overloading of bridges and imposing civil liability for violations of its provisions recoverable by the authorities charged with the maintenance of highway structures. This statute was in no sense a limitation of the negligence statute theretofore enacted and merely imposed an additional liability on users of the highway in cases where they used such structures when their vehicles were loaded in excess of the weight allowed by its provisions. In 1937 both of the statutory enactments just referred to were repealed by the Laws of 1937, chapter 283, known as the Uniform Act Regulating Traffic on the Highways and substituted in their place was section 124, now G. S. 1943 Supp. 8-5,124, which reads:
“(o) Any person driving any vehicle, object, or contrivance upon any highway or highway structure shall be liable for all damage which said highway or structure may sustain as a result of any illegal operation, driving, or moving of such vehicle, object, or contrivance, or as a result of operation, driving, or moving any vehicle, object or contrivance weighing in excess of the maximum weight in this act but authorized by special permit issued as provided in this act. (b) Whenever such driver is not the owner of such vehicle, object, or contrivance, but is so operating, driving, or moving the same with the express or implied permission of said owner, then said owner and driver shall be jointly and severally liable for any such damage, (c) Such damage may be recovered in a civil action brought by the authorities in control of such highway or highway structure.” (Emphasis ours.)
The language of this new statute is broad and comprehensive. On analysis, it can be said it permits the commission to sue in its own name and recover all damages which the highway and/or structure may sustain as a result of overloading and/or any illegal operation, driving or moving of any vehicle, object or contrivance driven upon the highway. Appellant argues its provisions do not contemplate negligence and that the only basis for recovery thereunder is overloading. Here again appellant’s position is not well taken. True enough, the terms of the new act do not specifically impose liability for negligence nor is the word “negligence” to be found in the language used therein. But that is no justification for a claim that negligence was not contemplated by its provisions. The language “illegal operation, driving or moving of such vehicle, object or contrivance” not only contemplates acts of negligence but embraces in its terms so many negligent acts that it is difficult to imagine any illegal operation of a vehicle on the highway which would not constitute negligent operation of such vehicle if injury to the highway resulted, and rare indeed would be the occasion where negligent operation of such vehicle would not be illegal. For illustration, the acts alleged and relied on by the plaintiff in its petition as constituting common law negligence were all illegal under the present act, namely, driving the truck on the wrong-side of the highway (see G. S. 1943 Supp. 8-537), driving at a rate of speed greater than reasonable and proper (see G. S. 1943 Supp. 8-532), driving at a reckless rate of speed (see G. S. 1943 Supp. 8-531). It should be added the commission of one or all of such acts if established by the evidence was sufficient to authorize the recovery of damages under its provisions. We have no difficulty in concluding that the present statute was intended to be all-inclusive ánd embraces within its terms all the acts for which the driver or owner of a vehicle might be civilly liable to the commission in the event while driving on the highway he damages a highway or highway structure. The common law right of action has been superseded by the statutory one and so far as acts of negligence are concerned the commission’s right, of action is limited to such negligent acts as amount to illegal acts under the provisions of the Uniform Act Regulating Traffic on the highways. Common law negligence may now give rise to the statutory cause of action if the act relied on is illegal but it no longer gives appellant the right to rely upon a common law cause of action for negligence. It follows the trial court’s finding the appellant was limited to the relief authorized by the statute and was not entitled to recover anything other than provided for therein was proper.
Reasons given for the trial court’s decision become immaterial and need not be here considered since it rendered a correct judgment under the facts and the law. (City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542; Nebraska Hardware Mut. Ins. Co. v. Johnson, 156 Kan. 756, 137 P. 2d 125.) Nor is it material, since recovery based on overloading was allowed, whether its finding there was no evidence to sustain acts of negligence relied upon by appellant in its petition was erroneous. Recovery under the provisions of the statute is the same irrespective of the character of the acts found to have resulted in the injury. No prejudice resulted to the appellant from such ruling and it would serve no useful purpose to review the evidence to determine its propriety.
We now direct our attention to appellant’s contention the trial court erred in applying an improper measure of damages to the structure itself and in rendering judgment for replacement cost less depreciation. Both appellant and appellees allege there is almost lack of authority on the subject in a case where recovery for destruction of a highway or, highway structure is sought under the provisions of a statute, such as ours, where it is provided the persons causing the injury shall be responsible for all damages which such highway or structure may sustain as a result of conduct prohibited by its language. Our investigation of the authorities discloses they are correct in their statement. Many cases could be'cited dealing with the question of damages recoverable for negligent destruction of toll bridges, railroad bridges and other privately owned structures, also for negligent destruction of public structures where no statute fixing liability is involved. Some are referred to by the parties in support of their respective claims. We find them interesting but because of fundamental differences they are of little help in determining our problem. For the same reason, general principles dealing with the subject and announced in well known legal treatises must be read with the thought in mind that the factual situations involved in each case may vary or change their force and effect. They are, however, interesting as well as indicative and should be noted. Relating to highways 25 Am. Jur. 637, § 341, states the general rule to be as follows:
“The damages recoverable are measured by the expense to which the municipality or other public agency has been put by the act of the defendant and do not include mere inconveniences in the use of the road which do not make it more expensive to be kept in repair.”
With respect to bridges the rule stated in 11 C. J. S., 1137, § 100, reads:
“It has been held that the measure of damages for injury to a bridge' is usually the amount which must necessarily be expended in repairing or restoring it, but in some jurisdictions the party is, by statute, liable to greater damages, as will appear from an examination of statutory provisions and the' decisions cited infra this note. . . .”
While in 8 Am. Jur. 973, section 84, it is stated thus:
“The measure of damages to the owner of the damaged bridge is the cost of repairs necessitated by the injury received, together with a reasonable sum, in case of a toll bridge, for the loss of net profits during the time the bridge cannot be used. Additional costs, however, due to delay or other action by the owner cannot be recovered in such a case.”
Fortunately we are not required to rely upon cases where dissimilar factual and statutory situations exist or upon general principles as stated in law treatises in order to find an expression on which to rely as a precedent in determining the proper measure of damages to be applied in the case at bar. One of the very few cases, in fact the only case we have been able to find, where the court was considering that question under the terms of a statute similar to the one now under consideration is State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20. There the court was discussing the force and effect of Laws of 1931, ch. 244, sec. 7 (G. S. 1935 68-152 [f]), dealing solely with the question of damages resulting to a bridge from excess loading and which, as hereinbefore indicated, was later repealed and included in the language of the statute involved here. To be specific it can be said the language there used with respect to the measure of damages recoverable was identical with that to be' found in the present one. In the opinion in that case Mr. Chief Justice Dawson, in indicating the views of the court on the subject, said:
“It is next argued that the estimated replacement cost of the bridge Was not the proper measure of damages. This particular bridge was out of date, but it did serve the needs of the locality for light loads, and the manner of its destruction was inexcusable, if not criminal. Under the cricumstances, this court is not disposed to lay down any hard-and-fast rule as to the measure of damages. Ordinarily the measure of damages for injury to a bridge is the cost of repairing it (Sewall’s Falls Bridge v. Fisk & Norcross, 23 N. H. 171; West v. Martin, 51 Wash. 85, 97 Pac. 1102, 21 L. R. A., n. s., 324). Included in plaintiff’s claim for damages is an item of $582.40 for expense in maintaining a detour of two miles while the new bridge was being constructed. But the statute only allows a recovery for the damage to the bridge itself — ‘damage so caused to any such structures may be recovered’ is the language of the statute. Nothing under this statute is recoverable as consequential damages.”
It may be, as suggested by appellees, that the foregoing language was intended as a bare statement of the general rule and that it left open and undetermined what the cost of repairing a bridge included when it was considered as the measure of damages to be applied in determining the amount recoverable for the injury. We doubt it, notwithstanding the statement the court was not disposed under the circumstances to lay down any hard-and-fast rule as to the measure of damages. Be that as it may, and conceding the point without laboring it further we have determined without much perturbation, irrespective of what the rule may be elsewhere, that under our present statute which imposes liability for all damages which a highway and/or highway structure may sustain, the proper measure of damages is the actual cost of replacement of such highway and structure in the condition it was in at the time the injury occurred.
We conclude the rule just announced is applicable with the full realization it is not entirely in accord with our decisions, fixing the measure of damages in cases where there is no statute. The situation there is not comparable to the one here involved. Highways and highway structures, when it comes to fixing their actual value, stand in a class by themselves. Their value is something wholly unascertainable by any fixed standards and depends upon a combination of circumstances and conditions. To illustrate, actual value of a bridge to the public depends not only on its original cost, its life expectancy, its present condition and state of repair, and the cost of its replacement, but upon other circumstances, among which are the conditions under which it is being used, the extent of that use, the location of other structures which might or could be used by the traveling public in its stead, the possibility of its removal by the authorities in charge, the availability of public funds for its replacement and the likelihood of its ever being rebuilt if once torn down and destroyed. All these things and others, similar in character, which we might mention if time and space would permit are elements to be considered. It was because of them the legislature saw fit, once liability for the prohibited act was fixed and injury resulted, to specifically designate the liability therefore was all damages sustained. We think our construction that the measure of damages recoverable under the statute is the actual replacement cost of the illegally destroyed structure at the moment of its destruction, is required by the language used in the statute, complies with the intent of the legislature in enacting it, and is the fairest and most equitable rule that could be adopted under all existing circumstances and conditions, keeping in mind the rights of both the public and individual. Other decisions not determinative of our views but which support them, and the opinions of which contain additional reasons not here related for the adoption of the rule announced are Topsham v. Lisbon, 65 Maine 449; J. W. Paxson Co. v. Board of Chosen Freeholders, 201 Fed. 656; West v. Martin, 51 Wash. 85, 97 Pac. 1102; 21 L. R. A., n. s., 324.
Appellees in their brief suggest, in fact concede, a fair measure of damages in a situation where a structure is injured and only partially destroyed is the actual cost of repair, but insist where the structure was wholly destroyed, the fair measure of damages should be actual replacement cost less an allowance for depreciation. We see no room for such distinction. The statute makes none and the purpose sought to be accomplished by its enactment does not justify it. See Southern Ry. Co. v. Black Diamond Collieries, Inc., 9 Tenn. App. 225, wherein it was held:
“The measure of damages for a bridge wholly destroyed and one partially destroyed should be the same as there is no reason for a distinction, the difficulty of restoration in kind being only a matter of degree.” (Syl. ¶ 8.)
Measured by the rule heretofore announced, it is apparent the trial court erred when it rendered judgment for replacement costs less depreciation. It should be noted, however, that it specifically found replacement costs of the structure to be $1,700. This finding was based upon substantial competent evidence and in the absence of an affirmative showing to the contrary, which is not disclosed by the record, we have no right to assume the trial court’s computation excluded items which under the rule could be properly classified as replacement costs. Therefore, its finding with respect to the replacement costs of the structure at the time of its injury must stand, and its judgment would have been proper except for the deduction of the amount allowed for depreciation.
Appellant’s final complaint is that the court erred in refusing to tax against the opposing party costs of out-of-the-county witnesses who were subpoenaed prior to the trial and attended it while in progress. Briefly, the answer to the appellant’s claim is that the conditions of the statute (G. S. 1935, 60-2810) under which witness fees from outside the county might be taxed against any opposing party were not met either before, during or after the trial.
We conclude the judgment should be reversed and the cause remanded with instructions to 'the trial court to render judgment in favor of appellant for its damage in the sum of $1,700. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
Subsequent to the determination of the above entitled cause in which a judgment was rendered in favor of plaintiff for a limited writ of ouster (State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P. 2d 655, rehearing denied 157 Kan. 622, 143 P. 2d 652), the plaintiff filed its motion for determination of the amount of costs. Although the motion makes reference to certain allowances to cover the fee and expenses of the commissioner and of witness fees, as well as to costs entered by the clerk, the purpose of the motion is to have this court make an allowance to the plaintiff and have charged against the defendants as costs, the travel expenses of plaintiff’s attorneys, amounts paid by them for copies of transcripts of the evidence taken before the commissioner, the expense of printing briefs, and an allowance for attorney’s fees. The defendants filed written objections to the allowances sought. For our purposes we note that they object that the items claimed for travel expense, for copies of the transcripts, for printing briefs and for attorney’s fees are each and all illegal and invalid claims for costs, not authorized by any statute, and such allowance would be contrary to the law of Kansas as established by the state statutes and the decisions of this court. The amount sought by plaintiff being substantial, the motion and objections were set for oral argument and the matter has been submitted on oral argument and written briefs.
Although stated in various ways and in diverse cases, this court has repeatedly held that attorney’s fees and expenses of litigation, other than ordinary court costs, incurred by a prevailing party in an action, are not chargeable as costs against the defeated party, in the absence of a clear and specific statutory provision therefor. The following cases are cited as illustrative: Stover v. Johnnycake, 9 Kan. 367 (foreclosure); Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86, 41 L. R. A., n. s., 1130 (fraud); Zimmerman v. McMurphy, 111 Kan. 654, 208 Pac. 642 (damages for corporate mismanagement) ; Nicholson v. Fawley, 112 Kan. 124, 210 Pac. 482 (specific performance); Beck v. Good, 147 Kan. 578, 77 P. 2d 968 (claimed escheated estate). See, also, cases cited in the above opinions. In the early case of Swartzell et al. v. Rogers, 3 Kan. 380, it was held that attorney’s fees were not chargeable as costs and expenses in a partition suit.- Thereafter the statute was amended to provide for their payment. Compare General Laws 1862, ch. 162, § 16 and G. S. 1868, ch. 80, § 628, the latter now appearing as G. S. 1935, 60-2113. In Prest v. Black, 63 Kan. 682, 66 Pac. 1017, and in Warner v. Warner, 83 Kan. 548, 112 Pac. 97, it was held that the fee allowed a guardian ad litem was not costs. These cases were decided .prior to the enactment of Laws 1911, ch. 228, § 1 (now appearing as G. S. 1935, 60-408), which provided that such fees may be taxed and collected as costs.
The action .out of which the present matter arises was one for judgment under the provisions of the code of civil procedure pertaining to quo warranto. In a general way it may be said that such an action lies to determine the right to hold public office, or to determine whether a corporation is legally organized or is abusing its corporate privileges (G. S. 1935, 60-1602) and that when an action is brought by the attorney general to test corporate power the action shall be prosecuted in the name of the state, and where the action is brought by a person to contest a right of office it shall be prosecuted in the name, under the direction and at the expense of such person, and in such case he may claim and recover any damage he may have sustained (G. S. 1935, 60-1603). It is further provided that where the action is to contest right of office, judgment may be rendered for damages sustained (G. S. 1935, 60-1604) and also that where judgment is rendered in favor of a plaintiff he may, under conditions, maintain a separate action for damages (G. S. 1935, 60-1607). Insofar as actions contesting corporate rights are concerned, it is provided the court may give judgment of ouster and may dissolve the corporation (G. S'. 1935, 60-1607) and that if judgment be rendered against a corporation, the court may cause the costs to be collected from the corporation (G. S. 1935, 60-1608). There is no provision in article 16 of the code of civil procedure for any other judgment against a corporation, or providing that expenses of carrying on litigation or for attorney’s fees may be allowed and charged as costs. Under the provisions of article 37 of the code of civil procedure dealing with costs, it is provided that in actions for the recovery of money only or of specific real or personal property, costs shall follow the judgment and in other cases the court may award and tax costs and apportion the same as in its judgment is right and equitable (G. S. 1935, 60-3704, 60-3705, 60-3706). However, there is no provision in this article that expenses of litigation or of attorney’s fees may be taxed as costs.
We take note of authorities cited by the plaintiff in support of its motion. We may cast aside and not discuss various actions for a writ of mandamus for the reason that the code specifically provides that in such an action if plaintiff have judgment he shall recover his damages to be ascertained as provided. (See G. S. 1935, 60-1710.) Whether attorney’s fees and expenses of litigation constitute damages is not here'decided.
Plaintiff also relies on Jansky v. Baldwin, 120 Kan. 728, 244 Pac. 1936, an action in quo warranto. The action was one between individuals to contest a right of office and as shown above was subject to other and different provisions for damages than exist in the instant case. It need not be noticed further. Two other cases are relied on. The first is The State v. Brewing Association, 76 Kan. 184, 90 Pac. 777, and was a quo warranto proceedings to determine the right of a corporation to transact business, wherein it was held that the right could be determined and a receiver appointed to close up the business, pay the creditors and the costs of liquidation. The question of expenses of litigation, as distinguished from costs, or of attorney’s fees for plaintiff, was not discussed. The receivers were directed to report their conduct to the court. The opinion concludes: “Applications for allowances and expenses will be determined upon notice to the defendant.” (1. c. 197.) The records of this court do not show that any allowance was made to the state for any expenses of litigation or for attorney’s fees.
The second case is State, ex rel., v. Oil and Gas Co., 105 Kan. 340, 182 Pac. 547, and was also in quo warranto. Insofar as the opinion discloses there was no controversy concerning, nor any discussion of the right of the plaintiff to recover either expenses of litigation or of attorney’s fees. Plaintiff here places reliance on the concluding sentence of the opinion, that — “The costs of the case, including the fees of the commissioner and attorneys, will be adjudged against the defendant.” (1. c. 343.) Although not disclosed in the opinion, the records of this court show that a receiver was appointed and continued in charge of defendant’s business for a time and that at the termination of the receivership, fees were allowed the receiver and his attorney. Fees were also allowed the commissioner who heard the proceedings in quo warranto, but no fees or expenses of litigation were allowed the state or its attorneys.
It thus appears that the force and effect plaintiff seeks to put upon the quotations from the last two cases above mentioned is not borne out by what occurred.
After full consideration of the entire matter we conclude that the application is within the rule that in the absence of specific statutory authority the successful party in an action may not recover from his adversary his attorney’s fees and expenses of litigation, and there being no such authortiy the plaintiff’s motion must be denied. It is so ordered.
Parker, J., not participating. | [
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Opinion by
Simpson, C.:
In the year 1883, one George F. Miller was doing business in the city of Topeka, in the shadows of a corporation that was called “The Topeka Supply Company.” This corporation was organized in 1880, with no stockholders, but with the usual quantity of titled officials; a few hundred dollars as a basis for business, contributed by Miller, who was sole manager, and the only live person con nected with it. In May, 1883, the Supply Company being insolvent, Miller sold the stock on hand, consisting of plumbing goods and fixtures, to one Louis, for a consideration of $1,800, part of which was paid in cash, and the residue in town lots. Two of these lots, being the ones in controversy, were conveyed by Louis, at the direction of Miller, to Fannie O. Miller, his wife. This conveyance was made to Mrs. Miller on the 24th day of May, 1883, but was not recorded until the 14th day of August, 1883. On the 3d day of September, 1883, these plaintiffs in error commenced an action in debt against the Topeka Supply Company, and caused an attachment to be issued and levied on the lots conveyed by Louis to Mrs. Miller. This attachment was not dissolved, and in the following February they obtained a judgment against the Supply Company for $887.50, with an order that the lots seized by the attachment process be sold to satisfy the judgment. After the lots were attached, on the 22d day of October, 1883, Mrs. Miller sold and conveyed them to one Burns, and on the 23d of September, 1884, Burns conveyed them to the defendant in error, Aaron Eowe.
This action was commenced on the 16th day of March, 1886, to subject these lots to the payment of the judgment. Issues were framed and the cause tried by a jury at the March term, 1887, and a verdict was returned against the Supply Company and Fannie O. Miller. The special findings are that the Topeka Supply Company was not indebted to Fannie O. Miller at the time the lots were conveyed to her; that Burns, the grantee of Mrs. Miller, did not have any knowledge of any fraud on the part of Mrs. Miller or anyone else in receiving the deed of the lots from Louis, nor any actual knowledge of the levy of the attachment upon said lots; that the defendant Eowe, at the time he purchased the lots in controversy, had no knowledge or notice of fraud in making the deed to Mrs. Miller by Louis, nor any knowledge of the levy of the attachment. At the trial the court instructed the jury as follows:
“ 5. I further instruct you that the pendency of the suit of plaintiffs against the Topeka Supply Company, and the levy of the attachment in that suit upon the premises in question, is not of itself constructive notice to the purchaser of said premises from Fannie O. Miller subsequent to the levy of said attachment, of the rights and claims of the said plaintiffs; and if defendant Aaron Rowe, at the time he claims to have purchased said premises, had no other notice of the alleged rights or claims of said plaintiffs, he is not presumed to have had any notice by reason of the pendency of said suit, and the issue and levy of said attachment.”
These special findings and this instruction present the naked question as to whether the purchaser of the lots from Mrs. Miller was bound by a constructive notice of the attachment, or because of lis pendens. Counsel for plaintiffs in error, by a vigorous and extended brief, maintain these propositions, and insist on a reversal for the misdirection to the jury.
I. It is clear to us that when Burns purchased from Mrs. Miller, he was not bound because of lis pendens. One very conclusive reason for this is, that Mrs. Miller was not a party to the original action of these plaintiffs in error against the Topeka Supply Company.
“If, although a suit is pending, the person holding the title to the property has not been made a party to the suit, so that there is a lis pendens against him, a purchaser from the person so holding the title, without actual notice of the claims of the plaintiff in the action, will not be bound by the determination of the suit.”
And again it is said:
“To affect a purchaser who comes in pendente lite, under the holder of the legal title, with the constructive notice of the equity claimed against it, such holder of the legal title must have been impleaded at the time of the purchase.” (Bennett, Lis Pendens, §97, and authorities cited.)
It would be a great hardship, and that public policy upon which the rule of Us pendens is founded would not justify a requirement that a purchaser make investigation outside of the parties to the record, in pending suits, to ascertain the possible rights of persons to the property, other than the parties to the litigation, or that the purchaser should deal with the property at the peril of subsequently having the title of such other persons drawn into the pending litigation. These three things must concur to constitute a litigated condition of the property: First, the property must be of a character to be subject to the rule of lis pendens. Second, the court must acquire jurisdiction both of the person and the property. Third, the property must be sufficiently described in the pleadings. In the ease of these plaintiffs in error against the Topeka Supply Company, the court did not acquire jurisdiction of the person who held the legal title, to wit, Fannie O. Miller. No better illustration of these rules can be found than in the record we are considering. In the first case referred to, in which the attachment was issued and levied, the holder of the legal title from whom the purchase was made was not made a party to the suit. In the case mentioned in 1886, the person in whom the legal title vested at the time of the commencement of the first suit, as well as her grantee, are made parties, and the petition contains a full and complete description of the litigated property, “the res litigiosa.” In the first case a purchaser from the holder of the legal title is not bound by Us pendens. In this case a purchaser from her or her grantee would be bound, because she is a party, because the court has acquired jurisdiction over her person and the property, and because the res litigiosa is accurately described in the petition.
It is fairly said by counsel for the plaintiffs in error that, whatever may be the general rule, this instruction is squarely in the face of § 81 of the code of civil procedure, which provides :
“When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title,” etc.
We had occasion to say in Smith v. Kimball, 36 Kas. 474, that this section was to be construed on the theory that it was designed to embody the doctrine of Us pendens, which has long formed a part of the equity jurisprudence of this country, and to be viewed in the light of the authorities generally on that subject; so that the reasons already stated are sufficient to dispose of this contention and resolve it against the plaintiffs in error. But we can very safely go farther than this, and say that in the original action of the plaintiffs in error against the Topeka Supply Company there is no claim of title made by these plaintiffs in error to the town lots in controversy. That action was on an ordinary debt; it asked for a personal judgment for money only, against the Topeka Supply Company. It was an action to recover money only. There was no hint or suggestion in the record that the title or condition of real estate was sought to be litigated; the subject-matter of the action was the enforcement of personal indebtedness. In the very nature of things it could not be the subject of Us pendens against a purchaser from the legal owner of property attached to secure the moneyed demand who is not a party to the suit. It is probably the law, that although the contention is merely in regard to a moneyed demand, and auxiliary proceeding in rem is resorted to in the same action — as an attachment in aid of the suit at law — there is a lien that is equivalent to a Us pendens, and which may ripen into title by virtue of the result of the litigation. Probably the better view to be taken of such auxiliary proceedings is, that the provisional remedy pursued creates the lien by virtue of a statutory provision, and hence the constructive notice of Us pendens does not apply. Be this as it may, we are content to say that the construction of § 81 of the code claimed in this case is too broad, is not supported by authority, and we cannot adopt it.
II. There is no doubt under ou'r statutes, but that whatever equitable interest the Topeka Supply Company had in these lots was subject to attachment. To what extent are the purchasers from Mrs. Miller bound to take notice of the attachment proceedings ? In this state an equitable interest in land is subject to attachment. (Code, § 222; Bullene v. Hiatt, 12 Kas. 98.) The attachment lien binds only the equitable interest held in the land by the debtor at the time of the levy, and cannot be affected by any subsequent act of the debtor. In this case it must be borne in mind that Mrs. Miller was not a party to the action in which the attachment was issued and levied. It is conceded that the law, as universally held, is, that from the moment an attachment is levied on land to which the legal title or any equitable interest therein vests in a party to the action in which the order of attachment issues, all subsequent purchasers from such party take subject to the attachment lien. The contention in this case is, that a purchaser from a person in whom the legal title vested, but who was not a party to the suit, is bound to take notice of the levy on an equitable interest claimed to be in some other person who is a party to the action. In other words, it is said that the levy of an order of attachment on real estate is constructive notice to the world. The counsel for plaintiffs in error cite the following cases as sustaining their proposition: Frellson v. Green, 19 Ark. 376; Fish v. Fowlie, 58 Cal. 373; Blodgett v. Huiscamp Bros., 64 Iowa, 548; Lacy v. Moore, 6 Cold w. 348; Lackey v. Seibert, 23 Mo. 85; Budd v. Long, 13 Fla. 288; Wright v. Smith, 11 Neb. 341; Bergman v. Sells, 39 Ark. 97; Scarborough v. Malone, 67 Ala. 570. We have very carefully examined all of these cases, and say with great confidence that every one of them discloses the fact that the subsequent purchaser bought from the original debtor, or his grantees, property that before the .purchase had been levied upon by attachment, in an action in which the original debtor was a party. We have found no case that goes to the extent of saying that when A sues B and causes an attachment in that action to be levied upon the property of C, a subsequent purchaser from C without actual knowledge is bound by the attachment lien, or that the attachment levy is constructive notice to purchasers from C.
Counsel seem to claim that the legislature has omitted its duty to make provisions for some kind of notice in cases in which equitable interests are attached. But this is based upon the false assumption that some other or greater necessity for notice is required in the attachment of equitable than of legal interests in real property. Our code permits equitable inter ests in real property to be attached in the same manner, by the same procedure, and to like extent, as legal interests; and if the holder of the legal title to real property, or the owner of equitable interests therein, are not made parties to the action in which the legal or equitable interests are levied upon, the rule regarding subsequent purchasers from either is the same. The truth is, that this case is stronger for the purchaser from Mrs. E. O. Miller than anyone that can be found in the books, because the title to the land attached never did vest in the Topeka Supply Company, nor is there any public record that ever connected that company with it in any respect. Conceding that Mrs. Miller’s title was fraudulent as against the creditors of the Topeka Supply Company, or of her husband (who was not a party to the original suit), still a purchaser from Mrs. Miller, without knowledge of the fraud, would take the title as an innocent purchaser for value. A fraudulent grantee holding only a voidable title may convey an indefeasible estate to an innocent purchaser. While the record of the attachment was security to these plaintiffs in error against a subsequent conveyance of the equitable interest of the Topeka Supply Company, the record of the prior conveyance to Mrs. Miller, whose title appeared to be good,, was security for Burns, the innocent purchaser acquiring title through the deed of Mrs. Miller. (Tarbell v. West, 86 N. Y. 280; Tiedeman, Real Property, § 817.) In a recent case in New Hampshire, Savings Bank v. Mead, 63 N. H. 435, the facts were that Blaisdell, who was insolvent, conveyed the lots through one Brown to his wife, in August, 1876. On the 13th of January, 1879, Mead, a creditor, attached all the real property of Blaisdell, including these lots. April 26, 1880, Mrs. Blaisdell sold and conveyed the lots to Mrs. Perkins, who purchased for value, and without knowledge of adverse claims. Mead sought to do just what is claimed in this case — to hold by virtue of the priority of his attachment lien, and because the conveyance to Mrs. Blaisdell was fraudulent as to creditors. The court say:
“ There was nothing in the record of attachments to indi cate that the estate of which Mrs. Blaisdell held the title was attached, and nothing calling on the plaintiffs to make inquiry. The fact that David Blaisdell’s interest in real estate was attached would not suggest the inquiry whether his wife’s prior title was good, or her right to convey perfect; whether David was owing the debt which Mead’s action was brought to recover, at the time when he conveyed to his wife, or whether the purpose of that conveyance was fraudulent. If the plaintiffs were put upon this inquiry, there would be no limit to which it might not be extended, certainly not within the period within which the statute of limitations would not be a bar. How can a record which raises no doubt and suggests no inquiry be considered evidence to put a party upon inquiry, and charge him with constructive notice ? Having no knowledge of the fraudulent character of David’s conveyance, the grantee of his wife was only bound, as against the attachment, to find out whether upon the records the wife’s title appeared to be valid. Mrs. Perkins and her grantees were not bound to look for a general attachment of all David Blaisdell’s real estate made after the registry showed this land had ceased to be his.”
We see again that this case is much stronger for the purchaser than the one just cited, because neither the Topeka Supply Company nor the husband of Mrs. Miller was shown by the records to have had at any time any connection with these lots, and because neither Mrs. Miller nor her husband were parties to the original action.
In some of the states' there are statutes in force that require the officer who makes a levy of an order of attachment on real estate, to file with the clerk of the court a description of the land levied upon, to be recorded in a “lien record,” or to deposit a description with the register of deeds, to be by him noted on the record. The sole object of such statutes is to give notice to all purchasers that this particular piece of land had been subjected to a lien; and by the express terms of such statutes, entries on the lien record, or notations on the registry of title, are notice to all. But even this legislation is based upon a theory that but for it, attachment levies would not be constructive notice except to subsequent purchasers from parties to the action.
To this suggestion of counsel, “that attachment' takes the property into the custody of the law,” we must respectfully dissent, so far as this particular case is concerned. We make no allusion to a class of cases in which personal property is attached and taken into actual custody and possession by the officer. It is not necessary to consider the effect of such custody in this action. In this case real estate was attached; it was unoccupied. In such a case, it was the duty of the officer who made the levy under the attachment, to leave a copy of the order in some conspicuous place on the lots, or on each lot. This was not done, but a copy of the order was left with Mr. George F. Miller, general manager of the Topeka Supply Company.
We will not now discuss the effect of posting a copy of the order in a conspicuous place on the lots, on subsequent purchasers, as that question is not here. In no event now in mind, is an officer levying on real estate, by virtue of an order of attachment, authorized to take possession of the land. It does not seem to us that these lots were in the custody of the law so as to produce all the usual consequences to people who inter-meddle with it, that generally attaches to property that may be strictly said to be in custodia legis.
In any and every view that we can take of the question, the conviction deepens that the fifth instruction, as given by the trial court, is the law in this state.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring.
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The opinion of the court was'delivered by
Valentine. J.:
The proceeding in this case was an appeal by Linton J. Usher, plaintiff below, defendant in error, to the district court of Leavenworth county, from an award of commissioners condemning a right-of-way for the Leavenworth, Northern & Southern Railway Company over section 24, town ship 10, range 22, in said county. The case was tried before the court and a jury, and the jury returned a verdict in favor of the plaintiff below, Usher, and against the railway company, for $2,517.83. A motion for a new trial was made, and overruled, and judgment was rendered in accordance with the verdict of the jury; and to reverse this judgment the railway company brings the case to this court.
Some of the questions involved in this case are precisely the same as those involved in the case of the same Railway Company v. Whitaker, just decided, and the decision in that case will determine all the questions which are common to both. There are other questions, however, in this case, which are not involved in that, which we shall now proceed to consider.
It appears from the record brought to this court among other things, as follows:
“The plaintiff also offered to prove that, in the construction of the railroad of the defendant, the railroad company had gone outside of the right-of-way appropriated, and excavated on the land of the plaintiff about two acres of ground, and used the earth to make a fill in grading its roadway; to the giving of which evidence the defendant objected, and the court overruled said objection and allowed said evidence to be given and to go to the jury, to which ruling the defendant at the time excepted; and thereupon said plaintiff testified to the jury that said defendant had excavated about two acres of his land outside of the right-of-way appropriated by the defendant, and used the earth in making this road-bed of the defendant.”
The court also refused to give the following instruction to the jury, to wit:
“That in this action the plaintiff cannot recover damages for earth piled on his land outside of the right-of-way, or for earth taken from outside of the right-of-way in the construction of the road of the defendant.”
We think the admission of the foregoing evidence was error, and material error. (The State v. Armell, 8 Kas. 288; Reisner v. Union Depot & Rld. Co., 27 id. 382, 389; C. K. & W. Rld. Co. v. Grovier, 41 id. 685; same case, 21 Pac. Rep. 779.) In the case of Reisner v. Union Depot & Rld. Co., just cited, the following language was used,'to wit:"
“As to the two feet of ground alleged to have been taken outside of the condemned property, we think the court properly excluded any evidence of damages' therefor. The appeal was from the determination of the commissioners as to the value of the land taken, and for all .other damages connected with the appropriation of the portion of the lot so condemned. Beyond the limit of what was condemned, the company had no right whatever, and if it has used other portions of the lot of plaintiff, it is not a matter of inquiry upon an appeal from the condemnation. If the company has taken possession of any part of the lot beyond that which has been condemned, it is a trespasser thereon, and an action of ejectment may be prosecuted for its recovery, or an action for damages may be maintained for all wrongful acts done outside of the right-of-way acquired by the condemnation.”
It is claimed however by Usher, that while the record shows that the defendant below objected to the foregoing evidence, no reason for the objection was stated, and therefore that the court below did not err in admitting the evidence. It is a general rule that where evidence is objected to and no reason is given for the objection, the trial court may overrule the objection without committing error. But this rule we think has at least one exception, and that exception is this: where the reason for the objection to the evidence is so obvious that no one could mistake the reason, no reason need be stated. In such a case both the adverse party and the court are bound to take notice of the reason. We think the present case falls within the exception. The objection in the present case is that the plaintiff was attempting to prove damages other than those occasioned by the railway company’s procuring a right-of-way through his land. And the reason for such objection is obviously as follows: This is purely a condemnation proceeding, instituted, carried on, and conducted between the parties for the sole purpose of having the single question determined as to what is the amount of the loss or injury or damage which the land-owner sustains by reason of the railway company’s procuring a right-of-way for its railroad through his land; and in such a proceeding the land-owner can recover damages only for his loss occasioned by the procuring of such right-of-way. It is obvious in such a proceeding that the land-owner may recover full compensation for his loss in surrendering to the railway company a right-of-way, but he cannot recover in such a proceeding for independent trespasses committed by the railway company or its agents outside of the right-of-way. What other reason for the objection than this could be thought of or imagined ? And this single reason is obvious and unmistakable; and we think the objection to the evidence was valid and sufficient. It is universally held in condemnation proceedings for the assessment of damages for the taking of a right-of-way for a railroad company, that the plaintiff has no right to recover damages for anything taken or done by the railroad company except what may be lawfully taken or done by the railroad company in the proper construction and operation of its railroad. For any wrongs committed by the railroad company inside or outside of the right-of-way, the plaintiff must recover in some other action or proceeding.
There are a number of other question presented in this case, but we hardly think that it is necessary to discuss them.
For the error above mentioned, the judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The motion for a rehearing is denied; but, inasmuch as this case goes back for a new trial, it is thought better to establish the rule or measure of damages the plaintiff is entitled to if she should recover. The plaintiff had, before the conversion of this policy, paid in as premiums $803.60. This included fourteen semi-annual premiums of $57.40 each. Now, to establish this sum as the plaintiff’s measure of recovery, with interest, would be to allow the insured free insurance during the seven years in which premiums have been paid. This rule would not be a correct one, for the insured would have paid no consideration for the insurance during that period of time. The general rule is, as between the insured and the insurance company, when the company’s business is wound up, or a policy is canceled, where an action is brought for damages, that the measure of damages is the difference between the rate of premium paid for the old insurance and what another company of equal credit and standing would charge to issue a new policy on the same life, and the difference in the rates of premium calculated upon his expectancy of life. This is upon the ground that the insured is placed in as good a condition as he was before his policy was canceled. This seems just and equitable. (People v. Life Ins. Co., 78 N. Y. 114; Bell’s Case, L. R. [9 Eq.] 717; Life Ins. Co. v. Binford, 78 Va. 103; Phœnix Ins. Co. v. Baker, 85 Ill. 410.) But it is claimed that this rule is not an equitable one as applied to the facts of this case. It is shown here that Barney, by reason of ill health, is now non-insurable. This, then, presents a different question, a question that has been discussed in many courts, and always a conclusion reached with doubts as to its correctness. The rule above stated we think not equitable as applied to this case, for this reason: the insured, at the time of taking the insurance, does it upon the thought and reason that disease and sickness are likely to happen to him. Insurance would be effected upon few lives, we think, if the insured was certain that no such mishap would overtake him, and that only by old age would death come; and insurance companies insure each individual with this in view. The premiums are figured upon a contingency of accident, sickness, and premature death, and now to apply this rule to this case would leave the plaintiff robbed of a part of the contract against accident and premature decay. (Holdich’s Case, L. R. [14 Eq.] 79.)
Again, to establish a rule that would make the tables of mortality the only evidence of the number of premiums the plaintiff would be compelled to pay, and deduct these premiums from the face of the policy, would practically deprive the plaintiff of the very thing that insurance was taken to guard against, and plaintiff would recover no benefit by reason of the ill-health of the insured which prevents reinsurance. This general rule is held to apply to both classes in the case of People v. Life Ins. Co., 78 N. Y. 114; but that was a case where the insurance company was going out of business, and was closing up its affairs, and the court established that general rule in that ease because of the impossibility and impracticability of ascertaining the state of health of each person holding a policy therein. The defendants in this case stand upon a different footing from the insurance company in that case. Here the insurance company is still carrying the policy, and the defendants will receive the benefit from it. They have elected to appropriate and withhold this policy from the plaintiff, seeking to pay the premiums, and finally to recover at the death of Barney. When they place themselves voluntarily in this position, they cannot complain if the strongest rule is held against them.
It is said in People v. Life Ins. Co., supra: “But the health of the policyholder may since his insurance have become so impaired that his life is not now reinsurable, and hence in his particular case the value to be arrived at upon this basis [speaking of the general rule] would not be the measure of his damage.” So we think as applied to these defendants the rule ought to be such as will give the plaintiff the full value of the policy at the time of its conversion, with interest. How to arrive at this value, as we said before, is a difficult question — one surrounded with uncertainties, depending upon the opinions of persons or insurance companies; but as before said, the defendants voluntarily assumed the risk, and they cannot complain. We therefore think the general rule above stated applicable to this case, with the modification, that if Barney is not insurable by reason of ill-health or accident, that fact may be shown to reduce his expectancy. It may also be shown by experienced and expert insurance men that by reason of the ill-health of the insured a greater rate of premium would be required to reinsure him on account of the shortened expectancy of his life. All these things may be given for the purpose of aiding the jury in determining his expectancy, and in this way determining the actual value of the policy at the time of its conversion; for if the insured’s expectancy has been reduced, in proportion to such reduction the value of his policy has increased. It was said in Bell’s Case, L. R. (9 Eq.) 717:
“As to the lives, it will be assumed, until the contrary is shown, that they are all in a normal state; that no other change has taken place than that which arises from the advance of age. If in addition to that, either from accident or illness, a higher rate of assurance is required, that must be added to the proof. That is one of the things which the office has assured against, and the chance of life has diminished.”
See also Speer v. Life Ins. Co., 36 Hun, 322.
We think the rule is fair and equitable as between the plaintiff and defendants, and therefore recommend that it be adopted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an appeal from the decision of the board of commissioners of Morris county to the district court of that county for not awarding to plaintiffs in error damages arising from the location and opening of a public road through their land. The district court impaneled a jury and tried the cause, the trial resulting in a verdict and judgment in favor of the county. The errors assigned here, and urged by counsel, are the admission of improper evidence; the rejection of proper evidence; a refusal to give certain instructions asked for by the plaintiffs in error; instructions given that were excepted to by plaintiffs in error; and in overruling a motion for a new trial.
On the 8 th day of October, 1884, a petition in due form was presented to the board of county commissioners, asking for the location of a public road, beginning at the northeast corner of the southwest quarter of section 25, township 17, range 9 east, thence east one mile, as near as practicable on the half-section line between Morris and Lyon counties. Also commencing at the southeast corner of the southwest quarter of the northeast quarter of said section, thence north on the quarter-section line, or as near thereto as is practicable, one-half mile, thence east on section line between sections 24 and 25, to the county line. The plaintiffs in error jointly own the northeast quarter on section 25, except twenty acres in the northeast corner of the quarter-section, and a mill-site of nine acres near the center of the quarter-section. The road as petitioned for was located along the south line of the quarter-section and through the center, passing by the mill, and then along the north line to the county road on the east line of the quarter-section. ■ Neither of the plaintiffs in error signed the petition for the location of the road. No service of notice was made on either of them, they being non-residents of the county. A proper bond was given, viewers were appointed, who reported recommending that the prayer of the petition be granted and the road located. At the April session of the board in 1885, the report of the viewers was adopted and the road ordered opened. On the 17th day of April, 1885, Butler, one of the plaintiffs in error, appeared before the board and requested it to go with him and examine for itself as to the public utility of a part of the road. He urged that all that part of the road running north from the mill and thence east along the north line of the quarter-section, was of no public use, and if opened would greatly damage the property of the plaintiffs in error. He then expressly agreed that if the board would reconsider their action in adopting the report, and then amend the order so that the portion of the road north and east of Wright’s mill should not be located and opened, he would be satisfied, and would not claim any damages for that portion of the road along the south line and north to the mill. The board went with him to view the proposed road, and finally assented to his proposition, reconsidering its action, and excluded that portion of the road north and east of Wright’s mill, and adopted the report as to the remainder and ordered the road opened. This reconsidered order was made on the 9th day of July, 1885. This agreement by Butler is fairly established by the evidence. While he denies it, his evidence is overborne by the positive statements of the three members of the board, and by the attending circumstances.
On this state of facts the jury returned a general verdict for the county, without special findings; but the controlling question is, and probably was, as to the validity of the agreement made by Butler. The board of county commissioners acted on this agreement, and made its order locating and opening the road in accordance with its condition, and this was the consideration that the plaintiffs in error received for the waiver of damages. It is now contended that the plaintiffs in error could not waive their damages by parol. Their attitude with respect to this question is such that gross injustice would be done if their contention should be sustained. They have reaped the benefits of the agreement, and it would be palpable injustice to permit them to now repudiate it. It is useless to discuss the abstract question as to whether or not damages occasioned by the location of a public highway through land can be waived by parol by the owner. There is safe ground beyond that question, upon which our decision can securely rest. The agreement has been fully executed on the part of the board of county commissioners. All the benefits that the plaintiffs in error expected from the agreement have accrued to them, and now they will not be heard to say that the agreement is not valid because not in writing. This agreement is a complete bar to any action for damages that could be instituted by the plaintiffs in error. There can be no question of jurisdiction in view of the facts, and all other errors complained of are immaterial, as damages were expressly waived, and the sole object of this action is to recover for them.
We recommend the affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, G.:
Attorneys’ fees are recoverable in an action on the bond for services performed in allowing the dissolution of an injunction. (Underhill v. Spencer, 25 Kas. 71, and authorities there cited.) This bond is sufficient in form to make the obligors responsible for such fees. They probably could not question the mere form of the bond after obtaining a temporary injunction on the strength of having giveu it.
Was the plaintiff the real party in interest? He had at least all the rights of Gilmore, the sheriff, so far as all damages that might have accrued by reason of employing an attorney. It was found substantially, that defendant in the action of Wells v. Gilmore sustained no other damage than the attorney-fees of Judge Nimocks. Gilmore was interested in a part of the fees in the case of The State v. Julian, wherein the execution was issued. He had also an interest in the costs that might be made in Julian v. Gilmore. The plaintiff' in his own right had an-interest that the judgment against ■Julian should be paid out of Julian’s property. He could not have recovered his fees in that action as county attorney from any other source. The county of Barton, at least, would not in any event have been liable to him. There may have been others who may have been interested in the judgment against him besides the plaintiff and Gilmore; and under certain contingencies the county might have had an interest. It would have been liable for a part of the fees in the action of The State v. Julian, if they could not have been made out of the property of defendant, and to that extent the county was interested indirectly in the dissolution of the injunction.
It is found that plaintiff was county attorney when Julian was tried and convicted, but there is nothing to show that he was such officer when the action of Julian v. Gilmore was tried, except the fact that he had been county attorney some time before. The positive finding of the court that he was the attorney of Gilmore at that time, and a failure to find that he was county attorney, are sufficient to overcome the presumption that he still continued to be county attorney.
If there were others that might have been interested in the costs in the ease of The State v. Julian — witnesses for the state, the district clerk, or Barton county — there is no proof that they, or either of them, ever employed or were represented by an attorney at the trial. On the other hand, it is found that plaintiff, as the attorney for Gilmore, appeared and tried the case, and obtained the dissolution of the injunction. We presume his services were just as valuable and required as much diligence, care and ability to represent Gilmore’s interest alone, as though he had been employed by all who had directly or indirectly an interest in the result of the action. Certainly the obligors of the bond cannot now question the authority of the only attorney who appeared for Gilmore, and through whose efforts the injunction was dissolved. No other attorney-fees could have been recovered in an action on the bond, as the plaintiff, as Gilmore’s attorney, alone obtained the dissolution of the injunction. His rights were assigned to plaintiff, and he is entitled to a judgment for his fee under such assignment.
We recommend that the judgment in favor of defendant for costs be reversed, and a judgment for $40 be rendered in favor of plaintiff. ,,
By the Court: It is so ordered.
Horton, C. J., and Johnston, J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case was decided by this court on June 7, 1889, and on June 13,1889, amotion for a rehearing was made by the plaintiff, and on July 3, 1889, such motion was submitted for consideration to this court, and we now proceed to consider the same.
Gray county was organized in July, 1887. Pending the proceedings for its organization, the principal contestants for the temporary county seat were the towns of Cimarron and Montezuma. The votes for temporary county seat as returned by the census-taker were as follows: For Cimarron, 705 votes; for Montezuma, 500 votes; for Ingalls, 88 votes; for Stowe, 1 vote; and for the center of Gray county, 1 vote. Upon the votes as thus returned the governor declared Cimarron to be the temporary county seat. The temporary board of county commissioners divided the county into six municipal townships, as follows: Cimarron, Montezuma, Ingalls, Hess, Foote* and Logan. On October 31,1887, an election was held in the county, including the aforesaid townships, for the purpose, among others, of permanently locating the county seat; and afterward the canvassing board, two of whom were strong partisans of Cimarron, declared the result with reference to the county seat to be as follows:
INGALLS. CIMARRON.
Cimarron.. 45 494
Montezuma 236 30
Ingalls..... 143 17
Hess....... 195 60
Foote...... 25 117
Logan..... 69 35
Totals 713 753
The foregoing statement does not at all express the true result of the election. Of the 753 votes counted for Cimarron, about 100, and probably many more, were never cast at all; and a great many more of them were not cast for Cimarron, but were cast for Ingalls. The frauds causing this false counting were perpetrated principally, if not entirely, by the election officers in the two townships of Cimarron and Foote. Beyond all question Ingalls was in fact chosen by the electors at this election to be the county seat of Gray county. If all the votes actually cast at that election were counted, Ingalls would have a majority. If all the votes cast by the legal voters only were counted, Ingalls would still have a majority. If all the votes cast by such of the legal voters only as were not influenced by bribes, nor by any other corrupt or illegal means/ were counted, Ingalls would still have a majority. And if all the honest and legal votes cast, and no others, were counted, Ingalls would still have a majority. On November 8,1887, a full set of county officers was elected for the county, and after qualifying and entering upon the discharge of their duties, they removed their offices to Ingalls, and have since held them at that place as the county seat. Afterward, and on March 14, 1888, this action was commenced in this court. The action is mandamus to compel the county officers of Gray county to remove their offices from Ingalls to Cimarron as the county seat. The title to the action, giving the names of the parties, is as follows:
“The State of Kansas, ex rel. S. B. Bradford, Attorney General, Plaintiff, v. A. F. Malo, as Sheriff of Gray County, Kansas; J. L. Cailey, as Clerk of the District Court; George B. Antrim, as County Clerk; J. B. Williams, as County Treasurer; E. J. Clark, as Register of Deeds; F. P. Hammer, as Superintendent of Public Instruction; J. R. Brady, as Probate Judge; J. L. Bower, as County Surveyor; George W. Dunn, as County Attorney of Gray County, Defendants.”
The attorney general has taken no part in the action, except merely to permit his name to be used. The pleading of the plaintiff, to wit, the alternative writ of mandamus, alleged the holding of the foregoing election on October 31, 1887; that it was duly and regularly held in the county and in all the election precincts, and that it was legal and valid; and that by it Cimarron became the permanent county seat of Gray county. Additional matters were also alleged sufficient to make out a prima faeie case in favor of the plaintiff and against the defendants. The plaintiff did hot however allege that any fraud or illegality or irregularity occurred at such election in the county, or in any one or more of the election precincts; but, on the contrary, alleged otherwise as aforesaid.
The defendant Bower answered that the allegations of the alternative writ were true, and that he had obeyed the command of the writ. The other defendants answered, admitting substantially all the allegations of the alternative writ, except that the aforesaid election resulted in the choice of Cimarrón as the county seat, and alleged that it resulted in the choice of Ingalls as the county seat; and further alleged that great frauds, illegalities and irregularities were perpetrated by the friends of Cimarron in conducting and carrying on the election in Cimarron and in Foote townships, sufficient to invalidate the election in such townships; and also alleged that several illegal and fraudulent votes were cast for Cimarron in Logan township. All these matters are set forth in great detail in the defendants’ answer.
The only questions presented by the pleadings, as will be seen from an inspection thereof, are as follows: Were there any such frauds, illegalities and irregularities in Cimarron, Foote, and Logan townships as are alleged and set forth in and by the defendants’ answer to the alternative writ?
On July 6, 1888, the court, with the consent and at the suggestion of the parties, appointed F. E. Carringer as a commissioner of the court to take the testimony in the case, which he was to do and report the same to the court by September 15, 1888. On September 4,1888, it was ordered by the court that the taking of the evidence, which was not yet completed, should be closed on or before September 29,1888, and the case was set down for hearing on October 5,1888. When October 5th arrived, the parties were not ready, and by stipulation of counsel the case was continued and the hearing thereof set for January, 1889. By a subsequent agreement of the parties the case was again continued, and set for hearing on April 2,1889. And by order of the court the taking of the evidence, which was not yet completed, was to be closed on or before February 25, 1889. The taking of the evidence was so closed, and the commissioner who took the evidence filed his report thereof in the court on April 1, 1889.
It appears that but little effort was made by the parties to bring the case to an early hearing upon its merits and upon the evidence, but during its pendency three different efforts were made at different times to have the court order, without evidence, that the county officers, or some one or more of them, should remove his office, or their offices, from Ingalls to Cimarron, and there hold the same as at the county seat. The last of these efforts was made in February, 1889, after nearly all the evidence in the case had been taken by the commissioner. Finally April 2, 1889, arrived, and the parties on that day and the next day submitted their case to the court upon the written evidence previously taken and filed in the court. The oral argument was before the commissioners ap pointed under the act offthe legislature of February 24,1887, creating a commission for the supreme court. Each side was given five hours for oral argument. The commissioners heard the oral argument, and read the evidence and the briefs, and came unanimously to the conclusion that by the election held in Gray county on October 31, 1887, Ingalls was chosen by the electors of that county to be the permanent county seat of the county. They made their report accordingly to the judges of the court, and a majority of the judges approved their conclusions, and ordered that an opinion be prepared in the case. This was on May 1, 1889. In pursuance of the foregoing order, Commissioner Simpson prepared an opinion, and afterward submitted it to the judges; and on June 7,1889, the court rendered judgment in accordance with the recommendation of the opinion in favor of the defendants, and denying a peremptory writ of mandamus; the Chief Justice dissenting, and delivering a dissenting opinion. A motion for a rehearing has now been made, and presented by the plaintiff to the court, upon the following grounds, to wit:
“1. That said decision is not sustained by sufficient evidence, and is contrary to law.
“2. For error of law occurring at the trial, and excepted to by plaintiff.”
The second ground for a rehearing is inapplicable, for the reason that nothing was excepted to during the trial.
Upon the oral argument on the hearing of this motion for a rehearing, and for the first time by any party to the action, it was claimed that there was no valid election held in Gray county at the time of the holding of the county-seat election, on October 31, 1887. Up to the time of the hearing of this motion no such claim was ever made by any party to the action, but on the contrary, it was claimed by the plaintiff that the aforesaid election was valid, and that by it Cimarron became the permanent county seat of Gray county; while the defendants claimed that the election was valid, and that by it Ingalls became the permanent county seat of the county. By this new claim, made on the rehearing, it is desired to dis franchise all the innocent and honest voters of Gray county, as well as the dishonest and guilty; and evidently the former class of voters vastly outnumbers the latter class. But even if not, still why should not the honest voters rule? This new claim made now by the plaintiff for the first time is wholly outside of the issues in the case made by the pleadings of the parties, and is evidently made for the reason that it has now been discovered that upon any fair count of the votes that were actually cast at the aforesaid election of October 31, 1887, Ingalls received a clear majority. But still we shall consider the claim. But first there are some preliminary matters to be considered, with reference to frauds and irregularities claimed to have been brought about or committed by the friends of Ingalls, all of which frauds and irregularities, claimed to have been committed on the part of'Ingalls or its friends, are wholly outside of the issues in the case. The only frauds committed by any of the election officers at the election of October 31, 1887, were committed in the two townships controlled by the friends of Cimarron, to wit, in Cimarron and in Foote townships. No frauds were committed by any of the election officers in any of the four townships controlled by the friends of Ingalls. Perhaps, however, we should here make au explanation. It is true that one of the judges of the election in the township of Montezuma had some suspicions on the day of the election that some of the voters were being bribed, both to vote for Ingalls and to vote for Cimarron, but these were only suspicions; and as there were persons friendly to both of these places standing at the polls for the special purpose of challenging every person offering to vote who might not be a legal or honest voter, he did not do any of the challenging. Of course, if a person offering to vote was challenged by any person, then it was unnecessary for any one of the judges of the election to do so; and if none of the regular challengers challenged a voter, all the judges of the election had the right to presume that the voter was a legal and qualified voter. With this explanation we shall not refer to this matter again. In Cimarron township various villainies were perpetrated. Indeed, the returns from that township were false and fraudulent, and largely, if not entirely, forged. They should never have been canvassed by the canvassing board, and perhaps would not have been canvassed except for the fact that two of the county commissioners constituting the canvassing board were strong partisans of Cimarron. On account of the frauds of the election officers and others in Cimarron and Foote townships, the returns from those two townships must be considered as wholly and absolutely worthless as evidence; while, as no frauds were committed by the election officers in the other four townships, and as the election in the other four townships was conducted fairly and honestly, so far as the officers were concerned, the returns from those four townships must be considered as prima facie evidence of what they purport to show, and nothing has been introduced sufficient to overturn or destroy the prima faoie character of these returns from these four townships. But some of the facts which might be inferred from these returns have .been overturned. These matters we shall now consider.
Evidence has been introduced tending to show that individual voters were bribed with money to vote both for Ingalls and for Cimarron, and were influenced by the promised construction of a railroad to vote for Ingalls. The principal persons engaged in bribing and influencing voters to vote for Ingalls were Asa T. Soule and his agents. Soule is a very wealthy man residing at Bochester, New York, and his agents who were engaged in this business are principally, if not entirely, non-residents of Gray county. The bribing on the part of Ingalls was nearly all done in Cimarron township, though some of it was done in some of the other townships. But let the vote of every person voting for Ingalls in Cimarron township and in every other township against which the evidence casts the slightest suspicion of having received a bribe be stricken out, and the result of the election would be precisely the same. Ingalls would still 'have a majority of the votes. Counsel for the defendants stated in the oral argument on the motion for a rehearing that the evidence does not show that more than three of the bribe-takers were influenced thereby to vote for Ingalls, and that a great many of those who received bribes to vote for Ingalls in fact voted for Cimarron. But whether this is strictly true or not, whether many or few of the bribe-takers voted for Ingalls, there were not enough of them who voted for Ingalls to change the result. Let their votes all be stricken out, and Ingalls would still have a majority of the honest votes of the county. The friends of Cimarron also bribed many of the voters of the'county to vote for Cimarron. As before stated, the question as to whether any voter received a bribe or not to vote for Ingalls is a matter wholly outside of the issues in this case.
We come now to the railroad question. It is in effect claimed by the plaintiff that the honest and regular returns made by the honest and faithful election officers of Montezuma township must be treated precisely like the false, fraudulent, and forged returns from Cimarron township ; that if the returns from Cimarron township should be thrown out as not worthy of consideration, so should the returns from Montezuma township be so thrown out. It is unnecessary to say that this is not the law; that election returns from honest election officers cannot be so treated; and that the election returns from Montezuma township prove prima faeie just what they purport to prove, and that every vote shown by such returns must be counted unless it is shown by evidence aliunde and paramount that such vote was illegal or fraudulent. And this remark with reference to the returns from Montezuma township applies with equal force to the returns from Hess township, and also to the returns from Ingalls and Logan townships; but not to the returns from Cimarron and Foote townships, where the election officers themselves so flagrantly and fraudulently conducted the election. But to return to the railroad question: It appears that Soule owns a large interest in Ingalls; also in the First National Bank at Dodge City; also in much other property at Dodge City; also in the Dodge City, Montezuma & Trinidad Railroad Company; and also in much other property in western Kansas. It is shown that Soule stated that if the people along the line of the contemplated railroad would vote for Ingalls for the county seat, he would build or cause to be built that portion of the railroad which is located from Dodge City to Montezuma. It is not claimed that he offered to give the railroad, or any part thereof, or any stock therein, to any person or corporation, public or private, or that he would carry either freight or passengers free cf charge, or that he would carry them for less than a fair compensation, or that he would issue or cause to be issued any free passes. The voters were not to get anything personal to themselves for anything they did or might do. The promise was simply that the railroad should be built through or into their neighborhood, but owned and operated by a private corporation. It is also said that this promise of Soule’s influenced the voters of Montezuma and Hess townships to vote for Ingalls. It. may be that except for this promise Montezuma, with its surrounding country, would have voted for its old rival Cimarron, for the county seat, but it is not likely that such would have been the case. It would probably have mainly voted for Ingalls as it did. There is but little direct cr competent evidence tending to show that any particular voters were influenced by this promise. The evidence principally or largely relied on by the plaintiff with respect to this matter, and copied substantially in one of the plaintiff’s briefs, is the following, which we*quote literally from the record: John H. Kelly says: “I think it [the railroad matter] had a big influence in 28-30 and in 29-30, especially in 28-30. The railroad scheme, in my estimation, transferred in 28-30 from cne-half to three-fourths of their votes.” John A. Headley says, in answer to a question with reference to the supposed influence of the promise in Montezuma township: “ I suppose about 75 per cent.” And in answer to a question with reference to Hess township, says: “Well, I would not know what I would say; about 60, I expect, in Hess township.” G. L. Ensign says: “ If I should answer that to the best of my judgment, would be to say that that arrangement directly and indirectly gave Ingalls from 70 to 85 per cent, of the votes that she got In that country.” S. S. Van Wye says, in answer to questions: “I suppose I would be safe in saying 50 or 60; 50, well, I think I would be safe in saying 50 per cent., to the best of my judgment.” The word “solid” was put into a question by counsel, and not in any answer of the witness. Will any lawyer consider this evidence as competent? Are these witnesses experts ? Have they any special knowledge or means of knowing the secret springs of human action ? Do they specially know upon what particular influences human volitions are necessarily founded ? Have they some special and peculiar means of reading the human heart, and of solving its inscrutable and perplexing riddles ? -Can they look into the innermost consciousness of other beings and tell what is passing there, and testify to the same as experts? Can they view the conflicting passions, emotions, thoughts and feelings of any individual, his loves and hates, his likes and dislikes, the things which attract and repel him, ■and discover which for the time being is in the ascendency or has the mastery, and determine which shall finally govern, or control his actions ? And may these supposed experts testify, not with regard to each individual separately, but with regard to all the voters in the lump, and with regard to all the influences, or the master influences, as they are supposed to operate upon all the individuals collectively and in the lump, and say that 50 per cent, or some other per cent, of the voters were influenced to vote in a particular way ? All this evidence is of course illegal. But if a party may win his case by proving matters wholly outside of the issues in the case, (and this matter concerning the railroad and Soule’s promise is wholly outside of the issues,) then of course he may with equal propriety win his case by the introduction of illegal and incompetent testimony. But let this evidence have its fullest weight. Say that because Soule promised to-build a railroad to Montezuma every voter in Montezuma and Hess townships who voted for Ingalls was influenced thereby to so vote, and ■could not, in the nature of things, have so voted for any other reason, and strike out all their votes, and still Ingalls would have a majority of all the honest votes of Gray county. But on the rehearing, and for the first time by a party, it is said that the honest vote of Gray county must also be thrown out. Now, must the rules of pleading and of evidence be ignored, not for the purposes of justice or of punishing the guilty, but to aid and foster injustice, and to disfranchise the innocent and honest voters ? Mr. Greenleaf says of the rules of evidence : “ The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue.” (1 Greenl. Ev., § 50.) Now, is this first rule of evidence to count for nothing in the supreme court of Kansas? In the four townships controlled by the friends of Ingalls great caution was exercised in the choice of election officers, and by the officers themselves, to see that a fair and honest election should be held, and no wrong further than we have already stated is shown as to any of them, and but little wrong is shown as having been perpetrated by the friends of Ingalls in at least two of them. And are the people of these two townships, as well as all the good people of all the remainder of the county to be disfranchised ? And is all this to be done because of matters left wholly outside of the issues in the case, and where the evidence supposed to show the same is largely illegal and incompetent, and where the question of such disfranchisement was not raised by a party until on a motion for a rehearing ? As to the time for raising a question of this kind, or for raising questions generally in the supreme court, see the case of The State v. Coulter, 40 Kas. 673; 20 Pac. Rep. 525. But it makes no difference in this case that the question of the invalidity of the election was not raised by a party until on the motion for a rehearing. Even if it had been raised at the beginning and by the pleadings, still the decision would have to be the same, and in favor of the defendants; for under the facts of this ease the election was valid, and a majority of the votes, and of the honest and legal votes, of the county was in favor of Ingalls.
We have not in this opinion gone extensively into the details of the aforesaid county-seat election. This was sufficiently done by Commissioner Simpson; and certainly no claim can be reasonably made, considering the facts of the case, that he treated the side of the plaintiff unfairly, or the side of the defendants with any greater leniency than it deserved, or than he did the side of the plaintiff.
The foregoing opinion is principally a reply to the dissenting opinion of the Chief Justice, filed on the original decision of this case; although it also answers as a reply to the briefs and arguments of counsel for plaintiff on their motion for a rehearing. But since the foregoing opinion was prepared, the Chief Justice has prepared another dissenting opinion, in which he quotes detached portions of the evidence, and makes statements concerning the evidence. We have quoted but very little of the evidence in our opinion, for the reason, principally, that the evidence is very voluminous, being sufficient, if copied in full, to fill three or four or more volumes of the Kansas Reports. Even that portion of the evidence which tends to sustain our views, with the necessary comments thereon, would probably, if placed in this opinion, swell the same to several volumes. Also much of the evidence is conflicting and contradictory, and some of it is false; and to quote it in detached, isolated and selected fragments, or to quote only such portions of it as tend to prove only one side of the case, would be very unfair and misleading. We have attempted to give, not detached fragments of the evidence, nor the evidence of only one side, but we have attempted to give what we think the whole of the evidence proves; and this we have done after carefully weighing it all — the contradictory and conflicting as well as all the other evidence; and we have attempted to harmonize the evidence as best we could. ■ The small amount of the evidence which we have quoted literally was quoted because of the following statement found in the previous dissenting opinion of the Chief Justice, to wit:
“If, however, it be said that the votes of Montezuma and Hess townships should be counted for Ingalls, and thereby permit a fair share of the votes of Gray county to decide the county seat, then I answer, the testimony shows that a very large per cent, of the votes received by Ingalls in these townships were transferred to that town by the promise of the chief owner of Ingalls to build a railroad free of cost east and west through and across these townships. James H. Kelly testified that this railroad scheme transferred from one-half to three-fourths of the votes of those townships. John A. Headley testified that seventy-five per cent, of the voters of Montezuma township were transferred to Ingalls in consideration of those propositions, aud about sixty per cent, in Hess township. G. L. Ensign testified that the arrangement for the building of the railroad gave Ingalls directly and indirectly seventy to eighty-five per cent, of all the votes it got in the country. S. S. Van Wye testified that he preferred Cimarron, but the prospect of getting a railroad influenced his vote for Ingalls. He further testified that he thought the prospect of getting a railroad without bonds was the influence which made the vote in Montezuma township almost solid for Ingalls.”
Much more of the evidence relied on by the plaintiff is incompetent; and in the light of the other evidence much of it is wholly false. It may be that many persons in Montezuma and Hess townships were influenced by the railroad proposition to vote for Ingalls, but it is not so shown by any competent evidence. There was not competent evidence sufficient to prove that more than two or three persons were so influenced, and perhaps not that many. There-are many reasons other than the railroad proposition why the people of Montezuma may have voted for Ingalls: as, the former rivalries and feuds existing between Montezuma and Cimarron concerning county lines, stage lines, county seat, etc.; and also the relative location of the different towns, roads, etc., may have had much to do with the matter. More than a month before the election, (which was on October 31, 1887,) and about September 22, 1887, the town of Montezuma was withdrawn as a candidate for the county seat.
The bond testified to by G. L. Ensign as having been given by Soule to build a railroad, was, as we understand, merely a bond to build a railroad; and there was nothing in it concerning Ingalls, or the county seat, or the election; nor were these things even mentioned therein. Now, must this promise of Soule to build a railroad to Montezuma necessarily disfranchise all the legal and honest voters of Gray county? Must it necessarily disfranchise all the legal and honest voters of In-galls and Logan townships, where hardly the slightest fraud could be imputed to any of the friends of Ingalls? Must it necessarily disfranchise all the legal and honest voters of even Montezuma or Hess township? Is it the law that when some man promises to build a railroad iu a county, and asks the voters to vote for a certaiu place as the county seat, that the voters of that county are then and forever afterward, while such promise remains, barred and disqualified from removing their county seat to such place? But as we have before stated, this question is unimportant, so far as this case is concerned.
Nearly one thousand pages of the evidence were taken by the commissioner, Mr. E. E. Carringer, prior to September, 1888, and hence the parties must have known at that time that Ingalls was, upon any fair count, elected to be the county seat of Gray county; and hence the several efforts that were made from that time on to have the court order that the county officers should remove their offices from Ingalls to Cimarron before the court had any opportunity to see the evidence.
There are many statements in the dissenting opinion with reference to what took place and as to what was shown by the evidence, which we do not at all concur in or agree to. On the contrary, we think they are wrong. Everything said concerning “killers,” or guns, or arms, so far as the same affect the election as against Ingalls, is wholly irrelevant to this controversy, for there is not the slightest room in this case for even a pretense that any person that desired to vote for Cimarron was prevented from so doing, or was in any manner or to any extent intimidated, “bulldozed,” or molested. Besides, the returns from Cimarron township show that at least one hundred more votes were cast in that township than they had legal voters, and that all the votes there cast except forty-five, were cast for Cimarron. The only difficulties and embarrassments thrown in the way of voters exercising their rights at that election were such as were inaugurated and interposed by the friends of Cimarron in the townships of Foote and Cimarron,, to embarrass the friends of Ingalls.
Commissioner Simpson in -his opinion stated that the returns from Cimarron township could not be considered at all: first, because of the great frauds of the friends of Cimarron and of the election officers; second, because of the frauds of the friends of Ingalls. This second reason he mentioned as an “additional reason.” In other words, as both the friends of Cimarron and the friends of Ingalls and the election officers all committed great wrongs, the election returns cannot be considered at all, either in favor of Cimarron or in favor ofIngalls. Is there anything so very bad in this ? Any other decision than the one we have made in this case would, we think, not be in the interest of justice or of fair elections, but would be directly the opposite.
If we should confine ourselves to only the facts proved within the issues of the case as made by the pleadings, then it must be conceded that beyond all doubt Ingalls was elected to be the county seat of Gray county; and certainly the defendants have never expressly waived their right to have the consideration of the case confined strictly within the issues made by the pleadings. In their first and principal brief and abstract, filed at the time of the submission of the case on April 2, 1889, and which seems to have been the first brief or abstract filed in the case by any party, they discuss nothing but the issues in the case; and in their other brief, filed later, they do but little more than to discuss the issues; and on the hearing of the motion for a rehearing they insisted upon their right to have the case considered only upon the issues presented by the pleadings, although they claimed that it could not make any difference in the final result even if everything in the case should be considered; and we think so too, and have considered everything. Now, passing over the question concerning the issues as a matter of no consequence, then upon the merits of the case, taking all the evidence' — the three or four thousand pages, not mere fragments — and considering it all, conflicting, contradictory, truthful, and false — and har monizing all of it as best we could, it must certainly be held that Ingalls was surely elected to be the county seat. It received a maiority of all the J ° ^ votes actually cast, a majority of all the votes cast by legal voters, and a majority of all the votes cast by honest voters. And this is really where we have' placed the decision. The motion for a rehearing in this case will be overruled.
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Opinion by
Simpson, C.:
The Kansas City & Southwestern Railway Company commenced this action in the district court of Johnson county on the 28th day of March, 1887, to enforce the specific performance of the following contract, to wit:
“ Know all men by these presents, that we, Philip Conboy, in consideration of one dollar and the benefits to be derived from the construction of its railroad, do hereby agree, upon demand, at any time within six months from the date hereof, to convey to the Kansas City & Southwestern Railway Company, its successors or assigns, by a good and sufficient deed, upon receipt of said sum of money, a strip of land fifty feet in width on each side of the center line of the railroad of said company as the same is now or shall hereafter be located over and across the following-described land in Johnson county, Kansas, to wit: The northeast quarter and the southeast quarter of the northwest quarter of section eight, township fifteen south, range twenty-five east; the above amount to be paid when said depot and side-track are built as provided on back of this contract, the same to be used for railroad purposes only.
“Witness our hands and seals, this 9th day of June, 1886.
[Signed] Philip Conboy. (Seal.)”
[Indorsed:] “The conditions of this contract are such that it will be void if the said Kansas City & Southwestern Railway Company shall not by January 1, 1887, erect a depot to cost not less than twelve hundred dollars, within eighty rods of the point where said railway crosses the south line of section five, township fifteen south, range twenty-five east, county of Johnson, state of Kansas; also a side-track not less than 100 feet in length, and stock-pens on said side-track.”
The petition alleges that the railroad company had complied with all the conditions of the contract on its part; that during the construction of its line the defendants were occupying the premises as a residence, and knew it was so constructing its line in pursuance of said contract, and that they did not object, but consented thereto. The company prays for a conveyance in accordance with the terms of the contract, and tenders the sum of one dollar as therein specified, as a part consideration. The defendants answer by a general denial. At the September term, 1887, the case was tried by the court, but special questions of fact were submitted to a jury, and special findings were returned as follows:
BY PLAINTIFF.
“1. How far from the line of the railroad, as constructed through the farm of the defendant, Philip Conboy, was the dwelling-house occupied by the defendants while the railroad was in process of construction through the said farm ? A. Three-quarters of a mile.
“2. How large a farm was the farm of Philip Conboy, through which plaintiff constructed its railroad ? A. Three hundred and twenty acres of land.
“ 3. When did Sarah Couboy first learn that the railroad of the plaintiff was being constructed through her husband’s farm ? A. Three days after it commenced work on said farm.
“4. Did she, after learning that the railroad of the plaintiff was being constructed through the said farm, and before the work of construction through said farm was completed, notify the plaintiff or any of its agents that she objected to the construction of said railroad through said farm ? A. No.
“ 5. When did Sarah Conboy first learn that her husband, Philip Conboy, had contracted with the plaintiff for the right-of-way through said farm ? A. Two months after the plaintiff commenced work on defendants’ farm.
“6. Did she, after learning of said contract, notify the plaintiff that she objected thereto ? A. No.
“ 7. When was the railroad constructed through said farm ? A. In the summer and fall of 1886.
“ 8. At the time the defendant Philip Conboy was requested to execute a deed to the plaintiff for the right-of-way, did the plaintiff, by its agent, C. W. McCracken, inform him that plaintiff was ready to fulfill the contract if it was not fulfilled in any respect; and did said Conboy then specify wherein the contract had not been fulfilled ? A. No.
“9. Was the contract substantially complied with by the plaintiff, and if not, state fully wherein it was not. A. Yes.
“10. If the jury, in answer to the 4th and 5th questions of the defendants, say that the money mentioned in the contract was not paid or tendered, then state the reason why it was not. A. Because defendants would not deed to plaintiff the right-of-way through defendants’ farm.”
BY DEFENDANTS.
“1. Were said lands on the 9th day of June, 1886, the homestead of the defendants ? A. Yes.
“2. Did Sarah Conboy have knowledge of, and did she consent to (either or both) her husband, Philip Conboy, executing on the 9th day of June, 1886, unto said railway company the written contract set forth in plaintiff’s petition ? A. No.
“3. Has the money consideration for executing and delivering said written contract expressed therein been paid to said Philip Conboy? A. No.
“4. Was said money consideration tendered to said Philip Conboy prior to the commencement of this suit (March 28, 1887)? A. No.
“5. Was a deed demanded of or from said Philip Conboy within six months from June 9, 1886? A. No.
“6. Had the railway company constructed the cattle-pens called for by the contract by January 1, 1887? A. Yes.
“7. Had the railway company constructed a depot building at a cost of not less than twelve hundred dollars, at the point designated in the contract, by January 1, 1887? A. Yes.
“8. Had the railway company constructed the cattle-pens called for by the contract at the time of commencing this suit (March 28, 1887)? A. Yes.
“ 9. Had the railway company constructed a depot building at a cost of not less than twelve hundred dollars at the point designated in the contract, at the commencement of this action (March 28, 1887)? A. Yes.
“ 10. Lid the railway company demand a deed of or from Sarah Conboy at any time prior to the commencement of this action, March 28th, 1887? A. No.”
The trial court also made special findings as follows:
“1. Philip Conboy executed and delivered the written instrument, with the conditions thereon indorsed, as set forth in the plaintiff’s petition herein unto the said defendant company.
“2. Sarah Conboy is the wife of Philip Conboy, and she did not join her husband in the execution of the same.
“3. The premises in the instrument described were at the time and now are the place of residence, and part of said premises is occupied as the homestead of defendants with their children.
“4. Sarah Conboy never consented, to the construction or location of said railroad over or on or through said lands or any part thereof, or did not know that her husband had executed said contract until two months after the company had begun to construct its road-bed.
“ 5. Plaintiff constructed cattle-pens and cattle-chute, and side-track or switch, and had laid the main track and completed the same prior to January 1, 1887; and erected the depot building, and the same was completed except the flue by the 1st day of January, 1887, and the same cost not less than $1,200.
“6. Plaintiff demanded, prior to the commencement of this action, of the said Philip Conboy only, the deed provided for in said contract, and Philip Conboy refused to execute said deed, giving as a reason for such refusal that plaintiff had not complied with its contract, but did not specify in what respect plaintiff had failed to comply with said contract; and plaintiff’s agent then informed him that defendant was ready to comply with said contract, if it had not done it, but said demand for a deed was not made within six months from June 9, 1886.
“ 7. At the time of demanding said deed plaintiff did not tender or offer to defendants, nor either of them, the money consideration expressed in said contract to be paid by plaintiff to defendants before executing said deed.
“8. Plaintiff tendered to defendants the sum of one dollar in silver, on the trial of this cause, and the defendants severally refused to accept or receive the same.
“ 9. Sarah Conboy first learned of the plaintiff constructing its railroad across said homestead three days after it commenced work on road-bed, and made objection to the men at work thereon.”
The legal conclusions of the trial court are as follows:
“ 1. Plaintiff is entitled to a good and sufficient deed of conveyance from the defendant Philip Conboy forthwith for the strip of ground described and provided for in said written contract set forth in plaintiff’s petition in this action.
“ 2. Plaintiff is not entitled to such conveyance as against or from said Sarah Conboy, wife of said Philip Conboy.”
The judgment is as follows:
“1. It is therefore ordered, adjudged and decreed by the court here, that the said Philip Conboy make, execute, acknowledge and deliver, within ninety days from this date unto said plaintiff a good and sufficient deed, conveying to said plaintiff railroad company the strip of ground described in said contract set forth in plaintiff’s petition herein, and that upon failure so to do then this decree to stand as and for such conveyance at law and in equity.
“2. That plaintiff have and recover of and from said defendant Philip Conboy its costs in this behalf expended, taxed at $-, and that execution issue therefor after the lapse of ninety days from this date.
“3. That defendant Sarah Conboy go hence without day, and that she have and recover of and from said plaintiff railroad company her costs in this behalf made and expended, taxed at $-, and that execution issue therefor after the lapse of ninety days from this date.”
The railway company alleged in its petition that Conboy and wife “at the time of the execution of the right-of-way contract, and still are, occupying said lands as a residence.” Conboy and wife in their answer deny each and every allegation in the petition, except as to their marriage relation, and that said lands were and are their place of residence and homestead. The jury find in answer to special interrogatories that the land consisted of three hundred and twenty acres, and that at the date of the execution of the right-of-way contract, the land was the homestead of Conboy and wife. The trial court in the third special finding states “that the said premises in the said instrument were at the time and are now the place of residence, and part of said premises is occupied as the homestead of said defendants with their children.”
It is clear that by the decisions of this court in the case of Pilcher v. A. T. & S. F. Rld. Co., 38 Kas. 516, and others, that the contract for the right-of-way across the homestead is void, because not signed by the wife. But the pleadings, the findings of the court and jury, the evidence, and the decree, all fail to designate what part of the land is occupied or claimed as a homestead. The pleadings, findings and evidence all agree that there are three hundred and twenty acres of land, or two quarter-sections, but we are not advised on which quarter-section the dwelling-house is located. If we could determine the location and extent of the homestead, we could so modify the judgment as to conform to our views as to the ultimate rights of all parties; but in the absence of such a showing about the homestead, we are powerless to do this. We are reasonably well satisfied that the railroad company has substantially complied with all the conditions of the contract upon its part. It is too plain for dispute, that the defendants below are not entitled to hold the three hundred and twenty acres of laud as a homestead. Hence the t. , . ... error ot the court below consists in decreeing specific performance for the whole tract, when a part of the right-of-way contract, being that over the homestead, is void as to both Mr. and Mrs. Conboy. For this error we recommend that the cause be reversed, and remanded for further proceedings.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the insured under an automobile liability policy to recover attorneys’ fees from the insurer. Plaintiff, Randolph Leonard, prevailed and the defendant, Maryland Casualty Company, appeals.
Appellant had refused to defend a wrongful death action brought by Maggie Garrett, widow of John W. Garrett, the deceased, against Leonard, the insured. That action grew out of an automobile collision between Leonard’s car and the car of another party. John W. Garrett, the deceased, was alleged to have been making a trip with Leonard, and as Leonard’s employee, at the time of the collision. Appellant refused to defend the wrongful death action against the insured on the ground the- petition and the amended petition both affirmatively alleged the existence of a relationship of employee and employer between the deceased and the insured at the time of the collision resulting in Garrett’s death and that liability of appellant in an action growing out of the described relationship1 was expressly excluded from coverage by the insurance contract. The insured successfully defended the action and now sues to recover attorneys’ fees incurred in its defense.
The question now is whether appellant was required to defend the former action. The answer, of course, requires that we determine the nature of the particular action which appellant was requested to defend and that we examine the terms of the insurance contract in order to ascertain whether the parties thereby agreed the insurer was not required to defend such an action.
The averments contained in the original and amended petitions relative to the relationship mentioned are identical and read:
“7. That John W. Garrett, prior to the accident hereinafter described, had been working for Ralph Leonard and Randolph Leonard and that on the day of the accident the harvesting operations which had been in progress were shut down due to weather conditions, but that John W. Garrett was staying at the Ralph Leonard home and was receiving his meals as a part of his wages, and that immediately prior to the time of the accident hereinafter set out that John W. Garrett was employed by the defendant, Randolph Leonard, and was assisting in the harvesting of wheat belonging to Randolph Leonard and as such was the employee of Randolph Leonard.
“8. That on or about the afternoon of July 9, 1940, and while harvesting was held up on account of wet weather, the defendant, Randolph Leonard, asked John W. Garrett to go with him to assist in picking sandhill plums, and at the direction of Randolph Leonard said John W. Garrett did go with Randolph Leonard and did assist in picking a considerable quantity of sand-hill plums and that while picking said plums John W. Garrett was the employee of said defendant and was acting by reason of his employment.”
Pertinent paragraphs of the insurance policy provide:
“The Company shall
“(a) Defend in his name and behalf any suit against the insured alleging such injury or destruction and seeking damages on account thereof, even if such suit is groundless, false and fraudulent, but the Company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the Company.
“exclusions
“This policy does not apply
“(e) Under coverage A to body injury to or death of any employee of the insured while engaged in the business of the insured, other than domestic employment, or in the operation, maintenance or repair of the automobile, or to any obligation for which the insured may be held liable under any Workmen’s Compensation law.”
There can be no doubt the action, according to the averments of both petitions, clearly was grounded on the theory and contention the relation of employee and employer existed between the deceased and the insured at the time of the collision which resulted in Garrett’s death. The terms of the policy in plain and unambiguous language expressly exclude liability of the insurer to the insured in an action such as that described in the portions of the petitions above quoted.
What is the test of the insurer’s obligation to defend an action against the insured under these circumstances? In the case of Fessenden School v. American Mut. &c. Ins. Co., 289 Mass. 124, 193 N. E. 558, involving the same inquiry, it was said:
“It is plain that the insurance company would not have been bound under its policy to indemnify the plaintiff if the plaintiff Ada Gauthier had recovered judgment on her declaration against The Fessenden School, Incorporated, as amended. We think the contention of the defendant is sound, that the obligation of the defendant insurance company is to be determined hy the allegelotions of the declaration, and that it is not required to defend if it would not be held bound to indemnify the defendant in the action if the plaintiff prevailed upon the allegations of the declaration. [Italics ours.] Ocean Accident & Guarantee Corp., Ltd., of London, v. Washington Brick & Terra Cotta Co., 148 Va. 829; Fulton Co. v. Massachusetts Bonding & Ins. Co., 138 Tenn. 278. Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., 121 Ohio St. 220. United States Fidelity & Guaranty Co. v. Yazoo Cooperage Co., 157 Miss. 27. United States Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S. W. 2d (Tex.) 815. Fidelity & Casualty Co. of New York v. Stewart Dry Goods Co., 208 Ky. 429.” (pp. 130, 131.)
A few of the many other authorities to the same effect are Brodek v. Indemnity Ins. Co., 292 Ill. App. 363, 11 N. E. 2d 228 (1937) and numerous cases from other jurisdictions therein cited; Cas. Ins. Co. v. Tri-State Tr. Co., 190 Miss. 560, 1 So. 2d 221, 133 A. L. R. 1510 and anno. p. 1516 (1941); Maryland Casualty Co. v. Moritz, (Tex. Civ. App.) 138 S. W. 2d 1095 (1940); United Waste Mfg. Co., v. Maryland Casualty Co., 148 N. Y. Supp. 852, (affirmed 169 App. Div. 906, 153 N. Y. Supp. 1148, without opinion); London Guarantee & Accident Co. v. Shafer, 32 F. Supp. 905; 35 F. Supp. 647 (1940); American Fidelity Co. v. Deerfield Valley Grain Co., 43 F. Supp. 841 (1942); 5 Couch on Insurance, § 1175e, p. 4189; 8 Appleman’s Insurance Law and Practice, § 4683, pp. 8, 9.
In the Mississippi case, supra, the sole question on appeal was whether the insurance company was required to defend under its policy, and it was determined the test did not consist in the proof adduced at the trial, but that the duty to defend was measured by the allegations of the declaration in the action against the insured. To the same effect is the Texas case, supra. In London Guarantee & Accident Co. v. Shafer, supra, it was said:
“A liability insurer’s obligation to defend action against insured is to be determined when action is brought, and not by outcome- of action.” (35 F. Supp. 647, headnote 2.)
To the same effect are the above citations from Couch’s Cyclopedia on Insurance Law and Appleman’s Insurance Law and Practice.
The decisions heretofore cited are in harmony with our pronouncement in El Dorado Refining Co. v. United States Fidelity & G. Co., 157 Kan. 198, 139 P. 2d 369, where the allegations of the petition in an action against the insured were analyzed with a view of deter mining the duty of the insurer to defend under its policy, and we said:
“A similar contention was considered at length in the case of Brodek v. Indemnity Ins. Co., 292 Ill. App. 363, 384-387, 11 N. E. 2d 228, which involved facts and circumstances closely similar to those here presented and it was there said that the policy was not ‘intended to bind the insurer to take charge of and defend a suit in which, under the terms of the policy, it had no interest.’ ” (p. 202.)
From these decisions, constituting the great weight of authority, the duty of an insurer under an automobile liability policy to defend an action for damages against its insured is not measured by the proof which may be adduced at the trial nor by the outcome of the litigation, but by the allegations of the petition or complaint in the action and by the terms and provisions of the insurance contract. If the rule were otherwise an insurer would be obligated to defend every type and character of action instituted against every insured although the basis or ground of such action was wholly outside the coverage of the policy. Such a conclusion would .render the exclusion clause a complete nullity and would therefore result in making a new contract for the parties which, of course, we are not at liberty .to do.
In the instant case the trial court agreed appellant had no duty to defend under the allegations of the original petition, but held that such duty arose under the averments of the amended petition. Its theory was the amended petition enlarged the issues by alleging gross and wanton negligence on the part of the insured instead of simple negligence pleaded in the original petition and hence the amended petition made Leonard (the insured) liable to plaintiff under our “guest statute.”
It had been held that where an action of an injured person is based upon various grounds which are not within the terms of the policy, and on another which is within its terms, the situation does not justify an insurance company in declining to defend. (Christian v. Royal Insurance Co., 185 Minn. 180, 240 N. W. 365, Maryland Casualty Co. v. Moritz, supra.) With those decisions we agree. In a careful review of the authorities in the Illinois case, supra, it was said:
“Among the numerous cases cited by plaintiff to substantiate his position that the indemnity company was required, under paragraph 3, to defend all suits, whether ‘groundless, false or fraudulent,’ we find none imposing upon an insurer the duty to defend a suit which is not covered by the indemnity provisions of the policy. Most of the decisions cited are cases in which the suits filed against the various assureds specify as one ground of damage a type of liability covered by the policy. Several of the cases involved situations in which several bases of liability were asserted, some of which fell within the coverage provisions of the policies and others of which did not.” (p. 383.)
Did the allegations of the amended petition in the wrongful death action bring that case under our “guest statute”? Appellant insists they did not. It points out, as previously shown, that the amended petition contained allegations identical with those in the original petition relative to the relationship of employee and employer, between the deceased and the insured. Appellant therefore contends there was no fundamental change in the cause of action, the only change being that the amended petition alleged gross and wanton negligence on the part of the insured at the time the deceased was acting in the capacity of an employee to the insured, while the original petition alleged only simple negligence under the same identical relationship. We think the contention is sound. It is true the amended petition laid the basis for recovery of exemplary or punitive damages but clearly it did not bring the case under our “guest statute.” It may be worth observing the amended petition was not framed in separate counts-in which the relationship of-employee and employer was pleaded in one count and the guest relationship was pleaded in the other. Furthermore, the single count in which both petitions were framed affirmatively and expressly alleged the existence of a definite relationship between the parties which clearly took the case entirely out of our statute commonly called the “guest statute.” That statute, G. S. 1935, 8-122b, provides:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
From the amended petition it affirmatively appears the deceased was not being transported by the insured without consideration to the insured but that, on the contrary, definite and direct consideration passed to the insured for such transportation. That petition clearly discloses the deceased was making the trip to pick plums for the insured, at the request or direction of the insured, and for the express and direct benefit of the insured. That petition alleged: “While picking said plums John W. Garrett was the employee of said defendant and was acting by reason of his employment.” That petition also, in substance, further disclosed the deceased was staying at the home of Ralph Leonard and was there receiving his meals during his employment and as a part of his wages; that the accident occurred on the way back to the home of Ralph Leonard. Manifestly, the deceased was not a guest within the contemplation of our “guest statute.” In Elliott v. Behner, 146 Kan. 827, 73 P. 2d 1116, we held:
“Under a statute denying recovery for injuries sustained while one is being transported as a .guest without payment of fare, held, that where the driver receives a direct benefit from a third party, the transportation is not gratuitous and there is no guest relationship.” (Syl. If 3.)
In the opinion in the Elliott case we quoted, with approval, from the case of McGuire v. Armstrong, 268 Mich. 152, 255 N. W. 745. The pertinent portion of the quotation reads:
“The consideration need not pass from the passenger to the driver. If the driver receives a direct benefit from another, the service is not gratuitous and there is no guest relationship.” (p. 156.)
It also will be observed the exclusion clause, previously quoted, is not modified so as to require the insurer to defend an action in which the employee charges his employer, the insured, with gross and wanton negligence. That clause relieves the insurer of the duty to defend any suit therein mentioned brought by the employee of the insured against the insured. As to such actions it is therefore wholly immaterial whether the negligence was gross and wanton insofar as the question of the insurer’s duty to defend is concerned. It follows the allegations of the amended petition clearly brought the action within the exclusion clause and the insurer was not required to defend the action.
Appellee advances a new contention not made in the trial below. It involves the following portion of the exclusion clause of the policy, previously quoted, to wit: “This policy does not apply (e) Under coverage A to body injury to or death of any employee of the insured while engaged in the business of the insured . . .”
The policy stated, “The occupation of the named insured is School Teacher.” Appellee emphasizes the words in the exclusion clause, to wit: “. . . while engaged in the business of the insured,” and argues the insurer was not released from the duty to defend the wrongful death action because the deceased at the time of the collision was not an employee of the insured while the insured was engaged in the business of teaching. With that argument we cannot agree. Let us, however, briefly pursue the argument and see where, if sustained, it leads us relative to policies of this character. This is a liability policy on the automobile of the insured. Such a policy is designed to protect the insured against damage actions arising out of the operation of his automobile. It is true the insured’s regular and customary occupation was stated to be that of a schoolteacher. His occupation might have been that of a lawyer, judge, preacher, farmer or any number of other occupations which might be mentioned. Can anyone seriously and logically contend an automobile liability policy gives an insured protection against a damage action only in the event the insured is making a trip involving a matter pertaining to his usual and customary occupation described in the policy? We do not think so. That is not the nature and character of an automobile liability policy.
Would anyone seriously argue that such a policy did not protect the insured against damages resulting from an automobile collision while the insured was making a business trip on some oil or farming venture in which he was engaged, simply because the policy stated his occupation to be that of lawyer or judge? We do not think so. By the same token appellee’s contention is not sound as applied to an employee of the insured. Moreover, the exclusion clause does not limit or restrict its operation to an employee of the insured while engaged in the regular or customary occupation of the insured. The exclusion clause applies to an employee while engaged in the business of the insured. The business of the insured is not specified or restricted by the language of the policy. The insured may have any number of businesses outside of his regular and customary occupation. In a policy of this character we think the clause applies to any business in which the insured may be engaged.
In support of appellee’s contention he cites the single case of Sills v. Sorenson, 192 Wash. 318, 73 P. 2d 798. In due deference to the majority view in that case this court is not persuaded by its logic and does not desire to follow it.
The judgment of the trial court is hereby reversed and judgment is rendered for appellant.
Harvey, Smith and Parker, JJ., dissent. | [
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The opinion of the court was delivered by
Thiele, J.:
This was a proceeding under the workmen’s compensation act, and from an award in favor of the claimant the respondent and its insurance carrier appeal. Appellants make it clear that they do not contend the claimant did not receive a personal injury arising out of and in the course of his employment, but only that such injury was not caused “by accident” within the meaning of G. S. 1935, 44-501, which for our purposes reads:
“If in any employment to which this act applies, personal injury by accident . . . is caused to a workman, his employer shall ... be liable to pay compensation to the workman . . . .”
In view of the admissions made as to employment, weekly wage, that the parties were under the act, and that claim was timely made, we limit our statement of the facts.
For some years prior to October 30, 1942, claimant had been manager of respondent’s store at Eureka, and although designated as manager he did all types of work, waited on customers, unloaded merchandise from trucks, restocked shelves and did common labor along with other employees. Merchandise trucks came two or three times a week and he would assist in unloading one hundred pound bags of sugar, forty-eight pound bags of flour and cases of merchandise, and at times he did all such unloading and placing the same in the stock room. On October 30, 1942, he went to work about 8:00 o’clock a. m. and sometime later a truckload of supplies arrived. Two other employees, using a small two-wheeled truck, were hauling and stacking the merchandise. Claimant assisted them. He would take a bag of sugar or of flour and carry it thirty or forty feet and throw it up on the stack. While in the act of unloading the sugar he noticed a pain in his stomach and believed it was gas, he took some soda and water and started back to work but got no relief and sat down on a platform. His condition became worse and he went to a clinic a short distance away, where a physician diagnosed his trouble as an acute coronary thrombosis. Claimant testified that prior to October 30, 1942, he had never had any heart trouble and had never been bothered with shortness of breath in unloading the trucks. We shall notice the medical testimony only to state that claimant’s physician testified that the exertion involved in the work claimant was doing caused his condition and that the exertion precipitated the coronary attack, and that the relationship between his work that morning and the attack was very definite, and also that the relationship between the attack and the result of the attack and any further physical exertions was also very definite and that his condition was permanent and not temporary and he was permanently disabled.
The workmen’s compensation commissioner found that claimant suffered personal injury by accident arising out of and in the course of his employment, resulting in temporary total disability, and made an award.
The respondent and its insurance carrier appealed to the district court, which affirmed the award and findings of the commissioner and found further that the coronary attack was occasioned by claimant’s work in lifting and stacking sacked merchandise of twenty-four to one hundred pounds in weight. A motion for a new trial was denied and the appeal to this court followed.
In support of their contention the trial court erred in finding that claimant sustained personal injury “by accident” appellants argue that this court, in its earlier decisions in attempting to give the work men’s compensation act a liberal construction, gave such a construction to the qualifying phrase “by accident” as practically to strike it from the statute; that the preposition “by” has been ignored and the noun “accident” considered as though it stood alone, with the consequence that it has been applied to the result and not to the cause of the injury sustained. Stated in a converse way it is contended that where a workman, as in the case at bar, performs his usual tasks in the usual manner, and sustains injury such as the present claimant received, there is no liability unless the proof shows the happening of some thing or some event in the nature of an intervening cause that might be said to be the “accident” as a consequence of which personal injury was inflicted on the workman. In making their argument, appellants do not contend that the definition given the word “accident” in our opinions, is erroneous. Appellants direct attention to the leading case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, decided in 1919, and contend that the court there overlooked the qualifying effect of “by” and considered “accident” as though it stood alone, but that the oversight is excusable in view of the fact the decision was based on the holding in Fenton v. Thorley, (1903) A. C. 443, an English case. It is contended that since the last named case was decided the English courts have swung away from their earlier holding, and now examine more critically into cause and effect, and hold that the injury must be the result of accident rather than that the injury is an accident. It may here be noted that our attention-is also directed to decisions from other states where it is said the same trend has occurred. Appellants also attempt to distinguish the Gilliland case, swpm, from the case at bar, in that in that case, and reference is made to it for the facts, it was inferable that claimant’s hemorrhage was brought about by “violent effort,” “great force in an unusual position” or “over-exertion,” the inference from the argument being that such things might be considered as being beyond the usual method of work, equivalent to an intervening cause or event and equivalent to an accident, with the ensuing conclusion the injury was caused by accident.
We are of opinion that neither contention as to what was considered in that case can be sustained. On the question of whether the court overlooked the force and effect of the words “by accident” it was said in the opinion: “The defendant insists a sharp distinction must be made between injury as one thing, and accident producing it as another thing,” (1. c. 773) and then follows a long discussion which need not be repeated here. On the question of added effort, or something beyond usual duties ordinarily performed, it is stated: “The evidence warranted a finding that the physical structure of the man gave way under the stress of his usual labor.” (1. c. 777.)
After our decision in the Gilliland case, supra, many appeals came to this court where the question involved was whether the workman sustained personal injury by accident and where the Gilliland case was followed. In Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103, the facts were quite similar to those in the case at bar. There, as here, the claimant suffered a coronary thrombosis. There the respondent contended that what happened occurred while the claimant was doing his regular work in the usual manner and that there was no unexpected occurrence or event and hence no accident for which he could recover compensation. In its opinion this court reviewed many of the decisions referred to in the briefs in the case at bar and which will not be reviewed again here. In the opinion it was said: “When claimant braced his feet and exerted a strong pull on the wrench, so far as he or anyone else was concerned, what then happened to him was undesigned, sudden, unexpected and of an afflictive character — or, in shorter form, it was an accident.” (1. c. 660.) It was held that claimant sustained personal injury by accident. The only difference between that case and the case at bar was the manner in which the strain arose — one pulled on a wrench, the other lifted a sack of sugar. Later cases involving similar facts and conclusions are Earhart v. Wible Ice & Cold Storage Co., 150 Kan. 695, 95 P. 2d 366, and Williams v. Cities Service Co., 151 Kan. 497, 99 P. 2d 822. Cases in which the district court found there was no injury by accident need not be reviewed.
It may be true, as contended by appellants, that in none of the cases above mentioned nor in any other of our decisions the question presented and discussed was stated precisely in the manner and form now presented, but that the contentions now made by appellants have received previous consideration by this court cannot be gainsaid. In the late case of Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496, involving facts quite analogous to those of the.case at bar, the precise question was not presented, but it was there said:
“In determining whether there was a causal connection between the work done and the injury suffered we must of necessity consider the existing physical condition of the workman at the time of the injury. Our compensation law prescribes no standard of health for a workman. It is well settled that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, intensifies the affliction or contributes to the death of the workman. (Blackburn v. Brick & Tile Co., 107 Kan. 722, 193 Pac. 351; Stringer v. Mining Co., 114 Kan. 716, 220 Pac. 168; Vera v. Swift & Co., 143 Kan. 593, 56 P. 2d 96; Hardwell v. St. Louis S. & R. Co., supra; Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822.) If a workman’s existing physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out of his employment. (Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Harmon v. Larabee Flour Mills Co., 134 Kan. 143, 145, 4 P. 2d 405.)” (l. c. 677.)
The course of our decisions has been uniform. The legislature long has been aware of the construction this court has given to the statutory language “personal injury by accident” and it has not seen fit to amend the act. Although we recognize the phrase has been given a more restricted construction in other jurisdictions, we choose to follow our own decisions.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an original action in mandamus to determine whether the city of Wichita may act as self-insurer in respect to the payment of compensation which may be awarded to the city’s employees injured in its service.
The compensation commissioner takes the position that the city is not authorized to act as self-insurer, and declines to give his sanction to its acting in that capacity.
An examination of pertinent provisions of the workmen’s compensation act and some reference to our previous decisions will develop the legal question. G. S. 1935, 44-532, provides that every employer of labor engaged in any hazardous industry shall secure the payment of compensation awards to his injured employees by procuring insurance from some reliable insurance concern covering the compensable accidents which may befall them in his service. This statute further provides that the employer may show to the compensation commissioner that his financial, responsibility is so sound that he may act as self-insurer. In the oral argument this court was informed by counsel that in administrative practice, employers who set aside a fund of $3,000 or more to secure the payment of such compensation awards are ordinarily permitted to act as self-insurers.
For many years after the first enactment of the compensation statute, the state’s governmental agencies, counties, cities and the like, insofar as their normal functions were concerned, did not operate under the workmen’s compensation act. (Simpson v. Kansas City, 137 Kan. 915, 22 P. 2d 955; Kopplin v. Sedgwick County Comm’rs, 139 Kan. 837, 32 P. 2d 1058.) See, also, 4 Kan. Bar Journal (Feb., 1936) 197-207 and citations therein. On the other hand, it was held that in the exercise of its proprietary functions, such as the operation of its utility services, a city’s liability to its injured workmen was governed by the compensation act. (McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471.)
By G. S. 1935, 44-505, the scope of the compensation act was extended to cover a number of industries and commercial activities not theretofore within its precise terms; these included “county and municipal work;” and it also provided that—
“The state highway commission, each county, city, school district, sewer district, drainage district and other public or quasi-public corporation . . . may elect to come within the provisions of this act by filing with the commission a written statement of election to accept thereunder. . . .” (Laws 1935, ch, 202, § 1.)
On February 14, 1944, the city of Wichita by appropriate resolution elected to come within the provisions of the compensation act so far as it covered its employees, other than the officers of its police department and the regular firemen of its fire departments for whom the city had theretofore made provision by pension funds and other satisfactory arrangements of no present concern. (G. S. 1935, 13-629 et seq.) The resolution also provided that representation should be made to the compensation commissioner showing the city’s financial ability to serve as self-insurer as authorized by G. S. 1935, 44-532, and applying for permission so to do. These matters were properly certified and submitted to the commissioner, who acknowledged their receipt and replied—
“Upon search I am unable to find under the Statutes of Kansas any law authorizing a municipality to qualify as a self-insurer under the Kansas Workmen’s Compensation Act. For this reason, I regret to inform you, the application is hereby denied. . . .”
Hence this lawsuit.
In its petition for mandamus the city pleaded the pertinent facts and alleged that it had an aggregate of 359 city employees below the grade of officers in its various governmental departments, that it had included in its budgetary estimates for 1944 one for payment of awards to its employees for injuries they might receive in its service. The city also alleged that the purchase of insurance coverage for its employees would incur an altogether unnecessary expense of $6,000 per annum, and that it was abundantly able to qualify as self-insurer.
In his answer and return to the alternative writ the compensation commissioner raised the legal question stated in his correspondence with the city quoted above. He also suggested some practical difficulties in articulating the city’s fiscal arrangements for acting as self-insurer with the statutes requiring it to conduct its financial affairs in conformity with the cash-basis and budget regulations therein prescribed. (G. S. 1935, 10-1102 et seq.; G. S. 1943 Supp. 79-2927.)
This court has no hesitation in holding that in principle and by precedent the statutory grant of power to the city to operate under the workmen’s compensation law carried with it by necessary implication the power to do so in the most efficient way; and whether the city should serve as self-insurer of compensation to its injured employees, or purchase such insurance from some reliable insurance company, is a matter which rests in the discretion of the governing body of the city. We shall note the compensation commissioner’s responsibility on this point later in this opinion.
Our own reports are laden with statements of the rule governing the implied power which by practical necessity goes along with any grant of statutory power and duty conferred and imposed on public agencies. Thus in State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620, where the extent of the powers and duties imposed on a county clerk was under consideration, we said:
“When, by statute, official powers and duties are conferred or imposed upon a public officer or official board, the only implied powers possessed by such officer or board are those which are necessary for the effective exercise and discharge of the powers and duties expressly conferred and imposed.” (Syl. f 4.)
In the opinion, the rule quoted from Throop on Public Officers, § 542, is worth repeating:
“ ‘The rule respecting such powers is, that in addition to the powers expressly given by statute to an officer or a board of officers, he or it has, by implication, such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as may be fairly implied from the statute granting the express powers.’ ” (p. 638.)
Other notable cases in which this court has discussed and applied the same rule were State, ex rel., v. Davis, 114 Kan. 283, 289-290, 217 Pac. 905; and Womer v. Aldridge, 155 Kan. 446, 125 P. 2d 392. In the latter case where the practicability of the statute requiring the county commissioners and the county attorney to foreclose the county’s tax liens on real property which had paid no taxes for a generation was under consideration, we said:
“For the most part the means by which the county commissioners may discharge the many and varied duties imposed on them are supplied by express statutes, although occasionally the courts have had to concede that there is a narrow field in which the doctrine of implied powers must be permitted to operate as in State, ex rel., v. Younkin, 108 Kan. 634, 196 Pac. 620.” (p. 449.)
We hold that the city of Wichita is authorized to serve as self-insurer of its employees under the workmen’s compensation law.
Noting briefly the practical difficulties which the compensation commissioner seems to discern in articulating the city’s contingent liability to pay compensation to its injured employees with the comprehensive and salutary provisions of the cash-basis and budget laws, such difficulties are more specious than real. Of course the city will need to make a budget estimate of its probable liability to pay such compensation during each ensuing fiscal year, and its cash-basis levies will have to be made to accord therewith. But the city’s verified application for the writ alleges that such financial estimate has already been provided for, and a financial statement of its various budgeted funds, included in its application, which need not be reproduced, establishes that fact. Moreover, the cash-basis and budget laws do not forbid, and they do necessarily imply, that for certain contingent expenses the existence and amount of which is uncertain, a rational estimate thereof, by the proper officials charged therewith, is all that the cash-basis and budget regulations can require. Going back to fundamentals to illustrate this point, the constitution itself declares that to defray the expenses of the. state for each ensuing biennium, provision shall be made for raising the requisite revenue, and that the law for levying taxes must state distinctly the purpose of such levy. (Const, art. XI, §§ 4, 5.) In actual practice, generous appropriations are made for the governor’s contingent expenses, the attorney general’s contingent expenses, and virtually the same for all the other state officers and state boards. To apply the hypertechnical interpretation to these appropriations which the compensation commissioner would apply to the city’s requirement to specify precisely in advance just what and how much it must levy to pay its contingent liability for compensation to its injured workmen, would compel a holding that a statutory appropriation to a state officer as a contingent fund did not conform to the constitution, but that every item thereof for postage, lead pencils, etc., would have to be budgeted in detail. Surely a common sense interpretation of the cash-basis and budget laws requires no greater particularity of detail than'the constitution itself.
Moreover, until an award and judgment to pay compensation to an injured workman are assessed against the city, its liability is only contingent, not absolute. When it does become absolute by a judgment, a proper estimate and levy to provide for its payment will need to be included in the next make-up of the cash-basis and budgetary provisions of the statutes — unless it can be met out of the 10 percent leeway allowed in the regular budget “for sundry or miscellaneous purposes” authorized by G. S. 1943 Supp. 79-2927.
It should hardly be necessary to add that so far as they are in pari materia all laws are to be read and construed together. So construed we think there is no want of accord between the earlier cash-basis and budget laws with the later statute which confers on cities the power to operate under the workmen’s compensation act. Were it otherwise, the later enactment would control under familiar rules of statutory construction. (In re Mosely’s Estate, 100 Kan. 495, 164 Pac. 1073, syl. ¶ 5; Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Binger v. Shawnee County Comm’rs, 144 Kan. 260, 59 P. 2d 24; City of Council Grove v. Schmidt, 155 Kan. 515, 519, 127 P. 2d 250.)
Before concluding we should make it clear that we do not ignore the possibility that some such public agency as is authorized to come under the compensation act might have its fiscal affairs in such bad shape that the commissioner would justifiably decline to sanction its assumption of the privilege of being a self-insurer. However, we take judicial notice that the city of Wichita has financial resources to serve as self-insurer incomparably greater than those of any individual contractor to whom the commissioner has granted the privilege of being a self-insurer. (20 Am. Jur., Evidence, §§ 16, 21; Model Code of Evidence, A. L. I. Rule 802 [b] [c].)
There is nothing further in this case to warrant discussion. Judgment will be entered for plaintiff; and that the city may not be hindered in making up its pending budgetary estimate to serve as self-insurer for the ensuing year, our decision will be announced forthwith. But as this action was brought merely to settle a legal question which perplexed the compensation commissioner no formal writ will issue for the present, and following the rule applied in analogous cases no costs will be imposed. (Stevens v. McDowell, 151 Kan. 316, 323, 98 P. 2d 123.) It is so ordered.
Parker, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
In this action the defendant was convicted of having intoxicating liquor in his possession. He appeals.
The information charged him in two counts — one with having liquor in his possession and one with maintaining a nuisance. ' Immediately following the conclusion of the evidence of the state defendant moved for an order discharging him on the nuisance count. This motion was sustained by the court. The appeal is from the conviction for having liquor in his possession.
The first point argued by the defendant is that the verdict was not sustained by sufficient evidence. For that reason we will take note of the evidence introduced by the state.
The sheriff testified that on the evening in question about 8 o’clock he went to the rear of a used car lot at 626 and 628 Quincy street, in Topeka, Kan.; that there was a one-story building located at 622-624 Quincy street; this building would be immediately north of and adjacent to 626 and 628; that the south half of that building was occupied by a restaurant and the north half by a barber shop. The sheriff testified that he saw Robinson make three trips from the back door of the restaurant to the back door of the barber shop and on each occasion he came out with a bottle. That he was 50 to 75 feet away when he saw this. Shortly after this he and other officers obtained a search warrant and searched the premises. In the rear of the barber shop they found liquor under the floor. The defendant and another man were arrested shortly after that. At the time these men were arrested the other man told the sheriff the liquor belonged to him. A deputy sheriff, who was watching with the sheriff, testified that he saw defendant hand the bottles to people after he had come out of the back of the barber shop and gone into the restaurant. The defendant’s brother operated the restaurant. At the time of the raid they found no liquor in the restaurant. The sheriff testified that a man by the name of Reddick operated the barber shop. The sheriff admitted he did not know it was liquor that the defendant had in his hands when he made the trips between the rear of the barber shop and the restaurant.
The defendant relies on the rule stated by this court many times that in order to sustain a conviction the circumstances must be so strong that they exclude every reasonable hypothesis except that of the guilt of the defendant.
In State v. Sweizewski, 73 Kan. 733, 85 Pac. 800, we said:
“The circumstances must be so strong as not only to be consistent with the theory of the defendant’s guilt, but they must also exclude every reasonable hypothesis except that of the guilt of the defendant. The facts above relied upon do not exclude every reasonable hypothesis save that of the defendant’s guilt, but do suggest that the defendant for numerous reasons may be entirely innocent.” (p. 734.)
See, also, State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Hunter, 50 Kan. 302, 32 Pac. 37; State v. Murphy, 145 Kan. 242, 65 P. 2d 342, and State v. Morton, 91 Kan. 908, 139 Pac. 409.
Whether the state relied on the liquor that was found in the barber shop when the raid was made as being that of which the defendant had possession or whatever the jury believed was in the bottles when he carried them from the barber shop through the restaurant and handed them to the people on the outside does not appear in this record.
In any event the state had the burden of proving beyond a reasonable doubt that the defendant had the control and right or au thority to dispose of the intoxicating liquor and that he must have had the intention to exercise control over it.
As to the liquor that was found in the rear of the barber shop underneath the floor, we find no evidence at all that the defendant did have or exercised such control or right or authority.
As to what he was seen carrying from the rear of the barber shop into the restaurant, the evidence does not exclude every reasonable hypothesis except the fact that it was intoxicating liquor. The burden was upon the state to prove this beyond a reasonable doubt. So if the state depended upon the liquor that was found under the floor there was no evidence that defendant had possession of it and if it depended on whatever it was which he is alleged to have carried from the barber shop through the restaurant there is no evidence that this was intoxicating liquor.
This court has sustained convictions of a violation of the prohibitory law upon very flimsy evidence at times. However, a conviction of violation of criminal statutes may not depend upon mere conjecture. The circumstances must be such that no other reasonable conclusion can be reached.
The judgment of the trial court is reversed with directions to discharge the defendant.
Dawson, C. J., and Harvey, J., dissent. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to quiet title to real estate. Plaintiff appeals from a judgment denying the-relief sought. In his petition plaintiff alleged that as executor of the Hattie R. Erskine estate he recovered a judgment against the present defendants, foreclosing a mortgage on the real estate involved, and at a sheriff’s sale held in June, 1936, he purchased the mortgaged property; that a sheriff’s deed, dated January 11, 1938, was delivered to him and recorded the same day, and about that date he entered into possession of the real estate by virtue of the sheriff’s deed “and has remained in the actual, common, notorious, open and peaceable possession of said real estate since said date.” We here note that there is no allegation plaintiff held adversely to the defendants. He further alleged that the money obtained from the sheriff’s sale was used to pay an indebtedness of the above-named defendants and others, evidenced by a promissory note canceled in the judgment in the foreclosure action; that the defendants claim some interest in the involved real estate under the pretense that no summons was served upon them in the foreclosure proceedings, but whatever claim or interest they have is inferior and subject to his title. He prayed for judgment quieting his title.
The answer of defendants contained a general denial, alleged that defendant K. H. Dykes had no interest other than as husband of defendant Emma Dykes, and denied that plaintiff’s title was superior to that of Emma Dykes. It was alleged that the sheriff’s deed was void and of no effect and inferior to the right of Emma Dykes for the reason that the judgment on which it was based was void as to defendants, in that no service of summons was had on them; that Emma Dykes was the owner of an undivided one-sixth interest in the involved real estate and the rights of plaintiff, were inferior to the ownership of defendant Emma Dykes. She prayed only for her costs.
Plaintiff filed a reply which for our purposes alleged that prior to the foreclosure proceedings Mrs. Dykes was notified that interest on the note and taxes on the mortgaged real estate were in arrears and that unless paid “a foreclosure action would be inevitable.”
From the journal entry of judgment it appears that when the case came on for trial it was submitted on a stipulation of facts and on briefs, and that later defendant Emma Dykes filed her motion for permission to introduce additional evidence, which motion was sustained over the objections of plaintiff, and such further evidence, consisting of some correspondence which will be mentioned, was received.
The facts agreed upon may be summarized. Prior to February 18, 1926, Anna R. Walter, Emma Dykes, Carrie Kinsley and Anna Justus were tenants-in-common of the involved real estate, Emma Dykes owning an undivided one-sixth interest. On the date above they mortgaged the real estate to secure a note for $800. One Hattie R. Erskine became the owner of the note and on October 8, 1935, commenced an action in foreclosure. No service, personal or otherwise, was obtained on Emma Dykes or her husband, who were at all times residents of Comanche county, Kansas. A judgment in foreclosure was rendered May 16, 1936, and the land sold on June 22, 1936, a certificate of purchase being issued to Justus S. Erskine as executor of the estate of Hattie R. Erskine, deceased, in whose name the action had been revived. On January 11, 1938, the certificate of purchase which had been assigned to Justus S. Erskine as an individual, was surrendered by him and he received a sheriff’s deed which was duly recorded. From the time foreclosure was begun until time of trial the land had been farmed by tenants and since the issuance of the sheriff’s deed the rentals were paid to Justus S. Erskine, who paid the taxes and exercised full control of the land. It was further stipulated that the matter be determined by the court upon the statement of facts, and that briefs be filed within specified times. As has been stated, on defendants’ motion they were permitted to offer certain correspondence in evidence. Under date of August 28,1942, The Putnam-Schutte Farm 'Servicing Co., representing itself as agent for Erskine, wrote Mrs. Dykes stating the summons served on Mr. and Mrs. Dykes could not be found, enclosed a quitclaim deed and check for $5, and asking that the deed be executed and returned. Under date not disclosed the same company wrote Mrs. Dykes another letter asking her to give attention to the matter and under date of September 11, 1942, she returned the deed unsigned and the check. Thereafter one of plaintiff’s attorneys wrote Mrs. Dykes that there appeared to be an error in the service of summons and “I am inclined to think that your interest in said land could probably be set aside in the district court, and if not, the same would be subject to partition by Mr. Erskine as against your interest” and called attention to results that would follow, Mrs. Dykes’ probable expense, that counsel intended to see Erskine through so far as legal services were concerned, and that he intended a “show-down on this matter at the earliest possible moment, unless you agree to settle this matter by way of quitclaim deed.” A later letter by another attorney for plaintiff need not be noticed.
After consideration, the trial court found that the plaintiff was not entitled'to judgment, and it rendered judgment for defendants for costs. The plaintiff filed no motion for a new trial, but appealed to this court, his notice stating he appealed from the ruling of the trial court permitting the defendants to open the case and introduce further evidence, and from the judgment in favor of the defendants on the issues, and his specifications cover those matters.
We take up first the claimed error in opening the case and permitting the defendants to offer further testimony. It may be observed first that this was not a submitted controversy or agreed case under the provisions of G. S'. 1935, 60-2938, where the only facts to be considered are those agreed, but was a trial during the course of which certain facts were stipulated, the stipulation being silent as to the right of either party to offer further proof or that no further proof should be received. Under the circumstances it would seem that whether defendants should be permitted to have the case opened and to introduce further proof, was discretionary with the trial court. It further appears, however, that if there was any error, it was a trial error and that it could only be reviewed on appeal where the complaining party had filed a motion for a new trial which directed the trial court’s attention to the alleged error. See Willt v. Feikert, 139 Kan. 22, 29 P. 2d 1078; Brown v. Brown, 146 Kan. 7, 68 P. 2d 1105; and Morgan v. Morgan, 146 Kan. 880, 73 P. 2d 1105; and cases cited in each. There having been no motion for a new trial, error may not be predicated on alleged erroneous admission of evidence.
Appellant next contends that he has been in possession of the real estate for over five years prior to the commencement of this action; that appellees as execution debtors are barred by G. S. 1935, 60-304, First, from bringing any action to recover possession of the real estate which was sold to him on execution; that his possession of the real estate has been adverse to appellees; that he has paramount title, and is entitled to have his title quieted as against the appellees.
Under the stipulated facts, no summons was ever served upon the appellees. Appellant contends, however, that the suit to foreclose the mortgage, which resulted in the sheriff’s deed under which he claims title, was properly brought and that as to the parties other than the appellees a valid and binding judgment was rendered, and that, although no service of summons was had upon the appellees, nevertheless they occupy the position of execution debtors, and not having brought any action for recovery of possession within five years from the date of the sheriff’s deed, recorded on January 11, 1938, they are barred under G. S. 1935, 60-304, which for present purposes reads:
“Actions for the recovery of real property, or for the determination of any adverse claim or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter:
“First. An action for the recovery of real property sold on execution, brought by the execution debtor, his heirs, or any person claiming under him, by title acquired, after the date of the judgment, within five years after the date of the recording of the deed made in pursuance of the sale.”
In support appellant relies upon James v. Logan, 82 Kan. 285, 108 Pac. 81, 136 Am. St. Rep. 105, in which it was held:
“The five-year statute of limitations against actions for the recovery of real property sold on execution brought by the execution debtor, his heirs or any person claiming under him, by title acquired after the date of the judgment, applies to all sales, void and voidable alike.” (Syl. ¶ 5.)
In that case the action was by one claiming to be the owner of real estate, to recover possession from one holding under a sheriff’s deed which had been of record over five years. The real estate had been attached originally and plaintiff claimed the attachment was void because the affidavit for attachment bore no jurat. This court held that such omission was a mere irregularity which would not expose the proceedings to collateral attack. That holding really decided the case, but this court stated further that the judgment must be affirmed for the all-sufficient reason it was barred by the above statute. In that opinion and in support of its conclusion, reference was made to O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555, 8 L. R. A., n. s., 354, wherein this court held that subparagraph second of the above cited statute, referring to recovery of real estate sold by an administrator, and similar to the statute here relied on, required that such an action be brought by the heirs within five years after the date of the recording of an administrator’s deed and applied to sales which are void for want of notice to the heirs of the proceedings upon which the deed was based. The subsection of the statute in O’Keefe v. Behrens sets up a bar as against “the heirs or devisees of the deceased person.” In the James v. Logan case the bar was against “the execution debtor, his heirs, or any person claiming under him.”
Appellees direct our attention to Richards v. Thompson, 43 Kan. 209, 23 Pac. 106, and Phillips v. Parker, 148 Kan. 474, 83 P. 2d 709, as supporting their contention that the interest of a mortgagor is not affected by a decree or judgment in a foreclosure action to which he has not been made a party. Without reviewing them, in each of the above cases there was no proper party defendant, and the attempted foreclosure proceedings were held void in all their parts. That is not the situation here, for the action was properly brought against the mortgagors and except as to the interest of the appellees there is no claim of irregularity.
Although the general rule is that a judgment in a foreclosure action is conclusive on all persons properly made parties to the action and that those who are not parties are not concluded (42 C. J. 164) yet there can be no doubt of the power of the legislature to provide statutes of limitations in which, under varying states of fact, actions for recovery of possession must be brought (37 C. J. 687, 34 Am. Jr. 25). While such statutes are entitled to a liberal interpretation in order that their purposes may be served, where by their terms they designate particular subjects or classes of persons, ordinarily application will be restricted to such subjects'or classes of persons unless there is a clear manifestation of a contrary intent. (34 Am. Jr. 42.) In the present case the bar is against “the execution debtor, his heirs, or any person claiming under him.” The appellees were never served with summons and actually were never made parties to the action. They can be said to be “execution debtors” only by saying the inclusion of their names in the title of and in a judgment rendered in an action which they were never called upon to defend, made them so.
A majority of this court is of the opinion that considering the facts of the case pertaining to the foreclosure suit in which appellees were not served with summons, that in the present action, in which appellees are not plaintiffs, but in which they merely defend and seek no affirmative relief, they are not properly to be designated as “execution debtors” within the purview of G. S. 1935, 60-304, first, and that the statute is not presently applicable to them.
We do not rest our decision solely on the above conclusion. It is implicit in the above statute of limitations that the possession of the person holding title under any sale made in pursuance of the judgment must have been adverse to the right of the former owner. Attention has heretofore been directed to some correspondence had by persons representing appellant with appellee Mrs. Dykes, shortly before the instant action was commenced. Appellant directs our attention to 2 C. J. 105 where it is said that an attempt by an adverse occupant to buy an outstanding title is sometimes held to break the continuity of his possession, but that the better view is that such an offer does not necessarily amount to such a recognition of title in another as will break the continuity of possession, and that the rule of the latter class of decisions is that each case depends on its own facts and circumstances. We need not pursue that idea further, for in our opinion the portion of the letter to Mrs. Dykes quoted above was a clear recognition that she had a present valid interest in the real estate, and this is strengthened by the fact that in the petition in the quiet title action subsequently filed, the plaintiff did not allege he held adverse possession of the real estate. Under the facts of this case it may not be said that appellant held adversely to the appellees.
It may be observed that suits to quiet title had their origin in equity jurisprudence. In many jurisdictions, as in Kansas, provisions were made for statutory actions to quiet title. Whether such statutory actions entirely supplanted and displaced suits in equity need not be discussed, but that in such statutory actions in this state equitable principles have been applied is beyond question.
A consideration of the entire record in this case discloses that a suit was brought to foreclose a mortgage and although appellees were named as mortgagors plaintiff failed to have them served with summons so that they might defend. The present appellant had the action revived in his name as executor and as such had judgment in his favor, and as a result of sale had, procured a certificate of purchase, which he subsequently assigned to himself individually, and which individually he surrendered for a sheriff’s deed, under which he claims. Now by reason of his own failure to procure an unassailable judgment, and the mere lapse of time, he seeks to have the appellees cut off, although in his letters he clearly recognizes their rights and that he has an effective remedy. Under such circumstances, it was proper that the trial court refused the relief prayed for, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to cancel a deed to real property, to quiet title and for judgment that the plaintiff was the owner of a judgment rendered against both parties to this action jointly in another action to satisfy which the land in question had been sold. Judgment was for the plaintiff. ■ Defendant appeals.
The petition alleged the ownership by the plaintiff of the half section of la'nd in question; that defendant, the son of plaintiff, had been farming it for years under an oral lease; that the parties entered into a written lease; that defendant told plaintiff that the lease had expired and it would be necessary to execute a written one; that defendant presented an instrument to plaintiff, which he represented to be a lease which plaintiff signed believing at that time he was signing a lease, when as a matter of fact he was signing a quit claim deed to the property in question in favor of defendant, and that plaintiff signed the instrument in question relying solely upon representations of the defendant and because of his advanced age and poor eyesight and the confidential relationship which had existed he signed the deed without reading it; that these representations were false and known by defendant to be false and made with intent to deceive the plaintiff. The petition further alleged that on account of the facts pleaded the deed was void and should be canceled and that it was given with no consideration whatever.
For a second cause of action, the petition alleged that plaintiff had signed a note as surety for the defendant; that the note had not been paid; that action had been brought to collect it; that judgment had been rendered thereon and the land in question sold at sheriff’s sale for more than enough to satisfy the judgment; that in truth the property was the property of plaintiff in this action and that on account of all the facts alleged he was entitled to be subrogated to the rights of the plaintiff in the action on the note and to recover judgment against the defendant in this action in the sum of •$3,800.48, which was the amount for which the land had been sold. The pleadings in the action on the note were made a part of this petition. The prayer was for a decree setting aside the deed, giving plaintiff immediate possession of the property and quieting his title therein as against the defendant and for further judgment against defendant in the sum of $3,800.48.
The defendant demurred to this petition on the ground that it involved two causes of action, one for cancellation of the deed and the other for the recovery of money and for the further reason that it did not state facts sufficient to constitute a cause of action and that the plaintiff had no legal capacity to sue because all of his rights had been abandoned by laches of the plaintiff and were barred by the statute of limitations. This demurrer was overruled, whereupon the defendant filed a somewhat lengthy answer in which lie denied first all the formal allegations of the petition except that the plaintiff had been" the owner of the real property in question for a period of several years prior to the giving of the deed and that the defendant had farmed it under an oral lease. The answer admitted further the action on the promissory note, to which the petition had referred, and that the land had been sold to satisfy that judgment for the sum mentioned. The answer further alleged that the plaintiff had told defendant that he wanted to deed the land to defendant so that if anything happened to him the defendant would have it, and that the defendant had consented to take the land subject to a mortgage1 and to certain liens, revenues, royalties and income which the deed provided should be paid to plaintiff. The answer to the second cause of action was a denial that the real estate sold on the execution to satisfy the judgment was the property of the plaintiff; that the plaintiff- had filed no pleadings in the action on the note and had permitted the judgment to be rendered against both plaintiff and defendant and to become a lien upon the land; that if plaintiff had any righf to subrogation or other relief it had been abandoned. The reply of the plaintiff was in effect a general denial. The case was submitted to the court without a jury. At the conclusion of the plaintiff’s evidence the defendant demurred to it. This demurrer was overruled. Amongst other things the trial court found that the allegations of plaintiff’s petition were true and that he was entitled to judgment as prayed for. Judgment was rendered accordingly and defendant has appealed.
The first error of which the defendant complains is that the court erred in overruling the demurrer to the plaintiff’s petition. The defendant argues that the petition did not allege that the plaintiff had paid the judgment to which he had asked to be subrogated and that since this was true plaintiff was not entitled to be subrogated to the rights of the judgment creditor until the debt had been paid and satisfied by -the plaintiff. He argues that since this cause of action as stated was not good against defendant it was improperly joined with the first cause of action and the demurrer should have been sustained. This argument, is not good. G. S. 1935, 60-601, provides as follows:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all of the parties to the action, except in actions to enforce mortgages or other liens.”
There was only one plaintiff and one defendant in this action and it was the duty of plaintiff to assert the cause of action which he had against the defendant.
As to the argument of defendant that the petition did not allege that the judgment had been paid by the plaintiff, the rule as stated in 60 C. J. 720 is as follows:
“It is not necessary that payment be in money; anything accepted by the creditor is sufficient, provided it is actually accepted. However, where the special circumstances of the case demand it, equity has allowed subrogation in cases were a liability only, and not payment, was shown.”
In this case the petition alleged that the land had been sold to satisfy the judgment on the note and that it had brought enough to satisfy that judgment and a little more. In such a situation the debt had been paid. See Moore v. Meek, 8 Kan. 153. See, also, G. S. 1935, 60-3437, which provides as follows:
“When property liable to an execution against several persons is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays without a sale more than his proportion, he may compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them as security for another, and the surety pays the amount or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal.”
If the petition in the first cause of action was good then the land that has been sold was the land of the plaintiff in this case. Certainly the plaintiff is entitled to be subrogated to the rights of the former plaintiff in the judgment on the note. The demurrer was properly overruled.
Defendant next argues that the court erred in overruling his demurrer to the plaintiff’s evidence. In this argument the defendant points out some inconsistencies in the testimony of the plaintiff, his father. What the argument really amounts to is a request that we review this evidence as it is in the record here and reach a different conclusion úpon it than was reached by the trial court. This we cannot do. It was the duty of the trial court to hear this evidence. While apparently there were some slight inconsistencies in the testimony of the father, he was eighty years old and it would not be at all remarkable if he should make some inconsistent statements. At any rate, the trial court had an opportunity to see the old gentleman and the other witnesses as well. It was the trial court’s duty to draw whatever inferences were proper from the testimony of the witnesses.
, On the matter of demurrer to the evidence, we must indulge all those inferences in favor of the theory of the prevailing party. It hardly requires a citation of authorities to sustain this position. At any rate, the burden was on the son to prove the bona fides of the transaction. (See Overstreet v. Beadles, 151 Kan. 842, 101 P. 2d 874.)
The defendant next argues that the court erred in entering judgment because it was not supported by the evidence and that it was contrary to the evidence and contrary to law. What has just been said with reference to the contention of the defendant that his demurrer to the evidence should have been sustained applies equally to this argtiment. We have examined the authorities upon which the plaintiff relies and find them to be not in point.
As to the argument that the judgment was contrary to law, the plaintiff alleged and proved that the defendant induced him to sign a deed by telling him it was a lease instead of a deed and that he relied on that. Just how a cause of action to set aside a conveyance could be more clearly stated does not readily appear.
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The opinion of the court was delivered by
Harvey, J.:
This was an action upon a written contract for the sale of real property. A trial by the court resulted in judgment for plaintiff. Defendant has appealed and contends that the court erred in excluding testimony of a prior oral agreement respecting the consideration to be paid for the property.
The petition, filed April 16, 1942, alleged that on July 15, 1941, plaintiff and defendant entered into a written contract, a copy of which was attached, by the terms of which plaintiff agreed to sell 'to defendant certain real property in Wichita and convey the same by warranty deed and furnish abstract showing merchantable title, and defendant agreed to purchase the property and to pay as the purchase price therefor the sum of $1,000 in payments as follows: $25 August 15, 1941, and $25 on the 15th day of each month for each of four months thereafter, and to pay the balance of the purchase price, $875, on the 15th day of January, 1942, and to pay on the date of the agreement all delinquent taxes due on the property, except for 1940, and to pay those at a later date, and to pay future taxes. The written agreement provided for the execution of the papers and the deposit of them with a designated trust company, where the payments were to be made, and it recited: “This agree-, ment in substitution to any prior agreement between the parties hereto.” The petition alleged that defendant had made the five payments of $25 each and paid the delinquent taxes, except for 1940, but had failed, neglected and refused to pay the $875 due on January 15, 1942, and the taxes due for 1940 and subsequent. The contract provided that if defendant failed to make any of his payments provided in the contract for a period of thirty days, th'en defendant’s rights under the contract should be canceled and payments previously made should be retained by the first party by way and in lieu of rent and as liquidated damages. The prayer was that the court determine the amount due plaintiff under the contract; that the defendant be given a time within which to pay the amount found due, and in default thereof the rights under the contract be forfeited as provided therein, and that plaintiff have costs and other proper relief.
The answer admitted the relation of the parties and that they entered into the contract, a correct copy of which was attached to the petition. Defendant denied that she owed anything under the contract and alleged that she purchased the property in 1925 and since then has occupied the place as her home; that in 1926 she placed a mortgage thereon for $3,500 to plaintiff, which was sold to the Royal Union Life Insurance Company; that in 1931 the mortgage was reduced $500 and a new mortgage given to the insurance company; that the insurance company became insolvent, and that the mortgage last above mentioned was purchased by the plaintiff “for a nominal Knm”; that thereafter plaintiff instituted foreclosure proceedings against defendant; that pending that action plaintiff offered and agreed to settle said indebtedness for the sum of $1,000; that the agreement was made about December, 1933, and renewed about February, 1936, and that since then defendant has made plaintiff thirty-six payments of $25 each and one of $50.; that the agreement was thereafter reduced to writing on July 15,1941, and is the agreement set out in plaintiff’s petition; that plaintiff also received from defendant $100 insurance collected for windstorm damage to the premises, and that the amount due plaintiff has been fully paid.
The reply was a general denial.
The trial was in April, 1943. Evidence on plaintiff’s behalf sustained the allegations of its petition. Defendant and her son, who transacted some of her business, gave testimony substantially as follows: That when plaintiff was foreclosing the mortgage in 1933 defendant asked one of plaintiff’s officers if plaintiff would settle the indebtedness for $1,000, and he smiled and said: “Bring in the money.” There was no evidence that the money was taken in. The witness further testified that the officers of plaintiff expressed dissatisfaction with the state’s moratorium policy and also with the redemption period which defendant was exercising and stated that any arrangement would have to be of a nature that would preclude the possibility of defendant taking advantage of such statutes. On March 2, 1936, some kind of a contract was signed between them. This contract was not pleaded, nor was it introduced in evidence, hence its specific terms are not shown by the record. It is spoken of as “the $2,500 purchase contract.” Defendant’s son testified that it was arranged in that sum for the purpose of safeguarding plaintiff against the possibilities of a moratorium or redemption period. The testimony is that under that contract $50 was paid on March 2 and later $25 practically each month to December, 1938. Nothing was paid thereafter until July, 1941, when plaintiff’s representative went to the premises, inquired what defendant was going to do, and spoke of putting her out of the house. Conferences were then had and the contract of July 15, 1941, was drawn. This, as we have seen, provided for the payment of $1,000 in five payments of $25 and one payment of $875, and specific dates for those payments were specified in the contract, and the contract specifically provided that it was in substitution of previous contracts between the parties with respect to the property. Defendant and her son testified that their understanding was that the $1,000 mentioned in the contract of July, 1941, to be paid thereafter, was the same $1,000 mentioned in 1933 and contained within the $2,500 written contract of 1936, most of which had been paid by the $25 payments through 1936, 1937 and 1938. Plaintiff objected to this testimony as it was being given, but the court reserved its ruling until defendants were through, when the court held:
“This evidence about payment made prior to the date the contract was entered into can’t be considered by the court as payments on this contract.”
Accordingly, judgment was rendered for plaintiff. Defendant filed a motion for a new trial, in which it was contended the court erred in rejecting the testimony. The appeal is from the order of the court overruling the motion for a new trial.
We think the ruling of the trial court was correct. We take note of the fact that defendant made no effort to reform the contract or to have it set aside because of fraud, mutual mistake, or for any other reason. Defendant admits executing the contract and making payments under it, and yet says it is not the contract made by the parties. We think that contention cannot be sustained. (See Hazelton v. Chaffin, 109 Kan. 175, 197 Pac. 870, and the many cases cited, p. 177; Radebaugh v. Dillon, 119 Kan. 492, 240 Pac. 406; Tong v. McArthur, 121 Kan. 870, 250 Pac. 262; Stanley v. Blair, 137 Kan. 469, 21 P. 2d 311.) Appellant argues that the consideration for a written contract has always been open to inquiry, that this does not vary the terms of the contract but goes to show only the facts which induced the parties to enter into the contract, citing Roseman v. Nienaber, 100 Kan. 174, 166 Pac. 491; Rice v. Rice, 101 Kan. 20, 165 Pac. 799; Shields v. Johnson, 124 Kan. 155, 257 Pac. 926, and MacLorinan v. Finley, 124 Kan. 637, 261 Pac. 587. Without taking space to analyze those cases we think it clear that each of them presents a different situation than is here involved. In Trice v. Yeoman, 60 Kan. 742, 57 Pac. 955, it was held:
“Parol evidence of an agreement consisting of mere oral promises made previously or concurrently with the execution of a written, contract of sale of land is inadmissible to charge the vendee with the payment of more than the expressed consideration, when the amount to be paid plainly appears from the face of the instrument.” (Syl.)
In Milich v. Armour, 60 Kan. 229, 56 Pac. 1, it was held:
“As a general rule all prior oral negotiations are deemed to be merged in a written agreement, and the terms of such agreement cannot be contradicted, altered, added to or varied by parol proof.
“An exception to the rule is a unilateral admission, such as an ordinary receipt, or the mere acknowledgment of the receipt of purchase-money in a conveyance, which ordinarily is not conclusive upon the parties as to the consideration stated; but when it appears from the writing that the statement of consideration is contractual, and not merely matter of recital, it is not open to contradiction by oral proof.” (Syl. |¶ 1, 2.)
A lengthy annotation on this point appears in 100 A. L. R. 17, where it is said:
“It has been well said that ‘the rule permitting the true consideration of written contracts to be inquired into by parol evidence does not apply where the statement in the contract as to the consideration is more than a mere receipt or acknowledgment of payment, and is of a contractual nature.’ ”
On this point many authorities are cited.
Here the parties had been dealing for several years with respect to this property, and “in substitution” of all previous agreements reduced to writing what was still to be done. We think defendant was not entitled to show that the amount to be paid under this Written contract had been paid before the contract was written.
In 32 C. J. S. 784, 830 and 832, the applicable parol or extrinsic evidence rule affecting writing is well stated as follows:
“It is a general rule that parol or extrinsic evidence is not admissible to add to, subtract from, vary, or contradict judicial or official records or documents, or written instruments which dispose of property, or are contractual in nature and which are valid, complete, unambiguous, and unaffected by accident or mistake. This rule, which is known as the parol evidence rule, is one of substantive law and not merely one of evidence; and it obtains in equity as well as at law.” (Sec. 851.)
“The parol evidence rule applies to written contracts for the sale or exchange of realty or personalty, and to such provisions as those relating to price, time and mode of payment, and time and place of delivery.” (Sec. 910a.)
“The statement in a contract of sale as to the price paid or to be paid by the purchaser is an essential part of the contract, and hence it cannot be varied or contradicted by parol.” (p. 832, “Price.”)
Many cases are cited in support of the text. Our decisions previously decided are in accord. See, also, Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174; Samuelson v. Palmer, 96 Kan. 587, 152 Pac. 627; Thomas v. Citizens State Bank, 129 Kan. 540, 283 Pac. 507; Lanphear v. McLean, 136 Kan. 266, 10 P. 2d 889.
We find no error in the record. The judgment of the court below is affirmed! | [
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The opinion of the court was delivered by
Horton, C. J.:
The first question we are called upon to consider is, whether the motion which was filed by Oliver Green on October 3, 1887, and decided October 12,1887, was a special or general appearance in the action. If the appearance of a party, though called special, is upon other than jurisdictional grounds, it is a general appearance. (Burdette v. Corgan, 26 Kas. 104.) So, if a motion contests the service only and does not go beyond jurisdictional grounds, it is a special or limited appearance. The motion was presented to set aside the judgment of October 1, 1887, on the ground solely that no proper service had been made upon the defendant. By the motion, the defendant, Oliver Green, made a special appearance only. This motion did not give the court jurisdiction over the person of the defendant, nor authorize the court to require him to answer or plead. When the plaintiff, Harriet F. Green, obtained her judgment on the 16th day of January, 1888, there was on file in the district court, among the papers of the cause, the affidavit of C. M. Welch showing that the firm of Messrs. Welch & Welch had no authority from Oliver Green to appear generally for him, and that their authority in the case was limited to the special motion filed. It is true that the attention of the district court was not called to this affidavit, but that was not the fault of the defendant. Harriet F. Green might have called the court’s attention to this affidavit. She took her judgment at her peril, and as the district court had no jurisdiction over the person of the defendant, the judgment is void and must be set aside. (Reynolds v. Fleming, 30 Kas. 106.) In that case it was said:
“In this state it is held that a judgment rendered without jurisdiction is void; that a personal judgment rendered without notice to the defendant is rendered without jurisdiction, and is consequently void; that a judgment void for want of notice may be set aside, on a motion made therefor by the defendant ; and that this may be done in cases where it requires extrinsic evidence to show the judgment was rendered without notice and without jurisdiction.”
As to what constitutes a special appearance, see Branner v. Chapman, 11 Kas. 118; Simcock v. National Bank, 14 id. 529; Bentz v. Eubanks, 32 id. 321.
The judgment of the district court will be set aside, and the case remanded for further proceedings.
All the Justices concurring. | [
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