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The opinion of the court was delivered by
Fatzer, J.:
The action was for an accounting and to recover money following the termination of an association of two medical doctors to practice their profession. The case was tried by the district court which made findings of fact and entered judgment in favor of the plaintiff in the amount of $2,571.76.
After the notice of appeal was filed, the plaintiff, Geoffrey M. Martin, M. D., died on March 12, 1966, and Helen K. Martin, his surviving widow, was substituted as party-plaintiff.
It is unnecessary to set forth the pleadings of the parties and the story of this litigation is best told by the detailed findings of fact of the district court, which outline the issues and summarize the evidence of the parties, and this court adopts those findings and incorporates them as the basis upon which to consider and decide the case. The findings of fact read:
“The plaintiff Geoffrey M. Martin and the defendant Theodore E. Young are both doctors of medicine specializing in pediatrics. During the period from October 1962 through the month of September 1964 they were associated together in the practice of their profession. This is an action for an accounting of the profits of the association and to recover payments allegedly due under a termination agreement. There was introduced into evidence as Exhibit 1 a record of all receipts and expenditures during the period of the professional association. These records have been accepted by both parties as true and correct.
“The only remaining issue in the case is whether or not plaintiff and defendant had an agreement as to payments to be made to Dr. Martin by Dr. Young on termination of the professional association. The second question presented is, assuming there was a termination agreement, what sums, if any, are due the plaintiff under such an agreement.
“Plaintiff contends that he and the defendant had an oral agreement which provided that in the event the association was terminated the final indebtedness of the defendant to the plaintiff would be determined by subtracting from the entire gross business done by the plaintiff during the period of the association the following:
“1. 50 percent for overhead expenses.
“2. 20 percent for collection losses.
“3. The monies paid over to the plaintiff during the term of the association.
“Plaintiff contends that the oral agreement further provided that the defendant would pay the net amount owing to the plaintiff in 12 equal monthly payments beginning one month from the date of termination of the association. The parties agree and it is undisputed that the association was terminated by mutual consent of plaintiff and defendant effective September 30, 1964.
“The defendant denies that there was any such termination agreement and denies that there are any payments due from the defendant to the plaintiff other than the sum of $88.08 which the defendant tendered to plaintiff in his answer. There is no dispute from the evidence in the case that an association in the practice of medicine was established by plaintiff and defendant. A formula was orally agreed upon for the distribution of net profits. It appears that a formal written agreement was later to be prepared and signed by the parties; however such a formal written agreement was never actually prepared to the satisfaction of the parties. This Court finds, however, that the plaintiff and defendant did have a meeting of the minds and entered into an oral agreement for the payment by defendant to the plaintiff of certain sums in the event of the termination of the association. There were introduced into evidence Exhibits 3, 4, 5, 6, and 8. All of these exhibits were proposed drafts of a formal association agreement which were prepared by William E. Haney as attorney for the defendant Theodore E. Young and all provided for termination payments to Dr. Martin.
“Exhibit 8, which was the last proposed formal draft, was prepared on about June 24, 1964. Article V provides for payment of a termination salary to Dr. Martin in the event Dr. Young and Martin do not go on to form a partnership agreement as of December 1, 1964. The formula set forth in this proposed draft is the same formula which plaintiff contends was the oral agreement with the exception of a provision for the payment of the remaining balance due under the Capital Leasing Corporation contract for furniture and fixtures.
“Dr. Young in his testimony testified that the draft of June 24, 1964, was the last draft prepared and that only the provision in regard to the sums owing on the Capital Leasing contract was new and the rest of the provisions were what defendant and plaintiff had agreed upon. Dr. Martin testified categorically that on termination of the association by mutual agreement of the parties, he, Dr. Martin, was to receive from the defendant, the amount of Dr. Martin’s business on the books less 50 percent overhead, less 20 percent for collection, less any sums paid to the plaintiff during the association. The balance was to be paid by defendant to the plaintiff in 12 equal monthly installments. It is the finding and judgment of the Court that the plaintiff has sustained the burden of proof and that an agreement for the payment of termination salary from Dr. Young to Dr. Martin was established in accordance with contentions of plaintiff as set forth above.
“The evidence is undisputed that the gross business on the books provided by Dr. Martin was $22,590. Deducting from this 50 percent for operating expenses and 20 percent for collection expenses in the amount of $15,813 this leaves a gross total due Dr. Martin in the amount of $6,777.00. Payments made to Dr. Martin in the course of the partnership were $4,190.24. This leaves a net due Dr. Martin in the amount of $2,586.76. At the time of the trial it appeared Dr. Martin had also received $15 from one Frances Hensley which also should be deducted as a payment made to Dr. Martin leaving a net sum owing from Dr. Young to Dr. Martin in tire amount of $2,571 for payments due from defendant to the plaintiff on termination of the association by mutual consent. There was some dispute at the time of the trial as to the amount of $605.00 for travel expenses and for professional associations. It is the finding of this Court that these items are properly a part of the necessary operating expenses of the association and would be included in the 50 percent deduction under the formula agreed upon by the parties.”
Various arguments are advanced by the defendant-appellant in support of his contention there was no substantial evidence to support the district court’s findings the parties had a meeting of the minds and entered into an oral agreement concerning payments to the plaintiff upon termination of their association. There are more than 140 pages of the printed record on appeal. The appellant’s brief presents five issues which resolve themselves into one basic question: Was there substantial evidence to support the district court’s findings? To marshal the evidence and state the reasons for the court’s conclusion would consume several pages of the Kansas Reports. In the end, the court would have done no more than review questions of fact neither novel in kind nor of any interest to anyone except the parties to the appeal. The appellant’s various points have been fully examined, and the court finds that each is disproved by the evidence and the findings of the district court. No new principle of law of striking interest, and no new application of old principles, are involved, and when the facts have been determined as the district court did, the judgment rendered follows as a matter of course. This court does not feel any useful purpose would be subserved by a fuller discussion of the case, except to say the district court’s findings of fact are amply supported by substantial evidence and are approved.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
Appellant has appealed directly from the judgment and sentence imposed upon him following his conviction by a jury of the offense of grand larceny of two cattle.
The offense allegedly occurred January 18, 1961. Trial commenced May 18, 1961. Proceedings in the trial court concluded June 9, 1961, at which time defendant-appellant’s motion for new trial was overruled and he was sentenced to the state penitentiary for a term of not to exceed seven years. Appellant was then represented by retained counsel who promptly filed notice of appeal to this court. This appeal was not perfected, but was abandoned by appellant’s counsel. Later, after he had been incarcerated in the penitentiary, appellant filed his pro se notice of appeal and the case was docketed in this court. Appellant filed numerous pro se pleadings and briefs; eventually the appeal was set for oral argument in this court on December 3, 1963. Upon examination of the voluminous papers filed by appellant it was then discovered he had at one time asked for the appointment of counsel to represent him upon appeal. Appellant had meanwhile been advised of Rule No. 56 of this court, providing for the appointment by the district court of such counsel, but he had made no application pursuant to this rule. This court eventually directed the trial court to appoint counsel for appellant to represent him upon his appeal. Counsel who was first appointed proved unsatisfactory to appellant and was discharged at appellant’s request although the court found such counsel had diligently represented him. Appellant declined appointment of any attorney from Marion county to represent him and asked instead to have an attorney from Shawnee county appointed. This latter request was denied and appellant sought again to represent himself for a period of time. Finally, present counsel, a practicing attorney of Geary county and a member of the bar of the same judicial district in which appellant was convicted, was appointed to represent appellant upon appeal.
The case has been rebriefed and reargued and, despite certain deficiencies due to appellant’s unfamiliarity with procedural requirements, we go directly to the merits.
Appellant contends his oral confession admitting theft of the cattle was improperly admitted into evidence over his objection.
It appears that appellant, who had been taking insulin for a diabetic condition, was arrested at his home about 9:00 p. m. on January 24, 1961, and taken to the county jail. The next morning the undersheriff of Marion county went to appellant’s home to get appellant’s insulin kit but he brought back the wrong syringe. Appellant had no insulin until about 8:00 p. m. January 25. About 9:00 p. m. that evening the undersheriff, in the presence of a state livestock brand examiner, conversed with appellant. The officer advised appellant he could have an attorney, that he was entitled to a lawyer if he cared for one. Appellant replied that he didn’t need one yet. Appellant stated, “. . . you have got it on me, you got the check, you know where I sold the cattle”; appellant further stated he had walked across the pasture of the owner of the cattle early in the evening and penned up the cattle in the pen there, then loaded them sometime after midnight, took them to his home and early the next morning drove to Wichita and sold them to a commission company.
Prior to the confession being received in evidence the court, in the absence of the jury, held a hearing as to the circumstances under which the confession was given.
At this hearing on behalf of the prosecution the undersheriff and the brand examiner testified, as well as a medical doctor. In addition to that which has been related, the undersheriff, who had known appellant twelve to fifteen years, testified appellant acted normally and seemed to be in perfect mental and physical health at the time of his confession; that appellant had previously told him he was all right and that he (appellant) thought he could get along all right without his insulin. The brand examiner noticed no indication of illness or peculiar behavior although he had not previously been acquainted with appellant. He also testified as to statements made by appellant. The medical witness testified hypothetically that a lack of insulin for a twenty-four to thirty-six hour period on a person such as appellant would not have affected that person s mental faculties under the circumstances.
At this out-of-court hearing appellant testified as to his habit of taking insulin and that he felt badly when deprived of it; that on the evening in question he went to bed immediately after taking his insulin shot and he had no recollection of any conversation with the undersheriff.
At the conclusion of this hearing the court made the following ruling:
“The County Attorney has made a statement that the defendant was 54 years of age, and there isn’t any evidence to that effect; however, the court observes that he is a man of some 50 years of age and is an adult, at least. The court finds further that the statements were freely and voluntarily made and that the defendant had been properly advised of his rights under the law and that at the time of making the statements that he was in possession of all of his faculties and accordingly admissible and' will be admitted, and that is the order.
“You may bring in the jury.”
The court then permitted testimony as to the confession to go to the jury. No complaint is made concerning the instructions given the jury as to how this evidence should be considered by it and we must assume the jury was correctly instructed.
The procedure followed by the trial court in hearing evidence in the absence of .the jury and deciding as a preliminary matter whether the appellant’s statement was freely and voluntarily made without force or coercion was in conformity with the established rules of this court (State v. Seward, 163 Kan. 136, 181 P. 2d 478; State v. Latham & York, 190 Kan. 411, 375 P. 2d 788, cert. denied, 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310; State v. King, 194 Kan. 629, 400 P. 2d 975; State v. Jenkins, 197 Kan. 651, 421 P. 2d 33; State v. Greenwood, 197 Kan. 676, 421 P. 2d 24).
Appellant argues State v. Seward, supra, supports his position. In Seward a seventeen year old boy was taken to police headquarters, questioned without notice to his parents and, without any of the usual warnings, directed to sign several pieces of paper. At trial his purported confession was admitted by the court without preliminary investigation in the absence of the jury and the jury was not instructed how it should consider or evaluate the confession. This court reversed the conviction and granted a new trial because the trial court refused to hear evidence or consider as a preliminary matter whether the confession was freely and voluntarily made and because of the trial court’s failure to give proper jury instructions upon the confession.
No similarity exists between Seward and the instant case. Here the trial court followed the injunction established in Seward in which it was stated:
“The question of whether the confession had been freely and voluntarily made without force or coercion being used, and without promises, should have been in the first instance considered by the trial court in the absence of the jury and before it was offered to the jury. Then if the trial court had been convinced that it was admissible it could have been given the jury under proper instructions.” (p. 144.)
Appellant principally emphasizes he was not in possession of his faculties due to lack of insulin. The court found against him on this factual issue.
The court’s findings that appellant’s statements were knowingly and voluntarily made were supported by substantial evidence and will not be disturbed on appeal absent any showing of clear and manifest error.
Appellant asserts the court erroneously admitted into evidence certain wood or paint chips and the tailgate of a trailer. The circumstances were thus: The owner of the cattle fed and counted them every day; on January 18, 1961, he found two steers missing; he checked his fences and found no breaks; he interviewed his neighbors as to strays and found none; he notified the sheriff’s office; the undersheriff investigating the loss noticed fresh manure in the owner’s loading chute, which chute was unpainted and had not been used since September, 1960, and he found paint smears on the chute and small pieces of wood or paint chips below the chute; he placed these latter in an envelope and delivered them to the sheriff; the officer was familiar with appellant’s trailer and noted that the paint chips were similar in color to the trailer; the sheriff removed a section from appellant’s trailer tailgate and delivered it along with the paint chips to a laboratory supervisor of the Kansas Bureau of Investigation; the supervisor testified at length as to his qualifications for making laboratory comparison and analysis of paint and, as a result of his examination of the items submitted to him, gave as his opinion that the paint chips found at the cattle chute came from appellant’s trailer. Identification was facilitated because there had been three layers of different colored paint on the trailer.
Appellant objected to the introduction of the paint chips because there was insufficient showing as to their custody and transmittal to the witness who testified.
The circumstances of the finding by the investigating officer of the chips at the scene of the theft, their removal, delivery to the sheriff and then to the laboratory analyst who testified were all properly shown by a complete custodial chain of evidence, and the objection was wholly without merit.
The tailgate, which was removed from appellant’s trailer by the sheriff, was received into evidence after being identified and marked as plaintiff’s exhibit No. 24 as shown by the following:
“Mr. Regier [appellant’s attorney]: I have no objections to that being admitted in evidence.
“Mr. Westerhaus: I offer Plaintiff’s Exhibit No. 24 in evidence.
“The Court: It is admitted.”
Moreover, no mention of erroneous admission into evidence of the trailer tailgate was made in appellant’s motion for new trial.
Under well-established rules in this state objection to incompetent evidence must be interposed at the time such evidence is offered before it can be made the basis for reversing a judgment (State v. Donahue, 197 Kan. 317, 416 P. 2d 287; State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert. denied, 386 U. S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900, rehearing denied, 386 U. S. 978, 18 L. Ed. 2d 142, 87 S. Ct. 1170).
Appellant complains generally of insufficiency of evidence to support his conviction. In addition to that which has been related, the evidence revealed the following: A Butler county rancher testified that in the fall of 1960 he sold Hereford yearling steers bearing his registered brand to the Flint Hills Livestock Commission Company at Wichita; these were the only cattle sold by him that year; in turn the commission company sold them to Mr. Edward McGinness, their owner at the time of the theft; the two stolen steers bearing the registered brand were missing January 18, 1961; the same day appellant sold two Hereford steers to the same livestock commission company, receiving the sum of $385.11 therefor; the commission company sold the two cattle the same day to the Axcel Cattle Company which, placed them in its feed lot at Abilene; these were traced and the owner, Mr. McGinness, identified the two branded cattle in the Abilene feed lot as being his property.
Appellant testified in his own behalf before the jury. As indicated, he repudiated his confession saying he had no recollection of it. He admitted selling two Hereford steers to the commission company on January 18, 1961, but contended they were some he had raised. He also indicated several named neighbors had borrowed his trailer. In passing, it may be noted appellant made no attempt to explain why cattle allegedly raised by him bore the registered brand of another.
In rebuttal, on behalf of the prosecution, the neighbors who were named denied they had borrowed the trailer during January of 1961. Two neighbors testified that although nearly all of appellant’s farm was visible from the road and they had chiven past it in January, 1961, and one had worked on appellant’s farm several days during that time, neither had seen Hereford cattle there during January, 1961.
This brief recital demonstrates the jury’s finding of guilty is amply supported by the evidence.
Appellant in his pro se briefs contends his retained counsel was incompetent. We have examined the transcript of the trial proceedings and find this and other contentions raised as to matters occurring after the trial to be without merit. Finding no error in the judgment and sentence they must be and are affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
The claimant (appellee and cross-appellant) was awarded workmen’s compensation in proceedings before the workmen’s compensation director and in the district court. The respondent employer and his insurance carrier appeal. The claimant contends compensation was properly allowed except as to the amount in regard to which he has filed a cross-appeal.
The award of the workmen’s compensation director was affirmed in all respects by the trial court except the date of the accident was correctly changed from April 4, 1965, to April 12, 1965.
The claimant, Charles H. Casebeer, and the employer, John Case-beer, are brothers. John is in the oil and gas business. He owns an interest in a number of leases and is also sole proprietor of Case-beer Oil & Gas Company, a business primarily concerned with operating and servicing oil and gas wells.
On January 29, 1962, the employer filed his election to come within the provisions of the Kansas Workmens Compensation Act. In the election the employer is identified as J. W. Casebeer DBA Casebeer Oil Operations engaged in the business of oil production, drilling and oil field equipment.'
The claimant worked for his brother (John) most of the time since 1939 or 1940. Approximately eighteen months prior to the accident, claimant was fired of laid off. He was later rehired and had been working for employer regularly for several months prior to the accident. He was hired by the month as a pumper and was paid $50 each for pumping four oil wells and $12 each for picking up meter charts on two gas wells, or a total of $224. In addition to his work as a pumper, claimant was frequently hired by the employer to do welding and miscellaneous labor on an hourly basis. The evidence discloses that claimant was paid five or six dollars an hour for welding and two dollars an hour for other labor. Claimant operated a welding business known as “Charley’s Welding” and did welding and miscellaneous labor for other employers as well as the Casebeer Oil & Gas Company.
Claimant when working for employer as a pumper, welder or common laborer, was supervised by the employer or his superintendent, Allen Koehn. If claimant needed any helpers they were hired by the employer.
On Sunday, April 11, 1965, the day preceding the accident, the employer went to claimant’s house and told him about an orbital valve at a junk yard. The employer testified that he told claimant to mark the valve so that his (employer’s) boys could take a look at it; that he didn’t want the valve destroyed until either he or his men could inspect it.
Claimant’s version of the conversation was that employer told him to look at the valve and if he could buy it cheap enough to go ahead and buy it. Claimant testified that it was his understanding that he was to pick up the valve on his way to pump the wells the following morning. Claimant stopped at the junk yard the next morning, inspected the valve and loaded it in his pickup truck with the help of another man. Claimant delivered the valve to the equipment yard of the employer.
An orbit or orbital valve is a safety valve used in drilling oil and gas wells and weighs about 270 pounds.
Claimant testified that he hurt his back while loading the valve. He continued with his work, however, and pumped the wells, did welding for two hours, worked on a compressor for two hours and graded a road for two hours on one of the leases his employer was servicing. Claimant had been employed a day or two in advance to do this work by the employers superintendent, Allen Koehn. Claimant testified that during the day he got to the point where he could not get around. His condition continued to get worse every day. He contacted several doctors, including two psychiatrists who had previously treated claimant for a nervous condition and alcoholism. Claimant was referred by one of the psychiatrists to Dr. Charles Rombold, an orthopedic surgeon. Dr. Rombold diagnosed claimant’s injury as “a degenerated intervertebral disc at the lumbosacral level, symptoms of which apparently had been aggravated by a strain four weeks previous to the time of the examination.” (Emphasis supplied.) Dr. Rombold performed a spinal fusion on claimant on May 27, 1965.
Proceedings were had before the examiner on November 2, 1965, and January 4, 1966. The record was assembled disclosing the evidence for the claimant, consisting of his testimony, that of his wife, Dorothy Casebeer, and the junk yard operator, H. E. Copeland, and the depositions of Drs. Rombold and Harris. Respondent’s evidence consisted of the testimony of John W. Casebeer and the deposition of Dr. John Morton.
Compensation was awarded by the examiner and on application of claimant the award was reviewed by the director.
The director found claimant’s average weekly wage to be $143.69 based upon claimant’s wage as a pumper in the amount of $53.69 a week, as a welder $60 per week and as a laborer $30 per week. Based on such findings the director awarded compensation for 22 weeks temporary total disability at the rate of $42 per week and 393 weeks of permanent partial disability at the rate of $12.93 per week based upon a 15% disability to the body as a whole. The director further ordered the payment of claimant’s medical expense, the amount of which is not in dispute if claimant is entitled to compensation.
The trial court made no separate findings of its own but, as we have previously indicated, affirmed the director’s award in all respects except as to the date of the accident.
On appeal the employer and insurance carrier contend the trial court erred: (1) In failing to find that employer and claimant were partners and that claimant could not collect workmens compensation from a partnership of which he is a member; (2) in finding an employer and employee relationship existed between claimant and employer with reference to the orbital valve; and (3) in its computation of claimant’s average weekly wage. It is further contended that there was no substantial evidence to support the award or any part thereof.
The claimant in his cross-appeal contends the trial court erred in computing the amount of compensation. Specifically, claimant contends the trial court erroneously omitted one item of four dollars for two hours of labor in grading a road on the day of the accident and further that partial disability of 25% rather than 15% should have been allowed.
Before discussing points raised on appeal we must again reiterate that on appellate review of a workmen’s compensation case, this court does not weigh the evidence and it must be considered in the light most favorable to the prevailing party. We have so held in a long line of cases. Some of the most recent decisions are Gray v. Beller, 199 Kan. 284, 428 P. 2d 833; Mooney v. Harrison, 199 Kan. 162, 427 P. 2d 457; Morgan v. Sholom Drilling Co., 199 Kan. 156, 427 P. 2d 448.
Respondent and insurance carrier contend that respondent and claimant were partners rather than employer-employee at the time of the accident. The argument is based on the premise that claimant owned a one-sixteenth interest in a gas line system consisting of two gas wells and a one-sixteenth interest in each of two oil wells in which respondent also owned an interest. Assuming that claimant’s ownership of a one-sixteenth interest in the four wells establishes k mining partnership in such properties, an employer-employee relationship is not perforce prohibited.
The respondent testimony in regard to employing claimant is narrated as follows:
“. . . I am in the oil and gas business. I operate with co-owners and' have a mining partnership in different leases.
“Charles Casebeer used to work for me as my production superintendent. welding business, Charley’s Welding. I would give him work from time to time when I needed someone to do welding work. Charles asked me if I ever had a pumping job open he would like to try it. Just before Christmas Ed Sigley asked to be relieved and I told Charles he could try the work.”
Claimant’s testimony in part as narrated reads:
“I have no interest in Casebeer Oil & Gas Company. I do have an interest in some of the oil wells that are serviced by Casebeer Oil & Gas Company.
“I don’t know how John Casebeer works his books. I put down my time and my hours. What he charges the people who have working interests in the oil wells would be up to him.
“I was paid wages as a pumper by the month by Casebeer Oil & Gas Company. I got $50.00 per well per month and I had to pick up charts on two gas meters. I got $12.00 a month for each one of them. On the average it would take me probably three hours a day to perform these services if they were running good. It is hard to tell. Some days it would take longer. Some days you didn’t get done.”
“. . . From January 1 until in April I was operating my welding business and working for John and for anybody else that wanted to hire me, if I could get work.”
“Any time I performed additional work either John Casebeer or Allen Koehn would tell me to do such work. . . .”
There is evidence that respondent, doing business as the Casebeer Oil & Gas Company, operated and serviced the leases in question rather than as a member of the several mining partnerships arising from the ownership of the leases. Regardless of the viewpoint taken the trial court has resolved the question in favor of the workman even though no specific finding was made on the point. We take note from exhibits in the record that John is the owner of a majority interest in the four leases in which Charles had an interest. As owner of a majority interest in the four leases in question John was vested with authority to control the conduct of the business in the absence of an agreement by all owners. (Browne v. Loriaux, 189 Kan. 56, 366 P. 2d 1016.) It follows that John, as a majority owner, had authority to hire and fire workmen. Claimant could not be said to be a self-employed person merely because of his minority membership in the mining partnership.
Respondent and his carrier also argue that there was no contract of employment as to claimant’s work as a welder and laborer.
In determining the actual relationship of parties under the Workmen’s Compensation Act courts do not regard a single fact as conclusive but will look at all the facts and circumstances involved in a particular case. Our Workmen’s Compensation Act does not require an express contract to establish its existence, the conduct of the parties being sufficient to disclose an agreement. (Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872; Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494.)
In view of what has been said we find no reason to disturb the ruling of the trial court with respect to the relationship of the parties or the contract of employment.
We turn next to the question whether or not claimant’s injury arose out of and in the course of his employment. Claimant was on his way to work when he loaded the valve into his truck. It appears that after loading the valve he next proceeded to his pumping duties and then went on to his welding, road grading, and worked on a compressor for which he had previously been engaged. There is some conflict between the testimony of respondent and that of claimant as to what specifically were the orders in regard to picking up the valve. Without delving into the evidence further on this point, it will suffice to point out again that this court does not concern itself with conflicting evidence in workmen’s compensation cases. It is argued that here the workman was on his way to work when, he suffered the injury and that under the provisions of K. S. A. 44-508 (k), (now K. S. A. 1965 Supp. 44-508 [k]) as construed and applied in Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P. 2d 754, compensation is precluded. The simple answer to this argument is that in the case before us the workman was not on his way to work but was already performing a part of his employment when he stopped at the junk yard at the direction of his employer when the accident occurred. The act does not require that the injury was sustained on or about the employer’s premises. (Blair v. Shaw, 171 Kan. 524, 233 P. 2d 731.) In the case at hand, considering the evidence in the light most favorable to the prevailing party, as we are required to do, it appears that claimant was doing something connected with the employer’s business, under the direction of the employer, for the benefit of the employer and at a place where the work was to be performed at the time the accident occurred. Injuries resulting from an accident under such circumstances are compensable. (Taylor v. Centex Construction Co., 191 Kan. 130, 379 P. 2d 217; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Bell v. Allison Drilling Co., 175 Kan. 441, 264 P. 2d 1069; 1 Larson on Workmen’s Compensation Law §27.40, pp. 452.60 to 452.69, incl. [1952].)
There is substantial competent evidence to support the trial court’s conclusion that claimant was in the course of his employment at the time he injured his back in loading the orbital valve.
This brings us to the question concerning the computation of compensation. As previously indicated, both parties have appealed in this respect. We shall consider first the position of claimant. It is contended the trial court should have awarded compensation on a basis of a minumum of 25% permanent partial disability rather than 15% allowed. Medical evidence in the record consists of the testimony of Dr. Rombold, the orthopedic surgeon who performed the spinal fusion, and that of Drs. .Harris and Morton, psychiatrists. Dr. Rombold testified that he would allow 10% permanent partial disability as a result of the spinal fusion. Dr. Harris testified that claimant would have a 15% to 20% permanent partial disability as a result of the aggravation of pre-existing nervous condition caused by pain of the back injury.
Dr. Morton’s testimony on direct examination is narrated as follows:
“I am a psychiatrist at Hertzler Clinic, Halstead, I first saw Charles Casebeer in 1961 for alcoholism. I saw him again later in the month and again in January of 1962. I did not see him again till December 22, 1965. My interview and examination disclosed that he had improved considerably in his physical appearance and health and he was not showing any evidence of alcoholism. He stated he had not had a drink in six months, this being the period in which he had ceased to work for his brother and had taken other employment. He stated he had never felt better in his life and that in his opinion his brother did too and they were both the better off for it. I was unable to find any evidence of nervous disorder.”
On cross-examination Dr. Morton testified in substance that he would have no reason to disagree with the permanent partial disability of 15% to 20% rating by Dr. Harris.
Claimant contends that 15% to 20% permanent partial disability suggested by the testimony of Drs. Harris and Morton should be added to the 10% allowed by Dr. Rombold, resulting in a minimum rating of a 25% permanent partial disability. Apparently the trial court, in weighing the medical evidence, added 5% from the testimony of Drs. Harris and Morton to the 10% allowance of Dr. Rom-bold in arriving at an allowance of 15% permanent partial disability. This the trial court was entitled to do. After noting the rules of appellate review, hereinbefore set out, we stated in Elliott v. Ralph Construction Co., 195 Kan. 723, 408 P. 2d 584:
“Under the foregoing rules the trial court was entitled to believe the testimony of Dr. Hall, who was the claimant’s examining physician and family doctor of long standing, and disregard the testimony of Dr. Spitzer. The record therefore contains substantial competent evidence to uphold the trial court’s finding. . . .” (p. 726.)
In this case the trial court’s finding of 15% permanent partial disability was within the scope of, and supported by, the evidence and therefore will not be disturbed.
We- shall consider next the serious issue raised in connection with the computation of compensation. The problem arises in connection with the determination of claimant’s average weekly wage.
The trial court found the average weekly wage to be $143.69. The calculation used to arrive at this figure appears to be the addition of $53.69 weekly wage as a pumper, $60 per week as a welder, and $30 a week as a laborer to arrive at a total of $143.69.
It is conceded that the figure of $53.69 was reached by a mathematical error, the correct amount being $52.29.
It appears the trial court computed claimant’s weekly wage as a welder by multiplying by five the twelve dollars received by claimant for welding on the day of the injury and likewise computed weekly wages as a laborer by multiplying by five the six dollars received for work on a compressor. Claimant contends the trial court erroneously omitted in its calculation four dollars paid claimant for two hours labor in grading a road.
Respondent and his carrier claim that if claimant is entitled to compensation it should be based on only his weekly wage as a pumper. It is argued that earnings of claimant as a welder and laborer should not have been used in computing claimant’s weekly wage because those earnings were for work done after the injury rather than prior thereto. Respondent and carrier reach into the language of K. S. A. 44-510 (3) (c) (24) to support their position. The provision relied upon directs that compensation for a period of temporary or permanent partial disability not exceeding 415 weeks be 60% of the difference between the amount employee was earning prior to his injury and the amount he is able to earn after his injury. There is no merit in this contention. Even though the wages used by the trial court in its calculation were earned after the injury there is substantial competent evidence in both testimonial and documentary form that claimant had been employed both as a welder and laborer by this employer on numerous occasions for several months prior to the injury. In fact, claimant was employed a day or two before the injury to do the work performed on April 12, 1965. Furthermore, in view of our conclusion as to computation the matter is irrelevant.
We find error, as a matter of law, in the method used by the trial court in computing claimant’s average weekly wage as a welder and laborer. K. S. A. 44-511 defines the method of calculating a workman’s average weekly wage. The import of the statute is set out and its inapplicability as to the determination of the average weekly wage of a part-time worker, paid by the hour, where there is no customary number of working hours constituting an ordinary day, is explained in detail in the recent case of Armstrong v. Manpower, Inc., 194 Kan. 753, 401 P. 2d 903. As we stated in Armstrong, the simple formula prescribed in the statute will not work unless it can first be determined how many hours customarily constitute an ordinary working day.
The Armstrong case dealt with a workman similarly situated as claimant in the case at hand. Armstrong was a part-time employee hired on an hourly basis when work was available. When he worked he might work from one to as many as eight hours a day. The failure of the statute to prescribe a formula in such a case was pointed out in Armstrong where we said:
“Our attention has been directed to no statutory formula for computing the average weekly earnings of an injured workman, other than that set out in G. S. 1961 Supp., 44-511, nor has our own research revealed any other legislative pronouncement. Hence, we are without legislative direction as to the manner in which this claimant’s weekly wage should be figured even though we may be sure that the legislature never intended a workman in plaintiff's position to be without remedy.” (p. 755.)
We reached the following conclusion in Armstrong:
“We conclude, for reasons heretofore stated, that the provisions of G. S. 1961 Supp., 44-511, defining the formula for computing the average weekly wage of a workman who is paid by the hour, are not applicable to a workman in this claimant’s position. We further conclude that in the absence of legislation applicable to the facts disclosed in this case, the average weekly wage of a wage earner, such as plaintiff, is to be computed on the basis of his actual average weekly earnings.” (p. 757.)
We believe the direction clearly stated in Armstrong should be applied here in ascertaining claimant’s average weekly wages for welding and labor. That is to say, the average weekly wages of claimant should be determined by ascertaining his average actual weekly earnings as a laborer and welder.
This court has often reiterated that the jurisdiction of the trial court in compensation cases , is simply to grant or refuse compensation or to increase or diminish any award and does not include the power to grant a trial de novo nor to hear new evidence and must take the case on the transcript of proceedings previously compiled. (Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598; Place v. Falcon Seaboard Drilling Co., 186 Kan. 523, 350 P. 2d 788; Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432; Landes v. Smith, 189 Kan. 229, 368 P. 2d 302.) It follows the average actual weekly earnings of claimant must be ascertained from the record.
The testimony of both parties established that claimant was employed on January 1, 1965, and worked for respondent through April 12, 1965, regularly as a pumper and frequently on an hourly basis as a welder and laborer. This amounted to a period of fourteen calendar weeks during which time claimant was paid a total of $238.00, for his extra work as a welder and laborer, as reflected in the assessment statements of the employer. The statements referred to were admitted as exhibits and appeal- to be the only evidence in the record as to the actual earnings of claimant paid by this employer during the period in question. It follows the actual average weekly earnings of claimant as welder and laborer during this period amounted to $17 per week plus his actual weekly earnings of $52.29 as a pumper totals $69.29.
. The judgment of the trial court is affirmed as modified with directions to the trial court to enter judgment for compensation due claimant on the basis of an average weekly wage of $69.29.
It is so ordered.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is from an order modifying the amount of payments for alimony and child support.
The appellee, Nancy B. Herzmark, obtained a decree of divorce from the appellant, Edgar E. Herzmark, in the district court of Johnson County, Kansas, on February 16, 1965. Custody of the minor child, Jody Ann Herzmark, was given to the wife. A division of property was decreed and the husband, Edgar, was ordered to pay alimony and support payments. The parties had been married for almost sixteen years.
Edgar remarried in July, 1965, and Nancy remarried in November, 1965. Shortly after Nancy remarried a motion to modify the amount of alimony and support payments was filed by Edgar. After a full hearing on the motion a reduction of the amount payable was ordered. The husband appeals.
The financial statement of the parties at the time of the divorce indicated a net worth of approximately $64,000. The personal earnings of the husband averaged $1800 per month in 1963, and $1000 per month in 1964. He anticipated earnings in 1965 of $4800 plus income of $600 per month from payments to be received on a note of $33,100. The note represented the amount owing from the sale of his stock in a family business corporation and was payable without interest.
The decree of divorce provided for a division of property. The wife received the family residence which she sold and she received $9,000 net therefrom. In addition she received the contents of the residence valued at $5000 plus a car valued at $1440. The husband was given the balance of the property subject to debts. He was directed to deliver the $33,100 note to the clerk of the district court. The wife was given a lien upon the note for all payments due her under the decree. The defendant was ordered to pay $600 per month for the support of plaintiff and minor child until the further order of the court.
On the motion to modify it was stipulated that the court review all evidence introduced at the divorce hearing concerning the income and property of the parties and the pertinent evidence be considered by the judge. Additional testimony was given by the parties.
The plaintiff, Nancy, testified she was married to Simon Kraft on November 10, 1965. Simon Kraft is sales manager for a tool company and earns $917 per month. They are living in a two bedroom house which rents for $125 per month. Jody, the minor daughter of Edgar E. Herzmark, lives with them. Mrs. Kraft estimated that expenses for Jody amount to $40 a month for food, $20 for clothing, $17 for her share of utilities and $25 for transportation. She testified other incidental expenses for Jody varied in amount from $65 to $146 per month. Mrs. Kraft has $8500 from the sale of the residence in a savings account.
The defendant testified his earned income in 1965 averaged $600 per month and $600 per month was paid on the note. He further testified he remained a member of the Oakwood Country Club and his present wife was paying the dues. Prior to the divorce action his income was close to $20,000 annually and he had fringe benefits such as the complete use of a company car, hospital and medical insurance and company paid life insurance. He no longer has these benefits. At the hearing for modification he testified his daughter, Jody, was nine years old. He estimated the necessary expense of her support to be $75 per month. In addition he carried a life insurance policy for his daughter costing $23.93 per month, and she was included in benefits under his hospital and medical insurance policy. He was working for two companies. His combined salaries covering the period from January 1 through November 15, 1965, totalled $6880. There was evidence at the divorce hearing that he was capable of earning as much as $20,000 per year.
The district court modified the decree of divorce as it pertained to the alimony and support payments. The court found the wife had remarried in November 1965. The pertinent parts of the order modifying the decree are as follows:
“9. The Court finds after careful consideration of said motion and the evidence of the property of the parties at said divorce hearing, that said support order should be modified as follows:
“a. That a reasonable amount necessary for the support of the minor child, taking into consideration her station in life and needs, without provisions for education, to be the sum of $150.00 per month, commencing on January 1, 1966.
“b. That provisions should be made for the education of said minor during her minority as follows, to-wit:
“That the Defendant shall forthwith establish in some banking institution in Johnson County, Kansas, an account to provide funds for the proper education of said minor and shall forward to the Clerk of this Court each month, commencing January 1, 1966, the sum of $150.00 made payable to such desig nated banking institution, to be deposited in said account by said Clerk until a total of forty (40) such deposits shall be made, said account to be arranged to draw interest thereon. That within one year after said minor graduates from high school and enrolls in a college, said minor shall be entitled to withdraw from said funds an amount not exceeding $400.00 each calendar year for tuition and necessary books and the further sum of $100.00 per month so long as she remains in college or until the funds and accumulated interest thereon are depleted or until said minor attains legal majority. In the event said minor shall not enroll in college following one year from graduation from high school or should she voluntarily withdraw from college after having enrolled, the balance of said fund remaining on deposit shall thereupon be made payable to said Defendant, his heirs or assigns. That said banking institution should receive a copy of this order from the Clerk of this Court and receive such deposits and make such disbursements on the terms and conditions of this order; that the Defendant shall notify the Clerk of the designation of such banking institution. See Allison v. Allison, 188 Kan. 593, Gard’s, Kansas Code of Civil Procedure, pages 729-730 and K. S. A. [1965 Supp.] 60-1610 (a).
“c. That the Defendant should pay to the Plaintiff an allowance for future support, denominated as alimony the sum of $100.00 each month commencing on the 1st day of January 1, 1966, with a like sum each month thereafter until the further order of the Court.
“10. That Plaintiff should continue to have a lien on said note herein mentioned for said child support and alimony payments and that the remaining provisions of said decree should not be affected by this modification order unless same is so specifically provided herein.”
After a motion for rehearing was presented and overruled the court allowed Nancy Kraft $200 attorney fee for the attorney employed by her to defend against the motion to modify. The defendant appeals from the order making this allowance and from the order modifying the alimony and support payments.
The defendant contends on appeal the trial corut erred: (1) In requiring payment of alimony after the remarriage; (2) In requiring an excessive amount of child support to be paid; (3) In requiring payment into an educational fund for the child, and; (4) In requiring defendant to pay plaintiff’s attorney fee incurred on the motion to modify.
Significant change in our laws relating to divorce and alimony has come about by the enactment of the recent code of civil procedure effective January 1, 1964. K. S. A. 1965 Supp. 60-1610 provides in separate sections for (a) care of minor children, (b) division of property and (c) maintenance. Care should be exercised in drawing decrees of divorce requiring future payments in cash. Future amounts payable for care of a minor child may be modified on subsequent order of the court to advance the welfare of the minor child. Amounts payable for future support denominated as alimony may now be modified on subsequent order of the court under the provisions of K. S. A. 1965 Supp. 60-1610 (c). (Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226; Craig v. Craig, 197 Kan. 345, 416 P. 2d 297.)
The provisions of the statute relating to the division of property permits the court to equalize such division of property by requiring either party to pay such sum as may be just and proper. (K. S. A. 1965 Supp. 60-1610 [£>].) When the original decree of divorce is entered care should be exercised so that any payments to equalize the division of property are not included with payments for future support denominated as alimony.
In the present case it should be noted that the points raised on appeal do not concern the previous division of property. The payments which defendant seeks to have modified relate specifically to support of the child and future support of the wife. Such payments were not decreed for the purpose of equalizing a division of the property.
The first point raised by defendant concerns the allowance to plaintiff of alimony after she remarried. The court in its order of modification directed payment of alimony of $100 each month commencing January 1, 1966, until the further notice of the court.
In McGill v. McGill, 101 Kan. 324, 166 Pac. 501 [1917] the court said:
“Whatever may be thought or should be thought about the policy or propriety of requiring a divorced husband to continue payments of alimony to a wife, remarried to another man, the authorities are preponderant in support of the doctrine that her remarriage does not of itself operate as a release of the obligation, although it may well be a ground of application for discharging the defendant from further payments. (Citations.)” (p. 327.)
McGill was decided under prior statutes and arose from an entirely different factual situation. It is not controlling authority in the present case but it is of interest.
K. S. A. 1965 Supp. 60-1610 (c) relating to maintenance now reads:
“The decree may award to either party an allowance for future support denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. At any time, on a hearing with a reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due, but no modification shall be made, without the consent of the party liable for the alimony, if it has the effect of increasing or accelerating the liability for the unpaid alimony beyond what was prescribed in the original decree.”
The statute specifies that this is to be “an allowance for future support.” The word alimony used in our statute comes from the Latin “alimonia” meaning sustenance. It indicates sustenance or support of the wife by her divorced husband.
Under some of our more recent cases, concerning the allowance of alimony, changes in the law have been mentioned.
In Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478, it was pointed out that alimony may be awarded to a party irrespective of which party is found to be at fault.
In Zeller, certain factors were suggested as affecting the amount of alimony, including the needs of the wife.
In Moran v. Moran, supra, the court discussed the provisions in the statute for maintenance and said:
“Although the statute is new — and obviously the trial court has great latitude in providing for ‘future support’ — the general guide lines recognized as proper by this court in cases arising under the prior statute (G. S. 1949, 60-1511), which authorized alimony only where divorce was granted for the fault of the husband, are not to be discarded.” (p. 385.)
In Clugston v. Clugston, supra, the court quoted with approval from Moran to the effect that a plain reading of the statute indicates its terms are to be invoked when one party’s needs and the other party’s ability to pay are such that support should be ordered.
In Craig v. Craig, supra, an allowance for alimony was reduced from $1200 to $850. A primary factor compelling this reduction was a showing of the needs of the wife.
In Moran and Craig the monthly payments of alimony were awarded until death or remarriage of the recipient. Remarriage was not a limitation specified in the original decree of divorce in the present case. The decree in the present case provided for payments of alimony “until the further order of the court.”
The evidence introduced on the motion to modify establishes remarriage of the wife. There is no showing of continued need for support from the defendant. Simon Kraft, present husband of Nancy, is earning $917 per month and no special circumstances of need appear in the record. We are squarely confronted with the question of whether an award of alimony under K. S. A. 1965 Supp. 60-1610 (c) made payable until further order of the court may be continued after a valid remarriage of the recipient when it is shown the present husband of the recipient is fully capable of fulfilling his duty to support the wife.
We find nothing in our statute which specifically provides for termination of alimony payments on remarriage of the recipient. Yet alimony is referred to in the statutes and recent cases as an allowance for future support. It means sustenance or support of the wife by her divorced husband. The duty of the former husband to pay alimony arises from the marital relation which previously existed between the parties. It is distasteful to permit a divorced wife to hold both her former husband under a decree of alimony and her present husband under the marital duty of support which inheres in every marriage contract.
The cases from other jurisdictions are collected in the annotation appearing in 48 A. L. R. 2d 270. It is a general principle in many courts that it is contrary to public policy for a woman to receive support from both a former and present husband.
A wide discretion has been given the court by the legislature in determining an amount which is equitable, in decreeing circumstances of termination, in requiring payment of a lump sum, periodic payments or on a basis of percentage of income. The court may later modify the amounts and conditions for payment. Restrictions against increasing or accelerating the liability are prescribed.
We do not feel that our statute indicates an intention by the legislature to have alimony payments automatically terminate on remarriage of the recipient. The court which decrees alimony in the first instance should not be powerless to act under its equitable powers in event factors exist which would require special consideration. Automatic termination would raise problems concerning subsequent inquiry into the validity of a remarriage which might well be determined on motion to terminate the alimony payments.
After considering the statute and the decisions of this court we believe the remarriage of a divorced person, who is the recipient of alimony payments, does not of itself terminate the right to alimony. However, proof of a valid remarriage does make a prima facie case which requires the court to end it, in the absence of proof of some extraordinary circumstances justifying its continuance. It is repugnant to a sense of justice for one man to be supporting the wife of another who has recently assumed the legal obligation for her support. Under our statute which permits an award of alimony to either party to the marriage it would be even more repugnant for a man to receive support from both wife and former wife.
Proof of remarriage of the plaintiff to Simon Kraft made out a prima facie case for termination of future alimony payments. The burden of proving special circumstances justifying any continuance in the present case rests with the plaintiff, Nancy Kraft. There is no evidence in the record upon which the court could justify continuation of the alimony payments of $100 per month. The decision of the trial court in regard to payment of alimony after remarriage is erroneous and payment of alimony to Nancy Kraft should be terminated.
Defendant next contends the trial court abused its discretion by ignoring evidence of the actual expenses for child support. We previously reviewed the evidence relating to actual expenses for support in the light of testimony concerning defendant’s earning capacity and present income.
Matters concerning support of minor children and any modification or change of any order in connection therewith rest in the sound discretion of the trial court under K. S. A. 1965 Supp. 60-1610 (a). (Kimbell v. Kimbell, 190 Kan. 488, 376 P. 2d 881; Grunder v. Grunder, 186 Kan. 766, 352 P. 2d 1067; Goetz v. Goetz, 184 Kan. 174, 334 P. 2d 835.)
The amount of the award is not excessive under the evidence presented and considered by the trial court. No abuse of discretion has been shown by the defendant and the order of the trial court allowing $150 per month for support of the minor child is approved.
The defendant challenges the order of the court requiring him to pay an additional sum of $150 per month to provide a $6000 college education fund for his minor daughter. He argues that K. S. A. 1965 Supp. 60-1610 (a) permits the court to set aside property for the support of the child but not for future education.
K. S. A. 1965 Supp. 60-1610 (a) in pertinent part provides:
“The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (tí) domicile of the child is in the state, or (in) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. In connection with any decree under this article, the court may set apart such portion of the property of either the husband or the wife, or both of them, as may seem necessary and proper for the support of all of tire minor children of the parties, or of either of them . . .”
Defendant points out the statute relates to custody, support and education when authorizing the court generally to provide for the children, whereas the provisions for setting property apart refers only to support. He defines the word property to mean accumulated property as distinguished from current income. Defendant insists the court abused its discretion in requiring him to establish this fund from accumulated property when the child was only nine years old and there was no showing of aptitude, desire and capacity for college.
An almost identical arrangement to provide for education of a minor child was approved by this court, with certain exceptions to be noted later, in Allison v. Allison, 188 Kan. 593, 363 P. 2d 795. The Allison case was relied upon and cited by the trial court when the present provision for education was made.
In Allison support payments were increased by the trial court and the father was directed to make payments into a fund for the child’s college education. On page 601 of the opinion the court said:
“Courts must take judicial notice of changing times and conditions. A college education has gradually become almost a necessity for our young people to find suitable placement in our American society and economy. Where the parents’ economic circumstances are adequate it is commonplace to send their children to college. Family budgets are so arranged that for many years prior to a child’s actual enrollment in college, funds are set aside in savings accounts and insurance policies purchased to assure a college education for the child. We think the provisions of 60-1610, supra, are sufficiently broad to authorize a trial court to make provision for the college education of a child, where the evidence shows a plan for such education, as here, and ability on the part of a parent, such as the appellant in this case, to provide such education.”
Certain limitations or guide lines were drawn in Allison. Any new order must be prospective and cannot change amounts past due. Such an educational fund may not extend beyond or make provision for a child of the marriage beyond minority. In event the child does not attend college for the period intended the fund should be made returnable to the funding party, his heirs or assigns. Such a plan must be definite and have for its purpose a suitable college education for the child. The plan must be reasonable within the parent’s ability to provide.
An examination of the provisions made by the trial court for the college educational fund indicates that defendant is to make forty monthly payments of $150 to be held by a banking institution. The account is to draw interest. If the child enrolls in college within one year after graduation from high school she may withdraw $400 each calendar year for tuition and books and a further sum of $100 per month so long as she remains in college. Such payments are limited to the period of her minority. If the child does not enroll in college within one year of graduation from high school or having enrolled voluntarily withdraws from college the balance of the fund is made payable to the defendant, his heirs or assigns.
The plan appears reasonably suited to the purpose of providing for the child’s education. It is within the guide lines of Allison and does not provide for payments after the child reaches her majority. Under the court’s order modifying the original decree the monthly payments of $150 for support and $150 to establish the educational fund continue to become a lien on the note held by the clerk of the district court. The note in the principal amountof $33,100 was awarded to the defendant as his separate property. The note was not set aside for the support or education of the child. The provisions made for the child are within the general authority granted in the first part of the statute K. S. A. 1965 Supp. 60-1610 (a). Even though the child was only nine years old and no evidence was introduced showing desire and aptitude for college the court made proper provision for the fund to revert to defendant at a definite time in event the child did not pursue a college education. The eventual size of the fund does not appear excessive in view of present college costs and evidence of defendant’s ability to provide for such education.
Defendant’s final contention relates to an allowance of $200 to plaintiff’s counsel for services rendered on motion to modify. He argues the right to require payment of counsel fees is based upon the existence of the marital relation and upon remarriage of the wife no basis remains to require payment from defendant. He further contends the wife has adequate savings from which to pay her own attorney.
The defendant does not contend that the amount is unreasonable in the light of actual services rendered by the attorney in defending against the motion to modify.
K. S. A. 1965 Supp. 60-1610 (/) provides:
“Costs and fees. Costs and attorneys’ fees may be awarded to either party as justice and equity may require.”
This section relates to the preceding sections of the statute which cover the care of minor children, alimony and orders of modification thereof. The court is given wide discretion in this matter. The authority granted is more general than that given by our previous statute on the subject. (G. S. 1949, 60-1507.)
In Kessler v. Kessler, 188 Kan. 255, 257, 362 P. 2d 21, we said:
“It is the law of this state that a wife may recover reasonable attorney fees from her husband when she is compelled by his wrongs to employ counsel to protect her rights. When a former wife seeks to defend or enforce a judgment, attorney fees are properly allowable. (Matson v. Matson, supra). In other words, after a divorce is granted, attorney fees are allowable if a wife is forced, due to the action or inaction of her former husband, to come into court to protect a right granted her by the judgment in a divorce action.”
(Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33; Bush v. Bush, 158 Kan. 760, 150 P. 2d 168; Davis v. Davis, 148 Kan. 826, 84 P. 2d 849. See, also, Matson v. Matson, 171 Kan. 112, 229 P. 2d 756.)
The former wife, Nancy, was required to employ counsel to defend the judgment rendered in her favor in the divorce proceeding. The allowance for attorney fee was reasonable and within the discretion of the trial court.
The order of the trial court requiring defendant to pay alimony after remarriage of the wife is reversed. The balance of the order relating to child support, educational fund and attorney fee is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
Frank Hoy was convicted of first degree murder (K. S. A. 21-401). A jury imposed a penalty of life imprisonment (K. S. A. 21-403). The motion for new trial was denied and defendant appeals.
The charge grew out of the shooting and death of Sharon Hoy on July 8, 1965, in the first hour after midnight in the city of Wichita, Kansas. Sharon Hoy obtained a divorce from the defendant and custody of a minor child some nine months prior to her death. She was shot while driving her cream colored Renault automobile on North Estelle Street at approximately 12:22 a. m. Her assailant was driving a 1951 model Chevrolet automobile, dark blue in color. Four witnesses testified the Chevrolet overtook the smaller Renault, forced it over the right street curbing and then proceeded past it and out of sight up the street. The witnesses heard three or four shots fired from the Chevrolet when the two cars were parallel. Although the incident happened when the cars were close to a street light, the witnesses were unable to recognize the driver of the Chevrolet.
Later investigation and laboratory analysis of the two cars established that one of the bullets, fired from within the Chevrolet, never left the car. It hit the upper edge of the lowered window and ranged downward into the interior of the door and was recovered. A second bullet entered the lower left front door of the Renault, passed on through and was recovered from the floor of that car. A third bullet entered the upper left front door of the Renault, passed through the front seat, entered the right front door and was recovered from the inside of that car door.
After the shooting occurred the Chevrolet passed rapidly out of sight to the north. The Renault turned back into the street, hit the left rear bumper of a car parked parallel to the right street curbing and continued slowly up the street to the point where it came to rest against the northeast curbing of the first intersection. About the time the Renault hit the parked car Sharon Hoy was ejected from the left front door of the Renault and fell to the middle of the street. She was first observed by a couple saying their “good-byes” on the front porch of the house where the car was parked parallel to the curbing. She was in a kneeling position in the street. They noticed bleeding and heavy breathing. She managed to rise to her feet and proceeded onto the porch of the house across the street. The people in that house were awakened when she collapsed against their front door. They looked at her crumpled form, saw bleeding and noticed noisy breathing. They immediately called the police. This call was noted at the police station at 12:22 a. m. Several police officers were at the scene by 12:31 a. m.
An autopsy performed on Sharon Hoy established death as a result of a bullet which entered her left breast, passed through her lung, upper trachea, neck and right shoulder. The doctor who performed the autopsy testified the woman was lying on her right side in the front seat of the Renault when the bullet entered her body.
When the police officers first arrived at the scene they called by radio for additional help. Officer Kenney while proceeding to the scene was advised to be on the lookout for a 1951 dark blue Chevrolet automobile which was wanted in connection with the shooting. On the way to the scene he noticed such a car parked beside a filling station at 17th and Grove streets. This was about eight blocks from the scene. The officer stopped and investigated. He felt the radiator of the car. It was warm. He noticed three people standing in front of the cafe across the street and went to them for information as to the owner and driver of the car. Frank Hoy, the defendant, advised Officer Kenney the car belonged to David Chaney and that the defendant had been driving it. Other officers arrived at the cafe in response to Officer Kenney’s report sent in at 12:48 a. m. They talked with the three men in front of the cafe while Officer Kenney returned to the 1951 Chevrolet. He looked through the rear window and saw an empty cartridge case which appeared to be a .32 or a .380 caliber automatic casing. He noticed a hole in the very top of the right front window and a dent in the outside part of the door. He was advised by radio to examine for yellow or cream colored paint and found it present on the right side of the Chevrolet. Defendant was then placed under arrest and taken to the police station. Police laboratory men took over possession of the car after talking with David Chaney, the owner.
Two empty cartridge casings were taken from the floor in front of the rear seat in the Chevrolet. A bullet was recovered from the inside of the right front door panel. Two bullets were recovered from inside the cream colored Renault automobile. Laboratory analysis of the casings and bullets indicated all were fired in and by the same weapon.
The two cars were linked together by visual identification of eye witnesses, laboratory analysis of bullets and casings and laboratory comparison of paint left on these cars by their impact. The murder weapon was never found.
The defendant contends the trial court erred in refusing to instruct the Jury on second degree murder and other lesser included offenses.
In State v. Fouts, 169 Kan. 686, 221 P. 2d 841, this court said:
“Our statute (G. S. 1935, 62-1447) requires the trial court in a criminal action to charge the jury respecting all matters which are necessary for their information in giving their verdict. ' JJndér our decisions, construing its terms, we have repeatedly held that in prosecutions for homicide it is the imperative duty of the trial court to instruct the jury not only as to the offense charged— in this case murder in tire first degree — hut as to all lesser offenses of which the accused might be found guilty under* the information and upon the evidence adduced. This, we might add, is the rule, even though the court may deem the evidence supporting the lesser offense to be weak and inconclusive and notwithstanding a request for such amJ instruction has not been made. See State v. Severns, 158 Kan. 453, 148 P. 2d-488; State v. Phelps, 151 Kan. 199, 97 P. 2d 1105; State v. Gloyd, 148 Kan. 706, 710, 84 P. 2d 966; State v. Cunningham, 120 Kan. 430, 243 Pac. 1006.” [p. 692]
Instructions on lesser included offenses Have been required in many of the reported cases when the defendant has been charged with first degree murder and the evidence in such case does not exclude every theory of guilt in a lesser degree. (See also The State v. Clark, 69 Kan. 576, 77 Pac. 287; The State v. Winters, 81 Kan. 414, 105 Pac. 516; State v. Smith, 161 Kan. 230, 167 P. 2d 594.)
In many other cases this court has held every theory of guilt on a lesser degree was excludéd under, the facts of the case. (State v. Noble, 175 Kan. 398, 264 P. 2d 479; State v. Gray, 189 Kan. 398, 369 P. 2d 330; State v. Andrews, 187 Kan. 458, 357 P. 2d 739; State v. Germany, 173 Kan. 214, 245 P. 2d 981; State v. Zimmer, 198 Kan. 479, 426 P. 2d 267.)
In State v. Noble, supra, this * court in referring to State «. Fonts, said:
“. . . It may be said that that case and others cited therein, as well as others mentioned, support the premise and we shall not discuss it further. As applied to the instant case the question is whether there was any evidence adduced that compelled an instruction on G. S. 1949, 21-412. . . [p. 400]
The court then reviewed the facts of the case and stated:
“. „. . As applied to the facts in this case we think it must be held the provision as to manslaughter in the second degree had no application. . . . The trial court did not err in not giving an instruction as to manslaughter in the second degree.” [p. 401]
The question in every case must be resolved from the evidence at the trial. If the evidence excludes theory of guilt on any lesser de gree then an instruction on first degree murder alone is all that can be required.
In the present case the defendant used an alibi for his defense. He denied all knowledge of the death of his former wife. His evidence, if believed, would have placed him at home in bed with another woman at the time Sharon Hoy was murdered. His alleged bedmate testified in his favor although her testimony was somewhat discredited by the testimony of her husband and two other persons in whose company she had remained throughout the night of July 7 and morning of July 8.
The jury did not believe the alibi testimony. The remaining question to be answered is whether the circumstances surrounding the death of Sharon Hoy excluded a theory of defendant’s guilt in any lesser degree. If the killing was committed purposely and maliciously, with deliberation and premeditation, any theory of guilt in a lesser degree was excluded and the instruction on first degree murder alone was proper.
This tragedy arose out of the broken marriage, the fight over custody of an only child and the jealousy of a former husband.
The evidence clearly showed that Frank Hoy shadowed Sharon Hoy to keep advised of her activities. He watched from a distance as she purchased groceries. He inquired of her friends and neighbors concerning her activities. He questioned Sharon about the care of the child and her relationship with Jeff Mitchell. On the morning of July 6 he talked with Sharon on the telephone. Sharon’s sister was listening on an extension phone and she heard the defendant tell Sharon, “I am going to get you, I might do 99 years but you will be in your grave, you wont know about it.”
On the evening of July 7 Sharon Hoy had been parked in the cream colored Renault automobile in Jeff Mitchell’s back yard from 10:00 until after midnight. Jeff Mitchell testified they sat in the car and talked. When she left in her car she told him she would call him when she arrived home.
There were four persons who testified they saw the small cream colored Renault approaching at a high rate of speed pursued by the 1951 Chevrolet. They saw the Chevrolet overtake the Renault. The speed and appearance of the cars indicated that Sharon Hoy in the Renault was attempting to outrun the blue Chevrolet. She lost the race and her life as the shots were fired from the blue Chevrolet.
It would be difficult to find another case where the evidence so thoroughly excluded guilt in a lesser degree. Sharon Hoy’s death was accomplished after deliberation and premeditation. She was pursued, overtaken and shot while in her moving vehicle. The acts which effected death were wilfully and maliciously carried out after threats of death were made. No instruction on a lesser degree would have been proper.
The next specification of error is based upon an order of the trial court overruling defendant’s challenge of a juror for cause. Betty J. Johnson was examined as to her qualifications to sit as a juror in . the case. She stated she had neither formed nor expressed an opinion on any issue in the case but later questions elicited the following information. She considered herself a dear friend of Sharon Hoy and family. She attended the funeral and talked with the relatives concerning Sharon’s death. She had some reservation concerning the weight of testimony which defendant might give.
Defendant’s challenge of this prospective juror was overruled. At the close of the voir dire examination the challenge was renewed and, with this one exception, defendant passed the panel for cause. Defendant exhausted all twelve' peremptory challenges as allowed by K. S. A. 62-1402. He used his first challenge to remove Miss Johnson and she did not sit as a jüror. Therefore, no person was allowed to sit as a juror who was unsuccessfully challenged for cause.
In view of our prior case law it is not necessary for us to determine if Miss Johnson should have been removed for cause. •
In State v. Hooper, 140 Kan. 481, 37 P. 2d 52, seven prospective jurors were challenged by the defendant for cause. Only one of the seven sat as a juror in the case. The others were removed by peremptory challenges. Five of these were removed by the defendant. The court on appeal determined the one person challenged was qualified and held no error resulted. At page 502 of the opinion the court said:
. While our statutes contemplate the use of peremptory challenges on jurors qualified for cause, error in the court’s ruling on a challenge for cause, especially if the soundness of the ruling is seriously debatable, should not re- ' quire- a reversal of judgment of conviction, if in fact, as here, the defendant had a trial before an impartial jury.”
In State v. Springer, 172 Kan. 239, 239 P. 2d 944, the court determined a challenge for cause should have been sustained by reason of kinship as specified' in G. S. 1949, 62-1406 [now K. S. A. 62- 1406]. In that case defendant exhausted all six of his peremptory challenges. He removed the incompetent juror using one of his peremptory challenges. The court at page 245 of the opinion said:
“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 the jury which tried defendant composed of impartial members? In the absence of any objection on the part of defendant to any members as it was finally drawn to try him we cannot say it was not impartial.”
In our present case the only juror challenged for cause by the defendant was not allowed to sit as a juror in the case. Under the reasoning and authority expressed in Hooper and in Springer error, if any, in failing to remove the juror on the challenge for cause, was not prejudicial and no reversible error was committed.
Defendant next suggests it was error because the trial court failed to provide an electroencephalograph suggested by a sanity commission appointed by the court prior to the trial.
Attorneys for defendant petitioned the court for appointment of a commission to determine if defendant was able to “comprehend his position and make a proper defense.” Pursuant to the petition two doctors were appointed. They examined the defendant and psychological tests were given. Written reports were filed by the commissioners which set forth the findings upon which they concluded the defendant was able to comprehend his position and make a proper defense. They found he was competent to stand trial.
However, one commissioner inserted an extraneous suggestion in his findings. The suggestion was based upon a statement made by defendant that he had “blackout spells.” The commissioners suggestion to the court was as follows:
“. . . The psychological tests also indicate that perhaps further evaluation is necessary if the question arises as to whether or not a fugue state might have existed at the time of the alleged crime. If this question arises, possible electroencephalograms should be done.”
A “fugue state” as mentioned in the commissioner’s report is defined in Webster’s unabridged dictionary (third) as, “a pathological disturbance of consciousness during which the patient performs acts of which he appears to be conscious but of which on recovery he has no recollection.”
We note the commissioner’s suggestion of the additional test was conditioned upon a question which might arise during the trial. The test was suggested if any question arose that a fugue state might have existed at the time of the alleged crime.
What was said in Van Dusen v. State, 197 Kan. 718, 722, 421 P. 2d 197, is particularly applicable'here, to-wit:
“In approaching this matter it must be kept in mind the sanity of one charged with crime may involve two., inquiries which are separate and distinct: First, sanity at the time of the commission of the alleged crime, and, second, sanity at the time of trial. The test of criminal responsibility differs from that of mental competency to stand trial (State v. Andrews, 187 Kan. 458, 357 P. 2d 739, cert. den. 368 U. S. 868, 7 L. ed. 2d 65, 82 S. Ct. 80). The test of responsibility for commission of crime in Kansas is what is commonly referred to as the M’Naghten rule, that is, whether the accused was capable of distinguishing between right and wrong at the time and with respect to the act committed (State v. Andrews, supra). Insanity at the time of the commission of crime is to be regarded as a defense in the criminal prosecution for such offense and as such it is to be presented and determined during the trial (Fisher v. Fraser, 171 Kan. 472, 233 P. 2d 1066), . . .”
The only questions raised by the commissioner related to defendant’s competency at the time of the commission of the crime. This is a matter of defense and, as such, it must be presented during the trial. The defense of defendant was an alibi. It was not insanity. At no, time during the trial was an issue raised concerning the competency of defendant at the time the crime was committed.
A similar claim of error was made and rejected in State v. Zimmer, supra.
Defendant cites In re Wright, 74 Kan. 406, 86 Pac. 460, in support of his contention. In Wright the defendant had been adjudged insane by a probate court after he had committed a felony and before his preliminary hearing on the felony charge. A writ of habeas corpus was granted at first, but on the rehearing [74 Kan. 409, 89 Pac. 678] the writ was denied. On rehearing the court said the questions raised concerning the onset and nature of the insanity were matters to be presented and determined during the trial of the felony charge. The case does not support defendant’s position here.
Defendant contends the verdict was contrary to law since a dermal nitrate test given to the defendant was negative. A dermal nitrate test is an investigative aid sometimes used by law enforcement officers. It is given to determine the presence of burned gun powder residue in the pores of the skin. Laboratory specialists who made the test on defendant’s hands testified a negative dermal nitrate test might indicate any one of three things. It might indicate defendant had not fired a weapon recently, or his hands were protected by gloves, or the weapon used did not leave evidence of nitrates by reason of its construction.
The testimony of the laboratory experts as to the results of the test was properly submitted to the jury with all other evidence in the case. The negative findings were evidence favorable to defendant, but the weight and effect of the evidence was properly left to the jury. (State v. Shaw, 195 Kan. 677, 408 P. 2d 650.)
On the motion for new trial defendant argued the statements made by him after his arrest were improperly admitted in evidence. He insists he was not advised of his constitutional rights and he was not allowed to have his attorney present at that time.
In order to place the questions raised in proper context it should be noted the statements referred to were elicited from defendant during custodial interrogation at the police station. Defendant at all times denied the charges. The statements made by him were in support of his claim of innocence. He accounted for his actions during that night, explained why he was using David Chaney’s automobile instead of his own, and denied knowledge of the recent damage to the Chaney car. From his statements one must infer that defendant had possession of this car throughout the night until he was arrested. He admitted ownership of a .32 automatic pistol at one time, but claimed it had been stolen from him three weeks before. He did not report the theft to the police. When told of witnesses who might identify him, he asked how this was possible and said “it was too dark.”
These statements were made during the first two hours and twenty minutes after he was taken to the police station. Officers Brierly and Brown handled the interrogation with the occasional help and presence of Officer Puckett. Mary Hawkins, a friend of defendant, was also present during a portion of the interrogation. At the beginning Officer Brierly filled out a sheet of background material on the defendant. He then advised defendant they were going to talk to him about the shooting of his wife. He told the defendant, “. . . anything that he told me that we could testify to in court, he wasn’t required to tell anything incriminating to him and that he could call his attorney if he so desired. . . .”
Officer Brown was not present at first when this advice was given to defendant by Officer Brierly, but he testified as follows:
“Detective Brierly introduced me. to Frank Hoy; I told him that I was Sergeant Brown of the Police Department. Detective Brierly told me in. front of Frank Hoy that he had advised Mr. Hoy that anything he said could be used against him, that he need make no statements, that he had the right to counsel and that we could promise him nothing and intended to threaten him in no way. I again, at that time, reiterated the same rights to Mr. Hoy; he said that he understood. . . .”
These officers testified that after the advice was given no request was made by defendant to call an attorney. At 4:00 a. m. he did ask to call his mother and permission was granted at once. Defendant called his mother and asked her to get in touch with his attorney. Questioning was resumed thereafter until defendant said, “I would rather not say anything until after I talk to my attorney.” At that time the interview was concluded. This was at 4:10 or 4:15 a. m. on July 8. The attorney appeared at 9:00 a. m. No further statements were made by defendant.
We note defendant testified that he asked to call his lawyer at 2:00 a. m. when the custodial interrogation began. This was directly refuted by the testimony of Officer Brown and Officer Brierly.
Trial of the case ended October 26, 1965. Defendant relies upon Escobedo v. Illinois, 378 U. S. 478, 12 L. ed. 2d 977, 84 S. Ct. 1758, in support of this specification of error. He quotes from page 490 of the opinion as follows:
“We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of 'interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon, the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U. S., at 342, [9 L. ed. 2d at 804, 93 A. L. R. 2d 733,] and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.”
It was agreed on oral argument the case of Miranda v. Arizona, 384 U. S. 436, 16 L. ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974, does not apply retroactively to this case. (See Johnson v. New Jersey, 384 U. S. 719, 16 L. ed. 2d 882, 86 S. Ct. 1772.) Therefore, our decision here relates only to the guidelines in Escobedo.
In Escobedo that court said:
“The critical question in this case is whether, under the circumstances, the refusal by the police to honor petitioner’s request to consult with his lawyer during the course of an interrogation constitutes a denial of ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U. S. 335, 342, [9 L. ed. 2d 799, 804, 83 S. Ct. 792, 93 A. L. R. 2d 733,] and thereby renders inadmissible in a state criminal trial any incriminating statement elicited by the police during the interrogation.” (p. 479.)
In that case Escobedo testified he had repeatedly asked to speak to his lawyer and the lawyer was at the police station asking to see his client. The police told the defendant his lawyer didn’t want to see him and continued the questioning until damaging statements were elicited. The court noted that testimony of police officers confirmed these accounts in substantial detail. Escobedo’s lawyer also testified of unsuccessful attempts to talk with his client during this period from 9:30 p. m. until approximately 1:00 a. m. There can be no doubt, from these facts, of the denial of the right to consult with counsel in violation of the Sixth Amendment to the United States Constitution.
It is quite clear from that decision no custodial interrogation should continue after defendant’s request for counsel until counsel is present. No statements, whether exculpatory or inculpatory, elicited from a defendant after denial of a request for counsel are admissible in evidence. Such statements are not considered voluntary when measured by the yardstick of Escobedo.
However, this is not our present case. The bald statement of Frank Hoy that he requested permission to call counsel is refuted by the testimony of Officer Brown and of Officer Brierly. In addition, it appears unlikely that the request would be entirely disregarded at first but promptly honored at a later time in view of the fact the interrogation was interrupted while in progress because of defendant’s request. At this time defendant did call his mother, not an attorney, and he asked her to get his attorney. It is also noteworthy that the interrogation was resumed but ceased when defendant said he would rather not say anything until he talked with his attorney. Under the circumstances of this case defendant was advised of his right to counsel and was granted permission to use a telephone immediately upon his request. He was properly advised of his right to remain silent and this right was honored by the officers. Defendant’s admissions were voluntary when measured by the yardstick of Escobedo. No error appears in this regard.
Objection is made to the admission of physical evidence alleged to have been obtained by an illegal search and seizure of the 1951 Chevrolet automobile taken from the custody of the defendant. This physical evidence consisted of two expended .32 caliber shell casings, paint samples, the right door glass, the bullet removed from inside the right front door. and photographic evidence of the car. In support of this contention the defendant cites Mapp v. Ohio, 367 U. S. 643, 6 L. ed. 2d 1081, 81 S. Ct. 1684. That case concerned a forcible entry of a personal residence, and seizure of obscene materials from the basement of a two-family dwelling without a legal search warrant. This case and others cited are not persuasive under the facts of the present cáse.
The physical evidence objected to by defendant was removed from the car. The car was identified by four different eye witnesses as being the car used by the individual who committed the murder. It had been further identified from damage to the right side and from cream colored paint thereon. The cream colored paint was later identified as coming from the victim’s car. The .32 caliber shell casings and the bullet damage to the right door glass were visible to the officer as he inspected the car from the outside. Coupled with this we have testimony of the ballistics experts from the police laboratory indicating the .32 caliber slug taken from the Chevrolet car and the two slugs recovered from the Renault car were fired by the same weapon.
In addition the owner, David Chaney, testified he had cleaned the interior of his car two days before and on the morning he left it with defendant the shell casings were not in it, the right door glass and right side of the car were not damaged and there was no cream colored paint on it.
When all of the foregoing evidence is considered there is little question this was the car used by the person who committed the crime. Its use under the circumstances made it an instrument of the crime, a means employed by the murderer to pursue, overtake and shoot to death his victim.
The circumstances of the crime known to Officer Kenney coupled with the evidence viewed by him, when he approached the car and felt the warm radiator, furnished probable cause for the arrest of the driver of that car. The defendant while in the company of the two men loitering in front of the cafe admitted he had been driving the car. Defendant’s arrest was upon probable cause. No search was involved, for the car was seized as an instrumentality of crime and the car itself was seized after the arrest was accomplished.
The rules governing search and seizure were examined in State v. Wood, 190 Kan. 778, 378 P. 2d 536. At pp. 789, 790, this court said:
“Where a lawful arrest is made and the person arrested is the driver or in control of an automobile, the automobile may be searched as an incident of the arrest. This includes the whole interior of the automobile and the trunk. The keys may be taken from him to get into a locked trunk. The search of the interior of the automobile and the seizure of evidence, if incident to a lawful arrest, is reasonable, and whatever is found, upon his person or in his control, which it is unlawful for him to have, and which may be used to prove the offense, may be seized and held as evidence in the prosecution. (See Weeks v. United States, 232 U. S. 383, 392, 58 L. Ed. 652, 34 S. Ct. 341; Carroll v. United States, 267 U. S. 132, 158, 69 L. Ed. 543, 45 S. Ct. 280; and State v. Carr, 114 Kan. 442, 218 Pac. 1007.)” [Emphasis added.]
A distinction is made between seizure of the instruments used to commit crime and seizure of private books and papers to be used only as evidence. This distinction was pointed out in State v. Blood, 190 Kan. 812, 378 P. 2d 548, as it applies to seizure of stolen goods, counterfeit coin, lottery tickets and implements of gambling. It may likewise apply to seizure of an automobile used by a murderer to pursue and overtake his victim, and from which the fatal shots were fired.
In Blood, page 817, the court said:
“The foregoing distinction was clarified by language in Harris v. United States [1947], 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098, as follows:
“ . . This Court has frequently recognized the distinction between merely evidentiary materials, on the one hand, which may not be seized either under the authority of a search warrant or during the course of a search incident to arrest, and on the other hand, those objects which may validly be seized including the instrumentalities and means by which a crime is committed, the fruits of crime such as stolen property, weapons by which escape of the person arrested might be effected, and property the possession of which is a crime. . . .’ (p. 154.)”
In State v. Hunt, 198 Kan. 222, 424 P. 2d 571, this court spoke of the right to seize the fruits of crime when incident to a lawful arrest and what was there said likewise applies to seizure of the instruments of a crime. Syllabus 1 reads:
“The fruits of crime when in open view of an officer lawfully on the premises or in a public street may furnish probable cause to make an arrest under all the surrounding circumstances, and when a lawful arrest is made of the person having possession of the same the officer may properly seize the property and make an additional search if incidental to the lawful arrest.”
Under the evidence in the record the automobile was an instrument used to commit the crime. Arrest of the defendant was made prior to seizure and upon probable cause. Seizure of the car and the' evidence therein was proper under the circumstances. Such evidence was properly admitted in evidence in the case.
We have carefully examined the voluminous record in this case and find the verdict of guilty supported by sufficient substantial evidence to justify the trial court’s order approving the same and the judgment is affirmed. | [
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Per Curiam:
On May 2, 1967, the State Board of Law Examiners filed an accusation in disbarment against Milford M. Magee. On June 10,1967, the accused filed his answer to the accusation, denying the allegations thereof.
On June 16, 1967, the court appointed the Honorable Harry E. Miller, Hiawatha, Kansas, pursuant to K. S. A. 7-113, as a commissioner to take the evidence. On July 5, 1967, the accused, in order to prevent further proceedings, personally surrendered his certificate to practice law in the courts of this state, and it is by order of this
COURT CONSIDERED AND ACCEPTED.
The clerk of this court is ordered and directed to mark the certificate void and to strike Milford M. Magee’s name from the roll of attorneys.
The costs heretofore accrued in this action are taxed against the accused. The accused having paid the costs thereof, this action is terminated. (K. S. A. 7-113.) | [
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The opinion of the court was delivered by
O’Connor, J.:
This action involves a dispute between the plaintiff, Maryland Casualty Company, and the defendant, American Family Insurance Group, and presents for determination the question of coverage, if any, under the defendant’s policy on a 1953 Plymouth automobile.
The facts giving rise to this dispute have been stipulated. On May 9, 1963, the defendant’s insured, LaMotte Shaw, owner of the Plymouth, and plaintiff’s insured, Tom Willis, whose mother owned a 1948 Volkswagen, agreed to trade automobiles. As additional consideration Willis gave Shaw a promissory note for $100 due May 15, 1963. It was agreed that the certificate of title to the Plymouth was to be retained by Shaw to insure payment of the note, and upon satisfaction thereof tire certificate of title was to be properly endorsed and delivered to Willis. Shaw turned the Plymouth and the keys thereto over to Willis, and Willis placed his license plate from the Volkswagen onto the Plymouth. About three hours after the trade was accomplished, Willis, while driving the Plymouth, collided with another automobile being driven by one Joanne Benson. Shortly after the collision, Willis, a minor, repudiated his deal with Shaw. The $100 was never paid, nor was the certificate of title to the Plymouth ever endorsed and delivered to Willis.
Thereafter, suit was brought in Shawnee county district court by Joanne Benson against both Shaw and Willis. Plaintiff and defendant undertook defense of their respective insureds, and eventually plaintiff negotiated a settlement with Joanne Benson for personal injuries and damages sustained by her in the collision. The settlement for $5,150 was within the applicable policy limits of the plaintiff’s policy as well as the defendant’s policy. Plaintiff’s attorney orally made demand on defendant’s counsel to pay the settlement, but the demand was refused.
Plaintiff paid the settlement and then brought the present action against the defendant to recover the amount of the settlement, costs and attorneys’ fees. The case was submitted to the district court on stipulated facts, and the court entered judgment in favor of plaintiff for the amount of the settlement, and costs, from which judgment the defendant appeals. The court denied plaintiff’s request for allowance of attorneys’ fees, and this forms the basis of a cross appeal by the plaintiff.
In a lengthy memorandum opinion the district court found: (1) The purported sale without assignment of the certificate of title was void under K. S. A. 8-135 (c) (6); (2) Shaw remained the owner and was covered under defendant’s policy; (3) Willis was using the automobile with Shaw’s permission, and therefore came within the omnibus clause of defendant’s policy; and (4) defendant’s policy afforded primary coverage.
Defendant raises numerous points of error, and they will be considered in due course.
We must first determine whether or not Shaw, the seller, was the owner of the Plymouth automobile at the time of the collision within the meaning of the “owned automobile” coverage afforded by defendant’s policy, and if so, whether under the omnibus clause Willis was using such automobile with Shaw’s permission. If as a result of the transaction Shaw was no longer the owner, defendant’s policy would offer no coverage, for Shaw would not he in a position either to give or withhold his permission or consent to the use of the automobile by Willis, the new owner.
Portions of defendant’s policy pertinent to this point are as follows:
“Liability Coverage
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage arising out of the ownership, maintenance or use of an owned automobile or the use of a non-owned automobile, . . .
“Persons Insured
“I. The following are insureds under the Liability Coverage:
“a. With respect to an owned automobile,
“ (1) the named insured,
“(2) any other person using such automobile with the permission of the named insured, provided his operation or, if not operating, his other actual use thereof is within the scope of such permission, . . .
“Definitions . . .
“ ‘owned automobile’ means
“a. the automobile described in the declarations; . . .” (Emphasis added.)
Plaintiff seeks to sustain the decision of the lower court by relying on K. S. A. 8-135 (c) (6):
“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
and contends that since the certificate of title was not assigned by Shaw to Willis at the time of the transfer of the possession of the automobile, the sale was fraudulent and void, and thus, Shaw remained the owner under defendant’s policy. Defendant, on the other hand, urges that the transaction was a conditional sale, that Shaw, having only a security interest, was no longer the owner, and that the mentioned statute is inapplicable.
In support of its position, defendant directs our attention to Weaver v. Hartford Fire Ins. Co., 168 Kan. 80, 211 P. 2d 113, and Brown v. Tri-State Ins. Co., 177 Kan. 7, 274 P. 2d 769. A detailed analysis of these cases is justified. In Weaver, plaintiff was the owner of a 1939 Ford truck insured by the defendant. Defendant’s policy contained an automatic insurance clause that provided cov erage on a replacement vehicle, and an exclusionary clause if plaintiff had other valid and collectible insurance to cover losses to the vehicle. Plaintiff traded the Ford truck for a new White truck. The balance of the purchase price for the new truck was financed, and plaintiff executed a conditional sales contract. After taking possession of the White truck, plaintiff obtained a new policy of insurance on the truck from another company. Before the bill of sale for the new truck was delivered, the truck was damaged in an explosion. Defendant was duly notified of the loss, and also of the purchase of the replacement vehicle. This court held that for the purposes of the new insurance taken out on the White truck by the plaintiff, he, as a purchaser, had an insurable interest therein, notwithstanding he had not yet received a bill of sale and certificate of title. In the opinion it was stated:
“. . . A person may actually own an automobile and thus have an insurable interest in it and.yet not have legal evidence of title. . . .” (p. 84.)
The court concluded, however, that although the White truck came within the automatic insurance clause of defendant’s policy, the policy did not afford coverage, because plaintiff had “other valid and collectible insurance” by virtue of the new policy taken out with the other company. It is apparent the case turned on the question of whether plaintiff, as a purchaser, had “an insurable interest” under the new policy, and the question being answered affirmatively, coverage was excluded under the terms of defendant’s policy. The failure to comply with 8-135 and the effect thereof upon possible coverage offered by any policy the seller of the White truck may have had — the point involved in the instant case — was not discussed. In fact, it was observed in the opinion that no claim was made that the insured (buyer) violated any of the provisions of G. S. 1947 Supp. [now K. S. A.] 8-135 so as to affect adversely his title to the White truck.
In the Brown case the sellers and buyer entered into a sale agreement whereby an automobile, which was subject to a chattel mortgage held by a finance company, was turned over to the buyer, but the sellers retained the registration tag, one set of keys, and the certificate of title until the buyer was accepted by the finance company, with the additional restriction the buyer was not to drive the car until the finance company substituted him in place of the sellers for the balance of the mortgage indebtedness. The buyer drove the car, in violation of the restriction, was involved in an accident, and the car was destroyed by fire. The car was insured by the sellers against loss by fire, and the sellers sued their insurance company. Defendant’s policy specifically excluded coverage when the vehicle was subject to a conditional sale which was not shown in the policy, or when the vehicle was in the possession of someone else under a conditional sale. It was held that there was a valid, conditional sale and, therefore, coverage was specifically excluded by the terms of the policy. The defendant’s policy in the instant case contains no such exclusion. The effect of what is now K. S. A. 8-135 (c) (6) was not directly considered, and like Weaver, the decision is not particularly helpful in deciding the precise question here.
To support its contention that Willis was the “owner” under a conditional sale agreement, defendant relies on K. S. A. 8-126(n), which reads as follows:
“ ‘Owner.’ A person who holds the legal title of a vehicle, or in the event a vehicle is the subject of an agreement for the conditional sale thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee . . . then such conditional vendee . . . shall be deemed the owner for the purpose of this act.”
The foregoing definition is the meaning legislatively ascribed to the word “owner” as used throughout the Registration of Motor Vehicles Act, but we do not believe it was ever intended to determine ownership for insurance purposes in the sale of an automobile where there has been no assignment of title as required by the act. In other words, even if a buyer is a conditional vendee, and thus is an “owner” as defined by the statute, that fact does not free him or the vendor from the regulatory provisions of the act relating to registration, sale and transfer of a motor vehicle. For example, not only are the parties subject to K. S. A. 8-135(c) (6), but also to K. S. A. 8-135(c) (2), specifying an assignment of certificate of title shall contain a statement of all liens or encumbrances of whatever nature and kind; K. S. A. 8-127, requiring every “owner” to secure registration of a motor vehicle intended to be operated in this state; and K. S. A. 8-135(c), compelling the new “owner” to present either a bill of sale, if the motor vehicle is new, or a certificate of title properly endorsed by the seller, if the vehicle is a used one, in order to register the vehicle.
Since the enactment of what is now K. S. A. 8-135(c) (6) (L. 1937, ch. 72, §5), we have numerous decisions holding that the statute means just what it says, and failure to comply therewith renders the sale of an automobile fraudulent and void. (Sims v. Sugg, 165 Kan. 489, 196 P. 2d 191; Farmers & Merchants State Bank v. Hunter, 166 Kan. 52, 199 P. 2d 196; Bankers Investment Co. v. Meeker, 166 Kan. 209, 201 P. 2d 117; Tilson v. Newell, 179 Kan 73, 293 P. 2d 227; Gurley v. Broadway Sales Co., 184 Kan. 179, 334 P. 2d 312.) We are not unmindful of other decisions, such as Felts v. Sugg, 167 Kan. 488, 207 P. 2d 460, and Crow v. Hershberger, 170 Kan. 492, 226 P. 2d 846, where noncompliance with 8-135 was raised but held not fatal to a plaintiff’s right to seek relief; but these are distinguishable, in that they were replevin actions.
We.believe there are sound reasons for applying the statute to a situation where, as here, it much be determined, despite a purported sale without compliance with the transfer statute, whether or not the seller’s insurance policy provides liability coverage while the automobile is being used by the buyer. The statute was enacted not only to protect the public against fraud and prevent traffic in the sale of stolen automobiles but also to lend stability and certainty in the business climate surrounding each transaction. The rights of those persons affected by a particular sale, such as a mortgagee or an innocent purchaser, are safeguarded by strict enforcement of such statute, and public policy would seem to dictate that the statute should be literally enforced for the protection of a third person who suffers injury at the hand of a buyer (driver) who has obtained possession and control of the automobile from the seller but has not received an assigned certificate of title as required by statute. In such case, the injured party should be entitled to the protection of the seller’s insurance if the buyer is operating the automobile as an additional insured under the seller’s omnibus clause. If per chance, as here, the buyer also has coverage under a separate policy issued to him on another automobile as the driver of a non-owned automobile, the injured party is protected under the buyer’s policy as well. Where, however, the buyer has no insurance, the protection afforded by the seller’s policy becomes of extreme importance. Without it, the injured party has no protection from either the buyer or seller. Yet this would be the result if we disregard the mandate of the statute and say that the purported buyer, rather than the seller, is the owner of the automobile. Of course, if the statute has been complied with, the injured party can look only to the buyer and any coverage he may have under either an existing policy or a new policy, for the seller is no longer the owner. In such case, the seller’s policy would provide no coverage under its omnibus clause, because the use of the automobile by the buyer would be by virtue of his ownership and right to control rather than by permission of the seller. The seller would no longer be in a position to grant or withhold that permission. (Haynes v. Linder, [Mo. App.] 323 S.W. 2d 505.)
For the above reasons we are compelled to conclude that the provisions of K. S. A. 8-135 (c) (6), making a sale of a vehicle registered under the laws of this state without the assignment of the certificate of title fraudulent and void, cannot be disregarded. Although the transaction had all the earmarks of a conditional sale (Brown v. Tri-State Ins. Co., supra), because of the parties’ failure to comply with the statute, Willis did not become the owner of the Plymouth; consequently, Shaw remained the owner within the meaning of the “owned automobile” coverage under defendant’s policy.
The same result would obtain even if we regard the transaction as an executory contract of sale. (See dissent in Brown v. Tri-State Ins. Co., supra.) In such case, the sale was not consummated, and there was no transfer of title, because the seller was not obligated to assign the certificate of title until the conditions of sale had been satisfied. The use of the automobile pending consummation of the sale was, under such circumstances, clearly by permission and consent of the seller. (Allstate Insurance Co. v. Hartford Accident & Ind. Co., [Mo. App.] 311 S. W. 2d 41.)
A nearly identical factual situation to that in the instant case was before the United States District Court for the Western District of Missouri in Western Fire Ins. Co. v. Hawkeye-Security Ins. Co., 213 F. Supp. 744. That court, applying Kansas law, G. S. 1957 Supp. [now K. S. A.] 8-135 (c) (6), and citing many of our cases where the statute has been strictly applied, held an agreement between the seller and buyer to delay assignment of title was an executory contract for the sale of the automobile, and the sale was not complete until the certificate of title was actually endorsed and delivered by the seller to the buyer; hence, the automobile was being driven by the purported buyer at the time of the collision with the knowledge and consent of the seller and was within the coverage of the seller’s liability policy.
This is not to say that a purported buyer who obtains a new policy is without an insurable interest, although there has not been full compliance with the transfer statute. Weaver v. Hartford Fire Ins. Co., supra, appears to have settled that question, at least as to insurance against loss of the vehicle itself. To that extent, our holdings in Morris v. Firemens Ins. Co., 121 Kan. 482, 247 Pac. 852, 52 A. L. R. 696, Bradley v. Retailers Fire Ins. Co., 126 Kan. 27, 267 Pac. 23, Barton v. Mercantile Ins. Co., 127 Kan. 271, 273 Pac. 408, that a buyer of an automobile who fails to comply with our former transfer statutes (L. 1921, ch. 69, §§15, 16; R. S. 1923, §§8-117, 8-118) has no insurable interest, may be questionable precedent. With respect to automobile liability insurance, there is authority that the general rule requiring an insured to have an insurable interest is satisfied by the insured’s possible exposure to liability for damages incident to the use and operation of the automobile and does not depend upon his legal or equitable title in the insured vehicle. (7 Am. Jur. 2d, Automobile Insurance §§11, 12, 13; Anno. 1 A. L. R. 3d 1193; Couch on Insurance 2d §24:159.)
Whether or not Willis had a separate insurable interest in the Plymouth is not important in this case, because we are concerned only with the coverage afforded under the omnibus clause of the seller’s policy. An omnibus clause in a liability policy is for the purpose of covering a group of persons who may or may not have an insurable interest at the time the policy is written. It is not essential that the driver have an independent insurable interest in the automobile in order for him to be an additional insured under an omnibus clause and be indemnified for injury caused to others. (7 Am. Jur. 2d, Automobile Insurance §13, §109, et seq.; Couch on Insurance 2d §24:159.)
Having determined that Shaw remained the owner of the Plymouth for purposes of coverage under defendant’s policy, we likewise hold that under the omnibus clause Willis was using the automobile with the permission of Shaw.
The word “permission” as used in an omnibus clause ordinarily connotes the right or power to grant or withhold the privilege or license embodied in the term itself. As a general rule, in order for a person’s use and operation of an automobile to be within the meaning of an omnibus clause extending liability coverage to one using the same with the permission of the named insured, the latter must own the vehicle, or have such an interest in it, that he is entitled to the possession and control of the vehicle and thus be in a . position to give such permission. (Haynes v. Linder, supra; Allstate Insurance Co. v. Hartford Accident & Ind. Co., supra; Didlake v. Standard Ins. Co., [C. A. 10 Okla.] 195 F. 2d 247, 33 A. L. R. 2d 941; Whitney v. Employers Ind. Corp., 200 Iowa 25, 202 N. W. 236, 41 A. L. R. 495; Farm Bureau Mut. Ins. Co. v. Emmons, 122 Ind. App. 440, 104 N. E. 2d 413; Va. Auto Mut. Ins. Co. v. Brillhart, 187 Va. 336, 46 S. E. 2d 377; 45 C. J. S., Insurance § 829c (2) (b) bb; 7 Am. Jur. 2d, Automobile Insurance § 115; Annos. 72, A. L. R. 1390, 106 A. L. R. 1255, 126 A. L. R. 549.)
In the cases where the question has been dealt with directly in regard to a conditional sale, it appears that the vendee’s use of the automobile’ is by virtue of his ownership thereof rather than by reason of the consent or permission of the conditional vendor, and therefore the vendee is not an additional insured under the vendor’s omnibus clause. (United Fire and Casualty Co. v. Perez, _ Colo._, 419 P. 2d 663; Farm Bureau Mut. Ins. Co. v. Emmons, supra; Whitney v. Employers Ind. Corp., supra; Va. Auto Mut. Ins. Co. v. Brillhart, supra; Anno. 36 A. L. R. 2d 673.) The rule is well stated in Couch on Insurance 2d §45:383:
“The rule applicable in the case of absolute sales is likewise applicable to conditional sales, so that the vendor is not regarded as giving permission to the vendee to operate the automobile and the vendor’s insurer is therefore not liable by virtue of the omnibus clause; for as long as the conditional vendee has the right to possession he does not operate the car by the permission of the vendor. . . .”
When, however, a sale is so defective as to be void or a nullity because of noncompliance with mandatory provisions of a statute, there is well-reasoned authority that the general rule above stated does not obtain. In such instance the purported seller remains the owner, and therefore has the power to grant permission to the buyer to use the car, thus bringing the buyer within the scope of the seller’s omnibus clause as an additional insured. (Sabella v. American Indemnity Company, [Mo.] 372 S. W. 2d 36; Allstate Insurance Co. v. Hartford Accident & Ind. Co., supra; Haynes v. Linder, supra; Harbor Ins. Co. v. Paulson, 135 Cal. App. 2d 22, 286 P. 2d 870; Brewer v. DeCant, 167 Ohio St. 411, 149 N. E. 2d 166; Garlick v. McFarland, 159 Ohio St. 539, 113 N. E. 2d 92; Insurance Company v. Storm, 200 Va. 526, 106 S. E. 2d 588; Couch on Insurance 2d §45:386.) Representative of these cases is Sabella v. American Indemnity Co., supra, where it was held that until a certificate of title, properly assigned, is delivered by the seller to the buyer, the buyer does not become the owner of the automobile; and when the seller delivers the automobile to the buyer without also delivering to him a certificate of title, he thereby permits the buyer to use the vehicle, making the buyer an additional insured.
In the instant case Shaw remained the owner under the terms of defendant’s policy, and by delivering the car to Willis without an assigned certificate of tide, contrary to the statute, thereby permitted Willis to use the vehicle as an additional insured within the omnibus clause.
Plaintiff’s policy provided coverage for Willis in the use of an “owned” or “non-owned automobile.” The latter term was defined in the policy as “an automobile . . . not owned by or furnished for the regular use of either the named insured or any relative, other than a temporary substitute automobile; . . .” The record fails to disclose that the policy contained an automatic insurance clause for a replacement vehicle, such as was present in the Weaver case, nor did Willis ever receive a certificate of title; whereas in Weaver, the buyer, subsequent to the loss, received a bill of sale and certificate of title for the replacement vehicle, and consequently brought himself within the automatic insurance clause. For these reasons, as well as those previously set forth in this opinion, defendant’s argument that Willis was the “owner” of the Plymouth under the terms of plaintiff’s policy cannot be sustained. The result is that Willis was covered under the plaintiff’s policy as the driver of a “non-owned automobile” and by the defendant’s policy as an additional insured under the omnibus clause.
What was the extent of coverage under each policy? Each contained nearly identical “other insurance” clauses making the policy applicable to coverage with that afforded by any other insurance on a pro rata basis, except that plaintiff’s policy provided:
“. . . the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible insurance. . . .” (Emphasis added.)
Defendant urges that it should be liable on a pro rata basis. Plaintiff contends, and we think rightly so, that because of the “excess insurance” provision in its policy, defendant’s policy offered primary coverage.
No Kansas cases on the point have been brought to our attention, and our limited research has revealed none. An exhaustive annotation, however, is found in 76 A. L. R. 2d 502 in which the author has collected numerous decisions from courts throughout the land and summarized their holdings as follows:
“. . . Thus, if the non-ownership coverage offered by one of the policies involved is of the ‘excess insurance’ type, the conclusion is generally reached— no matter how various the reasoning adopted in support of it in the different cases may be — that the policy issued to the owner of the vehicle is the ‘primary’ policy, and the company issuing it is liable up to the limits of the policy without apportionment, although the policy contains a'‘prorata’ clause. To state the proposition in another way: if one policy has been issued to the owner of the vehicle causing damage, and another covers the same loss by virtue of the relationship to the accident of one who is not the vehicle owner, the latter’s insurer, at least where its coverage is of the ‘excess insurance’ variety, is in the favorable position and need not assume any of the loss, although the vehicle owner’s policy contains a ‘prorata’ clause. . . .” (p. 505.)
We have carefully reviewed the cases in the annotation and find they furnish solid precedent for the statements quoted. (Also, see 7 Am. Jur. 2d, Automobile Insurance §202; 8 Appleman, Insurance Law and Practice §4914; Couch on Insurance 2d §§62:71, 62:72.)
The rationale for the rule that the owner’s insurer has primary liability is variously stated. In Safeco Ins. Co. v. Pacific Indent. Co., 66 Wash. 2d 38, 401 P. 2d 205, where the “other insurance” clauses of the separate policies covering the owner and driver were substantially identical to those in the instant case, the court quoted from Appleman, supra, to the effect that a non-ownership clause with an “excess” coverage provision does not constitute other valid and collectible insurance within the meaning of a primary policy with an omnibus clause. A decision frequently relied on by other courts is American Automobile Ins. Co. v. Republic Indemnity Co., 52 Cal. 2d 507, 341 P. 2d 675, which involved policies that contained identical “other insurance” clauses, each providing for pro rata coverage with an “excess” coverage provision when the named insured was driving a non-owned automobile. After citing cases holding the owner’s insurer primarily liable within the limits of its policy, the court stated:
“These cases are based on the reasoning that the policy of the owner is other insurance within the meaning of the excess provision of the driver’s policy and that therefore this provision is effective; they do not consider the driver’s policy as other insurance within the meaning of the prorate provision of the owner’s policy and accordingly treat the prorate provision as not operative. . . .
“It is impossible, and could not have been intended, that the excess provision would govern with respect to the insurance of the driver and that at the same tíme the prorate provision would control with respect to the insurance of the owner because proration of the loss and treating the driver’s insurance as excesss over the insurance of the owner obviously lead to inconsistent results. The only construction of the ‘other insurance’ clause under which both its parts will be meaningful is that the excess provision alone controls in every situation which falls within its terms, such as when a person is driving the car of another and both the driver and the owner have insurance, and that the prorate provision alone governs in all other situations, for example, when more than one policy has been issued to the same person. When the driver’s insurance is excess, it necessarily follows that the insurance of the owner is primary, and therefore the owner’s insurer must bear the entire loss to the extent of the limits of the policy.” (pp. 512, 513.)
Other decisions in which the foregoing rationale was deemed controlling, and the same conclusion reached, are Turpin v. Standard Reliance Ins. Co., 169 Neb. 233, 99 N. W. 2d 26, and Motorists Mutual Ins. Co. v. Lumbermens Mutual Ins. Co., 1 Ohio St. 2d 105, 205 N. E. 2d 67.
In view of what must be regarded as the overwhelming weight of authority, we hold that defendant was primarily liable for the full amount of the settlement paid by the plaintiff.
Defendant further urges that plaintiff acted as a mere volunteer in paying the settlement and, under the rule that there is no right of contribution between co-insurers after one has paid in full, cannot recover, citing 7 Am. Jur. 2d, Automobile Insurance 203; Anno. 21 A. L. R. 2d 611; 6 Blashfield, Cyclopedia of Automobile Law and Practice §4107. The above rule, however, is inapplicable to a situation such as here involving subrogation rights of a secondary insurer against a primary insurer. In a carefully reasoned opinion, Surety Co. v. Casualty Co., 157 Ohio St. 385, 105 N. E. 2d 568, 31 A. L. R. 2d 1317, the court held:
“It is well settled that one secondarily liable, who is forced to pay because of the refusal, or failure after demand, of the one primarily liable to discharge the obligation, has the right of indemnity from the one primarily liable. (Citing cases:)
“Aetna [the secondary insurer] had an interest to protect and a legal obligation to pay. In effecting settlement and making payment under such circumstances Aetna was not a volunteer.
“Therefore, applying the principles of equity and natural justice, Aetna has the equitable right to recover from Buckeye [the primary insurer] and it also has the right to recover by way of subrogation under the policy.” (pp. 392, 393.)
The court distinguished Auto Ins. Co. v. Cas. Co., 140 Ohio St. 79, 67 N. E. 2d 906, which dealt with policies of both companies containing “other insurance” clauses which provided for prorating claims:
“. . . One company made full settlement without being forced to do so by court action. The case did not involve primary and secondary liability. Subrogation was not involved. Under those circumstances, the court held that there was no legal liability requiring the settling company to make the payment and consequently that it was a volunteer. The decision in that case is not disturbed. It is not applicable to the facts of the instant case.” (p. 394.)
(For other cases recognizing the secondary insurer’s right of subrogation see Anno. 31 A. L. R. 2d 1324.) Here, the plaintiff’s policy contained a standard subrogation clause, and the plaintiff, as secondary insurer, was entitled to recover the amount of the settlement from defendant, the primary insurer.
In the cross appeal plaintiff contends the district court erred in failing to allow recovery of its attorneys’ fees in effecting a settlement with the injured party, and relies on the provisions of K. S. A. 40-256. The basis for the district court’s action was “because there is a bona fide dispute here with merit on both sides.” While we have grave doubt that the statute was intended to apply to an action between primary and secondary insurers, we find no compelling reason under the facts and circumstances of this case to disturb the trial court’s conclusion on the point. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937.) In our opinion, plaintiff, under its policy, had a contractual duty with its insured (Willis) to defend the lawsuit instituted by the injured party, and such duty was personal and distinct from indemnification. Accordingly, plaintiff had no right of contribution from the defendant for attorneys’ fees incurred in making such defense, notwithstanding that the defendant may also have had a duty to defend Willis as an omnibus insured. (United States Fidelity & Guar. Co. v. Tri-State Ins. Co., [C. A. 10] 285 F. 2d 579.)
For the reasons heretofore assigned, the judgment of the district court is affirmed in all respects. | [
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The opinion of the court was delivered by
Fatzer, J.:
The petitioner, Courtie U. Blakesley, filed a motion (K. S. A. 60-1507) to vacate and set aside the sentence of life imprisonment in the Kansas State Penitentiary imposed upon him on April 2, 1946, following his voluntary plea of guilty to the charge of murder in the first degree. He alleged as grounds for relief that (1) he was represented by John E. Powell, a member of the Bar of Missouri, who was “unauthorized, illegal, incompetent and ineffective” counsel in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, and (2) he was convicted of the offense without “trial by jury in a capital case."
On June 3, 1966, the petitioner appeared in person in the district court, represented by present court-appointed counsel, and a full evidentiary hearing on his motion was had. After hearing the testimony of the petitioner and his brother, Burl Blakesley, Princeton, Missouri; considering the evidence offered by the state in the form of a certified true copy of the affidavit of John E. Powell on file in the supreme court of Kansas, docket No. 37360, Blakesley v. Hudspeth, and examining the pleadings, the files and records of die case, the court found the petitioner failed to sustain the burden of proof incumbent upon him and that his motion for relief should be denied. Hence, this appeal.
It is the petitioner’s basic contention that when he pleaded guilty to the charge of murder in the first degree, he was represented by an attorney who was not licensed to practice law in the state of Kansas and who had not associated with him a licensed Kansas attorney as required by G. S. 1939 Supp. 7-104, and was so unfamiliar with the rules and procedure of this state as to render his representation a nullity.
At least four different courts have considered the points here involved and have decided them adversely to the petitioner. This case aptly portrays the manner in which district courts, both federal and state, are burdened with repetitious hearings on the same points, and likewise illustrates the fact that appellate courts, both federal and state, are required to consider numerous and frivolous appeals which are increasingly clogging the dockets of those courts.
In 1948, the petitioner filed an original proceeding in this court, No. 37360. The case was briefed and argued and the opinion of the court is recorded as Blakesley v. Hudspeth, 166 Kan. 221, 199 P. 2d 792. The identical point here presented was raised in that case and the affidavit of the petitioner’s counsel, John E. Powell, was filed of record and considered in that proceeding. In the opinion it was said that the affidavit of Mr. Powell, who had been employed by the petitioner and his family, completely refuted the grounds for the writ.
In 1964, the petitioner filed an application for a writ of habeas corpus before the Honorable George Templar, United States District Judge for the District of Kansas, alleging the same grounds for relief. The writ was denied. He then appealed to the United States Court of Appeals for the Tenth Circuit where the same contention was again rejected. In its opinion, Blakesley v. Crouse, 332 F. 2d 849, the court said:
“Although it is not alleged in the application, we will assume that Powell was not licensed to practice in Kansas. He was an attorney selected by Blakesley, duly licensed to practice in the State of Missouri. He was permitted to represent Blakesley in the state court action. There no doubt could be cases where a Missouri lawyer might not be sufficiently familiar with Kansas law to competently represent a party in a proceeding in a Kansas court, but we think it could not be assumed that a member of the bar of Missouri could not properly investigate the case, determine and appraise the evidence that would probably be introduced against Blakesley, examine the Kansas Statutes defining murder, and determine whether or not under the circumstances it would be best for Blakesley to enter a plea of not guilty. Moreover, we think that Blakesley, by appearing with Powell as his attorney and not requesting the appointment of a Kansas lawyer to be associated with Powell, waived the right, if any he had, to an attorney who resided in and was licensed to practice in the State of Kansas, (p. 850.)
We are of the opinion the Tenth Circuit Court of Appeals correctly decided the question and we hold its decision is controlling.
Aside from the fact that Powell was not licensed to practice law in the state of Kansas, no showing was made by the petitioner in the hearing in the district court that Powell inadequately or ineffectively represented him in the criminal case. The record indicates that Powell was an active and experienced lawyer. When his authority to represent the petitioner was inquired into by the district court, Powell stated in substance he was admitted to practice law in the states of Missouri and Nebraska in 1909 by the supreme courts of those two states; that he was a member of the Bar of Kansas City, Missouri, and was admitted to practice before the United States District Court in 1915; that he had been county attorney of Mercer County, Princeton, Missouri, two different terms; that he had been probate judge of Mercer County for two terms; that he was a member of the Missouri State Bar Association, the American Bar Association, and was president of the Third Judicial Circuit Bar Association of the state of Missouri. Moreover, the petitioner and his three brothers had complete confidence in Powell and it was agreed by all of them that the petitioner would enter his plea of guilty since if he stood trial and fought the case, the state was going to try to hang him. At the evidentiary hearing, the petitioner testified that Powell advised him of his right to a trial by jury, and the contention that Powell told him that if he pleaded guilty he would only have to serve five years in prison was completely refuted and emphatically denied by Powell in his affidavit introduced in evidence at the evidentiary hearing.
Likewise, the contention the petitioner entered a plea of not guilty to the charge when he was first brought before the magistrate court for a preliminary hearing, which he waived, is completely immaterial. A plea of guilty or not guilty before a magistrate is without force or effect. See, State v. Jordon, 193 Kan. 664, 396 P. 2d 342, cert. den. 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917, and State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143.
We are of the opinion the petitioner has failed to establish any violation of rights guaranteed him by the Constitution of the United States or the Constitution and laws of the state of Kansas, and that the district court did not err in denying the relief sought.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
We deal here with a refusal to set aside a default judgment in a divorce action.
The parties to the proceeding were married January 10, 1962. Four children have been bom. The husband, appellee herein, first sued the wife for divorce on December 15, 1964. This suit was dismissed May 25, 1965, and the parties continued to live together. On June 23, 1966, the husband again filed suit for divorce. In his petition he alleged the wife had been guilty of gross neglect of duty and extreme cruelty and he asked for divorce and custody of the four children. Personal service of summons was obtained on the wife the following day. The wife did not answer or make any appearance in court in response to the summons.
On September 13, 1966, the husband presented evidence in court in support of his petition. On September 28, 1966, the trial court entered judgment, effective that date, finding for the husband, and granting a divorce on the ground of gross neglect of duty. The court further found the best interests of the children would be served by awarding their custody to the husband and so awarded their custody. The husband was also awarded the household goods of the parties.
On October 3, 1966, the wife filed her motion to set aside the judgment alleging it had been obtained by fraud and corruption on the part of the husband in that his actions were responsible for her failure to appear and defend the action. She also asked for permission to file an answer and cross-petition attached to her motion, and for a new trial.
On October 11, 1966, the trial court heard evidence pro and con on these motions and by agreement of the parties it later received from the Southeast Kansas Mental Health Center a report of psychiatric evaluation of the wife. On November 4, 1966, the trial court denied the wife’s motion, specifically finding that the husband committed no fraud upon the court or against the wife and that he did nothing to prevent a defense to the action. The wife has appealed, asserting abuse of discretion.
The applicable statute (K. S. A. 60-260 [b]) provides:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.
Where relief is sought under such provision the burden of proving fraud, misrepresentation or other misconduct in obtaining a judgment is on the movant; fraud is not presumed but must ordinarily be proven by clear and convincing evidence (See 3 Barron & Holtzoff, Federal Practice and Procedure, §1326). And in determining such proceeding it becomes the duty of the trial court to weigh evidence and determine credibility of witnesses (Cuthill v. Ortman-Miller Machine Company, 249 F. 2d 43).
With these principles in mind we turn to the evidence. The parties had been living in a house in Chanute across the street from the home of the husband’s parents. Upon filing the divorce petition the husband moved into his parents’ home, leaving the children with the wife. The wife continued to live in the home of the parties and during a part of the time prior to the granting of the divorce she also lived at her parents’ home near Chanute. At the hearing on the motion the appellant wife admitted receiving the summons; immediately thereafter she talked to her husband and his attorney. Her testimony as to these conversations and as to her husband’s actions, which testimony we need not detail, was at best vague and inconclusive as to any conduct contributing to her default in the divorce proceeding and simply did not support the allegations in her motion. She did testify her husband “just wanted a divorce, and he wanted the kids, and that’s what he kept on saying.” The husband testified denying any inference that his conduct in any way kept the wife from appearing and defending in the action; he testified she kept asking why he didn’t hurry up and get it over with; that he did not talk about or promise getting back together again; he further testified:
“I told her on any number of occasions that I have filed once before and dismissed it and decided to try it again, and that after this happened, after she told me what happened, that I could not dismiss it, and that I would take my children, if I could, and provide the children a future for them they deserve, and that’s what I told her on any number of occasions.”
He testified that when he told her three days before the trial he would see her in court she replied, “No you won’t, because I don’t want anything to do with it”; that she said, “Just do it and get it over with.” He also testified he advised her when the divorce case was coming up. There was evidence before the trial court that the wife was mentally competent and aware of the pendency of the suit, and there was no evidence she was incompetent although her •condition had been diagnosed as neurotic depressive reaction.
Therefore we must conclude there was substantial evidence supporting the trial court’s finding of fact that fraud was not established. In view of such failure of proof the court properly refused to vacate the judgment. Treating appellant’s motion as one for new trial (K. S. A. 60-259[a]) the result would be the same. Other matters raised in the attack upon the judgment have been considered but are without merit and do not warrant further discussion. The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a divorce action. Plaintiff-husband has appealed from the judgment as it pertains to a separation and settlement agreement and from adverse rulings of the trial court on several post trial motions. Judgment was entered for defendant-wife on her cross-petition on December 23, 1965. The plaintiff was represented by counsel at the trial but offered no evidence. No complaint is made with respect to the divorce and child custody being granted to the defendant.
The parties were married November 30, 1958, and are parents of two minor children; namely, David Charles Tager, bom April 29, 1960, and Michele Renee Tager, born April 25, 1963. Prior to the divorce the parties resided in Shawnee Mission, Johnson County, Kansas. Plaintiff is an attorney, practicing in Kansas City, Missouri, and has earned large sums of money from the practice of his profession and business investments.
In the spring of 1965, differences arose between the parties and resulted in a separation and settlement agreement entered into on May 18, 1965. The agreement was a comprehensive settlement of the affairs of the parties. It provided for repayment by plaintiff in installments of a $10,000.00 loan made by defendant to plaintiff, and for a division of both personal and real property. Provision was made for custody of the children with defendant and visitation privileges of the plaintiff. Support for each child was provided for in the amount of $200 per month and also provision was made for medical and educational expense. The child support, medical and educational benefits were to terminate on the death of the husband, a child attaining the age of 22 years, or the marriage or death of a child. Support and maintenance for the wife was fixed at $3,000.00 per year in monthly installments of $250, to terminate upon the death of the husband or the remarriage or death of the wife. Plaintiff further agreed to continue in force a $50,000.00 life insurance policy on his life and payable to his wife in the event of his death. It was further provided that in the event he failed to maintain the full amount of such insurance then the full amount or such amount as not maintained should constitute a claim against the husbands estate. On remarriage or prior death of the wife, provision was made that the husband should have all rights in the policy. Further provision was made to continue in force insurance on the life of the husband for the benefit of each child in the amount of $50,000.00, or until each child attained the age of 25 years. The three life insurance policies mentioned were to be established by converting into separate policies a $150,000.00 life insurance policy which plaintiff had in force at the time of the agreement.
The agreement contained numerous other provisions and a supplemental letter of plaintiff, none of which are in serious controversy and therefore need not be recited.
On June 23,1965, plaintiff filed a petition for divorce. On June 24, 1965, defendant filed an answer to plaintiff’s petition and a cross-petition for divorce. In her cross-petition defendant asked for a divorce, permanent alimony, and custody of, and support for, the minor children. Defendant referred to the separation and settlement agreement in her cross-petition and asked, that in the event the evidence confirms that no misrepresentations or concealment of income or assets was made to her, that the court approve and merge said agreement in any decree granted in accordance with the laws of the State of Kansas.
According to the record nothing further took place until December 17,1965, when defendant, through her attorney, filed an affidavit and accusation in contempt. As a result a citation was issued directing plaintiff to appear before the court on December 21, 1965, to show cause why he should not be punished for contempt. Apparently the court had previously ordered plaintiff to submit a statement of assets and liabilities to the court and to pay attorneys’ fees, as ordered by the court. These orders were not set out in the record.
The contempt matter came before the court on December 22, 1965, but the court stated that it had received a telegram from plaintiff stating that due to illness he would be unable to be at the scheduled hearing. The court held the matter of the contempt citation in abeyance until the time set for trial on December 23, 1965. The court specifically ordered and directed plaintiff to be present at that time.
On December 23, 1965, the case was called for trial by the court. The plaintiff was not present in person but was represented by counsel. The defendant in her testimony identified the agreement and it was admitted in evidence. She further testified:
“I understand from tire conferences that we have had today, that my husband has agreed to settle this matter with me and I have agreed to settle it with him upon the basis of the agreement with certain changes.”
The defendant offered in evidence certain exhibits consisting of plaintiff’s income tax returns for the years 1958, 1959, 1960 and 1961. She also offered in evidence a record of plaintiff’s bank deposits for the year 1965, up to September 9, 1965. In this connection the court made oral findings that plaintiff’s income tax return for 1958 showed taxable income as $33,761.01, and that the return had been corrected by the Internal Revenue Service to show taxable income as $63,932.18. That the plaintiff’s income tax return for 1959 showed his taxable income as $58,256.49, and that it had been corrected by the Internal Revenue Service to show his taxable income was $95,-400.46. That plaintiff’s I9601 income tax return showed his taxable income as $24,871.52, and has been corrected by the Internal Revenue Service to show his taxable income as $140,353.91. That plaintiff’s income tax return for 1961 showed his taxable income as $53,139.51, and that the return had been corrected by the Internal Revenue Service to show his taxable income as $70,649.30.
A calculation, based on the court’s findings in this regard, discloses that plaintiff’s income for the years mentioned amounted to over $200,000.00 more than the income shown by plaintiff on his income tax returns.
The court approved the agreement with certain exceptions and changes. The most controversial change was an increase in the payments of support to defendant. In this connection the following appears in the journal entry:
“. . . the Plaintiff is ordered and directed to pay support to the Defendant in the sum of $600.00 per month and such additional sums as may be necessary to satisfy any income tax liability on the basic payment of $600.00 for support, which additional sum is to be paid by the Plaintiff to the Defendant on or before the 1st day of January, the first day of April, the first day of July and the first day of October of each year hereafter until the further order of the Court, except, however, that the Plaintiff shall be required to pay to the Defendant for the first six months only the sum of $200.00 per month, plus such additional sums as may be necessary to satisfy income tax liabilities herein-before mentioned; that the provision for support is contingent upon the death of the Defendant and/or the remarriage of the Defendant or the death of the Plaintiff as amending Paragraph 11 of said agreement by express agreement of the parties; . . .” (Emphasis supplied.)
The substance of this change was an increase in monthly support payments to defendant from $250 to $600 with the exception that for the first six months payments were reduced to $200. Plaintiff was further ordered to pay defendant’s attorneys’ fees which were fixed in the amount of $5,000.00.
At the conclusion of defendant’s evidence the court announced its findings. At this juncture defendant’s counsel stated that Mr. Bronston, counsel for the plaintiff had examined defendant with reference to what plaintiff had agreed to. Defendant’s counsel then asked Mr. Bronston to affirm that plaintiff had agreed to the changes made by the court. Plaintiffs counsel replied that Mr. Tager had agreed to the form recited from which contained the basic provisions but that he (Mr. Tager) was not in the conference, but he agreed to the previous agreement made. Plaintiff’s counsel further stated that he did not have the authority to advise the court that the changes were in accordance with plaintiff’s basic desires now.
Four days later, on December 27, 1965, plaintiff filed a motion to set aside the judgment. On December 29, 1965, plaintiff appeared in court for the first time and testified that at the time of the trial his liabilities far exceeded his assets; that he was advised by his attorney that if he appeared at the trial he would probably be thrown in jail; and that he would now like to have his day in court and present his evidence. The motion was overruled.
Thereafter, and on February 11, 1966, defendant filed a motion and an affidavit for the examination of plaintiff as judgment debtor. On the same date defendant also filed an affidavit accusing plaintiff of contempt in failing to comply with the court’s decree of December 23, 1965. In the affidavit defendant alleged that plaintiff had paid the sum of $400 in January and the sum of $200 in February of 1966, but refused to make the additional payments called for by the decree.
The court issued an order for the appearance of plaintiff as judgment debtor and a citation for his appearance in the contempt accusation. Both matters were set for hearing on February 11, 1966, at which time plaintiff appeared and testified. His testimony consisted of a lengthy list of debts owed by him, including what appears to be from the record an unsecured debt to a Chicago bank in an amount of $132,995.56, and an unsecured debt to a Niles, Illinois, bank in the amount of $30,000.00. Plaintiff testified that his total liabilities were in excess of over $400,000.00.
The proceedings were continued until February 16, 1966. On this date plaintiff testified and offered an exhibit reflecting his income and expenses for the year 1965. The exhibit showed a gross income of $118,500.00. The exhibit further reflected various business expenses of plaintiff, including an amount of $78,600.00 shown as “Share Paid to Client.” The exhibit shows finally a net loss in the amount of $1,380.00 for the year 1965. The record fails to disclose the final outcome of the proceedings had on February 11 and 16, 1966.
On April 20, 1966, plaintiff filed a motion to reduce child support and alimony payments. It was stipulated by counsel that all of the evidence heretofore submitted in the case should be considered by the court. This motion was overruled.
In the meantime plaintiff filed two notices of appeal. The first was filed on January 18, 1966, and the second on March 3, 1966. Both notices designated an appeal from the orders of the court made on December 23 and 29, 1965. The defendant has challenged the right of plaintiff to be heard in this court but, after considering the somewhat confusing record, we have determined the appeal should be heard on its merits.
Plaintiff’s principal contention on appeal is that the court erred in granting a judgment contrary to the agreement of the parties. He argues that under the provisions of K. S. A. 1965 Supp. 60-1610(d) the agreement was not subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent, and that the changes had not been consented to by plaintiff.
Plaintiff is correct in his construction of the statute but he is not supported by the record in his claim that the changes were not consented to by him. In his motion to vacate judgment, filed four days after the trial, plaintiff admits that he entered into an oral divorce settlement but claims that he was coerced into such oral agreement by fear of a jail sentence for contempt. At the hearing on the motion to vacate judgment on December 29, 1965, plaintiff testified at one point that he did not agree to the judgment as it was entered by the court, but later testified that he would have probably agreed to an amount three times as much to get the matter settled. On this occasion plaintiff also admitted that he was in telephone communication with his attorney the morning of the trial and discussed a settlement of the changes demanded by defendant.
In her testimony at the trial, which we have quoted, defendant referred to the conferences that day and to her understanding that her husband had agreed to settle upon the basis of the agreement with certain changes. It is manifest, from the record and particularly from the manner in which the findings as to the changes to be made in the agreement were announced, that the trial court was acting on the premise that the changes had been agreed to by plaintiff. With reference to the change in the amount of support payments to the defendant, provided for in Paragraph 11 of the agreement, the journal entry specifically relates that the paragraph in question was amended by express agreement of the parties. In view of the facts which we have recited, we are not in a position to dispute the trial court’s finding on this point.
It has been stated many times that it is not the function of this court to weigh conflicting evidence or to substitute its judgment for that of the trial judge, who heard and saw the parties. This advantage enabled him to judge more fairly and accurately than this court the credibility and probative value of their testimony. (Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215.)
Plaintiff next asserts the trial court erred in ordering a division of the property of the parties, alimony and child support payments, without evidence of plaintiff’s financial worth or earnings. Plaintiff appears to have taken inconsistent positions in this regard. In his argument as to his first contention plaintiff submits that the agreement was fair, just and equitable and should not have been changed as to the alimony payments to defendant and now on this point he contends the court had no evidence of plaintiff’s financial worth or earnings. The court approved the agreement of the parties with the exceptions, made as a result of the oral agreement of the parties, and those matters which the court found not to be properly included in the agreement, such as the provision for arbitration, attorneys’ fees and other matters which must by law be left to determination by the court. Provisions as to custody and support of the two minor children were approved subject to the further order of the court.
Since the judgment here, as to the matters in controversy, was based on an agreement of the parties, it could have been properly arrived at without detailed evidence of plaintiff’s financial worth or earnings. However, the evidence submitted by defendant at the trial consisting of her testimony, the exhibits reflecting plaintiff’s income and tax returns for several years, and his income for a substantial part of 1965 was adequate to substantiate the court’s judgment. The court was aware of plaintiff’s earning capacity, as reflected by his income tax returns for prior years. When the court later heard plaintiff’s testimony on December 29, 1965, as to his financial predicament it could have vacated the judgment or reduced the child support payments after considereing the evidence in this connection on April 20, 1966. It appears the trial court refused to believe the uncorroborated testimony of plaintiff as to his dire financial straits. Here, again plaintiff would have us substitute our judgment for that of the trial court. As we have stated such is not the function of this court on appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was convicted of grand larceny under K. S. A. 21-533 by a jury and sentenced to a term of not exceeding five years pursuant to the provisions of K. S. A. 21-534. Appeal has been perfected by the defendant from the judgment and sentence.
Questions on appeal relate to the admissibility of evidence and the sufficiency of the evidence to sustain the verdict.
Freddie Eugene Scott (defendant-appellant) was charged with stealing more than $50 from Minnie Hindman, d/b/a Hindman’s Grocery at 207 Union Street, Coffeyville, Kansas, on the 12th day of August, 1965.
On the 13th day of September, 1965, he was arraigned in the district court on an information which charged the foregoing offense, and after the appointment of counsel to represent him because of his indigency, the defendant entered a plea of not guilty and filed a plea of alibi.
The case was first tried on the 4th day of October, 1965, and resulted in a hung jury. The defendant was again tried to a jury on the 3rd day of March, 1966, which resulted in his conviction. Thereafter his motion for a new trial was heard and overruled, and the defendant was sentenced to serve a term in the Kansas State Penitentiary in accordance with law.
The evidence disclosed that Minnie Hindman operated a neighborhood grocery store at 207 Union Street in Coffeyville, Kansas, on the 12th day of August, 1965. She had gone to work at the store on that day at approximately 6:00 a. m. and went about her usual duties operating the store. She was not paying any particular attention to the time, nor did she look at any clock, but she judged it to be approximately 9:00 a. m. when she heard an unusual noise and looked around and saw the defendant, Freddie Eugene Scott, with his hand in her cash register. She saw him remove the paper money from the register. Mrs. Hindman testified she got a good look at his face and positively identified the defendant as the man who stole her money.
She further testified that shortly after the defendant took her money and ran from her place of business, she called the Coffeyville police department to advise them of the theft. Jerry Hoover, a Coffeyville police officer, testified that he received this call at 10:50 a. m. Mrs. Hindman gave the police officers a description of the person who stole the money, and later in the day identified the defendant when she saw him at the Coffeyville police station.
The chief of detectives of the Coffeyville police department testified that Mrs. Hindman described the person who stole her money as a young, very dark colored man, approximately twenty years old, five feet ten or eleven inches tall, slender build, wearing dark clothing and bareheaded. In the course of investigation he walked from the defendant’s home to the grocery store belonging to Mrs. Hindman at a normal pace, and the time required was eleven minutes and twenty-three seconds.
The evidence disclosed the defendant left home sometime after 10:00 in the morning in question and did not return until shortly after 11:00 a. m. According to the defendant, he walked around Coffeyville during this period of time but did not see anyone that he recalled.
When the defendant was first arrested he stated he had been at home all morning until 11:50 a.m., and indicated that the witnesses at his home would verify this, a fact which was not later borne out by the testimony of these witnesses. The defendant also testified he went by the house of Isaac Johnson, walking east, and at no time did he go by Mr. Johnsons house walking west toward town or Hindmans Grocery. Mr. Johnson testified he saw the defendant on the day of the theft during the middle of the morning going west toward town and toward Union Street where the Hindman Grocery is located.
The appellant specifies as error the admission of testimony by a police officer as to the time of receiving the telephone call at the police station for the purpose of establishing the time of the offense. The appellant argues the time of the offense charged was “about nine o’clock” in the morning, as testified to by Mrs. Minnie Hind-man, the complaining witness. It is argued she was the only person at the scene, and the appellant’s alibi, as established by two witnesses residing in his home to the effect that he was home until shortly after 10:00 a.m. on the morning in question, stands unchallenged by any evidence in the record.
The state sought to overcome this alibi by introducing the testimony of Jerry Hoover, employed by the Coffeyville police department on August 12,1965, that the time of the offense was much later in the morning. Hoover testified he received a call regarding this offense at 10:50 a. m.
The appellant contends upon cross examination of Mr. Hoover it developed that the witness did not remember the time of the call until after he was subpoenaed and looked it up on the report. It is argued Mr. Hoover was merely reciting as evidence that which he had read the day before, and the report was not introduced in evidence, nor used upon direct examination to refresh his memory.
An examination of Mr. Hoover’s testimony does not bear out the appellant’s contention. Officer Hoover testified that as a part of the usual police procedure when he received a call he immediately noted the time of the call, along with other details, and dispatched officers to the scene. On cross examination he stated the time was a matter of his recollection, after looking at the report. On cross examination Mr. Hoover testified on this point as follows:
“Q. Well, if you remember tibe time, as I understand your statement, without looldng at it, is that correct?
“A. You mean without looking at the report?
“Q. Yes.
“A. I didn’t until I looked at the report and I remembered it.”
The foregoing establishes that the witness had an independent recollection, after refreshing his memory by making reference to the police records, which he made in the ordinary course of police business.
It has long been the law in this jurisdiction that a witness may refresh his recollection by reference to a writing or memorandum made by him shortly after the occurrence of the fact to which he relates, and testify to the fact provided he then has an independent recollection of the subject matter. The weight and force of such testimony is for the determination of the jury, or the trial court when it is the trier of the facts. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Cook, 180 Kan. 648, 305 P. 2d 851; and Carter v. Carter, 187 Kan. 74, 353 P. 2d 499.)
The appellant next specifies that the court erred in overruling his motion for a new trial because the verdict is not sustained by the evidence.
The appellant makes much of the fact that Mrs. Hindman’s recollection was faulty on several collateral matters, such as the number of police officers who called at her store to make the investigation, and whether they were wearing uniforms or plain clothes. It is argued the jury was required to disbelieve the complaining witness as to the time of day the theft occurred, and to believe her as to the identity of the person who stole her money to find the appellant guilty.
While these factors no doubt contributed to the hung jury in the first trial, the appellant’s argument in substance asks this court to sit as a jury and weigh the evidence to decide a question of fact in the appellant’s favor.
At no place in the testimony of Mrs. Hindman did she testify that it was 9:00 a. m. when the theft occurred. Her testimony was that she did not look at a clock and was just judging it must have been about that time. She had been working since 6:00 a. m. that morning. There is ample evidence to show the crime was committed within a few minutes before 10:50 a. m. When the incident occurred and the thief left her store, she proceeded to the door to see which direction he went and then immediately telephoned the police.
Mrs. Hindman testified the appellant stole more than $50 from her, and she positively identified him as the thief at the police station shortly after his apprehension on the day of the occurrence. She positively identified him again at the trial. This testimony, together with other evidence in the record which is entitled to credence, was sufficient to sustain the conviction.
This court has consistently adhered to the proposition that it is the function of a jury, not that of an appellate court on review, to weigh the evidence and pass upon the credibility of the witnesses. (State v. Gates, 196 Kan. 216, 410 P. 2d 264; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; and State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.)
In considering the sufficiency of the evidence to sustain a conviction this court loots only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence the conviction stands. (State v. Gates, supra.)
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the plaintiff, Samuel Lee Chambers, from an order overruling his motion to vacate a sentence imposed against him for robbery in the first degree.
Most of the relevant facts are undisputed. On April 23, 1962, the district court of Johnson County appointed Mr. Richard L. Roberts, of Olathe, Kansas, to represent the plaintiff and his co-defendant, Raymond Clayton Wilson. Two days later Chambers and Wilson appeared in court with their appointed counsel, where formal arraignment was waived and pleas of guilty were entered. Wilson was thereupon sentenced to the Kansas State Industrial Reformatory for not less than five nor more than ten years and Chambers was sentenced to a like term in the Kansas State Penitentiary.
Later that same day it was discovered that both Mr. Wilson and Mr. Chambers had been erroneously sentenced, and the two men were returned into court where the following proceedings took place:
“The Court: Mr. Wilson, you may stand and come forward. The sentenee heretofore imposed on you of not less than five or more than ten years was provided for burglary in the second degree and not robbery in the first degree. That sentence is set aside. The penalty for robbery in the first degree is not less than ten nor more than twenty-one years. And with that statement, do you have any legal reason to state why the sentence of the Court should not be imposed upon you at this time on your plea of guilty to robbery in the first degree?
“Defendant Wilson: No, I haven’t. I will still be going up to Hutchinson?
“The Court: You will be sentenced to the Kansas State Industrial Reformatory for a period of not less than ten or more than twenty-one years. The Order with reference to costs and fee will remain the same. That is all.
“The Court: Mr. Chambers, you heard the statement about the penalty provision being for robbery in the first degree?
“Defendant Chambers: Yes, sir.
“The Court: Now, the penalty provided by the statute is not less than ten or more than twenty-one years. The sentence heretofore imposed upon you this morning is set aside and vacated. And with the understanding that the penalty set forth on the offense of robbery of the first degree is not less than ten or more than twenty-one years, do you have any legal reason to state why the Court should not impose the sentenee upon you?
“Defendant Chambers: No, I haven’t.
“The Court: You are hereby sentenced to the Kansas State Penitentiary at Lansing, Kansas, at hard labor, for a period of not less than ten years or more than twenty-one years (T-2-3).”
On January 18, 1966, Chambers commenced proceedings under K. S. A. 60-1507 attacking the validity of the second sentence. The trial court held an evidentiary hearing on the plaintiff’s motion, at which hearing both Chambers and his appointed counsel, Mr. John Johntz, also of Olathe, were present and where Mr. Chambers testified at length.
After his motion was overruled,- the plaintiff appealed and is now represented by new assigned counsel, Mr. Jerry J. Miller, of Olathe. Three points are raised on appeal, each of which will be dealt with in order.
It is first urged that the trial court erred in resentencing the plaintiff in the absence of court appointed counsel. Assuming that such a procedure would have been improper, the trial court expressly found, at the conclusion of the hearing on Chamber’s 1507 motion, that counsel was present during the resentencing procedure. This finding is well supported. The transcript of the proceedings states that Wilson and Chambers appeared with counsel at the time they were resentenced. The journal entry contains a like statement. It is elementary that findings which are based on substantial competent evidence are not to be set aside on appeal. (Robinson v. State, 198 Kan. 543, 545, 426 P. 2d 95.)
It is true that Chambers testified his lawyer was not present at the time of resentence. However, his testimony is not corroborated. Rule No. 121 (g) (194 Kan. xxvrn) provides that the uncorroborated testimony of a movant is not sufficient to sustain the burden of proof. (See, also, Cooper v. State, 196 Kan. 421, 427, 411 P. 2d 652; Miksell v. State, 197 Kan. 385, 416 P. 2d 780.)
The plaintiff next argues that once the court had imposed a sentence against him it could not later resentence him.. This contention is without merit. The first sentence was void, since the penalty imposed was that required by law for second degree burglary, not robbery. Accordingly, it was the- court’s clear duty to set the original sentence aside and impose a valid sentence. (Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837, Bridges v. State, 197 Kan. 704, P. 2d 45; State v. Fountaine, 199 Kan. 434, 430 P. 2d 235.) As was said so well in King v. United States, 98 F. 2d 291, 296:
‘ . . Sentencing should not be a game in which a wrong move by the judge means immunity for the prisoner. . . .”
Neither of the two cases cited by the petitioner on this point sustains his position. In Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527, the sentence which the court originally imposed was a valid sentence and this court correctly held that a valid sentence may not legally be set aside and the penalty enhanced. Similarly in Wilson v. Bell, 137 F. 2d 716, the federal court held that while a defendant may be resentenced where his original sentence was void, a court may not set aside a valid sentence and impose a more severe penalty.
Finally, Chambers contends that his appointed counsel did not tell him his sentence would be not less than ten nor more than twenty-one years. Again, his testimony stands uncorroborated and he has failed to sustain his burden of proof.
But even were we to assume that Chambers was uninformed as to the penalty for robbery when he entered his plea, the court fully advised him thereof when he appeared for resentence. After his original sentence was vacated, and before he was resentenced, Chambers was asked by the court if he had any legal reason to state why the court should not impose sentence. At that time Chambers made no objection, but replied in the negative. His present contention appears to be an afterthought.
We find nothing in the record which can be said to approach prejudicial error and the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant was charged in an information with second degree burglary and larceny contrary to the provisions of G. S. 1949 (now K. S. A.) 21-515 and 21-524. He was tried before a jury and convicted; thereafter he was sentenced by the trial court pursuant to the habitual criminal act to fifteen years on each count, the sentences to run concurrently. Appeal has been perfected to this court specifying trial errors.
The overall question presented is whether a confession made by the appellant while in custody and prior to trial was properly admitted into evidence before the jury.
On the 13th day of February, 1964, Curtis L. Milow (appellant) was arrested by police officers for the city of Wichita in the home of Mr. and Mrs. Ernest E. Johnson of 1134 North Green Street. The Johnsons had previously left home expecting a visitor, leaving the porch light on and a note in the door saying they would be back in half an hour. Upon returning they saw the porch light was out and became suspicious. Thereupon Mr. Johnson turned out the car lights, and upon coasting to a stop saw a man standing inside the front door. Mr. Johnson ran into the house and the intruder fled to the back part of the house. Mr. Johnson obtained assistance from the next door neighbor, and they kept watch on the outside of the house until the police arrived. One officer saw the appellant in a basement window and held him at bay while another went into the house and made the arrest, taking the appellant into custody.
Missing from the Johnsons’ home was a portable television set and a water cooler.
The appellant was taken to the police station where he was booked for parole violation and burglary.
Upon being placed in the city jail the appellant was permitted to telephone his parents. After talking with members of his family, he asked to talk to his sister’s boyfriend, Irvin Ward, who was visiting in his parents’ home. He told Ward to pick up and dispose of a television set he had hidden behind a house in the area of the Johnsons’ home, so he would not get in further trouble with the law. Ward conveyed this information to the police, not wishing to become involved in a criminal situation, and so testified at the trial.
On the 14th day of February, 1964, the appellant’s parole from the Police Court of the city of Wichita was revoked, and he was ordered to serve a sentence at the City Prison Farm previously imposed in an assault case.
From that time until the 7th day of April, 1964, he was seen on four or five occasions by police detectives who interrogated him at the Prison Farm and also at the police station about the burglary and larceny committed in the Johnson home. He denied committing the offenses repeatedly until the 7th day of April, 1964, when a taped confession was taken from him concerning the offenses which he had been repeatedly questioned about by the Wichita police department while at the Prison Farm.
In view of the limited scope of the issue presented on appeal a discussion of procedural matters leading to the appellant’s conviction is immaterial, except to the extent hereafter noted.
The only error argued by the appellant in his brief is that the trial court erroneously admitted the alleged confession of the appellant into evidence because: (a) he was not effectively apprised of his constitutional rights; (b) the alleged confession was made after promises and duress and was not voluntary; and (c) the trial court permitted the confession to go to the jury and be admitted into evidence without predetermining its voluntary nature.
The admissibility of confessions in evidence is covered by the rules of evidence embodied in our statutes. K. S. A. 60-460 provides in part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(f) Confessions. In a criminal proceeding as against the accused, a previous statement by him relative to the offense charged if, and only if, the judge finds that the accused when making the statement was conscious and was capable of understanding what he said and did, and that he was not induced to make the statement (1) under compulsion or by infliction or threats of infliction of suffering upon him or another, or by prolonged interrogation under such circumstances as to render the statement involuntary, or (2) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same;” (Emphasis added.)
The thrust of the appellant’s argument is that the taped confession, which the trial court admitted into evidence, was inadmissible because it was involuntary and came within the exclusionary rule of the above statute (particularly the emphasized portion), and the trial court failed to make a predetermination of the voluntary nature of the confession out of the presence of the jury.
When the taped confession was offered into evidence as state’s exhibit No. 1, Detective Moffit was on the witness stand and the appellant objected to its admission.
Prior to the appellant’s objection Detective Moffit had testified that he explained the appellant’s constitutional rights to him prior to taking the taped statement and his right to an attorney. He further testified that he advised the appellant the taped recording could be reproduced at a later date in a court of law by a recording, machine and used as evidence against him. He testified the state-
ments made by the appellant were voluntary and willing on the appellant’s part. He made further qualifying remarks with respect to the tape recording device and the tape in establishing the accuracy of the reproduction of the confession.
The court then, out of the presence of the jury, gave counsel for the appellant an opportunity to ask Detective Moffit any preliminary questions he had. This questioning by counsel for the appellant went further into the advice given the appellant with respect to his constitutional rights — that he did not have to make any statements at all, that any statement he did make could be used against him in court, and that he had a right to have an attorney.
He testified the appellant expressed no desire to have an attorney, saying “I don’t need counsel.” Detective Moffit did not recall making a statement to the appellant that “You’d be better off without counsel.” Detective Moffit further testified that “every time we talked to him” the appellant was advised of his right that he did not have to make a statement.
Extended examination of Detective Moffit by counsel for the appellant disclosed that he advised the appellant of his rights before the tape was taken and again advised him while the tape was being made. Thereupon counsel for the state moved the admission of exhibit No. 1 as the confession of the appellant without further delay. After some argument with counsel for the appellant the court stated:
“The Court: I have heard nothing to this point that would indicate that this statement was not voluntary. You may ask him any preliminary questions that you wish. That’s the purpose of excusing the Jury.
“Mr. Ward: Your Honor, the answers that I would get from this man is strictly limited to just exactly what he has testified to, and that is that what happened on this particular day, April the 7th, I can’t go in to him about something that has occurred before this time, or any factors that may affect the voluntariness or the involuntariness of this confession? I can’t get it from him because he doesn’t know.
“The Court: All right. Then anything that you go into like that I think would be defensive matter. It goes to the weight, rather than the substance.
“Mr. Ward: Well, it’s true that it perhaps does go to the weight rather than the substance, but then on the other hand, Your Honor, here we are involved with a statement that amounts to a confession. A confession perhaps of guilt, we’ll say. And certainly the methods used to extract this particular confession, or the methods used to obtain it would certainly be important as far as to this Court to inquire into, or to allow evidence to be submitted.
“The Court: The man who took the statement is on the stand. You may question him. I have given you—
“Mr. Ward: I am repeating myself, Your Honor, when I say that I am limited. This man, he only talked to this man on April 7th. I can’t go in to him with what happened prior to April the 7th.
“The Court: Do you wish to call any other witnesses?
“Mr. Ward: Yes, I would. I’ll call a witness here.
“The Court: Who do you wish to call?
“Mr. Ward: I would like to call Mr. Taylor right now.
“The Court: What would you expect to establish by his testimony?
“Mr. Ward: I would like to know from Mr. Taylor how many times this man had been questioned while he was over there on the City Prison Farm. I’d also like to find out if I possibly can, from either Mr. Moffit or Mr. Taylor, why this man was placed on the Prison Farm; I mean—
“The Court: He has already testified to that.
“Mr. Ward: I beg your pardon?
“The Court: He has already testified to that.
“Mr. Ward: On a parole violation?
“The Court: Yes.
“Mr. Ward: Now, we know that. That’s a matter of record, Your Honor, that this.man was placed on a prison farm as a result of a parole violation. But I’d like to inquire into, was this parole violation a request made by the — I mean this man being incarcerated on this parole violation, was it a request made by the detectives—
“The Court: I can’t see that that has anything to do with the admissibility of this tape recording.
“Mr. Ward: And also I’d like to—
“The Court: Let me ask you on the record, do you have any evidence whatsoever that this was not a voluntary statement? If you do, I’ll be glad to hear it.
“Mr. Ward: Yes, Your Honor, I do have.
“The Court: All right..
“Mr. Ward: That this was not a voluntary statement on the part of this man. And I’ll place the man himself up there on the stand.
“The Court: This isn’t the proper time to do it.”
The substance of the trial court’s ruling as further indicated by the record was that any matter which the appellant had to offer challenging the voluntary character of the confession was “defensive matter and the Jury will hear it at the proper time.” Counsel for the appellant thereupon made an objection for the record and briefly argued the points decided in Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205.
The jury was recalled, the tape recorded confession was admitted into evidence, and by machine the confession was put in evidence for the court and jury.
The tape recording constituted a confession by the appellant, with the exception that it disclosed a television set and stereo were taken and not a television set and water cooler, as charged in the information and established by the other evidence in the record. Detective Moffit on cross examination testified the appellant was under the impression the water cooler taken out of the Johnson home was a stereo. Pie further testified on cross examination that shortly after the tape recorded statement was taken from the appellant, the appellant was released from the Prison Farm and transferred to the County Jail. He further testified at no time to his knowledge had the items which were taken from the Johnson home been recovered.
In due course of the trial the appellant took the witness stand on his own behalf and testified in substance that he had mistaken the Johnson home, which had a porch light burning, for the home at which he was calling upon a girlfriend for the first time, who advised him she would leave the porch light on so he could find the place. He further testified that detectives from the Wichita police department came out to the Prison Farm to pick him up four or five times for questioning, and that the advice he received was that he:
“Was going to get life imprisonment if I didn’t help them clean up this case and tell them what I knew about it. And I told them well, I said, ‘If I am going to get life anyway, I am not going to send myself up for nothing.’ I said, ‘You will just have to say I did it and prove it because I am not going to admit I did something I didn’t do.’ And they come back out again and questioned me and well, they kept on saying, ‘We know you did it.’ And they had another guy in in there and he laid it out in detail to how he told them I did it. And he said, ‘Isn’t this right, Curtis, isn’t this the way you did it?’ And I said, ‘No, I don’t know anything about it.’ And then they come and got me again and they said if I didn’t co-operate with them this time they wasn’t going to bother with me no more, they was going to make sure I had 150 days out there on the P Farm, and I did 60 of them. And they say, ‘Well, if you will come in and make confession that we wouldn’t ask for — the habitual criminal act on you, and we will get you out of this P Farm and send you to the County and get you on up there in Lansing.’ So I said, ‘Well, if you— and then I don’t know which one told me this, but he said, ‘If you don’t cooperate you will do 150 days.’
“Mr. Vaughn: Just a minute, I think we should know who said what and when it was.
“The Court: Yes, I think so.
“Mr. Vaughn: Who was present?
“A. Well, it was the lieutenant of the detectives, a great big guy. I don’t know. I am not too familiar with it. But he was telling me that if I didn’t co-operate — ”
After interruption by counsel and argument the appellant was permitted to continue as follows:
“Q. You may go ahead, Mr. Milow.
“A. Well, anyway after they brought me from this P Farm down there they said, ‘Well, are you getting tired of doing time out here?’ I said, ‘No, it ain’t bothering me.’ I said, ‘I’d rather do 150 days out here than go back to that penitentiary and do anything.’ So he said, ‘Well, you can stay out here if you don’t want to talk.’ He said, ‘This is just the beginning, because you are going to do 150 days out here and then after you get over to the County, we are going to make sure that you are sent over to tire District Court, and that’s going to take five or six months,’ and this was back in February and I think the District Court had just went out then. And they come and got me again and said that they—
“Mk. Vaughn: Your Honor, I still don’t know who ‘they’—
“The Court: Sustained.
“A. Mr. Taylor and Moffit, and Don — whatever—three or four different days, picking me up. I don’t know any of them personally, I just know them when I see them.
“Q. You know Mr. Taylor personally?
“A. I know Mr. Taylor personally, yeah. But he was usually with the guys, or at least one or two times when he come out to pick me up. And they kept on joking about ‘We don’t want to lose three days if he gets away,’ and they would shocker me down and take me up here to this place up here and they would have somebody up there to say that I had did this and I had did that, but I still denied it. And I stayed out there 60 days eating twice a day beans and gravy, and I just got sick of it and I said, ‘Well, if you are going to give me life anyway — they done assured me of that, and then if they would give me a one-to-five, I can verify this, he promised me one to five years if I would clean up — and I said, ‘Well, I’d rather have a one-to-five than thirty to life — -in prison.”
The substance of further testimony by the appellant was that he did not take any items from the Johnson home, and he would rather confess and get one to five years than to get life imprisonment for something he did not do.
Where a person is on trial for a crime, evidence of a confession of guilt of the crime previously made by such person is in general not admissible unless it appears that the confession was entirely voluntary. If such confession is made while the party is under arrest or charged with a crime, evidence of the confession is not admissible on the trial unless it is made to clearly appear that the party was fully advised of his rights, and that after being so advised, the confession of guilt was freely and voluntarily made under circumstances that afforded no undue influence in procuring the confession. Furthermore, the burden of proof is upon the state to show that any confession of a crime by the accused was freely and voluntarily made before the confession is admissible in evidence. In this connection it is the duty of the trial court, before admitting the confession in evidence, to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion. (State v. Seward, 163 Kan. 136, 181 P. 2d 478 [on rehearing, 164 Kan. 608, 191 P. 2d 743]; and State v. McCarther, 197 Kan. 279, 416 P. 2d 290.)
A situation similar to that in the instant case arose in State v. Seward, supra, where the trial court admitted a writing in evidence which constituted a confession, denying the defendant’s counsel a right to show by witnesses that the offered writing was not a declaration against interest or the confession of the accused. The trial court advised counsel that his offer would be accepted when the defendant was putting on his case. The jury was thereupon called in and the witness permitted to identify the paper, whereupon the trial court overruled the objection and admitted the confession. In substance the trial court refused to consider, before overruling the objection to the confession, all of the evidence as to whether the confession was freely and voluntarily made without force or coercion. The court there reversed a conviction holding, among other things, it was the duty of the trial court, before admitting the confession into evidence, to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion.
In the Seward case an extended discussion was undertaken analyzing cases from other jurisdictions concerning the burden of proof where a confession is offered in evidence, and instructions where a confession has been properly received in evidence. Reference is made to the Seward opinion as apropos to the situation at hand.
In Andrews v. Hand, 190 Kan. 109, 372 P. 2d 559, 371 U. S. 880, 9 L. Ed. 2d 117, 83 S. Ct. 152, it was said:
“Coercion in obtaining a confession from an accused can be mental as well as physical. (Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844; Spano v. New York, 360 U. S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202; Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274.) The Fourteenth Amendment forbids ‘fundamental unfairness in the use of evidence, whether true or false’ (Lisenba v. California, 314 U. S. 219, 236, 86 L. Ed. 166, 180, 62 S. Ct. 280), and the range of inquiry as to whether a confession was involuntarily obtained is broad. Whether a confession was freely or involuntarily given is based upon consideration of ‘the totality of the circumstances’ (Fikes v. Alabama, 352 U. S. 191, 197, 1 L. Ed. 2d 246, 251, 77 S. Ct. 281), and where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact.’ (Blackburn v. Alabama, supra.) . . .” (p. 117.)
If the testimony of the appellant is to be given credence, it suggests a more sophisticated method of extracting a coerced confession by the police than resort to brute force.
The United States Supreme Court in another of a long line of cases presenting the question whether a confession is properly admitted into evidence under the Fourteenth Amendment was confronted with a sophisticated method of extracting a coerced confession in Spano v. New York, 360 U. S. 315, 3 L. Ed. 1265, 79 S. Ct. 1202. The court there recognized, as in all such cases, that it was forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement. The court there said:
“. • • Because of the delicate nature of the constitutional determination which we must make, we cannot escape the responsibility of making our own examination of the record. Norris v. Alabama, 294 U. S. 587.” (p. 316.)
■ The court there found the use of the confession obtained inconsistent with the Fourteenth Amendment under traditional principles, saying:
“The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Accordingly, the actions of police in obtaining confessions have come under scrutiny in a long series of cases. Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry, including that portion of our citizenry suspected of crime. The facts of no case recently in this Court have quite approached the brutal beatings in Brown v. Mississippi, 297 U. S. 278 (1936), or the 36 consecutive hours of questioning present in Ashcraft v. Tennessee, 322 U. S. 143 (1944). But as law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made. . . .” (p. 3¿0, 321.)
The points suggested by the record in the instant case were squarely considered by the United States Supreme Court in Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205. In Andrews v. Hand, supra, the Kansas court in capsule form (heretofore quoted) has recognized the rules upon which the United States Supreme Court elaborated in considerable detail in Jackson v. Denno, supra. It there held the procedure in the state of New York to determine the voluntariness of a confession violated the due process clause of the Fourteenth Amendment to the Federal Constitution.
Under New York procedure, concerning a determination of the voluntariness of a confession offered by the prosecution, the trial court excludes it if under no circumstances could the confession be deemed voluntary, but leaves to the jury the ultimate determination of its voluntary character, as well as its truthfulness, if the evidence presents a fair question as to its voluntariness. In a prosecution for murder in Jackson v. Denno, supra, a New York state court in compliance with the foregoing procedure submitted to the jury, along with other issues, the question of the voluntariness of a confession obtained from the petitioner while he was hospitalized and after he had been given doses of demerol and scopolamine. The petitioner was convicted and his conviction affirmed by the New York Court of Appeals, the United States Supreme Court denying certiorari. Later his petition for habeas corpus was denied in the United States District Court for the Southern District of New York (206 F. Supp. 759), and the Court of Appeals for the Second Circuit affirmed (309 F. 2d 573). On certiorari the United States Supreme Court reversed and remanded the case to the district court. In the opinion the court said:
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U. S. 401; Stroble v. California, 343 U. S. 181; Payne v. Arkansas, 356 U. S. 560. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra. In our view, the New York procedure employed in this case did not afford a reliable determination of the voluntariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment. . . .” (pp. 376, 377.)
Specific reference is made to the opinion in Jackson v. Denno, supra, for the detailed analysis and reasons assigned for the foregoing rule. In the opinion the court said:
“. . . the reliability of a confession has nothing to do with its voluntariness — proof that a defendant committed the act with which he is charged and to which he has confessed is not to be considered when deciding whether a defendant’s will has been overborne. . . .
“It is now inescapably clear that the Fourteenth Amendment forbids the use of involuntary confessions not only because of the probable unreliability of confessions that are obtained in a manner deemed coercive, but also because of the ‘strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.' Blackburn v. Alabama, 361 U. S. 199, 206-207, and because of ‘the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.’ Spano v. New York, 360 U. S. 315, 320-321. . . .” (pp. 384-386.)
The court went on to say under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness, and that it is only a reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant and which would permit the jury to consider the confession in adjudicating guilt or innocence.
The court posed the question whether uncertainty about the sufficiency of the other evidence to prove guilt beyond a reasonable doubt will actually result in acquittal when the jury knows the defendant has given a truthful confession. The court then said:
“It is difficult, if not impossible, to prove that a confession which a jury has. found to be involuntary has nevertheless influenced the verdict or that its finding of voluntariness, if this is the course it took, was affected by the other evidence showing the confession was true. But the New York procedure poses-substantial threats to a defendant’s constitutional rights to have an involuntary confession entirely disregarded and to have the coercion issue fairly and reliably determined. These hazards we cannot ignore.
“As reflected in the cases in this Court, police conduct requiring exclusion-of a. confession has evolved from acts of clear physical brutality to more refined and subtle methods of overcoming a defendant’s will.
“ ‘[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition. A number of cases have demonstrated, if demonstration-were needed, that the efficiency of the rack and the thumbscrew can be matched, given the proper subject, by more sophisticated modes of “persuasion.” ’ Blackburn v. Alabama, 361 U. S. 199, 206.
“Expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne — facts are frequently disputed, questions of credibility are often crucial, and 'inferences to be drawn from established facts are often determinative. The overall determination of the voluntariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issue squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence. See Wilson v. United States, 162 U. S. 613; United States v. Carignan, 342 U. S. 36; Smith v. United States, 348 U. S. 147. Where pure factual considerations are an important ingredient, which is true in the usual case, appellate review in this Court is, as a practical matter, an inadequate substitute for a full and reliable determination of the voluntariness issue in the trial court and the trial court’s determination, pro tanto, takes on an increasing finality. The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend. In our view, the New York procedure falls short of satisfying these constitutional requirements. . . .” (pp. 389-391.)
In Lynumn v. Illinois, 372 U. S. 528, 9 L. Ed. 2d 922, 83 S. Ct. 917, it was held that in determining the voluntariness of a confession of crime, the question in each case is whether the defendant’s will was overborne at the time of confession; if so, the confession cannot be deemed the product of a rational intellect and a free will. It was further held even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of a coerced confession vitiates the judgment because it violates the due process clause of the Fourteenth Amendment. Payne v. Arkansas, 356 U. S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844, is to the same effect.
In Blackburn v. Alabama, 361 U. S. 199, 4 L. Ed. 2d 242, 80 S. Ct. 274, it was said:
"... A prolonged interrogation of an accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror. Thus the range of inquiry in this type of case must be broad, and this Court has insisted that the judgment in each instance be based upon consideration of ‘[t]he totality of the circumstances.’ Fikes v. Alabama, 352 U. S. 191, 197.” (p. 206.)
In view of the foregoing authorities it is clear the trial court denied the appellant in the instant case an adequate proceeding separate and apart from the jury to determine, as a preliminary matter, whether the confession was freely and voluntarily made by the appellant under circumstances that afforded no undue influence in procuring the confession. The range’ of inquiry in the collateral proceeding conducted by the trial court was limited, and the inquiry was based upon considerations far less than the totality of the circumstances. Whereas, the range of inquiry in such collateral proceeding by the trial court should have been broad, and the in quiry should have been based upon a consideration of the totality of the circumstances.
Certainly, where a trial court is obligated to consider the totality of the circumstances in determining whether a confession is voluntarily given, more is embraced than simply hearing the state’s evidence, or only a part of it, in making such determination. Here the trial court in the collateral proceeding refused to permit counsel for the appellant to call Detective Andrew Taylor, who had interrogated the appellant on occasions prior to the taking of the taped confession, and the trial court also denied the appellant a right to testify, holding that the appellant’s testimony was defensive matter for the jury to hear and determine at the proper time.
Under Kansas law, after a confession is admitted into evidence as being voluntary, the question of voluntariness is not open for the jury to consider, and a trial court does not err in refusing to give an instruction on the issue of voluntariness. (State v. Robinson, 182 Kan. 505, 322 P. 2d 767; and State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) The trial court has a duty, however, after deciding that a confession has been voluntarily made, and admitted into evidence, to instruct the' jury that it should consider the truth or falsity of the confession along with the other evidence in the case (State v. Seward, supra), and evidence bearing upon the credence to be given a confession is admissible. (K. S. A. 60-408.)
To the extent that Syllabus ¶1 and the corresponding portion of the opinion in State v. Jones, 198 Kan. 30, 422 P. 2d 888 (followed in State v. Phinis, 199 Kan. 472, 430 P. 2d 251), is inconsistent with the law stated in this opinion, as exemplified in Syllabus ¶3, it is disapproved. The statutory law of this state, as construed by our decisions, must yield when it is not in harmony with rights guaranteed to our citizens by the Fourteenth Amendment to the Federal Constitution as interpreted by the United States Supreme Court. (See, K.S.A. 60-408.)
We turn now to a consideration of the disposition of this case. Since the appellant has not been given an adequate hearing upon the voluntariness of his confession, he must be given one.
This is not a case where the facts concerning the circumstances surrounding the confession are undisputed, and the task is only to judge the voluntariness of the confession based upon the clearly established facts in accordance with proper constitutional standards. Here there are substantial facts in dispute. Whether the appellant is entitled to relief depends upon how these facts are resolved, for if the witnesses for the state are to be believed we cannot say the appellant’s confession was involuntary, whereas if the appellant’s version of the facts is accepted the confession was involuntary and inadmissible.
At this point the appellant has not yet had an adequate evidentiary hearing productive of reliable results, to which he is constitutionally entitled, concerning the voluntariness of his confession. It does not follow, however, that he is automatically entitled to a complete new trial including a retrial on the issue of guilt or innocence. His position before the trial court, and here, is that the issue on the admissibility of his confession should not have been decided by the trial court summarily, or by the convicting jury, but should have been determined in a proceeding separate and apart from the jury which determined his guilt or innocence. He is entitled to such a hearing in the trial court, but if at the conclusion of such a collateral evidentiary hearing on the issue of coercion, it is determined the appellant’s confession was voluntarily given, admissible in evidence, and proper for the jury to consider, a new trial is unnecessary, because the appellant has already been tried by a jury with the confession placed before it and has been found guilty. Under these circumstances, if the conviction rested upon the confession there is no constitutional prejudice to the appellant. If the jury relied upon it, it was entitled to do so. On the other hand, if the trial court at a properly conducted collateral proceeding determines the facts upon all the evidence, and decides the appellant’s confession was involuntary, there must be a new trial on the issue of guilt or innocence without admission of the confession into evidence. (See, Jackson v. Denno, supra.)
Accordingly, the case is remanded to the lower court with directions to proceed in accordance herewith. | [
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The opinion of the court was delivered by
Harman, C.:
This is a damage action for personal injuries wherein the defendant Ford Motor Company won a jury verdict.
On August 7, 1959, the appellant-plaintiff purchased a new 1959 Ford automobile from Mosby-Mack Motor Company, Incorporated, Ford dealer at Topeka. On March 3, 1961, as he was driving the vehicle east on East Eighth street in that city approaching the tracks of the Atchison, Topeka, and Santa Fe Railway Company, he saw a train crossing the street; he applied the brakes on the vehicle but the brakes failed and he ran into a crossing signal control approximately six feet from the tracks. Plaintiff was dazed by the collision, he got out of his automobile and in some manner either walked into or was sucked under the passing train with consequent loss of both legs.
As a result plaintiff filed his petition for damages, which petition has been amended by the filing of a new petition three separate times, each with a different set of attorneys.
The first petition was filed December 13, 1962. It named as defendants the Santa Fe, the Ford Motor Company, Mosby-Mack and Noller Motors, Incorporated, successor to Mosby-Mack. For our purpose here we need not detail the particular allegations except to say generally the petition purported to state causes of action based upon certain grounds of negligence, including res ipsa loquitur, and breach of express and implied warranties.
The second petition, filed October 29, 1963, was similarly framed except, for reasons which do not appear in the record, the Santa Fe was omitted as a party defendant. An answer to this petition was filed, and then a supplemental answer which revealed that on March 4, 1965, for a named consideration, plaintiff settled his claim against defendants Mosby-Mack and Noller and executed and delivered to them a covenant not to sue.
The next petition was filed July 12, 1965, against the defendantappellee Ford Motor alone, again on similar grounds.
The fourth and final petition, filed December 27, 1965, was a notice type pleading permissible under our present procedural code. After alleging the circumstances of the crossing incident, it again alleged two causes of action: The first simply stated that plaintiff’s damages were the result of defendant’s negligence without specifying any particular acts or omissions constituting the alleged negligence; the second stated that defendant expressly and impliedly warranted the automobile to be free from defects and safe to operate, and that plaintiff, relying on the warranties, was injured as a result of breach thereof, in that the defective brake action on the automobile was caused by improper design and construction of the brake pedal assembly.
Issues were joined on this latter petition and jury trial had. Prior to the filing of the last petition there had been certain pretrial proceedings into which, under the view we take of the controlling question, we need not delve.
The trial court denied certain of plaintiff’s requested instructions based upon implied warranty and submitted the case to the jury upon negligence. The specific ground of negligence upon which the case was submitted in the court’s instructions was that a certain Marsden nut on the brake pedal assembly was not properly designed or assembled to make it effective for its intended use.
At this point, to avoid possible misunderstanding, it should be stated there was and is no contention of derivative liability in tort on the part of Ford Motor based on any acts of Mosby-Mack or Noller or the latter’s employees in handling or servicing the vehicle, and the trial court so ruled.
The jury returned a general verdict for the defendant and answered a written interrogatory submitted to it as follows:
“1. Was the brake assembly of plaintiff’s 1959 Ford Automobile in a defective condition as charged by plaintiff at the time the defendant Ford Motor Company released it to its dealer for sale?
“Answer: Insufficient evidence that it was defective.”
Plaintiff has appealed from the trial court’s entry of judgment against him on the general verdict and from the order overruling his motion for new trial. His points upon appeal are that the trial court erred in refusing to permit him to offer evidence on the theory defendant breached its implied warranty of fitness and in failing to instruct the jury on the issue of implied warranty.
The evidence offered before the jury has not been placed in the record and the record is not clear as to why or what evidence was excluded. Change of counsel and theories during the protracted course of the litigation has doubtless contributed to the lack of coherence. Contentions by plaintiff that evidence based upon implied warranty was excluded by reason of pretrial rulings, made before present counsel for plaintiff were in the case, are vigorously disputed by defendant. We cannot be sure whether such evidence was excluded by formal pretrial rulings, by informal rulings made during trial or, as intimated by defendant, by voluntary abandonment by plaintiff. Defendant also argues plaintiff is in no position to complain that evidence was erroneously excluded or that certain instructions were not given because the record contains no evidence or testimony and there is nothing to show what evidence was excluded or that the requested instructions were justified.
Under the view we take we need not pursue this approach by either party as we consider another factor — the answer to the written interrogatory — determinative of the lawsuit.
As indicated, plaintiff’s complaint essentially is he has been deprived of opportunity of recovery based on implied warranty of fitness. He principally cites and relies on B. F. Goodrich Company v. Hammond, 269 F. 2d 501 (10th Cir., Kan.), cited with approval by this court in Rupp v. Norton Coca-Cola Bottling Co., 187 Kan. 390, 357 P. 2d 802, and on Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358, 161 A. 2d 69, recently cited approvingly in Steele v. J. I. Case Co., 197 Kan. 554, 419 P. 2d 902, an action for breach of express warranty where full consequential or special damages were permitted to be recovered. In all of these cases, and in numerous others which could be cited where recovery for breach of warranty was allowed, the trier of the fact found a defective condition in the manufactured product.
Procedural difficulties aside, on any theory of liability a prerequisite to recovery against a manufacturer is that there be a defect in the product or instrumentality. Regardless of the ground of liability asserted, before a plaintiff can recover damages from a manufacturer, he must show the product was defective or harmful. This is essential. If the plaintiff cannot do so he has no cause of action on any theory. As stated in Manzoni v. Detroit Coca-Cola Bottling Company, 363 Mich. 235, 109 N. W. 2d 918, wherein actions in tort and on implied warranty were discussed:
“. . . whether the theory employed is that of warranty or negligence, it must be shown in an action against the manufacturer, that the offensive condition was present when the product left the defendant’s control.” (p. 241.)
The very basis for holding a manufacturer responsible for breach of implied warranty is that he has released a defective item on the market. Here after a four day trial the jury found no such defect was shown.
Plaintiff argues the interrogatory was limited to condition of the automobile when it was released to Ford’s dealer and did not go to the time it reached the ultimate purchaser. The distinction argued is of no consequence where, as here, it is charged the manufacturer created a defect of continuing nature.
The case went to the jury on the negligence charge based on defective design and construction of the brake pedal assembly. The jury determined the assembly was not shown to be defective. We do not have the evidence before us upon which that determination was made. The record does reveal the car was one year and seven months old at the time of plaintiff’s injury, it had been driven 31,000 miles, and about a month prior to the crossing incident it had been involved in an accident in which it pushed over a brick retaining wall. Moreover, during much of the litigation plaintiff contended improper servicing on the part of the two dealers had caused the defect.
Plaintiff argues the proof is necessarily different in a negligence case from that in a breach of warranty action. This may be conceded except, under the circumstances of this particular case, insofar as the requisite defective or harmful condition was concerned it was essentially the same. Design and construction of the brake assembly were the targets of both causes of action. Plaintiff does not suggest what other or further evidence he might have offered or could offer. Evidently at trial, in view of his requested instruction upon breach of implied warranty, plaintiff believed his evidence sufficient to go to the jury upon that basis. In any event, plaintiff has had fair opportunity to show the alleged defective condition of the automobile, attributable to defendant, and on that essential issue has failed. This should end the litigation regardless of other contentions urged why another trial should be had.
By reason of the negative finding in the jury’s answer to the interrogatory, upon appellate review the trial court’s judgment must be and is affirmed.
APPRROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
The present appeal stems from a negligence action for injuries received in an automobile accident. The action was filed by Vada S. Pierce and Farmers Insurance Exchange, an insurance carrier, against Judith A. Melzer.
On November 14, 1963, plaintiff, Vada S. Pierce, was a passenger in a vehicle traveling north on Meridian street in Wichita, Kansas. The driver of the vehicle in which she was riding had slowed to make a right turn on Orient Boulevard when a vehicle driven by the defendant Judith A. Melzer skidded 42 feet and struck the left rear of the vehicle in which plaintiff was riding. The defendant’s vehicle continued to skid 48 feet after impact. The defendant got out of the vehicle and permitted it to roll back and strike the left front of the vehicle in which plaintiff was riding.
The defendant was an uninsured motorist. Farmers Insurance Exchange by negotiation and compromise of liability under an uninsured motorist clause paid Vada S. Pierce for personal injuries. Thereafter the insurance carrier and Vada S. Pierce joined as plaintiffs in the present suit against defendant Melzer.
Plaintiffs allege in the petition defendant negligently, wilfully and wantonly drove a motor vehicle against the vehicle in which plaintiff, Pierce, was a passenger. The nature of plaintiff’s injuries are set forth and the amount incurred for medical and hospital expenses is stated. They allege the defendant was grossly and wantonly negligent in the following particulars:
“In driving at a high rate of speed which was dangerous under the facts and circumstances then and there existing, in skiding (sic) 42 feet prior to the impact and knocking the vehicle in which the plaintiff was riding 38 feet and in traveling 86 feet northwest after impact, striking the west curb of Meridian and then skiding (sic) 48 feet back and involving a second impact with the vehicle the plaintiff was riding in.”
Plaintiffs ask for punitive damages.
The defendant filed answer denying negligence and denying wilful and wanton conduct. For further answer defendant stated that she filed a bankruptcy petition under federal law and was discharged on October 16, 1964.
The accident giving rise to this action occurred November 14, 1963. The petition in the negligence action was filed November 9, 1965. The discharge in bankruptcy pleaded by defendant occurred a year prior to the filing of the present action.
A pre-trial conference order was entered. The case came on for trial to a jury. After the plaintiffs introduced their evidence they rested and the defendant moved the court to “return an involultary verdict” for the reason that the plaintiffs had failed to prove the defendant was guilty of gross and wanton negligence. The motion was sustained. The court directed an “involuntary verdict” for the defendant. The jury was discharged. Plaintiffs were ordered to pay the costs of the action.
Plaintiffs appeal from the judgment for the reason and on the ground the court erroneously refused to permit the case to go to the jury for recovery of damages on ordinary negligence. They do not question the court’s determination that the evidence failed to show defendant’s acts constituted wilful and wanton negligence.
There is no provision in our statute which relates to a “motion for involuntary verdict.” K. S. A. 60-241 (b) relates to a motion for involuntary dismissal of an action. K. S. A. 60-250 relates to a motion for a directed verdict. Since the case was being tiled before a jury motion for a directed verdict was a more accurate designation. Our rules relating to such motions are quite similar to the federal rules.
In Sano v. Pennsylvania Railroad Company, 282 F. 2d 936 (1960) a motion for involuntary dismissal was granted in a jury trial at the close of plaintiff’s evidence and upon appeal the circuit court said: (p. 938.)
. . Since the case was being tried with a jury a motion for a directed verdict under rule 50 (a), Federal Rules of Civil Procedure, was tire more appropriate motion. Kingston v. McGrath, 9 Cir. 1956, 232 F. 2d 495, 54 A.L.R. 2d 267 . . .”
The pertinent part of the journal entry which recites the nature of the motion and the court’s judgment thereon reads:
“Thereupon, the Court after admonishing the Jury prepared a recess, and the defendant by and through her attorney, Owen J. Redmond, Jr., made a Motion that the Court return an involuntary verdict for the defendant, for the reason that, the plaintiff had failed to prove in the light of the evidence most favorable to the plaintiff, that this defendant was guilty of gross and wanton negligence, and said cause was thereupon argued to the Court, and after said cause having been argued, said Motion was sustained, and the Court thereupon, directed an involuntary verdict for the defendant.
“Thereafter, the parties being present as aforesaid, said Jury was recalled in the Box, and the Court explained to them that it had sustained the Motion for an involuntary verdict and discharged said Jury.
“It Is Therefore Ordered, Adjudged and Decreed by the Court that an involuntary verdict should be and is hereby entered in favor of the defendant, and that plaintiffs pay the costs of said action.”
Thereafter plaintiffs filed motion for new trial, contending the court erred: (1) In holding plaintiffs’ claim was limited and based upon proof of wilful and wanton negligence; (2) In determining that plaintiffs’ action could not be based upon ordinary negligence by defendant because of limitations prescribed in the pre-trial order and (3) In failing to submit the action to the jury based on ordinary negligence. This motion was overruled.
The pre-trial conference order seems to be the center of contro versy between the parties. Omitting the preface to this order it is as follows:
“Whereupon, after considering the arguments and stipulations of counsel, the pleadings and exhibits submitted, The Court made the following order:
“1. The parties have agreed to be bound by the following stipulations: (Emphasis added.)
“(a) That on November 14, 1963, an automobile accident occurred between a vehicle in which the plaintiff, Vada S. Pierce, was a passenger and a vehicle operated by the defendant, Judith A. Melzer.
“(b) That on November 14, 1963, a valid insurance contract was in full force and effect between the plaintiff Farmers Insurance Exchange as insurer, and Vada S. Pierce as insured.
“(c) That the plaintiff Farmers Insurance Exchange paid to the plaintiff, Vada S. Pierce, the sum of $2,500.02 pursuant to the terms of the insurance policy contract as result of injuries sustained by Vada S. Pierce in the accident on November 14, 1963.
“(d) That the plaintiff, Vada S. Pierce, had a life expectancy of 15.78 years at the time of the accident on November 14, 1963.
“(e) That the plaintiff, Vada S. Pierce, incurred the following medical bills as a result of the accident on November 14, 1963:
(1) McCormick Corset Shop .................................. $50.64
(2) Dr. Gale G. Elder....................................... 218.00
(3) Osteopathic Hospital ..................................... 247.85
(4) Wichita Clinic .......................................... 65.50
Total ............................................... $581.99
“2. The remaining issues of fact are to be determined as follows: (Emphasis added.)
(a) Was the defendant, Judith A. Melzer, operating her motor vehicle at an excessive rate of speed on November 14, 1963, at the time of the accident.
(b) Did such speed constitute gross and wanton negligence on the part of the defendant, Judith A. Melzer.
(c) The amount of damages to the plaintiff, if any.
“3. The remaining questions of law to he decided are as follows: (Emphasis added.)
(a) Did the defendant, Judith A. Melzer, operate her motor vehicle at a speed which would constitute gross and wanton negligence on November 14, 1963, at the time of the accident.
“4. (This item consists of the name and address of witnesses identified by plaintiff.)
“5. (This item consists of the names and addresses of witnesses identified by defendant.)
“6. (This item identifies exhibits to be offered by plaintiff.)
“7. (This item identifies exhibits to be offered by defendant.)
“It Is Further Ordered that the trial in this case shall be limited to the issues contained in this order except by order of the Court.”
The above order was signed by the judge and approved by attorneys for both parties.
No stenographic report of the pre-trial proceedings was taken. No verbatim stenographic report of the colloquy between court and counsel on the day of trial is set forth in the record on appeal. The parties disagree in their briefs and in oral argument as to the basis for denying plaintiff the right to submit the cause of action for ordinary negligence to the jury.
Both parties designated identical portions of the record to be considered on this appeal. The record on appeal contains the following narrative statement concerning matters at the pre-trial conference and on the day of trial.
“At the pre-trial the question of discharge was discussed and the issue of ordinary negligence was not allowed by the court on the ruling of the court that the bankruptcy was a bar to recovery for ordinary negligence. The legal question of the bankruptcy was thereby removed.
“The day of trial the court offered to allow the plaintiffs to proceed on ordinary negligence or wilful and wanton negligence by election of the plaintiffs. Plaintiffs did not believe they were obligated to make such elections and defendant objected to proceeding on ordinary negligence upon an election by the plaintiffs.
“Trial was commenced on the court’s order that the issue would be limited to wilful and wanton negligence and the plaintiffs were barred from the issue of ordinary negligence by the court.”
The plaintiffs’ petition alleged ordinary negligence as well as wilful and wanton conduct. The answer of defendant denied both negligence and wilful and wanton conduct and stated:
3. Further Answering, defendant states that she has filed a bankruptcy petition in the United States District Court for the District of Kansas, Case No. 8717-B-2, and that said defendant was discharged on the 16th day of October, 1964.
“Wherefore, defendant having fully answered plaintiff’s petition, prays that plaintiff take nothing by her pretended cause of action, and defendant have judgment for costs and for such other and further relief as to the Court may deem just and proper.”
Both parties now agree on the general effect of the federal bankruptcy laws upon tort claims. A discharge in bankruptcy shall release a bankrupt from all of his provable debts, whether allowable in full or in part, except such as are liabilities for wilful and malicious injuries to the person or property of another. (11 U. S. C. A. Sec. 35.) The parties further agree that in order for an ordinary negligence action to be discharged as a provable debt of the bank rupt the negligence action must have been filed prior to and be pending at the time of the filing of the petition in bankruptcy. (11 U. S. C. A Sec. 103 (a) (7); 9 Am. Jur. 2d Bankruptcy §406; 3 Collier on Bankruptcy p. 1909 [14th Ed.].)
The record in the present case indicates that plaintiffs’ action was not filed until over a year after the defendant’s discharge in bankruptcy and that the discharge in bankruptcy pled in paragraph 3 of the defendant’s answer could not affect plaintiffs’ cause of action filed November 9, 1965.
The defendant contends that plaintiff was limited by the pretrial order to recovery on proof of gross and wanton negligence. The pre-trial order sets out the stipulations or admissions of the parties under item 1. We find nothing stipulated or admitted which would limit the plaintiff to recovery based on proof of gross and wanton conduct. There is no mention of defendant’s discharge in bankruptcy and no admission of fact which would make plaintiffs’ cause of action a provable claim subject to discharge on October 16, 1964.
Although there appears some ambiguity between item 2 and item 3 of the pre-trial order yet item 2 lists three issues to be determined.
“(a) Was the defendant, Judith A. Melzer, operating her motor vehicle at an excessive rate of speed on November 14, 1963, at the time of the accident.” (Negligence.)
“(b) Did such speed constitute gross and wanton negligence on the part of the defendant, Judith A. Melzer.” (Gross and wanton conduct.)
“(c) The amount of damages to the plaintiff, if any.”
These three issues are the identical issues referred to in paragraph two of the answer. There defendant requested strict proof of negligence, of wilful and wanton conduct and of damages.
It appears that a cause of action based on negligence was alleged in the petition, that such negligence was denied by defendant in the answer and that the pre-trial order identified the nature of defendant’s negligence as operating her motor vehicle at an excessive rate of speed at the time of the accident.
The remaining issues of fact listed by the trial court under item 2 in the pre-trial order could not have been meant to be exclusive for the parties did not stipulate in item 1 as to other issues necessary to sustain the cause of action, such as proximate cause. The significance and purpose of item 2 and of item 3 in the pre-trial order are obscure. The matter listed as a remaining question of law under item 3 is apparently a combination of items 2(a) and 2 (b) listed as remaining issues of fact to be determined.
If the pre-trial order was entered by the court with the intention of limiting plaintiff to proof of gross and wanton conduct it was an erroneous ruling of law and subject to review on appeal.
In Campbell v. Nako Corporation, 198 Kan. 421, 429, 424 P. 2d 586, we said:
“Issues of fact to be tried may be limited by admissions, agreements and stipulations of counsel and when set forth in the pre-trial order will govern the scope of the trial issues. (See Andersen v. Andersen, 173 Kan. 467, 249 P. 2d 686.)
“The pre-trial order in the present case covered a ruling of law based upon an erroneous interpretation of our previous decision in Campbell v. Nako Corporation, supra. A pre-trial order does not preclude review of the trial court’s ruling on a question of law. (1A Barron and Holtzoff, Federal Practice and Procedure §§ 471, 473; Smith, Kirkpatrick & Co. v. Continental Autos Ltd. [D. C. D. C. 1960] 184 F. Supp. 764; Macklin v. Kaiser Co. [D. C. Or. 1946] 69 F. Supp 137.)”
The defendant contends that on the day of trial plaintiffs elected to and did proceed to trial upon a theory of wilful and wanton conduct, having elected to proceed on one theory of recovery they were bound thereby and the court properly precluded plaintiffs from recovery based upon ordinary negligence. We do not agree.
The doctrine of the election of remedies, that the pursuit of one remedy will exclude the pursuit of another, applies only to those cases in which the party has two or more remedies which are inconsistent with each other, and has no application where under the facts the remedies available are concurrent and consistent. (28 C. J. S. Election of Remedies §3; 25 Am. Jur. 2d Election of Remedies § 10.) A person injured in an automobile accident may file an action to recover damages caused by the tortious acts of the defendant. If the tortious acts are of such a nature as to be gross and wanton the plaintiff may recover punitive or exemplary damages. (See K. S. A. 60-209 [g].) The insufficiency of proof of gross and wanton acts on the part of defendant limits the plaintiffs to an action for recovery of compensatory damages. This does not result in substantial change in plaintiffs’ claim although certain differences may flow therefrom.
This court in Cadwallader v. Bennett, 187 Kan. 246, 250, 356 P. 2d 862 stated:
“The definition of wantonness has been recently set forth by this court in Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; and Bailey v. Resner, 168 Kan. 439, 214 P. 2d 323. It has also been said the two types of conduct (negligent conduct and wantonness) differ in kind and not degree. (Koster v. Matson, 139 Kan. 124, 30 P. 2d 107.) Several differences may be noted. First, the elements of proof are different; second, they differ as to the types of damages to which the plaintiff is entitled — a judgment based on negligence entitles the plaintiff to compensatory damages only, while a judgment based on wantonness entitles the plaintiff to both compensatory damages and exemplary or punitive damages (A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453) although it is not required that a plaintiff seek exemplary or punitive damages; and third, a major difference is indicated in the way in which the judgments are affected by an adjudication of bankruptcy on the part of the defendant. A judgment based upon negligence is a debt which is dischargeable, while a judgment based on willful and malicious injuries to the person and property of another is not dischargeable. (11 U. S. C. A. § 35 [1953].)”
In Cadwallader it was held that the allowance of a motion to amend the cause from negligence to gross and wanton conduct was not a substantial change in plaintiff's claim.
There is nothing inconsistent in the present action in allowing plaintiffs to pursue their action to recover damages arising out of a car accident based upon the negligent acts of the defendant. Such action was properly brought to recover both compensatory and exemplary damages. When the evidence failed to establish gross and wanton conduct by defendant as a matter of law, plaintiffs were entitled to have the case go to the jury on the issue of ordinary negligence.
The prior proceedings in this case have finally determined that defendant’s acts did not constitute gross and wanton conduct. Plaintiffs have conceded this point by failure to appeal from that portion of the judgment.
The remaining question for determination is whether plaintiffs can establish their cause of action based on negligence. The judgment denying plaintiffs the right of action for ordinary negligence is reversed and the case is remanded for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Fromme, J.:
This appeal requires construction of an express trust and, more specifically, of provisions relating to final disposition of the trust property. The trust was established for the purpose of carrying out the terms of a property settlement agreement entered into between Joe H. Sutcliffe and Velma E. Sutcliffe, his wife.
The following facts were developed during a trial in the court below. Marital difficulties arose between the parties and a separation occurred.' The couple owned considerable property. Some of the real estate was held in joint tenancy. The husband had difficulty carrying on his business because of inability to get his wife to sign deeds and other papers. The wife experienced difficulty in obtaining money for living expenses. The parties by their respective áttorneys carried on lengthy negotiations for a property settlement. On January 24, 1963, both parties signed a written agreement. The parties agreed to make full settlement of their property rights. In the agreement Joe was to pay $55,000 to purchase an annuity insurance policy on the life of Velma. She was to receive a monthly income therefrom. Velma was to receive a building site in the city of Chanute. Joe was to pay $18,000 toward construction of a house thereon. Velma was to receive household goods and an automobile. Joe was to have a reasonable time to finance these payments. The balance of the property was to belong to Joe.
Joe experienced difficulty in raising $73,000.
On February 21 and March 29, 1963, two deeds were executed by the parties. The names of grantees were left in blank. The deeds covered all of the property owned by the parties.
On March 29 the following trust agreement was signed and acknowledged by Joe H. Sutcliffe as trustor and by Joseph G. Lewis and Clark M. Fleming as trustees.
“Whereas, Joe H. Sutcliffe and Velma E. Sutcliffe, husband and wife, have agreed that they can no longer live together in peace and harmony and by reason thereof have agreed to live separate and apart, and did, on the 24th day of January, 1963, duly enter into a property settlement, a copy of which is hereto attached and marked Exhibit A, whereby they adjusted all of the property rights existing between them as husband and wife, and
“Whereas, in order to carry out the terms and conditions of said property settlement said husband and wife did, on the 21st day of February, 1963, and on the 29th day of March, 1963, duly make and execute a deed covering all of the real estate owned by the said husband and wife wherein the grantee’s name was left blank, and
“Whereas, said husband and wife agreed that the grantee to be named in said deeds should be such person, or persons, as might be designated by Kenneth Foust, attorney for Velma E. Sutcliffe,, and Clark H. Fleming, attorney for Joe H. Sutcliffe, who have designated that the grantees to be named in said deeds shall be Joseph G. Lewis and Clark M. Fleming, Trustees, to hold, mortgage, or convey said real estate according to the terms contained in said property settlement and such trust agreement.
“Now, Therefore, this agreement made and entered into this 29th day of March, 1963, by and between Joe H. Sutcliffe, as Trustor, and Joseph G. Lewis and Clark M. Fleming, Trustees, witnesseth:
“That for and in consideration of the premises, the mutual agreements herein contained, and other good and valuable consideration, the receipt of which is hereby acknowledged, the said Trustor and the said Trustees have this day, and do hereby covenant and agree each with the other as follows:
“(1) That the names of Joseph G. Lewis and Clark M. Fleming, as trustees, shall be entered in the deeds, the originals of which are hereto attached and marked Exhibit B and Exhibit C, In Trust, nevertheless, to and for the following use, intent and purposes:
“(a) Said Trustees be, and they are hereby authorized and directed to grant, bargain, sell, mortgage, or convey, to such person, firm, or corporation as may or shall be designated by Joe H. Sutcliffe any or all of the real estate described in the deeds hereto attached, for the purpose of raising the sum of not to exceed $73,000.00.
“(b) That at such time as said Trustees shall have on hand the net sum of $73,000.00, said Trustees be and they are hereby authorized and empowered to expend therefrom the sum of $55,000.00 to and with Equitable of New York, through John Knight, their agent, for the purpose of acquiring an annuity for and in the name of Velma E. Sutcliffe, the same to provide for her an income for life, payable monthly, with a clause providing for a guaranteed return of the principal sum expended, and naming as the beneficiary thereof the estate of Velma E. Sutcliffe.
“(c) That said Trustees be, and they are hereby authorized and directed to place on time deposit, in the name of said Trustees, the sum of $18,000.00, which shall be held by them and which shall, at such time as the said Velma E. Sutcliffe shall have completed a new home on lots owned by her in the City of Chanute, Kansas, be paid to the contractor who shall have constructed said new home upon the completion thereof, or sooner if directed by the said Joe H. Sutcliffe; said sum in any event to be paid to such person, or persons, as shall be designated by Velma E. Sutcliffe, and said sum, at the time of such payment, to be increased by the amount of earnings thereon, if any. Said Velma E. Sutcliffe having heretofore agreed to have the new house completed and to vacate the property at 131 South Grant Avenue, Chanute, Kansas, on or before October 1, 1963.
“(d) That, at such time as the said Trustees have on hands the net sum of $73,000.00 available for the above-described purposes, said Trustees be, and they are hereby authorized and directed, to convey to such person, firm, or corporation as shall be designated by the said Joe H. Sutcliffe, any or all of the real estate described in tire said exhibits hereto attached, subject in any case to any encumbrance thereon, whereupon this trust shall terminate and shall thereafter be void and of no further force and effect, and the said Trustees shall thereupon be discharged from their trust and released from any further duties hereunder.
“(e) That in any event, the Trustees above named shall not be personally liable for any obligations incurred by them as Trustees hereunder, and the only liability incumbent upon said Trustees shall be to .comply with the terms, conditions and provisions herein contained.
“(f) That said Trustees shall act jointly in all matters hereunder, except that if one of the Trustees shall die, or become otherwise incapacitated, then and in that event the surviving or remaining Trustee be, and said Trustee is hereby authorized to act on any and all matters in connection herewith without the necessity of the joining therein of the other Trustee.
“In Witness Whereof, the said Trustor and Trustees have hereunto set their hands this 29th day of March, 1963.”
Below the signatures and acknowledgment appeared the following:
“The above and foregoing Trust Agreement has been examined by me, and the same is hereby accepted and approved this 29th day of March, 1963.”
This statement was signed by Velma E. Sutcliffe and attested by her attorney.
The deeds and the trust agreement were accepted by the trustees. Attached to the trust agreement was a list of the descriptions of real property covered by the deeds and a copy of the property settlement agreement signed by Joe and Velma Sutcliffe. On April 23, 1963, the trustee who was attorney for the husband wrote a letter to the attorney for the wife. In this letter he outlined what he believed to be the understanding of the parties and asked that the attorney and the wife approve a copy of the letter and return the same to him if it was satisfactory.- The third paragraph of that letter read as follows:
“Referring again to the January Contract, I am finally in a position to fully comply with Item One thereof, the same being the annuity contract; Item Two or the Third Street property has been complied with in that you now have a Deed in your possession to that property; Item Three should or could be met since the household goods and furnishings described therein are presently in the control of Velma.Sutcliffe; Item Four can be complied with since Joseph Lewis and I, as Trustees, have in our possession the sum of $18,000.00, which can be applied by Velma toward the construction of a home on the Third Street property; Item Five is presently being complied with, and the vacation date is contained in the Trust Agreement; Item Six has been complied with in that you have, in your possession, the title to .the 1962 Cadillac, and it is free and clear of all liens and encumbrance.”
Tbe letter was approved by the attorney but was returned without the signature of the wife.
On April 30, 1963, the trustees purchased the life insurance annuity and Velma E. Sutcliffe .receives monthly payments under this contract. On December 1, 1964, the trustees made final payment of the $18,000 on the house.
On January 28, 1965, Joe H. Sutcliffe died. His will was admitted to probate in Neosho county, Kansas. Omitting the attestation clause it reads:
“I, Joe H. Sutcliffe, being of sound and disposing mind and memory, and not under any restraint, do hereby make and publish this my last will and testament, hereby revoking any and all previous wills by me made:
“First: I give, devise and bequeath unto my sons, Dale Dean Sutcliffe, Donald Lloyd Sutcliffe, Ronald Floyd Sutcliffe and Tebry Joe Sutcliffe, my entire estate, in equal shares.
“Second: I recommend that my beneficiaries shall convert into cash, as speedily as possible after my death, all assets which have a high rate of depreciation, but leave this to the discretion of my beneficiaries.
“Third: I nominate and appoint my sons, Dale Dean Sutcliffe and Ronald Floyd Sutcliffe, as joint executors hereof, and direct that they shall not be required to furnish bond for the execution thereof.
“Witness My Hand, at Chanute, Kansas, this 16th day of July, 1963.”
Joe and Velma Sutcliffe had four sons. Two of the sons were appointed and qualified as executors of the will. The widow filed an election to take under the laws of descent and distribution and not under her husband’s will. No further action has been taken in the probate court.
The trustees filed a petition for instructions in the district court of Neosho county, Kansas, which gives rise to the present appeal. In the petition the trustees outlined facts necessary to show the trust had been performed except for final disposition of the property. They alleged, except by the terms of the will, Joe H. Sutcliffe made no written designation as to a final transfer of the real estate remaining in the trust. They requested the court notify the parties and direct disposition of the property.
The appellant, Velma E. Sutcliffe, filed an answer admitting the allegations in the petition except she alleged the property held by the trustees belonged in the estate of her husband. She further alleged the probate court had acquired original jurisdiction over all controversies affecting disposition of this property.
Answer was filed by the four sons. They and the trustees are appellees herein. The sons admitted the allegations of the trustees’ petition except they requested the trust be continued until the probate court could determine if the property belonged in the estate of the decedent.
After a trial in the district court judgment was entered directing the trustees to convey the property remaining in the trust to the four sons. The basis for this judgment was set forth in a memorandum decision made a part of the journal entry. It recited:
“The court finds that the establishment and validity of the trust are not in issue and that the sole issue is whether the subsequent execution of a will by Joe Sutcliffe constituted an exercise of the power of appointment incorporated in the Trust Agreement.”
In this memorandum decision the court found Joe H. Sutcliffe held a power of appointment (as distinguished from a right or power to designate persons to whom the trustees must convey legal title). The court further found the making of the will was a part of the whole chain of events constituting a settlement with the wife and the husband’s dominant purpose in making the will was to exercise the power of appointment reserved in the trust. The court determined title to the property passed under the instruments creating the power of appointment and therefore the property remaining in the trust estate was not part of the estate of Joe H. Sutcliffe. The widow appeals from this judgment.
A distinction is generally made between powers of appointment and powers authorized in a trust. (See 41 Am. Jur., Powers §3; 72 C. J. S., Powers §1.)
Much confusion appears in the case law concerning construction of powers, for they are construed in separate areas of law covering real and personal property, wills, estates and trusts. In each of these various areas the subject is discussed. It is generally agreed the subject of powers has received more technical disquisition regarding construction than any single subject in the law. (See 72 C. J. S., Powers §20.)
Construction of a power is governed by principles of the common law as these principles may have been changed by statute. We find no Kansas statute relating to powers of designation. (See K. S. A. 58-2401, et seq.)
In the instant case a trust inter vivos was created. The trustees held legal title to the trust property. The trustor (settlor) could not dispose of the trust property by his own separate instrument of transfer. So long as the trustees hold legal title they must transfer the trust property. The interest retained by the trustor was not a power of appointment as generally understood. He reserved a mere right or power to designate the person, firm or corporation to whom the trustees might sell, mortgage or convey. The power of appointment (power to effect a transfer of legal title) was created in the trust instrument.
With this in mind let us consider some of the rules of construction to be applied.
In the construction of trust agreements if their text is plain and unambiguous the intention of the trustor (settlor) will be ascertained from the language used. (Bayless v. Wheeler-Kelly-Hagny Trust Co., 153 Kan. 81, 109 P. 2d 108; In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707.) Where construction is necessary the court must put itself in the situation of the trustor when he made the trust instrument and from consideration of the language used in the entire instrument determine the intention of the trustor. (Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307; In re Estate of Hauck, supra.) The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law. (Calkin v. Wallace, 160 Kan. 760, 165 P. 2d 224; In re Estate of Hauck, supra.)
The situation present when the trust instrument was made is expressed therein. The family was split by discord and a separation of husband and wife had occurred. The general purpose was to carry out the terms of a property settlement agreement. When the money was raised and paid the balance of the property was to belong to the trustor, Joe H. Sutcliffe. It was to be conveyed by the trustees to the person, firm or corporation designated by him. This would include himself. The trust instrument does not turn over possession and management of the real estate to the trustees. Their duties related only to raising $73,000 and completing the terms of the property settlement agreement. When the money was raised the trustees could have completed the final transfer required. The $73,000 was raised a year and nine months before the trustor died. The final transfer could have been completed well within that period of time.
Was it the intention of the trustor on the date of the trust agreement to exercise this right to designate in his will? This court holds that it was not and we will set forth our reasons.
The trust instrument did not specify that the designation was to be made by will. No specific manner of designation was'outlined. The record does not indicate how the designation was made to enable the trustees to sell or mortgage property to raise the $73,000 but this was not by will. The rights of designation relating to both the sale of property and to the final disposition of the corpus are identical in wording. The trust was for a living purpose as dis tinguished from a testamentary purpose. The will of Joe H. Sutcliffe did not refer to trust property and the four sons were not specifically designated as parties to receive the corpus of the trust. The will merely disposed of the decedent’s estate in one general item covering the entire estate.
It is also noted the trust imposed no duties upon the trustees as to management and control of the property beyond December 1, 1964, when final payment was made on the new home, except to require final transfer of legal title. The intention of the trustor at the time of execution of the trust is controlling and not his intention at a later time when he makes a will. If it was his intention to permit naked legal title to remain in the trustees for the purpose of transferring title on his death, the trustees were to be mere agents of the trustor after December 1, 1964. In such case the trust would become passive and would result to the beneficiary.
In Bogert — The Law of Trusts and Trustees §206 it is said:
“Often a trust is active at its beginning but becomes passive at a later date, as where a trust is solely to protect a married woman from a named husband, and the husband dies, the remainder is to be held in trust for the former income beneficiary but no affirmative duties are prescribed with regard to the remainder interest. In such cases the shift in the character of the trust causes it to become executed by the statute at the time of the death of the husband.” [p. 385.]
In The American Law Institute, Restatement of the Law of Trusts, ch. 2, §57, the rule is stated as follows:
(2) “Where the settlor transfers property in trust and reserves not only a beneficial life estate and a power to revoke and modify the trust but also such power to control the trustee as to the details of the administration of the trust that the trustee is the agent of the settlor, the disposition so far as it is intended to take effect after his death is testamentary and is invalid unless the requirements of the statutes relating to the validity of wills are complied with.” (See also 54 Am. Jur., Trusts § 85.)
K. S. A. 58-2413 provides:
“A conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be deemed a direct conveyance or devise to the beneficiary.”
This statute, although not controlling under the facts of the present case does indicate acceptance by this state of the common law rule as it applies to passive trusts. In case of a trust which becomes passive legal and equitable title passes to the beneficiary. The subject is relevant only to indicate the intention of the trustor.
For these reasons it appears the trustor did not intend the right to be exercised in his will. A power to sell or convey property can be exercised only in the manner and subject to the express conditions specified in the instrument conferring the power. (See K. S. A. 58-2405.)
In Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294, 12 S. E. 2d 53, the court construed a trust deed which authorized trustees to convey the land to such persons as the beneficiaries severally might direct. That court stated: [p. 306]
“. . . A power of appointment (power of trustee to transfer title) can be exercised only in the manner specified by tire donor. [Citations omitted.] The deed of trust did not authorize Mrs. Chivers to dispose of this property directly either by will or by any ‘instrument in the nature of’ a will, — whatever the latter phrase may mean. It merely provided that she could give direction to the trustees by either method, and that they should then convey the land as thus directed. Neither of these things was done.”
The court then held the deed from the beneficiary did not convey title to the trust property. (See also Cameron v. Hicks, 141 N. C. 21, 53 S. E. 728.)
An even more compelling reason appears why this power of designation could not be exercised in the trustor’s will. A power of designation is such a special and personal right it terminates generally on the donee’s death. If not exercised during the lifetime of the holder it terminates unless the instrument creating the power of designation specifically provides for its exercise by the will of the holder. This rule was declared in Whisman v. McMullans Executor, 312 Ky. 402, 227 S. W. 2d 926, where that court said:
“At common law the rule was that where a power of sale is to be executed with Üie consent of third persons, it is nullified or extinguished if any person whose consent is required dies prior to its exercise. See Tiffany, Real Property, (3rd Ed.) Volume 3, Section 707; Barber v. Cary, 11 N. Y. 397; and note in 120 A. L. R. 1407. It is true that the language of the will may require a different interpretation. See Wisker v. Rische, 167 Mo. 522, 67 S. W. 218.” [p. 404.]
(See also C. J. S., Powers §41; 21 R. C. L., Powers §11, p. 783.)
Joe H. Sutcliffe reserved a right of designation which was not exercised before his death. The instrument creating the power of designation did not provide for its exercise by the will of the trustor. The trustor intended to exercise such right or power during his lifetime. The trustees held a power to convey limited by the power of designation retained by the trustor. On the death of Joe H. Sutcliffe the right of designation ceased and with its termination the power to convey could not be exercised. The trust then resulted to Joe H. Sutcliffe, who was both trustor and beneficiary. Legal and equitable title to all of the property held in trust passed to the heirs, devisees and legatees of Joe H. Sutcliffe, deceased. The determination of those parties and interests is within the exclusive jurisdiction of the probate court of Neosho county, Kansas.
Under the provisions of K. S. A. 59-301 and the cases construing this statute the probate court holds exclusive jurisdiction of all matters incident and ancillary to the settlement and distribution of the decedents estate. (Foss v. Wiles, 155 Kan. 262, 124 P. 2d 438; Wright v. Rogers, 167 Kan. 297, 205 P. 2d 1010; In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818; Shields v. Fink, Executrix, 190 Kan. 17, 372 P. 24 252.)
A postnuptial agreement may cut off or enlarge the rights of those entitled to participate in an estate as heirs or devisees. The determination of such rights, however, remains a matter for probate jurisdiction. (In re Estate of Welch, 167 Kan. 97, 204 P. 2d 714; McCormick v. Maddy, 186 Kan. 154, 348 P. 2d 1007; In re Estate of Sterba, 193 Kan. 56, 392 P. 2d 136.)
The trustees and their attorneys have rendered valuable services in protecting the property which is now determined to belong in the estate of Joe H. Sutcliffe. Claim for allowance of fees and expenses is a matter within the jurisdiction of the probate court. The non-claim statute is a statute of limitation (In re Estate of Wood, 198 Kan. 313, 424 P. 2d 528) and may be tolled when a party is effectively precluded from pursuing a remedy until the outcome of pending proceedings. (See Price, Administrator, v. Holmes, 198 Kan. 100, 422 P. 2d 976.)
The remaining errors specified need no further discussion.
Judgment is reversed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a garnishment proceeding against the liability insurer of two automobile drivers against whom a judgment in a wrongful death action had been obtained.
The fatal incident occurred near Meade, Kansas, September 29, 1963. The automobiles were driven by Donald G. Conway and Henry E. Fisher, two of the appellees herein. Gary Bogle was a passenger in Conway’s vehicle, and was killed as a result of the two automobiles colliding. Details of the incident are reported at Bogle v. Conway, 198 Kan. 166, 422 P. 2d 971.
The appellant, Farm Bureau Mutual Insurance Company, carried liability insurance on both the Conway and Fisher vehicles. The day following the collision a claims adjuster, on behalf of appellant, talked to both Conway and Fisher and their fathers about the possibility of a policy violation based on a racing exclusion in the policy. At that time the adjuster secured the signature of Conway to the following instrument, and also Fisher’s signature to a similar one:
“Notice and Acknowledgment of Non-Waiver of Rights
“It is hereby understood and acknowledged by and between tire Farm Bureau Mutual Insurance Co., Inc., of Manhattan, Kansas and Gene Conway and Phill Conway that any action taken by the said Insurance Company in investigating and/or attempting to adjust, and/or defending any claim, and/or handling any litigation growing out of an accident involving: Gene Conway and H. Eugene Fisher which occurred on or about September 29, 1963 at 5 miles North of Meade, Kansas on Highway 23 shall not be construed as a waiver of the right of the said Insurance Company to deny liability at any time under any policy or policies of insurance issued to Gene and/or Phill Conway. Nor shall the acknowledgment of this notice be considered a waiver of the rights, under said policy or policies, of tire said Gene Conway and Phill Conway. Dated at Meade District Hospital this 30th day of September, 1963.
“Farm Bureau Mutual Insurance
Company, Inc.
“Witnessed:
“_ By_(seal) ■
“_ Acknowledged by
“/s/ Gene Conway (seal)
/s/ Phill Conway (seal)”
Thereafter appellees Ruth Bogle and Rex Bogle, parents of Gary Bogle, filed a wrongful death action against Conway and Fisher, which action was defended throughout by attorneys retained by appellant. A jury was waived and the action eventually proceeded to trial by the court June 14,1965, as a result of which judgment was rendered against Conway and Fisher for $25,493.99. Post-trial motions were denied and on December 15, 1965, a notice of appeal to this court by Conway and Fisher was served. No supersedeas bond in connection with the appeal was furnished. The judgment not having been paid, on February 8,1966, an order of garnishment was issued and served upon appellant as garnishee.
Appellant filed its answer in the garnishment proceeding. It admitted that its policies to Conway and Fisher were in effect at the time of the collision and it further alleged:
“2. That upon receipt of notice that an accident had occurred and initially determining the possibility that coverage of said policies of insurance did not apply as hereinafter disclosed, The Farm Bureau Mutual Insurance Company immediately entered into a reservation of rights and non-waiver agreement with the defendants, and each of them. That a copy of said Notice and Acknowledgment of Non-Waiver of Rights is attached hereto, marked Exhibit ‘A’ and made a part hereof by reference.
“3. That the said reservation of rights and non-waiver agreement with the defendants, and each of them, was based upon Exclusion (K) of said policies of insurance, namely, No. 282467 and No. 258182, which provides as follows:
“‘This policy does not apply . . . (K) under any of the coverages, while the automobile is operated by any person in any pre-arranged race or competitive speed test.’
“4. That thereafter, in the District Court of Meade County, Kansas, Case No. 6028, Ruth Bogle and Rex Bogle, plaintiffs, filed suit as surviving parents and next of kin of Gary Bogle, deceased, against Donald G. Conway and Henry E. Fisher, alleging that plaintiffs’ decedent was injured in an accident while a passenger in an automobile operated by Conway and that such accident was caused by the gross and wanton negligence of the defendants Conway and Fisher who were driving and racing side by side on a two lane highway at a speed in excess of-90 miles per hour. That garnishee defended said action under its reservation of rights previously entered, that in effect a determination was made the accident arose from a pre-arranged race and speed test, and judgment was entered in the District Court of Meade County, Kansas, in said action on the 14th day of June, 1965.”
Appellant’s exhibit A was the September 30, 1963, instrument hereinbefore set forth.
Appellant then alleged by reason of clause K it was not obligated under its policies and it denied all liability, and demanded a jury trial.
Appellees Ruth and Rex Bogle and appellees Conway and Fisher filed responsive pleadings taking issue with the garnishee’s answer upon various grounds. Conway and Fisher admitted the execution of the instrument entitled “Notice and Acknowledgment of Non-Waiver of Rights,” but attacked its binding effect for several reasons. Additionally they alleged that on January 7, 1966, appellant mailed to each of them a letter entitled “Disclaimed Notification.” The one written to Conway is appended to this opinion; that written to Fisher was identical except as to name of the policyholder and policy number.
Appellant took depositions, including those of Conway, the fathers of both Conway and Fisher, the highway patrolman who investigated the collision, and appellant’s claims adjuster. Answers to requests for admissions of fact by both sides were on file in the case. Additionally the parties stipulated that the testimony of Conway and Fisher in the wrongful death action could be considered as evidence in the garnishment proceeding.
All appellees filed their motions for summary judgment against appellant, and, based on the foregoing state of the record, the trial court on June 24, 1966, sustained the motions and entered judgment for appellees Ruth and Rex Bogle and against appellant for the amount of the Bogles’ judgment against Conway and Fisher. This appeal is from that ruling and judgment.
The judgment in the wrongful death action was reviewed in this court and on January 21, 1967, was affirmed (Bogle v. Conway, supra.
The principal question upon this appeal is the construction and effect to be given the instrument entitled “Notice and Acknowledgment of Non-Waiver of Rights” based upon the exclusionary clause K in the insurance policy, this being the defense relied upon by appellant in its answer in garnishment. Appellant urges the instrument is valid and enforceable and bars recovery under the policy. Appellees Ruth and Rex Bogle contend it is of no effect, relying on two of our decisions. Appellant counters that the two decisions are distinguishable from the case at bar and suggests reexamination.
The first of the decisions is Snedker v. Derby Oil Co., Inc., 164 Kan. 640, 192 P. 2d 135. That action was one in garnishment against an insurance carrier following a money judgment for damages. This court first stated:
“Where an insurance carrier which has issued an accident liability policy on a motor vehicle, undertakes to represent and defend the insured and the driver of the vehicle in an action to recover damages growing out of an accident in which the vehicle was involved, it cannot thereafter in an action to establish liability on the policy, arising out of the accident, defend on the ground of non-coverage under the policy, unless at the trial in the damage action it had disclaimed liability and given notice of reservation of right to do so. . . ,” (Syl. |2.)
and further stated:
“It will be noted that under the general rule a liability insurer which assumes the defense of an action against the insured may save itself from the bar of waiver or estoppel in a subsequent action upon the policy if, in the action against the insured, it clearly disclaims liability under the policy, and gives notice of its reservation of a right to set up the defense of noncoverage.” (p. 644.)
In the above case neither a disclaimer nor a reservation of rights by way of notice or contract was involved and no distinction between the two was made.
The second decision relied upon by appellee is Henry v. Johnson, 191 Kan. 369, 381 P. 2d 538, decided May 11, 1963. This, too, was a garnishment proceeding against a liability insurer based on a judgment against its insured arising out of an automobile collision. There a default judgment was rendered against the insured, who had not notified his insurance carrier of the pendency of the suit prior to the entry of the default judgment, contending he had not received a summons and did not know of the action himself. Later, after the insured had learned of the judgment and had notified his insurance carrier, the carrier wrote the insured the following letter under date of November 3, 1958:
“Dear Mr. Johnson:
“With respect to the automobile accident occurring on December 16, 1957, at Pawnee and Ridgewood Streets in which you were involved, you are hereby notified that the Allstate Insurance Company in investigating the said accident or any claim arising therefrom, or in negotiating for compromise settlement, or in making any settlement or in defending any suit against you or others, or in undertaking to set aside the judgment entered against you on October 30, 1958, in the District Court of Sedgwick County, Kansas, Case No. A-73383, and to take whatever further action shall be deemed advisable, or in any other way acting or failing to act, does not waive any of its rights or admit any obligations under the policy.
“We are making this reservation of rights because of your failure to comply with the policy conditions entitled ‘2, Notice of Claim or Suit’ and ‘8, Assistance and Cooperation of the Insured’ and for other reasons.
“The service of this notice upon you does not deprive you of any rights you may have against this oompany.” (p. 370.)
The insurance carrier, representing its insured, then sought to have the default judgment set aside, but was unsuccessful, and the garnishment ensued. The garnishee carrier defended upon the basis of the letter quoted above. In holding against the garnishee this court stated:
“This brings us to the garnishee’s notice of nonwaiver and reservation of rights of November 3, 1958, and whether it was sufficient to save the garnishee from the bar of waiver or estoppel and permit it to plead its policy defenses of noncoverage in the garnishment proceeding. It is a well-established rule that where an insurance company under a liability policy takes charge of the only defense which may then be imposed to an action on which liability rests (here, a motion to set aside a default judgment and answer on the merits), it will be estopped from thereafter questioning the claim because it was beyond the terms of the policy or because of a breach of a noncoverage clause, unless it gives notice of its right to set up the defense of noncoverage under an adequate and proper nonwaiver and reservation of rights notice to the insured, (Brandon v. St. Paul Mercury Indemnity Co., 132 Kan. 68, 71, 294 Pac. 881, 83 A. L. R. 673; Snedker v. Derby Oil Co., Inc., 164 Kan. 640, 192 P. 2d 135; Anno: 81 A. L. R. 1326 and 38 A. L. R. 2d 1161.)
“This court has recognized that an insurer may enter into a nonwaiver and reservation of rights arrangement with its insured and has enforced such agreements. (Iowa Hardware Mutual Ins. Co. v. Burgen, 178 Kan. 557, 290 P. 2d 1034.) The rule with respect to the sufficiency of such an arrangement was stated in Snedker v. Derby Oil Co., Inc., supra, as follows:
“ ‘It . . . (is) . . . the general rule a liability insurer which assumes the defense of an action against the insured may save itself from the bar of waiver or estoppel in a subsequent action upon the policy if, in the action against the insured, it clearly disclaims liability under the policy, and gives notice of its reservation of a right to set up the defense of noncoverage. . . .’ (l. c. 644.) (Emphasis supplied.)
“That rule is to be applied in accordance with general and well-established rules with respect to the construction of insurance policies and related papers pertaining to liability which may arise thereunder. One basic rule is that, since the company prepares the policy and its representatives, as here, prepare the related papers, thereby selecting the language employed, such policy and papers are to be construed strongly against the insurance company and in favor of the insured; that it is their duty to make the meaning clear, and if they fail to do so, the insurer and not the insured must suffer. Stated another way, if the insurer desires to limit its liability, it should so state in clear and concise language in the policy or in the related papers involved. (Jameson v. Farmers Mutual Automobile Ins. Co., supra, and cases cited.) Appleman, in his Insurance Law and Practice, Vol. 16, §9377, p. 976, states tire rule with respect to a notice of nonwaiver and reservation of rights arrangement with the insured as follows:
“ ‘Such agreements are construed strictly against the insurer and liberally in favor of the insured, and will not be extended beyond the exact terms of the agreement.’ ” (pp. 375-377.)
This court considered the letter of reservation vague and ambiguous and insufficient within the meaning of the language used in Snedker. The court further pointed out that the insurer, prior to the filing of the suit, had had notice of its insured being in the collision and had investigated the collision, and both before and after the execution of the reservation of rights letter, had actively-participated in the defense of other legal proceedings arising from the collision.
Appellant contends a different test should be applied to contractual nonwaiver and reservation of rights agreements from that applicable to unilateral notices of reservation of rights. We see no reason for making any distinction. In any event, the position of the insurance carrier in not wishing to waive nor be estopped to set up its rights by defending the action against the insured, to be effective, must be made clear to the insured so that he may make an intelligent decision whether to consent to the assumption of his defense and the control of his lawsuit by the carrier, or to take another course. It matters little, in our opinion, whether the insurer states that position in a unilateral notice to its insured or in a bilateral agreement with the insured. The relationship between the insured and his insurer remains contractual in nature. If unilateral notice is employed and the insured makes no objection to his further defense of the action by his insurer, his consent may be inferred from such acquiescence (See 7A Appleman, Insurance Law and Practice [1962], §4694). In either case, the insured must be fairly and timely-informed of the'insurer’s position. That information should include the basis for the position taken by the insurer. Only then is the insured in a position to make his choice as to the course to pursue in protecting himself. The insured may or may not wish to permit the insurer to carry on his defense under its contract obligation to do so. We think that is the import underlying Henry v. Johnson. (See annotation and cases cited at 38 A. L. R. 2d 1148 and A. L. R. 2d Later Case Service; also 7A Appleman, Insurance Law and Practice [1962], §4694.)
We trun now to the September 30, 1963, instrument upon which appellant relies. It is more vaguely and ambiguously drafted than that held insufficient in Henry. It makes no mention of any exclusionary clause in the policy or of any purported factual basis, upon which a denial of coverage might be predicated; it does not tell what right of the insurer to deny liability was contemplated, nor why; it contains no reason or basis for the statements which are made, and finally, concededly, no disclaimer of liability is stated.
That a better notice could have been drafted is apparent when we examine the formal disclaimer notification dated January 7, 1966. Had such a notice been timely given so as to be effective if otherwise sufficient we might have a different question before us.
Appellant argues it should not be necessary for an insurer to detail fully in a reservation instrument all of its rights inasmuch as all the parties want to do is maintain the status quo. Much more is involved: the parties are hardly upon equal footing absent information to the insured as to what that status quo is and means. It has been said that good faith, the essence of insurance contracts, “de mands that the insurer deal with laymen as laymen and not as experts in the subtleties of law and underwriting,” (Merchants Ind. Corp. v. Eggleston, 37 N. J. 114, 122, 179 A. 2d 505), and we have adhered to that philosophy in construing policies and related papers prepared by insurance carriers (Henry v. Johnson, supra).
Appellant urges it should be permitted to operate (defend the action) under the Non-Waiver of Rights Agreement to wait and see if it is liable under the policy. It points out that in many cases the insurer may not know until final conclusion of the litigation whether it is liable or not. We have no quarrel with this theory provided the insured is adequately and timely informed of the insurers position.
This case illustrates why that position must be made clear, bearing in mind the duty of the insurer to fulfill its policy-contracted obligation of defense with the utmost loyalty to its insured. To start with, by coincidence, here one carrier has the insurance on both vehicles whose drivers are charged with separate acts of negligence and who have a different status with respect to the person killed in the collision. Reyond this, such a case presents the possibility of a conflict of interest between the rights of the insurer and its insured. Conceivably the drivers could be held liable for damages while engaging in a race, the establishment of which race would be a policy defense to the insurer. In other words, a policy defense could be developed at the expense of the insured. We would want it understood we malee no intimation that such was attempted in the principal action or that a good faith defense was not afforded the insured. We merely point up the importance of the requirement of adequate, timely information of the insurer’s position so as to avoid any possibility of conflicting interests.
Appellant further contends the doctrine of estoppel to assert a policy defense should not be applied because there is no showing of prejudice resulting to either Conway or Fisher from its handling of their defense. In Henry v. Johnson, supra, prejudice was assumed without discussion of the subject. We approve this as the better rule because, as said in Merchants Ind. Corp. v. Eggleston, supra, .since the course cannot be rerun, it would be futile to attempt to prove or disprove that the insured would have fared better on Tais own.
We hold then that the September 30, 1963, instrument did not ■fairly inform Conway and Fisher as to appellant’s position and hence was ineffective to reserve to appellant the right to disclaim liability under its policies and save it from the bar of waiver or estoppel in the garnishment proceeding. Therefore, the trial court correctly rendered'summary judgment against appellant.
In arriving at this conclusion we have not overlooked appellant’s contention that such rendition was improper because there remained genuine issues of material fact. In our view, under the issues formed by the pleadings, once the nonwaiver instrument is held to be ineffective, the proceeding is determined.
The judgment of the trial court is affirmed.
APPROVED BY THE COURT.
Appendix
“Disclaimer Notification
“This is to advise you that the Farm Bureau Mutual Insurance Company, Inc., of Manhattan, Kansas, which has heretofore issued a policy of Insurance No. 282467 to Gene and or Phill Conway hereby notifies you that by reason of its Non-Waiver of Rights Agreement, earlier executed by you, the said Company disclaims liability under the numbered policy of insurance with respect to an accident which occurred on September 29, 1963, near Meade, Kansas.
“You are further notified that the denial of liability coverage to Donald G. Conway and any others claiming by or through Donald G. Conway is based upon exclusion (K) of said policy which provides as follows:
“This policy does not apply . . . (K) under any of the coverages, while the automobile is operated by any person in any pre-arranged race or competitive speed test.
“The Farm Bureau Mutual Insurance Company, Inc., will, by virtue of its previous agreement to do so, provide a further defense for you to the extent of attempting to perfect an appeal from the judgment of the District Court of Meade County, Kansas, Case No. 6028. In so doing, however, the company specifically declines to furnish in your behalf a Surety for a supersedeas bond, and shall not be liable for the judgment, should said appeal fail for any reason.
“You are further advised, you may, at your own expense, secure such supersedeas bond in your own behalf. Thus you are notified that the Farm Bureau Mutual Insurance Company, Inc., has by this instrument, and earlier instruments, agreed to provide you a defense in matters arising from the dated accident, but by reason of the policy Exclusion as set out earlier disclaims liability under the policy and will not be liable for any judgment and further reserves its right to assert defenses of non-coverage.
“Dated this 7th day of January, 1966.
“Farm Bureau Mutual Insurance Co., Inc.
“/s/ C. O'. Jacobson
“By C. O. Jacobson
“Claims Attorney” | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Leo Arthur Pittman, was convicted of three crimes: first degree kidnapping, statutory rape and sodomy. He was sentenced to life imprisonment on the kidnapping charge and to lesser terms on the other two. This appeal is from those sentences.
Two points, only, are raised on appeal:
1. That the defendant was denied the benefits of a preliminary hearing by reason of the examining magistrate’s failure to appoint a sanity commission prior to the preliminary hearing to ascertain whether the defendant was sane and able to understand his position and aid in his defense.
2. That error was committed by the trial court in admitting evidence of the defendant’s oral confession.
In view of the limited issues raised on this appeal, it will be unnecessary to relate the sordid details of the three crimes charged against the defendant.
With regard to the first of the two points in issue, the defendant points out, and the record shows, that the attorney originally appointed to represent the defendant raised the question of his client’s competency and his ability to understand his position and cooperate in his own defense, by means of a written motion filed in magistrate court prior to the preliminary examination. After lengthy colloquy and argument by counsel on both sides the magistrate reserved ruling until after the preliminary hearing was completed at which time, having heard all the testimony, he overruled the defendant’s motion and bound the defendant over to the district court for trial.
It is the defendant’s present contention that he was not sane or mentally competent, at the time his preliminary hearing was held, and he calls attention to the fact that some fifty days thereafter the district court appointed a sanity commission to aid that court in determining whether the defendant comprehended his position and was able to make his defense. Following the commission’s report the district court found the defendant to be insane and unable to comprehend his position and assist in his own defense and, accordingly, committed the defendant to the Larned State Hospital. Following his commitment to that institution, the defendant escaped therefrom, in April, 1963, and was later committed to a mental institution in the state of Michigan, before being returned to Kansas to face the charges pending against him in Sedgwick County.
In view of all this, the defendant argues that he actually had no preliminary examination; that being insane at the time (which is his own assumption), he was not mentally present at the hearing; that the preliminary hearing was thus conducted in his absence, as though he were not personally present at all; and that being mentally absent from the preliminary examination was equivalent to being physically absent therefrom. Several Kansas cases are cited by the defendant as being pertinent to the issue he attempts to raise, including In re Wright, 74 Kan. 406, 86 Pac. 460, and State v. Detar, 125 Kan. 218, 263 Pac. 1071.
This is an interesting argument which might provide a fertile field for discussion were it not for the fact we think the point has been waived by the defendant and is not properly before us for review. We will state our reasons.
When the defendant was returned to Kansas, the Sedgwick County District Court appointed an attorney to represent him and also appointed another sanity commission to determine the present sanity of the defendant and his ability to comprehend his position and conduct his defense. When this commission reported its findings, the trial court accepted them and found that the defendant was sane and able to comprehend his position and aid in his defense.
Trial commenced on January 4,1966, on which date the defendant was arraigned and stood mute, whereupon the court entered a plea of “not guilty.” The jury was sworn the next day, January 5, 1966. The following day, January 6, 1966, defense counsel orally moved that the defendant be discharged for the reason that he had been denied a preliminary hearing.
We believe the motion for discharge came too late. Whatever objections the defendant wished to voice against the preliminary examination, or lack of it, should have been presented by means of a plea in abatement prior to his arraignment, not after he had been arraigned and the jury had been empanelled and sworn.
This court recently considered the identical question in some depth in State v. McCarther, 196 Kan. 665, 414 P. 2d 59, where many of our own cases are cited, both ancient and modern. We shall not attempt an analysis of the McCarther decision other than to quote two of its passages which we feel are especially apt:
“It is a well-established rule of criminal procedure in this state that where there has in fact been no preliminary examination afforded the defendant, he is required to raise the question of the lack of such an examination prior to arraignment by filing a plea in abatement . . .
“Another rule ingrained in the criminal procedure of this state is that where a defendant files no plea in abatement that he had no preliminary examination on one or more charges contained in the information, and thereafter is arraigned, pleads not guilty, and goes to trial on the information, the subject of preliminary examination is no longer material (State v. Bowman, 80 Kan. 473, 103 Pac. 84; State v. Perry, supra; State v. Saindon, supra; State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74), and a defendant cannot raise objection to the lack of or the sufficiency of a preliminary examination after trial and conviction (State v. Perry, supra; Jennings v. State, supra; State v. Bowman, supra; State v. Wisdom, supra), and objection by the defendant on appeal that he had no preliminary examination comes too late. (State v. Bailey, 32 Kan. 83, 3 Pac. 769.) See, also, State v. Osburn, 171 Kan. 330, 335, 232 P. 2d 451, and Portis v. State, 195 Kan. 313, 317, 403 P. 2d 959.” (p. 671.)
Our most recent pronouncement on the subject appears in Palmer v. State, 199 Kan. 73, 427 P. 2d 492, where we said:
“When a defendant pleads guilty or goes to trial and is convicted of a charge he waives any claim of irregularity in the preliminary hearing by failing to object prior to plea or trial. (Williams v. State, 197 Kan. 708, 710, 421 P. 2d 194; State v. McCarther, 196 Kan. 665, 671, 414 P. 2d 59; Smith v. State, 196 Kan. 438, 411 P. 2d 663.)” (p. 75.)
We have often said that the preliminary hearing held pursuant to our statutes is not a trial in the usual or ordinary sense. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652.) Neither is it a trial in the sense that one may be found guilty thereat. (Smith v. State, 196 Kan. 438, 411 P. 2d 663.) The preliminary examination under our procedure does not, of itself, constitute a critical phase of pending criminal proceedings; its sole purpose is to determine whether a crime has been committed, and if so, whether there is probable cause to charge the defendant with its commission. (Williams v. State, supra.)
There is nothing in the circumstances shown in the present record to suggest that any prejudice has resulted to the defendant from anything which occurred at the preliminary hearing. No plea was entered, no right to any defense was waived or lost, no testimony introduced at the hearing was later used at the trial. Under circumstances disclosed by this record a defendant may not wait until after he has been arraigned to attack the validity of the preliminary examination. The defendant’s failure to act in this case, until after he was arraigned and the jury had been sworn, constitutes a waiver of his right to object to the regularity of the preliminary hearing.
For his second point the defendant maintains that his confession was inadmissible as having been made involuntarily. Objection on this ground was interposed by defendant during the trial, at which juncture the court conducted a preliminary inquiry outside the presence of the jury, in full compliance with the procedure outlined in State v. Seward, 163 Kan. 136, 181 P. 2d 478 and the requirements of our present statute, K. S. A. 60-408. See, also, State v. Milow, 199 Kan. 576, 433 P. 2d 538, in which Justice Schroeder discusses the rules governing the admissibility of confessions and the procedure to be followed at the trial. No attempt will be made by the writer of this opinion to duplicate what is expressed so aptly in the Milow decision.
Several contentions have been asserted to support the defendant’s argument that his confession, which was given orally, was not the product of his voluntary will: 1. That he was not advised of his constitutional rights. 2. That his statement, for the most part, was obtained after he had requested counsel. 3. That his statement was made after protracted questioning extending over a period of forty-eight hours. 4. That he was induced to confess by means of threats and promises.
All these contentions were advanced at the preliminary inquiry and were considered by the trial court after an extended hearing at which several witnesses testified, including the defendant, himself. When the out of court hearing had ended, the trial court concluded, as a preliminaxy matter, that the defendant’s oral confession was voluntary and, consequently, was admissible. It appears from the record that the court properly instructed the jury in respect to' its consideration of the confession.
There was substantial evidence that the defendant was advised of his constitutional rights. Several officers testified that he was told of his right to remain silent, that anything he might say could be used against him and that he had the right to counsel. The defendant himself admitted at the hearing before the court that he knew what his rights were and had been advised concerning them at the police station. While it does not appear of record that the defendant was told he would be furnished counsel, if he could not provide his own, the Miranda decision had not been spawned at that time and its guidelines are not applicable to this case under the authority of Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, reh. den., 385 U. S. 890, 17 L. Ed 2d 121, 87 S. Ct. 12.
The time elapsing between the defendant’s arrest and his oral confession was less than four hours and thirty minutes. Questioning was not continuous during that time; it appeal's to have been interrupted several times. The case of McNabb v. United States, 318 U. S. 332, 87 L. Ed. 819, 63 S. Ct. 608 is cited by the defendant among others. This court in State v. Stubbs, 195 Kan. 396, 407 P. 2d 215, discussed that case and held the McNabb rule, which was followed in Mallory v. United States, 354 U. S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 does not apply to criminal proceedings in a state court. It is true that officers continued to talk with defendant after his oral confession, and that the following day the defendant accompanied officers to the place óf the crimes. We believe, however, there was nothing in this lapse of time, or in what occurred during that time, which can be deemed to brand the confession as involuntary.
Complaint is made that the defendant was denied a lawyer. The facts which give rise to this contention are these: After he had orally admitted the crimes, the defendant was asked by Sgt. Nunemaker, a member of the Wichita police force, if he would give a taped statement. The defendant, in turn, asked Nunemaker if he should do so, to which the sergeant replied: ‘Well, I cant tell you that. That’s something you’re going to have to decide.” After thinking about it the defendant said he wanted to talk to an attorney before he gave any taped statements. The defendant repeated this answer a short time later when he was again asked about giving a taped statement, and apparently no such statement was ever given.
So far as we can find from the record, these were the only two times the defendant referred to a lawyer while being questioned. We find nothing in the record to suggest that the defendant requested a lawyer prior to the time he made his oral confession, or that he was denied the services of a lawyer at any time while he was being held in custody. The defendant’s testimony at the preliminary hearing on the question of voluntariness is set forth in considerable detail in the abstract and counter abstract, and we discern nothing in his testimony to indicate either that he asked for or was denied a lawyer. The facts do not bring this case within the orbit of Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758.
The evidence relating to the defendant’s claim that his confession was induced by threats was sharply conflicting. The defendant testified that threats were made to have his baby taken away from his wife in the event he not confess. The officers so accused denied the accusations. The district court resolved this conflict against the defendant, as it was privileged to do.
There is evidence that the chief of police told the defendant during questioning that if he was holding back through fear of what would happen to his family, he (the chief) would see that the proper authorities were contacted and the family would be cared for. This is not the sort of promise, either in phraseology or content, which would overcome a defendant’s free and unfettered will. While on the stand the defendant testified that neither the chief nor Sgt. Nunemaker made any promises to get him to say anything.
Before closing the book on this opinion, we deem it pertinent to comment briefly on the subject of preparing a record on appeal. We have, of late, discerned a growing and disturbing disposition on the part o£ some appellate counsel to present large portions of the testimony given by witnesses, not in narrative form, but verbatim, in question and answer form. Rule No. 6 (c) (194 Kan. xn) provides, in pertinent part:
“Testimony of witnesses designated for inclusion should be in narrative form except that testimony must be included with verbal accuracy whenever the decision of any question in controversy may be affected thereby.”
Although Rule No. 6 (c) is contained among our rules relating to civil appellate practice, the principle enunciated is equally valid where' an appeal is taken in a criminal case.
In the instant case the appellant’s abstract alone consists of some one hundred and sixty pages of verbatim copies of pages from the court reporter’s transcript, while the appellee’s counter abstract contains seventy-seven additional pages in question and answer form. A careful study of both abstract and counter abstract convinces us that much of the testimony need not have been included with verbal accuracy but could have been summarized in narrative form.
The preparation of voluminous records is of great expense to litigants, while the mere reading of the same places a burden on members of this court. The burden is increased when, as so frequently happens, several such tomes are presented during the same session of court.
We call this to the attention of members of our bar, not in a spirit of acrimony, but simply to enlist their cooperation in adhering to our rules which have been formulated in a sincere effort to improve appellate practice and procedure.
We find no error in the judgment of the court below and the same is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the district court of Jackson County, Kansas, denying a motion to vacate under K. S. A. 60-1507 on the ground that it was a second and successive motion for similar relief on behalf of the same prisoner.
The basic question presented is whether the ends of justice would be served by reaching the merits of the petitioner’s subsequent application for relief.
The facts giving rise to this proceeding stem from two separate felony convictions.
On the 24th day of September, 1959, an information was filed against the petitioner charging him with armed robbery under the provisions of K. S. A. 21-527. The case was filed in the district court of Jackson County, Kansas, and given Case No. 1627.
While the armed robbery charge was pending the petitioner escaped custody on or about the 6th day of December, 1959. He was apprehended shortly thereafter, and on the 12th day of January, 1960, an information was filed in the district court of Jackson County, Kansas, charging him with the escape from custody before conviction of a felony under the provisions of K. S. A. 21-736. This case was assigned No. 1631.
On the 18th day of January, 1960, Case No. 1631 (jailbreak) came on for hearing, and an attorney was appointed to represent the petitioner. After two recesses, during one of which the petitioner’s sanity was determined, the petitioner, through counsel, stated that he desired to waive formal arraignment and enter a plea of guilty to the crime of breaking custody and escaping jail in violation of 21-736, supra. The petitioner was thereupon found guilty upon his plea and sentenced under the habitual criminal act (K. S. A. 21-107a) to a term of not less than fifteen years at hard labor in the Kansas State Penitentiary at Lansing, Kansas. The two prior convictions asserted were (1) automobile theft, circuit court of Rarry County, Missouri, on November 10, 1941; and (2) forgery, district court of Grant County, Kansas, on October 27, 1949.
Nothing further was said about the armed robbery charge (No. 1627) and the petitioner was taken to Lansing, Kansas, to begin his term on the jailbreak sentence.
On April 11, 1961, after three terms of court in Jackson County had passed, a detainer was filed against the petitioner at the penitentiary informing him that the detainer related to the charge of armed robbery in Jackson County, Kansas.
On the 27th day of October, 1961, during the October term of the Jackson County district court the petitioner stood trial and was found guilty of armed robbery as charged. His subsequent motion for a new trial was denied and the petitioner was sentenced to a term of twenty to forty-two years at hard labor, no statement being made by the court as to whether the sentence should run consecutively or concurrently with the jailbreak sentence. The foregoing sentence was invoked pursuant to the habitual criminal act on the request of the county attorney that the penalty be doubled due to the conviction in Case No. 1631 on the jailbreak charge.
On the 8th day of November, 1961, the district judge appointed Edward S. Dunn and Donald G. Sands, attorneys, to represent the petitioner “in cases now appealed, or to be appealed to the Supreme Court of the State of Kansas from judgments of this court.”
On the 17th day of July, 1964, the petitioner’s first motion to vacate the judgment and sentence was filed pursuant to K. S. A. 60-1507.
On the 22nd day of July, 1964, Marlin White, an attorney, was appointed to represent the petitioner on his motion to vacate.
On the 2nd day of September, 1964, Mr. Dunn, having been appointed to the office of county attorney, withdrew from the case, and Richard H. Seaton, assistant attorney general, appeared for the state. At this hearing the district judge found “that an appeal by the petitioner was not perfected by his court-appointed counsel,” and thereupon appointed Marlin A. White to represent the petitioner on his appeal to the Supreme Court of Kansas from his conviction of first degree robbery. It further retained jurisdiction pending the outcome of the appeal on the robbery conviction.
On the 7th day of July, 1965, a hearing was had on the petitioner’s motion to vacate, and the court informed the petitioner that under the provisions of Rule No. 121 (c) (3) of the Supreme Court of Kansas (194 Kan. xxvn) a motion to vacate, set aside or correct a sentence could not be maintained while an appeal from a conviction and sentence is pending.
The significance of the petitioner’s first motion to vacate under 60-1507, supra, is reflected in the findings of fact and conclusions of law made by the trial court. They read:
“Findings of Fact
“1. The above-entitled matter is called for trial before this court, on July 7, 1965; the petitioner appearing in person and with his court-appointed counsel, Marlin A. White; the respondent appearing by counsel, Richard H. Seaton, Assistant Attorney General of Kansas.
“2. The petitioner and his counsel are informed by the court that the records of the court disclose that a Motion for Enlargement of Time in which to Appeal, presented to the court on May 5, 1965, had been sustained by the court and in Case No. 1627, the judgment in said case being one of the judgments and sentences attacked by petitioner in his petition filed herein. Petitioner and his counsel are informed by the court that petitioner is not entitled to a hearing on a petition under K. S. A. 60-1507 while an appeal is pending of a sentence under attack. Whereupon, petitioner and his counsel state, in open court, that petitioner desires to and does abandon any attempt to appeal his conviction in Case No. 1627 or any other previous rulings of this court, and thereupon, the hearing is proceeded with on the petition filed herein.
“3. On inquiry by the court, petitioner and his counsel state that petitioner has had ample opportunity to prepare for said hearing and is ready to proceed.
“4. In this proceeding the petitioner attacks convictions and sentences of January 18, 1960, in Case No. 1631, and of October 30, 1961, in Case No. 1627, before this court on the following grounds:
“(a) He was not given prior notice of the State’s intent to invoke the habitual criminal act in Case No. 1631.
“(b) The conviction in Barry County, Missouri, used to enhance the penalty in Case No. 1631, is void because he was not represented by counsel at the time of his guilty plea and sentencing.
“(c) He was denied the constitutional right to a speedy trial in Case No. 1627.
“(d) He was denied the constitutional right to counsel on appeal from his conviction in Case No. 1627.
“(e) The prior conviction in Case No. 1631 could not be used to enhance the penalty in Case No. 1627, because it did not precede the commission of the offense charged in Case No. 1627.
“5. After hearing the evidence, examining the records and transcript of proceedings, the court finds that on January 18, 1960 the petitioner entered a plea of guilty in Case No. 1631 to an Information charging him with breaking custody and escaping jail in violation of K. S. A. 21-736. Evidence was then introduced and admitted showing that petitioner had previously been convicted of automobile theft in the Circuit Court of Barry County, Missouri on November 1, 1941 and that petitioner had also previously been convicted of forgery in the District Court of Grant County, Kansas on October 27, 1949, both convictions being that of a felony. Thereupon, the petitioner was asked to stand before the bench by the court and the petitioner was asked by the court if he admitted a conviction of a felony in Barry County, Missouri on November 1, 1941. The petitioner answered in the affirmative. The court then asked if petitioner admitted conviction of a felony in the District Court of Grant County, Kansas on October 27, 1959. Petitioner again replied in the affirmative. The court then proceeded with the allocution and inquired if there were any further legal reasons why the court should not pronounce sentence and judgment at this time, and in answer, defendant’s counsel, Mr. Donald Sands of Holton, replied, ‘We have none, Your Honor.’ Thereupon, the court sentenced petitioner to a term of not less than 15 years in the Kansas State Penitentiary as provided by K. S. A. 21-107.
“6. On October 30, 1961 the petitioner was convicted by a jury, in Case No. 1627, in this court, on an Information charging him with first degree robbery, in violation of K. S. A. 21-527. Thereafter, on November 8, 1961, the court, after receiving evidence of the conviction in Case No. 1631, and after proceeding with the allocution, the petitioner was sentenced to a term of not less than 20 nor more than 42 years in the Kansas State Penitentiary as provided by K. S. A. 21-107.
“7. The above-mentioned sentences have not been commuted by the action of the Governor of Kansas.
“8. At the time that sentence was pronounced, in Case No. 1631, on Jan uary 18, 1960, the petitioner’s court-appointed attorney, Mr. Donald G. Sands, stated that he had been advised by the County Attorney that the habitual criminal act would be invoked by the State, and further, that he had gone over the evidence of such prior convictions with the defendant and that he and the defendant were familiar with that evidence.
“9. Evidence of the said prior convictions, in Barry County, Missouri and in Grant County, Kansas, was received by the court at the time of sentencing in Case No. 1631 without any .objection by petitioner’s counsel.
‘TO. The journal entry of the Barry County, Missouri conviction of November 1, 1941, which was introduced in Case No. 1631, shows that the petitioner was present in person and entered a plea of guilty. It does not state that petitioner was represented by counsel and it is silent as to whether or not he waived the appointment of counsel. The petitioner has offered no evidence in this proceeding-tending to show that petitioner did not waive appointment of counsel in die Missouri case.
“11. The sentence imposed in Case No. 1631, of not less than 15 years, on January 18, 1960, has not yet expired.
“Conclusions of Law
“1. In this proceeding the petitioner has the burden of establishing his grounds for relief by a preponderance of evidence.
“2. Petitioner has failed to establish that he was not given timely and sufficient notice of the State’s intent to invoke the habitual criminal act in Case No. 1631. The record further discloses that even if petitioner had sustained the burden of proof on this issue, that any objection on such grounds had been waived by petitioner because of his or his counsel’s failure to object on the grounds of insufficient notice and by petitioner’s admission of the prior convictions. Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978.
“3. The conviction of petitioner in the Circuit Court of Barry County, Missouri is presumed to have been regular. This court will not hold that judgment to be void solely on the grounds that the journal entry of conviction does not indicate that petitioner was represented by counsel. Where no evidence is offered by the petitioner that he had not waived appointment of counsel, the petitioner has not sustained his burden on this issue. State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. den. 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899.
“4. The petitioner was adequately and effectively represented, in Case No. 1631, by his court-appointed counsel, Mr. Donald G. Sands, a former County Attorney of Jackson County, Kansas and of many years experience as a practicing attorney.
“5. The conviction and sentence in Case No. 1631 are valid and are not subject to collateral attack.
“6. While there appears to be some merit in petitioner’s attack herein as to Case No. 1627, in view of the recent decision in State v. Felton, 194 Kan. 501, 399 P. 2d 817, in which it was held that in order to evoke the habitual criminal act the prior conviction must precede the principal offense and it would appear that the sentence in Case No. 1627 should be corrected for that reason, — Such issue is not properly before the court at this time — as under the holding herein, the petitioner would still be confined under the valid and correct sentence in Case 1631 notwithstanding an adjudication of invalidity of the sentence in Case 1627. Rule 121 (c) (2).
“As to the issue of speedy trial raised by petitioner in connection with Case 1627, such issue was ruled on by the court at the time of the trial and such ruling of the court was not appealed from.
“The petition is denied as of August 2, 1965.”
The record of the proceeding on the first 1507 hearing is incorporated in the record on appeal herein and fully sustains the findings of the trial court.
Though represented by court-appointed counsel, no appeal was perfected from the foregoing decision of the trial court denying the petitioner relief in the foregoing 1507 proceeding. On the basis of the record here presented had an appeal been perfected it would have been unavailing to the petitioner.
On the 20th day of March, 1966, the petitioner filed his second motion to vacate under the provisions of K. S. A. 60-1507, stating the same grounds for relief as were set forth in his previous motion.
On the same day the trial court denied the motion on the ground the application was a second or successive motion for similar relief on behalf of the same prisoner.
Appeal was subsequently perfected by the petitioner on the 27th day of May, 1966, and thereafter counsel was appointed to represent him on appeal.
The petitioner’s motion in this case sets forth the following grounds for relief:
(1) That he was denied the effective assistance of counsel;
(2) That the Barry County, Missouri, conviction used to enhance his jailbreak sentence was void for lack of counsel;
(3) That he was denied the right to a speedy trial on the armed robbery charge;
(4) That his conviction on jailbreak could not validly be used to increase the penalty for armed robbery;
(5) That he was denied the right to call witnesses in his behalf; and
(6) That he was denied the right to an appeal with court-appointed counsel in the armed robbery case.
The petitioner was afforded a full and complete hearing on each of these claims in the previous proceeding. There he had the benefit of the form prescribed by Rule No. 121 of the Supreme Court (194 Kan. xxvn), he was represented by court-appointed counsel, Marlin White, and he was returned to the sentencing court for a full evidentiary hearing at which he was permitted to testify in his own behalf. The sentencing judge, after making written findings of fact and conclusions of law as above, held against the petitioner in denying all relief.
No appeal was taken from this order and the time for appeal has long since expired. Moreover, the present motion contains nothing to show that the petitioner was unaware of his right to appeal or prevented in some way from taking an appeal.
K. S. A. 60-1507(c) provides:
“Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
This provision is further elaborated in Rule No. 121(d) of the Supreme Court (194 Kan. xxvn) as follows:
“The sentencing court shall not entertain a second or successive motion for relief on behalf of the same prisoner, where (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.”
This case is to be distinguished from Adair v. State, 198 Kan. 1, 422 P. 2d 959; or Perrin v. State, 196 Kan. 228, 410 P. 2d 298, where new grounds not contained in the first motion were presented in the second one, thereby making the foregoing rule inapplicable. Here the grounds presented in both motions were the same, and the case is similar to Lee v. State, 197 Kan. 371, 416 P. 2d 285.
Clearly, the determination of the petitioner’s motion in the first 1507 proceeding was on the merits as to his jailbreak sentence. The court held that he had failed to sustain his burden of proof on the claimed invalidity of the prior Missouri conviction. The court also held he was adequately and effectively represented by court-appointed counsel. It concluded that the conviction and sentence in Case No. 1631 (jailbreak) “are valid and are not subject to collateral attack.” The sentence imposed in that case was for fifteen years, and it has not yet been served. For this reason the sentencing judge of the first 1507 proceeding refused to consider the merits of the petitioner’s claim that the jailbreak conviction could not be used to enhance his robbery sentence.
Here the two sentences were imposed by the same judge in the same court, one after the other, at different times, and there was nothing stated in the sentences as to whether they were to run consecutively or concurrently. Therefore, under G. S. 1949, 62-1512, here applicable, the sentences run consecutively. (Beck v. Fetters, 137 Kan. 750, 22 P. 2d 479.)
The foregoing reasoning of the trial judge is still applicable because of the provision in Rule No. 121(c) (2) (194 Kan. xxvn) that “a prisoner has no right to an adjudication of a motion challenging the validity of a sentence where notwithstanding an adjudication of invalidity of the sentence challenged he would still be confined under another sentence.” Therefore, even assuming the petitioners claims with respect to his robbery conviction (Case No. 1627) are correct, he is in no position to assert these grounds in a proceeding under 60-1507, supra, while he is serving a valid sentence on the jailbreak (Case No. 1631). (Lee v. State, supra.)
Would the ends of justice be served by permitting the petitioner to relitigate the merits of those claims previously determined against him?
In this connection, it should be noted the prior adverse determination was on the merits of every claim which could presently be adjudicated.
In discussing the parallel federal remedy under 28 U. S. S. §2255, the Supreme Court of the United States in Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963), said:
“Even if the same ground was rejected on the merits on a prior application, it is open to the applicant to show that the ends of justice would be served by permitting the redetermination of the ground. If factual issues are involved, the applicant is entitled to a new hearing upon showing that the evidentiary hearing on the prior application was not full and fair; we canvassed the criteria of a full and fair evidentiary hearing recently in Townsend v. Sain, supra [372 U. S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745], and that discussion need not be repeated here. If purely legal questions are involved, the applicant may be entitled to a new hearing upon showing an intervening change in the law or some other justification for having failed to raise a crucial point or argument in the prior application. Two further points should be noted. First, the foregoing enumeration is not intended to be exhaustive; the test is ‘the ends of justice’ and it cannot be too finely particularized. Second, the burden is on the applicant to show that, although the ground of the new application was determined against him on the merits on a prior application, the ends of justice would be served by a redetermination of the ground.” (pp. 16, 17.)
Applying the foregoing criteria, it does not appear that a second hearing would serve the ends of justice. In the first place, there is no indication anywhere in the record that the first hearing before the sentencing judge was not a full and fair evidentiary hearing in every respect. Counsel was appointed, the petitioner was returned, and he testified in his own behalf at the hearing. Furthermore, at the conclusion of the first hearing, counsel for the petitioner stated to the court that he had had ample time to go over the entire matter with the defendant and to prepare the case, that all evidence available had been submitted to the court, and that he had nothing further to present.
In Hanes v. State, 196 Kan. 409, 411 P. 2d 646, the court said the rule against successive motions for similar relief was “particularly applicable where, as here, petitioner’s first motion for relief was prepared and filed by counsel, and an evidentiary hearing was granted.” (p. 410.)
In the second place, the petitioner presented no intervening change in the law to the sentencing judge in the second motion. The burden was upon the petitioner to show these matters, and he failed to do so in his application.
The petitioner in his brief makes much of the fact that he submitted with his second motion a letter from the clerk of the Barry County circuit court in Missouri, in which he was previously convicted. This letter recites “there is no signed waiver [of counsel] attached to the files.” It is apparent from the text of the letter that it was not requested by the petitioner until January 11, 1966, some six months after the hearing on his previous motion. The petitioner gives no explanation as to why it could not have been seemed earlier. Attention is again called to the fact that counsel, who represented the petitioner in the first hearing, stated to the court that he had ample opportunity to go over the entire matter with the petitioner and to prepare the case, and that all evidence available had been submitted to the court.
We cannot say the ends of justice would be served to permit relitigation of issues once finally determined on the basis of the record here presented. The petitioner has not met the required burden of showing that the ends of justice would be served by a redetermination of the grounds asserted.
In a recent case substantially identical to the present, the Tenth Circuit Court of Appeals, in applying the criteria of Sanders v. United States, supra, said:
. . The prior determination of those grounds was on the merits after an evidentiary hearing was held and it is difficult to see how the ends of justice would be served by a second hearing. There has been no intervening change in the law and certainly there is no showing that the prior hearing was not full and fair. In short, appellant has not met the required burden of showing that the ends of justice would be served by a redetermination of the grounds asserted.” (Stephens v. U. S., 341 F. 2d 100, 101 [1965].)
For the reasons heretofore stated, the judgment of the lower court dismissing the petitioner’s second 1507 motion is affirmed.
Kaul, J., not participating. | [
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The opinion of the court was delivered by
Price, C. J.:
This is an action for damages resulting from an intersection collision in the city of Wichita.
At the close of plaintiff’s evidence the trial court sustained defendant’s motion for a directed verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law — thus barring recovery.
Plaintiff has appealed from that ruling.
Very briefly stated — plaintiff’s evidence was to this effect:
On a Sunday afternoon in December plaintiff was driving north on Piatt street. It had snowed the night before and the streets were covered with ice and snow. On Piatt, traffic had more or less pushed the snow to the curbs and there was a fairly well defined traffic-lane, but the street was still slick. As plaintiff approached the intersection with 10th street he was traveling 15 to 20 miles per hour and he had his car under control. The intersection was “open” —there being no stop signs on either street. 10th street was covered with snow. He looked to the east and saw nothing. A house on the southwest corner of the intersection prevented a clear view to the west until a north-bound driver was just about even with the south line of 10th street. As plaintiff reached this point he looked to the west and saw defendant’s car approaching — about five to seven car-lengths away. Plaintiff proceeded on north into the intersection, but before he was through it his car was struck by defendant’s car. Plaintiff’s car was knocked into the yard at the northeast corner of the intersection and he was thrown from it. Defendant’s car came to a stop on the north side of 10th street, east of Piatt, facing west. Plaintiff sustained personal injuries and damage to his car.
Applicable rules have been stated many times (Casement v. Gearhart, 189 Kan. 442, Syl. 1 and 2, 370 P. 2d 95; Deemer v. Reichart, 195 Kan. 232, Syl. 2, 404 P. 2d 174; Gardner v. Pereboom, 197 Kan. 188, Syl. 6, 416 P. 2d 67), and there is no occasion to repeat.
There are instances, of course, in which a trial court is completely justified in removing the question of a plaintiff’s contributory negligence from the jury — but we are unable to say that this is one of them. Examining plaintiff’s evidence in this case we are of the opinion it did not convict him of contributory negligence as a matter of law. Reasonable minds could well differ on the question, and therefore the matter should not have been removed from the jury.
The order of the trial court sustaining defendant’s motion for a directed verdict at the close of plaintiff’s evidence is reversed with direction to grant a new trial. | [
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The opinion of the court was delivered by
Price; C. J.:
Petitioner appeals from an order denying relief in a proceeding filed under K. S. A. 60-1507.
Two direct appeals from petitioner’s conviction in the district court of Linn county of the offense of larceny of an automobile have been before this court.
The first is found at State v. Cox, 191 Kan. 326, 380 P. 2d 316, (supplemental opinion, 191 Kan. 456, 381 P. 2d 704) cert. allowed, 376 U. S. 191, 11 L. ed. 2d 603, 84 S. Ct. 637.
Thé second is found at State v. Cox, 193 Kan. 571, 396 P. 2d 326, cert. denied, 380 U. S. 982, 14 L. ed. 2d 276, 85 S. Ct. 1350.
The background of this matter, and the facts of the offense, trial and conviction are related in our previous decisions and are incorporated herein by reference. There is no occasion to repeat.
Subsequent to the denial of certiorari on April 26, 1965, by the Supreme Court of the United States, petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Kansas. In that petition his grounds for relief were that his conviction was void because he was required to stand trial while under an adjudication of insanity; that his constitutional rights were violated in that he was denied counsel at his preliminary examination, and that during the 40-day period he was held in jail without the assistance of counsel he underwent interrogation by an agent of the Kansas Bureau of Investigation who procured from him a statement or confession — in violation of his rights under the Escobedo rule of the Supreme Court of the United States.
In a memorandum decision dated October 11, 1965, the federal court held that exhaustion of state remedies by a state prisoner is a prerequisite to federal habeas corpus relief, and found that petitioner had not raised the Escobedo argument in either of his appeals and had not presented that argument or any other argument to the sentencing court under K. S. A. 60-1507.
Accordingly, petitioner’s application for a writ was dismissed.
Relief in the federal court thus being denied, petitioner, on February 18, 1966, filed this proceeding for relief in the district court of Linn county under K. S. A. 60-1507. In lieu of a statement of the grounds upon which he based his allegations that he was being held in custody unlawfully, petitioner attached to his motion a copy of the decision of the federal court.
The district court appointed counsel, and a full evidentiary hearing was held — with petitioner present. He testified in his own behalf, but called no witnesses. The corut had before it the files and records of the original trial.
Following the hearing the court prepared and filed detailed findings. With respect to the contentions that petitioner’s conviction was void because he was required to stand trial while under an adjudication of insanity and that his constitutional rights were violated because he was denied counsel at his preliminary examination, the court held — and correctly so — that both contentions had been decided adversely to him in the second direct appeal to this court.
As to petitioner’s third contention, the court found from the record that at the time he made the statement in question he was fully advised of his rights and that anything he said might be used against him; that such statement was freely and voluntarily made; that it was admitted at the trial without objection, and that the only evidence indicating any “irregularity” in the taking of the statement was the uncorroborated testimony of petitioner — which was insufficient to sustain the burden of proof under Rule No. 121 (g) of this court.
In addition — the court called attention to the fact that petitioner’s trial was in 1962 — two years prior to the Escobedo decision. (On this point — see Addington v. State, 198 Kan. 228, 233, Syl. 2, 424 P. 2d 871).
Relief was denied — and this appeal followed.
With the exception of the “Escobedo” contention — it is clear that all arguments now made in this appeal have been answered adversely to petitioner in the two direct appeals to this court. As above stated — in this 60-1507 proceeding the district court found that the statement in question was freely, knowingly and voluntarily given by petitioner on the day after his arrest. Such finding is fully supported by the record. In State v. Brown, 198 Kan. 473, 476, Syl. 2, 426 P. 2d 129, it was held that a defendant’s confession made during pretrial interrogation by law enforcement officers is not rendered inadmissible solely because it was made at a time when he did not have counsel. As was said at page 327 of our opinion in the first appeal — at no time, either before or during his trial, did petitioner deny taking the automobile — he admitted it— and his entire defense appeared to be that at the time of the commission of the offense he was insane — and therefore not guilty by reason of insanity. That contention was answered by the jury.
Examination of the record discloses nothing to warrant relief in this proceeding. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is an appeal from a summary judgment entered in favor of plaintiff in an action for a declaratory judgment. The action was brought to construe a contract concerning the sale of stock in a savings and loan association.
The parties owned 54% of the common stock of the Liberal Savings & Loan Association, Liberal, Kansas. They executed the agreement giving rise to this action in 1963 and it will be referred to as the 1963 contract. The association had a total of 1000 shares of stock outstanding. The defendant, Henry Hatcher, owned 240 shares. The plaintiff, John W. Wood, owned 300 shares. The contract placed certain restrictions on the sale of stock owned by these parties. The contract was to terminate in event either party lost ownership of his stock through process of law. Pertinent portions of this contract will be set forth later in this opinion.
The parties agree the contract controls the rights and obligations concerned in this action. They differ in opinion as to proper construction of the contract.
After executing the contract plaintiff acquired 210 additional shares of stock bringing his total to 510 shares. After acquiring these additional shares plaintiff received an offer from James Blake-more to buy his 510 shares of stock. The plaintiff notified the defendant of this offer as required by the contract. The defendant authorized plaintiff to offer Blakemore in addition his 240 shares at the same price per share. Blakemore refused to buy the 750 shares but renewed his offer to buy 510 shares from plaintiff. An agreement of sale was executed by both plaintiff and Blakemore which provided that plaintiff must first comply with the 1963 contract before the sale could be consummated.
Plaintiff made an offer to sell his 510 shares of stock to defendant as required by the 1963 contract. The defendant declined the offer and after ten days the 510 shares were sold to Blakemore.
Disagreement arose between plaintiff and defendant over plaintiffs right to sell his stock to a third party. Plaintiff filed a petition for declaratory judgment to obtain a judicial construction of the 1963 contract. Defendant answered and set up a counterclaim for damages. Testimony by deposition was taken from the defendant, Blakemore and plaintiff. A motion for summary judgment was filed by plaintiff and the court entered a judgment in favor of plaintiff construing the contract to permit the sale. The defendant Henry Hatcher appeals.
The 1963 contract sets out the names of the parties and recites that the defendant owns 24% and the plaintiff owns 30% of the total issued stock of the association. The preface to the numbered sections of the contract states the parties desire to enter into an agreement with reference to (1) the sale of stock, (2) the termination of the agreement, and (3) the sale of stock and voting of stock by a legal representative of a deceased party. The crucial portions of the contract read:
“1. Term of Agreement. This agreement shall be binding on the undersigned and their legal representatives for a period of twenty (20) years from the date of this agreement.
“2. Sale of Stock. Each party agrees that if he receives an offer for the purchase of his stock from any individual, firm or corporation, hereinafter re ferred to as persons, that he will discuss the same with the other party hereto and if both parties to this agreement are willing to sell all of their stock at the price offered, that the party hereto who receives the offer will in turn offer all of the stock of both parties to said persons at the same price.
“If both parties are not agreeable to selling all of their stock, then it is agreed that neither party hereto will sell his stock to any individual, firm or corporation, hereinafter referred to as persons, without first offering the stock to the purchasing pabty at the same price as the selling party is being offered for the said stock by said persons. It is agreed that the selling party will furnish to the purchasing party a firm committment (sic) in writing stating a definite price per share which is being offered for said stock or portion thereof to the selling party, which offer is made by said persons, in order that the purchasing party may have actual knowledge of the firm committment (sic) being made to the selling party.
“It is agreed that the purchasing party shall have ten (10) days from the date that the firm committment (sic) is submitted to the purchasing party within which to offer in writing to purchase said stock from the selling party at the same price and if said offer is not received by the selling party by 12:00 o’clock noon on the tenth (10th) day after the original offer is submitted to the purchasing party, then and in that event the selling party has the right to sell his stock or any portion thereof to any persons he so desires at any price he desires to sell said stock.
“If the offer is accepted by the purchasing party and delivered to selling party within the time above specified, then the parties hereto shall stipulate and agree in writing as to the terms of said sale to the purchasing party.
“3. Sale of Stock by Both Parties. That if both parties receive an offer for their stock at the same time from the same persons, it being the intention of both parties hereto to dispose of all of the stock they own in the Liberal Savings & Loan Association, Liberal, Kansas, at the same time and to the same persons, that said parties hereto are at liberty to dispose of the stock at such time as they so desire without the consent of the other party.
“4. Termination of Ties Agreement in Event of Loss of Stock by Owners or Legal Representatives. It is mutually understood and agreed by and between the parties hereto that this agreement is binding only so long as both parties or their estates are the owners of the same number of shares that they now own as of the date of this agreement or more shares, whichever the case may be, and in the event either party hereto loses ownership of his stock through any process of law, this agreement is null and void.”
The balance of the contract has no direct bearing upon the particular question raised in this action. However, item 5 provides that each of the parties is to execute a will or create a trust in order for the legal representative of a deceased party to vote the stock and comply with section 2 in event of sale after death of either of the parties. Item 6 outlines the wishes of the parties in event either of them becomes incompetent and directs the guardian appointed to consider the terms of the agreement.
In granting a declaratory judgment the lower court determined the contract was silent with respect to the rights of the parties if a purchaser refused to buy all of the stock of both parties and desired to purchase the stock of only one party. The court further found, (1) the contract did not contain a general restriction against the sale of stock except under certain prescribed conditions and methods, (2) the contract assumed the inherent right to sell and set out methods to be followed, (3) the contract did not prohibit the sale of plaintiff’s stock in the manner in which it was sold to Blake-more, and (4), since plaintiff did have the right to sell, the defendant had no valid grounds for his counterclaim.
The defendant contends the district court erred in construing the written agreement to permit the sale of stock to Blakemore.' He alleges several grounds upon which he attacks the court’s construction of this contract.
First, defendant states the lower court ignored the intent of the parties expressed in the contract which clearly indicates, he says, a desire to retain the majority block of stock held by them until such time as the stock might be disposed of in a block to the same persons as specifically provided in item 3 of the contract.
However, the intention of the parties to a contract is determined by the court from the instrument as a whole, after consideration of all language used anywhere in the instrument, so as to construe the provisions of the entire contract in harmony. (Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269; Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803.)
After considering the entire contract we cannot agree that item 3 requires every sale of stock by the parties to be made at the same time to the same persons. The plain wording of this paragraph is prefaced on the premise both parties receive an offer for their stock at the same time from the same persons. In the present case both parties did not receive such an offer. The prospective buyer flatly rejected the offer of defendant. The intention of the parties expressed in item 3 is limited by the introductory words: “That if both parties receive an offer for their stock at the same time from, the same persons, . . .”
In item 2 of the contract a party is required to discuss an offer for purchase received by him with the other party. It is agreed that this was done by plaintiff when he received the offer from Blake-more. However, the contract is silent as to how to proceed when an offer to sell all of the stock of both parties is rejected by a buyer. The next paragraph in item 2 provides a method by which either party may purchase the other’s stock before a sale to a third party is permitted. This provision would be. unnecessary if the parties desired to restrict sale of their stock to a sale in a block as defendant contends.
The defendant lays stress upon the word “consent” appearing in item 3. The only consent mentioned in the contract appears in this particular item. In this paragraph the parties say they “are at liberty to dispose of the stock at such time as they desire without the consent of the other party” if both receive an offer at the same time and intend to dispose of such stock to the same persons. We note that item 3 is set forth separately in the contract under the heading, “Sale of Stock by Roth Parties.” It appears to be self-sufficient. It does not refer specifically to any other item in the contract. It does not appear to control the overall agreement of the parties. It is limited in scope to a sale of stock by both parties at the same time to the same persons.
Appellant contends the contract is incomplete or ambiguous. He says the lower court erred in refusing to find it incomplete or ambiguous. We agree that the contract is incomplete in the sense it does not provide the restriction which appellant would have us find exists by implication.
We do not agree the contract is ambiguous merely because it fails to have this restriction. The words incomplete and ambiguous are not synonymous. The language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in a sense the contract may be understood to reach two or more possible meanings. A contract is not ambiguous when it fails to contain a restriction against a sale which one party says should have been inserted. Ambiguity does not arise from total omission. It arises when application of pertinent rules of interpretation to an instrument as a whole fails to make certain which one of two or more meanings is conveyed by the words employed by the parties. (Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661; Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350; Brungardt v. Smith, 178 Kan. 629, 636, 290 P. 2d 1039; Weiner v. Wilshire Oil Co., supra.)
Appellant insists the purpose of the contract is to limit the right of sale and the court erred in finding the contract assumed the inherent right to sell. It would have been a simple matter for the parties to have included in the contract a general statement that all sales of stock by the parties were prohibited for the term specified unless specifically authorized by the agreement, if this was the understanding. A right of sale is an incident to the ownership of property. If the right of sale is restricted or prohibited by agreement a restraint on alienation is imposed. Restraints on alienation of property are strictly construed by the courts against the party urging the restriction. (42 Am. Jur. Property § 52; Tracey v. Franklin, 31 Del. Ch. 477, 67 A. 2d 56, 11 A. L. R. 2d 990.)
A lease constitutes property and restrictions against assignment of a lease constitute prohibitions against the right of alienation and are strictly construed. They will not be extended by implication. (Williams v. Safeway Stores, Inc., 198 Kan. 331, 424 P. 2d 541.)
Strict construction in such cases is imposed against the restriction and against the party asserting it. In the present case imposition of this rule of strict construction would tend to permit the sale of stock by plaintiff if not expressly prohibited by the contract.
However, the defendant in his brief argues the contract should be strictly construed against the plaintiff. He says since plaintiff is an attorney and prepared the contract any doubtful language must be resolved against plaintiff. The plaintiff in his brief denies authorship of the contract. The record before us does not disclose who drew the agreement. The question becomes immaterial by our decision that the language is not doubtful and the contract is not ambiguous. It was not a genuine issue of material fact in the trial court. Therefore, we cannot accept the appellant’s argument and authorities on this particular point as applied to the present case.
The crux of the matter is appellant wants us to imply and insert a restriction in this contract against the sale, which restriction he admits was not expressed therein. This court may not make a new contract for the parties or rewrite a contract under the guise of construction. Construction of a contract does not authorize modification beyond the meaning expressed by the language employed by the parties. (Snyder v. Miller, 71 Kan. 410, 418, 80 Pac. 970; Bailey v. Talbert, 179 Kan. 169, 294 P. 2d 220; Anderson v. Rexroad, 180 Kan. 505, 306 P. 2d 137; 17 Am. Jur. 2d, Contracts §242.)
When the terms of the contract are plain and unambiguous the meaning must be determined by its contents alone and words cannot be read into the agreement which import an intent wholly unexpressed when it was executed. (Williams v. Safeway Stores, Inc., supra; 17A C. J. S. Contracts § 321; 17 Am. Jur. 2d, Contracts § 261.)
The lower court correctly construed the contract and found no provision therein which prohibited the sale by plaintiff in the manner in which it was made to Blakemore. The court properly declined to read into the contract an implied restriction against sale which would have had the effect of making a different contract for the parties.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves claims of inheritance, joint tenancy survivorship, and proceeds under life insurance contracts in the estates of two decedents, Isaac Pyke and Della Pyke, husband and wife, and to collect damages for the wrongful death of Della by the alleged willful and intentional shooting of her by Isaac, who then committed suicide.
Actions were filed by the administrators of both estates in the probate and district courts of Dickinson County to obtain an award and distribution of the property claimed to belong to the respective decedents’ estates. Claims filed in the probate court were transferred to and consolidated with those filed in the district court. (K. S. A. 59-2402a and b.) A trial was had by the district court which made findings of fact, and rendered judgment in favor of Delbert V. Pyke, administrator of Isaac’s estate. The plaintiff, The United Trust Company, administrator of Della’s estate, has appealed.
Isaac and Della Pyke had been married for many years and resided in Abilene; they were childless, and both died intestate. Isaac was 85 years of age and was of sound mind and body. Della was 79 years of age and was of sound mind, but was physically impaired in that she had chronic leukemia (cancer of the blood), and adeno carcinoma (cancer of the throat glands) for which she had been hospitalized prior to her death. She also had a left facial paralysis preventing her closing her eyelid and a blindfold was placed over her eyes when she slept. Her personal physician and two doctors testified they could not say with reasonable medical certainty what effect, if any, her physical impairments had on her normal life expectancy.
Isaac was last seen alive about 7:30 p. m., September 5, 1962, when he walked to the home of a neighbor, Clara Rhodes, and asked her to come by the next morning and drive Della and him to a doctor in Salina. Isaac told Clara “she needn’t knock,” but to “come right in.” When Clara arrived the following morning, September 6, 1962, at about 7:50 a. m., she called to Isaac. Receiving no answer, she went into the Pyke home and found Isaac’s body lying on the kitchen floor. She immediately telephoned the police, and waited outside until they arrived. The police found both Isaac and Della dead at about 8:00 a. m. on September 6, 1962.
On October 4, 1962, Della’s estate was admitted to probate, and the plaintiff-appellant, The United Trust Company, was appointed administrator. On June 28,1963, the plaintiff filed identical petitions in the probate and district courts, alleging that Della survived Isaac and that all the property (their residence, certain jointly and separately owned stocks, bonds and checking accounts, and various life insurance proceeds) should be awarded and distributed to the heirs at law of Della. It was also alleged that in the event the time of death could not be established, all of the property should be awarded and distributed in accordance with the simultaneous death statute. (K. S. A. 58-701, et seq.) A second cause of action alleged that Della’s death was the result of the willful acts of Isaac and that his estate was liable to Della’s estate in the amount of $25,000.
On October 5, 1962, Isaac’s estate was admitted to probate and the defendant-appellee, Delbert V. Pyke, was appointed administrator. The petition for administration alleged that Isaac was unmarried at the time of his death; that his wife, Della, had predeceased him, and that his only surviving heirs at law were his brothers and the nieces and nephews stated herein. On July 3, 1963, Delbert V. Pyke, as administrator of Isaac’s estate, filed identical petitions in the probate and district courts, repeating the allegation that Isaac had survived the death of Della, and praying that the property in issue be surrendered and awarded to the administrator of Isaac’s estate.
It is unnecessary to here state the titles and docket numbers of the cases filed, or those transferred to the district court, except to say they were ordered consolidated and set down for pretrial conference. On June 29, and 30, 1965, the consolidated cases were tried by the district court which rendered judgment that the plaintiff take nothing by its petition, alleging two causes of action; that the relief prayed for Delbert V. Pyke, administrator, be allowed; that Isaac was the only heir at law of Della, and that Della’s estate be closed forthwith.
The evidence disclosed the following: When found, both corpses were in rigor mortis, which most often occurs about four hours after death. Death is the complete cessation of all vital functions without possibility of resuscitation. There was no evidence of the time of the shooting of either Isaac or Della, and it could have occurred at any time between approximately 8:00 p. m., September 5, and 3:50 a. m., September 6, or even later. The examining coroner stated in the death certificates that Della had died at about 12:30 a. m., on September 6, and that Isaac had died at about 1:00 a. m., on that date, but later crossed out those times, and testified he had only assumed them.
Pictures of the condition and positions of both bodies were introduced in evidence and included in the record on appeal. Della’s body was in her bed at the front of the home. There were five bullet wounds in her head; three in the forehead and two above the left ear. The mattress and bedding were soaked with blood and there were splotches of blood on the wall at the head of the bed. The night-light was on in her bedroom, as were the lights in the kitchen. Isaac’s body was lying on the kitchen floor about 35 to 40 feet from Della’s bedroom, with one bullet wound in his forehead and there was blood on the floor in and about the area surrounding his head. Lying on the floor next to Isaac’s feet, was an H & R .22 caliber revolver with one empty cartridge and eight live cartridges in its cylinder. There was a partially filled box of .22 caliber cartridges on the kitchen table, and approximately three feet from Isaac’s head were five expended .22 caliber cartridges in the kitchen wastebasket.
Autopsy examinations of the head and brain of each corpse were made by Dr. C. J. Weber, a pathologist, and he made autopsy reports which were introduced in evidence. The reports show, and the court found, the cause of Della’s death was the five bullets recovered from her brain. The bullets were checked ballistically by the Kansas Bureau of Investigation and its report expressed the opinion they had been fired by the gun found near Isaac’s feet. The revolver was identified as Isaac’s gun.
The autopsy reports showed the cause of Isaac’s death was the single bullet wound in his head. Both corpses had deep powder burns at their bullet holes.
The chief of police testified the police could find no evidence of movement of Della’s body after she was shot, and the medical experts agreed she would have been unconscious after any one of the five bullets entered her head; that she would have died almost instantaneously, and could not have shot herself.
There was evidence the police officers made a careful search of the house and premises and could find no indication any third person had been in the house the night before. A considerable amount of money present in the home had not been disturbed.
In view of the foregoing, the district court found that Isaac shot Della sometime between 8:30 p. m. on September 5, 1962, and 7:50 a. m. on September 6, 1962, and that Della predeceased Isaac. It also concluded the simultaneous death statute (K. S. A. 58-701, et seq.) was not applicable, and rejected the theory of constructive trust, finding no foundation for it in the case law or the statutes of Kansas. In a post-trial motion, the plaintiff requested the district court to expressly find that Isaac intentionally inflicted the fatal injuries upon Della, without legal justification, but the court specifically refused to make such finding.
It is contended the plaintiff’s appeal was untimely perfected and should be dismissed. The state of the record is such that a clear-cut issue is not presented, requiring a discussion of the point, and we proceed to the merits.
The plaintiff first contends, inter alia, that a part of the property in question was that of Della; that Isaac’s intentional shooting of five bullets from close range into her head and brain cannot be construed as anything other than he deliberately intended to kill her; that during the night when Isaac committed his crime, Della had the prospect of a future existence of which the duration was not less undefined than was that of Isaac; that by his felonious act, Isaac interrupted the course of nature and caused Della’s untimely death, and, but for his criminal act, Della might have outlived Isaac; that where, as here, there has been an intentional and deliberate killing, and with respect to all property benefits arising from the victim’s estate, the law presumes the victim survived his killer, which presumption is not rebuttable, and the felonious killing is set at naught so as to prevent the killer from profiting from his own crime and depriving innocent distributees of their share of the victim’s estate.
The plaintiff candidly concedes the contention was not presented to, or ruled upon by the district court, and it is now being made for the first time. In its brief it states:
“In its judgments, the trial court overlooked the foregoing presumption. In fairness to the trial judge, we would like to add that it was not called to the court’s attention. We did not know of its existence until after the motion for new trial was overruled.”
Under such circumstances, we are in no position to decide the point on its merits. This court has repeatedly held it will not consider an issue which has not been presented to the district court and is raised for the first time on appeal. (Hardcastle v. Hardcastle, 131 Kan. 319, 327, 291 Pac. 757; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122; Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581; Tate v. State, 196 Kan. 435, 437, 411 P. 2d 661; State v. Blair, 197 Kan. 693, 421 P. 2d 32; Scammahorn v. Gibraltar Savings & Loan Assn., 197 Kan. 410, 416 P. 2d 771.)
It is next contended the district court erred (1) in finding Della predeceased Isaac, and (2) in refusing to find that Isaac intentionally and willfully inflicted the fatal injuries upon Della, without excusable justification. In reviewing findings of fact of a district court and its refusal to make requested findings, this court does not weigh the evidence and is concerned only with the question whether the findings made are sufficient to support the judgment, and whether there is substantial evidence to support the findings made; it is not concerned with evidence which, if believed, would support contrary findings. (Kuhn v. Kuhn, 112 Kan. 155, 210 Pac. 343; In re Estate of Horton, 154 Kan. 269, 118 P. 2d 527; Fine v. Neale Construction Co., 186 Kan. 537, 352 P. 2d 404; In re Estate of Shirk, 194 Kan. 671, 401 P. 2d 279; Denison Mutual Telephone Co. v. Kendall, 195 Kan. 227, 403 P. 2d 1011; Newcomb v. Brettle, 196 Kan. 560, 413 P. 2d 116.) If, upon review of the record, there is substantial competent evidence to support the findings of the district court, it is beyond the province of this court to disturb the judgment on appeal. (In re Estate of Shirk, supra; Denison Mutual Telephone Co. v. Kendall, supra.)
The question whether one survives another is to be determined as a matter of fact by evidence (Horder v. Horder, 23 Kan. *391; White v. Atchison, T. & S. F. Rly. Co., 125 Kan. 537, 265 Pac. 73), and the rule permitting proof of death and survivorship by circumstantial evidence has been adopted by this court. (Noiler v. Aetna Life Ins. Co., 142 Kan. 35, 38, 46 P. 2d 22.) The degree of certainty of evidence to establish priority of death or the fact of survivorship is merely a preponderance of the evidence (22 Am. Jur. 2d, Death, § 298, p. 816), and need not rise to that degree of certainty which will exclude every reasonable conclusion other than that reached by the trier of the facts. (Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Security Milling Co. v. Ketchum, 185 Kan. 694, 347 P. 2d 433.) The period of survival is immaterial. It has been held that if one party survived the other by a second or two, it is sufficient to meet the demands of survivorship. Noller v. Aetna Life Ins. Co., supra.)
The facts that form the circumstantial and indirect evidence of the manner in which Della was killed by Isaac are essentially undisputed. The parties are agreed that a summary of those facts and the inferences to be logically drawn therefrom, may be stated as follows: Between the hours of 8:30 p. m. on September 5, and 7:50 a. m. on September 6, 1962, Isaac and Della were alone in their home in Abilene. Some time during this span of time (the exact time being completely immaterial), Isaac took an H & R .22 caliber revolver to the bedroom of his wife. Della was asleep at the time with a blindfold over her eyes. Isaac then proceeded to fire three bullets into Della’s forehead and two bullets in to the left temporal region, one above the ear and one above and behind the ear. Isaac then proceeded out of the bedroom, through the living room, through the dining room, and into tire kitchen, a distance estimated at 35 to 40 feet. Isaac then emptied the spent cartridges from the revolver into the wastebasket in the kitchen, removed fresh cartridges from a box of shells on the kitchen table and reloaded the empty chambers in the revolver. At some time thereafter, Isaac shot himself once near the center of his forehead with the revolver.
The medical testimony with respect to the relative time of death of Della and Isaac is set forth at length in the record. Dr. Weber’s report to counsel, which was introduced in evidence, states:
“It is my opinion that Mrs. Pyke died almost immediately following the shooting. My opinion is based upon the extensive injury to the brain found at the autopsy. The brain injury is more extensive than that found in Mr. Pyke’s brain. It is my opinion that Mrs. Pyke died before Mr. Pyke and any other interpretation would be improbable.”
Dr. Carter testified that Della died almost instantaneously after five bullets had been shot into her head and that he could be reasonably medically certain she died prior to Isaac. It is evident there was ample evidence to support the finding that Della predeceased Isaac.
Likewise, the Kansas simultaneous death statute (K. S. A. 58-701, et seq.) is not applicable where there is “sufficient evidence that the persons concerned have died otherwise than simultaneously.” Based upon the record, we are of the opinion the district court’s conclusion of law that the foregoing statute was not applicable to the facts of this case was correct, and there is nothing to warrant a reversal of that conclusion.
The plaintiff strenuously contends the district court erred in refusing to find that Isaac intentionally and willfully inflicted the fatal injuries upon Della, and argues that where there has been an intentional and deliberate killing, the killer cannot properly be construed to be the “surviving spouse” as the term is used in our statutes relating to descent and distribution (K. S. A. 59-501, et seq.), or the “surviving joint tenant” within the meaning of the joint tenancy statutes (K. S. A. 58-501 and 59-2286), or the “surviving beneficiary” with respect to insurance policies on the life of his victim. See, K. S. A. 40-414 and 40-415. As indicated, after hearing the evidence, the district court refused to make any finding involving intent, willful act, or lack of justification. The finding of criminal intent was requested to form the basis for the plaintiff’s argument used throughout its brief that the killing of Della was a criminal act, a felony and a murder, as evidenced by its statement: “In plain words, the killing of Della by Isaac was murder.”
It is conceded there was no charge, accusation, trial or conviction of Isaac for any felonious killing arising out of the occurrence which is the subject of this litigation. We do not speculate as to reasons why the district court refused to make the requested finding, except to say it was aware Isaac had not been convicted of feloniously killing Della, and had such a finding been made, it would have been contrary to some of our more traditionally poignant principles of justice. Deeply rooted in our system of jurisprudence is the principle that one cannot be tried in absentia, and this court has yet to sanction the practice of trying a man in his grave for the commission of a crime. (Rill of Rights, § 10.) Furthermore, such a finding would have been immaterial, and contrary to the public policy of this state as declared in K. S. A. 59-513 which reads:
“No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will or otherwise from such person any portion of his estate.”
The statute was enacted in 1939 (L. 1939, Ch. 180, §35), and amended R. S. 22-133 which prohibited a person convicted of killing any other person from inheriting, or who would take by deed, will or otherwise from such other person, any portion of his estate. The latter statute was enacted at the 1907 Session of the Legislature (L. 1907, Ch. 193, § 1) after the case of McAllister v. Fair, 72 Kan. 533, 84 Pac. 112, 3 L. R. A. n. s. 726, had been decided in 1906. In that case, a husband killed his wife for the purpose of obtaining her property. She died intestate and childless. He was convicted of first degree murder. It was held:
“The power to declare the rule for the descent of property is vested in the legislature; and where it has provided in plain and peremptory language that a husband shall inherit from his deceased wife, and no exception is made on account of criminal conduct, the court is not justified in reading into the statute a clause disinheriting a husband because he feloniously killed his intestate wife for the purpose of acquiring her property.” (Syl.)
The 1907 statute was first applied in Hamblin v. Marchant, 103. Kan. 508, 175 Pac. 678, opinion denying rehearing 104 Kan. 689, 180 Pac. 811, to a wife who shot and killed her husband. He had no children. The wife was convicted of manslaughter in the third degree. She contended the exception stated in R. S. 22-133 did not apply to persons convicted of manslaughter in the third degree. It was held the statute operated to bar one convicted of killing any other person; that a conviction of manslaughter was a conviction for killing, and that the statute prevented the wife from taking the property of her husband by inheritance or by contract growing out of the marriage relation.
The statute (R. S. 22-133) was construed in Hogg v. Whitham, 120 Kan. 341, 242 Pac. 1021. The husband murdered his wife on January 27, 1923, committed suicide on January 29, and on February 20, was convicted by a coroner’s jury of the murder of his wife. It was said the statute disqualifies on account of homicide established in a particular manner; that it makes necessary the disqualifying criminal act be established by a conviction; that the word “conviction” is used in the statute in the same sense it bears in the Constitution, the Crimes Act, and the Code of Criminal Procedure, and that when the legislature has provided in plain language, the conditions of disherison from an intestate who was killed, the court is not justified in minimizing those conditions, or in reading different conditions into the statute. It was held the coroner’s jury’s verdict was not a conviction within the meaning of the statute, and that the husband could inherit from his deceased wife.
The statute was again considered in 1935. In Noller v. Aetna Life Ins. Co., supra, the insured husband and the beneficiary wife died almost simultaneously and under circumstances that raised a question as to which one survived. The administrators of their respective estates sought to recover the proceeds of a policy of life insurance on the life of the husband. There was evidence the wife shot her husband and then committed suicide. It was argued the estate of the wife was barred from recovery by reason of the common-law rule that where the beneficiary of an insurance policy feloniously kills the insured, it is against public policy to permit her to recover on the policy. In the opinion it was said:
“. . . The answer to it is twofold. This court is unable to say that the-evidence in the record compels the conclusion that Mrs. Hammatt killed Hammatt. That is merely one of the conclusions to which a jury might come after weighing the evidence. It is our duty to draw all the inferences and conclusions-from the record that go to sustain the position of plaintiff. When this is done, it is still apparent that the jury might have concluded that the tragedy was the result of each one of the participants committing suicide.
“The other answer lies in the law. Situations such as this have been covered in a measure by the passage of R. S. 22-133 . . .
“That law was enacted in the session of 1907.” (1. c. 40.)
The provisions of R. S. 1933 Supp. 40-414 (now K. S. A. 40-414) were then noted to the effect that the proceeds of any life insurance policy “. . . shall inure to the sole and separate use and benefit of the beneficiaries named therein . . .” free of. any claims. Continuing, the court said:
“The above or a similar provision of the statute has been in force in our state for many years. It is the public policy of our state thus stated in language as plain and unambiguous as the law of descents and distributions that the proceeds of an insurance policy shall go to the beneficiary named in the policy.
“Without any doubt R. S. 22-133 was enacted to cure a situation such as that treated in McAllister v. Fair, supra. It will be noted that it provides that no one who shall be convicted of killing another person from whom they would inherit any property or would take property by deed, will or otherwise, shall take such property. The words ‘or otherwise’ would apply to a case where the person who did the killing was the beneficiary in an insurance policy.
“R. S. 22-133 only bars the person who did the killing when he has been convicted of the crime. Appellee makes the point that it is against public policy to permit a person to profit by the killing of another. It is the public policy of this state, as announced by the legislature, that such a person shall not take property from the murdered person in any manner whatsoever, but that he must be convicted of the crime before he is barred. This is the obvious intention of the legislature in enacting the various statutes to which reference has been made.” (1. c. 41.)
And it was held:
“In order for the beneficiary of a life insurance policy who kills the insured to be barred from receiving the benefits of the policy, the beneficiary must first be convicted of the crime.” (Syl. f 3.)
As enacted in 1939, K. S. A. 59-513 modifies the statutes of descent and distribution and bars the wrongdoer from taking by inheritance- or otherwise from a person feloniously killed by him, but makes conviction of the offense a condition precedent to the operation of the-bar of the statute. The statute was applied in Rosenberger v. Northwestern Mutual Life Ins. Co., 182 F. Supp. 633, where it was said the only inquiry for a court in a civil action by a widow who had been convicted of fourth degree manslaughter of involuntarily killing her husband, was whether the conviction was for a degree of homicide wherein intent to kill was a necessary ingredient. It was held that conviction of fourth degree manslaughter was not a felonious killing making the bar of the statute operative. We do not pass upon the correctness of the federal court’s application of K. S. A. 59-513. Since Isaac was not charged, tried or convicted of any offense, it is unnecessary to determine what criminal homicides are included in the term “feloniously killing” as used in the statute, and we leave the question open.
The right to succeed to property as a surviving joint tenant is another field and subject matter pre-empted by the legislature. The same legislature which enacted K. S. A. 59-513, also enacted The Property Act of 1939. The first section of that Act, K. S. A. 58-501, amended and clarified G. S. 1935, 22-132 so as to apply to both real and personal property in harmony with opinions of the court construing the section. In 1951 the legislature enacted what is now K. S. A. 59-2286. By these statutes the legislature has provided for the creation and termination of estates in joint tenancy and the requirements necessary for succeeding to such property by right of survivorship. The statutes were applied in In re Estate of Foster, 182 Kan. 315, 320 P. 2d 855, and it was said that in none of them has the legislature seen fit to limit or restrict the right of a surviving joint tenant to succeed to the property because of criminal conduct on his part, and it was held:
“The distinctive characteristic of joint tenancy is survivorship, and a surviving joint tenant of real property does not take as a new acquisition under the laws of descent and distribution, but under the conveyance by which the joint tenancy was created, his estate merely being freed from participation of the other.
“A husband and wife owned real estate as ‘joint tenants with right of survivorship and not as tenants in common.’ He killed her and was convicted of second degree murder. A dispute arose concerning whether the husband, as surviving joint tenant, succeeded to the entire interest in the property so owned, or whether he was barred, by the provisions of G. S. 1949, 59-513, which reads:
“ ‘No person who shall be convicted of feloniously killing, or procuring the killing of, another person shall inherit or take by will or otherwise from such other person any portion of his estate.’
“Held: For reasons fully set forth in the opinion, the statute is inapplicable, and the husband, as surviving joint tenant, succeeded to the entire interest in the property in question.” (Syl. ¶¶ 1, 2.)
In view of the foregoing, and the plaintiff’s concession the provisions of K. S. A. 59-513 are not applicable since Isaac was not convicted of feloniously killing Della, we conclude the property owned by Della passed to Isaac in three different ways. First, the title to the residence in Abilene and nine shares of corporate stock having a combined appraised value of approximately $8,900, was in Della. Under the applicable law of descent and distribution, this property was inherited by Isaac as the surviving spouse of Della, pursuant to K. S. A. 59-504. (McAllister v. Fair, supra; Hogg v. Whitman, supra.) Second, at the time of their death, Della and Isaac owned property as joint tenants with right of survivorship and not as tenants in common, of the approximate value of $44,321, consisting of Series “E” United States Savings Bonds and checking accounts. Upon Della’s death, Isaac became the surviving joint tenant and sole owner of this property. His ownership of the whole interest did not result from inheritance, but rather from the contracts of acquisition. (In re Estate of Foster, supra.) Third, the total approximate value of the proceeds of life insurance contracts amounted to $9,400. Isaac became entitled to those proceeds under the terms of the contracts and by virtue of his being the survivor or being designated as beneficiary therein. (Noller v. Aetna Life Ins. Co., supra.) The district court properly concluded the property heretofore described and the proceeds of the life insurance policies were owned by the appellee-administrator of Isaac’s estate.
The plaintiff forcefully argues that, assuming Isaac’s administrator may be the owner of the property in question, the court, in the exercise of its equity power, should impress a constructive trust on the property for the benefit of the victim’s heirs, excluding the felonious killer. It is asserted the constructive trust remedy permits the murderer to take the legal title and then declares him trustee of the beneficial title for the heirs of the victim, excluding the killer; that the only possible time the equitable remedy of constructive trust would conflict with K. S. A. 59-513 is when the murderer has been convicted of his crime which then disqualifies him from taking any portion of the victim’s estate, and, as applied to the instant case, the application of the equitable remedy would merely supplement the remedy under K. S. A. 59-513, since the statutory remedy does not provide appropriate relief for the intentional killing.
The theory of a constructive trust is merely a method by which this court is asked to by-pass existing rules established by the legislature relating to the descent of property, to succession of estates in joint tenancy, and to life insurance proceeds. Exceptions to those statutes are not to be made or arbitrarily declared by this court. In all our prior decisions, the court has expressed reluctance in enforcing the legislative enactments, but it has followed the laws as enacted by the legislature. The reasoning used by the court has varied, but it may be said that in each case considered, the contention the court should impress a constructive trust was urged in one form or another, and rejected upon the ground the power to declare the rules for the descent, succession or distribution of all property was vested in the legislature, and, where no exception was made on account of criminal conduct, or where the condition creating the bar was not established, this court was not justified in reading into the statutes a clause disinheriting a spouse because of a felonious killing. And so here. In passing, we note that when the legislature has considered conditions barring a convicted felon from taking an inheritance or otherwise from a person feloniously killed by him, it has raised, not lowered, the degree of homicide, and has made no other provision for the descent of property where an intestate married couple has no children and one spouse kills the other, and then commits suicide. In view of the foregoing, we reject the plaintiff’s contention the court should impress the property in question with a constructive trust in favor of Della’s heirs. (McAllister v. Fair, supra; Hamblin v. Marchant, supra; Hogg v. Whitham, supra; Oberst v. Mooney, 135 Kan. 433, 10 P. 2d 846; Holler v. Aetna Life Ins. Co., supra; In re Estate of Foster, supra.)
As said in the McAllister and Foster cases, supra, it is abhorrent to the mind of every right-thinking person that one should receive property as a result of his crime, yet running through all of our cases are the positive statements that the public policy of this state is founded in the Constitution and the statutory enactments, and that this court is not warranted in reading into the plain statutory provisions an exception which those statutes themselves in no way suggest, or in holding they mean something else merely because the result under the particular circumstances leaves something to be desired.
The issue of taking evidence on the damages sought for Della’s wrongful death was reserved for further trial by the district court only “in the event it was determined that Della survived Isaac.” Upon application of the appellee administrator, the district court entered orders on all the remaining issues, including the wrongful death claim, in a journal entry, as follows:
“It is further ordered, adjudged and decreed That the foregoing findings and orders of this Court shall and do constitute a finding and order on every issue raised in the aforementioned consolidated cases, and upon the multiple claims and cross-claims of each of the parties hereto.”
The foregoing order constituted a judgment upon all the multiple claims pursuant to K. S. A. 60-254; there are no remaining issues undisposed of in the district court.
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The opinion of the court was delivered by
Fontron, J:
This is an appeal by the defendant, George A. Fountaine, from two sentences imposed against him on June 10, 1966. The case appears before this court for the third time and a brief history is essential to an understanding of the issues which are involved. In this opinion we will refer to the appellant as the defendant or Fountaine and to appellee as the state.
The defendant originally pleaded guilty to charges of second degree burglary and larceny on April 27, 1960. Evidence of two prior convictions was introduced prior to sentence and Fountaine was sentenced as an habitual criminal to confinement in the state penitentiary for a term of thirty years. The defendant appealed pro se from this sentence. This court in State v. Fountaine, 188 Kan. 190, 360 P. 2d 1119, upheld the sentence as being in compliance with applicable statutes. (See K. S. A. 21-107a and 21-109.)
In October, 1964, the defendant filed a motion praying for the recall of our mandate and for reinstatement of his appeal, the ground of his motion being that he was not furnished counsel on appeal. The defendant’s motion was sustained in light of Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 and the appeal was reinstated. Appellate counsel was then appointed to assist Fountaine.
In the second appeal, State v. Fountaine, 196 Kan. 638, 414 P. 2d 75, we held that the evidence of one of the two prior convictions offered by the state in invoking the provisions of the Habitual Criminal Act (K. S. A. 21-107a) had been erroneously admitted. The basis for our conclusion was that an adjudication of delinquency against a juvenile offender, pursuant to the Federal Juvenile Delinquency Act, was not a conviction of felony within the meaning of our Habitual Criminal Act and could not be used for the purpose of imposing increased punishment. We thereupon remanded the case to the court below, directing that the sentence be vacated and that defendant be resentenced.
On June 7, 1966, after the second Fountaine opinion was handed down, the state served notice on the defendant and his counsel that it intended to invoke the provisions of K. S. A. 21-107a by introducing evidence of one prior conviction. Thereafter, on June 10, 1966, Fountaine appeared in court with appointed counsel where his prior sentence was vacated. The state then introduced, and the court admitted, evidence of one prior conviction, described in the state’s motion. The court thereupon sentenced the defendant to a term of not less than ten nor more than twenty years for burglary in the second degree, and to a term of not to exceed ten years for larceny, the sentence for larceny to run consecutive to and not concurrently with the burglary sentence.
After sentence had been pronounced the court stated that it intended the sentence to relate back to April 27, 1960 (the date of the original sentence). Later, on September 28, 1966, the court entered an order nunc pro tunc crediting the defendant with all time served under the sentence of April 27, 1960.
In the present appeal the defendant launches a three-pronged attack upon the sentences of June 10, 1966. We shall consider all three points, although not necessarily in the order in which they appear in defendant’s brief.
We are aware of the fact that some six years had intervened between the time Fountaine was first sentenced and the date on which his first sentence was set aside and he was resentenced. However, that fact alone would not, as Fountaine insists, vitiate the later sentences or deprive the court of authority to pronounce them. The first sentence was held by us to be invalid, in proceedings initiated by the defendant, and the trial court was required to impose a legal sentence upon the defendant.
The rule is well settled in this jurisdiction that an invalid sentence may be changed to a new and valid sentence even though the illegal sentence may have been partially executed. (State v. O’Keith, 136 Kan. 283, 15 P. 2d 443; State v. Looney, 181 Kan. 402, 312 P. 2d 212; Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; Bridges v. State, 197 Kan. 704, 421 P. 2d 45; Chambers v. State, 199 Kan. 483, 430 P. 2d 241.)
In this respect Kansas follows the decided weight of authority in this country. (21 Am. Jur. 2d, Criminal Law, §572, p. 539; 24 C. J. S., Criminal Law, §1589b, pp. 603-607; Anno. 168 A. L. R. 706, 719.) In Powell v. Commonwealth, 182 Va. 327, 28 S. E. 2d 687, the court said:
“The authorities are unanimous in the view that a court may impose a valid sentence in substitution for one that is void, even though the execution of the void sentence has commenced.” (p. 340.)
The rule has been applied in cases where both the original sentence and the substituted or corrected sentence have been imposed under recidivist statutes. (See State v. Nelson, 160 Fla. 744, 36 So. 2d 427; People v. Waterman, 200 N. Y. S. 2d 103, 11 A. D. 2d 622.)
The defendant also questions the trial courts authority to re-sentence him as a second offender under the Habitual Criminal Act. His argument in this regard is that the state could not for the first time, on resentencing, introduce evidence of a prior conviction to enhance the sentence. The fallacy in this argument lies in the fact that the state had introduced evidence of the identical previous conviction at the time of Fountaine’s original sentence. Since this evidence was before the court when Fountaine was first sentenced, it could properly be considered when he was resentenced. (Bridges v. State, supra, pp. 706-707.)
The recent case of State v. Cox, 194 Kan. 120, 397 P. 2d 406, cited by the defendant, does not support his position. In that case, Cox was not sentenced originally as an habitual criminal and no evidence of previous convictions was introduced prior to the first sentence. Under those particular circumstances we said:
“. . . after the time for commitment to prison under a valid conviction has become fixed, whether the sentence imposed is valid or invalid, the state cannot introduce additional evidence for the purpose of increasing the sentence under which the defendant has been committed . . .” (pp. 124-125.)
We said also in Cox that where an original sentence is invalid the court, on resentencing, is limited, when imposing the correct sentence, to the same facts, conditions and circumstances which existed when the first sentence was pronounced. Since the prior conviction which the court considered in resentencing Fountaine was also in evidence at the time the original sentence was imposed, it is manifest that the Cox decision is not applicable here.
But the defendant maintains that evidence of the previous conviction was not properly before the court when he was originally sentenced. Fountaine predicates this claim on the contention that he had not been given prior notice of the state’s intention to invoke the provisions of the Habitual Criminal Act.
This contention is not new so far as the defendant is concerned. The identical issue was raised by him in his second appeal where it was considered by this court and rejected. (See State v. Fountaine, 196 Kan. 638, 640, 414 P. 2d 75.) Accordingly, this particular question has been resolved and is not subject to reconsideration in this appeal. Our rule is that when a subsequent appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal and reconsideration will not be given to such questions. (Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348, Stanolind Oil & Gas Co. v. Cities Service Gas Co., 181 Kan. 526, 313 P. 2d 279; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267.)
The point upon which the defendant places the greatest emphasis in this appeal is that a court, upon resentence, cannot impose a penalty greater than that originally imposed. As we have mentioned previously, the defendant was originally sentenced to thirty years (which in practical effect would be the equivalent of two concurrent sentences of that length), while on resentencing he was given ten to twenty years on the burglary charge, and one to ten on the larceny charge, the latter sentence to run consecutive to the first.
To a person unfamiliar with the operation of penal institutions, including the rules and regulations which govern the actual time served on penal sentences, the penalty pronounced against Fountaine on resentence would seem equal, in length of time, to that imposed originally. But the defendant points out that under the regulations of the Board of Probation and Parole of the State of Kansas the time he will actually have to serve to be eligible for conditional release under the new sentences is some six months longer than that required for eligibility for conditional release under the thirty year original sentence. This is conceded by the state, and is borne out by the Board’s regulations of July 1, 1966.
We think it unnecessary to decide whether the sentences last imposed were, in fact, greater than the original sentence. Assuming, for the purpose of argument, that the defendant is correct in his assertion that the consecutive sentences imposed on June 10, 1966, exceed in extent of punishment, the thirty year sentence pronounced originally, we nonetheless believe no error was committed in that regard.
Both sentences imposed on resentencing were authorized by law. Mr. Fountaine was a second felony offender or, in criminal parlance, a “two-time loser.” The Habitual Criminal Statute therefore required that he be punished by doubling the statutory punishment provided for a first conviction. (Childs v. Amrine, 155 Kan. 383, 125 P. 2d 349; Elliott v. Evans, 162-Kan. 447, 177 P. 2d 211.) This, the trial court did by doubling the statutory penalty for second degree burglary of not less than five nor more than ten years, (21-523) and by doubling the statutory penalty for larceny of not to exceed five years. (21-524.)
True, the two sentences were adjudged to run consecutively, whereas the original sentence was thirty years. It may not be said, however, that the court exceeded its statutory authority in ordering the sentences to be served consecutively. K. S. A. 62-1512 provides that where a person is convicted of two or more offenses charged in the same information, the sentencing judge shall prescribe whether they are to be served concurrently or consecutively. (See McCarty v. Hudspeth, 166 Kan. 476, 201 P. 2d 658.)
We believe the rule generally to be that where an original sentence is invalid a legal sentence may be imposed in substitution therefor, even though the latter sentence enlarges the punishment, so long as the substituted sentence does not exceed the maximum sentence allowed by law for the offense of which the defendant was convicted. In King v. United States, 98 F. 2d 291, 295, the court said:
“We think the law remains as the Murphy ease [Murphy v. Massachusetts, 177 U. S. 155, 44 L. Ed. 711, 20 S. Ct. 639] established it that when a void, or merely voidable, sentence has been vacated as the result of the prisoner’s own demands, he cannot complain if his second sentence increases his punishment.”
To like effect is United States v. Howell, 103 F. Supp. 714 where it was said:
“Even if the sentence had been increased, the law is settled that this may be done, on the theory that a void sentence in contemplation of law is nonexistent.” (p. 718.)
See, also, Mathes v. United States, 254 F. 2d 938; United States v. Bozza, 155 F. 2d 592, aff’d 330 U. S. 160, 91 L. Ed. 818, 67 S. Ct. 645; Tilghman v. Culver, Fla., 99 So. 2d 282, cert. den., 356 U. S. 953, 2 L. Ed. 2d 845, 78 S. Ct. 918; Boner v. Boles, Warden, 148 W. Va. 802, 137 S. E. 2d 418.
A qualification of the rule is generally recognized by recent authorities. Where an invalid sentence is set aside and a legal sentence is imposed, a prisoner is entitled to be credited with the time he has already' served on the void sentence. We find the modern view stated in 5 Wharton’s Criminal Law and Procedure, §2216, p. 433:
“By what appears to be the modern view, one who has served in prison under a sentence is entitled to have time so served credited when, because the original sentence was invalid, it is necessary that he be resentenced.”
See, also, Anno. 35 A. L. R. 2d 1283, pp. 1288-1291.
Our court has recognized the foregoing qualification to the rule as far back as In re Lester, 128 Kan. 784, 280 Pac. 758, where, in ordering that a valid sentence be pronounced in lieu of one which was void, the court directed that full credit be given the prisoner for all time served under the void sentence. In a case of more recent vintage, McCarty v. Hudspeth, supra, we held that two prior convictions used by the court in imposing two life sentences under the Habitual Criminal Act were void and, in returning the case for resentencing, we said that whatever the new sentences might be, the first one should be deemed to have commenced to run as of the date the prisoner was first committed to the penitentiary.
The credit to be accorded on the new and valid sentence should include, in our judgment, whatever good time and incentive credits may have been earned by the prisoner while serving the invalid sentence. In Little v. Wainwright, Fla., 161 So. 2d 213, the Florida Supreme Court said:
“. . . It is possible for the trial judge on resentencing to impose a greater sentence than he imposed before, State ex. rel. Rhoden v. Chapman, 127 Fla. 9, 172 So. 56, providing the total of the term on resentencing plus the prior time served (with gain time awarded) does not exceed the maximum allowed by statute. Tilghman v. Culver, 99 So. 2d 282, Fla. 1957, and cited cases. . . . ” (p. 214-215.)
See, also, Short v. United States, 344 F. 2d 550; Lewis v. Commonwealth, 329 Mass. 445, 108 N. E. 2d 922, 35 A. L. R. 2d 1277.
The reason for crediting good time and incentive credits already earned upon the new sentence is obvious. Were it otherwise a defendant might well find himself penalized for a judicial error for which he was in nowise responsible. In an article appearing in 25 Montana Law Review, “Time Served Under A Reversed Sentence,” the author, Burton C. Agata, says:
“The result [of resentencing where the original sentence has been found invalid] should be that the defendant will serve no more than he would have served in tire absence of error and if a minimum term is involved, he would be eligible to be considered for release no later than he would have been in the absence of error.” (pp. 27-28.)
We believe it perfectly clear that the trial court intended in this case that the defendant lose neither time already served nor good time and incentive credits already earned under the original sentence. We believe, also, that practical effect was given to that stated intention by the court’s order of September 28, 1966, crediting Fountaine with all the time served under the original sentence. This order, in our judgment, includes not only the days actually served on the void sentence but the good time and incentive credits which had accrued, as well.
So far as parole eligibility is concerned, the defendant is far better off under the new or substituted sentences than under the old one. Under regulations promulgated by the Board of Probation and Parole relating to parole eligibility, the defendant would never have been eligible for parole under the flat sentence of thirty years, but he will be entitled to such consideration within something less than a year after he has served his first sentence less good time and incentive credits earned (a matter, according to the Board’s regulations, of some ten years and six months). Thus it appears to us that Mr. Fountaine is in just as advantageous a position now as he would .have been had the void sentence never intervened.
We do not wish to be understood as saying that a court would be justified, in every instance, in imposing an increased penalty after an invalid sentence had been vacated. Enhanced punishment imposed, for example, out of pique, resentment, or other unworthy motive, could hardly be tolerated. But in the present case no improper motive may be attributed to the court. At the time of the original sentence, the court said it had chosen not to give life imprisonment but to double the maximum penalty for burglary and larceny — the crimes for which Fountaine had been convicted a second time. It is logical to assume that the court’s view of an appropriate sentence had undergone no change. W¿ see no abuse of discretion on its part.
Under somewhat similar circumstances, where the sentencing court had adjudged an erroneous sentence, the Supreme Court of Oregon, in State v. Froembling, 237 Or. 616, 391 P. 2d 390, had this to say:
“Here the error in the original proceeding consisted of imposing the wrong sentence for the crime charged. When that is the case the trial judge must change the sentence to correct tire error and he must exercise his discretion anew in arriving at what he considers an appropriate sentence. He is entitled to fix the new sentence within the maximum allowable under the applicable statute so that it will most appropriately fit the circumstances of the case as he sees them. . . .” (p. 619.)
None of the cases cited by defendant to sustain his argument that the present sentences are invalid can be said to be in point. Each case cited deals with a situation where the original sentence was valid, not invalid.
Particular reliance is placed on Veronee v. State, 193 Kan. 681, 396 P. 2d 360. In that case the court initially imposed two sentences to run concurrently. While awaiting transfer to the Kansas State Industrial Reformatory, the defendant escaped from jail. After his capture, the court modified its previous action by ordering that the sentences run consecutively. In reversing, we held that the original concurrent sentences were valid and the court was not empowered to modify those sentences under what is now K. S. A. 62-2239, by increasing them.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for damages commenced by the plaintiff-appellants, Frank J. Casey, and Freda J. Casey, his wife, against the Phillips Pipeline Company and the Sheehan Pipeline Company, for the destruction of a crop of zoysia grass, the loss of marine life in the plaintiffs’ pond or small lake, the filling of the lake, and loss of alfalfa and bluegrass in Phillips Pipeline right of way. The plaintiffs have appealed from orders of the district court sustaining separate motions to dismiss their cause of action.
The plaintiffs are the owners of a 25-acre farm on Pflumm Road, Lenexa, Kansas. The farm had two ponds, one being slightly larger than the other and referred to by the plaintiffs as the “lake.” This larger pond (hereafter referred to as the lake) was approximately sixteen feet deep at its deepest point (at the northeast end where the dam and spillway were located) and was about a half acre in surface. The lake extended to the west and southwest and about twenty feet of the southwest end of the lake extended into a right of way easement owned by the defendant, Phillips Pipeline Company. The right of way contained several pipelines owned by Phillips, and crossed plaintiffs’ property in almost a true north-south direction. Three of the lines were exposed in the water which was two or three feet deep beneath them and extended back west about twenty feet.
The lake was spring fed and was the source of water for the plaintiffs’ bathrooms.
On August 28, 1963, Casey left his home in Johnson County at 2:00 a. m. with a truck and trailer and drove to Link’s Nursery at St. Louis, Missouri, to purchase Meyer zoysia stolons. He arrived at the nursery at 6:00 a. m. The nursery had started cutting the zoysia sod at 5:00 a. m. and the sod was ground into stolons and loaded in the truck and trailer. Casey drove home, arriving late in the afternoon. He had a crew of men waiting to plant the stolons on a four-acre tract south of his house. The actual planting took about two hours. The stolons were put in a manure spreader and spread on the ground, and were pressed into the soil with a cultipacker which was pulled crossways and longways over the field.
Casey had carefully prepared the four-acre tract for planting the zoysia stolons; it was in excellent condition. The soil had been plowed, and was disced and harrowed weekly for two months before the stolons were planted; it was level and all of the air pockets had been worked out and everything had been kept off the area.
Casey chose August 28, to plant the stolons, and commenced watering them with a sprinkler system from the lake. He had the water system all set up and used a gasoline engine and pump to get the water from the lake. A plastic pipe was used for the intake, which he placed on a ten-foot board to hold the pipe in the water so it would not suck air. It was placed on the board so that it “pulled water off the top of the lake.” Casey’s wife and son kept gasoline in the engine and the pump ran around the clock.
As customary for zoysia grass, it immediately started to turn brown, then after about five days the grass started to green up “all over the area.”
During the latter part of August, Phillips “hired” the Sheehan Pipeline Construction Company to construct another pipeline and do repair work on one of the high pressure gasoline lines in the right of way crossing the plaintiffs’ property. Sheehan began work on the plaintiffs’ premises on August 28, by making a roadway across the southwest portion of the lake where the pipelines were exposed. It filled in the two to three feet of water with dirt and then put another two feet of dirt on top of the half exposed pipes for a roadway across the lake. The roadway was twelve feet wide with strength enough to allow tractors, trucks and bulldozers to cross over it. There was ¿vidence that when Sheehan finished the construction and repair work, the dirt used to make the roadway was left there and it washed into the lake causing the depth of water about fifteen feet from the dam to be probably ten inches to a foot deep. Prior to that time, the water was about sixteen feet deep at the spillway.
By September 4, the grass was greened up all over the field and Casey was confident he was going to have a crop. At noon on that date he left for Oklahoma to play golf. He instructed his wife to continue to water the grass until he returned.
At about 3:30 p. m. on September 4, a high pressure gasoline line in the right of way was punctured by Sheehan, allowing the gasoline to escape, which formed a white cloud above the lake area. Mrs. Casey was home at that time and could see the white cloud over the lake area and attempted to go down to the lake but was motioned back by one of the pipeline workers who was standing in the pasture. Another of Sheehan’s workmen came up to the house and asked that she turn off any burners which she might have on. Mrs. Casey turned off her stove and hot-water tank. He told her to turn them off because they had a gas line break and the gasoline was very potent. At about 9:00 o’clock that evening, the workman came back and told her that everything had been taken care of and he relit the hot-water tank for her.
When Casey returned home from his golf trip some five or six days later, he could not get a good look at the grass because it was raining, but when he was able to look it over, he noticed the grass had started to turn brown again. He continued to water it, but the grass never regained its green color and no crop of zoysia grass was ever taken off the field. A photograph in the record showed dead marine life and oil and gasoline streaks along the edge of the lake.
The plaintiffs commenced this action and alleged Phillips “hired” Sheehan “to do certain repair and replacement work to a pipeline over the property of the plaintiffs” on an easement owned by Phillips and filed of record in Johnson County. This allegation was admitted by both defendants. The petition then alleged that both defendants, in carrying out the repair and replacement of the pipeline, negligently caused gasoline to escape from the pipeline into plaintiffs’ lake, which destroyed all the marine life and contaminated the water the plaintiffs used to irrigate the zoysia grass which was completely destroyed from the use of the gasoline-tainted water. The petition alleged that in moving the dirt in repairing the pipeline, both defendants caused dirt to erode into plaintiffs’ lake, filling the same and rendering it useless as a lake and for the purposes for which it was being used by the plaintiffs. It was further alleged that under Phillips’ easement, the defendants were contractually obligated to pay for damages caused to plaintiffs’ property in replacing and repairing the pipeline; that in performing the work, both defendants damaged the plaintiffs’ property in the amount of $500. It was further alleged that for negligently allowing gasoline to escape into the lake which killed the marine life; causing the destruction of the zoysia grass by use of the gasoline-tainted water; and allowing the lake to fill with dirt, the plaintiffs were damaged in the amount of $20,000. Judgment in the amount of $20,500 was prayed for against each defendant.
The case was tried to a jury on March 28, 1966. Upon completion of the plaintiffs’ evidence, both defendants made separate motions to dismiss the action upon the grounds the plaintiffs failed to show any negligence on the part of either defendant and there was no evidence that gasoline had in fact killed the zoysia grass. Further, that there was no evidence the zoysia grass had been destroyed as contended by the plaintiffs.
The district court sustained the defendants’ motions to dismiss the action except it entered judgment against Sheehan for nominal damages of $25 for loss of marine life, and $50 against Phillips for the loss of alfalfa and bluegrass destroyed in the right of way.
In argument on the motion for a new trial, the plaintiffs urged that the district court erred in dismissing the plaintiffs’ cause of action because there was sufficient evidence requiring the submission of the case to the jury, and in precluding the testimony of two expert witnesses with respect to the value of the destroyed zoysia grass.
At the trial, the plaintiffs called two expert witnesses, William Latta and Chester Mendenhall, to testify to the value of the eight-day-old zoysia grass. The district corut sustained the defendants’ objections to both witnesses, conceding that although they were experts in the field at the time of trial, they were not qualified to testify as to the value of the zoysia grass because Latta’s opinion was based “on hearsay” since he referred to trade journals not admitted in evidence to prove the value of the grass on September 4, 1963, and because Mendenhall was not an expert on zoysia grass “in this stage of growth and the condition the evidence has shown this was in,” and that neither witness had seen the grass in question.
We are of the opinion the district court erred in refusing to pérmit Latta and Mendenhall to testify as to the value of the crop of zoysia grass. We shall summarize the testimony of each witness and discuss the legal principles applicable.
Latta’s testimony was impressive and established his qualifications. He testified he was manager of the Princeton Turf Farms at Riverside, Missouri, and came to the farm in 1964; that Princeton Turf Farms are the second largest growers of commercial turfs in America, with 515 acres under Latta’s management including seven acres of zoysia grass; that he attended short courses at Rutgers University; Columbia; Manhattan, Kansas; Lincoln, Nebraska; and Ames, Iowa, and had received considerable schooling from his company.' The defendants make no contention Latta was not an expert with respect to zoysia grass and its price at the time of the trial.
Latta testified that Meyer zoysia grass was vegetative — regrowth only; that it is a hybrid plant and will not grow from seed; that a fine seed bed is prepared to a depth of three to six inches before planting; that zoysia is lifted in pads from the field and run through a chopper to cut it into small pieces, separating the pads into stolons; that stolons are put in a manure spreader and spread over the ground and pressed into the soil by a disc packer so they are partially covered by dirt and then irrigation is started; that watering is continued ordinarily for approximately ten days and the grass is generally established within that period; that if it becomes established and starts to green up, irrigation is stopped and after that nature takes its course.
Latta testified that zoysia grass may be planted any time after May 15, through the period of October 15; that with reference to the plaintiffs’ zoysia grass planted on August 28, he stated it would have been more desirable had it been planted earlier, but he felt that the planting was adequate; that he was experienced in growing zoysia grass from both plugs and stolons, and had prepared zoysia grass for market in the stolon form much the same as were the stolons prepared which the plaintiff purchased; that after the stolons are planted, the plant goes into a state of shock and has a tendency to “brown off’ for three or four days; that if the soil is kept moist and after the shock period, the grass greens back up and the grower then knows “he has established the seedling or stolon at that time.”
Latta further testified that in managing the turf farm he had occasion to sell zoysia grass at various stages of its development; that he had sold it in his own area and was acquainted with the value of zoysia grass; that it was a part of his business to establish the price of the grass for his company; that he was not with Princeton Turf Farms in 1963, but had available the price of zoysia in September, 1963, from various catalogues, but did not have them with him; that he handles the pricing for his company in the Kansas City area, and that with respect to the zoysia grass in question it was his opinion, if the grass had begun to green up, he would consider it to be established and once established, he would consider it to have its mature value. When asked if he knew the present wholesale price of zoysia grass, the court sustained the defendants’ objection, ruling that the wholesale price must be the price on the date involved. Latta was unable to give the wholesale price of zoysia grass on September 4, 1963, but stated he could do so by checking company research data and trade journals.
Latta was recalled the following day and out of the presence and hearing of the jury, he testified that he was not in the zoysia business on September 4, 1963, and to arrive at the value of the zoysia grass it was necessary for him to read various market research data of his company. He described market research data, referred to by the district court as trade journals, as information compiled from existing circumstances regarding prices, whether a product is saleable and what possible volumes might be involved; that current prices and market values for September 4, 1963, were included in the research data; that the market research data is compiled by him and by all individuals engaged in growing, processing, and selling the grass, and that this was standard operating procedure in his business and used by him at all times in the management of the farm and the sale of zoysia grass. In response to a hypothetical question, taking into account all of the factors of plaintiffs’ zoysia crop, Latta stated he had an opinion as to the value of the zoysia crop on September 4, 1963. The district court sustained the defendants’ objection upon the grounds heretofore stated.
As indicated, the district cotut rejected Mendenhall’s testimony as to the value of the plaintiffs’ zoysia grass on September 4, 1963, ruling he was not qualified as an expert at the stage of growth and condition in which the evidence disclosed the plaintiffs’ grass to be on that date. The evidence showed Mendenhall to have august credentials to testify. He was a resident of Overland Park and had been a golf superintendent at Wichita and at Kansas City where he was the superintendent or greens keeper at the Mission Hills Country Club for 31 years. He brought the first zoysia into the Kansas City area in 1949 when he was doing extension work for the Green Section of the United States Golf Association. He was a member of the Green Section for a number of years and during the last 30 years at Mission Hills, he had devoted his entire life to turf grasses. He testified he had gone to seminars in connection with the raising of zoysia and other grasses; that he was experienced with zoysia grass and used some at Mission Hills and had helped with other golf courses. He testified that in 1963, he was actively engaged in the business of raising turf, including zoysia grass at a small nursery; that he sold it in 1963 to people who came to his home to buy it on a commercial basis for their lawns, selling 50 square yards to one person and probably 5,000 to 6,000 plugs to individuals, and he considered his price a fair price for the commercial sale of zoysia. He further testified that he had planted zoysia grass by stolons on a small scale but had never actually been in contact with the planting of large areas; that when zoysia is planted by stolons, its appearance for the first three or four days is rather brownish; that in good growing weather it may retain the brownish color for about a week; that thereafter green shoots begin to show and the color changes with the green shoots coming out, and that the sign of life in the stolons is the green shoots coming out of the nodes. He testified he had not been to the plaintiffs’ farm and had not seen any zoysia grass there.
After testifying as to the preparation of the ground for planting and describing what was a good agriculture practice in preparing a bed in which to plant zoysia stolons, Mendenall was asked a hypothetical question taking into account all the conditions and factors disclosed by the evidence with respect to the planting and growth of the plaintiffs’ zoysia stolons, whether he had an opinion of the commercial value of the plaintiffs’ grass on September 4, 1963, and upon the defendants’ objection, the court ruled he was not qualified to give his opinion as to the value of the grass on that date.
K. S. A. 60-456 relates to expert and other opinion testimony, and subsection (b) reads:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
The statute requires that the expert witness base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. “Perceived” means knowledge acquired through one’s own senses (K. S. A. 60-459 [c]), and “made known” refers to facts put in evidence. The rule must be considered in connection with K. S. A. 60-458 by which it is unnecessary for the witness to specify the data before expressing his opinion.
It may be stated the parties, as well as the district court, at the time of trial on March 28, 1966, considered that the testimony of both Latta and Mendenhall clearly showed they possessed special and peculiar knowledge and experience to establish their expertise in the field of growing, processing and the sale of zoysia grass, to qualify them as expert witnesses. (K. S. A. 60-408; 60-419.) No claim is made otherwise. As indicated, the district court rejected Latta’s expert testimony as to the value of the plaintiffs’ zoysia crop on September 4, 1963, because it was based “pretty much on hearsay” since he had referred to market research data and trade journals not admitted in evidence, and because he was not familiar with the grass business in 1963, and Mendenhall’s testimony was rejected because the court considered it was not possible for him to give an opinion as to value of the crop “in [the] stage of growth and the condition the evidence [showed it] was in,” and because neither witness had seen the plaintiffs’ crop.
We think the district court erred in ruling that Latta could not give an opinion as to value in 1963 by utilizing market research data and trade journals. Publications such as trade journals and market reports are considered to be competent evidence in and of themselves. This court has held that in proving the fact of market value, accredited price-current lists and market reports, including those published in trade journals or newspapers which are accepted as trustworthy by growers and dealers throughout the trade territory, are admissible as an exception to the hearsay rule. (Evans v. Mose ley, 84 Kan. 322, 330, 114 Pac. 374; Ray v. Railway Co., 90 Kan. 244, 248, 133 Pac. 847; Poultry Co. v. Railroad Co., 99 Kan. 540, 543, 163 Pac. 448; Nelson v. Railroad Co., 116 Kan. 35, 38, 225 Pac. 1065; Webber v. Umback, 125 Kan. 117, 263 Pac. 786.) See, also, K. S. A. 60-460 (bb); VI Wigmore on Evidence, §1704, p. 26.
It has likewise been held that an expert witness may give his opinion even though it is founded not upon personal observation but upon knowledge gained from books and treatises in the field and such use of the publications does not constitute a hearsay use, and a duly qualified witness may be permitted to base his testimony as to the value of a commodity in part, at least, upon commercial circulars, market reports, or trade journal quotations. (Remsberg v. Cement Co., 73 Kan. 66, 84 Pac. 548; Hoxsie v. Empire Lumber Co., 41 Minn. 548, 43 N. W. 476; Shock v. Mrs. Ragsdale’s Foods Co., 228 S. W. 2d 353, 354 [Tex. Civ. App. 1950]; Glantz v. Freedman, 100 C. A. 611, 280 Pac. 704; Betts v. Southern Cal. Etc. Exchange, 144 Cal. 402, 409, 77 Pac. 993; Urquhart v. Barnes, 335 S. W. 2d 666, [Tex. Civ. App. 1960]; Shahmoon v. Indus., Inc. v. Dept. of Health N. J., 93 N. J. Super. 272, 225 A. 2d 699; Miller v. Travelers Insurance Co., 111 Ga. App. 245, 247, 141 S. E. 2d 223; State Roads v. Creswell, 235 Md. 220, 201 A. 2d 328; City of Terre Haute v. Terre Haute Wtr. Wks., 133 Ind. App. 232, 239, 180 N. E. 2d 110.) See, also, Anno. 43 A. L. R. 1200; McCormick on Evidence, §296, p. 620; II Wigmore on Evidence, §665b, p. 784; III Wigmore on Evidence, §711, p. 41; 29 Am. Jur. 2d, Evidence, §893, pp. 999, 1000. In Remsberg v. Cement Co., supra, it was said:
. . Many of these facts and opinions testified to were certainly matters of technical knowledge and science, and were proper matters of expert testimony; but the court afterward refused to consider this evidence, on the ground that the evidence was in effect a repetition of what the witness had read in books and was not based upon his personal observation and experience. In this there was error. The witness, in the main at least, did not undertake to repeat what any author or book said on a given subject, but gave his opinion from the weight of authorities as it appeared to him, necessarily calling his own experience to his aid in determining such weight.” (1. c. 68.)
Value in the business sense consists largely of the opinions of persons familiar with the market, and those opinions are largely what is said and reported by others. Trade journals are generally recognized sources of information covering values, and the record contains testimony to that effect. When an expert witness testifies as to value, relying in part on market data and trade journals, such data and journals do not have to be admitted in evidence before his testimony is admissible. (Hoxsie v. Empire Lumber Co., supra; Shock v. Mrs. Ragsdale’s Foods Co., supra; Glantz v. Freedman, supra; Betts v. Southern Cal. Etc. Exchange, supra; Urquhart v. Barnes, supra; Shahmoon Indus., Inc., v. Dept. of Health N. J., supra; City of Terre Haute v. Terre Haute Wtr. Wks., supra.) The fact that Latta consulted market research data and quotations in trade journals as a source of knowledge of the value in 1963 did not render his opinion inadmissible under any exclusionary rule, nor was it hearsay. (Shock v. Mrs. Ragsdale’s Foods Co., supra; Malone v. New York Life Ins. Co., 148 Kan. 555, 83 P. 2d 639.)
The district court gave as an additional reason for rejecting Latta’s testimony, that he was not in the grass business in 1963. This, likewise, was error. An expert witness need not have acquired his special knowledge or experience, which he is to present to a jury, at a time before the date of the occurrence of the event which is in issue before the jury. (Walton v. Sherwin-Williams Co., 191 F. 2d 277, 284.) It was unnecessary for Latta to have acquired his special knowledge or experience in the grass business on or before September, 1963, and he was competent to testify on the subject, although he did not have actual personal knowledge of any particular sales. (Hoxsie v. Empire Lumber Co., supra.) His opinion of value sought to be introduced was based in part upon market data and trade journal quotations of his company as of September 1963, and, as we have seen, he was qualified to give his opinion based in part on those reports.
We now ton to Mendenhall’s expert testimony which was rejected by the district court because he was not familiar with the stage of growth and the condition the evidence showed the plaintiffs’ grass was in. The record is replete with his qualifications and the district corut expressly stated that both he and Latta were experts in the field. He was actively engaged in the business of raising zoysia grass in 1963, and sold it during that summer on a commercial basis and considered his price fair and reasonable. He had planted zoysia grass by stolons and testified to its characteristics in growing therefrom. There is no rule requiring that the expert have a special knowledge of every aspect of his field. The test of competency of an expert witness is whether he discloses sufficient knowledge of his subject to entitle his opinion to go to the jury. (K. S. A. 60-419, 60-456.) Where an expert witness has disclosed a sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of degree of his knowledge goes more to the weight of the evidence than to admissibility. (Denver v. Railway Co., 96 Kan. 154, 150 Pac. 562; Malone v. New York Life Ins. Co., supra.) In Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039, rehearing denied 183 Kan. 471, 328 P. 2d 358, it was contended one of the plaintiff’s expert witnesses was not qualified to testify on matters concerning oil field reserves because the witness did not have degrees in the fields of geological engineering or in petroleum geology. It was said:
“We are not disposed to quibble over the nature of the degree Mr. Powers has in geology. He was educated in geology and by experience over many years in working with oil companies is qualified to testify as an expert and state his opinion . . .” (1. c. 222.)
We are of the opinion the district court erred in rejecting Mendenhall’s testimony. The weight to be given his opinion as an expert witness testifying as to the value of the plaintiffs’ grass is a matter for argument of counsel, and determination by the jury.
The district court stated that one of the reasons it rejected both Latta’s and Mendenhall’s opinions was that neither witness had seen the plaintiffs’ grass. McCormick on Evidence, Sec. 296, p. 620, states the rule that “[a]n expert witness may give his opinion though it is founded not upon personal observation . . .” Under the facts and circumstances prevailing, the fact that neither Latta nor Mendenhall had seen the plaintiffs’ crop at the time of its alleged destruction affected the weight rather than the competency of their .testimony. (Big Chief Sales Co., Inc. v. Lowe, 178 Kan. 33, 45, 283 P. 2d 480; Sacramento Suburban Fruit Lands Co. v. Klaffenbach, 40 F. 2d 899; Bagdasarian v. Gragnon, 31 C. 2d 744, 192 P. 2d 935; Brill v. Mushinsky, 194 F. 2d 158, 159; United States v. 2,877.37 Acres of L. in Harris County, Tex., 52 F. Supp. 696). This court has recognized that a growing crop has a value and that a liberal rule as to proof thereof should be applied. (Sayers v. Railway Co., 82 Kan. 123, 127, 128, 107 Pac. 641.) After both witnesses have testified as to the value of the plaintiffs’ crop based upon the factors relating thereto as stated in the hypothetical questions, the means and extent of their information, and therefore the worth of their opinions, may be developed at length on cross-examination. (Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539.)
In our opinion, the plaintiffs’ witnesses were eminently qualified as experts, specialized by experience, education and technical training in the zoysia grass business. Under all the facts and circumstances fully disclosed by the record and pursuant to K. S. A. 60-456, Latta and Mendenhall were qualified to give their opinions concerning the value of the plaintiffs’ crop.
The defendants contend there was no evidence that gasoline from the punctured high-pressure line got into the lake, or if it did, that gasoline was pumped with water from the lake onto the plaintiffs’ zoysia crop. The contention lacks merit. The evidence was that the portion of the high-pressure gasoline pipeline which was punctured was in close proximity to .the plaintiffs’ lake; that the line ■contained premium-base gasoline which was under such pressure as to form a white cloud around and above the lake which the plaintiff’s wife could see over the barn; that the defendants’ employees were so concerned about the potent gasoline escaping from the high-pressure line that they “waived” the plaintiff’s wife away from the area and one of them went to her home and asked her tó turn off all burners in the house; that gasoline was discharged for approximately six hours when the employee returned and told the plaintiff’s wife they had the problem under control and he relit the hot-water tank; that there was gasoline in the lake and that marine life had died, and that the plastic intake pipe for the plaintiffs’ pump took water “off the surface” of the lake which was pumped onto the grass, and, although the grass had greened up “all over” and the plaintiff “was confident he was going to have a crop,” after September 4, 1963, the grass toned brown and died. This evidence was circumstantial evidence and strongly tended to show that gasoline-tainted water from the lake was pumped onto the grass causing it to die. It is common knowledge that gasoline has a specific gravity less than water and when the two become mixed, gasoline will “float” on top of water.
Circumstantial evidence in law is evidence that tends to prove a fact in issue by proving other events or circumstances which, according to the common experience of mankind, are usually or always attended by the fact in issue, and therefore affords a basis for a reasonable inference by the jury or court of the occurrence of the fact in issue. (Wolff v. Employers Fire Ins. Co., 282 Ky. 824, 140 S. W. 2d 640, 130 A. L. R. 682.) Our cases to the same effect are Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162; Briggs v. Burk, 174 Kan. 440, 257 P. 2d 164; Security Milling Co. v. Ketchum, 185 Kan. 694, 347 P. 2d 433; Hutchens v. McClure, 176 Kan. 43, 269 P. 2d 473. It is within the province of the jury to weigh all conflicting evidence and to draw all reasonable conclusions from the evidence introduced.
A cause of action may be proved by circumstantial evidence (Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 217 P. 2d 906; Asche v. Matthews, 136 Kan. 740, 18 P. 2d 177), and such evidence, in order to be sufficient to sustain a verdict of a jury, need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. (Security Mill Co. v. Ketchum, supra; Sternbock v. Consolidated Gas Utilities Corp., supra; Lane v. Insurance Co., 113 Kan. 365, 214 Pac. 92.) Likewise, proximate causation in a proper case may be shown by circumstantial evidence. (Klassen v. Creamery Co., 160 Kan. 697, 165 P. 2d 601; Rusch v. Phillips Petroleum Co., 163 Kan. 11, 180 P. 2d 270.) In Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876, it was held:
“The fact that soon after the passing of an engine a fire starts near a railway-track in an enclosed field covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.” (Syl. ¶1.)
See, also, Thomas v. Kansas City Southern Rly. Co., 197 Kan. 747, 421 P. 2d 51. If the circumstances present a reasonably adequate cause, they will be sufficient to go to the jury, even though some other cause which may be suggested may not be excluded.
In the instant case the evidence was undisputed that the pipeline was negligently punctured by Sheehan’s employees, causing potent gasoline to escape under high pressure which formed a cloud above and around the lake causing the gasoline to get in the lake and water from the surface was pumped onto the grass. Such evidence affords a basis for a reasonable inference by a jury that gasoline was pumped onto the grass, causing it to die. As was said in Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215:
“It is true . . . that presumptions may not be based upon presumptions, and that it will not do to consider chance or circumstantial evidence having but a questionable or circumstantial basis of fact, but this is very far from announcing that an undisputed fact may not be used as a basis from which to draw a reasonable conclusion . . .” (l. c. 617.)
The defendants contend the proof is short of showing that gasoline-tainted water will kill zoysia grass. The contention abounds on the ridiculous. This court takes cognizance of the fact that gasoline is a highly volatile liquid hydrocarbon mixture containing antioxidants harmful to the natural growth of vegetation. Judicial notice takes the place of proof and is of equal force. (Insurance Office v. Woolenmill Co., 72 Kan. 41, 82, Pac. 513; Brandon v. Lozier-Broderick & Gordon, 160 Kan. 506, 163 P. 2d 384.) K. S. A. 60-409 (b) (3) provides that judicial notice may be taken without request by a party, of facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. This court takes cognizance without proof of fact of the general qualities of gasoline, and that when applied to a lawn, turf, or zoysia, the grass will die.
The defendants argue the district court did not err in sustaining Phillips’ motion to dismiss with respect to the destruction of the zoysia crop and the filling in of the lake with dirt. Phillips argues that the relationship existing between Sheehan and it was that of an independent contractor, and in any event the work was not inherently dangerous, and cites and relies upon Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, 45 L. R. A. [ns] 930, Ann. Cas. 1912A 590, and Phillips Pipeline Co. v. Kansas Cold Storage, Inc., 192 Kan. 480, 389 P. 2d 766. We do not agree. As indicated, the plaintiffs pleaded and the defendants both admitted that “Sheehan Pipeline Company was hired by the Phillips Pipeline Company to do certain repair and replacement work.” (Emphasis supplied.)
On their face, the admissions of the defendants are to the effect that Phillips was laying the pipeline and had “hired” Sheehan to do the work. It is not contended the work was not in progress when the break in the pipeline occurred. Considering the entire record, the plaintiffs should be given the benefit of every inference that can be reasonably drawn from the pleadings and evidence viewed in the light most favorable to their claim. (Barron and Holtzoff, Vol. 2B, §919, pp. 146, 147.) In view of the fact that the law requires that, if on the facts the relief sought could be granted, a case should not be involuntarily dismissed. (Barron and Holtzoff, op. cit. supra, p. 148; K.S.A. 60-241 [b].)
We are of the opinion there was substantial evidence from which the inference could be reasonably drawn that Sheehan was the agent, or at least the servant, of Phillips in the work being done, and the district court erred in sustaining Phillips’ motion to dismiss the plaintiffs’ claim for the destruction of the zoysia crop and the filling of the lake with dirt. Likewise, we are of the opinion the district court erred in sustaining Sheehan’s motion to dismiss the plaintiffs’ claims.
Other points have been raised by the parties, but it is unnecessary to decide them. The district court erred in rendering judgment for nominal damages against each defendant and in overruling the plaintiffs’ motion for a new trial. Its decision is reversed with directions to set aside such judgments and to grant the plaintiffs a new trial.
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The opinion of the court was delivered by
Harman, C.:
This is a workmens compensation proceeding brought by the widow and minor child of Donald J. Siebert to obtain compensation for his death. The workmen’s compensation examiner and the director, upon review, denied such an award. Upon appeal by claimants the district court granted it.
The sole question presented in this appeal by respondents and their insurance carrier is whether the district court’s conclusion that the death of the workman arose out of and in the course of his employment is supported by the evidence.
The evidentiaiy facts and circumstances surrounding the death, to the extent they were developed at the hearing before the examiner, are not in dispute. There is dispute as to the interpretation and conclusion to be drawn from those facts — in view of their paucity — and as to that which actually occurred, as shown by the evidence.
The story is perhaps best told initially by stating the comprehensive findings of fact made by the district court as follows:
“1. Claimants, Marion A. Siebert, age 23 years, and David D. Siebert, age 2 years on April 23, 1964, are respectively the widow, and minor child of Donald J. Siebert, deceased, and were wholly dependent upon his earnings.
“2. On June 14, 1963, Donald J. Siebert met his death, at which time he was employed as a workman by Orville J. Hoch. The parties are governed by the Kansas Workmen’s Act. The employer had actual knowledge of the accident and written claim for compensation was served within the prescribed time. The average annual earnings were sufficient for the maximum payable. Funeral and burial expenses were $1,134.32.
“3. The workman, Donald J. Siebert, was employed as manager of a distribution dairy at Topeka, Kansas. His employer lived and spent most of his time operating another business in Emporia, Kansas. The employer made weekly visits to the Topeka dairy and telephoned Siebert nearly every day. The dairy business consisted of the house to house delivery of milk to consumers or customers and the operation of a retail store for the sale of dairy products. The persons who were employed in the retail store worked regular hours. The employer established the hours of public business for the retail store and the pay scale. Siebert was required to report changes in employees. Except as to these matters, Siebert was in control of his own hours and schedule as long as he got the job done, and it was left up to him to execute the work as he desired without direction or control of the employer, except as to the result of the operation. The employment included authority to be in the business location at any time. The employer had no knowledge of the full time required to perform the various duties or the hours when performed but all of the duties carried out were within the employer’s authorization.
“Siebert was a good worker, worked long hours and it would have been an exception if he were off and away from work as long as eight hours at a time. In general, he performed the following duties. He operated the delivery route. As deliveryman, he had the responsibility of loading the delivery truck and delivering the milk to consumers. The time of loading was left to his determination: On occasions after he had closed for the night at 10:30 p. m., he would, after going home, return to the premises and load the delivery truck. Delivery would require all morning and would be finished about 1:30 p. m. The starting time varied, depending on demand volume of that day. In the afternoon, he would solicit new accounts. He supervised the other employees. He was responsible for the opening and closing of the business place. The retail store closed at 10:30 p. m. His wife was employed as a bookkeeper. After closing, she would assist him. He counted the money from the sources of income, appropriate book entries were made to the customers, retail store, or other source accounts and for the employer. On Saturday, he regularly made the bank deposit for the week which usually was in excess of a thousand dollars. Normally, on Thursday nights, the cash book work and cleaning up required them to remain at the dairy until about midnight or 12:30 a. m.
“4. With the knowledge and consent of the employer, Siebert had a couch placed in the manager’s office to be used for his rest and comfort. The office was small and the couch was located near the safe. In order to reach the safe, it was necessary to travel a narrow passageway between the couch and the manager’s desk.
“5. At least an hour and fifteen minutes was required for one man to load the refrigerated truck used for the house to house deliveries. Two days a week, including Friday, when the consumer demand was heavy, Siebert would normally start his route earlier than other days. Friday was the heaviest day of the week, and he would start his route about 3:00 a. m.
“6. On Wednesday preceding Siebert’s death, his wife separated from him and did not thereafter perform her usual duties at the dairy.
“7. On the occasion in question Siebert closed the store at 10:30 p. m. and stated he was unusually tired. He went to his home which required at least twenty minutes travel time by automobile. At some time thereafter, he returned to the dairy. The following morning, when an employee came to work, Siebert was found dead lying on the couch in the office. Cause of death was a .22 caliber slug entering the deceased at the left temple area at a time when he was asleep. Death had occurred some time between midnight and 2:00 a. m. on June 14, 1963. The truck was loaded and parked in the building ready to make a delivery and was hooked up to refrigeration unit to keep contents cool and was normally not hooked up if it wasn’t loaded. The cash receipts for two days had not been counted and they were in a bag in the safe. Cash receipts for the rest of the week were also' in the safe.
“8. When the body was discovered, the only clothing thereon was a pair of jockey shorts. The deceased’s clothes were hanging on the clothes tree. There were three pairs of women’s pants and a nightgown on the floor directly at the foot of the couch. These pants contained male sperm. They appeared to have been worn by the deceased and taken off all at one time, rolled together as if they had been pulled down.
“9. There was no evidence of any forcible entry into the building. The safe and its contents were not disturbed. A wallet, in the trousers of the deceased hanging on a clothes rack near the couch, which contained approximately $100 was not taken. There was no disarray or disturbance of the furniture or any other items in the building. It was possible to enter the building without the breaking of doors or locks by pushing aside the garage door sufficient to pass through even though it was fastened from the inside with a wooden bar across the same. Entrance could then be gained to the office from portholes from a cooler walk-in, and entrance could also be had through a roller where cans are rolled through. This was known to employees and others.
“10. Sometime during the night of January 15, 1964, the building which had previously been locked was entered by an unknown person. The safe, whose combination was known by only one employee and which was locked, had been opened and the money in it removed. There was no forcible entry to the building and except for the condition of the safe, there was no disarrangement or disorder of the furniture or other items in the building except the removal of some gallon milk containers from the counter to the floor of the cooler. Although the circumstances were investigated by the police, the person committing the offense has not been ascertained or apprehended.
“11. Don Siebert owned a .22 caliber pistol received as a Christmas gift in 1962. He had inquired of a uniformed patrolman if he could keep his gun at work to protect the place. The last knowledge of it was that it was placed in the glove compartment of Donald Siebert’s car about a month or two before his death, when it was put there on an occasion when he and his wife were at target practice by the river. Jim Siebert knew that the gun was normally kept in the glove compartment. The gun was not located after the death.
“12. The separation of decedent’s wife on the Wednesday preceding his death resulted from an argument with her husband and of his beating her which was brought on as she was trying to awaken him at an early hour to go to work. This was seen by his brother, Jim Siebert, age 19 years, who had visited and spent the preceding night at their home. She left intending to go to Wisconsin. While driving to the dairy with the intention of getting her wages, she was flagged down and stopped by Jim Siebert on the road. He told her he had witnessed the beating Don had given her and was mad enough to kill him. At his suggestion, it was agreed that she would go to Emporia (at which place he was working) and remain there for the rest of the week, and that he would take her to Wisconsin on Saturday. Marion Siebert occupied a room with her small child at the Broadview Hotel at Emporia, Kansas. On Thursday night, he visited with her at the hotel room, watched television and left about midnight to go to his car for a blanket because the room was cold. He returned about two hours later, stated that he went down and got some gasoline and rode around. He delivered the blanket and left.
“From what people had told her, Jim Siebert was supposed to have made it very plain that he was in love with her, but she was not in love with him and had no plans to marry him. She had no personal knowledge about who actually committed the crime. The circumstances of his death were investigated by the Topeka police department. No arrests have been made and no one has been charged with the murder of the decedent.
“13. The workman was killed by some unknown person intent on burglary and larceny while the workman was on duty and in his employer’s service.”
From the foregoing the district court concluded the workmans death was by accident arising out of and in the course of his employment and awarded compensation accordingly. The respondents and their insurance carrier, appellants herein, assert the record contains neither direct evidence nor logical inference to support the court’s finding as a fact and conclusion as a matter of law that the workman’s death arose (1) out of and (2) in the course of his employment.
Our workmen’s compensation act (K. S. A. 44-501) provides that in order to be compensable an accidental injury must arise “out of” and “in the course of” the employment. The two phrases have separate and distinct meanings (Floro v. Ticehurst, 147 Kan. 426, 76 P. 2d 773, Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701); they are conjunctive and each condition must exist before compensation is allowable (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P. 2d 578); and as to them every case must be determined upon its own facts.
The phrase “in the course of” employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer’s service (Pinkston v. Rice Motor Co., supra).
This court has had occasion many times to consider the phrase “out of” the employment, and has stated that it points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. Some of our decisions to this effect are: Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P. 2d 932; Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P. 2d 643; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89; Pinkston v. Rice Motor Co., supra; and Bohanan v. Schlozman Ford, Inc., 188 Kan. 795, 366 P. 2d 28.
This general rule has been elaborated to the effect that an injury arises “out of” employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury (see Hudson v. Salina Country Club, 148 Kan. 697, 84 P. 2d 854; Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235; Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796).
An injury arises “out of” employment if it arises out of the nature, conditions, obligations and incidents of the employment (Bohanan v. Schlozman Ford, Inc., supra; Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 389 P. 2d 782). In Taber v. Tole Landscape Co., 181 Kan. 616, 313 P. 2d 290, this court stated the foregoing tests exclude an injury not fairly traceable to the employment and not coming from a hazard to which the workman would have been equally exposed apart from the employment.
Passing the problem of whether the death was shown to have occurred “in the course of” employment, we examine the record in the light most favorable to claimants, appellees herein, to ascertain if there was sufficient competent evidence to support the trial courts conclusion that the death arose “out of” the employment. The crucial finding, of course, is No. 13 wherein the court concluded the workman was killed by some unknown person intent on burglary and larceny. From this it is asserted by appellees, and the trial court so reasoned, that the workman was exposed to the hazard of attempted burglary and consequent assault while on and in charge of the premises where the employer’s money was kept, thereby rendering the assault causally connected and incident to the employment.
Appellants contend there is no evidence to suport finding No. 13. This finding is merely a conclusion of fact and appellees must stand, if at all, on the evidentiary matters stated in the preceding twelve findings. The record does contain other items of evidence which are not in dispute but, from appellees’ standpoint, nothing additional in support of the burglar theory beyond that contained in the first twelve findings. Some of those other items will be mentioned later.
Appellees contend that finding No. 10 — that seven months later the building was burglarized and the safe in the room in which Siebert was killed was opened — is evidence of burglarious entry on June 14, 1963. This is the only evidence advanced in support of the June burglary. We must determine, first, whether this, with the other circumstances, is sufficient evidence in support of finding No. 13.
Appellees rely primarily on Phillips v. Kansas City, L. & W. Rly. Co., 126 Kan. 133, 267 Pac. 4, for their position the evidence sufficiently supports finding No. 13. Phillips was a proceeding to obtain compensation for the death of appellee’s husband who, while employed as a ticket agent at appellant’s station in Kansas City, was fatally injured by blows on the head inflicted by someone whose identity was not ascertained. Decedent Phillips had been given the privilege of operating a lunch counter in the waiting room of the station where candy and sundries were sold. He was required to keep the ticket office, waiting room and stand open daily until 10:15 p. m. About 9:00 p. m. he was found unconscious inside the gate by the candy counter. The door of one showcase was open. He had earlier deposited money from sales of tickets in the safe of the freight room, hut smaller amounts of money were found in the ticket drawer, in a cigar box, in a cigar can under the counter and in his pockets. His damaged spectacles were found under the icebox. During the two years Phillips had acted as agent the ticket office had been robbed four or five times and the freight office once. There was hearsay testimony indicating the station was robbed at the time decedent was injured but this testimony was not considered. This court stated:
“The employment was such that it invited assault with intent to rob (Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507). The waiting room was a place where robbers did ply their trade, and it was doubtless because of this fact that Phillips kept his money scattered here and there about the place in small sums. The inclosed space in which Phillips’ duties required him to be was invaded. The time chosen by the intruder for his appearance in the waiting room was the nighttime, and was a time when the waiting room was not occupied by anyone who gave an alarm. The open door of the candy case suggests that Phillips was lured to the place of assault near the gate by a pretended patron. Those who inspected the place do not refer to any implement of attack or defense which Phillips possessed. He was mortally wounded by repeated blows on the head with some deadly weapon which was not found on the premises. The departing person left the gate open. These circumstances fairly indicate assault with criminal intent, and not merely lawful resistance to an act of aggression by Phillips. What was the nature of that intent — gratification of private grudge by a personal enemy, or the gaining of access to money known to be kept somewhere behind those show cases? While the basis for inference is not entirely satisfactory, the court is unable to say there was no substantial evidence to support the district court’s finding that Phillips ‘was slugged by a bandit while on duty as ticket agent and station keeper for the defendant railway company.’ The finding being valid, the injury arose out of die employment.” (p. 138.)
Here the workman was shot in the head while asleep in the locked and darkened office. Appellees contend he was shot by a burglar intent on larceny, asserting whoever entered the building the night Siebert was murdered is the same unknown person who returned seven months later and completed the burglary.
Appellees axe entitled to all reasonable inferences and deductions to be drawn from the evidence, circumstantial as well as direct. But we are unable to infer that a burglary occurred on the night Siebert was killed simply from the fact a burglary under mysterious circumstances occurred at the same place seven months later. We regard this as sheer speculation and conjecture.
There was no direct evidence introduced to indicate an attempted burglary. The affair was investigated by Topeka police. The investigating detective found no evidence indicating a burglary and attempted larceny and was of opinion there was no such attempt. A uniformed patrolman who had provided night protection to the buildings in the area knew of no incidents at the dairy in the two years of his employment preceding the homicide, although it was shown there had been burglaries in the neighborhood at some undisclosed time prior to Siebert’s death. There was not the slightest indication in the evidence a would-be burglar was frightened away, or that the same person returned, as hypothecated by appellees.
The examiner who initially heard the case found the evidence was lacking to show Siebert was shot as a result of an attempted burglary but that to the contrary the circumstantial evidence pointed to his death as a result of being shot over personal matters. The director found similarly, stating he could not find in the record sufficient evidence to show a causal connection between the accident and the employment.
We believe the Phillips case must be distinguished from the case at bar. There the premises had been robbed at least five or six times before, with the result money was kept in various places in small sums. The small working space was invaded. The door to the candy case was opened, indicating the deceased had been lured to the place of assault. This court, aside from the hearsay testimony, believed the rational inferences to be drawn supported the theory of banditry.
Appellants argue that, as the examiner found, the only rational inference to be drawn here from the evidence is that Siebert met his death because of personal reasons not associated with the employment.
It is not necessary for us to decide whether this proposition is established. The burden of proof is not upon appellants to make out a defense. The burden remains on appellees to establish by evidence the connection of the death with the employment. Such connection may not rest on mere surmise or conjecture (Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P. 2d 932). The record does contain other evidence, beyond that in the trial court’s finding, tending to support the examiner’s conclusion. Siebert’s brother Jim, who was not called as a witness and who also worked for respondents evidently at Emporia, knew about Siebert’s pistol being in Siebert’s automobile; the automobile was parked outside the dairy the night of the murder; the pistol, conceivably the murder weapon, was never found. Siebert’s widow, one of the appellees, told an agent of the Kansas Rureau of Investigation she thought her brother-in-law, Jim, had shot her husband; however, the agent, as a result of his examination, concluded she really had no firsthand knowledge of how the crime was committed.
We conclude finding No. 13 is not supported by the evidence.
The general rule has been stated that assaults for private reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor (1 Larson’s Workmen’s Compensation Law, §11.00). Viewed as a totally unexplained assault appellees still may not prevail in the light of the rules already stated. Once the burglary theory is eliminated, the record contains no showing the employment brought the workman in contact with the risk that in fact caused his death or that it increased that risk — as was the situation in Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507, and in Phillips — or of any connection at all between the employment and the death.
Proof of the shooting of Siebert by an unknown assailant, for no known reason or motive, without more, fails to meet the statutory requisite that the death arose “out of” the employment- It becomes unnecessary to consider whether it arose “in the course of” the employment.
The judgment is reversed
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The opinion of the court was delivered by
Habman, C.:
The defendant John Omo was found guilty by a jury of the offenses of burglary in the second degree (K. S. A. 21-520), larceny in connection with a burglary (K. S. A. 21-524) and possession of a pistol after having been convicted of grand larceny (K. S. A. 21-2611).
Upon notice and proof of a prior conviction of a felony, the habitual criminal act was invoked as to the convictions of the first two offenses; upon the burglary charge defendant was sentenced to confinement in the penitentiary for a period of not less than ten nor more than twenty years, and upon the larceny charge confinement for a period of not more than ten years, such sentences to run concurrently. Upon the possession of the pistol charge he was sentenced to confinement for a period not to exceed five years, such latter sentence to be served consecutively to the first two. Defendant now appeals from the order overruling his motion for new trial.
Defendant along with one Paul L. Casanova was charged with burglarizing the Rock Motor Court in Wichita during the early morning of April 13, 1965, and in connection therewith, with the theft of a clock radio and a bedspread. Defendant was also charged with possession on or about the 12th or 13th day of April, 1965, of a .22 caliber pistol after having been convicted in the state of Nebraska of the offense of grand larceny.
Upon appeal defendant’s complaints involve alleged trial errors, necessitating brief review of the evidence pertinent thereto.
On the afternoon of April 12, 1965, defendant was sitting in a booth with a girl in the Blue Lounge tavern in Wichita; a detective who had a traffic warrant for defendant entered the tavern; when defendant saw the detective he tried to put a gun in the girl’s purse; the girl refused to permit him to do this; defendant ran outside the tavern; the detective found him hiding in the alley and arrested him on the traffic warrant; the girl testified the gun was similar to a .22 caliber pistol shown to her in court.
Another girl companion of defendant testified she had a date with him the night of April 12, 1965; after visiting three night clubs they obtained a 1957 Ford belonging to a Loyeen McDaniels; they then picked up Paul Casanova and a Linda McCoy at the former’s home; around 1:30 a. m. the following morning they drove to the Rock Motor Court; defendant got out of the car and knocked on a door of a motel room and then returned to the car; he turned the car around and stopped it near the same place; defendant and Casanova got out of the car and went into a different room; the two were empty handed when they went in but when they returned a few minutes later they were carrying a clock radio and a bedspread similar to those placed in evidence. During the same early morning hours the clock radio was left by defendant at the trailer home of two other girls.
The night clerk at the motel saw defendant stop at the motel at about 2:00 a. m. on April 13,1965; defendant was driving a two-tone car believed to be around a 1955 model; a boy and girl were in the back seat of the car and a girl was in the front with defendant; the clerk observed defendant first go to room No. 19 in which there was a renter; upon seeing defendant later running from room No. 15, he became suspicious; he checked room No. 15, which had not been rented, and found the radio missing; he did not at that time notice the bedspread was missing.
The police department was notified about the incident and a dispatch issued for the lookout of a group in a 1955 black and white Ford.
At about 3:15 a. m. the same morning in the nineteen hundred block on North Broadway in Wichita the police stopped defendant in the automobile he had been driving; Casanova and the two girls were with him; a police officer standing outside the vehicle shone his flashlight inside the automobile, and saw a bedspread — later identified as the one taken from the motel — on the floor in the back seat; in the company of the officer and at his request, defendant went to the motel and was identified by the night clerk as the person he had seen earlier; the night clerk then noticed the bedspread was missing; defendant was placed under arrest and taken to the Wichita police station; the bedspread was seized by the arresting officer; the McDaniels’ automobile was driven to the police station and placed in the police parking lot; after delivering the defendant to the police station for booking the arresting officer went immediately to the car in the parking lot and searched it; he found a .22 caliber pistol under the dashboard of the vehicle; the officer had no search warrant or consent to make the search.
On behalf of defendant one Tony Pinzino testified he (Pinzino) had purchased a radio and two bedspreads in Kansas City, Missouri, and that during the early morning of April 13, 1965, he had given these items to defendant to hold for him.
Upon appeal defendant contends the pistol taken from the vehicle was improperly admitted into evidence because of an illegal search and seizure, in violation of the fourth amendment of our federal constitution, relying principally upon Preston v. United States, 376 U. S. 364, 11 L. ed. 777, 84 S. Ct. 881.
This court considered the application of the Preston decision to a factual situation virtually identical to the case at bar in State v. Wood, 197 Kan. 241, 416 P. 2d 729, and held the evidence there complained of was not secured by an unreasonable search and seizure, saying:
“In United States v. Rabinowitz, 339 U. S. 56, 94 L. Ed. 653, 70 S. Ct. 430, cited in the Preston opinion, it was stated:
“ ‘. . . The mandate of the Fourth Amendment is that the people shall be secure against unreasonable searches. It is not disputed that there may be reasonable searches, incident to an arrest, without a search warrant. . . . The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case. . . .’ (pp. 65-66.)
“To meet the test of reasonableness, a search may be incident to an arrest if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. . . . The right to make a contemporaneous search without a search warrant extends to things under the accused’s immediate control . . . and to some extent, depending on the circumstances of the case, to the place where he is arrested. . . .
“The place of arrest’ in cases involving a search of an automobile over which an accused has immediate control at the time of arrest has reference to the vehicle itself rather than its geographical location. An automobile, because of its mobility, requires application of rules in the search thereof different from those governing the search of a house. ... In Arwine v. Bannan, S46 F. 2d 458 (6th Cir. 1965), where the automobile in which the defendant had been arrested was moved to the police station before it was searched, the court stated:
“ ‘. . . The place of arrest, in this case, must be considered the automobile in which Arwine was sitting when he was arrested; it was the automobile over which he had control, or in which he was legitimately present, that was the place of search. The place where the arrest was made was not the geographical area in which the car was parked; . . .’ (p. 470.)
“The factual differences in Preston and the instant case cannot be overlooked. Here, the law enforcement officers had probable cause to arrest the defendant. The officers involved in the defendant’s apprehension were in constant communication with each other and were aware of the events that had transpired prior to the arrest. A search of the defendant’s person at the time of the apprehension yielded a check which directly connected him with the crimes. The search of the automobile was conducted for stolen articles which the officers had reason to believe were in the vehicle. Unlike Preston, there was no evidence of unusual delay or an impounding of the vehicle prior to the search.
“We doubt that Preston can be interpreted to mean that a police officer must search the vehicle at the moment of arrest when an equally prudent course of action would be to move the vehicle to a more convenient or suitable location for the search. We are more inclined to believe that the holding in Preston turned upon the lack of continuity of purpose by the arresting officers. . . .
“The question of reasonableness of a search must be resolved from the facts and circumstances of each particular case. Our view of the evidence in the instant case is that the arrest of the defendant, the removal of the automobile and its search were a series of events constituting one continuous happening. Under such circumstances, the search occurred substantially contemporaneous with and incidental to the arrest. The fact defendant was not present did not prevent the search from being incidental to his arrest. . . .” (pp. 244-246.)
In the instant case probable cause for the arrest existed, making it a lawful one. The arrest occurred about 3:15 a. m. Four persons were in the automobile, necessarily making them become suspect. The vehicle belonged to someone other than the four occupants, whose exact connection to the alleged offense was not then known. The arresting officer, assisted by another officer, delivered these suspects after their arrest to the police station and, without delay— even of “booking” procedure — immediately searched the automobile. At this time the radio known to be missing from the motel room had not been discovered. The police custody and search of the automobile were directly related to the offense occasioning the arrest; this was not the case in Preston where the initial arrest was for vagrancy. The fact that the custody and search of Preston’s automobile were unrelated to the charge upon which he was arrested, therefore causing the search to be unreasonable, appears to be the rationale of the Preston decision as subsequently indicated in Cooper v. California, 386 U. S. 58, 17 L. ed. 2d 730, 87 S. Ct. 788, in which it was said that, although lawful custody of an automobile does not of itself dispense with constitutional requirements of searches thereafter made of it, “. . . the reason for and nature of the custody may constitutionally justify the search.” (p. 61.)
Continuity of purpose by the arresting officer, an essential factor in Wood, was plainly evident in the case at bar.
A bedspread, which developed later to be incriminating evidence, was noticed in plain view in the automobile, but the impracticality of thorough search under the circumstances at the time of the initial arrest seems obvious. The vehicle at all times following the initial arrest remained under police surveillance and custody, and the lapse of time between that arrest and the search in the police lot was as short as possible under the circumstances. We think the search was substantially contemporaneous with the arrest, with a view to preventing destruction or removal of evidence relevant to the burglary and larceny, and therefore incident to the arrest. As stated in Wood, “. . . the arrest of the defendant, the removal of the automobile and its search were a series of events constituting one continuous happening.” (p. 246.) That a pistol was found, rather than other relevant evidence such as the fruit of the offenses, does not militate against the legality of the search. We hold the search and seizure was not unreasonable and the pistol was admissible in evidence.
For an excellent discussion of post-Preston decisions, federal and state, where results harmonious with the conclusion herein were reached, see People v. Webb, 56 Cal. Rptr. 902, 424 P. 2d 342, decided March 8, 1967.
Defendant further complains the bedspread taken from the automobile was improperly received in evidence because it too was the product of an illegal search and seizure. As indicated, the item was in the plain and open view of the arresting officer when he first looked into the vehicle. Defendant argues it was not definitely known at the time the officer first saw the bedspread that such an article had been stolen. This may be conceded. However, that fact became known at the time of defendant’s arrest. The right to seize is to be distinguished from the right to search the premises of arrest. Incidental to the arrest of a person an officer has the right to seize the obvious or reasonably apparent fruit or contraband of crime in plain view at the time and place (see State v. Hunt, 198 Kan. 222, 424 P. 2d 571).
We hold the seizure by the arresting officer of the bedspread apparently stolen in connection with the burglary of the motel room was lawful.
Based upon the testimony of Tony Pinzino offered by defendant and already stated, defendant requested the trial court to submit an instruction to the jury that he might be found guilty of the offense of receiving stolen property. This request was refused. Defendant asserts the refusal as error, in effect arguing the offense of receiving stolen property is a lesser degree of the crime of larceny which was charged. Not so! The offenses of larceny of property and receiving stolen property are separate and distinct crimes (State v. Fields, 70 Kan. 391, 78 Pac. 833; State v. Wasinger, 133 Kan. 154, 298 Pac. 763). The trial court properly refused the request.
Defendant next complains that over his objections he was tried at the same time upon offenses of burglary and larceny and the umelated offense of possession of a pistol after having been convicted of grand larceny, such offenses being charged in two separate informations. He argues that by the joinder he was prejudiced in his trial upon the burglary and larceny charge in that the prosecution was thereby allowed to show possession of a pistol and that he had been previously convicted of grand larceny.
The instructions given the jury at trial have not been abstracted. There being no contention to the contrary, we must therefore assume they were correct and that the jury was properly instructed as to how it should consider the evidence as to each separate offense charged. Nor is the nature of the previous offense of grand larceny in Nebraska shown.
Although the question is not wholly free from difficulty, we think defendants contention of prejudicial error may not be sustained upon this state of the record.
As indicated by defendant, two potential areas of prejudice exist in the admission of evidence: First, as to possession of the pistol; and, second, as to the previous conviction of felony.
We have held evidence of possession of a pistol under certain circumstances to be relevant upon trial for burglary and larceny (State v. Williams, 196 Kan. 628, 513 P. 2d 1006). After all, a pistol is a weapon familiarly employed by a burglar or thief as a means of attack or escape, and under K. S. A. 21-2611 a convicted burglar or grand larcenist is one of that class who may not lawfully possess such a weapon.
The defendant here was charged with and tried for larceny in connection with a burglary. The felony relied upon for the charge of unlawful possession of the pistol was also larceny. We have always rejected, as prejudicial, evidence of another crime as proof that a person committed a crime upon a specified occasion. But we have always admitted such evidence of prior commission of crime upon proper limiting instructions when relevant to prove some other material fact including intent, plan, knowledge or identity. (K. S. A. 60-455; see also, State v. McCorvey, 199 Kan. 194, 428 P. 2d 762.) Conceivably, evidence of the prior conviction of defendant for grand larceny could have been admissible upon the instant trial for larceny in connection with the burglary.
The foregoing, in view of the record before us, impels us further to the conclusion no prejudice to defendant is shown to have occurred from the joinder, and the burden here remains on him to demonstrate prejudicial error. Moreover, the offenses did occur at the same time, and, to an extent, were provable by the same evidence.
In State v. Browning, 182 Kan. 244, 320 P. 2d 844 (appeal dismissed, 356 U. S. 583, 2 L. ed. 2d 1063, 78 S. Ct. 1002), the defendant was charged in one information with two counts of possession of a pistol after having been convicted of armed robbery, and in another information with four counts of armed robbery and one count of attempted robbery, all at different times. Over objection he was tried in a single trial for all the offenses contained in both informations. Upon appeal the same contentions were advanced as here. This court affirmed the convictions, holding that the question of joinder of offenses rests in the sound judicial discretion of the trial court and that the trial court did not err in consolidating the two informations for trial. It should be pointed out the weapons which were the subject of the possession charges in Browning were shown to be the ones used in the armed robbery charges, but under our view this would not alter application of the Browning precedent to the case at bar. (See also, State v. Hacker, 197 Kan. 712, 412 P. 2d 40, cert. den., March 13, 1967, 386 U. S. 967, 18 L. ed. 2d 119, 87 S. Ct. 1050). We hold prejudicial error warranting the granting of a new trial is not shown by reason of the consolidation for trial.
Finally, defendant contends that before he could be convicted of the possession of the pistol charge under K. S. A. 21-2611 there should have been some specific showing the weapon was actually capable of being fired inasmuch as K. S. A. 21-2610 defines a pistol as a certain type of firearm. Defendant’s contention has no merit. A pistol is a deadly weapon per se. Defendant states in his brief the pistol was “a rather dog-eared specimen at best.” Such argument, if proper at all, should have been addressed to the trier of the fact to whom the pistol was submitted as an exhibit for consideration as a firearm. Although not necessary to sustain the conviction, the fact that defendant twice sought to conceal the pistol gives rise to some inference as to its prohibited character.
The foregoing disposes of the matters embraced in defendant’s motion for new trial and his judgment of conviction and sentences must be and are affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Defendant appeals from a conviction for escaping jail (K. S. A. 21-736). Having been convicted of two prior felonies he was sentenced to life imprisonment (K. S. A. 21-107a).
While defendant was being held in Shawnee county on criminal charges of burglary and larceny he escaped custody. He was apprehended and later convicted on the burglary and larceny charges. (See State v. Eaton, 199 Kan. 192, 428 P. 2d 847.) This present appeal concerns only the conviction for escaping jail.
After his escape from custody in Shawnee county Jack C. Eaton was picked up by Missouri and Kansas authorities in Lone Jack, Missouri. A member of the Shawnee county sheriff’s patrol was present at the time. Eaton was taken to the sheriff’s office in Independence, Missouri, and from there to Kansas.
The defendant in the presence of his court appointed attorney waived trial by jury and entered a plea of not guilty. The trial and sentencing proceedings were held before the court without a jury. He was found guilty.
The defendant raises three questions on appeal.
He first contends that K. S. A. 21-107a is unconstitutional because of failure to uniformly apply the act to all third time offenders and to apply the act in his case would deny him equal protection of the laws as required by Amendment 14 §1 of the United States Constitution.
The record is devoid of any showing of inequality or lack of uniformity in applying the statute. The identical question has been answered by this court. A proper exercise of discretion by a county attorney in seeking to invoke K. S. A. 21-107a does not deprive one of due process or equal protection when the enhanced penalty is imposed. (In re Skinner, 136 Kan. 879, 18 P. 2d 154; Gladen v. State, 196 Kan. 586, 413 P. 2d 124; State v. Coutcher, 198 Kan. 282, 424 P. 2d 865; Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 446.)
Defendant’s second contention is directed at jurisdiction of the trial court. He states that a violation of his rights of citizenship occurred when he was forced to return to Kansas to answer the charge of escaping jail.
When defendant was apprehended in Lone Jack, Missouri, he was found hiding in a closet, obviously under the influence of narcotics. While in the custody of the Missouri officers his lack of cooperation resulted in the application of some physical force by the Missouri officers. He testified on motion to quash the information that he was struck twice, was forcibly seated in a chair and would not have agreed to return to Kansas except for fear of the “Missouri officers.” It appears from defendant’s testimony that he received a “shot” administered by a nurse in the sheriff’s office in Missouri. The injection was given at a time when he was under the influence of narcotics and had asked for a doctor. The nature and effect of this “shot” upon defendant is not shown in the record. The Kansas officers did not threaten or mistreat him. They returned him to Kansas for trial on the burglary and larceny charges.
The defendant argues he was returned to Kansas by force and coercion in violation of his constitutional rights and the Kansas court had no jurisdiction to try him in the absence of legal extradition proceedings.
The fact defendant was brought back to Kansas to stand trial for burglary and larceny should not be overlooked. These charges were pending at the time of his escape from custody. He was convicted of the charges. It was after his return on the burglary and larceny charges that the present proceedings began.
However, even if his return can be related to the present charge this court has consistently held that a defendant’s physical presence in the state is sufficient to support a conviction and jurisdiction does not depend upon how he came to be within the state. (Brandt v. Hudspeth, 162 Kan. 601, 605, 178 P. 2d 224; State v. Wharton, 194 Kan. 694, 401 P. 2d 906; Hanes v. State, 196 Kan. 404, 411 P. 2d 643.)
Constitutional provisions requiring extradition from one state to another were adopted to promote justice and to aid states in enforcing their laws and not to shield malefactors. (Ex parte Chase, 84 Okl. Cr. 159, 180 P. 2d 199.) We find no merit to defendant’s second contention.
Defendant’s final contention is that the evidence of prior felony convictions was insufficient to support sentence under the habitual criminal act.
When the defendant was sentenced the state offered evidence of several previous convictions. One was for larceny of an automobile in Missouri. A second was for transporting a stolen vehicle in interstate commerce, a federal conviction. A third was for breaking and entering and for grand larceny in Wyoming.
The Missouri conviction was evidenced by certified true copies of photographs, fingerprint record and commitment record of the defendant by the Director, as official custodian of the files, of the Missouri State Penal Institution. The federal conviction was evidenced by certified true copies of records on file in the United States Penitentiary, Atlanta, Georgia, including a certified copy of the judgment and commitment of defendant to that institution. It was properly certified by the acting warden. The Wyoming conviction was evidenced by certified true copies of photographs, fingerprint records, judgment and commitment of the sentencing court. It was certified by the warden of the Wyoming State Penitentiary and attested by the Secretary of State of Wyoming. Various other papers were also submitted to establish three additional crimes but a review of these will be unnecessary. Two prior felony convictions, if valid, will support defendant’s sentence.
Evidence of previous convictions may be based upon records certified by a warden or director of a penal institution in which defendant served. (See Burnett v. State, 199 Kan. 362, 429 P. 2d 923; State v. Hall, 187 Kan. 323, 356 P. 2d 678; State v. Loyd, 187 Kan. 325, 356 P. 2d 825.)
Although defendant now objects to this evidence he did not do so at the time such evidence was introduced. The record of such proceedings at sentencing appears as follows:
“The Court: We are here on defendant’s motion for a new trial and if that motion is overruled, for sentencing?
“Mr. Hecht [County Attorney]: That is correct, Your Honor.
“The Court: All right. Mr. Wells, you filed on March 9, 1966, a motion for a new trial. Would you like to be heard on that?
“Mr. Wells [Defense counsel]: No, Your Honor, I think the record would indicate whatever arguments I might have and that hasn’t changed any.
“The Court: Your arguments were made when now?
“Mr. Wells: They were made on the motion which was March 8th, sir.
“The Court: That motion is overruled. Now, is there any legal reason why sentence should not now be imposed?
[No answer appears in the record.]
“Whereupon, the state introduced into evidence for purposes of supporting its allegations in connection with sentencing under the provisions of K. S. A. 21-107 (a) Exhibits 1 through 5.
“The Court: Any objections?
“Mr. Wells: No objections, Your Honor.
“The Court: Will be received. Mr. Wells, what do you have to say?
“Mr. Wells: Your Honor, I would like to object for the invoking of 107a on the grounds of the violations of the Fifth Amendment, Fourteenth Amendment and Eighth Amendment. I have no arguments on them at this time.”
It is plain from this record that Exhibits 1 through 5 upon which increased penalty was imposed were received in evidence without objection.
K. S. A. 60-404 provides:
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, 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.”
The above statute codifies the prior law of this state requiring timely and specific objection to the admission of evidence. In the (absence of timely and specific objection during trial objections to admissibility of evidence will not be considered on appeal. (Gaynes v. Wallingford, 185 Kan. 655, 661, 347 P. 2d 458; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.)
Defendant raises a constitutional question. He contends the judgments, upon which the enhanced penalty was imposed, are void under the Gideon case if such judgments do not show on their face he was represented by counsel in the proceedings. This position is untenable for it is based upon an erroneous premise as to the law.
We have previously determined that full faith and credit should be given even though the judgment may not show on its face that defendant had representation. The presumption of validity which attends a judgment of a sister state so requires. (State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. den. 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899; Chappell v. State, 197 Kan. 407, 416 P. 2d 786.)
However, it clearly appears in the journal entry of judgment of the federal court in Arkansas defendant was represented by counsel, Frank Snellgrove, Jr. The judgment of the Wyoming* court recites that defendant voluntarily waived right to counsel and entered a plea of guilty in accordance with the laws of that state (Wyoming Statutes 1957 §7-171.) Copies of the other judgments are not part of the evidence available in this record. However, only two valid prior convictions are necessary to support the increased penalty provided in K. S. A. 21-107a. At least two of the prior convictions were supported by evidence of representation or waiver of counsel. The constitutional question is without merit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This appeal raises the propriety of making certain officials parties defendant in an action pursuant to K. S. A. 79-2005 for refund of ad valorem taxes paid under protest.
Appellant oil companies owned eleven oil and gas leaseholds in Ellis county, Kansas, which properties for the tax year of 1965 were assessed as of January 1, 1965, by the county clerk of Ellis county as ex officio assessor at the total sum of $945,455.00. Being dissatisfied with these assessments, appellants appealed to the Ellis county board of equalization which sustained the assessments made by the county assessor. Appellants then appealed the assessment orders to the state board of equalization, which on August 10, 1965, entered its orders fixing its assessments. The state board reduced the total assessments of appellants’ properties to $724,300.00. The county treasurer of Ellis county applied the tax levies to these latter assessments and furnished to appellants statements of taxes due. Appellants paid these taxes to the county treasurer of Ellis county on December 8, 1965, under protest, duly filing at the same time their written notices of protest as required by K. S. A. 79-2005, stating the amount of taxation asserted to be excessive by reason of excessive valuation of the properties.
On December 27, 1965, appellants commenced this action by the filing of their petition in the district court of Ellis county, naming as defendants the following:
“James Kronewitter, County Treasurer of Ellis County, Kansas; Ray J. Hammerschmidt, County Clerk and ex officio County Assessor of Ellis County, Kansas, and Clerk of the County Board of Equalization, Ellis County, Kansas; The Board of County Commissioners of Ellis County, Kansas; The Board of Equalization of Ellis County, Kansas: Carl Deutscher, Douglas Philip, and W J. Braun, County Commissioners of Ellis County, Kansas and Members of the County Board of Equalization of Ellis County, Kansas; The State Board of Tax Appeals of the State of Kansas; The State Board of Equalization of the State of Kansas; and Sam Brookover, Herbert H. Sizemore, and Harold Grauerholtz, Members of the State Board of Tax Appeals of the State of Kansas and Members of the State Board of Equalization of the State of Kansas.”
All defendants filed their motions to dismiss upon various grounds with the result the trial court on May 6, 1966, dismissed the action as to all defendants except the county treasurer, the county clerk and the board of county commissioners of Ellis county. We are advised that as to these defendants, who have not cross-appealed, this action is still pending in the trial court.
Appellants have appealed from the order dismissing the other defendants named in their petition, appellees herein.
We note first the petition. Due to its length it will not be reproduced. Suffice it to say, it recited the history of the assessment and taxing process of the properties as already stated and appellants’ contentions with respect thereto, the valuations asserted by ap pellants with the basis for the same, payment under protest by appellants of the taxes levied for the year 1965, and the amount of such taxes asserted to be excessive by reason of excessive and discriminatory valuation by the assessing officials. It recited that the average ratio of taxable assessments to true 100% or justifiable value of all other real and personal property in Ellis county for the past twelve years has been 17%; that such average ratio of all other property in Ellis county for 1964 was 13%, and that appellants’ eleven properties were assessed at varying percentages far in excess of those for other properties.
The prayer of the petition contained the following:
Wherefore and by Reason of the Foregoing, these Plaintiffs pray that the Orders of the Board of Tax Appeals sitting as the State Board of Equalization described above be modified to reflect the values of Plaintiffs’ properties as hereinbefore described, and that the lawful levies of Ellis County be applied thereto, and further, that the assessment rolls of Ellis County, Kansas, showing taxes due from the Plaintiffs on the above described properties be modified pursuant to Order of the Court to reflect the amount due for the year 1965 as follows: (eleven descriptions and amounts) and the Court enter an Order directing the County Treasurer to refund to the Plaintiffs taxes unlawfully collected in the amounts as follows with interest: (eleven descriptions and amounts) for a total refund amount of $19,129.79 with interest; that the Court grant such other and further relief as is just and lawful. . . .”
The basis for the trial court’s ruling in dismissing the defendants who are appellees herein was that the action was one to recover taxes paid under protest and that the only “essential" defendants were those county officers who were retained.
By way of preliminary, it may be noted our present code of civil procedure continues to recognize, either expressly or impliedly, the descriptive labels of parties, with which we were familiar under our former practice, as proper, necessary or indispensable.
' Generally speaking, proper parties are those without whom the cause might proceed but whose presence will allow a judgment more clearly to settle the controversy among the parties. (Pfannenstiel v. Central Kansas Power Co., 186 Kan. 628, 352 P. 2d 51). Necessary parties are those who must be included in an action either as plaintiffs or defendants unless there is a valid excuse for their nonjoinder. Indispensable parties are those who must be included in an action before it may properly go forward. The latter two éoncepts are alike in the respect that both terms denote parties who should be joined in the action although the degree of obligation represented by the word “should” varies (see James’ Civil Procedure, §§9.14-9.15).
Our code does prescribe a rule defining a proper party plaintiff but, with exceptions not here material, it makes no attempt to define who is a proper party defendant. K. S. A. 60-220 (a) does place limitations upon the now permissive joinder of parties defendant but this rule is procedural in nature and furnishes no substantive law for determining who is a proper party defendant. Where coercive relief is sought, the question of who is a proper party defendant is usually a question of who is liable under substantive law (James’ Civil Procedure, §9.10).
Appellants rely primarily, for their joinder of appellees and their contention the trial court erred in dismissing as to them, on certain language found in two of our decisions: Sinclair Pipe Line Co. v. State Commission of Revenue & Taxation, 181 Kan. 310, 311 P. 2d 342; and Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527.
Sinclair Pipe Line, decided May 11, 1957, was an action filed in Montgomery county district court by a public utility to recover taxes for the year 1955 paid under protest. The impounding officer — the county treasurer of Montgomery county — as well as certain local taxing units were made parties defendant. Also joined as parties defendant were the state commission of revenue and taxation and the individuals composing it. These defendants made no challenge to jurisdiction based on the contention they were not proper parties to the action. The venue of the Montgomery county court was challenged on the theory the action should have been brought in Shawnee county. In ruling that venue lay in Montgomery county this court stated that the state commission of revenue and taxation — up to 1957 the predecessor of our present state board of tax appeals — was a proper party to the action. Aside from the fact this language in Sinclair, relied upon by appellants in the instant case, was not necessary to the decision there made, we think the case is distinguishable from the case at bar both on the facts and the law then prevailing. In Sinclair the property, being that of a public utility, was assessed by the state commission of revenue and taxation and no county official had any function with respect to it. Moreover, at the next general legislative session after this decision the following provision, which now appears as a part of K. S. A. 74-2433, was enacted:
'The state board of tax appeals shall have no capacity or power to sue or be sued.” (Laws, 1959, Chap. 317, §2.)
We note also the provision o£ K. S. A. 79-1411a which was not in effect at the time the taxpayer in Sinclair paid its protested taxes, as follows:
“Beginning with the year 1956 the county is hereby declared to be the governmental unit charged with the primary responsibility for the administration of all laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes, except as hereinafter provided.”
For these reasons we doubt that Sinclair may be regarded as authority for appellant’s position.
The Sinclair decision did point out that taxing units are proper parties to an action to recover taxes paid under protest for the reason that, being beneficially interested in taxes and therefore interested in showing them to be valid, it would not be improper to make them parties so as to give them notice and an opportunity to defend their interests if they desire to do so.
Builders, Inc. was an injunction action filed in Sedgwick county district court to enjoin the collection of certain ad valorem taxes upon Sedgwick county real estate for the year 1961 based upon assessments for that year. Named as defendants were the board of county commissioners of Sedgwick county as well as other county officials and the state board of equalization and its members. The assessment had been appealed to the latter. At trial at the conclusion of plaintiff’s evidence the trial court dismissed the state board of equalization and its members from the action. The action proceeded as to the other defendants; Judgment was rendered against them and they appealed to this court. No cross-appeal was taken from the order dismissing the state board of equalization. This court defined the issue in the case thus:
“The controlling question, is whether the trial court had jurisdiction to enter its judgment [against the remaining defendants] after it dismissed the State Board of Equalization. . . .” (p. 380.)
The propriety of making the state board of equalization a party defendant was never an issue in Builders, Inc. and appellants here can scarcely take comfort from it. To the contrary, the case pointed out that by virtue of certain statutes (now K. S. A. 74-2439 and 79-1409) the state board of tax appeals and the state board of equalization are one and the same, and it further stated that “. . . the legislature specifically prohibited an appeal from the decision of the State Board of Equalization by the following proviso in G. S. 1961 Supp. (now K. S. A.) 74-2426:
“. . . Provided, That no such appeal may be taken to the district court from any order determining, approving, modifying or equalizing the assessment of property for property tax purposes. . . .” (pp. 384-385.)
If appellants are attempting to appeal from the decision of the state board of equalization, which appellees argue is really the case, Builders, Inc. does not support appellants but in fact is against them.
Appellants argue this action is something more than an action for refund of taxes, saying it is also a suit for modification of an order of the state board of tax appeals sitting as the state board of equalization as shown by the prayer in their petition. They maintain in their brief:
“Some action must be taken to modify the Orders of the State Board of Equalization, otherwise, the proper levy may not be applied to a reduced assessment when there is an outstanding assessment by the State Board of Equalization should the Appellants prevail in the trial of this matter.”
We cannot accept the argument. We agree with the trial court’s conclusion the action was simply one for recovery of protested taxes.
The scope of such action was commented upon in Anderson v. Dunn, 189 Kan. 227, 368 P. 2d 6. There the plaintiff had appealed his assessment to the county board of equalization. Being unsuccessful, he paid his taxes under protest. He then took the alternative route, as he was authorized to do under then G. S. 1949, (now K. S. A.) 79-2005, of making application for redress to the state board of tax appeals. Unsuccessful again, he filed suit for recovery of the protested taxes. This court stated:
“The action at bar is not one to question the proceedings of the county board, but an independent action to recover taxes paid under protest. This action is not even one to review the proceedings of the State Board of Tax Appeals. (citations.)
“This is an independent action in which plaintiff had the burden of introducing evidence that his property had been over assessed and that he was justified in protesting his tax.” (p. 228.)
The statute authorizing the action to recover protested taxes makes no provision for including assessing officials as defendants, and we know of no reason for holding they should be included. As such officials, appellees are not taxing units; they do not have or claim any benefit? il interest in the taxes sought to be recovered. They do not have possession of such taxes nor do they have any right to dispose of them. They have no duty or function to perform relative to the refund of appellants’ taxes. Any refund to be made will be by the impounding official — the county treasurer of Ellis county who is still a defendant in the case — on the basis of the trial court’s decision. If found entitled thereto, complete relief can be afforded appellants without the presence or any action on the part of appellees. Appellants are not in anywise prejudiced by the absence of appellees as their claim may be fully adjudicated on its merits. The assessment in question is made on an annual basis and is not on a continuing basis. The trial court would have no power to act beyond the 1965 taxes and no authority beyond ordering refund of such taxes found excessive (see Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124).
We hold that public officials who determine or review valuation and assessment of property for taxation purposes do not thereby become indispensable, necessary or proper parties defendant in an action to recover taxes paid under protest pursuant to K. S. A. 79-2005.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a divorce action. Plaintiff wife has appealed from a judgment as it pertains to alimony and defendant husband has cross-appealed from the order of the trial court directing the payment of plaintiff’s attorney fees. No complaint is made as to the granting a divorce and awarding custody of the two minor children to the wife or as to the division of property.
The parties had been married eighteen years and have two children, a son thirteen years of age and a daughter six years of age. The husband is a physician and surgeon, specializing in chest and blood vessel surgery. The wife is a registered nurse and was actively engaged in her profession during the earlier years of the marriage.
A full and complete trial was had. Extensive evidence was submitted as to the financial status and acccumulated property of the parties, the needs of the wife and children and the earnings, present and potential, of the husband. At the close of the trial judgment was announced by the court granting a divorce and custody of the minor children to the wife. Issues as to property division, alimony and support money were taken under advisement by the court in order to permit the parties to file briefs. After receiving the briefs the court heard supplemental arguments and then entered its final judgment resolving the remaining issues.
The trial court in a comprehensive memorandum decision reviewed the evidence and decisions of this court pertaining to the issues involved. After dividing the property of the parties, the trial court awarded plaintiff alimony of $400 per month, terminable upon her death or remarriage, or on further order of the court in modification or termination as provided by law, and child support of $150 per month for each child.
In its memorandum the trial court reviewed the evidence, submitted with respect to the allowance of attorney fees, and concluded that $3,500.00 should be awarded plaintiff for the services of her attorney.
Only two issues are presented for our consideration in this appeal.
The plaintiff claims the trial court abused its discretion in awarding her $400 monthly alimony. She argues the trial court wholly ignored the only evidence before it as to what plaintiff required for the support of herself and children. In her brief plaintiff admits the well-established rule that the trial court is vested with wide judicial discretion in determining alimony and that it is necessary to show abuse of discretion to obtain a modification of the trial court’s award on appeal. Nevertheless she seeks a modification by this court and relies on our decision in Craig v. Craig, 197 Kan. 345, 416 P. 2d 297, to support her position. She claims the trial court abused its discretion by wholly ignoring the only evidence before it as to the needs for the support of herself and children.
In Craig this court reduced the trial court’s award of alimony because we found the trial court abused its discretion by ignoring evidence of the actual expenses of the wife. The trial court had awarded $1,200 per month when the most favorable analysis of her evidence disclosed her average monthly expenses could not total more than $843.52. We found the ignoring of such evidence to be an abuse of discretion by the trial court.
In this case the plaintiff compiled a list of what she claimed were monthly needs for herself and children. The items totaled $1,091. The list was received in evidence but plaintiff claims it was ignored by the trial court. In addition to items of ordinary household expenses, set out in the list, sums of $135.40 for household help and $225 for treatment of plaintiff at Menninger Foundation were included. The testimony reveals that plaintiff had never utilized or needed full time household help during the course of the marriage other than when she was in the hospital. Plaintiff, herself-, testified that shé has now been released from the day hospital at Menninger Clinic and was seeing her doctor only twice a week and in the near future planned to see him only one hour every two months or if she needed to talk to him about anything.
Plaintiff further testified that she was eligible for treatment at the Veterans Administration Hospital without charge in the event of need and that she had in fact received treatment there in the past. The subtraction of $360, the total of these two items from the gross request of plaintiff, leaves $731 only, $3l in excess of the trial judge’s award for the support of plaintiff and the two children. It is also to be noted that an item of $89 for monthly payments on plaintiff’s automobile will be adeemed on payment of the purchase price and appears to be considerably in excess of the amortized monthly cost of the automobile in relation to the years of expected serviceability thereof.
There was also conflicting testimony as to a number of other items listed in Exhibit 19. Defendant testified that, with the courtesy given by other physicians to the children of a physician, medical expense of $20 per month appeared to be excessive. The defendant claimed that an award of $542 would have been adequate for the monthly needs of plaintiff and the two children.
A reading of the memorandum decision indicates that the trial court carefully considered all of the evidence within the concept of the rules established by this court and in conformity with the provisions of K. S. A. 60-1610 (b), (c), now K. S. A. 1965 Supp. 60-1610 (b), (c). We find a factual basis for the trial court’s decision and, therefore, reversal on this point cannot be justified under our firmly established rule that absent manifest abuse of discretion the trial court’s judgment in a divorce case cannot be disturbed on appeal. (Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226, and Moran v. Moran, 196 Kan. 380, 411 P. 2d 677, and the many cases cited in those opinions.)
In his cross-appeal defendant contends the trial court abused its discretion in requiring the defendant to pay plaintiff’s attorney of record the sum of $3,500 for attorney fees.
In his brief defendant appears to take the position that, under the property settlement and alimony adjudged by the trial court, the plaintiff was entirely capable of paying her own attorney fees and should have been required to do so.
Under our statutes K. S. A. 60-1607 (d) and K. S. A. 60-1610 (f), now K. S. A. 1965 Supp. 60-1610 (f), costs and attorney fees for the preparation and trial of the case may be awarded to either party as justice and equity may require. The district court is vested with wide discretion to determine both the amount and the recipient of an allowance of attorney fees. Such discretion will not be disturbed on appeal unless an abuse of discretion clearly appears from the record. (Craig v. Craig, supra; Crosby v. Crosby, 188 Kan. 274, 362 P. 2d 3; Murray v. Murray, 189 Kan. 679, 371 P. 2d 125.)
It appears from the record here that the division of property of the value of some $120,000.00 was at issue. The plaintiff’s attorney testified that he expended eighty hours in preparation and in numerous conferences pertaining to a property settlement which in the end was not consummated. The record further discloses that four prominent and experienced attorneys of Topeka testified that the reasonable value of the legal services performed by plaintiff’s attorney in the preparation and trial in the district court would be from $4,000 to $5,000.
When confronted with a similar complaint as to the allowance of attorney fees in a divorce action in Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021, we stated:
“. . . The reasonable value of such fees, under legislative mandate, rests largely in the sound judicial discretion of the trial court. (G. S. 1949, 60-1507.) The only function of this court is to examine the record in order to ascertain whether there is testimony to support the finding made by the coui)t. If there is the judgment will not be disturbed. (Citing cases.)” (p. 698.)
The application of the principle to the instant case conclusively shows the order of the trial court allowing attorney fees cannot be disturbed. The judgment is affirmed as to both the appeal and cross-appeal.
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The opinion of the court was delivered by
Hatcher, C.:
This is a proceeding under the provisions of K. S. A. 60-1507 challenging a conviction of first degree robbery and sentence under the habitual criminal act.
The petitioner was convicted of first degree robbery on November 12, 1964. His court appointed attorney duly filed a motion for a new trial. The motion was overruled on November 27, 1964, and the petitioner was sentenced as an habitual criminal for a term of twenty to forty-two years in the state penitentiary.
On January 27, 1965, the petitioner mailed an instrument from the state penitentiary at Lansing designated “Aff-Davit and Motion for Records” which was brought to the attention of the trial court. We quote from the instrument omitting the caption and jurat:
“Comes Now; Greer, Roy Thomas, Petitioner, Epho More this Honerable Court to issive an order directing the official Court reparters or reparter and Clerk of the District Court of Sedgwick County, Wichita, Kansas, to fumisk any and all records pertaining to: State of Kansas vs. Greer, Roy Thomas case number CR-1211-64, In the Sedgwick County District Court of Wichita, Kansas dated, 11-20-64, the following to_exit:
1. Commuttment 5. Sentence
2. Jurnal Entry 6. Transcript
3. Information 7. Warrant
4. Criminal Action 8. Complaint
“And any and all other records needed on Petitioners behalf, as provided under the 1959 General Statutes of Kansas, 62-1304, supp Kansas, See trinkle -vs- Hand, 185 Kansas 577, and General Statute: 60-1507.
“Respectfully Submitted “/s/ Roy Thomas Greer “Petitioner”
On March 8, 1965, the trial court overruled the petitioners motion. The order stated in part:
“Thereupon, the Court after examining the files and hearing the evidence and being fully advised in the premises, finds that the defendant has failed to furnish the court with the proper affidavit under General Statutes of Kansas 1961 Supplement, 62-1304, and for that reason his motion should be denied.”
Petitioner next, on April 22, 1965, filed a petition under the provisions of K. S. A. 60-1507. In answer as to why he did not appeal from his conviction and sentence he stated:
“(a) The court failed to advise me of ‘Rule 56’ (19) Kansas Prefatory Rule No. 1 (F) x 11).
“(b) My lawyer failed to advise me in the premise of Appellate review.
“(c) I was an indigent unschooled in the mechanics or niceties of the law. More particularly Appellate review.”
As part of his charge of unlawful custody he stated:
“(b) The court failed to advise this defendant of the mandatory requirement of Rule 56 (19 Kansas Prefatory Rule No. 1 (F)xll.). This petitioner has suffered a denial of his right to appellate review. See Smith v. Crouse, Warder, Certiran Misc., 915, decided June 15, 1964; Dougher v. California, 372 U. S. 357, 9 L. Ed. 2d, 811, 83 S. C. T. 814.
“(c) Counsel for the defendant was inaffective for the reason he did not advise me of Appellate review procedure . . .”
It should be noted that the obligation of petitioner’s court appointed attorney did not,extend to the preparation of an appeal.
The trial court found that the files and records of the cases conclusively showed that the petitioner was entitled to no relief; that the appeal time from the sentence had not yet expired, and the petitioner could appeal from his conviction to this court. Relief was denied on May 4, 1965, without appointment of counsel and the petitioner given a right to be heard.
The petitioner has appealed from the order denying relief under K. S. A. 60-1507 and through his court appointed counsel contends his constitutional right to obtain an adequate and effective appellate review of the trial court proceedings was violated by the trial court’s refusal to grant the indigent appellant’s request to furnish appellant a free transcript of the trial proceedings under the provisions of K. S. A. 62-1304 (b).
The state suggests that there was no error in refusing to furnish the transcript because the instrument furnished by petitioner did not show an intention to appeal as required by K. S. A. 62-1304 (b).
We do not find the petitioner’s complaint to be so much the refusal to furnish the transcript but rather the failure to inform him as to the procedure for appeal including the obtaining of a transcript.
The court knew that the petitioner had no means to pay for a transcript or hire an attorney. The court had appointed an attorney for him at the original trial. When the instrument requesting the transcript reached the court it was evident that, as petitioner now states, he was “unschooled in the mechanics or niceties of the law. More particularly Appellate review.” It was also apparent that the petitioner was unschooled in expressing himself in writing.
We are also of the opinion that when the petitioner in his request for a transcript referred to K. S. A. 62-1304, which provides for furnishing a transcript for appeal, the trial court should have known the petitioner desired to appeal but did not know the proper procedure. It was the responsibility of the trial court at that stage of the proceedings to appoint an attorney to assist the petitioner in processing his appeal.
Where the right of appeal is granted by statute in a criminal case, the right should not be denied a defendant because of his indigency or illiteracy. Such denial would constitute a denial of due process. See Porter v. State, 196 Kan. 732, 414 P. 2d 56, and cases reviewed therein. The conclusion reached does not expiate the crime for which the petitioner was convicted nor does it entitle him to the issuance of an order releasing him from custody. However, in the face of the record as presented it does mean that he is entitled to a transcript and the appointment of counsel to assist him in his appeal.
The judgment is reversed and the petitioner is given ninety days from the date the mandate is issued in which to perfect an appeal to this court from the verdict and judgment convicting him of robbery in the first degree, and the district court is directed to appoint an attorney to assist him in processing his appeal.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, John D. Earsery, was convicted of first degree robbery and sentenced to a term in the state penitentiary. He has appealed from that judgment.
Five grounds of error are specified. We shall confine our discussion, however, to the specification dealing with the alleged coercion of the jury, which we believe is decisive of this appeal.
To silhouette the question properly, a chronological outline must be drawn. Trial of the lawsuit commenced on January 11, 1966, and continued all day. The jury received the case at 10:40 the next morning, January 12, and deliberated the balance of that day, during which time they sent three notes to the court:
“Sir: Is the statement of Mrs. Adamson that the defendant was the assailant in this case sufficient identification?”
“Your Honor: Some of the jury believe there is insufficient evidence for a conclusion in this case. What is our next step?”
“May we have a copy of the testimony? There are questions in the area of Mrs. Adamson’s testimony concerning the choosing of the mug shot’ of the defendant and her answers to State and Defense questions of whether she had seen the defendant prior to the commission of the crime.”
After the night recess the jury reassembled at 10:00 a. m. on January 13, at which time portions of Mrs. Adamson’s testimony were read. The court then spoke thusly: “All right. While you are out here, I would like to chat with you just a moment.” and proceeded to read the following instruction:
“This case has been exhaustively and carefully tried by both sides, and at considerable expense, and has been submitted to you for decision and verdict. Although under the law a verdict must be unanimous and should be based upon honest judgment, not mere acquiescence for the sake of expediencey, it is still necessary that you examine the matters submitted to you with the proper regard for, and deference to, the opinion of each other. A proper regard for the judgment of each other should help you greatly in forming your own judgment.
“There is no reason to think that a jury better qualified than you would ever be chosen to try this case. Therefore, each of you should listen to the arguments of the others with an open-mindedness characteristic of a disposition to be convinced by them; and if you differ in your views of the evidence, you should all be led by such differences of opinion to scrutinize the evidence more closely and to re-examine more carefully the grounds of your opinion.
“You should, after all, decide the issues of fact which have been submitted to you. In conferring you should lay aside all mere pride of opinion and you should bear in mind that the jury room is no place for espousing and maintaining, in a spirit of controversy, either side of a cause. The aim to be kept in view is the truth as it appears from the evidence, which evidence you must consider with the instruction of the Court.
“You will again retire to your jury room and examine your differences in a spirit of fairness and candor and try to arrive at a verdict.”
After reading the foregoing written instruction, the court indulged in extemporaneous oral remarks substantially to this effect: that a great deal of expense has been borne by the state to assemble the trial, that the reporter has to be paid, the court has to be paid and the county attorney has to be paid; that defendant’s financial position was such that he could not hire counsel at his own expense and the matter of paying court appointed counsel likewise should be considered; that “We have to consider likewise the expense of each of you, the Jurors.”; that unless a verdict was reached the whole thing would have to be done all over again and the expenses which had mounted up to this point would have to be duplicated.
At the conclusion of the court’s remarks, the jury retired at 10:20 a. m. to resume deliberations. Ten minutes later, at 10:30 a. m. a verdict of guilty was returned.
The defendant maintains that the court erred in giving the instruction above set out and in following that instruction with the remarks heretofore summarized; that the effect of the instruction and of the remarks was to coerce the jury and to prejudice his right to a fair trial; and that a new trial should be granted. We are in essential agreement with the defendant’s position.
The subject of coercive or forcing instructions is not new in this jurisdiction. Numerous cases dealing with this issue are found among the decisions of this court, extending from the early cases of Pacific Railroad Company v. Nash, 7 Kan. 280 and State v. Bybee, 17 Kan. 462, to our most recent decision, State v. Basker, 198 Kan. 242, 424 P. 2d 535.
We believe that no good purpose would be served by citing all of our many decisions which bear upon the question, for it is difficult, if not impossible, to find two cases which are precisely alike. Courts have been ingenious in designing their instructions and in formulating their remarks to the end that some differences, even though slight, will be found to exist in the phraseology or emphasis employed.
Instructions challenged as coercive have been approved by this court in some instances, disapproved in others. Some language has been held to be prejudicial, other language has not. Reversible error has been found in some cases, but not in others. Indeed, the adjudication of cases involving alleged coercion appears to have been largely on an ad hoc basis, although common to them all is the premise that the judgment of the individual juror is not to be subjected to the pressure of coercive or oppressive acts and statements on the part of the court, but is to be exercised free from judicial threat, harassment, constraint or compulsion. (See cases digested in 5 Hatchers Kansas Digest (Rev. Ed.) Trial, §§ 181, 285; 2 Hatcher’s Kansas Digest (Rev. Ed.) Criminal Law, § 160.)
Turning to the instant action, it is noted that the written instruction given the jury follows verbatim that which was prepared by the Committee on Pattern Jury Instructions of the Kansas District Judge’s Association, which appears as PIK 10.20. The pattern instruction, in turn, is fashioned largely after the so-called “Allen” instruction, based on the holding in Allen v. United States, 164 U. S. 492, 41 L. Ed. 528, 17 S. Ct. 154.
In the recent case of State v. Oswald, 197 Kan. 251, 417 P. 2d 261, we approved the giving of an identical instruction under the circumstances which obtained in that case. But the court issued this caveat:
“. . . However, as a word of caution, this instruction quite properly could have been given at the time of the original charge. If so given all question with regard to the coercive effect of the same would be removed. Tire practice of lecturing a jury in a criminal case after it has reported a failure to agree is not to be commended and under circumstances differing from the present case might well be held coercive and erroneous as invading the province of the jury.” (p. 261.)
This language serves to emphasize what this court had to say in State v. Hathaway, 143 Kan. 605, 56 P. 2d 89:
“. . . It is proper to say that such general observations touching the duty and responsibility of jurors, in our system of administrative justice, would better be given when the venire is first convened. . . . The wisdom of such a lecture on jurors’ duties given in the middle of their deliberations in a particular case is not so clear.” (p. 609.)
Our latest expression on the subject of coercive instructions is found in State v. Basker, supra. In that case the trial court did not give the PIK pattern instruction approved in Oswald, but engaged in a lengthy soliloquy containing a variety of improper observations and assertions. Although we said in the course of our opinion that the remarks of the court went beyond those used in Oswald, and that we could not put our stamp of approval upon them, we held that under the attending circumstances of that case the instruction was not so clearly coercive as to result in reversible error.
We are not required to determine whether the PIK instruction read to the jury in this case would, standing alone, constitute prejudicial error under the conditions shown to be present here. The oral remarks of the trial court which followed the giving of the written instruction went far beyond the instruction in its emphasis upon the financial impact which a second trial would have on citizens of the community.
It is quite true that this court, on occasion, has upheld cases in which expense has been mentioned but in none of those cases was the language used so insistent, or the remarks so undisguisedly directed to human parsimony, as the remarks shown here. Moreover, the court misinformed the jury when it said that the matter of paying court-appointed counsel should be considered, as well as the expense of each of the jurors. The public expense incident to a trial is wholly extraneous to the deliberations of a jury.
We hold the court’s remarks to be erroneous. Were they likewise prejudicial?
In posing this question, the court recognizes that not every error which occurs during the trial of a lawsuit approaches the gravity of prejudicial error and that it is only where error adversely affects some substantial right of a litigant that reversible error may be said to have been committed. (State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. den., 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899.) This principle has been applied to cases where instructions of a coercive character were given. (State v. Pyle, 143 Kan. 772, 57 P. 2d 93; State v. Neff, 169 Kan. 116, 218 P. 2d 248, cert. den., 340 U. S. 866, 95 L. Ed. 632, 71 S. Ct. 90.)
In determining whether a forcing instruction or coercive remarks amount to reversible error, the circumstances under which the same were made must be considered, and the probable impact of the instruction or remarks on the jury must be weighed in the light of the surrounding conditions. Considered in that context we have no hesitancy in concluding that the court’s remarks in the present case were prejudicial.
It is clear from the notes which the jury sent to the court that# some jurors were concerned over the sufficiency of the defendant’s identification and that there were some jurors who thought the evidence insufficient to reach a verdict. This situation existed from the time the jury received the case, at 10:40 a. m., until court was recessed that evening. It was only after the court had “chatted” with the jury next morning about the cost of another trial that the jury, in the short space of ten minutes, returned a verdict of guilty. We would be naive to believe there was no connection between the court’s dissertation on expense and the jury’s hasty action thereafter.
We can readily understand the reluctance of a court to dismiss a jury which had failed to agree. Hung juries are, indeed, an abhorrence to a trial judge whose obligation it is to administer the affairs of his court with dispatch as well as with evenhanded justice. It is probable that no experience is more frustrating to a court than the retrial of somebody’s lawsuit. The sensation is somewhat akin to dining on yesterday’s cold mashed potatoes.
Nevertheless, it is not a part of the judicial function to invade the province of the jury by coercing the will or judgment of any juror. A litigant is entitled to the free and independent judgment of every juror, uncoerced by judicial authority. In State v. Basher, supra, the court’s responsibility in this area was expressed in this way:
“It is the duty of a judge to guide the jury in its decision-making process by giving proper instructions. But he must never abuse this office by coercing the jury into making decisions it might not otherwise make.” (p. 247.)
The state points out that no timely objection was made to the court’s remarks, and so far as the record reveals, that is true. We may say here, however, that apparently no record was made of the court’s remarks or of what transpired at that time. The remarks were reconstructed by defense counsel during his argument on the motion for new trial and, as so reproduced, were acknowledged by the court as essentially correct.
This is, at best, an unsatisfactory method of making and preserving a record. For the sake of everyone concerned, litigant, counsel, trial court, and this court as well, upon appeal, every communication between judge and jury should take place in the presence of and be recorded by the official court reporter.
But whether objection was made or not to the court’s statements, and we must assume that none was made, we think it incumbent on us to consider them. This matter received attention in Coleman v. Patti Construction Co., 182 Kan. 53, 318 P. 2d 1028, where we said:
“Appellee raises the point that appellant made no timely objection. In Moore v. Owens, supra, the court indicated that timely objection must be made to the instruction or statement so as to give the court an opportunity to correct the error, if any, in making the statement.
“This rule is not mandatory in all cases and is seldom applied. (Neely v. Travelers Ins. Co., supra; State v. Beacon Publishing Co., supra; Eikmeier v. Bennett, supra.) Many times counsel does not have adequate opportunity to state his objections.
“Upon appellate review whenever the record of the remarks or instructions of the court to a jury are plainly coercive, as they are here, or tend to be coercive and as such are prejudicial, this court will not hesitate to declare such conduct an abuse of discretion and order a new trial.” (p. 62.)
We believe the rule expounded in the Coleman case to be a salutary rule which is controlling here.
The judgment of the court below is reversed and this case is remanded with directions to set aside the verdict and to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Schroedeb, J.:
This is an appeal in a criminal action wherein the appellant was found guilty by a jury of murder in the first degree; possession of a pistol after conviction of a felony; two counts of attempted first degree kidnapping; and two counts of felonious assault.
The principal points presented on appeal concern questions of law based upon the instructions given by the trial court as applied to the evidence in the . case.
The material facts disclosed by the evidence in the record are not in dispute.
Shortly after midnight on the 8th day of August, 1965, a young colored housewife twenty-two years of age named Mary Alice Downing was sitting on the seat of a motorcycle parked on the street in front of the house at 1324 Wabash in the city of Wichita, Kansas, waiting for a man with whom she had been riding, one L. C. Goines. He had gone into the house where he resided to check on the welfare of an aged mother. While seated on the motorcycle which was headed north and near the east curbline of the street, she was struck in the back of the head with a bullet, part of which lodged in her brain. Goines had just gone into the house when he heard a report, which sounded like a shot, and heard a car speeding away. He ran out of the house and found Mary Alice Downing slumped over his motorcycle and saw blood running. She was immediately taken to the St. Francis Hospital at Wichita where she was pronounced dead at 2:40 a. m.
Although the exact chronology of events which occurred in the early morning hours of August 8, 1965, is not definitely established, the evidence discloses that a white 1953 or 1954 model Oldsmobile automobile driven down Ohio Street from the north in the 1000' block pulled over to the side of the street at 1037 Ohio and stopped where a man named Augustus Wells, Jr., and a woman named Lucretia Brown were walking north on the sidewalk along the west side of the street. As the automobile came to a halt a man told them to get into the car, and immediately a pistol was projected outside the right hand window of the automobile, snapped twice, and then fired four times. At the time the gun fired they were only six or seven feet from the automobile. No one was hit and none of the slugs that were fired from the gun on this occasion was recovered.
Also, in the early morning hours of August 8, 1965, a white automobile drove north on Washington Street to the intersection of 11th Street where it made a left trun and pulled up at the northwest quadrant of the intersection. At that place a young woman named Victoria Johnson was proceeding southward and had just reached the intersection. As she reached the corner the white automobile pulled up and a voice from the automobile said, “Get in,” and then a gun was immediately fired two, three, or possibly four times. The young woman was four to six feet from the automobile, according to her testimony, but she was not hit. She could not identify the person in the automobile and she did not actually see the gun, although she saw the flash when the gun was fired.
Police officers who were originally called to the scene at 1324 Wabash upon being told that a white automobile had come by and sped away after the gun was fired, immediately began to look for such an automobile. Officer Fletcher was only about one block away when he observed an automobile at the corner of 11th and Washington Streets, which was light in color. He saw the head lights and then heard what he thought were three or four shots fired in rapid succession. He thereupon drove toward this automobile at which time the automobile started toward him, and the man driving the car informed him that someone was shooting down there. Whereupon the officer said, “Yes, it was you.” The driver of the white automobile then took off at a high rate of speed. The officer immediately reversed the direction of his patrol car and gave chase, never losing sight of the white automobile. The chase was at high speeds and made rounds of several blocks in the immediate location. When the white automobile finally got onto Murdock Street it headed in a westerly direction and drove across to the west side of the city to Riverside Park where the driver missed a turn and rolled the automobile.
At the scene of this accident the driver of the white automobile, dressed in a pair of pants, socks and shoes, with no shirt or underpants, was found to be the only occupant of the vehicle. The wrecked vehicle was described as a white 1954 Oldsmobile 2-door hardtop bearing Kansas license plate SG1574. In the automobile was found an automatic pistol, described as a 7.65 Millimeter Pistola Beretta, Serial No. 408474, part of a box of live ammunition, a clip for the pistol, and two brass empty shell casings of a .32 caliber bullet.
When first seen the appellant appeared to be unconscious and was removed to St. Francis Hospital for treatment. Upon his release from the hospital later the same morning, he was placed under arrest and identified as Robert Lewis Moffitt (defendant-appellant. )
In the investigation which followed empty shell casings were found at the scene of the various shooting incidents: At 1324 Wabash they found one empty .32 caliber shell casing, part of a copper jacket from a bullet, and a lead slug lying in the street; at 1037 Ohio three empty .32 caliber shell casings were found; and at 11th and Washington Streets one empty .32 caliber shell casing was found. Besides this, the copper jacket from a bullet and the lead base of a bullet were both recovered from the brain of Mary Alice Downing.
Captain Bevis, the laboratory supervisor of the Wichita police department and an expert in firearms identification, supervised the investigation and testified that all of the expended cartridges as well as the slugs which were found in connection with this case were all fired by the automatic pistol which was found in the automobile being operated by the appellant.
The automobile which the appellant had been driving was registered in the name of his father.
The evidence established that early in the evening of August 7, 1965, Robert Lewis Moffitt (defendant-appellant), a white male, had run into a person he had known prior to that time by the name of Donald McDonald, a colored male. They began drinking beer and whiskey in a place known as Frank Jones’ beer tavern in the 900 block on North Washington Street. The appellant was furnishing the beer and whiskey, and during the course of the evening they came into contact with a colored female named T. Esther Hearns who sat in the same tavern and drank whiskey with them. In the course of the evening arrangements were made to go to the house of T. Esther Hearns- at 1301 Estelle Street. Two other colored men accompanied them, one being L. V. Rogers who lived with T. Esther Hearns. The four men in this party of five upon meeting at 1301 Estelle drank whiskey and engaged in a dice game. When the evening began, the appellant is reported to have said he had a bunch of money. After the gambling had proceeded for a while, T. Esther Hearns went to bed and left the four men gambling. L. V. Rogers testified the gambling broke up after about an hour because he had all the money.
Later the three men with whom the appellant had been gambling decided to leave the place to get some more whiskey, thus leaving T. Esther Hearns and the appellant in the house alone. According to T. Esther Hearns, she was awakened by the appellant, whom she says at that time had removed his clothing except his shoes and socks and was standing, or rather sort of sitting on the side of the bed, making advances toward her, wanting to have intercourse with her. She said upon her refusal the appellant struck her at which time she got up, went into the kitchen and got a butcher knife with which she drove him from the house. When the appellant left the house he was wearing nothing except his shoes and socks, carrying his clothes in his arm. He got into the white 1954 Oldsmobile automobile and drove away.
The appellant evidently realizing that his money was gone went to his father’s home at 1106 Ash where he obtained the pistol involved and the ammunition for it. He then drove back to see if he could find the place where his money had been taken from him. He could not find the house where T. Esther Hearns lived, but did go up to one house at 11th and Green and looked into the window. Upon discovering that it was not the house, the appellant left and went around the block, at which time he had a slight collision with another automobile, a 1959 Chevrolet. A paint sample taken from the right front bumper of the automobile which the appellant was driving was identified with a paint sample taken from the left rear of the Chevrolet automobile. Thereafter he drove around the area where the events heretofore related took place, culminating in his apprehension and arrest.
The police officer who first saw the appellant after he wrecked his automobile testified that the appellant had no money in his billfold which he had on his person. The appellant’s father testified that he found the appellant’s other billfold in the automobile sometime later under some newspapers on the floor board of the front seat of the car, and that it also contained no money.
The evidence disclosed that the appellant had never met Mary Alice Downing, the deceased, Lucretia Brown, Augustus Wells, Jr. or Victoria Johnson. It is established that the appellant and the decedent were perfect strangers to each other at the time he shot her in the back of the head, and the appellant and the other persons at whom he shot were likewise strangers to each other.
The appellant was charged by the state upon an information in six counts as follows: Count I — illegal possession of a pistol after felony conviction, contrary to K. S. A. 21-2611; Count II — first degree murder, contrary to K. S. A. 21-403; Count III — attempted first degree kidnapping, contrary to K. S. A. 21-101 and 21-449; Count IV — felonious assault, contrary to K. S. A. 21-431; Count V —attempted first degree kidnapping, contrary to K. S. A. 21-101 and 21-449; and Count VI — felonious assault, contrary to K. S. A. 21-431.
The case was tried to a jury which took two days to impanel, and the trial proceeded for seven days, the defendant presenting no evidence. The trial resulted in a conviction on all counts. As to the murder count the jury specifically found:
“. . . the defendant guilty of count two in the information, first degree murder and the killing of Mary Alice Downing while in the commission of a felony and assess the penalty at hard labor in the penitentiary for life.” (Emphasis added.)
The appellant filed a motion for a new trial which the trial court heard and overruled on the 10th day of January, 1966.
From the evidence in the case the journal entry recites the trial court found the appellant had previously been convicted of a felony, namely third degree burglary and larceny in connection therewith in the district court of Sedgwick County, Kansas, No. A52669 on the 23rd day of December, 1954, and was thereafter confined in the Kansas State Industrial Reformatory at Hutchinson, Kansas, in accordance with the sentence therein pronounced.
The appellant was thereupon sentenced:
“. . . to the Kansas State Penitentiary at Lansing, Kansas, there to be confined for a period not exceeding five (5) years on the charge of Illegal Possession of a Pistol After Felony Conviction, Count One, contrary to K. S. A. 21-2611, and in accordance with K. S. A. 21-2611, 21-107a, and 21-109, as provided by law; and there to be confined for the duration of his natural life on the charge of First Degree Murder, Count Two, contrary to K. S. A. 21-401, and in accordance with the verdict of the jury which tried this case, as provided by law, said sentence to run consecutively with the sentence imposed upon the defendant in Count One herein; and there to be confined for a period of ten (10) years on the charge of Attempted First Degree kidnapping, Count Three, contrary to K. S. A. 21-101 and K. S. A. 21-449; and there to be confined for a period of ten (10) years on the charge of Felonious Assault, Count Four, contrary to K. S. A. 21-431; and there to be confined for a period of ten (10) years on the charge of Attempted First Degree Kidnapping, Count Five, contrary to K. S. A. 21-101 and K. S. A. 21-449, said sentence to run consecutive to the sentence imposed upon the defendant in Counts Three and Four herein; and there to be confined for a period of ten (10) years on the charge of Felonious Assault, Count Six, contrary to K. S. A. 21-431, said sentence to run concurrently with the sentence imposed upon the defendant in Count Five herein. . . .”
The first specification of error raised by the appellant is that the trial court erred in admitting or allowing the entire court file disclosing the appellant’s prior felony conviction in 1954 to be taken to the jury room to be considered by the jurors.
In the course of the trial the state, to show a prior conviction of the appellant, procured court file No. A52669 from the office of the clerk of the district court of Sedgwick County, Kansas. The file was marked Exhibit No. 55 and presented to the trial court, who was asked to take judicial notice of the journal entry. It disclosed the appellant had prior to the alleged offenses herein been convicted of third degree burglary and larceny in connection therewith. The court ruled that it would take judicial notice.
The appellant contends the file was never offered to defense counsel for examination, and that neither the journal entry nor the file was offered in evidence. Furthermore, he argues no instruction was requested from the court regarding the file or journal entry, and the court did not instruct upon them.
The jury in the course of deliberations sent a note to the court requesting the file which disclosed the prior conviction. After considerable argument the court ruled that inasmuch as it had taken judicial notice of the journal entry, the entire file would be sent to the jury room as an exhibit on the ground that defense counsel had not objected to taking judicial notice of the journal entry.
The appellant concedes the trial court properly took judicial notice of the journal entry disclosing the appellant’s prior conviction in the same court. He argues, however, in order to bring the matter which has been judicially noticed properly before the jury, it must either be offered and admitted into evidence as an exhibit or be the subject matter of a proper instruction by the court, neither of which was done in the instant case.
The appellant contends some of the extraneous papers contained in the file made positive identification and connection between the appellant herein and the defendant named in the prior case.
In his brief, however, the appellant “does not argue that he is not one and the same person,” and further says, “It cannot be denied that the appellant herein had, in fact, been convicted of a felony prior to this trial.”
The subject of judicial notice is now contained in K. S. A. 60-409, 60-410 and 60-411. The matter concerning which the court took judicial notice in this case falls directly within the provisions of K. S. A. 60-411, which state:
“If a matter judicially noticed is other than the common law or constitution or public statutes of this state, the judge shall indicate for the record the matter which is judicially noticed and if the matter would otherwise have been for determination by a trier of fact other than the judge, he shall instruct the trier of the fact to accept as a fact the matter so noticed.”
At most, the error complained of by the appellant on this point is technical, and it did not in any way prejudice the appellant in the trial of this case. The only issue argued upon which the point could have been material concerned the identity of the appellant with the person who committed the prior felony. Where, as here, the identity is admitted, the objection necessarily dissipates. Here the prior felony committed by the appellant in 1954 was conceded by the appellant, and the trial court, having taken judicial notice of the journal entry, submitted the file to the jury from which it found the appellant had committed the prior felony as indicated by its verdict in Counts I and II.
Here the state was required to prove the conviction of a prior felony by the appellant to establish an element of proof in Count I of the information.
Second, the appellant specifies that the trial court erred “in instructions given to the jury in their entirety.”
The trial court in submitting the case to the jury gave thirty-three written instructions, and after the jury’s deliberations had commenced gave a supplemental instruction in answer to a question submitted by the jury.
Under this specification the appellant makes very brief comment without citing authorities to show the trial court erred. Most of the instructions concerning which the appellant complains are considered in more detail under other specifications where they are individually attacked.
Aside from the usual instructions given to a jury in a criminal case, the trial court instructed the jury on the law by quoting various statutes as follows: K. S. A. 21-2611 (No. 3 — possession of a pistol after conviction of a felony); K. S. A. 21-401 (No. 4 — murder in the first degree); K. S. A. 21-449 (No. 5 — kidnapping in the first degree); K. S. A. 21-431 (No. 6 — assault with intent to kill); K. S. A. 21-403 (No. 7 — jury to determine penalty upon conviction of murder in the first degree); K. S. A. 21-404 (No. 14 — justifiable homicide); and K. S. A. 21-101 (No. 16 — attempt to commit offense prohibited by law).
In addition to the foregoing the trial court instructed on lesser included offenses in Count II which charged murder in the first degree (Nos. 9 to 13, inclusive); on intent and felonious intent (No. 17); on “malice,” “malice aforethought,” “murder,” “willful,” “deliberate,” and “premeditated” (No. 20); on motive (No. 20A); on “deadly weapon” (No. 21); on the words “heat of passion” (No. 22); on circumstantial evidence (No. 23); and the difference between direct or positive evidence and circumstantial evidence (No. 24).
The trial court instructed on premeditated murder by a paragraph added to the murder statute quoted in No. 4. Then following the instruction on intent it gave instruction No. 18 which informed the jury that the law presumes a person to intend the natural consequences of his acts intentionally done, that the presumption prevails unless, after consideration of all the evidence bearing upon the point, it had a reasonable doubt of the existence of such intent. The instruction went on to state if the jury found that the defendant did shoot Mary Alice Downing and that the natural and ordinary consequences of such shooting would be death, then the presumption of the law is that the defendant shot her with the intent to kill her. The court further instructed that the presumption was not conclusive.
The appellant feebly complains of instruction No. 19 on intent as affected by intoxication, but cites State v. Rumble, 81 Kan. 16, 105 Pac. 1, which supports the instruction given. The instruction as given is in accordance with the law of Kansas.
The appellant also complains of instruction No. 24 defining the difference between direct and circumstantial evidence in that it does not advise the jury, in order to convict on circumstantial evidence the circumstances must not only be consistent with guilt but must exclude every other reasonable hypothesis. Though worded in different form the substance of the omission was contained within the instruction given, and we find no error in it. The record fails to disclose any objection by the appellant to the instruction at the time it was given, or that the appellant made a request for an addition to it.
The appellant complains of instruction No. 29 on flight. It reads r.
“You are instructed that flight raises the presumption of guilt. Therefore, if you find from the evidence that the defendant, soon after the commission of the offense alleged in the information, fled to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. His flight, if he did flee, is not sufficient in itself to establish guilt, but a circumstance which you may consider in determining the probabilities of his guilt or innocence.. The weight to which that circumstance is entitled is a matter for the Jury to-determine in connection with all the facts brought out in the case.
“If he fled and his flight is unexplained, the law says it is a fact that maybe taken into account against the defendant upon the theory that one’s conscience teaches him to know whether he has done right or wrong in a given case.”
Fligbt does not give rise to a presumption of guilt in a criminal' case. In isolation, the first sentence of the foregoing instruction-, was therefore erroneous. In State v. Thomas, 58 Kan. 805, 51 Pac. 228, the court said:
“Flight by a person accused of a crime, though not of itself sufficient to-support a conviction, is a circumstance that may be shown against him and given such weight as the jury deem it entitled to; and it is not error for the court, in tire instructions to the jury, to mention the fact that evidence tending to prove-flight has been offered, and may be considered by them as a circumstance bearing on the guilt of the accused, with all the other evidence in the case.”' (Syl. ¶8.)
In State v. Marsee, 93 Kan. 600, 144 Pac. 833, a requested instruc tion to the effect that such attempted escape was not proof of guilt, where the evidence tended to show the defendant attempted to escape arrest by flight, was said to be sound. Another requested instruction to the effect that flight was not to be considered as any evidence against the defendant was said to be unsound “for the matter was one to be considered by the jury, with all the other circumstances, for such light as it might throw upon the issue.” (p. 605.)
Except for the first sentence, instruction No. 29 is a correct statement of the law. That which follows the first sentence was designed by the trial court to explain how the jury should consider evidence of flight and therefore correctly stated the law in defining what it meant by the presumption. In our opinion this instruction to the jury did not prejudice the appellant.
The other instructions given by the trial court pertain to felony murder and give rise to the primary issue presented on appeal.
Instruction No. 8 reads:
“You are further instructed that Kansas Statutes Annotated, Section 21-401, provides in part as follows: ‘Every murder which shall be committed . . , while in the perpetration or attempt to perpetrate ... a felony shall be deemed murder in the first degree.’
“In this regard you are instructed that if you find from the evidence beyond a reasonable doubt that in the County of Sedgwick and State of Kansas, on or about the date charged in the information, Mary Alice Downing died as a result of an act committed by the defendant while in the perpetration or attempt to perpetrate a felony, and that the death of Mary Alice Downing occurred within one (1) year and One (1) day after and from the effects of the shooting, then you will find the defendant guilty of murder in the first degree.
“In the event that you do find the foregoing from the evidence beyond a reasonable doubt, you are further instructed that it is not necessary for conviction in that event that it be shown that the defendant intended to cause the death of Mary Alice Downing or any other person, nor that the defendant intended for the firearm to be discharged.”
The trial court again referred to felony murder by instruction No. 19A, which reads:
“You are instructed that if you find from the evidence beyond a reasonable doubt that Mary Alice Downing was sitting on a motorcycle and that the defendant was in possession of a pistol with a barrel less than twelve inches in length, after having been previously convicted of a felony, burglary in the third degree and grand larceny in connection therewith, and that he shot a pistol and as a result thereof Mary Alice Downing died, then you will find the defendant guilty of Murder in the First Degree, providing you have resolved Instruction No. 17 and 19 against this Defendant.
“You are further instructed that it is no defense to crime that the defendant may have mistaken Mary Alice Downing tor some other person, or that the defendant may have been angry, or that he may have supposed himself wronged by some other person.”
Among the foregoing instructions the appellant pinpoints the lifting of a portion (the felony murder rule) from K. S. A. 21-401 by instruction No. 8 and the concluding paragraph of that instruction. He contends after the court instructed upon 21-401, supra, in its entirety, it was not justified in lifting these words out of that particular section of the statute and advising the jury that if the appellant “committed an act even though he didn’t even intend to commit the act that if he was in the perpetration of a felony they should find him guilty of first degree murder.”
The appellant also complains of the second paragraph of instruction No. 19A, which he contends negates any defenses based upon mistakes or. anger or the fact that the appellant had been wronged by anyone.
We shall pass these points momentarily and treat them under another specification of error.
The appellant’s broadside attack upon the instructions generally is that the trial court “in his instructions leaned heavily toward encouraging the jury to find guilt as a matter of law, without regard to making a determination of fact.” This objection seems to be hinged on the felony murder instructions given.
The appellant by his third specification of error alleges the trial court erred in refusing the pretrial motion to strike, the motion to discharge and the objections made on behalf of the appellant to Counts II, III and V of the information. In his brief he joins with this specification No. 4, which charges that the trial court erred in giving an instruction to the jury on first degree kidnapping, and specification No. 6 which charges that the trial court erred in giving an instruction on an attempt as it concerned first degree kidnapping.
The points raised by these specifications relate to appellant’s theory of the law applicable in this case. We shall first consider Counts III and V which charge the appellant with attempted kidnapping in the first degree, the instructions relating thereto, and the jury’s finding of guilty with respect to these counts.
In view of the evidence presented by the record, it is unnecessary to consider the legal theory upon which appellant objects to Counts III and V prior to trial.
The testimony of Augustus Wells, Lucretia Brown and Victoria Johnson in each instance was to the effect that a white automobile being operated by a person unknown to them, but which was in fact the appellant, drove up to them at the side of the street, and they heard words to the effect “Get in the car” or “Get in;” that simultaneously with those words the gun was at the window of the automobile and was discharged in rapid fire succession, at close range.
Reason would suggest that at such close range either the appellant was an exceedingly bad shot or that he did not intend to hit anyone. Reason would further indicate that the bullets fired almost simultaneously with the words “Get in,” before anyone could move away from the automobile or toward it, negated any thought or expectation of the appellant that such persons would get into the automobile in the face of a pistol being fired. In our opinion the words “Get in,” or words of like effect when coupled with the immediate firing of the pistol constituted but one act — the felonious assault— and as a matter of law1 did not supply any evidence of an attempt to kidnap any of the persons assaulted.
On such failure of evidence the trial court erroneously instructed as to attempted kidnapping in the first degree (instructions Nos. 5 and 16), and the appellant’s conviction on Counts III and V must be set aside.
The appellant’s objection to Count II is so closely related to specifications Nos. 5 and 7 that we shall consider them together. Specifications Nos. 5 and 7 read:
“5. Did the court err in allowing the consideration by the jury and consequently the instructions allowing the possession of a pistol after the conviction of a felony to be considered by the jury as pertaining to what is commonly known as the felony murder rule or in connection with section 21-431 which is commonly called felonious assault?
“7. Did tire court err in giving instruction No. 19A, making it mandatory upon the jury to convict the defendant of murder in the first degree under the felony murder rule?”
The foregoing specifications are referred to by the appellant as presenting the real meat of this entire lawsuit and particularly the appeal.
In this connection the appellant says it cannot be denied that he had in fact been convicted of a felony prior to this trial, nor can it be denied that on the occasion on which the events here involved occurred, he did have in his possession a pistol with a barrel less than twelve inches in length. By the same token, he contends, the state is not in a position to deny that it relied upon the above facts and tried this case upon the theory that the possession of the pistol, after the prior felony conviction, constituted a felony during the perpetration of which a homicide was committed, thus bringing to bear the commonly known felony murder rule.
The appellant takes the position that the jury did not find him guilty of murder with deliberation, premeditation and malice aforethought — that the verdict “shows clearly that the jury found the Appellant guilty of murder in the first degree for killing Mary Alice Downing, while in the commission of a felony.”
It should be noted the jury found the defendant “guilty of count two in the information, first degree murder and the killing of Mary Alice Downing while in the commission of a felony.” (Emphasis added.)
Count II of the information in pertinent part charges that:
“. . . on or about the 8th day of August, 1965, one ROBERT LEWIS MOFFITT did then and there unlawfully, feloniously, wilfully, deliberately, premeditatedly, and with malice aforethought, and while in the commission of a felony, kill and murder Mary Alice Downing with a dangerous and deadly weapon, a 7.65 Pistola Beretta, Serial No. 408474, being a pistol with a barrel less than 12 inches in length, by shooting Mary Alice Downing in the back of the head of which wounds she did die on August 8, 1965, in front of 1324 Wabash, Wichita, Sedgwick County, Kansas, . . .”
The finding of the jury in view of Count II as charged would suggest that it is double barreled — that the appellant was found guilty of premeditated murder and guilty of murder while in the commission of a felony, both of which under K. S. A. 21-401 constitute murder in the first degree.
A study of the verdict forms submitted to the jury upon consideration of the case discloses that four forms were submitted. The form adopted by the jury as its verdict on Count II has heretofore been quoted, using the expression, “first degree murder and the killing of Mary Alice Downing while in the commission of a felony.” Another verdict form is worded identically except that the penalty was assessed at death. A third form submitted reads:
“We, the Jury, impaneled and sworn in the above entitled case, do upon our oath find the defendant guilty of count two in the information, first degree murder, deliberately, premeditatedly, and with malice aforethought, and assess tire penalty at hard labor in the penitentiary.”
The fourth form was to be used by the jury in the event it found the appellant not guilty of Count II in the information.
For purposes of this appeal, in view of the verdict forms submitted to the jury, we shall assume the appellant’s construction of the jury’s verdict on Count II is correct.
Prior to the selection of a jury counsel for the appellant moved the court to require the state to elect whether or not it relied upon deliberation, premeditation and malice aforethought for a conviction on Count II, or the theory that the appellant was in the perpetration of a felony, or attempt to perpetrate a felony at the time of the death of the victim. The court denied this motion.
It has been the basic contention of the appellant throughout the trial of this case, and upon appeal to this court, that the felony murder rule cannot possibly apply to the facts in the instant case.
Counsel for the appellant argue in their brief that it was known prior to the commencement of the trial the appellant herein was not acquainted with Mary Alice Downing, Lucretia Brown, Augustus Wells or Victoria Johnson. It is therefore argued the appellant could not have had any personal animosity toward them. Thus, it is argued, particularly with regard to murder in the first degree, the idea of premeditation, malice aforethought and deliberation is negated. Counsel for the appellant on their theory of the law therefore conclude that a requirement to elect at the trial would almost necessarily have reduced the charge in Count II to murder in the second degree.
Counsel for the appellant further argue when the evidence presented by the state bore out the fact that there was a complete lack of acquaintanceship between the appellant, the decedent, and the persons assaulted, the trial court should have discharged ■ the appellant from first degree murder as it related to malice aforethought, premeditation and deliberation.
Upon the assumption that the appellant’s interpretation of the jury verdict on Count II is correct, further consideration of premeditated murder, included in Count II of the charge and embraced within the evidence and the instructions, becomes immaterial.
K. S. A. 21-401 provides:
“Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.”
This law had its origin in the Territorial Laws of 1855 and was reenacted in 1859. It subsequently became a part of the General Statutes in 1868, and a part of the Revised Statutes of 1923. During all of that time it retained its present form.
The foregoing statute on murder has been before the court on numerous occasions for construction. In State v. Keleher, 74 Kan. 631, 87 Pac. 738, it was said:
“At the common law it was not essential to allege or prove the specific intention to kill, if the act from which death ensued was malum in se or done with a design to commit a felony. (1 Whart. Crim. Law, 10th ed., §120; 2 Bish. Crim. Law, 7th ed., §694.) Our statute defining murder in the first degree is identical with the Missouri statute, from which it was probably taken, and the same doctrine is there maintained as in Pennsylvania. (The State v. Meyers, 99 Mo. 113, 12 S. W. 516; State v. Foster, 136 Mo. 653, 38 S. W. 721.) Proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would be necessary to constitute murder in the first degree.
“The only essential difference between murder in the first degree and murder in the second degree is that the former is committed after deliberation and premeditation, which elements do not inhere in the lower grade of the crime; . . .” (p. 635.)
A similar statement was made in State v. Roselli, 109 Kan. 33, 198 Pac. 195, where the court said:
“On numerous occasions this court has adverted to the fact that the statute does not define murder, and that the basis of the legislation is murder at common law. For purpose of punishment murder is divided into two degrees, depending on presence or absence of deliberation and premeditation. Every murder committed by any kind of willful, deliberate and premeditated killing, is murder in the first degree. Use of poison, lying in wait, and killing in perpetrating or attempting to perpetrate arson, rape, robbery, burglary, or other felony, are statutory equivalents for the deliberation and premeditation essential to murder in the first degree. All other murders are murders in the second degree.” (p. 35.)
The foregoing cases were affirmed and quoted in State v. Turner, 193 Kan. 189, 392 P. 2d 863, where the homicide was committed in the course of a burglary or robbery, and the defendant on trial was one who aided and abetted in the burglary or robbery.
Other cases dealing with the felony murder rule are State v. Boone, 124 Kan. 208, 257 Pac. 739; State v. Jella, 132 Kan. 509, 296 Pac. 350; and State v. Pyle, 143 Kan. 772, 57 P. 2d 93.
It should be noted that in each of the foregoing cases the felony being perpetrated in the course of which the homicide occurred was among those specifically enumerated in the statute, such as burglary or robbery. None has dealt with the words “or other felony.”
It was recognized by this court in State v. Severns, 158 Kan. 453, 148 P. 2d 488, that authorities and decisions dealing with definitions of murder and manslaughter at the common law are not fully in accord. Rut the court said where any such definitions are not in accord with our statutory provisions the latter must control.
The court in Severns was concerned with the first degree murder statute (21-401, supra) and said:
“The definition is subject to the criticism that it uses the word murder’ to define itself, although it seems clear that the word is used as equivalent to the word ‘homicide.’ It does make it clear that any killing committed in the perpetration or any attempt to commit certain named crimes or other felony, is murder in the first degree. Under this section it has been held that the elements of the named crime or other felony ‘must be so distinct from that of the homicide as not to be an ingredient of the homicide, convictable under an information charging the homicide as murder.’ (State v. Fisher, 120 Kan. 226, syl., 243 Pac. 291.) . . .” (p. 457.)
In State v. Fisher, 120 Kan. 226, 243 Pac. 291, the defendant was charged in two counts, one designed to charge premeditated murder, and the other designed to charge felony murder, but the felony asserted was assault with intent to kill. The assault was the same act which resulted in the homicide. This was held improper on the ground the same act cannot be made the basis, first, of some other felony, and then that felony used as an element of murder in the first degree. The situation in Fisher is to be distinguished from the facts presently before the court.
A felony under our statutory definition is an offense punishable by death or confinement and hard labor in the penitentiary. (K. S. A. 62-104.)
Whether a criminal offense is a felony under our statutes is determined by the sentence which might lawfully be imposed, and not by the sentence actually imposed in a particular case. (State v. Bowser, 155 Kan. 723, 129 P. 2d 268, Syl. ¶ 1.)
The question posed is whether the felony created by K. S. A. 21-2611 (possession of a pistol after having been convicted of a felony), first enacted by the Kansas legislature in 1955, is embraced within the term “other felony” in K. S. A. 21-401.
The appellant takes the position that the felony created by 21-2611, supra, first enacted by the legislature one hundred years after the first territorial enactment in which the murder statute was adopted, does not fall within the meaning of the term “other felony.”
He argues 21-2611, supra, does not require intent as a prerequisite for its application. (State v. Wheeler, 195 Kan. 184, 403 P. 2d 1015.) The appellant asks whether it is possible for a felony, which does not require any intent as an ingredient for its proof, to supply the deliberation and premeditation required to elevate a homicide which occurs in the perpetration of such felony to murder in the first degree.
The appellant contends the words of a statute must be taken in a sense in which they were understood at the time the statute was enacted, and the statute must be construed as it was intended to be understood when it was passed. He urges that the maxim ejusdem generis ought to apply where general words follow an enumeration of special or more specific things — that the general words are to be construed as applying only to things of the same general kind as those specifically mentioned. Thus, it is argued, in 21-401, supra, the term “or other felony" ought to mean felonies which are malum in se or as felonies were known at the common law.
The appellant also relies on authorities which hold that the legislature in 21-401, supra, and K. S. A. 21-402 did not define the word “murder,” but used the term in its technical common law sense. (Craft v. State, 3 Kan. 450; State v. Keleher, supra; and State v. Roselli, supra.)
The appellant contends the statutes from the state of Missouri and the state of Pennsylvania, from which Kansas took 21-401, supra, have been so construed. Among the cases cited by the appellant,- Commonwealth v. Exler, Appellant, 243 Pa. 155, 89 Atl. 968, is the one upon which he relies most heavily. The appellant asserts that since our statute was taken from Pennsylvania and Missouri, the law of these states construing 21-401, supra, should apply.
In Exler the defendant committed statutory rape upon a girl twelve and one-half years old. She died from shock as a result of the act. It was held the statutory rape was not “rape” as the term was used at the common law and was not embraced within the first degree murder statute.
When 21-401, supra, first became the law of Kansas by enactment in the Territorial Laws of 1855, the territorial legislature defined the term “felony” as follows:
“The term ‘felony,’ when used in this act, or any other statute, shall be construed to mean any offense for which the offender, on conviction, shall be liable by law to be punished with death, or confinement and hard labor, and no other.” (Terr. L. 1855, ch. 54, §36.) (Emphasis added.)
Thus, the term “felony” was specifically defined by the Territorial Laws of 1855 when 21-401, supra, first became the law of Kansas, and was broadened by definition to embrace the term “felony” when used in any other statute. Taking the words of the statute in the sense in which they were understood at the time the statute was enacted, the term “other felony,” as used in 21-401, supra, must be construed to apply to new felonies created by statute, the act not previously being felonious, as well as to common law felonies.
The court in Severns said the statute (21-401, supra) “does make it clear that any killing committed in the perpetration or any attempt to commit certain named crimes or other felony, is murder in the first degree.” (p. 457.) (Emphasis added.)
The firearms control legislation of Kansas is set forth in Article 26, Chapter 21, of the Kansas Statutes Annotated. In 1955 the legislature apparently recognized that persons who had once committed a felony were dangerous to society and should not own, have in their possession, or under their control, concealable weapons. It therefore enacted K. S. A. 21-2611 which in part provides:
“It shall be unlawful for any person who has previously been convicted in this state or elsewhere of committing or attempting to commit murder, manslaughter (except manslaughter arising out of the operation of an automobile), kidnaping, mayhem, forcible rape, assault to do great bodily harm, or any other felonious assault, robbery, burglary, extortion, grand larceny, receiving stolen property, aiding escape from prison or unlawfully possessing or distributing habit-forming narcotic drugs or cannabis sativa, commonly known as marihuana, to own a pistol, or to have or keep a pistol in his possession, or under his control. . . .”
The word “pistol” was defined in K. S. A. 21-2610 to mean any firearm having a barrel less than twelve inches long.
That the legislature recognized certain persons as dangerous to society is further revealed by its enactment of K. S. A. 21-2613, which directs that any pistol found in the possession of or under the control of any person arrested for committing or attempting to commit any felony shall be seized and disposed of in like manner as provided in section five of the act.
The felony murder portion of California’s first degree murder statute enumerates six specified felonies to which the first degree murder classification applies. Other felony murders are by court rule classified as murders in the second degree.
The Supreme Court of California has expressed the nature and extent of the felony-second-degree-murder rule in People v. Ford, 60 C. 2d 772, 36 Cal. Rptr. 620, 388 P. 2d 892 (1964), in the following language:
“. . . A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, §189) constitutes at least second degree murder. . . .” (p. 795.)
The foregoing statement was later affirmed in People v. Williams, 63 C. 2d 452, 47 Cal. Rptr. 7,406 P. 2d 647 (1965).
The state of California has a gun law similar to Kansas. There the possession of a concealed firearm by any person who has been previously convicted of a felony constitutes a felony, and the Supreme Court apparently has seen no reluctance to invoke the felony-second-degree-murder rule where such felony forms its basis. In People v. Robillard, 55 C. 2d 88, 10 Cal. Rptr. 167, 358 P. 2d 295, 83 A. L. R. 2d 1086 (1960), the court said:
“Likewise, at the time defendant was stopped by the officer he was on probation from felony convictions in both the state and the federal courts. Since possession of a concealed firearm by any person who has been previously convicted of a felony is also a felony in this state (Pen. Code, §12021), the death of the officer would also automatically be at least second degree murder on this theory.” (p. 98.)
A further indication that California has taken this position is disclosed by language in People v. Ford, supra, as follows:
“. . . The evidence other than that related to the murder count amply supports the judgments of conviction of the felonies of kidnaping Roope and Mrs. Ford (Pen. Code, §207) and of possession of a concealable weapon by an ex-felon (Pen. Code, §12021, here determined to be a felony as defendant was sentenced therefor to state prison for the term provided by law). These latter crimes are by their nature continuing ones, and were still in the process of being committed when the killing of Officer Stahl took place. They are inherently dangerous to human life, and ‘the killing had a direct causal relationship to the crimefs] being committed’ (People v. Robillard (1960) 55 Cal. 2d 88, 98 [9] [10 Cal. Rptr. 167, 358 P. 2d 295, 83 A. L. R. 2d 1086]). It follows that under the rule just stated the homicide in the case at bench was, as a matter of law, at least murder in the second degree. . . .” (p.795.)
Reference has previously been made to the case of State v. Fisher, supra, which holds in effect that the words “other felony” used in 21-401, supra, refer to some felony collateral to the homicide, and not to those acts of personal violence to the deceased which are necessary and constitute elements of homicide itself. They are merged in it and do not, when consummated, constitute an offense distinct from homicide.
In distinguishing the foregoing situation in a case similar to the one at hand, it was said in People v. Hudgins, 236 C. A. 2d 578, 46 Cal. Rptr. 199 (1965):
“As previously stated, appellant was sentenced for second degree murder and for violation of the Dangerous Weapons’ Control Law, and it is contended that the two sentences were in violation of section 654 of the Penal Code, and the law as declared in People v. McFarland, 58 Cal. 2d 748 [26 Cal. Rptr. 473, 376 P. 2d 449], This would be true if the two offenses were committed by one act or in a series of acts having but a single purpose, but such was not the case. The acts constituting the offenses were separable. Possession of the gun constituted one offense, and this was an act separate and apart from any use that was made of the gun, and would have been a completed offense even if no use had been made of it. Appellant was properly sentenced for both offenses.” (pp. 587, 588.)
The significance of the California decisions is that they classify the felony with which we are here concerned (possession of a pistol after having been previously convicted of a felony) as one inherently dangerous to human life, although it is not necessary to prove as an ingredient of such offense any intention whatever.
To invoice the felony murder rule under our statute (21-401, supra) there must be proof that the homicide was committed “in the perpetration or an attempt to perpetrate” the felony. This means there must be a direct causal connection between the commission of a felony and the homicide.
We hold the felony committed under the felony murder rule to come within the term “other felony” in the first degree murder statute (21-401, supra) must be inherently dangerous to human life, and to sustain a conviction for murder in the first degree it must be shown that the homicide committed was a direct causal result of the commission of such felony.
It may seem harsh to hold the felony here, which requires no proof of intent, supplies the deliberation and premeditation to sustain a conviction for murder in the first degree by operation of a legal fiction of transferred intent, but it is not far removed from the situation where one who sits in an automobile outside waiting for an accomplice to burglarize a home, is guilty of murder in the first degree under the felony murder rule, when the accomplice kills the owner of the home in the perpetration of a burglary. (State v. Turner, 193 Kan. 189, 392 P. 2d 863.)
In the instant case the appellant was found guilty of having possession of a pistol after conviction of a felony, and in the perpetration of such felony the evidence discloses he used the pistol to commit the homicide and the felonious assaults with which he was charged. There was a direct causal relation between the commission of the felony, which was inherently dangerous to human life, and the homicide. There was also a direct causal relation between the commission of the felony and the felonious assaults.
It is no defense to the crime of murder in the first degree that the appellant may have mistaken Mary Alice Downing for some other person; or that the victims of the assault were unknown to the appellant; or that the appellant may have been angry; or that he may have supposed himself wronged by some other person.
The fact that the homicidal act was directed against one other than the person killed does not relieve the slayer of criminal responsibility. It is generally held that such a homicide partakes of the quality of the original act,' so that the guilt of the perpetrator of the crime is exactly what it would have been had the assault followed upon the intended victim instead of another. (1 Wharton’s- Criminal Law and Procedure, Homicide, §193, p. 438.) The same rule applies where the felony murder rule is asserted to sustain a conviction for murder in the first degree or felonious assault.
We therefore hold the appellant has not shown that he has been prejudiced by the various rulings of the trial court and in the giving of instructions on Counts I, II, IV and VI.
The last specification of error assigned by the appellant concerns the giving of a supplemental instruction in answer to the jury’s question on life sentence and parole possibilities after it had commenced deliberating on the case.
On this point the jurors were instructed, over objection, as follows:
“You have asked for a definition from the Court as to what constitutes life imprisonment.
“In this connection you are instructed that life imprisonment means exactly what it says; that is, imprisonment for life.
“The Constitution of the State of Kansas provides: ‘The pardoning power shall be vested in the Governor under regulations and restrictions prescribed by law.’ The Governor of the State has power to pardon or commute any sentence imposed upon any defendant. However, before such power may be exercised, notice and a right to be heard must be given to the trial court, the prosecuting attorney in the Court where conviction was had, and publicly by printed notice so that any person may appear, when application is made to the Governor and to the Parole Board to give their views and make whatever recommendations they desire before such action is taken. This power of the Governor is further limited and restricted as follows:
“‘The Governor may, when he deems it proper and advisable, commute a sentence, in any criminal case, by reducing the penalty as follows: If in a capital case, to imprisonment for life, or for a term not less than ten years at hard labor.’ K. S. A. 62-2220.
“Thus, the Governor may as above stated, commute to a sentence less than Me, but unless he under his constitutional and statutory authority so acts, there is no possibility of parole in this state from a Me sentence.”
Similar instructions were requested in State v. Lammers, 171 Kan. 668, 237 P. 2d 410, and the trial court orally instructed the jury in much the same manner as here. There the appellant was given the death sentence and complained that the statement was erroneous and prejudicial to him. The court held the point made by the appellant was not good. There is some question as to whether the court ruled squarely upon the point inasmuch as it assumed the basis of the appellant’s objection was that the instruction given was not in writing as required by statute.
The foregoing instruction is the basis of an extended annotation in 35 A. L. R. 2d 769 entitled “Procedure to be followed where jury requests information as to possibility of pardon or parole from sentence imposed.”
In criminal cases where the jury, in addition to determining the guilt, must also fix punishment the foregoing question is often presented. Assuming the possibility of future interference with the sentence imposed by pardon or parole is not a proper matter for the consideration of a jury faced with the task of determining a defendant’s guilt and imposing punishment, the trial court is faced with a most embarrassing situation when a request is made for information as to the possibility of pardon or parole from any sentence imposed.
Various alternatives are available to the trial court: (1) To discharge the jury forthwith; (2) to inform it of the law upon the subject; or (3) to refuse to answer the question with the admonition not to consider the matter, coupled with a reference to or repetition of the instructions upon the assessment of punishment.
Various positions have been taken by the courts on this subject. Some rule that the court should refuse to answer the question; others hold, where a death sentence follows, the trial judge must be reversed because of his action in responding to the jury’s inquiry. Others have held it to be error even though a death sentence was not imposed, and still others hold where the death sentence was not imposed the instruction given to the jury upon inquiry has not resulted in prejudicial error. (See 35 A. L. R. 2d 769 for cases.)
Assuming it was error for the trial court to give the supplemental instruction in the instant case, we cannot say after carefully reviewing the record that the appellant was prejudiced by the in struction in view of the fact that his sentence upon Count II was assessed at life imprisonment.
In view of the foregoing, the judgment and sentence on Counts I, II, IV and VI are affirmed, and as to Counts III and V, the convictions are reversed and the sentences respectively vacated. | [
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The opinion of the court was delivered by
Fatzer, J.:
On November 10, 1954, and during the third day of petitioner s trial by a jury on a charge of murder in the first degree, he advised the court in the presence of his court-appointed counsel that he wished to change his plea from one of not guilty, to a plea of guilty to murder in the second degree, and was sentenced to confinement in the Kansas State Penitentiary for a period of 40 years.
The following proceedings occurred in the district court when the petitioner changed his plea:
“The Court: You are charged with second degree murder, how do you plead, guilty or not guilty?
“Mr. Redd: Guilty.
“The Court: You are pleading guilty because you are guilty?
“Mr. Redd: I guess so.
“The Court: It is not ‘guess work.’ You either do or you don’t?
“Mr. Pyles: We have to make a record.
“Mr. Redd: Yes; guilty.
“The Court: You are pleading guilty because you are guilty?
“Mr. Redd: Yes, sir.”
On June 24, 1966, the petitioner filed a handwritten motion to set aside his conviction and sentence pursuant to K. S. A. 60-1507, alleging two grounds: One, “[t]he knowing use of false evidence,” and two, “[d]ue process of law in violation of the Fourteenth Amendment of the Constitution of the United States.” He further alleged lie was convicted by “[a]n involuntary plea of guilty made/’ and, further, that his court-appointed counsel, Mr. John Pyles, was incompetent because “(a) [cjounsel helped prosecution, disregarded petitioner’s interest, (b) [w]ould not withdraw involuntary plea . . . [r]efused to appeal.”
These are the only allegations made in the motion concerning any possible grounds for relief.
Other statements were made by petitioner in his motion with respect to post conviction actions he had previously filed, but the district court considered only the records of the petitioner’s case in the District Court of Sedgwick County, case No. A-49953.
The petitioner alleged that on the third day of his trial, counsel and the court had a meeting in his absence and as a result thereof, he was “compelled to plead guilty under duress”; that he attempted to contact his court-appointed counsel to withdraw his plea but he was unable to do so.
On July 1, 1966, the district court, after examining the allegations of the motion and the files and records of case No. A-49953, The State of Kansas versus Vernon C. Redd, defendant, found they conclusively showed petitioner was entitled to no relief and that the motion should be denied.
On June 11, 1966, the petitioner filed pro se, a motion for rehearing, the allegations of which consisted only of quoting Section 1 of the Fourteenth Amendment to the Constitution of the United States. On August 5, 1966, the district court overruled the motion for rehearing, finding that it conclusively showed petitioner was not entitled to a rehearing and that his motion should be denied. Thereafter this appeal was duly perfected and Mr. John E. Foulston, a member of the Wichita Ear, was appointed to represent the petitioner in preparing and presenting his appeal.
We are of the opinion the petitioner’s motion stated nothing but conclusions, and the district court did not err in summarily overruling it. Its allegations presented no justiciable issue under K. S. A. 60-1507. The petitioner alleged no facts from which might be inferred duress or coercion, nor did he list any witnesses by which he might establish the same. There is no intimation of what “coercion” or “duress” forced him to plead guilty to murder in the second degree, nor does he allege what “false evidence” was used against him, or that it caused him to change his plea. Likewise, he alleges no facts showing how his counsel “helped the prosecution” and disregarded his interests or that there was any basis to withdraw the plea of guilty to murder in the second degree, or that he had any grounds to appeal following his conviction.
The record clearly indicates that upon interrogation by the district court, the petitioner stated in open court he was guilty of the offense of murder in the second degree and that he was pleading guilty because he was guilty. We are of the opinion the petitioner s motion-stated only bare legal conclusions with no supporting factual allegations. In Call v. State, 195 Kan. 688, 408 P. 2d 668, cert. den. 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581, it was said:
“We have held in State v. Burnett, 195 Kan. 645, 400 P. 2d 971, that the right to an evidentiary hearing in proceedings brought under K. S. A. 60-1507 does not extend to those instances where the claims advanced are trivial, frivolous or insubstantial. In Webb v. State, 195 Kan. 728, 408 P. 2d 662, we further hold that a sentencing court is vested with discretion in ascertaining whether a claim made under the foregoing statute is substantial before granting an evidentiary hearing thereon and requiring the petitioner’s presence.” (l. c. 693.)
In Perrin v. State, 196 Kan. 228, 410 P. 2d 298, it was said:
“. . . The statute (K. S.A. 60-1507) provides that the motion may be determined ‘without requiring the production of the prisoner at the hearing.’ Not every colorable allegation entitles a prisoner in the penitentiary to a trip to the sentencing court. Neither is the district court compelled to accept all allegations in a motion filed for relief under the statute as presumptively valid, nor accept allegations which are patently unbelievable.’ (Edge v. Wainwright, 347 F. 2d 190, 192.) Flimsy and transparent charges or allegations are insufficient to sustain a justiciable controversy. . . .” (l. c. 233.)
See, also, Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068; United States v. Rosenberg, 200 F. 2d 666, cert. den. 345 U. S. 965, 97 L. Ed. 1384, 73 S. Ct. 949; United States v. Pisciotta, 199 F. 2d 603; United States v. Sturm, 180 F. 2d 413, cert. den. 399 U. S. 986, 94 L. Ed. 1388, 70 S. Ct. 1008, and Hilliard v. United States, 345 F. 2d 252.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a conviction of arson in the first degree (K.S. A. 21-581).
The defendant, Francis W. Emler, was charged with burning a dwelling house owned by Mary Taylor on July 9, 1965. He was arrested on October 29, 1965, and appeared with his retained counsel, Richard Fox, before a magistrate on November 1, 1965. Defendant was released on bond, and a preliminary hearing was set for November 15, 1965, at which time it was continued until November 29, 1965, and then continued again until December 1, 1965, when the hearing was held. All of the state’s principal witnesses testified at the preliminary hearing. The defendant was bound over to district court and again released on bond.
On January 20, 1966, defendant’s attorney formally withdrew, although the record shows he continued to represent defendant at least through February 2 when he answered a docket call. Thereafter defendant retained new counsel, the exact date is not shown in the record. On March 7, 1966, defendant through his counsel filed a notice of alibi.
On March 14, 1965, the case was called, and both parties announced ready for trial. The following day the jury returned a verdict of guilty. A motion for new trial was filed, heard by the trial court, and overruled. Thereafter defendant perfected his appeal.
The state’s evidence consisted of the testimony of Mary L. Taylor, owner of the burned dwelling house, Robert McCoy, a friend and neighbor of defendant, Kenneth Haivala, who discovered the fire, and Robert McColm, a member of the city fire department. Defendant was the only defense witness at the trial. Alfred Laswell was called as a witness for defendant on the motion for a new trial.
Highly summarized, the evidence discloses that Mary Taylor rented a room in her dwelling house to defendant. That she and defendant had been friends but had a disagreement over money. Defendant had loaned her $600 to help purchase a tavern and then demanded he be made a partner. At this juncture their disagreement became intense. Mrs. Taylor ordered defendant to move from her house but had difficulty ejecting him. She testified that as a result of her refusal to give defendant a one-half interest in the tavern he threatened to bréale her financially and also threatened her in other respects. She changed the locks on the house, but defendant had keys to two other buildings located on her premises. She described them as a station building and a rock house. The defendant left some of his belongings in those two buildings after he moved. She further testified that because of defendant’s continued harassment she tried to get a restraining order but was unable to do so. However, she was given some protection from the police department. She finally had her attorney write defendant ordering him to remove his belongings within six days.
Finally, on July 8, 1965, when defendant went to the Taylor premises to remove his belongings, an argument ensued involving the ownership of some of the property; and two police officers were called. The defendant removed his belongings and left the premises about 8 p. m. that evening. Mrs. Taylor testified that defendant appeared to be “intoxicated and drunk.”
McCoy and defendant lived at the same motel. McCoy testified that the defendant arrived at the motel about 9:30 p. m. on July 8 and that he stopped by McCoy’s “cabin” and that he was “pretty well loaded.” He testified also that defendant said “No, she has wrecked me and I am going to really take her, I am going to burn her out tonight.” McCoy further testified:
“Well, he said 7 know where I am going to set it.’ And I said, ‘Well,’ I said, Well, you have to get in the house first.’ And he said, ‘Well, she might have thought she changed all the locks, but I can get in.’ So we sat there for a while and I poured him a cup of coffee and then he never drank the coffee. He said, ‘I have got to go to the liquor store and get me a bottle of booze before it closes.’ ”
The defendant left McCoy’s cabin and returned in about twenty or thirty minutes and said “ ‘I got it started’ . . . T knew right where I was going to set it’ . . . 1 will set it underneath the staircasing because that is where she stores all of her papers and paint thinner and paint and rags, and all that stuff’ . . . T ought to know, I lived there for six or seven months.’ ”
The defendant left McCoy’s cabin again and returned about 12 o’clock. Regarding this occasion McCoy testified as follows:
“And he left a little while — then he left after that and then he came back, 12 o’clock or close, right in there, and he said, ‘Man, I never seen such a pretty blue flame.’ And I said,. ‘Man, you are in trouble now.’ So then I thought at first it might have been that he was just talking. But then all of a sudden, oh, I would say about 12:20 or 12:30, he came down and he said, ‘I can’t understand why the fire department don’t come around.’ And then I began to see through him, that he had said he was going to do — he had done what he said he would do because about 1:20 or so, the fire trucks went right on down the street.”
Fire inspector Paul Reard testified for the state. He stated that he arrived at the scene of the fire between 1:45 and 2 a. m., July 9, 1965. He examined the premises and concluded the fire originated beneath the stairway. He testified that it was very definitely a suspicious fire and would have to come from the “human element” because there were no mechanical means at the point of origin which would have caused the fire. In his testimony he eliminated any electrical sources, or any devices or material which would have caused spontaneous ignition at the point of origin. He testified that, based on his experience and training as a fire investigator, he drew the conclusion that the fire was of suspicious nature caused by some human element.
Defendant testified that he had a one-half interest with Mary Taylor in the M & F Tavern and that the two of them had had considerable financial disagreement. He further testified that he had loaned McCoy some money and that McCoy had refused to pay it back and that McCoy knocked him down one time when he was requesting the money and the automobile license from a car that defendant claimed McCoy had purchased from him.
Defendant further testified that on the evening of July 8, 1965, he was in ATs Lounge, owned and operated by Alfred Laswell, that he left the tavern at ten or fifteen minutes before twelve midnight and went home. He stated that he saw McCoy at about 12:20 a. m., July 9, for the first time that evening.
The state has challenged the defendant’s right to be heard on several points raised on appeal because of procedural inadequacies. We have resolved, however, to consider all of the contentions presented.
In his first two points defendant claims he was denied due process and equal protection of the law as guaranteed by the constitutions of the United States and Kansas. In support of his contentions in this regard defendant argues that he was denied sufficient time to prepare his defense. We find his argument entirely refuted by the record. As we have indicated, defendant was represented by retained counsel throughout the entire course of the prosecution commencing with his first appearance before a magistrate on November 1, 1965. The preliminary hearing was continued several times at defendant’s request. He sought no continuance from the district court. There is no showing in the record that defendant was denied any procedural matter at any stage of the proceedings.
Defendant argues that given more time for preparation he would have been able to procure the attendance of witnesses to support his alibi. In this connection defendant subpoenaed Alfred Laswell and John Cardinale for the purpose, as he claims, of corroborating his alibi that he was in a tavern the evening of the fire. Laswell was subpoenaed on March II, 1965, to appear at the trial. Defendant claims now that Laswell could not be located during the trial. A subpoena was issued for Cardinale and returned unserved on January 31, 1966. The record reflects no further effort was made by defendant to procure or enforce the attendance of either at the trial.
Laswell, a tavern owner, testified at the hearing on defendant’s motion for a new trial. He testified that defendant was in the tavern every night but could not testify specifically as to defendant’s presence on the night in question. No evidence was offered tending to show that Lasswell purposely or willfully evaded service of a subpoena.
The record discloses that defendant had the assistance of counsel for a period of more than four months in which to prepare for trial. Since no denial of a request for a continuance or for the assistance of the court in securing the attendance of witnesses is shown in the record, the discretion of the trial court is not in anywise put to test. Under the facts and circumstances related we find defendant’s claim of denial of due process to be entirely without merit.
Even though defendant did not object to the court’s instructions during the trial nor request any different or additional instructions he now complains the court erred in instructing as to reasonable doubt. He claims the court erred in not adequately defining the term and in not instructing separately that each element of the offense must be proven beyond a reasonable doubt.
We believe the trial court adequately defined the term in instruction No. 2 and fairly directed the jury as to its application to the proof required to establish the offense charged. From our consideration of the instructions as a whole, as such is required on appellate review (see State v. Spohr, 171 Kan. 129, 230 P. 2d 1013, West’s Kansas Digest, Criminal Law, §822; Hatcher’s Kansas Digest, Criminal Law, §295), we find them to be sufficient.
Finally, defendant contends the verdict was not supported by substantial evidence. He argues that the state failed to present sufficient corroborative testimony and that the circumstantial evidence presented did not exclude every reasonable hypothesis except that of defendant’s guilt. Defendant accurately states the hypothesis within which the case is presented to the trier of facts but the converse is applicable on appellate review. The rule is stated in State v. Crosby, 182 Kan. 677, 324 P. 2d 197, 76 A. L. R. 2d 514, as follows:
“Defendant’s contention that the circumstantial evidence is insufficient to establish his guilt because such evidence might also be deemed compatible with innocence cannot be sustained. When considering -on appeal the sufficiency of circumstantial evidence to sustain a conviction of crime, the question before this court is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and trial court, and the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. [Citing cases.]” (p. 685.)
See, also, State v. Scoggins, 199 Kan. 108, 427 P. 2d 603, State v. Gates, 196 Kan. 216, 410 P. 2d 264; State v. Ellis, 192 Kan. 315, 387 P. 2d 198; West’s Kansas Digest, Criminal Law, §1144 [13]; Hatcher’s Kansas Digest, Criminal Law, §438.
The record here discloses the direct evidence of the fire itself, the res gestae statements of defendant corroborated by the circumstances surrounding the fire and the evidence of motive. We believe the evidence sufficient to constitute a basis for a reasonable inference of guilt.
The function of this court in reviewing the record for the purpose of determining the sufficiency of the evidence to sustain a criminal conviction was thoroughly discussed and the rules applicable thereto exhaustively reviewed in State v. Shaw, 195 Kan. 677, 408 P. 2d 650.
Guided by those rules we have no difficulty in concluding that there was sufficient competent evidence to support the verdict.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the appellant was tried by a jury and convicted of robbery in the first degree as defined in K. S. A. 21-527. Having had one prior felony conviction, the appellant was sentenced under the habitual criminal act to the Kansas State Penitentiary for a term of not less than twenty nor more than forty-two years. (K. S. A. 21-530 and 21-107a.)
The only question squarely here is whether the evidence presented by the state is sufficient to sustain the conviction.
The evidence establishes that the appellant, O’Neal Scoggins, was present in the Mobil Service Station at the corner of 17th and Topeka Avenue in the city of Topeka on the morning of December 12, 1965, and wanted to know if he could wait there until he was picked up for lunch. The service station attendant, Robert Christianson, gave his permission and thereupon went about his duties servicing automobiles coming into the station.
A witness by the name of Alfred Wright testified he arrived at the station about 10 o’clock on the morning in question and after visiting with Mr. Christianson left about ten minutes until 12:00; that when he left the appellant and Mr. Christianson were at the station. He further stated “that he observed Mr. Scoggins watching Mr. Christianson, in fact, he was watching his move, every move he made, prior to his leaving.”
Another witness by the name of Jess Holmes, an acquaintance of Mr. Christianson, came to the station and talked to the appellant and also to Mr. Christianson. Mr. Christianson ordered his lunch by telephone, and Mr. Holmes went up the street to Topper’s Drive-In and returned to the station with the lunch which Mr. Christianson had ordered. He arrived back at the station about 12:20 or 12:25 p. m. Mr. Christianson had just finished servicing an automobile, and the appellant was sitting on a bench on the east side of the service area. Mr. Holmes left the station about 12:30.
Mr. Christianson testified when he went into the station to take his lunch from the shelf where it had been placed, he observed the appellant on the bench drinking a bottle of Squirt. No one else was in the station. When Mr. Christianson turned to get his lunch off the shelf he was struck on the head. After being hit on the head he fell to the floor and felt someone jerking on his billfold. He heard the front door open, raised his head up and looked through the glass service door where he saw the appellant “going towards the south and back east around the back of the building.” The witness got up and went outside at which time he passed out.
The billfold contained the money with which Mr. Christianson was operating the station.
It was later discovered Mr. Christianson had been struck with a bottle which broke at the time he was struck. The green glass found on the floor was the same color as a soda pop bottle of the Squirt brand seen in the possession of the appellant immediately prior to the assault.
A police officer was dispatched to the station at 12:38 p. m., and on arrival observed Mr. Christianson, an injury to his head, and a broken Squirt bottle.
The appellant contends the state has not made out a prima facie case as to the identity of the person who committed the alleged robbery. He argues:
“. . . The prosecution witness’ testimony was that he went to get his lunch from a little shelf on the north wall of the service area, turned and started back towards the office, and was hit over the head. When asked by the assistant county attorney if he actually saw who hit him on the head, the prosecution witness replied ‘No, not actually, no.’ On cross examination the prosecution witness testified that the appellant was seated on a bench approximately seven or eight feet away from where he was struck. He did not hear the appellant get up nor did he hear any noises from the area where the bench was located. He was again asked if he saw who struck him and he replied in the negative.”
Contrary to the appellant’s contention the circumstantial evidence set forth in the record was sufficient to make out a prima facie case identifying the appellant as the assailant.
The appellant contends the state failed to prove the money allegedly taken from Mr. Christianson was the personal property of Rill Dodds, the manager of the station, as charged in the information.
Dodds testified that on the 12th day of December, 1965, he managed the station and had employed Mr. Christianson; that he arrived on the morning in question at approximately 10:00 or 10:15 a.m., and observed the appellant at the station; that he left the station a little before noon and the appellant was still present; that he checked with his employee, Mr. Christianson, and determined that he had enough money on which to operate. He further testified when he left the station the appellant was sitting on a work bench drinking a bottle of pop; and that ten or fifteen minutes after arriving home he was called by Mr. Christianson and advised of the robbery.
The appellant took the stand in his own defense and denied that he purchased any pop or that he was at the station after 11 o’clock a.m.
Though circumstantial, there was sufficient substantial evidence from which a jury could find the appellant guilty of robbery in the first degree, as contemplated by 21-527, supra — that the state had sustained its burden of proof on all elements of the offense.
In a criminal prosecution it is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before a verdict of a jury which has been approved by the trial court may be set aside on appeal on the ground of insufficiency of evidence, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the trial court. (State v. Walker, 198 Kan. 14, 422 P. 2d 565, Syl. ¶ 1; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; State v. Gregory, 191 Kan. 687, 383 P. 2d 965; and State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039.)
When considering the sufficiency of circumstantial evidence to sustain a conviction of crime on appeal, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt. That question was for the jury and trial court. The function of the appellate court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Crosby, 182 Kan. 677, 324 P. 2d 197, 76 A. L. R. 2d 514, and authorities cited therein at page 685 of the official report.)
The appellant contends the trial court erred in permitting the state to cross examine him on an unrelated prior conviction of forgery.
Actually, this point is not properly before the court for review. There was no objection to the testimony during the trial of the case, the appellant did not raise the question on his motion for a new trial, and did not specify it as error.
Assuming the question was properly raised on appeal, it still has no merit because counsel for the appellant first went into the appellant’s prior conviction of forgery upon direct examination of the appellant when he took the stand. Under these circumstances, the state is entitled to cross examine on the point.
An examination of the record discloses there was a basis in the evidence for a reasonable inference of guilt. We hold there was sufficient competent evidence to support the verdict of guilty.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by the petitioner, Richard D. Tyrell, from a ruling of the trial court denying relief in proceedings under K. S. A. 60-1507.
On January 5, 1965, the petitioner was convicted of forgery in the third degree (K. S. A. 21-616) after entering a plea of guilty. The trial court admitted evidence of two prior convictions and imposed sentence of not less than fifteen years in the Kansas State Penitentiary pursuant to K. S. A. 21-616, 21-631 and 21-107a.
Thereafter the motion involved in this appeal was filed. On June 2, 1965, the trial court made findings of fact and conclusions of law on petitioner’s motion and held the motion, files and records conclusively showed that petitioner was entitled to no relief. Present counsel was appointed and perfected this appeal.
Petitioner presents three points for review. All of his contentions have to do with the imposition of an enhanced sentence pursuant to the Habital Criminal Act (21-107a, supra).
Petitioner’s first, and principal, contention is that he did not have adequate notice of the state’s intention to invoice the provisions of the Habitual Criminal Act. In this connection the trial court set out a portion of the transcript of the sentencing proceedings and found that petitioner’s present contentions are absolutely contrary to his statements at the time of his plea in the criminal action. The record shows that petitioner was represented by counsel at his preliminary hearing and that the same counsel was appointed in the district court. The transcript of the sentencing proceedings discloses the following:
“The Court: Have you had the opportunity to confer with him at such times as you desired to do so about this case?
“Mr. Tyrell: Yes, sir.
“The Court: Has he fully explained your rights to you in this matter?
“Mr. Tyrell: Yes, sir.
“The Court: Has he explained to you the possibility that the Court can invoke the habitual criminal act in this case if it is shown previous convictions?
“Mr. Tyrell: Yes, sir.
“The Court: You have been advised of the possible penalty that could be imposed upon you upon your plea of guilty in this case?
“Mr. Tyrell: Yes, sir.
“The Court: Do you have any objection or complaint of the manner in which your counsel has conducted this matter either here or in the lower Court?
“Mr. Tyrell: No, sir.
“The Court: His services on your behalf have been satisfactory, have they?
“Mr. Tyrell: Yes, sir.
“The Court: Has there been any promise or inducement made to you by any officer, the Sheriff or the County Attorney, to induce this plea of guilty?
“Mr. Tyrell: No, sir.
“The Court: You did write the name of DeWayne Carroll on this check, did you?
“Mr. Tyrell: Yes, sir.
“The Court: Has there been anything in this case to induce you to enter this plea of guilty, or did you enter this plea of guilty because you are guilty, in fact, of the crime as charged?
“Mr. Tyrell: Yes, sir.
“The Court: Upon your plea of guilty the Court finds you guilty of forgery in the third (3rd) degree as charged in the information. Mr. Tyrell, if you will please stand. Upon your plea of guilty the Court has found you guilty as charged in the information. Do you have any legal excuse to offer why the judgment and sentence of this court should not be passed upon you at this time?
“Mr. Tyrell: No, sir.
“The Court: Is there any further evidence to offer in this case, Mr. County Attorney?
“Mr. Lund: Yes, Your Honor. I have evidence of prior felony convictions, and I would like to have them marked and offered in evidence.
“(Thereupon, State’s Exhibits No. 1 and No. 2 were marked identification.)
“Mr. Lund: I offer State’s Exhibits 1 and 2 in evidence.
“Mr. Meyer: I have had an opportunity to examine them, Your Honor.
“The Court: They will be received. Mr. Tyrell, you may be seated.
“(Thereupon, State’s Exhibits No. 1 and No. 2 were handed to the Judge for examination.)’’
It is obvious, from the above quoted portions of the transcript showing petitioner’s own admissions and the statement of his counsel, that the records of the prior convictions had been previously examined and further that the petitioner and his attorney both knew of the state’s intention to invoke the Habitual Criminal Act. It follows that we must agree with the trial court’s findings in this regard that tire record conclusively shows petitioner and his attorney had adequate notice.
The state offered evidence of a prior felony conviction on November 16, 1959, in the Trego County district court, about which petitioner makes no complaint, and felony convictions in the district court of Red Willow County, Nebraska, on March 23, 1961, about which petitioner makes his second and third contentions.
Petitioner claims the Nebraska convictions could not be used for the reason that the offenses charged therein were not felonies under Kansas law. The Nebraska convictions referred to stemmed from nine counts in which felonious violations of the Nebraska no-fund check law (Section 28-1212, Neb. R. R. S. 1943) were charged. Petitioner entered a plea of guilty and was sentenced to an indeterminate period of not less than one year nor more than eighteen months at hard labor in the State Reformatory for men at Lincoln, Nebraska. The sentence amounts to punishment by which a felony is defined in Section 29-102 Neb. R. R. S. 1943.
Petitioner argues that since each no-account check, involved in the Nebraska conviction, was for an amount less than $50 such offenses would have been misdemeanors rather than felonies under the Kansas law and therefore the Nebraska convictions cannot be considered felony convictions within the provisions of 21-107a, supra.
Our statute provides that judgment in such cases shall not be given for increased penalty unless the court shall find from the record and other competent evidence the fact of former convictions for felony committed by the prisoner “in or out of this state.” In State v. Stiff, 148 Kan. 224, 80 P. 2d 1089 (rehearing 148 Kan. 457, 83 P. 2d 424), the state sought an increased penalty based upon prior federal court convictions for conspiracy. The defendant argued that conspiracy was not a felony under the Kansas statutes, since conspiracy was not declared to be a crime under Kansas law. We stated:
“. . . The statute specifically applies to a former conviction of felony ‘in or out of this state.’ (And see In re Minner [133 Kan. 789, 3 P. 2d 473], supra.) A few cases from other states are cited by appellant in support of his views, but in those states the statute before the court differed materially from our statutes; hence, the cases are not in point.” (p. 228.)
The statutes of other states referred to in the Stiff opinion require that a felony conviction in the convicting state must have amounted to a felony in the enacting state. Jurisdictions with statutes similar to our 21-107a, supra, generally hold, as this court did in Stiff, that under the “in or out of this state” provision it is only necessary that the conviction be for a felony in the convicting state. (See 19 A. L. R. 2d, Anno., pp. 227, 232, § 4.)
It is true, as petitioner points out, that at the time of his Nebraska convictions the comparable offenses under the Kansas insufficient or no-fund check law (G. S. 1961 Supp., 21-555, now K. S. A. 21-555) would have been misdemeanors as the checks in question in the Nebraska convictions were all of amounts of less than $50.
Pursuant to the construction of our statute, as announced in State v. Stiff, supra, since each count in the Nebraska conviction was clearly defined as a felony under Nebraska statutes, we find the Nebraska convictions to have been prior felony convictions within the purview of 21-107a, supra.
Petitioner next asserts the Nebraska convictions cannot serve as prior felony convictions to enhance his penalty for the reason that petitioner was without counsel in the Nebraska court. In this connection the journal entry of the Nebraska court shows “Defendant was also advised of his right to counsel but stated, in open court, that he did not desire counsel.” The Nebraska statute in effect at the time, Section 29-1803, Neb. R. R. S. 1943 (since repealed, Laws of 1965, Chap. 151, Sec. 5, now Section 29-1803.01, et seq., Neb. R. R. S. 1965 Cum. Supp.), provided for the appointment of counsel in felony cases but unlike our statute (K. S. A. 62-1304) it did not require a written waiver of counsel nor an affirmative finding by the trial court that appointment of counsel would not have been to defendant’s benefit.
In the instant case the journal entry of the Nebraska convictions shows that petitioner was specifically advised of his right to counsel and that he affirmatively declined. Petitioner does not challenge the correctness of the Nebraska journal entry nor does he make any showing to the effect that his waiver of counsel was not intelligently or understandably made. Petitioner’s position on this point, as we understand it from his brief and record on appeal, appears to be that a waiver of counsel under any circumstances amounts to a denial of constitutional due process. His position on this point is untenable. Even though assistance of counsel is provided by statute, the Nebraska court has continued to hold that counsel may be waived by an intelligent relinquishment or abandonment of the right by the accused. (Case v. State, 177 Neb. 404, 129 N. W. 2d 107 [1964]; State v. Ninneman, 179 Neb. 729, 140 N. W. 2d 5 [1966].) Moreover, we do not believe the validity of the Nebraska convictions are subject to collateral attack on this ground. (State v. Engberg, 194 Kan. 520, 400 P. 2d 701, cert. den. 383 U. S. 921, 15 L. Ed. 2d 676, 86 S. Ct. 899; State v. Adamson, 197 Kan. 486, 419 P. 2d 860; Chappell v. State, 197 Kan. 407, 416 P. 2d 786.)
For the reasons stated the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this workmen’s compensation case the district court granted an award to the dependent wife and three minor children of Stanley M. Pratt, deceased, whose death occurred on February 11, 1964, resulting from a coronary occlusion. The sole issue presented is whether there was substantial evidence to support the district court’s finding that the decedent’s death resulted from a personal injury by accident arising out of and in the course of his employment.
Stanley M. Pratt had been employed many years by Seis-Tech Exploration Company, Inc., as a seismic surveyor and he had advanced in his work until he was the top surveyor in his company. Seismic surveying is connected with the exploration of oil, and involves locating and staking sites where explosive charges are detonated under ground. The work is performed by a two-man survey team going into the fields with a pickup truck and surveying instruments to chain out holes, run elevations and locate shock points. The work is not considered heavy manual labor.
In addition to his employment as a seismic surveyor, the decedent worked extra hours doing logging work and preparing plane table sheets,-which, together with his regular duties, took eighteen to nineteen hours a day. From June, 1963, the decedent appeared to his wife to be completely worn-out and he began suffering from indigestion which further prevented him from getting sufficient rest. When home on February 8, 1964, the decedent complained of heartburn or indigestion and was up most of the night.
On February 10, 1964, the decedent and his crew went to Pratt where they worked that day and obtained rooms in a hotel there for that night. The decedent told Donald Stout, a member of the crew, that he felt “awfully tired” after the day’s work, although he stated he had not worked particularly hard.
The next morning the decedent did not come down to breakfast and Stout went to his room and called him. The decedent said he would be down in a few minutes. When he appeared for breakfast he looked tired and sleepy and indicated he was not feeling too well. He stated he had been out drinking the night before. After breakfast, the decedent and Stout proceeded to the field and commenced surveying. They were working across a level field and the two men alternated in walking with the chain and riding in the pickup truck. After they had chained for about three-fourths of a mile, the decedent began to vomit, and he stated he wanted to go back to town. They started back to town, but had motor trouble and Stout went for help. When he returned he found the decedent dead in the truck.
An autopsy performed by two medical doctors in Pratt disclosed a blood clot in one of the main coronary vessels large enough to block the vessel and cause the heart to stop beating. A later examination of portions of the decedent’s heart by a pathologist in Wichita showed the opening of the circumfex coronary artery was reduced 75 percent and there was a recent adherent coronary thrombus with hemorrhage beneath an arteriosclerotic plaque.
Medical testimony at the hearing before the examiner was that the blood clot was probably less than twelve hours old and was not initiated by the decedent’s activities as a surveyor, but that the work he was doing aggravated and precipitated the occlusion that caused death. All the medical testimony was to the same effect. Based upon the evidence, the examiner entered an award in accordance with law in favor of the claimant and the three minor children.
Upon request for a' review by the appellants, the director of workmen’s compensation found there was ample evidence to support the examiner’s finding that the decedent’s weakened heart condition was aggravated by his employment and that he suffered personal injury by accident arising out of and in the course of his employment for the respondent, which injury caused his death. Upon appeal, the district court adopted the findings and award of the examiner as affirmed by the workmen’s compensation director, and entered an award in favor of the claimant.
The appellants urge there is no substantial evidence in the record to support the award entered by the district court. It is unnecessary to detail the medical evidence except to say that the two medical doctors and the pathologist who testified on behalf of the appellants, and the medical doctor who testified on behalf of the appellee, were all of the opinion that the pre-existing condition of arteriosclerosis was not caused by the decedent’s work and that possibly the beginning of the thrombosis was not caused by his work, however, they were unanimous in their opinion that the type of work the decedent was doing aggravated and precipitated the final thrombosis which caused his death.
The evidence warrants a conclusion that the physical structure of the workman here involved gave way under the stress of the work he was performing on February 11, 1964. Our Workmen’s Compensation Act prescribes no standard of health for a workman and if his physical structure gives way under the stress or strain of his usual and customary labor, his death is an accident which arises out of his employment. Moreover, it is well established that accidental injuries are compensable where the accident serves only to aggravate or accelerate an existing disease. (Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Pence v. Centex Construction Co., 189 Kan. 718, 371 P. 2d 100; Geurian v. Kansas City Power & Light Co., 192 Kan. 589, 601, 389 P. 2d 782.) See, also, Hatcher’s Kansas Digest [Rev. Ed.], Workmen’s Compensation, §16.
We think it is clear from the record that the decedent sustained personal injury within the meaning of our Workmen’s Compensation Act. Our decisions are to the effect that coronary occlusion, coronary thrombosis, myocardial infarction, or heart failure-acute, which results in the death of a workman, is personal injury by accident when it arises out of and in the course of his employment. A few of our many cases are: Riggs v. Ash Grove Lime & Portland Cement Co., 131 Kan. 244, 289 Pac. 410; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863; Pinkston v. Rice Motor Co., supra; Geurian v. Kansas City Power & Light Co., supra; Mein v. Meade County, 197 Kan. 810, 421 P. 2d 177, and Hanna v. Edward Gray Corporation, 197 Kan. 793, 421 P. 2d 205.
It would serve no useful purpose to prolong this opinion by discussing the evidence. We have carefully examined the record and it is sufficient to say there was ample evidence to support the district court’s finding that the decedent’s weakened heart condition was aggravated by the work he was doing and that he suffered personal injury by accident rising out of and in the course of his employment, which caused his death. See Middleton v. National Compressed Steel Corp., 199 Kan. 574, 431 P. 2d 676, with respect to sustaining the burden of proof.
During oral argument, the appellants contended that K. S. A. 44-501 as amended by L. 1967, ch. 280, §1, should be considered the standard to determine whether the decedent’s death was compensable. By the amendment, the Legislature recognized that the death of a workman resulting from coronary or coronary artery disease or cerebrovascular injury is compensable under the conditions prescribed. In answer to the contention the record clearly discloses that the provisions of the amendment are not applicable in the determination of this appeal, and without further comment on the point, it is found to be without merit.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This appeal stems from a judgment awarding compensation to Jimmy Jibben, the claimant and appellee herein. The sole question on appeal, as it has been phrased in the brief filed by appellants, who hereafter are referred to as respondents, is “whether or not there is substantial competent evidence to prove the claimant aggravated his pre-existing back condition by accident occurring on December 19, 1965.”
The workmen’s compensation examiner, before whom the matter was initially heard, found claimant to be temporarily totally disabled as a result of injury to his back sustained from the accident of December 19, 1965, and awarded compensation accordingly. On review, the examiner’s award was set aside by the workmen’s com pensation director as being contrary to the evidence and the law. Claimant thereupon perfected an appeal to the district court which adopted the findings, conclusions and award as found by the examiner and entered judgment accordingly. The respondents have appealed from that judgment.
It was stipulated that on the 19th day of December, 1965, the claimant met with a personal injury arising out of and in the course of his employment. The evidence showed that claimant, while at work, was accidentally struck on the head by a piece of pipe or tubing and was knocked, unconscious, to the ground.
No question is raised concerning the accident itself or the circumstances attending it. The respondents simply claim that no causal connection has been established between the accident and the claimant’s present back difficulties. This contention requires a brief examination of the evidence relating to his injuries.
Dr. Norman Mattick, who examined the claimant on March 2, 1966, testified there was muscle spasm in the low back and that claimant had a spondylolisthesis condition of long standing. Based on the history given him by the claimant, Dr. Mattick expressed the opinion that the spondylolisthesis condition was aggravated by the trauma claimant suffered in the accident of December 19, 1965. The doctor associated the aggravation with the accident because claimant told him he sustained pain to his lower back area on December 19, 1965, and because of the history of claimant’s fall after being hit by the pipe.
On cross examination Dr. Mattick testified that if claimant’s present back pain was related to the accident he would have expected it to occur within at least a day or two after the accident, if not sooner, and that if claimant had told Dr. Marvin (who attended claimant after the accident) that he had no back pain during the time Dr. Marvin cared for him, it was extremely unlikely that the pain was related to the accident. Dr. Mattick further stated that when a spondylolisthesis condition exists, an onset of pain can develop without trauma, or that trauma can begin with something so trivial that a patient can scarcely remember it.
The claimant himself testified that he did complain of low back pain to Dr. Marvin not only when he was in the hospital following the accident, but also when he visited the doctor approximately a week later, but that Dr. Marvin, said it was probably just a sprain and never checked it out. There was also evidence that Dr. Frank Eichhorn saw claimant on January 31, 1966, after claimant had been complaining of pain while he was in jail, and Dr. Eichhorn s examination showed pain and muscle spasm at that time, as well as a spondylolisthesis condition.
Dr. Marvin’s testimony directly contradicts the testimony of the claimant. The doctor testified that the only pain of which claimant ever complained to him was in the head area; that his examination of hospital records revealed no complaints of low back injuries were made to the nurses; and that since the claimant at that time had made no complaint of pain associated with or relating to his back, he thought it very unlikely that injury to the lower back had been sustained from the accident.
It should be obvious to the most casual reader that we are thus confronted with a direct conflict between the testimony of the claimant himself, and that given by Dr. Marvin. It must be conceded that the claimant’s positive assertion that he complained of pain to Dr. Marvin is contravened in no uncertain fashion by the doctor. However, this conflict in the evidence is not for us to resolve.
We have held time and again that on appellate review of proceedings had under the Workmen’s Compensation Act this court has no jurisdiction to determine disputed factual issues. That particular function belongs to the trial co.urt alone, and its findings and judgment in such regard will not be disturbed if supported by substantial competent evidence. A recent discussion of these principles is contained in Phillips v. Skelly Oil Co., 189 Kan. 491, 370 P. 2d 65, where many of our decisions are cited.
The term “substantial evidence” has been said by this court to mean evidence which possesses something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can reasonably be resolved. (Curry v. Stewart, 189 Kan. 153, 156, 368 P. 2d 297; Newcomb v. Brettle, 196 Kan. 560, 562, 413 P. 2d 116.)
Our definition of the term is in substantial accord with the meaning given it by courts of other jurisdictions. In Board of County Com’rs. of Dona Ana Co. v. Vargas, 76 N. M. 369, 415 P. 2d 57, the court said that substantial evidence was such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Similar expressions may be found in numerous decisions. (See N. L. R. B. v. Elias Brothers Big Boy, Inc., 327 F. 2d 421; Easttam v. Secretary of Health, Ed. and Welfare, 364 F. 2d 509; Ammerman v. Florida Board of Pharmacy, Fla., 174 So. 2d 425.)
Following the rationale of the decisions of this and other courts we are unable to say that the judgment awarding claimant compensation is not sufficiently supported by the evidence. In arriving at this conclusion we are not unmindful of the respondent’s contention that claimant’s testimony of low back pain immediately after the accident was not corroborated. We are unimpressed, however, with the argument that the testimony of a claimant under the Workmen’s Compensation Act in regard to matters not requiring the special knowledge or skill of an expert, requires corroboration, or that his testimony is to be equated with that of an accomplice who testifies against his co-conspirator in a criminal prosecution.
There is, of course, no suggestion that the claimant was not a competent witness in this case. Rather, the respondents seem to infer that since he was an interested • witness, his testimony was thoroughly discredited because contrary to the testimony of an “unimpeached disinterested witness” and the “attending circumstances,” although what circumstances are referred to have not been specifically spelled out.
It may be that the evidence upon which both the examiner and the district court awarded compensation was not as strong or persuasive as respondents believe it should have been. However, the weight to be given the evidence in its entirety was for the trier of facts to decide. Whether the testimony of the claimant was “thoroughly discredited” was for the trial court, not this court, to determine. Whatever feeling the members of this court might have concerning the weight of the entire evidence is wholly immaterial to the legal question which now confronts us. In Jones v. City of Dodge City, 194 Kan. 777, 779, 402 P. 2d 108, we said:
“. . . Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings if they are supported by substantial competent evidence. . . .”
No error has been made to appear in the judgment of the court below and the same is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This was an action involving a farm lease whereby injunctive relief was sought by the lessee, Veryl L. Thurman, against the lessors, Melvin F. Trim and his wife Eilene. From a judgment of the district court granting a permanent injunction in favor of the lessee, the lessors have appealed.
The parties agree that although the action was for an injunction, it was brought to attain the same result as an action for specific performance of the lease agreement.
Thurman had an extensive cattle operation covering over 700 acres in Neosho county. On January 25, 1964, he went to the farm home of the Trims for the purpose of renting their property, consisting of approximately 230 acres lying in the middle of Thurman s operation. Thurman brought with him a partially typed farm lease, and while consulting with the Trims, filled in the blank spaces. The filled-in portions were initialed and the instrument was executed by all parties.
The lease purported to cover property described therein as
“NK — SW£ & SWK — SWM and WÁ NWK — 18-29-19—or approximately 230 acres Situated 1 mile west and 3¥z mile North of Galesburg, Kansas.”
The parties agree the description was erroneous. The Trims actually owned 230 acres, but the legal description encompassed only 200 acres. Ten or twenty acres of that described was not owned by them, while fifty acres owned by them was omitted from the description.
The term of the lease was from March 1, 1964, to March 1, 1966, with an option in Thurman’s favor to extend the lease for three years. The annual rent was $1,350 — $675 payable March 1, and a like amount on September 1 of each year. Thurman was granted an option to purchase the property for $125 per acre during the term of the lease or renewal thereof. The lease provided that Thurman was to have the privilege of “using all acreage described [as he deemed] advisable following normal agricultural practices.” It was further provided that the Trims were to furnish fencing materials and assist Thurman in the installation of the same. The Trims were also to carry insurance on what was described as a “building.” In addition, the lease contained the usual provisions relating to peaceable possession by the lessee, and a termination provision for nonpayment of rent or unlawful use.
Thurman took possession of the entire 230 acres, except for the house, which the Trim family continues to occupy. Trim also kept a horse and one or more cows of his own on the property — the exact number is in dispute. Thurman offered evidence that he had done considerable work in improving the pasture and fences, and had spent about $1,400 on the property.
On January 31, 1966, shortly before the expiration of the original two-year term, Thurman notified the Trims by letter that he was exercising the option to renew the original lease according to its terms. In the letter of renewal the Trims were informed that they would have to cease keeping a horse and cows on the premises but could continue to occupy the house as long as such occupancy did not interfere with Thurman’s operations. Thurman reserved the right to ask for possession of the house on ninety days’ notice. Shortly thereafter, Trim, through his attorney, notified Thurman the lease would be terminated and Thurman’s cattle moved off the premises on March 1, 1966. Subsequently, Trim moved the cattle across the road to other property belonging to Thurman and locked the gates.
On March 25, Thurman filed the present action which, in effect, asked that the Trims be enjoined from interfering with Thurman’s peaceable enjoyment and right to possession of the leased premises. A restraining order was issued ex parte. The Trims then filed their answer, setting up the following defenses: (1) injunction was not a proper remedy, (2) fraud in the procurement of the lease, and (3) violation of the terms of the lease by Thurman. After a full hearing the district court granted a temporary injunction enjoining, the Trims from interfering with Thurman’s cattle operations and his quiet and peaceable possession of the leased premises, except they were allowed to continue to occupy the house and to keep' one cow and calf.
By stipulation and agreement the matter was submitted for final decision to the district court on the same evidence that was introduced by the parties at the hearing on a temporary injunction. The court, in granting plaintiff relief, found that the parties were bound by the terms and conditions of the lease; that in spite of the inaccuracy of the description in the lease, the parties understood what property was being leased, and that performance had been had under the correct description. The court further found that the plaintiff was innocent of any fraud; that the defendants had accepted the benefits of the lease for two years; that the plaintiff duly exercised the renewal option; that defendants were interfering with plaintiff’s peaceable possession of the leased premises and denying him rights as lessee; that plaintiff had no adequate remedy at law, and defendants should be enjoined from interfering with plaintiff’s possession of the leased land.
The Trims have raised substantially the same points on appeal as they urged as defenses at trial. Initially, they assert that an injunction action is not a proper remedy in this type of case. Reference is made to Thurman s not being in possession at the time the action was instituted and, therefore, not entitled to seek an injunction, since the remedy is available only to maintain the status quo and is unavailable to correct a past injury. We do not agree. In the first place the record fails to disclose that Thurman was completely ousted from possession at the time Trim removed the cattle. Thurman had made use of the barn at one time or another during the original term of the lease and had hay in the barn at the time the cattle were removed. More important is the fact that Thurman had already exercised the renewal provisions of the lease which entitled him to the continued right to possession of the premises.
In the absence of an express covenant to the contrary, a lease of realty carries with it an implied covenant that the lessee shall have quiet and peaceable enjoyment of the leased premises as against the lessor or those lawfully claiming under him. (Robinson v. Armstrong, 154 Kan. 336, 118 P. 2d 503; Wallace v. Carter, 133 Kan. 303, 299 Pac. 966.) To preserve that right against wrongful interference, the lessee may be entitled to equitable relief against the lessor or a third person. (Peterson v. Vak, 160 Neb. 450, 708, 70 N. W. 2d 436, 71 N. W. 2d 186, 51 A. L. R. 2d 1221; 32 Am. Jur., Landlord and Tenant §243; 51 C. J. S., Landlord and Tenant §320.) Likewise, there is authority for the proposition that a renewal clause in a lease may be specifically enforced. (32 Am. Jur., Landlord and Tenant §984; 81 C. J. S., Specific Performance §63 b.) For the reasons stated, we are of the opinion that the lessee was not precluded from resorting to injunctive relief.
In effect, Thurman requested the court to compel perfomance of the implied covenant of quiet and peaceable enjoyment of the leased premises. Although the action was denominated as one for an injunction, it sought to accomplish the same purposes as a decree for specific performance and, therefore, is governed by the equitable principles applicable to the latter remedy. (City of Holton v. Kansas Power & Light Co., 135 Kan. 58, 9 P. 2d 675.) Whether equity will decree specific performance of a contract is a matter for the exercise of sound judicial discretion, and depends upon the facts of the particular case. (Wetzel v. Hattrup, 174 Kan. 244, 255 P. 2d 637.)
The Trims contend the terms of the lease relating to the description of the property are so ambiguous and uncertain that the lease cannot be specifically enforced. We are unable to agree.
We have had occasion to point out that specific performance of a written contract for the sale of real estate will not be denied merely because the description of the property is so ambiguous and uncertain that resort must be had to the use of parol or extrinsic evidence. In such case a description is sufficient if the parties to the contract know what is being bought and sold, and the land is so described that the court can, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold. (Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1066; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536.) In Brewer v. Schammerhorn, 183 Kan. 739, 332 P. 2d 526, which involved an ambiguous and uncertain description in a deed, the following rule was recognized and applied:
“Where tire description of the land in a deed is uncertain or ambiguous as to the quantity conveyed, which is latent in character as here, it is proper for courts to resort to parol evidence, not to contradict the instrument but to explain the ambiguity or uncertainty, in order to show the situation and condition existing upon the property conveyed, the circumstances under which the conveyance was made and the practical construction put upon the conveyance by the parties for the purpose of ascertaining their intention. This inquiry should be confined to the time of the execution of the deed without reference to subsequent circumstances. (Citing cases.) Thus, where a vendor places his purchaser in possession of land, as here, under a certain description in the deed, the vendor cannot afterward avail himself of any ambiguity in the conveyance, their contemporaneous construction fixing the intention of the parties.” (p. 745.)
We believe the foregoing principles apply with equal force to a written lease when parol evidence becomes necessary to determine the premises demised.
Here the court heard evidence concerning the property intended to be covered in the lease agreement. ■ There is some conflict in the testimony as to how the erroneous description came about. The description on its face was uncertain and ambiguous in that only 200 acres were legally described, whereas reference was made to 230 acres. Mr. Trim testified that he thought he owned 240 acres and was leasing 230, “keeping out land for the house and my horse and my cow.” The house was not specifically mentioned in any part of the lease, nor was the Trims’ use of the house discussed at the time the lease was executed. The evidence clearly discloses that despite the erroneous description, Thurman was placed in possession of the entire 230 acres owned by the Trims, except for the house. This arrangement continued for nearly two years. During that time neither Trims’ possession of the house nor Thurman’s possession of the remaining tract was disputed. Application of the rule stated in Brewer makes clear the intention of the parties at the time the lease was executed that the Trims retain possession of the house and Thurman the remaining 230-acre tract. The provision of the lease requiring the Trims to carry insurance on a “building” lends some support to our conclusion that the house was not intended to be included as a part of the leased premises. At any rate, the intention of the parties, as manifested by their conduct from the inception, clarifies the ambiguity and uncertainty of the description. It follows that the Trims’ right to possession of the house should remain undisturbed, and to that extent the trial court erred.
The Trims further complain that the trial court erred in failing to admit parol evidence to show that the terms actually agreed on were not contained in the written lease. This evidence was offered in support of their defense of fraud in the inducement, and they rely on this court’s holding in Mills v. Purdy, 142 Kan. 133, 45 P. 2d 1049, to the effect that when equity is called on to decree specific performance of a written contract, the party to be charged may show fraud or mistake by parol evidence. We have no quarrel with the rule stated, but its application here is, in our opinion, unwarranted.
The Trims would ask us, as they did the lower court, to overlook the fact that the parties operated under the lease agreement for nearly two years before any affirmative act of disavowal or rescission was attempted. Mr. Trim testified he was satisfied with the lease when he executed it, and not until a week or two later did he become unhappy when he realized it did not contain the terms to which he thought the parties agreed. Despite his dissatisfaction, Trim took no action. He recognized the terms of the lease in all respects and accepted the benefits inuring to him thereunder until the option to renew was exercised by Thurman. It was then he informed Thurman the lease would not be renewed.
It is well established that if a party desires to disaffirm a contract for fraud, he must act promptly after discovery of the fraud or losé the right of rescission. If by words or conduct he treats the contract as binding after having knowledge of the fraud, he thereby affirms the contract and cannot rescind. Many of our cases recognizing that the equitable remedy of rescission is available only to the diligent are cited and relied on in Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136, where this corut considered the availability of the defense of fraud and misrepresentation in an action for specific performance, and held that under the circumstances the defense was unavailable. Under the facts here Trim’s repudiation of the lease agreement came too late, for he, by his previous conduct, had treated the agreement as binding. The trial court properly excluded the parol evidence for the reason that fraud as a defense had been waived.
The Trims’ further contention that Thurman had an adequate remedy at law cannot be - sustained. There was evidence before the court that the property in question was strategically located in relation to other land owned or leased by Thurman for his cattle operation. Although the recovery of damages might well provide some relief to the lessee in this case, that remedy lacks the completeness and effectiveness of a decree in equity. See Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P. 2d 914, and Kanner v. Enzler, 56 N. Y. S. 2d 604.
What has been said effectively determines the substantial points raised on appeal. We have, however, examined each of the matters about which appellants complain, but find nothing that would justify further discussion or require reversal. The judgment of the lower court, except as it applies to the house, is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This appeal is by the state from an order granting a new trial following defendant’s conviction of first degree murder.
After verdict of guilty Thomas M. Kidwell filed a motion for new trial alleging nine grounds of error. All but two of these grounds were overruled. The two remaining were:
“1. For the reason that tire verdict is not sustained by sufficient evidence.”
“3. That the County Attorney was guilty of misconduct which prevented the Defendant from having a fair trial as follows, to-wit: The County Attorney, by his own statement before the Jury, stated that the Defendant had been charged with a crime in Sedgwick County, Kansas, that the Defendant had resisted extradition from California, when, in truth, the Defendant had never taken the stand, the Defendant has never been convicted of any crimes, and the County Attorney did not, by witnesses, offer evidence to rebut the Defendant’s good character.”
The motion was argued and taken under advisement. Pertinent portions of the order read:
“This is a ruling on defendant’s motion for a new trial.
“The defendant in a criminal case is entitled to one fair trial. Defendant Kidwell did not get one. His motion is sustained and he is granted a new trial.
“Statements about criminal ‘charges’ against the defendant in another case were injected into this case leaving the jury with the unfair and prejudicial inference that Kidwell was an ex-convict. The matter was never verified or clarified.
“The county attorney asked Jean Moffitt, a character witness, if her opinion of the defendant’s good reputation would be different if she knew that he had been ‘charged’ with a criminal offense and that he had resisted return from California to answer charges in Sedgwick County, Kansas. The county attorney justified these questions on the basis that the defendant had put his character in issue by putting a character witness on the stand. It is correct that character then became an issue and could be refuted with proper evidence.
“The county attorney insists that the questions were for the purpose of testing the credibility of the witness. This sounds legal, but the fact remains that the county attorney suggested by his own questions that the defendant had a criminal record and had resisted extradition from California to answer charges in Sedgwick County, Kansas. These questions assumed facts not in evidence and never put in evidence.
“Hardly could anything have been more prejudicial to the defendant. It is all the more unfair if it is true, as defense counsel contends, that the defendant had never been convicted of any wrong doings.
“These were references to specific incidents or conduct which the county attorney inferred were criminal, they were not convictions. These references probably did as much damage as if they had been convictions.”
We note that the trial court in giving the basis for granting a new trial did not discuss insufficiency of the evidence.
On appeal the state argues that the scope of the cross-examination of the character witness was within proper bounds and it was manifest error to grant a new trial.
The defendant contends the cross-examination was improper under the provisions of K. S. A. 60-447. Defendant further contends that this appeal falls within the cases in which this court has said granting of a new trial lies within the sound discretion of the trial court and its ruling will not be disturbed in the absence of a showing of an abuse of discretion or other manifest error.
The abstract of appellant sets out the testimony of Jean Moffitt, a witness for defendant. She testified that the defendant had a very good reputation in her community. On cross-examination the county attorney inquired as follows:
“Q. Thank you, Your Honor. Mrs. Moffitt arriving at your opinion as to the defendant’s reputation and character, did you consider the fact that he was charged with a crime in Sedgwick County, Kansas?
“A. The crime?
“Q. Did you consider that fact?
“A. Yes, sir.
“Q. And in arriving at your opinion as to the defendant’s character and reputation, Mrs. Moffitt, did you consider his efforts to resist being returned from the State of California to the State of Kansas for the prosecution of that crime?
“Mr. Thompson: Objection, Your Honor.
“The Court: Overruled.
“Q. Mrs. Moffitt, do you know whether or not the defendant, Mr. Kidwell, returned to the County of Sedgwick, State of Kansas, at the time he was supposed to appear in court there on the charges there pending?
“A. I’m afraid I don’t understand you, sir.
“Q. You are aware, are you not, that Mr. Kidwell was accused of a crime in Sedgwick County, Kansas?
“A. Are you referring to the wife desertion?
“Q. Yes or no. Were you aware that he was charged with a crime in Sedgwick County, Kansas?
“A. Yes, sir.
“Q. And do you know whether or not he appeared in court in Sedgwick County, Kansas, on that charge when he was supposed to?
“A. Of my own knowledge, no, sir, I don’t know.
“Q. Were you on his bond?
“A. No, I wasn’t on his bond.
“Q1. Were you or your husband, or agent, or principal, on his bond?
“A. My husband was on the bond in Wichita. Is that what you are referring to?
“Q. Yes. And did Mr. Kidwell in that case appear for trial or in court when he was supposed to?
“Mr. Thompson: I’m going to object here, Judge. Her husband wrote the bond. She wasn’t in the business at that time.
“The Court: Overruled. Go on and answer the question.
“The Witness: He didn’t appear because he was in jail up here, sir.”
When a defendant in criminal proceedings calls a witness to testify to his good reputation in the community he does so in an effort to convince the jury that it is improbable that a person of such reputation would be guilty of the crime charged. In such case the prosecution is entitled to cross-examine the character witness as to knowledge of certain specific reports of misdeeds by defendant for the purpose of testing the reliability of the testimony as to the reputation of defendant. This is not permitted to establish the truth of the reports. It is permitted only to determine if the witness is in a position to know and evaluate the defendant’s general reputation and to point out bias or prejudice of the witness. (State v. McDonald, 57 Kan. 537, 46 Pac. 966; State v. Yeater, 95 Kan. 247, 147 Pac. 1114; State v. McKee, 131 Kan. 263, 291 Pac. 950; State v. Earley, 192 Kan. 144, 386 P. 2d 221; Wharton’s Criminal Evidence, 12th Ed. Vol. 3, §865.)
The provisions of K. S. A. 60-447 do not limit cross-examination of a character witness as defendant suggests. The purpose of inquiry as to known reports, arrests or convictions is limited to testing the credibility, bias or prejudice of the witness. In such case the evidence is not for the purpose of proving conduct of the defendant. It is not for the purpose of proving a trait of defendant’s character. The inquiry is permitted solely, for the purpose of enabling the jury to determine what weight should be given to the testimony. Reputation is the issue, not conduct, not guilt or innocence. Therefore the limitations on evidence imposed by the above statute do not apply in the present case. (See Gard—Kansas Code of Civil Procedure §447; Vernon’s Kansas Statutes Annotated Vol. 4, §60-447.)
We note that the state by cross-examination did not attempt to determine this witness’ knowledge as to a particular known report or charge. The first question referred to a charge of “crime” in Sedgwick county. When the witness asked “what crime” no further explanation was forthcoming. Later when the witness asked the county attorney if he was referring to “wife desertion” the county attorney again failed to point out the certain specific charge about which he inquired. The redirect examination by defense counsel sheds no light upon this matter. It is true the witness assumed to know the crime referred to by the attorney. She stated she was aware the defendant was charged with a “crime.” Such a general question and answer would not be helpful to a jury in determining credibility, bias or prejudice.
When evidence is introduced for a limited purpose the trial court should explain the limitation to the jury and limit its application to that purpose. (Griffith v. Railroad Co., 100 Kan. 500, 166 Pac. 467; See also 53 Am. Jur. Trial §670; K. S. A. 60-406; PIK 2.40.)
The abstract furnished by appellant does not indicate that this limitation was properly explained to the jury. The purpose of the inquiry is to determine whether the character witness is in a position to know and evaluate the defendant’s reputation in the community. The jury should have been advised of this limitation. The instructions to the jury are not included in the abstract.
The ruling on defendant’s motion for new trial clearly indicates that the trial court felt quite strongly that defendant did not have a fair trial because the jury was left “with the unfair and prejudicial inference that Kidwell was an ex-convict.”
This court has followed the rule that the granting of a motion for new trial lies within the sound discretion of the trial court and its ruling thereon will not be disturbed in the absence of a showing of an abuse of discretion or other manifest error. (State v. Jolly, 196 Kan. 56, 62, 410 P. 2d 267; State v. Clark, 171 Kan. 734, 237 P. 2d 255; State v. Miller, 154 Kan. 267, 118 P. 2d 561.)
In the present case the question of abstract law on the propriety of cross-examination of the character witness is discernible, but the question of manifest error is not so readily discernible from this printed record. The trial court expressed its opinion that the jury was left with an unfair and prejudicial inference that the defendant was an ex-convict. The specific reason behind the trial court’s opinion is not clear from the record. It may have been because of what it believed to be improper questions on cross-examination of the witness. It may have been because of the court’s failure to require the particular report, arrest or conviction to be identified with sufficient certainty to enable the cross-examination to proceed. It may have been because of failure to make clear to the jury the limited purpose for which such examination was permitted. Under these circumstances we cannot say that error was manifest.
For the foregoing reasons no abuse of discretion or other manifest error has been made to appear and the order granting defendant a new trial is affirmed. | [
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The opinion of the court was delivered by
Luckert, J.:
Prior Kansas appellate decisions require a sheriff to provide medical care to a prisoner in the sheriff s custody and a county to pay for the care if the prisoner is indigent and has no other means of payment. Relying on this caselaw, the University of Kansas Hospital Authority (Hospital Authority) sued the Board of Wabaunsee County Commissioners (County) for reimbursement of the medical expenses incurred in the treatment of a man who jumped through the fourth-stoiy window of an unlocked interrogation room in the Wabaunsee County jail where he had been placed by sheriff officials during an investigation.
We hold the County is not obligated to pay the expenses because the injured man, although temporarily detained, was not a prisoner committed to or held in the county jail at the time he was injured and hospitalized.
Facts and Procedural Background
The relevant facts are uncontroverted. This dispute arose on April 5, 2006, when Ector Manuel Savala-Quintero, a/k/a Alberto Contreras Gonzalez, (Contreras) sustained multiple physical injuries after his jump and four-story fall from the Wabaunsee County jail. To explain the circumstances relevant to a determination of whether he was a prisoner in the sheriff s custody at the time he was hospitalized, we begin approximately 1 month earlier, when a Kansas Highway Patrol trooper in Wabaunsee County had arrested Contreras on drug-related charges. While Contreras was in the Wabaunsee County jail awaiting trial, a federal agent with the United States Immigration and Customs Enforcement (ICE) interviewed him over the telephone and then faxed a form 1-247 Immigration Detainer to the Wabaunsee County Sheriff s Office. The detainer was not a warrant but required the sheriff s office to detain Contreras for no longer than 48 hours so that ICE would have “adequate time ... to assume custody of the alien.”
On March 21, 2006, Contreras and the Wabaunsee County Attorney entered into a diversion agreement concerning the Wa-baunsee County charges. The diversion agreement led to Contreras’ release from tire Wabaunsee County jail on March 28,2006. Contreras was immediately taken to the Shawnee County jail on an outstanding warrant. A copy of the ICE detainer was sent with him. Contreras bonded out of the Shawnee County jail on April 5, 2006, and was to appear in court the following day.
On the evening of April 5, 2006, Contreras returned to the Wa-baunsee County courthouse to retrieve some personal items he had left at the jail, which is located on the fourth floor of the courthouse. To enter tire courthouse building after 5 p.m., a person must “buzz dispatch” to let him or her in. Contreras arrived with his sister and her boyfriend.
Jailer Barbara O’Connor of the Wabaunsee County Sheriff s Office received a call from dispatch around 7:30 p.m., indicating that Contreras was at the courthouse door and wanted to collect his belongings. Before allowing Contreras to enter, O’Connor called her supervisor, Captain Joe Lamb. O’Connor was concerned that Contreras might have escaped from another facility. Captain Lamb also believed that Contreras should still be in jail because of the “ 'Federal Hold’ ” placed on him. He instructed O’Connor to allow only Contreras in the building and to place Contreras in the “ 'fingerprint’ room,” which is a room used for fingerprinting, no-contact visitation, and interrogation, until Captain Lamb’s arrival at the jail.
Contreras was buzzed into the courthouse and, without escort, rode the elevator to the jail. O’Connor met him there and led him through the secure jail door and to the fingerprint room. Upon placing Contreras in the room, O’Connor left, closing the door behind her, and went to look for Contreras’ personal belongings.
O’Connor was the only employee in the jail at the time. Given that situation, the fingerprint room was the most secure location to leave Contreras alone because a security camera fed live video from the room to dispatch. Thus, Contreras could be monitored for any action that would create a security risk to O’Connor or the jail. The door to the fingerprint room, although capable of being locked, was not locked. Nevertheless, to open the door, the door knob had to be turned “in the opposite direction than is customary.” The room did not have bars or any other barriers on the windows.
When Captain Lamb arrived at the jail, he asked Contreras about the status of his Shawnee County warrant and the ICE de-tainer. Contreras told Captain Lamb he had bonded out on the Shawnee County warrant but simply shrugged his shoulders at the mention of the ICE detainer. Captain Lamb told Contreras to “ 'have a seat’ ” while he checked on Contreras’ status. While Con treras was in the room alone, he made two unsuccessful attempts to turn the door knob and then knocked on the door.
Captain Lamb went to the dispatch area to check on Contreras’ status. Via the live video feed he saw Contreras pick up a chair, smash a window, and then jump out of tire window. Contreras landed on the ground below. Captain Lamb instructed O’Connor to have dispatch call for an ambulance and then ran downstairs.
After Contreras hit the ground, he attempted to get up and run away, but he could not move because his hips were broken. A Wabaunsee County Sheriff s deputy and a Kansas Highway Patrol trooper, who had been dining across the street, responded to the emergency call. When Lamb and the other officers arrived, they saw Contreras on the ground. Contreras’ sister was straddling his chest, screaming and crying in Spanish, and her boyfriend approached officers with his hands in his pockets. Because Contreras was a “ ‘known felon’ ” and the officers did not know the identities of Contreras’ companions, they handcuffed Contreras, his sister, and her boyfriend for the sake of officers’ safety until the situation could be assessed. The handcuffs were removed from all three individuals when the medical emergency technicians arrived. By that time, the situation had calmed down, and officers had realized nobody was at risk. The parties agreed that Contreras was never under arrest. But the highway patrol trooper acknowledged that when a person is handcuffed, he or she is detained and not free to leave.
Contreras was transported to die University of Kansas Medical Center (Medical Center) by helicopter, and a copy of the ICE detainer was given to the Medical Center Police Department on April 6, 2006. Captain Lamb told the Medical Center Police Department that Contreras had not been arrested by the Wabaunsee County Sheriffs Office. Nevertheless, Captain Lamb told the Medical Center Police Department that “ The ICE still had a hold on him and that they should give the Feds a call.’ ” Wabaunsee County officers had not been able to confirm Contreras’ ICE status on April 5, 2006, because Contreras jumped before Captain Lamb could locate his file.
The County did not charge Contreras with any crimes associated with his jump from the fourth-story jail window. While Contreras was in the hospital, there were no guards placed outside his room, and he was not handcuffed or restrained in any way. The only “ police hold’ ” referred to in Contreras’ medical record was from ICE. When he was released from the hospital, Contreras was not arrested or taken into custody by law enforcement officers. Moreover, the County was not notified of Contreras’ release from the hospital. In addition, ICE had no interest in Contreras after he was released from the hospital.
District Court Proceedings
The Hospital Authority sued the County for reimbursement of medical expenses incurred in the treatment of Contreras, alleging four counts. First, the Hospital Authority asserted a claim based on “the statutoiy right created” under K.S.A. 2006 Supp. 22-4612; later in the petition, the Hospital Authority also cited K.S.A. 19-1910. Second, the Hospital Authority alleged the Wabaunsee County Sheriff contracted to pay the expenses when the sheriff “authorized the treatment” of Contreras, who was in the County’s custody. In a third count, the Hospital Authority stated: “The case law in Kansas is clear that the Defendant-County is responsible for the medical treatment of a person in its custody.” Finally, the Hospital Authority asserted liability on the theoiy of quantum meriut.
Both the Hospital Authority and the County filed motions for summary judgment. The parties agreed on the applicable legal standard—“a sheriff has a duty to furnish medical attention to a prisoner in his custody who is in need thereof, at the county’s expense if the prisoner is indigent and no other source of funds is available.” Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 378, 566 P.2d 384 (1977) (Mt. Carmel) (holding county responsible for medical expenses of individual serving jail sentence who was injured during escape from jail; custody was reacquired before the individual was taken to hospital). As the parties noted, this standard was approvingly cited and applied in Wesley Med. Center v. City of Wichita, 237 Kan. 807, 809-12, 703 P.2d 818 (1985) (Wesley) (discussing Kansas statutes to determine whether city or county was responsible for cost of care of prisoner arrested for violation of state law); Allen Memorial Hosp. v. Board of Butler County Comm’rs, 12 Kan. App. 2d 680, 681-85, 753 P.2d 1302 (1988) (Allen) (holding county responsible for medical treatment of individual brought to hospital after being held in county jail under Alcoholism and Intoxication Treatment Act, K.S.A. 65-4001 et seq.); and Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 732-34, 634 P.2d 163 (1981) (Dodge City) (holding county responsible for treatment of gunshot wound of individual effectively arrested at scene of burglary in progress).
The district court granted summary judgment in favor of the County. In doing so, the court first discussed various statutory provisions that “would be applicable to determining the meaning of custody ... in this situation.” The court determined K.S.A. 2006 Supp. 22-4612, the statute cited in the Hospital Authority’s petition as die basis for its claim, only clarified “the payment rate that counties would have to pay for those in their custody, and does not define the meaning of ‘custody.’ ” Further, the court held that K.S.A. 2006 Supp. 22-4612, which was not effective at the time of Contreras’ injury, did not operate retroactively.
Addressing the statutes that were in effect at the time of the incident and “would be applicable to determining the meaning of ‘custody,’ ” the district court identified three provisions: K.S.A. 19-1910 (relating to “[c]ost of keeping prisoner under criminal process”); K.S.A. 19-1919 (relating to “[treatment of prisoners”); and K.S.A. 22-2202(9) (defining “custody”). The district court concluded the County’s obligation under K.S.A. 19-1910 was limited to situations in which the medical expenses were incurred in the treatment of “ ‘prisoners’ ” who are “ ‘committed to a county jail’ ” or “ ‘held within the county.’ ” Addressing K.S.A. 19-1919, the district court noted that this provision “is more general, in that it provides, in pertinent part, that ‘all prisoners shall be treated with humanity.’ ” Then addressing the two statutes together, the district court stated: “The constant with these statutes is that tire reference is to ‘prisoners.’ ”
Finally, the district court determined that to tire extent caselaw imposed a requirement that the individual be in custody, the applicable definition is found in K.S.A. 22-2202(9). That provision defines “custody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.”
The district court subsequently cited and discussed the decisions in Mt. Carmel, Wesley, Allen, and Dodge City. Applying the facts of those cases, the district court held a county is obligated to pay an indigent individual’s medical expenses only if the individual is under arrest, is a prisoner in the county jail, or is confined in the jail as otherwise provided by law, such as through civil commitment proceedings. Because none of those circumstances applied to Contreras’ detention, the district court concluded Contreras was not in the Wabaunsee County Sheriff s custody at the time of his jailhouse jump and denied relief on the Hospital Authority’s statutory and common-law claims. The district court also denied relief on die Hospital Audiority’s contract and quantum meriut claims because those claims were based on die alleged duty of the sheriff and the sheriff s implied authority to contract on behalf of the County and no such duty existed under the circumstances of this case.
Court of Appeals’ Proceedings
The Hospital Authority appealed. In its brief before the Court of Appeals, the Hospital Authority did not cite any of die statutes on which it had based its statutory claim against the County. Nor did it present an argument based on its contract claim. Instead, it relied on caselaw to argue the district court had too narrowly defined die meaning of a prisoner in a sheriff s custody. The Hospital Authority also argued it was entitled to equitable relief based on quantum meriut.
The Court of Appeals agreed with the Hospital Authority that the district court’s definition of custody was too limited. University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm’rs, No. 104,236, 2011 WL 2040254, at *5 (Kan. App. 2011) (unpublished opinion) (Hospital Authority). In doing so, the panel relied on two of the four cases discussed by the district court—Dodge City, 6 Kan. App. 2d 731, and Mt. Carmel, 1 Kan. App. 2d 374. In Dodge City, a burglar was wounded while being apprehended at the scene of the crime and was transported from the crime scene directly to the hospital without first going to jail. Likewise, in Mi. Carmel the individual was not in jail immediately preceding his transport to the hospital; the individual, who had been serving a jail sentence, was injured when he escaped from jail. Law enforcement officers reacquired custody before he was transported to the hospital. The Court of Appeals held these cases “clearly indicate that it is not the fact of actual confinement or incarceration in a detention facility which controls the issue of liability, but rather the indicia of custody.” Hospital Authority, 2011 WL 2040254, at *5.
The Court of Appeals adopted this indicia-of-custody standard after noting the word “ ‘custody is a very elastic term and is not limited to a person’s actual physical confinement in a jail.” 2011 WL 2040254, at *3 (citing Black’s Law Dictionary 384 [6th ed. 1990]). The Court of Appeals recognized the restrictive meaning of “custody” found in the statute cited by the district court, K.S.A. 22-2202(9) (defining “custody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate”). But the Court of Appeals noted this court has more broadly determined an individual is in custody if “ ‘there were some significant restraints on his freedom of movement which were imposed by some law enforcement agency.’ ” 2011 WL 2040254, at *3 (citing State v. Louis, 240 Kan. 175, 181, 727 P.2d 483 [1986] [applying the test used in custodial interrogation cases to the word “custody” for purposes of implied consent statute allowing blood-alcohol testing, K.S.A. 8-1001]).
Concluding this broader restraints-on-freedom test applied to the determination of whether an individual was in a sheriffs custody for purposes of obligating the county to pay for the individual’s medical care, the Court of Appeals held: “Once an arrest is made, charges are filed, or other restraints are placed upon the individual’s liberty, the sheriff assumes responsibility for all later costs associated with the person’s medical care.” 2011 WL 2040254, at *5. The Court of Appeals then concluded that significant restraints had been placed on Contreras’ freedom. The Court of Appeals reasoned that the law enforcement officers would not have allowed Contreras to walk away if he had not been injured but would have taken him into custody for criminal damage to property. 2011 WL 2040254, at *4. Then, the Court of Appeals focused on three additional facts: (1) Contreras was told to enter the locked courthouse alone; (2) he was placed in a “ ‘secure’ room”; and (3) he was temporarily handcuffed. These circumstances, according to the Court of Appeals, were “sufficiently similar to actual custody to require Wabaunsee County to bear the cost of his medical care. [Citation omitted.]” 2011 WL 2040254, at *5. This was true “[e]ven though some of the indicia of formal custody were not present.” 2011 WL 2040254, at *5.
Although the County had cited and discussed some of the statutes on which the Hospital Authority had initially based its claim as well as additional statutes, some of which were discussed in the four cases cited by the parties and discussed by the district court, the Court of Appeals did not discuss these statutes.
Petition for Review
The County petitioned for review, arguing the Court of Appeals’ holding was so broad it would encompass any sort of detention by a law enforcement officer, including an investigatory detention under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The County urged adoption of the district court’s more limited view of a county’s obligation. In addition, the County argued the Court of Appeals erred when it weighed evidence and made findings of fact beyond those facts agreed upon by the parties in their dueling summary judgment motions. Specifically, the County objected to the Court of Appeals’ findings that (1) the officers would not have allowed Contreras to walk away, and (2) Contreras committed the crime of criminal damage to property. The Hospital Authority responded that the Court of Appeals’ reasoning was supported by applicable caselaw.
This court granted the County’s petition for review under K.S.A. 20-3018(b) and has jurisdiction under K.S.A. 60-2101(b). After review was granted, the Kansas Association of Counties filed an ami-cus curiae brief in which it argued a county’s liability is limited to situations spelled out in the statutes. The amicus also suggests die Court of Appeals went off track by divorcing its discussion of Dodge City and Mt. Carmel from the relevant statutes that define a county’s obligation.
Analysis
As we consider these arguments, the facts on which the district court based its decision are undisputed. Instead, the controversy involves the legal conclusions of the Court of Appeals and the district court, which interpreted and applied several statutes in its analysis. This court applies an unlimited appellate standard of review when considering judicial conclusions of law and questions of statutory interpretation. Polson v. Farmers Ins. Co., 288 Kan. 165, 168, 200 P.3d 1266 (2009); see Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013) (exercise unlimited review of legal conclusions); Adams v. Board of Sedgwick County Comm’rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009) (“When material facts are uncon-troverted, as they are in this case, an appellate court reviews summary judgment de novo.”); Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005) (statutory interpretation is question of law providing for de novo appellate review).
With this standard of review in mind, it is helpful to clarify what is not before us. As we have noted, in the Hospital Authority’s appellate brief to die Court of Appeals it did not address the district court’s denial of its contract claim. Nor did it cite the statutes on which it had based its statutory claim—K.S.A. 2006 Supp. 22-4612 and K.S.A. 19-1910. Furthermore, it did not discuss the district court’s ruling that K.S.A. 2006 Supp. 22-4612 did not apply because it was not effective until after Contreras was injured. Consequently, the Hospital Authority has waived those contractual and statutory theories of recovery. See State v. Williams, 298 Kan. 1075, 1083, 319 P.3d 528 (2014) (when a litigant fails to adequately brief an issue it is deemed abandoned); Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) (appellant’s brief must include the “arguments and authorities relied on”).
While we will not revisit the waived issue of whether K.S.A. 2006 Supp. 22-4612 applies retroactively to this case and will not consider allowing the Hospital Authority’s statutory claim because of the waiver, we must consider the statutes on which the district court relied. As we will explain, these statutes—K.S.A. 19-1910, K.S.A. 19-1919, and K.S.A. 22-2202—are an integral part of the rationale underlying the appellate decisions cited by the Hospital Authority.
This reliance is evidenced in the basis for the Mt. Carmel court’s statement of a sheriff s and a county’s duties. Specifically, the Mt. Carmel court cited two cases: Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972), and Pfannenstiel v. Doerfler, 152 Kan. 479, 105 P.2d 886 (1940). In Levier, 209 Kan. at 445-48, this court recognized the duty to provide a prisoner with medical care arose from the Constitutions of the United States and Kansas. And in Pfannenstiel, 152 Kan. at 483, this court held “[i]t is the duty of a sheriff or other officer having lawful custody of a prisoner to treat the prisoner properly, and, as the statute (G.S. 1935, 19-1919) says, 'with humanity.’ ” This statute currently includes the same wording and is found at K.S.A. 19-1919.
While K.S.A. 19-1919 provides a basis for finding that a sheriff must provide medical care to prisoners, it does not address which governmental official or entity has the duty to pay for the care. The importance of this distinction is underscored by looking at caselaw relative to both the constitutional and statutory duty to provide medical care to prisoners.
Focusing first on the United States and Kansas Constitutions as potential sources of the County’s duty to pay the Hospital Authority for Contreras’ care, we observe that an extended discussion of the constitutional caselaw is not necessary because the Hospital Authority has never asserted a constitutional duty. Instead, we mention tire line of cases only because, subsequent to the decision in Levier, the United States Supreme Court drew a distinction between the duty to provide the care and the duty to pay for the care. Specifically, the Court clarified that, while the Constitution imposes a duty to provide medical care for prisoners in certain situations, “as long as the governmental entity ensures that the medical care needed is in fact provided, the Constitution does not dictate how the cost of that care should be allocated as between the entity and the provider of the care. That is a matter of state law.” Revere v. Massachusetts General Hospital, 463 U.S. 239, 245, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983). The Court went on to note: “If, of course, the governmental entity can obtain the medical care needed for a detainee only by paying for it, then it must pay. There are, however, other means by which the entity could meet its obligation.” 463 U.S. at 245. One option listed by the Court is for the government to rely on federal or state laws that require hospitals to provide medical care to indigent persons. 463 U.S. at 245.
The same distinction between the duty to provide medical care and the duty to pay for the care has been drawn in Kansas caselaw. At least since 1872, this court has recognized that a sheriff having custody of prisoners has a statutory duty to provide necessary medical care. See Atchison County v. Tomlinson, 9 Kan. 167, 175 (1872); accord G.S. 1868, ch. 25, sec. 105; G.S. 1868, ch. 53, sec. 19. The first of these statutory provisions is currently codified at K.S.A. 19-811, which states: “The sheriff shall have the charge and custody of the jail of his county, and all the prisoners in the same, and shall keep such jail himself, or by his deputy or jailer, for whose acts he and his sureties shall be liable.” The second is the prior codification of the statute cited in Pfannenstiel, 152 Kan. at 483—G.S. 1935, 19-1919—which states, in relevant part, that “[a]llpris-oners shall be treated with humanity.” K.S.A. 19-1919.
Regarding the duty to pay for the medical care, in 1872 this court impliedly agreed with the county on appeal that when a sheriff seeks reimbursement from a county for expenses related to the costs of caring for prisoners, “[tjhere must be some positive provision made by law, or [a sheriff s] claim cannot be allowed.” Atchison County, 9 Kan. at 168-69, 172-75; see Comm’rs of Smith Co. v. Comm’rs of Osborne Co., 29 Kan. 72, 74-75 (1882) (statutes require sheriff with custody of prisoners confined to jail to “furnish anything in the way of care or treatment, or bedding, or sustenance, to prisoners,” but, without statutory authorization, sheriff cannot demand another county pay for expenses of sheriff even though sheriff is housing prisoners held on charges filed in the other county).
It is not just the sheriff who depends on a positive provision in the law in order to demand payment from a county for medical care to prisoners. The need for statutory authorization was recognized when, in a case much like this one, a physician sued a county seeking reimbursement for his services in providing medical care to prisoners in the county jail. The suit was dismissed for several reasons, including that the physician had contracted with the sheriff, not the county board, and no statute obligated the county board to pay the physician. Roberts v. County of Pottawatomie, 10 Kan. *29, *32 (1872); see also Hendricks v. Comm’rs of Chautauqua Co., 35 Kan. 483, 486-87, 11 Pac. 450 (1886) (duty of keeping county jail and supplying prisoners with board and lodging devolves upon the sheriff; county is not hable to one who furnished supplies to prisoner, even though done at sheriffs request).
The Roberts court implied that if the sheriff had made the claim, the county commissioners would have been obligated to consider the claim because of a statute that stated: “ ‘When a prisoner is committed [to a county jail] in a criminal action, the county board shall allow the sheriff his reasonable charges for supplying such prisoner.’ Gen. St. c. 53, § 10.” Roberts, 10 Kan. at *30, *32. Although the term “maintaining” has now replaced the term “supplying,” the substance of this statute has not changed over the intervening time and can now be found at K.S.A. 19-1910(a).
K.S.A. 19-1910, the provision regarding a county’s payment obligation, was not cited in Pfannenstiel, Mt. Carmel, Wesley, or the other cases cited by tire Hospital Authority. It could be argued that these cases appropriately found a common-law duty on the part of the county to reimburse those providing medical care to prisoners. See Lutheran Medical Center v. City of Omaha, 229 Neb. 802, 806, 429 N.W.2d 347 (1988) (city has common-law liability to pay for medical treatment required by person in police custody). But imposing a duty in tire absence of positive statutory authority would be contrary to the early Kansas cases we have discussed.
Nevertheless, without any attempt to reconcile the two lines of cases—statutory duty or common-law duty—this court in Wesley noted the conflict in Kansas cases regarding the duty to pay and merely concluded that the more recent cases trumped the older ones:
“[Ljater Kansas cases have consistently held that a prisoner’s rights include entitlement to medical care at the governmental agency’s expense, if die prisoner is indigent and no other source of funds is available. Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972); Pfannenstiel v. Doerfler, 152 Kan. 479, 483, 105 P.2d 886 (1940); Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 634 P.2d 163 (1981); Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 566 P.2d 384 (1977). It should be noted that several earlier Kansas cases held that a county is not bound to pay a physician for medical services rendered by him to prisoners in the county jail unless such services are authorized by the county. Hendricks v. Comm’rs of Chautauqua Co., 35 Kan. 483, 11 Pac. 450 (1886); County of Smith v. County of Osborne, 29 Kan. *72 (1882); Roberts v. County of Pottawatomie, 10 Kan. *29 (1872). The later cases, however, place a positive duty upon the county to furnish medical attention to a prisoner in custody who is in need of medical attention, if the prisoner is indigent and no other source of funds is available.” Wesley Med. Center v. City of Wichita, 237 Kan. 807, 809-10, 703 P.2d 818 (1985).
We need not spend more time questioning whether a more substantive analysis would have led to the same result because subsequent to the 1985 decision in Wesley, the Kansas Legislature twice amended K.S.A. 19-1910 to specifically address the obligations of the state and counties to pay for the medical care of prisoners. See L. 2005, ch. 150, sec. 4; L. 2002, ch. 117, sec. 2. (Additional legislation was adopted in 2006; but this is the legislation the district court found was not retroactive. See K.S.A. 2006 Supp. 22-4612.) The 2002 and 2005 amendments also postdate the decisions in Allen Memorial Hosp. v. Board of Butler County Comm’rs, 12 Kan. App. 2d 680, 753 P.2d 1302 (1988); Dodge City Med. Center v. Board of Gray County Comm’rs, 6 Kan. App. 2d 731, 634 P.2d 163 (1981); and Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 566 P.2d 384 (1977).
Because the determination of whether a medical provider should be the entity that bears the cost of caring for an indigent individual or whether that cost should be borne by the governmental entity with custody of the individual is a matter of public policy, the ques tion is left to the legislature to resolve. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 460, 228 P.3d 403 (2010); see also Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 544, 216 P.3d 158 (2009) (“It is not die duty of this court to criticize tire legislature or to substitute its view on economic or social policy.”); Higgins v. Abilene Machine, Inc., 288 Kan. 359, 364, 204 P.3d 1156 (2009) (“[W]e are not free to act on emotion or even our view of wise public policy. We leave the guidance of public policy through statutes to the legislature.”); State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009) (“Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change drat might make [the statute] more workable . . . .”).
These principles, which are based on basic separation of powers concepts, indicate that K.S.A. 19-1910 controls over die caselaw on which die Hospital Autiiority relies. The Hospital Authority has not argued a contrary view; instead, as we have noted, it chose not to even cite to the statutes on which die district court based its analysis. Especially in light of die lack of an argument to the contrary, we conclude K.S.A. 19-1910 controls our analysis, and the cases relied on by the Hospital Audiority can only be applied to the extent they are consistent with the statutory language.
At the time of Contreras’ injury and hospitalization, K.S.A. 19-1910 stated, in relevant part:
“(a) When a prisoner is committed to a county jail in a criminal action, the board of county commissioners shall allow the sheriff reasonable charges for maintaining such prisoner.
“(b)(1) If a person is stopped by or is in the custody of a law enforcement officer, as defined in K.S.A. 22-2202, and amendments thereto, who is an employee of the state and such person is injured by the officer while acting within the scope of such officer’s autiiority, costs incurred for medical care and treatment of the person shall be paid by the state if such care and treatment is required due to the injury and a determination has been made that the person has no odier resources.
“(2) All other costs incurred by the county for medical care and treatment of prisoners held within the county shall be paid from the county general fund when a determination has been made that the prisoner has no other resources.”
When interpreting this and other statutes, we abide by the fundamental rule of statutory interpretation that “ ‘ “the intent of the legislature governs if that intent can be ascertained.” ' ” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013) (quoting Zimmerman v. Board of Wabaunsee County Comm’rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d 400 [2009]). “ ‘[T]he 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' ” Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]).
Applying the plain language of K.S.A. 19-1910(a), we know that a county is only obligated to pay tire sheriffs expenses “[w]hen a prisoner is committed to a county jail in a criminal action,” and it is a sheriff, not a county, who has the duty to provide the care. See K.S.A. 19-811; K.S.A. 19-1910. As commonly understood, the word “commit” means-to “send (a person) to prison or to a mental health facility, esp. by court order.” Black’s Law Dictionary 329 (10th ed. 2014). Furthermore, the use of the word “prisoner” in both K.S.A. 19-1910(a) and K.S.A. 19-1910(b)(2)—the two provisions dealing with a county’s obligations—limits the applicability of the duty to pay. “Prisoner” means “[s]omeone who is being confined in prison” or “[s]omeone who has been apprehended by a law-enforcement officer and is in custody, regardless of whether tire person has yet been put in prison; specif., a person who is kept in prison as legal punishment or who is kept there while awaiting trial as a criminal defendant.” Black’s Law Dictionary 1388 (10th ed. 2014).
Also, the combination of “prisoner” and “committed” in K.S.A. 19-1910(a), when read in light of those words, definitions, and the phrase “prisoners held” in K.S.A. 19-1910(b)(2), inform us that a county is only liable for the payment of medical bills if the patient is a prisoner who is in jail or would be in jail but for his or her injuries. See Youngberg v. Romeo, 457 U.S. 307, 317, 324, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982) (“As a general matter, a State is under no constitutional duty to provide substantive services for those within its border,” but “[w]hen a person is institutionalized— and wholly dependent on the State”—he or she has “postcommitment interests cognizable as liberty interests under the Due Process Clause of the Fourteenth Amendment.”); Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (Eighth Amendment to the United States Constitution requires government to provide medical care to those it punishes by incarceration because “[a]n inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”).
The restrictive nature of K.S.A. 19-1910(a) and K.S.A. 19-1910(b)(2) is underscored by the broader language of subsection (b)(1). That provision requires the State to pay for medical expenses if several conditions are met, including if a “person is stopped by ... a law enforcement officer . . . who is an employee of the state and such person is injured by the officer while acting within the scope of such officer s authority.” The legislature could have used similarly broad language in K.S.A. 19-1910(a) and K.S.A. 19-1910(b)(2) when addressing situations where a county is obligated to pay for medical care. Had it done so, the Hospital Authority could have claimed that Contreras had been “stopped” by Captain Lamb. Use of this language would have been consistent with the Court of Appeals’ holding that the County’s obligation to pay arose because the officers had significantly restrained Contreras’ freedom. But the legislature did not do so.
Because the legislature obviously knew how to make the coverage of the statute broader and did not do so, it would be inappropriate for this court to expand a county’s obligation. Thus, we hold that under K.S.A. 19-1910, the County would only be obligated to pay for Contreras’ medical care if he had no resources to pay for his own care and if he was a prisoner committed to or held in the county jail, meaning he had been sentenced to jail; had been arrested and was being detained in jail while awaiting trial; had been apprehended and arrested and was to be detained in jail while awaiting trial but for his injuries; or had been otherwise committed to jail, such as in a civil commitment proceeding. Under the un-controverted facts, Contreras was not serving a jail sentence, had not been arrested, and was not otherwise committed to jail at the time of his hospitalization.
Given that the Hospital Authority has abandoned its statutoiy claim, we briefly mention that this holding would not change the result in any of the cases on which the Hospital Authority relies, even though there is broader language in at least some of those cases. In Mt. Carmel, 1 Kan. App. 2d at 379, the patient was serving a jail sentence and, even though he had escaped, “custody had been reestablished as a matter of law prior to the prisoner)]] being placed in the ambulance and transported to the hospital.” In Allen, 12 Kan. App. 2d at 684, the patient was delivered to the hospital after suffering a seizure while being “held” in protective custody at a county jail under provisions of the Alcoholism and Intoxication Treatment Act, K.S.A. 65-4001 et seq., specifically K.S.A. 1987 Supp. 65-4003(8), (23).
Both Wesley and Dodge City, dealt with an individual who had been wounded while being arrested on charges that led or would have led to the individual being committed to a county jail while awaiting trial. Wesley, 237 Kan. 807, Syl. ¶ 2 (“So long as an offender is arrested for violation of a state law and in due course is charged with a state crime and delivered to the county jail for confinement, the medical and other incidental expenses incurred as a consequence of and following his arrest, and until his transfer to such facility, are chargeable to the county.”); Dodge City, 6 Kan. App. 2d at 733 (although deputy did not say tire prisoner was under arrest, an arrest was “implied by all tire circumstances”); see Massachusetts General Hospital v. Revere, 385 Mass. 772, 777-78, 434 N.E.2d 185 (1982) (citing Dodge City for proposition that “[cjertainly at the time the police bullet entered [a suspect’s] body he was under arrest”), rev’d 463 U.S. 239 (1983).
We further note that our interpretation of K.S.A. 19-1910 is consistent with the principle stated in Mt. Carmel, 1 Kan. App. 2d at 378—“a sheriff has a duty to furnish medical attention to a prisoner in his custody who is in need thereof, at the county’s expense if the prisoner is indigent and no other source of fund is available”—if the definition of “custody” found in K.S.A. 22-2202(9) is used. As we have noted, K.S.A. 22-2202(9) defines “custody” as “the restraint of a person pursuant to an arrest or the order of a court or magistrate.” This was the interpretation applied by the district court but rejected by the Court of Appeals. We conclude the broader restraint-of-freedom test for custody used by the Court of Appeals ignores the word “prisoner,” as the word “prisoner” is used in K.S.A. 19-1910, and its implications.
We, therefore, affirm the district court’s grant of summary judgment in favor of the County on the Hospital Authority’s common-law and statutory claims.
Quantum Meruit
The Court of Appeals did not address the Hospital Authority’s quantum meruit claim because it held the Hospital Authority was entitled to relief based on Kansas caselaw regarding a county’s duty to pay. Because we have determined the Hospital Authority’s claim on that basis fails, we next consider the Hospital Authority’s claim based on quantum meruit.
As this court has explained: “Unjust enrichment/quantum meruit is an equitable doctrine. . . . The substance of an action for unjust enrichment lies in a promise implied in law that one will restore to the person entitled thereto that which in equity and good conscience belongs to that person.” Haz-Mat Response, Inc. v. Certified Waste Services Ltd., 259 Kan. 166, Syl. ¶ 5, 910 P.2d 839 (1996). To establish an unjust enrichment claim, a plaintiff must establish (1) the plaintiff conferred a benefit on the defendant; (2) the defendant appreciated and has knowledge of the benefit; and (3) the defendant accepted and retained the benefit under circumstances that make tire retention unjust. Nelson v. Nelson, 288 Kan. 570, 580, 205 P.3d 715 (2009); Haz-Mat Response, Inc., 259 Kan. 166, Syl. ¶ 6.
These elements are not satisfied in diis case given the uncon-troverted facts. The Hospital Authority’s theory was that it had performed a valuable service for the County, which was obligated to provide medical care to Contreras as a prisoner in the sheriff s custody. As we have discussed, the County did not have that obligation. Consequently, although the Hospital Authority provided a benefit to Contreras, it did not provide a benefit to the County. See Via Christi Regional Med. Center, Inc. v. Reed, 298 Kan. 503, 516-17, 314 P.3d 852 (2013) (citing cases from other jurisdictions that hold patient is unjustly enriched by receiving hospital care at taxpayer’s expense and then recovering damages from tortfeasor).
The district court correctly granted the County summary judgment on the quantum meruit claim.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Rosen, J.:
Delbert McBroom was convicted of one count of first-degree murder, one count of aggravated burglary, and one count of burglary. On appeal, McBroom argues that (1) the district court erred when it denied his change of venue motion; (2) the State presented insufficient evidence to convict him of the crimes charged; and (3) cumulative error deprived him of a fair trial. Based on the analysis below, we reject each of McBroom’s arguments and affirm his convictions.
Facts
This is a companion case to State v. Wilson, 295 Kan. 605, 289 P.3d 1082 (2012).
Scott and Carol Noel lived in rural Osborne County on West 20th Drive. Scott was a farmer and cattleman; Carol worked at a bank in Smith Center. Scott’s daily routine included doing chores in the morning and then returning home around the noon hour for lunch. On March 25, 2008, Scott left the couple’s residence sometime between 7:15 a.m. and 7:30 a.m. to do chores. Carol left for Smith Center shortly thereafter.
Elinor Fink Clark lived at a residence that was located a couple of miles northeast of the Noel residence. At approximately 11 a.m. on March 25, Clark left her residence. After spending some time at the senior center in Downs, Clark returned to her residence at 1:45 p.m. When Clark went into her kitchen, she noticed that paperwork she had placed in an envelope and left on the kitchen table was now spread out over the table. Clark walked into her bedroom and saw that it was in complete disarray—drawers had been removed from a dresser and her clothes were scattered all over the floor. After calling 911 and reporting that her house, had been ransacked, Clark went around her house and determined that jewelry, cash, German coins, and a pillowcase were missing. Law enforcement later arrived at Clark’s residence to investigate. During the investigation, a cigarette butt was found in Clark’s front yard. Notably, Clark was not a smoker.
At 3:45 p.m. that day, Carol left the bank in Smith Center and arrived home sometime between 4 p.m. and 4:15 p.m. As she drove up the lane, Carol saw that Scott’s truck was parked in his usual spot near the sidewalk to the backdoor of their house. When Carol walked into the house, she saw that chairs in the dining room were toppled over and that the tablecloth on the dining room table was pulled partly off. Carol walked into the kitchen through the dining room and saw her husband’s body lying on the kitchen floor with his hands tied behind his back. She called 911 and reported that her husband had been murdered.
Law enforcement officers arrived at the residence and saw that Scott’s body was lying face-down on the kitchen floor. A large pool of blood surrounded the body. Scott’s hands were tied behind his back with a power cord. The cord appeared to be tightly wound around his wrists. Scott had a shotgun wound to the back of his head and upper neck.
On the table in the kitchen was Scott’s 12-gauge shotgun with a spent shotgun shell inside the chamber. According to Scott’s son, Jason, Scott stored the shotgun in a cabinet near the kitchen. Jason also said that the shotgun was always kept unloaded when it was stored inside the cabinet.
Agents from the Kansas Bureau of Investigation (KBI) assisted local law enforcement with the investigation of the murder. A KBI investigator conducted a blood splatter analysis of the crime scene and determined that Scott was shot while lying in roughly the same position as he was found. A pathologist determined that the cause of death was a shotgun wound to the back of Scott’s head and neck. Based on the appearance of the entrance wound, the pathologist believed that the shotgun was in contact with the back of Scott’s head when it was discharged.
While officers were conducting their investigation of the crime scene, it appeared to them that someone had rummaged through drawers and other things inside the residence. Furniture in the dining room area had also been knocked over. Most notable, though, was the officers’ discovery of a cigarette butt lying on the floor of the Noels’ sun room. Neither Scott nor Carol smoked, and no family members or guests ever smoked inside the home.
People driving in the area of the Noel residence around the noon hour reported seeing a suspicious vehicle. Bradley Davis stated that at approximately 11:45 a.m., he was driving west on West 20th Drive towards the Noel residence when he noticed from about 100 yards away a “four-door smaller vehicle” pulling out of the Noel driveway and turning west on West 20th Drive. Davis said that the vehicle was traveling faster than normal—between 20 and 30 miles per hour—-when it pulled out the Noel driveway. Davis also thought that the vehicle looked out of the ordinary because he had never seen it before. He knew it was not a vehicle that would normally be seen leaving the Noel driveway.
Davis followed the vehicle westward on West 20th Drive until the road intersected with Highway 281. There, the vehicle turned north onto Highway 281; Davis turned south.
At McBroom’s trial, Davis had the following exchange with the prosecutor concerning the vehicle he saw:
“Q. Okay. Give us the best description that you can of that vehicle.
“A. I thought it was a General Motors-type of vehicle, I wasn’t really sure which brand, but it was land of a smaller four-door car, land of older, not very good shape at all.
“Q. What do you mean by that when you say not in very good shape?
“A. The paint was kind of faded, or oxidized, and kind of dirty, and like maybe there was a hubcap or two missing off it. It looked like the trunk lid wouldn’t totally stay shut, so it was land of basically an old junker car.
“Q. When you say it looked like the trunk lid wouldn’t completely stay shut, can you describe exactly what you mean by that?
“A. As I was following it down tire gravel road, the lid would bounce up and down just slightly as I was following it, like the lock or latch wouldn’t work.
“Q. What color, do you recall?
“A. It was kind of a bluish-gray.
“Q. Were you able to malee any observation of the license plate of the vehicle?
“A. I didn’t really pay attention to the license plate, I guess.”
With regard to who he saw inside the vehicle, Davis stated he could only see one person inside the vehicle. In describing this person, Davis stated:
“He was a male. I couldn’t really tell the height. His shoulders and head were above tire seat of the, or the back of tire front seat of the vehicle, so I couldn’t really see very much of the driver, but looked like he had some facial hair and wearing a hat, looked like a middle aged male.”
Davis described the man’s hat as a baseball hat. Later, on cross-examination, Davis confirmed the man as being “dark-skinned, un-shaved.”
At approximately 11:50 a.m., Brad Roadhouse was traveling south on Highway 281 towards Osborne when he passed the intersection of Highway 281 and West 20th Drive. As he approached and passed the intersection, he saw an older “mid-size sedan-type vehicle” slowly traveling east on West 20th Drive towards the Noel residence. He estimated that the vehicle was about an eighth of a mile east of the highway when he saw the vehicle. Roadhouse said that the vehicle did not look “roadworthy” and said that the trunk lid of the vehicle was not “very well latched” because it bounced up and down as the vehicle traveled down the road. Finally, Roadhouse described the vehicle’s color as “probably gray to light blue.”
Sometime between 11:35 a.m. and 11:40 a.m., Jeffrey Benson, a delivery driver for AmeriPride, left the town of Osborne and began traveling north on Highway 281 towards Smith Center. As he was driving on the highway, Benson was passed by an “older, four-door, bluish-gray car,” which he thought looked “pretty unsafe.” As the car passed him, he looked down and saw a person sitting in the passenger seat. Benson described this person as between 38 and 50 years old with “stringier hair” and wearing glasses that “seemed like they were bigger than what they should have been for his face.” Based on his arrival time of 12:03 p.m. in Smith Center, Benson estimated that the vehicle passed him on the highway at approximately 11:50 a.m.
In an effort to identify the man that Benson saw, Benson was later shown a photo lineup which included McBroorris picture. Benson did not pick out McBroorris picture.
Based on the burglaries occurring at the Noel and Clark residences, law enforcement agencies in western Kansas and southern Nebraska were contacted about whether they had experienced any recent burglaries occurring at rural residences. Responses were received from Ness, Lane, and Gove Counties in Kansas and Clay and Gosper Counties in Nebraska. Subsequently, the KBI asked the agencies that responded to determine whether cigarette butts were present at the crime scenes.
Law enforcement officers investigating a March 24 burglary taking place at a rural residence in Clay County, Nebraska, reexamined the crime scene on March 27 and discovered a cigarette butt in the yard. The homeowner did not smoke. The butt was collected and turned over to the KBI. A subsequent analysis confirmed that the DNA present on this cigarette butt was the same as that present on the cigarette butt recovered from the Noel residence. Furthermore, a search of a DNA database showed that it matched Kenneth Wilson’s DNA.
Based on this DNA match, law enforcement began a surveillance in mid-May 2008 of the Wilson residence in Salina. Coincidently, on May 15, 2008, McBroom and his wife, Enola, parked an RV in the Wilson backyard. Law enforcement determined that the couple was living out of the RV. Prior to this, McBroom and Enola had been living at a nearby residence. During the surveillance, law enforcement observed McBroom going in and out of the Wilson residence.
On May 23, 2008, law enforcement searched Wilson’s trash and found several documents addressed to either Wilson or McBroom. One such document was a letter addressed to Wilson from the Missouri Highway Patrol dated May 15, 2008. The letter advised Wilson that his 1987 Pontiac Bonneville had been towed from the side of a highway and was now stored at the towing company’s place of business in Mound City, Missouri.
A trooper with the Missouri Highway Patrol later confirmed that the Bonneville had been left on the side of Highway 159 in Missouri. The car was “tagged” by the highway patrol in April 2008 and eventually towed from the side of the highway in May.
A KBI agent traveled to Missouri and conducted a search of the Bonneville on June 2, resulting in the discovery of a receipt from Walmart, cigarette butts, a pay stub issued to a Lissa Robles, a lien release from die Kansas Department of Revenue issued to Robles, a photocopy of die vehicle’s title, and an insurance card identifying Wilson as the insured. The car also had a Kansas 30-day temporary tag. The vehicle was taken back to Kansas. Notably, die KBI agent who conducted the search of the vehicle stated tiiat depending on the light in which it was seen, the Bonneville appeared to be either light blue or silver in color.
Robles later confirmed that Wilson had purchased the Bonneville from her. Robles said that though she transferred the car’s title to Wilson on March 19, 2008, Wilson had possession of the car 2 to 3 days prior to that date. Robles said tiiat Wilson paid her in cash for the vehicle on March 19.
Based on the information contained on the Walmart receipt recovered from inside the Bonneville, law enforcement was able to obtain video footage showing Wilson on March 24, 2008, driving the Bonneville into the parking lot of a Walmart in Fairbury, Nebraska. The video showed Wilson walking into the Walmart and purchasing three, two-bottle packages of small propane bottles.
On June 26, 2008, pursuant to a warrant, law enforcement searched the Wilson residence as well as the McBroom RV. Inside the Wilson residence, law enforcement found: (1) items stolen from a residence in Gove County, on March 12, 2008; (2) items stolen from a residence in Beeler, on March 12; (3) items stolen from a residence in Gosper County, Nebraska, on March 14; (4) items stolen on March 24 from a residence in Clay County, Nebraska, where Wilson’s DNA was found on a cigarette butt; (5) items stolen from another Clay County, Nebraska, residence on March 24; and (6) items stolen from Clark’s residence in Osborne County on March 25. Inside the McBroom R.V, law enforcement found a Sony PlayStation and controllers that were stolen from the residence in Gove County on March 12. Subsequently, McBroom turned over a camcorder to law enforcement that was also taken from tire Gove County residence on March 12.
McBroom made several statements regarding his whereabouts between February and April 2008. On June 24,2008,2 days before law enforcement searched the RV, McBroom told KBI agents about making two trips to Missouri by himself but later said that Wilson accompanied him on these trips. McBroom explained that they traveled to West Plains, Missouri, for the purpose of looking for land suitable to grow ginseng. McBroom was also asked whether he had traveled to western Kansas to look for employment. He denied doing so.
McBroom also told the KBI agents that sometime in February or March 2008, he and Wilson got into an automobile accident in Colorado while traveling to Las Vegas. An agent checked with McBroom’s insurance company to verify this information and determined that the accident occurred on April 5, 2008, and was reported to the insurance company on April 8.
McBroom was questioned by law enforcement a second time on July 28, 2008. During this questioning, McBroom stated that he took four different trips with Wilson during the first part of 2008. Contrary to his first statement to law enforcement, McBroom stated that between late January and early February 2008, he and Wilson traveled to western Kansas to look for work on drilling rigs around the Hill City and Colby areas. With regard to the route they traveled, McBroom only said that they traveled on Interstate 70.
For the second trip, McBroom said that he and Wilson traveled to southern Missouri in Februaiy 2008. McBroom again explained that the puipose of this trip was to look for land suitable to grow ginseng. For the third trip, McBroom said that they traveled to Las Vegas to gamble sometime in March. McBroom again said that they got into a traffic accident in Colorado while traveling to Las Vegas. McBroom also said that while they were in Las Vegas, he received a phone call from Enola telling him that her father had passed away. McBroom said that they returned home after receiving the call. Finally, for the fourth trip, McBroom simply said that he and Wilson left on a Wednesday and traveled east on Interstate 70 into Missouri to an unknown location and then turned north. McBroom said that on this trip, Wilson’s car broke down, so they had to call Enola to come to Missouri and pick them up.
McBroom told law enforcement that when he and Wilson took these trips, they usually spent the night in the vehicle at public lakes or rest areas. McBroom said that they would purchase food at a store and prepare it on a camp stove.
During this questioning, McBroom was also shown the video footage of Wilson going into a Fairbury, Nebraska, Walmart on March 24, 2008. After viewing this footage, McBroom denied being with Wilson at the time or ever having been to Nebraska. McBroom was also asked about the stolen PlayStation that was found in the RV. McBroom claimed that Enola had purchased the PlayStation for him at a Game Stop in Salina. Finally, when asked, McBroom claimed he could not remember where he and Wilson were between March 24 and 25, 2008. McBroom specifically denied being in Osborne County in March 2008.
McBroom spoke with law enforcement a third time on August 15, 2008. During this interview, McBroom gave more details regarding the trip he and Wilson took sometime in January or February 2008 to western Kansas for the purpose of looking for work on oil rigs. McBroom said that on the first day of the trip, they traveled from Salina and spent the night at Wilson Lake. The next day, they traveled to the towns of Victoria, Plainville, Hill City, and Ness City to file applications with oil drilling companies. They spent the second night of their trip at a small lake, which McBroom described as being “right off of 1-70” between WaKeeney and Oakley. On the third day, McBroom said that they traveled to Colby to file applications with other oil drilling companies. That night, they again spent the night at the lake between WaKeeney and Oakley. The next day, they returned to Wilson Lake and spent the night there before returning home.
McBroom also gave more details regarding tire trip to Las Vegas that he and Wilson took. McBroom said that on the way to Las Vegas, he and Wilson got a job on an oil rig in eastern Colorado. McBroom said that they were paid $15 an hour as well as a $50 per diem. Interestingly, McBroom said that after working on the oil rig for 4 days, he and Wilson were jointly paid $4,500. When a KBI agent told McBroom that their hourly rate would not amount to $4,500 in joint pay, McBroom said that they actually received around $1,800. They then proceeded to Las Vegas where they gambled and won more money, resulting in them having a total amount of $4,500. McBroom said he used his share of tire money to purchase the RV. Similar to his previous statements, McBroom said that during this trip, they got into a car accident, but he identified tire location of the accident as Vail, Colorado. He also said that during the trip, he received a call from Enola informing him that her father had died.
During this interview, McBroom was asked whether he and Wilson took a trip during the week of March 24, 2008. McBroom said that they did but that they left Salina on March 26, which was a Wednesday.
On August 16, 2008, McBroom called the KBI agent who had interviewed him the previous day and told the agent that he had spoken to Enola and determined that he had made mistakes regarding when certain trips had taken place. McBroom said that between March 10 and 14, 2008, he and Wilson were in Missouri. McBroom said that while they were in Missouri, he had collected newspapers from West Plains, Missouri. Notably, when law enforcement searched Wilson’s trash on May 23,2008, they collected three newspapers from West Plains dated February 18,20, and 21, 2008. McBroom also said that it was during this trip on March 14 when he received a call from Enola telling him that her father had died.
McBroom also said that he and Wilson took a second trip to Missouri between March 26 and March 29, 2008. McBroom said that on March 29, Enola had to come to Missouri to pick them up because Wilson’s car broke down.
Finally, McBroom said that he and Wilson worked on the oil rig in eastern Colorado between April 1 and April 4, 2008. He also said that after checking with his insurance company, he determined that the car accident in Colorado took place on April 5, 2008.
McBroom spoke with law enforcement for a fifth time on May 20, 2009. At this interview, McBroom said that he and Wilson traveled to Missouri sometime between January and February 2008. McBroom said that after speaking with Enola, he determined that he and Wilson left for their second trip to Missouri on Tuesday, March 25, 2008. McBroom said that during this trip, he was with Wilson the entire time except for one time when they were at a lake in Missouri and Wilson went somewhere to purchase propane canisters.
Finally, at McBroom’s trial for the March 12, 2008, burglary and theft of the residence located in Gove County, McBroom testified that he and Wilson traveled to northwestern Kansas in February 2008 to look for work on drilling rigs. Between February and March 2008, McBroom said that he and Wilson traveled to Missouri. During the first week of their trip, McBroom said drat they stayed together, but during dre second week, Wilson left McBroom behind—presumably in Missouri—to go to Oklahoma. McBroom said that they returned from tiris trip on March 14, the day Enola’s father died. Wilson said that they took a second trip to Missouri on March 25 and returned either on March 29 or March 30. Despite McBroom’s testimony, he was found guilty of the March 12 burglary and theft. See State v. McBroom, No. 103,620, 2011 WL 4357802 (Kan. App. 2011) (unpublished opinion).
In January 2010, after Wilson was convicted in Osborne County of premeditated first-degree murder, aggravated burglary, burglary, and criminal possession of a firearm, see State v. Wilson, 295 Kan. 605, 606, 289 P.3d 1082 (2012), the State filed a seven-count complaint against McBroom, which was later amended in November 2010 to four counts: alternative counts of premeditated first-degree and felony murder of Scott Noel, one count of aggravated burglary involving the Scott Noel residence, and one count of burglary involving Elinor Clark’s residence. Prior to trial, the State filed a motion pursuant to K.S.A. 60-455 to present evidence of McBroom and Wilson’s involvement in the March 12, Gove County burglaiy as well as evidence of the other burglaries occurring at rural homes during the dates of March 12-14 and March 24, 2008. The district court granted the motion, finding that evidence of the other burglaries was relevant to prove identity and/or the plan used to commit the March 25 burglaries in Osborne County. The jury was given a limiting instruction regarding the other crimes evidence.
In April 2011, McBroom’s case proceeded to trial where, in addition to the above mentioned facts, the State presented the following evidence regarding the prior burglaries:
• Tracy Noel testified that her rural Gove County residence was burglarized sometime between 7 a.m. and 12:30 p.m. on March 12, 2008. Among the items taken from the residence was a pillowcase. As mentioned above, items taken from die Noel residence were later found in the Wilson residence and the McBroom RV. McBroom was convicted of burglary of the Tracy Noel residence.
• Bernice Blakeley testified that her rural residence near Beeler was burglarized sometime during the afternoon of March 12, 2008. Among the items taken from her residence were pillowcases. When Blakeley’s husband arrived home that evening, he noticed that his .270 caliber rifle was out of his closet (where he normally kept it), loaded, and sitting on top of a deep freezer. Items taken from Blakeley’s residence were later found in the Wilson residence.
• Loa Hagelgantz testified that around 10 a.m. on March 13, 2008, she returned to her rural residence north of Bazine and saw an “older gray car” with a “square-ish” look” drive around the north side of her house. Hagelgantz walked up to the car and spoke to the driver, the car’s only occupant. The driver— who Hagelgantz described as a white, middle-aged male and later identified in a photo lineup as Wilson—explained that he was looking for gas and asked how to get to the nearest town. After getting directions, the man left. As tire car was leaving, Hagelgantz looked at the license plate and could tell the car was from the “Salina area”—presumably meaning that the car had a Saline County tag. She could not, however, read the numbers on the license plate because it was covered in mud.
When Hagelgantz walked into her home, she noticed that a door she had closed prior to leaving was now open, she smelled cigarette smoke in the kitchen (neither Hagelgantz nor her husband smoked), and she saw scattered CDs and mud on the family room floor. A couple of days later, Hagel-gantz noticed that the purse she carried to work and her granddaughter s little wooden baseball bat were missing. A year later, Hagelgantz and her husband found these items in the windbreak west of their residence.
• Matthew Andrews testified that his rural residence north of Elwood, Nebraska, (in Gosper County) was burglarized sometime between the morning and early afternoon of March 14, 2008. When Andrews returned home sometime between 2 p.m. and 3 p.m., he noticed the smell of cigarettes. No one living in the Andrews home smoked. Among the items taken from the Andrews residence were a pillowcase and $7,000 to $8,000 in cash. Items taken from the residence were later found in the Wilson residence.
• Tara Pope testified that her rural residence in Clay County, Nebraska, near Saronville, was burglarized sometime during the day on March 24, 2008. Items taken in the burglary were later found in the Wilson residence. Two cigarette butts were recovered outside of the Pope residence.
• Joel Livgren testified that his rural residence in Clay County, Nebraska, near Clay Center, was burglarized sometime during the day on March 24, 2008. Among the items taken was a pillowcase. Property taken during tire burglary was later found in the Wilson residence. Three cigarette butts were recovered outside of the Livgren residence. It was later determined that one of these cigarette butts had Wilson’s DNA on it.
At trial, Sharon Wilson—Wilson’s wife and McBroom’s cousin— testified that Wilson and McBroom were “really good friends” who were always together and “did everything together.” She also said that both men were smokers. Sharon stated that in March 2008, the men were unemployed and that on March 23 or March 24, they left Salina on a trip. The men told her that they were driving to western Kansas to look for work in the oil fields. Wilson returned home from this trip on March 29 around 3 a.m.
Sharon said that in May 2008, the McBrooms parked their RV on tire property she shared with Wilson. According to Sharon, the McBrooms had complete access to their home—they ate and socialized with the Wilsons and showered inside the residence. The only thing that the McBrooms did inside their RV was sleep.
Enola McBroom testified that her husband and Wilson were best friends. Enola said that McBroom and Wilson would take trips together for the stated purpose of either looking for oil rig work or scouting out land in Missouri (Enola said that she and McBroom were planning on moving to Missouri). She said that on March 14, 2008, the men were away on a trip because she remembered calling McBroom on March 14 and telling him that he needed to come home because her father had died. Enola said that the men took off on a second trip sometime in the morning on March 25, 2008. Enola said that the men left in Wilson’s car, which she described as a “silverish-bluish colored car." Enola said that the men were gone 3 to 4 days and that she had to go to Missouri to pick them up because Wilson’s car broke down.
Enola said that around May 15, 2008, she and McBroom began living in an RV they parked on the Wilson property. Enola said that they slept in the RV but used the Wilsons’ home to cook, eat, shower, watch T.V., and socialize with the Wilsons. Enola said that once she and McBroom began living in the RV on the Wilson property, McBroom and Wilson did not take any more trips together.
Carolyn Engler testified for the defense. She lived approximately a mile away from Elinor Clark’s residence. Engler said that on March 25, a man came to her front door between 11a.m. and 12 p.m. Engler described the man as either Hispanic or possibly a dark-skinned white male. On cross-examination, Engler said that the man was 5'7" to 5'8" tall and had a medium build. She also said he was “rough” looking. Engler said that the man asked her for directions to Alton. Engler believed the man was not paying attention to her when she gave him directions. The man eventually left.
Engler described the man's vehicle as an older, four-door, “land of blue-gray Cutlass, Bonneville type car.” Engler said that she saw another individual in the car, who she described as having dark skin and having thick, dark curly hair that protruded from the bottom of a cap he was wearing. Notably, law enforcement showed Engler a photo lineup which included McBroonTs photo; she did not pick out McBroonTs photo as depicting either man she saw on March 25.
During closing arguments, the prosecutor noted that Jeffrey Benson, the delivery driver for AmeriPride, did not pick Mc-Broom’s photo out of the array he was shown. But, the prosecutor argued that Benson s description of the man he saw in the passenger seat of the car that passed him on Highway 281 (stringier hair and wearing glasses) “matches the description of the defendant.”
The juiy found McBroom guilty of first-degree murder based on the combined theories of premeditated murder and felony murder. The jury also found McBroom guilty of aggravated burglary of the Scott Noel residence and guilty of burglary of the Clark residence. The district court sentenced McBroom to a hard 20 life sentence for the murder conviction and imposed a consecutive 47-month prison sentence for the remaining convictions. McBroom filed a timely notice of appeal.
Change of Venue
For his first issue on appeal, McBroom argues that the district court erred when it denied his change of venue motion. McBroom claims that a survey of the Osborne County residents prior to trial showed that a pervasive bias against him existed in the community, preventing a fair and impartial trial from taking place in Osborne County. McBroom also claims that comments made during voir dire by nine individuals who served on his jury demonstrated the impossibility of selecting an impartial Osborne County jury.
K.S.A. 22-2616(1) provides that a change of venue motion must be granted “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” “The determination of whether to change venue is entrusted to the sound discretion of the trial court, and its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant.” State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001). “The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.” 271 Kan. at 591-92.
Applicable Facts
Prior to trial, McBroom filed a change venue of motion in which he argued that he could not obtain a fair and impartial trial in Osborne County. A hearing on the motion was conducted where die defense presented the testimony of Thomas Beisecker, a professor in the Department of Communication Studies at the University of Kansas and president of a jury consulting and research firm. Notably, Beisecker previously performed venue studies in State v. Verge, 272 Kan. 501, 34 P.3d 449 (2001), and Higgenbotham.
Beisecker conducted a survey of 163 Osborne County residents, a number he stated was sufficient to get a reliable survey of opinions in the community. When asked, 87.7 percent of those surveyed recalled reading, seeing, or hearing something about a local farmer being killed in his home. Respondents who answered that they could not recall anything about the murder were given further details about the crimes. After receiving this information, two more respondents said that they recalled the murder, bringing the percentage of respondents recalling something about the murder to 89 percent. Of those people recalling something about the murder, 77.9 percent believed McBroom was either definitely guilty or probably guilty. In total, 69.3 percent of the people surveyed felt that McBroom was probably or definitely guilty of the crimes.
For comparison purposes, Beisecker also conducted a survey of 171 residents in Harper County, a county with similar demograph ics. Of those surveyed, 22.8 percent recalled something about the murder and 33 percent of those people who recalled something about the murder believed that McBroom was either definitely guilty or probably guilty.
When asked to compare the media coverage of the Noel murder to other crimes in which he conducted surveys, Beisecker said that the quantity of tire media coverage was what he would have anticipated for Osborne County. With regard to the nature of the media coverage, he believed that the coverage “was not very inflammatory at all. It was factually based.”
Beisecker opined that based on die survey results and his training, there was a substantial amount of bias against McBroom in Osborne County.
In denying the change of venue motion, the district court stated:
“Where Dr. Beisecker anticipates—he characterizes it as a conclusion—a strong likelihood of prejudice against defendant Delbert McBroom in Osborne County, Kansas, the court believes it is premature to reach such a conclusion. McBroom has shown nothing more than a mere possibility that an opportunity for prejudice exists. That opportunity for prejudice exists in every case and is one of the primary reasons for voir dire.
“Defendant’s expert Dr. Beisecker possesses enviable credentials, but in order to blindly accept his conclusion, the court must find that Osborne County jurors either cannot or will not follow the court’s instructions. Until jurors are asked questions and the court hears responses, Dr. Beisecker’s opinions are mere conclusions; those conclusions are speculative and do not rise to a level of demonstrable reality.
“The defendant has not met his burden of proof; defendant’s request for a change of venue is denied. The court reserves the right to revisit the venue issue as the interests of justice might require.”
Prior to trial, the district court and the parties agreed that voir dire should be conducted in groups of 20 venire members with no more than 20 members in the courtroom at any one time. Voir dire would be conducted until 42 jurors were qualified and passed for cause. The parties would then each exercise 14 peremptory challenges, resulting in 12 jurors and 2 alternates. Two hundred prospective jurors were selected and mailed an extensive juiy questionnaire to fill out prior to voir dire. These questionnaires, however, were not included in the record on appeal.
Though die district court allotted 3 days for jury selection, only 1 day was needed to qualify 42 prospective jurors. Notably, counsel, who conducted voir dire, examined only 48 prospective jurors before qualifying and passing for cause 42 individuals. Of the 48 individuals examined, McBroom only moved to strike 8 for cause. The district court granted five of tiróse strikes. Of the three individuals challenged for cause by McBroom and not removed by tire district court, none were picked to serve as jury members or alternates. The trial proceeded with 12 jurors and 1 alternate due to a jury member being excused for illness prior to opening statements.
As mentioned above, McBroom points to comments made during voir dire by nine members of the jury as being indicative of community bias against him. As previously mentioned, McBroom did not move to strike any these individuals for cause during voir dire.
R.D. said that her children went to school with Scott Noel’s children and that Scott was a customer of the conservation district where she worked. R.D. stated that she did not consider Scott a friend and that there was nothing about their relationship that would malee it difficult for her to be a fair and impartial juror. Furthermore, though R.D. admitted to knowing several witnesses in the case, none were friends or family members, and her relationship with these witnesses would not cause her any concern about being fair and impartial. R.D. indicated that despite having some concern regarding the potential reaction friends and family members would have, she would render a not guilty verdict if she believed that was the proper verdict.
C.W. said that she had a purse stolen out of her vehicle 3 years ago. She said, however, that nothing about the incident would make it difficult for her to serve as a juror. She also said that she would not be concerned about what people would think if she drought the proper verdict was not guilty. C.W. indicated that if she was in McBroom’s position, she would be comfortable with someone with her mindset serving on the jury.
M.H. stated he was the victim of an armed robbery when he was 18 years old, but stated diat the incident “was a long time ago" and would not cause any problems for him serving on the jury. M.H. stated that he had read headlines regarding the Noel murder but did not actually read any articles and did not follow the case in the news. M.H. said that there was nothing he had heard about the case that would cause him any concern about being a fair and impartial juror. M.H. also indicated that if he was in McBroom’s position, he would have no concern with someone with his mindset serving on the jury.
S.B. said that she had high regard for law enforcement and was thankful for their service. But she indicated that she would have no problems or concerns with rendering a not guilty verdict if she concluded that was the proper verdict. Furthermore, she said that if she was in McBroom’s position, she would have no concerns with somebody with her mindset serving on the jury. Later during voir dire, S.B. made it known that her husband was also summoned for jury duty and that if both of them were picked to serve on the jury, it would present an extreme hardship for their farm. S.B.’s husband, however, was not selected to serve on the jury.
L.M. stated that Scott’s daughter was her eighth-grade softball coach, but nothing about that relationship caused her any concern with serving on the jury. L.M. stated that nothing she had read or heard in the news reports had caused her to make up her mind regarding the murder. She also indicated that she had no concern about community reaction if she thought the proper verdict was not guilty. Furthermore, she indicated that if she was in Mc-Broom’s position, she would want a juror with her state of mind.
R.M. indicated that there was nothing she had read or heard about the crimes that would make it difficult for her to be a fair and impartial juror. R.M. said she completed a jury questionnaire for Kenneth Wilson’s trial (McBroom’s alleged accomplice) but did not participate in voir dire. She said nothing about that experience made it difficult for her to be a fair and impartial juror.
B.P. was an Osborne County commissioner for 8 years and knew several of the witnesses. Despite this, B.P. indicated she would have no problem rendering a not guilty verdict if she concluded that was the correct verdict.
D.C. stated that he had heard very little about the case but acknowledged that everyone in the community had heard something about the case because, according to him, the “[w]ind blows eveiy day here.” D.C. indicated, however, that he had not heard any specific details about the case.
W.M. stated that he had known Scott Noel and had gone hunting with him in the past. But W.M. indicated that they were not close friends and never spent a lot of time socializing with each other. Furthermore, he stated that there was nothing about his relationship with Scott that would prevent him from being a fair and impartial juror.
Analysis
In Higgenbotham, 271 Kan. at 592, we stated:
“In determining whether the atmosphere is such that a defendant’s right to a fair trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of the juiy, both peremptoiy and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and die particular size of the area from which the venire is drawn. [Citation omitted.]”
In making his argument that the district court erred in not granting his change of venue motion, McBroom relies primarily on the survey results showing that a vast majority of the 163 Osborne County residents surveyed were aware flrat a local farmer had been killed inside his home. As noted above, 69.3 percent of the people surveyed felt that McBroom was probably or definitely guilty of the crime. However, none of the respondents who expressed a belief in McBroom’s guilt were asked whether they could set aside this preconceived belief if they were selected as jurors. As the United States Supreme Court has stated:
“It is not required . . . that die jurors be totally ignorant of the facts and issues involved. In diese days of swift, widespread and diverse methods of communication, an important case can be expected to arouse die interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly trae in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” (Emphasis added.) Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961).
Consistent with this statement from Irvin, we have yet to find that a district court abused its discretion by denying a change of venue motion—supported with survey results similar to those at issue here—when hindsight shows that there were no undue difficulties in empaneling an impartial jury. See Verge, 272 Kan. at 505-08 (finding no abuse of discretion even though 96.7 percent of respondents recalled the case and 64 percent believed defendant was either probably or definitely guilty; court stated: “In the past, we have not relied on statistics but, rather, we have focused on the difficulties encountered in impaneling a competent and unbiased jury.”); Higgenbotham, 271 Kan. at 593-94 (finding no abuse of discretion even though 95.7 percent of respondents recalled the case after being given a brief synopsis and 60.6 percent believed defendant was either probably or definitely guilty; court noted that “neither the defendant nor the State points to any problem with jury selection. That there was little trouble in picking a jury tends to support the trial court’s conclusion that no change of venue was necessary.”); State v. Jackson, 262 Kan. 119, 129-32, 936 P.2d 761 (1997) (finding no abuse of discretion even though 82 percent of the respondents recalled at least some specifics about the incident and more than 60 percent thought the defendant was probably or definitely guilty; court stated: “All the jurors were rigorously questioned during voir dire and stated they could listen to the evidence at trial and reach a verdict with impartiality. After the final panel was selected, the defendant had an opportunity to renew his change of venue but chose not to do so and passed the panel for cause. This indicates during voir dire there were few problems with obtaining and empaneling an impartial jury.”); State v. Swafford, 257 Kan. 1023, 1035-37, 897 P.2d 1027 (1995) (finding no abuse of discretion even though 57.1 percent of those surveyed felt the evidence was strong against the defendant; court stated: “The record discloses that the attorneys had few, if any, problems in questioning jury members about the effects of publicity. All but three of the challenges for cause because of pretrial publicity were granted, and the remaining three challenged venirepersons were taken off by peremptory strikes. The whole selection process lasted two days. Although jury selection was drawn out due to the district court’s precautions, it was not inordinately difficult to pass a pool of jurors for cause. No objections were made about the process following the selection.”); State v. Anthony, 257 Kan. 1003, 1013-15, 898 P.2d 1109 (1995) (companion case to Swafford, court found no abuse of discretion even though 97.5 percent of those surveyed had heard of the case and 63.8 percent of those surveyed felt die evidence was strong against the defendant; court made same observations regarding voir dire as it did in Swafford); see also State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842 (1987) (“The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into juiy service who showed die slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue.”).
Courts in other jurisdictions have also relied on die outcome of voir dire for determining whether a trial court erred in denying a defendant’s change of venue motion. See, e.g., McGehee v. State, 348 Ark. 395, 413-14, 72 S.W.3d 867 (2002) (trial of coperpetrator in same county 4 months earlier did not prejudice defendant and would not have entitled him to a change of venue; voir dire revealed a jury committed to giving defendant fair trial and following court’s instructions); Ward v. State, 810 N.E.2d 1042, 1049 (Ind. 2004) (“An abuse of discretion does not occur where voir dire reveals that the seated panel was able to set aside preconceived notions of guilt and render a verdict based solely on the evidence.”); State v. Cunningham, 105 Ohio St. 3d 197, 203, 824 N.E.2d 504 (2004) (“If the record on voir dire establishes that prospective jurors have been exposed to pretrial publicity but would nevertheless determine defendant’s guilt or innocence solely on the law and evidence presented at trial, it is not error for the trial court to empanel those jurors.”); Sheppard v. State, 357 S.C. 646, 655, 594 S.E.2d 462 (2004) (“When a trial judge bases the denial of a motion for a change of venue because of pretrial publicity upon an adequate voir dire examination of the jurors, his decision will not be disturbed absent extraordinaiy circumstances.”).
McBroom does not identify any difficulties with the jury selection. Voir dire was completed in 1 day, and counsel examined only 48 prospective jurors before qualifying and passing for cause 42 individuals. Of the 48 individuals examined, McBroom only moved to strike 8 for cause, 5 of which were stricken by the district court. Of the three individuals challenged for cause by McBroom and not removed by the district court, none were picked to serve as jury members or alternates. Further, McBroom concedes in his brief that “a successful selection of a jury weighs heavily in determining whether a denial of a change of venue motion should be upheld on appeal.”
Finally, none of the statements from the jurors identified in McBroom’s brief indicate that they had a bias against McBroom or would act unfairly or impartially in rendering a verdict. In State v. Hunter, 241 Kan. 629, 636, 740 P.2d 559 (1987), this court stated:
“When crimes occur in rural areas it is inevitable that members of the jury panel will be acquainted with trial participants or victims. In such cases we must examine the jury selection process to determine whether defendant’s rights to a fair trial have been jeopardized. As we have stated, the difficulty in selecting a fair and impartial jury is an important factor in weighing a claim of prejudice. [Citations omitted.] In this case, a jury panel was passed for cause after one and one-half days of voir dire. From a panel of 143 prospective jurors, 39 were excused for cause, 51 were dismissed by peremptory challenges, and 39 were excused from service; twelve jurors and two alternates served. There appears to have been no difficulty in selecting an impartial jury. Although five of the final twelve jurors stated they were acquainted with one or more of the victims, none admitted to a close friendship and each stated under oath that he or she would be able to remain fair and impartial. In order to find that defendant has established prejudice, we would have to assume that these jurors violated their oaths; this we cannot do.”
Here, though some of foe jurors stated that they were acquainted with the murder victim, his family, or witnesses in the case, none indicated that these acquaintances would prevent them from being fair and impartial.
We conclude that McBroom has failed to show that there existed so great a prejudice in Osborne County that prevented him from receiving a fair and impartial trial. See K.S.A. 22-2616(1). Thus, it cannot be said that the district court abused its discretion in denying McBroonTs motion for a change of venue.
Sufficiency of the Evidence
Next, McBroom contends that the State presented insufficient evidence that he committed any crime. He argues that no direct evidence was presented at his trial to show that he was in or anywhere near Osborne County on March 25, 2008, the date of the alleged crimes. He contends that in order for the jury to have found him guilty of committing the crimes charged, it would have had to improperly infer that he was in the county on March 25 and then, based on that improper inference, infer that he committed the crimes charged.
When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine 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). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. State v. McCaslin, 291 Kan. 697, Syl. ¶ 8, 245 P.3d 1030 (2011). Furthermore, we have recognized that there is no distinction between direct and circumstantial evidence in terms of probative value. State v. Evans, 275 Kan. 95, 105, 62 P.3d 220 (2003). “A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.” McCaslin, 291 Kan. 697, Syl. ¶ 9.
In making his argument, McBroom overlooks several key pieces of evidence that could have been relied on by the juiy to show that he was in Osborne County on March 25, 2008, and that he committed the crimes charged. First, McBroom told KBI agents that he and Wilson took a trip to Missouri during the week of March 23. Initially, McBroom said that they left on their trip on March 26 but later said that the departure date was March 25. McBroom said that they returned from this trip on March 29 after Enola came and picked them up in Missouri due to Wilson’s car breaking down. Notably, McBroom said that during this trip, he was with Wilson the entire time except for one instance when they were at a lake in Missouri and Wilson went somewhere to purchase propane canisters. His statement regarding the destination for their trip and the date on which they left was contradicted by Sharon Wilson’s testimony at trial. She testified that the men left Salina on March 23 or March 24 and that the purpose of the trip was to find employment in western Kansas working in the oil fields.
Admittedly, Enola testified that the men left Salina on March 25 for a trip to Missouri. But, based on (1) Wilson’s DNA being found on a cigarette butt lying in the yard of a Clay County, Nebraska, residence that was burglarized on March 24 (and property from this residence was later found in the Wilson residence); and (2) video footage showing Wilson going into a Fairbury, Nebraska, Walmart on March 24 and purchasing three, two-bottle packages of small propane bottles, it is clear that Wilson and, by logical implication, McBroom departed Salina (at the latest) sometime on the morning of March 24 and traveled to Nebraska. Thus, if Wilson was in Nebraska on March 24, then based on Sharon’s testimony and McBroom’s statements to the KBI, it can be presumed that McBroom was also in Nebraska with Wilson on March 24.
The State presented the following evidence to show that Mc-Broom was in Osborne County on March 25: (1) McBroom’s statement that he was with Wilson the entire time during their trip; (2) numerous witnesses testifying that around noon on March 25, they saw a car similar to Wilson’s car in the vicinity of the Noel residence; (3) Wilson’s DNA being found on a cigarette butt inside the Noel residence on March 25 where Scott was murdered; and (3) property from the Clark residence—burglarized on March 25—• was found inside the Wilson residence. Based on this evidence, it can be presumed that Wilson and, by logical implication, Me- Broom, left Nebraska and were in Osborne County on March 25, 2008, when all the crimes charged took place.
In addition to the evidence establishing that the Clark residence was burglarized on March 25, the State presented evidence showing that on March 25, Scott Noel was shot in the back of his head at pointblank range with his own shotgun while his hands were tied behind his back. Additionally, Scott’s body was found on the kitchen floor, and the Noel residence showed signs of being rummaged through as if someone was looking for things of value to take. All of this evidence would tend to establish that whoever killed Scott did so with premeditation or while committing or attempting to commit an aggravated burglary of the Noel residence. In other words, the killing of Scott constituted either premeditated first-degree murder or felony murder, and the entry into his home by an intruder constituted an aggravated burglary. See K.S.A. 21-3401 (first-degree murder); K.S.A. 21-3716 (aggravated burglary); State v. Gunby, 282 Kan. 39, Syl. ¶ 9, 144 P.3d 647 (2006) (“Premeditation is the process of thinking about a proposed tolling before engaging in tire homicidal conduct, but it does not have to be present before a fight, quarrel, or struggle begins.”); State v. Sanchez-Cazares, 276 Kan. 451, 458-59, 78 P.3d 55 (2003) (“While premeditation may be established by circumstantial evidence, it may not be inferred merely by tire use of a deadly weapon alone.”).
Circumstantial evidence not only placed McBroom and Wilson in Osborne County on March 25 but also identified them as the perpetrators of the crimes committed on that day.
• The dates of McBroom and Wilson’s trips—March 10-14 and March 24-29—corresponded to when burglaries occurred (1) in Gove County on March 12; (2) in Beeler on March 12; in Bazine on March 13; (3) in Gosper County, Nebraska, on March 14; (4) in Clay County, Nebraska, on March 24; and, (5) in Osborne County on March 25.
• With the exception of the March 13 burglary in Bazine and the March 25 Scott Noel murder/burglaiy, property taken in each burglary was later found in the Wilson residence. Property taken in tire March 12 Gove County burglary—in addition to being found in the Wilson residence—was also found in McBroom’s RV. McBroom was convicted of this burglary prior to trial.
• Among the property taken in the March 12 Gove County burglary was a pillowcase—presumably for the purpose of carrying away the stolen items. Pillowcases were also taken in (1) the March 12 burglary in Beeler; (2) the March 14 Gosper County, Nebraska, burglary; (3) the March 24 Livgren burglary in Clay County, Nebraska, and (4) the March 25 Clark burglary in Osborne County.
• Evidence presented at trial showed that Wilson and McBroom were smokers. Evidence of smoking was found at (1) the March 12 Beeler burglary; (2) the March 13 Bazine burglary; (3) the March 14 Gosper County, Nebraska, burglary; (4) the March 24 burglaries occurring in Clay County, Nebraska; and (5) the March 25 burglaries occurring in Osborne County.
• In the March 12 burglary in Beeler, the evidence showed that the homeowner’s .270 caliber rifle was removed from his closet, loaded, and laid on top of a deep freeze. Similarly, Scott’s 12-gauge shotgun was removed from a cabinet and loaded. But, unlike the homeowner in Beeler, Scott had the misfortune of returning home during the burglary and was shot with his own gun.
• Matthew Andrews testified that his rural residence north of Elwood, Nebraska, (in Gosper County) was burglarized sometime between the morning and early afternoon of March 14, 2008. When Andrews returned home sometime between 2 p.m. and 3 p.m., he noticed the smell of cigarettes. No one living in the Andrews home smoked. Among the items taken from the Andrews residence were a pillowcase and $7,000 to $8,000 in cash. Items taken from the home were later found in the Wilson residence.
• All of the burglaries occurred during the day at rural residences.
This evidence identifies McBroom and Wilson as the persons responsible for tire burglaries occurring prior to the March 25 Osborne County burglaries. Because the prior burglaries were com mitted in a manner similar to how the burglaries were committed in Osborne County, one could reasonably determine drat Mc-Broom and Wilson were the perpetrators of all the burglaries.
It is also significant to our consideration of the sufficiency of the evidence that the jury heard from Agent Schneider that McBroom gave six different inconsistent statements about his and Wilson’s travels around March 12-14 and March 25. Initially regarding March 12-14, at various points, McBroom said he had never looked for work in the geographic area of the state where the burglaries occurred, that he was in the general vicinity of die burglaries but not during the time of the burglaries, that he was traveling to Las Vegas during the time of the burglaries, and that he was in Missouri during the burglaries.
But other evidence indicated McBroom fabricated his stories that he and Wilson were in Las Vegas and Missouri. For instance, McBroom said on the way to Las Vegas, he and McBroom were in a car accident they reported to insurance, but law enforcement learned that accident occurred on April 5, not in March. Further, McBroom said when he was in Missouri, he collected newspapers. Unbeknownst to McBroom, however, law enforcement had already pulled his trash and did in fact find newspapers from Missouri, but they were dated late Februaiy, not mid-March.
Moreover, McBroom initially told law enforcement he could not remember his whereabouts on March 24 and 25, but he claimed he knew he was not in the county where Scott was murdered. Later, he told law enforcement he and Wilson left for Missouri the day after Scott’s murder. Later still, he said that after speaking with Enola, he recalled that they left on the day of tire murder. Finally, when confronted with video evidence that Wilson was in Nebraska on March 24, McBroom said he had never been to Nebraska.
Unquestionably, McBroom’s vastly inconsistent statements as to his whereabouts during the time periods relevant to. the charges were crucial to the jury’s weighing of the evidence. And Mc-Broom’s lack of credibility could certainly cause a reasonable jury to conclude McBroom lied to law enforcement about his and Wilson’s whereabouts during the dates at issue in order to cover up their involvement with the crimes committed in Osborne County on March 25. Accordingly, viewing the evidence in a light most favorable to the State, we conclude a rational factfinder could have found McBroom guilty of the crimes charged beyond a reasonable doubt.
Cumulative Error
Finally, McBroom asserts that even if the above issues do not rise to the level of reversible error, the cumulative effect of these errors operated to deny him a fair trial, requiring a reversal of his convictions.
Cumulative trial errors, when considered collectively, may require reversal of the defendant’s convictions when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). “Cumulative error,” however, “will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009).
Based on the analysis above, McBroom failed to raise a single issue resulting in a showing of error. Accordingly, his cumulative error argument must fail.
Affirmed.
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The opinion of the court was delivered by
Biles, J.:
This is Terry L. Bowen’s direct appeal from his convictions of two counts of rape, one count of aggravated criminal sodomy, and one count of aggravated kidnapping. He advances various claims, which we have reordered for clarity: (1) his attorney’s conflict of interest at his preliminary hearing; (2) the trial court’s admission into evidence of his prior sex crimes for propensity purposes; (3) alleged insufficient evidence as to each alternative means of aiding and abetting in one rape count; (4) the district court’s delivery of a written response to a jury question outside of Bowen’s presence; (5) cumulative trial error; and (6) an illegal sentence that ordered him not to have contact with his codefendants or the victim. The State concedes the sentencing error.
We affirm Bowen’s convictions but vacate the no-contact portion of his sentence because it exceeded the district court’s authority under K.S.A. 2009 Supp. 21-4603d(a). His remaining sentence is valid and continues in force.
Factual and Procedural Background
The charges against Bowen stem from a report made by a 14-year-old girl (M.B.), who alleged Bowen and another man, Kenneth J. Fredrick II, raped her. She first reported this about 3 weeks after it occurred, explaining she had not come forward earlier because she had been threatened and was scared. About 1 week later, M.B. identified a third individual, Lora Gay, who M.B. alleged held her down while Bowen and Fredrick took turns assaulting her.
The State charged Bowen with two counts of rape—one as a principal and one as an aider and abettor—and one count each of aggravated criminal sodomy, aggravated kidnapping, and battery. See K.S.A. 2010 Supp. 21-3502(a)(l)(A) (rape); K.S.A. 2010 Supp. 21-3506(a)(3)(A) (aggravated criminal sodomy); K.S.A. 21-3421 (aggravated kidnapping); K.S.A. 21-3412(a)(2) (batteiy); K.S.A. 21-3205(1) (aiding and abetting). Bowen’s case was consolidated with those against Gay and Fredrick on the defendants’ motions. The jury convicted Bowen of two counts of rape, aggravated criminal sodomy, and aggravated kidnapping. He was acquitted of battery.
Based on Bowen’s criminal history, which included two prior convictions for sexually violent crimes, the district court sentenced him as an aggravated habitual sex offender. See K.S.A. 2010 Supp. 21-4642. It sentenced Bowen to life imprisonment without the possibility of parole for one rape conviction and concurrent 155-month prison terms for the other three convictions. It also prohibited Bowen from having contact with M.B., Fredrick, or Gay.
Bowen timely appealed. Jurisdiction is proper under K.S.A. 2013 Supp. 22-3601(b)(3). Additional facts are described as pertinent to the issue addressed.
Ineffective Assistance of Preliminary Hearing Counsel
Bowen argues his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution was infringed because his attorney at the preliminary hearing had been the prosecutor who obtained Bowen’s prior convictions of aggravated indecent solicitation 10 years earlier. Those convictions were later introduced at this trial as propensity evidence against Bowen. He now alleges his preliminary hearing counsel labored under a conflict of interest, amounting to structural error and requiring reversal of his convictions.
Standard of Review
The Sixth Amendment guarantees in “all criminal prosecutions” that “the accused shall, enjoy the right ... to have die Assistance of Counsel for his defence.” This right to counsel includes the right to 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); State v. Gonzales, 289 Kan. 351, 357, 212 P.3d 215 (2009); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting Strickland). “The purpose of the effective assistance guarantee Is simply to ensure that criminal defen dants receive a fair trial.’ ” State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at 689).
To be meaningful the right to counsel necessitates more than a lawyer’s mere presence at a proceeding. State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013); Galaviz, 296 Kan. at 174. The right extends a duty of loyalty to the client. A defendant in a criminal trial must have “ ‘representation that is free from conflicts of interest.’ ” Boldridge v. State, 289 Kan. at 622 (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 [1981]).
An ineffective assistance of counsel claim based on a conflict of interest allegation involves mixed questions of fact and law. Boldridge, 289 Kan. at 622. We review the district court’s underlying factual findings for substantial competent evidence and its legal conclusions based on those facts de novo. Boldridge, 289 Kan. at 622; Gonzales, 289 Kan. at 358-59.
Additional Facts
Bowen’s preliminary hearing was consolidated with the other defendants’, each of whom was represented by different counsel. When the hearing began, the State advised the court it had learned Bowen’s attorney previously had prosecuted him for other crimes. The State noted Bowen was not raising this as a conflict of interest issue, but the State wanted the record to reflect there was no objection before proceeding.
Bowen’s counsel then asked Bowen to acknowledge he had “prosecuted a case of yours that sent you to prison several years ago.” Bowen agreed he understood this. Bowen’s counsel then asked, “[A]re you asking that I continue as your attorney, and waive any conflicts?” Bowen responded affirmatively. Those responses prompted the court to inquire directly whether Bowen waived any conflict that may exist or had existed. Bowen again replied, “I have no problem.” The court declared itself satisfied that Bowen waived any conflict and proceeded with the preliminary hearing.
The State called M.B. and one other witness. Bowen’s attorney cross-examined M.B. on various subjects, including her prior living arrangements; the date on which she alleged the crime occurred; her memory about the details of other events occurring during her time with Bowen, Gay, and Fredrick; whether M.B. had worked for Bowen and her motivation for accepting his offer of work; and the timing and circumstances of her disclosure of the crimes to her family. Bowen’s attorney did not cross-examine the other witness.
After the close of evidence, the State argued it had established probable cause for each felony count charged. Bowen’s attorney initially declined to make a closing statement; but after the other defendants’ attorneys spoke, Bowen’s attorney said:
“I think the only thing that the Court really needs to look at very hard right now with regard to Mr. Bowen is that, I believe [M.B.] was asked at least ten times how far it was between the date of the sex and the time that she told. And the fact is, she said it was two or three weeks before the 4th of July that it happened and the State themselves are saying it’s within the week prior.”
The court found probable cause existed as to each felony count and bound the defendants over for trial.
Just over 2 months after the preliminary hearing, the State filed two motions. One sought admission of prior crimes evidence— including Bowen’s guilty pleas to two counts of aggravated indecent solicitation of an 11-year-old child from 10 years earlier. Those were the cases in which Bowen’s preliminaiy hearing counsel was prosecutor. The other motion argued that as a result of the State’s desire to admit the prior crimes evidence, Bowen’s preliminaiy hearing counsel now had a conflict of interest requiring appointment of new counsel. There was no hearing on the motion for appointment of conflict-free counsel because Bowen’s preliminary hearing attorney obtained leave to withdraw.
Bowen’s new attorney moved for a second preliminaiy hearing, alleging a conflict of interest had existed with the previous attorney that precluded effective representation, that the waiver colloquy at the preliminaiy hearing was insufficient, and that a separate lawyer should have been appointed to advise Bowen whether to waive the conflict. Notably, there were no specific allegations detailing how the alleged conflict impacted the adequacy of the first attorney’s performance at the preliminary hearing.
The State opposed the motion, arguing the court’s inquiiy had been adequate. It also countered that no conflict existed at the time of the preliminaiy hearing because the State had not yet indicated its intent to introduce the prior crimes evidence.
The district court denied the request for a new preliminary hearing. It ruled the colloquy with Bowen waived any conflict. It also found in the alternative that there was no conflict at the preliminary hearing because the State had not yet raised the prior crimes evidence as an issue in the case.
After he was convicted, Bowen moved for a new trial based in part on a claim that preliminary hearing counsel did not do a thorough job. He attributed this alleged deficiency to the conflict of interest. This argument essentially repeated the earlier motion for a second preliminary hearing and did not provide specific examples how the alleged conflict resulted in counsel3s deficient performance or otherwise adversely affected Bowen’s representation. The court denied the motion, referring back to its pretrial findings.
Discussion
Bowen argues his conflict waiver at the preliminary hearing was insufficient because the court did not follow certain procedures applicable to conflict waivers stated in the Kansas Rules of Professional Conduct (KRPC). Specifically, he points to KRPC 1.7(b)(4) (2013 Kan. Ct. R. Annot. 517) (notwithstanding a concurrent conflict of interest, lawyer may represent client if client gives informed consent, confirmed in writing); KRPC 1.9(a) (2013 Kan. Ct. R. Annot. 536) (certain circumstances dictating when former client must give informed consent, confirmed in writing, in order to represent another client whose interests are materially adverse to former client’s interests); and KRPC 1.11(a) (2013 Kan. Ct. R. Annot. 543) (consent from government entity for former attorney to represent private client with matter in which lawyer participated personally and substantially as a public officer or employee).
But these are ethical standards of practice applicable to attorneys. They do not establish what a court must do to satisfy its independent duty to appropriately inquire into a potential conflict of interest. See State v. Sharkey, 299 Kan. 87, 99, 322 P.3d 325 (2014) (duly to inquire further when defendant articulates dissatisfaction in continuing with current counsel); State v. Carter, 284 Kan. 312, 322-23, 160 P.3d 457 (2007) (same); State v. Vann, 280 Kan. 782, 789-90, 127 P.3d 307 (2006) (same); State v. Taylor, 266 Kan. 967, 974-75, 975 P.2d 1196 (1999) (same).
Our caselaw is clear that a conflict of interest under the Kansas Rules of Professional Conduct is not dispositive as to whether a criminal defendant suffered a denial of the Sixth Amendment guarantee of assistance of counsel. See State v. Gleason, 277 Kan. 624, 652, 88 P.3d 218 (2004); see also Mickens v. Taylor, 535 U.S. 162, 176, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); see also Galaviz, 296 Kan. at 184-85 (quoting Mickens); cf. Cheatham, 296 Kan. at 433 (distinguishing between standards of attorney conduct compelled by the Sixth Amendment and those set out in ABA Guidelines for Appointment and Performance of Defense Counsel in Death Penalty Cases).
We have held repeatedly that a district court abuses its discretion when it fails to inquire into a potential conflict that is made known to it. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013); Vann, 280 Kan. at 789; Taylor, 266 Kan. 967, Syl. ¶ 3. But that circumstance is not presented in this case because after the State informed the district court that Bowen’s attorney previously prosecuted him, Bowen waived any conflict arising from that prior relationship. And when the district court made specific inquiry directly with Bowen on the record, Bowen repeated that he had “no problem” with his counsel or continuing with the preliminary hearing.
Bowen’s argument relies exclusively on a claim of structural error that he asserts requires automatic reversal. But that contention fails as a matter of law. We have held that under Mickens, automatic reversal, i.e., structural error based on a conflict between client and counsel, is appropriate only when tire circumstances present: (1) multiple concurrent representations; (2) a timely objection, meaning an objection before or during the proceeding; and (3) a failure of the district court to inquire and determine there is no conflict. Galaviz, 296 Kan. at 183. Bowen’s case does not have these characteristics, so a structural error analysis does not apply.
Instead, the circumstances present a conflict based on preliminary hearing counsel’s representation of interests adverse to Bowen in a prior matter, i.e., a successive representation. We have described successive representations as a subcategory of situations we have labeled “the Mickens reservation” in which a conflict is “ "rooted 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). And while it remains unsettled whether this successive representation subcategory is to be viewed under the deficient performance test from Strickland, or' the adverse effect test from Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980), it is clear we do not apply a structural error analysis based solely on the existence of a successive conflict. Cheatham, 296 Kan. at 447-48 (adverse effect analysis applied when State failed to argue more onerous Strickland analysis applied); Galaviz, 296 Kan. at 193 (same).
As we have explained previously, the United States Supreme Court answered in Mickens what a defendant must show in order to demonstrate a Sixth Amendment violation when the trial court fails to inquire into a potential conflict of interest it knew about or reasonably should have known about. Galaviz, 296 Kan. at 180. And we have noted that when it is claimed the defendant’s attorney represented conflicting interests, the showing required is more ""nuanced” than those involving deficient performance or a complete denial of counsel. Galaviz, 296 Kan. at 181. Bowen fails to appreciate this nuance. We hold Bowen’s conflict of interest claim is without merit in the form in which he presents it to this court, i.e., that his preliminary hearing counsel’s conflict, if any, resulted in structural error.
Admission of Prior Sex Crimes Evidence
Bowen next argues the district court erred by allowing die State to introduce evidence that he had previously been convicted of sexual battery involving a 12-year-old victim and of two counts of aggravated indecent solicitation of a child involving an 11-year-old victim. This evidence was offered expressly to demonstrate his pro pensity to commit the acts alleged by M.B. See K.S.A. 2013 Supp. 60-455(d).
Bowen advances three arguments: (1) K.S.A. 2013 Supp. 60-455(d) is subject to subsection (a), which bars propensity evidence; (2) the evidence was not relevant and its probative value was outweighed by its potential for causing undue prejudice; and (3) the evidence was inadmissible under K.S.A. 60-447.
Standard of Review
Appellate review of a trial court’s decision to admit evidence is a two-step process. First, the appellate court determines whether the evidence is relevant. State v. Phillips, 295 Kan. 929, 947, 287 P.3d 245 (2012). Evidence is relevant if it has a “tendency in reason to prove any material fact.” K.S.A. 60-401(b). “Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish.” Phillips, 295 Kan. 229, Syl. ¶ 7. Relevant evidence is both: (1) material, i.e. the fact has a legitimate and effective bearing on the decision of the case and is in dispute; and (2) probative, i.e. has “ ‘any tendency in reason to prove’ ” the fact. State v. Boleyn, 297 Kan. 610, 622, 303 P.3d 680 (2013). Materiality is reviewed de novo, while probativity is reviewed for abuse of discretion. 297 Kan. at 622.
If the evidence is relevant, the court next applies the statutory provisions governing admission and exclusion of evidence. Phillips, 295 Kan. at 947. “These rules are applied either as a matter of law or in the exercise of the district court’s discretion, depending on the rule in question.” State v. Hughes, 286 Kan. 1010, 1020, 191 P.3d 268 (2008). Whether the probative value of otherwise relevant evidence outweighs its potential for undue prejudice is reviewed for abuse of discretion. See Phillips, 295 Kan. at 947; State v. Wilson, 295 Kan. 605, 621, 289 P.3d 1082 (2012).
A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the 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, 318 P.3d 140 (2014). But “[w]hen the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, we review the decision de novo.” State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
Discussion
Bowen’s claim that K.S.A. 2013 Supp. 60-455(d) is subject to the limitation on admission of propensity evidence in subsection (a) has been expressly rejected. See State v. Remmert, 298 Kan. 621, 627-28, 316 P.3d 154 (2014) (citing State v, Prine, 297 Kan. 460, 303 P.3d 662 [2013]); see also State v. Spear, 297 Kan. 780, 789, 304 P.3d 1246 (2013) (same); Prine, 297 Kan. at 475-76. Consequently, admitting this prior crimes evidence at Bowen’s trial would be error only if it was not relevant or if some other exclusionary rule barred its use.
In sex offense cases, propensity evidence is material, i.e., has a “legitimate and effective bearing” on defendants’ guilt. See Remmert, 298 Kan. at 627-28 (prior diversion for sex crime against young girl relevant to guilt in prosecution for sex crime against young boy); see also Spear, 297 Kan. at 789 (victim’s prior molestation allegations against defendant would have been admissible propensity evidence in later prosecution for aggravated indecent liberties involving same victim); Prine, 297 Kan. at 480 (defendant’s prior sexual abuse of daughter and younger sister admissible propensity evidence in prosecution for sexual abuse against friend’s daughter). And the evidence here was probative of Bowen’s propensity to commit the acts alleged by M.B. because the prior crimes were sufficiently similar to M.B.’s allegations.
Bowen’s prior crimes were sexual battery against a 12-year-old girl—then defined as unlawful, nonconsensual, intentional touching of a person with intent to satisfy sexual desires; and aggravated indecent solicitation of an 11-year-old girl—then defined as soliciting a child under 14 to commit an unlawful sexual act. See K.S.A. 21-3511 (defining aggravated indecent solicitation' of a child); K.S.A. 21-3517 (defining sexual battery). These crimes each involved sexual acts or preparatory actions toward sexual acts with young girls, and one involved nonconsensual sexual contact. Evi dence of these crimes made more probable the truth of the State’s proposition that Bowen had a disposition to sexually abuse female victims approximately the same age as M.B. See Remmert, 298 Kan. 626-28 (defendant’s prior abuse of young stepdaughter relevant in prosecution for abuse of similarly aged grandson of defendant’s girlfriend).
We likewise reject Bowen’s claim that this evidence’s prejudicial effect outweighed its probative value because no material facts were in dispute. His argument is incorrectly premised on an assumption that K.S.A. 2010 Supp. 60-455(d) did not permit propensity evidence. We hold the district court did not abuse its discretion because propensity evidence is admissible and the district court addressed the appropriate considerations when balancing the probative value and prejudicial effect of the evidence.
This court has cited with approval various factors for balancing the probative value of propensity evidence in sexual abuse cases against its potential for prejudice:
‘T) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing tire probative dangers, a court considers: 1) how likely it is such evidence will contribute to an improperly-based juiy verdict; 2) the extent to which such evidence will distract the jury from tire central issues of the trial; and 3) how time consuming it will be to prove the prior conduct. [Citations omitted].” United States v. Benally, 500 F.3d 1085, 1090-91 (10th Cir. 2007) (cited with approval in Prine, 297 Kan. at 478).
See Remmert, 298 Kan. at 628.
In Bowen’s case, the district court carefully controlled how this evidence was presented. It decided it would allow tire State to admit only a journal entry of conviction; considered the similarity of the offenses; and excluded witness and victim testimony, which it considered more prejudicial. Moreover, presentation of this evidence was not time consuming, as it was admitted at trial as a written stipulation given to the jury, rather than through testimony, together with an instruction cautioning the jury that a guilty verdict could not be based on the .prior crime evidence alone.
The circumstances surrounding the district court’s decision to admit this evidence and its presentation were consistent with our previous caselaw. We hold the district court did not abuse its discretion in concluding the evidence’s probative value outweighed the potential for undue prejudice. See Remmert, 298 Kan. at 628.
Finally, we reject Bowen’s argument that the district court erred in admitting this prior crimes evidence based on K.S.A. 60-447, which governs evidence of an accused’s character. See K.S.A. 60-447 (trait of accused’s character to prove guilt admissible only after defendant introduces evidence of good character). The State argues Bowen failed to assert K.S.A. 60-447 as grounds for excluding the evidence below, so it is not preserved. The State is correct.
A party seeking appellate review of erroneously admitted evidence must lodge a contemporaneous objection “so stated as to make clear the specific ground of objection.” K.S.A. 60-404; see State v. Johnson, 266 Kan. 322, 335, 970 P.2d 990 (1998) (“ ‘[T]he specific grounds for an objection must be given at trial to preserve an issue for appeal.’ ”) Failure to raise a K.S.A. 60-447 objection at trial prevents appellate review. State v. Richmond, 289 Kan. 419, 428-30, 212 P.3d 165 (2009) (declining first-time appellate review of K.S.A. 60-447 claim when trial counsel failed to assert statute as grounds for objection). Bowen’s K.S.A. 60-447 argument, therefore, is not preserved for appeal.
Alternative Means of Aiding and Abetting
In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court adopted what is referred to as the “alternative means rule,” or its corollaiy “super-sufficiency requirement,” stating:
“ ‘[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.]’ ”
The district court instructed the jury that it could convict Bowen for the second rape count only if it found that he “intentionally aided, abetted, advised, counseled, or procured Kenneth J. Fredrick II in the commission of rape.” See K.S.A. 21-3205(1). Based on Timley, Bowen argues for the first time on appeal that the dis trict court instructed tire jury that rape could be committed under the aiding and abetting statute in at least five different ways or alternative means.
The State contends no alternative means problem arises because aiding and abetting is not itself an alternative means of committing the underlying offense, i.e., rape. In the alternative, the State argues the aiding and abetting statute does not set out five alternative means of aiding and abetting. We agree with the State’s first argument that aiding and abetting is not an alternative means of committing rape, rendering it unnecessary to address the second argument.
Standard of Review
Whether a statute creates alternative means of committing a crime is a matter of statutory interpretation and construction and is a question of law subject to de novo review on appeal. State v. Foster, 298 Kan. 348, 352-53, 312 P.3d 364 (2013).
Discussion
Bowen admits he raises this issue for the time on appeal but argues it may be reviewed anyway because his fundamental right to a unanimous jury verdict is implicated. The State does not dispute this point. It addresses the merits without arguing whether this issue is preserved. We will address the merits of the issue because it implicates whether there is sufficient evidence to support the conviction. State v. Cheffen, 297 Kan. 689, 699-700, 303 P.3d 1261 (2013).
In State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), we recently held the aiding and abetting statute did not establish alternative means in the context of its application in conjunction with a first-degree murder charge under K.S.A. 21-3401(a). In Betancourt, 2014 WL 1407666, at *6, we held:
“The more accurate approach is to consider the language of the aiding and abetting statute to be an assignment of criminal responsibility, rather than the creation of a distinct element of a crime. K.S.A. 21-3205 makes a person equally liable for crimes of others if there is a concerted effort to carry out the crime. It does not, for instance, establish two different crimes, one consisting of shooting a victim and the other consisting of handing a gun to someone for the purpose of shooting a victim. Similarly, it does not establish two different crimes for committing a murder, one committed by firing a gun and the other by driving the getaway car. Instead, the legislative intent, as expressed in the language of the aiding and abetting statute, is to make each individual who engages in a concerted action to carry out a crime equally culpable. [Citation omitted.]”.
Since aiding and abetting is not an alternative means of committing the underlying offense, Bowen’s claim that the various ways of aiding and abetting set out in the statute are themselves alternative means of aiding and abetting necessarily must fail. We conclude the jury was properly instructed and sufficient evidence supported the aiding-and-abetting rape conviction.
Written Response to Jury Question
Bowen next argues the district court violated his statutory and constitutional rights by answering a jury inquiry during deliberations with a written note delivered by court personnel instead of the trial judge replying in open court. The State concedes error may have occurred but argues any error was harmless. See State v. King, 297 Kan. 955, Syl. ¶ 3, 305 P.3d 641 (2013) (jury question must be answered in open court in the defendant’s presence). The applicable statute is K.S.A. 22-3420(3), which provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to tire prosecuting attorney.” (Emphasis added.)
Additional Facts
During deliberations, the jury requested clarification for the' word “confinement” as it related to the aggravated kidnapping charge set out in the jury instructions. The district court convened counsel and then on the record, in the presence of the defendants, discussed how to respond. The State proposed explaining that “talc-ing or confinement. . . requires no particular distance or removal, nor any particular time or place of confinement.” Bowen objected, arguing the term “confinement” spoke for itself. The other defendants joined that objection.
The district court agreed with the State and sent a written response to the jury with that explanation. The note was delivered to the jury room by court personnel; it was not read to the jury in open court with the defendants present. No defendant objected to this manner of delivery at the time. The district court recessed, and the next activity on the record was the court announcing the jury had reached a verdict.
Standard of Review
Constitutional claims are questions of law subject to de novo review. State v. Engelhardt, 280 Kan. 113, 138, 119 P.3d 1148 (2005).
Discussion
All agree the trial court’s procedure did not conform to K.S.A. 22-3420(3). And from this, Bowen attempts to extract three infringements to his constitutional rights: (1) violation of his right to be present; (2) violation of the right to a public trial; and (3) violation of his right to an impartial judge. The State initially raises preservation issues, which have merit as to some of these claims, so we consider those first.
PreseroationfWaiver/Abandonment
Constitutional issues generally cannot be raised for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (acknowledging the general rule). The State argues this issue was abandoned because Bowen did not object to the procedure used by the district court to respond to the jury inquiry prior to appeal. But there are three recognized exceptions: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3)- the district court is right for the wrong reason. State v. McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012).
The State asserts first that Bowen did not argue in his brief the existence of any exceptions, so Bowen’s brief failed to comply with Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39-40) (The party briefing an issue on appeal must make “a reference to the specific location in the record on appeal where the issue was raised and ruled upon. If not raised below, explain why the issue is properly before the court.”)- The State reasons that even if there were an exception that might permit Bowen to raise this error for the first time on appeal, Bowen was obligated to affirmatively argue application of such exception and failing to do so waived it.
This is an arguable point, and we fail to understand why Bowen would not respond to the State’s preservation arguments through a reply brief. See State v. Williams, 298 Kan. 1075, Syl. ¶ 4, 319 P.3d 528 (2014) (agreeing appellant failed to comply with Rule 6.02[a][5] and warning future litigants to explain why an issue is properly before the court). But Bowen s brief was filed before Williams, so we determine not to enforce its warning at this time. That, however, does not resolve the other waiver/abandonment concerns argued by the State and we must consider each of Bowen’s arguments separately.
As to Bowen’s claim that his right to be present was compromised, we will consider its merits because the statute sets out the procedure required, the procedure admittedly was not followed, and we have previously recognized this error implicates a defendant’s constitutional right to be present. See King, 297 Kan. at 968 (failure to comply with K.S.A. 22-3420[3] violates constitutional right to be present); but see Cheffen, 297 Kan. at 697-99 (declining to review for first time on appeal a juiy unanimity claim flowing from error in jury polling procedure because jury unanimity is statutory, not constitutional right).
As to Bowen’s alternative arguments, i.e., that tire jury-question procedure violated his rights to public trial and to an impartial judge, we hold they are waived or abandoned. Neither is adequately briefed, and Bowen fails to sufficiently address how the statutory violation implicated a deprivation of his constitutional right to a public trial or to an impartial judge.'
When a litigant fails to adequately brief an issue it is deemed abandoned. Williams, 298 Kan. at 1083; see also State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012) (issue abandoned for failure to adequately brief it); State v. Torres. 280 Kan. 309, 331, 121 P.3d 429 (2005) (Simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue; when appellant fails to brief an issue, that issue is waived or abandoned.); and Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) (appellant’s brief must include “tire arguments and authorities relied on”).
Specifically, in advancing his public trial argument, Bowen asserts only that: “By conducting diese matters in the jury room, a place where non-juror members of the public may not go, there was no opportunity for the public to observe this critical stage of the trial.” He dien claims this was “a clear violation of [his] fundamental constitutional right to a public trial, constituting structural error and requiring automatic reversal of [his] convictions.” Bowen advances these conclusions witiiout citation to authority.
But some courts have addressed similar errors with mixed results. Compare State v. Swanson, 112 Hawaii 343, 353-54, 145 P.3d 886, 896-97 (Ct. App. 2006) (determining that right to public trial was not violated when trial judge responded to jury questions after hours and public could not be present), State v. Sublett, 176 Wash. 2d 58, 70-78, 292 P.3d 715 (2012) (determining right to public trial not implicated when district court personally responded to a jury question inside the juiy room), with Commonwealth v. Patry, 48 Mass. App. Ct. 470, 473-76, 722 N.E.2d 979 (2000) (holding right to a public trial was violated when judge entered jury room to issue a supplemental instruction). Bowen does not discuss this caselaw—■ or any other, for that matter—and does not give diis court the benefit of any analysis, which is particularly suspect given Iris claim that he alleges this constitutional infraction is structural error.
Similarly, Bowen abandons his impartial judge argument. His point seems to be that the district judge needed to be present to watch over delivery of its written response, and he advances no claim that tire presiding judge showed actual or potential bias. He again fails to cite any authority for his conclusion that the statutory violation implicated this particular constitutional right. And the authority he does cite does not concern the right to an impartial judge, but rather a defendant’s right to be present. See State v. Brown, 362 N.J. Super. 180, 827 A.2d 346 (2003).
We hold Bowen’s public trial and impartial judge arguments are not properly raised, so we will not consider them. The remaining question is whether reversal is required because the district court’s procedure violated Bowen’s right to be present. We consider that next.
Right to Be Present
A violation of the procedure for answering jury questions set out in K.S.A. 22-3420(3) constitutes both a violation of a defendant’s statutory and constitutional right to be present under K.S.A. 22-3405(1) and the Sixth Amendment to the United States Constitution. See King, 297 Kan. at 968 (citing State v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 [2013]). Bowen argues this constitutes structural error and reversal of his convictions is required.
But this court has held that a constitutional harmless error analysis applies under tírese circumstances. See King, 297 Kan. at 968-69 (federal constitutional harmless error standard applicable to violation of K.S.A. 22-3420[3], citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 [1967]). Using this standard, reversal is not appropriate if the State, as tire party benefitting from the error, can demonstrate “ ‘beyond a reasonable doubt that the error . . . did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility the error contributed to the verdict.’ ” 297 Kan. at 968 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011]).
This court has also held that it will consider four factors when determining whether a district judge’s communication with the jury outside the defendant’s presence is constitutional harmless error: (1) the strength of the prosecution’s case; (2) whedier the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error. Herbel, 296 Kan. at 1111 (citing State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 [1998]).
The State argues convincingly that there can be no harm, noting the dispute is really over the manner of delivering tire response— not its substantive content. And Bowen does not claim the response itself was incorrect or otherwise prejudicial. Instead, Bowen speculates that having a bailiff deliver a note to the jury is a procedure susceptible to mischief, although there is nothing in the record suggesting any problem or harm.
We discern nothing from the Herbel factors to justify reversal. The State’s evidence against Bowen was substantial, including tire victim’s testimony, physical evidence of sexual assault, propensity evidence, and inaccurate, contradictory pretrial statements by both codefendants. As to the second factor, no objection was made. As to the third, the subject matter of the communication was significant; but there is no suggestion that the content—which Bowen knew before the communication—was incorrect. And the manner of the note’s delivery has raised no tangible suspicion. We note Supreme Court Rule 171 (2013 Kan. Ct. R. Annot. 272) requires tiróse acting as court bailiffs to subscribe to an oath that, among other things, prohibits communicating with a jury unless ordered to do so by a court.
As to the fourth factor, both Bowen and his counsel were aware of the communication but chose not to pursue any posttrial remedies. This omission deprived the district court and this court of the opportunity to assess whether any harm actually occurred. It also prevented the district court from considering the availability and adequacy of any potential remedy to mitigate any constitutional harm that might have occurred. See Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (“The prejudicial effect of [a judge’s failure to disclose an ex parte communication with a juror] can normally be determined by a posttrial hearing.”).
After reviewing these factors, we hold there is no reasonable possibility the district court’s failure to deliver the response in Bowen’s physical presence contributed to the verdict.
Cumulative Error
Bowen next argues cumulative error deprived him of a fair trial. But the only trial error was the district court’s procedure in re sponding to the juiy question. Therefore, cumulative error analysis is not applicable. Foster, 290 Kan. at 726 (“A single error does not constitute cumulative error.”).
No-Contact Order
Bowen finally argues the district court imposed an illegal sentence when it imposed a no-contact order as a condition of Bowen’s lifetime postrelease supervision sentence. The State concedes the district court erred.
“An illegal sentence is one imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served.” State v. Plotner, 290 Kan. 774, 781, 235 P.3d 417 (2010). Both parties cite Plotner.
In Plotner, the court held a sentence of imprisonment and a no-contact order, which is a probation condition, is an inappropriate combination of dispositions that exceeds a sentencing court’s authority under K.S.A. 21-4603d(a). The combination constitutes an illegal sentence. 290 Kan. at 782 (citing State v. Post, 279 Kan. 664, 112 P.3d 116 [2005]). The appropriate remedy is to vacate the no-contact order but leave the remainder of the sentence intact. See 290 Kan. at 782.
Because the no-contact order was illegal, we must vacate that portion of Bowen’s sentence; the remaining portions of his sentence are valid and remain in force.
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The opinion of the court was delivered by
MORITZ, J.:
After a jury convicted Johnathan McCune of two counts of rape of a child under 14, the district court sentenced him in accordance with Jessica’s Law, K.S.A. 21-4643, to two consec utive life sentences with no possibility of parole for 1,098 months. McCune appeals, alleging the district court erroneously admitted evidence, placed an unconstitutional condition on his defense, and abused its discretion by refusing to order a psychiatric evaluation of the complaining witness. He further asserts his sentence is void because K.S.A. 21-4643 is unconstitutionally vague. McCune also submitted a pro se brief asserting the prosecutor committed misconduct in his closing argument, the district court should have struck a detective’s testimony that he “believed” the victim, and the district court erroneously imposed lifetime postrelease supervision.
Finding no trial errors, we affirm McCune’s convictions. We vacate the district court’s imposition of lifetime postrelease supervision but affirm the remainder of McCune’s sentence.
Factual and Procedural Background
In December 2007, 13-year-old A.R. reported to her mother, Latricia, that her 23-year-old stepfather Johnathan McCune “touched [her] inappropriately.” A.R. later confided McCune vaginally raped her twice while the family lived in Lenexa and physically and sexually abused her for several years, predominately while the family lived in Missouri.
The State charged McCune with two counts of rape of a child under 14. See K.S.A. 21-3502(a)(2).
Pretrial motions
State’s motion to admit K.S.A. 60-455 evidence
Before trial, the State filed a motion seeking to admit evidence under K.S.A. 60-455 that McCune raped, physically abused, and threatened A.R. while the family lived in Missouri and that Mc-Cune pled guilty to two charges arising from this abuse, statutory rape and child abuse, in Johnson County, Missouri. The State also sought to admit evidence McCune physically abused A.R.’s mother and older brother, A.C. The State alleged this evidence was relevant to establish a relationship or continuing course of conduct between the parties or to corroborate the complaining witness’ tes timony. At a later hearing on the motion, the State further asserted the evidence also was probative of identity and plan.
McCune argued evidence of his prior misconduct could not be admitted to prove identity because that fact was not at issue, nor could it be admitted to prove plan because there was no direct relationship between McCune’s misconduct in Missouri and the Kansas charges.
Although it found the evidence of McCune’s prior convictions more prejudicial than probative, the district court ultimately found the remaining evidence admissible. The district court rejected the State’s assertion that the evidence was relevant to prove identity but admitted the evidence for its bearing on A.R. and McCune’s relationship and A.R.’s reason for delaying reporting tire abuse, McCune’s plan, and McCune’s ongoing course of conduct.
Defense motion for a 'psychiatric evaluation of A. R.
Prior to trial, McCune moved for a psychiatric evaluation of A.R. pursuant to State v. Gregg, 226 Kan. 481, Syl. ¶ 3, 602 P.2d 85 (1979). In support of the motion, McCune alleged: (1) The Kansas Department of Social and Rehabilitation Services (SRS) had previously investigated an accusation by A.R. that her grandmother’s boyfriend sexually abused her, but no charges were filed; (2) no evidence corroborated A.R.’s allegations against McCune; (3) a lengthy time period occurred between the alleged abuse and A.R.’s disclosure; and (4) the motion was not a fishing expedition.
The State urged the district court to deny McCune’s motion, pointing out that McCune’s guilty plea corroborated A.R.’s allegations and that A.R.’s allegations against her grandmother’s boyfriend were never proven false, just never substantiated. The State also disputed that A.R.’s delay in reporting McCune’s abuse bore on her veracity.
The district court denied McCune’s motion, finding no evidence that A.R. had a mental instability or that she could not understand what it meant to tell the truth. Further, the district court found no evidence that A.R. previously falsely reported similar allegations.
The State’s case-in-chief
Testimony from A.R. and Latricia
A.R. met McCune in 2004 when her older sister Kaylee invited him to Thanksgiving dinner. At some point McCune and A.R.’s mother, Latricia—who was “quite a bit” older than McCune— became romantically involved, and the couple married in February 2005 when A.R. was 9 years old. McCune, A.R., Latricia, and A.R.’s then 12-year-old brother (A.C.), lived in Warrensburg, Missouri.
After Latricia and McCune were married, McCune went from being a “nice part of the family” to treating A.R., A.C., and Latricia like “servants,” spanking A.R. with his belt when she did not follow his directives and regularly beating Latricia.
In May 2005, A.R. attempted to intervene as McCune beat La-tricia. But McCune hit A.R. in the head with his fist, and a friend of McCune’s, who was in the home at the time, took A.R. to another room in the house. A.R. could still hear furniture being broken and Latricia screaming and crying; A.R. tried to get out of the house through the kitchen, but McCune thwarted her effort. A.R. then opened her bedroom window, climbed out, and ran through a pasture and across a creek to a neighbor’s house. The neighbor called police, who arrested McCune.
About 1 month later, McCune again began living with the family. Approximately a week after McCune moved back in, he approached A.R. at a time when her mother and brother were not at home. He grabbed her by the hair as she watched television, dragged her to her bedroom, threw her on her bed, and began to undo his pants. A.R. escaped briefly, but McCune caught her and vaginally raped her with his penis. As he did so, McCune told A.R. she would “pay for what [she] did.” A.R. assumed McCune meant he was retaliating against her for calling the police.
A.R. testified the intercourse lasted 5 to 10 minutes and afterward there was “white stuff all over” and blood running down her legs. McCune put A.R. in the bathtub and told her to wash up. When Latricia returned home, A.R. did not tell her about Mc-Cune’s actions because McCune threatened to Mil A.R. and her brother if she did.
A.R. further testified McCune raped her “maybe [five] times” during the year the family lived in Warrensburg and that during those incidents McCune penetrated her vagina with his penis and sometimes forced A.R. to perform fellatio on him. McCune also continued to hit A.R., A.C., and Latricia. A.R. testified she did not tell anyone about the abuse because she “really thought [McCune] was going to kill [her, her mother, and brother].”
In the fall of 2006, shortly before A.R. turned 10 years old, the family moved to Warsaw, Missouri, where tire abuse escalated. A.R. testified McCune continued to beat her, including burning her with cigarettes. McCune also continued beating Latricia, but A.C. bore the brunt of McCune’s physical abuse. According to A.R., McCune also continued tire sexual abuse in Warsaw, raping A.R. once a week and then every other week.
One evening in November 2006, as Latricia and A.R. bathed the family dog, McCune returned home from an outing. Latricia asked McCune, who smelled of alcohol, where he had been and McCune responded by yelling at her and shoving the dog’s nose under water. A.R. pushed McCune out of the way, allowing the dog to emerge. But McCune hit A.R. over the head with his fist and tiren hit and choked Latricia, slamming her head against a wall. Latricia testified the beating lasted “hours and hours.” A.R. and A.C. tried to intervene, but McCune hit them as well, breaking A.C.’s nose. McCune also tried to force A.C. to cut A.R. with a utility knife.
Eventually A.R. and A.C. managed to run to a neighbor for help. The neighbor refused to contact law enforcement and instead called A.R.’s older sister Kaylee who lived in Lenexa with her boyfriend, Miguel. Kaylee and Miguel picked up A.R., A.C., and La-tricia and drove them to the police station to report the incident. A.R., A.C., and Latricia then moved to Lenexa to live with Kaylee and Miguel.
Sometime later A.R., A.C., and Latricia moved to Centerview, Missouri. The family eventually moved back to Lenexa, where McCune moved back in and resumed his physical abuse.
A.R. testified McCune twice raped her in Lenexa between March and July 2007. According to A.R., the first rape began as she sat on the living room couch, and during that rape, McCune burned A.R. with his cigarette. During the second rape, A.R. was sitting on her bed when McCune came in and hit her in the head. A.R. “gave in” and “just lay there.” A.R. testified she “guess[ed] he wasn’t satisfied” because McCune choked her until she blacked out. When A.R. woke up, McCune was burning her with his cigarette and then shoved a pillow over her face. McCune again put his penis in A.R.’s vagina.
A few days after the second rape, A.R. ran to a nearby convenience store and asked the cashier to call the police. According to A.R., she showed officers bruising from McCune’s abuse, but then Latricia arrived and told the police A.R. “was crazy.” Latricia said she thought A.R. was “acting strange” and told the police A.R. was out of control and they released A.R. to her.
The family and McCune left Lenexa and moved several times before eventually settling in Kansas City, Missouri. A.R. testified that in December 2007 as she sat in the living room watching a movie, McCune sat beside her, put his hand down her pants, and touched her “private spot.” A.R. decided she “couldn’t handle it” and told her mother McCune “had touched [her] inappropriately.” When Latricia asked McCune about the touching, he beat Latricia, burned her with cigarettes, and yelled, “ ‘She says I raped her? She says I’m [sic] molested her? She said I did this?’ ” A.R. called the police, and A.R., A.C., and Latricia went to Safe Haven, a domestic violence shelter.
Prior to concluding A.R.’s direct examination, the prosecutor asked A.R. whether any other man had touched her inappropriately, and A.R. responded that her grandmother’s boyfriend had touched her over her clothes when she was 4 or 5 years old.
Defenses cross-examination of A.R.
■ McCune’s counsel attempted to establish that A.R. did not like McCune because he disciplined her harshly. And A.R. admitted when she previously reported that someone hurt her, including her grandmother’s boyfriend and Kaylee, the person was removed from her life.
McCune also questioned A.R. about her delay in disclosing the abuse and the fact that she talked to multiple people—including law enforcement and physicians—without reporting the abuse.
Finally, McCune impeached A.R.’s memory, pointing out inconsistencies between A.R.’s version of events as relayed at tire forensic interview, the preliminary hearing, and trial. During cross-examination, A.R. admitted, “It’s hard to remember everything exactly the way it happened” and that she “switched around” the rapes in Lenexa.
Testimony about interviews with A.R. and her physical examination
An employee of Missouri’s Department of Social Services, Children’s Division, testified she interviewed A.R. at Safe Haven, but after A.R. disclosed McCune had put his fingers in her vagina and made her fondle him, she ended the interview and assisted in arranging a forensic interview.
Jill Hazel conducted the forensic interview with A.R. Hazel testified children often provide more detail during a forensic interview than in prior interviews. Hazel also explained that when a child is repeatedly abused the child often cannot remember the details of each separate incident.
Regarding the first rape, which occurred in Warrensburg, Missouri, A.R. told Hazel that McCune came into her room, grabbed her hair, pushed her onto her bed, ripped her clothes off, and raped her. A.R. told Hazel that McCune raped her four or five times in Warrensburg.
A.R. advised Hazel that McCune also raped her when the family lived in Warsaw, Missouri, sometimes when her mother was home. The last time McCune raped her in Warsaw, he burned her with a cigarette. A.R. also said McCune digitally penetrated her while the family lived in Warsaw.
A.R. told Hazel the first rape in Lenexa occurred in the home’s office and was shorter than the others, lasting only about 5 minutes. The second rape occurred in the living room and during that rape McCune burned her upper thigh with a cigarette.
Hazel testified A.R. denied that McCune said anything to her while raping her and A.R. never mentioned him threatening her.
The jury watched a video of Hazel’s 2-hour interview with A.R., but the video does not appear in the record.
The State also called Dr. Mary Moffat, who testified she examined A.R. and observed a full hymenal transaction consistent with blunt force trauma. She also observed thinning of A.R/s hymenal cuff. Dr. Moffat conceded that she could not conclusively testify regarding the cause of the thinning, but she often sees such thinning in patients complaining of sexual abuse. Moffat also observed a number of flat, white lesions consistent with cigarette bums on A.R/s lower back and right hip, thigh, and leg. Finally, Dr. Moffat testified her findings were consistent with A.R/s disclosures in the forensic interview.
Testimony about law enforcement interview ioith McCune
Detective James Rader of the Lenexa Police Department testified he interviewed McCune while McCune was in custody in War-rensburg, Missouri. McCune admitted physically abusing Latricia and her family, including intentionally burning A.R. with cigarettes.
But McCune denied sexually abusing A.R., asserting Latricia concocted the allegations as a means of retaliating against him. Before Rader told McCune the specifics of A.R/s allegations, McCune volunteered that he “bet” A.R. had alleged McCune raped her without a condom. When Rader told McCune there was physical evidence of rape, he responded, “[N]umerous people would have had access” and could have done it or “maybe her mother rammed something into her.”
Defense’s case-in-chief
The principal of the school A.R. attended when she lived in Lenexa testified for the defense that A.R. withdrew from school on March 1, 2007, before the alleged Lenexa rapes.
McCune also admitted a copy of tire lease agreement for the apartment where A.R. and her family ostensibly stayed with McCune. The lease showed the primary leaseholder, Kaylee, added her newborn son to the lease as an occupant in March 2007 but did not add A.R., McCune, or Latricia.
The jury convicted McCune of both rape counts with which he was charged.
Sentencing
McCune filed a motion arguing the sentence required under Jessica’s Law constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. At the sentencing hearing, the district court rejected McCune’s argument.
McCune also asserted that Jessica’s Law is unconstitutionally vague because the statute fails to explain the manner in which a second count should be sentenced. As evidence, he noted the presentence investigator filed three different presentence investigation (PSI) reports, each recommending a different sentence. The district court rejected McCune’s argument, concluding Jessica’s Law is complex but not vague.
The district court sentenced McCune to two consecutive life sentences under Jessica’s Law. Further, because McCune had a prior rape conviction and a criminal history score of B, the court applied K.S.A. 21-4643(b). That provision requires an offender serve “not less than 40 years” when the offender has a prior conviction enumerated in the statute, rape being among them, and further serve a mandatory minimum sentence equivalent to the grid sentence when, because of the offender’s criminal history score, such term exceeds 480 months. Accordingly, the district court sentenced McCune to a mandatory minimum term of 618 months—a term equal to the high grid-box number for his criminal history score and a severity level 1 rape, and a mandatory minimum term of 480 months for his second rape count because of his prior rape conviction. The district court ran the sentence consecutive to McCune’s 13-year Missouri sentence.
McCune directly appealed his conviction and sentence. Our jurisdiction arises under K.S.A. 22-3601(b)(l).
Analysis
The district court did not err in admitting evidence of McCune’s prior misconduct under K. S.A. 60-455.
The district court permitted the State to present a range of evidence falling under the confines of K.S.A. 60-455, including: (1) evidence McCune sexually abused A.R. in Missouri; (2) evidence McCune physically abused A.R.; and (3) evidence McCune physically abused Latricia and A.C. The district court admitted the evidence for its bearing on A.R. and McCune’s relationship; A.R.’s reason for not promptly reporting the sexual abuse; McCune’s plan; and McCune’s ongoing course of conduct.
McCune argues the district court’s admission of this evidence violated K.S.A. 60-455 because despite the court’s identification of the evidence as relevant to specific material facts, it ultimately admitted the evidence only for its bearing on A.R.’s credibility and as propensity evidence.
The State acknowledges the district court’s ruling identified A.R.’s credibility as a pivotal issue but argues the discussion merely demonstrated the materiality of the history of A.R. and McCune’s relationship.
The State also argues because the 2009 amendment expanding K.S .A. 60-455 was in effect by the time of McCune’s trial, evidence of McCune’s prior misconduct was admissible for its bearing on “any matter to which it is relevant and probative” and not just material facts. See K.S.A. 2013 Supp. 60-455(d) (providing evidence of sexual misconduct in cases involving sexual offense can be admitted for “any matter to which it is relevant and probative”); State v. Prine, 297 Kan. 460, 475-79, 303 P.3d 662 (2013) (Prine II) (explaining that language added by 2009 legislature to K.S.A. 60-455 allows admission of prior sexual misconduct as propensity evidence).
Preliminary arguments
Preliminarily, McCune argues we need not consider whether the district court properly admitted the evidence for the material facts the district court instructed on because the district court’s comments demonstrated that it impermissibly admitted evidence of McCune’s prior misconduct only to prove A.R.’s credibility and to support an inference that McCune raped A.R. in Lenexa, i.e., propensity evidence.
But we disagree with McCune’s reading of the record. At several points in the trial, the district court noted that it admitted the evidence for the specific material facts discussed and dutifully in structed on those same material facts. Read holistically, the district court’s discussion regarding A.R.’s credibility merely explained how the evidence was relevant to something other than McCune’s propensity to commit the same acts in Lenexa.
We also reject the State’s suggestion that we consider tire admissibility of the evidence under the 2009 amendments to K.S.A. 60-455(d). Initially, the State overlooks that K.S.A. 60-455(d) only applies to evidence of prior sexual misconduct. Thus, even if the amended version of K.S.A. 60-455 applied, the expansive provision upon which the State relies would apply only to some of the evidence at issue here. More critically, the State fails to acknowledge that apparently neither party was aware of the 2009 amendments or their application at the time of trial, and the district court admitted the evidence to prove specific material facts. In considering whether the district court erred, we will review the actual ruling issued by the district court, not the ruling that it could have issued. See Prine, 297 Kan. at 479 (refusing to consider K.S.A. 2013 Supp. 60-455[d] in deciding whether trial court erred in admitting evidence under prior version of statute despite the applicability of amended statute at time of trial).
Discussion
The State alleged evidence McCune previously sexually and physically abused A.R. and physically abused her family was admissible under K.S.A. 60-455’s provision allowing admission of prior “crimes or civil wrongs” when the evidence is not used “as the basis for an inference that the person” committed the charged conduct, but rather to “prove some other material fact including, motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
A district court admits K.S.A. 60-455 evidence using a multistep process. It first determines whether the evidence is relevant to prove a material fact, including deciding whether the proffered material fact is actually in dispute. See State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008). The material facts listed in K.S.A. 60-455 are exemplary rather than exhaustive, and a party can seek to admit evidence to prove a material fact not specifically enumer ated. See State v. Gunby, 282 Kan. 39, 52-53, 144 P.3d 647 (2006). Evidence is relevant to a material fact when it is both material and probative. See K.S.A. 60-401(b); State v. Preston, 294 Kan. 27, 32, 272 P.3d 1275 (2012). We review diese conclusions de novo. 294 Kan. at 32.
The district court next considers whether the probative value of the evidence outweighs its potentially prejudicial effect. We review this conclusion for abuse of discretion. 294 Kan. at 32.
Statutory material facts
Only one of die material facts contained in the district court’s ruling is enumerated in K.S.A. 60-455—plan. Evidence can be admitted to prove plan either when die prior misconduct is so “ ‘strikingly similar’ in pattern or so distinct in method of operation as to be a ‘signature’ ” or when “there is some direct or causal connection between the earlier conduct and the crimes charged.” See State v . Prine, 287 Kan. 713, 729-30, 200 P.3d 1 (2009) (Prine I).
Here, evidence that McCune physically abused A.R., A.C., and Latricia is clearly not “strikingly similar” to the charged conduct because McCune was charged with sexually abusing A.R. Further, McCune’s previous sexual acts against A.R. were not so strikingly similar to die alleged rapes in Lenexa as to constitute a signature act. See State v. Longstaff, 296 Kan. 884, 894, 299 P.3d 268 (2013) (holding that for conduct to be strikingly similar, it must have “ ‘something more than the similarities common to nearly all sexual abuse cases’ ”). Nothing was signature about McCune’s conduct. For instance, some of tire rapes occurred while A.R. and McCune were alone but others occurred while Latricia was home. And, some of the rapes occurred in the family’s common living space while others were in A.R.’s bedroom. While A.R. testified McCune physically abused her during the same period of time some of the rapes were committed, we cannot conclude that McCune consistently committed the same acts.
Relying on State v. Blaurock, 41 Kan. App. 2d 178, 201 P.3d 728, rev. denied 289 Kan. 1280 (2009), the State alternatively suggests the evidence was admissible to show a “direct or causal con nection between the earlier conduct and the crimes charged.” In Blaurock, the Court of Appeals panel concluded the defendant had a “step-by-step” plan to break down his victim’s resistance based on the defendant’s isolation of his victim from family and friends, his development of a system of threats and rewards, and his gradual introduction of sodomy. 41 Kan. App. 2d at 202-03. But unlike in Blaurock, the evidence here demonstrates no “step-by-step” plan to bréale down A.R.’s resistance, nor did the State demonstrate that the abuse in Missouri somehow led to tire abuse in Lenexa.
Nonstatutory material facts
The district court also admitted the disputed evidence for purposes not enumerated in K.S.A. 60-455: to show an ongoing course of conduct and to explain the relationship of those involved and their motives, including why A.R. delayed in reporting McCune’s sexual abuse.
We agree with the State that tire district court appropriately admitted the evidence to show the relationship between McCune and A.R. and to explain A.R.’s delay in reporting the abuse. These reasons clearly were at issue at trial as both parties devoted considerable testimony and argument to discussing A.R.’s delay in disclosing the abuse. Much as K.S.A. 60-455 permits the State to use prior misconduct evidence to explain the defendant’s opportunity to commit the crime or to show that an act was not accidental, the State here appropriately introduced the prior sexual and physical abuse of A.R. and her family to show that A.R.’s failure to disclose the Lenexa rapes arose from a legitimate fear McCune would injure or kill her or her family. Accordingly, the trial court did not err in admitting the evidence.
Based on this conclusion, we need not consider the State’s alternative argument that the district court properly admitted the evidence to show McCune’s ongoing course of conduct.
The district court did not place an unconstitutional condition on McCune’s defense.
At several points throughout trial, the district court advised McCune that if he attacked A.R.’s credibility as it related to the events occurring in Missouri, tiren the court would find his prior Missouri convictions of statutory rape and child abuse admissible. McCune argues the district court’s statement unconstitutionally hindered his defense by forcing him to sacrifice both his Sixth Amendment right to fully confront the witnesses against him and his right to present a defense in order to avoid tire admission of his prior convictions.
The State counters that McCune failed to show “how he was prohibited from fully confronting” witnesses and further asserts the district court did not err because the State had a right to present the convictions as rebuttal evidence if McCune questioned A.R.’s credibility.
Analysis
The unconstitutional conditions doctrine originated in Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). There, a defendant sought to suppress evidence of a robbery discovered in a suitcase in another individual’s home because tire search leading to the discovery violated the Fourth Amendment to the United States Constitution. At the time Simmons was decided in the trial court, the defendant could not establish standing unless he testified at the suppression hearing and admitted ownership of the suitcase. After Simmons did so, the trial court denied the motion to suppress, and at trial, the government admitted the defendant’s earlier testimony connecting him to the crime and incriminating him.
On appeal, the Supreme Court explained that if the defendant’s testimony at the motion hearing was admissible at trial, the defendant was forced to either “give up” a potentially valid Fourth Amendment challenge by not testifying or “waive” his Fifth Amendment constitutional right against self-incrimination by having the testimony admitted against him at trial. 390 U.S. at 393-94. The Court found it “intolerable that one constitutional right should have to be surrendered in order to assert another” and concluded the trial court erred in admitting the defendant’s testimony. 390 U.S. at 394.
Thus, Simmons considered the tension between two constitutional rights and concluded a defendant cannot be forced to choose between those rights. In contrast, in this case McCune vaguely asserts the district court forced him to choose between having his prior convictions admitted under K.S.A. 60-455 or exercising his constitutional rights to confront witnesses and present a defense. But we previously have refused to extend Simmons’ rationale when diere is no tension between two constitutional rights. See State v. Nguyen, 285 Kan. 418, 428, 172 P.3d 1165 (2007) (rejecting claim of unconstitutional conditions where one right was statutoiy and one was constitutional); see also MaGautha v. California, 402 U.S. 183, 212-13, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971) (warning Simmons’ reasoning should “be regarded as open to question” and not be given a “broad thrust”), overruled on other grounds hy Crampton v. Ohio, 408 U.S. 941, 92 S. Ct. 2873, 33 L. Ed. 2d 765 (1972). Nothing convinces us to change that precedent here, and we reject McCune’s suggestion that the trial court placed unconstitutional conditions on his defense.
The district court did not abuse its discretion by refusing to order A.R. to undergo a psychiatric evaluation.
McCune next asserts the district court abused its discretion by denying McCune’s request for a psychiatric evaluation of A.R. pursuant to State v. Gregg, 226 Kan. 481, Syl. ¶ 3, 602 P.2d 85 (1979). The district court denied McCune’s request, finding no evidence A.R. had a mental instability, she did not understand the difference between the truth and a lie, or she had previously falsely reported abuse.
Standard of review and test
We review a district court’s decision whether to grant a psychiatric evaluation of a complaining witness for abuse of discretion. See State v. Berriozabal, 291 Kan. 568, Syl. ¶ 3, 243 P.3d 352 (2010); see also State v. Rojas-Marceleno, 295 Kan. 525, 530, 285 P.3d 361 (2012) (providing a district court abuses its discretion when the decision is unreasonable, based on an erroneous legal conclusion, or based on an error of fact).
A psychiatric evaluation of a complaining witness in a sexual abuse case is appropriate when the defendant can show the totality of the circumstances demonstrate compelling reasons for the evaluation. See Berriozabal, 291 Kan. 568, Syl. ¶ 4; but see State v. Simpson, 299 Kan. 990, 997-1000, 327 P.3d 460 (2014) (Moritz, J., Assenting) (suggesting need to reconsider and overrule Gregg). In determining whether compelling circumstances exist, a district court considers the following nonexhaustive list of factors:
“(1) whether there was corroborating evidence of the complaining witness’ version of the facts, (2) whether the complaining witness demonstrates mental instability, (3) whether the complaining witness demonstrates a lack of veracity, (4) whether similar charges by the complaining witness against others are proven to be false, (5) whether the defendant’s motion for a psychological evaluation of the complaining witness appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth.” Berriozabal, 291 Kan. 568, Syl. ¶ 5.
Analysis
In support of his motion for a psychiatric evaluation, McCune asserted the State could produce no evidence to corroborate A.PCs allegations, A.R. made prior unfounded allegations against her grandmother’s boyfriend, and a lengthy delay occurred between the alleged abuse and A.R.’s full disclosure of the allegations.
On appeal, McCune primarily asserts the trial court lacked support for its conclusion that the charges were never proven false. But when the district court questioned whether the allegations “were unsubstantiated,” McCune’s counsel admitted she had no relevant records and “no idea what happened when SRS investigated.” Thus, we conclude the district court justifiably found A.R.’s prior allegations had not been proven false.
Significantly, McCune presented no evidence that A.R. was mentally unstable, nor did he allege A.R. gave an unusual response when asked what it meant to tell the truth. Additionally, although McCune claimed the State could present no evidence corroborating A.R.’s allegations, at the time of the motion hearing McCune had pled guilty to committing similar acts in Missouri and A.R.’s medical evaluation revealed injuries consistent with her allegations. Further, it appears the district court concluded A.R. had no significant veracity issues. See State v. Sellers, 292 Kan. 346, 356, 253 P.3d 20 (2011) (noting district court’s conclusion that evidence showed victim had no veracity problems and pointing out that trial court has benefit of observing victim’s demeanor).
Finally, we find McCune’s citation to State v. Bourassa, 28 Kan. App. 2d 161, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000), unpersuasive. There, Bourassa presented evidence the 11-year-old victim had been under psychological care for behavior disorders, had accused her father of sexually molesting her, had tended to soil herself, and reportedly had mutilated two kittens. Further, the victim’s sister, who purportedly was present when the abuse occurred, did not testify anything untoward occurred. The Court of Appeals panel concluded a district court abused its discretion in refusing to compel the evaluation of the complaining witness. 28 Kan. App. 2d at 166-67.
The reasons cited by McCune do not rise to the level of evidence presented in Bourassa. Rather, his allegations more closely resemble the allegations of defendants in cases in which this court had upheld a trial court’s refusal to order an evaluation. See, e.g., State v. Stafford, 296 Kan. 25, 40-41, 290 P.3d 562 (2012) (declining to find abuse of discretion when victim failed to disclose abuse in response to broadly asserted questions); State v. Sprung, 294 Kan. 300, 316-17, 277 P.3d 1100 (2012) (declining to find abuse of discretion despite evidence victim engaged in dishonest conduct unrelated to accusations charged); State v. McIntosh, 274 Kan. 939, 944-46, 58 P.3d 716 (2002) (finding no abuse of discretion when victim experienced behavioral problems, delayed reporting abuse for 2 months, exhibited friendly feelings toward defendant after abuse, inconsistently described the abuse, and State presented no medical evidence corroborating allegations).
Under these circumstances, we conclude the district court did not abuse its discretion in denying McCune’s motion to compel a psychiatric evaluation of A.R.
The prosecutor did not commit misconduct.
McCune’s pro se brief argues the prosecutor committed reversible misconduct in closing argument when he commented, “What else did [Dr. Moffatt] tell you? [A.R.’s] hymenal tissue, her small little 12-year-old vagina had a complete transection and thinning of the walls that is absolutely consistent with blunt force trauma and penetration—’absolutely’ consistent with [A.R.’s] explanation of that man raping her.” McCune argues this comment misstated the evidence because the thinning was in the hymenal cuff or rim rather than the vaginal walls and because Dr. Moffat never said her findings were “absolutely” consistent with abuse.
In reviewing allegations of prosecutorial misconduct, we first determine whether the challenged comment exceeded the wide latitude of language and manner afforded the prosecutor when discussing the evidence. If we conclude the prosecutor’s comment exceeded these bounds, we next determine whether the comment constitutes reversible error. State v. Brown, 295 Kan. 181, 210-13, 284 P.3d 977 (2012) (discussing factors used to determine reversibility including the egregiousness of prosecutor’s conduct and strength of evidence).
The prosecutor’s characterization of Dr. Moffat’s observation of thinning in A.R.’s vaginal wall varied slightly from Moffat’s testimony that she observed thinning in tire “height of [A.R.’s] hymenal cuff or rim.” Although the prosecutor misspoke, we do not find this minor inaccuracy to be a misstatement of Dr. Moffat’s testimony.
McCune also takes issue with the prosecutor’s use of the term “absolutely,” arguing Dr. Moffat merely said her findings were “consistent” with A.R.’s description of the abuse. But our review of the record shows that the prosecutor correctly summarized the evidence. At the conclusion of Dr. Moffat’s direct examination, the prosecutor showed Dr. Moffat three exhibits depicting the complete transection and the hymenal thinning and asked, “Doctor are your findings in regards to the physical and sexual abuse in your examination consistent with [A.R.’s] disclosure during her forensic interview?” Dr. Moffat replied, “Absolutely.” Consequently, we reject McCune’s prosecutorial misconduct claim.
The district court did not err in refusing to strike a detective’s testimony that he “believed the victim. ”
McCune’s pro se brief further argues Detective Rader inappropriately commented on A.R.’s credibility and the district court erred in refusing to strike his statement.
During defense counsel’s cross-examination of Detective Rader, she asked, “And I just heard you say you tried to verify the time line of the incidents?” To which Detective Rader responded, “Yes.” Defense counsel then asked, “So you were assuming that the incidents indeed happened and you were just trying to figure out when?” Detective Rader responded, “I was trying—I believed [A.R.] and I was trying.” Defense counsel then asked the detective to refrain from “tiróse land of comments,” and requested die district court strike Detective Rader’s statement that he believed A.R. The court refused die request saying, “You asked if he assumed it was true.”
Generally, one witness should not comment on another witness’ credibility, and counsel should refrain from asking questions compelling such testimony. See State v. Crum, 286 Kan. 145, 151-52, 184 P.3d 222 (2008). But here, McCune’s counsel asked a question that essentially invited Detective Rader’s response. See State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006) (refusing to consider whether district court erred in admitting K.S.A. 60-455 evidence when defense counsel elicited challenged testimony). Accordingly, we reject McCune’s argument.
We vacate the imposition of lifetime postrelease supervision but reject McCune’s remaining arguments regarding his sentences.
McCune raises four arguments attacking his sentences, but we will not consider the merits of two of those arguments. Specifically, McCune conceded at oral argument that this court previously has rejected the argument that Jessica’s Law imposes cruel and unusual punishment. We accept that concession and will not entertain the issue. Similarly, his brief acknowledges that this court has rejected the argument that the district court’s use of his prior criminal convictions to enhance his sentences without first requiring that those convictions be proven to a jury violated his right to a jury trial. See, e.g, State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Since McCune asserts no justification for his request that we reconsider this precedent, we decline to do so.
McCune has not demonstrated Jessica’s Law is vague.
McCune next argues Jessica’s Law, K.S.A. 21-4643 is unconstitutionally vague because it is unclear from the statute how his criminal history and prior conviction for statutory rape impacts his second rape conviction.
The State argues the statute uses terms with commonly understood meaning and is not vague.
Both parties agree that a statute is unconstitutionally vague when it fails to give adequate warning as to the proscribed conduct. See United States v. Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 173 L. Ed. 2d 650 (2009) (providing a statute is void for vagueness when it “fails to provide a person of ordinary intelligence fair notice of what is prohibited”); State v. Richardson, 289 Kan. 118, 124-25, 209 P.3d 696 (2009). But McCune does not complain that the conduct proscribed by K.S.A. 21-4643 is unclear; rather, he complains the sentencing procedure is unclear. McCune’s cited standard is meaningless, and he cites no authority indicating sentencing provisions are subject to vagueness challenges.
McCune further fails to identify any words or phrases in the challenged statute that he contends are vague and instead simply asserts the statute’s application is unclear. However, a statute is not vague simply because it is unclear or susceptible to multiple interpretations, and we reject McCune’s vagueness challenge.
The district court erred in imposing lifetime postrelease supervision.
McCune’s pro se brief correctly argues that because he was sentenced for an off-grid felony, the district court had no authority to impose lifetime postrelease supervision. See State v. Conrad, 297 Kan. 76, 82, 298 P.3d 320 (2013) (vacating lifetime postrelease supervision); State v. Cash, 293 Kan. 326, 330-31, 263 P.3d 786 (2011). Accordingly, we vacate the imposition of lifetime post-release supervision as part of McCune’s sentences.
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The opinion of the court was delivered by
Luckert, J.:
Jimmy Dominguez appeals after a jury convicted him of premeditated first-degree murder, aggravated battery, and discharge of a firearm at an occupied building. He raises three claims of instructional error and one sentencing issue.
First, he argues clear error resulted from the trial court’s failure to use the pattern jury instructions and pattern verdict form specifically designed for trials in which the State presents alternative theories of first-degree murder, i.e., premeditated and felony murder. These pattern instructions inform the jurors that they must consider both alternative theories in arriving at a verdict on the charge of first-degree murder. In contrast, the trial judge in this case did not specifically instruct the jurors that they had to consider felony murder. Instead, the instructions suggested the jurors should only consider felony murder if they had a reasonable doubt regarding whether Dominquez was guilty of premeditated murder. Consequently, we have no confidence the jury appropriately considered the alternative of felony murder, and we are firmly convinced the jury would have reached a different verdict if the instructional errors had not occurred. We, therefore, reverse Dominguez’ first-degree murder conviction.
In his other issues regarding jury instructions, Dominguez objects to the trial court’s failure to give an accomplice instruction and an involuntary intoxication instruction. Based on these alleged errors, Dominguez asks us to reverse all of his convictions. While we find that it was error to not give the accomplice instruction, we hold the error was harmless. As to the involuntaiy intoxication instruction, we conclude the trial court did not err because there was not a factual basis for the instruction. Hence, we reverse only Dominguez’ first-degree murder conviction, and we affirm his convictions for aggravated battery and discharge of a firearm at an occupied building.
Dominguez’ final issue—that his hard 50 sentence should be vacated—is moot because Dominguez’ hard 50 sentence relates to his first-degree murder conviction, which is being reversed. Therefore, his sentence is vacated without consideration of the merits of his arguments.
Facts and Procedural Background
The events in this case occurred in the early morning hours of December 20, 2009, and culminated in the shooting death of Jose Antonio Leyva, a/lt/a Samuel Torres Rosado, and the gunshot wounding of Juan Rosales, Jr. The law enforcement investigation led to the identification of Dominguez as the shooter and of Jorge Jurado as the potential instigator and an aider and abettor.
The shooting followed an altercation several hours earlier at a bar where the codefendants—Dominguez and Jurado—and the shooting victims—Leyva and Rosales—were drinldng. Each of the men was in the company of others, many of whom testified at Dominguez’ trial. The juiy learned that Jurado was at the bar with his brother and their friend, Manuel Garcia-Velazquez, who came to the bar with Dominguez. Garcia-Velazquez testified that Jurado and Dominguez had not met before that night. Likewise, Leyva was at the bar with others, including his wife and his wife’s sister, Rosa Arteaga, who was pregnant with Jurado’s child. The other shooting victim, Rosales, was also at the bar with several of his family members.
The altercation began when two women started fighting. Leyva’s wife and her sister, Arteaga, attempted to stop the fight, but Jurado pulled Arteaga away from the sldrmish, later indicating he wanted to protect his unborn child. Leyva’s wife objected to Jurado grabbing Arteaga and started calling Jurado names. Jurado then grabbed Leyva, and the two men began to argue. According to Jurado, he “just laughed” at Leyva and “didn’t really say nothing to him, and [he] just told him [he] was trying to help.” Garcia-Velazquez, however, heard “disgust words” or fighting words exchanged between Jurado and Leyva, and he, along with several others, separated the two men.
Rosales watched the altercation and testified that he could tell Jurado and Leyva “wanted to fight” and would have if they had not been restrained. Rosales asked Leyva what was going on, and Leyva told him he “was having an argument” with Jurado. Rosales then noticed Dominguez standing with Jurado. Because Rosales did not know Dominguez, Rosales asked Dominguez for his name; Dominguez replied, “I’m nobody,” and turned away.
According to Jurado, a second altercation occurred when Leyva began arguing with a friend of Jurado. Jurado told his friend to calm down, gave him some money to buy drinks, and told him to leave Leyva alone. This resolution did not please Dominguez and others who were angry that Jurado “didn’t do nothing” to Leyva, who had not shown proper “respect” to Jurado. Dominguez told Jurado he should have “whipped [Leyva’s] ass.” Jurado was overheard saying that “he couldn’t do anything while he was there at the bar because the cops were looking for him. But. . . once they left, he would take care of them and his homeboys would back him up.”
At closing time, when all the patrons started leaving the bar, Leyva’s wife saw Jurado talking to Dominguez and pointing to Leyva. Then, she saw Dominguez following them into the parking area. She thought Dominguez “cussed” at her before she got into a vehicle with Leyva.
After the bar closed, several of the patrons congregated at two separate parties. One party was at Leyva’s house, and the other was at Jurado’s house.
Dominguez and Garcia-Velazquez went to Jurado’s house, where they continued to drink. During the party, Dominguez told Jurado he wanted to buy a gun. According to Jurado, he called his uncle who had an “SKS rifle” for sale. Jurado’s uncle came over and met with Dominguez outside Jurado’s house. Dominguez paid for die rifle, and Jurado’s uncle placed the rifle in the passenger seat of an SUV that Jurado had borrowed from Arteaga.
Garcia-Velazquez gave a different account of how the rifle got into the SUV. He testified he saw Jurado walk from the back of die house carrying a blanket and, although he could not see what was inside the blanket, it looked like it was wrapped around something. Garcia-Velazquez followed Jurado and got into the backseat of the SUV because Jurado had agreed to drive Garcia-Velazquez home. Dominguez was in the front passenger seat. Once in the SUV, Garcia-Velazquez realized the blanket was wrapped around an item that looked like the barrel of a long gun. He “didn’t know what they were going to do with it [and] . . . didn’t expect. . . that they would do something with it.”
Jurado and Garcia-Velazquez also gave different versions of what happened once they were in the SUV with Dominguez. Jurado testified that Dominguez wanted to test-fire his newly purchased rifle, so Jurado drove out to the countryside. After testing the rifle, Jurado drove his passengers back into town; but before dropping them off, Jurado wanted to pick up Arteaga, who was at Leyva’s house. Jurado testified that he did not tell his passengers that they would be stopping at Leyva’s; although at another point in his testimony, he stated he told Dominguez he was going to pick up Arteaga from her sister’s house. For his part, Garcia-Velazquez denied leaving town to test-fire the rifle. When Garcia-Velazquez recognized that Jurado was not driving him home, Jurado-merely said that “[h]e had to pass by somewhere first” without telling the others where they were going.
Jurado drove through the alley behind Leyva’s house and parked the SUV behind the detached garage. As Jurado turned off the headlights, he heard music playing inside tire garage. Jurado began looking for his cell phone so he could call Arteaga. Meanwhile, Dominguez jumped out of the SUV with the rifle and ran to the side of Leyva’s garage. Garcia-Velazquez testified that from inside the SUV he saw a door swing open on the garage. Light filtered out of the doorway, and a person exited through it. Dominguez then fired the rifle, and Garcia-Velazquez heard gunshots and saw “two flashes.”
Rosales testified that just before he was shot, several men were partying in the garage. He and Leyva decided to step outside, and Leyva opened the door. Leyva was immediately and fatally shot in the abdomen, and Rosales was shot in the leg. There were no lights outside, so Rosales could only see “the light of the shooting” and somebody dressed in a black sweatshirt and a hat—clothing like he had seen Dominguez wearing at the bar.
Jurado started the SUV and “land of took off’ without Dominguez. Jurado stopped to pick up Dominguez after Jurado looked in his rearview mirror and saw Dominguez running down the alley. They returned to Jurado’s house; and although Jurado and Garcia-Velazquez asked Dominguez what happened, Dominguez did not say anything. Garcia-Velazquez suggested that they go to his girl friend’s house because nobody would try to look for them there. They stayed there until the next day, but nobody discussed the shooting.
The State filed criminal charges against Jurado and Dominguez. Dominguez was charged with the premeditated first-degree murder of Leyva or, in the alternative, felony murder; the attempted first-degree murder of Rosales; and discharge of a firearm at an occupied building. Jurado was charged with aiding and abetting first-degree murder and attempted first-degree murder. Jurado, however, entered into a plea agreement with the State. In exchange for his testimony, the State agreed to amend die charges against Jurado, and he pleaded no contest to solicitation to commit intentional second-degree murder and aiding and abetting the discharge of a firearm at an occupied building.
When Dominguez’ case came to trial, Jurado testified as a State’s witness. He acknowledged his plea arrangement and indicated he expected to receive a shorter sentence because of his agreement with the State, although he had not yet been sentenced. This trial resulted in a mistrial after the jury could not reach a verdict. Before Dominguez’ retrial, Jurado was sentenced. At Dominguez’ second trial, which is the subject of this appeal, Jurado was scheduled to be called as a witness, but he did not testily. Instead, Jurado invoked his right to remain silent under the Fifth Amendment to the United States Constitution. As a result, the trial court found Jurado unavailable as a witness and allowed the transcript of Jurado’s testimony from the first trial to be read to the jury. Jurado’s plea agreement was also admitted into evidence at the second trial.
The second jury convicted Dominguez of the premeditated first-degree murder of Leyva, in violation of K.S.A. 21-3401(a); the aggravated battery of Rosales, in violation of K.S.A. 21-3414(a)(l)(A), which was a lesser included offense of the charged offense of attempted first-degree murder; and discharge of a firearm at an occupied building, in violation of K.S.A. 21-4219(b). Dominguez received a controlling sentence of life imprisonment without the possibility of parole for 50 years.
Dominguez timely appealed, and this court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; maximum sentence of life imprisonment imposed). As we have noted, Dominguez raises four issues: (1) Did the trial court commit clear error in failing to give the pattern jury instructions and pattern verdict form specifically designed for trials in which the State presents alternative theories of first-degree murder to the jury? (2) Did the trial court commit clear error in failing to give a cautionary accomplice instruction? (3) Did tire trial court commit clear error in failing to give a voluntary intoxication instruction? and (4) Is Dominguez’ hard 50 life sentence unconstitutional because a jury did not determine the underlying facts?
Standard of Review for Jury Instruction Issues
In State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012), this court set out a progression of analysis and the corresponding standards of review for deciding a jury instruction issue. “First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review.” 295 Kan. 156, Syl. ¶ 1. Applying this step in this case, as we have indicated, we have jurisdiction to consider Dominguez’ attack on his conviction, so our only concern is with preservation, which is addressed in K.S.A. 22-3414(3). Under that provision, the complaining party must have objected prior to jury deliberations in order to preserve appellate review of a claimed instructional error unless the objecting party is able to establish that the instruction or the failure to give the instruction was “ ‘clearly erroneous.’ ” State v. Williams, 295 Kan. 506, 512, 286 P.3d 195 (2012). Regardless of whether an objection has been stated, after considering jurisdiction and preservation, an appellate court must first determine whether there was error and, if so, the effect of the error on the verdict. 295 Kan. at 515-16 (discussing analysis if no objection was made); Plummer, 295 Kan. at 161-62 (discussing analysis if there was an objection).
In determining if there was error in giving or failing to give a jury instruction, an appellate court must examine whether the instruction was legally and factually appropriate. The appellate court utilizes an unlimited standard of review to analyze the legal question of whether the instruction fairly and accurately states the ap plicable law. See Williams, 295 Kan. 506, Syl. ¶ 4; Plummer, 295 Kan. at 161. Then, in considering whether the jury instruction was factually appropriate, an appellate court determines if there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, to support a factual basis for the instruction. Williams, 295 Kan. 506, Syl. ¶ 4; Plummer, 295 Kan. at 161. “Such an inquiry is closely akin to the sufficiency of the evidence review frequently performed by appellate courts in criminal cases.” 295 Kan. at 162.
Finally, if the appellate court concludes tire trial court erred in giving or failing to give the jury instruction, the appellate court must malee a reversibility determination. If there was an objection, tire 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, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Plummer, 295 Kan. at 162-63. If there was no objection, the test for clear error requiring reversal is “whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. at 516.
The assessment of whether an instructional error is clearly erroneous requires a review of die entire record and a de novo determination. The burden of showing clear error remains with the complaining party, rather than shifting to the party benefitting from the error as happens in a Ward harmless error analysis. 295 Kan. at 516.
These samé considerations apply to jury verdict forms. See State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012) (citing Unruh v. Purina Mills, 289 Kan. 1185, 1197-98, 221 P.3d 1130 [2009]).
As we will discuss in more detail, Dominguez concedes the clearly erroneous standard applies to two of his instruction issues— tire alternative theory instructions (and corresponding verdict form) regarding first-degree murder and the voluntary intoxication instruction—but he argues the more favorable Ward standard applies to tire cautionary accomplice instruction issue.
First-Degree Murder Instructions and Verdict Form
First, Dominguez argues the trial court erred by failing to give the jury the pattern jury instructions and pattern verdict form specifically designed for trials in which the State presents alternative theories of first-degree murder to the jury. See PIK Crim. 3d 56.02-A (felony murder and premeditated murder are two alternative theories to prove first-degree murder); PIK Crim. 3d 68.15 (verdict instruction where first-degree murder is presented in alternative theories); PIK Crim. 3d 68.16 (verdict form where first-degree murder is presented in alternative theories).
Dominguez concedes that he did not request the alternative theory instructions or verdict form, nor did he object to the instructions that were given by the trial court. Hence, he must meet the clear error standard. See K.S.A. 22-3414(3). Dominguez argues he has done so because the judge failed to convey to the jury—either through the jury instructions or the verdict form—that premeditated murder and felony murder are alternative theories of first-degree murder. Thus, according to Dominguez, the jury did not understand how to consider whether he was guilty of felony murder.
In response, by not arguing to the contraiy, the State implicitly concedes that the alternative theory instructions and verdict form formulated by the PIK Committee were legally and factually appropriate. Nevertheless, citing State v. Moncla, 262 Kan. 58, 71, 936 P.2d 727 (1997), the State notes the use of PIK instructions is not mandatory. The State further argues the trial court’s instructions in this case were proper, fairly stated the law, and could not have reasonably misled the jury.
Given the State’s implicit concession as to the legal and factual appropriateness of the pattern alternative theory instructions and verdict form, we need not spend much time discussing the first two steps of the analysis, at least as those steps relate to the instructions that Dominguez says should have been given. We, too, conclude that the pattern alternative theory instructions and verdict form would have been legally and factually appropriate in this case and the trial court would not have erred if it had used them. See State v. Mireles, 297 Kan. 339, Syl. ¶ 8, 301 P.3d 677 (2013) (first-degree murder encompasses the two alternative means of premeditated murder and felony murder); State v. Starr, 259 Kan. 713, 720, 915 P.2d 72 (1996) (“Premeditated and felony murder are not separate and distinct offenses but are two separate theories under which the crime of first-degree murder may be committed.”); PIK Crim. 3d 56.02, Comment (“The statute merely provides alternative methods of proving the deliberation and premeditation which are required for a first-degree murder conviction under K.S.A 21-3401.”).
What we must determine is whether the trial court’s instructions adequately covered the essential information contained in those alternative theory pattern instructions—that is, whether the instructions that were given were legally appropriate. As this court has frequently stated, although the use of PIK instructions is generally not required, it is strongly recommended absent a particular need to alter the instructions because of the facts of a case. State v. Dixon, 289 Kan. 46, 67, 209 P.3d 675 (2009). This court has explained the wisdom of using the PIK instructions, stating: “When a district court ventures from the standard language of a pattern instruction, the court runs the risk of . . . omitting words that are essential to a clear statement of law.” State v. Tully, 293 Kan. 176, 197, 262 P.3d 314 (2011).
To understand whether the result forecast in Tully occurred here, we need to examine what the jurors would have learned had they received the pattern alternative theory instructions and verdict form—PIK Crim. 3d 56.02-A, PIK Crim. 3d 68.15, and PIK Crim. 3d 68.16—and what the jurors were told through the trial court’s instructions.
Alternative Theory Instructions and Verdict Form
The first alternative theory instruction is PIK Crim. 3d 56.02-A, which explains that the defendant has been charged “with one offense of murder in the first degree and [the State] has introduced evidence on two alternate theories of proving this crime.” It continues by setting out tire two alternatives of felony murder and premeditated murder and informing the jurors: “Where evidence is presented on the two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.” (Emphasis added.) PIK Crim. 3d 56.02-A. The instruction then directs the jurors to those instructions where the court has stated the elements of felony and premeditated first-degree murder. The instruction concludes by instructing the jury to enter a verdict of guilty if it determines the State has proven first-degree murder on either or both theories, to enter a verdict of not guilty if the State has failed to establish guilt on both theories, or, if applicable, to consider die defendant’s guilt on lesser included offenses.
The Notes on Use to PIK Crim. 3d 56.02-A instruct: “Where the information and evidence include both felony murder and premeditated murder, this instruction must he given in addition to [the elements instructions found at] PIK [Crim.] 3d 56.01, Murder in the First Degree, and PIK [Crim.] 3d 56.02, Murder in the First Degree—Felony Murder.” (Emphasis added.) In the present case, the trial court only gave the element instructions. It did not give the additional instruction found in PIK Crim. 3d 56.02-A.
The second alternative theory instruction, PIK Crim. 3d 68.15, guides the jurors on the order of their deliberations. It instructs them to first decide if the defendant is guilty of murder in the first degree and clearly directs them to determine whether one, both, or neither alternative theory was proven beyond a reasonable doubt. The instruction further explains that if first-degree murder is not proven beyond a reasonable doubt, the jury should consider the lesser included offenses instructed upon. The order for that consideration is then set out.
The Notes on Use to PIK Crim. 3d 68.15 indicate that the pattern instruction “should be given along with PIK [Crim.] 3d 68.16, Murder in the First Degree—Premeditated Murder and Felony Murder in the Alternative—Verdict Form, when the defendant is charged with murder in the first degree under the alternative theories of premeditated murder and felony murder.” (Emphasis added.) The verdict form found at PIK Crim. 3d 68.16 leads the jury step by step through the sequence of deliberations outlined in PIK Crim. 3d 68.15.
The pattern verdict form, PIK Crim. 3d 68.16, first requires the jury to determine whether the defendant is guilty of murder in the first degree. The jury is given three options, which are listed as Theory 1(a), 1(b), and 1(c): 1(a) “We, the jury, unanimously find the defendant guilty of murder in the first degree on the theory of premeditated murder”; 1(b) “We, the jury, unanimously find the defendant guilty of murder in the first degree on the theory of felony murder”; or 1(c) “We, the jury, unable to agree under Theory 1(a) or 1(b), do unanimously find the defendant guilty of murder in the first degree on the combined theories of premeditated murder and felony murder.” PIK Crim. 3d 68.16. If the juiy does not find the defendant guilty of first-degree murder, the verdict form then directs the juiy to consider any lesser included offenses. There is also an option for the jury to sign the form indicating the defendant is not guilty.
The trial court in this case used neither PIK Crim. 3d 68.15, explaining the progression outlined on the verdict form, nor PIK Crim. 3d 68.16, the verdict form.
Jury Instructions and Verdict Form Given at Trial
The failure to give these instructions or use the corresponding verdict form resulted in the omission of significant points. The juiy instructions that were given to the jury did not explain that first-degree murder has two alternative theories or that felony murder must be considered in reaching a verdict on the charge of first-degree murder. Further, if anything, the wording and ordering of the instructions made it appear that felony murder was a lesser included offense.
First, in Instruction No. 13, the trial court gave the elements instruction for premeditated first-degree murder, PIK Crim. 3d 56.01 (Murder in the First Degree). This instruction identified premeditated murder as murder in the first degree. It made no mention of felony murder.
The next instruction, Instruction No. 14, addressed the consideration of second-degree murder as a lesser included offense. In doing so, the court instructed: “Under Count One you may find the defendant guilty of murder in the first degree, murder in the second degree, felony murder or not guilty.” (Emphasis added.) The instruction explained that if “there is a reasonable doubt as to which of three offenses a defendant is guilty under Count One, he may be convicted of the lesser offense only.” Instruction No. 14 was based on PIK Crim. 3d 68.09 (Lesser Included Offenses). The Notes on Use to PIK Crim. 3d 68.09 specify that “[t]his instruction shoidd not be used when the crime is first-degree murder under the alternative theories of premeditated murder and felony murder. Instead use PIK [Crim.] 3d 68.15 and 68.16.” (Emphasis added.)
As PIK Crim. 3d 68.09 indicates, this pattern instruction was intended to be used when the jury is instructed as to one principal offense and its lesser included offenses. Using this instruction in a case involving both theories of first-degree murder is obviously confusing. Moreover, as argued by Dominguez on appeal, the placement of felony murder after second-degree murder in the italicized portion of the jury instruction did not (1) explain when to consider felony murder or (2) clarify that premeditated murder and felony murder are simply alternative theories of first-degree murder. If anything, the instruction implied that the three charges—premeditated murder, second-degree murder, and felony murder—were to be considered sequentially, with felony murder being the last in the sequence.
The next jury instruction was the felony-murder instruction, Instruction No. 15, which was based on PIK Crim. 3d 56.02 (Murder in the First Degree—Felony Murder). It did not cure die misleading nature of the prior instructions. In fact, rather than explaining that felony murder is an alternative charge to premeditated murder and is a form of first-degree murder, the first words of the instruction were: “As an alternative charge to Murder in the First Degree, the defendant is charged in Alternative Count I with the crime of Felony Murder.” (Emphasis added.) The remainder of the instruction correctly listed die elements of felony murder as stated in PIK Crim. 3d 56.02.
The statement that felony murder is an alternative to murder in the first degree was added by the trial court in place of language in the pattern instruction which states that “[t]he defendant is charged with the crime of murder in die first degree.” PIK Crim. 3d 56.02. This alteration was an apparent attempt to adapt the instruction to recognize alternative theories, but the alteration missed its goal because it did not explain that felony murder was an alternative basis for finding Dominguez guilty of first-degree murder; instead, the altered instruction indicated felony murder was something different than first-degree murder.
Next, the trial court gave Instruction No. 16, which again addressed the jury’s consideration of second-degree murder and stated, in part, that “[i]f you do not agree that the defendant is guilty of murder in the first degree, you should consider the lesser included offense of murder in tire second degree.” (Emphasis added.) This instruction informed the jury drat second-degree murder is a lesser included offense of first-degree murder, which is the term the trial court used to identify only premeditated murder. But, as Dominguez notes, Instruction No. 16 did not explain the hierarchical relationship between second-degree murder and felony murder.
Like the combination of instructions used by the trial court, the verdict form did nothing to clarify that premeditated murder and felony murder are alternative theories of first-degree murder. Nor did it clarify tire appropriate sequencing for the jury’s deliberations. This is true even though the transcript of the instructions conference shows tire prosecution expressed concern that the jury would be confused about whether felony murder is a “higher-level felony” than second-degree murder. After this concern was expressed, the court agreed to swap the sequencing in one part of the verdict form and listed felony murder after premeditated murder and before second-degree murder. The resulting form provided the options of finding Dominguez (1) “guilty of murder in the 1st degree as charged in Count One”; (2) “guilty of felony murder as charged in Alternative Count I”; (3) “guilty of murder in the 2nd degree”; or (4) “not guilty under Count I, 1st Degree Murder, the lesser included offense of 2nd Degree Murder and Alternative Count I, Felony Murder.” In stating these options, the verdict form, again, did not identify felony murder as first-degree murder. Furthermore, any ameliorating impact of the reordering of the first three options was wiped out by a subsequent listing of the offenses in option four on the verdict form, which listed felony murder after second-degree murder. Hence, at best, the verdict form was ambiguous and, at worst, a portion of the verdict form implied that the three charges were to be considered sequentially, with felony murder being the last in the sequence.
Simply put, neither the jury instructions nor the verdict form in this case provided the jurors with information that allowed them to understand tire need to consider felony murder as part of their deliberations regarding the first-degree murder charge. Further, as Dominguez argues, the sequencing of instructions and words within the instructions suggested that felony murder was not on “equal footing” with premeditated murder. Consequently, we conclude the instructions given by the trial court were legally inappropriate and, therefore, erroneous.
Reversibility Inquiry
The final step in our analysis is the reversibility inquiry. As Dominguez concedes, because he did not object to the instructions, he must persuade us to the point we are “firmly convinced that the jury would have reached a different verdict had tire instruction error not occurred.” See Williams, 295 Kan. at 516. He does so, although we do not accept all of his arguments.
Principally, we do not agree with Dominguez’ argument that the jury’s verdict on tire lesser included offense of aggravated battery as to the shooting of Rosales, rather than the charged offense of attempted first-degree murder, was inconsistent with a verdict of premeditated murder as to Leyva. There was substantial evidence from which premeditation could be inferred as to the killing of Leyva—the earlier fight, Jurado’s statements about getting Leyva later with his “home-boys” backing him up, and Dominguez’ efforts at acquiring a gun. See State v. Haberlein, 296 Kan. 195, 205, 290 P.3d 640 (2012) (“ ‘premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one.’ ”), cert. denied 134 S. Ct. 148 (2013). Nothing in the record suggests the same level of antago nism toward Rosales, and the jury could have believed that Dominguez did not have the intent to kill Rosales.
Nevertheless, we do not accept the State’s arguments either. The State, in its appellate brief, recognizes this court and tire Court of Appeals have reversed verdicts when jury instructions failed to accurately convey the appropriate sequencing of jury deliberations, but tire State argues these cases are distinguishable. The two cases discussed by the State are State v. Miller, 293 Kan. 46, 259 P.3d 701 (2011), and State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001).
In Miller, the defendant, who was charged with premeditated first-degree murder, requested instructions for second-degree murder and voluntary manslaughter as lesser included offenses. In one instruction, the trial court correctly instructed the jury to simultaneously consider the two lesser included offenses; but in a separate, conflicting instruction, the court erroneously told the jury that it could consider voluntary manslaughter only if it could not agree as to the defendant’s guilt on the second-degree murder charge. This court found reversible error, in part because one could not presume the jury followed the correct instruction—the simultaneous consideration of the lesser included offenses—and disregarded the improper instruction. 293 Kan. at 53. Further, during closing arguments, “both the prosecutor and defense counsel separately discussed first-degree murder, second-degree murder, and voluntary manslaughter in that order, implying that the crimes should be considered sequentially.” 293 Kan. at 53-54. And the verdict form “did nothing to clarify the contradictoiy instructions.” 293 Kan. at 54.
In the second case cited by the State, Cribbs, the Court of Appeals held that second-degree murder and voluntary manslaughter must be considered simultaneously during a juiy’s deliberations. Applying this holding, the court found the trial court erred because it essentially told tire jury “it need not bother considering attempted voluntary manslaughter unless and until it failed to agree on his guilt of attempted second-degree murder.” 29 Kan. App. 2d at 924. This “ ‘reordering’ deprived the jury of the opportunity to consider the mitigating circumstances of heat of passion or sudden quarrel which reduce an intentional homicide from murder to voluntary manslaughter.” State v. Graham, 275 Kan. 831, 836-38, 69 P.3d 563 (2003) (discussing Cribbs).
As the State points out, the trial court in this case did not include a blatant misstatement of tire law in the instructions such as found in Miller or Cribbs. The same distinction applies to yet another case, which was not cited by the parties, State v. Young, 277 Kan. 588, Syl. ¶ 5, 87 P.3d 308 (2004). In Young, the trial court explicitly instructed the jury that felony murder is a lesser included offense of premeditated murder. In contrast, the trial court’s error in this case was more of omission tiran commission. Nevertheless, the instructions in this case essentially suggested tire same thing as the trial court’s misstatement in Young, i.e., that felony murder is a lesser included offense of premeditated first-degree murder. This is especially true given the sequence of the jury instructions and tire listing of felony murder after second-degree murder in Instruction No. 14 and in part of the verdict form. Overall, the instructions left the impression that felony murder was to be considered after premeditated first-degree murder and second-degree murder. Plus, there was no affirmative statement explaining that felony murder is first-degree murder or that felony murder had to be considered before the verdict was reached on first-degree murder. In other words, while the State draws a point of distinction, the distinction has no significance.
The State also contrasts the circumstances of this case to those in Miller where the attorneys’ closing arguments reinforced the misstatement; in this case, the prosecutor correctly explained that felony and premeditated murder are “different theories” of first-degree murder and told the jurors that if they found “neither of them, then you would move to second degree.” While these statements were helpful, they still did not explain that the jury had to consider felony murder as well as premeditated first-degree murder before reaching a verdict on Count I. Also, while appellate courts presume a jury follows the trial court’s instructions—especially given that the jurors in this case were instructed that they must apply the instructions—there is no similar presumption relating to arguments of counsel. See PIK Crim. 3d 51.02 (Consid eration and Binding Application of Instructions); see also K.S.A. 22-3403(3); State v. McClanahan, 212 Kan. 208, 215-17, 510 P.2d 153 (1973).
We, therefore, find ourselves with the same concern that arose in Miller, Cribbs, and Young—the jury was either misdirected or lacked direction regarding the order of its deliberations. In the circumstances of this case, that meant the jury was not told it had to simultaneously consider the alternative theories of first-degree murder. Such a situation does not always lead to reversal, however. In Young, this court concluded “there was no reasonable possibility that the jury would have rendered a different verdict if the district court had not made the mistake of calling felony murder a lesser offense’ of premeditated murder.” 277 Kan. at 597.
We do not reach the same conclusion under the facts of this case for several reasons, however. First, we note that, although not discussed by Dominguez, the trial court also instructed the jury in Instruction No. 21 that “[ejach crime charged against the defendant is a separate and distinct offense.” Instruction No. 21 was based on PIK Crim. 3d 68.07 (Multiple Counts-Verdict Instruction)—an instruction that is not to be given when a defendant is charged under alternative theories of first-degree murder. See PIK Crim. 3d 68.15, Notes on Use. This clearly is a misstatement of the law, since premeditated murder and felony murder are theories relating to the same offense, first-degree murder. Second, there was substantial evidence of the underlying felony, criminal discharge of a firearm at an occupied building. Hence, under the facts of this case, we are firmly convinced the jury would have reached a different verdict. This conclusion is buttressed by the fact the jury empa-nelled in Dominguez’ first trial was unable to unanimously agree on whether Dominguez was guilty of premeditated murder or felony murder.
One may ask whether this difference in the verdict would matter because under any of the three alternatives the juiy should have been given—(1) unanimously finding Dominguez guilty of premeditated first-degree murder, (2) unanimously finding him guilty of first-degree felony murder, or (3) unanimously finding him guilty of first-degree murder but splitting votes between the two alternative theories-—Dominguez would have been guilty of first-degree murder. The answer is that the verdict would have had a significant impact on Dominguez’ minimum sentence. The legislature has chosen to impose a different minimum sentence for first-degree felony murder—at the time of Leyva’s death a 20-year minimum—than for premeditation first-degree murder—up to a 50-year minimum. See K.S.A. 21-3401 (murder in first degree is off-grid person felony); K.S.A. 21-4635(b) (conviction of first-degree murder based upon finding of premeditation subject to mandatory term of up to 50 years imprisonment); K.S.A. 21-4706(c) (sentence for off-grid crimes shall be imprisonment for life); K.S.A. 2013 Supp. 22-3717(b)(2) (20-year minimum for life sentence with exceptions including K.S.A. 21-4635). Further, if the jury would have found Dominguez guilty of first-degree murder based on a combination of votes for the two alternative theories, the sentencing court could have only imposed a sentence for felony murder. See State v. Wakefield, 267 Kan. 116, 140-41, 977 P.2d 941 (1999) (“Where the sentencing court cannot ascertain whether the jury unanimously convicted the defendant of both premeditated murder and felony murder, but the jury convicted the defendant of the inherently dangerous underlying felony, the sentencing court may not sentence the defendant for premeditated murder but must impose the sentence for felony murder”; where juiy unanimously found defendant guilty of premeditated murder and felony murder, sentence for premeditated murder is not illegal); State v. Vontress, 266 Kan. 248, 264, 970 P.2d 42 (1998) (same), disapproved on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).
Consequently, Dominguez has established clear error, and we reverse his conviction for first-degree murder and remand the case to the trial court.
Accomplice Instruction
Next, Dominguez argues that the trial court erred in failing to give PIK Crim. 3d 52.18, which instructs the juiy to consider an accomplice’s testimony with caution. Dominguez argues that Ju-rado, having been found guilty of crimes related to the shooting death of Leyva and the wounding of Rosales, was clearly an accomplice and, consequently, the instruction was legally and factually appropriate. The State agrees that Jurado was involved in die crimes and was an accomplice, but it argues die instruction was not legally appropriate because Jurado was also a codefendant. It bases its argument on the Notes on Use for PIK Crim. 3d 52.18, which state: “This instruction should not be given when the accomplice is also a co-defendant.”
The trial court discussed this PIK Committee notation with counsel during the instructions conference and also pointed out the Court of Appeals’ decision on which it is based, State v. Land, 14 Kan. App. 2d 515, 794 P.2d 668 (1990). Dominguez’ counsel responded by saying, “[S]ince [Jurado] wasn’t a codefendant charged in this particular case, he’s not a codefendant, but I think it’s very disingenuous of me to say that.” The trial court thanked counsel for his candor, ruled that Jurado was a codefendant, and determined that PIK Crim. 3d 52.18 would not be given in light of the PIK Committee’s Notes on Use and the holding in Land.
On appeal, Dominguez asks us to adopt the argument his trial counsel labeled as disingenuous. While that situation makes us initially skeptical, we ultimately conclude Dominguez’ appellate argument is correct and the instruction should have been given. To explain, we need to discuss the holding in Land, which provides context to the Notes on Use to PIK Crim. 3d 52.18, and to clarify that the holding is limited to situations where two or more accomplices are on trial before the same jury.
Legally and Factually Appropriate
In Land, 14 Kan. App. 2d 515, Sonja L. Land was prosecuted in a joint trial with two other codefendants and was the only defendant who testified. Although the State’s theoiy was that Land was an accomplice, making the cautionary accomplice instruction applicable, Land argued it would be inappropriate to instruct tire jury to view any accomplice’s testimony with caution. The Court of Appeals agreed, stating the instruction “was not neutral .... [I]t arbitrarily singled out [the defendant’s] testimony and would cause a juiy to scrutinize it differently than other testimony.” 14 Kan. App. 2d at 520.
Dominguez does not question the soundness of the holding in Land but argues it should be limited to situations in which accomplices are jointly tried. We agree. The Land court’s concern about undermining the testimony of a defendant only arises in cases where two or more accomplices are on trial before the same jury. In contrast, in the present case, an accomplice instruction would not have singled out Dominguez, who was the only defendant in the case. Further, the State offers no justification for extending the Land rationale to a situation where only one accomplice is on trial.
Also, while the Notes on Use do not distinguish between accomplices in the same trial and accomplices who are tried separately on charges based on tire same criminal activity, other authorities do. Our decisions have stressed that the better practice is to give the cautionary instruction regardless of whether there is corroborating evidence, “as long as the accomplice is not also a codefendant in the trial.” (Emphasis added.) State v. Llamas, 298 Kan. 246, 262-63, 311 P.3d 399 (2013) (citing PIK Crim. 3d 52.18, Notes on Use); see State v. Tapia, 295 Kan. 978, 996, 287 P.3d 879 (2012) (same); State v. Simmons, 282 Kan. 728, 734, 148 P.3d 525 (2006) (same); see also State v. Buehler-May, 279 Kan. 371, 384-85, 110 P.3d 425 (discussing the fact that two accomplices were questioned at defendant’s trial about their plea bargain arrangements in front of the jury; trial court’s failure to give cautionary accomplice instruction was not clearly erroneous; no characterization of witnesses as codefendants), cert. denied 546 U.S. 980 (2005).
In addition, “codefendant” is defined in Black’s Law Dictionary 293 (9th ed. 2009) as “[o]ne of two or more defendants sued in the same litigation or charged with the same crime.” Admittedly, we are often imprecise in referring to “codefendants” simply because charges arise from the same criminal act, even if the defendants are not charged in the same case or with the same crimes. Regardless, the definition does not fit in this case: Jurado and Dominguez were not charged in the same case or with the same crimes, although the State did file charges against both men involving the same victims and the same event.
Moreover, tlie facts of this case underscore the appropriateness of distinguishing between an accomplice whose guilt or innocence will be determined by the jury which hears the accomplice’s testimony and an accomplice whose guilt or innocence is not being judged by the juiy hearing the testimony. A jury has reason to view with caution the testimony of an accomplice who, like Jurado, received a benefit from testifying—the State’s agreement to amend charges to a lesser included offense in exchange for testimony. In fact, this is exactly the situation the cautionaiy instruction is designed to address. And it did so without singling out Dominguez, who chose not to testify in his defense.
In summary, the trial court erred in extending the holding in Land to circumstances where an accomplice is not being tried before the same jury.
Not Reversible Error
We must next determine whether this error requires us to reverse all of Dominguez’ convictions. In arguing for reversal, Dominguez suggests he is entitled to the more favorable harmless error standard of review instead of the clearly erroneous standard applied in Issue I. See K.S.A. 22-3414(3); State v. Plummer, 295 Kan. 156, 162-63, 283 P.3d 202 (2012). He bases this position on the fact he requested the instruction.
Nevertheless, as we have discussed, Dominguez’ counsel also told the trial court it was disingenuous to suggest the instruction was appropriate. Under those circumstances, we conclude Dominguez is not entitled to the more favorable standard of review. This court recently considered a situation where defense counsel stated that he was “ 'not going to agree’ with not giving the instruction” but did not advance any legal arguments that would have explained why the instruction should be given. State v. Littlejohn, 298 Kan. 632, 316 P.3d 136 (2014). This court found Littlejohn’s situation akin to one where a defendant objects to an instruction on one ground at trial but asserts a different argument on appeal. In those circumstances this court has held the clearly erroneous standard of review applies. 298 Kan. at 644-46; see State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010); see also Tapia, 295 Kan. at 995 (clearly erroneous standard of review applied on appeal to defendant’s juiy instruction issue when defendant’s request for jury instruction before district court was interpreted as being so indistinct as to not clearly communicate the request or, alternatively, as being different from the request being made on appeal).
In the same way, a clearly erroneous standard of review applies in the present case where Dominguez basically conceded at the instructions conference that the instruction was not appropriate. See K.S.A. 22-3414(3); State v. Marshall, 294 Kan. 850, 867, 281 P.3d 1112 (2012). Hence, reversal is only required if we are firmly convinced the jury would have reached a different verdict had the instruction been given. Dominguez maintains the burden of establishing clear error under K.S.A. 22-3414(3). See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012). He fails to carry this burden.
This court has stated:
“[N]o reversible error occurs due to a trial court’s failure to give a cautionary accomplice witness instruction if a witness’ testimony is corroborated by other evidence and the witness’ testimony does not provide the sole basis for a resulting conviction. [Citations omitted.]. . .
“Further, a failure to provide the jury with the cautionary accomplice witness instruction of PIK Crim. 3d 52.18 is not error when the defendant’s guilt is plain or when tire jury is cautioned about the weight to be accorded testimonial evidence in other instructions. [Citation omitted.]” Simmons, 282 Kan. at 740.
Consequently, we begin our analysis by examining the extent and importance of Jurado’s testimony, as well as any corroborating testimony. See Tapia, 295 Kan. at 996-97; State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995); State v. Moore, 229 Kan. 73, 80-81, 622 P.2d 631 (1981); see also State v. Moody, 223 Kan. 699, 702-03, 576 P.2d 637 (failure to give accomplice instruction can create trial error, particularly when the accomplice testimony is uncorroborated), cert. denied 439 U.S. 894 (1978).
While Jurado’s testimony was damaging to Dominguez’ defense, it was largely corroborated by Garcia-Velazquez’ testimony. The one significant point of disagreement between Jurado and Garcia-Velazquez was how the rifle came to be in the SUV: Jurado testified that Dominguez wanted to buy a gun, so Jurado contacted his uncle who sold die rifle to Dominguez behind Jurado’s house and placed it inside Jurado’s SUV; Garcia-Velazquez testified Jurado carried tire rifle wrapped in a blanket from inside the house and took it out to Jurado’s SUV. Garcia-Velazquez’ version is arguably more favorable to Dominguez on tire element of premeditation. Nevertheless, the evidence was undisputed that it was obvious there was a rifle in the SUV, and Dominguez would have been aware of the rifle’s presence from the time they left the party until they drove to Leyva’s house. Even under Garcia-Velazquez’ explanation, the jury could infer Jurado and Dominguez had discussed taking tire gun with them and had a plan and purpose for doing so. Also, defense counsel cross-examined Jurado on the inconsistency between his version of how Dominguez acquired the rifle and Garcia-Velazquez’ version, and Jurado admitted that if his uncle were questioned about tire firearm sale, he would probably not corroborate Jurado’s version.
Witnesses other than Garcia-Velazquez corroborated many other aspects of Jurado’s testimony. Rosales identified the shooter as being dressed in clothes like those worn earlier in the evening by Dominguez. Also, several witnesses testified to Dominguez’ reaction when, in Dominguez’ view, Jurado had not stood up for himself when Leyva failed to show Jurado a proper level of respect at.the bar. Rosales and others testified to the exchange between Leyva and Jurado, and Leyva’s wife testified she believed Dominguez had cussed at her and Leyva as they were leaving the bar.
In addition, defense counsel in the first trial had effectively called into question Jurado’s veracity, and the entire transcript, including defense counsel’s cross-examination of Jurado, was read into the record at the second trial. Defense counsel had elicited that Jurado was initially charged with more serious offenses—aiding and abetting first-degree murder, criminal discharge of a firearm at an occupied building, and solicitation to commit intentional second-degree murder-—-and Jurado avoided longer prison time by pleading no contest to solicitation to commit the second-degree murder of Leyva and aiding and abetting tire discharge of a firearm at an occupied building belonging to Leyva. Also, on cross-exami nation Jurado admitted he had lied to investigating law enforcement officers. Finally, defense counsel questioned Jurado about why he fled the community after the shooting if he had done nothing wrong and why he pleaded guilty to offenses, such as solicitation to commit second-degree murder. (Jurado actually pleaded no contest.)
In addition to the thorough cross-examination of Jurado and the corroboration of some of Jurado’s testimony through other witnesses, the jury was given the general jury instruction on witness credibility. Instruction No. 2, which conformed to PIK Crim. 3d 51.04 (Consideration of Evidence), stated, in part: “In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses.” Finally, there was strong evidence of Dominguez’ guilt on tire charges of aggravated battery and discharge of a firearm at an occupied building.
Considered in this light, Dominguez fails to convince us that the cautionary accomplice instruction would have changed the jury’s verdict.
Voluntary Intoxication Instruction
For his final issue regarding the jury instructions, Dominguez argues that the trial court committed clear error in failing to give a voluntary intoxication instruction. See PIK Crim. 3d 54.12-A-l (instructing that voluntary intoxication may be a defense where “the evidence indicates that such intoxication impaired a defendant’s mental faculties to the extent that [he] [she] was incapable of forming the necessary state of mind”).
Legally and Factually Appropriate
First, we must consider whether it was error to fail to give the instruction. This inquiry requires us to consider whether the voluntary intoxication instruction was legally and factually appropriate.
As to legal appropriateness, a defendant may rely on the defense of voluntary intoxication when the crime charged requires a specific intent. State v. Gadelkarim, 247 Kan. 505, Syl. ¶ 1, 802 P.2d 507 (1990). In a proper case, such as one involving a charge of premeditated first-degree murder, voluntary intoxication may be used as a valid defense and would, therefore, be legally appropriate. See Ellmaker, 289 Kan. at 1142 (State required to prove specific intent to kill and premeditation to convict a defendant of premeditated first-degree murder).
The stumbling block Dominguez faces, however, is that a voluntary intoxication instruction was not factually appropriate. Notably, voluntary intoxication is not a valid defense if there is no evidence presented to demonstrate that the defendant was so intoxicated that his or her ability to form the requisite intent was impaired. State v. Hernandez, 292 Kan. 598, 607, 257 P.3d 767 (2011); State v. Johnson, 258 Kan. 475, 485-86, 905 P.2d 94 (1995), overruled on other grounds by State v. Everett, 296 Kan. 1039, 297 P.3d 292 (2013); State v. Brown, 258 Kan. 374, 386, 904 P.2d 985 (1995); see also State v. Kessler, 276 Kan. 202, 210-11, 73 P.3d 761 (2003) (in order for voluntary intoxication instruction to be required, there must be evidence defendant was so intoxicated he or she was robbed of mental faculties).
Here, Dominguez bases his argument on evidence that he had been drinking at the bar and Jurado’s party. But this evidence does not establish how much alcohol Dominguez drank. More critically, Dominguez points to no evidence presented at trial that would have convinced a jury he was so intoxicated as to be unable to form the specific intent necessary for the commission of premeditated first-degree murder. See Hernandez, 292 Kan. at 607 (evidence that defendant consumed alcohol and marijuana, or that defendant was “ ‘high’ ” or “ ‘intoxicated’ ” does not permit an inference that defendant was so impaired that he was unable to form requisite intent). In fact, there was testimony that just before the shootings, Dominguez was communicating with Jurado and test-firing the rifle.
Without more, Dominguez’ voluntary intoxication arguments fail. We, therefore, conclude a voluntary intoxication instruction was not factually appropriate in this case. Therefore, there is no need to move to the reversibility step of the clearly erroneous standard of review. The trial court’s failure to give the instruction was not clearly erroneous.
Hard 50 Sentence
Finally, Dominguez argues his hard 50 sentence is unconstitutional because a jury did not determine the underlying facts that allowed for increasing his minimum sentence. We do not reach this issue, however, because we are reversing Dominguez’ first-degree murder conviction. The result of this reversal is that his hard 50 sentence for first-degree murdér must be and is vacated. Consequently, his attack on his hard 50 sentence is moot and will not be addressed. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (as a general rule, appellate courts do not decide moot questions).
Conclusion
In summary, we reverse Dominguez’ first-degree murder conviction and vacate his hard 50 sentence for first-degree murder. We affirm his convictions for aggravated battery and discharge of a firearm at an occupied dwelling.
Affirmed in part, reversed and vacated in part, and remanded. | [
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The opinion of the court was delivered by
Biles, J.:
Terry L. Gilbert appeals the summary denial of a pro se motion entitled “Motion to Correct Illegal Sentence,” which was filed more than 10 years after he was sentenced for felony murder. Gilbert claims his sentence is illegal because the standard used at his trial for issuing lesser included offense instructions in felony-murder cases was overruled over a decade later. See State v. Berry, 292 Kan. 493, 513-14, 254 P.3d 1276 (2011) (overruling judicially created felony-murder instruction rule that had permitted lesser included offense instructions only when evidence of the underlying felony was weak, inconclusive, or conflicting), superseded by statute as stated in State v. Phillips, 295 Kan. 929, 934, 287 P.3d 245 (2012).
The district court treated the pro se motion as a motion to correct an illegal sentence, and Gilbert’s appellate counsel argues the pro se motion should have been liberally construed as invoking K.S.A. 60-1507(a) (prisoner in custody may claim sentence imposed in violation of state or federal Constitution). Had this happened, Gilbert reasons, the district court should have determined whether Gilbert’s untimely claim could be brought under the manifest injustice exception in K.S.A. 60-1507(f)(2) (court may extend 1-year time limitation in K.S.A. 60-1507[f][l] to prevent manifest injustice).
We affirm the district court’s construction of Gilbert’s pleading as a motion to correct an illegal sentence. We acknowledge pro se pleadings are to be liberally construed to give effect to their content rather than adhering to any labels and forms used to articulate the pro se litigant’s arguments. State v. Kelly, 291 Kan. 563, 565-66, 244 P.3d 639 (2010) (based on allegations in the pleading, district court erred in construing pro se motion only under K.S.A. 60-1507, rather than as a motion to withdraw plea). But the content of Gilbert’s motion specifically cites and applies rules governing motions to correct illegal sentences. It does not allege the manifest injustice required to bring an untimely motion under K.S.A. 60-1507. Liberal rules of construction cannot transform the reality of a pleading’s content or the arguments being advanced, even when a litigant is pro se.
We also affirm the summary denial of the motion because Gilbert’s jury instruction claim cannot be raised in a motion to correct an illegal sentence. Gilbert challenges his conviction, not the sentence imposed. See State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
Factual and Procedural Background
In 1999, a juiy convicted Gilbert of first-degree felony murder, aggravated robbery, aggravated burglary, and criminal damage to property for crimes occurring on or around September 14, 1998. He was sentenced to life imprisonment for the murder conviction. In his direct appeal, Gilbert argued in part that he was prejudiced by die district court’s failure to issue lesser included offense instructions for felony murder. The court held Gilbert was not entitled to lesser included offense instructions under the rule prevailing at that time that such instructions were only required if evidence of the underlying felony was weak, inconclusive, or conflicting. Gilbert’s convictions were affirmed. State v. Gilbert, 272 Kan. 209, 213-15, 32 P.3d 713 (2001). In 2011, this court overruled that prevailing rule.
In Berry, this court held that felony murder should no longer be treated differently tiran other crimes for the purposes of lesser included offense instructions, noting K.S.A. 22-3414’s requirement that lesser included offense instructions should be issued if there is some evidence that would reasonably justify the conviction of the lesser included crime also applied to felony-murder instructions. Berry, 292 Kan. at 513-14. Pertinent to this appeal, the Berry court also held its ruling should be applied to all pending cases not yet final. 292 Kan. 493, Syl. ¶ 7.
But Berry’s impact was short-lived. The legislature modified the statute governing lesser included offenses to explicitly state there are no lesser included offenses to felony murder. K.S.A. 2013 Supp. 21-5109(b)(l) (effective July 1, 2012). Gilbert filed his pro se motion entitled “Motion to Correct Illegal Sentence” on August 24, 2012.
Citing Berry, Gilbert argued the district court committed structural error in 1999 and deprived him of his defense theory by failing to instruct the jury on lesser included offenses of felony murder. And recognizing Berry applied to pending cases not yet final, Gilbert argued there is no finality to an illegal sentence because an illegal sentence can be corrected at any time under K.S.A. 22-3504(1) (“The court may correct an illegal sentence at any time.”). Gilbert argued his sentence was illegal because his felony-murder sentence was “a product of [the district] court’s failure to conform to the statutory provision K.S.A. 22-3414(3) and K.S.A. 22-2103 as a consequence.” K.S.A. 22-2103 provides: “This code is intended to provide for the just determination of eveiy criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”
The State responded that Gilbert’s sentence was not illegal. It noted the trial court had jurisdiction and that the sentence both conformed to the applicable statutory provisions and was not ambiguous. The State also addressed the merits of Gilbert’s claim that Berry should apply to his collateral attack on the judgment. It recited the general principle that new rules of criminal procedure apply only to cases not yet final. It also argued Berry was inapplicable because Gilbert’s convictions were final, i.e., his direct appeal to this court was concluded. The State further argued that any limited exceptions to that rule did not apply, citing Hollingsworth v. State, No. 106,357, 2012 WL 718971, at *7 (Kan. App. 2012) (unpublished opinion) (declining to apply Berry retroactively in collateral attack on conviction because conviction was final in 2009), rev. denied 297 Kan. 1245 (2013).
The district court summarily denied Gilbert’s motion, finding it raised no genuine factual or legal issues. It addressed the substance of Gilbert’s Berry argument “[notwithstanding the fact that Mr. Gilbert raises alleged trial errors in a Motion to Correct Illegal Sentence.” It held Gilbert’s case was not pending at the time Berry was decided, rendering Berry inapplicable.
Gilbert appealed. This court’s jurisdiction arises under K.S.A. 2013 Supp. 22-3601(b)(3); see State v. Pennington, 288 Kan. 599, 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal).
Summary Denial of Motion to Correct Illegal Sentence
The first issue is whether the district court erred by summarily denying Gilbert’s motion.
Standard of Revieio
An appellate court reviews a district court’s summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504 de novo because the reviewing court has the same access to the motions, records, and files. Trotter, 296 Kan. at 901. This court, like the district court, must determine whether the documents conclusively show the defendant is not entitled to relief. 296 Kan. at 901-02.
Whether a sentence is illegal is a question of law over which this court has unlimited review. This court has defined an “illegal sentence” under K.S.A. 22-3504 as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutoiy provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at 902.
Discussion
Gilbert argues his instructional error claim fits within the second category—his sentence does not conform to applicable statutory provisions—because failure to issue lesser included offense instructions on the felony-murder charge violated K.S.A. 22-3414(3), which requires lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.”
As the district court stated, Gilbert’s instructional error claim is a challenge to his conviction, not his sentence, This is evident because the proper remedy for the failure to issue a lesser included offense instruction is to reverse Gilbert’s conviction—not impose a different sentence. See State v. Qualls, 297 Kan. 61, 72-73, 298 P.3d 311 (2013) (reversing conviction for failure to instruct on lesser included offense of voluntary manslaughter).
K.S.A. 22-3504 is solely a vehicle to correct a sentence. It is not a mechanism to reverse a conviction. Trotter, 296 Kan. at 902; State v. Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007) (stating K.S.A. 22-3504 is “not a vehicle for a collateral attack on a conviction”). This court has repeatedly applied this principle to reject a motion to correct an illegal sentence in the context of challenges to a defective complaint, noting the defendant must obtain a reversal of his conviction to overturn his sentence based on a defective complaint. Trotter, 296 Kan. at 904; State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). Given this well established rule, the district court did not err by summarily denying Gilbert’s instructional error claim in the context of a motion to correct an illegal sentence.
Construing Pleading as a K.S.A. 60-1507 Motion
Gilbert also argues the district court erred by treating his motion as a motion to correct an illegal sentence. He contends tire district court should have treated it as a K.S.A. 60-1507 motion.
Standard of Review
“Pro se pleadings are liberally construed, giving effect to the pleading’s content rather than the labels and forms used to articulate the defendant’s arguments. A defendant’s failure to cite the correct statutory grounds for his or her claim is immaterial.” Kelly, 291 Kan. at 565. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review. 291 Kan. at 565.
Discussion
K.S.A. 60-1507(f) requires a motion under the statute to be brought within 1 year of the final order of the last appellate court or the denial of a petition for writ of certiorari to the United States Supreme Court. But that time limitation may be extended “to prevent a manifest injustice.” K.S.A. 60-1507(f)(2). Gilbert recognizes the 1-year time limit expired years ago, so he necessarily argues the district court should have determined whether resolving his motion was necessary to prevent manifest injustice—assuming the pleading may properly be construed as being brought under K.S.A. 60-1507.
Under this court’s rules of construction, the pleading’s content governs. Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013); Kelly, 291 Kan. at 565. Gilbert titled his pleading as a “Motion to Correct Illegal Sentence.” And he acknowledges this court has defined an illegal sentence as “one which does not conform to die statutory provisions.” Applying that rule, he argues his sentence does not conform to the statutory provisions governing lesser included offenses in light of this court’s Berry decision. Moreover, Gilbert specifically argues he can raise this issue now despite this court’s holding in Berry that the new rule only applies to pending cases because that rule does not apply to motions to correct an illegal sentence. Gilbert’s theory is that “there is no finality in an illegal sentence.”
The substance of his pleading is that of a motion to correct an illegal sentence. There is nothing in it that can reasonably be read as raising a K.S.A. 60-1507 motion. Most noticeably, Gilbert claimed his motion was timely because it was a motion to correct an illegal sentence, which carries no time restriction, as opposed to a K.S.A. 60-1507 motion, which does. K.S.A. 60-1507(f). And he did not argue the manifest injustice necessary to permit an untimely K.S.A. 60-1507 motion.
In State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013), this court described manifest injustice as meaning “ ‘ “obviously unfair” ’ ” or “ ‘ “shocking to the conscience.” ’ ” In that case, we upheld the summary dismissal of a K.S.A. 60-1507 motion when the defendant failed to cite any facts supporting his bald assertion of manifest injustice. The Holt court held that the defendant failed to demonstrate he was entitled to the K.S.A. 60-1507(f) time extension because he did not point to any specific facts supporting his claim of manifest injustice and held the district court correctly declined to reach the merits of the claim. 298 Kan. at 481.
In his motion, Gilbert did not assert manifest injustice, much less facts supporting such a contention. We hold that the failure to allege manifest injustice not only weighs against construing the motion as one falling under K.S.A. 60-1507, but it also supports a conclusion that any K.S.A. 60-1507 argument was insufficiently raised to warrant review by the district court.
Affirmed.
Moritz, J., not participating. | [
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The opinion of the court was delivered by
Biles, J.:
Jose Santos-Vega appeals his convictions for aggravated indecent liberties with a child and the corresponding hard 25 life sentences imposed under Jessica’s Law, K.S.A. 21-4643. He raises six issues: (1) whether alternative means existed for his aggravated indecent liberties charges; (2) whether the district court erred in failing to give a unanimity jury instruction; (3) whether the district court erred in denying a mistrial after a law enforcement officer violated an order in limine by volunteering that Santos-Vega invoked his postarrest right to remain silent and describing the circumstances of that invocation; (4) whether cumulative error denied Santos-Vega a fair trial; (5) whether his hard 25 life sentences are disproportionate in violation of § 9 of the Kansas Constitution Bill of Rights; and (6) whether the lifetime postrelease supervision and electronic monitoring portions of his sentences are illegal.
We reverse Santos-Vega’s convictions and remand his case to the district court for a new trial. We hold the cumulative impact of the failure to give a unanimity instruction in this multiple acts case and the detective’s violation of an order in limine, which implicated Santos-Vega’s constitutional right to remain silent and violated his right to due process, substantially prejudiced his right to a fair trial. As the party benefitting from both trial errors, the State failed to prove beyond a reasonable doubt that these errors did not contribute to the guilty verdicts. We do not reach the sentencing issues.
Factual and Procedural Background
The State charged Santos-Vega with four sex offenses involving two children who occasionally stayed at the home where Santos-Vega was living during the summer of 2008. A jury acquitted him of two counts of rape of 15-year-old S.S., but convicted him of two counts of aggravated indecent liberties with a child under K.S.A. 21-3504(a)(3)(A) as to 11-year-old S.T. We focus on the allegations involving S.T. because of those convictions.
Santos-Vega lived with his girlfriend, LaT’isha Stone, in the Kansas City, Kansas, home of her mother and her mother’s boyfriend, who was S.T.’s father. S.T. came to stay with her father for about a month around the Fourth of July in 2008. .
On March 16, 2009, S.S. reported to police that Santos-Vega had raped her repeatedly during June 2008 while S.S. was staying at the home. During the course of investigating those claims, S.S. said S.T. had told her and the other occupants of the house that Santos-Vega was touching S.T. in an inappropriate manner. S.T. was referred to Sunflower House, a children’s advocacy center in the Kansas City metropolitan area, where she was interviewed.
A video recording of S.T.’s Sunflower House interview was played for the jury. In it, S.T. said she stayed with her dad for about a month around July 4, 2008. She acknowledged she was at Sunflower House to talk about Santos-Vega touching her in the “wrong spot.” She said this touching happened three times.
The first time, she said, occurred while she was asleep facing the back of a living room couch when Santos-Vega woke her up, put his hand under her pants and panties, and touched her with the palm of his hand on her “hoo hoo,” which she later identified on a diagram as her vagina. She said she knew it was Santos-Vega because she recognized his voice telling her to wake up. She guessed the touch lasted 5 minutes. She said she told Santos-Vega to stop, but he continued until she slapped him on the face and he went into Stone’s bedroom. S.T. said she thought this happened about 6 a.m., but was not sure. When Santos-Vega left, she said she thought she got up to go to the bathroom and then went outside to jump on the trampoline.
The second incident, S.T. said, happened the next day and occurred the same way as the first. She said the third incident happened the day after the second and was also the same. She said she believed all incidents took place around 6 a.m. and that another child, 7-year-old U.H., was also sleeping in the living room when the incidents occurred.
S.T. said she told Stone what happened 4 or 5 days after the last incident and that Stone made her tell her dad, Stone’s mother, and S.S. as a group. When asked what her dad did in response, she guessed that he had called and told someone to arrange the Sunflower House interview.
At trial, S.T. testified Santos-Vega touched her on her “hoo hoo” with his hand, under her clothes. She could not recall what, if anything, he was doing with his hand. She said Santos-Vega was standing in front of her when she woke, did not say anything, and touched her for about 3 seconds. She said she then slapped him twice. The second incident happened the next day, when S.T. said the same thing happened. The third happened the day after that, and was the same, except it ended when S.T. got up to use the restroom. S.T. said the third incident was the last.
On cross-examination, S.T. said she told her family the first and third incidents might have happened at 6 a.m. and the second might have happened at 11 p.m. She said she did not see Santos-Vega but recognized his voice. She then admitted Santos-Vega probably did not say anything.
The other witnesses’ testimony about what S.T. had told them varied. Stone testified S.T. told her Santos-Vega touched her on die upper leg but could not remember where Santos-Vega touched her when her father asked. S.T.’s father testified that S.T. had said Santos-Vega touched her above the thigh, below die belly button, but above the genitals. Stone also testified that she had a dog that would scratch and cry if anyone got up in the night, implying that Santos-Vega could not have left their room without her knowing about it.
Santos-Vega testified and denied sexually molesting or touching either child or doing anything inappropriate to them. He said he worked as a painter during the summer of 2008, got up around 6:15 a.m., started work around 6:30 or 7 a.m., returning home around 5 p.m. or later. He said Stone’s mother usually got up around 6 a.m. to feed her cats. He said Stone was always with him when he was at home, except when he was in the backyard with S.T.’s dad. He said he always woke Stone up when he got up out of their bed and would tell Stone if he got up at night. He emphasized there was never a time when he got up at night without letting Stone know where he was going or what he was doing.
U.H., the 7-year-old who also stayed at the home that summer, testified as a defense witness. She said she slept on the living room floor next to where S.T. slept on the couch. U.H. said she never saw anything odd going on with S.T. and never saw or heard anyone come into the room while she was sleeping there. On cross-examination by the State, U.H. admitted she was a somewhat heavy sleeper.
Additional facts specific to the unanimity instruction and the mistrial motion are discussed in the analysis.
The jury returned guilty verdicts on the two aggravated indecent liberties charges involving S.T. The district court sentenced Santos-Vega to concurrent hard 25 life sentences. Santos-Vega timely appealed. Jurisdiction is appropriate under K.S.A. 22-3601(b)(l) (life imprisonment, off-grid crime; appeal docketed prior to July 1, 2011).
Alternative Means
Santos-Vega argues first that K.S.A. 21-3504(a)(3)(A) sets out alternative means of committing aggravated indecent liberties with a child based on its requirement that the offender specifically intend “to arouse or to satisfy the sexual desires of either the child or the offender, or both.” This argument is without merit.
Since Santos-Vega filed his appeal, this court has consistently held that the phrase referring to arousing or satisfying the sexual desires of “either the child or the offender, or both” does not create alternative means of committing aggravated indecent liberties with a child. State v. Newcomb, 296 Kan. 1012, 1015-16, 298 P.3d 285 (2013); State v. Britt, 295 Kan. 1018, 1025-26, 287 P.3d 905 (2012); State v. Brown, 295 Kan. 181, 201-02, 284 P.3d 977 (2012). At oral argument, Santos-Vega s counsel conceded this issue has been resolved against his client.
Unanimous Jury Verdict
Santos-Vega next 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 upon the specific act underlying each of his two convictions. He notes the State charged him with two identically worded counts of aggravated indecent liberties with a child, but S.T. testified about three incidents, each occurring on a different day.
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 jury unanimously agreed upon any particular act to convict on each specific charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007).
The State agrees it presented a multiple acts case and did not inform the jury which act to rely on for each charge. Because of that, the State concedes the district court erred by not instructing the jury to unanimously agree on the specific act underlying each conviction. But the State attempts to salvage these convictions by arguing the omission was not clear error requiring reversal. Santos-Vega acknowledges he did not request a unanimity instruction.
Standard of Review
A defendant has a right to a unanimous jury verdict. See K.S.A. 22-3421; K.S.A. 22-3423(1)(d); Foster, 290 Kan. at 712. When a violation of this right is asserted, an appellate court must determine first whether it is presented with a multiple acts case. This is a question of law over which the appellate court exercises unlimited review. Voyles, 284 Kan. at 244. if the case is a multiple acts case, the appellate court must then determine whether error was committed because either the State must have informed tire jury which act to rely upon for each charge during its deliberations or the district court must have instructed the jury to agree on the specific criminal act for each charge in order to convict. The failure to elect or instruct is error. See 284 Kan. at 244-45. When there is error, the final question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or its absence not objected to is the clearly erroneous standard articulated in K.S.A. 22-3414(3). 284 Kan. at 252-53. In other words, 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).
Discussion
The parties correctly recognize error occurred because the State did not inform the jury which act to rely upon in its deliberations to convict Santos-Vega on each count of aggravated indecent liberties and the district court failed to give a unanimity instruction. These failures are particularly noteworthy in this case because during its deliberations the jury actually questioned why Santos-Vega was charged with two offenses when the testimony showed S.T. was fondled three distinct times. Inexplicably, tire district court simply referred the jury back to the original written instructions without addressing the jury’s actual inquiry. The jury’s question should have triggered recognition that a multiple acts problem pre sented itself and that a unanimity instruction was an appropriate response, which would have had no adverse .consequences on review. These circumstances leave us with the only remaining question whether there was clear error as defined in our caselaw.
In Voyles, the failure to give a unanimity instruction was not harmless and amounted to clear error under the facts of that case. 284 Kan. at 255. The defendant was convicted of four counts of aggravated criminal sodomy and four counts of aggravated indecent solicitation—two of each offense for each of the two victims. The problem was that the evidence yielded “a number of factually separate incidents . . . from which the jury could have found [defendant] guilty of aggravated criminal sodomy and/or aggravated indecent solicitation of a child.” 284 Kan. at 253. The court noted at least 20 separate acts could be inferred from the victims’ differing accounts to support the convictions on the 8 charged offenses. This was because the victims’ and other witnesses’ trial testimonies were inconsistent as to when, where, and how many times incidents occurred over a several month period. 284 Kan. at 253-54.
The failure to give a unanimity instruction in Voyles was clear error because the jury had several incidents from which to choose—in part because of inconsistent victim testimony—in convicting defendant on each count. Accordingly, the court could not ascertain whether the jury believed the aggravated solicitation counts related to each victim were based on the same fact episodes as the aggravated sodomy counts. 284 Kan. at 253-54.
But the court reached a different result in Foster, holding that the failure to give a unanimity instruction was harmless, i.e., it did not amount to clear error. 290 Kan. at 716. In Foster, the victim testified the defendant raped her twice, but the defendant was charged with only one count of rape. Foster’s defense was a general denial. On appeal, Foster argued Voyles mandated reversal because the victim gave different accounts of the crime, not providing all the details until her final statement to police.
The Foster court rejected this argument because the victim’s trial testimony was consistent with her police statement and there were never any significant contradictions from any other version of the events given by the victim. The court distinguished Voyles, noting that the inconsistent statements at issue in that case specifically dealt with the dates, times, locations, and other relevant details to the “separate-but-distinct issue in the multiple acts analysis.” 290 Kan. at 716. In contrast, the court explained: “The [Foster] jury did not have to pick among contradicting accounts from differing victim[s’] statements to piece together the elements of the offense charged in order to find [the defendant] committed rape.” 290 Kan. at 716. In addition, there was other evidénce in Foster such as truck stop receipts and DNA that supported the victim’s testimony and refuted Foster’s alibi.
Reasonable people might differ in assessing whether the unanimity error in this cáse requires reversal. The facts supporting the aggravated indecent liberties charges against Santos-Vega lie somewhere between the circumstances described in Foster and Voyles. For example, S.T.’s Sunflower House interview was consistent with her trial testimony as to where and how many times the incidents occurred and the general manner in which they were perpetrated. But the testimony of other occupants of the house, including S.T.’s father, about what S.T. had told them had happened added important variations to her version of events. And unlike Foster, there was no physical evidence to corroborate S.T.’s testimony or refute Santos-Vega’s general denial. Finally, we have the jury itself expressing some bewilderment with the lack of alignment between the three incidents described and the two counts charged against the defendant, which should have prompted the trial court to take some remedial step. See State v. Wade, 295 Kan. 916, 922, 287 P.3d 237 (2012) (commenting about the “common prophylaxis” of repeating already given PIK instructions as answers to juiy questions and observing that “[o]ne might ponder how obvious it would be to a lay juror that the judge would answer the jury’s legal question with definitions that had absolutely nothing to do with the question”).
In the end, it is unnecessary to reach a conclusion whether this unanimity error standing alone is enough to firmly convince this court the jury would have returned a different verdict if the proper election had been made by the State or a unanimity instruction had been given. As we discuss next, a second error of substantial magnitude combines with the unanimity error to compel reversal for a new trial.
Denial of the Motion for Mistrial
Santos-Vega argues next that the district court erred when it denied his motion for a mistrial after a detective, who was called as a State’s witness, violated an order in limine and Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), by testifying that Santos-Vega invoked his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966). Santos-Vega contends this violated his constitutional rights. Additional facts are necessary to put this claim into context.
Additional Facts
Prior to trial, the district court granted Santos-Vega’s request for an order in limine prohibiting the State, its witnesses, and others acting on its behalf from “presenting any evidence, statement, or insinuation” concerning “any comment, reference, or insinuation that [Santos-Vega] did not cooperate with the investigation of the charges while exercising his constitutional rights to remain silent and seek the assistance of counsel.”
As part of its case-in-chief, the State called detective John Hudson, who had investigated the charges against Santos-Vega. During cross-examination by defense counsel, Hudson described a probable cause affidavit he had prepared, when the following exchange occurred:
“Q. Okay. And this affidavit, Detective Hudson, was prepared with what information that you had in your possession at the time?
“A. I had the information based on the statements, based on the allegations made by the—by [S.T.] and [S.S.], and which time it was forwarded. Your client refused to give me a statement, so I didn’t have his version of the events. He was given an opportunity to, he asked for an attorney and so he invoked his rights, so I did not get his version of the events. He was explained his charges, what was going on. He got this look in his eye and he sunk his head down like—and he said I want an attorney.” (Emphasis added.)
Santos-Vega’s attorney promptly asked to approach the bench and moved for a mistrial, arguing the detective not only violated the pretrial order in limine, but also made “a negative inference with regard to my client exercising his constitutional right to remain silent in this matter.” Counsel characterized this testimony as unsolicited, volunteered, and highly prejudicial.
The State responded that the detective’s testimony was responsive to defense counsel’s open-ended question and contended further that defense counsel should have controlled the witness better and “cut him off’ if the answer drifted away from what had been asked. The district judge ruled:
“Well, I understand. The response probably expanded upon what you were looking for, but, when you’re getting into the affidavit, you know, you’re asking him what information he had at the time it was prepared, and so—I mean I’m—
“ . . . You can get into drat he had a constitutional right to remain silent and so forth, but you’ve also represented to the jury that [Santos-Vega]’s going to take the stand, and so he will give his explanation at that time, so at this point I’m denying the motion for a mistrial. Let’s move on.”
After this ruling, Santos-Vega’s attorney resumed cross-examination, during which he initiated two more exchanges with the detective at different points in the questioning about Santos-Vega’s Miranda invocation. The detective testified the invocation was noted in the affidavit; that the detective believed all citizens enjoy the right to consult attorneys before divulging information to the police; and admitted the detective did not hold the invocation against Santos-Vega.
The State did not reference the Miranda invocation during the remainder of the trial, and neither counsel requested a special instruction or admonition. The district court did not give a special instruction or admonition or take any remedial action on its own to minimize the detective’s statements.
After his convictions, Santos-Vega moved for a new trial due in part to the detective’s revelation of and characterizations about the Miranda invocation. He argued the statements violated tire order in limine and prejudiced Santos-Vega before the jury. The district judge denied the motion based on its earlier ruling during trial, adding, “[I] don’t see anything at this point which would cause me to review that and come to a different conclusion.”
Standard of Review
A district court may declare a mistrial if prejudicial conduct, in or outside tire courtroom, makes it impossible to proceed without injustice to the defendant or the prosecution. See K.S.A. 22-3423(l)(c). When a district court evaluates a mistrial motion it employs a two-step process. First, it determines if there was a fundamental failure in the proceeding. If so, it next determines if it is possible to continue without injustice by examining whether the damaging affect can be removed by admonition, jury instruction, or other action. If not, the court must determine whether the degree of prejudice results in an injustice; and if so, it should then declare a mistrial. State v. McCullough, 293 Kan. 970, 980, 270 P.3d 1142 (2012) (citing State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]).
On appeal, the district court’s disposition of the motion is reviewed for abuse of discretion. McCullough, 293 Kan. at 980-81. Abuse of discretion occurs when judicial action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) 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. The reviewing court also follows a two-step process to determine whether the district court abused its discretion in determining if there was a fundamental failure in the proceeding and whether it abused its discretion in deciding whether the conduct resulted in prejudice that could not be cured or mitigated through juiy admonition or instruction, resulting in injustice. 293 Kan. at 980-81 (citing Ward, 292 Kan. at 550-51).
To determine whether an error makes it impossible to proceed with the trial without injustice and requires a mistrial, a court must assess whether the fundamental failure affected a party’s substantial rights under the harmless error statutes, K.S.A. 60-261 and K.S.A. 60-2105, if a right guaranteed by the United States Constitution is not implicated; but if a constitutional right is implicated, the error must be assessed under the constitutional harmless error standard in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). See Ward, 292 Kan. at 569.
Under either scenario, the test is whether the error affected substantial rights, meaning whether the error affected the trial’s outcome. If the fundamental failure infringes upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error standard defined in Chapman, in which case the error may be declared harmless when the party benefitting from the error proves beyond a reasonable doubt the error will not or did not affect the outcome of the trial in light of the entire record, i.e., when there is no reasonable possibility the error contributed to the verdict. Ward, 292 Kan. at 569. An appellate court uses the same analysis to review the trial court’s determination regarding harmless error. Ward, 292 Kan. at 570.
Discussion
We have no hesitancy in concluding the district court abused its discretion in its handling of the motion for mistrial. The district court’s ruling was based on erroneous conclusions of both fact and law.
At least implicitly, the district court’s inactions suggest it found the detective’s answer was responsive to defense counsel’s question, but that was obviously wrong. The detective was asked only what information he had to prepare the affidavit. He answered instead by explaining what information he did not have and then embellishing on that nonresponsive reply by explaining why he did not have more information, i.e., Santos-Vega “invoked his rights” by refusing to give a statement and asking for an attorney. Even more egregiously, the detective colorfully described how Santos-Vega “got this look in his eye and he sunk his head down . . . and . . . said I want an attorney.” None of this was called for by the simple question from counsel about what information the detective had in his possession in preparing the affidavit.
A similar scenario was faced in State v. Gadelkarim, 256 Kan. 671, 887 P.2d 88 (1994), disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). In Gadelkarim, defense counsel was questioning a police officer about his report and asked if the officer “had determined the defendant could not be interviewed after his arrest,” and the witness said the defendant “invoked Miranda.” 256 Kan. at 684. On appeal, the defendant argued this testimony violated his due process rights. The court noted the invited error rule, but performed a harmless error analysis after observing that “the invited error rule cannot be used as a pretext for the violation of a defendant’s constitutional rights where there is no justification for so doing.” 256 Kan. at 685.
Intrinsically, violations of orders in limine have a prejudicial effect because the requisite for obtaining such orders is showing that the mere offer or reference to the excluded evidence would tend to be prejudicial. The primary purpose of an order in limine, after all, is to prevent prejudice during trial. See State v. Crume, 271 Kan. 87, 100-01, 22 P.3d 1057 (2001) (describing nature and purpose of motions/orders in limine): State v. Galloway, 268 Kan. 682, 690, 1 P.3d 844 (2000) (“The purpose of an order in limine is to exclude inadmissible evidence from trial, recognizing that the mere offer of inadmissible evidence at trial can prejudice the jury.”); see also State v. Sanders, 263 Kan. 317, 323, 949 P.2d 1084 (1997) (noting police testimony that defendant terminated interrogation arguably barred by order in limine—was “possibly improper,” but concluding defendant failed to demonstrate degree of prejudice necessary for reversal); State v. Massey, 242 Kan. 252, 265, 747 P.2d 802 (1987) (holding nonresponsive police testimony in violation of order in limine prejudicial and determining whether, despite violation, it was possible to proceed without injustice to defendant).
The importance of compliance with orders in limine has been underscored by our caselaw imposing a duty on prosecutors to instruct their witnesses about the existence and contents of such orders as a guard against improper testimony. See State v. Kidd, 293 Kan. 591, 598, 265 P.3d 1165 (2011) (considering prosecutorial misconduct when prosecutor conceded he faded to instruct witness about order in limine); State v. Wittsell, 275 Kan. 442, 454, 66 P.3d 831 (2003) (when court issues order in limine, prosecutor has duty to inform State’s witnesses of order and any subjects improper for testimony); Crume, 271 Kan. at 101 (even absent a limiting order, prosecutor has duty to guard against statements made by State’s witnesses containing inadmissible evidence).
Beyond this, the detective’s testimony implicated Santos-Vega’s rights under the United States Constitution. The use of a defendant’s postarrest, post-Miranda silence for impeachment purposes violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Doyle, 426 U.S. at 619; see Gadelkarim, 256 Kan. at 685 (“It is well established that it is constitutionally impermissible for die State to elicit evidence at trial of an accused’s silence at the time of arrest and after the accused has received the Miranda warnings.”); cf. Miranda, 384 U.S. at 444-45. The detective’s testimony clearly imbued tire defendant with guilt as he described how Santos-Vega “got this look in his eye, and he sunk his head down like—and he said I want an attorney.”
The detective’s comments are a textbook example of evidence the State may not use against a defendant under Doyle. The detective established in just a few sentences that Santos-Vega invoked his Miranda rights to remain silent and have an attorney present immediately after the charges were explained to him. See Doyle, 426 U.S. at 619; State v. Tully, 293 Kan. 176, 186-87, 262 P.3d 314 (2011). Both the United States Supreme Court and this court have emphasized the importance of respecting the protections of Doyle because “every post-arrest silence is insolubly ambiguous.” Doyle, 426 U.S. at 617; see Tully, 293 Kan. at 192-93.
We hold that the district court abused its discretion in fading to treat the detective’s volunteered and nonresponsive testimony as a fundamental failure in the trial proceedings. Santos-Vega’s rights as protected by Miranda and Doyle were violated.
We must consider next whether this error was harmless to the degree of certainty applicable to constitutional errors, as defined in Chapman. To do so, we examine the error in the context of the record as a whole, considering how the district court dealt with the error as it arose, including any remedial efforts. Ward, 292 Kan. at 569-70. In this respect, the district court’s response to the motion for mistrial was to suggest that defense counsel dive deeper with the detective into the subject of Santos-Vega’s Miranda invocation, which arguably would have compounded the problem rather than minimized it. The district court gave no admonition or curative instruction to the jury.
In Tully, this court considered the defendant’s claim that the State violated his rights under Miranda and Doyle when it attempted, while cross-examining him, to impeach his credibility by referencing his postarrest silence. The verdict against the defendant hinged upon whether the jury believed the defendant’s or the victim’s testimony about whether intercourse between the two was consensual. After holding the cross-examination violated Miranda and Doyle, we noted such violations necessarily impact defendants’ credibility. See 293 Kan. at 193-94. And because credibility was outcome-determinative, “any error that impacted Tully’s credibility had a reasonable possibility of contributing to the verdict and [could not] be declared harmless.” 293 Kan. at 194.
In Santos-Vega’s case, we are faced with a veiy similar circumstance in that the guilty verdicts had to depend on who the jury believed—S.T. or Santos-Vega. There is no physical evidence to add weight to the State’s case. And it is not beyond reason that the jury rejected Santos-Vega’s denial that any wrongdoing occurred based on nothing more than the detective’s improper embellishments as to how Santos-Vega “got this look in his eye and he sunk his head down . . . and . . . said I want an attorney” when he was told of the charges against him and invoked his constitutional rights. But because the detective’s testimony was not the only defect in Santos-Vega’s trial, we need not rest our decision on this error alone.
Cumulative Error
Cumulative trial errors, when considered collectively, may have so great an impact on the trial as to require a defendant’s convictions to be reversed. The test is whether the errors substantially prejudiced the defendant and denied the defendant a fair trial under the totality of the circumstances. See Tully, 293 Kan. at 205-06, 207. And if any of the errors being aggregated are constitutional in nature, their cumulative effect must be harmless beyond a rea sonable doubt. In conducting this analysis, an appellate court examines the errors in the context of the record as a whole, considering: (1) how the district court dealt with the errors as they arose, including the efficacy, or lack of efficacy, of any remedial efforts; (2) the nature and' number of errors committed and their interrelationship, if any; and (3) the strength of the evidence. See 293 Kan. at 205-06 (citing Ward, 292 Kan. at 569-70, 577). No prejudicial error may be found if the evidence is overwhelming against the defendant. Tully, 293 Kan. at 206 (citing State v. Colston, 290 Kan. 952, Syl. ¶ 15, 235 P.3d 1234 [2010]).
We hold Santos-Vega was denied a fair trial in this credibility contest by the aggregate impact of the Doyle violation, complete with the detective’s histrionic emphasis, and the lack of unanimity between the evidence and the charges being deliberated, which remained unexplained despite the jury’s obvious confusion. The State has not established beyond a reasonable doubt that the combined effect of these errors did not affect the jury’s verdicts. Given this outcome, we need not consider the remaining issues relating to sentencing.
Judgment of the district court is reversed, and the matter is remanded to the district court for a new trial. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Trey T. Meyer, of Lawrence, an attorney admitted to the practice of law in Kansas since 1999.
On September 12, 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 October 3,2013. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 5, 2013.
The hearing panel determined that respondent violated KRPC 1.2 (2013 Kan. Ct. R. Annot. 459) (scope of representation); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice).
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
“DA11422
“7. V.H., a Michigan resident, was served with a petition seeking a declaratory judgment regarding real property located in Shawnee County, Kansas. In Decern- ber, 2010, V.H. retained tlie respondent to represent her interests in the case. V.H. paid the respondent $2,000 for the representation.
“8. In January, 2011, the respondent entered his appearance and filed an answer on behalf of V.H. Thereafter, the respondent failed to respond to discovery requests. The respondent failed to meet the deadline to exchange witness and exhibit lists. Additionally, the respondent failed to adequately communicate with V.H.
“9. During the summer of 2011, the respondent moved his office. The respondent failed to inform V.H. that he had moved his office. V.H. traveled from Michigan to Kansas to meet with the respondent. When V.H. arrived, she discovered that the respondent had moved his office. V.H. was unable to meet with the respondent.
“10. V.H. filed a complaint against the respondent. Later, the respondent entered into the attorney diversion program, pursuant to Kan. Sup. Ct. R. 203(d). In the diversion agreement, the respondent stipulated that he:
. . violated KRPC 1.3 by failing to respond to the discovery requests, to the requests for admissions and [sic] providing a timely witness and exhibit list; and the partes agree Respondent violated KRPC 1.4 for failing to promptly communicate with Complainant.’
The respondent failed to comply with the diversion agreement and the respondent’s participation in the attorney diversion program was terminated. In the diversion agreement, the respondent agreed:
‘that if he failfed] to comply with any of the terms and conditions of diversion, the factual stipulation made at paragraph 8 and the rule violations admitted above will be introduced into evidence at a Formal Hearing held in this matter.’
“DA11672
“11. On August 8,2012, T.G., a resident of Jefferson County, Kansas, retained the respondent to file an action in divorce on her behalf. T.G. paid the respondent $1,500 for the representation. The respondent characterized the fee as a flat fee for the representation.
“12. T.G. wished to have the matter filed in Douglas County, Kansas, rather dian Jefferson County, Kansas, because T.G.’s estranged husband’s family had a personal relationship with a judge in Jefferson County and because her community is small and she wished to keep her personal matter private. The respondent told [] T.G. that they could file the divorce action in Douglas County if parties could reach an agreement.
“13. The respondent prepared a petition for divorce to be filed in Douglas County District Court. T.G. signed the petition on August 13, 2012, and returned the verified petition to the respondent on August 14,2012. Additionally, on August 14, 2012, T.G. provided the respondent with the filing fee.
“14. On August 14,2012, the respondent sent T.G. an electronic mail message and stated that the petition would be filed that week.
‘T5. The respondent failed to take any action to attempt to reach an agreement with T.G.’s estranged husband so that the action could be filed in Douglas County.
“16. On August 20,2012, T.G. sent the respondent an electronic mail message and asked for a status update. The respondent replied that he will check with the clerk’s office and ‘see where we stand.’
“17. On August 21,2012, T.G. sent the respondent an electronic mail message and asked the respondent to seek an order directing that T.G.’s estranged husband [] move out and pay child support. T.G. suffered verbal and physical abuse by her estranged husband. T.G.’s children observed the verbal abuse.
“18. The respondent understood that there was significant tension in the home and T.G. needed to obtain temporaiy orders directing T.G.’s estranged husband to move from the home. On August 23, 2012, the respondent promised T.G. that the petition would be filed immediately. The respondent failed to file the petition.
“19. On August 29,2012, T.G. sent the respondent an electronic mail message and again asked the respondent if the petition had been filed. T.G. expressed her hopes that the petition be filed before the weekend. T.G. asked the respondent to notify her when the petition was filed so that she could anticipate when her estranged husband would learn of the matter.
“20. On August 31, 2012, the respondent informed T.G., via electronic mail message, that her ‘case materials’ had been forwarded to the court and that he would let her know when he received file-stamped copies.
“21. During the morning of September 4, 2012, a Jefferson County Sheriffs Deputy served T.G. with a divorce petition which had been filed by her estranged husband in Jefferson County, Kansas. T.G. called the respondent and informed him that she had been served with a divorce petition filed by her estranged husband. The respondent told T.G. that he filed a divorce petition on her behalf in Douglas County, Kansas. T.G. called the Douglas County District Court Clerk’s office and was told that a divorce petition had not been filed on her behalf.
“22. The respondent filed a petition on behalf of T.G. A certified copy of the petition indicates that the petition was filed on September 4, 2012, at 2:31 p.m.
“23. Whether the petition was filed by mail or by hand-delivery was disputed at the hearing on the formal complaint. According to Cindy Winger, an employee of the Douglas County Clerk’s Office, the petition for divorce was presented to tire Clerk of the Douglas County District Court by hand-delivery. Ms. Winger testified that because her initials are on the petition and because the case number and division number are in her handwriting, she could conclude that the petition was presented to the Clerk of the District Court by hand-delivery. On the other hand, the Respondent testified that he put the petition for divorce in the mail to the Clerk of the District Court on August 30, 2012, prior to leaving for a personal trip to Texas. The court did not have evidence of a letter drat was mailed with the pleadings. Additionally, the respondent did not have evidence of a letter drat was mailed with the pleadings. Based on all the evidence, the hearing panel finds that the respondent or someone on his behalf hand-delivered the petition for divorce to the Douglas County District Court Clerk’s office on Tuesday, September 4, 2012, at 2:31 p.m.
“24. Because T.G. did not file first, she lost the ability to obtain an ex •parte temporary order, she lost the advantage of having her divorce possibly go smoothly (because her husband believed she was repeatedly lying about having filed for divorce) [Footnote: The litigation that ensued following this volatile situation cost T.G. approximately $10,000 in attorney fees.], and she lost the advantage of having a temporary order issued immediately with custody and residence orders.
“25. Following September 4, 2012, T.G. continued to correspond with the respondent. T.G. reported a highly volatile situation with her estranged husband and again asked the respondent to obtain an order directing that T.G.’s husband move from the home.
“26. On September 9, 2012, T.G. again asked the respondent to file a ‘move-out’ order immediately. To demonstrate the extreme situation and tension to the respondent, T.G. forwarded audio communications between T.G. and her estranged husband to the respondent.
“27. On September 11, 2012, T.G. sent the respondent another electronic mail message and attached another audio recording. The respondent replied to T.G. and indicated that he would attempt to reach an agreement with T.G.’s estranged husband’s attorney that day.
“28. On September 13, 2012, T.G. sent the respondent another electronic mail message and indicated that she assumed that the respondent filed everything as she directed. T.G. reminded the respondent of tire urgency of the situation and the need for the orders.
“29. On September 14, 2012, the respondent replied that the only way to obtain temporary possession of the residence was by agreement. The respondent promised that he would file a motion that day and schedule a hearing on the motion as soon as possible. However, the respondent failed to file a motion on behalf of T.G. to obtain exclusive possession of tire residence. Further, the respondent failed to file an answer on behalf of T.G.
“30. Because the respondent failed to taire appropriate actions to resolve T.G.’s issues, T.G. terminated the respondent’s employment. T.G. retained Sherri Loveland. On September 18, 2012, Ms. Loveland entered her appearance on behalf of T.G. and filed an answer to the petition. By September 24, 2012, Ms. Loveland served discovery requests, filed a motion for a temporary restraining order, filed a motion for exclusive possession of tire marital residence, and made a request that the court enter orders of custody and parenting of the couple’s son.
“31. T.G. requested that the respondent return the fee which T.G. paid the respondent. When tire fee was not timely returned, Ms. Loveland contacted tire respondent. The respondent informed Ms. Loveland that the check had been mailed to her office, which is located approximately one block from the respondent’s office, but the envelope was returned due to insufficient postage on tire envelope. Eventually, while at the Douglas County Courthouse, the respondent provided Ms. Loveland with a trust account check in the amount of $1,500, representing T.G.’s fee.
“32. On September 20, 2012, T.G. filed a complaint against the respondent.
“Conclusions of Law
“33. Based upon the findings of fact, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 8.4(c), and KRPC 8.4(d), as detailed below.
“KRPC 1.2
“34. Lawyers must abide by a client’s decision concerning the lawful objectives of the representation and lawyers must consult with their client as to the means used to accomplish tire objectives. KRPC 1.2(a). The respondent stipulated that he violated KRPC 1.2. T.G. directed the respondent to file the divorce action in Douglas County. In order to file die divorce case in Douglas County, the respondent had to reach an agreement wrth T.G.’s estranged husband. The respondent took no steps to attempt to reach an agreement with T.G.’s estranged husband. Additionally, T.G. repeatedly requested that die respondent file a motion for temporary orders, including custody and possession of the marital home due to verbal and physical abuse. The respondent never filed die motion. Finally, the respondent failed to seek temporary orders as requested by his client, in either Douglas County or Jefferson County. As such, the hearing panel concludes that tire respondent violated KRPC 1.2.
“KRPC 1.3
“35. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent stipulated that he violated KRPC 1.3. The respondent failed to diligently and promptiy represent T.G. The respondent failed to timely file the action in divorce, the respondent failed to attempt to reach an agreement with T.G.’s estranged husband, and the respondent failed to request temporary orders. The respondent’s lack of diligence caused T.G. actual injury—she was forced to share a residence with her abusive estranged husband for an extended period of time. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“36. 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.’ The respondent stipulated that he violated KRPC 1.4. In this case, the respondent violated KRPC 1.4(a) when he failed keep T.G. informed about the status of the representation. Accordingly, the hearing panel concludes that tire respondent violated KRPC 1.4(a).
“KRPC 8.4(c)
“37. ‘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 misrepresented to T.G. that her case had been filed on numerous occasions, when it had not been filed. As such, the hearing panel concludes that the respondent violated KRPC 8.4(c).
“KRPC 8.4(d)
“38. ‘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 tire administration of justice when he failed to either file a motion to dismiss the Douglas County case or withdraw from the representation in the Douglas County case. Additionally, the respondent violated KRPC 8.4(d) when he filed the action in Douglas County where venue was not proper and the relief requested by T.G. was not available. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“American Bar Association Standards for Imposing Lawyer Sanctions
“39. 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.
“40. Duty Violated. The respondent violated his duty to his clients to provide diligent representation. The respondent also violated his duty to his clients to provide reasonable communication. Finally, the respondent violated his duty to the public to maintain his personal integrity.
“41. Mental State. The respondent knowingly and intentionally violated his duties.
“42. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to V.H. and T.G.
“Aggravating and Mitigating Factors
“43. Aggravating circumstances are any considerations or factors that may justify an increase in tire degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
“44. Prior Disciplinary Offenses. On March 1, 2012, the respondent entered into tire attorney diversion program for having violated KRPC 1.3 and KRPC 1.4, based on the respondent’s misconduct committed during his representation of V.H.
“45. Dishonest or Selfish Motive. The respondent engaged in dishonest conduct by falsely informing T.G. that her divorce action had been filed when it had not been filed. Thus, the hearing panel concludes that the respondent’s misconduct was motivated by dishonesty.
“46. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by repeatedly falsely assuring T.G. that he was timely handling her case. As such, the hearing panel concludes that the respondent engaged in a pattern of misconduct.
“47. Multiple Offenses. The respondent violated KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 8.4(c), and KRPC 8.4(d). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“48. Vulnerability of Victim. V.H. and T.G. were particularly vulnerable to the respondent’s misconduct. V.H. was vulnerable because she lived out-of-state and T.G. was vulnerable given the deterioration of her marriage.
“49. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1999. At the time of the misconduct, tire respondent had been practicing law for approximately 13 years.
“50. 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 tire following mitigating circumstances present:
“51. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent testified about his personal problems and it appeal's that his personal problems may have contributed to his violations.
“52. 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. During the formal hearing, the respondent stipulated to the facts alleged by the disciplinary administrator.
“53. In addition to the above-cited factors, tire hearing panel has thoroughly examined and considered the following Standards:
‘4.41 Disbarment is generally appropriate when:
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious 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.
‘5.11 Disbarment is generally appropriate when:
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.
‘5.13 Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.’
“Recommendation
“54. At the hearing on the formal complaint, the deputy disciplinary administrator recommended that the respondent be suspended for a period of three to six months. The deputy disciplinary administrator further recommended that tire respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to consideration of reinstatement. The respondent requested that he be allowed to continue to practice law and that his license not be suspended.
“55. The hearing panel has carefully considered the discipline to impose in this case. Because of the respondent’s repeated misrepresentations and failure to take action on behalf of T.G., she had to continue to reside with her abusive estranged husband and suffered a level of terror and conflict. The injury suffered as a result of the respondent’s misconduct is serious and warrants suspension from the practice of law. The hearing panel unanimously recommends that the respondent be suspended from the practice of law for a period of six months. Further, prior to consideration of any petition for reinstatement, the hearing panel recommends that the respondent undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219.
“56. The hearing panel recommends that, at the reinstatement hearing, tire respondent be required to provide written evidence that he has undergone a complete alcohol evaluation and has completed the recommendations for treatment, if any. Finally, the respondent owes apologies to his clients. The respondent should be required to provide a copy of the written apologies sent by the respondent to V.H. and T.G.
“57. Costs are assessed against tire 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 the parties and determines whether violations of KRPC exist and, if they do, the discipline to 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 evi dence 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]).
The respondent was given adequate notice of the formal complaint, to which he filed an answer; he filed no exceptions to the hearing panel’s final hearing report. Wife no exceptions before us, fee panel’s findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2013 Kan. Ct. R. Annot. 375). Furthermore, the evidence before the hearing panel establishes the charged misconduct in violation of KRPC 1.2 (2013 Kan. Ct. R. Annot. 459) (scope of representation); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice) by clear and convincing evidence and supports the panel’s conclusions of law. We therefore adopt the panel’s findings and conclusions.
The only remaining issue before us is the appropriate discipline for respondent’s violations. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator increased its recommendation for respondent’s suspension from 3 to 6 months. The respondent requested that he receive a public censure. In fee alternative, he requested suspension of 3 months, to be delayed until mid-June 2014 to allow him time to complete several pending cases.
The hearing panel recommended that the respondent be suspended for a period of 6 months and feat, prior to any consideration of a petition for reinstatement, he undergo a reinstatement hearing pursuant to Kansas Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). The hearing panel recommended that at fee reinstatement hearing the respondent be required to provide written evidence feat he has undergone a complete alcohol evaluation and has completed the recommendations for treatment, if any. Further, the hearing panel recommended that the respondent be required to apologize to his clients V.H. and T.G. and to provide a copy of the written apologies sent by him.
We hold that respondent should be suspended for a period of 6 months effective as of the date of this opinion and that he be subject to a Rule 219 hearing before his suspension may be lifted. At the reinstatement hearing, the respondent shall be required to present clear and convincing evidence that he has undergone a complete alcohol evaluation and has completed tire recommendations for treatment, if any. In addition, the respondent shall provide to the hearing panel and the office of the Disciplinary Administrator a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program that includes an opinion there are no current impediments to his ability to practice law. Further, respondent shall provide to the hearing panel a plan under which his law practice after reinstatement will be supervised, for a period of time to be set by the panel, by an attorney acceptable to the Disciplinary Administrator and which will contain such other provisions as the Disciplinary Administrator shall deem appropriate.
Conclusion and Discipline
It Is Therefore Ordered drat Trey T. Meyer be suspended from the practice of law in tire state of Kansas for a period of 6 months, 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 Rule 219. At the reinstatement hearing, he shall be required to present clear and convincing evidence that he has undergone a complete alcohol evaluation and has completed the recommendations for treatment, if any. In addition, the respondent shall provide to the hearing panel and the office of the Disciplinary Administrator a written report from a licensed psychiatric, psychological, or social work professional approved by the Kansas Lawyers Assistance Program that includes an opinion there are no current impediments to his ability to practice law. Further, respondent shall provide to the hearing panel a plan under which his law practice after reinstatement will be supervised, for a period of time to be set by the panel, by an attorney acceptable to die Disciplinary Administrator and which will contain such other provisions as the Disciplinary Administrator shall deem appropriate.
It Is Further Ordered that die costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
Moritz, J., not participating.
Gerald T. Elliott, District Judge, assigned. | [
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The opinion of the court was delivered by
BEIER, J.:
A juiy convicted Dominic Verser of first-degree murder and criminal possession of a firearm in the March 2009 shooting death of Olivia Anaekwe, the mother of his child. On this appeal, Verser raises four issues: (1) failure to grant a mistrial; (2) failure to apply K.S.A. 2013 Supp. 60-455 to evidence of a previous dispute between Verser and Anaekwe; (3) error in a jury instruction on reasonable doubt; and (4) error in responding to a jury question. None of these challenges requires reversal of Verser s convictions or sentences.
Factual and Procedural Background
Verser and Anaekwe began dating in late 2007 or early 2008. Anaekwe eventually became pregnant, and she and Verser began living together. In August 2008, Verser moved out. Verser moved in with his mother, Claudette Barker, who lived in one side of a conventional duplex, which shared a driveway with the duplex’ other unit. According to Anaekwe’s sister, Angel Sallis, Anaekwe would “constantly” visit Verser’s home and the two continued to have an “off and on” relationship. In February 2009, Anaekwe gave birth to their daughter.
The problems between Verser and Anaekwe continued after the baby’s birth. In the early morning hours of March 3, 2009, An-aekwe called 911 after Verser “lacked her out” of his home but kept their baby inside. When an officer arrived in response to the call, Anaekwe was waiting in her car. Anaekwe and the officer then went and knocked on the door of Verser’s home and asked for the baby. Claudette answered the door and gave the baby to Anaekwe and the officer. Verser had left the home before police arrived.
On the afternoon of March 26, 2009, Anaekwe drove her brother, Richard, to work. Richard would later testify that Anaekwe told him during the car trip that she intended to “move away from Kansas” to “get away from it all” and to get away from Verser. After dropping Richard off, Anaekwe went to Verser’s home to give Verser’s sister, Chrishawn Barker, a ride to a bank.
When Anaekwe and Chrishawn returned from the bank, Verser was at the duplex. Anaekwe had overheard Chrishawn and Verser discussing whether he would go to Michigan with Chrishawn. But at about 4 p.m., on the front porch of the duplex, Verser told both women that, because of the baby, he would not be going to Michigan. Chrishawn then went inside and slept until approximately 9 p.m.
When Chrishawn woke up, she spent a short time at a house next door to the duplex, where her cousin, Anthony Barker, lived; Anthony was having a party. When she returned from the party, she saw Anaekwe, Verser, and the baby in the backseat of An-aekwe’s car, which was parked in the driveway of the duplex. Chr-ishawn went back into the duplex and again fell asleep.
Sometime between 10 p.m. and 10:30 p.m., Steven Ward, who lived in the second unit of the duplex where Verser lived, heard a commotion outside. He believed the commotion—caused by two people, one of whom was a woman'—lasted between 8 and 10 minutes and ended “[l]oud and fast” with “[a] loud thud, boom.” After about 10 minutes of quiet, the police and fire departments responded to the scene.
Ward’s wife, Joyce, was in another room of the Wards’ side of the duplex during the commotion. She heard what sounded like a car “quickly” leaving the shared driveway between 9 p.m. and 10 p.m. A few minutes later, she heard a woman scream. To Joyce, the scream sounded like the woman was “scared like something was wrong.”
A third neighbor reported that he heard what he believed to be a gunshot at approximately 10:45 p.m.
A 911 dispatcher received a call from Verser’s residence at 10:41 p.m. Although Claudette would initially say that she placed the call after hearing what sounded like “firecrackers,” she eventually conceded that she made the call after Verser came inside and said Anaekwe had been shot. During the 911 call, Claudette gave the phone to Chrishawn. Chrishawn had just awakened, and, when she took the phone, her mother told her to tell the 911 operator that they had “heard gunshots.”
Antonio Barker, Verser’s brother who lived with Verser, said Verser had come into the duplex and admitted shooting Anaekwe.
Kevin Barker, a cousin who lived with Verser, also saw him after the shooting. Kevin was at Anthony’s house next door when he and Anthony heard what sounded like a woman yelling. A short time later, Verser’s mother arrived and handed Kevin a heavy object wrapped in a white t-shirt. According to Kevin, the object “felt like a firearm,” and he hid it under a mattress in Anthony’s bedroom.
When Verser arrived at Anthony’s house a short time later, Kevin said, Verser had blood on his bottom lip. Verser went into a downstairs bathroom for a moment, and while he was in there, he looked in the mirror “like ... he was looking to see what. . . was on his face.” He also made a telephone call to an unidentified person. Kevin did not see Verser again between the night of the murder and Verser’s trial.
After the 911 call, Chrishawn saw the baby lying on a couch in Verser’s home and took her across the street to wait at a relative’s house for the police. Chrishawn did not know how the baby had gotten inside the duplex and onto the couch. Although Chrishawn tried to get her mother to come across the street with her and the baby, her mother did not follow.
When firefighters arrived on the scene, they found Anaekwe’s car stopped in the street with its driver’s door open and a body lying partly in the street and partly in the car. There was no pulse detectible, and, based on that and the nature of the injuries, it was apparent that the person, later identified as Anaekwe, was dead.
According to an autopsy conducted the next day, Anaekwe had suffered a “perforating gunshot wound” to the right side of the top of her head. The coroner concluded that a high-powered round was fired from a gun at least 24 inches away. The State’s bloodstain-pattern analyst concluded that the front driver’s side and passenger doors were closed when the shot was fired, and a spent cartridge was found beneath Anaekwe’s body. The cartridge’s location, in addition to the pattern of the bloodstains, demonstrated that An-aekwe had been shot from the direction of the backseat and that the gun was inside the car when fired. The bloodstain-pattern analyst could not determine whether the person holding the gun also was inside the car when the shot was fired.
The gun used in the murder was never found, but the casing showed that the gun fired a .223 cartridge. A search of Verser’s residence produced a live .223 REM cartridge in a dresser and a manual for a Kel-Tec PLR-16 pistol, which fires a .223 round. A firearms expert also was able to conclude from the casing that the murder weapon was likely to have been a Kel-Tec PLR-16 or a Kel-Tec SU-16 rifle, each of which employs a specific bolt mechanism; but the expeit could not definitively rule out other guns.
Verser was immediately a suspect in the shooting, but police did not locate him until approximately 6 months later. Operating on a tip, Kansas City, Missouri, police officers found Verser in a park. Although Verser ran when the officers attempted to speak to him, he was caught after a short chase. Upon arrest, Verser gave a false name.
Before his trial, Verser filed a motion in limine to prevent the State from presenting testimony about any prior crimes or civil wrongs controlled by K.S.A. 2013 Supp. 60-455. Verser was primarily concerned about the March 3 incident, in which Anaekwe had to summon police to get the baby from inside Verser’s residence. At a pretrial hearing on the motion, the district judge intimated that tire evidence would not come within the purview of K.S.A. 2013 Supp. 60-455, but he did explicitly rule on the admissibility question. At trial, when Verser objected to testimony about Anaekwe’s 911 call, the district judge allowed the evidence, apparently reasoning that tire evidence did not fall under K.S.A. 2013 Supp. 60-455.
The most controversial testimony at Verser’s trial came from Michael Cox, another neighbor. The State became aware of Cox only a few weeks before trial, after Anaekwe’s mother found him. Cox met with detectives for the first time a week before trial began. Then, at trial, during his direct examination, Cox testified that he heard “firecrackers” at approximately 10:50 p.m. on the night of Anaekwe’s murder. The noise prompted Cox to look outside, where he saw a car sitting in the street with its driver’s side door open. A man that Cox was “45%” sure was Verser was standing next to the car. Cox said that he observed a gun in the man’s hand and that he saw the man take a baby out of the backseat. Cox testified that the man then ran away from the car and up the street.
Defense counsel’s cross-examination of Cox entirely neutralized Cox’s value to the State’s case. Cox had testified on direct that he arrived home about 10:35 p.m., but he was forced to admit on cross that he had not left work until 11:10 p.m. and did not arrive home until approximately 11:50 p.m.—well after the murder. Defense counsel also asked Cox about a statement he had given to detectives about seeing the victim “hunched over to the right in the car.” Cox admitted he had not actually seen any such thing. Cox also had told investigators and had testified on direct that he left his house after the murder, which explained why he was not around to provide a statement during the initial investigation. The cross-examination then concluded with the following exchange:
“Q. Are you sure you remember what you’re testifying that you remember or do you think you remember what you’re testifying?
“A. I think.
“Q. So you’re not sure you witnessed what you’re saying you witnessed, are you?
“A. No, sir. So I have problems remembering stuff.
“Q. So everything that you’ve been testifying to, you’re not sure if that’s the truth or not, are you?
“A. No, sir.”
Things did not improve for the State during Cox’s redirect examination:
“Q. So, Mr. Cox, you’re saying everything you just said didn’t happen, is that true?
“A. Yes.
“Q. Okay. So you lied just now the whole time?
“A. Sorry.
“Q. . . . Well, do you remember this or not?
“A. No.
“Q. Did you ever remember this then?
“A. No.
“Q. Then why did you come forward and say you did?
“A. I don’t know.”
The State moved to strike Cox’s testimony from the record. During a bench conference on tire State’s motion, defense counsel sought a mistrial. Before the State had an opportunity to respond fully, the district judge ordered a short recess so that defense counsel could discuss the situation with Verser.
When the proceedings resumed, defense counsel withdrew his motion for mistrial. The State then sought a mistrial, and the district judge ordered another recess.
On return to the courtroom, the district judge said that he was inclined to grant a mistrial if Verser wanted one. The district judge also advised Verser that he could not challenge the judge’s failure to grant a mistrial on appeal, if he refused to be given one. Verser and his counsel had a brief discussion, and then counsel informed the court that Verser wanted to proceed with tire trial. The judge denied the State’s motion for mistrial.
At the conclusion of evidence, the district judge explained to the juiy how to consider Cox’s testimony:
“[I]f you recall early on in the case, there was a witness named Michael Cox who testified. At the conclusion of his testimony, Ms. Tatum on behalf of the State asked that his testimony be stricken from the record. I have denied that motion. You are the finders of facts, ladies and gentlemen. You can give each witness whatever weight you think that testimony deserves.”
During closing arguments, both parties reminded the jurors that Cox had lied on the stand and that they should not rely on his testimony in determining Verser’s guilt.
Before deliberations began, the district judge provided an instruction on reasonable doubt. The written instruction read in pertinent part:
“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 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.” (Emphasis added.)
When the district judge read the reasonable doubt instruction aloud to the jury, however, he misspoke:
“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 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 any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
During deliberations, the jury sent the following question out to the district judge;
“We want to see the statements from tire following witnesses given to tire police: Chrishawn Barker, Claudette Barker, Steven Ward, Joyce Ward.
“[A]re the tape recordings available to us? If so, can we listen to them?”
The district judge gathered the parties and counsel, including Verser, to discuss an appropriate response. Both sides agreed with the district judge’s suggestion;
“The written statements to police of: Chrishawn Barker, Claudette Barker, Steven Ward and Joyce Ward were not admitted into evidence.
“The tape recordings of these statements were not admitted into evidence.”
The State asked whether jurors should be brought back into the courtroom to have the answer to their question read aloud to them, launching the following exchange;
“[VERSER’S COUNSEL]: Judge, I’ve never had that situation before in all tire jury trials I’ve had in any jurisdiction. I’ve never had the answer read to a jury in front of the defendant, at least a question.
“THE COURT: You’re not requesting that I—
“[VERSER’S COUNSEL]: I’m not requesting it.
“[THE STATE]: I’m comfortable then.
“[VERSER’S COUNSEL]: The answer is appropriate. I’ve talked to my client about it.
“THE COURT: Well, the reason I follow the procedure I do is that the defendant’s present in the courtroom, the question is read, the answer is read so the defendant blows precisely what is going on.
“[THE STATE]: Okay. I’m comfortable if he’s not asking they be brought in. “[VERSER’S COUNSEL]: I’m fine.
“THE COURT: Okay.”
The court’s response was then sent to the jury.
Verser was convicted on both counts. He was sentenced to a hard 25 life sentence on the first-degree murder charge and to 12 months’ imprisonment for foe criminal possession of a firearm charge. The sentences were ordered to run consecutively.
Discussion
Testimony of Michael Cox
Verser s first argument on appeal is that Cox’s admission that his testimony was fabricated constituted a fundamental failure of the proceedings necessitating declaration of a mistrial. Because the district judge gave Verser the option of having a mistrial declared, and Verser deliberately chose to continue the trial, we hold that error, if any, was invited.
In general, when a defendant has invited error, he or she cannot complain of the error on appeal. State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012). Verser argues that the general rule should be inapplicable here because Cox’s perjuiy violated his right to a fair trial and was structural error.
It is true that the invited error doctrine is inapplicable when a constitutional error is structural. See State v. Hill, 271 Kan. 929, 934, 26 P.3d 1267 (2001) (structural errors so intrinsically harmful, automatic reversal required without regard to existence of effect on outcome), abrogated on other grounds by State v. Voyles, 284 Kan. 239, 252-53, 160 P.3d 794 (2007). But not all constitutional errors qualify for the “structural” label. In fact, few do. See United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176 L. Ed. 2d 1012 (2010) (short list of structural errors includes total deprivation of counsel, lack of impartial trial judge, denial of right to self-representation at trial, violation of right to public trial, erroneous reasonable doubt instruction).
When addressing the application of the invited error doctrine to constitutionally deficient juiy instructions, a panel of our Court of Appeals has distinguished between error arising from an inadvertent mistake and error arising from a defense trial strategy. See State v. Hargrove, 48 Kan. App. 2d 522, 547, 293 P.3d 787 (2013). The distinction is useful here, where there can be no question that the decision to continue the trial was part of Verser’s trial strategy.
After Cox’s fabrication was exposed, the district judge, the prosecutor, and Verser’s counsel carefully considered whether a mistrial was appropriate. Verser consulted with his counsel to determine which course of action they wished to pursue. Essentially, the district judge left the decision whether a mistrial would be granted up to the defense. And he warned Verser before Verser and his counsel made their choice that the decision was likely to have consequences on appeal'—specifically, Verser would not be able to challenge the judge’s failure to grant a mistrial because of Cox’s testimony.
In this case, cross-examination worked precisely as all defense counsel hope it will work. It revealed one of the State’s witnesses as someone unwilling or unable to tell the truth. See Crawford v. Washington, 541 U.S. 36, 74, 124 S. Ct. 1354, 158. L. Ed. 2d 177 (2004) (Rehnquist, C.J., concurring) (“Indeed, cross-examination is a tool used to flesh out the truth, not an empty procedure.”); Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (“The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”); California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (“cross-examination, the ‘greatest legal engine ever invented for the discoveiy of truth’ ”). Verser’s decision to proceed did not result in an unavoidable miscarriage of justice; it enabled Verser and his counsel in their intentional effort to undermine the State’s otherwise convincing case. We are doubtful that denial of the State’s motion for mistrial was error at all. But, if it was, it was not only invited; it was welcomed by the defense; and it is not reversible.
K.S.A. 2013 Supp. 60-455 Evidence
Verser argues that the district judge committed reversible error when he admitted evidence of the incident between Verser and Anaekwe that occurred approximately 3 weeks before her murder.
Generally, in cases not involving sex crimes, a district judge applies a three-part test to determine whether to admit evidence of a defendant’s prior crimes or civil wrongs under K.S.A. 2013 Supp. 60-455; and our standard of review varies, depending which step of the test is in question. See State v. Dean, 298 Kan. 1023, 1032-33, 324 P.3d 1023 (2014); State v. Torres, 294 Kan. 135, 139-40, 273 P.3d 729 (2012). But here tire district judge did not engage in a K.S.A. 2013 Supp. 60-455 analysis at all. Rather, he appears to have ruled that the evidence was not subject to a K.S.A. 2013 Supp. 60-455 challenge, because Verser s earlier behavior in keeping his daughter inside his residence when he kicked Anaekwe out was not a crime or civil wrong.
Even if we assume that the district judge committed error in failing to analyze the evidence under K.S.A. 2013 Supp. 60-455, we ultimately conclude that any such error was harmless.
Violations of K.S.A. 2013 Supp. 60-455 are subject to the non-constitutional harmlessness standard of K.S.A. 2013 Supp. 60-261. See State v. Preston, 294 Kan. 27, 35-36, 272 P.3d 1275 (2012). Under that standard, the party benefitting from the error has the burden of showing that “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 against Verser on the two charges in this case was overwhekning. Shortly before the shooting, he was seen in the backseat of Anaekwe’s car with her and their baby. Neighbors heard what sounded like an argument between two persons, one female, that ended with a car driving away “[ljoud and fast.” According to Verser’s mother, Verser came into the duplex and told her to call 911 because Anaekwe had been shot. Verser’s brother testified that he heard Verser admit to doing the shooting. After placing the 911 call, Verser’s mother went next door and gave Kevin a heavy object wrapped in a white t-shirt, which, according to Kevin, “felt like a firearm.” A gun manual and live round found in Verser’s bedroom matched the type of gun that ballistics tests indicated was used in the shooting. Before he fled, Verser was seen with blood on his face. Based on this evidence, we hold that the State has carried its burden to establish that there is no reasonable probability any K.S.A. 2013 Supp. 60-455 error affected the outcome of Verser s trial.
Reasonable Doubt Instruction
The reasonable doubt instruction read aloud to Verser’s jury differed from the one given to the jury in writing by one word. The oral instruction said: “[I]f 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.” The written instruction used the preferred “each” in place of tire “any.”
“[Ojrally instructing the jury on applicable law is one of a trial court’s fundamental duties.” Miller v. State, 298 Kan. 921, 933, 318 P.3d 155 (2014). Although the district judge’s oral instruction here differed from his written instruction, we are not persuaded that reversal is required. We have previously affirmed convictions when an instruction such as the one read aloud in this case was given to a jury. See State v. Todd, 299 Kan. 263, 273, 323 P.3d 829 (2014); State v. Waggoner, 297 Kan. 94, 98-99, 298 P.3d 333 (2013); State v. Smyser, 297 Kan. 199, 205-06, 299 P.3d 309 (2013); State v. Herbel, 296 Kan. 1101, 1124, 299 P.3d 292 (2013). We are not inclined to depart from that precedent now, particularly in a case in which the preferred language appeared in the written instruction sent into the deliberations room with the jury.
Response to Jury Question
Verser’s final appellate challenge focuses on the procedure used by the district judge to answer the jury’s question. Verser insists that the judge should have read the answer aloud to the juiy in open court, with him and his counsel present, to avoid violating Verser’s right to be present at every critical stage of the proceeding, his right to a public trial, and his right to an impartial judge.
Appellate arguments on a defendant’s right to be present at every critical stage of his or her criminal trial raise an issue of law over which this court exercises unlimited review. Herbel, 296 Kan. at 1106-07.
K.S.A. 22-3420(3) governs a trial court’s procedures for answering questions from a jury once it has begun deliberating.
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.” K.S.A. 22-3420(3).
Our caselaw echoes this statute’s requirement. “[Ajny question from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence unless the defendant is voluntarily absent.” State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013) (citing State v. Coyote, 268 Kan. 726, 732, 1 P.3d 836 [2000]). And any act or omission violating K.S.A. 22-3420(3) also violates K.S.A. 22-3405(1) (“The defendant in a felony case shall be present... at eveiy stage of the trial. . . except as otherwise provided by law.”), and the “guarantee of the Sixth Amendment to the United States Constitution that a criminal defendant may be present at eveiy critical stage of his or her trial.” King, 297 Kan. at 968.
Moreover, a criminal defendant’s statutory and constitutional rights to be present are personal to him or her; they generally cannot be waived through counsel, unless the defendant and counsel have previously discussed the matter and agreed upon the waiver. Compare State v. Lopez, 271 Kan. 119, 132, 22 P.3d 1040 (2001) (waiver ineffective when counsel purported to waive defendant’s right without discussion), with State v. Sandstrom, 225 Kan. 717, 722, 595 P.2d 324 (waiver effective when undisputed that defendant, through counsel, waived right to be present at hearings), cert. denied 444 U.S. 942 (1979). See also State v. Larraco, 32 Kan. App. 2d 996, 1001, 93 P.3d 725 (2004) (“While an attorney may malee representations to the court which bind the client, defense counsel can only waive the rights of clients as long as those rights are not inherently personal, fundamental rights.”). The personal nature of the defendant’s statutory and constitutional rights to be present at all critical stages means that they cannot be waived by counsel’s mere failure to object.
The State argues that Verser himself waived his right to be present when the answer to the jury’s question was delivered. But the record on appeal does not support the State’s position.
Verser was present for the judge’s and parties’ formulation of the content of the answer, but he did not personally agree to the method of deliveiy. When the district judge received the question, counsel and Verser gathered in the courtroom to discuss an appropriate answer. After all agreed on the answer’s content, the State raised a question about whether the jury should be brought in to have the answer read in open court. Verser’s counsel stated, “I’ve never had that situation before in all the jury trials I’ve had in any jurisdiction,” and said he was “not requesting [the jury be brought in].” Further, he expressly approved the answer and said he had talked to Verser about it. At that point, the prosecutor said she was “comfortable” with responding in writing if Verser’s counsel was not asking that the juiy be brought in. Verser’s counsel responded: “I’m fine.” Defense counsel said nothing about whether he had discussed the procedure with his client or whether Verser also was “fine” with it. His suggestion that the proposed procedure was common practice in the jurisdictions with which he was familiar makes it unlikely he would have believed consultation with his client and a defendant’s personal waiver of the right to be present were necessary.
Having concluded the record does not support the existence of a personal waiver by Verser, we are compelled to hold that it was both statutory and constitutional error to fail to read the answer to the jury’s question in open court with Verser present. See King, 297 Kan. at 967-68. The State, however, insists that any error was harmless.
When violations of both statutory and federal constitutional rights arise from the same acts or omissions, we apply only the more rigorous of the two harmless error standards—the federal constitutional harmless error standard. King, 297 Kan. at 968; see also State v. Brown, 298 Kan. 1040, 1051, 318 P.3d 1005 (2014) (prosecutorial misconduct). Under the federal standard, “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 die 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).
Four factors assist our evaluation of whether a district judge’s communication with the jury outside the presence of the defendant is harmless under the constitutional standard:
“(1) the overall strength of the prosecution’s case; (2) whether an objection was lodged; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.” Herbel, 296 Kan. at 1111 (citing State v. McGinnes, 266 Kan. 121, 132, 967 P.2d 763 [1998]).
On the first factor, we have already observed that tire State’s case against Verser was strong. Anaekwe was shot with a gun consistent with the gun manual recovered, from Verser’s bedroom. Verser’s mother, brother, and sister all gave testimony that clearly implicated Verser in the crime—including Verser’s opportunity, his access to a gun, and his admission. Verser’s disappearance for 6 months after the murder and his brief on-foot flight when approached by law enforcement tended to show his consciousness of his guilt.
On the second factor, there was no objection.
On the third factor, the information conveyed to the jury in answer to its question qualified as innocuous and insignificant. The jury asked to see the statements made by several witnesses to police and, if possible, to hear any recordings of those statements. The requested material had not been admitted into evidence, and the jury was simply informed of this fact. The answer was not substantive at all.
The final factor asks whether a posttrial remedy could mitigate the constitutional error. See Herbel, 296 Kan. at 1115 (defense unaware of ground for objection). It is clear from the record that both Verser and his counsel were well aware of the procedure used to deliver tire answer to the jury’s question, and they did not choose to express opposition to it at the time. Without any objection or posttrial motion before tire district court, the only remedy still available is reversal.
The four factors lead us to conclude that there is no reasonable possibility the district judge’s failure to read the answer to the jury’s question in open court in Verser’s presence contributed to the guilty verdicts. The information delivered was not substantive; it added nothing to and subtracted nothing from tire evidence before the jury. Reversal is unwarranted when the information communicated outside the defendant’s presence is so vanilla.
Verser also argues that the jury-answer procedure used here violated his rights to a public trial and to an impartial judge. In contrast to the defendant’s right to be present, which we have addressed on multiple occasions, whether the jury-answer procedure used here implicates Verser s rights to public trial and impartial judge have not frequently been addressed. Verser cites law supporting the existence of such rights in the abstract and law supporting reversal for violation, but he fails to explain how the procedure followed here qualifies for such treatment. See State v. Garza, 290 Kan. 1021, 1034, 236 P.3d 501 [2010] [“Issues raised in passing that are not supported by argument or cited authority are deemed waived.”]); State v. Gibson, 299 Kan. 207, 322 P.3d 389 (2014) (citing State v. Torres, 280 Kan. 309, 331, 121 P.3d 429 [2005] [simply pressing point without pertinent authority or without showing why it is sound despite lack of supporting authority or in the face of contrary authority akin to failing to brief point; issue deemed waived or abandoned]. We therefore consider these arguments waived or abandoned and do not reach their merits. See State v. Bowen, 299 Kan. 339, 323 P.3d 853 (2014) (public trial and impartial judge arguments deemed abandoned for failure to adequately brief).
Conclusion
Defendant Dominic Verser’s convictions and sentences for first-degree murder and criminal possession of a firearm are affirmed. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Miriam M. Rittmaster, of Overland Park, an attorney admitted to the practice of law in Kansas in 1998. Two separate complaints were filed against the respondent as set out below.
Case No. 109,836
On January 4, 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 March 7, 2013. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on March 7, 2013, where the respondent was personally present and was represented by counsel. Respondent’s oral motion to accept answer out of time was granted at the hearing. The hearing panel determined that respondent violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.15(b) (2013 Kan. Ct. R. Annot. 553) (safekeeping property); 8.1(b) (2013 Kan. Ct. R. Annot. 646) (failure to respond to lawful demand for information from disciplinary authority); 8.4(c) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation); and Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (failure to cooperate in disciplinary investigation).
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
“7. On September 13, 2011, S.S. retained the respondent to represent her in a domestic case. S.S. paid the respondent $1,500.00 for the representation. Prior to that time, another attorney had filed a petition for divorce on behalf of S.S. The other attorney was allowed to withdraw from the representation on September 23, 2011.
“8. Beginning on September 14, 2011, S.S. attempted to contact the respondent to request that Ae respondent obtain service of Ae divorce petition on S.S.’s estranged husband. Many of S.S.’s attempts to contact the respondent regarding service went unanswered.
“9. On October 21,2011, S.S. sent Ae respondent a text message asking about service. When Ae respondent Ad not respond to S.S.’s request for information, S.S. called the sheriff s department and learned the respondent had not requested Aat Ae sheriffs department serve S.S.’s estranged husband. S.S. called Ae clerk of the Johnson County District Court and learned Aat Ae respondent had not yet entered her appearance on behalf of S.S.
“10. Later Aat day, Ae respondent called S.S. and told S.S. Aat she would do what was necessary to obtain service that day. The respondent also sent S.S. a text message that she had provided Ae necessary information to Ae sheriffs department to obtain service.
“11. On October 25, 2011, S.S.’s estranged husband was served with process.
“12. On October 27, 2011, S.S. contacted Ae respondent about what should occur next in her Avorce action. The respondent told S.S. she was trying to get in touch wiA S.S.’s estranged husband’s lawyer. On November 2, 2011, S.S. left a message requesting a status update and asked Ae respondent provide her with a copy of certain documents, incluAng a copy of the answer filed in Ae case. The respondent Ad not provide S.S. with a copy of idle answer or Ae other documents.
“13. Through November 10, 2011, S.S. continued to contact Ae respondent in an attempt to obtain information. The respondent continued to fail to provide S.S. wiA Ae requested information. On November 10, 2011, the respondent called S.S. and promised to provide her wiA sample parenting plans and the other documents previously requested by S.S. On November 13, 2011, November 16, 2011, and November 22, 2011, S.S. made adAtional requests for the information. The respondent failed to provide Ae requested information.
“14. The court scheduled a hearing regarAng Ae temporary orders in S.S.’s Avorce proceeAng for December 1, 2011. The respondent received notice of Ae hearing. The respondent failed to inform S.S. Aat a hearing had been scheduled. NeiAer S.S. nor Ae respondent appeared at the hearing.
“15. At the hearing, the Court reduced the amount of child support that S.S.’s estranged husband was required to pay S.S. Additionally, the Court made the child support effective October 1, 2011, rather than the date the divorce petition was filed. Previously, the respondent assured S.S. that the effective date of the child support would be the date the divorce petition was filed.
“16. Later, on December 1, 2011, S.S. learned that a hearing had been held that morning. S.S. contacted the respondent about the hearing. The respondent falsely told S.S. that she did not know about the hearing. The respondent told S.S.not to worry about missing the court hearing. The respondent told S.S. that the clerk of the district court failed to notify the respondent of file hearing and that another hearing had been scheduled for January 11, 2012. S.S. again requested that the respondent provide her with a copy of certain documents. The respondent promised to send the documents by electronic mail. Again, the respondent failed to forward the documents to S.S.
“17. On December 2, 2011, S.S. called the clerk of the district court. The clerk informed S.S. that the respondent had been twice notified of the December 1, 2011, healing. The clerk indicated that the respondent received an electronic mail message on November 16, 2011, notifying her of the hearing and also opposing counsel provided a written notice of hearing to the respondent. Finally, the clerk told S.S. that a hearing was not scheduled on January 11,201[2], in S.S.’s divorce case.
“18. That same day, S.S. called the respondent but did not reach the respondent. The respondent later returned the call, but did not reach S.S. The respondent left a message stating that she would call S.S. again on Monday, December 5, 2011. The respondent failed to call S.S. on Monday, December 5, 2011.
“19. On December 6, 2011, S.S. sent the respondent a letter terminating the respondent’s representation. Additionally, S.S. requested that the respondent send S.S.a copy of her file.
“20. On December 7, 2011, S.S. called the respondent and left a message. Later that day, the respondent sent S.S. a text message stating that the respondent had experienced a family emergency and would not be able to get in touch with S.S.until the following Monday. S.S. responded and directed the respondent to withdraw from the representation as soon as possible.
“21. On December 9, 2011, S.S. retained new counsel, Stephanie Goodnow. Ms. Goodnow entered her appearance on December 12, 2011.
“22. Thereafter, S.S. called the respondent and asked for an itemized statement. and a refund of unearned fees. Later, S.S. sent the respondent a letter demanding a refund. The respondent never provided S.S. with an itemized statement or refund.
“23. On March 21, 2012, S.S. filed a complaint with the disciplinary administrator’s office.
“24. On March 30, 2012, the disciplinary administrator sent tire respondent a letter notifying her that a complaint had been received and docketed for investigation and directing die respondent to provide a response to S.S.’s complaint. The respondent failed to provide a response to S.S.’s complaint as directed by the disciplinary administrator.
“25. The complaint was sent to the Johnson County Ethics and Grievance Committee for investigation. Michael Whitsitt was assigned to investigate S.S.’s complaint.
“26. On April 10, 2012, and May 15, 2012, Mr. Whitsitt sent letters to the respondent directing tire respondent to provide a written response to S.S.’s complaint. The respondent failed to provide a written response to S.S.’s complaint.
“27. On June 25, 2012, Mr. Whitsitt called the respondent. During the telephone conversation, the respondent promised Mr. Whitsitt that she would provide a response by July 6, 2012. The respondent never provided a response to S.S.’s complaint.
“Conclusions of Law
“28. Based upon the findings of fact and the respondent’s stipulation, the hearing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207, as detailed below.
“KRPC 1.1
“29. 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 failed to represent S.S. with the thoroughness and preparation reasonably necessary for the representation. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.3
“30. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent S.S. in her domestic relations case. Because the respondent failed to act with reasonable diligence and promptness in representing her client, the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“31. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter.’ In this case, the respondent violated KRPC 1.4(a) when she failed to timely respond to requests for information from S.S. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.4(a).
“KRPC 1.15
“32. Lawyers must safeguard their clients’ property. Specifically, KRPC 1.15 provides:
‘(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.’
The respondent violated KRPC 1.15(b) in two ways. First, the respondent failed to provide an accounting of fees as requested by S.S. and as required by KRPC 1.15(b). Second, the respondent failed to refund unearned fees. Retaining unearned fees is tantamount to conversion. If a fee has not been earned, it should remain available to be refunded to the client. The respondent failed to account and failed to refund unearned fees that were paid by S.S. Because the respondent failed to properly account for fees and refund unearned fees, the hearing panel concludes that the respondent violated KRPC 1.15(b).
“KRPC 8.1 and Kan. Sup. Ct. R. 207
“33. 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 . . . disciplinaiy 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, the Disciplinary Board, and the Disciplinaiy Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinaiy Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The respondent failed to respond to the initial complaint as directed by the disciplinaiy administrator and Mr. Whitsitt. As such, the hearing panel concludes that the respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) by failing to provide a written response to the initial complaint filed by S.S.
“KRPC 8.4(c)
“34. Tt 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 she falsely told S.S. that she had not received notice of the hearing scheduled for December 1, 2012. Additionally, the respondent engaged in conduct that involved dishonesty when she told S.S. that a second hearing had been scheduled for Januaiy 11, 2012. As such, tire hearing panel concludes that the respondent violated KRPC 8.4(c).
“American Bar Association Standards for Imposing Lawyer Sanctions
35. 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 tire 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.
“36. Duty Violated. The respondent violated her duty to her client to provide competent and diligent representation and adequate communication. Also, the respondent violated her duty to the public and the legal profession to maintain her personal integrity. Finally, the respondent violated her duty to the legal system to comply with court orders.
“37. Mental State. The respondent knowingly and intentionally violated her duties.
“38. Injury. As a result of the respondent’s misconduct, the respondent caused actual injuiy to S.S., the legal profession, and tire legal system.
“Aggravating and Mitigating Factors
“39. 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:
“40. Prior Disciplinary Ojfenses. The respondent has been previously disciplined on one occasion. On April 23, 2007, the respondent entered a diversion agreement with the disciplinary administrator. In the agreement, the respondent admitted that she violated ICRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 1.5. The respondent successfully completed the terms and conditions of diversion.
“41. Dishonest or Selfish Motive. The respondent engaged in dishonest conduct in her representation of S.S. As such, the hearing panel concludes that the respondent’s misconduct was motivated by dishonesty.
“42. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct by repeatedly failing to adequately communicate with S.S. Accordingly, the hearing panel concludes that the respondent engaged in a pattern of misconduct.
“43. Multiple Ojfenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, KRPC 8.1, KRPC 8.4, and Kan. Sup. Ct. R. 207. Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“44. Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply ivith Rides or Orders of the Disciplinary Process. The respondent failed to provide a written answer to the initial complaint filed by S.S. as directed by the disciplinary administrator and Mr. Whitsitt.
“45. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1998. At the time of the misconduct, the respondent had been practicing law for approximately 13 years.
“46. 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:
“47. Personal or Emotional Problems if Such Misfortunes have Contributed to Violation of the Kansas Rules ofProfessional Conduct. During the hearing, the respondent testified about personal and emotional problems that she has suffered during tlie past couple of years and their adverse impact on her representation of S.S. The respondent’s personal and emotional problems were significant and occurred at substantially the same time as the misconduct. The hearing panel concludes that the respondent’s personal and emotional problems contributed to her violations of the rules. Additionally, based upon the respondent’s appearance before the hearing panel, the hearing panel concludes that the respondent’s emotional difficulties continue to affect her ability to practice law.
“48. Remorse. At the hearing on the formal complaint, the respondent expressed genuine remorse for having engaged in the misconduct.
“49. In addition to the above-cited factors, the healing panel has thoroughly examined and considered the 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.
‘4.62 Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.’
“Recommendation
“50. At the hearing on the formal complaint, the disciplinary administrator recommended that the respondent be suspended from the practice of law for a period of six months. Additionally, die disciplinary' administrator recommended diat before the respondent is reinstated that she undergo a reinstatement hearing, under Kan. Sup. Ct. R. 219. The respondent agreed with die disciplinary administrator’s recommendation that the respondent’s license to practice law [be suspended] for a period of six months and that the respondent undergo a reinstatement hearing under Kan. Sup. Ct. R. 219.
“51. During the disciplinary hearing, die respondent stated that she is currently unable to practice law and tentatively agreed to the temporary suspension of her license to practice law in the State of Kansas. Following the hearing, the disciplinary administrator and the respondent filed a joint motion for temporary suspension, to be effective April 1, 2013. The Supreme Court granted the motion and on April 1, 2013, the Court suspended die respondent’s license to practice law during the pendency of the disciplinary proceedings.
"52. Based upon the findings of fact, conclusions of law, the aggravating factors, and the Standards listed above, die hearing panel unanimously recommends that the respondent’s license to practice law in the State of Kansas be suspended from the practice of law for a period of six months. Further, the hearing panel also recommends that the respondent undergo a reinstatement hearing, under Kan. Sup. Ct. R. 219, prior to consideration of reinstatement.
“53. Costs are assessed against the respondent in an amount to be certified by the office of the disciplinary administrator.”
Case No. 111,126
On November 5, 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 December 18, 2013. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 8, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); and 8.4(d) (2013 Kan. Ct. R. An-not. 655) (engaging in conduct prejudicial to the administration of justice).
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
“License Status
“7. On April 24, 1998, the Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas. In the spring of 2013, the respondent and the disciplinary administrator filed a joint motion for temporary suspension, as the respondent was unable to practice law at that time. On April 1, 2013, the Kansas Supreme Court issued an order temporarily suspending the respondent from the practice of law. The respondent’s license remains suspended at this time.
“DA11793
“8. In September, 2011, J.F. filed a petition for divorce against R.F. and obtained a temporary order of custody of his minor children. J.F. was unable to serve R.F. and requested and received permission from die court to serve R.F. by publication. Following service by publication, on February 2, 2012, the court entered a decree of divorce.
“9. On March 19,2012, R.F. retained the respondent. The respondent agreed to attempt to set aside the decree of divorce. However, R.F. did not provide the respondent with the attorney fee at that time.
“10. On June 7, 2012, the State of Kansas filed a motion for tire establishment of support and qualified medical support order. The Court scheduled a hearing on the motion for July 3, 2012.
“11. On July 3, 2012, R.F. appeared without counsel. By this time, R.F. still had not paid the respondent the attorney fee.
“12. On July 16, 2012, August 1, 2012, and August 15, 2012, R.F. paid the respondent’s attorney fee in installments.
“13. On August 6, 2012, dre respondent informed R.F. that she had entered her appearance in the divorce action. At flrat time, dre hearing regarding support had been continued to August 7, 2012. The respondent contacted the attorney for the State of Kansas, Roger Marrs, and requested that the hearing be continued until August 28, 2012. Mr. Marrs agreed to the continuance and dre court rescheduled tire matter.
“14. Prior to August 28, 2012, the respondent requested that the hearing be continued again. The respondent’s request was denied. On August 28, 2012, the respondent and R.F. failed to appear for the hearing. At that time, the Court entered an order of child support against R.F. in the amount of $379.00 per month. The Court also ordered R.F. to provide medical insurance for tire children.
“15. On October 5, 2012, tire respondent filed a motion to set aside default judgment on behalf of R.F. The respondent also filed a motion to modify custody, parenting time, and child support and a motion to appoint a guardian ad litem. The respondent failed to take any steps to have the motions set for hearing.
“16. After the respondent filed the motions on behalf of R.F., R.F. repeatedly contacted tire respondent to find out about dre status of the motions. The respondent failed to respond to text messages, electronic mail message[s], and telephone calls from R.F. and dre respondent failed to provide R.F. with updates regarding the status of the representation.
“17. On March 7,2013, after the respondent failed to communicate with R.F., R.F. informed the respondent that she had retained another attorney to represent her. R.F. requested that tire respondent provide an accounting of time and charges in the case. Additionally, R.F. requested that the respondent return her papers. The respondent did not provide an accounting, return any unearned fees, nor did she x'eturn R.F.’s papers.
“Conclusions of Law
“18. Based upon the respondent’s stipulation and the above findings of fact, the hearing panel concludes as a matter of law that tire respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, and KRPC 8.4, as detailed below.
“KRPC 1.3
“19. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent R.F. in the domestic case. The respondent failed to appear in court, the respondent failed to obtain a hearing date for the motions, and the respondent failed to take any action, other than filing the motions, to complete the representation of R.F. Because the respondent failed to act with reasonable diligence and promptness in representing R.F., the hearing panel concludes that the respondent violated KRPC 1.3.
“KRPC 1.4
“20. 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 she repeatedly failed to respond to requests for information from R.F. Accordingly, tire hearing panel concludes that dre respondent violated KRPC 1.4(a).
“KRPC 1.16
“21. KRPC 1.16 requires lawyers to take certain steps to protect their clients. In this case, the respondent’s conduct violated KRPC 1.16(a) and KRPC 1.16(d). KRPC 1.16(a) provides, in pertinent part, as follows:
‘(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall witirdraw from the representation of a client if:
(2) dre lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.’
The respondent violated KRPC 1.16(a)(2) by failing to widrdraw from the representation after her mental health deteriorated to the point where she was unable to provide representation to her client.
“22. KRPC 1.16(d) is also applicable in this case. It provides:
‘(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable 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 tire extent permitted by other law.’
The respondent violated KRPC 1.16(d) when she failed to return R.F.’s papers, when she failed to provide an accounting of the fee, and when she failed to return the unearned attorney fees. The hearing panel concludes drat the respondent repeatedly violated KRPC 1.16(d).
“KRPC 8.4(d)
“23. ‘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 tire administration of justice when she failed to appear in court on behalf of R.F. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
“American Bar Associatio Standards for Imposing Lawyer Sanctions
“24. 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, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“25. Duty Violated. The respondent violated her duty to her client to provide diligent representation and adequate communication and to the legal system by her failure to appear for scheduled hearings.
“26. Mental State. The respondent knowingly violated her duty.
“27. Injury. As a result of the respondent’s misconduct, the respondent caused actual injury to her client.
“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. Prior Disciplinary Offenses. On April 23, 2007, the respondent entered a diversion agreement with the disciplinary administrator. In the agreement, the respondent admitted that she violated KRPC 1.1, KRPC 1.3, KRPC 1.4, and KRPC 1.5. The respondent successfully completed the terms and conditions of diversion.
“30. In addition, last year, the respondent had another attorney disciplinary hearing. The Kansas Supreme Court placed that case on hold pending the hearing in the instant case.
“31. A Pattern of Misconduct. The respondent has engaged in a pattern of misconduct. The misconduct committed by the respondent in [the] case that gave rise to the diversion and the misconduct in the case that is currently on hold before the Kansas Supreme Court involved misconduct similar- to the misconduct in this case. As such, the hearing panel concludes that the respondent has engaged in a pattern of misconduct.
“32. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.16, and KRPC 8.4. Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
“33. Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1998. At tlie time of the misconduct, the respondent had been practicing law for more than 15 years.
“34. Indifference to Making Restitution. The respondent failed to malee restitution to R.F. for the unearned attorney fees, although the hearing panel notes that the respondent has not had the finances to make restitution as of the hearing.
“35. 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 tire following mitigating circumstances present:
“36. Absence of a Dishonest or Selfish Motive. The respondent’s misconduct does not appear to have been motivated by dishonesty or selfishness.
“37. Personal or Emotional Probleins if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from attention deficit disorder and depression. It is clear that the respondent’s mental health difficulties contributed to her misconduct. The respondent has been working diligently in psychotherapy and has made excellent progress, according to her clinical psychologist. Additionally, the respondent has complied with the recommendations to take medication to treat her mental health conditions. Finally, the chair of the hearing panel noted a significant improvement in her appearance as compared to her appearance in the previous attorney disciplinary hearing.
“38. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Fidl and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process and fully and freely acknowledged her misconduct. The respondent accepted full responsibility for her misconduct.
“39. Remorse. At the hearing on this matter, the respondent expressed genuine remorse for having engaged in tire misconduct.
“40. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
‘4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injuiy or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injuiy or potential injury to a client.’
“Recommendation
“41. 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 one year retroactive to April 1, 2013. The hearing panel further recommends that prior to reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219. The respondent must be prepared to establish, prior to filing a petition for reinstatement, that she has made full restitution to her clients and/or the Client Protection Fund.
“42. 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, the findings of the disciplinaiy 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 complaints, to which she filed answers, and adequate notices of both the hearings before the panel and the hearing before this court. The respondent filed no exceptions to the hearing panel’s final hearing reports. As such, the 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 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); 1.4(a) (2013 Kan. Ct. R. Annot. 484) (communication); 1.15(b) (2013 Kan. Ct. R. Annot. 553) (safekeeping property); 1.16(a)(2) and (d) (2013 Kan. Ct. R. Annot. 569) (termination of representation); 8.1(b) (2013 Kan. Ct. R. Annot. 646) (failure to respond to lawful demand for information from disciplinaiy authority); 8.4(c) and (d) (2013 Kan. Ct. R. Annot. 655) (engaging in conduct involving misrepresentation and engaging in conduct prejudicial to the administration of justice); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and Kansas Supreme Court Rule 207(b) (2013 Kan. Ct. R. Annot. 336) (failure to cooperate in disciplinaiy investigation), and it supports the panel’s conclusions of law. We adopt the panel’s conclusions.
At the hearing before this court, at which the respondent appeared, the office of the Disciplinaiy Administrator recommended that the respondent be suspended for a period of 1 year and that the respondent undergo a reinstatement hearing, under Kansas Supreme Court Rule 219 (2013 Kan. Ct. R. Annot. 407). The respondent agreed with the recommendation of the Disciplinary Administrator. The Hearing Panel also agreed with the recommendation of the Disciplinary Administrator.
We hold that respondent should be suspended from the practice of law for a period of 1 year, retroactive to April 1, 2013, and that she be subject to a Rule 219 reinstatement hearing before her suspension may be lifted. In respondent’s motion for reinstatement she is required to address whether an appropriate plan for supervision and support of her resumption of the practice of law is needed. At the reinstatement hearing, the respondent is required to present clear and convincing evidence that she has (1) made full restitution to her clients and/or the Client Protection Fund, and (2) received adequate mental health treatment to render her capable of engaging in the active practice of law.
Conclusion and Discipline
It Is Tpierefore Ordered that Miriam M. Rittmaster be suspended from the practice of law in the state of Kansas for a period of 1 year, retroactive to April 1, 2013, 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 Rule 219. More specifically, her motion for reinstatement must address whether an appropriate plan for supervision and support of her resumption of the practice of law is needed. At the reinstatement hearing, she is required to present clear and convincing evidence that she has made full restitution and has received adequate mental health treatment to render her capable of engaging in the active practice of law.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in die official Kansas Reports.
Moritz, J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
Tyjuna M. Sharkey appeals from his jury trial conviction for aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(3)(A). Sharkey raises three issues, two of which have been resolved.
One issue, an error in completing the journal entry to include lifetime electronic monitoring, even though that condition had not been announced at the time of sentencing, has been corrected through a nunc pro tunc journal entry and is moot.
In a second issue, Sharkey argues the State presented insufficient evidence that he acted with both the intent to arouse or satisfy his sexual desires and the intent to arouse or satisfy the sexual desires of the alleged victim. Sharkey contends the State was required to prove both alternative means of the intent requirement because the juiy was instructed on both means. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (in alternative means case, juiy need 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). Subsequent to Sharkey filing his appellate brief, however, this court held in State v. Britt, 295 Kan. 1018, 1025-26, 287 P.3d 905 (2012), that the intent element of K.S.A. 21-3504(a)(3)(A), which was the basis for the jury instruction, does not state alternative means. Sharkey has not presented any compelling reason to reverse Britt’s holding. Consequently, we reaffirm our holding in Britt, which resolves the issue against Sharkey; and without further discussion, we reject Shar-keys arguments on this issue.
This leaves as the sole issue for our consideration Sharkey s claim that the trial judge erred in denying his pro se motions for new trial—based on allegations of ineffective assistance of counsel— without first appointing new conflict-free counsel to assist him in arguing the motions. We hold that this argument has merit because the effect of the trial judge’s failure to inquire into the nature of the conflict and appoint new counsel was to deny Sharkey his right under the Sixth Amendment to the United States Constitution to have the effective assistance of counsel at a critical stage of the criminal proceedings against him. We remand the case for appointment of new counsel and consideration of Sharkey s motions for new trial.
Facts and Procedural Background
Sharkey’s conviction arose from his contact with 12-year-old T.W., who was a friend of Sharkey’s stepdaughter. During a sleepover at Sharkey’s house, T.W. awoke when she felt something heavy pushing against the back of her body. T.W. found her pajama bottoms and panties had been pushed down to her upper thighs and Sharkey was “forc[ing]” or “shov[ingj” his penis between her buttocks in an up-and-down motion, to “kind of like make it fit.” T.W. pushed Sharkey’s shoulder and was able to pull away and flee.
Based on T.W.’s allegations, Sharkey was charged with aggravated indecent liberties with a child. Sharkey was eventually tried two times. In his first trial, which resulted in a conviction, the State presented a DNA expert who linked Sharkey to semen found on T.W.’s pajamas. Posttrial, Sharkey sought and was granted a new trial when additional DNA testing showed the “presence of at least a third individual”—someone other than T.W. or Sharkey—as a secondaiy or weaker source matching the DNA profile. At the second trial, which is the subject of this appeal, Sharkey presented expert testimony explaining the third contributor could have been Sharkey’s wife or her teenage son. The defense expert suggested die DNA could have been postcoital discharge from Sharkey having sex with his wife and the fluids could have been transferred to the pajamas. Based on this testimony, Sharkey built a defense around the suggestion that T.W.’s story had been concocted in concert with his wife and her daughter because they were upset with him. The second jury again convicted Sharkey.
Seven days after the verdict and before sentencing, Sharkey filed two pro se motions. In the motions, Sharkey requested a new trial and new counsel, basing his arguments on allegations of ineffective assistance of defense counsel. Previously, at various stages of both trials, Sharkey had filed similar motions and had cycled through several attorneys. During the second trial, Sharkey had made complaints against his attorney, at least some of which were similar to those in his posttrial motions.
Pro Se Motions at Issue
In one motion, labeled “Pro Se Motion for Re-Trial,” Sharkey argued he was entitled to a new trial because his counsel kept him “in tire blind” throughout the trial and failed to explain “all and eveiy details, motions, [and] stipulations along with reasons.” Shar-key claimed that he was “hoodwinked” into believing it was defense counsel’s strategy to forego calling Sharkey’s family members who would have testified “as to the nature of the madness that was happening in the year of 2006” and that Sharkey was “in a rocky relationship with my x wife and those girls.” Sharkey further stated that he was “hoodwinked into not taking the stand” in his own defense, and he complained that his counsel “only objected twice” during trial and “refuse[d] to object” when the State’s DNA expert “had to go back and re-state her statement.”
In the other motion, a “Pro Se Motion for Re-Appointment of Counsel,” Sharkey alleged that defense counsel did not properly prepare him for trial and failed to investigate, present a defense, and call witnesses to rebut the “the victim[’]s claims that there was no problems within the relationship at this time.” Sharkey asked the court to grant “a fair trial in a way that is fair to both parties.”
At a joint motions and sentencing hearing, the trial judge acknowledged Sharkey’s pro se motions, as well as separate motions filed by defense counsel. In addressing Sharkey’s pro se motions, the judge only asked one question of Sharkey, “Do you wish to address the Court?” Sharkey answered, “No.” During this portion of the hearing, defense counsel made no comments or arguments.
The court then made findings, addressing only one of Sharkey’s complaints:
“[A]fter reviewing the motions, the defendant chose not to testify and has alleged various reasons in his motion that he felt like he was hoodwinked . . . , but the Court recognizes there were some serious downsides to the defendant testifying and being cross-examined, and he has a Fifth Amendment right to remain silent and not to incriminate himself, and he chose to exercise that right. The jury was told that with the Court’s instruction and heard that in connection with the verdict, so the motion for new trial and motion for reappointment of counsel will be denied.”
Sharkey s counsel then argued the motions he had filed on Shar-key s behalf. The trial judge denied those motions as well and immediately began sentencing proceedings. The judge imposed a life sentence with a mandatory minimum term of 25 years’ imprisonment under Jessica’s Law. See K.S.A. 21-4643(a)(l)(C). As previously mentioned, the original journal entiy included an order that the judge did not state during the hearing—that “lifetime electronic monitoring” was ordered. The sentencing court later corrected the error with an amended journal entry in which lifetime electronic monitoring was deleted, rendering moot any issue regarding die journal entry.
Sharkey appeals, and this court has jurisdiction under K.S.A. 22-3601(b)(1) (conviction of off-grid crime; maximum sentence of life imprisonment imposed; sentence imposed pursuant to K.S.A. 21-4643).
Error in Failing to Inquire into Nature of Conflict and Not Appointing New Conflict-Free Counsel
Sharkey contends the trial judge should reasonably have known that he and his trial attorney had a conflict of interests due to his allegations that his attorney was ineffective. In such a situation, he argues the judge was obligated to inquire into a potential conflict and then to appoint new conflict-free counsel. In this appeal, Shar-key rests his argument on the judge’s failure to conduct an inquiry or appoint new conflict-free counsel to assist him in arguing his pro se new-trial motions. He does not argue the merits of his motions or request us to grant him a new trial. Instead, he seeks a remand and conflict-free counsel to argue the motions for him.
Before discussing the substance of the argument, we note that we have framed the issue in the context of considering both of Sharkey’s motions as ones for new trial. One motion clearly requests a retrial. The other, while unambiguously requesting new counsel, is less clear regarding a new-trial request. Nevertheless, in his second motion, Sharkey asked “that the Courts will grant me a fair trial,” which we read to be a request for a new trial. See State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010) (pro se pleadings are to be liberally construed to give effect to the content). Consequently, our analysis is controlled by caselaw addressing the right to the effective assistance of counsel when presenting a motion for new trial.
Turning to the substance of Sharkey s arguments, in order to analyze whether the trial judge erred by failing to appoint conflict-free counsel to represent Sharkey on his motions, we will consider three questions raised by tire parties’ arguments: (1) Was Sharkey entitled to counsel under the Sixth Amendment to the United States Constitution to argue the motions? (2) If so, was the trial judge required to initiate an inquiry regarding defense counsel’s possible conflict of interests to ensure that Sharkey’s Sixth Amendment right to counsel would not be violated? and (3) In order to be entitled to a new hearing with new conflict-free counsel, must Sharkey show he was prejudiced by defense counsel’s representation at the motions hearing?
1. Sharkey Had a Right to Conflict-Free Counsel
The first question arises because the State argues Sharkey was not entitled to the assistance of counsel at the hearing on his motions. The State takes the position that the motions were not heard during a critical stage of the proceedings against Sharkey because he had already been convicted.
The basis for the State’s argument is the principle that the right to an attorney, as guaranteed a criminal defendant by the Sixth Amendment to the United States Constitution, attaches only to critical stages of a felony proceeding. See Lafler v. Cooper, 566 U.S _, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398 (2012). This right is made applicable to the states through the Fourteenth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 84 L. Ed. 377 (1940); State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). Because Sharkey only makes a-Sixth Amendment claim and decisions of the United States Supreme Court control our application of rights , guaranteed by the -United States Constitution, we must determine whether the hearing on tire motions for new trial was a critical stage of the proceedings against Sharkey. If not, the State is correct that we need not be concerned with whether Sharkey’s counsel had a conflict because Sharkey did not have the right to effective assistance of counsel.
The United States Supreme Court has not directly answered the question of whether a hearing on a motion for new trial is a critical stage of the proceedings. Nevertheless, the Court has provided guidance by identifying tire starting and ending points of a proceeding—the two ends of tire spectrum—where the right to counsel applies. At one end of this spectrum, the Court has determined that “[a] criminal defendant’s Sixth Amendment right to counsel attaches after judicial proceedings have been initiated against him.” United States v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013), (citing McNeil v. Wisconsin, 501 U.S. 171, 175, 111 S. Ct. 2204, 115 L. Ed. 2d 158 [1991]), cert. denied 134 S. Ct. 421 (2013). At the other end, “the right to appointed counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); see Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 606-07, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974); Kitchen v. United States, 227 F.3d 1014, 1018 (7th Cir. 2000) (“[Ojnce the direct appeal has been decided, the right to counsel no longer applies [citing Finley, 481 U.S. at 557].”).
The United States Circuit Courts of Appeal have applied these principles to the question of whether a new-trial motion is a critical stage of the proceedings against a felony defendant. They have pinpointed three categories: (1) timely motions for new trial filed before a direct appeal, (2) motions filed after a direct appeal, and (3) untimely motions filed before a direct appeal.
As to the first category, the “circuit courts have held that a new-trial motion filed after the trial but before the appeal is a critical stage with the attendant Sixth Amendment right to'counsel.” Williamson, 706 F.3d at 416; see McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (“Every federal circuit court to address the question of whether the post-trial, pre-appeal time period for making a motion for new trial is a critical stage has concluded that it is.”).
As to the second categoiy, the Circuit Courts of Appeal have determined that “[a]s a corollary, a petitioner has no Sixth Amendment right to counsel in order to mount a collateral attack tó his conviction. [Citation omitted.]” Williamson, 706 F.3d at 416; see Finley, 481 U.S. at 555 (the right to counsel extends no further than direct appeal); Kitchen, 227 F.3d at 1019 (stating “it is well established that there is no constitutional right to counsel in collateral proceedings”). This means that the second. category—a new-trial motion filed after the direct appeal—“is not a critical stage, but rather a collateral proceeding with no attendant Sixth Amendment right to counsel. [Citations omitted.]” Williamson, 706 F.3d at 416.
Addressing the third category—where a new-trial motion is filed before the direct appeal is completed but after the time limitation for such a motion—several federal Circuit Courts of Appeal, including the Fourth Circuit Court of Appeals in Williamson, have determined motions for new trial filed after the time limitation but before the direct appeal are viewed as a collateral proceeding for which there is no right to counsel. These courts reason that a late motion does not become part of the direct appeal and, therefore, does not fall within the Supreme Court’s caselaw guaranteeing a right to counsel through the completion of the direct appeal. See, e.g., Williamson, 706 F.3d at 417-18.
In this case, the State does not discuss these or any other federal authorities but relies on Kansas cases adopting the same position as the federal court in Williamson—there is no Sixth Amendment right to the assistance of counsel when a preappeal motion for new trial is untimely. For example, in both State v. Kirby, 272 Kan. 1170, 1192-96, 39 P.3d 1 (2002), and State v. Kingsley, 252 Kan. 761, 766-67, 851 P.2d 370 (1993), this court held a trial judge did not err in deciding an untimely motion for new trial without appointing counsel for tire defendant. Based on these cases, the State argues the trial judge was not obligated to appoint new counsel to assist Sharkey with his pro se new-trial motions.
The State’s argument is misplaced, however, because these authorities do not apply to the circumstances of this case where the new-trial motions were timely. Sharkey’s motions were filed 7 days after the verdict was entered, well within the 14-day period for filing a motion for new trial. See K.S.A. 2013 Supp. 22-3501(1); L. 2010, ch. 135, sec. 25 (amending previous 10-day period to 14 days effective July 1, 2010). Furthermore, like the federal courts, this court in State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980), recognized the distinction between a motion for new trial filed within the statutory limitation period and one that was not filed within this time, holding that the right to counsel applied to the timely motion but not the untimely one.
“We think it is clear that the customary motion for a new trial which must be filed within ten days [now 14 days] under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings which falls within the purview of K.S.A. 1979 Supp. 22-4503, and counsel must he provided for the purposes of such a motion. Are subsequent motions, filed after the ten [now 14] day period and frequently after an unsuccessful appeal, seeking a new trial on the grounds of newly discovered evidence, also within tire purview of the statute? We think not.” (Emphasis added.) Andrews, 228 Kan. at 375.
As further explained in Kingsley, 252 Kan. at 766-67, an untimely motion is considered under K.S.A. 22-4506, which applies to collateral attacks on a conviction. In such a case, a trial judge “may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief, in which case [the judge may] summarily deny the motion without appointing counsel.” Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011). The determination of whether the motion presents substantial questions of law justifying the appointment of counsel “ ‘rests within the sound discretion of tire trial court.’ [Citation omitted.]” Kingsley, 252 Kan. at 766; see Albright, 292 Kan. at 196; Kirby, 272 Kan. at 1193-94.
In contrast, as stated in Andrews, 228 Kan. at 375, timely motions for new trial fall under K.S.A. 22-4503(a), which provides in relevant part: “A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings.”
In summary, a motion for new trial filed within the 14-day limitation period in K.S.A. 2013 Supp. 22-3501(1) and before a direct appeal is a critical stage of the criminal proceedings, and a defendant has a Sixth Amendment right to the representation of counsel at a hearing on the motion. In this case, because Sharkey s motions were timely, he had a right to counsel, based on the Sixth Amendment to the Constitution, at the hearing on his timely pro se motions for new trial. Additionally, “[w]here a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest. [Citations omitted.]” Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).
Hence, tire State’s argument that Sharkey did not have a right to conflict-free counsel to assist him with his pro se new-trial motions is without merit.
2. Trial Judge’s Duty to Inquire into Nature of Conflict
Having determined that Sharkey had a right to conflict-free counsel, we reach Sharkeys contention that the trial judge was obligated to initiate an inquiry regarding defense counsel’s possible conflict of interests in order to ensure that Sharkey’s Sixth Amendment right to courisel would not be violated. He argues the duty to inquire was triggered when (1) he filed motions alleging his attorney was ineffective and (2) his attorney left Sharkey to argue the merits of the motions on his own.
As Sharkey argues, “[i]t is the task of the district judge to ensure that a defendant’s right to counsel under the Sixth Amendment to the United States Constitution is honored. [Citations omitted.]” State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007). In order to fulfill this duty, “[w]here a trial court becomes aware of a possible conflict of interest between an attohiey and a defendant charged with a felony, die court has a dirty to inquire further.” State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P.3d 307 (2006). “If an appropriate inquiry is made, the district coúrt’s decision is reviewed under an abuse of discretion standard. [Citations omitted.] But a district court abuses its discretion when it makes no inquiry into the nature of the conflict. [Citation omitted.]” State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013).
Because the trial judge in this case did not make an inquiry in light of the apparent conflict between Sharkey’s interests and those of his attorney, Sharkey argues he is entitled to a remand and the appointment of new conflict-free counsel. For support he cites State v. Toney, 39 Kan. App. 2d 1036, 187 P.3d 138 (2008).
In Toney, the defendant claimed the district court failed to inquire about a possible conflict with his counsel during a hearing on a motion to withdraw plea based in part on allegations of ineffective assistance of counsel. At the hearing, Toney’s counsel candidly acknowledged her conflict to the court, and the prosecutor agreed. After Toney personally addressed the district court about his concerns, the court summarily denied the motion without appointing substitute counsel or conducting an evidentiary hearing.
On appeal, Toney argued the situation placed his counsel in an actual conflict with Toney’s interests and violated his rights under the Sixth Amendment. The Court of Appeals noted that “[although the district court asked some questions of Toney, these inquiries did not directly address the conflict issue, and no questions were asked of his public defender.” Toney, 39 Kan. App. 2d at 1041.
The Court of Appeals agreed that Toney’s counsel had an actual conflict of interests in representing Toney at the hearing on the motion to withdraw plea:
“In order to faithfully and effectively represent Toney at the hearing, tire public defender would be obligated to advocate and prove her own professional ineffectiveness. On the other hand, in order to defend herself against Toney’s allegations of ineffectiveness, the public defender would be required to advocate against her client’s legal position. This obviously placed the public defender in a tenuous position.” Toney, 39 Kan. App. 2d at 1042.
The Court of Appeals concluded that counsel’s conflicted representation “necessarily undermined any possibility that Toney’s motion would be successful.” Toney, 39 Kan. App. 2d at 1044.
As in Toney, Sharkey’s defense counsel did not argue his own ineffectiveness, nor did he seek to withdraw so that Sharkey could be represented by conflict-free counsel at the motions hearing. Further, no evidence was presented in support of Sharkey’s pro se motions, and defense counsel did not malee any statement regarding those motions. Because of defense counsel’s inaction, Sharkey was essentially required to present pro se legal arguments in support of his motions for new trial even though the State was represented by counsel.
Under these circumstances, we agree with the Toney court that the potential of a conflict of interests was apparent. Faced with this conflict, the trial judge was required to make an appropriate inquiry into the conflict, and the failure to do so was an abuse of discretion. See Stovall, 298 Kan. 362, Syl. ¶ 2; Carter, 284 Kan. at 321; Vann, 280 Kan. 782, Syl. ¶ 1; accord Mickens v. Taylor, 535 U.S. 162, 168-70, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002). Granted, Sharkey had previously made complaints against his attorney, and the trial judge had previously asked him questions about his grievances. Nevertheless, when Sharkey filed the posttrial motions, the judge had a duty to explore the new allegations and determine whether there had been a breakdown in the attorney-client relationship or any other change in circumstances that warranted the appointment of a new attorney.
The State suggests the trial judge fulfilled his obligation by giving Sharkey the opportunity to argue his motions on the record. Because Sharkey declined, the State advances the invited error rule— a litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. See State v. Kirtdoll, 281 Kan. 1138, Syl. ¶ 8, 136 P.3d 417 (2006); State v. Saleem, 267 Kan. 100, 109, 977 P.2d 921 (1999). We disagree. As we recently stated:
“A district court does not fulfill its obligation to insure a criminal defendant’s right to effective assistance of counsel under the Sixth Amendment to the United States Constitution at sentencing or at a hearing on a motion for new trial by merely providing the defendant with an opportunity to make a pro se statement in lieu of affording him or her the opportunity to have adequate representation from an informed, prepared, and effective attorney.” Stovall, 298 Kan. 362, Syl. ¶ 6.
Under our holding in Stovall, simply allowing a defendant to make a statement regarding his or her complaints is an insufficient inquiry. We recognize, however, that some past cases took a different view. For example, in State v. Richardson, 256 Kan. 69, 883 P.2d 1107 (1994), the trial judge made no additional inquiry after a defendant expressed the reasons for her dissatisfaction with her attorney. Nevertheless, this court determined the judge had not abused his discretion, in part because the judge had fully addressed the defendant’s complaints, which this court felt showed that the judge “was not uninformed on the relationship.” 256 Kan. at 82. Even if we were to adhere to a position that a judge’s duty is fulfilled by giving the defendant an opportunity to make a statement, which we are not inclined to do in light of our recent decision in Stovall, the circumstances of this case are distinguishable from Richardson because the trial judge did not fully address Sharkey’s complaints in making findings and denying Sharkey’s motions. As a result, we cannot be assured the judge fully understood Sharkey’s position.
When Sharkey indicated he was not going to make a statement, the trial judge should have asked questions to assure himself that he was fully informed of the various reasons for Sharkey’s complaints. Because the judge failed to make any inquiiy, we conclude the trial judge abused his discretion.
3. Showing of Prejudice Not Required
The third question to be addressed is the effect of this abuse of discretion and, specifically, whether, in order to have the judge’s ruling reversed, Sharkey must show he was prejudiced by defense counsel’s representation at the hearing on the pro se motions. The State contends that Sharkey’s arguments should fail—and the case should not be remanded for a new hearing with new counsel— because Sharkey has not shown that he was prejudiced “in any manner” by the conflict. More specifically, the State complains that Sharkey does not claim that his “sentencing hearing” was compromised by defense counsel’s legal representation. This argument shifts the focus of this appeal, however, which is on the motions hearing, not sentencing. The State does not malee any particular argument in support of its position that Sharkey had to demonstrate he was prejudiced by defense counsel’s representation at the hearing on his pro se new-trial motions.
Even if the State had intended to include the motions hearing in its argument about prejudice, such an argument is without merit. Although the State does not cite Strickland, 466 U.S. 668, the State appears to derive its prejudice argument from Strickland, which generally applies to claims of ineffective assistance of counsel based on counsel’s performance. Under the Strickland standard, a defendant must demonstrate that (1) counsel’s performance was deficient and (2) counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. Strickland, 466 U.S. at 687; Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012); Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985); see, e.g., Holmes v. State, 292 Kan. 271, 274-75, 252 P.3d 573 (2011). But in contrast to cases falling under Strickland, claims of ineffective assistance of counsel based upon a conflict of interests are analyzed somewhat differently under Mickens, 535 U.S. at 166.
The Mickens Court distinguished three categories of ineffective assistance of counsel claims brought under the Sixth Amendment. See Galaviz, 296 Kan. at 181-82 (discussing Mickens, 535 U.S. at 166). The first category includes cases in which it is claimed that counsel’s performance was so deficient that die defendant was denied a fair trial. These claims are controlled by Strickland, 466 U.S. 687, 694. It is this standard that would apply if we were determining the merits of Sharkey’s new-trial motions. The second category applies when the assistance of counsel was denied entirely or denied at a critical stage of tire proceedings. United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), defines the standard that applies to these claims. The third category includes situations where the defendant’s counsel “actively represented conflicting interests.” Mickens, 535 U.S. at 166.
The present appeal falls into the second Mickens category'—the Cronic exception—where the complete denial of the assistance of counsel or tire denial of counsel at a critical stage of the proceedings presents “ ‘circumstances of [such] magnitude’ ” that a court “presumes a probable effect upon the outcome” and “a case-by-case inquiry [of prejudice] is unnecessary.” Mickens, 535 U.S. at 166 (citing Cronic, 466 U.S. at 658-59). For the Cronic exception to apply in circumstances where a defendant is represented by counsel, “the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914, reh. denied 536 U.S. 976 (2002). Of course in this case, the subject of this appeal is not whether the entire trial and verdict was compromised; it is the trial judge’s ruling on the pro se motions for new trial that was compromised. Significantly, the Cronic exception can apply to a complete denial of representation during a critical stage of the proceedings, see Mickens, 535 U.S. at 166, and, as we have discussed, the motions for new trial were presented during such a stage.
Under Cronic, Sharkey was constructively denied his right to counsel because of his attorney’s conflict of interests; he effectively had no legal representation at the motions hearing. See Mickens, 535 U.S. at 172 n.5 (stating that an “ ‘actual conflict,’ ” for Sixth Amendment purposes, is necessarily a conflict of interest adversely affecting counsel’s performance). This leads to a presumption of prejudice. See Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007) (after attorney stood mute at sentencing hearing, held “effective abandonment of a defendant at sentencing calls for the application of Cronic”).
In conclusion, Sharkey was denied the assistance of counsel at a critical stage of the criminal proceedings and prejudice is presumed. Therefore, this case is remanded with instructions to hold a new hearing on Sharkey’s pro se new-trial motions with new conflict-free counsel appointed to argue the motions. If on remand the trial judge denies the motions, finding no ineffective assistance of trial counsel, a new trial is unnecessaiy. But if the trial judge grants tire motions, finding ineffective assistance of trial counsel, a new trial should be conducted and trial counsel appointed.
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The opinion of the court was delivered by
Biles, J.:
Erik Pettay seeks review of a Court of Appeals decision approving the admission of drug evidence obtained during a vehicle search incident to his arrest for driving with a suspended license. The search occurred 2 days before the United States Supreme Court’s decision in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (invalidating certain searches incident to arrest). Both parties agree Gant rendered the search illegal. See State v. Henning, 289 Kan. 136, 148-49, 209 P.3d 711 (2009) (following Gant). The lingering issue is whether the State can still use the illegally seized evidence under a good-faith exception to the exclusionary rule recognized by this court for -pre-Gant searches incident to a lawful arrest. See State v. Daniel, 291 Kan. 490, 505, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011) (allowing evidence obtained based on officer’s objectively reasonable reliance on constitutionality of K.S.A. 22-2501[c]); see also State v. Carlton, 297 Kan. 642, 647, 304 P.3d 323 (2013) (same); State v. Karson, 297 Kan. 634, 641, 304 P.3d 317 (2013) (same); State v. Dennis, 297 Kan. 229, 240, 300 P.3d 81 (2013) (same).
Pettay argues the good-faith exception should not apply in his case because the search exceeded the physical scope permitted by K.S.A. 22-2501 (repealed July 1, 2011, by L. 2011, ch. 100, sec. 22). He is the first litigant to present this precise issue to this court. See Dennis, 297 Kan. at 239-40 (specifically noting defendant did not argue the search was outside his immediate presence or the statute’s permissible physical scope); Daniel, 291 Kan. at 501-02 (same). But our Court of Appeals has addressed the issue with varying results. See State v. Davison, 41 Kan. App. 2d 140, 148, 202 P.3d 44 (2009) (automobile search did not exceed K.S.A. 22- 2501’s physical scope limitation, even though defendant was removed from car, handcuffed, and placed in patrol car before the vehicle search, revel by Supreme Court order dated October 9, 2009); but see State v. Oram, 46 Kan. App. 2d 899, 914, 266 P.3d 1227 (2011) (good-faith exception not available when officers searched vehicle incident to arrest when defendant was handcuffed and secured in patrol car because vehicle was not within defendant’s immediate presence); State v. Sanders, 5 Kan. App. 2d 189, 196-97, 614 P.2d 998 (1980) (when defendant secured behind vehicle, vehicle is no longer within arrestee’s immediate control).
K.S.A. 22-2501 directs diat an officer “may reasonably search the person arrested and the area within such persons immediate presence.” (Emphasis added.) When Pettay’s vehicle was searched, he was handcuffed and secured in a patrol car. The Court of Appeals agreed with the State drat a good-faith exception should apply based on the factual similarities with the search in Daniel. State v. Pettay, No. 107,673, 2013 WL 1149745, at *8, (Kan. App. 2013) (unpublished opinion).
We disagree with that outcome. The State’s arguments do not justify application of a good-faith exception in light of the plain language of K.S.A. 22-2501, which had been held to statutorily control the permissible circumstances, purposes, and scope for a search incident to arrest long before Pettay’s vehicle search. See State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004); State v. Anderson, 259 Kan. 16, 22, 910 P.2d 180 (1996). Based on the issues as presented by the parties, we reverse the Court of Appeals panel, reverse tire district court’s order, and remand.
Factual and Procedural Background
On April 19, 2009, a Reno County Sheriff s deputy initiated a traffic stop of Pettay’s vehicle. The deputy had learned the vehicle’s owner, who matched Pettay’s description, had a suspended driver’s license. Pettay acknowledged the suspended license and could not produce proof of current insurance. The deputy handcuffed Pettay and put him in the backseat of a patrol car. Another officer stayed with Pettay while the deputy conducted a warrantless search of Pettay’s vehicle incident to his arrest. During the search, the dep uty found a multicolored glass pipe on the passenger-side floorboard.
The pipe contained a residue the deputy believed to be marijuana, which later testing confirmed. Pettay subsequently waived his Miranda rights during questioning. He admitted the pipe was his and that he had smoked marijuana the night before. The State charged Pettay with felony possession of marijuana, failure to provide proof of liability insurance, and driving with a suspended license. See K.S.A. 2008 Supp. 8-262 (suspended license); K.S.A. 2008 Supp. 40-3104 (proof of insurance); K.S.A. 2008 Supp. 65-4162(a)(3) (possession).
Two days after his arrest, the United States Supreme Court decided Gant, which prohibits warrantless vehicle searches incident to arrest unless the arrestee is within reaching distance of the passenger compartment at the time of the search or there is a reasonable belief the vehicle contains evidence of the crime of arrest. Gant, 556 U.S. at 351; see also Henning, 289 Kan. at 148-49. Relying on Gant and Henning, Pettay moved to suppress the drug evidence.
The State conceded the search was illegal under Gant but asserted the evidence should not be suppressed because the deputy relied in good faith on controlling law in effect at the time of the search, citing K.S.A. 22-2501(c) and New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). The district court ruled a good-faith exception did not apply because neither Gant nor Henning referred to it when suppressing the evidence in those cases, and granted Pettay’s motion. The State filed an interlocutoiy appeal.
While that appeal was pending, this court issued its opinion in Daniel, 291 Kan. at 493, which held an officer’s pre-Gant vehicle search incident to arrest was subject to the good-faith exception to the exclusionary rule based on the officer’s objectively reasonable reliance on K.S.A. 22-2501(c), which authorized searches incident to arrest to discover “the fruits, instrumentalities, or evidence of a crime.” (Emphasis added.) Relying on Daniel, the Court of Appeals summarily reversed the district court’s suppression order in Pet-tay’s case and remanded for further proceedings. See Supreme Court Rule 7.041 (2013 Kan. Ct. R. Annot. 62) (authorizing summary disposition).
On remand, Pettay continued to press the suppression issue. Pie advanced an argument based on a then-recendy released Court of Appeals panel’s decision in which a majority of the panel held that Daniel did not mandate application of a good-faith exception because the officer in that case had not expressly claimed he was relying on K.S.A. 22-2501(c) to conduct the pre-Gani search. See State v. Dennis, No. 101,052, 2011 WL 425987, at *3 (Kan. App. 2011) (unpublished opinion), rev'd 297 Kan. 229, 300 P.3d 81 (2013). Pettay also argued the vehicle was not within his “immediate presence” at the time of the search as specified by K.S.A. 22-2501, which is the principal focus in this appeal.
The district court refused to suppress the evidence, holding it was obliged to follow Daniel. The district court found Pettay guilty on all charges after a bench trial on stipulated facts. It imposed sentences on all counts, including 18 months’ community corrections with an underlying 12-month prison term for the possession of marijuana conviction. Pettay timely appealed to the Court of Appeals.
In an unpublished opinion, a Court of Appeals panel affirmed the district court’s denial of Pettay’s motion to suppress. Pettay, 2013 WL 1149745, at *8. The panel held the good-faith exception articulated in Daniel applied, even though the deputy had not explicitly said he relied on K.S.A. 22-2501. It also rejected Pettay’s argument that the search exceeded the physical scope authorized by K.S.A. 22-2501. It held “well-trained law enforcement officers in Kansas could not have known that it was unlawful to search a car after the defendant had been handcuffed and placed in the backseat of a patrol car until the United States Supreme Court’s decision in Gant.” Pettay, 2013 WL 1149745, at *7.
In so ruling, the panel relied on Daniel, expressly noting the facts in Daniel were markedly similar to Pettay’s circumstances. Pettay, 2013 WL 1149745, at *5. The panel also rejected the analysis that led a different Court of Appeals panel to reach a contraiy result in Oram. Pettay, 2013 WL 1149745, at *7.
Pettay timely petitioned for review, which we granted. Jurisdiction is proper under K.S.A. 20-3018(b).
Analysis
Pettay argues the good-faith exception is inapplicable because (1) there was no evidence the deputy actually relied on K.S.A. 22-2501(c) when he searched the car; and (2) the car was not within Pettay s immediate presence when it was searched, i.e., the search was outside the statute’s permissible scope. The State argues this case is factually indistinguishable from Daniel and that the car was within Pettay’s immediate presence.
Standard of Review
The district court’s factual findings on a motion to suppress evidence are reviewed for substantial competent evidence. The legal conclusions drawn from that evidence are reviewed de novo. Daniel, 291 Kan. at 495. The facts in Pettay’s case are undisputed. Accordingly, the district court’s decision as to whether suppression was warranted is reviewed de novo. See 291 Kan. at 495.
Discussion
Warrantless searches are considered unreasonable and invalid unless they fall within recognized exceptions to the warrant requirement. The State bears the burden to demonstrate a challenged search was lawful. 291 Kan. at 496. In Pettay’s case, it is undisputed there was no warrant authorizing the vehicle search, and the State agrees the search was unlawful under Gant and Hen-ning. The only question then is whether the appropriate remedy is to suppress the illegally seized evidence. This is a question of law. See 291 Kan. at 496.
Neither the Fourth Amendment nor its state counterpart in § 15 of the Kansas Constitution Bill of Rights prohibits the use of illegally seized evidence in criminal proceedings. Instead, an exclusionary rule has developed, which is a judicially created remedy that safeguards Fourth Amendment rights by preventing the use of unconstitutionally obtained evidence in criminal proceedings against victims of illegal searches. 291 Kan. at 496 (citing Illinois v. Krull, 480 U.S. 340, 347, 107 S. Ct. 1160, 94 L. Ed. 2d 364 [1987]).
But the exclusionaiy rule is not absolute. See United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677, reh. denied 468 U.S. 1250 (1984). It is a deterrent measure, not a personal constitutional right. Daniel, 291 Kan. at 496. Therefore, its application is “ ‘restricted to those situations in which its remedial purpose is effectively advanced.’ ” 291 Kan. at 496 (quoting Krull, 480 U.S. at 347). “[Q]uestions regarding whether evidence should be excluded as a sanction for a Fourth Amendment violation should be answered by weighing the costs and benefits of preventing the prosecution’s use of illegally obtained evidence.” 291 Kan. at 497 (citing Leon, 468 U.S. at 907); see also Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (suppression unwarranted when it fails to yield appreciable deterrence; deterrent value necessary for exclusion but must always be weighed against social costs).
Pettay first claims the good-faith exception for objectively reasonable reliance on K.S.A. 22-2501(c) cannot apply because the deputy did not testify he relied on the statute in conducting the search. This claim is without merit. Whether the exception should apply turns on whether, at the time of the search, an objectively reasonable officer could rely on the statute, not on whether the officer subjectively had the statute in mind. Dennis, 297 Kan. at 230 (testimony that search was “incident to arrest” sufficient basis to apply good-faith analysis; not necessary to recite the statute); see also Karson, 297 Kan. at 640-41 (same).
But Pettay’s “immediate presence” argument, i.e., whether the search was within the statute’s permissible physical scope, requires more detailed consideration. At the time of Pettay’s arrest, Kansas had codified the scope of police authority to perform searches incident to arrest. That statute provided:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the 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 tire fruits, instrumentalities, or evidence of a crime.” (Emphasis added.) K.S.A. 22-2501.
As readily seen, when it was in effect, K.S.A. 22-2501 authorized searches incident to arrest, but it also limited the physical scope and expressly stated the limited purposes of that search. See Daniel, 291 Kan. at 501; Conn, 278 Kan. at 391; Anderson, 259 Kan. at 22. The physical scope was specified to be the arrestee’s “immediate presence,” and the limited purposes were set out in the statute’s subsections. Daniel, 291 Kan. at 501.
The State argues the “immediate presence” limitation is expanded by federal caselaw such as Belton and its progeny to permit a vehicle search even while the arrestee is secured away from the vehicle. But our court has expressly rejected that argument and held federal Fourth Amendment caselaw, such as the Belton line of cases, does not expand the statute’s plain language. See Conn, 278 Kan. at 391 (rejecting view that Fourth Amendment caselaw would automatically authorize automobile search after occupant arrested); Anderson, 259 Kan. at 22 (“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.”).
We hold that after Conn and Anderson, a law enforcement officer conducting a search incident to arrest could not objectively reasonably rely on federal caselaw to enlarge the physical scope set out in K.S.A. 22-2501 beyond the statute’s plain language, which limited the search to the subject’s “immediate presence.”
Admittedly, some Kansas appellate cases issued before our decision in Daniel, such as the Court of Appeals’ decision in State v. Karson, 44 Kan. App. 2d 306, 235 P.3d 1260 (2010), aff'd 297 Kan. 634, 304 P.3d 317 (2013), which the State cites as authority, recognized a good-faith exception based on the Belton line of cases. But those Court of Appeals cases considered K.S.A. 22-2501 to be coextensive with federal search-incident-to-arrest caselaw, which is a proposition contradicted by this court’s prior caselaw. Compare Conn, 278 Kan. at 391, and Anderson, 259 Kan. at 22, with Karson, 44 Kan. App. 2d at 310-14.
Even so, the Karson Court of Appeals decision came after the search of Pettay’s vehicle, so it cannot justify the deputy’s actions. See Daniel, 291 Kan. at 504-05 (officer’s objectively reasonable reliance on statute demonstrated by appellate decisions that predated search). Indeed, the State cites no prior appellate court decision on the permissible physical scope of a search under K.S.A. 22-2501 to justify the Pettay search. An issue not briefed on appeal is deemed waived. See Dennis, 297 Kan. at 240 (declining to consider defendant’s scope-of-search argument because defendant failed to address statutory language); see also Daniel, 291 Kan. at 501-02 (noting defendant did not argue items seized were outside his immediate presence).
The State also argues Daniel controls the outcome because of its factual similarity, but that argument does not consider that the legal arguments here are different. Daniel was resolved solely on the ground that an officer’s reliance on the legislatively enacted language in K.S.A. 22-2501(c) in conducting a pre-Gani search was objectively reasonable. The defendant in Daniel claimed only that the search violated Gant; he did not argue the search occurred outside the defendant’s immediate presence, so we did not address that issue. See 291 Kan. at 501-02.
Pettay, however, ventures precisely where the defendant in Daniel did not. He argues that at the time of the search the deputy could not have relied on the authority imparted by K.S.A. 22-2501 because the physical scope of the search exceeded that statute’s express language, i.e., “immediate presence,” because he was handcuffed and secured in a patrol car. Daniel’s factual similarity is unavailing because Pettay advances different legal arguments arising from those facts that Daniel did not. We hold Pettay’s search exceeded the physical scope authorized by the statute and, necessarily, exceeded the authority conferred upon tire deputy by K.S.A. 22-2501.
The only remaining question is whether applying the exclusionary rule would serve the purpose of deterring future law enforcement misconduct. See Davis, 131 S. Ct. at 2426; Karson, 297 Kan. at 639 (noting purpose of exclusionary rule is to deter future violations by the State). We hold that it does, although it is a closer call given the contradictory caselaw prior to the search from the Court of Appeals. See Davison, 41 Kan. App. 2d at 148; Sanders, 5 Kan. App. 2d at 196-97.
But the prior caselaw from this court in Conn and Anderson held that K.S.A. 22-2501 was not made more expansive by the Belton line of cases, so we hold that the better view is that the State has an obvious interest in ensuring law enforcement officers comply with the plain language of a statute authorizing a warrantless search. No other remedy but suppression can effectively serve that interest in this instance.
Since no other justification is offered to save the search results, we reverse the Court of Appeals and the district court in their application of the good-faith exception to the exclusionaiy rule and remand this case for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Johnson, J.:
Juan Lopez directly appeals from his jury convictions for two counts of premeditated first-degree murder and one count of fleeing or attempting to elude a police officer. The State alleged that Lopez drove the vehicle from which his codefendant, Eldier Molina, shot and killed two rival gang members in another car. Lopez challenges the sufficiency of the evidence on two bases: (1) The eyewitness identification witnesses were unreliable; and (2) there was no evidence Lopez possessed the requisite premeditated intent to kill the victims when he aided and abetted Molina. Lopez also raises two issues regarding the imposition of a life sentence pursuant to K.S.A. 21-4635 with a mandatory minimum term of 50 years (hard 50), to-wit: (1) The district court erroneously considered irrelevant information about a previous murder trial in which Lopez was acquitted; and (2) the district court improperly weighed the statutorily prescribed aggravating and mitigating circumstances before imposing the hard 50 sentence. We affirm.
Factual and Procedural Overview
On die evening of November 13,2009, two Kansas City, Kansas, police officers, Jason Pittman and Darrell Forrest, were in a marked patrol car, following a vehicle pursuant to an unrelated drug investigation. While stopped at the intersection of 18th and Central, Officer Pittman saw a silver Honda drive into the oncoming lane to pull alongside a black sedan, placing the Honda’s passenger side next to tire sedan’s driver side. The officer heard several gunshots fired in quick succession and saw a muzzle flash coming from a gun that was extended out of the open passenger side window of the Honda. The shots hit and killed two occupants of the sedan, Gerson Diaz-Turcios and Jose Diaz-Turcios, who were brothers and ostensibly members of the Florence (F13) gang.
After the shooting, the Honda proceeded through the intersection in front of the officers, who had activated the patrol car’s lights and siren. Officer Pittman would testify that he saw the Honda’s driver well enough that he could see the driver mouth a scatological expletive. The officers gave chase and were joined by other pursuing officers until the Honda came to a dead end near a wooded area. The driver and front-seat passenger fled afoot, while tire •backseat passenger, later identified as 12-year-old Max Palomino, surrendered to the police.
The front-seat passenger, later identified as Molina, was tracked by a trained canine to a residence where he was found face down on the ground underneath a deck. The driver eluded capture that •evening. But early tire next morning, Palomino told a detective that Lopez was driving the Honda and Molina was the shooter. Officer Pittman, upon learning from the detective that Lopez was involved, located a police photograph and positively identified Lopez as the person he saw driving the Honda at the scene of the shooting.
The State charged Molina and Lopez with premeditated first-degi'ee murder for the killings of the Diaz-Turcios brothers. Molina was also charged with criminal possession of a firearm, and Lopez was charged with fleeing or attempting to elude a police officer. They were tried together, and both were convicted on all counts.
Palomino testified at trial that Molina and Lopez were members of the Sureños Por Vida (SPV) gang with whom he associated, albeit he was not a member. On the night of the incident, Palomino accompanied Molina and Lopez, who were en route to a gang meeting in the Honda. They stopped for gasoline at 18th and Grandview, where they encountered five members of the rival F13 gang. Palomino testified at trial that he watched from inside the Honda as Molina and Lopez argued with die F13 gang members. He admitted that in his initial statement to the police he had lied about exiting the Honda to pump gasoline.
Palomino related that when they left the station with Lopez driving the Honda, the vehicle containing the F13 gang members (F13s) followed. Palomino suspected that Molina and Lopez had told tire F13s to follow them. At some point, Lopez turned one way and the F13s’ car went the other way; Lopez made a U-turn and ended up right behind the F13s at the 18th and Central stoplight. At that point, Lopez drove alongside the F13s’ vehicle to allow Molina to shoot from the Honda’s passenger seat into the driver’s side of the F13s’ vehicle. Palomino testified that Molina fired three rounds at the F13s before Lopez “peeled out” and proceeded through the intersection.
Palomino testified that he believed Lopez knew the drive-by shooting was going to occur. He based that belief on his own knowledge that someone was going to get shot after he saw the SPV gang members encounter the rival F13 gang members at the gasoline station and observed that Molina had a handgun. He related that everyone in the SPV gang knows that if an SPV runs into an F13, the SPV is expected to either fight the F13 or shoot the rival if a firearm is available. He further related that the F13 gang members are expected to shoot someone on a Friday the 13th, which was the day and date of this occurrence. Accordingly, Palomino said, “[W]e were out that day tiying to see if we can catch somebody.”
On the other hand, Palomino admitted he initially told police he thought that he, Molina, and Lopez were just going to drive around and he did not know they were going to shoot anyone. Further, on cross-examination at trial, Palomino contradicted his direct testimony by saying that until the shooting occurred, he did not see the gun and he thought the three of them were only going to fistfight with the F13s.
The State presented a surveillance videotape from the gasoline station that corroborated some of Palomino’s testimony. Although the videotape has not been included in the record on appeal, we do have some discussion of the videotape by the witnesses. Those witnesses clearly put the Honda at the 18th and Grandview gasoline station, although the faces of Molina and Lopez were not displayed on the recording. The evidence did depict two men talking to the F13 group and then getting back into the Honda, who were identified by Palomino as Molina and Lopez. Further, Detective Mike Lucas testified that he could identify the two victims as being on the videotape from the station.
Molina testified on his own behalf. He admitted he was a member of the SPV gang and he knew Palomino through Palomino’s older brother. But Molina denied that he had ever been in the Honda on that day or that he had been involved in any manner with die drive-by shooting. Instead, he related an alibi scenario that placed him in the vicinity of his apprehension with marijuana in his pocket. He said the presence of police in the area prompted him to hide under the deck to avoid being caught with the drugs. Molina’s girlfriend, Sandra Rueda, and her 16-year-old sister corroborated portions of Molina’s alibi.
Lopez did not present any evidence in his defense. The jury convicted Molina and Lopez as charged. The district court imposed a hard 50 sentence for Lopez’ first count of first-degree murder and a hard 25 sentence for the second count, to run consecutively. The district court also sentenced Lopez to 6 months for fleeing or attempting to elude a police officer, to run concurrent with the first count. Lopez filed a timely appeal. This court has jurisdiction over Lopez’ appeal under K.S.A. 22-3601(b)(l) (maximum sentence of life imprisonment imposed).
Sufficiency of the Evidence
As noted, Lopez malees two sufficiency of the evidence challenges. First, he attacks all of his convictions by contending Officer Pittman and Palomino provided such unreliable testimony that no rational juiy could have based any conviction on that evidence and there was no other evidence presented to even place Lopez in the Honda. Second, with respect to the premeditated first-degree murder convictions, Lopez argues the State presented no evidence, either direct or circumstantial, that Lopez knew Molina was going to shoot the victims.
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, 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 make witness credibility determinations.” State v. Harris, 297 Kan. 1076, 1081, 306 P.3d 282 (2013) (citing State v. Qualls, 297 Kan. 61, Syl. ¶ 1, 298 P.3d 311 [2013]).
Analysis
Driver of the Honda
Lopez first contends there were only two items of evidence that placed Lopez behind the wheel of the Honda during the shooting: Officer Pittman’s eyewitness identification and Palomino’s accomplice testimony. Lopez argues both witnesses were so unreliable that we must ignore their testimony in assessing evidence sufficiency. To clarify, Lopez does not argue that the district court should have performed the gatekeeping function of excluding Officer Pittman’s eyewitness identification testimony because of a substantial likelihood of misidentification. Cf. State v. Corbett, 281 Kan. 294, 304-06, 130 P.3d 1179 (2006) (considering whether eyewitness identification should have been excluded from jury consideration). Rather, in essence, Lopez asks us to find that the jury in this case was simply incorrect in its assessment of witness credibility. We decline that invitation.
To review, Officer Pittman testified the Honda slowed as it went through the intersection in front of the patrol car; the officer saw the driver’s face turn toward the patrol car and mouth, “Oh, shit”; and the officer could positively identify Lopez as the Honda’s driver. Lopez points out that Officer Pittman’s written report did not mention those important facts, i.e., that the Honda slowed down, that the officer saw the driver’s face, or that the driver mouthed an expletive. Further, Officer Pittman’s partner, Officer Forrest, who was a passenger in the patrol car, testified that the Honda sped through the intersection at a high rate of speed and that he was unable to identify the driver. Lopez also points out that Officer Pittman was occupied with driving the patrol car and activating the emergency lights, whereas Officer Forrest would not have had those distractions.
Lopez outlines some veiy good arguments to present to the jury. Indeed, tiróse arguments were made to Lopez’ jury after defense counsel had zealously cross-examined the State’s witnesses. Now, Lopez asks us to declare Officer Pittman an unreliable witness as a matter of law. Neither inconsistent statements nor conflicting testimony supports such a result. To the contrary, we trust juries to resolve those credibility and weighting questions. Corbett, 281 Kan. at 306 (“juries have the knowledge and experience to determine the reliability of an eyewitness identification”). In Corbett, we approvingly quoted Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977):
“ “We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.’ ” Corbett, 281 Kan. at 305.
Likewise, Lopez’ unreliability challenge to Palomino’s testimony would require this court to invade the province of the jury. Lopez points to Palomino’s admission that he lied to the police about some of the superfluous details of the incident, such as his whereabouts before joining Lopez and Molina in the Honda and whether he exited the Honda at the gasoline station. Pointedly, the critical facts of both accounts did not change, such as Palomino’s presence in the Honda and Lopez’ role as driver. But regardless of the relevancy of the inconsistencies between a witness’ statements to law enforcement interviewers and his or her trial testimony, the procedural mechanism for testing how those inconsistencies impact the witness’ credibility is through cross-examination. Cf. Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (Confrontation Clause guarantees procedural right to assess reliability “by testing in the crucible of cross-examination”). Here, defense counsel took full advantage of defendant’s procedural right to test the reliability of Palomino’s testimony in the crucible of cross-examination. Then, it was up to the juiy to assess Palomino’s credibility and to assign the weight to be given to his trial testimony.
Lopez appears to suggest that his case is different from the many others involving a witness’ prior inconsistent statement because there was a lack of forensic or video evidence to support Palomino’s statements. Lopez cites to no authority to support the notion that an accomplice’s testimony requires corroborating physical or visual evidence. Perhaps that omission is because there is no such precedent. To the contrary, even the “uncorroborated testimony of an accomplice is sufficient to sustain a conviction.” State v. Bey, 217 Kan. 251, 260, 535 P.2d 881 (1975); see State v. Mclaughlin, 207 Kan. 594, 598, 485 P.2d 1360 (1971). Moreover, in this case, there was evidence to corroborate much of Palomino’s version of events, including the gasoline station videotape and Officer Pittman’s identification of Lopez as the driver.
In conclusion, we refuse to second guess the juiy by reassessing witness credibility, resolving conflicting testimony, or reweighing the evidence. Viewed in the light most favorable to the State, the evidence was sufficient for a rational juiy to determine that Lopez was driving the Honda during the drive-by shooting.
Premeditation
Lopez also claims that the State failed to meet its burden of proving beyond a reasonable doubt that he premeditated the two murders. He was prosecuted on an aiding and abetting theory based upon his role as the driver of the Honda from which Molina shot and killed the victims. Nevertheless, we have clarified that, even on an aiding and abetting theory of criminal responsibility, the State must prove that the defendant “possessed die specific intent of premeditation in order to convict [the defendant] of first-degree murder.” State v. Trussell, 289 Kan. 499, 503, 213 P.3d 1052 (2009) (citing State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 [2009]; State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 [2005]).
Lopez points to that portion of Palomino’s testimony where he said he thought the SPVs were merely going to fistfight the F13s, apparently suggesting Lopez would have had the same belief. But, of course, Palomino was not privy to the conversation between the SPVs and F13s at the gasoline station or any discussion between Molina and Lopez. Given that Lopez did not testily, we do not know what he believed to be the plan.
Further, Lopez criticizes the lack of any direct testimony about prior discussions that may have occurred about the proposed shooting or about any threats that may have been exchanged by the respective gang members. He seems to intimate that the State must present direct evidence that the defendant thought over the matter beforehand. But we have “noted that direct evidence of premeditation is rare.” State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). “Unless a person actually communicates his or her reasons for taking another’s life, evidence of premeditation must be proved by circumstantial evidence. Such evidence, however, is sufficient to establish even the gravest offenses . . . .” State v. Doyle, 272 Kan. 1157, 1162, 38 P.3d 650 (2002).
In some cases, this court has looked at certain factors to aid in determining whether the evidence gives rise to an inference of premeditation. Those factors 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.” Qualls, 297 Kan. at 66-67 (citing State v. Scaife, 286 Kan. 614, 617-18, 186 P.3d 755 [2008]). While use of a deadly weapon alone is insufficient to establish premeditation, “in some cases one factor alone may be compelling evidence of premeditation.” Qualls, 297 Kan. at 67.
Here, the jury heard Palomino describe the animus existing between the rival gangs to which Lopez and the victims belonged and that, especially on a Friday the 13th, they were inclined to shoot at each other. He further described how the gangs had a confrontation at the gasoline station, after which they followed each other in their respective vehicles until Lopez drove the Honda into a position in the wrong lane of traffic that gave his partner a shooting lane at the victims. One would expect that if the goal was to engage in a fistfight, the Honda would have blocked the forward progress of the victims’ vehicle to force them to exit their vehicle. A jury would have been justified in drawing the same inference to which Palomino testified, i.e., Lopez knew exactly what he was doing when he pulled the Honda alongside the victims’ car. He was executing a premeditated plan to shoot and kill the victims.
Reiterating, this court does not resolve conflicts in the evidence or pass on the credibility of witnesses. See Harris, 297 Kan. at 1081. Viewing the evidence in a light most favorable to the State, a ra tional factfinder could have found beyond a reasonable doubt that Lopez acted with a premeditated intent to kill.
Evidence of Defendant’s Prior Acquittal
As noted, the district court imposed a hard 50 life sentence on one of the murder convictions. “To impose the hard 50 sentence, the district court must find one or more of the aggravated circumstances enumerated in K.S.A. 21-4636 exist and that the aggravating factors are not outweighed by any mitigating factors. K.S.A. 21-4635(d).” State v. Nelson, 291 Kan. 475, 486, 243 P.3d 343 (2010). Here, the district court found the aggravating circumstance set forth in K.S.A. 21-4636(b), i.e., the defendant “knowingly or purposely killed or created a great risk of death to more than one person.” Lopez does not challenge that finding, but he complains the sentencing court considered another homicide case in which he was acquitted as part of the weighing analysis.
Lopez’ arguments are based on the following exchange:
“MS. WASSON [Prosecutor]: . . . This defendant is known to this court, not only because of his criminal history but because two weeks prior to this offense he was acquitted in this court of another homicide.
“MR. HIGHLAND [Lopez’ Counsel]: Relevance, Judge. I don’t think that’s relevant at all. If he was acquitted, it shouldn’t even be brought up today for sentencing purposes. I know this is the court it took place in—
“MS. WASSON: Your Honor, it dovetails with my arguments concerning the danger he poses to the community. And perhaps I’m mixing this up too much. I realize it doesn’t go directly to the Hard 50 factor. But if, for instance—and, again, I have to speculate to some degree—if Mr. Highland is going to argue that his minor involvement indicates a violent nature of something, then I think it is relevant. So I guess I’ll reserve and wait to hear Mr. Highland’s argument.
“THE COURT: Well, I think we all know that I know that the jury in that case had certain evidence that indicated Mr. Lopez was tire shooter in a gang-related situation that resulted in the death of one child and the wounding of another. And we know that there was testimony that said he was the shooter. It was by virtue of a deposition, because the witness didn’t appear at the jury trial, but I found that the deposition was admissible. The jury in that case, again, under our system, was required to agree unanimously on guilt beyond a reasonable doubt. And regardless of die State’s evidence tíiat inculpated Mr. Lopez, the jury found him not guilty. So I recall all of that.
“MS. WASSON: Judge—
“THE COURT: So I, I overrule the objection but I, as to relevance, but I sustain it as to any implication you thought Ms. Wasson was giving me that Mr. Lopez was guilty. Pie was found not guilty.
“MS. WASSON: Judge, I don’t mean to interrupt. I guess I—and if I’m mistaken, please let me know—but I guess I’m in the position where I’m arguing for the sentence. And that would include—well, aside from Hard 50, it would include factors such as to why the defendant poses a danger to the community. So that was the reason I brought it up. And if it was at all improper, I apologize and withdraw the comment.
“THE COURT: I’m fine with it. I’ve overruled the relevance objection.”
Later in the sentencing hearing, the prosecutor reiterated that she did not mention the prior acquittal because she thought it constituted an aggravating factor. She explained that she only mentioned the case because she thought it was relevant to whether Lopez’ conduct in the current case was minor and because it was relevant to Lopez’ “knowledge of what happens when his gang goes driving around looking for people in cars.”
On appeal, Lopez continues to argue that “[defendant's acquittal of a previous charge, even a previous charge of murder, has zero probative value at sentencing and even less materiality as to the sole aggravating circumstance that the prosecutor was attempting to prove up.” He points out that if a different judge had presided over the current case, that judge would not have had any knowledge of the prior case because there was no evidence of it presented at the trial in this case.
To clarify what we are not deciding, we would point out that Lopez has not raised an issue as to whether the sentencing judge impermissibly made factual findings in violation of tire Sixth Amendment to the United States Constitution. See State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014); State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014). Further, he does not argue that the collateral estoppel component of the Double Jeopardy Clause should bar the State from admitting evidence of his prior acquittal. See United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (applying Dowling and finding Double Jeopardy Clause does not preclude sentencing judge from considering issues decided in prior case where defendant was acquitted when the sub sequent action was a lower standard of proof); Dowling v. United States, 493 U.S. 342, 348-49, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990) (holding that collateral estoppel component of tire Double Jeopardy Clause did not preclude Government from introducing defendant’s prior acquittal at trial because Government was presented with lower standard of proof in the later case); 21 Am. Jur. 2d, Criminal Law § 384. The only question that Lopez presents on appeal is whether the evidence of his prior trial in which he was acquitted was relevant to the determination of the appropriate sentence to impose in this case.
Standard of Review
Lopez appears to challenge both the probative and materiality components of relevancy. Those components are subject to different standards of review: “Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard.” State v. Bridges, 297 Kan. 989, Syl. ¶ 2, 306 P.3d 244 (2013).
Analysis
Lopez’ relevance argument does not take into consideration that K.S.A. 21-4635(c) gives a district court wide latitude with respect to the information it can consider when determining whether to impose a hard 50 sentence:
“In order to malee such determination, the court may be presented evidence concerning any matter that the court deems relevant to the question of sentence and shall include matters relating to any of the aggravating circumstances enumerated in K.S.A. 21-4636 and amendment 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.” (Emphasis added.) K.S.A. 21-4635(c).
In State v. Richardson, 256 Kan. 69, 883 P.2d 1107 (1994), the defendant complained that the district court, in sentencing him to a hard 40 life sentence, erroneously allowed the State to introduce irrelevant and prejudicial evidence of a prior crime where the defendant had completed a diversion program and of another crime where the defendant was not charged. In concluding that the prior crimes evidence was admissible, Richardson declared:
“Richardson’s contention that evidence of her prior criminal activity is not relevant to any of the aggravating circumstances appears in part to be accurate. However, the legislature authorized tire introduction of a broad spectrum of evidence which ‘shall include matters relating to any of the aggravating circumstances’ but expressly is not limited to matters relating to those circumstances. K.S.A. 1993 Supp. 21-4624(3). In fact, the legislature authorized the introduction of evidence ‘concerning any matter that the court deems relevant to the question of sentence.’ K.S.A. 1993 Supp. 21-4624(3). The trial court deemed the evidence of prior criminal activity relevant and properly so as to 21-4625(3).” 256 Kan. at 79.
Later, in State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997), the defendant similarly challenged his hard 40 sentence under K.S.A. 21-4635, arguing the district court improperly considered police reports detailing a prior conviction and bad acts. This court followed Richardson and “conclude [d] that issues regarding aggravating and mitigating circumstances make up only one portion of the evidence the trial court may consider when making its determination under K.S.A. 21-4635. The trial court did not err when it considered the defendant’s prior conviction and bad acts.” Moncla, 262 Kan. at 78.
Arguably, the prior prosecution may have revealed undisputed matters that a sentencing court would deem relevant to sentencing in the current case, notwithstanding the defendant’s acquittal. But the problem, as we see it, is that the district court did not require the State to make a record of the matters it professed to be relevant and the district court should not have effectively taken judicial notice of such unstated facts without giving the defendant an opportunity for rebuttal.
Nevertheless, Lopez does not make a due process argument, and the district court, in pronouncing its sentence, made no indication it was relying on any information revealed at the prior trial. In other words, any error in the manner in which the district court handled the information from the prior trial was harmless. See State v. Ward, 292 Kan. 541, 552-65, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (discussing tests for harmlessness).
Weighing Aggravating and Mitigating Circumstances
Lopez raises a separate issue challenging the propriety of the district court’s weighing of the aggravating and mitigating circumstances. But in essence, he rehashes his complaint about the district court erroneously considering his prior acquittal.
Standard of Review
For a hard 50 sentence, appellate courts review the district court’s weighing of aggravating and mitigating circumstances for an abuse of discretion. State v. Nelson, 296 Kan. 692, 694, 294 P.3d 318 (2013).
“ ‘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.’ State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).” 296 Kan. at 694.
Analysis
As indicated, the State relied on the aggravating circumstance that Lopez knowingly and purposely killed two people. For miti-gators, Lopez asserted that his role as an accomplice was a relatively minor one and that he was only age 18 at the time. See K.S.A. 21-4637(d) and (g). When imposing a hard 50 life sentence, the district judge recited:
“In this case, two people were killed. That is an aggravating factor. While I’m aware of the mitigating factors, I am convinced that those mitigating factors do not outweigh the aggravating factor that you participated in a multiple Idling.
“That you should be subject to the Hard 50 is, to me, more complex than Mr. Molina, who I also believe was the one who pulled the trigger, taking the lives. But I do believe that as you aided and abetted in these killings, you did so actively in the following fashions:
“There was a time when you could have driven the other way, and you chose to follow the vehicle.
“Then the way you operated the vehicle. According to the evidence, the vehicle was driven to just the right location where gunshots could be fired from that vehicle into the victims’ vehicle.
“And then immediately the getaway was made. To me, that puts you in the same class punishment-wise as Mr. Molina and, therefore, since the aggravating factors outweigh tire mitigated, mitigating factors, I also require that you spend at least 50 years in prison before you’re parole eligible.”
Earlier in the sentencing proceeding, the district court noted that Lopez’ criminal history page reflected seven entries, including one adult drug conviction and six juvenile adjudications. The juvenile adjudications included charges for aggravated assault and aiding a felony arising from a drive-by shooting in which Lopez drove a vehicle while Molina shot the victim. Pointedly, the district court did not mention anything about the previous acquittal being part of the court’s calculus.
Moreover, there was certainly sufficient relevant evidence without the prior acquittal to lead a reasonable person to reach the same result as this sentencing court. “It is well established that ‘“[wjeighing aggravating and mitigating circumstances is not a numbers game. ‘One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances’ ” or vice versa.’ ” Nelson, 296 Kan. at 695 (quoting Engelhardt, 280 Kan. at 144). In short, we find no abuse of discretion and affirm Lopez’ sentence.
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The opinion of the court was delivered by
Beier, J.:
Defendant Dustin B. Hilt appeals his convictions and sentences arising out of the September 2009 murder of his ex-girlfriend. Hilt raises nine issues challenging his convictions and two challenging his sentences. Before oral argument, this court also sought supplemental briefing from the parties on additional hard 50 sentencing issues.
Today we reject Hilt’s claims of reversible error and affirm his convictions. We vacate his sentence for first-degree murder and remand the case for resentencing on that crime.
Issues
• Did the district judge err by denying Hilt’s request to supplement the jury’s instruction on aiding and abetting?
• Did the district judge err by dismissing and replacing a juror with an alternate?
• Did the district judge err by admitting evidence of a knife and a piece of charred pipe?
• Did the district judge err by admitting testimony about a blood-spatter test?
• Did the district judge err by denying Hilt’s request for a jury instruction on the defense of voluntary intoxication?
• Did the district judge err by denying Hilt’s request for a jury instruction on voluntary manslaughter as a lesser included offense of first-degree murder?
• Did the district judge err by admitting two gruesome photographs of the victim’s wounds?
• Did the prosecutor commit reversible misconduct during closing argument by comparing the facts of this case to a scene from the movie GoodFellas and suggesting that the defendant and others pulled the victim from her car trunk and “finished the job” of killing her?
• Did cumulative error deny Hilt’s right to a fair trial?
• Did the district judge err by sentencing Hilt to the high number in the Kansas Sentencing Guidelines Act grid box for each of the aggravated kidnapping and aggravated robbery convictions?
• Was Kansas’ hard 50 sentencing scheme unconstitutional under Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), because the judge found the existence of aggravating factors by a preponderance of the evidence rather than foe jury finding their existence beyond a reasonable doubt? If so, can foe hard 50 sentencing scheme as amended by foe Kansas legislature in 2013 be applied to Hilt on remand without violation of the federal Constitution’s prohibition on ex post facto laws?
Factual and Procedural Background
Hilt was convicted by a jury of first-degree premeditated murder, an off-grid person felony; aggravated kidnapping, a severity level 1 person felony; and aggravated robbery, a severity level 3 person felony. He received a hard 50 life sentence for foe murder, based on foe district judge’s finding that four aggravating factors were applicable: infliction of mental anguish or physical abuse before foe victim’s death; torture of foe victim; continuous acts of violence begun before or continuing after foe killing; and especially heinous, atrocious, or cruel conduct by foe defendant. Hilt also received consecutive sentences of 165 months and 61 months for the aggravated kidnapping and aggravated robbery convictions. These two sentences were at foe high end of the applicable Kansas Sentencing Guidelines Act grid box range.
Johnson County detectives found foe body of Hilt’s ex-girlfriend, Keighley Alyea, in a field in Cass County, Missouri. Alyea had been stabbed dozens of times with a knife. Her body also showed signs that she had been asphyxiated and had suffered blunt-force trauma to her head.
Six days before Alyea’s body was discovered, she had invited Jessika Beebe; Beebe’s daughter; and Beebe’s boyfriend, Shawn Merritt, to spend foe night at her apartment. Beebe and Merritt did not feel safe staying at Beebe’s residence because they feared Beebe’s brother, James. Two days earlier, James had intentionally rammed his vehicle into Alyea’s vehicle and threatened to “shoot [Merritt’s] house up.” James was later arrested in connection with this incident.
Merritt was so concerned about James’ threat that he told Alyea he needed to get a gun for protection. Alyea suggested to Merritt that he contact Hilt. That night Merritt used Alyea’s phone to send a text message to Hilt to ask if Hilt knew where to get a gun. After a series of text messages between Hilt and Merritt, Hilt asked for a ride. Merritt returned the phone to Alyea, and Hilt sent two additional messages requesting a ride. Alyea then sent a message identifying herself and asked Hilt if he wanted to “come kick it.” Hilt again said he needed a ride. Shortly after 1 a.m., Alyea agreed to pick Hilt up and asked if he was with anyone else. Hilt responded that he was with Scott Calbeck. Before Alyea left to meet Hilt, Beebe advised her not to go.
About 2 a.m., Hilt; Calbeck; and Hilt’s cousin, Joe Mattox, entered a QuikTrip convenience store. Surveillance video footage from the store showed, among other things, what Hilt was wearing. Meanwhile, Alyea, who was waiting in her car outside the convenience store, called her stepsister. Alyea accused the stepsister of having had sex with Hilt, threatened to beat her up, and ¿en hung up. A heated text message exchange between Alyea and the stepsister followed—full of threats, name calling, and other insults. Alyea sent her last text message at 2:50 a.m. The stepsister would later testify drat she had sent a text message to Alyea at 2:53 a.m. and expected it to elicit an immediate response. Instead, no response ever came.
When Beebe woke up about 11 a.m., Alyea was not in the apartment. Beebe tried calling Alyea multiple times. When that was unsuccessful, she called Alyea’s family and checked at Alyea’s work, the hospital, and the jail. She did not find her.
The Overland Park Police Department began a missing person investigation. Sergeant Thomas Smith interviewed Hilt and asked when Hilt last talked wi¿ Alyea. Hilt said it had been several weeks or months. When presented with a printout of Alyea’s text message correspondence, Hilt admitted that he had recently communicated with Alyea, but he maintained that the two had not seen each other recently.
The next day, police officers discovered Alyea’s car in an apartment parking lot. When they opened the trunk, they found pooled blood and bloody clothing. During processing of the car at the Johnson County Sheriffs Office crime lab, a technician found a knife under bloody clothing in the trunk. The technician also noted that the car’s taillight assemblies had been loosened from their mounts, and the connecting tabs had been disconnected, disabling the taillights. Both the tailhght connectors and the trunk latch had smears of blood on them. Crime scene investigators did not initially link the knife to Alyea’s disappearance or death.
The day after Alyea’s vehicle surfaced, detectives conducted a search at Mattox’ residence. They found a piece of charred metal pipe in a smoker grill, as well as other charred and burned items. A can of gasoline sat next to the smoker grill. In the basement, detectives opened a dishwasher and discovered a black plastic trash bag full of bloody clothing.
The same day, Alyea’s body was found. Its condition had been damaged by decomposition and insects.
Several months passed. After Hilt had been charged, investigators searched his grandparents’ house. They found more bloody clothes that matched those Hilt was wearing on the night of Alyea’s disappearance. Subsequent DNA testing confirmed that the blood on the clothes from Hilt’s grandparents’ house matched Alyea’s blood to a reasonable degree of scientific certainty.
Before trial, Hilt’s counsel filed a motion in limine to exclude any reference to the knife or the charred piece of pipe. While arguing the motion, defense counsel conceded the admissibility of the knife, stating, “I’m going to stipulate that the knife now bears some relevance. We will deal with that on cross.” The district judge ruled that a second, undamaged piece of pipe found lying in Mat-tox’ yard was inadmissible, but he ruled that evidence of the piece of charred pipe found in the smoker grill could be admitted at trial.
During opening statements to the jury, Hilt’s counsel said that Hilt had lied to officers about his contact with Alyea and his whereabouts on the night of her disappearance. Hilt’s counsel also con ceded that Hilt was with Alyea the night she was murdered but asserted that Hilt did not participate in her murder or assist her killer, Mattox.
Medical examiner Mary Dudley testified about the autopsy she performed on Alyea’s body. While questioning Dudley, the State moved to admit several autopsy and crime scene photos depicting Alyea’s injuries. Hilt objected to two photos as cumulative and gruesome. The district judge overruled the objection.
Kristine Olsson, a forensic scientist for the Johnson County Sheriff s Office crime laboratory, testified about bloodstain analysis she performed during tire investigation. She discussed both transfer stains and spatter stains. Transfer stains, she said, occur when a bloody object makes contact with a nonbloody surface. Spatter stains, she said, result after a liquid source of blood is disturbed by enough force to break up the blood’s contusive nature, causing droplets to disperse. According to Olsson, a group of spatter stains form what is called an impact pattern. Cast-off patterns are those created when blood is flung off an object in motion.
Olsson also testified about a test she conducted to determine “how far [blood] spatter would travel during an impact event.” She filled a 4-inch box with sawdust and placed the box on the floor. She placed a pork roast on top of the box and a blood-soaked kitchen sponge on top of the roast. A lab technician, wearing a sweatshirt similar to tire one Hilt wore on die night Alyea was murdered, then attempted to stab the bloody sponge. Because the sponge would not stay in place, it was duct-taped to the roast. The lab technician then stabbed the sponge 20 times. Olsson documented the spatter stains on the sweatshirt and surrounding area. When the State moved to admit photographic evidence of the test, Hilt objected based on a lack of scientific foundation. After a voir dire, the district judge overruled the objection. Olsson testified about blood stains on the sweatshirt Hilt wore the night Alyea was murdered, and she concluded that they were spatter stains that resulted from an impact event.
Alyea’s grandfather, Don, testified that he had thoroughly cleaned Alyea’s car, including its trunk, 2 days before Alyea’s disappearance. He did not see a knife or piece of pipe in the car at that time. He also testified that the taillight assemblies were secure and intact when he observed them.
During tire district court conference on jury instructions, Hilt's counsel requested a supplement to the aiding and abetting instruction. The requested instruction would have informed jurors that “[m]ere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor.” The State argued in response that PIK Crim. 3d 54.05 sufficiently stated the law and required no supplement. The district court judge denied Hilt’s request and gave PIK Crim. 3d 54.05 without supplement. The judge also denied the defense requests for instructions on voluntary intoxication and voluntary manslaughter.
During closing argument, the prosecutor stated that the facts in this case were “eerily similar” to a scene in the movie GoodFellas, in which a wounded victim was transported in a trunk. As in the movie, the prosecutor said, “[A]t some point in time, [Hilt and the two other men] pulled [Alyea] back out of the trunk and finished the job.”
After Hilt’s jury had begun deliberations, jurors sent a note to the district judge questioning how they should proceed “when we feel a juror has been compromised.” The judge instructed the jury that it was to use the evidence and the law to reach its verdict. A few minutes later, the jury sent a second note informing the court that the jury had voted 11-1 to remove the compromised juror. The district judge then met with the presiding juror, who said that the compromised juror had violated the court’s admonition by referencing information not admitted as evidence in the trial. The district judge interviewed the juror in question, who denied viewing outside media reports or otherwise violating the admonition. The district court judge then interviewed the 10 remaining jurors individually; each confirmed the presiding juror’s original allegation. One of the jurors, however, expressed concern that the move to vote out the juror in question may have been motivated by that juror’s minority view on Hilt’s guilt. The district judge ultimately concluded that the compromised juror would be removed for dis obedience of the admonition. The judge then seated an alternate juror and ordered the juiy to begin deliberations anew.
After the juiy restarted deliberations, Hilt’s counsel objected to the seating of the alternate. Counsel said he had been informed that the alternate was in “very close proximity” to Alyea’s family and the media while die original jury was deliberating. The district judge asked the alternate if she had discussed the case or overheard any conversations about the case since the beginning of trial. She said she had not, and the judge overruled die defense objection.
After the juiy returned its guilty verdicts, Hilt presented evidence in mitigation of sentence—his age of 18, lack of criminal history, and family support. The district judge was unconvinced diat the mitigators outweighed the aggravators and gave Hilt a hard 50 life sentence for Alyea’s murder.
Supplement to Aiding and Abetting Instruction
When this court reviews appellate claims on jury instructions,
“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 suppoited 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).
“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. McCullough, 293 Kan. 970, 974, 270 P.3d 1142 (2012) (self-defense). And if that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant. State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008).” State v. Friday, 297 Kan. 1023, 1036-37, 306 P.3d 265 (2013).
We examine “jury instructions as a whole, without focusing on any single instruction, in order to determine whether they properly and fairly state the applicable law or whether it is reasonable to conclude that they could have misled the juiy.” State v. Williams, 42 Kan. App. 2d 725, Syl. ¶ 1, 216 P.3d 707 (2009), rev. denied 290 Kan. 1104 (2010).
Hilt argues that the facts of his case and his theory of defense required the district judge to instruct the jury that “[mjere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor.” Without this supplement to the usual PIK instruction, Hilt contends, the jury was left with an incomplete understanding of aiding and abetting theory.
The additional instruction language Hilt sought properly states the law in Kansas. See State v. Jefferson, 297 Kan. 1151, 1167-68, 310 P.3d 331 (2013). But we have previously rejected arguments that the language was indispensable to a jury’s understanding of a case. See, e.g., State v. Edwards, 291 Kan. 532, 551-52, 243 P.3d 683 (2010) (refusal to give “mere association or presence” language not reversible error); State v. Holt, 285 Kan. 760, 772, 175 P.3d 239 (2008) (refusal to give “mere presence or association” language not error); State v. Davis, 283 Kan. 569, 582-83, 158 P.3d 317 (2006) (refusal to instruct on “mere presence” not reversible error).
In Edwards, defendant Edrick Edwards made the same argument that Hilt raises on this appeal. The State had charged Edwards with felony murder and attempted aggravated robbery. At trial, Edwards’ theory of defense was that he was with the three perpetrators at the time of the crime, but he had been unaware of their plan to rob the victim. Edwards requested a modification to the aiding and abetting instruction to include the same language at issue here. The district court denied Edwards’ request to supplement the aiding and abetting instruction. On appeal, this court acknowledged that the requested language “precisely fit the defense theory.” 291 Kan. at 552. And this court even suggested that “the better practice would have been to modify the patterned instruction” as requested. 291 Kan. at 552. But this court ultimately held that refusal to supplement the aiding and abetting instruction was not reversible error. 291 Kan. at 552.
We arrive at the same conclusion here. PIK Crim. 3d 54.05 on aiding and abetting, given without the additional language, was not reversible error. However, the better practice is to add the re quested language in cases such as this, and failure to do so may imperil convictions in future similar cases. See State v. Llamas, 298 Kan. 246, 258-62, 311 P.3d 399 (2013).
Dismissal of Juror and Seating of Alternate
Hilt argues that the district judge erred when he dismissed the compromised juror for misconduct and seated an alternate in the juror’s place. Hilt does not argue that juror misconduct prejudiced him at trial.
A district judge’s decision to discharge a juror and substitute an alternate juror is reviewed for abuse of discretion. State v. Stafford, 255 Kan. 807, 824, 878 P.2d 820 (1994). “A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact.” State v. Dobbs, 297 Kan. 1225, 1232, 308 P.3d 1258 (2013) (citing State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]). A defendant bears the burden to demonstrate the existence of an abuse of discretion. State v. Baker, 297 Kan. 482, 484, 301 P.3d 706 (2013).
Under K.S.A. 22-3412(c), a juror may be substituted after deliberations have begun as long as the alternate juror has not been discharged. See State v. Cheek, 262 Kan. 91, Syl. ¶¶ 1-4, 936 P.2d 749 (1997); State v. Haislip, 237 Kan. 461, 467-69, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). “Dismissing one juror and replacing that juror with an alternate is not an abuse of discretion where 'reasonable cause’ exists.” State v. Stallings, 246 Kan. 642, Syl. ¶ 2, 792 P.2d 1013 (1990).
This court has held that reasonable cause exists for dismissal of a juror when a juror becomes ill, incapacitated, or is affected by personal problems. See Stallings, 246 Kan. at 647-48 (dismissal during deliberations proper after juror explained personal religious beliefs prevented judgment); Haislip, 237 Kan. at 468-71 (dismissal during deliberations proper when juror “mentally incapacitated to perform her duty”); State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981) (dismissal during trial proper based on death of juror’s grandfather, out-of-state funeral). A trial judge also may discharge jurors for reasonable cause if they are found to be unable to perform their duties. State v. Minski, 252 Kan. 806, 815, 850 P.2d 809 (1993).
Hilt relies on Cheek, in which this court held that a district judge erred when dismissing a juror absent reasonable cause to do so. See 262 Kan. at 107-08. In Cheek, a juror asked the district judge to release him from the jury after the first day of deliberations. The district judge interviewed the juror and then dismissed him. This court held that, under the facts of that case,
“there was no reasonable cause to dismiss a juror who suffered from no impairment; appeared to hold a different view from the other jurors; believed his convictions could not be changed; was not ill, incapacitated, or affected by personal problems; was unaffected by the high visibility of the case; and clearly stated that if he remained on the jury he did not believe a decision could be reached.” 262 Kan. 91, Syl. ¶ 5.
This case is meaningfully distinct from Cheek, where the dismissed juror was not accused of misconduct. Here, the district judge, after interviewing all 12 jurors, determined that the juror in question had violated the court’s admonition not to read or view media reports about the case and had injected outside information into the jury’s deliberations. Such misconduct constitutes reasonable cause sufficient to support tire district judge’s decision to dismiss the juror. See Bell v. Uribe, 729 F.3d 1052, 1060-61 (9th Cir. 2013) (dismissal of juror after she consulted outside sources, attempted to function as unsworn expert appropriate under federal law); State v. Cook, 170 Ariz. 40, 54, 821 P.2d 731 (1991) (no error in dismissing juror who violated admonition); People v. Nunez and Satale, 57 Cal. 4th 1, 55, 158 Cal. Rptr. 3d 585, 302 P.3d 981 (2013) (trial court had good cause to dismiss jurtír who violated court’s admonition not to discuss case with anyone outside jury room); People v. Daniels, 52 Cal. 3d 815, 865, 277 Cal. Rptr. 122, 802 P.2d 906 (1991) (juror has duty to follow admonition, instructions; judge may “reasonably conclude” juror who read newspaper accounts of trial “cannot be counted on to follow instructions in future”).
Although the statement by one juror suggesting that the dismissed juror may have been singled out by her peers because of a minority view on the defendant’s guilt is troubling, the consistency of the stories told by the jurors collectively supports tire judge’s ruling that the juror had engaged in misconduct and had to be discharged and replaced. There was no abuse of discretion attributable to an insufficient factual basis for the judge’s decision or to any legal error or unreasonableness.
Hilt’s additional argument that the district judge erred in seating a “potentially tainted [alternate] juror” also is unpersuasive. According to Hilt, “the alternate juror had been sitting closely to law enforcement and the victim’s family, strengthening the potential for a tainted alternate juror.” But our review of the record indicates that defense counsel simply alerted the judge that the alternate juror, media representatives, and the victim’s family had all been in the courthouse hallway during deliberations. Although Cheek, 262 Kan. at 104, mentioned “the necessity of keeping alternates in the posture of actual jury members until a verdict is reached and they are discharged from service,” we see no abuse of discretion here. It may have been a better practice for the district judge to sequester alternate jurors from spectators when the jury began its deliberations, but we are reassured by the judge’s reminder to the alternates that they were still under the court’s admonition. Further, after Hilt’s trial counsel raised a concern about the alternate juror, the district judge asked the alternate whether she had discussed the case with anyone since she was placed on the court’s admonition or had overheard any conversations related to the case in that time period. The alternate answered “no” to both questions.
Admission of Knife and Charred Piece of Pipe
Hilt next challenges the district judge’s admission of the knife found in the trunk of Alyea’s car and the charred piece of pipe found in die smoker grill at Mattox’ home. Hilt argues that neidier was definitively linked to Alyea’s murder, focusing on the medical examiner’s inability to conclusively determine die type of knife used and on crime scene investigators’ initial belief that the knife was not the murder weapon.
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 tire 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 (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, tire appellate court reviews de novo the district judge’s conclusion as to 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 nature of the rule or principle. 290 Kan. at 817.
Hilt first argues that both the knife and the charred piece of pipe lacked relevance to the crime charged. Although Hilt stipulated to the relevance of the knife at the motion in limine hearing, he objected at trial to its admission to “preserve the issues raised in the pre-trial filings [and] pre-trial motions.” As to tire charred knife, Hilt lodged the “[s]ame objection that was briefed well before trial.” Under these circumstances, we regard Hilt’s appellate arguments on tire relevance of the knife and charred piece of pipe as preserved for appellate review.
Relevance encompasses two concepts: materiality and probative value. “Material evidence tends to establish a fact that is at issue and significant under the substantive law of tire case.” Bridges, 297 Kan. at 999 (citing Reid, 286 Kan. at 505). Materiality is reviewed on appeal under a de novo standard. 297 Kan. at 996 (citing Shadden, 290 Kan. at 817). “[Probative evidence only requires a logical connection between the asserted facts and the inferences they are intended to establish.” 297 Kan. at 999 (citing State v. Richmond, 289 Kan. 419, 437, 212 P.3d 165 [2009]). A district court judge’s determination that evidence possesses probative value is reviewed on appeal under an abuse of discretion standard. 297 Kan. at 996 (citing Shadden, 290 Kan. at 817).
Historically, an alleged murder weapon has constituted relevant evidence, even when the connection between the weapon and the crime is extremely thin. See State v. Francis, 282 Kan. 120, 136, 145 P.3d 48 (2006). “When a physical object is offered into evidence and á question arises as to its connection with eidier the defendant or the crime charged, the object should be admitted for such weight and effect as the jury sees fit to give it, unless it is clearly irrelevant. State v. Ji, 251 Kan. 3, 15, 832 P.2d 1176 (1992).” State v. Cooper, 252 Kan. 340, 348, 845 P.2d 631 (1993); see Francis, 282 Kan. at 136 (lack of positive identification of alleged murder weapon went to weight not admissibility); see also State v. Scott-Herring, 284 Kan. 172, 176-77, 159 P.3d 1028 (2007) (photograph of defendant holding gun “relevant to establish his possession of a gun resembling the possible murder weapon on the night of [the victim’s] murder”).
From these cases, using today’s vernacular, we synthesize two rules of law: (1) Evidence of a murder weapon is always material in a homicide prosecution; and (2) whether evidence of a particular weapon is probative on the material issue of a murder weapon depends on the presence and quality of evidence on that particular weapon’s connection or lack of connection to the crime charged and/or the defendant. To mark tire ends of the probative value continuum, we set out extreme examples: When a victim is fatally shot inside his or her home, and the alleged lone perpetrator is apprehended while holding a gun matching that used to Mil. the victim and while still inside the home, another gun found by investigators behind a shrub down the street is not probative on the material issue of tire weapon used in the homicide. On die opposite end of the continuum is a bloody knife covered witir fingerprints found next to the lifeless body of a stabbing victim Mlled with a knife similar in lengdi, widdi, and edge. That knife by the body has probative value to the material issue of the weapon used in die homicide, because it is connected to the crime charged. If it was not found by die body but in die glove compartment of a car be longing to the defendant, or the fingerprints matched the defendant’s, it would also be probative.
Here, the knife was found under a pile of bloody clothing in the trunk of Alyea’s car; Alyea had been stabbed dozens of times; and Hilt was linked to the car the night that Alyea disappeared. The knife was offered to show that Hilt, or one of the other occupants of tire vehicle, had access to it and may have used it the night Alyea was murdered. This situation is far closer to the end of the spectrum in which a possible murder weapon has great probative value, and the district judge did not abuse his discretion in determining that the knife was relevant evidence.
As for the piece of charred pipe, the medical examiner testified that the circumference of the pipe was consistent with whatever object inflicted the blunt-force trauma Alyea suffered. In addition, the pipe’s discovery in the smoker grill at the Mattox residence connected it to a man in Alyea’s and Hilt’s company on the night of Alyea’s disappearance; and the pipe’s charred appearance suggested that someone may have tried to bum it to eradicate biological evidence or fingerprints that otherwise may have been recoverable from it. Thus the piece of charred pipe was probative of the material issues regarding the murder weapon. The district judge did not abuse his discretion in determining that it was relevant evidence.
Hilt’s other complaint related to the knife and pipe is that relevance is not enough for admission. He states simply that the two items were more prejudicial than probative. Hilt’s bare assertion is not enough to discharge his burden to demonstrate an abuse of discretion. We regard this argument as abandoned. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004) (issue not adequately briefed deemed abandoned).
There was no error in the admission of the knife and piece of charred pipe as evidence in Hilt’s trial.
Admission of Blood-Spatter-Test Evidence
Hilt argues on appeal that the district judge erred because the blood-spatter test was conducted under conditions dissimilar to those that existed at the time of Alyea’s murder. He contends that the dissimilarities rendered the test and its results irrelevant and inadmissible.
The threshold problem with this issue is that it was not preserved for appeal by a contemporaneous relevance objection in the district court. See K.S.A. 60-404; State v. Race, 293 Kan. 69, 78, 259 P.3d 707 (2011) (issue not preserved because appellant failed to malee correct contemporaneous objection at trial). Only after forensic scientist Olsson had testified about the blood-spatter test and its results and the State had moved to admit photographic evidence of the test did Hilt’s counsel object. Even then, counsel’s objection was based on lack of scientific foundation, not relevance. On appeal, Hilt does not challenge the underlying scientific reliability of the test. See State v. Canaan, 265 Kan. 835, 849, 964 P.2d 681 (1998) (applying Frye v. United States, 293 F. 1013 [D.C. Cir. 1923] [scientific tests must be shown reliable before results of test admissible]).
Because the relevance issue Hilt presents now was not preserved, any error we might find cannot be the basis of reversal of his convictions. K.S.A. 60-404 (verdict or judgment shall not be reversed “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”). We thus decline to reach the merits of this issue.
Voluntary Intoxication Instruction
Hilt next directs this court to evidence that he had been drinking the night of Alyea’s death. Hilt told police during questioning that he had been “partying” and that he told Alyea he would give her beer if she gave him a ride. This evidence, in Hilt’s view, made the district judge’s denial of his request for a jury instruction on voluntary intoxication reversible error.
Our standard of review on this issue is the same as that used on the first issue regarding supplementation of the aiding and abetting instruction.
“While voluntary intoxication is not a defense to general intent crimes, such a defense may be used to negate the intent element of a specific intent crime. State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011); see K.S.A. 21-3208(2).” State v. Kidd, 293 Kan. 591, 594, 265 P.3d 1165 (2011). “A voluntary intoxication instruction is required when the evidence, viewed in the light most favorable to the defendant, shows that the defendant was intoxicated to the extent that his or her ability to form the requisite intent was impaired.” State v. Hernandez, 292 Kan. 598, Syl. ¶ 4, 257 P.3d 767 (2011). “This court will not infer impairment based on evidence of consumption alone.” 292 Kan. at 607.
A voluntary intoxication instruction would not have been legally or factually appropriate. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). The evidence relied upon by Hilt, even when viewed in the light most favorable to him, points only to consumption, not intoxication to the extent that Hilt’s ability to form the requisite intent was impaired. See Kidd, 293 Kan. at 595-96 (evidence defendant consumed alcohol from a bottle, made “crazy” statements, may have been “ ‘buzzed’ ” insufficient to require voluntaiy intoxication instruction); Hernandez, 292 Kan. at 606-07 (evidence of consumption of alcohol and marijuana, testimony that defendant was high, intoxicated insufficient to require instruction). This evidence was not enough to warrant a voluntary intoxication instruction in this case.
Hilt also argues that the voluntary intoxication instruction was required, because “there was little testimony about Mr. Hilt’s state of mind, other than he had been drinking and simply wanted to go home.” Evidence of Hilt’s state of mind may have been purely circumstantial, even meager, but this does not mean he demonstrated that impairment from alcohol robbed him of his ability to form specific intent. See State v. Minski, 252 Kan. 806, Syl. ¶ 3, 850 P.2d 809 (1993); see also Hernandez, 292 Kan. at 607 (defendant must show consumption led to impairment of mental faculties). Indeed, other evidence suggests that Hilt was not so intoxicated that he was unable to form specific intent. He was able to direct Alyea to his location in order for her to pick him up. And, about 2 a.m., less than an hour before Alyea’s last text message, Hilt entered a convenience store and made a purchase. Nothing in the surveillance video footage from the store suggests that Hilt was impaired.
The district judge did not err when he refused to give the requested voluntary intoxication instruction.
Voluntary Manslaughter Instruction
Hilt next argues that his jury should have been given his requested instruction on voluntary manslaughter.
Our standard of review on this issue matches that applied to the first issue on the aiding and abetting instruction and the immediately preceding issue on the voluntary intoxication instruction.
Because voluntary manslaughter is a lesser included offense of first-degree murder, an instruction on it would have been legally appropriate. See State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008) (voluntary manslaughter lesser included offense of first-, second-degree murder); see also State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012) (same). But a district judge is required to give a legally appropriate instruction only if “ '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]).
Voluntary manslaughter, as Hilt argues was potentially applicable here, is the “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.” The provocation^] whether it be “sudden quarrel” or some other form of provocation^] must be sufficient to cause an ordinary man to lose control of his actions and his reason.’ ” 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]).
“We have defined ‘heat of passion’ as meaning “ any intense or vehement emotional excitement of the land prompting violent and aggressive action.’ ” State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 (2008) (quoting State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 [1985]). The hallmark of heat of passion is taking action upon impulse without reflection.” Wade, 295 Kan. at 925.
Before the district court, Hilt’s counsel argued that “this case had the makings of an extremely emotional, extremely heated quarrel or argument that pops up ... . [M]aybe Mr. Hilt is angry at [Alyea] at that moment over this quarrel between obviously he and the victim and the victim’s sister over this affair. Maybe that’s what is going through his mind.” The district judge disagreed, characterizing counsel’s argument as speculation. We concur in the district judge’s assessment. There was evidence that Hilt and Alyea were riding in her car together and that Alyea engaged in a heated text message exchange with her stepsister about her stepsister’s sexual relationship with Hilt. But, even when this evidence is viewed in a light most favorable to Hilt, it simply does not support the development or existence of a sudden quarrel between Hilt and Alyea, much less one that could have caused an ordinaiy man to lose control of his actions and his reason.
Absent actual evidence to support the lesser included instruction of voluntary manslaughter, the district court did not err in refusing to provide the instruction. It was not factually appropriate. See Plummer, 295 Kan. 156, Syl. ¶ 1.
Admission of Gruesome Photographs
Hilt next challenges the admission of two autopsy photographs. He argues that they were so gruesome as to be unduly prejudicial and that they were cumulative when compared with two other photographs whose admission he does not contest.
“ The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatoiy, that is to say, prejudicial, die standard of review is abuse of discretion.’ ” State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012) (quoting State v. Riojas, 288 Kan. 379, 387, 204 P.3d 578 [2009]). Abuse of discretion also is the standard of review when a party challenges evidence as cumulative. Rodriguez, 295 Kan. at 1156 (citing State v. Dale, 293 Kan. 660, 663, 267 P.3d 743 [2011]).
The two photographs in issue certainly qualify as gruesome. One, State’s Exhibit 83, was taken after the medical examiner had shaved Alyea’s head. It shows the blunt-force trauma injury. The other, State’s Exhibit 85, shows numerous stab wounds to Alyea’s face, head, and neck. The wounds are especially unsightly because of the effect of decomposition and insect damage.
In Rodriguez, this court discussed the law applicable to gruesome photographs:
“Photographic evidence, like other evidence offered at trial, is relevant and generally admissible if the photographs have a reasonable tendency to prove a material fact in the case. State v. Miller, 284 Kan. 682, 698, 163 P.3d 267 (2007). Although they may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the cause of death are relevant and admissible. Riojas, 288 Kan. at 387; State v. Decker, 288 Kan. 306, 309, 202 P.3d 669 (2009); State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004). However, admitting gruesome photographs simply to ‘ “inflame tire minds of the members of the jury” ’ is error. Riojas, 288 Kan. at 387 (quoting State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 [1975]). We have also often said that admission of unduly repetitious photographs can constitute an abuse of discretion. State v. Hill, 290 Kan. 339, 362, 228 P.3d 1027 (2010). The key, as with prejudice, is the word unduly. Cf. State v. Clark, 261 Kan. 460, 478, 931 P.2d 664 (1997) (prejudice expected; onlyundue prejudice reversible). The admission of photographs in a murder case has rarely been held to be an abuse of discretion. State v. Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007).” 295 Kan. at 1157.
Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012). “[Bjecause the State has the burden to prove every element of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant even if tire cause of death is not contested.” 293 Kan. at 854 (citing Riojas, 288 Kan. at 387).
Before trial, the district judge considered the admissibility of Exhibits 83 and 85 during the motion in limine hearing. After looking at the photographs, he concluded that the photographs were “[tjhe best evidence” of Alyea’s “injuries, how she died, where the injuries are, [and] how they were inflicted.” During trial, the medical examiner referenced the two exhibits in order to discuss Alyea’s injuries and cause of death. The photographs helped the medical examiner explain why decomposition and insect damage made it difficult to determine the type of blade used in the attack. Although Exhibits 83 and 85 were gruesome, they were not unduly prejudicial. They fit squarely within our rule that such photographs are relevant and admissible when used to help a pathologist explain what can and cannot be known about the manner and cause of death.
Hilt also challenges die two photographs as cumulative. To the extent he does so, asserting that State’s Exhibits 73 and 81 depicted the same injuries, he is incorrect. State’s Exhibits 73 and 81 show stab wounds to Alyea’s torso; they do not show the injuries she suffered in her face, neck, and head.
Although we have recently cautioned district judges to remember their duty to act as gatekeepers on the admission of gruesome photographs, “especially those that have been rendered more gruesome by the autopsy procedure,” State v. Garcia, 297 Kan. 182, 197, 301 P.3d 658 (2013), we are persuaded that the district judge presiding over Hilt’s trial discharged this duty. There was no error in admitting State’s Exhibits 83 and 85.
Prosecutorial Misconduct
Hilt next asserts on appeal that the prosecutor’s closing argument references to GoodFellas and “finishing] the job” of killing Alyea were reversible misconduct, because they appealed to the jury’s emotions and stated facts not in evidence.
This court recently set forth the standard of review for a claim of prosecutorial misconduct in State v. Ochs, 297 Kan. 1094, 1099-1100, 306 P.3d 294 (2013):
“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 jury and denied the defendant a fair trial. State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012).
“For years we have considered several factors in analyzing this second step: (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. None of these three factors has been individually controlling. Marshall, 294 Kan. at 857.”
Here, after a brief discussion of the evidence, the prosecutor stated:
“Some of you remember the movie GoodFellas where in the movie GoodFellas, the gangsters beat up a guy in die restaurant, stick [him] in die trunk, and they are going to go deposit the body. And on the ride in the car, the man starts beating on die trunk. And diis is eerily similar to what [die] evidence shows happened in this case. Keighley Alyea was alive in that trunk, and when the defendants discovered or knew tiiat she was alive, at some point in time pulled her out of that trunk and finished die job.”
“In closing argument, a prosecutor may draw reasonable inferences from the 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’s comments cannot be “ ‘intended to inflame tire passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.’ ” State v. Raskie, 293 Kan. 906, 917, 269 P.3d 1268 (2012) (quoting State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004]). But a prosecutor may use “analogies, similes, allusions (be they historic, poetic, literary, 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).
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. See State v. Anthony, 282 Kan. 201, 211, 145 P.3d 1 (2006) (comparing defendant to “man behind the curtain” in The Wizard of Oz did not exceed bounds of legitimate rhetoric when responsive to defense argument questioning thoroughness of police investigation of murder); see also State v. Rodriguez, 269 Kan. 633, 642-44, 8 P.3d 712 (2000) (prosecutor’s comparison of defendant to magician creating “ ‘big puff of smoke’ ” to divert juiy’s attention from acceptable argument); State v. Duke, 256 Kan. 703, 718, 887 P.2d 110 (1994) (prosecutor’s description of defense counsel’s argument as “ ‘smoke and mirrors’ ” not error); but see State v. Greer, No. 89,004, 2003 WL 23018227, at *3-4 (Kan. App. 2003) (unpublished opinion) (prosecutor’s comparison of defendant to Jack Nicholson character in The Shining improper), rev. denied 277 Kan. 926 (2004); accord United States v. Kincannon, 567 F.3d 893, 900 (7th Cir. 2009) (dicta suggesting comparison of defendant to The Godfather s Michael Corleone “would be utterly unmoored from the record”); but see State v. Blanks, 479 N.W.2d 601, 605 (Iowa App. 1991) (error for prosecutor to reference Gorillas in the Mist to illustrate point during closing argument; racial overtones, closeness of movie’s plot to circumstances surrounding alleged crime unfairly prejudicial; “[b]y his allusion, the prosecutor brought before the jurors a myriad of other factors not previously present”).
In this case, Hilt asserts that the prosecutor’s analogy to GoodFellas was inappropriate because there was no evidence that Alyea beat on the inside of the trunk. He further suggests that Hilt and the other men may not have “finished tire job” of killing her after removing her from the trunk because she may already have bled to death.
Hilt’s argument ultimately is unpersuasive. Although the reference to beating on the inside of the trunk tread close to the line, the prosecutor did not say that Alyea’s final moments of life were exactly tire same as those of the unfortunate character in Good-Fellas. The prosecutor said only that they were “eerily similar.” The evidence supported the prosecutor’s statement because the facts of the movie were similar in significant respects to those before the jury, and drawing the jurors’ attention to the likeness between an iconic film with which they may be familiar and the case just presented to them brought order to the facts and placed them in the meaningful context of the prosecution’s theory of the case.
Among those facts were tiróse that demonstrated Alyea was alive for at least some period of time in the trunk. The order of events— bloody wound, trunk transport, removal from trunk, dumping of body—was similar to that in GoodFellas, regardless of whether Alyea was still alive when taken from the trunk. The parties did not dispute that the taillight assemblies for Alyea’s car had been taken apart and disconnected, although they were intact shortly before the night of the murder. There also was no dispute that the connectors were smeared with blood, making it apparent that the person who took them apart from inside the trunk was bleeding at the time. The trunk latch also had a smear of blood on it. The inference the prosecutor suggested the jury could draw from these pieces of evidence—that Alyea did not die while inside the trunk but was wounded and then lived long enough to be removed from the trunk and killed—was just as plausible as the inference Hilt advances—that she died while inside the trunk.
We hold that the prosecutor remained within the wide latitude allowed in discussing the evidence during closing argument. Because we detect no misconduct in tire comments about which Hilt complains, we need not consider whether any error arising from misconduct was harmless.
Cumulative Error
Hilt’s last appellate challenge to his convictions is that cumulative error denied him a fair 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. Hart, 297 Kan. 494, 513-14, 301 P.3d 1279 (2013) (citing State v. Dixon, 289 Kan. 46, 71, 209 P.3d 675 [2009]). “ ‘Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant.’ [Citations omitted.].” Novotny 297 Kan. at 1191 (quoting State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 [2009]).
Because Hilt has not demonstrated the existence of two or more trial errors not individually reversible, the cumulative error doctrine is inapplicable.
High Sentences in Grid Range
Hilt’s first sentencing challenge attacks the district judge’s decision to give him the high sentence in the Kansas Sentencing Guidelines Act grid range for each of his aggravated kidnapping and aggravated robbery convictions.
“The interpretation of a sentencing statute is a question of law over which this court exercises unlimited review.” State v. Ardry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
Hilt recognizes that this court has previously decided that it lacks jurisdiction to consider this issue. See State v. Johnson, 286 Kan. 824, Syl. ¶ 6, 190 P.3d 207 (2008) (under K.S.A. 21-4721[c][l] appellate court without jurisdiction to consider challenge to presumptive sentence, even if highest term in presumptive grid block handed down). He raises it only to preserve it for federal review.
We do not revisit our previous ruling today.
Hard 50 Life Sentence for Murder
Hilt was given a hard 50 life sentence for first-degree murder under K.S.A. 21-4635(b), which was in effect at the time of Alyea’s 2009 killing. (The statute was later recodified, with no substantive change, at K.S.A. 2013 Supp. 21-6620[b]; but we will continue to refer to it as K.S.A. 21-4635[b] in this opinion.) The district judge stated that the aggravating factors in Hilt’s case “far outweigh[ed] any mitigating circumstances.”
In his opening brief, Hilt challenged the constitutionality of his hard 50 life sentence. While his case was awaiting oral argument before this court, on June 17, 2013, the United States Supreme Court decided Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). We then ordered the parties to provide supplemental briefing on the hard 50 life sentence in light of Alleyne and any applicable statutory amendments. Later, we ordered additional supplemental briefing on whether any hard 50 sentencing error was subject to harmlessness review and, if so, how that review should be conducted in this case.
In response to our orders, Hilt continues to maintain that his hard 50 life sentence was unconstitutional when imposed. He further argues that the State has abandoned any claim that the error was harmless; that harmlessness analysis is both generally and specifically inappropriate; and that, if harmlessness analysis is performed, it compels a holding that the error was not harmless here because the State’s evidence was insufficient to prove tire existence of the aggravating circumstances beyond a reasonable doubt.
The State argues that Kansas’ hard 50 sentencing scheme does not run afoul of Alleyne. Should we agree with Hilt rather than the State on that point, tire State argues the error is subject to harm lessness analysis and, in fact, was harmless in this case. If this court instead holds that Hilt’s hard 50 sentence must be vacated, the State argues that September 2013 amendments to tire hard 50 sentencing scheme can be applied to Hilt on remand to malee him eligible for reimposition of a hard 50. Hilt, of course, disagrees.
For reasons we explain below, we address the constitutionality and harmlessness questions today and decline to address the question of whether tire amended statute can be applied to Hilt on remand.
Constitutionality
The constitutionality of a sentencing statute raises a question of law over which this court exercises unlimited review. State v. Huerta-Alvarez, 291 Kan. 247, 254, 243 P.3d 326 (2010).
In Alleyne, the Court extended the rule it announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), holding that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to tire jury” and proved beyond a reasonable doubt. 133 S. Ct. at 2155, 2158.
As we have recently recognized in State v. Soto, 299 Kan. 102, 128-29, 322 P.3d 334 (2014), the Alleyne holding controls here. The statutorily authorized maximum sentence for Hilt’s first-degree premeditated murder conviction is life imprisonment. K.S.A. 21-4706(c). Except as provided in the hard 50 sentencing scheme, an inmate sentenced for the crime of first-degree premeditated murder must serve 25 years of that life sentence before he or she is eligible for parole. See K.S.A. 2013 Supp. 22-3717(b)(1). And the minimum term that must be served before an inmate serving a life sentence is eligible for parole generally has been characterized as a mandatory minimum sentence. See, e.g., State v. Wilson, 294 Kan. 818, 820, 280 P.3d 784 (2012) (suggesting mandatory minimum sentence under Jessica’s Law is 25 years’ imprisonment); State v. Warledo, 286 Kan. 927, 955, 190 P.3d 937 (2008) (“In determining whether to impose a hard 50 sentence, the sentencing court is considering the minimum sentence, not the maximum.”); Johnson, 284 Kan. at 23 (“The maximum sentence for first-degree murder is life in prison. The hard 50 sentence enhances the minimum sentence which must be served and does not expose a defendant to a higher maximum sentence than provided by statute.”); see also Conley, 270 Kan. at 33 (a hard 40 sentence does not increase maximum penalty; “it simply limits the lower end of tire sentence”).
Were it not for the sentencing judge’s finding by a preponderance of the evidence of four aggravating factors, Hilt would not have faced a minimum sentence of 50 years rather than 25 years for Alyea’s murder. Because the judge, rather than tire jury, found the four aggravating factors existed, and did so on a preponderance-of-the-evidence rather than a beyond-a-reasonable-doubt standard, Hilt’s Sixth Amendment right to a jury trial, as interpreted in Alleyne, was violated. See Soto, 299 Kan. at 129.
The State attempts to save Hilt’s hard 50 sentence by arguing that Kansas requires an exercise of judicial discretion in imposing the hard 50 because aggravating circumstances and mitigating circumstances must be weighed before the mandatory minimum sentence is imposed. The State is correct that the federal statute under consideration in Alleyne provided for no such weighing; if a gun was brandished, then the mandatory minimum followed automatically from the existence of that aggravating circumstance. See 18 U.S.C. 924(c) (1) (A) (ii) (2012). The State also is correct that Alleyne explicitly recognized that not all facts influencing judicial discretion need be found by a jury because “broad sentencing discretion, informed by judicial factfinding, does not violate tire Sixth Amendment.” 133 S. Ct. at 2163.
But success on the State’s argument distinguishing the statute at issue in Alleyne depends upon our willingness to agree that the weighing done by a Kansas judge is a discretionary endeavor rather than yet another episode of unconstitutional factfinding. We need not address that issue here, because, in Hilt’s case, the statute had already permitted four episodes of impermissible judicial factfind-ing before any weighing occurred. When the district judge found that the four aggravating circumstances existed—infliction of mental anguish or physical abuse before Alyea’s death; torture of Alyea; continuous acts of violence begun before or continuing after the killing of Alyea; and especially heinous, atrocious, or cruel conduct by Hilt—the constitutional damage was already done. The mere judge-decided existence of the aggravating factors created the potential for an increased penalty, i.e., the potential for a mandatory minimum of 50 years rather than 25. See Alleyne, 133 S. Ct. at 2162 (“When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.”).
Alleyne requires us to hold that Hilt’s hard 50 sentence for first-degree murder violated his Sixth Amendment rights.
Harmlessness
We next address whether the constitutional error in sentencing Hilt to a hard 50 can be labeled harmless.
The question of whether harmlessness analysis applies is discussed in our decision in Soto, 299 Kan. at 124-26. In Soto, we note that this court has recognized that Apprendi-type error can be harmless when we are able to say that an element left out of a jury instruction was nevertheless supported by overwhelming evidence such that the jury verdict would have been the same absent the error. See 299 Kan. at 124. A majority of this court applied that rule in State v. Reyna, 290 Kan. 666, 679-82, 234 P.3d 761 (applying framework from Neder v. United States, 527 U.S. 1, 8, 9-16, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999], to hold failure to instruct jury to find element of defendant’s age of 18 or older harmless in Jessica’s Law case, even though age exposes defendant to mandatory minimum sentence; defendant testified to his age of 37), cert. denied 131 S. Ct. 532 (2010).
As in Soto, we assume without deciding that harmlessness applies. But we cannot say on the record before us that (1) proof of the aggravators was so overwhelming that their existence was certainly established, and (2) no rational factfinder would decide beyond a reasonable doubt that the mitigators advanced by Hilt outweighed the State’s aggravators. See 299 Kan. at 127 (citing K.S.A. 21-4635(d); State v. Ring, 204 Ariz. 534, 565, 65 P.3d 915 (2003). At the same time, we do not agree with Hilt that the evidence of the aggravators was insufficient as a matter of law, making remand inappropriate. See Soto, 299 Kan. 127-28. The evidence supporting an inference that Alyea was alive and bleeding inside the trunk could alone be adequate to support the existence of infliction of mental anguish or physical abuse before her death, one of tire ag-gravators.
In short, this case is not one of the rare instances when a hard 50 Alleyne error can be declared harmless. Neither is it a case where proof of the aggravators was so weak that it should be labeled insufficient and prevent the State from seeking a hard 50 sentence on remand. Hilt’s hard 50 life sentence is vacated and this case is remanded to the district court for resentencing.
Applicability of Amended Hard 50 Statute on Remand
In response to Alleyne, our legislature amended the hard 50 statute in a special session in 2013. The amended statute includes the following language, which became effective September 6,2013:
“[F]or 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.” K.S.A. 2013 Supp. 21-6620(e).
The parties in this case disagree on whether the amended statute may be applied to Hilt on remand. Hilt argues that application would violate the federal Constitution’s prohibition on ex post facto laws. The State argues that tire amendment was procedural rather than substantive, that its retrospective application to defendants in Hilt’s position was the inescapable intention of the legislature, and that the amended statute does not alter the definition of Hilt’s criminal conduct or increase the penalty by which that crime is punishable. Thus, in the State’s view, application of the amended statute to Hilt would not violate the constitutional prohibition on ex post facto laws.
As in Soto, after careful consideration, we have determined that this is not the case in which we should decide the merits of the ex post facto issue. See Soto, 299 Kan. at 128-29. The amended statute has not been applied to impose a hard 50 sentence on Hilt at this point. Its meaning and the presence or absence of an ex post facto effect have not been fully litigated. It is possible that no hard 50 sentence will be handed down on remand. Moreover, this court is not in the habit of issuing advisory opinions. See State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012).
Conclusion
We affirm Hilt’s district court convictions for first-degree premeditated murder, aggravated kidnapping, and aggravated robbery. We vacate his hard 50 life sentence for the murder and remand this case to the district court for resentencing on that conviction. | [
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The opinion of the court was delivered by
Moritz, J.:
Rogelio Soto appeals his jury conviction and sentence for the first-degree premeditated murder of Arturo Moreno, Jr. Soto seeks a reversal of his conviction and new trial, claiming he was denied his statutory right to a unanimous jury verdict, the jury was given a clearly erroneous aiding and abetting instruction, and the district court abused its discretion in admitting overly gruesome autopsy photographs. We reject each of Soto’s claims and affirm his conviction.
Soto also challenges his sentence, claiming the district court erred in imposing a life sentence without the possibility of parole for 50 years (hard 50). Soto contends Kansas’ hard 50 statutory procedure as provided in K.S.A. 21-4635 is unconstitutional in light of Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). We agree and conclude Kansas’ hard 50 sentencing scheme violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating circumstances necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating circumstances beyond a reasonable doubt. Based on this conclusion, we vacate Soto’s sentence and remand for resentencing.
Factual and Procedural Background
On March 17, 2009, Arturo Moreno spent the afternoon and evening at his Wichita apartment with his girlfriend, Aurora Tin-oco; Aurora’s infant son; Aurora’s sister, Pamela Tinoco; and the Tinoco sisters’ friend, Lisa Chavez. Aurora had been dating Moreno for about 6 months and knew that he formerly was involved with tire Vato Loco Boys, or VLBs, a north side Wichita gang.
With Moreno’s permission, Pamela invited her boyfriend, Rogelio Soto, to Moreno’s apartment. Soto arrived at Moreno’s apartment sometime after 6 p.m., along with his friends Giovanni Gonzalez and Luis Navarrette-Pacheco. Soto and his friends were affiliated with the Lopers, a subset of the Sureños, or Sur 13s, a south side Wichita gang and known VLB rival.
Officer Jeremy Miller, a gang intelligence officer, testified at Soto’s trial about the rivalry between the Sur 13s and the VLBs. Miller explained that the rivalry intensified in the late 1990s when VLB members lulled 8-year-old Tony Galvan, a.k.a. “Little Tony,” in a drive-by shooting. Although Galvan was not a known gang member, he lived in a close-knit south side community that was primarily Sur 13 territory. According to Miller, the Sur 13s perceived Galvan’s murder both as a sign of disrespect to the Sur 13s and as the killing of a family member. Miller explained that just the mention of Galvan’s murder could “spike violence” between the Sur 13s and the VLBs.
On the evening of the murder, Moreno primarily stayed inside his apartment with Aurora and her son, while Pamela, Soto, and their friends congregated outside, dancing, drinking, and listening to music. Pamela took photographs, several of which depicted Soto and Navarrette-Pacheco holding beer cans and bottles and “throw ing up gang signs.” At some point, everyone gathered inside Moreno’s apartment and continued drinking and listening to music. Pamela and Gonzalez played chess in Moreno’s living room. According to Aurora and Pamela, Moreno interacted with Soto and his friends, and no one argued about gang affiliation.
Aurora and her son, along with Pamela and Chavez, left Moreno’s apartment at about 9 p.m., while Soto, Gonzalez, and Na-varrette-Pacheco remained at the apartment. Neither sister was concerned that anything would happen because when they left “everything was cool.”
Shortly after Aurora and Pamela left Moreno’s apartment, Gonzalez and Navarrette-Pacheco also left to pick up a fourth friend, Angel Castro. Around 9:25 p.m. Soto sent Pamela a text message from Moreno’s cell phone and told Pamela he and Moreno were alone. When Soto’s friends returned to the apartment, Soto told Castro not to touch anything. Castro thought Soto was playing around so Castro eventually handled a beer can and a remote control. Everyone gathered in the living room.
Not long after Castro arrived, he overheard Moreno talking on the phone. It sounded to Castro as though Moreno was either taking responsibility for a young boy’s tolling or talking to someone who was claiming responsibility for the tolling.
Bryan Duran, Moreno’s friend and coworker, testified that at about 10 p.m. die night of die murder he spoke on the phone with Moreno, who sounded as if he had been drinking. At one point, Moreno told Duran he loved him and would die for him. Moreno asked Duran about Tony Galvan’s murder, and Duran responded that Galvan’s tollers were caught almost immediately after the shooting. In the background, Duran could hear music and people conversing in Spanish. Duran asked Moreno if everything was okay and whether Moreno wanted Duran to come over. Moreno said he was fine.
Shortly after Moreno ended his phone call, Castro looked up and saw Soto holding a knife. Castro stood up to walk outside, and as he did so he heard Moreno twice ask, “Why?” Castro walked outside to a fence in the backyard, urinated, and stayed outside for a “short time.” When he returned to the apartment, he could see blood on the floor of the living room.
Castro entered the living room to retrieve the beer can and remote control he had touched, and as he did so, he could see Moreno’s body lying on the floor in a pool of blood. Castro took tire items outside and placed them in Gonzalez’ truck and watched as Soto, who had bloody hands, placed a black trash bag in the bed of the truck. Castro did not know the contents of the trash bag, but he thought it might contain the murder weapons. All four men got into the truck, and Castro drove away from the apartment. At some point, Castro asked Soto “why’d he do it, why did they do it, and [Soto] just said, [Be]cause of Little Tony.” The group discussed the need to clean Gonzalez’ truck and someone suggested they check their shoes for blood.
Castro drove to an area of south Wichita near the Arkansas River where Soto, Gonzalez, and Navarrette-Pacheco disposed of the black trash bag and other items taken from Moreno’s apartment, including the remote control and beer can. Castro then drove the group to Soto’s home where Soto, Gonzalez, and Navarrette-Pa-checo changed clothes and placed their soiled clothing in Soto’s washing machine. Gonzalez left Soto’s house around 11 p.m., and Castro and Navanrette-Pacheco left around midnight.
Sometime after 11:30 p.m., Moreno’s brother, David Moreno, discovered Moreno’s body and flagged down a police officer driving through the neighborhood. Based on information from David, Aurora, and Pamela, officers quickly developed four suspects: Soto, Gonzalez, Navarrette-Pacheco, and Castro.
Through investigation, law enforcement officers discovered Moreno’s blood on several items: Gonzalez’ shoes, Soto’s left shoe, Navarrette-Pacheco’s shorts, Castro’s jeans, and the exterior of Gonzalez’ truck near the passenger side door. They also discovered that zigzag patterns on the soles of both Castro’s and Soto’s shoes were consistent with zigzag shoe patterns found in blood on Moreno’s apartment floor. Additionally, after Castro led officers to the location where he and the others disposed of items from Moreno’s apartment, officers recovered a torn black trash bag containing a black shirt, beer cans, a beer bottle, and a remote control; a paper sack containing a knife; a DVD player; and several chess pieces.
Detective Wendy Hummell testified she interviewed Castro twice. During the second interview, Castro said he and Soto talked in Gonzalez’ truck after the murder and Soto told Castro that Soto and Moreno had discussed Little Tony’s murder while they were alone in the apartment. Further, Soto told Castro that Moreno confessed to killing Little Tony and that Soto “ ‘just kept keeping it cool’ ” until the others returned to Moreno’s apartment.
Dr. Bamidele Adeagbo performed Moreno’s autopsy and testified at trial that Moreno bled to death from a combination of 79 stab wounds and cuts, including cuts to main arteries on both sides of his neck and several deep stab wounds to his right lung, liver, intestines, and diaphragm. Adeagbo explained that while it was difficult to determine from Moreno’s injuries whether he had been stabbed by more than one person, the different wound sizes suggested the use of more than one weapon.
Gaiy Miller, a firearm and toolmark examiner, examined several knives recovered during the investigation. Miller compared each knife to a cast made from one of Moreno’s deep stab wounds. Miller could not exclude three of the knives as the weapon that caused that particular injury—a knife found on Moreno’s bookshelf, a multipurpose tool found in Gonzalez’ truck, and the knife found near the river.
In an interview with Detective Robert Chisholm the day following the murder, Soto admitted he was at Moreno’s apartment on the night of the murder and he was affiliated with the Lopers. But Soto maintained he and his friends left the apartment immediately after Aurora and Pamela left. When asked to explain the blood found on his shoes, Soto suggested it appeared through “witchcraft or something.” During the interview, Chisholm did not see any injuries on Soto’s hands.
After the State charged Soto, Gonzalez, and Navarrette-Pacheco with first-degree premeditated murder, Castro pled guilty to aiding a felon and agreed to testify at Soto’s trial. The district court granted the State’s motion to prosecute Soto, who was 16 years old at the time of the murder, as an adult and tried him separately from the other defendants. A jury found Soto guilty of first-degree premeditated murder.
The State filed notice of its intent to seek a hard 50 sentence, alleging Soto committed the crime in an especially heinous, atrocious, or cruel manner. After an evidentiary hearing at which the State presented evidence related to Soto’s gang activities before and after the murder and Soto presented evidence of multiple mitigating circumstances, the district court agreed that Soto committed the murder in a heinous, atrocious, and cruel manner and found only one mitigating circumstance, Soto’s age. The court then imposed a hard 50 sentence after determining the aggravating circumstance was not outweighed by the mitigating circumstance. This court’s jurisdiction over Soto’s direct appeal arises under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed).
Discussion
Soto Was Not Denied His Statutory Right to a Unanimous Jury Verdict
On appeal, Soto argues he was denied his statutory right to a unanimous jury verdict in two respects. First, he argues the district court instructed the jury it could find him guilty of committing first-degree murder based on alternative means and the evidence was insufficient to support either means. Second, he contends the State presented evidence of multiple acts to support the murder charge but failed to elect a specific act, and the district court failed to instruct the jury it must unanimously agree on the specific act supporting the charge.
K.S.A. 22-3421 requires juiy unanimity as to guilt in a criminal case. Jury unanimity concerns arise when the court instructs the jury on alternative means of committing the crime charged but the State fails to present substantial evidence of both means. See State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012) (discussing alternative means rule and its corollary super-sufficiency requirement). Jury unanimity concerns may also arise when the jury hears evidence of multiple acts that could each constitute the crime charged but the State fails to elect the specific act it relies on to support the charge and the district court fails to instruct the jury it must unanimously agree on the defendant’s guilt as to a specific act. See State v. Ultreras, 296 Kan. 828, 854-55, 295 P.3d 1020 (2013) (discussing multiple acts cases and three-part analysis). Contrary to Soto’s argument, neither jury unanimity concern presents itself here.
The jury was not instructed on alternative means of committing first-degree murder, and the evidence is sufficient to support Soto’s conviction.
Relying on State v. Boyd, 46 Kan. App. 2d 945, 268 P.3d 1210 (2011), Soto argues the court instructed the jury on alternative means of committing first-degree murder because he could have been convicted of that crime as a principal or as an aider and abettor. See 46 Kan. App. 2d at 953 (concluding that instructing jury on aiding and abetting as set out in K.S.A. 21-3205[1] creates alternative means issue). Based on his assumption that tírese were alternative means, Soto argues the evidence was insufficient to support either means and his murder conviction must be reversed.
Our decision in State v. Betancourt, No. 106,318, 299 Kan. 131, 322 P.3d 353 (2014), forecloses Soto’s argument. There, we explained that the Kansas aiding and abetting statute does not add distinct material elements to the definition of the 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. 299 Kan. at 140. Thus, we reject Soto’s argument that the jury instructions in this case created an alternative means problem.
Nevertheless, it is necessary to consider Soto’s argument regarding the “super-sufficiency” of the evidence, as he claims the evidence is insufficient to support his guilt either as an aider or abettor or as a principal. Given that these were the only two theories of criminal liability presented to tine jury, we construe Soto’s argument as a general challenge to the sufficiency of the evidence to support his conviction. We recently reiterated the standard of review applied to a sufficiency challenge:
“When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all tire 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 make witness credibility determinations. [Citation omitted.]” State v. Remmert, 298 Kan. 621, 629, 316 P.3d 154 (2014).
Here, to establish Soto’s guilt for premeditated first-degree murder, the State was required to prove beyond a reasonable doubt that Soto premeditated and intended Moreno’s death and that Soto either committed the physical acts that led to Moreno’s death or facilitated another in committing those acts. See K.S.A. 21-3401(a) (defining premeditated first-degree murder); K.S.A. 21-3205(1) (defining liability for intentional crimes of another); State v. Baker, 287 Kan. 345, 366, 197 P.3d 421 (2008) (stating that to establish guilt on basis of aiding and abetting, State must show that defendant knowingly associated with unlawful venture and participated in a manner indicating he or she was facilitating success of venture); State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005) (“[A] person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim.”).
Based on the evidence presented by the State, as previously detailed in this opinion, we are firmly convinced that a rational juiy could have concluded, beyond a reasonable doubt, that Soto was guilty either as a principal or an aider and abettor.
The district court did not err in failing to give a jury unanimity instruction because this is not a multiple acts case.
Alternatively, Soto argues the district court erred in failing to give a unanimity instruction because the State presented evidence of multiple acts but failed to elect a specific act to support the charge.
We have explained that in a multiple acts case the State alleges several acts, any one of which could constitute the crime charged, and the jury must be unanimous as to which act the defendant committed. See State v. Jones, 295 Kan. 1050, Syl. ¶ 3, 288 P.3d 140 (2012). When juiy unanimity is at issue on this basis, the threshold question is whether we are presented with a multiple acts case. We exercise unlimited review over this question of law. State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007).
Soto’s argument as to the existence of multiple acts is unclear. He points out that the State presented evidence that Soto directed Castro not to touch anything when Castro arrived at the apartment and that Soto and his friends cleaned up everything they touched in the apartment, took several items from the apartment, and threw the items in the river. Soto appears to suggest that these actions were “multiple acts” that independently would have supported the charge of first-degree premeditated murder based on the theory of aiding and abetting. We disagree.
Regardless of whether the State proved Soto acted as a principal or an aider and abettor, this case cannot be a multiple acts case because there was only one killing. Stated another way, none of the “acts” Soto relies upon to support his multiple acts argument are factually and legally sufficient to satisfy all of the elements of first-degree premeditated murder. See State v. Trujillo, 296 Kan. 625, 629-30, 294 P.3d 281 (2013) (threshold question is “whether the defendant’s actions could have given rise to multiple counts of the charged crime”); State v. Zabrinas, 271 Kan. 422, 439, 24 P.3d 77 (2001) (“Multiple acts instructions are only necessary where the facts show separate incidents that are factually and legally sufficient to satisfy all of the elements of the crime.”).
Because this is not a multiple acts case, we conclude the district court did not err in failing to give a jury unanimity instruction.
The Aiding and Abetting Instruction Was Not Clearly Erroneous
Next, Soto argues the district court improperly instructed the jury on aiding and abetting.
The jury received the following aiding and abetting instruction, which conforms with PIK Crim. 3d 54.05 (responsibility for crimes of another):
“A defendant who, either before or during its commission, intentionally aids or abets 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 defendant’s participation, if any, in the actual commission of tire crime.”
Soto argues this instruction misstated the law because it used the phrase “a crime” followed by the phrase “the crime.” Specifically, he reasons that the instruction permitted a reasonable juror to conclude that if Soto aided or abetted another to commit “a crime,” then he is guilty of “the crime” committed even if it was a different crime than he aided or abetted.
Because Soto failed to object below, we review for clear error. See K.S.A. 2013 Supp. 22-3414(3); State v. Robinson, 293 Kan. 1002, 1036, 270 P.3d 1183 (2012). Applying that review, we first determine whether the given instruction was erroneous. This is a legal question subject to de novo review. State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012).
As the State points out, this court has repeatedly approved PIK Crim. 3d 54.05 as a correct statement of Kansas law on aiding and abetting. See, e.g., Betancourt, 299 Kan. at 134-39; State v. Llamas, 298 Kan. 246, 258-60, 311 P.3d 399 (2013) (citing cases); Engelhardt, 280 Kan. at 132. Soto provides no persuasive argument for reconsideration of these recent decisions, and we reject his claim of error.
The District Court Did Not Abuse Its Discretion in Admitting Autopsy Photographs
Over Soto’s objections, the district court admitted 32 autopsy photographs. On appeal, Soto claims the district court abused its discretion in admitting 6 of the 32 photographs-—State’s Exhibits 28T, 28U, 28V, 28W, 28Z, and 28AA. He argues these photographs were overly gruesome, not natural, inflammatory, and prejudicial, and their erroneous admission was not harmless.
When a defendant challenges the admission of photographic evidence, we first determine the photographs’ relevancy. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant to a murder charge. State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012). When a party argues photographs are overly repetitious, gruesome, or inflammatory, i. e., unduly prejudicial, we review for an abuse of discretion. State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012). “The admis sion of photographs in a murder case has rarely been held to be an abuse of discretion.” Rodriguez, 295 Kan. at 1157.
The State admitted through Dr. Adeagbo all six of the photographs of which Soto now complains. Dr. Adeagbo described Exhibit 28T as a photograph depicting the inside of Moreno’s neck to show damage to the internal jugular vein and Exhibit 28U as a photograph depicting a closer view of the same injury. Dr. Adeagbo testified this particular injuiy encompassed both a deep stab wound that penetrated the jugular vein and an internal cut that caused a major tear of the vein. Dr. Adeagbo described Exhibits 28V and 28W as photographs depicting the thyroid cartilage he removed from Moreno’s neck during the autopsy to demonstrate a stab wound that cut through the cartilage. Notably, the thyroid cartilage stab wound depicted in diese photographs is die same wound from which Gaiy Miller made a cast for comparison with potential murder weapons. Finally, Dr. Adeagbo described Exhibits 28Z and 28AA as photographs depicting the inside of the chest cavity, with organs removed, to show one or two stab wounds that penetrated through the skin and muscle and into the chest cavity.
As Soto suggests, the cause of death in this case was neither disputed nor complex; Moreno bled to death from 79 stab wounds. But even when the cause of death is not disputed, the State is allowed to introduce photographic evidence in murder cases to demonstrate the fact and manner of death and the violent nature of the crime. See Burnett, 293 Kan. at 853-54. Here, the six autopsy photographs Soto challenges demonstrate the manner of death and the violent nature of the crime and depict only a few of Moreno’s 79 wounds. Based on our review, we find these photographs relevant and not overly gruesome, inflammatory, or unduly prejudicial. Accordingly, the district court did not abuse its discretion in admitting the photographs.
The District Court Erred in Imposing a Hard SO Sentence
After Soto’s conviction, the State filed notice of its intent to seek a hard 50 sentence, alleging Soto committed the crime in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). In response, Soto argued imposition of a hard 50 sentence against a juvenile offender was prohibited under the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. Alternatively, Soto argued a hard 50 sentence would be unconstitutionally disproportionate under the facts of his case. Finally, Soto asserted tire evidence did not support the aggravating circumstance alleged by the State and several mitigating circumstances weighed against imposition of a hard 50 sentence.
After receiving evidence and hearing arguments from both parties, the district court rejected Soto’s constitutional challenges to imposition of a hard 50 sentence. Next, the court found by a preponderance of tire evidence diat Soto committed the crime in an especially heinous, atrocious, or cruel manner, noting the victim was aware of his fate, Soto committed continuous acts of violence before the killing, and Soto desecrated the body in a manner indicating a particular depravity of mind. See K.S.A. 21-4636(f)(5) and (6). The court inferred from the evidence that even if Moreno’s wounds were inflicted by more than one knife, Soto “was the sole actor if not the primary actor.” Finally, the court found Soto’s age to be the only mitigating circumstance and concluded this mitigating circumstance did not outweigh the aggravating circumstance. Accordingly, the court imposed a hard 50 sentence.
In his initial appeal brief, Soto argued the district court erroneously imposed a hard 50 sentence because the evidence was insufficient to establish the aggravating factor that Soto personally committed the crime in a heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). Additionally, he argued the Eighth Amendment to the United States Constitution prohibited imposition of the hard 50 sentence either as a matter of law because he committed the murder as a juvenile or because it was a disproportionate sentence under the facts of this case.
After the parties filed their initial briefs, the United States Supreme Court extended the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and held that the Sixth Amendment’s right to a jury trial requires that any fact that increases a mandatory minimum sentence increases the penalty for a crime and, therefore, is an “ ‘element’ ” that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151, 2162-63, 186 L. Ed. 2d 314 (2013).
After Alleyne, we granted Soto’s motion to file a supplemental brief challenging the constitutionality of his hard 50 sentence as violative of his right to a jury trial. In that brief, Soto argues Kansas’ statutory procedure for imposing a hard 50 sentence, K.S.A. 21-4635, clearly violates Alleyne because it permits imposition of an increased mandatory minimum sentence based on judicial fact-finding by a preponderance of the evidence. In its response, the State concedes Kansas’ hard 50 sentencing scheme contains a “judicial factfinding component” in that it requires a judge to find tire existence of aggravating factors. But the State attempts to distinguish the hard 50 sentencing scheme from the sentencing scheme at issue in Alleyne and maintains that Alleyne did not implicate the constitutionality of K.S.A. 21-4635.
Before oral argument in this case, we directed the parties to file additional supplemental briefs addressing whether an Alleyne error is subject to harmless error review and, if so, whether any error in this case was harmless. Soto’s supplemental brief generally contends an Alleyne error is not amenable to a harmless error analysis. Alternatively, he argues the error in this case was not harmless. In contrast, the State contends harmless error review is appropriate and the error here was harmless.
1. Overview of hard SO sentencing scheme and post-Apprendi and pre-Alleyne developments
In Kansas, the statutorily authorized maximum sentence for a conviction of first-degree premeditated murder is life imprisonment. K.S.A. 2013 Supp. 21-6806(c). Ordinarily, the mandatory minimum sentence is 25 years. K.S.A. 2013 Supp. 22-3717(b)(1); see also State v. Warledo, 286 Kan. 927, 955, 190 P.3d 937 (2008) (“In determining whether to impose a hard 50 sentence, the sentencing court is considering the minimum sentence, not the maximum.”). But, in some cases, die sentencing court may impose an increased mandatory minimum sentence of either 40 or 50 years.
The hard 50 sentencing scheme in effect at the time of Soto’s offense provided that for any defendant convicted of first-degree premeditated murder committed on or after July 1, 1999, the sentencing court “shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of... 50 years or sentenced as otherwise provided by law.” K.S.A. 21-4635(b). To make that determination, the court considered evidence relevant to any statutory aggravating circumstances alleged by the State and any mitigating circumstances. K.S.A. 21-4635(c). But if the court made certain findings, it was required to impose a hard 50 sentence:
“If the court finds that one or more of the aggravating circumstances enumerated in K.S.A. 21-4636 and amendments thereto exist and, further, that die existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 21-4638 and amendments thereto; odierwise, die defendant shall be sentenced as provided by law. The court shall designate, in writing, the statutory aggravating circumstances which it found.” (Emphasis added.) K.S.A. 21-4635(d).
Shortly after the Supreme Court issued its decision in Apprendi, this court in State v. Conley, 270 Kan. 18, 30-35, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), considered the constitutionality of the hard 40 sentencing scheme—amended in 1999 to a hard 50 scheme. See K.S.A. 21-4635 (Furse 1995) (permitting imposition of 40-year mandatory minimum sentence for first-degree premeditated murder); K.S.A. 1999 Supp. 21-4635 (reflecting hard 50 amendment). The Conley court acknowledged Apprendi’s holding that “ ‘other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ (Emphasis added.) 147 L. Ed. 2d at 455.” Conley, 270 Kan. at 34. However, the court found McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), rather than Apprendi, controlled this issue. See also State v. Johnson, 284 Kan. 18, 23, 159 P.3d 161 (2007) (upholding constitutionality of hard 50 scheme under McMillan rationale), cert. denied 552 U.S. 1104 (2008).
In McMillan, the Court upheld the constitutionality of Pennsylvania’s Mandatoiy Minimum Sentencing Act, 42 Pa. Cons. Stat. § 9712 (1982). The Act applied to convictions of several enumerated felonies and required a sentencing judge to impose a mandatory minimum sentence of 5 years if the judge found by a preponderance of the evidence that the defendant “visibly possessed a firearm” during the commission of the underlying felony. 477 U.S. at 81-82. The McMillan Court ultimately concluded the visible possession of a firearm represented a “sentencing factor” to be considered by the sentencing court rather than an “element” the State must prove to a jury beyond a reasonable doubt. 477 U.S. at 85-93.
Two years after this court’s decision in Conley, the United States Supreme Court in Harris v. United States, 536 U.S. 545, 568, 122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002), reaffirmed McMillan in light of Apprendi. The statutory sentencing scheme at issue in Harris, 18 U.S.C. § 924(c) (2012), provided ascending mandatory minimum sentences depending on whether tire defendant possessed (5 years), brandished (7 years), or discharged (10 years) a firearm during the commission of an enumerated felony. 536 U.S. at 550-51. Relying on McMillans distinction between factual findings that increase a maximum sentence beyond what the jury verdict would allow, which the Court characterized as “elements,” and factual findings that increase a mandatoiy minimum sentence, which the Court characterized as “sentencing factors,” the Harris Court reconciled Apprendi and McMillan. Harris, 536 U.S. at 557, 564-65; see also McMillan, 477 U.S. at 85-86, 91.
The same year the Court issued Harris, it relied on Apprendi to hold Arizona’s capital sentencing scheme unconstitutional in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Under that sentencing scheme, the death penalty could be imposed following a bifurcated trial if, (1) during the guilt phase, a jury convicted the defendant of capital murder and, (2) during the penalty phase, the trial judge found, beyond a reasonable doubt, the existence of at least one aggravating circumstance and “ ‘no mitigating circumstances sufficiently substantial to call for leniency.’ ” 536 U.S. at 592-93.
Before Apprendi, the United States Supreme Court had upheld the constitutionality of the same Arizona capital sentencing scheme in Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990). In Walton, the Court specifically rejected the defendant’s argument that Arizona’s aggravating factors were “ ‘elements’ of the offense” that must be submitted to and found by a jury to satisfy the Sixth Amendment. 497 U.S. at 648-49. Relying on Walton, tire Arizona Supreme Court had upheld the scheme and Ring’s death sentence. See State v. Ring, 200 Ariz. 267, 280, 25 P.3d 1139 (2001).
But in Ring v. Arizona, the Court overruled Walton in part, specifically rejecting the distinction drawn in Walton between elements of an offense and sentencing factors. Ring, 536 U.S. at 608-09. The Ring Court noted: ‘Apprendi repeatedly instructs [that as to elevation of tire maximum punishment] tire characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative of the question ‘who decides,’ judge or jury.” 536 U.S. at 604-05. The Court ultimately held: “Because Arizona’s enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ . . . the Sixth Amendment requires that they be found by a jury.” 536 U.S. at 609.
Two years later, in Blakely v. Washington, 542 U.S. 296, 299, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court considered Apprendis application to a Washington statute that permitted imposition of an “exceptional” sentence, i.e., a sentence exceeding the standard sentencing range under Washington’s sentencing guidelines, if the judge found “ ‘substantial and compelling reasons justifying an exceptional sentence.’ ” The Blakely Court briefly summarized its holdings in Apprendi and Ring, stating: “In each case, we concluded that the defendant’s constitutional rights had been violated because tire judge had imposed a sentence greater than the maximum he could have imposed under state law without the challenged factual finding.” Blakely, 542 U.S. at 303. The Court clarified that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admittedby the defendant.” Blakely, 542 U.S. at 303.
Significantly, the Blakely Court rejected the State’s attempt to distinguish Apprendi and Ring based on the fact “that the enumerated grounds for departure in its regime are illustrative rather than exhaustive,” stating:
“Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.” Blakely, 542 U.S. at 305.
Ultimately, the Blakely Court concluded that “[bjecause the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner’s sentence is invalid.” 542 U.S. at 305.
In sum, before Alleyne, the United States Supreme Court held that any additional facts necessary to increase the punishment for a crime beyond tire maximum punishment a judge could impose based solely on the facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proven beyond a reasonable doubt. In contrast, additional facts necessary to increase the mandatory minimum sentence were merely sentencing factors that could be found by a judge rather than a jury.
In several cases decided after Harris and Ring, this court maintained its reliance on McMillan to uphold the constitutionality of the hard 40/50 sentencing scheme, noting that Harris reaffirmed McMillan even after Apprendi. See State v. Astorga, 295 Kan. 339, 354, 284 P.3d 279 (2012), (“We have consistently upheld the constitutionality of the hard 40/hard 50 sentencing scheme in light of both Ring and Apprendi, and we decline Astorga’s invitation to reconsider our prior decisions.”), cert. granted, judgment vacated by Astorga v. Kansas, 133 S. Ct. 2877 (2013); State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 (2011) (citing cases); State v Albright, 283 Kan. 418, 423-24, 153 P.3d 497 (2007) (same); see also Johnson, 284 Kan. at 23 (upholding constitutionality of hard 50 scheme after noting McMillan had not been overruled despite several post -Apprendi decisions invalidating judicial factfinding exposing defendants to increased maximum sentences).
2. The changed landscape after Alleyne v. United States
In Alleyne, 133 S. Ct. at 2160-63, the Supreme Court considered the constitutionality of the same statute at issue in Harris, 18 U.S.C. § 924(c), and overruled both Harris and McMillan.
Relying on Harris, the lower courts rejected Alleyne’s Sixth Amendment challenge to his mandatory minimum sentence of 7 years, a sentence based on a judicial finding, by a preponderance of tire evidence, that he had brandished a firearm. Notably, the jury’s verdict form indicated the jury found beyond a reasonable doubt that Alleyne used or carried a firearm, but it did not find that Alleyne brandished a firearm. Thus, the jury’s verdict authorized a mandatory minimum sentence of only 5 years rather than 7 years. See 18 U.S.C. § 924(c)(l)(A)(i) and (ii).
The Alleyne Court found Harris’ “distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum” inconsistent with Apprendi and overruled Harris. Alleyne, 133 S. Ct. at 2155, 2163. The Court noted that “facts increasing the legally prescribed floor aggravate the punishment,” and explained that “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.” 133 S. Ct. at 2161.
Applying its holdings to the facts of the case before it, the Alleyne Court concluded:
“Here, the sentencing range supported by the jury’s verdict was five years’ imprisonment to life. The District Court imposed the 7-year mandatory minimum sentence based on its finding by a preponderance of the evidence that the firearm was ‘brandished.’ Because the finding of brandishing increased tire penalty to which the defendant was subjected, it was an element, which had to be found by the jury beyond a reasonable doubt. The judge, rather than the jury, found brandishing, thus violating petitioner’s Sixth Amendment rights.” 133 S. Ct. at 2163-64.
3. Application of Alleyne to Kansas’ hard SO sentencing scheme
In his supplemental brief addressing Alleyne’s application in this case, Soto argues Alleyne renders Kansas’ statutory procedure for imposing a hard 50 sentence, K.S.A. 21-4635, unconstitutional because the statute permits a judge to find the aggravated facts nec essary to impose an increased mandatory minimum sentence of 50 years by a preponderance of the evidence rather tiran requiring a jury to make the necessary findings beyond a reasonable doubt.
In response, the State contends Alleyne’s holding does not apply to Kansas’ hard 50 statute because the Kansas scheme prescribes no mandatory minimum sentence. Alternatively, the State concedes that while Kansas’ hard 50 sentencing scheme contains a “judicial factfinding component,” in that it requires a judge to find the existence of aggravating factors, Alleyne did not implicate the constitutionality of K.S.A. 21-4635 because “that piece [of K.S.A. 21-4635 that requires the finding of aggravating factors] merely serves to inform judicial sentencing discretion.”
a. Standard of review
Determining a statute’s constitutionality is a question of law subject to unlimited review. We presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. Further, we must interpret a statute in a manner that renders it constitutional if there is any reasonable construction that will maintain the legislature’s apparent intent. State v. Gaona, 293 Kan. 930, 957-58, 270 P.3d 1165 (2012).
b. Kansas’ hard SO sentencing scheme includes a mandatory minimum sentence.
Preliminarily, the State suggests Alleyne’s holding does not apply to Kansas’ hard 50 scheme because, unlike the mandatory minimum sentence at issue in Alleyne, Kansas’ hard 50 statute prescribes no mandatory minimum sentence. Instead, the State maintains that under K.S.A. 21-4706(c), the statutorily required sentence for premeditated first-degree murder is life in prison regardless of whether the court finds aggravating or mitigating factors during sentencing.
We reject the State’s suggestion that the hard 50 scheme does not contemplate a mandatory minimum sentence for two reasons. First, we note that in several pre-Alleyne cases the State consistently urged this court to uphold the constitutionality of the hard 50 scheme under the rationale of State v. Conley, 287 Kan. 696, 197 P.3d 837 (2008), and its progeny. In those cases, this court found the hard 50 scheme constitutional because it only increased die “mandatory minimum sentence,” as permitted by McMillan. See, e.g., Conley, 287 Kan. at 700-01 (discussing McMillan and Kansas cases upholding constitutionality of hard 40/50 scheme on grounds it only increases minimum sentence).
Second, even if the State’s current posture was not wholly inconsistent with its pre- Alleyne position, we would reject the State’s argument on its merits based on the express language of the hard 50 scheme which contemplates a mandatory minimum sentence of 50 years. See K.S.A. 21-4635(b) (requiring court to determine “whether the defendant shall be required to serve a mandatory term of imprisonment of... 50 years”); K.S.A. 21-4638 (defendant sentenced under hard 50 scheme “shall not be eligible for parole prior to serving 50 years’ imprisonment” and “[f]or crimes committed on or after July 1, 2006, a mandatory minimum term of imprisonment of 50 years shall not apply” if court finds defendant would be subject to longer term of imprisonment under sentencing guidelines [emphasis added]).
c. Kansas’ hard 50 sentencing scheme violates the Sixth Amendment.
The State concedes, as it must, that Kansas’ hard 50 sentencing scheme contains a “judicial factfinding component” in that it requires a judge to find the existence of aggravating factors. Nevertheless, the State contends Alleyne did not implicate the constitutionality of K.S.A. 21-4635 because the judge’s finding of aggravating factors merely “informs” judicial sentencing discretion.
But foe Supreme Court’s collective rationale in Ring sad Alleyne precludes foe State’s position. Under Ring’s rationale, Kansas’ enumerated hard 50 aggravating circumstances operate as the functional equivalent of “elements” of a greater offense. See 536 U.S. at 609. And under Alleyne’s rationale, we can no longer distinguish between a fact that exposes a defendant to an increased maximum sentence and a fact that exposes a defendant to an increased mandatory minimum sentence. See Alleyne, 133 S. Ct. at 2160 (“foe principle applied in Apprendi applies with equal force to facts in creasing the mandatory minimum”). For Sixth Amendment purposes, both types of facts are now “elements” that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2158, 2160.
Despite this seemingly straightforward application of Ring and Alleyne, the State points to two sentences from Alleyne to suggest that under Kansas’ hard 50 scheme, the aggravating factors found by the judge merely “inform judicial factfinding.” Specifically, the State points out that after concluding facts necessary to increase a mandatory minimum sentence must be found by a jury beyond a reasonable doubt, the Alleyne Court noted: “Our ruling today does not mean that any fact that influences judicial discretion must be found by a juiy. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. “ 133 S. Ct. at 2163.
We are not persuaded that the Alleyne Court intended this statement to undermine its holding that the facts necessary to increase the mandatory minimum punishment must be found by a juiy beyond a reasonable doubt. Instead, the cases cited immediately following the Court’s comment simply clarify that Alleyne’s holding does not implicate judicial factfinding within a legislatively established sentencing range. See Alleyne, 133 S. Ct. at 2163 (citing cases that discuss the exercise of judicial discretion within an established sentencing range and noting: “Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the range authorized by law.” [Emphasis added.]).
Thus, we interpret the Court’s comments in Alleyne to refer to judicial factfinding and the exercise of judicial discretion when imposing, for example, an aggravated presumptive sentence under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq. In that circumstance, judicial factfinding increases neither the floor nor the ceiling of the statutorily authorized sentencing range; instead, it merely informs judicial discretion to sentence within that range. In contrast, Kansas’ hard 50 scheme undeniably and appreciably increases the mandatory punishment imposed for first-degree premeditated murder from 25 years’ imprisonment to 50 years’ imprisonment.
We conclude that under the combined force of Ring send Alleyne, the statutory procedure for imposing a hard 50 sentence 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.
Because Soto’s hard 50 sentence violated his Sixth Amendment right to a jury trial as interpreted in Ring and Alleyne, we vacate his sentence.
Remedy on Remand
Having vacated Soto’s sentence based on the unconstitutionality of the hard 50 scheme, we now turn to the parties’ arguments regarding the appropriate action on remand.
Soto urges us to remand for imposition of a hard 25 sentence because that is the only sentence supported by the jury’s verdict, while tire State urges us to remand to the district court for resent-encing under the amended hard 50 statute enacted by the legislature following Alleyne. See K.S.A. 2013 Supp. 21-6620. Soto responds that retroactive application of the amended statute would violate the constitutional prohibition against ex post facto laws, while the State disagrees and argues the Ex Post Facto Clause is not implicated because the new statute does not alter the definition of criminal conduct or increase the potential criminal penalty beyond that in place when Soto committed the crime.
1. Consideration of harmless error review
Because an Alleyne error is also an Apprendi error and this court has recognized that an Apprendi error may be subject to harmless error review, we asked the parties to brief whether a harmless error analysis can be applied in the hard 50 context. See, e.g., Washington v. Recuenco, 548 U.S. 212, 222, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006) (concluding tire “[fjailure to submit a sentencing factor to the jury, like [the] failure to submit an element to the jury, is not structural error,” rather it is subject to review for harmless error under the framework set out in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999]); State v. Reyna, 290 Kan. 666, 681-82, 234 P.3d 761 (2010) (applying Neder framework to find Apprendi-type error harmless), cert. denied 131 S. Ct. 532 (2010); State v. Daniels, 278 Kan. 53, 64-65, 91 P.3d 1147 (noting decisions of United States Supreme Court have clarified that Apprendi errors are subject to harmless error review), cert. denied 543 U.S. 982 (2004). Thus, before considering the parties’ arguments regarding remand, we first address harmless error, which, if it applies, would moot the remand issue.
Soto argues that a hard 50 sentencing error is not subject to harmless error review because tire court applied a preponderance of the evidence standard when considering tire existence of aggravated circumstances, and the findings of fact were never found beyond a reasonable doubt, as Alleyne requires. See State v. Spain, 263 Kan. 708, 714, 953 P.2d 1004 (1998) (concluding that although K.S.A. 21-4635(c) specifies no particular standard of proof, statute implicitly requires judge to apply preponderance of evidence standard when finding aggravating circumstances); see also State v. Nelson, 291 Kan. 475, 487-88, 243 P.3d 343 (2010) (clarifying standard of proof for finding aggravating circumstances is preponderance of evidence rather than beyond reasonable doubt). Alternatively, if harmless error review applies, Soto urges this court to conclude the Alleyne error was not harmless because we cannot find beyond a reasonable doubt that the evidence of the aggravating circumstance is both overwhelming and uncontested.
Citing Reyna, 290 Kan. at 681, the State contends this court can apply a harmless error review to the omission of an element from the jury instruction and, therefore, it can apply a harmless error review in the hard 50 context to the failure of a jury to decide an aggravating circumstance, which Alleyne holds is an “element” rather than a sentencing factor. The State further maintains that this review results in a conclusion beyond a reasonable doubt that the omitted element (i.e., the aggravating circumstance at issue here, K.S.A. 21-4636[f¡), was supported by overwhelming evidence such that the jury verdict would have been the same absent the error.
In Reyna, a jury convicted the defendant of multiple counts of aggravated indecent liberties with a child and the district court sentenced him, under Jessica’s Law, to a term of life imprisonment with no possibility of parole for 25 years. On appeal, Reyna argued the State’s failure to allege or instruct the jury on the element of his age—an element essential to the enhanced Jessica’s Law sentence—violated his Sixth Amendment right to a juiy trial as interpreted in Apprendi. Reyna, 290 Kan. at 678-79. Relying in part on Recuenco, the Reyna court held:
“[T]Iiis court will apply the harmless error analysis to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been tire same absent the error. And Recuenco stands for the proposition that characterizing the omission as an Apprendi-type error, i.e., judicial factfinding of the omitted element when that element enhances the maximum applicable sentence, does not change that analysis.” Reyna, 290 Kan. at 681.
The Reyna majority eventually found the error harmless based on uncontroverted and overwhelming evidence of the material element, i.e., Reyna testified he was 37 years old. See Reyna, 290 Kan. at 682 (relying on framework partially articulated in Neder).
Ultimately, we conclude we need not decide here whether a harmlessness analysis applies to a hard 50/Alleyne error, because even assuming the application of Reyna’s modified harmless error analysis, the error here does not come close to meeting that test.
First, we would have to determine beyond a reasonable doubt that the evidence Soto “committed the crime in an especially heinous, atrocious or cruel manner,” K.S.A. 21-4636(f), was uncon-troverted and supported by overwhelming evidence such that a jury would have found tire existence of the aggravating circumstance beyond a reasonable doubt. See K.S.A. 21-4635(c). See also Reyna, 290 Kan. at 681; Neder, 527 U.S. at 17 (“[Wjhere a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.”).
Assuming we moved beyond this difficult standard, application of the second step of the analysis in the Alleyne/hard 50 context would require us to conclude beyond a reasonable doubt that no rational juiy would have determined that any mitigating circumstances outweighed any aggravating circumstances. See K.S.A. 21-4635(d); see also State v. Ring, 204 Ariz. 534, 565, 65 P.3d 915 (2003) (concluding that because Arizona’s capital sentencing scheme required weighing of mitigating circumstances, court would affirm capital sentence only if it could conclude, “beyond a reasonable doubt, that no rational trier of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency”).
Here, Soto presented evidence regarding several mitigating circumstances including: He was only 16 at the time of the crime; his juvenile record demonstrated his amenability to rehabilitation; he lacked a significant criminal history or school discipline record; the killing was motivated by peer pressure and a gang mentality; and his accomplices received lesser sentences. Additionally, Soto’s mother testified Soto was bullied in middle school; he was a good son who helped around the house; he was a good student; his father was an alcoholic; and Soto witnessed his father’s abusive behavior toward Soto’s mother. Although tire district court found only one mitigating circumstance—Soto’s age—we cannot conclude, beyond a reasonable doubt, that no rational jury would have determined Soto’s age to be the only mitigating circumstance. Nor can we say that no rational jury would have determined that the mitigating circumstance outweighed the aggravating circumstance.
Finally, we note that because Kansas’ hard 50 scheme requires the sentencing court to not only find aggravating and mitigating circumstances, but to weigh any mitigating circumstances against aggravating circumstances, only in a rare instance could a hard 50/ Alleyne error be harmless. See Marceau, Arizona’s Ring Cycle, 44 Ariz. St. L.J. 1061, 1078-80 (2012) (noting that of 30 capital sentences reconsidered by Arizona Supreme Court after Ring, the court affirmed only two sentences under harmless error rule and in both cases, “the deaths were unusually brutal or the corpse mutilation unusually heinous, and the mitigation in both cases was either waived by the defendant at sentencing or deemed to be truly de minimis”)- Accordingly, we will 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.
2. We decline to issue an advisory opinion as to the appropriate course of action on remand.
Because this case must be remanded for resentencing, we now turn to Soto’s arguments regarding the procedure to be applied on remand. Soto argues the district court on remand must impose a hard 25 sentence because that is the only sentence supported by the jury’s verdict. However, the State argues the district court must resentence Soto under the amended hard 50 statute enacted by tire legislature following Alleyne. See K.S.A. 2013 Supp. 21-6620.
Following Alleyne, the Kansas Legislature held a special session in September 2013 to amend Kansas’ hard 50 sentencing scheme. See L. 2013, ch. 1, § 1 (Special Session). The amended version includes express provisions for retroactive application. K.S.A. 2013 Supp. 21-6620. Specifically, K.S.A. 2013 Supp. 21-6620(e) provides:
“[F]or all cases on appeal on or after the effective date of this act, if a sentence imposed 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, resent-encing shall be required under this section, as amended by this act, unless the prosecuting attorney chooses not to pursue such a sentence.”
Soto argues retroactive application of tire amended hard 50 statute would violate the constitutional prohibition against ex post facto laws. Citing Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977), the State counters that resentencing would not implicate tire Ex Post Facto Clause because the new statute neither alters the definition of criminal conduct nor increases the potential criminal penalty beyond that in place when Soto committed the crime.
Both parties concede that their arguments related to the constitutionality of applying the amended hard 50 statute on remand are not ripe because the State has not yet sought application of the amended hard 50 statute. We agree, and thus we decline the parties’ invitation to issue an advisory opinion on these issues. See State v. Montgomery, 295 Kan. 837, Syl. ¶ 2, 286 P.3d 866 (2012) (noting that Kansas appellate courts generally do not render advisory opinions); State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012) (declining to issue advisory opinion on double jeopardy issue that was not yet ripe).
Instead, we hold only that because Soto’s sentence was imposed in violation of his Sixth Amendment right to a jury trial, his sentence must be vacated and the case remanded for resentencing. Our decision does not foreclose the parties from presenting their arguments regarding application of the amended statute to the district court at resentencing.
3. The evidence was sufficient to support the aggravating circumstance.
In the event the district court were to determine the amended statute applies at resentencing, section (e) of K.S.A. 2013 Supp. 21-6620 suggests the State would be precluded from pursuing a hard 50 sentence if this court had vacated Soto’s sentence for lack of sufficient evidence to support the aggravating circumstance. 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.
In the past, when a criminal defendant has challenged the sufficiency of the evidence to support a hard 50 aggravating circumstance, we have considered whether, after review of all the evidence in a light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence. See, e.g., State v. McCaslin, 291 Kan. 697, 727, 245 P.3d 1030 (2011). However, in light of Alleyne, we will apply the beyond a reasonable doubt standard of proof in considering the sufficiency challenge.
The cause and manner of Moreno’s death was undisputed at trial; Moreno bled to death from dozens of stab wounds. More specifically, Soto, either acting alone or with his accomplices, at tacked Moreno with one or more knives, cutting Moreno’s jugular veins on both sides of his neck, slashing one of his carotid arteries, penetrating his thyroid cartilage, and significantly damaging several internal organs. All together, the attacker(s) inflicted 79 stab wounds and cuts. As the district court noted, even if the stabbing lasted only one minute, the number of stab wounds demonstrated die savageiy of the attack because the wounds would have had to have been inflicted at a rate exceeding one wound per second. Cf. State v. Engelhardt, 280 Kan. 113, 143-44, 119 P.3d 1148 (2005) (affirming district court’s preponderance of evidence finding that defendant committed murder in heinous, atrocious, and cruel manner when victim was stabbed approximately 55 times over course of 20 minutes and defendant bragged to his friends about victim’s slow death).
Viewing this evidence in the light most favorable to tire prosecution, we conclude that a rational factfinder could have found, beyond a reasonable doubt, that Soto committed the murder in an especially heinous, atrocious, or cruel manner. Consequently, the sole reason we are vacating Soto’s sentence is because it was imposed in violation of his Sixth Amendment right to a jury trial, as interpreted in Alleyne.
Finally, because we are vacating Soto’s sentence, we decline to consider Soto’s claim that a hard 50 sentence violates the Eighth Amendment to the United States Constitution, either as a matter of law based on his juvenile status or as applied in this case. See State v. Jones, 293 Kan. 757, 762, 268 P.3d 491 (2012) (declining to reach Eighth Amendment challenge to lifetime postrelease supervision because court vacated defendant’s sentence on other grounds).
Affirmed in part, vacated in part, and remanded for resentenc-ing- | [
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The opinion of the court was delivered by
Johnson, J.:
Rasmüs R. Eddy directly appeals his jury convictions for multiple counts of serious sex offenses perpetrated against A.E., his 4-year-old granddaughter. Eddy raises two arguments on appeal: (1) The State presented insufficient evidence to prove that he committed rape by tire alternative means of penetrating the victim with an object, and (2) the district court erroneously denied his request to have' a psychological evaluation performed on die victim. This court has direct jurisdiction pursuant to K.S.A. 22-3601(b)(1), prior to its 2011 amendments. We affirm.
Factual and Procedural Overview
The incidents underlying the charges against Eddy occurred in the spring of 2009, while A.E. was staying at Eddy’s house for a few days at Eddy’s request. The child related to her mother and other relatives that she had seen naked adults on Eddy’s computer; that Eddy had touched her in the vaginal area with his finger; and that Eddy had licked her vagina. Eddy admitted to the police that he had allowed the child to view pornography on his computer. He explained the touching by saying that he had rubbed baby oil on a sore that was located on the inside of tire child’s labia. Eddy explained the licking by describing how the child, while naked, playfully climbed over his head a number of times, causing his face to contact her vaginal area. He also said drat the child insisted that he lass her “owie,” i.e., her labial sore, and that he had pretended to do so by placing his hand over her vagina and kissing the inside of her thigh or the back of his own hand. Eddy also told the police that the child had grabbed his penis unexpectedly on two occasions during her visit.
During closing argument, the prosecutor explained the charges against Eddy and related the facts supporting each charge. Count I charged rape based upon Eddy’s admittedly putting his finger inside the child’s labia, albeit ostensibly to rub oil on a sore. Count II charged aggravated criminal sodomy based on A.E.’s testimony that Eddy licked her vagina. Count III, promoting obscenity to a minor, was based on Eddy allowing A.E. to view pornography. Count IV, aggravated indecent liberties with a child, was based on Eddy’s testimony that he placed his hand over A.E.’s vagina and kissed her inner thigh. Counts V and VI each charged aggravated indecent liberties with a child and were based on Eddy’s testimony that A.E. grabbed his penis on two different occasions, as well as his having held his penis while showing it to A.E. Finally, Counts VII-XI were aggravated criminal sodomy charges based on Eddy’s testimony that “as many as five times he let [A.E.] slide down his face while she was naked, and that she’d come in contact with his nose and his mouth. That’s oral contact.”
The jury acquitted Eddy on one of the aggravated criminal sodomy charges, Count VIII, but convicted him on all of the other counts.
Eddy filed a posttrial motion for acquittal, arguing, inter alia, that tire five convictions for aggravated criminal sodomy that were based on the single, unitary incident where A.E. repeatedly slid down Eddy’s face were multiplicitous. The district court denied the motion, and Eddy has not asserted multiplicity in this appeal.
The sentencing court granted Eddy’s motion to impose a sentencing guidelines grid sentence, pursuant to K.S.A. 21-4643(d), and the district court ultimately imposed a controlling prison sentence of 310 months, or 25 years and 10 months. Eddy timely appealed.
Alternative Means
On the rape count, the court instructed the jury that one of the claims the State had to prove was “[t]hat the defendant had sexual intercourse with [A.E.].” Then the jury instructions set forth the following definition: “Sexual intercourse means any penetration of the female sex organ by a finger or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” (Emphasis added.)
Eddy contends that the definition of sexual intercourse given to the jury created alternative means by which it could have found that the rape occurred, i.e., by penetrating A.E.’s sex organ with a finger or by penetrating A.E.’s sex organ with an object. Therefore, to ensure jury unanimity, the State was required to present the jury with sufficient evidence to support a conviction under both alternative means or the conviction must be reversed. See State v. Wright, 290 Kan. 194, 202-03, 224 P.3d 1159 (2010) (in alternative means case, juiy need not be unanimous as to which means defendant utilized but there must be substantial competent evidence of each instructed means). Eddy argues that the State presented no evidence that he penetrated the child with an object, apparently presuming that a finger is not also an object within the meaning of the instructions.
Standard of Review
“Issues of statutoiy interpretation and construction, including issues of whether a statute creates alternative means, raise questions of law renewable de novo on appeal.” State v. Brown, 295 Kan. 181, Syl. 6, 284 P.3d 977 (2012). An alternative means challenge can be raised for the first time on appeal because it implicates the sufficiency of the evidence to support tire conviction. See State v. Wells, 297 Kan. 741, 756-57, 305 P.3d 568 (2013).
Analysis
Subsequent to Eddy’s trial, this court resolved the question of whether the definition of sexual intercourse created alternative means of committing rape. In State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012), this court reasoned that the gravamen of the prohibited act of rape was penetration and that the listing of body parts and “any object” merely described factual circumstances by which the element of penetration could be proved. Because tire instruction did not create an alternative means circumstance, evidence establishing that Britt penetrated the victim’s vagina with his penis was sufficient to support his rape conviction, notwithstanding the absence of any evidence that he penetrated the victim with a finger or another object. 295 Kan. at 1026-27; see State v. Weber, 297 Kan. 805, 816-17, 304 P.3d 1262 (2013); State v. Miller, 297 Kan. 516, 518, 304 P.3d 1221 (2013).
Eddy’s brief was submitted prior to our decision in Britt. At oral argument, the defense did not proffer any compelling reason that we should reverse Britt’s holding that the definition of sexual intercourse does not malee rape an alternative means crime. We stand by that ruling, which resolves the issue against Eddy. There was sufficient evidence that Eddy penetrated the child’s labia with his finger, which would support the sexual intercourse element of the crime of rape.
Psychological Evaluation of the Victim
For his other issue, Eddy contends that the district court erred in denying his request to have A.E. undergo a psychological evaluation to determine the admissibility of her testimony. He argues that an examination was warranted because: (1) A.E. was an impressionable 4-year-old girl who was subject to her mother’s control for a full month before giving a statement to law enforcement officers, and (2) A.E.’s allegations were uncorroborated. We do not find Eddy’s proffered reasons to evaluate A.E. to be compelling.
Standard of Review
This court applies an abuse of discretion standard when reviewing a district court’s decision on a motion for a psychological evaluation of a complaining witness. State v. Stafford, 296 Kan. 25, 39, 290 P.3d 562 (2012).
“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.” State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (citing State v. Gonzalez, 290 Kan. 747, 755-56, 234 P.3d 1 [2010]).
The party asserting an abuse of discretion has the burden of persuasion. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009).
Analysis ■
Appellate courts are typically loathe to find an abuse of discretion when a district court refuses to order a psychological examination of a young sex abuse victim, unless the circumstances are extraordinary. “In general, a defendant is entitled to a psychological examination of a complaining witness in a sex crime if compelling circumstances justify such an examination.” (Emphasis added.) Stafford, 296 Kan. at 40.
To assess tire existence of compelling circumstances, a court should examine the totality of the circumstances, and, at least since our decision in State v. Gregg, 226 Kan. 481, 602 P.2d 85 (1979), courts have applied certain factors. Recently, we considered the following nonexclusive list of factors: (1) whether there is corroborating evidence of the complaining witness’ version of the facts, (2) whethér the complaining witness demonstrates mental instability, (3) whether tire complaining witness demonstrates a lack of veracity, (4) whether the complaining witness has made similar charges against others that were proven to be false, (5) whether the defendant’s motion for an evaluation appears to be a fishing expedition, and (6) whether the complaining witness provides an unusual response when questioned about his or her understanding of what it means to tell the truth. State v. Berriozabal, 291 Kan. 568, 581, 243 P.3d 352 (2010).
With respect to tire first factor, Eddy contends that there was no evidence to corroborate A.E.’s allegations. Granted, the State did not present any physical or medical evidence to corroborate the charges. But Eddy’s own statements, both to law enforcement officers and at trial, provided plenty of corroboration for A.E.’s description of events. He admitted touching the inside of A.E.’s labia; he admitted contact between his mouth and A.E.’s genitalia; and he admitted showing the child pornography on his computer. Indeed, some of the convictions were based solely upon Eddy’s own statements, such as the counts related to A.E. touching or seeing Eddy’s penis, because the child never told anyone that she saw or touched her grandpa’s penis. While Eddy put his own spin on why the alleged acts occurred, he nevertheless corroborated that they did occur. A psychological examination of the victim would have added nothing to the question of the defendant’s specific intent. ' -
With respect to the remaining factors, Eddy did-not present any evidence that A.E. displayed any mental instability, demonstrated any lack of veracity, made any similar charges against others that were proven to be false, or indicated an inability to understand what it means to tell the truth. To the contrary, the motion for an evaluation in this case appears to be a prime example of a fishing expedition.
Eddy tries to suggest that A.E.’s mother was involved in “heated custody proceedings” with A.E.’s father, which provided the incentive for the mother to plant permanent false memories in A.E.’s mind in order to frame A.E.’s grandfather for sex abuse, and that the 4-week delay in obtaining A.E.’s law enforcement interview provided mother with the opportunity.to effect her scheme. There are a number of disconnects in that line of reasoning.
First, the record does not support the heated custody dispute claim. Rather, there was some testimony that A.E.’s mother and father were quarreling because mother wanted father to take A.E. for awhile, but he was financially unable to do so. Moreover, Eddy does not explain why framing him for sex abuse would have provided A.E.’s mother with any advantage in her alleged dispute with her ex-husband.
Most importantly, however, on May 1, 2009, A.E. told the same thing to her mother, her grandmother, her great aunt, and the sexual assault nurse examiner. Then, 4 weeks later, on May 28, 2009, she repeated the same allegations to the law enforcement officer. The only inconsistency to which Eddy can point is that in the later interview, A.E. used the term “nasty” for the first time. Again, Eddy fails to explain the significance of that distinction. Even if A.E.’s mother planted the notion that the sex abuse was “nasty,” it does not rénder suspect the child’s consistent statements of what Eddy did to her. Certainly, it is not a compelling circumstance that would justify a psychological examination.
In sum, Eddy fails to establish any valid reason that would support a finding of compelling circumstances to warrant a psycholog ical examination of the sex abuse victim in this case. As such, the district court’s denial of the evaluation motion cannot be -deemed an abuse of discretion. The ruling is affirmed.
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The opinion of the court was delivered by
Biles, J.;
A jury convicted Jonell Lloyd of first-degree premeditated murder, felony murder, and abuse of a 17-month-old child. He appeals his convictions, arguing: (1) reversible error in denying his belated motion to strike a prosecution witness’ pretrial statement and trial testimony; (2) insufficient evidence to support premeditated first-degree murder; and (3) reversible error in admitting evidence of another crime contrary to K.S.A. 2009 Supp. 60-455. We affirm his convictions.
Lloyd also challenges his life sentence, claiming the district court erred by imposing a life sentence without possibility of parole for 50 years (hard 50). He contends the hard 50 sentencing procedure set out in K.S.A. 21-4635 is unconstitutional in light of Alleyne v. United States, 570 U.S. _, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). We agree. See State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014) (concluding hard 50 sentencing scheme that permits a judge—rather than a jury—to find aggravating circumstances necessary to impose an increased mandatoiy minimum sentence violates the Sixth Amendment to tire United States Constitution under Alleyne).
In Lloyd’s case, after conducting an evidentiary hearing on the matter, tire trial judge found by a preponderance of evidence two statutory aggravating circumstances to justify increasing Lloyd’s mandatory minimum sentence: (1) existence of a prior felony conviction in which the defendant inflicted great bodily harm or .disfigurement (K.S.A. 21-4636[a]); and (2) defendant committed the crime of conviction in an especially heinous, atrocious, or cruel manner (K.S.A. 21-4636[f]). The judge also found the mitigating evidence offered by Lloyd did not outweigh those aggravating circumstances.
Accordingly, we must vacate Lloyd’s hard 50 life sentence based on Alleyne and Soto and remand for resentencing.
Factual and Procedural Background
Chavira Brown was 17 months old when she was found dead in the attic of Lloyd’s house. She was born to Jessica Jackson, who believed Lloyd was the child’s father, so he occasionally watched Chavira. Lloyd lived with his girlfriend, Tameika Loudermilk, and their 8-month-old son.
As Jackson testified at trial, Lloyd left her a voicemail message on July 31, 2008, saying he had lost Chavira at a city park. Jackson and her sister went to Lloyd’s house, where he explained he had taken Chavira and his son to the park but lost her while changing the boy’s diaper. Lloyd would later admit he fabricated this explanation. He later testified he lost Chavira at his house but did not want to say so because he sold drugs there. Jackson testified Lloyd asked the two women not to call the police because he had outstanding arrest warrants. Jackson’s sister, however, reported the child missing, and then the two women went to the park to look for Chavira. Lloyd admits he left the house.
When Jackson arrived at the park about 8 p.m., police officers were already there. After speaking with her, an officer drove Jackson to Lloyd’s house, where the officer talked with Loudermilk, who initially denied knowing Lloyd. But after another person told officers Lloyd lived there, Loudermilk admitted Lloyd had been at the house, but she did not know his whereabouts and had not seen Chavira recently. Police arrested Loudermilk for obstruction and took her into custody, which led to a series of interviews at the police station that began after midnight. Loudermilk’s statements to investigators and her trial testimony were central to the investigation and prosecution and play prominently in the conviction-related issues on appeal.
Detective Brian Hightower first interviewed Loudermilk. She initially repeated that she did not know Chavira’s whereabouts, but she did describe how Lloyd had shouted at Chavira because she wet herself. At 2:53 a.m., Officer Michael John Nagy took over the interview and admits he was “pretty rough” in his questioning in order to get Loudermilk to tell where Chavira was. Nagy was aware Loudermilk’s infant son was in protective custody after her arrest, so he told Loudermilk he would help get her son back from protective custody if she cooperated. He also told her she would “be in a world of hurt” if she did not help locate Chavira. But Loud-ermilk offered no additional information. Nagy then changed tactics.
Nagy told Loudermilk she would go to jail for a long time if something bad happened to Chavira; and, if that happened, her son would go into “the system” and she would be unable to see him. Toward the end of this interview, Nagy told Loudermilk he was going to get the truth from another witness who had talked to Lloyd and knew what happened. Nagy told her to think about whether charging her with murder was fair to her and her son. He then left the room and Detective Lennie Rose entered. At around 4:45 a.m., Loudermilk made statements incriminating Lloyd— most critically, she said she thought Chavira was in the.attic of the house.
Officers secured a search warrant and discovered in the attic what they initially described as a black bag, which was actually a sofa cushion cover filled with three black plastic trash bags, one bag inside the other, and “knotted, tied.” The innermost bag contained Chavira’s body.
The State charged Lloyd alternatively with first-degree premeditated murder and felony murder with the underlying felony of child abuse. It also charged him with child abuse.
At trial, Loudermilk testified as a State witness. She said she was at home the day Chavira died and mainly stayed in her bedroom. She said she saw Lloyd in the living room hitting Chavira with a belt for about 20 minutes because the child had wet herself. Loud-ermilk did nothing to stop him. She said she walked through the living room later and saw Lloyd with his hand around the backside of Chavira’s neck and heard her crying. Loudermilk returned to the bedroom, leaving the door partially open. She continued to hear Chavira crying. Loudermilk said she heard Chavira making noise for 10 to 15 minutes, as if Chavira could hardly breathe.
Loudermilk said Lloyd then carried Chavira to the den at the back of the house. She said she did not know but thought Chavira was dead. Lloyd returned to tire front of the house without Chavira, took trash bags from under the kitchen sink, and then went to Loudermilk’s room, took her phone, and went back to the kitchen to make a call. Loudermilk said Lloyd paced back and forth until Jackson and her sister arrived. Loudermilk heard Lloyd tell Jackson, “It’s going to be okay, we’re going to find her.” But before Lloyd left the house, Loudermilk said Lloyd told her, “You don’t know Chavira and you haven’t seen her.”
After Lloyd left, Loudermilk said, he called and told her to pick up some jeans from the living room floor or else he would come back and kill her. She said she complied, putting the jeans in a plastic bag in her room. In their later search, officers found a trash bag containing a pair of jeans with what appeared to be attic insulation on them in a bedroom.
Detective Rose testified after Loudermilk about the police interviews and what Loudermilk said. His testimony was largely consistent with Loudermilk’s. Rose said Loudermilk told him that Chavira had been crying all day, that Lloyd spanked Chavira with his hand and belt after the child wet her pants, and that Loudermilk said she saw Lloyd holding Chavira down with his hand around her throat while Chavira made a choking sound. He quoted Louder-millc as saying, “That sound lasted for about an hour and then it stopped.” Loudermilk also told him that after the noise stopped, Lloyd walked to a back room carrying Chavira; grabbed several kitchen bags; returned to the back room; asked for her cell phone; and then paced back and forth. Loudermilk also told Rose that two females came to the house and talked to Lloyd. She heard crying and “mention of something about the park and we’ll find her.”
After the State rested, Lloyd called Detective Hightower and Officer Nagy to testify about Loudermilk’s police interview. Nagy explained what he told Loudermilk during the interview to prompt her cooperation. Lloyd then moved to strike testimony, claiming Loudermilk’s statements were coerced. We will discuss this motion when addressing Lloyd’s claim of error regarding its denial.
Lloyd testified in his defense and substantially contradicted Loudermilk’s testimony. He told the jury on the day Chavira disappeared he needed to clean an area where he kept his 11 dogs. He said Loudermilk would not watch Chavira, so he brought the child with him. He said he put Chavira on the back porch, but she started crying, so he took her outside to a fenced-in backyard accessible from the street. Lloyd said he went into the house for cleaning supplies and when he returned, Chavira was gone. Lloyd testified he ran around the house and down the street but could not find her. He said he called Jackson to tell her what happened but could not reach her, so he called her friend and lied by telling her Chavira was lost in the park.
Lloyd denied asking Loudermilk to pick up any clothes or threatening to kill her. He admitted spanking Chavira with a belt the day she disappeared, explaining she had wet the bed and this was his potty training process. But he said, aside from this spanking, he did not hurt Chavira or place her inside the trash bags where police found her body. He denied lulling Chavira and did not know who did.
Deputy Coroner Ronald Distefano performed Chavira’s autopsy. He concluded she died of asphyxiation, explaining this could have been caused by covering her mouth and nose; a constricting force around her neck; compression of her chest and abdomen; or an environment with limited or no oxygen. Distefano noted Chav-ira’s asphyxiation caused brain swelling, which he said was a significant symptom because such swelling takes time to occur. He concluded the swelling indicated hours elapsed between death and the initial asphyxiation injury to the brain. He also determined Chavira had early evolving pneumonia, which occurs when death is prolonged.
The jury unanimously convicted Lloyd of first-degree murder under both prosecution theories: premeditated murder and felony murder in the course of child abuse. The jury also convicted him of child abuse.
After the convictions, the State moved to impose a mandatory minimum sentence of 50 years’ imprisonment before parole eligibility. The district court judge granted the motion and imposed the hard 50 sentence for the premeditated first-degree murder conviction and 128 months, to run consecutively, for child abuse.
To impose the hard 50 term, the judge found two aggravating circumstances under the statute. First, the judge found Lloyd was previously convicted of a felony for an aggravated assault against Loudermilk, which the judge determined had inflicted great bodily harm. See K.S.A. 21-4636(a). Second, the judge found Lloyd committed the child’s murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). Finally, the trial judge found these two statutory aggravators outweighed Lloyd’s mitigation evidence.
Lloyd timely appealed, initially arguing: (1) The district court erred in denying his motion to strike Loudermilk’s pretrial statement and trial testimony; (2) insufficient evidence supported the premeditated first-degree murder conviction; and (3) the district court erred in admitting evidence of prior wrongdoing contrary to K.S.A. 2009 Supp. 60-455. But after the parties had briefed and argued those issues, the United States Supreme Court extended the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and held the right to a jury trial under the Sixth Amendment to the United States Constitution requires that any fact increasing a mandatory minimum sentence necessarily increases the penalty for a crime and, therefore, is an “ ‘element’ ” that must be submitted to a jury and proved beyond a reasonable doubt. Alleyne, 570 U.S. at _, 133 S. Ct. at 2151, 2162-63. Lloyd then moved for supplemental briefing, challenging the constitutionality of his hard 50 sentence as violative of his right to a jury trial. We granted that motion and then requested a second supplemental brief regarding the possible application of harmless error.
Our jurisdiction is proper under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Motion to Strike
During trial, Lloyd moved to strike Loudermilk’s pretrial statements to Detective Rose and her trial testimony, arguing both were coerced. He complains on appeal the district court violated his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Lloyd seeks alternative remedies: (1) remand to the district court for an evidentiary hearing on whether Loudermilk’s pretrial statements were coerced; or
(2) appellate review of the trial record and a determination that the statements were coerced. Lloyd asks if this court finds her testimony coerced that we remand for a new trial without Loud-ermilk’s pretrial statement or testimony admitted as evidence. We hold the district court properly denied the motion to strike.
Standard of Review
Subject to exclusionary rules, an appellate court reviews the grant or denial of a motion to strike concerning the admission or exclusion of evidence for abuse of discretion. State v. Bowen, 254 Kan. 618, 624, 867 P.2d 1024 (1994) (citing State v. Friberg, 252 Kan. 141, Syl. ¶ 5, 843 P.2d 218 [1992]). A district court abuses its discretion when: (1) no reasonable person would take the view adopted by the 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. Maestas, 298 Kan. 765, 785, 316 P.3d 724 (2014).
Additional Facts Regarding the Motion
We begin by reviewing when the motion was made and what exactly counsel requested from the district court because this plays prominently in the analysis. We note there was no written motion either before or during trial.
Lloyd first presented the oral motion to strike during the defense’s case-in-chief. Loudermilk and Rose had already testified as part of the State’s case, and the State had rested. Lloyd called Detective Hightower and Officer Nagy as defense witnesses. Both described Nagy’s interview with Loudermilk. Lloyd’s counsel then advised the district court Lloyd had provided her with caselaw that a witness statement resulting from police threat or coercion may be suppressed. Counsel argued, “The evidence has show[n] that [Nagy] made comments to [Loudermilk] that she’d go to prison, that she was facing a murder charge, [and that] gave her promises in exchange for her statement of helping her get her child out of [protective] custody.” Counsel volunteered that the case citation from her client did not support this argument and further explained she had been unable to find other authority. Nevertheless, she moved that the court
“suppress or strike any testimony of Tameika Loudermilk, based on the fact that she gave a statement under—she was under—I think she was under duress, she was coerced, she was made promises, and she was threatened in order to implicate Mr. Lloyd ... as tire perpetrator of the murder in this case.” (Emphasis added.)
The State responded that the motion lacked legal authority and noted Loudermilk’s testimony actually contradicted the coercion theory. The district court asked defense counsel which statements were at issue because Loudermilk not only gave a pretrial statement that multiple witnesses discussed at trial, but she had also testified in person at trial about what she saw on the day Chavira died. The court further observed Loudermilk’s testimony was generally consistent with her pretrial statement. In response, Lloyd’s counsel said:
“Suppress die statements . . . from die time that she was tiireatened by Officer Nagy on, is my client’s request. That would be all matters that implicate Mr. Lloyd tiiat she gave to Detective Rose, Judge. And I guess the cure I’m asking is an instruction to the jury to disregard any statements that she would have made to Detective Rose. I concur that she said she didn’t feel duress, nor did she remember drat drey did these things to her. I’ve now put on the evidence from the officer that he did, indeed, say these things.” (Emphasis added.)
The district court then indicated it was struggling to understand the motion. The court rhetorically asked how it should deal with Loudermilk’s trial testimony insofar as it was consistent with her pretrial statements, but it did not wait for a response. It took the matter under advisement, promising to rule on the motion before the case went to the jury.
The court returned to the motion to strike at the close of evidence. The judge repeated his concerns and gave counsel the weekend to further develop what was being asked and provide any supporting arguments, stating:
“As I’ve thought aboüt the motion that has been presented that I have taken under advisement, it occurs to me that the statements made by a witness, I don’t think, are subject to the same constitutional issues as those made by parties. There is a reason that we have the constitutional safeguards in place against self-incrimination and voluntary statements made by a defendant who is charged with a crime. I think a whole different analysis applies to a witness, and it seems to me that from—the viewing of the witness statements were in the general realm of whether or not—in the general direction of the Court whether or not to admit that evidence, and it seems to me that what’s at issue is the credibility of the witness and the weight and credit that the jury should give that. So I’m not sure that the—an argument that you would typically make if you were a defendant trying to suppress the statements that you’ve made necessarily translates into statements made by a third party witness. If you can find a case that suggests that the same analysis applies, I mean, I’d be interested in reading that.
“The second concern that I have is that it seems to me that we need to have a contemporaneous objection to these things coming in because the jury has already heard all this stuff and it’s going to be difficult to un-ring the bell, and the— assuming that diere is case law that exists or legal principles that would suggest that these statements should be suppressed, it seems to me that, because there was not a contemporaneous objection, it’s going to be difficult to un-ring that bell. In any event, that’s kind of my initial read on it. I’m happy to give you the weekend to do whatever research that you want to do, and then I’ll be glad to read any cases that you want to present on Monday. 1 guess I’ll hold my ruling open until Monday until we’ve had a chance to look into it in a fuller fashion.” (Emphasis added.)
The trial record contains no further discussion on this motion or any indication defense counsel accepted the court’s invitation to provide additional authority. And the defense made no objection at the instructions conference to the lack of a jury instruction to disregard Loudermilk’s statements to Rose. But Lloyd raised the issue again in his postconviction motion for a new trial without any supporting argument. Now on appeal, Lloyd claims tire district court erred as a matter of law because admission of a coerced witness statement violates a defendant’s due process rights.
Discussion
At the outset we note Lloyd is correct that a conviction based, in whole or in part, on a witness’ coerced statement may deprive the defendant of due process. State v. Daniels, 278 Kan. 53, 65, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004); see also United States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999) (“defendants’ due process rights would be implicated if tire subject witness was coerced into making false statements and those statements were admitted against defendants at trial”). But Lloyd presented no such authority to support the motion, which marks the first of several deficiencies when he advanced dris issue.
A party disputing the admissibility of evidence should provide the district court with a specific objection or argument so drat it has a fair chance to consider, as fully as possible, whether that evidence should be admitted and to avoid potentially reversible error. State v. Chanthaseng, 293 Kan. 140, 144, 261 P.3d 889 (2011); see K.S.A. 60-404; see also 23A C.J.S., Criminal Law § 1673, pp. 189-90 (motion to strike “must fairly inform tire trial court, as well as the party offering the evidence, of the specific reason or reasons the party believes tire evidence should be excluded, so tire party offering the evidence can respond appropriately and the trial court can make a fully informed ruling”). Lloyd’s counsel not only declined the court’s invitation to submit relevant authority, but actively suggested her client’s motion lacked merit.
Similarly, we struggle—-as did the district court—to determine precisely what testimony Lloyd argues should have been stricken. There is not an easily identifiable question-and-answer sequence that would lend itself to easy management of tire claimed problem. Instead, Lloyd attempted at times to cast a wide net prohibiting the after-the-fact admissions of some, if not all, testimony from several witnesses, without any real articulation as to what was in controversy.
“Objections to evidence should designate die particular portion deemed objectionable.” 23A C.J.S., Criminal Law § 1670, pp. 186-87. And Lloyd failed to adequately specify the testimony he claimed should have been stricken. At one point, Lloyd sought to strike “any testimony” from Loudermilk, then later to suppress “the statements . . . from the time that she was threatened by Officer Nagy on,” and then finally claimed the cure was to instruct the jury to disregard “any statements that she would have made to Detective Rose.” This lack of articulation renders the argument nonsensical in the context of what had preceded the motion, especially since the district court gave the defense ample opportunity to address the issue more comprehensively.
But even if Lloyd had presented his motion to strike in a better form, the district court did not abuse its discretion by concluding it was untimely. In State v. Roach, 223 Kan. 732, 737, 576 P.2d 1082 (1978), this court addressed whether a district court appropriately denied a defendant’s motion to strike his previous trial testimony about his willingness to take a polygraph test when the polygraph results were later available and about to be admitted into evidence. The court noted the proper procedure would have been to move to strike the unresponsive answer promptly after it was interjected into the record, observing that once the defendant testified he would take a polygraph test “its impact was obvious.” 223 Kan. at 737. While holding it was not error to deny the motion, this court cautioned that when addressing a motion to strike “a question will always linger as to whether the testimony can be erased from the memories of the jurors.” 223 Kan. at 737.
The same analysis applies to Lloyd’s motion, especially given the volume of testimony at issue and the motion’s belated timing. Lloyd sought (at least at one point in the proceedings) to exclude most, if not all, testimony from the State’s only witness to the crime, as well as her prior statements to officers about what she witnessed. The motion came after Loudermilk testified.and other witnesses had reiterated what she said. It would have been difficult—at best—to instruct the jury on what testimony to ignore, and there are legitimate questions whether a diligent jury could effectively untangle what evidence was eligible for its consideration after it was admitted without objection. Moreover, the timing of Lloyd’s motion—after the State had rested—would have prevented the State from adjusting its evidentiaxy presentation had the motion been granted. See State v. Hunt, 223 N.C. 173, 176, 25 S.E.2d 598 (1943) (district court did not abuse its discretion by denying motion to strike evidence lodged after State had rested its case). Under the circumstances, we hold the district court did not abuse its discretion by denying the motion to strike as untimely.
Sufficient Evidence of Premeditated First-Degree Murder
Lloyd next argues insufficient evidence supported the premeditation and intent elements underlying his premeditated first-degree murder conviction. And from this premise he argues the conviction and, consequently, his hard 50 sentence (a sentence imposed for premeditated murder but not felony murder) must be vacated. See K.S.A. 21-4635(b). We hold the evidence was sufficient to support the conviction.
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, 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 make witness credibility determinations. State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013).
Discussion
To obtain this premeditated first-degree murder conviction, the State had to prove Lloyd killed Chavira intentionally and with premeditation. See K.S.A. 21-3401(a); State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). The district court properly instructed the jury on the following definition of premeditation from PIK Crim. 3d 56.04(b):
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to Ml 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 talcing another’s life.”
Premeditation does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, it indicates a time of reflection or deliberation. State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004). Premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008).
Our caselaw identifies factors to consider when determining whether the evidence gives rise to an inference of premeditation, including: (1) the nature of the weapon used; (2) the lack of provocation; (3) the defendant’s conduct before and after the killing; (4) any threats or declarations of the defendant before or during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. 286 Kan. at 617-18. But the analysis is not driven by the number of factors present in a particular case; in some cases, one factor alone may be compelling evidence of premeditation. State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008).
Lloyd contends the State’s only theory of premeditation, as articulated in opening and closing statements, was that Chavira was alive when Lloyd put her inside the trash bags, and he argues the evidence does not support this theory. But the State argues it proved Chavira was alive when placed inside the bags and points to other evidence supporting premeditation.
At the outset we note both sides focus too narrowly on the State’s primary argument that Chavira was alive when stuffed into the trash bags. Resolving this issue requires reviewing all evidence considered by the jury to decide if substantial competent evidence supports premeditation. We are not constrained by what the State argued in its opening or closing statements. See Cook, 286 Kan. at 1103 (prosecutor’s arguments do not determine the issue as to whether sufficient evidence supported premeditation element); see also State v. Bennington, 293 Kan. 503, 530, 264 P.3d 440 (2011) (opening and closing statements are not evidence). Instead, we must determine whether the testimony and physical evidence in the record support findings for the State on each element of premeditated first-degree murder, as defined in the jury instructions.
In this case, the evidence when viewed in the light most favorable to the State and considering the nonexclusive factors set out above, amply supports a premeditation finding. For example, Loudermilk testified Lloyd placed his hand around Chavira’s neck, causing her to cry and then experience labored breathing for 10 to 15 minutes. Manual strangulation is strong evidence of premeditation because it provides time for deliberation. See State v. Gunby, 282 Kan. 39, 64-65, 144 P.3d 647 (2006); State v. Jones, 279 Kan. 395, 403, 109 P.3d 1158 (2005) (same); see also Scott, 271 Kan. at 111 (when finding premeditation jury could conclude defendant’s state of mind changed during the violent episode, including at any time during the strangulation); State v. Brown, 234 Kan. 969, 972-73, 676 P.2d 757 (1984) (evidence of premeditation sufficient when severely beaten victim was killed by strangulation). This alone was sufficient evidence for the jury to conclude Lloyd intended to kill the child, but there is more.
The evidence also supported the State’s theory that Chavira was alive when Lloyd retrieved trash bags from the kitchen and sealed Chavira inside them. The coroner testified at least 2 to 3 hours elapsed between Chavira’s initial asphyxial brain injury and her death. And the coroner also testified he could not tell whether the child died from the strangulation Loudermilk described or being placed in an environment with limited or no oxygen—the knotted trash bags inside the sofa cushion cover. The coroner testified death by asphyxiation could occur either way. He further testified Chavira had early evolving pneumonia, which indicated hours elapsed before her death. The jury could easily infer premeditation by Lloyd’s intentional creation of an oxygen-deprived environment when he stuffed her into the trash bags and tied them shut, given the extended time between the initial asphyxiation and death.
And as to provocation, there is none. Chavira’s age (17 months) proves her helplessness. She was unable to protect herself from or prevent her injuries and death. In fact, the coroner testified Chav-ira had few injuries because of her inability to resist. See State v. Hermosillo, 272 Kan 589, 593, 35 P.3d 833 (2001) (noting evidence of an inability to resist given the strangulation victim’s poor health). In addition, Lloyd’s actions, both before and after Chavira’s death, provide further evidence of premeditation. See Scott, 271 Kan. at 110 (defendant’s “affirmative and intentional steps to destroy and conceal evidence” indicates premeditation). The State presented evidence Lloyd placed Chavira in three knotted trash bags, stuffed her inside a sofa cushion cover, and hid her in the attic. He then told Jackson he had lost Chavira in the park and asked Jackson’s sister not to report Chavira missing. And he told Loudermilk, “You don’t know Chavira and you haven’t seen her,” and then fled.
Lloyd also argues the State presented insufficient evidence of his intent to Ml, but that too lacks merit. He contends the forensic and circumstantial evidence, as well as Loudermilk’s testimony, pointed to an accidental Mling and was most consistent with a scenario in which Chavira’s crying and his unrealistic expectations for her behavior frustrated him. This, he argues, led him to choke her to stop the crying—not to kill her. In other words, the child’s death was just a terrible accident. To support this argument, Lloyd cites People v. Haley, 34 Cal. 4th 283, 309-12, 17 Cal. Rpt. 3d 877, 96 P.3d 170 (2004). But Haley is distinguishable and provides no support for Lloyd’s position.
In Haley, the State charged defendant with first-degree murder. To obtain an enhanced sentence (death or life without parole), the State alleged a special circumstance—defendant killed while committing several statutorily enumerated felonies. Under applicable California law, to prove the felony-murder special circumstance, the State had to prove the defendant intended to kill his victim. A jury convicted Haley and sentenced him to death. On appeal, the California Supreme Court affirmed the first-degree murder con viction, reversed the special circumstances finding, and set aside the death penalty. 34 Cal. 4th at 309-10.
Haley admitted strangling his victim, but the court reasoned that while the evidence could support an intent-to-kill finding, it was also consistent with the defendant’s claims that he was only attempting to malee the victim stop screaming. 34 Cal. 4th at 312. And because the juiy was not instructed on the intent-to-kill requirement, the special circumstance finding was defective and the death sentence had to be set aside. 34 Cal. 4th at 310.
But Lloyd offered no evidence he intended only to choke Chav-ira in a fit of frustration; rather, he denied any physical violence against her other tiran the spanking incident. And more importantly, the Haley court explicitly stated that “if the jury had considered whether the defendant intended to kill [the victim] and returned a finding of guilt, that verdict would have been supported by substantial evidence.” (Emphasis added.) 34 Cal. 4th at 310. Moreover, the court specifically noted that “strangulation ‘is indicative of at least a deliberate intent to kill.’ ” 34 Cal. 4th at 310.
In contrast to Haley, the district court instructed Lloyd’s jury that to convict of first-degree premeditated murder, the State had to prove Lloyd intentionally killed Chavira. And even though the evidence might be argued in various ways, the jury resolved the issue with its verdict. “Intentional conduct is conduct that is purposeful and willful and not accidental.” K.S.A. 21-3201(b). The district court properly instructed the jury on this definition.
Reviewing die evidence in the light most favorable to the State, we hold a rational factfinder could have found beyond a reasonable doubt that Lloyd intentionally killed Chavira with premeditation. Sufficient evidence supported Lloyd’s first-degree premeditated murder conviction.
Prior Crime Evidence
Lloyd’s next claimed trial error concerns admission of prior crime evidence under K.S.A. 2009 Supp. 60-455. He contends such evidence was improperly admitted when Loudermilk testified, over his objection, that he shot her in the foot. He asserts two challenges to this evidence. First, he contends tire evidence was irrelevant to the crimes charged and more prejudicial than probative. He asserts the district court’s failure to give a limiting instruction heightened the prejudicial effect. Second, he argues the district court admitted the evidence prematurely because it bolstered Loudermilk’s credibility before it was in dispute.
■ But Lloyd did not preserve this second contention for appeal because he did not state it as a basis for the objection at trial. See K.S.A. 60-404; State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 148 (2005) (party cannot object to evidence on one ground at trial and assert a different ground on appeal). We are left to determine whether evidence of the prior shooting was admissible under tire provisions of K.S.A. 2009 Supp. 60-455, which was the version in efféct during Lloyd’s July trial. See L. 2009, ch. 103, sec. 12 (effective April 30, 2009); State v. Hart, 297 Kan. 494, Syl. ¶ 5, 301 P.3d 1279 (2013). We hold it was admissible.
Standard of Review
The relevant provisions of K.S.A. 2009 Supp. 60-455 state:
“(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 inference 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.”
Under this court’s rubric for evaluating when evidence of a prior crime is admissible under K.S.A. 2009 Supp. 60-455(a)-(b): (1) the evidence must be relevant to prove a material fact; (2) the material fact must be disputed; and (3) the probative value of the evidence must not be substantially outweighed by the risk of undue prejudice. Materiality is reviewed de novo. An abuse of discretion standard of review applies on the existence of probative value and the weighing of it against the potential for undue prejudice. State v. Smith, 296 Kan. 111, 123-24, 293 P.3d 669 (2012) (applying K.S.A. 60-455).
Discussion
At trial, Loudermilk testified about a prior shooting incident in which Lloyd had pointed a gun at her face and when she moved it away it discharged into her foot. She also explained that she did not initially tell the police Lloyd was the shooter. Before trial, Lloyd sought to exclude this testimony. In denying the motion, the district judge stated:
“Well, as I mentioned, I think that if—the fact that Ms. Loudermilk was afraid of Mr. Lloyd is a fact that is not going to be greatly contested, and it seems to me there would be a way to maybe thread the needle to allow the State to explain in a general way why that is without getting into the details of the prior shooting. But it seems to me that if Ms. Loudermilk’s credibility is going to be attacked, if there’s going to be an argument to the jury that she wasn’t afraid and that her testimony should be disbelieved because somebody in her position or a normal person in her position would have acted to prevent the occurrence of what she says she saw or would have behaved in a different way at the time she alleges that she saw the things that she testified to at the preliminary hearing, then I do think that the credibility of Ms. Loudermilk is clearly in issue. And it seems to me that under those circumstances, the prior incident would ordinarily come in under K.S.A. 60-420.
“I think Gunby teaches that the Court has to go through the same 60-455 analysis under these circumstances, and I think that—in going through that, I think that the State should be permitted to allow Ms. Loudermilk to testify as to why she was afraid of Mr. Lloyd. I expect the defense will impeach that explanation by offering testimony, or at least, asking questions about her relationship with Mr. Lloyd after this event. And I think all of that is relevant and comes into play, too.
“So, I guess, the long way of saying that is die Motion in Limine, with respect to die prior shooting incident, will be overruled. The Court will find that it’s difficult for me to limit or permit any more generalized description of what happened if her credibility is going to be impeached at trial. It seems to me, at that point, the facts and details of the prior incident become relevant, and I don’t think that there’s any way for me to limit the State in presenting evidence as to why Ms. Loudermilk was afraid and why she didn’t—or explain to the jury why she didn’t behave in a way that most jurors are going to ask, you know, why she didn’t have him stop, or what she claims she saw, and so forth.” (Emphasis added.)
Consistent with the court’s ruling, the evidence was admitted. Lloyd lodged timely trial objections.
We must first decide if the district court erred in finding the previous shooting was material to Loudermilk’s credibility. Mate riality is reviewed de novo. State v. Wilson, 295 Kan. 605, 617, 289 P.3d 1082 (2012). “In analyzing whether the evidence is material, the focus is on whether the fact at issue has a legitimate and effective bearing on the decision of the case and is in dispute.” State v. Stafford, 296 Kan. 25, 43, 290 P.3d 562 (2012).
Notably, credibility is not one of the material facts enumerated in K.S.A. 2009 Supp. 60-455(b); but the statute’s list is nonexclusive. State v. Prine, 297 Kan. 460, 475, 303 P.3d 662 (2013); State v. Gunby, 282 Kan. 39, 56, 144 P.3d 647 (2006) (“list of material facts in K.S.A. 60-455 is exemplary rather than exclusive”). And in Gunby, this court implicitly recognized that corroborating witness testimony could be a material fact subject to K.S.A. 60-455 scrutiny. 282 Kan. at 56 (citing State v. Lee, 263 Kan. 97, 104, 948 P.2d 641 [1997]). This is further supported by State v. Trotter, 280 Kan. 800, 810, 127 P.3d 972 (2006), in which this court, prior to Gunby, held that corroborating witnesses’ testimonies were material when each witness had credibility issues.
The district court did not err by allowing the State to offer credibility evidence. Credibility can be a material fact under K.S.A. 2009 Supp. 60-455. In this case, Loudermilk’s credibility was material because she was the State’s main witness and Lloyd had expressed his intent to cross-examine her about why she did not intervene to help Chavira and why she initially lied to police that she had not seen Lloyd.
We must decide next whether the district court erred in finding the shooting incident was probative of Loudermilk’s credibility. Evidence is probative if it has any tendency in reason to prove the fact. Wilson, 295 Kan. at 617; see K.S.A. 60-401(b). This court reviews the probativity determination for abuse of discretion. 295 Kan. at 617.
Lloyd argues the shooting was accidental; therefore it was not probative to show Loudermilk feared Lloyd. But Loudermilk’s testimony indicated that Lloyd first pointed the gun directly at her face, and it was only when she motioned to get the gun away from her face that it discharged into her foot. This evidence has a tendency in reason to prove Loudermilk feared Lloyd. It also tends to explain her actions and inactions relating to Chavira’s abuse and death because even though the shooting itself may have been accidental, before the shot was fired Lloyd pointed a loaded gun at Loudermilk’s face. This reasonably could be viewed as an action on his part to instill fear in her.
We must also determine whether Loudermillc s credibility was disputed. At trial, Lloyd attacked Loudermilk’s credibility in his opening statement. And when the shooting incident was mentioned during the trial, defense counsel objected for tire reasons discussed in the pretrial motions, which stated that Loudermilk’s credibility “is surely in issue,” that Loudermilk was the State’s main witness, and that Lloyd planned to vigorously cross-examine her on all inconsistencies. During cross-examination, Lloyd pressed his case for impeachment of her testimony by pointing to what he argued were inconsistencies in her statements and actions. Without question, Loudermilk’s credibility was in dispute.
Lloyd also argues the district court abused its discretion in its process of weighing probative value and the risk of undue prejudice. He contends the shooting incident was not probative of Loud-ermilk’s fear because other evidence showed she did not fear Lloyd. He points out Loudermillc lived with and became pregnant by him after he shot her in the foot.
The district court did not specifically address how it weighed probative value against prejudice. But it did say it saw no other way to limit the State in explaining why Loudermilk was afraid or why she did not stop Lloyd when she saw him hurting tire child. Given the State’s argumeirt that the shooting incident related to Loudermilk’s credibility, the district court’s statement necessarily was a determination that the evidence was probative to explain Loudermilk’s behavior. Any prejudice to Lloyd would neither qualify as undue nor overmatch the evidence’s probative value. He also argues the shooting-incident evidence made him appear to be the type who was violent with all family members. And while this might be true, the shooting incident did not involve harming a child and Chavira was not shot or harmed with a firearm. The jury would not be confused that Lloyd was being prosecuted for the crime against Loudermilk rather than the charged crimes. See Smith, 296 Kan. at 125-26.
Finally, Lloyd argues the district court failed to give a limiting instruction, which he claims heightened the prejudicial effect of this evidence. But he is mistaken because the district court instructed the jury:
“Evidence has been admitted tending to prove that the defendant committed a crime other than the present crimes charged. This evidence may be considered solely for the purposes of proving the defendant’s relationship with Tameika Loud-ermilk.”
Lloyd makes no argument as to why this particular instruction was somehow incomplete or ineffective to address his concerns about the shooting-incident testimony. Lloyd argues only—and incorrectly—that no limiting instruction was given. His arguments premised on the absence of a limiting instruction are without merit.
In conclusion, the district court did not err in admitting evidence that Lloyd had shot Loudermilk in the foot. This evidence was relevant to Loudermilk’s credibility, which was a disputed material fact, highly probative, and not cumulative. It also provided a reasonable explanation for Loudermilk’s actions and inactions. And the evidence’s probative value was not substantially outweighed by the risk of undue prejudice.
Hard 50 Sentencing
Lloyd challenges his sentence on the first-degree murder conviction, claiming the district court erred in imposing a life sentence without the possibility of parole for 50 years. He contends the hard 50 statutory procedure provided in K.S.A. 21-4635 is unconstitutional in light of Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). The State argues the statutory scheme is not contrary to Alleyne because it does not prescribe a mandatory minimum sentence or, in the alternative, that Alleyne is not applicable because the judicial factfinding of aggravating circumstances merely serves to inform the court’s exercise of discretion. We recently decided the statute is unconstitutional in light of Alleyne. See State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P.3d 334 (2014). Those arguments advanced by the State to the contrary are resolved in Lloyd’s favor by Soto.
With the statute’s unconstitutionality determined, we consider next the question whether Lloyd’s case is appropriate for harmless error analysis or remand given Soto.
Additional Facts
The jury found Lloyd guilty of intentional, premeditated first-degree murder, which is a crime carrying a sentence of life imprisonment with parole eligibility after 25 years under K.S.A. 22-3717(b)(1). But the State moved for imposition of a hard 50 sentence based on K.S.A. 21-4635(b), which at the time of Lloyd’s offense provided that the sentencing court “shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of... 50 years or sentenced as otherwise provided by law.” To make that determination, the sentencing judge was to consider evidence relevant to any statutory aggravating circumstances alleged by the State and any mitigating circumstances. K.S.A. 21-4635(c). The sentencing court was required to impose a hard 50 sentence if one or more aggravating circumstances set out in K.S.A. 21-4636 were found to exist and those aggravating circumstances were not outweighed by any mitigating circumstances. K.S.A. 21-4635(d).
The State argued the following aggravating circumstances existed: (1) previous felony conviction in which defendant inflicted great bodily harm, disfigurement, dismemberment, or death of another; (2) commission of tire crime in order to avoid or prevent a lawful arrest or prosecution; (3) commission of the crime in an especially heinous, atrocious, or cruel manner; (4) commission of the crime while serving a sentence of imprisonment on a felony conviction; and (5) victim killed while engaging in, or because of the victim’s performance or prospective performance of, the victim’s duties as a witness in a criminal proceeding.
The sentencing judge conducted a hearing on the State’s motion during which the State submitted the evidence presented at trial supporting the proffered aggravating circumstances, and the State requested the court take judicial notice of Sedgwick County Case No. 07-CR-1405, which was Lloyd’s conviction of aggravated assault against Loudermillc when she was shot in the foot. Lloyd presented evidence of mitigating circumstances, see K.S.A. 21-4637, including that he was neglected and abused as a child, his mother abused drugs and was in and out of prison for most of his childhood, his age of only 23 years, and his lack of parenting skills.
The sentencing judge found two aggravating circumstances were present to subject Lloyd to a hard 50 sentence. First, the judge found Lloyd was previously convicted of a felony in which Lloyd inflicted great bodily harm, i.e., the aggravated assault against Loudermilk. See K.S.A. 21-4636(a). Second, the judge found Lloyd committed Chavira’s murder in an especially heinous, atrocious, or cruel manner. See K.S.A. 21-4636(f). The sentencing judge then found those aggravating circumstances were not outweighed by the mitigation evidence.
Discussion
In Soto, this court determined it would defer deciding whether a modified harmless error standard might apply to a hard 50 error until a case presented itself in which the evidence approaches the exacting standard required for that test. Soto, 299 Kan. at 128; see also State v. Reyna, 290 Kan. 666, 679-81, 234 P.3d 761 (2010) (applying framework from Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 [1999], to find Apprendi-type error harmless).
Similar to Lloyd’s case, Soto’s hard 50 sentence was based on the sentencing judge’s determination that Soto’s crime was committed in an especially heinous, atrocious, or cruel manner. We noted in Soto that to apply a harmless error analysis it would be necessary to determine beyond a reasonable doubt the evidence as to that aggravating circumstance was uncontroverted and supported by overwhelming evidence such that a jury would have found its existence beyond a reasonable doubt. Soto, 299 Kan. at 126. The same problem is presented here. In addition, with the second aggravating factor found in Lloyd’s case, we would have to make a similar determination whether Lloyd’s prior conviction for the aggravated assault against Loudermilk resulted in “great bodily harm,” when Loudermilk testified her injuries required no medical treatment and police officers testifying about this prior incident gave no details regarding her injury.
But even if the aggravating circumstances could be sufficiently established to satisfy the required standard, we would still face concluding beyond a reasonable doubt that no rational jury would have determined that any of tire mitigating circumstances in Lloyd’s case would outweigh the aggravators. See Soto, 299 Kan. at 127 (noting “only in a rare instance could a hard 50/Alleyne error be harmless”). As in Soto, we will defer any decision whether to apply a harmless error standard until the circumstances more readily support a finding of harmless error.
Based on that determination, we must consider the State’s argument that we should direct on remand that Lloyd be resentenced under the amended hard 50 sentencing scheme, which includes express provisions for retroactive application. See K.S.A. 2013 Supp. 21-6620. Lloyd, unsurprisingly, argues against that, claiming retroactive application would violate tire constitutional prohibitions against ex post facto laws.
In Soto, 299 Kan. at 128-29, we explained this disagreement is not yet ripe for judicial determination. We continue to adhere to that view in Lloyd’s case. Accordingly, we hold only that Lloyd’s hard 50 sentence was imposed in violation of his Sixth Amendment right to a jury trial, so that his sentence must be vacated and his case remanded for resentencing as to that conviction. The parties are not foreclosed from arguing about application of the amended statute at resentencing in the district court.
Finally, we address Lloyd’s claim that tire evidence presented by the State was insufficient to support a finding that (1) Loudermilk suffered great bodily harm, disfigurement, or dismemberment to provide the K.S.A. 21-4636(a) aggravating factor; and (2) Chavira was placed in the plastic bags while she was still alive to provide the K.S.A. 21-4636(f) aggravating factor. Lloyd concedes the evidence was sufficient that the child was very young at the time of her death and that she was mistreated before she died. As in Soto, we address these arguments because if tire district court determines K.S.A. 2013 Supp. 21-6620 applies at resentencing, there is an issue under section (e) that the State would be precluded from pursuing a hard 50 sentence if this court had vacated Lloyd’s sentence for lack of sufficient evidence to support the aggravating circumstances. See Soto, 299 Kan. at 129-30.
In light of Alleyne, we review all the evidence in a light most favorable to the prosecution and apply the beyond-a-reasonable-doubt standard of proof in considering this sufficiency challenge. Soto, 299 Kan. at 129. Based on this standard, we hold that a rational factfinder could find beyond a reasonable doubt that Lloyd lolled Chavira in an especially heinous, atrocious, or cruel manner and/or was previously convicted of a felony in which Lloyd inflicted great bodily harm or disfigurement. Consequently, the sole reason we are vacating Lloyd’s hard 50 life sentence is because it was imposed in violation of his Sixth Amendment right to a jury trial, as interpreted in Alleyne.
Convictions affirmed, sentence vacated, and case remanded for resentencing. | [
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The opinion of the court was delivered by
Biles, J.:
Tony T. Lewis was charged with multiple offenses following a series of attacks against three women during April and May of 2009 in Riley County. The general pattern for these crimes was that each victim was unknowingly followed to her apartment in the early morning hours after being out for the evening. Two women were raped and sodomized, while the third escaped after a struggle. Lewis appeals his convictions for rape, aggravated criminal sodomy, burglary, kidnapping, aggravated assault, aggravated kidnapping, and aggravated robbery. He was sentenced to five life imprisonment sentences as an aggravated habitual sex offender under K.S.A. 2009 Supp. 21-4642 based on his prior convictions for sexually violent crimes in Geary County.
Lewis advances numerous issues, which we have reordered for clarity: (1) failure to suppress his statements to police; (2) failure to suppress pretrial and in-court victim identifications; (3) denial of a continuance; (4) prosecutorial misconduct during closing argument; (5) error responding to a mid-deliberation jury inquiry; (6) insufficient evidence to support alleged alternative means under the rape statute; (7) cumulative trial error; and (8) error sentencing him as an aggravated habitual sex offender.
We affirm his convictions, but vacate his five life sentences and remand for resentencing because the aggravated habitual sex offender statute, which was the basis for those sentences, did not apply to him. See State v. Trautloff, 289 Kan. 793, 798, 217 P.3d 15 (2009) (aggravated habitual sex offender defined under K.S.A. 2009 Supp. 21-4642 as a person convicted on and after July 1,2006, of a sexually violent crime who has already been convicted on at least two prior conviction events of any sexually violent crime). Additional facts are described as applicable to each issue.
Suppression of Statements Made to Police
Lewis had an encounter with a Riley County police officer at about midnight on May 28, 2009. It began when the officer observed a white Dodge Avenger blocking an apartment complex driveway. The vehicle matched a description tire officer had previously been advised to watch for. The officer saw a man exit tire car, so the officer left his patrol vehicle and the two spoke. Lewis identified himself and said he was lost. Lewis said he was walking away from his car because he did not have cell phone service and was trying to locate another apartment complex. The officer gave Lewis directions, but noticed Lewis did not follow them as he drove away.
Later that day, a Riley County police detective learned about the encounter and wanted to follow up with Lewis, who was on active military duty at the Fort Riley Military Reservation. The detective arranged for an interview at Fort Riley’s Criminal Investigation Command (CID) office, where he met a CID special agent who summoned Lewis. The CID agent testified the protocol for local police wishing to talk to a soldier at Fort Riley is for CID to contact the soldier’s, unit to have the soldier come to the CID office. This was the typical procedure for a suspect, witness, or victim stationed at tire base.
After waiting awhile for Lewis, the detective and agent got into an unmarked vehicle and went to look for him. The detective observed the white Dodge the patrolling officer had described from the previous night parked in front of Lewis’ barracks. The detective and agent then saw Lewis get into the Dodge and drive toward the CID office. The officers pulled up, asked if Lewis was looking for CID, and then told him to follow them there. Lewis drove by himself.
When they arrived at the CID office, the detective told Lewis he wanted to discuss the previous night’s encounter with tire officer. The detective later testified Lewis seemed relaxed and agreeable to speak. The two spoke for less than 10 minutes in an interview room at the CID office, while the CID agent watched from another room. Lewis was not handcuffed or restrained. Lewis was not under arrest, but the detective did not advise him that he was free to leave. Prior to the detective’s interview, the CID agent took Lewis’ cell phone, keys, and wallet because CID policy was to remove everything from an interviewee’s pockets before entering the interview room.
The detective testified at trial that during this first conversation, he asked Lewis what he was doing at the apartment complex, who he was looking for when he encountered die officer, what he did off-post, and whether he had been to certain area nightclubs. Lewis said he had visited Club Eve and Mustangs in Junction City and Bushwhacker’s in Manhattan. The detective did not explain why he was inquiring about specific clubs.
After this first interview, the CID agent and the detective decided to jointly interview Lewis. Going back into the interview room, the CID agent advised Lewis of his “Article 31 rights” under the Uniform Code of Military Justice, which are similar to Miranda. See 10 U.S.C. § 831 (2012) (right against sélf-incrimination; prior to questioning, accused or suspect must be advised of nature of accusation, right to refrain from malting statement, and that statement may be used as evidence at trial by court-martial); Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966). The detective and agent advised Lewis he was suspected of sexual assaults in Geary and Riley Counties. Lewis waived his rights and agreed to continue speaking with the two investigators.
The CID agent later testified that Lewis told them he frequented Club Eve’s and Bushwackers and had a .45 caliber handgun and a mask in his car. The second interview lasted about 20 minutes and ended when Lewis requested a lawyer after the CID agent discussed obtaining DNA samples.
Law enforcement officers executed search warrants for Lewis’ barracks and car, recovering two black handguns, a black slti mask, a white “Jason”-style mask, new size-12 Nike ACG tennis shoes, black gloves, and a grey and black scarf, as well as other items of clothing consistent with the victims’ accounts of what their attacker had been wearing. Lewis’ roommate consented to a police search of the roommate’s Ford Fusion, which matched the vehicle de scription linked to one of the attacks. Police found a traffic ticket issued to Lewis inside.
After he was charged, Lewis moved to suppress his statements taken at the CID office and the resulting evidence. The district court conducted an evidentiary hearing on the statements’ admissibility. See State v. Bogguess, 293 Kan. 743, 751, 268 P.3d 481 (2012) (State has burden to prove defendant’s statement was voluntary; truthfulness not at issue); see also Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The district court ruled the detective followed “proper channels at CID” and determined the statements were voluntary, even though they were initiated when CID asked Lewis to come to its office. The district court pointed out that Lewis drove his own vehicle to the interview and then stated:
“When you look at the factors on all of these cases, length of time of the interview, the circumstances surrounding it, and the nature of the interrogation, at all times when he was talking to [the detective], [the detective] stated he was free to go. The first time that he was not free to go is when [the CID agent] read him his rights, and not only that, but informed him of the reason his rights were being read to him. The defendant waived those rights, and agreed to talk to him, and provided him with certain information. For those reasons, the Court will deny the defendant’s motion to suppress the stop, and obviously the motion to suppress the—any statements that were made either to [the detective or the CID agent].”
On appeal, Lewis argues the district court erred when it refused to suppress his statements to the detective because he was in custody when the detective interviewed him and the detective failed to Mirandize him. He extends this argument to the second interview with both the CID agent and detective by claiming it was tainted by the un-Mirandized first interview, even though the CID agent advised Lewis of his Article 31 rights and the nature of the allegations and Lewis consented to the questioning.
Standard of Review
The Miranda safeguards are triggered only when an accused is (1) in custody and (2) subject to interrogation. A custodial interrogation is defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way. A custodial interrogation is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation reaches the accusatory stage. State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012); see State v. Bridges, 297 Kan. 989, 1002, 306 P.3d 244 (2013).
Factors to consider in determining if an interrogation is investigative or custodial include: (1) tire interrogation’s time and place; (2) its duration; (3) the number of law enforcement officers present; (4) tire conduct of the officer and the person questioned; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person questioned was escorted by officers to the interrogation location or arrived under his or her own power; and (8) the interrogation’s result, e.g., whether the person was allowed to leave, was detained further, or was arrested after the interrogation. No single factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts. Warrior, 294 Kan. at 496.
An appellate court reviews a trial court’s determination whether an interrogation was custodial employing two distinct inquiries. Under the first, the appellate court decides the circumstances surrounding the interrogation, employing a substantial competent evidence standard of review.
In determining if there is substantial competent evidence supporting the existence of the circumstances found by the trial court, an appellate court does not reweigh evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The second inquiry employs a de novo standard of review to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter. 294 Kan. at 497.
Discussion
“Prior to the preliminary examination or trial a defendant may move to suppress as evidence any confession or admission given by him on the ground that it is not admissible as evidence.” K.S.A. 22-3215(1). The State bears the burden of proving the challenged statements are admissible. K.S.A. 22-3215(4); see also State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013) (when challenged, the prosecution must prove by a preponderance of the evidence the voluntariness of a defendant’s statement to a law enforcement officer). Statements made during custodial interrogation are inadmissible “unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination.” State v. Hebert, 277 Kan. 61, 68, 82 P.3d 470 (2004).
Lewis argues a reasonable person in his situation would not have felt free to terminate the first interview with the detective because: (1) the interview occurred in an interview room at the CID office; (2) he relinquished his keys, cell phone, and wallet; (3) he was ordered by a superior officer from his unit to report to CID; (4) his “militaiy superiors were standing right outside the room”; (5) the detective never told Lewis he was free to leave; and (6) the CID agent testified Lewis would not have been free to leave because the agent would have wanted to talk to Lewis immediately after the detective’s interview.
Several factual contentions made by Lewis are unsupported or contradicted by tire record. First, the record does not indicate Lewis’ military superiors were outside the interview room. It reflects only that tire CID agent observed the interview from another room. There is no evidence the agent was Lewis’ superior. Second, there is nothing in the record about how Lewis learned he was wanted at CID, much less that he was ordered by a superior officer to report to CID. Third, the argument about the CID agent’s testimony is false. The agent testified Lewis was not free to leave during the agent’s questioning in the second interview—not before the detective’s first interview.
Looking at the facts, some circumstances point in favor of finding the detective’s interview was noncustodial: (1) it was veiy short; (2) Lewis seemed l'elaxed; (3) the detective told Lewis his purpose was simply to follow-up on the patrol officer’s encounter the previous night, and the questioning was confined to this topic and Lewis’ off-base activities; (4) only the detective was in the interview room with Lewis; (5) Lewis drove to tire CID building in his own car, albeit with an escort; and (6) Lewis was not physically restrained or under guard. On the other hand, some circumstances weigh in favor of considering the interview custodial: (1) it essentially occurred in a police station; (2) Lewis was not being questioned just as a witness, but as a person of interest in the crimes; (3) Lewis surrendered his keys, cell phone, and wallet before the questioning; and (4) after the interview, Lewis was questioned further, detained, and arrested.
Given this back and forth, we will assume—without deciding— that the first interview with the detective was custodial. But that assumption just begins the analysis because it is clear any error admitting evidence from the first statement was harmless beyond a reasonable doubt. See Hebert, 277 Kan. at 76-77 (admission of unwarned custodial statements harmless when subsequent, nearly identical warned statements were admissible); see also Arizona v. Fulminante, 499 U.S. 279, 295-96, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (admission of involuntary confession is amenable to harmless error analysis because error is similar to erroneous admission of other types of evidence subject to harmlessness analysis, including evidence admitted in violation of defendant’s Fourth, Fifth, and Sixth Amendment rights).
We discern nothing of substance from the first interview that could have had any importance for Lewis’ subsequent prosecution. And there is no reasonable possibility this insubstantial evidence affected the jury’s verdicts given the overwhelming evidence of Lewis’ guilt as discussed in this opinion. The real question is whether any procedural error in failing to Mirandize Lewis before the first interview renders inadmissible the incriminating statements he made after being Mirandized in the joint interview with the detective and CID agent. We hold those statements, which were substantive for the prosecution, were admissible. Hebert is analogous.
In Hebert, a law enforcement officer solicited incriminating statements from tire defendant before Mirandizing him. The defendant then made additional incriminating statements. The court concluded tire -pre-Miranda statements should have been suppressed; but because there was no evidence the officer used co ercive tactics to obtain the pr e-Miranda statements, admissibility of the post-Miranda statements turned on the analysis in Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). Herbert, 277 Kan. at 71-72.
In Elstad, the Court held:
“[Ajbsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.” (Emphasis added.) 470 U.S. at 314.
Applying Elstad, the Hebert court held the admissibility of the post-Miranda statements hinged on whether the statements were knowing and voluntary. 277 Kan. at 76 (citing State v. McCorkendale, 267 Kan. 263, 270, 979 P.2d 1239 [1999], disapproved on other grounds by State v. King, 288 Kan. 333, 204 P.3d 585 [2009]). The court observed there was no indication defendant’s mental condition was impaired; the officer was calm and professional during tire interview; defendant’s handcuffs were removed; and the entire interview lasted 2 hours. Accordingly, the court held the post-Miranda statements were admissible. Herbert, 277 Kan. at 76-77.
Lewis cites Missouri v. Siebert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), in an effort to distinguish Elstad. But Siebert only demonstrates the contrast in the factual circumstances. In Siebert, 542 U.S. at 615-17, the Court held a Miranda warning did not remove the taint from a defendant’s earlier unwarned custodial statements. The officers took the defendant to a police station in the middle of the night and questioned her without Miranda warnings until she confessed involvement in an intentionally set fire, as well as her knowledge that an individual who died in that fire was an intended victim. After tire confession, the police Mir-andized her and continued the interview, which included confronting her with the pr e-Miranda statements. These circumstances caused the Court to hold the mid-questioning Miranda warning did not remove tire taint from tire unwarned custodial questioning because:
“The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that [the defendant] retained a choice about continuing to talk.” 542 U.S. at 616-17.
It is easy to see the features distinguishing Lewis’ case from Siebert. The pre-warning interview lasted only 10 minutes with nothing of substance revealed. Lewis did not admit involvement in the crimes, and the detective did not ask whether he was involved. Also, a different person (the CID agent) issued the Miranda warnings prior to tire second interview; and unlike Siebert, it is clear neither the detective nor the agent attempted to elicit an unwarned confession from Lewis or exploit any unwarned statements after the Miranda warnings were given. More notably, Lewis showed he understood his rights when he terminated the second interview and asked for an attorney when the DNA subject arose. In short, this is not a Siebert-type case.
We hold the incriminating statements solicited from Lewis in the second interview and introduced at trial were not tainted by the failure to Mirandize him before the first interview, assuming the first interview was custodial. Lewis advances no claim the statements given in the second interview were not knowingly and intelligently made, and the record would not support such an assertion. The district court correctly denied the motion to suppress Lewis’ statements and the evidence obtained based on those statements.
Eyewitness Identifications
Lewis next challenges the district court’s refusal to suppress a pretrial eyewitness identification made by a victim (V.D.D.), arguing the photo lineup used by police was unnecessarily suggestive because Lewis was depicted in Army fatigues, while the other pho tos depicted men in civilian clothing. Lewis extends this argument to include the victim’s courtroom identification of him as her attacker, arguing that identification was tainted by the photo lineup error. Lewis did not object to V.D.D.’s courtroom identification, so that issue was not preserved. See State v. Gaona, 293 Kan. 930, 954, 270 P.3d 1165 (2012) (“If a party fails to make a specific contemporaneous objection to the admission of evidence or testimony at trial, objection to that evidence or testimony is not preserved for appeal.”). Some additional facts are necessaiy for the analysis of the pretrial witness identification issue.
At a pretrial hearing on Lewis’ motion to suppress the out-of-court identification from the photos, the only witness was a Riley County police detective who testified she presented six photos to V.D.D. the day after Lewis was arrested. The detective could not reach V.D.D., who worked at Fort Riley, before the arrest. There had been media coverage about Lewis’ arrest, and V.D.D. acknowledged to the detective knowing the arrest had been made. Rut the detective said she was satisfied V.D.D. had no indication from any outside source what Lewis looked like or that he was in the military. V.D.D. had denied seeing any television coverage or hearing any description of Lewis when asked about it.
The photos shown to V.D.D. were selected by computer using a software program to produce photographs with similar features to the attacker’s physical description previously given by V.D.D. The photographs were stacked one on top of another with Lewis’ somewhere in the middle. The detective acknowledged Lewis’ Army fatigues were visible in his photograph and that no other photograph featured a person wearing similar clothing.
The detective gave the stack to V.D.D. upside down and asked her to go through the photos one at a time. V.D.D. complied, pausing for a couple of seconds on each one. After V.D.D. went through the photographs, she immediately picked out Lewis. The detective asked V.D.D. if she was sure, and she said, “I’m sure.” The detective also testified V.D.D. previously had been shown other photographs—none of Lewis—before the arrest and had not identified any other individual as her attacker. The time between the crime and the photo lineup identifying Lewis was 33 days. On cross-examination, the detective did not recall V.D.D. ever saying her attacker was a soldier, although she never asked if anyone had told V.D.D. the person arrested was a soldier.
The district court held the photo identification was not unnecessarily suggestive and would be admissible into evidence.
At trial, V.D.D. described her opportunities to see her attacker. She encountered Lewis when she answered a knock on her apartment door. Lewis told her someone had hit her car in the parking lot and she needed to come outside. As she was getting ready to close the door, he forced his way into the apartment and pulled a black gun out of his pants. He was wearing all black except for a grey scarf around his neck and a green arm band from Club Eve’s, where V.D.D. had been earlier in the evening. She said the scarf kept falling off, permitting her to see Lewis’ face throughout the encounter. Lewis demanded V.D.D. take him to an ATM, but she refused because her children were in the apartment. He threatened to hurt the children unless V.D.D. had sex with him, and he then raped and sodomized her. When Lewis left the apartment, V.D.D. watched him as he walked to his car, sat in it for about 5 minutes with the interior lights on, and then drove away.
In court, V.D.D. identified Lewis as her attacker without prompting. She also identified the evidence seized from Lewis’ barracks and roommate’s car, i.e., the grey and black scarf she said was hanging around Lewis’ neck during the attack; Lewis’ roommate’s car, which she had seen the night of her attack; and a photograph of the firearm. At another point in the trial, testimony was admitted that DNA evidence obtained from V.D.D. after the attack was matched to Lewis.
After V.D.D. testified, the detective who conducted the photo lineup was called and asked about the photo lineup conducted with V.D.D. When the detective was asked whether V.D.D. had selected Lewis’ photograph from the stack, Lewis’ trial counsel objected, stating simply that the lineup was “unduly suggestive.” The district court overruled the objection based on its denial of the pretrial motion to suppress. The detective then answered that V.D.D. had selected Lewis’ photo without hesitation.
Standard of Review
A two-step process is used by district courts to determine whether eyewitness identification is admissible evidence. First, the court determines if the police procedure used to obtain the original out-of-court identification was unnecessarily suggestive. If so, the analysis moves to the second step to consider whether there was a substantial likelihood of misidentification under the totality of the circumstances. State v. Cruz, 297 Kan. 1048, 1059, 307 P.3d 199 (2013); State v. Mitchell, 294 Kan. 469, 476, 275 P.3d 905 (2012).
An appellate court reviews a district court’s decision to admit or suppress an eyewitness identification as a due process determination involving a mixed question of law and fact. The reviewing court applies a substantial competent evidence standard to the trial court’s factual findings and a de novo standard to the ultimate legal conclusion drawn from those facts. Cruz, 297 Kan. at 1058-59.
Discussion
A pretrial identification procedure is unnecessarily suggestive when the officers conducting it give the witness information that highlights an individual before the selection is made or make suggestions about who the witness should select. In particular, a photo lineup is unnecessarily suggestive if the individuals depicted do not fit within the witness’ description or if there is a gross disparity between the defendant’s photograph and tire others. State v. Corbett, 281 Kan. 294, 305, 130 P.3d 1179 (2006) (quoting State v. Trammell, 278 Kan. 265, 273, 92 P.3d 1101 [2004] [lineup not unnecessarily suggestive when another suspect’s photograph not included]). The challenge Lewis raises is that his photo was the only one with the subject wearing military clothing.
The district court ruled the photo lineup was not unnecessarily suggestive on two occasions. Prior to trial, the court noted the photographs were the same size; of African-American males; and of people with short hair and moustaches “to some degree.” It further noted each photograph revealed “a little bit of the shirt.” It correctly acknowledged Lewis’ photograph was the only one with the subject clearly wearing military fatigues, but it discounted this because there was no evidence V.D.D. knew the arrestee was in the military or that her attacker was a soldier.
The record on appeal supports the district court’s pretrial ruling. Specifically, the only witness who testified, the detective who composed and conducted the lineup, said she was unaware V.D.D. received any information the person arrested had any military connections. And the photo lineup itself matches the description given by the district court. The only aspect of the photos that makes Lewis standout is that he is dressed in military clothing while the others are not.
A review of cases from other jurisdictions shows differences in clothing worn by the accused in a photo array—as compared to what the other subjects wore—has not been seen as an indicator of unnecessary suggestiveness. See, e.g., Briscoe v. County of St. Louis, Missouri, 690 F.3d 1004, 1014 (8th Cir. 2012) (rejecting claim of suggestive lineup based, in part, on other participants not resembling defendant in appearance or clothing); Heng v. State, 251 Ga. App. 274, 276-77, 554 S.E.2d 243 (2001) (discussing cases in which array not suggestive due to clothing disparities). Since the district court did not have any evidence suggesting V.D.D. was influenced by the military fatigues, the district court’s pretrial ruling was proper.
But Lewis renewed his objection at trial after facts suggesting V.D.D. might have known or suspected her attacker had some military connection. Whether the district court’s trial ruling was proper is a closer call. The issue Lewis advances is whether a specific consequence of the clothing disparity, i.e., identifying him as a soldier, suggested to V.D.D. that Lewis was the person she should identify. See Heng, 251 Ga. App. at 277 (holding lineup unnecessarily suggestive when defendant only subject depicted in unusual jacket exactly matching witness’ description of perpetrator’s clothing). And as Lewis points out, the record contained information implying V.D.D. might have known or suspected her attacker had some military connection.
For instance, she testified at trial that the car that followed her from the club tire night she was attacked had military tags. She also said she thought she saw the car that followed her parked at Fort Riley. Additionally, she had previously identified a man in a Fort Riley dining hall as possibly being her attacker. This testimony was elicited before Lewis’ trial objection, and we cannot help but note defense counsel did not alert the district court that new facts were introduced calling its pretrial ruling into question.
V.D.D.’s testimony suggesting she thought her attacker had military ties renders reliance on the court’s pretrial analysis questionable. We can only speculate on whether the district court would have reached a different conclusion if defense counsel had presented a fully formed objection calling the new evidence to light. Regardless, we will assume—without deciding—that the photo lineup was unnecessarily suggestive based on tire totality of the record. And on that assumption, we still have no hesitancy concluding the identification carries independent reliability and that there is no substantial likelihood of misidentification under the second prong of our analysis.
When analyzing that prong, this court weighs eight factors: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description; (4) the level of certainty demonstrated by the witness at the confrontation; (5) tire length of time between the crime and the confrontation; (6) the witness’ capacity to observe the event, including his or her mental and physical acuity; (7) the spontaneity and consistency of the witness’ identification and tire susceptibility to suggestion; and (8) the nature of the event being observed and the likelihood drat the witness would perceive, remember, and relate it correcdy. Corbett, 281 Kan. at 305.
The record shows: (1) V.D.D. testified her attacker’s face was fully revealed to her and she had multiple opportunities to see him before, during, and after the attack; (2) V.D.D.’s description of Lewis and his clothes were consistent at the preliminary hearing and trial; (3) tire identification from the photo lineup took place about a month after the crime; (4) the parties agree V.D.D. did not equivocate in her identification of Lewis as her attacker; (5) there was no evidence indicating V.D.D.’s ability to observe her attacker was diminished; and (6) V.D.D.’s identification was corroborated by physical evidence, including the DNA.
On balance, the totality of circumstances demonstrate V.D.D.’s identification was reliable, despite any infirmities in the photo lineup procedure—particularly V.D.D.’s up-close encounter with Lewis during the home invasion and sexual assault, her testimony that she saw Lewis’ face during the attack, and her certainty that she correctly identified him in the photo lineup. There is not a substantial likelihood of misidentification, even if we assume a potentially suggestive photo lineup. Admitting the testimony about the photo lineup and V.D.D.’s in-court identification was not error.
Motions for Continuance
Lewis argues next that the district court violated his due process rights by infringing upon his right to present a defense when it refused to grant him a continuance to obtain independent DNA testing and retain an expert witness. The State argues Lewis had sufficient opportunity to obtain testing prior to requesting the continuance on the eve of trial. Again, some background is required.
Less tiran 3 weeks before trial, Lewis moved for a continuance. He argued a new attorney had been appointed about 4 months earlier; the case could result in him being imprisoned for the rest of his life; the State had recently prevailed on its motion to admit K.S.A. 60-455 evidence of similar offenses; and his counsel lacked sufficient time to prepare. At a motions hearing, the State objected. The district court denied the continuance, finding that the defense had adequate time to prepare for the K.S.A. 60-455 evidence; a continuance would delay trial by several months; the State had arranged for witnesses to come from out-of-state; and other witnesses planned to leave the area.
Eight days before trial, Lewis filed an amended motion to continue. As additional support, he averred the State intended to introduce DNA evidence; he had retained a laboratory to perform independent DNA testing and review the DNA evidence; the results could be exculpatory; additional time was needed to obtain results; and he had filed a motion for production of known DNA evidence and a corresponding motion for additional discovery. The State again objected.
Lewis argued the additional DNA testing was crucial to his defense, not only to verily the KBLs results but to assist in preparing cross-examination of the State’s DNA experts. Lewis’ attorney characterized her involvement in his case as “fairly recent,” emphasized her heavy caseload, and said Lewis had received a prosecution report with new DNA evidence results from the steering wheel of a victim’s car just prior to tire hearing. The State argued Lewis’ attorney received discovery including tire State’s DNA analysis results when she was appointed in May and emphasized witnesses were travelling from around the country to appear at trial.
The district court denied the motion. As to the new matters pertaining to DNA, the court clarified it was not denying Lewis the right to obtain additional testing, and the State agreed to provide Lewis the materials required by the laboratory the defense had retained.
Standard of Review
A continuance may be granted for good cause. K.S.A. 22-3401. A district court’s ruling on a motion to continue is reviewed for an abuse of discretion. State v. Beaman, 295 Kan. 853, 862-63, 286 P.3d 876 (2012) (citing State v. Stevens, 285 Kan. 307, 322-23, 172 P.3d 570 [2007], and State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 [2007]). A district court abuses its discretion when: (1) no reasonable person would taire 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). Whether the district court has interfered with a defendant’s right to present his defense is reviewed de novo. Carter, 284 Kan. at 318-19.
Discussion
The court’s decision in State v. Snodgrass, 252 Kan. 253, 843 P.2d 720 (1992), on which the State relies, is directly on point. In that case, defendant moved just 2 days prior to trial for DNA testing of physical evidence collected during the rape investigation that led to the charges against him. Defendant claimed he learned only a week earlier of a hospital lab report showing the presence of semen in the victim’s vaginal fluids. And because KBI tests were inconclusive, defendant argued he needed independent testing to exclude himself as a possible donor. The district court denied the request because defendant knew the rape kit evidence existed and could have requested the tests much earlier and the case had been continued previously for psychological testing pertaining to a later-abandoned insanity defense. The district court also refused to order DNA testing.
On appeal, the Snodgrass court affirmed, holding that under the circumstances it could not be said that no reasonable person would take the view adopted by the trial judge. In so holding, the court noted the defendant’s “ample opportunity to request DNA testing long prior to two days before trial” and that defendant was solely responsible for the delay in requesting the tests. 252 Kan. at 264.
The facts here are nearly identical. Lewis was aware much earlier that the physical evidence existed and could have pursued independent DNA testing prior to 8 days before trial. And the circumstances are no less persuasive because Lewis’ new attorney was appointed 4 months prior to the motion for continuance since Lewis’ first attorney was in the case approximately 6 months prior to that and did not pursue independent DNA testing.
It cannot be said no reasonable person would adopt the trial court’s decision to deny the continuance and proceed with the trial or that the decision deprived Lewis of the right to present his defense, given the time available to the defense. See State v. Ly, 277 Kan. 386, 389-90, 85 P.3d 1200 (defendant not entitled to continuance because he received ballistics results; defendant knew State was analyzing the evidence and could have requested independent testing prior to 4 days before trial), cert. denied 541 U.S. 1090 (2004); see also State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009) (right to present defense subject to statutory rules of evidence and procedure and caselaw interpreting them); Carter, 284 Kan. at 319-20 (considering defense diligence or lack thereof in pursuing matter upon which motion to continue was based when assessing whether denial of motion was abuse of discretion). We hold the district court’s decision to deny the continuance was not error.
Prosecutorial Misconduct During Closing Arguments
Lewis raises several instances of alleged prosecutorial misconduct during closing argument. He claims the prosecutor improperly appealed to the jury’s passions and prejudices with statements playing on the jury’s sympathy for the victims and an inflammatory remark about Lewis. The State concedes statements specifically about the crimes’ impact on the victims were improper but argues the remaining statements were within tire latitude afforded to prosecutors in crafting arguments.
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. Bridges, 297 Kan. at 1012.
Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271 Kan. 103, 114, 21 P.3d 516 (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. 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 prosecu-torial 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. Bridges, 297 Kan. at 1014.
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 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, 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 benefiting from the error bears the burden to demonstrate harmlessness. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013).
Statements at Issue
Lewis objects to several statements the prosecutor made in the course of closing arguments. First, he focuses on this passage:
“This has been a long process. We’ve heard from six women described what probably would have been the most horrifying events in their lives. There is some things that we all know. We know that women have rights. When they are at home in their home, they have the right to feel secure in their home. Their home is their castle. We also know that they have the right to leave their homes to go to a friend’s birthday, Junction City, for a couple of hours, and return home. They have a right to go to celebrate their own birthday, even if they don’t drink, and return home. They have a right to come from Topeka to Manhattan to catch up with an old friend, to go visit another friend, and to be secure. Most of all, they’re entitled to dignity. They’re entitled to say who can and cannot touch them, and they have an absolute right not to have that dignity invaded. That’s not what happened.”
Second, Lewis objects to a comment made during the prosecutor s discussion of the evidence relating to V.D.D.:
“But she had a light to open that door, and she had a right to tell the defendant, who she identified in court, that she wasn’t gonna go out and see who had hit her car. She had a right to say, ‘I’m not going with you to an ATM,’ and she had the right to shut the door and to send him packing.”
Third, he challenges a comment made during the prosecutor’s discussion about the attack on another victim, A.G.:
“Were gonna jump ahead to May 21st. [A.G.] comes down here to visit a friend. Goes to Bushwhackers, as [A.T.] had on the 6th and 7th. Goes out to Gardenway to see a friend. Gets out of the vehicle, and what’s she rewarded with? What dignity is she shown? What respect is she shown? Absolutely none.”
Fourth, Lewis objects to two comments by the prosecutor on the K.S.A. 60-455 evidence concerning a Virginia woman (K.D.), whom the State alleged Lewis had raped in 2006:
“Beginning in 2006, in Fairfax County, Virginia, when [K.D.] was struck on the left side of her face, knocked down, sodomized and raped for an hour, by the man she sat on that witness stand yesterday and identified, what was she in fear of? She was in fear of dying. Like [V.D.D.], she never went back to her home. People don’t deserve to live like that. They shouldn’t have to fear. They shouldn’t have to move. But because of the defendant seated to my left, these two women moved out of their homes.”
Fifth, Lewis objects to the prosecutor saying:
“Inside these four walls, justice. Those young women that took the stand and testified quietly, some of them not wanting to—having difficulty speaking up, they’re entitled to justice, just as each and eveiy human being is entitled to justice. Entitled to have dignity respected, and when it’s not respected, entitled to justice.
“As hard as he tried, the defendant did not take their dignity. They’ve gone on with their lives, they’ve maintained employment, but they will never be the same. Never be able to go to a friend’s birthday party in Junction City and drive home without looking in their mirror, wondering if they’re being followed. Pull into an apartment complex to see a friend without worrying, is their somebody? Is there a masked man with a gun out there? Return to their own home, take a bath or shower in their own home feeling secure. They will never be able to do that again.
“Well, today, September 24th, 2009, is their day, because today you are gonna speak.”
And finally, Lewis argues the prosecutor made an inflammatory statement about him:
“Masked, while [K.D.] trying to take a bath, sodomized, and raped, and forced to go to an ATM machine, like he’s entitled. There is an entitlement. An entitlement to abuse women. That’s what happened with every one of these women.”
Discussion
There is no question some comments were improper, particularly the prosecutor’s statements regarding justice “within these four walls” and urging the jury to give the victims “justice.” Because a prosecutor may not malee comments intended to inflame the jury’s passions and prejudices, this prosecutor’s irrelevant statements concerning the crimes’ impact on the victims and references to the victims’ dignity crossed an obvious line. And the parties are correct that the prosecutor inappropriately discussed the crimes’ long-term effects on the victims, such as not returning to their homes, being afraid in their homes, and fearing being followed home.
“[T]he prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced.” State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993). The comments noted were irrelevant to the question of Lewis’ guilt. Their only purpose could have been to unnecessarily inject some consideration of sympathy for the victims’ plights into the jury’s deliberations. Cf. State v. Friday, 297 Kan. 1023, 1033, 306 P.3d 265 (2013) (improper to tell jury guilty verdict can return dignity crime took from victim; noting crime’s impact upon victim’s dignity not relevant); State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (improper to tell jury truth would be victim’s “redemption” and call the defendant “a little, little man who used a cowardly ambush in order to shoot and kill a man, father, son, a brother, and a husband . . . .”), cert. denied 133 S. Ct. 529 (2012); State v. Henry, 273 Kan. 608, 640-41, 44 P.3d 466 (2002) (improper to ask jury to consider irrelevant matter of crime’s impact on victim’s family).
But we reject Lewis’ argument that the prosecutor’s statement about Lewis acting with a sense of entitlement to abuse women was improper. As the State points out, prosecutors are permitted to draw reasonable inferences from the evidence. Part of the State’s case was establishing Lewis’ identity through a significant quantity of prior crimes evidence. And one of the victims (A.L.T.) testified about tilings her attacker said about feeling no remorse for his victims, which tends to demonstrate the attacker did feel an entitlement to engage in the sexual assaults. See State v. Flournoy, 272 Kan. 784, 797-98, 36 P.3d 273 (2001) (not improper to call defendant “manipulator” and “control freak” in light of testimony defendant would say or do anything to save himself). The prosecutor s statement about an entitlement to abuse women was a reasonable and appropriate inference from this evidence.
Having determined some instances of prosecutorial misconduct, we must decide whether they require reversal. The convictions cannot stand unless we conclude beyond a reasonable doubt the improper comments did not affect the trial’s outcome in light of the entire record. See McCullough, 293 Kan. at 990-91. Lewis argues the evidence of his guilt was not direct and overwhelming enough to dilute the misconduct’s impact upon the jury. We disagree.
At the outset, we hold the improper comments were gross and flagrant and the product of ill will. The comments permeate the summation. See State v. Akins, 298 Kan. 592, 609-10, 315 P.3d 868 (2014) (repeated misconduct indicative of gross and flagrant conduct and ill will). And the rule against appealing to juror passions and prejudices is longstanding. See Ruff, 252 Kan. at 635-36 (applying rule against comments appealing to passion and prejudice); see also Akins, 298 Kan. at 609 (violation of longstanding rule indicates improper comment was gross and flagrant).
But the evidence of guilt was direct and overwhelming. Notably, there was no evidence to contradict the victims’ testimony about the crimes committed against them. And the DNA evidence identified Lewis as the peipetrator of the V.D.D. and A.G. attacks. In addition, each victim identified items recovered from Lewis’ possession as being similar to the ones used in the offenses against them.
Admittedly, the evidence of Lewis’ guilt in the crimes relating to A.L.T. was less direct because there was no DNA evidence to connect him to them, and A.L.T. did not identify Lewis in court. But the evidence was nonetheless overwhelming enough to diminish any prejudicial effect stemming from the prosecutor’s comments. The attack on A.L.T. was veiy similar to those on V.D.D., A.G., and two other victims who testified about attacks that occurred in another county. A.L.T. was accosted at gunpoint by a masked man in her apartment complex parking lot after returning from the same establishment A.G. visited just prior to her attack. A.L.T.’s attacker wore a mask that A.L.T. identified at trial as one police recovered from Lewis’ possession. And police found a man’s tennis shoe in A.L.T.’s car that shared the same size, make, and model with a new pair of shoes police recovered from Lewis’ possession. Moreover, the jury’s acquittal on the kidnapping charge is evidence the jury did not base its deliberations on the prosecutor’s improper comments.
We hold the improper commentary was not so prejudicial as to deny Lewis a fair trial. In light of the DNA evidence, physical evidence, and victims’ uncontroverted testimony—including the prior bad acts testimony of three additional victims in other jurisdictions—it is clear beyond a reasonable doubt these comments did not influence the jury’s verdicts.
District Court’s Jury Question Response
Lewis next argues the district court erred when it responded to a mid-deliberation jury question prompted by its inability to reach a unanimous verdict on certain charges. The jury asked what would happen with those charges if it were unable to agree. After consulting with the parties, &e district court directed the jury to refer to Instruction No. 3 from the final juiy instructions, which read: “Your only concern in this case is determining if the defendant is guilty or not guilty. The disposition of this case thereafter is a matter for determination by the Court.” At the time, Lewis did not object to this response.
Now on appeal, Lewis argues the district court should have responded with a portion of the language from PIK Crim. 3d 68.12, Deadlocked Jury, as follows: “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 dren up to the state to decide whether to resubmit the undecided charge(s) to a different juiy at a later time.” Lewis contends the response as given by the district court was coercive and misleading because it could be reasonably con strued as telling the jury it was required to reach a verdict and that a hung verdict was not acceptable. The State, of course, disagrees but raises preliminary questions of invited error and lack of preservation. A few additional facts are helpful.
Approximately 2 hours into its deliberations, the jury submitted a written question to the district court: “Can we find the defendant guilty on all but 2 Counts?” The district court responded: “Yes.” The jury later inquired: “[I]f we are unanimous on all but 2 Counts are tiróse 2 Counts gonna get thrown out or what will happen to those? (We are not unanimous on 2 Counts only by one vote Nay.)”
The discussion between the district judge and counsel concerning the jury’s second question was as follows:
“THE COURT: We’re back in chambers. Mr. Lewis is present, and counsel. We have another question from the juiy. Once again, I’m not gonna read it word-for-word, because they’ve revealed numerically and otherwise how they stand, so I’m going to paraphrase it: If we are unanimous on some counts but not on others, will the others get thrown out, or what will happen to those?
“[THE STATE]: Well, I drink die answer is probably that it would be the County Attorney’s decision. They could be retried, or if he felt it was not necessary to pursue, they could be dismissed, but it would be up to die County Attorney to make that decision.
“[DEFENSE COUNSEL]: I would just say something like you should not concern yourself with that issue.
“THE COURT: I’m gonna refer them to Instruction No. 3. Your duty is to determine if die defendant is guilty or not guilty. The disposition thereafter is a matter for the Court.” (Emphasis added.)
The district court’s written response simply stated: “See instruction # 3.” There was no further discussion by counsel, and the jury did not request further clarification. The next activity on the record was about 2 hours later when the jury announced it had reached its verdicts.
Invited Error/Preservation
In State v. Bruce, 255 Kan, 388, 397-98, 874 P.2d 1165 (1994), this court applied the invited error doctrine to the defendant’s objection on appeal to the district court’s response to a jury question. But the record in Bruce indicated defense counsel agreed to the response and replied “absolutely” when the response was read to counsel for objection before giving it to the jury. 255 Kan. at 396; see also State v. Adams, 292 Kan. 151, 159, 254 P.3d 515 (2011) (invited error when defense counsel agreed to and signed a typewritten response to juiy question summarizing evidence); State v. Cramer, 17 Kan. App. 2d 623, 631-32, 841 P.2d 1111 (defense counsel said he “really [did not] have a problem with” responding to the jury’s question with the State’s proposed language), rev. denied 252 Kan. 1093 (1993). The same unequivocal approval is not present here.
Lewis’ counsel suggested the district court only tell the jury not to be concerned with what might happen to any unresolved charges. But what the court did, in effect, by referring the jury back to Instruction No. 3 was to instruct the jury that its only concern was to determine whether Lewis was guilty or not guilty. The two responses are not the same thing. And while there may be some indication Lewis acquiesced to the court’s proposed response, we think the better view is to reject the State’s argument that Lewis invited the claimed error. We consider next the State’s briefly asserted preservation argument.
K.S.A. 22-3414(3) provides in part:
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or failure to give an instruction is clearly erroneous.” (Emphasis added.)
We have held K.S.A. 22-3414(3) establishes a preservation rule for juiy instruction claims on appeal. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court. Herbel, 296 Kan. at 1121.
This court has applied this same preservation rule in the context of nonevidentiaiy, mid-deliberation jury questions. See State v. Hoge, 276 Kan. 801, 817-18, 80 P.3d 52 (2003) (holding defendant failed to preserve claim of error arising from allegedly erroneous juiy question response because defendant did not object to response at trial and response was not clearly erroneous); State v. Saenz, 271 Kan. 339, 352, 22 P.3d 151 (2001) (citing K.S.A. 22- 3414[3] and holding error in manner in which district court responded to jury’s question was harmless because defendant had opportunity to review and failed to object to response’s content, which conformed to applicable PIK instruction). We do so here as well and hold this issue is preserved for appeal to the extent Lewis argues the response was clearly erroneous.
The next question is what standard of review applies. And given our prior recognition in Hoge and Saenz that clearly erroneous review was at least the nominal standard employed in two nonev-identiary, mid-deliberation juiy question cases, clarification is appropriate.
Standard of Review
In State v. Williams, 295 Kan. 506, 510-16, 286 P.3d 195 (2012), we explained “clearly erroneous” is not a standard of review, i.e., a framework for determining whether error occurred. Rather, it supplies a basis for determining if an error requires reversal. 295 Kan. at 515-16; see also State v. Wade, 295 Kan. 916, 920, 287 P.3d 237 (2012) (“Even if we agree with the State’s premise that [defendant] presents a jury instruction issue here [when claim was erroneous jury-question response on point of law], we recently clarified that ‘clearly erroneous’ is not a standard of review at all.”).
In deciding whether error occurred, a district court’s response to a mid-deliberation juiy question is reviewed for abuse of discretion. State v. Novotny, 297 Kan. 1174, 1186, 307 P.3d 1278 (2013); Wade, 295 Kan. at 920. In turn, in making this determination:
“[T]o the extent that it is necessaiy to determine whether the district court’s response was a correct statement of the law, we are presented with a legal question, subject to unlimited review. But when looldng at which legally appropriate response the court should have made, we accord the trial court the deference of looking to whether no reasonable person would have given the response adopted by the trial court.” 295 Kan. at 921.
Instruction No. 3 was a standard PIK instruction and correctly stated the law. It was not coercive, even considering that it was given after the jury indicated it might be unable to reach a verdict on two counts. It did not mislead the jury into believing it had to render a verdict on all charges. And it did not cany the hallmarks of a forcing-style instruction when compared, for example, with language in the pattern deadlocked jury instruction that explicitly directs the jury to attempt to reach a verdict. See PIK Crim. 3d 68.12 (“If at all possible, you should resolve any differences and come to a common conclusion.”); see also State v. Overstreet, 288 Kan. 1, 19-20, 200 P.3d 427 (2009) (clearly erroneous to give modified version of PIK Crim. 3d 68.12 to jury that indicated it was unable to reach a verdict on a charge). A reasonable person could agree with the district court’s decision to give the response that it gave.
Because we conclude there was no error, we need not engage in the clearly erroneous reversibility sequence set out in our recent caselaw. See Williams, 295 Kan. at 515-16.
Alternative Means of Committing Rape
Lewis claims his right to a unanimous juiy verdict was violated because rape is an alternative means crime and the State failed to adduce sufficient evidence to support each alternative means of committing the crimes as charged. In particular, Lewis argues the State failed to present evidence sufficient to support a jury’s finding that Lewis raped V.D.D. and A.G. “by penetrating their female sex organs with (1) a finger, (2) the male sex organ, and (3) any object.” This argument is without merit. See State v. Britt, 295 Kan. 1018, 1027, 287 P.3d 905 (2012) (holding methods of penetrating female sex organ set out in statute not alternative means, but factual circumstances in which material element, “penetration,” may be proven).
Cumulative Error
Lewis asserts the cumulative error doctrine necessitates reversal. As noted above, we have determined or assumed the following errors occurred: (1) Even if the first interview between Lewis and the detective was custodial, it was harmless to admit evidence of Lewis’ statements; (2) even if the photo lineup was unnecessarily suggestive based on the totality of the record, the identification was independently reliable with no substantial likelihood of misidenti- fication; and (3) prosecutorial misconduct occurred but was not so prejudicial as to deny Lewis a fair trial.
The test for cumulative error is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. But no prejudicial error may be found from this cumulative effect rule if the evidence is overwhelming against the defendant. State v. Marks, 297 Kan. 131, 150-51, 298 P.3d 1102 (2013).
In this case, the identified, or assumed, errors do not overtake the strength of the evidence against Lewis. This, evidence was overwhelming as to his guilt based in significant part on the strength of the eyewitness testimony, DNA, other physical evidence, and prior crimes evidence. There was no reversible cumulative error.
Sentencing Lewis as an Aggravated Habitual Sex Offender
Lewis next argues his five life sentences must be vacated because the aggravated habitual sex offender statute, as written at the time of his crimes, did not apply to him. The State argues it interpreted a “single conviction event” for the purposes of the statute to refer to convictions concerning the same victim, same offense date, or both. Because we agree with Lewis, we need not address the parties’ alternative sentencing arguments.
Standard of Review
“The court may correct an illegal sentence at any time.” K.S.A. 22-3504(1). Whether a sentence is illegal is a question of law subject to de novo review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). An illegal sentence is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. 299 Kan. at 8.
Discussion
At the time of these crimes, Kansas law provided that “[a]n aggravated habitual sex offender shall be sentenced to imprisonment for life without tire possibility of parole.” K.S.A. 2009 Supp. 21-4642(a). “Aggravated habitual sex offender” was defined as a person who:
“(A) Has been convicted in this state of a sexually violent crime . . . ; and
“(B) Prior to the conviction of the felony under subparagraph (A), has been ■ convicted on at least two prior conviction events of any sexually violent crime.” (Emphasis added.) K.S.A. 2009 Supp. 21-4642(c)(l).
A “prior conviction event” was defined as:
“[Ojne or more felony convictions of a sexually violent crime occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information. If a person crosses a county line- and commits a felony as part of the same criminal act or acts, such felony, if such person is convicted, shall be considered part of the prior conviction event.” K.S.A. 2009 Supp. 21-4642(c)(2).
And the term “sexually violent crime” includes rape and aggravated criminal sodomy. K.S.A. 2009 Supp. 21-4642(c)(3)(A), (E).
Lewis’ presentence investigation report showed prior convictions in Geary County District Court for rape, aggravated criminal sodomy, and criminal restraint. Each conviction was dated September 15, 2010.
This court’s decision in Trautloff is directly on point. In that case, the defendant was convicted of multiple crimes, including rape and aggravated criminal sodomy. The district court found the defendant was an aggravated habitual sex offender and sentenced him to life without parole for the rape and aggravated criminal sodomy convictions. The defendant had prior convictions for rape-and aggravated indecent liberties with a child. Both convictions occurred on the same date in the same case. On appeal, the court vacated the sentences imposed under-K.S.A. 21-4642 and remanded for resentencing. The court held that “a conviction on a single day of multiple counts, even involving multiple victims, constitutes only one prior conviction event.” And, turning to. the facts of defendant’s case, it held defendant’s prior convictions, having occurred on the same day and in the same case, constituted only one “prior conviction event.” 289 Kan. at 798.
In Lewis’ case, the prior convictions in his presentence investigation report all occurred on the same day and in the same case in Geary County and therefore constituted only a single prior conviction event. Because at the time of Lewis’ crimes K.S.A. 2009 Supp. 21-4642 applied only to defendants with two prior conviction events, Lewis’ five life-without-parole sentences do not conform with the statute and are illegal. We vacate those sentences and remand for resentencing on the counts for which they were imposed.
Convictions affirmed, life sentences vacated, and case remanded with directions.
Beier, J., not participating. | [
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The opinion of the court was delivered by
Johnson, J.:
After being charged with numerous sex offenses involving his teenage stepdaughter, Charles Haney agreed to plead nolo contendere to one count each of aggravated sodomy and attempted aggravated sodomy. In exchange for the plea, the State dismissed the other charges and agreed to a sentencing recommendation that permitted Haney to seek a shorter prison term through a durational departure, but he could not seek probation. Although tire district court knew that the Board of Indigents’ Defense Services (BIDS) had approved Haney s request to fund a sex offender evaluation to use in support of his motion for a durational departure sentence, the court deiiied Haney’s request to continue the sentencing hearing to allow for the completion of that evaluation. The Court of Appeals found the district court’s continuance denial was erroneous but harmless. State v. Haney, No. 105,685, 2012 WL 3135719, at *4 (Kan. App. 2012) (unpublished opinion). We granted review.
Finding that the district court committed reversible error by denying Haney’s motion to continue the sentencing hearing, we vacate his sentence and remand for further proceedings consistent with this opinion. Given our disposition, Haney’s request for a remand pursuant to State v. Van Cleave, 239 Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986), for a hearing on the effectiveness of his counsel is rendered moot.
Factual and Procedural Overview
The circumstances giving rise to the numerous sex offenses Haney allegedly committed against his teenage stepdaughter are not germane to this appeal. The important fact is that the agreement prompting Haney’s nolo contendere plea permitted him to file a motion for a durational departure from the sentence recommended in the plea agreement. The State’s agreed-upon recommendation was consecutive sentences of 155 months for the aggravated, criminal sodomy charge and 61 months for the attempted aggravated criminal sodomy charge. Although the agreement allowed Haney to ask the court for a reduced prison term, he could not seek a dispositional departure to probation.
At the plea hearing, Haney requested that the district court approve funding for an expert to conduct a sex offender evaluation to support his motion for a durational departure. Specifically, Haney believed that expert testimony could establish that the acts he committed were aberrational and that he posed no risk for committing similar offenses in the future. The district court did not object to Haney’s request for an expert opinion but instructed Haney to seek the evaluation funding through BIDS.
Prior to the sentencing date that had been set by the court, Haney filed a motion to continue, claiming that he was still awaiting funding approval from BIDS for his sex offender evaluation. At the hearing on tire continuance motion, Haney’s trial attorney advised tire district court that BIDS had since approved the funding; tire evaluation could be conducted in the following 2 weeks; a report would be issued 10 days after the evaluation; and, accordingly, Haney was requesting a 1-month continuance of the sentencing hearing. The district court denied the motion, finding that the sex offender evaluation would only be relevant to the type of treatment that Haney would need if he obtained probation, which was not an option in his case. Furthermore, the court opined that the purpose of a professional sex offender evaluation could be fulfilled through another method, to-wit: “Or we can put Mr. Haney on the stand and he can testily, and I [the district judge] could look him in the eye and determine whether he’s telling the Court the truth or not and determine whether that’s an appropriate sentence or not.”
After the court refused to continue the sentencing hearing to allow Haney to obtain the departure evidence he sought, Haney filed a written motion for departure, simply arguing, inter alia, that the crimes of conviction were completely out of character for him; that he had no record of sexual or physical violence; and that the evidence did not suggest that he was a danger to the community at large or to the victim. The district court denied the departure motion, ironically declaring that “there’s really no evidence, only argument, as to whether a departure should be granted.” Subsequently, tire district court sentenced Haney to consecutive terms of 155 months and 61 months, pursuant to the State’s recommendation.
Haney filed a timely appeal, arguing that the district court erred in refusing to continue sentencing so he could present evidence in mitigation of his punishment, pursuant to K.S.A. 2013 Supp. 22-3424(e)(4), and to support his motion for downward departure, pursuant to K.S.A. 21-4716. Haney argued that the sex offender evaluation would have provided the court with scientific evidence to support a lesser sentence.
In addition, Haney requested the Court of Appeals to remand the case to the district court in order to conduct a Van Cleave hearing on his claim that his sentencing counsel was ineffective for failing to request that the judge recuse himself. That claim was founded upon Haney’s sworn statement that his trial counsel had advised him that the judge presiding over his case was biased against defendants charged with sex offenses, giving two specific instances where the judge had displayed his prejudice.
The Court of Appeals found that “the district court abused its discretion in denying Haney the additional opportunity to present 'mitigation evidence under K.S.A. 2011 Supp. 22-3424(e)(4),” but it opined that the allocution error was harmless. Haney, 2012 WL 3135719, at *4. The panel also refused to remand Haney s ineffective assistance of counsel claim to the district court for a Van Cleave hearing, apparently because it found no merit to his allegations of ineffectiveness. 2012 WL 3135719, at *5. We granted Haneys timely petition for review.
Motion to Continue Sentencing
Haney challenges the district'court’s denial of his motion to continue die sentencing hearing in order to permit him to obtain a sex offender evaluation to use as evidence in support of his departure motion. Haney claims that denying the continuance effectively denied him the right under K.S.A. 2013 Supp. 22-3424(e)(4) “to present any evidence in mitigation of punishment” and foreclosed the court’s consideration of any mitigating circumstances that might have been revealed by the evaluation. See K.S.A. 21-4716(c)(l) (“mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist”).
Standard of Review
K.S.A. 22-3401 provides that the district court may grant a continuance “for good cause shown,” and that provision is applicable to sentencing hearings. See State v. Beaman, 295 Kan. 853, 862-63, 286 P.3d 876 (2012). In a criminal case, the decision to continue a case lies within the sound discretion of the district court. State v. Cook, 281 Kan. 961, 986, 135 P.3d 1147 (2006). Accordingly, we generally review a denial of a continuance on an abuse of discretion standard by determining whether the ruling was arbitrary, fanciful, or unreasonable, i.e., no reasonable person would take the view adopted by the trial court. But an abuse of discretion can occur where the ruling is based on an error of law, i.e:, the discretion is guided by an erroneous legal conclusion, or where the ruling 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. Roberts, 293 Kan. 1093, 1097, 272 P.3d 24 (2012).
Analysis
We discern that the district court’s overarching reason for denying Haney’s request for additional time in which to obtain a sex offender evaluation was its belief that such evidence was unnecessary. On one level, the district court reasoned that the report of a sex offender expert would only parrot what Haney had told the evaluator. Therefore, the judge opined that Haney could simply testify in front of the judge, who would look Haney in the eye, determine whether he was being truthful, and assess whether the proposed sentence was appropriate. Additionally, the district court declared that sex offender evaluations were only used to determine the type of treatment that would be appropriate for a defendant who was being placed on probation, which was not an option for Haney. The Court of Appeals panel apparently rejected the district court’s rationale, given that it found an abuse of discretion in the denial of Haney’s right to present mitigating evidence. We agree with the implicit ruling of the panel; the district court’s reasons for denying the continuance were erroneous and unavailing.
First addressing the latter holding—that sex offender evaluations are only used to assess treatment programs for those receiving probation—we believe the district court too narrowly construed the nature and purpose of sex offender evaluations. Such evaluations are often requested during die sentencing or disposition phase of the court process in order to identify, among other things, the level of risk for sex offense recidivism. These evaluations are frequently used to assist judges with maiding well-informed dispositional determinations. See, e.g., Hornecker v. State, 977 P.2d 1289, 1292-93 (Wyo. 1999) (finding that sex offender evaluation was of assistance in imposing defendant’s sentence). For example, if, as Haney believed, his evaluation had produced a risk assessment that there was zero chance that he would ever again commit a sex offense, such evidence could arguably provide the substantial and compel ling reason needed to support a durational departure sentence. The district court’s misunderstanding as to the legal effect of a sex offender evaluation rendered its decision based upon that improper legal conclusion an abuse of discretion.
Next, we soundly reject the district court’s declaration that tire defendant’s own testimony, coupled with the court’s astute ocular observation, was an adequate substitute for an expert’s evaluation and testimony. Certainly, the defendant could not qualify to give expert testimony on sex offenders in general or himself in particular. Likewise, although we presume our trial judges are imbued with a great deal of wisdom, we decline to hold that a person appointed or elected to the district court bench has qualified as an expert in sex offender evaluations. See In re Care & Treatment of Girard, 296 Kan. 372, 377, 294 P.3d 236 (2013) (holding that actuarial risk assessment instruments utilized in sex offender evaluations constitute scientific evidence, and testimony derived from instruments is expert scientific opinion). Clearly, it was an abuse of discretion for the district court to require the defendant to forego an expert’s scientific testimony on risk assessment in favor of looking the judge in the eye while testifying.
We have no hesitation in finding an abuse of discretion in the district court’s denial of Haney’s motion to continue the sentencing hearing to permit him to obtain evidence to present in mitigation of his punishment, as required by K.S. A. 2013 Supp. 22-3424(e)(4). But our inquiry is not complete; we must assess whether the error was harmless. If error does not infringe upon a constitutional right, we apply the harmless error analysis of K.S.A. 2013 Supp. 60-261, which provides that “[ujnless justice requires,” no error by the court is ground for vacating a judgment. In other words, we must determine whether there is a reasonable probability that the error affected tire outcome of the proceeding below. See State v. Marks, 297 Kan. 131, 148, 298 P.3d 1102 (2013). The State, as the party benefitting from the error, bears the burden of proof. 297 Kan. at 148.
As noted previously, after denying Haney the opportunity to obtain evidence to present at the departure hearing, the district court then denied the departure motion based upon the lack of evidence. Curiously, the Court of Appeals relied on that circular rationale to find that the trial court’s error was harmless, stating: “Given tire district court’s conclusion that Haney only presented arguments and not evidence, there is no reasonable possibility in light of the entire record that Haney would have received a lesser sentence had the district court granted a continuance.” Haney, 2012 WL 3135719, at *4. A fair reading of that holding would be that the denial of Haney’s statutory right to present evidence is harmless where the denied evidence was not presented. We decline to chase our tail in such a fashion, and we cannot declare that the lost opportunity to present evidence in mitigation of punishment was harmless in this case. Cf. State v. Randolph, 297 Kan. 320, 337, 301 P.3d 300 (2013) (finding error not harmless under K.S.A. 2013 Supp. 60-261 where district court applied wrong statutory factors in ruling on departure motion).
We therefore vacate Haney’s sentence and remand with directions that Haney be given an opportunity to obtain a sex offender evaluation to use in support of his departure motion at resentenc-ing. Additionally, we direct that the case be assigned to a different judge for resentencing.
Van Cleave Hearing
Haney’s petition for review also claims the Court of Appeals erred in refusing to remand his ineffective assistance of counsel claim for a Van Cleave hearing in the district court. The specific issue raised was whether Haney’s trial counsel was ineffective for failing to request that the sentencing judge recuse himself based upon prejudice against defendants charged with sex offenses. Haney’s ineffective assistance of counsel claim is now moot, given that we are ordering resentencing before a different judge, i.e., given that Haney will receive what he claims his trial counsel should have obtained for him.
Judgment of the Court of Appeals is reversed. Judgment of the district court is reversed. Defendant’s sentence is vacated, and the matter is remanded for resentencing before a different judge after defendant is permitted to obtain a sex offender evaluation. | [
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The opinion of the court was delivered by
Luckert, J.:
Alan W. Kingsley appeals from a summary denial of his pro se motion for relief from his first-degree murder conviction, which he filed pursuant to K.S.A. 2011 Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606. The district court summarily denied Kingsley’s motion, concluding his claims are foreclosed under the doctrine of res judicata. We affirm that ruling and also hold that relief from a criminal conviction cannot be obtained pursuant to K.S.A. 2011 Supp. 60-260(b) or K.S.A. 60-2606.
Facts and Procedural Background
In 1991, a jury convicted Alan W. Kingsley of premeditated first-degree murder, in violation of K.S.A. 1990 Supp. 21-3401(a); aggravated robbery, in violation of K.S.A. 21-3427 (Weeks 1988); aggravated arson, in violation of K.S.A. 21-3719 (Weeks 1988); and forgery, in violation of K.S.A. 21-3710(b) (Weeks 1988). The sen tencing court imposed three consecutive life sentences—a term of 15 years to life for aggravated robbery, life without parole for 40 years for premeditated murder, and another term of 15 years to life for aggravated arson. (This conviction was later reversed and remanded on direct appeal, reduced to a charge of arson, and re-sentenced to a term of 5 to 20 years, to run concurrent with his other sentences.) A sentence of 1 to 5 years for forgery was run concurrent with the other sentences.
During the jury trial, the court instructed the jury by giving the pattern premeditated murder instruction, PIK Crim. 2d 56.01. As it relates to Kingsley’s current arguments, the pertinent portion of the instruction stated: “Deliberately and with premeditation means to have thought over the matter beforehand.” After having received that instruction, Kingsley’s jury, while deliberating, asked for clarification of the time frame required for premeditation. The trial court further instructed: “Premeditation under the law does not require any specific time frame. Please review instruction No. 5,” which was PIK Crim. 2d 56.01. On direct appeal, Kingsley argued the judge’s response to the jury’s question, which incorporated the language about which Kingsley now complains, was erroneous. This court rejected Kingsley’s argument, citing State v. Patterson, 243 Kan. 262, 268-69, 755 P.2d 551 (1988), in which this court found the same instruction “ ‘correctly stat[ed] the law.’ ” State v. Kingsley, 252 Kan. 761, 770-72, 851 P.2d 370 (1993).
In another issue raised by Kingsley in his direct appeal, he argued his mandatory hard 40 life sentence should be vacated because the jury’s verdict on premeditated first-degree murder was not unanimous. The trial court had instructed the jury that Kingsley was charged in Count One with murder in the first degree, which required proof that the killing was done with premeditation. In addition, the court instructed that Kingsley was charged in Count Two with felony murder in the first degree, which required proof that the killing was done while in the commission of aggravated robbery. 252 Kan. at 785. Further, the trial court told the jury that its “agreement upon a verdict must be unanimous.” 252 Kan. at 786. The court gave the juiy two verdict forms—one for premeditated first-degree murder and another for first-degree felony mur der. The jury indicated on each verdict form that it was unanimous in finding Kingsley guilty on the respective counts, thus indicating a unanimous finding of guilt on both premeditated first-degree murder and first-degree felony murder. Because the verdict form made it clear the jury was unanimous in finding Kingsley guilty of premeditated first-degree murder, this court rejected Kingsley’s argument and concluded he could be sentenced to a hard 40 life sentence for that conviction. 252 Kan. at 784-87.
After that appeal, Kingsley brought several collateral attacks on his convictions and sentences, all of which have been unsuccessful. See Kingsley v. McKune, 191 Fed. Appx. 748 (10th Cir. 2006) (unpublished opinion); State v. Kingsley, No. 96,059, 2007 WL 570298 (Kan. App.) (unpublished opinion), rev. denied 284 Kan. 949 (2007); Kingsley v. State, No. 90,133, 2004 WL 719260 (Kan. App.) (unpublished opinion), rev. denied 278 Kan. 846 (2004).
In the current case, Kingsley filed a pro se “Motion for Relief from Judgment” and accompanying memorandum of law in 2012, which was more than 19 years after the entry of the final order in his direct appeal. In the motion, Kingsley cited K.S.A. 2011 Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606 as the procedural statutes entitling him to relief from his first-degree murder conviction and sentence. He asserted two substantive reasons his first-degree murder conviction should be reversed and his hard 40 sentence should be set aside. First, he claimed the trial court had “constructively amended the complaint and usurped legislative authority to define crimes when it instructed the jury that 'deliberately and with premeditation’ means to have thought over the matter beforehand as elements of first degree murder.” Second, he argued it was error to instruct the juiy on both premeditated murder and felony murder. On appeal, Kingsley’s counsel summarizes Kingsley’s second pro se argument on this point as a request for “relief from the Hard 40 Sentence, as it is not clear whether the Jury unanimously found him guilty of First Degree Premeditated Murder.”
In the district court, the State filed a response to Kingsley’s pro se motion, noting that Kingsley had raised the same issues in his direct appeal. Citing State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990), the State argued Kingsley s motion for relief from judgment was barred by the doctrine of res judicata. The district court adopted the State’s response as its findings of fact and conclusions of law and summarily denied the motion without appointing counsel or conducting a hearing. Kingsley filed a timely notice of appeal, and counsel was appointed to represent him. This court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(3) (off-grid; maximum sentence of life imprisonment imposed).
Analysis
On appeal, Kingsley argues the summary dismissal of his motion was error. We reject his argument for a host of reasons relating to both procedural defects and a lack of merit. We need not address all of those reasons, however, because two threshold defects preclude Kingsleys success: (1) Kingsley filed his motion pursuant to statutes that do not apply to collateral attacks on a criminal conviction and sentence, and (2) his claims are barred under the doctrine of res judicata. Both of these defects present questions of law subject to our unlimited review. See State v. Mitchell, 297 Kan. 118, 120-24, 298 P.3d 349 (2013) (questions of statutoiy and case-law interpretation, which are questions of law subject to de novo review, led to holdings that [1] K.S.A. 2011 Supp. 60-260[b] does not apply to collateral attack on conviction and [2] K.S.A. 60-1507 provides exclusive remedy present); Edgar v. State, 294 Kan. 828, 836-37, 283 P.3d 152 (2012) (“When a district judge summarily denies a K.S.A. 60-1507 motion, an appellate court reviews that decision using a de novo standard of review. . . . This standard requires an appellate court to determine whether the motion, files, and records of the case conclusively show the movant is not entitled to any relief.”).
Regarding the procedural deficiency, this court has previously held K.S.A. 2011 Supp. 60-260(b)(4) “does not provide a procedure for a criminal defendant to obtain postconviction relief from his or her conviction or sentence.” Mitchell, 297 Kan. at 118-19. Mitchell reaffirmed a prior holding designating K.S.A. 60-1507 as the exclusive statutory remedy for a collateral attack on a criminal conviction and sentence. 297 Kan. at 121-23; see Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967) (holding K.S.A. 60-1507 is “the exclusive statutory remedy authorizing a prisoner in custody under sentence of a court of general jurisdiction to make a collateral attack upon the sentence in a criminal case, and that K.S.A. 60-260 is not available ... for this purpose”). The exclusive nature of K.S.A. 60-1507 likewise excludes K.S.A. 60-2606 as a procedural mechanism for relief from Kingsley’s convictions and sentences.
Kingsley’s appellate counsel, apparently recognizing that relief cannot be afforded Kingsley pursuant to K.S.A. 2011 Supp. 60-260 or K.S.A. 60-2606, asks this court to liberally construe Kingsley’s pro se motion as a K.S.A. 60-1507 motion. In making this request, however, Kingsley’s counsel fails to mention the limitation in K.S.A. 60-1507(f), which states that an action filed pursuant to that statute must be “brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or tire termination of such appellate jurisdiction; or (ii) tire denial of a petition for writ of certiorari to the United States supreme court.” While this limitation can be extended under a manifest injustice exception, Kingsley, who has tire burden of showing the exception applies, did not request such an extension and did not explain the 19-year delay. Therefore, Kingsley has failed to meet his burden and has waived any argument that he should be allowed to bring an untimely request for relief under K.S.A. 60-1507. See, e.g., State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012) (issue abandoned for failure to adequately brief it); McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (simply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority, is akin to failing to brief an issue; when appellant fails to brief an issue, that issue is waived or abandoned); see also Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39) (appellant’s brief must include the “arguments and authorities relied on”).
Instead, Kingsley seems to suggest we should address the merits of his pro se motion because the district court did not determine the motion was procedurally defective. Rather, the district court summarily denied Kingsley’s motion after concluding the issues were barred by die doctrine of res judicata. The problem with Kingsley s argument is that the district court correctly ruled that his action was barred.
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.” Neer, 247 Kan. at 140-41; see State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012) (res ju-dicata consists of four elements: “ ‘[1] same claim; [2] same parties; [3] claims were or could have been raised; and [4] a final judgment on the merits’ ”). The essence of the doctrine of res judicata is that issues “once finally determined... cannot afterwards be litigated.” Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963).
Kingsley’s direct appeal from his convictions obviously involved the same parties, and it resulted in a final judgment on the merits. Further, the current action involves the same claims as those which were or could have been raised in his direct appeal. More specifically, as we previously noted, on Kingsley’s direct appeal this court found the jury instructions regarding premeditation, which included the language about which Kingsley now complains, appropriately reflected the law. Kingsley, 252 Kan. at 771-72. Likewise, in Kingsley’s direct appeal, this court rejected his contention that “the mandatory 40-year sentence should be vacated on the ground that die juiy’s verdict on first-degree premeditated murder may not have been unanimous.” 252 Kan. at 784. Hence, Kingsley’s argument regarding the uncertainty of a unanimous verdict—the only issue related to giving the alternative theories of premeditated first-degree murder and felony first-degree murder that Kingsley argues on appeal—was addressed in the direct appeal.
We note, however, that Kingsley’s counsel attempts to put a new twist on die argument by suggesting the manner in which the juiy was polled made it unclear whether the jury was indeed unanimous on both alternatives. Kingsley does not persuade us tiiat this polling issue is not barred by the doctrines of res judicata or waiver because the essence of this issue—unanimity—was or could have been raised on direct appeal. Plus, this twist is raised for the first time before us and fails on that basis alone. See State v. Cheffen, 297 Kan. 689, 696-99, 303 P.3d 1261 (2013) (declining to address jury polling issue for first time on appeal).
Accordingly, the claims raised by Kingsley in his pro se motion are barred by the doctrine of res judicata. As a result, contrary to Kingsley s argument, the district court did not err in summarily dismissing Kingsley’s motion without appointing counsel or conducting an evidentiary hearing because the motion, files, and records of his cases conclusively showed Kingsley was not entitled to relief. See, e.g., Fisher v. State, 296 Kan. 808, 819-20, 295 P.3d 560 (2013) (“[A] district court’s initial review of the files and record may be enough to show the issues raised do not warrant further review and the matter may be summarily denied. K.S.A. 60-1507[b].”); State v. Conley, 287 Kan. 696, 703-04, 197 P.3d 837 (2008) (same); State v. Hoge, 283 Kan. 219, 223-24, 150 P.3d 905 (2007) (same).
Affirmed.
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, Brendon P. Barker, of Pratt, an attorney admitted to the practice of law in Kansas in 2001.
On March 20, 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 April 29, 2013, admitting that he violated KRPC 1.1 (2013 Kan. Ct. R. Annot. 446) (competence); KRPC 1.3 (2013 Kan. Ct. R. Annot. 464) (diligence); KRPC 1.4 (2013 Kan. Ct. R. Annot. 484) (communication); KRPC 1.16(a)(2) (2013 Kan. Ct. R. Annot. 569) (declining or terminating representation); and KRPC 8.4(g) (2013 Kan. Ct. R. Annot. 655) (engaging in any other conduct that adversely reflects on tire lawyer’s fitness to practice law).
On June 5, 2013, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys, where the respondent was present and was represented by counsel. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to the court:
“Findings of Fact
“8. The Kansas Supreme Court admitted the respondent to the practice of law in the State of Kansas on April 27, 2001. The Missouri Supreme Court admitted the respondent to the practice [of] law in September, 2001.
“9. The respondent is from Pratt, Kansas. The respondent maintained a law office in Overland Park, Kansas. Later, the respondent established a law office, with his brother, in Pratt, Kansas.
“10. In October, 2006, D.H. retained the respondent to prepare and file a conservatorship and guardianship case for her mother, J.H., who was unwell following a stroke. Over time, D.H. paid the respondent $1,825.00 for tire representation. On October 6,2006, the respondent filed a petition for conservatorship with the Jackson County, Missouri, probate court.
“11. The inventory for tire estate was due on November 6, 2006. On November 28, 2006, the court issued a notice that the inventory was delinquent. The court ordered D.H. to file the inventory by December 12, 2006. The court sent the notice to the respondent. The respondent failed to forward the notice to D.H. D.H. did not know that the inventory was delinquent.
“12. On December 3, 2006, J.H. died.
“13. On January 2, 2007, tire court issued a citation to D.H. to appear with counsel for a hearing on February 26, 2007, to file the inventory, to show good cause why the inventory had not been filed, and to show why the letters of con-servatorship should not be revoked. It appears that the court forwarded a copy of tire notice to D.H. by certified mail and to tire respondent by ordinary mail.
“14. On October 9, 2007, the respondent filed an annual report, a certified copy of J.H.’s death certificate, a final settlement, and an account transaction report. Unfortunately, the documentation that tire respondent filed was incomplete.
“15. In December, 2007, D.H. moved to a different residence. D.H. provided the respondent with her new address.
“16. On January 7, 2008, the court issued an order to show cause why D.H. should not be removed as conservator. The order also required D.H. to appear with the respondent in court on February 4, 2008. It appears that the court forwarded the notice to D.H. by certified mail and to the respondent by ordinary mail. The notice sent to D.H. was sent to her old address. Neither the respondent nor D.H. appeared in court on February 4, 2008.
“17. The respondent did not communicate with D.H. following November, 2007.
“18. On March 24, 2008, the court sent tire respondent an order to show cause why D.H. should not be removed as conservator and to require D.H. to appear with the respondent in court on April 28, 2008. It appears that the court forwarded a copy of the order to D.H. by ordinary mail and to the respondent by ordinary mail. Again, tire notice sent to D.H. was sent to her old address.
“19. Neither the respondent nor D.H. appeared in court on April 28, 2008. However, that day, the respondent requested that tire hearing on tire order to show cause be continued. The court continued the hearing to June 2, 2008.
“20. The hearing on the order to show cause was again continued. On July 21, 2008, the court conducted tire hearing. While the respondent had received notice of the hearing, he failed to advise D.H. of the hearing. Neither the respondent nor D.H. appeared. At the hearing, tire court revoked D.H.’s letters of conservatorship.
“21. On September 8, 2008, tire court appointed Rebecca Lake Wood, Public Administrator of Jackson County, Missouri, to serve as conservator ad litem in J.H.’s estate case. It appears that the court forwarded a copy of the order to the respondent.
“22. On November 13, 2008, the court issued a notice of hearing to the respondent. The court scheduled the hearing for tire purpose of considering a claim against the estate for an unpaid probate bond premium. The court forwarded the notice to tire respondent via certified mail.
“23. In February, 2009, tire Public Administrator filed suit against D.H., as conservator of J.H.’s estate. Service of the petition was D.H.’s first notice that there was a problem with her mother’s conservatorship. In March, 2009, D.H. retained new counsel, answered the lawsuit, and brought the respondent in the action as a third party defendant.
“24. The respondent never informed D.H. that she needed court approval for any expenditure she made, including the respondent’s own fee. Thus, every expenditure made by D.H. as conservator was in controversy in the lawsuit. As a result, in tire course of the lawsuit, D.H. answered extensive discovery.
“25. On March 15, 2010, the respondent filed an answer to D.H.’s third party petition.
“26. After repeatedly assuring D.H.’s new counsel that he would help cover the costs of her defense, in May, 2011, at the pre-trial conference, D.H.’s new counsel received notice that die respondent filed bankruptcy,
“27. As a result, D.H. had to resolve tíre case with tire Public Administrator and the Bar Plan on her own. Thereafter, on May 16, 2011, D.H. entered into a settlement agreement. D.H. paid the Public Administrator $4,897.00, the Bar Plan $4,080.88, and her new counsel $10,548.67, for a total of $19,526.55.
“28. At tire time of the hearing on the formal complaint, tire respondent had not reimbursed D.H. for the unearned fees nor for the out-of-pocket expenses incurred by D.PI. as a result of the suit filed by the Public Administrator.
“29. On March 26, 2012, D.H. filed a complaint with the disciplinary administrator’s office. Thereafter, on April 23, 2012, the respondent filed a response to the initial complaint. In his response, the respondent attested to tire accuracy of D.H.’s complaint.
“30. On March 20, 2013, Mr. Walczak filed a formal complaint against the respondent. On April 29, 2013, the respondeirt filed an answer to the formal complaint.
“Conclusions of Law
“31. Based upon the findings of fact, the healing panel concludes as a matter of law that the respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, and KRPC 8.4(g), as detailed below.
“KRPC 1.1
“32. 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 failed to provide competent representation to D.H. when he failed to act with sufficient thoroughness in preparing the inventoiy and other documents filed with the court. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
“KRPC 1.3
“33. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent D.H. in connection with her mother’s probate case by failing to timely file documents and appeal- in court. Because the respondent failed to act with reasonable diligence and promptness in representing his client, the hearing panel concludes that the respondent violated KRPC 1.3.
“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 inform D.H. of the deficiencies of the documents filed and when he failed to inform her of the many court hearings scheduled in her mother’s probate case. Accordingly, the hearing 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 tire representation has been terminated. Specifically, KRPC 1.16(d) provides the requirement in this regard:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable 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 the unearned fees to D.H. The hearing panel concludes that the respondent violated KRPC 1.16(d).
"KRPC 8.4(g)
“36. ‘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 abandoned his representation of D.H. The hearing panel concludes that the respondent violated KRPC 8.4(g).
“American Bar Association Standards for Imposing Lawyer Sanctions
“37. 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.
“38. Duty Violated. The respondent violated his duty to his client to provide competent and diligent representation. Additionally, the respondent violated his duty to his client to provide adequate communication.
“39. Mental State. The respondent knowingly violated his duties.
“40. Injury. As a result of the respondent’s misconduct, the respondent caused actual, serious financial injury to D.H.
“Aggravating and Mitigating Factors
“41. 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:
“42. A Pattern of Misconduct. The respondent engaged in a pattern of misconduct. For a period of approximately five years, the respondent neglected the representation of D.H. in her mother’s conservatorship.
“43. Multiple Offenses. The respondent committed multiple rule violations. The respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, and KRPC 8.4(g). Accordingly, tire hearing panel concludes that the respondent committed multiple offenses.
“44. Vulnerability of Victim. D.H. testified that other than an amicable divorce, this was her first experience with a legal matter. Thus, D.H. was inexperienced in legal matters. The hearing panel concludes that based upon D.H.’s inexperience in legal matters, she was vulnerable to the respondent’s misconduct.
“45. Indifference to Making Restitution. At the time of the hearing, die respondent had taken no steps to provide D.H. with any restitution for the $21,351.55 loss she incurred.
“46. Mitigating circumstances are any considerations or factors that may justify a reduction in die degree of discipline to be imposed. In reaching its rec ommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
“47. Absence of a Prior Disciplinary Record. The respondent has not previously been disciplined.
“48. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct. The respondent suffers from depression. It appears that the respondent’s depression contributed to the misconduct in this case.
“49. In addition to practicing law, the respondent engaged in business ventures with his family. Specifically, the respondent and his family owned and operated four Jimmy John restaurants in Oklahoma and the respondent and his family owned and operated Orion Ethanol, Inc., an ethanol plant. The respondent spent considerable time attempting to keep the Jimmy John restaurants from failing. The ethanol plant failed and sought the protections offered under the bankruptcy law. Accordingly, the hearing panel finds that the respondent’s other business interests distracted him from the practice of law and the distraction contributed to the respondent’s misconduct.
“50. In May, 2006, the respondent and his wife separated and in 2007, his wife filed an action in divorce against the respondent. Additionally, the respondent’s mother suffered from Alzheimer’s disease. Finally, in late 2008, die respondent was involved in a near fatal car accident in Oklahoma, when he was struck by a drunk driver. As a result of the car accident, the respondent suffered a head injury. The respondent failed to provide information regarding details of his head injury to the hearing panel. Regardless, it is clear that the respondent’s personal and emotional problems contributed to the respondent’s misconduct in this case.
“51. The Present and Past Attitude of the Attorney as Shoum by His Cooperation During the Hearing and His Full and Free Acknowledgment of the Transgressions. Despite the respondent’s failure to file a timely answer to the formal complaint, the respondent otherwise fully cooperated with die disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations.
“52. 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 the State of Kansas. The respondent also enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by three letters received by the hearing panel.
“53. Remorse. At die hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
“54. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the 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.
‘4.52 Suspension is generally appropriate when a lawyer engages in an area of practice in which tire lawyer knows he or she is not competent, and causes injury or potential injury to a client.
‘6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.
‘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.’
“Recommendation
“55. Mr. Walczak recommended that the respondent be suspended from the practice of law for a period of six to nine months. Mr. Pigg argued that the respondent’s conduct was negligent and that a censure is the appropriate discipline to impose in this case. Further, Mr. Pigg argued that unless the respondent retained his law license he would be unable to provide restitution to D.H., which he intended to provide even though he is not legally obligated to do so because the claim had been discharged in bankruptcy.
“56. 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 prior to reinstatement, the respondent be required to undergo a hearing pursuant to Kan. Sup. Ct. R. 219. At the reinstatement hearing, the hearing panel recommends that the respondent be required to establish that he has undergone a thorough psychological evaluation, complied with the recommendations contained in the report of the psychological evaluation, and received adequate treatment to address his problem with depression. Finally, the hearing panel recommends that the respondent be required to show that he has paid or entered into a written plan to pay D.H. $21,351.55 for her expenses associated with the respondent’s misconduct, prior any consideration of a petition for reinstatement.
“57. Costs are assessed against the respondent in an amount to be ceitified by the Office of the Disciplinary Administrator.”
The respondent filed exceptions to the final hearing report challenging the panel’s conclusions that (1) he violated KRPC 1.16(d); (2) he knowingly violated his duties to D.H.; (3) he engaged in a pattern of misconduct for 5 years; (4) he committed multiple offenses; (5) D.H. was a vulnerable client; (6) he was indifferent to making restitution to D.H.; and (7) he failed to file a timely answer. Respondent also challenged the panel’s application of certain sections of the ABA Standards for Imposing Lawyer Sanctions and argued that the panel’s recommended discipline was unwarranted based on the mitigating evidence presented at the hearing.
With the exception of Issue 4, respondent raised the above issues in his subsequently filed brief. They will be addressed in turn.
Discussion
Violation of KRPC 1.16(d)
The respondent first argues on appeal that the panel’s conclusion, contained in Paragraph 35, that he violated KRPC 1.16(d) by failing to return unearned legal fees to D.H. was not supported by clear and convincing evidence. The respondent concedes that the panel properly found that D.H. paid him $1,825 to represent her. But he contends that no evidence was presented suggesting that he did not earn that fee. He notes that the formal complaint included no allegation that the fee was unearned, resulting in no evidence being presented at the hearing “regarding the specific fee arrangement nor the number of hours or effort expended or expenses incurred by respondent in representing complainant.”
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, the discipline to 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]). This court does not reweigh the evidence or assess the credibility of witnesses. In re Comfort, 284 Kan. 183, 190, 159 P.3d 1011 (2007). “Rather, this court examines any disputed findings of fact and determines whether clear and convincing evidence supports the panel’s findings. [Citation omitted.] If so, the findings will stand.” In re Trester, 285 Kan. 404, 408-09, 172 P.3d 31 (2007).
D.H. testified at the hearing that she paid the respondent a total of $1,825 over four separate payments, the last payment being made sometime in January 2007. The respondent conceded that D.H. paid him this amount and that he had never refunded her any part of tire fees she advanced to him. But the respondent testified at the hearing that the money was paid “to get the guardianship/conservatorship opened and established, which was done. It did get opened.” Though the record does contain evidence showing that D.H. suffered $21,351.55 in damages as a result of the respondent’s misconduct, tire record does not contain any evidence regarding tire fee arrangement that tire respondent and D.H. entered into nor does it contain any evidence showing the amount of time or effort that the respondent spent working on D.H.’s case. Based on this lack of evidence, we conclude that there is not clear and convincing evidence within the record establishing that the respondent violated KRPC 1.16(d) by failing to return unearned legal fees to D.H.
The Hearing Panel’s Findings under ABA Standard 3.0
Next, the respondent challenges several findings that the panel made pursuant to ABA Standard 3.0 regarding his mental state and the existence of several aggravating factors. Specifically, he challenges the panel’s findings that (1) he knowingly violated his duties to D.H.; (2) he engaged in a pattern of misconduct for 5 years; (3) D.H. was a vulnerable client; (4) he was indifferent to malting restitution to D.H.; and (5) he failed to file a timely answer.
This court bases its disciplinary decision on the facts and circumstances of tire violations and the aggravating and mitigating circumstances present. In re Johanning, 292 Kan. 477, 490, 254 P.3d 545 (2011). And although not mandated by its rules, this court and disciplinary panels “[historically” turn to the ABA Standards for Imposing Lawyer Sanctions to guide the discipline discussion. See ABA Compendium of Professional Responsibility Rules and Standards (2012); see also In re Woodring, 289 Kan. 173, 180, 186, 210 P.3d 120 (2009) (discussing and applying ABA Standards); In re Rumsey, 276 Kan. 65, 78-79, 71 P.3d 1150 (2003) (citing and discussing ABA Standards).
Under the ABA Standards, four factors are considered in assessing punishment: (1) the ethical duty violated by the lawyer; (2) the lawyer’s mental state; (3) the actual or potential injury resulting from the misconduct; and (4) the existence of aggravating and mitigating circumstances. See Rumsey, 276 Kan. at 78 (listing the four components of the ABA Standards’ framework); ABA Standard 3.0.
This court’s rules require that a disciplinary panel explain “[mjitigating or aggravating circumstances which affect the nature or degree of discipline.” Supreme Court Rule 211(f). The panel must consider the evidence presented as to aggravating and mitigating circumstances and determine the weight to be assigned to each in arriving at an appropriate discipline. In re Walsh, 286 Kan. 235, 248, 182 P.3d 1218 (2008). On appeal, this court determines whether it agrees with the panel’s findings regarding aggravating and mitigating circumstances. See In re Kline, 298 Kan. 96, 219, 311 P.3d 321 (2013).
1. The Respondent Acted with Knowledge
The respondent contends that his violations of the KRPC arose from omissions and not intentional conduct. Thus, he argues that his conduct should be considered “negligent” instead of “knowingly.”
“The ABA Standards identify three mental states: ‘intent,’ the highest culpable mental state; ‘knowledge,’ tire intermediate culpable mental state; and ‘negligence,’ the least culpable mental state. Under the ABA Standards, a lawyer acts intentionally when acting with the ‘conscious objective or purpose to accomplish a particular result,’ while a lawyer acts with knowledge when acting ‘with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.’ Finally, a lawyer acts negligently when failing “to be aware . . . that a result will follow .... See ABA Standards, p. 462.” In re Kline, 298 Kan. at 216.
In making the argument that his conduct should be considered negligent, the respondent appears to confuse the concepts of intent and knowledge. There was no evidence presented at the hearing that the respondent intended to harm D.H., but the record does contain admissions by the respondent that he was aware that his conduct caused or could cause harm to D.H. For example, he admitted to being aware of D.H. potentially being held in contempt of court as a result of his actions or omissions. And despite this knowledge, he continued to request numerous continuances of the contempt hearing without informing D.H. Accordingly, the panel properly found that the respondent acted knowingly, i.e., that he acted “with conscious awareness of the nature or attendant circumstances of his or her conduct both without the conscious objective or purpose to accomplish a particular result.”
2. Pattern of Misconduct
Next, the respondent contends that the panel erred when it found that he engaged in a pattern of misconduct lasting 5 years. He contends that the applicable period of time only lasted 2 years and 5 months, i.e., from October 2006, when D.H. retained him, until March 2009, when D.H. retained new counsel.
ABA Standard 9.21 and 9.22(c) indicate that “a pattern of misconduct” is a factor that may justify an increase in the degree of discipline to be imposed. Notably, the ABA Standards do not indicate that a certain amount of time must pass before “a pattern of misconduct” can arise. Instead, it appears that a “pattern of misconduct” will be found if misconduct is repeated several times within the same general time frame. See In re Ketter, 268 Kan. 146, 154-55, 992 P.2d 205 (1999) (finding that respondent’s 1988 convictions were too remote in time to be considered as establishing a pattern of misconduct).
Even if we accept the respondent’s claim that his pattern of misconduct only lasted for 2 years and 5 months, it does not diminish the fact that he did engage in repeated acts of misconduct during that time period while representing D.H. Accordingly, though the panel may have erred in finding that respondent’s pattern of misconduct lasted 5 years, it did not err in finding that a pattern of misconduct did exist and could be considered as an aggravating factor.
3. Vulnerable Client
The respondent takes issue with the panel’s finding that D.H. was a vulnerable client. In Paragraph 44 of the final hearing report, die panel stated: “D.H. testified that other than an amicable divorce, this was her first experience with a legal matter. Thus, D.H. was inexperienced in legal matters. The hearing panel concludes that based upon D.H.’s inexperience in legal matters, she was vulnerable to the respondent’s misconduct.” The respondent contends that if inexperience in legal matters was the standard for determining vulnerability, then nearly all clients would be considered vulnerable. The respondent contends that characteristics normally associated with vulnerability (e.g., being very young, elderly, uneducated, or saddled with mental or physical infirmities) should be the basis for a vulnerability finding. Because no evidence was presented at the hearing showing that D.H. had these or similar characteristics, the respondent argues that the panel erred in finding that D.H. was a vulnerable client.
In support of his argument that D.H. was not a vulnerable client, the respondent cites In re Wall, 272 Kan. 1298, 38 P.3d 640 (2002), where this court rejected the panel’s finding of vulnerability based on evidence that the client, a personal injuiy claimant, (1) had a metal jaw, (2) had a ruined right hip, (3) would have trouble having children, and (4) relied on her attorney to protect her claim from being barred by the statute of limitations. The court held that the evidence did not establish the client’s “vulnerability” as an aggravating factor—related to the attorney’s misconduct in allowing the statute of limitations to expire—because every personal injury plaintiff relies on counsel to protect his or her claim. Furthermore, the court noted that the disciplinary panel did not have the opportunity to listen to and observe the client because the attorney had stipulated to the disciplinary violation. 272 Kan. at 1310.
The Deputy Disciplinary Administrator counters by arguing that a vulnerability finding can be based on a client’s inexperience with legal matters, citing In re Cole, 268 Kan. 171, 175, 991 P.2d 422 (1999), in support. The Deputy Disciplinary Administrator also contends that based on In re Berg, 264 Kan. 254, 268, 955 P.2d 1240 (1998), an emotionally distraught client can be considered “vulnerable.” Based on the evidence showing that D.H.’s father died in 2005 and that her mother suffered at stroke in the fall of 2006 and died that December, the Deputy Disciplinary Administrator argues that D.H. was a vulnerable client due to the emotional state she was in during the course of the respondent’s representation of her.
Because the panel based its vulnerability finding solely on D.H.’s inexperience with legal matters, we will not consider the Deputy Disciplinaiy Administrator’s argument that the vulnerability finding could have also been based on D.H. being emotionally distraught.
As noted by this court in In re Wall, 272 Kan. at 1309-10, the respondent in In re Cole did not challenge the vulnerability finding made by the panel in that case, so the propriety of the finding was not reviewed on appeal by this court. Accordingly, In re Cole does not establish precedent for finding a client vulnerable based on inexperience with legal matters. Based on In re Wall, it would appear that inexperience with legal matters alone is not sufficient for a vulnerability finding because nearly every client fits within this category—much like every client relies on counsel to ensure that his or her claim will not be barred by the statute of limitations. Accordingly, we conclude that the evidence presented at the hearing does not support a finding that D.H. was a vulnerable client. A minority of the court, however, would find the panel’s vulnerability determination was supported by the evidence in the record.
4. Indifferent to Making Restitution
Next, the respondent argues that the panel erred in concluding that he was indifferent to making restitution. He contends that his severe financial difficulties prevented him from making restitution. Furthermore, he notes that he presented a check for $5,000 to D.H. at the conclusion of the hearing, which he argues shows that he is committed to making full restitution.
The panel based its finding that the respondent was indifferent to making restitution on the fact that “[a]t the time of the hearing, the respondent had taken no steps to provide D.H. with any restitution for the $21,351.55 loss she incurred.” At tire hearing, the respondent acknowledged that D.H.’s damages were approximately $20,000 and that at no time prior to the hearing had he made any offer to make payments to her. Accordingly, we conclude that based on the respondent’s inactions at making or attempting to malee restitution prior to the hearing, the panel properly found that tire respondent was indifferent to making restitution.
5. Timely Answer
Next, the respondent takes issue with the panel’s finding in Paragraph 51 that he failed to file a timely answer to the formal complaint. In his brief, respondent states:
“Respondent’s counsel met with Deputy Disciplinary Administrator, Mr. Walczak, on April 8, 2013, to review information and discuss the matter. The Deputy Disciplinary Administrator agreed to an extension to April 29 to file the answer. If the answer was untimely, the fault rests with respondent’s counsel, not respondent.”
The Deputy Disciplinary Administrator responded in his brief by stating that the respondent “is correct in that his attorney was given an extension to April 29, 2013, to file his Answer, but the Panel is also correct that the Answer was untimely.”
Supreme Court Rule 211(b) (2013 Kan. Ct. R. Annot. 357) states: “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.”
The record shows that the formal complaint was served on March 20, 2013. Thus, tire respondent’s deadline for serving his answer upon the Disciplinary Administrator was April 9, 2013. Because the respondent secured an extension on April 8 to serve his answer on April 29, it appears that his answer—which was served on the Disciplinary Administrator on April 29—was timely. Accordingly, the panel was mistaken in finding that the respondent failed to timely respond to the formal complaint.
Notably, however, the panel’s finding was made within Paragraph 51 where it found that “the respondent otherwise fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts that gave rise to the violations.” Paragraph 51 was one of the paragraphs identifying mitigating circumstances. Neither the Deputy Disciplinary Administrator nor the panel claimed that the respondent violated an ethical or court rule by filing his answer on April 29. Accordingly, though the panel erred in finding that the respondent’s answer was untimely, it appears that this finding did not cause prejudice to the respondent.
The Panel’s Recommended Discipline
Based on the application of ABA Standards 4.42, 4.52, 6.22, and 7.2, the hearing panel recommended that the respondent be suspended for a period of 6 months. The hearing panel further recommended that prior to reinstatement, the respondent be required to undergo a hearing pursuant to Supreme Court Rule 219(d) (2013 Kan. Ct. R. Annot. 407). At the reinstatement hearing, the hearing panel recommended that the respondent be required to establish that he has undergone a thorough psychological evaluation, complied with tire recommendations contained in the report of the psychological evaluation, and received adequate treatment to address his problems with depression. Finally, the hearing panel recommended that the respondent be required to show that he has paid or entered into a written plan to pay D.H. $21,351.55 for her expenses associated with the respondent’s misconduct prior to any consideration of a petition for reinstatement.
This recommendation is advisory only and does not prevent this court from imposing greater or lesser sanctions. Supreme Court Rule 212(f); see In re Ireland, 294 Kan. 594, 603-04, 276 P.3d 762 (2012). This court bases its disciplinary decision on the facts and circumstances of the violations and the aggravating and mitigating circumstances present. In re Johanning, 292 Kan. at 490.
The respondent first argues that the ABA Standards the panel applied are inapplicable to his conduct because he did not “knowingly” cause harm to D.H. But as already shown above, the panel properly found that the respondent knowingly violated his duties to D.H. which caused her injury. Accordingly, based on the applicable mental state, the panel properly applied the ABA Standards.
Next, the respondent argues that the panel erred in applying ABA Standard 7.2 because, according to the respondent, that standard only applies to
“ ‘cases involving false and misleading communicatioiis about the lawyer or the lawyer’s services, improper communication of fields of practice, improper solicitation of professional employment from a prospective client, unreasonable or im proper fees, unauthorized practice of die law, improper withdrawal from representation, or failure to report professional misconduct,’ none of which are involved here.” (Emphasis added.)
The language quoted by the respondent is from ABA Standard 7.0. ABA Standard 7.2 states: “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 injuiy to a client, the public, or the legal system.”
In malting this argument, the respondent overlooks the fact that in his answer to the formal complaint, he conceded that he violated KRPC 1.16(a)(2) (2013 Kan. Ct. R. Annot. 569), which states in pertinent part: “[A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if . . . the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” Moreover, the record shows that the respondent failed to take any steps to notify D.H. of his inability to represent her or to ensure that her interests were protected. See KRPC 1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests . . . .”). Thus, we conclude that the panel properly applied ABA Standard 7.2 to the respondent’s conduct.
Next, the respondent argues that public censure, not a 6-month suspension, is the appropriate sanction based on the mitigating factors present in his case. The panel specifically noted these mitigating factors: (1) the absence of any prior disciplinary actions; (2) the respondent’s depression as a contributing factor to his misconduct; (3) the failure of the business ventures that the respondent engaged in with his family; (4) the dissolution of his marriage; (5) his mother’s illness; (6) his involvement in a serious automobile accident; (7) his cooperation with the disciplinary process; (8) the respect of his peers; and (9) his genuine remorse for his misconduct.
As mentioned above, the panel noted as aggravating factors: (1) the pattern of misconduct the respondent engaged in; (2) his multiple offenses; (3) the vulnerable nature of his client; and (4) his indifference to making restitution. We have already determined that the panel erred in finding that D.H. was a vulnerable client and, accordingly, do not consider this factor.
The respondent emphasizes the mitigating factors without acknowledging the aggravating factors. The presence of mitigating factors has not historically prevented this court from imposing discipline in the form of suspension. See, e.g., In re Harrington, 296 Kan. 380, 293 P.3d 686 (2013) (panel is not required to address every mitigating factor; 2-year suspension); In re Meek, 295 Kan. 1160, 289 P.3d 95 (2012) (40-month suspension); In re Depew, 290 Kan. 1057, 237 P.3d 24 (2010) (1-year suspension). Furthermore, suspension is appropriate when a lawyer knows that he or she is not performing die services requested by the client but does nothing to remedy die situation. See, e.g., In re Batt, 296 Kan. 395, 404, 294 P.3d 241 (2013); ABA Standard 4.42.
The respondent also argues that he has corrected the problems in his practice and his circumstances have changed, which ensure that he will not commit similar transgressions in the. future. Regardless of what the respondent’s current situation might be, based on the fact that the respondent neglected to even take minuscule measures to protect D.H.’s rights (e.g., calling her on the phone and recommending diat she retain a new attorney) and instead chose to ignore her case while addressing his own financial and personal issues, we conclude that a 6-mondi suspension is an appropriate sanction for the respondent’s misconduct. A minority of the court, however, would impose a shorter term of suspension.
Finally, the respondent contends that the recommended reinstatement requirements of a psychological examination and demonstrated recovery from depression are not warranted because die record does not support a finding that he is still experiencing depression. We agree. The evidence presented at the hearing established that due to a myriad of financial and personal issues that arose during the respondent’s representation of D.H., the respondent suffered from depression-like symptoms, resulting in his knowingly engaging in conduct that caused damage to D.H. But there was no evidence presented that would indicate the respondent suffered from depression before his financial and personal issues arose or that he continued to suffer from depression once those issues were resolved. Accordingly, we conclude that the facts of this case do not warrant requiring the respondent to undergo a psychological evaluation or a hearing pursuant to Supreme Court Rule 219(d) prior to reinstatement.
Conclusion and Discipline
It is Therefore Ordered that Brendon P. Barker be suspended from the practice of law in the State of Kansas for a period of 6 months, effective on the filing of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2013 Kan. Ct. R. Annot. 300).
It is Further Ordered that Barker shall comply with Supreme Court Rule 218 (2013 Kan. Ct. R. Annot. 406), and in the event respondent seeks reinstatement, he shall comply with Supreme Court Rule 219. Within the required petition for reinstatement, the respondent must show he has fully paid or entered into a written plan to fully pay D.H. for her expenses associated with his misconduct, which total $21,351.55.
It is Therefore Ordered that the costs of these proceedings are assessed to Barker and that this opinion be published in the official Kansas Reports.
Luckert, J., not participating.
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The opinion of the court was delivered by
Biles, J.:
Ryan Powell was convicted of felony theft and felony criminal damage to property. He seeks review of a Court of Appeals decision affirming the district court’s denial of his motion to suppress evidence obtained through a search warrant authorizing the seizure of his blood, hair, fingerprints, and buccal (cheek) cells. State v. Powell, 45 Kan. App. 2d 1090, 257 P.3d 1244 (2011). Powell argues the district court erred because: (1) After it found the warrant lacked the required probable cause, it applied the United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), good-faith exception to the exclusionary rule and permitted the illegally seized evidence to be used at trial; and (2) K.S.A. 22-2502 does not expressly authorize search warrants for blood, hair, fingerprints, cheek cells, or other biological material. We reverse Powell’s convictions and remand the case to the district court for further proceedings consistent with this opinion.
We hold the district court erred by not suppressing the evidence. The Leon good-faith exception cannot save the search because it was objectively unreasonable for die officer to rely on the warrant. In so holding, we do not reach Powell’s alternative argument that K.S.A. 22-2502 does not permit the court-ordered seizure of biological material. We note, however, this presents a question of first impression for this court and may merit further legislative consideration given the lack of express statutoiy language.
Factual and Procedural Background
In July 2007, a Greenwood County Sheriff s Department patrol car was stolen from a locked compound and found wrecked in a ditch the following morning. Officers collected hair and tissue samples from the cracked windshield, hair from the rearview mirror, and blood from die vehicle’s interior. In September, officers sought a search warrant for “samples of [Powell’s] blood, hair, and oral swabs as well as fingerprint samples.”
The affidavit supporting die search warrant did not indicate DNA evidence had been recovered from the patrol vehicle or otherwise explain why blood, hair samples, buccal cell swabs, and fingerprints were sought in a case involving a stolen vehicle. It summarized a police interview widi Powell, who denied involvement with the crime. It went on to explain that a detective had suggested Powell submit to a DNA test “to prove his innocence” and tiiat Powell at first declined, but then agreed, to give a voluntary sample. The affidavit stated Powell failed to report for the test. The affidavit also mentioned three anonymous phone calls. Each claimed Powell was involved in the theft.
The first anonymous caller told the sheriffs office dispatch she “pretty much [knew] for 100% sure” that Powell was involved in the car theft. During the second call, an anonymous caller told the Greenwood County Crime Stoppers hotline tiiat another named individual drove the stolen patrol car and that Powell was a passenger. In a third call, an anonymous tipster told the Crime Stoppers hotline that Powell had told the caller Powell was involved with the theft. It is not clear whether the calls were placed by the same person.
The affidavit also discussed the detective’s questioning of Powell at Powell’s workplace. Powell told the detective the night tire car was stolen was his last night on bond supervision and that he would not have done anything to get in trouble. The detective observed that he drought it odd Powell would be able to remember the exact date in question because the detective did not mention the date during questioning. The detective also noted Powell originally said he learned about the theft from the newspaper but then later claimed to have learned about it from others. Powell’s wife told tire detective they read about the crime in the newspaper.
A district court judge approved and signed the warrant. Hair and oral swabs were collected from Powell, and a medical professional drew his blood. The State then charged Powell with involvement in the theft.
Powell filed a motion to suppress the biological material, arguing the warrant lacked probable cause and the Leon good-faith exception to the exclusionary rule did not apply because there was so little indicia of probable cause in the warrant that an officer could not objectively reasonably rely on it. Powell also argued K.S.A. 22-2502, which is the statutory authority for a judge to issue search warrants, does not permit law enforcement to obtain a warrant to seize blood, hair, fingerprints, or cheek cells.
After a hearing on the suppression motion, the same district court judge who signed tire warrant determined it lacked probable cause. The judge found the affidavit failed to specify that officers had DNA material from the stolen car that could be compared to any samples taken from Powell. The judge held the warrant would have been “a good search warrant” if that information had been included.
But despite ruling the search was illegal, the district court admitted the evidence under tire Leon good-faith exception because it determined the officers acted in good faith and reasonably relied on the warrant. See Leon, 468 U.S. at 906-07 (sanction for a Fourth Amendment violation should weigh the costs and benefits of preventing the prosecution’s use of illegally seized evidence). The district court also held the broad language of K.S.A. 22-2502(a)(l) indicates a warrant can be issued for biological material even though blood, hair, cheek cells, and fingerprints are not specified in the statute as instrumentalities of a crime or normally considered property.
Following the suppression hearing, Powell stipulated that his DNA profile from the samples taken from him would match the DNA of the biological material found in the stolen patrol car. Powell agreed to a bench trial on stipulated facts, and the district court found him guilty of felony theft and felony criminal damage to property. He was sentenced to two concurrent 6-month prison terms, granted probation, and ordered to pay over $20,000 in restitution.
Powell appealed to the Court of Appeals. He argued the good-faith exception was inapplicable because the affidavit in support of the search warrant had “little indicia of probable cause,” citing the failure to explain that law enforcement had biological material from the car to compare with Powell’s samples. The panel rejected this argument, concluding that while the affidavit did not affirmatively specify that officers had DNA material for comparison, it implied as much when it stated Powell had initially agreed to provide DNA samples. Powell, 45 Kan. App. 2d at 1094-95.
The panel also rejected Powell’s argument that K.S.A. 22-2502 does not authorize a search warrant for blood, hair, fingerprints, and cheek cells. The panel held that blood and tissue fell within the statutory phrase “property which constitutes or may be considered a part of the evidence, fruits or instrumentalities of a crime” under K.S.A. 22-2502(a)(l)(A). 45 Kan. App. 2d at 1097.
Powell petitioned this court for review, which we granted under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Probable Cause Analysis
The Fourth Amendment to the United States Constitution guarantees the right to be free from “unreasonable searches and seizures,” and the Kansas Constitution provides the same protection. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010), cert. denied 131 S Ct. 2114 (2011). When evidence is illegally obtained, its suppression may be warranted under the exclusionary rule, which is a judicially created rule that safeguards against unconstitutional searches and seizures by suppressing illegally seized evi dence as a deterrent to future violations. See Leon, 468 U.S. at 906; Daniel, 291 Kan. at 496. Under Leon, suppression is not required when law enforcement officers reasonably rely on a search warrant that is later determined to be legally invalid. Leon, 468 U.S. at 913. The issue of reasonable reliance is center stage in Powell’s case because the State has not appealed from the district court’s determination that the warrant was invalid. See State v. Plotner, 290 Kan. 774, 777, 235 P.3d 417 (2010) (An issue not briefed, or raised incidentally without argument, is deemed abandoned.).
But as the Court noted in Leon, “it frequently will be difficult to determine whether the officers acted reasonably without resolving the Fourth Amendment issue.” 468 U.S. at 925. We believe this is one of those circumstances, so we will begin by reviewing whether the district court correctly held the warrant lacked probable cause. This analysis will not change the law of the case as to the warrant’s lack of probable cause, but it will assist us in considering the good-faith exception’s application, which is the issue before us.
Standard of Review
A judge deciding whether an affidavit supplies probable cause considers the totality of tire circumstances presented and makes “a practical, common-sense decision whether a crime has been or is being committed and whether there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Hicks, 282 Kan. 599, 613-14, 147 P.3d 1076 (2006). In Hicks, we discussed an appellate court’s role when reviewing a lower court’s probable cause determination:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that the reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability that evidence will be found in the place to be searched. Because die reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, die reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” 282 Kan. 599, Syl. 2.
Discussion
The defective warrant in this case sought Powell’s blood, hair, fingerprints, and cheek cells. And one well-known requirement for a valid warrant is that “those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction’ for a particular offense.” Dalia v. United States, 441 U.S. 238, 255, 99 S. Ct. 1682 60 L. Ed. 2d 177 (1979) (quoting Warden v. Hayden, 387 U.S. 294, 307, 87 S. Ct. 1642, 18 L. Ed. 2d 782 [1967]).
We agree with the district court that the search warrant was deficient because it failed to establish a nexus between the evidence sought (the biological material identified) and that evidence’s ability to aid in the apprehension or conviction of the crime’s perpetrators. The search warrant application does not clearly identify the crime alleged. Instead, it generalizes that the “[ajffiant has probable cause to believe and does believe that an offense against the laws of the State of Kansas, has been committed.” It goes on to explain only that the biological material sought was located on Powell.
But other information needed to discern the purposes for obtaining this biological material is left to the imagination. For example, one must gather from the nature of the anonymous tips that the crime at issue is the patrol car theft, and the warrant does not explain how the biological material sought would aid in prosecuting the crime. Clearly, the affidavit supporting the warrant fails to meet the nexus requirement, which is especially troublesome given that the evidence sought from Powell involved intrusions beyond the human body’s surface without any justification alleged in the warrant for that intrusion. See Maryland v. King, 569 U.S. _, 133 S. Ct. 1958, 1969, 186 L. Ed. 2d 1 (2013) (“ ‘[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.’ ” [quoting Schmerber v. California, 384 U.S. 757, 768, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)]).
As die United States Supreme Court cautioned when considering the extraction of a defendant’s blood in Schmerber, 384 U.S. at 769-70:
“The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence maybe obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” (Emphasis added.)
These interests are even more important because the biological material to be extracted from Powell was not at risk of disappearing, so quick police action was not required by exigent circumstances. In other words, there was time to do diis correctly and to properly secure die warrant.
In its good-faith analysis, the Court of Appeals minimized this linkage by simply holding that “it [was] logical [for the reviewing judge] to assume from the warrant application that officers had a sample for comparison with Powell’s DNA.’’ Powell, 45 Kan. App. 2d at 1094. The panel seemed to hold the detective’s statement that Powell had been asked previously to submit voluntarily to a DNA test to prove his innocence sufficiendy implied that police had a sample for comparison.
We disagree that the district court could perform its role of a neutral and detached magistrate by simply assuming the necessary nexus existed. The warrant requirement is a vital step in the search and seizure of evidence. It ensures that a neutral and detached magistrate makes the assessment as to whether a search and seizure may be properly undertaken, instead of leaving that decision to the officer “ ‘engaged in the often competitive enterprise of ferreting out crime.’ ” Aguilar v. Texas, 378 U.S. 108, 111, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 [1948]) overruled on other grounds by Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
The panel’s analysis, premised as it is on assumptions about what was meant and understood, results in the kind of rubber stamping the Fourth Amendment is specifically meant to avoid. See Aguilar, 378 U.S. at 111 (“ ‘Although tire reviewing court will pay substantial deference to judicial determinations of probable cause, the [reviewing] court must still insist that the magistrate perform [the] ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.’ ”).
We also disagree with the district court that the warrant would have satisfied the probable cause requirement if it simply had noted tire stolen patrol car contained biological material because under the totality of the circumstances, the anonymous tips did not provide a substantial basis for finding probable cause to believe evidence of the crime would be found in Powell’s biological material. The United States Supreme Court has made clear that while an anonymous tip can be used to demonstrate probable cause, more is required tiran the tip itself. See Illinois v. Gates, 462 U.S. 213, 241-46, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (discussing that an anonymous tip can be relied on if the totality of the circumstances demonstrates probable cause and discussing the need for corroboration, verification, and a description of the basis of knowledge).
This court has held that tips from unidentified informants must be corroborated, accompanied by a description of the informant’s basis for knowledge, or have some indicia of reliability. See Hicks, 282 Kan. at 615 (discussing why the absence of police verification of a citizen tip was problematic because it was unsupported by “some indication” the information was accurate and concluding that “[a]llegations without factual support should not be considered in determining whether probable cause existed to issue a search warrant.”); see also State v. Ibarra, 282 Kan. 530, 550-52, 147 P.3d 842 (2006) (discussing whether an anonymous tip corroborated by an odor associated with illegal drugs provided probable cause).
A tip’s probative value is determined by examining the totality of the circumstances, including the informant’s basis of knowledge, i.e., the means by which the informant acquired the information, and the informant’s veracity, i.e., evidence of the informant’s cred ibility and reliability. State v. Hensley, 298 Kan. 422, 431, 313 P.3d 814 (2013). And while a deficiency on one prong can be compensated for by a strong showing on the other, 281 Kan. at 431, in this instance the basis of knowledge and veracity are both largely unknown.
The third caller stated that Powell told the caller he was involved in the car theft, but no other information was recited in the affidavit. It did not state whether the anonymous calls were from the same or multiple persons, gave no basis upon which to assess the callers’ (or caller’s) credibility, and said nothing about tire source of information for the first two phone calls.' Put simply, based on what was related in the affidavit, the anonymous telephone tips fail the most basic of tests for corroboration of anonymous or confidential sources'in our caselaw, so the link between Powell and the crime evaporates.
The district court correctly held the warrant and affidavit failed to provide a substantial basis for the issuing judge’s determination that there is a fair probability drat evidence will be found in the place to be searched. But tire deficiencies were greater than those recognized by the district court. The affidavit failed to justify the intrusion into Powell’s body because it did not establish the required nexus between the requested search and the ability of evidence that might be recovered to aid in apprehending or convicting the person who stole the car. And it relied principally on anonymous tips devoid of information concerning the informants’ basis of knowledge or veracity.
The Good-Faith Exception Does Not Apply
We move next to consider whether the district court and panel erred in holding that evidence obtained through the invalid search warrant was admissible under the Leon good-faith exception. For this, the question is not whether the judge erred in believing there was sufficient probable cause to issue the warrant, the inquiry instead is whether that judge “so obviously erred that any reasonable officer would have recognized the error.” Messerschmidt v. Millender, 565 U.S. _, 132 S. Ct. 1235, 1250, 182 L. Ed. 2d 47 (2012).
Standard of Review
When reviewing a district court’s decision on a motion to suppress, an appellate court first examines the district court’s findings to determine whether they are supported by substantial competent evidence. State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013). The district court’s legal conclusions based on those findings are then reviewed de novo. If there are no disputed material facts, the issue is a question of law over which an appellate court has unlimited review. 297 Kan. at 639.
Discussion
In Leon, the United States Supreme Court held the exclusionary rule should not bar the use of “evidence obtained by officers acting in reasonable rebanee on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause.” Leon, 468 U.S. at 900. But the Leon Court also noted there would be some cases when the exclusionary rule would apply even if an officer obtained a warrant and abided by its terms. 468 U.S. at 922.
The Leon Court recognized four circumstances when suppression would still be an appropriate remedy if a warrant was later determined to be invalid: (1) The magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause in the affidavit that it was entirely unreasonable for the officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized. 468 U.S. at 923. We have previously concluded tire holding in Leon applies in Kansas without modification. See State v. Hoeck, 284 Kan. 441, 463-64, 163 P.3d 252 (2007) (adopting the four exceptions enunciated in Leon for the suppression of evidence illegally seized based on good-faith reliance on invalid warrant).
Powell argues for application of the third, “bare-bones” exception, i.e., there was so bttle indicia of probable cause stated in the affidavit that it was entirely unreasonable for officers to beheve the warrant was valid. He supports this position by noting the point previously discussed—that the affidavit failed to supply a nexus between the items sought in the search warrant and the police-car theft because the affidavit did not mention that officers seized biological material from the vehicle. The State argues the officers’ reliance on the court-approved warrant was reasonable despite this omission.
To evaluate whether it was entirely unreasonable for the officers to believe the warrant was valid, we must determine “whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. To make that determination, we look to the affidavit in its entirety. 468 U.S. at 922 n.23.
The threshold to avoid the Leon good-faith exception is a high one. Messerschmidt, 565 U.S. _, 132 S. Ct. at 1245. The Messerschmidt Court held:
“Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, tire fact that a neutral magistrate has issued a warrant is the clearest indication that tire officers acted in an objectively reasonable manner or, as we have sometimes put it, in ‘objective good faith.’ [Citation omitted.] Nonetheless, under our precedents, tire fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end tire inquiry into objective reasonableness. Rather, we have recognized an exception . .. when ‘it is obvious that no reasonably competent officer would have concluded that a warrant should issue.’ [Citation omitted.]” 132 S. Ct. at 1245.
We find some similarities in the omission in Powell’s case with Groh v. Ramerez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, officers obtained a judicially approved warrant and carried out a search of Ramirez’ residence. The warrant failed to describe the items to be seized, although the warrant application particularly described the place to be searched and the contraband expected to be found. No evidence was recovered, and Ramirez sued the special agent who prepared and signed the warrant application under 42 U.S.C. § 1983 (2000), claiming a Fourth Amendment violation. The Groh Court held that the search violated the Fourth Amendment, and addressed whether tire agent was entitled to qualified immunity. 540 U.S. at 563-65.
The qualified immunity analysis is relevant to this appeal because “the same standard of objective reasonableness” that the Court applied in Leon defines the qualified immunity accorded an officer who obtained or relied upon an allegedly invalid warrant. Messerschmidt, 132 S. Ct. at 1245 n.1; Malley v. Briggs, 475 U.S. 335, 344, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986) (“[W]e hold that the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon . . . defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.”). The Groh Court held the agent was not entitled to qualified immunity because no reasonable officer could believe in the warrant’s validity since it did not state with particularity the items to be seized. 540 U.S. at 564. The Court emphasized that this particularity requirement was well-established, and went on to emphasize that “even a cursory reading of the warrant in this case—perhaps just a glance—would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.” 540 U.S. at 564.
The same is true in this case because the warrant also reveals a glaring deficiency—the omission of any explanation why Powell’s blood, hair, prints, or cheek cells could provide evidence about the police-car theft. And even a cursory glance at the warrant and supporting affidavit would reveal this disconnect. See Messerschmidt, 132 S. Ct. at 1252 (Kagan, J., concurring in part and dissenting in part) (“The warrant application thus had a hole at its very center: It lacked any explanation of how gang items would (or even might) provide evidence of the domestic assault the police were investigating.”).
This omission by itself might be enough to conclude no reasonable officer could believe the warrant was valid. But, in reviewing the totality of the affidavit, there is more. We must also examine the deficiencies with the anonymous tips summarized in the affidavit.
Numerous federal courts have addressed with varying results whether the good-faith exception should apply when a warrant that relies in part on anonymous tips is later found invalid. See, e.g., United States v. Danhauer, 229 F.3d 1002 (10th Cir. 2000) (ap plying good-faith exception); United States v. Helton, 314 F.3d 812 (6th Cir. 2003) (declining to apply good-faith exception). We must emphasize these inquiries are intensely fact-oriented and are difficult to apply in other circumstances, hut one theme persists—the degree to which officers attempted to corroborate the tips.
In Danhauer, the court noted “the absence of information establishing the informant’s reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, [citation omitted,] particularly when the officer takes steps to investigate the informant’s allegation.” (Emphasis added.) 229 F.3d at 1007. The court explained the detective both obtained and executed the search warrant and reasonably believed his investigation sufficiently linked the manufacture of methamphetamine to the residence and the detective’s affidavit contained more than conclusory statements based on the informant’s allegation. 229 F.3d at 1007. Ultimately, the court applied the good-faith exception.
In Helton, the court noted the statements in tire affidavit “originated from an unknown, untested source; they were a product of multiple layers of hearsay; they were sparse in relevant detail; and, most importantly, they were not corroborated in any meaningful manner.” 314 F.3d at 824. The Helton court concluded diere was little, if any, significance attached to the anonymous statements and no reasonable officer would have believed the remaining allegations in the affidavit would support probable cause. 314 F.3d at 824-25.
In its analysis as to whether the Leon bare-bones exception applied, the Helton court held there were two relevant inquiries. The first was whedier a reasonable officer would believe that the anonymous tipster’s statements, without more corroboration, were trustworthy and reliable. The second was whedier a reasonable officer would believe the affidavit established probable cause. The court held no reasonable officer would afford much weight to the anonymous tipster’s statements because they: (1) originated from an unknown, untested source; (2) were the product of multiple layers of hearsay; (3) were sparse in relevant detail; and (4) were not corroborated in any meaningful manner. It also held that with out corroboration, any reasonable officer would know that the affidavit “came well short of establishing probable cause.” 314 F.3d at 825.
In this case, a reasonable officer would not believe the three anonymous tips were trustworthy and reliable without some corroboration. The tips provided by the anonymous caller (or callers) about Powell were simply conclusory allegations that he was involved in the police-car theft. There was no discussion of the first two anonymous callers’ bases of knowledge. And although the third caller claimed to have learned about the theft directly from Powell, the claim remains at best questionable because there is nothing to indicate that caller even knew Powell. Moreover, there was no attempt at meaningful corroboration. For example, the second caller claimed another individual drove the car, but there is nothing demonstrating an attempt to corroborate that Powell and that individual were together the night of the crime.
Knowing the tips were not sufficient, a reasonably well-trained officer would also not believe the affidavit established probable cause. There is the obvious omission of any explanation of how Powell’s biological material Would aid in apprehending or prosecuting those who stole the police car. In addition, the affidavit relies primarily on anonymous, unverified, and uncorroborated tips containing no indicia of reliability to connect Powell to the theft. And based upon our binding judicial precedent on probable cause, these types of anonymous tips have little value. See State v. Hensley, 298 Kan. 422, 431, 313 P.3d 814 (2013) (under case facts the unidentified informant’s tip was entitled to no weight); Hicks, 282 Kan. at 614-15 (detailing how and why information from “concerned citizens” is to be tested for veracity and basis of knowledge);
Nor can the conversation between the detective and Powell create the indicia of probable Cause necessary to apply the good-faith exception to the exclusionary rule. The only evidence from this exchange that could be Used to establish probable cause is that Powell was able to remember the date the car theft occurred and that Powell changed his story about how he learned of the theft. But as the prosecutor noted during the suppression hearing, the stolen car was a big event in Greenwood County, and the date of the theft was tied to a significant event in Powell’s life—his last night on bond supervision. Additionally, Powell’s confusion regarding how he learned about the theft is not particularly probative, especially since Powell’s wife corroborated his original statement that he read about the theft in the newspaper. In other words, Powell’s answers during the interview were at best slightly suspicious but do not provide sufficient indicia of probable cause necessary for a reasonably well-trained officer to believe the warrant was valid.
Finally, we must address whether exercising the exclusionaiy rule would serve its stated purpose. The United States Supreme Court has repeatedly indicated that the sole purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011); see Karson, 297 Kan. at 639 (noting the purpose of the exclusionary rule is to deter future violations by the State). We find that purpose served in this case. Refusing to apply the good-faith exception here will deter future Fourth Amendment violations because: (1) It will signal to police officers that they cannot ignore well-settled law regarding anonymous tips, and (2) officers will be motivated not to prematurely pursue search warrants. See Malley, 475 U.S. at 343.
Accordingly, we hold the district court erred in applying the Leon good-faith exception to the exclusionary rule.
K.S.A. 22-2502
Powell argues K.S.A. 22-2502 does not authorize a search warrant for blood, hair, fingerprints, or cheek cells. K.S.A. 22-2502(a)(1) provides in pertinent part that a search warrant maybe issued for the search or seizure of
“[a]ny things which have been used in the commission of a crime, or any contraband or any property which constitutes or may be considered a part of the evidence, fruits or instrumentalities of a crime under the laws of this state, any other state or of the United States.”
Although Powell’s statutory argument raises an issue of first impression for this court, we will not reach it because we have reversed on other grounds and express no opinion on the panel’s conclusion that the statute implicitly authorizes court-ordered seizures of blood, hair, fingerprints, or cheek cells. Nevertheless, the legislature may wish to consider whether the statute’s plain language appropriately addresses legislative intent.
We reverse Powell’s convictions for felony theft and felony criminal damage to property because the district court improperly applied the Leon good-faith exception. 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
Johnson, J.:
This is a consolidated appeal of two cases in which Gregory A. O’Connor pled nolo contendere to certain charges. He seeks review of the Court of Appeals decision to affirm the district court’s classification of a prior Florida juvenile adjudication for third-degree burglary as a person felony for purposes of calculating his Kansas criminal history score. That designation increased the length of the aggregate sentence he is appealing here. Finding that the district court and Court of Appeals failed to use the specific crime for which O’Connor was actually adjudicated in Florida and instead impermissibly considered alleged facts that were not proved in the Florida adjudication, we vacate the sentences and remand to tire district court for resentencing.
Factual and Procedural Overview
O’Connor entered nolo contendere pleas to aggravated robbeiy and possession of marijuana in case No. 09CR569 (No. 105,319) and to burglary and contributing to a child’s misconduct in case No. 09CR729 (No. 105,320). At sentencing, O’Connor objected to that portion of his presentence investigation report (PSI) &at classified a prior Florida juvenile adjudication as a person felony rather than a nonperson felony. The district court overruled O’Connor’s objection, finding the person felony designation to be proper under Kansas law. That determination led to a criminal histoiy score of B in the first case, and then adding that conviction to the calculation made the criminal history score for the second case an A. The court ran the felony sentences concurrently, resulting in a controlling term of 144 months’ imprisonment.
O’Connor filed a timely appeal to the Court of Appeals, which affirmed the district court’s determination that the prior Florida juvenile adjudication was a person felony. State v. O’Connor, No. 105,319, 2012 WL 686801, at *5 (Kan. App. 2012) (unpublished opinion). The panel noted that, under K.S.A. 21-4711(e), the State of Kansas classifies an out-of-state crime as person or nonperson by looking at comparable Kansas crimes. Here, the comparable Kansas crime that would permit O’Connor s Florida burglary adjudication to be classified as a person felony would be burglary of a dwelling, i.e., the structure O’Connor burglarized in Florida had to be a dwelling. 2012 WL 686801, at *3-4 (citing K.S.A. 21-3715). The panel acknowledged that O’Connor’s Florida plea agreement did not state that he burglarized a dwelling, but to the contraiy, “his juvenile adjudication was for third-degree burglary, which would not satisfy Kansas’ ‘dwelling’ requirement.” 2012 WL 686801, at *5.
Nevertheless, citing to prior Court of Appeals decisions, the panel declared that a Kansas sentencing court “may use underlying facts to determine if a burglary should be classified as a person or nonperson felony for criminal history purposes.” 2012 WL 686801, at *3. Then, the panel opined that, since the State’s burden was only a preponderance of the evidence, it “merely needed to prove that it was more probably true than not true that O’Connor’s prior burglaiy was of a dwelling.” 2012 WL 686801, at *4. The panel found drat the State had met that burden of proof through two pieces of evidence—a Florida police report and a letter from O’Connor’s mother—both of which contained allegations that O’Connor had broken into his mother’s bedroom to steal money from her. 2012 WL 686801, at *4. Consequently, the panel held “these underlying facts support the conclusion that tíre trial court properly classified O’Connor’s out-of-state juvenile adjudication as a person felony.” 2012 WL 686801, at *4.
This court granted O’Connor’s timely filed petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).
Classification of Out-of-State Juvenile Adjudication
The sole issue presented in this review is whether the Court of Appeals erred in affirming the district court’s classification of O’Connor’s prior Florida juvenile adjudication for burglary as a person felony for purposes of computing his criminal history score under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Although the Court of Appeals looked at the suffi ciency of the evidence to support the district court’s factual finding that O’Connor had burglarized a dwelling in Florida, we confine our review to the question of whether the district court correctly applied the KSGA.
Standard of Review
“ ‘Resolution of a criminal history sentencing issue involves the interpretation of various provisions of the sentencing guidelines. The interpretation of statutes is a question of law, and, thus, the scope of review is unlimited.’ State v. Taylor, 262 Kan. 471, Syl. ¶ 4, 939 P.2d 904 (1997).” State v. Vandervort, 276 Kan. 164, 173, 72 P.3d 925 (2003); see also State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009) (Whether a district court has correctly interpreted and applied the provisions of the KSGA is a question of law subject to de novo review.).
Analysis
We discern that the question presented involves an interpretation of three statutes: (1) K.S.A. 21-4711(e), a part of the KSGA; (2) K.S.A. 21-3715, the Kansas burglary statute; and (3) Fla. Stat. § 810.02 (2000), the Florida burglary statute. Of course, the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained from the plain and unambiguous language of the statute. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Moreover, in the criminal context, “ ‘[t]he general rule is that a criminal statute must be strictly construed in favor of the accused.’ ” Vandervoort, 276 Kan. at 173 (quoting Taylor, 262 Kan. 471, Syl. ¶ 5).
We begin with K.S.A. 21-4711(e), which governs tire effect of prior out-of-state crimes on a Kansas criminal history score. That statute provides, in relevant part:
“Out-of-state convictions and juvenile adjudications will be used in classifying die offender’s criminal histoiy. . . . The state of Kansas shall classify die crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime. . . . The facts required to classify out-of-state adult convictions and juvenile adjudi cations must be established by the state by a preponderance of the evidence.” K.S.A. 21-4711(e).
The first plain and unambiguous statutory directive is that “[o]ut-of-state convictions and juvenile adjudications will be used” in the criminal history calculus. (Emphasis added.) K.S.A. 21-4711(e). The provision does not say that the crime initially contained in the out-of-state charging document will be used. It does not say that a crime which could have been supported by the victim’s allegations will be used. It does not say that the crime deemed most appropriate under the circumstances by one or more Kansas judges will be used. It plainly means that O’Connor’s Kansas criminal history score is to be calculated based upon the Florida crime for which he was actually adjudicated in that state, regardless of any other crime that might have been supported by factual allegations. Here, no one disputes that the out-of-state juvenile adjudication was for die crime of third-degree burglary.
The next directive in the classification provision is to refer to comparable offenses. Obviously, the comparable Kansas offense for a Florida burglary would be our version of burglary. In 2000, Kansas defined burglary as
“knowingly and without authority entering into or remaining within any:
“(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;
“(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
“(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein.” (Emphasis added.) K.S.A. 21-3715.
K.S.A. 21-3715 classifies subsection (a) burglaries, i.e., dwelling burglaries, as person felonies, whereas burglaries under subsections (b) and (c), i.e., nondwelling burglaries, are classified as nonperson felonies. Quite simply, “[i]f the building is a dwelling, the crime is classified as a person felony; if not, it is a nonperson felony.” State v. Roose, 41 Kan. App. 2d 435, 439, 203 P.3d 18 (2009).
In 2000, at the age of 13, O’Connor was arrested and charged with burglary of a residence and theft, but he entered into a plea agreement whereby he pled guilty to third-degree burglary in exchange for a dismissal of the theft charge. At that time, the Florida burglary statute provided:
“810.02 Burglary.—
“(1) ‘Burglary’ means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.
“(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in § 775.082, § 775.083, or § 775.084, if, in the course of committing the offense, the offender:
(a) Malees an assault or battery upon any person; or
(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or
(c) Enters an occupied or unoccupied dwelling or structure, and:
1. Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damages the dwelling or structure; or
2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.
“(3) Burglary is a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084, if, in the course of committing tire offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;
(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;
(c) Structure, and there is another person in the structure at dre time the offender enters or remains; or
(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains.
“(4) Burglary is a felony of the third degree, punishable as provided in § 775.082, § 775.083, or § 775.084, if, in the course of committing the offense, the offender does not make an assault or batteiy and is not and does not become armed wfth a dangerous weapon or explosive, and the offender enters or remains in a:
(a) Structure, and there is not another person in the structure at the time the offender enters or remains; or
(b) Conveyance, and there is not another person in the conveyance at the time the offender enters or remains.”
As one can see, the Florida statute did not utilize a person/nonperson classification, but the statute clearly differentiated between the burglary of a dwelling and tire burglary of a nondwelling structure. Pursuant to statutory definition, first- and second-degree burglary under Fla. Stat. § 810.02(2) and (3) (2000) could have involved entry into a dwelling. But the crime for which O’Connor was adjudicated—third-degree burglary—clearly applied only to nondwelling structures. See Fla. Stat. § 810.02(4) (2000); see also State v. Bennett, 565 So. 2d 803, 804 (Fla. Dist. App. 1990) (order reducing burglary charges against defendant from “second degree [burglary of a dwelling] to a third degree felony [burglary of a structure]”); Dakes v. State, 545 So. 2d 939, 940 (Fla. Dist. App. 1989) (“burglary of an unoccupied structure which is not a dwelling is a felony of the third degree”).
In other words, entry into a dwelling was not a necessary element the State of Florida had to prove to adjudicate O’Connor for third-degree burglary. To the contrary, the fact that O’Connor was adjudicated for a third-degree burglary in Florida affirmatively negates the fact that he entered a dwelling, as a matter of law, notwithstanding the factual allegations that were made prior to adjudication.
Therefore, it is crystal clear and beyond debate that the crime for which O’Connor was actually adjudicated in Florida—third-degree burglary—is closely comparable to a nonperson burglary of a nondwelling in Kansas; and that the adjudicated Florida crime is missing the defining legal element—entry into a dwelling—which would be needed to make it comparable to this state’s person burglary. The analysis should have ended here with the Florida adjudication being scored as a nonperson felony.
But the Court of Appeals was apparently misdirected by that portion of K.S.A. 21-4711(e) which states that “[t]he facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.” The panel did not restrict the Kansas factfinding to the crime for which O’Connor was adjudicated in Florida. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 247-48, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998) (fact of prior conviction need not be proved to jury beyond reasonable doubt). Rather, the panel allowed the State of Kansas to establish by a preponderance of the evidence the additional fact of an entry into a dwelling, which fact never rose above a mere allegation in the Florida proceeding. O’Connor never admitted that fact, and that fact was not an element of the crime for which he was adjudicated. In other words, as a practical matter, the panel, through judicial factfinding by a preponderance of the evidence, adjudicated O’Connor for a higher degree of burglary than the Florida court had adjudicated him beyond a reasonable doubt.
An indication that the panel missed the mark is its declaration drat “O’Connor did not dispute these underlying facts [indicating die structure was a dwelling] when he entered into his plea agreement.” O’Connor, 2012 WL 686801, at *4. But as we have suggested, O’Connor had no reason to address the allegations that he burglarized a dwelling because he was in the process of pleading to a crime that specifically excluded dwellings from its definition. Cf. Descamps v. United States, 570 U.S. _, 133 S. Ct. 2276, 2289, 186 L. Ed. 2d 438 (2013) (improper for district court to enhance defendant’s sentence based on his supposed acquiescence to pros-ecutorial statements during plea agreement proceedings). Moreover, the prior Court of Appeals decisions relied upon by the panel are not on point because they involved a determination of the underlying facts which were required to obtain the out-of-state conviction, rather than additional facts which could have led to a conviction for another crime. That precedent might have been germane in this case if O’Connor had been adjudicated in Florida for first- or second-degree burglaiy, the definitions for which do not conclusively establish whether a dwelling was involved. But the Florida crime of third-degree burglary is inapplicable to dwellings, making it directly and unequivocally comparable to a non-dwelling burglary under Kansas law. Consequently, O’Connor’s adjudication should have been classified as a nonperson felony.
Having resolved the question as a matter of statutory interpretation, we need not set forth a lengthy analysis of the parties’ dispute about the applicability or effect of the United States Supreme Court decision in Descamps. Suffice it to say that Descamps reit erated the concept that judicial factfinding that increases the maximum sentence “raisejs] serious Sixth Amendment concerns if it [goes] beyond merely identifying a prior conviction.” 133 S. Ct. at 2288. Here, the lower courts’ judicial factfinding went way beyond simply identifying the prior adjudication as a third-degree burglary or identifying the facts necessaiy to support third-degree burglary. Instead, the Kansas courts used judicial factfinding to elevate the degree of burglary above that for which O’Connor was actually adjudicated in Florida and thereby used such factfinding to increase his maximum sentence.
- O’Connor’s sentence is vacated, and the matter is remanded to the district court for resentencing with á criminal history score that reflects the classification of the Florida burglary adjudication as a nonperson felony.
Judgment of the district court is reversed, sentence is vacated, and case is remanded with directions.
Moritz, J., not participating. | [
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The opinion of the court was delivered by
Biles, j.:
Sherwin Taylor appeals the summary denial of his pro se motion to correct an illegal sentence filed 23 years after sentencing. He claims a speedy trial violation deprived the sentencing court of jurisdiction to impose sentence, and that the sentencing court improperly ordered his sentences to run consecutive to sentences not yet imposed in another case. He also claims the district court erred by summarily denying the motion, arguing he was entitled to appointed counsel under the statute governing motions to correct an illegal sentence, K.S.A. 22-3504.
Taylor s speedy trial claim cannot be raised in a motion to correct an illegal sentence because it challenges his convictions, not the sentences imposed. See State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
But the consecutive sentencing claim is more complicated. A sentence cannot be ordered to run consecutive to a sentence not yet imposed. State v. Reed, 237 Kan. 685, 690,703 P.2d 756 (1985). In that respect, the sentencing court erred by running the sentences in this case consecutive to sentences not yet imposed in another case pending against Taylor, 87 CR 412. K.S.A. 1987 Supp. 21-4608(4) required consecutive sentences in this case if Taylor committed the crimes while on release in 87 CR 412. We cannot determine from the record whether Taylor was on release at the time he committed these offenses.
We remand for the district court to determine whether Taylor was on release in 87 CR 412 when the crimes in this case were committed and whether K.S.A. 1987 Supp. 21-4608(4) applied. And based on that determination, the district court may have to conduct further proceedings as may be warranted, such as resent-encing. Because of our disposition, it is unnecessary to address his appointment of counsel claim, which is raised for the first time on appeal.
Factual and Procedural Background
Taylor was convicted of aggravated robbery and first-degree murder in this case, designated in the district court as case No. 87 CR 1120, for conduct occurring on or around July 15, 1987. On March 31, 1988, he was sentenced to “not less than fifteen (15) years to Life” for aggravated robbery and “Life” for murder. The sentencing journal entry states that the sentences were ordered to run consecutive to each other and “to the sentence imposed against the Defendant in Case No. 87 CR 412.” (Emphasis added.)
Taylor’s direct appeal was unsuccessful. State v. Taylor, No. 62,629, 1989 WL 151266 (Kan. 1989) (unpublished opinion). He has filed numerous postconviction motions without success. See Taylor v. McKune, No. 99-3182, 2002 WL 398740, at *1 (D. Kan. 2002) (unpublished opinion) (noting it was Taylor s fourth habeas corpus motion).
Taylor filed this pro se motion to correct an illegal sentence in 2011, over 23 years after he w'as sentenced. He claimed a speedy trial violation and that the sentencing court lacked authority to order his sentences to run consecutive to the sentences imposed in 87 CR 412. Taylor attached the journal entry of judgment from 87 CR 412 to his motion. It establishes he pleaded guilty to two felonies on August 27, 1987, i.e., after the aggravated robbery and murder were committed in this case. It also establishes Taylor was sentenced in 87 CR 412 on April 5, 1988, which was after the sentences were imposed in this case.
The State responded that Taylor's speedy trial claim is a collateral attack on his convictions that cannot be raised in a motion to correct an illegal sentence. The State also argued the sentencing court was required to order consecutive sentences under K.S.A. 1987 Supp. 21-4608(4) because the crimes in this case were committed while Taylor was on release for two felonies in 87 CR 412. The district court summarily denied Taylor’s motion in a brief journal entry stating: “[Court] adopts State’s reply as its findings of fact and conclusions of law.” Taylor appealed.
This court’s jurisdiction arises under K.S.A. 2011 Supp. 22-3601(b)(3) (life sentence imposed); see State v. Pennington, 288 Kan. 599, 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal).
Summary Denial of the Motion
Taylor argues the district court erred by summarily denying his motion to correct an illegal sentence.
Standard of Review
This court reviews the summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504 de novo because it has the same access as the district court to the motions, records, and files. Trotter, 296 Kan. at 901. This court, like the district court, must determine whether those documents conclusively show the defendant is not entitled to relief. 296 Kan. at 901-02. K.S.A. 22-3504 applies only if the sentence is illegal.
Whether a sentence is illegal is a question of law over which this court has unlimited review. 296 Kan. at 902. An “illegal sentence” is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutoiy provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at 902.
Speedy Trial Claim
Taylor contends his speedy trial claim places his consecutive sentences within the first category—that the court lacked jurisdiction to impose them—because he was not tried within 180 days after arraignment. He acknowledges his right to a speedy trial may be waived and that his counsel requested several continuances, but he argues the record does not demonstrate he personally waived his right to a speedy trial.
The State correctly argues Taylor’s speedy trial violation claim cannot be raised in a motion to correct an illegal sentence because it is a challenge to his convictions, not his sentences. This is evident because the proper remedy for a speedy trial violation is to reverse the convictions—not impose a different sentence. See State v. Adams, 283 Kan. 365, 371, 153 P.3d 512 (2007) (reversing convictions based on speedy trial violation).
It is well established that K.S.A. 22-3504 is a vehicle to correct an illegal sentence and not a mechanism to reverse a conviction. Trotter, 296 Kan. at 902; State v. Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007). This court has repeatedly applied this principle to reject illegal sentence appeals premised on defective complaints because a defective complaint goes to the lawfulness of the conviction, not the sentence. See Trotter, 296 Kan. at 904; State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). Moreover, the Court of Appeals has addressed the precise speedy trial issue advanced by Taylor and held that a motion to correct an illegal sen tence may not allege such violation. See Trass v. State, No. 104,039, 2011 WL 1814917, at *2 (Kan. App. 2011) (unpublished opinion). The district court did not err by summarily denying Taylor s speedy trial claim.
Consecutive Sentencing
Taylor s second argument is that his sentences are illegal because they were ordered to run consecutive to the sentences in 87 CR 412, which had not been imposed yet. On appeal, the State’s first argument is that Taylor failed to meet his burden to designate the record because the record does not reflect whether Taylor’s account of the timing is accurate.
The State is correct that Taylor bears the burden of proof. See State v. Neal, 292 Kan. 625, 633, 258 P.3d 365 (2011). But the State overlooks that Taylor attached the journal entries from this case and case No. 87 CR 412 to his motion. These entries establish that Taylor was sentenced in this case on March 31, 1988, and sentenced in 87 CR 412 a few days later on April 5. In fact, die State conceded to the district court that “[t]he sentencing in 87 CR 1120 occurred five days before the sentence was imposed in 87 CR 412.”
Turning to the merits, Taylor cites Reed, 237 Kan. at 690, as establishing that a sentence cannot be ordered to run consecutive to a sentence not yet entered. In Reed, the defendant was charged in one case. While out on bond, Reed committed more crimes and was charged in a subsequent case. The trial court sentenced Reed in the first case, but it ordered his sentences to run consecutive to the sentences not yet imposed in the subsequent case. Reed appealed. The court held:
“[I]n order for a trial court to impose a consecutive sentence, there must be a prior sentence in existence at the time of the subsequent sentencing. A trial court has no authority to direct a sentence to run consecutively to a nonexisting sentence which might thereafter be imposed in a pending case.” (Emphasis added.) 237 Kan. at 690.
Consistent with Reed, we hold that the sentencing court erred by running Taylor’s sentences in this case consecutive to his sentences in case No. 87 CR 412 because those sentences did not yet exist. But the case does not end here. We must continue the analysis because the State also argues Taylor s sentences are not illegal because the district court was statutorily required to enter consecutive sentences under K.S.A. 1987 Supp. 21-4608(4), which states:
“Any person who is convicted and sentenced for a crime committed while on release for a felony pursuant to article 28 of chapter 22 of the Kansas Statutes Annotated shall serve tire sentence consecutively to the term or terms under which the person was released.”
Application of K.S.A. 1987 Supp. 21-4608(4) turns on whether Taylor was on release for a felony in case No. 87 CR 412 when he committed aggravated robbery and first-degree murder in this case. The record establishes Taylor committed the crimes in 87 CR 1120 on July 15, 1987, and pleaded guilty to the two felonies in case No. 87 CR 412 about a month and a half later, on August 27, 1987.
Given the limited time between these events, it is highly probable Taylor was “on release for a felony” in 87 CR 412 at the time he committed the crimes in this case, but the record is not conclusive about this. As a result, summary denial was improper.
We remand Taylor’s case for tire district court to determine whether Taylor was on release in 87 CR 412 when he committed the crimes in this case and whether K.S.A. 1987 Supp. 21-4608(4) applied. Further proceedings may be required after that determination.
Affirmed in part, reversed in part, and remanded with directions. | [
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The opinion of the court was delivered by
Rosen, J.:
Frederick W. Fritz IV appeals from the summary denial of his motion to withdraw his plea of no contest to charges of felony murder, attempted first-degree murder, aggravated rob-beiy, and attempted aggravated robbeiy.
The State charged Fritz with one count of premeditated murder, three counts of attempted first-degree murder, one count of aggravated robbeiy, and four counts of attempted aggravated robbery. On August 16, 2010, he entered a plea of no contest to one count of felony murder, three counts of attempted first-degree murder, one count of aggravated robbery, and four counts of attempted aggravated robbeiy. On September 30, 2010, the district court sentenced him to a term of life imprisonment plus 652 months.
On December 8, 2010, Fritz docketed his appeal from his sentence. On January 21, 2011, he filed a pro se motion to withdraw his plea, alleging ineffective assistance of counsel. Then, on March 14, 2011, he withdrew his motion because his case was pending on appeal. After the parties submitted their appellate briefs but before the case was set on a docket, on December 16, 2011, this court issued an order summarily vacating the sentence and remanding the case to the district court for resentencing.
On March 9,2012, the district court resentenced Fritz, imposing a hard 20 life sentence plus 330 months. Also on March 9, 2012, new counsel filed a renewed motion in district court seeking leave to withdraw the no contest plea. After hearing brief argument from the parties, the district court denied the motion without conducting an evidentiary hearing. Fritz took a timely appeal to this court.
A district court may, for good cause and at its discretion, allow a defendant to withdraw a plea of guilty or no contest at any time before sentence is adjudged. K.S.A. 2013 Supp. 22-3210(d)(1). In determining whether a defendant has shown good cause to withdraw a plea, a district court should consider three factors, sometimes called the Edgar factors, after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understanding^ made. State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010). These factors should not, however, be applied mechanically and to the exclusion of other factors. State v. Garcia, 295 Kan. 53, 63, 283 P.3d 165 (2012).
After the district court pronounces sentence, it may allow a defendant to withdraw a plea in order “[t]o correct manifest injustice.” K.S.A. 2013 Supp. 22-3210(d)(2).
An appellate court generally reviews the denial of a motion to withdraw a plea for abuse of discretion. The defendant has the burden of proving abuse of discretion. State v. Macias-Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). When a motion to withdraw a plea is summarily denied without argument and additional evidence, this court applies the same procedures and standards of review as in cases arising out of K.S.A. 60-1507. This court exercises de novo review because it has the same access to the motion, records, and files as the district court, and it determines whether the motion, records, and files conclusively show that the defendant is entitled to no relief. State v. Moses, 296 Kan. 1126, 1127-28, 297 P.3d 1174 (2013).
The State takes the position that the district court lacked jurisdiction over Fritz’ motion because tire mandate of this court limited the scope of the district court’s authority to resentencing. The State essentially advocates penalizing defendants who successfully appeal from their sentences by preventing them from fifing motions to withdraw their guilty pleas after they win their appeals. K.S.A. 2013 Supp. 22-3210 permits defendants to withdraw their pleas “at any time before sentence is adjudged” and “within one year” of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” K.S.A. 2013 Supp. 22-3210(d), (e)(1).
Fritz may have been precluded from fifing his motion to withdraw his plea while his conviction and sentence were on appeal. See, e.g., State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994); State v. Dedman, 230 Kan. 793, 796-97, 640 P.2d 1266 (1982) (district court loses jurisdiction over case after direct appeal docketed). If, as the State contends, the district court also did not have jurisdiction over the motion after Fritz won his appeal, then his time to file a motion to withdraw his plea and receive relief from the district court would be limited to the approximately 9 weeks between the date of his original sentence and the docketing of his original appeal. Such a short time would conflict with the statutory language plainly giving him 1 year to file his motion to withdraw his plea. Furthermore, if the district court failed to act on his motion before he docketed the appeal, he would presumably be forever barred from fifing such a motion under the State’s theory. Such results are inconsistent both with the statutory scheme and with fundamental fairness. We therefore decline to adopt the State’s theory that a defendant may not move to withdraw a guilty plea after a case is remanded from the appellate courts for resent-encing.
Fritz asserts several grounds as a basis for withdrawing his plea: First, he was not sleeping well while in jail, which left him vulnerable to pressure from his attorney, who urged him to enter into the plea and who misled him as to the sentence that he would receive. In addition, he believed there were defenses to some or all of the charges against him. In his appellate brief, Fritz also raises arguments based on his original motion to withdraw his plea. That motion, however, was voluntarily withdrawn and is not properly before this court.
A hearing on a motion to withdraw a plea of guilty or no contest is limited to those instances in which the defendant’s motion raises substantial issues of fact or law. When the files and records conclusively show that the defendant is entitled to no relief the motion must be denied. State v. Jackson, 255 Kan. 455, 459, 874 P.2d 1138 (1994). Mere conclusions of the defendant are insufficient to raise a substantial issue of fact when no factual basis is alleged or appears in the record. 255 Kan. at 463; see also Burns v. State, 215 Kan. 497, 499-500, 524 P.2d 737 (1974) (burden of establishing that defendant was misled by his or her attorney lies with the defendant; mere conclusory contentions with no evidentiary support insufficient basis for relief from conviction).
In Jackson, the defendant’s asserted basis for being allowed to withdraw his plea was “that my attorney corced [sic] me into plea-ing [sic] guilty.” 255 Kan. at 456. He also stated that he was “[c]ompeled [sic] to plea” and “[a]Iso new evidence found in the case.” 255 Kan. at 456. This court determined that these allegations were mere conclusions and that they did not require an evidentiary hearing. 255 Kan. at 463.
The pleading in the present case closely resembles that in Jackson. Aside from stating that he had not been sleeping well, Fritz asserted no specific facts indicating that he involuntarily or unknowingly entered into the plea agreement. The record on appeal includes the plea hearing and shows that the district court went over the plea agreement in detail, including the positions of the State and the defense regarding sentencing. The court also inquired whether Fritz was satisfied with the services provided by his attorney, whether he had any complaints about the manner in which he had been counseled, and whether he had been subject to any threats or promises beyond the specific language of the plea agreement. Fritz explicitly stated that he had no complaints and had not been subject to threats or promises.
Fritz directs this court to Bellamy v. State, 285 Kan. 346, 172 P.3d 10 (2007), in which the court reversed the summary denial of a K.S.A. 60-1507 motion alleging ineffective assistance of counsel. In Bellamy, the movant asserted specific advice that his trial counsel gave him, advice that was legally incorrect. In the present case, Fritz makes no such specific assertion. In his original, and subsequently withdrawn, motion he asserted that his attorneys had not informed him of “a legal psychological defense.” Such a claim is vague and does not assert sufficient grounds to justify a full evi-dentiary hearing.
The district court elected not to choose between the good-cause and the manifest-injustice standards. Instead, it ruled that Fritz’ motion failed under either standard. We reach the same conclusion. Although the conclusory allegations of the motion correspond with the Edgar factors (incompetent counsel, coercion by counsel, and plea not understandingly made), they lack the substance that Jackson requires. Under the facts of this case, we cannot construe the district court’s decision to constitute an abuse of discretion.
Affirmed. | [
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In a letter signed on July 9, 2014, addressed to tire Clerk of the Appellate Courts, respondent David C. Murdick, 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 in the state of Kansas was temporarily suspended in accordance with Supreme Court Rule 203(c) (2013 Kan. Ct. R. Annot. 300) as a result of the respondent’s conviction of involuntary manslaughter, a class B felony, in the state of Missouri. This court was provided a certified copy of judgment entered in the Circuit Court of Jackson County, Missouri, on March 17, 2014.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that David C. Murdick 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 Therefore Ordered that the Clerk of the Appellate Courts strike the name of David C. Murdick 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 (2013 Kan. Ct. R. Annot. 406). | [
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The opinion of the court was delivered by
Moritz, J.:
This case began innocuously enough when Johnson County Sheriffs Department Master Deputy Michael Maurer cracked a department vehicle’s windshield with a binder while attempting to shoo a bothersome horsefly. While the horsefly’s life may have ended, the long and tortuous factual and procedural his-toiy of this case had just begun.
Maurer initially reported the incident by writing “Crack in windshield—rock” on a yellow sticky note and leaving the note for his commanding officer, Sergeant Joe Greenwood. The next morning, Maurer briefly spoke with Greenwood and advised him the crack on the windshield had “spiderwebbed” as the result of a rock chip. But another deputy who witnessed tire horsefly incident soon reported that Maurer caused tire damage when he hit the windshield with tire binder. Maurer eventually responded to questions regarding the incident in two separate written reports and disclosed additional facts regarding his role in damaging the windshield.
After an internal investigation and hearing before an internal review board, Johnson County Sheriff Frank Denning terminated Maurer’s employment for violating the department’s professional standard on truthfulness. In doing so, Denning adopted the position of the review board recommending termination based on Maurer’s false statements in the sticky note and his verbal statement to his commanding officer indicating the windshield damage was caused by a rock rather than Maurer’s own actions.
Maurer appealed to the Johnson County Sheriffs Civil Service Board (CSB), and the CSB reversed Denning’s decision and ordered Maurer’s reinstatement. Denning appealed to the district court, and the district court reversed the CSB’s decision and remanded the case to the CSB for further proceedings. Maurer ap pealed the district court’s decision to the Court of Appeals, which dismissed the appeal for lack of jurisdiction, reasoning the district court’s decision to remand the case to the CSB for further proceedings was not a final order. On remand, the CSB reversed itself, upholding Denning’s decision to terminate Maurer. Maurer appealed to the district court, and the district court affirmed the CSB’s second decision. Maurer appealed to the Court of Appeals, and the panel majority affirmed both district court decisions, ultimately upholding Maurer’s termination. Judge Leben dissented and would have affirmed the CSB’s first decision upholding Maurer’s reinstatement. Denning v. Johnson County Sheriff's Civil Service Board, 46 Kan. App. 2d 688, 266 P.3d 557 (2011), rev. granted 294 Kan. 943 (2012).
We granted Maurer’s petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b). We affirm the Court of Appeals’ decision affirming the district court’s decision to vacate the CSB’s first decision, and thus we ultimately uphold Denning’s decision to terminate Maurer’s employment.
Discussion
Because the parties are familiar with the underlying facts and procedural history of this case and the Court of Appeals fully discussed both in Denning, 46 Kan. App. 2d 688, we will not repeat them here. Instead, we will proceed to consider the two issues presented in Maurer’s petition for review: (1) whether the CSB exceeded the scope of its authority in rendering its first decision, and (2) whether the CSB’s first decision was substantially supported by the evidence. To provide context for our analysis of these issues, we begin with a general overview of the roles of a county sheriff and a sheriff s civil service board and the relevant judicial review process.
The Roles of the County Sheriff and a Sheriff s Civil Service Board
K.S.A. 19-805(a) permits a county sheriff to “appoint, promote, demote and dismiss additional deputies and assistants necessary to carry out the duties of the office, for whose official acts the sheriff is responsible.” But the sheriff s powers are not absolute. Instead, those powers are subject to some oversight by the board of county commissioners regarding personnel policies and procedures and pay plans and are subject to “any applicable bargaining agreements or civil service system.” K.S.A. 19-805(d).
Counties designated as “urban area” counties and counties having certain populations are required by statute to establish a sheriffs civil service system. K.S.A. 19-4303 et seq. In these counties, the boards of county commissioners “shall, by resolution, create a civil service board.” K.S.A. 19-4304. The duties of a sheriff s civil service board are outlined in K.S.A. 19-4311 and include the duty to “[cjonduct hearings and hear complaints by or against personnel for the purpose of demotion, suspensions or removal of personnel.” K.S.A. 19-4311(h).
Regarding the dismissal or suspension of any permanent employee covered under a sheriffs civil service system, K.S.A. 19-4327 provides, in relevant part:
“(a) The sheriff may dismiss any permanent employee when [the sheriff] considers that the good of the service will be served thereby, and for disciplinary purposes may suspend without pay a permanent classified employee for a period not to exceed thirty (30) days, but no permanent employee shall be dismissed for political, religious or racial reasons.
A permanent employee can seek review of his or her dismissal by requesting a hearing before the applicable sheriff s civil service board. K.S.A. 19-4327(b). A sheriffs civil service board is authorized to receive evidence at the hearing and to determine the “reasonableness” of the sheriffs personnel decision. See K.S.A. 19-4311(h); K.S.A. 19-4327(b), (d). Finally, a sheriffs civil service board is authorized to approve or disapprove the sheriffs action and may order reinstatement of a dismissed deputy with back pay, sustain the dismissal, or sustain the dismissal with certain conditions. K.S.A. 19-4327(d).
Judicial Review of a Sheriff s Civil Sewice Board Decision
A party aggrieved by a sheriff s civil service board decision may seek judicial review of that decision under K.S.A. 60-2101(d). See Ratley v. Sheriffs Civil Service Board, 7 Kan. App. 2d 638, 641, 646 P.2d 1133 (1982) (relying on Thompson v. Amis, 208 Kan. 658, 493 P.2d 1259, cert. denied 409 U.S. 847 [1972], to conclude that any appeal from a decision of a sheriff s civil service board must be taken exclusively under K.S.A. 60-2101 [d] because a sheriffs civil service board acts as a quasi-judicial body); see also Landau v. City Council of Overland Park, 244 Kan. 257, 273, 767 P.2d 1290 (1989) (noting that municipal and county actions are specifically excluded from the Kansas Judicial Review Act, K.S.A. 77-601 et seq.). K.S.A. 60-2101(d) provides that “[a] judgment rendered or final order made by a political or taxing subdivision, or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal.” The appeal is docketed as “an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require.” K.S.A. 60-2101(d).
When an appeal is taken to the district court under K.S.A. 60-2101(d), the district court may not substitute its judgment for that of the political or taxing subdivision or agency, and the court’s scope of review is limited to determining whether the challenged order was within the subdivision or agency’s scope of authority; was substantially supported by the evidence; or was fraudulent, arbitrary, or capricious. Robinson v. City of Wichita Employees Retirement Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15 (2010); Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 450, 436 P.2d 828 (1968).
As a matter of right, parties may appeal a district court’s final decision to the Court of Appeals, and that court can review any ruling or order from the beginning of the proceeding. See K.S.A. 60-2101; K.S.A. 2013 Supp. 60-2102; see also Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 1, 539 P.2d 1 (1975) (concluding that after party properly appeals case originating from administrative agency to district court, further appeal is authorized under statutes dealing generally with appeals from district court).
When an appeal is made from a “political or taxing subdivision, or any agency thereof,” an appellate court reviews the decision as though the appeal had been made directly to the appellate court, i.e., no deference is accorded the district court’s decision. Robinson, 291 Kan. at 270. Consequently, an appellate court considers the administrative ruling anew, rather than reviewing the district court’s decision, but may not substitute its judgment for that of the subdivision or agency and must limit its scope of review to determining whether the challenged order was within the subdivision or agency’s scope of authority, was substantially supported by the evidence, or was fraudulent, arbitrary, or capricious.
Finally, a party aggrieved by a decision from the Court of Appeals can petition this court for review. See K.S.A. 20-3018(b); K.S.A. 60-2101(b). This final level of judicial review is discretionary and governed by our rules of appellate practice. K.S.A. 20-3018(b); Supreme Court Rule 8.03 (2013 Kan. Ct. R. Annot. 74). Unless limited by the order granting review, “the issues before the Supreme Court include all issues properly before the Court of Appeals which the petition for review or cross-petition allege were decided erroneously by the Court of Appeals.” Supreme Court Rule 8.03(g)(1) (2013 Kan. Ct. R. Annot. 77).
With this background in mind, we turn to the two specific issues Maurer claims were erroneously decided by the Court of Appeals: (1) whether the CSR exceeded the scope of its authority in rendering its first decision and (2) whether the CSB’s first decision was substantially supported by the evidence. And, while we limit our review to these two issues, because this remains an appeal from a decision rendered by a political subdivision or agency thereof, we are guided by the same scope of review exercised by the district court and the Court of Appeals as set out above.
Notably, even though this case reaches us through Maurer’s petition for review, this multilayer judicial review process places the parties in the same positions as they were in the district court when Denning challenged the CSB’s first decision ordering Maurer’s reinstatement, i.e., Denning is on the offensive and Maurer is defending that decision.
The CSB exceeded its scope of authority and rendered a decision not substantially supported by the evidence.
Denning contends that in its first decision the CSB exceeded its scope of authority by reviewing his decision to terminate Maurer de novo and substituting its judgment for that of Denning. Relying on Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 62 P.3d 247 (2003), Denning argues the CSB lacks authority to review his personnel decisions. Alternatively, Denning argues that when K.S.A. 19-805 is read in conjunction with K.S.A. 19-4327, it is clear that the CSB’s role is limited to determining whether an employee was dismissed for reasons of race, religion, or politics. Additionally, Denning contends the CSB’s decision is not substantially supported by the evidence.
Maurer contends the CSB acted within its scope of authority when it rendered its first decision, reversing Denning’s decision and ordering Maurer’s reinstatement. He argues the plain language of K.S.A. 19-4327 authorizes the CSB to conduct a de novo hearing, determine tire reasonableness of a sheriff s personnel decision, and, if appropriate, reverse the sheriff s decision and order the employee’s reinstatement. Maurer further argues Denning misplaces rebanee on Nielander, particularly in light of the Court of Appeals’ rejection of the same or similar argument in Zoellner v. Civil Service Bd. of Leavenworth County, 39 Kan. App. 2d 693, 182 P.3d 1288 (2008). Finally, Maurer argues substantial evidence supports the CSB’s decision.
Standards of Review
“Administrative agencies are creatures of statute and their power is dependent upon authorizing statutes, therefore any exercise of authority claimed by the agency must come from within the statutes.” Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983). Consequently, to determine whether the CSB exceeded its scope of authority we must consider and interpret the CSB’s authorizing statutes. Questions of statutory interpretation are subject to unlimited appellate review. Redd v. Kansas Truck Center, 291 Kan. 176, 187, 239 P.3d 66 (2010).
Similarly, whether the CSB’s decision is substantially supported by the evidence is a question of law subject to de novo review. See, e.g., In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 17, 687 P.2d 603 (1984) (“whether the Board’s order is reasonable as supported by substantial competent evidence, is quintessentially a matter of law”).
A sheriffs civil service board has authority to review and determine the reasonableness of a county sheriff s personnel decision.
To determine a sheriff s civil service board’s scope of authority we begin with its authorizing statutes. K.S.A. 19-4311(h) authorizes the board to “[cjonduct hearings and hear complaints by or against personnel for the purpose of demotion, suspensions or removal of personnel.” In conjunction with these hearings, the board may compel tire attendance of witnesses, take depositions, receive testimony, and seek contempt orders for witnesses who refuse to comply with subpoenas. K.S.A. 19-4311(i). K.S.A. 19-4327(b) and (d) further delineate the board’s powers and duties to consider dismissals and conduct hearings:
“(b) Any employee so dismissed or suspended may request in writing within thirty (30) days after receipt of such notification a hearing before the board to determine the reasonableness of such action and the board shall grant the employee a hearing within fifteen (15) days after receipt of such request.
“(d) After the hearing and consideration of the evidence for and against a dismissal, the board shall approve or disapprove such action and may make any one of the following appropriate orders: (1) Order the reinstatement of die employee and die payment to die employee of such salary as has been lost by reason of such dismissal. (2) Sustain the dismissal of such employee. (3) Except as provided above die board may sustain the dismissal, but may order die name of die dismissed employee returned to the appropriate registers, or may take steps to effect the transfer of such employee to a comparable position in another department.”
K.S.A. 19-4327(b) and (d) plainly authorize the sheriffs civil service board to receive and consider evidence “for and against a dismissal” in determining the “reasonableness” of the sheriff s personnel decision to approve or disapprove of the sheriff s decision, and to make appropriate orders based on its findings and conclusions. But Denning asks us to look beyond the plain language of K.S.A. 19-4327 to conclude that the CSB either lacked authority to review his personnel decision or had only limited authority. For the reasons discussed below, we decline to do so.
1. Nielander did not nullify the CSB’s authority under K S.A. 19-4327.
In arguing the CSB lacks authority to review his personnel decisions, Denning relies on Nielander. There, a sheriff and deputy sheriff appealed an injunction allowing the board of county commissioners to terminate the deputy sheriff s employment. The sheriff and deputy sheriff argued the board lacked the constitutional or statutory authority to hire or fire the duly appointed assistant to an elected county official. Agreeing with the appellants, the Nie-lander court ultimately concluded: “[Bjoards of county commissioners may establish personnel policies and procedures for all no-nelected county personnel . . . [and] collective bargaining agreements or a civil service system,” and “personnel actions taken by sheriffs are ‘subject to’ personnel policies . . . established by boards of county commissioners,” but “K.S.A. 19-805(d) does not give county commissioners the ability to supersede a sheriffs power to appoint, promote, demote, or dismiss his or her personnel.” 275 Kan. at 266-67.
Denning would have us extend Nielander s holding that a board of county commissioners lacks authority to override a sheriff s personnel decision appealed to a sheriff s civil service board. But as Maurer argues, Denning’s rebanee on Nielander is misplaced, both because it contradicts the plain language of K.S.A. 19-4327(d), as just discussed, and because we agree with the Court of Appeals’ opinion in Zoellner rejecting this argument. See 39 Kan. App. 2d at 698-99 (explaining that Nielander “explicitly recognizes that K.S.A. 19-805(d) makes a sheriffs personnel decision subject to certain restrictions, including a civil service system,” and that Nie-lander “does not address a civil service board’s authority” because “[i]n Nielander, the Supreme Court was dealing with the authority of a board of county commissioners”).
2. A sheriffs civil service board’s authority is not limited to determining whether a sheriff dismissed an employee for discriminatory reasons.
To support Denning’s position in this case that the CSB has only limited authority to review his personnel decisions, Denning relies upon K.S.A. K.S.A. 19-805 and 19-4327. Construing both statutes together, he argues, requires that we limit the CSB’s role to consideration of “whether an officer was terminated for reasons of race, religion or politics.”
As previously discussed, K.S.A. 19-805(a) authorizes a county sheriff to make decisions regarding the hiring and firing of sheriffs deputies, but that power is not absolute. Rather, “[a]ny personnel action taken by the sheriff.. . shall be subject to . .. any applicable . . . civil service system.” K.S.A. 19-805(d).
In counties where a sheriff s civil service system has been established, a county sheriff “may dismiss any permanent employee when [the sheriff] considers that the good of the service will be served thereby . . . but no permanent employee shall be dismissed for political, religious or racial reasons.” K.S.A. 19-4327(a). And a sheriff s decision to suspend or dismiss an employee is subject to review by the sheriff s civil service board, which is authorized to determine the “reasonableness” of the sheriff s decision. K.S.A. 19-4327(b), (d). Notably, the provisions of K.S.A. 19-4327 mirror those governing personnel decisions and review of those decisions under the state civil service system. See K.S.A. 2013 Supp. 75-2949(a) (“An appointing authority may dismiss . . . any permanent employee . . . when the appointing authority considers the good of the service will be served thereby. ... No permanent employee . . . may be dismissed ... for political, religious, racial or other non-merit reasons.”); K.S.A. 2013 Supp. 75-2949(f) (“Any permanent employee finally dismissed, demoted or suspended, may request a hearing from the state civil service board to determine the reasonableness of such action.”).
Denning argues that reading tire provisions of K.S.A. 19-4327(a) and (b) together and in conjunction with K.S.A. 19-805(a) makes clear that reasonableness refers only to lawfulness—i.e., the CSB’s role is limited to determining whether the sheriff dismissed an employee for unlawful reasons such as race, religion, or politics.
But we cannot accept Denning’s tortured synthesis of K.S.A. 19-4327(a) and (b). K.S.A. 19-4327(a) makes clear that it can never be for the “good of the service” to dismiss a permanent employee for political, religious, or racial reasons. See Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 98-99, 562 P.2d 117 (1977) (construing phrase “for the good of the service” in K.S.A. 75-2949 to mean that appointing authority’s dismissal of permanent classified employee must be for legal cause); see also Wright v. Kansas Water Office, 255 Kan. 990, 996-97, 881 P.2d 567 (1994) (discussing nature of Kansas Civil Service Act and Swezey’s interpretation of K.S.A. 75-2949 as requiring “that a valid cause be present to justify termination of a civil service employee”). Thus, it would be nonsensical to read K.S.A. 19-4327(b) to limit the CSB to considering the reasonableness of the sheriff s decision when that decision is based upon a discriminatory purpose. Such a decision is unlawful and, thus, per se unreasonable. Further, Denning fails to point to any appellate cases limiting the state civil service board’s role to determining whether an appointing authority based its personnel decision on discriminatoiy reasons.
For these reasons, we reject Denning’s argument that K.S.A. 19-4327(a) and (b) limit a sheriff s civil service board’s review to considering whether a sheriff dismissed a permanent employee for racial, religious, or political reasons.
In sum, we agree with Maurer that in this case the plain language of K.S.A. 19-4327(b) and (d) authorizes the CSB to receive and consider evidence for and against a dismissal in determining the reasonableness of the sheriff s personnel decision, to approve or disapprove of the sheriff s decision, and to make appropriate orders based on its findings and conclusions. In light of this plain language, we reject Denning’s argument that the CSB either had no authority, or had only limited authority, to review his personnel decision.
The CSB exceeded its scope of authority in this case because it failed to understand or apply the reasonableness standard, and its failure to understand that standard is demonstrated by the lack of evidentiary support for its own decision.
Having concluded the CSB had authority to review and determine the reasonableness of Denning’s decision, we next consider whether it properly applied that standard in this case.
When the CSB conducts a hearing requested by a dismissed employee, it performs a “quasi-judicial” function, essentially sitting as an appeals board, and its role is to determine the reasonableness of die sheriff s personnel decision. K.S.A. 19-4327(b); see also Ratley, 7 Kan. App. 2d at 641-42 (recognizing sheriffs civil service board performs a quasi-judicial function and noting “ultimate issue” before board is reasonableness of sheriffs decision).
Generally, a decision is reasonable if it is substantially supported by the evidence. See, e.g., In re Petition of City of Shawnee for Annexation of Land, 236 Kan. at 17 (“whether the Board’s order is reasonable as supported by substantial competent evidence, is quintessentially a matter of law”); Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 511, 561 P.2d 779 (1977) (holding that order of Kansas Corporation Commission “is generally considered reasonable when based upon substantial competent evidence”); Neeley v. Board of Trustees, Policemen's & Firemen’s Retirement System, 212 Kan. 137, 144, 510 P.2d 160 (1973) (suggesting administrative tribunal’s order is unreasonable when there is no basis in record to support it); see also 3 Koch, Administrative Law and Practice § 9.24[1], p. 336 (3d ed. West 2010) (“the most useful and universal understanding of the substantial evidence standard is reasonableness”).
Accordingly, the CSB’s role here was to consider whether substantial competent evidence supported Denning’s decision dismissing Maurer. See K.S.A. 19-4327(b); Central Kansas Power Co., 221 Kan. at 511. “ "Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined.’ [Citations omitted.]” Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 648, 294 P.3d 287 (2013). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes a mere conclusion.” Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992).
Here, the CSB failed to fulfill that role, thereby exceeding its scope of authority, by failing to understand the evidentiary footings of the reasonableness standard, as demonstrated by its decision. In its written order, the CSB made several factual findings, all of which are supported by evidence in the record and are either un-controverted or procedural facts. But, in the “findings and conclusions” section of the order, the CSB indicated it
“reviewed eveiy document introduced [and] considered the testimony of all of the witnesses and the legal arguments advanced by both parties in person and in writing. After a thorough review and consideration of the evidence, the CSB, on a 3 to 1 vote, hereby reverses the decision of the Sheriff and the Board of Inquiiy. The [CSB] finds that there was no evidence to support the finding that a violation of [the department’s policy on truthfulness] occurred. [The] CSB specifically finds and concludes that the two reports were, by all accounts, truthful. See testimony of Sergeant Greenwood beginning on page 68 of the CSB Transcript. In response to questions from counsel, Greenwood concedes that the reports were truthful, the only issue was that he was ‘not as specific as [he] or Lieutenant Pinlcelman wanted him to be.’ CSB Transcript, p. 71.The mere fact that the first report was not as complete as desired does not rise to a violation of [tire department’s policy on truthfulness], Mr. Maurer at all times took responsibility. His only error was to fail to include in the first report that the item he tossed at the horsefly was a blue folder. Further, his immediate supervisor, Sergeant Greg Shelton, believes Maurer does a good job; shows up for work; knows and does what needs to be done and is rehable and truthful. He would like to have him back as an officer.”
As the Denning majority noted, “the words ‘reasonable’ or ‘reasonableness’ do not appear in either the oral or written CSB decisions.” 46 Kan. App. 2d at 698. Nor is it implicit from the CSB’s written order that the CSB found Denning’s decision unreasonable. Instead, it is clear from the CSB’s decision that it reversed Denning’s decision because it found: (1) “no evidence to support the finding that a violation of [the department’s policy on truthfulness] occurred,” (2) “the two reports were, by all accounts, truthful” even if somewhat incomplete, (3) “Maurer at all times took responsibility,” and (4) Sergeant Greg Shelton believed Maurer did a good job and would have liked to have Maurer back as an officer.
Viewing the record as a whole, we agree with the district court that the CSB exceeded its scope of authority by substituting its judgment for that of Denning, rather than applying the requisite reasonableness standard, because the CSB’s determination that no evidence existed to support Denning’s decision “was itself unreasonable, . . . arbitrary and capricious, and not supported by the uncontroverted facts of the case.”
First, as Denning argues and as both the district court and the Denning majority concluded, the CSB’s conclusion that there was “no evidence” to support Denning’s finding that Maurer violated the department’s truthfulness policy ignores evidence direcdy supporting Denning’s dismissal of Maurer. See 46 Kan. App. 2d at 697-704. Namely, the record demonstrates that when Maurer left the keys to the vehicle with Greenwood, he also left a sticky note stating simply, “Crack in windshield—rock.” Further, Greenwood testified that when he spoke with Maurer about the note the next morning Maurer advised him that “die windshield had spider-webbed as the result of a rock chip.” In neither account did Maurer mention that he hit the windshield with a binder. Thus, this evidence supported Denning’s determination that Maurer violated the policy on truthfulness when he initially reported to Greenwood—on a sticky note and in his first conversation with Greenwood about that note—that only a rock damaged the windshield.
Similarly, the CSB’s finding that Maurer’s two written reports were “truthful” fails to take into account the full basis for Denning’s decisión. Specifically, Maurer was
“accused of. . . making false statements in the note that he left with the keys for Sgt. Greenwood and in his verbal statement to Sgt. Greenwood on the morning of July 27. He [was] also accused of. . . fading to disclose relevant information in his verbal report to Sgt. Greenwood diat same morning.” (Emphasis added.)
The CSB did not act reasonably when it failed to consider the primaiy basis for Denning’s decision—i.e., Maurer’s two false statements to Greenwood before he ever responded in written reports as well as his failure to disclose relevant information in those initial reports. As the Denning majority aptly recognized: “Half truths are untruths if they infer a conclusion different from what would have been concluded had the whole truth been told.” 46 Kan. App. 2d at 701.
Third, as discussed by the district court and the Denning majority, the record contains substantial evidence undermining the CSB’s conclusion that “Maurer at all times took responsibility.” See 46 Kan. App. 2d at 698-99. In reaching this conclusion, it appears the CSB once again was referring only to the written reports, and yet it was Maurer’s failure to take responsibility with respect to his initial actions that, in great part, led to his termination. Moreover, as the Denning majority suggested, Maurer’s reports actually were calculated to shift responsibility from him rather than accept responsibility. 46 Kan. App. 2d at 699. That suggestion is borne out by the record.
For example, Captain William Rector interviewed Maurer as part of the internal investigation of the incident. In his interview, Maurer stated that he did not fully disclose his role in damaging the windshield “up front” because he did not “feel like [he] was fully responsible.” When asked directly why he decided to write “rock” on the sticky note, Maurer explained, “Well, it was just a small posty note, I didn’t have a whole lotta room to write anything on there and that was—.” Later, when Rector asked why Maurer did not clarify the “rock” statement with Sergeant Greenwood the next morning, Maurer stated, “I don’t feel like I was the sole reason why this windshield cracked so naturally I didn’t wanna jump up and down and claim full responsibility because there were other factors into [sic] this,” and “maybe I didn’t feel comfortable wanting to accept full responsibility
Finally, even though Sergeant Shelton testified Maurer did “a good job,” and that he would “take [Maurer] back” as an officer, Shelton’s testimony does not rebut the substantial evidence discussed above supporting Denning’s determination that Maurer violated department policy and his ultimate decision to terminate Maurer. ■ ■
Conclusion
In sum, we conclude the CSB exceeded its scope of authority because the CSB’s written order clearly demonstrates the CSB failed to understand and apply the reasonableness standard in reviewing Denning’s decision. Further, because the CSB’s decision was not substantially supported by the evidence, the CSB’s decision was itself unreasonable, arbitrary, and capricious. Accordingly, we affirm the Court of Appeals’ decision affirming the district court’s decision to vacate the CSB’s decision.
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The opinion of the court was delivered by
BEIER, J.:
A jury convicted Chris King of four charges: rape by penile penetration, rape by digital penetration, aggravated criminal sodomy, and aggravated indecent liberties with a minor. The district court judge sentenced King to four concurrent hard 25 life sentences under Jessica’s Law. King raises seven issues on this direct appeal: (1) admission of evidence on a prior charge of sexual abuse for which King was acquitted; (2) failure to provide a unanimity instruction; (3) exclusion of evidence of the victim’s prior sexual histoiy; (4) denial of defense challenges to venire members for cause; (5) cumulative error; (6) constitutionality of Jessica’s Law; and (7) denial of a sentencing departure motion.
Because we hold that King’s convictions must be reversed for the lack of a unanimity instruction he challenges on his second issue, we need not reach the merits of King’s fourth, fifth, and sixth issues. We provide limited guidance on his first and third issues because of the likelihood they will arise again in the event of a retrial. We also provide guidance on the seventh issue, in the event resentencing becomes necessary. We take the liberty of reordering King’s issues for clarity of discussion.
Factual and Procedural Background
R.B. and her brother, M.B., began living with defendant King and the children’s aunt, King’s wife, Roxanne, in fall 2005. While the children lived with the Kings, Roxanne was primarily responsible for their care because King worked second shift. During weekends and school vacations, the children usually were with either their father or their grandparents.
On January 3, 2008, R.B. and M.B. went to their grandparents’ home for the end of winter break from school. And, on January 7, 2008, R.B. told her grandmother that King had been touching her and making her do things to him, the last time on the morning she arrived at her grandparents’ home.
R.B.’s grandmother took R.B. to the King residence to speak with Roxanne. R.B., her grandmother, and Roxanne went into a bedroom to talk about what R.B. had said. According to the grandmother’s later testimony, when Roxanne learned of R.B.’s allegations, ""[s]he really didn’t seem surprised. She was upset. She was upset, and she seemed to feel veiy bad about [R.B.], but she didn’t seem surprised.” Roxanne, on the other hand, said that, when the three went into the bedroom, “[R.B.] climbed up on the middle of my bed and starts giggling and says, "Uncle Chris touched me.’ ” Roxanne asked R.B. if King had “ "put his penis in’ ” R.B., and R.B. responded,"" What’s that?’ ”
After the discussion in the bedroom, R.B.’s grandmother removed the children from the care of the Kings.
R.B.’s mother contacted the Department of Social and Rehabilitation Services (SRS) hotline the next day. Sharon Griffin, a social worker, scheduled a time 2 days later to meet with R.B.
Griffin spoke with R.B., M.B., and their mother. During R.B.’s interview, she disclosed that King sexually molested her. According to R.B., on the morning of January 3, King told her to come into the bathroom with him. Once inside the room, King showed R.B. his penis, then pulled down her pants, and, according to R.B., “ ‘touched my private.’ ” King then made her “ ‘sit on his lap and promise not to tell.’ ” R.B. said that this incident was not the first of its kind. At the conclusion of the meeting, Griffin asked tire children’s mother to make a police report and explained that she would be referring R.B. to Sunflower House for a forensic interview. As part of the referral, Griffin also requested a medical examination of R.B.
Approximately 2 weeks later, Sarah Byall conducted a forensic interview of R.B. at Sunflower House. During the Byall interview, R.B. identified three specific areas of King’s residence where he had sexually abused her: her bedroom, a bathroom, and on a couch. R.B. also described King’s penis and told Byall that her “pee-pee started hurting.” It is unclear whether the pain began before or after R.B. was removed from the care of the Kings.
A week later, Physician Assistant Stephanie Painter conducted a medical examination of R.B. During the examination, R.B.’s mother told Painter that R.B. had experienced some bleeding, which, according to Painter, would be consistent with allegations of sexual abuse. Painter’s examination did not reveal injury to R.B.’s hymen or vulva or any sign of infection.
After viewing R.B.’s Sunflower House interview, Deputy Sheriff Robert Smith spoke to King less than a week later. King told Smith that “[R.B.] has a vivid imagination and we’ve been trying to get her some type of counseling.”
King first went to trial on the charges involving R.B. in November 2009. Mistrial followed the revelation of potentially exculpatory evidence, previously unknown to the State and the defense. The retrial leading to this appeal began October 25, 2010.
Pretrial, the State moved to admit evidence under K.S.A. 2013 Supp. 60-455(d) that King had sexually abused another girl in the past. King argued the evidence was inadmissible because he had been acquitted on charges arising out of the allegations. The district judge ruled that the State would be allowed to admit the evidence. As a result, J.B. testified at King’s trial that King had molested her when she was 4 years old and staying with her aunt. According to J.B., King touched her “on my vagina and, basically, I guess, rubbed” it while she was sleeping. J.B.’s aunt also testified about what J.B. had told her on the morning of the alleged abuse.
Pursuant to K.S.A. 21-3525(b), King filed a pretrial motion to admit evidence of previous sexual abuse allegations made by R.B. against two juveniles. King argued that the evidence was relevant, regardless of whether the allegations against the juveniles were true:
“Either these are false accusations and therefore the complaining witness’ testimony regarding actions by the defendant against her are not believable and trustworthy, or they [are] true accusations!,] which could explain how it is that she is able to describe sexual activities and body parts that one would normally not believe a small child should be able to describe.”
The district judge denied King’s motion, ruling the evidence was inadmissible because “we are not certain if [the allegations] were unfounded or not followed up because of just time constraints of law enforcement or lack of interest in pursuing the matter.” King also sought to admit evidence that R.B.’s mother had been sexually abused, information which she disclosed in front of R.B. during joint therapy sessions. The district judge’s ruling did not specifically address this evidence. King’s renewed motion to admit the evidence of the allegations against the juveniles also was denied during trial.
The State’s evidence at trial included establishment of dates and times when King had the opportunity to be alone with R.B. It demonstrated that R.B. had been absent from school because of illness on November 5 and 6, 2007, and that school was cancelled on December 11 and 12, 2007, because of snow. In addition to those dates, school was not in session on September 14 and 17; October 12; November 12 and 21; and December 27 through January 3, 2008. On the dates that R.B. was not in school, the State established that Roxanne generally worked for a few hours each morning and that King generally did not begin work until approximately 3 p.m., if at all. It was during these times, when Roxanne was working and King was home alone with the children, that the State argued King had the opportunity to abuse R.B.
The jury also heard testimony from those who had examined R.B.’s physical and mental condition after the report of her abuse. Painter testified that the physical examination of R.B. indicated that R.B. was “normal for her stage of development” and that she did not show any signs of injury. Painter opined that this could “not exclude or confirm a diagnosis of child sexual abuse.” Because of the time between the last alleged abuse and the examination, she would “expect a child to be totally normal; and if there had been injury, for it to have healed by that time.”
R.B.’s therapist, Annette Rasmussen, testified that R.B. had “behaviors like increased masturbation and dissociating and being depressed, hard time sleeping, being scared to get dressed.” Rasmussen further testified that there could be a correlation between R.B.’s masturbation and sexual abuse and that dissociation happens when people have “a traumatic experience happen to them.”
After Rasmussen testified, King renewed his pretrial motion to admit evidence of prior sexual abuse of R.B. King argued that the connection Rasmussen made between some of R.B.’s behaviors and sexual abuse or a trauma meant that evidence of prior abuse would provide the jury with an alternative source for R.B.’s behaviors. The district judge ruled that “[Rasmussen’s] reference during cross-examination was not so specific, to this Court’s belief, that it would trigger a reversal of prior rulings denying the admissibility of that evidence. It was brief and nondescript.”
R.B. testified that King touched her “over 20 times.” This included King touching her “[b]oth inside and out” with his hand and penis, putting his penis in her mouth, and making her touch his penis with her hands. The State also played a video of R.B.’s Sunflower House interview for the jury.
In addition to R.B.’s testimony about the incidents, M.B. testified that he once saw King and R.B. go into another room and shut the door. According to M.B., they had been playing the “tickle game” when King said to R.B., “ ‘Want to go into the bedroom and just me and you play?’ ” M.B. listened by the closed door, and he did not hear any tickling or laughing. He asked, “ ‘You guys almost done?’ ” Because M.B. did not hear laughing, he said, he “knew they weren’t playing [the tickle game].”
With the exception of November 5, one of the snow days, and tire morning of January 3, King denied that he was supervising or alone with the children. He testified that the children were with their parents or grandparents on the remaining dates. On November 5, when R.B. was home sick, King said, he took R.B. and his son to Lawrence to purchase a video game. King said that they did not return that morning until after 11, and his wife arrived home a short time later. King submitted evidence from his bank records of a transaction occurring on the morning of November 5 at GameStop in Lawrence. During the snow day, King said, he and the children played a game of Monopoly all day until Roxanne came home from work.
On the morning of January 3, King testified, R.B. and M.B. were scheduled to go to their grandparents’ home. Roxanne and King got the children into the car, and King drove Roxanne to work. After dropping Roxanne off, King and the children returned home because it was not yet time to meet the grandparents. King went into the bathroom because he felt ill, and he testified that he remained there until it was time to drive the children to meet their grandparents. The children were in the living room while King was in the bathroom.
King also denied all of R.B.’s accusations of abuse.
King also presented evidence implying that R.B.’s mother fabricated the allegations against him as a way to avoid paying to support the children while they were in King’s and Roxanne’s care. According to Roxanne, SRS had recently learned the children’s mother was not paying child support and had ordered her to begin doing so.
After the jury returned guilty verdicts on all four charges and before sentencing, King filed a “Motion for Durational and Dis-positional Departure” in which he sought “a downward durational departure pursuant to the provisions set forth in K.S.A. 21-4643.” The district judge noted that “the legislature has precluded the Court from consideration of any mitigating factors” and said, “I cannot find that there is sufficient grounds of unconstitutionality to set aside the Sentencing Act” and, “without it being unconstitutional, I’m precluded from even considering your arguments . . . today to mitigate or to lessen the sentence. The law is quite clear.” King received four concurrent hard 25 life terms.
Unanimity
We treat the question of whether a case presents a multiple acts issue as one of law over which we have unlimited review. State v. [Kameron] King, 297 Kan. 955, 979, 305 P.3d 641 (2013) (citing State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 [2007]). Further, “[w]here an instruction was not requested during the trial, an appellate court applies a clearly erroneous standard of review.” [Kameron] King, 297 Kan. at 978 (citing K.S.A. 22-3414[3]). Whether the failure to give a unanimity instruction in a multiple acts case is clearly erroneous involves a de novo review of the entire record. State v. Trujillo, 296 Kan. 625, Syl. ¶ 3, 294 P.3d 281 (2013). “Whereas the burden to show harmlessness generally shifts to the party benefitted by the error, the burden to show clear error under K.S.A. 22-3414(3) remains on the defendant.” State v. Williams, 295 Kan. 506, 516, 286 P.3d 195 (2012).
When multiple acts jury unanimity is an issue on appeal, the threshold question is whether jurors heard evidence of multiple acts, each of which could have supported conviction on a charged crime. See Voyles, 284 Kan. 239, Syl. ¶ 1. This court has determined that acts are multiple acts if they are factually separate and distinct. And incidents are factually separate when independent criminal acts have occurred at different times or different locations or when a later criminal act is motivated by a “fresh impulse.” State v. Colston, 290 Kan. 952, 962, 235 P.3d 1234 (2010). Factually separate and distinct incidents are not what this court calls “unitary conduct.” 290 Kan. at 962. The factors we have used to determine the existence of unitary conduct are: “ ‘(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.’ [Citation omitted.]” 290 Kan. at 962.
King asserts that there was evidence of multiple acts on each of his charges because the State demonstrated that the abuse could have occurred on 11 different days from September 2007 to January 2008, and R.B. said King touched her “over 20 times” in three different places in the house—-her bedroom, the bathroom, and on a living room couch. The State’s primary argument on this issue is that King categorically and generally denied all of R.B.’s abuse allegations. But such a denial affects only whether any multiple acts error is reversible—here, clearly erroneous. It does not determine whether we are faced with a multiple acts case in the first place.
In Voyles, we recognized that a case in which two victims alleged that the defendant’s criminal conduct occurred over several months in different locations presented us with multiple acts. 284 Kan. at 244. “[Pjotentially 20 different acts or offenses were committed,” and the defendant was charged with only eight counts. 284 Kan. at 244; see also State v. Rivera, 48 Kan. App. 2d 417, 449, 291 P.3d 512 (2012) (allegations of two acts over several days required multiple acts instruction, election).
We agree with King that we are faced with a multiple acts situation in this case. R.B.’s allegation of more than 20 different incidents in three different locations and the State’s proof of 11 different opportunities for King to be alone with the children mean we are not dealing with “unitary conduct.” See Colston, 290 Kan. at 962. Yet King was charged in only four counts, two rape counts, one aggravated criminal sodomy count, and one aggravated indecent liberties count.
A particular further note on the sodomy count is necessary.
The State insists that R.B. reported only one instance of oral sex and relies on Colston, 290 Kan. at 965, to argue that a jury is not required to agree on a specific date of a sodomy if only one act occurred. We acknowledge and reaffirm this holding from Colston, but we see a controlling distinction between Colston and this case.
Here, although R.B. testified that King made her put her mouth on his penis only one time, the prosecution’s proof and later argument on King’s 11 chances to be alone with the children muddied the evidentiary water on the sodomy charge. When, for ex ample, the prosecutor argued in closing that King had plenty of time to molest R.B., she posed the rhetorical question: “How much time does it take for Mr. King to pull down his pants and force 8-year-old [R.B.] to perform oral sex on him?” The prosecutor followed this question by directing the jury to the State’s evidence of the 11 different days when King had opportunity to commit the charged offenses. In other words, the State asserted that the jury could infer multiple acts of sodomy from the whole of its evidence. This statement was essentially equivalent to a reverse election that competed with R.B.’s statement about one instance of oral-genital contact. We therefore regard the sodomy charge as subject to multiple acts analysis.
Having concluded that evidence of multiple acts was presented on each of the four charges against King, we turn to whether the “State . . . inform[ed] the jury which act to rely upon in its deliberations or the court . . . instructed] the jury to agree on the specific criminal act. The failure to elect or instruct is error.” Voyles, 284 Kan. 239, Syl. ¶ 2. There is no indication in the record before us that the State informed the jury which act to rely upon for any of the charges against King. And the parties agree that King did not request and the district judge did not provide sua sponte a jury instruction on unanimity for any of die charges. Thus there was a multiple acts error on each charge.
‘When a unanimity instruction was not requested or given and no general denial was presented by die defendant, an appellate court may conclude that die failure to instruct the jury to agree on a specific criminal act warrants reversal under the clearly erroneous standard.” Voyles, 284 Kan. 239, Syl. ¶ 4. “If there is no unified defense, we do not tolerate verdict uncertainty in these cases.” 284 Kan. at 253. And, even if the defendant has made a general denial, “error may be reversible when the trial is not merely a credibility contest between the victim and die defendant.” (Emphasis added.) 284 Kan. 239, Syl. ¶ 5. Inconsistent testimony from a victim, for example, can mean reversal is necessary. 284 Kan. 239, Syl. ¶ 5; see [Kameron] King, 297 Kan. at 983 (“presentation of a unified defense or a general denial does not foreclose reversible error in a multiple acts case”). “[W]hen other evidence presents inconsis tencies that distinguish between two or more incidents,” a review of the entire record is appropriate “to determine if [the appellate court] is firmly convinced that the jury would have reached a different verdict had the error not occurred,” i.e., whether there was clear error. 297 Kan. at 983-84.
The parties disagree on whether King’s defense can be characterized as a general denial. On this point, we agree with King that his defense was not “merely” a general denial. As he states in his brief, “when the defense puts on different evidence to defend different dates of alleged occurrences, it is not a unified defense.”
The State’s evidence also complicated the jury’s task beyond picking the winner in a pure credibility contest. It proved up “a number of factually separate incidents . . . from which the jury could have found” King guilty of the charged crimes. See Voyles, 284 Kan. at 253. The evidence showed that King usually was at work when the children were home and awake, and that the children spent most weekends and school holidays away from King’s home. The State thus focused on opportunity to commit the crimes, and it specifically sponsored evidence of 11 discrete dates when King would have been alone with the children. In response, King marshaled exculpatory evidence aimed at particular days among the 11. In short, the State put on evidence of unique timing of several incidents, and King advanced a general denial plus designed to meet the unique timing proof.
This court has said that
“youthful victims reporting incidents, giving statements, and testifying cannot provide mathematical certainty about events. We also acknowledge, however, the substantial prejudice to a defendant when the equivalent of evidence of propensity to commit crime—more multiple acts than charges, without an election or instruction—is placed before a jury." 284 Kan. at 255.
In this case, we cannot ignore or minimize the prejudice to defendant King from the court’s failure to instruct on unanimity and the State’s failure to elect which of the multiple acts underlying each of King’s charges was to be relied upon by the juiy. We have no confidence in the reliability of the guilty verdicts, and we reverse all of King’s convictions and remand the case for further proceedings.
K.S.A. 2013 Supp. 60-455 Evidence on Allegations for Which King Was Acquitted
This court’s review of the admission of evidence involves a mul-tistep analysis:
“[T]he first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 (2008). The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 (2009). In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court’s standard of review of this third step varies depending on the rule or principle that is being applied. Some rules and principles grant the district court discretion, while others raise matters of law. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009). Finally, an analysis under K.S.A. 60-445 may be required, depending on the issue and parties’ arguments. Under that statute, a district judge ‘may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence will be offered.’ This analysis is reviewed under an abuse of discretion standard. See Reid, 286 Kan. at 509.” State v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010).
Before trial, the State sought permission to admit K.S.A. 2013 Supp. 60-455 evidence that King had sexually abused another young girl, J.B. King had been acquitted in a prosecution arising out of J.B.’s past allegations of abuse. The State argued that the evidence was relevant to show a plan or modus operandi because the facts underlying those allegations were strikingly similar to the facts of this case. See State v. Prine, 297 Kan. 460, 480, 303 P.3d 662 (2013) (confirming “strikingly similar” standard for admission of plan evidence under 60-455).
The record before us demonstrates that the State appreciated the governing statute had recently been amended to permit admission of other crimes and civil wrongs evidence in cases of sexual misconduct “on any matter to which [the evidence] is relevant and probative.” See K.S.A. 2013 Supp. 60-455(d). The amendment meant that the State could have argued with success that subsection (d) permitted it to introduce the evidence to demonstrate King’s propensity to commit sex crimes against young girls. See Prine, 297 Kan. at 479. But the State did not do so.
In Prine, even though the evidence in question had been admitted erroneously to show intent, absence of mistake or accident, and plan, we determined that the error was harmless under K.S.A. 60-261 because the prosecution would be free to introduce the same evidence on retrial to prove propensity. 297 Kan. at 479-81. But for one additional consideration, we expect the same would be true here, that is, even if J.B.’s earlier allegations against Kingwere admitted erroneously to show plan or modus operandi, they probably could come into evidence on any retrial under the new subsection (d) of K.S.A. 2013 Supp. 60-455.
The one additional consideration for the district judge on remand is that King was acquitted in the case arising out of J.B.’s allegations. This consideration deserves more attention and a more thorough analysis on any retrial than it received the first time around.
Our older cases examining the effect of an earlier acquittal on admissibility of underlying evidence in a later prosecution on new charges have turned on applicability of the doctrine of collateral estoppel. See State v. Searles, 246 Kan. 567, 579-82, 793 P.2d 724 (1990); State v. Irons, 230 Kan. 138, 140-45, 630 P.2d 1116 (1981); State v. Darling, 197 Kan. 471, 478-81, 419 P.2d 836 (1966).
In Irons, this court addressed whether an acquittal precludes the State from introducing evidence of the charged conduct as a prior bad act in a subsequent proceeding:
“[W]hen an application is made to admit evidence of a prior offense of which defendant has been acquitted, an additional consideration presents itself—die possibility of collateral estoppel.
“When an issue of ultimate fact has once been determined by a valid and final verdict or judgment that issue cannot again be litigated between the same parties in any future lawsuit under the rule of collateral estoppel. [Citations omitted.]
“The rule of collateral estoppel in criminal cases is not to be applied widi a hypertechnical approach, but with realism and rationality. Where a previous judgment of acquittal is based upon a general verdict diis approach requires a court to examine the record of the prior proceeding, taking into account die pleadings, evidence, charge and other relevant matter, and if the court concludes a rational jury would have had to base its verdict of acquittal on the same issue which the State seeks to prove by introducing evidence of a prior offense then collateral estoppel applies. [Citations omitted.!” Irons, 230 Kan. at 143-44.
In Irons, the defendant had been previously tried and acquitted of robbery. The evidence in both cases led to a reasonable inference that both crimes bad been committed by the same person. 230 Kan. at 144. This court held that in the first case the defendant’s identity had been in issue and he was acquitted; therefore, “[t]he issue of defendant’s participation in that case was settled,” and collateral estoppel protected him from having to retry the prior offense. 230 Kan. at 144.
The Irons court distinguished the case before it from other cases in which evidence introduced at trial leading to an earlier acquittal had been held admissible. 230 Kan. at 142-44; see Darling, 197 Kan. at 480-81 (evidence defendant previously performed procedure resulting in abortion; despite acquittal, evidence admissible to show same procedure performed knowingly, with intent to commit abortion); Oliphant v. Koehler, 594 F.2d 547, 554-55 (6th Cir. 1979) (evidence of prior offenses admissible where issue in prior rape trials was consent and evidence in current trial presented to show plan).
We addressed collateral estoppel in this context again in Searles. Before trial, the district court ruled that the issue in Searles’ acquittal was consent, while in the current case it was identity. Because the district court determined that the evidence was being presented for a different issue in each case, this court found no error in admitting the evidence in the second trial. 246 Kan. at 581-82.
Should this case be retried, and should the State again seek to introduce evidence of J.B.’s past allegations against King, the district judge will have to analyze whether the prosecution in which King was acquitted had at its heart the same issue or issues to be entrusted to the second jury in this case. If so, collateral estoppel should prevent introduction of the evidence. If not, collateral es-toppel will pose no obstacle to introduction of the evidence under K.S.A. 2013 Supp. 60-455(d).
Application of the Rape Shield Statute
The other evidentiary issue that warrants discussion before remand is the admissibility of R.B.’s sexual abuse allegations against the two juveniles. On appeal, King argues that admission of the evidence was imperative because it provided an alternate explanation for the symptoms and behaviors R.B. exhibited, including “her ability to talk about sexual details.”
K.S.A. 21-3525, which limits evidence of a sex crime victim’s previous sexual conduct with any person including the defendant, is known as the rape shield statute. It is designed to protect such victims from unnecessary intrusion into their private lives and reads in pertinent part:
“(b) Except as provided in subsection (c), in any prosecution to which this section applies, evidence of tire complaining witness’ previous sexual conduct with any person including the defendant shall not be admissible, and no reference shall be made thereto in any proceeding before the court, except under the following conditions: The defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. . . . The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. . . . The defendant, defendant’s counsel and prosecutor shall be prohibited from disclosing any matters relating to the motion, affidavits and any supporting or responding documents of tire motion. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the couit finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” K.S.A. 21-3525(b).
The key consideration under the statute is relevance. See K.S.A. 21-3525(a), (b).
“There are two elements of relevance: materiality and probative value. [Citations omitted.] In analyzing whether evidence is material, the focus is on whether the fact sought to be proved has a legitimate and effective bearing on the decision of tire case'and is in dispute. [Citation omitted.] Evidence is probative if it has ‘ “any tendency in reason to prove” ’ a material fact. [Citation omitted.] The materiality of evidence is reviewed de novo, and the existence of probative value is reviewed under an abuse of discretion standard. [Citation omitted.]” State v. Wells, 297 Kan. 741, 759, 305 P.3d 568 (2013).
See also State v. Gilliland, 294 Kan. 519, 540, 276 P.3d 165 (2012), cert. denied 133 S. Ct. 1274 (2013) (relevance key consideration when applying rape shield statute).
We need not decide today whether the district judge’s exclusion of the evidence in the first trial was an ábuse of discretion. We merely note that, on remand, it is possible that more information about the nature of the allegations and why they did not lead to a prosecution may be available. The district judge’s expressed concern about vagueness may evaporate. Assuming that issué is put to rest, R.B.’s earlier allegations may meet the relevance threshold of the statute to the extent Rasmussen again opines that R.B.’s dissociation may be related to a traumatic event or the State again argues that R.B. had no way of knowing what she did about sex absent King’s abuse. See State v. Holman, 295 Kan. 116, 139, 284 P.3d 251 (2012) (prior sexual conduct evidence may be material if relevant to identity of rapist, consent of complaining witness, whether defendant had intercourse with complaining witness); State v. Berriozabal, 291 Kan. 568, 587, 243 P.3d 352 (2010).(ev-idence that could explain healed vaginal tear material in sex crime prosecution).
Consideration of Departure
Finally, we briefly address the defense argument on appeal that the district judge erred as a matter of law in denying King’s departure motion. We do so to ensure that any sentencing that occurs on remand avoids such error.
In response to the motion for departure, .the district judge stated: “[T]he legislature has precluded the Court from consideration of any mitigating factors or, as the State pointed—attempted to point out, aggravating factors.” He also said that, unless Jessica’s Law was unconstitutional, he was “precluded from even considering your arguments . . . today to mitigate or to lessen the sentence. The law is quite clear. The Court has no authority to deviate from that.”
Subsection (d) of Jessica’s Law, K.S.A. 21-4643, explicitly permits departures in certain circumstances:
“On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”
Before his conviction in this case, King had no prior criminal history. Thus the district judge was not “precluded” from considering a departure. See State v. Jolly, 291 Kan. 842, 846, 249 P.3d 421 (2011).
Conclusion
Because multiple acts error infects each of defendant King’s convictions and undermines this court’s confidence in the jury’s decisions, this case is reversed and remanded to the district court for further proceedings. | [
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The opinion of the court was delivered by
Luckert, J.:
After a trial ended with a hung jury, Kelvin Phillips, Jr., was retried and convicted of the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of a firearm. On direct appeal from Phillips’ second trial, we consider the three issues Phillips raises. First, we hold that the Kansas criminal mistrial statute, K.S.A. 22-3423, does not require the use of specific words in order for a mistrial to be recognized or to preserve a defendant’s constitutional right to be protected from double jeopardy. Consequently, we reject Phillips’ contention that the trial court violated his constitutional right against double jeopardy when it allowed him to be retried for the same crimes without explicitly declaring or ordering a mistrial at the conclusion of his first trial. Second, we conclude there was sufficient evidence, when viewed in the light most favorable to the State, to affirm Phillips’ conviction for premeditated first-degree murder. Finally, we hold that the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation,” but we conclude the misconduct did not deprive Phillips of a fair trial. Consequently, we affirm.
Facts and Procedural Background
Dyer died from gunshot wounds he suffered on August 10,2007, in Topeka. Phillips and three other individuals—Corky A. Williams; Drake Kettler, Jr.; and Antonio Armstrong—were charged with and convicted of crimes related to Dyer’s death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Williams, 299 Kan. 509, 324 P.3d 1078 (2014); State v. Kettler, 299 Kan. 448, 325 P.3d 1075 (2014); and State v. Armstrong, 299 Kan. 405, 324 P.3d 1052 (2014).
The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many of the same issues. Consequently, our opinions in these cases are largely repetitive. We have followed this format for the ease of reading only one opinion; the reader will not need to refer to multiple opinions. For the benefit of anyone who wishes to read all three opinions, we offer as a guide that Williams has asserted the most issues. Kettler and Phillips have repeated some of those issues, making either identical or substantially similar arguments. Phillips does, however, present an issue not raised by Kettler or Williams—his first issue, which relates to the procedure for declaring a mistrial. Also, although Williams, Kettler, and Phillips all raise issues regarding the sufficiency of the evidence and the prosecutor s misstatement of the definition of “premeditation” during the closing argument, there is some variance in the analysis because of each individual’s role in tire shooting of Dyer. The decision in Armstrong’s appeal does not have the same level of overlap, and some factual details differ because of the variance in evidence in his separate trial.
Procedural History
The charges against the four defendants were not identical. Phillips, like Kettler and Williams, was charged with premeditated first-degree murder, in violation of K.S.A. 21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and criminal possession of a firearm.
Armstrong’s case took a different procedural track when, before any of the defendants’ preliminary hearings, he decided to cooperate with the State in exchange for a favorable plea agreement. Initially, in Armstrong’s first contact with investigating law enforcement officers, he denied any knowledge of or involvement in the shooting. Later, in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to the district attorney in which he incriminated himself and implicated the three other defendants in the premeditated killing of Dyer. Based on this state ment and as part of Armstrong’s plea arrangement, the State called Armstrong as a witness at a joint preliminary hearing related to the charges against Williams, Kettler, and Phillips. Armstrong reiterated the truthfulness of his sworn statement and testified that he had joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.
Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed his mind about cooperating with the State and recanted his statements and testimony, even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated that his former defense counsel coerced him into making his prior statements implicating his friends.
Subsequently, Armstrong’s case was joined with the cases of Williams, Kettler, and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung juiy. After the first trial, the trial court severed Armstrong’s case from the others, and his second trial took place before the three other codefendants again went to trial. Armstrong testified at his second trial, providing yet another version of how Dyer was shot. Armstrong was convicted of premeditated first-degree murder and criminal possession of a firearm, the only charges brought against him.
The State then called Armstrong to testify at the joint second trial of Williams, Kettler, and Phillips. Armstrong testified that both his sworn statement and his preliminary hearing testimony against the other defendants were untrue. Armstrong explained that he had incriminated his friends because he was led to believe that “my homeboys, my brothers, was testifying on me, which I found out later was a lie.” He also told the juiy that he had just reiterated a stoiy the prosecutor had fed him. Armstrong’s explanation was refuted by Armstrong’s attorney, who testified that Armstrong was not told what to say in his sworn statement.
Although Armstrong was called as a witness for the State at the trial of Williams, Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong wore a mask to prevent him from spitting on die law enforcement officers who transported him to the courtroom or on those in the courtroom. He often cursed, and he usually either refused to answer questions or was evasive and claimed he could not remember details. Eventually, on redirect examination, Armstrong became so belligerent and uncooperative with tire prosecutor that he was removed from the courtroom.
As this history suggests, the jury was presented with multiple versions of the events that led to Dyer s death. In addition to Armstrong’s various renditions of what happened, both Williams and Phillips testified at their second trial and offered slightly different versions of events. Plus, approximately a month before the second joint trial, Phillips proffered the substance of his trial testimony in order to obtain some pretrial evidentiary rulings; the jury would learn that some details included in the proffer differed from Phillips’ trial testimony. Kettler chose not to testify. The jury also heard the testimony of several individuals who witnessed some portion of the events, investigated the crimes, or had information about the relationship of Dyer and the defendants. Because Phillips attacks the sufficiency of the evidence against him—at least with respect to the first-degree murder charge—we will discuss the evidence in some detail.
Dyers Conflict with the Defendants
Through the testimony of several witnesses—including Williams and Phillips—and Armstrong’s sworn statement, the jury learned of a dispute between Williams and Dyer that occurred several weeks before Dyer’s death. During this altercation, an argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams at gunpoint. Patton testified that after the robbery, Williams issued a challenge by telephoning and saying, “It’s on.” Patton’s testimony was countered by Williams, who told the jury he had decided just to stay away from Dyer and Patton. Pie denied that Dyer’s death had anything to do with die prior encounter.
In turn, Williams’ testimony was contradicted by Armstrong’s sworn statement and the preliminary hearing testimony of Armstrong. According to that version of events, Williams told Armstrong and Kettler about the robbery immediately after it happened. The three men decided drey would be on the lookout for Dyer and his friends. When Armstrong was asked whether there were any plans made to search for Dyer, Armstrong replied, “No. Just—-just when we—when we saw him, shoot him.” Armstrong was asked if that agreement would apply “to any of the three of you?” He answered, “Any of us ... . I’m not going to lie, I wanted to do it because not too—not too long after that, just a couple of days after that . . . somebody shot ... [a friend’s house] and grazed me on my arm.” Armstrong believed Dyer and Patton were the shooters.
Phillips did not participate in these discussions because he was in jail. Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking to Phillips in “code” during a telephone conversation. As it turned out, Phillips was released from jail tire same day as Dyer was shot. According to Armstrong, Phillips joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer, they wanted to “[b]low his head off.”
Phillips Spots Dyer; Other Defendants Join Him
Within hours of Phillips’ release from jail, he spotted Dyer and Dyer’s girlfriend, Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that she and Dyer had walked to the liquor store where they ran into some people they knew, Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While Shaw shopped, Johnson walked from the liquor store toward Shaw’s car. At that point, Phillips approached Johnson and asked if she was “straight,” meaning did she need to buy any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and Dyer were already sitting, Phillips told her to take his phone number and to call if she needed something.
Phillips testified that, after talking to Johnson, he talked to Shaw and asked her whether she wanted to purchase some drugs. Shaw indicated she had some money at her house, so she would buy drugs if Phillips stopped by. Phillips told Shaw he would be there within 5 to 10 minutes.
According to Phillips, after Shaw’s vehicle pulled away, Phillips called Kettler, and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop. They ran down the alley because Phillips was in a hurry to get to Shaw’s house so that an other drug dealer would not beat him to the sale. Kettler then called Williams to ask for a ride to Shaw’s house.
Williams also testified that Kettler called him and asked Williams to give Kettler, Phillips, and Armstrong a ride to Shaw’s house. According to Williams, he had been with Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler, Armstrong, and another friend and they drove around for about 30 minutes. Then, Kettler and Williams installed a CD player in Williams’ car, while the others were “sitting around talking.” Later, the group went their separate ways until Williams picked up the others to take them to Shaw’s house. He explained that he was told the men wanted to go to Shaw’s house because she owed Kettler some money and Phillips was going to sell her drugs.
According to Armstrong’s sworn statement, Kettler and Williams had picked him up earlier in the day and the three were still together when Phillips called. Like Williams, Armstrong stated that Kettler and Williams had installed a CD player in Williams’ car, but Armstrong also indicated that while doing so they had hidden a gun behind the CD player. Armstrong explained, “Like where the CD player is in Oldsmobile Delta’s [sic] you can take that whole part out, the whole vent part out and you can fit a nice size gun in there.” Armstrong described the hidden gun as a “9 mm Ruger.” There was evidence at die trial suggesting that this gun was later used to shoot Dyer.
Once Williams and Kettler finished installing the CD player, according to Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then told the odiers that Dyer “is at the smoke shop. Get diere. And then [Kettler] opened the vent and pulled a gun out of the vent.” Williams drove directly to the alley behind the store, which Armstrong said was merely 30 seconds or so away from where they were. Once they were near the store, Armstrong and Ketder jumped out of the car and started running down the alley. Phillips ran toward them and told them Dyer was on his way to Shaw’s house. They turned and ran back toward Williams’ car.
The timing of Armstrong’s version of events meshes witii Johnson’s account. She saw Phillips and three or four other people running down the alley behind the liquor store as Shaw drove away.
Events at Shaw’s House, According to Johnson and Mun
Once Shaw, Mun, Dyer, and Johnson arrived at Shaw’s house, they carried beer inside and began hanging out. About 5 to 10 minutes after they sat down, Shaw’s home phone rang. Shaw answered the phone and simply said, “Yeah, yeah,” and then passed tire phone to Mun. According to Mun, there was nobody on the other end, so he hung up. Other evidence suggested that either Phillips or Kettler used Phillips’ cell phone to call Shaw to verify whether Dyer was at her house. Mun indicated that shortly after the phone call, Shaw asked Dyer if he was J.D., to which Dyer answered, “Yes.”
Within a couple minutes of the phone call, there was a knock at Shaw’s front door. Mun walked up to the door and asked, “Who is it?” The person on the other side responded, and Mun told the others it was “Little Man,” which was Kettler’s nickname. When Dyer heard “Little Man,” he jumped up and left the room.
Mun looked out the window and did not initially see anyone. When he opened the door, Mun heard someone coming around the side of the house, asking why he had not answered more quicldy. As the man approached Shaw’s front door, Mun recognized him as Kettler. Phillips and Armstrong came toward the front door from the side of the house, and the three men ran into the house. Phillips approached Johnson and asked something like, “[Wjhere’s he at, Bitch?” apparently meaning Dyer. Johnson acted like she did not know who Phillips was looking for because she “didn’t want [Phillips] to do nothing to [Dyer].” Phillips then turned around and walked out the front door.
Seconds later, Phillips returned to the house. According to Johnson, Kettler and Armstrong were with him, and all three men had guns when they walked past her and moved toward the back of the house. Johnson immediately ran out of the house to get help.
Mun, who remained outside the front door, did not see guns when the group, which, according to him, now included Williams, walked into the house the second time. Mun testified that he heard “tussling” and “wrestling” sounds coming from inside Shaw’s house. He stepped inside and saw one of the men pick up a drink ing glass and glass ashtrays and throw them into the bedroom. Then Mun heard the “pop, pop, pop” sound of gunshots and watched the four men run out of the house. When Mun looked into the bedroom, he saw Dyer lying on die floor, unresponsive.
Meanwhile, Johnson ran to a neighbor’s house and knocked on the door. When the neighbor responded, Johnson asked her to call law enforcement. Johnson then heard gunshots, so she ran back to Shaw’s house. As she approached, Johnson saw the same men run out of Shaw’s house, jump into a brown car, and drive away. This car was later identified as Williams’ car.
Johnson went inside Shaw’s house and found Dyer lying on the bedroom floor, bleeding and unresponsive. Dyer had been struck by two bullets, one of which entered through his arm and pierced his heart. In addition to the bullet wounds, Dyer suffered head wounds and a bite mark on his left shoulder. An expert opined that Phillips was the probable biter.
The jury did not hear Shaw’s versions of events because she had passed away before the first trial, and, as we have noted, Kettler chose not to testify. But, just as Williams, Phillips, and Armstrong provided different versions of what happened before the men got to Shaw’s house, they provided very different accounts of what occurred once they arrived.
Williams’ Version
According to Williams, he drove over to Shaw’s house with Ket-tler, Phillips, and Armstrong because Shaw owed Ketder money and because Phillips said “he needed to take care of some business over there,” meaning a drug deal. When they pulled up at Shaw’s house, Williams dropped off the other men. He dien drove past the house before turning around and coming back to park. Williams said he was parked about a minute when Kettler came out the front door and got into Williams’ car. Then Williams heard gunshots coming from inside Shaw’s house. Seconds later, Williams saw Phillips and Armstrong running out of the house. When they got into the car, Williams noticed “a few blood spots” on Phillips’ shirt. Williams asked, “What’s going on?” but they just told him to “drive off.” So Williams drove over to the home of Latoya Austin, Armstrong’s girlfriend.
Williams testified that he did not see a gun, but when they went inside Austin’s house he heard Austin tell Armstrong to “get that out of here,” referring to the gun Armstrong was then holding. Williams saw Armstrong leave the house for a couple minutes, presumably to get rid of the gun. Then Armstrong started talking about what had happened at Shaw’s house and indicated that Phillips shot Dyer. Phillips and Armstrong talked about “tussling over the gun” with Dyer. They told Williams that Dyer tried to get the gun from Phillips and Dyer had hopped on Phillips’ back.
Phillips’ Version
Phillips’ testimony was consistent with Williams’, at least in many respects. According to Phillips, his “whole intention was to go over there [Shaw’s house] to bust a serve,” which he explained meant to complete a drug sale. Phillips denied having any discussion before arriving at Shaw’s house about settling a score with Dyer. In fact, according to Phillips, he did not know about Dyer’s robbery of Williams until after Dyer’s death. On the way to Shaw’s house, Phillips called Shaw to make sure she and Mun were there. Phillips testified that he did not see any guns and did not know whether Williams had hidden a gun in the dashboard of the car.
Phillips said Kettler went up to Shaw’s house first, knocked on the door, and announced that it was “Little Man.” Mun, who answered the door, mentioned that Dyer had run out the back. Phillips indicated he was not sure why Mun told them about Dyer. Armstrong then went around the side of the house, and Phillips and Kettler went inside. After Phillips completed his drug sale, Armstrong entered the house and began asking where Dyer was because he had not found Dyer behind the house. Next, Armstrong ran through the house, toward the back rooms, and Johnson stood up and ran out the front door. Phillips testified that he tried to get Armstrong to leave, but then he heard “some tussling” and saw Dyer and Armstrong wrestling over a gun. Phillips did not know who brought the gun to Shaw’s house, but he assumed it was Arms trong; he specifically denied carrying a gun into Shaw’s house himself.
Phillips told the jury that he was not going to let Dyer hurt his friend, so he tried to break up the fight. When his initial efforts did not work, Phillips started hitting Dyer “in his face area.” These efforts did not stop Dyer, so Phillips grabbed an ashtray out of the living room and hit Dyer over the head several times. Phillips also bit Dyer. During this time, according to Phillips, Kettler also tried to break up the fight. At some point, Kettler yelled, “ ‘Come on, let’s get out of here. We didn’t come over here for this.” Kettler then ran toward the front of the house, and Phillips assumed Ket-tler left.
As the struggle continued, Dyer dropped the gun. Phillips picked it up, but in the process the gun went off. Phillips ran into the bedroom, and Dyer jumped on his back. This caused Phillips to stumble and “[t]wo shots went off.” Phillips broke lose from Dyer, and as Dyer “was falling, I let like two more shots go.” Phillips testified that the gun was still in his hand when he got into Williams’ car and he threw it on the back seat. When asked whether it was his intention to shoot Dyer, Phillips testified, “No, it wasn’t. I had no reason to. I don’t believe I would have had a reason. That’s not my style.”
Armstrong’s Versions
Armstrong’s sworn statement included some of the same details. There were significant differences, however, including his explanation of why the four went to Shaw’s house, which was to “[bjlow Dyer’s head off.” He also stated that he initially carried the gun that had been removed from the dash of Williams’ car, but, after the men could not find Dyer in Shaw’s backyard, Phillips grabbed the gun from Armstrong and entered the house. Armstrong, Ket-tler, and Williams followed. The fight initially involved Kettler, Phillips, and Dyer, while Williams stood nearby. During the struggle, Kettler had Dyer briefly subdued, but then Dyer got loose and jumped on Phillips’ back. At that point, Armstrong started hitting Dyer’s head with a glass ashtray and Dyer fell. After Dyer hit tire floor, Phillips “backed up and I [Armstrong] started backing up just to make sure that, you know, . . . wasn’t no chance I would get hit by the bullets because I already knew what was about to happen at that split second and that’s when [Phillips] just started shooting.” Phillips “was shooting to kill, but it was like he was kind of shooting land of wild . . . like he was just trying to hit him everywhere.” After the shots were fired, Phillips ran out of the house. Armstrong followed him and saw Kettler in the kitchen doorway with a knife. Armstrong stated that after the struggle moved from the bathroom to tire bedroom, Kettler went to the kitchen. “I guess before he got the knife, [Phillips] shot [Dyer].”
A transcript of Armstrong’s testimony from his own, separate trial was also admitted into evidence at the trial of Williams, Ket-tler, and Phillips. This version of events put yet another spin on the facts. Armstrong indicated that he, Williams, Kettler, and Phillips went to Shaw’s house to collect money that Shaw owed to Kettler. After all four men went into the house and Shaw paid Kettler, they heard the sound of a curtain being snatched back and saw Dyer “came out [of] the bathroom with a black gun in one hand and a silver gun in the other.” Dyer said, “[Y]ou-all drop out,” meaning everyone give him their “property.” Phillips was able to hit Dyer “so hard that one gun flew out of his hand and hit the wall so hard that the clip fell out of it.” Kettler and Phillips “lunged after the other gun.” After wrestling around and after Armstrong hit Dyer on the head with an ashtray, Phillips tried to run away, but Dyer ran after Phillips and “grabbed him by the back of his neck.” So Armstrong grabbed Dyer and hit him again three times, causing Dyer to drop to the floor. That is when Phillips “came out of nowhere” and “started shooting” at Dyer. Phillips, Kettler, and Armstrong ran out of the house.
On Armstrong’s way out of the house, he saw Williams leaning down to pick up the first gun that Dyer had dropped. He did not see what happened to the gun after that. Williams followed Armstrong out of the house, and the four friends drove away in Williams’ car. According to Armstrong, they did not plan to kill Dyer: “We did not go over there intending to kill him. We didn’t have a gun to go over there to kill him with. He got shot with his own gun.”
Other Evidence
In other evidence, jurors heard from some of Shaw’s neighbors who described a car drat matched the description of Williams’ car as being near Shaw’s house at the time of the shooting. One couple was following Williams’ car through the neighborhood. They reported seeing three men get out of the car and approach Shaw’s house; one of the men walked to the door and the others ran around the side of the house, which made the couple suspicious. Meanwhile, the driver pulled forward, turned around, and parked. The description of the driver they provided was consistent with Williams’ appearance. After the shooting, another neighbor saw “three or four” men run out of Shaw’s house and get into a parked car.
The jurors also heard the testimony of Renee Stewart, who testified that Williams and Kettler came to her house the night Dyer was shot. Based on things that were said, Stewart concluded Williams had shot someone. She reported that he seemed very nervous, and he wiped down a 9 mm pistol and some ammunition and asked her to hide the gun. She later sold the gun for drugs. She also indicated that several days before the shooting she had given Kettler and Williams a ride and Kettler had left a box of 9 mm ammunition in the glove box. Law enforcement officers testified they found the ammunition as described by Stewart; a few bullets were missing from the box and the ammunition matched the type and brand of the fired bullets recovered from Dyer’s body and Shaw’s house.
After weighing all the evidence, the jury convicted Phillips of premeditated first-degree murder, conspiracy to commit first-degree murder, and criminal possession of a firearm. Phillips filed a timely appeal, over which this court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; maximum sentence of life imprisonment imposed).
Mistrial Did Not Result in Double Jeopardy
Phillips argues his second trial violates the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights. Both provisions protect a criminal defendant from multiple prosecutions for tire same offense. See Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982); State v. King, 297 Kan. 955, 970, 305 P.3d 641 (2013); Hudson v. State, 273 Kan. 251, 253, 42 P.3d 150 (2002). Since 1824, however, it has been established that “a failure of the jury to agree on a verdict [is] an instance of ‘manifest necessity’ which permitfs] a trial judge to terminate tire first trial and retry the defendant [without violating the Double Jeopardy Clause], because ‘the ends of public justice would otherwise be defeated.’ [United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)].” Richardson v. United States, 468 U.S. 317, 323-24, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984).
Phillips recognizes that a deadlocked jury creates a manifest necessity for a mistrial, and he does not question the appropriateness of a mistrial ruling in his first case. In fact, he admits: “[I]t is clear that a mistrial was necessary because the jury was hopelessly deadlocked.” Instead, Phillips is concerned solely with the mechanism triggering the State’s ability to retry him. He contends the Kansas criminal mistrial statute, K.S.A. 22-3423, requires an oral pronouncement from the bench in which the trial court actually “declares” or “orders” a mistrial. He points to the record in this case and notes that the trial judge never articulated a pronouncement of a mistrial using specific language, such as, “I declare a mistrial” or “I order a mistrial.”
The record supports Phillips’ argument. It reflects that tire trial court brought the jury into the courtroom, and the presiding juror informed the court that die jury was “deadlocked.” The court then addressed the jurors, telling them, in part: “You have now completed your duties as jurors in this case, and you’re discharged with the thanks of the Court.” In other comments to the jurors, the trial court repeatedly used the word deadlocked, the same word that had been used by the presiding juror. Then, outside the presence of the jury, the court discussed the scheduling of a retrial. The court did not formally declare a mistrial during the proceedings on the record.
Despite the clear termination of the trial, the discharge of the jury, and the scheduling of a second trial, Phillips argues the failure to formally order a mistrial as required by K.S.A. 22-3423 means the second trial violated his right to be protected from double jeopardy.
Preservation Issue
The State raises a preliminary question of whether this court should even address the merits of Phillips’ double jeopardy argument because Phillips did not raise an objection in either trial—at the close of tire first trial or the beginning of the second trial— regarding a mistrial ruling (or lack thereof) and double jeopardy.
Generally, a theory not asserted before the trial court—even an issue raising a constitutional question-—cannot be raised for the first time on appeal. Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967); accord State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). There are three exceptions to the rule: (1) The newly asserted theory involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010); see Pierce, 200 Kan. at 80-81.
Phillips relies on the second exception and asks this court to consider whether the double jeopardy prohibition barred his second trial; doing so, according to Phillips, would serve the ends of justice and prevent tire denial of a fundamental right. Under the second exception, this court has previously considered allegations of double jeopardy violations that were raised for tire first time on appeal when the issue has been the multiplicity of convictions. See, e.g., State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013); State v. Harris, 284 Kan. 560, 569, 162 P.3d 28 (2007); State v. Groves, 278 Kan. 302, 303-04, 95 P.3d 95 (2004), overruled on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006). We have also considered Double Jeopardy Clause violations for the first time on appeal where a defendant questions a trial court’s decision to declare a mistrial, although the standard of review is altered because of the lack of objection. See State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (where defendant does not object or consents to mistrial, the “ ‘manifest necessity’ ” standard has no place in application of Double Jeopardy Clause and the Clause is implicated only if the “ prosecutorial conduct giving rise to the mistrial intended to “goad” tire defendant to move for a mistrial’ ”).
Graham and similar cases are not a perfect analog for this case, where Phillips asserts a procedural defect in the manner the first trial was terminated rather than a substantive argument about the justification for tire mistrial. Nevertheless, these cases indicate that appellate review of a potential Double Jeopardy Clause violation can happen under the second preservation exception, even if there was not a trial objection.
Furthermore, there is no impediment to our consideration of Phillips’ arguments for the first time on appeal because tire issue of whether there is a double jeopardy violation under either the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution or § 10 of the Kansas Constitution Bill of Rights is a question of law subject to unlimited review. State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007); Schoonover, 281 Kan. 453, Syl. ¶ 1. Likewise, an unlimited standard of appellate review is applied to the interpretation and construction of statutes, including the mistrial statute, K.S.A. 22-3423. See King, 297 Kan. at 971. Consequently, we consider the question of double jeopardy de novo, and our consideration is not dependent on findings or conclusions of the trial court.
Requirements of Mistrial Statute
K.S.A. 22-3423, the mistrial statute on which Phillips relies, provides in pertinent part:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
(d) The jury is unable to agree upon a verdict;
“(2) When a mistrial is ordered, the court shall direct that the case be retained on the docket for trial or such other proceedings as may be proper and that the defendant be held in custody pending such further proceedings, unless he is released pursuant to the terms of an appearance bond.” (Emphasis added.)
Our first task in construing the statutoiy language regarding a mistrial “order” is to ascertain legislative intent through an analysis of tire language employed, giving ordinary words their ordinary meaning. When a statute is plain and unambiguous, tire court does not attempt to determine tire intent behind it. On the other hand, if the statute’s language or text is unclear or ambiguous, the appellate court uses canons of construction or legislative history to construe the legislature’s intent. King, 297 Kan. at 972. As a general rule, criminal statutes must be strictly construed, and any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be a reasonable and sensible application of the legislative design and intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009).
In applying these rules regarding statutoiy construction, Phillips argues the legislature’s use of the word “shall” means that the order of mistrial must be specifically stated. Contrary to this argument, although the statutoiy language refers to ordering a mistrial, it does not use “shall” in the context of a directive to issue a formal pronouncement declaring or ordering a mistrial. Instead, the word “shall” is used in subsection (2) of K.SA. 22-3423 where the legislature provides that, in the event of a mistrial, the trial court “shall direct” that (1) “the case be retained on the docket” for retrial or other proceedings and (2) “the defendant be held in custody” pending further proceedings. The trial court did both of these things after clearly declaring die jury to be deadlocked.
Further, although there are no Kansas cases on point, cases from other jurisdictions reject the notion that a trial court must make a specific pronouncement using token “mistrial” language. The decision in United States v. Warren, 593 F.3d 540, 545 (7th Cir.), cert. denied 131 S. Ct. 428 (2010), is instructive because it is factually similar and dealt with a similar issue of statutoiy construction.
In Warren, the federal trial court, like the trial court in this case, told the deadlocked jury diat its service on the case was concluded, dismissed the jurors, and discussed scheduling matters with counsel without declaring or ordering a mistrial. Similar to Phillips’ statutory interpretation argument, the defendant in Warren argued that the federal counterparts to K.S.A. 22-3423, Rules 26.3 and 31(b)(3) of the Federal Rules of Criminal Procedure, require that a mistrial be formally “ ‘ordered’ ” or “ ‘declared.’ ” See Fed. R. Crim. P. 26.3 (“Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.”); Fed R. Crim. P. 31(b)(3) (“If the juiy cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retiy any defendant on any count on which the jury could not agree.”).
The Seventh Circuit Court of Appeals rejected the defendant’s argument that the trial court had to formally order or declare a mistrial, concluding there was no requirement that a trial “court must articulate the pronouncement of a mistrial using some particular verbal formulation.” 593 F.3d at 545. The court recognized that the federal rules refer to the ordering or declaration of a mistrial, but “they do not establish a rigid formula to which the trial court must conform to satisfy the constitutional and procedural interests at stake.” 593 F.3d at 546. Further, the appellate court stated that even if the federal district judge could be criticized for not orally pronouncing a mistrial using the “precise terms ‘order’ or ‘declare,’ her actions were certainly the functional equivalent of those terms.” 593 F.3d at 546.
This reasoning was adopted in Davidson v. United States, 48 A.3d 194 (D.C. Cir. 2012), cert. denied 134 S. Ct. 421 (2013), another case where the trial court never said the word “mistrial.” Citing Warren, the Davidson court held that the trial court’s “ ‘words and actions in discharging die juiy had the effect of “declaring a mistrial.” ’ ” Davidson, 48 A.3d at 199 (quoting Warren, 593 F.3d at 545); see Camden v. Circuit Court of Second Judicial Circuit, 892 F.2d 610, 616 n.7 (7th Cir. 1989) (“[T]he discharge and dispersal of the jury rendered the mistrial a fait accompli.”), cert. denied 495 U.S. 921 (1990).
Davidson and Warren provide persuasive authority for concluding that Phillips’ double jeopardy rights were not violated. Nothing in the plain language of K.S.A. 22-3423 requires the use of specific words in order for a mistrial to be recognized and the defendant’s constitutional rights be preserved. In Phillips’ case, tire trial court’s words and actions in discharging the jury had the effect of declaring a mistrial and, as in Davidson and Warren, were “ ‘certainly the functional equivalent’ ” of the terms “order” or “declare.” Davidson, 48 A.3d at 200 (quoting Warren, 593 F.3d at 545).
Phillips’ double jeopardy rights were not violated by a second trial.
Sufficiency of the Evidence
Next, Phillips argues that there was insufficient evidence to support his conviction for premeditated first-degree murder. Phillips admits that he shot and killed Dyer, but he denies going over to Shaw’s house for the purpose of killing Dyer and contends that the gun accidentally went off during a physical tussle involving Dyer, Armstrong, and Phillips. In other words, Phillips attacks the elements of intent to kill and premeditation.
Standard of Review and General Principles
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, 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 make witness credibility determinations. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).
When applying this standard to determine if there was sufficient evidence of premeditation, it must be remembered that premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004); see PIK Crim. 3d 56.04(b). Further, it is not necessary that there be direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In other words, “[ijntent. . . may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts. [Citation omitted.]” State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977).
In considering circumstantial evidence, Kansas caselaw identifies factors to consider in determining whether the evidence gives rise to an inference of premeditation that include: “(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant’s conduct before and after die 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. [Citation omitted.]” Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v. Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
Evidence Was Sufficient
A review of tire record shows evidence—both direct and circumstantial—of premeditation. Certainly the strongest evidence of premeditation came from Armstrong’s sworn statement, which establishes an agreement between Williams, Kettler, Armstrong, and, later, Phillips to kill Dyer in retribution for his robbing Williams at gunpoint. But there was other evidence of premeditation as well.
Focusing on the first factor traditionally considered as evidence of premeditation—the nature of the murder weapon-—Johnson testified the men entered tire house with guns. Armstrong stated a gun had been hidden, removed from its hiding place before the men got to the liquor store, and then taken with them—specifically, by Phillips—into Shaw’s house. Even in Phillips’ testimony, he assumed the murder weapon had been brought into the house by Armstrong. Moreover, during the struggle over the gun, there was evidence drat Kettler went to Shaw’s kitchen to retrieve a knife— an alternative, but deadly, weapon.
As for the second factor regarding lack of provocation, there was no evidence that Dyer did anything on the day of his death to entice Williams, Kettler, Phillips, and Armstrong to enter the house. Under any version of events other than Armstrong’s testimony at his own trial, the aggressors were Armstrong, Kettler, and/or Phillips, either individually or together, and Williams aided and abetted their efforts.
Patton provided evidence of the third and fourth factors—the defendants’ prior conduct and prior threats and declarations of the defendants before and/or during the occurrence. Patton testified that Williams had issued a challenge to him and Dyer. As to Phillips in particular, diere was evidence that he was die one who alerted his friends to Dyer’s whereabouts and that he grabbed the gun from Armstrong before entering the house. Then, on entering the house, he got in Johnson’s face “talkin’ about, ‘Bitch, where is he?’ ” Johnson apparently viewed this as a direai because she pretended not to know who Phillips was referring to because she “didn’t want [Phillips] to do nothing to [Dyer].” Further, even under Phillips’ version, Phillips inserted himself into an ongoing fight and, even after he had control of the gun, he did not leave with Kettler. Instead, he moved from the bathroom into the bedroom where the fight continued.
Finally, the fifth factor—the dealing of lethal blows after the deceased was felled and rendered helpless—also weighs toward a finding of premeditation. In Armstrong’s sworn statement, he indicated he had repeatedly hit Dyer in the head with a glass ashtray, causing Dyer to fall, and then Phillips fired several shots into Dyer as he was lying on the bedroom floor. Armstrong stated that Phillips was “shooting to kill.” Forensic evidence confirmed that shots were fired into the floor.
Phillips ignores these factors and die circumstantial and direct evidence against him. Instead, he points to evidence supporting his defense theory—that Dyer was accidentally lolled in a drug- deal. According to Phillips’ trial testimony, because he had just been released from jail, he was unaware of the past events involving Dyer’s robbery of Williams—the motive for the murder as stated by Armstrong in his sworn statement and his testimony at die joint preliminary hearing for Williams, Kettler, and Phillips. Phillips denied at trial, as he does in his appellant’s brief, going to Shawls house for the purpose of killing Dyer. Phillips also denied carrying a gun into Shaw’s house. Then, in describing the events at Shaw’s house, he indicated he came to Armstrong’s aid, and in the process accidentally shot Dyer.
The jury heard this evidence supporting Phillips’ defense dieoiy, but the jury also heard evidence incriminating Phillips—evidence from which a rational factfinder could conclude that the lolling of Dyer was intentional and premeditated. In fact, Phillips admits that the State presented evidence of premeditation and . intent to kill, but he complains about die weight the juiy gave to that evidence: “To convict the Defendant Phillips of that charge [premeditated first-degree murder], beyond a reasonable doubt, the jury would have [had] to believe Armstrong’s version of what happened.” He argues that Armstrong was not credible because Armstrong had provided varied accounts of what happened on the date of the incident; Armstrong had recanted his accusatoiy statements against Phillips and the others; and Armstrong displayed uncooperative and belligerent behavior during his testimony. Phillips argues that “no rational fact finder would believe an admitted bar who recanted his entire stoiy of Phillips’ deliberate shooting .... The only believable rendition of events was Phillips’, who testified that he didn’t intend to kill Dyer.”
To reach the result Phillips requests, this court would have to make its own determination of credibility and reweigh the evidence, but these are not tasks an appellate court performs when conducting a sufficiency review. Instead, an appellate court con siders all evidence—even if there is conflicting evidence or reasons to question its credibility—and does so in the light most favorable to the State. See State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012). Factfinders—in this case the jurors, not appellate judges—make credibility determinations. Thus, Armstrong’s incriminating and accusatoiy statements are part of our consideration.
Further, the more incriminating versions of events relayed by Armstrong are consistent with other direct and circumstantial evidence, including the testimony of Patton, Johnson, and Mun; the observations of several of Shaw’s neighbors; and much of the evidence gathered in the investigation, including videos from cameras at the liquor store, phone records, and the nature and location of Dyer’s wounds. See Scaife, 286 Kan. 614, Syl. ¶ 3 (“[A] factfinder is permitted to reasonably infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude every other reasonable conclusion or inference.”). During the State’s closing argument, the prosecutor spent considerable time detailing the discrepancies between the physical evidence and Phillips’ testimony of how the fight played out. The prosecutor also pointed out the discrepancies between Phillips’ proffer and his testimony and argued Phillips’ version was not credible in light of the physical evidence regarding blood stains and the location of the abrasions, bite marks, and bullet wounds on Dyer’s body.
Thus, the evidence from Armstrong’s sworn statement is not so incredible that it must be disregarded. See State v. Brinklow, 288 Kan. 39, 53-54, 200 P.3d 1225 (2009) (identifying State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 [1983], as “perhaps the only case of its kind in this state where the Supreme Court directly weighed the evidence and assessed the credibility of the prosecutrix,” calling Matlock “aberrant,” and concluding in the case before it that the “inconsistencies in the evidence did not render [the victim’s] testimony... so incredible or improbable as to defy belief’); accord State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997).
In summary, various versions of events were presented to the juiy through an assortment of witnesses and other evidence. In this mix of testimony, there was sufficient evidence when viewed in the light most favorable to the State that a rational factfinder could have found beyond a reasonable doubt that Phillips and the others premeditated the killing of Dyer and that he intended to kill Dyer when he shot Dyer after Dyer fell to the floor.
Prosecutorial Misconduct
Next, Phillips, in an identical argument to tire one advanced by codefendants Williams and Kettler, contends the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation.” A misstatement of the law during a prosecutor s closing argument can deny a defendant a fair trial when “the facts are such that the jury could have been confused or misled by the statement.” State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).
Standard of Review
To determine whether a prosecutor committed reversible misconduct, we first decide if the challenged comment exceeded the wide latitude of language and manner afforded the prosecutor when discussing the evidence. If tire comment was outside these bounds, we next decide if the comment constitutes reversible error, which requires a finding that the comment was so prejudicial as to deny the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
In analyzing the second step of whether the defendant was denied a fair trial, we consider 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. Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 93.
Before the third factor 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). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman, the United States Supreme Court directed that a constitutional error can be deemed harmless only if “the party benefitting from die 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). If the error does not violate the United States Constitution, the harmless error analysis is defined in K.S.A. 60-261, and the test is whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.” 292 Kan. 541, Syl. ¶ 6.
Even though we have applied this dual harmless error standard, we also have observed that as a practical matter the result of the harmless error evaluation depends on the outcome of the constitutional standard. “[B]oth the constitutional and nonconstitutional 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. See Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
Alleged Misconduct
Here, the alleged prosecutorial misconduct occurred when the prosecutor was describing the elements of premeditated first-degree murder and stated:
“There are basically three elements to that offense that the State needs to prove to you. First, that the killing of James Dyer, Jr. was done intentionally, that means purposefully], willfully, but not by accident. And well get into each one of these and how tire evidence applies to these, but I guess in summary, James Dyer did not die by accident. He was intentionally murdered by tírese individuals. The second ... is that it was done with premeditation. What that means is .. . that they thougfrt it over before they went in and did it. That’s what premeditation is. There’s even an instruction about what does that mean, thought it over, ijou could think it over, just a half second before you actually fired the fatal shot, that’s true, but that’s for you to decide whether or not they thought it over before they actually committed tire act.
“Again, I would suggest that the evidence does support the fact that these three, along with Mr. Armstrong, clearly thought over what they were about to do before they went to Rhonda Shaw’s house. This was no happenstance. This was no accident. This is something these four individuals thought about as they made their way over to Rhonda Shaw’s house. It’s the reason they went there, was to get James Dyer.” (Emphasis added.)
Misstatement of Law
Phillips contends that the prosecutor s “half second” description of premeditation is analogous to stating premeditation can be instantaneous—language this court disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Phillips makes a persuasive point.
In Holmes, the victim was shot and killed in a straggle over a gun. The defendant was convicted of premeditated first-degree murder, although there was no evidence of premeditation before the struggle began. During closing argument, the prosecutor stated that “ premeditation can occur in an instant. That’s the law in the State of Kansas.’ ” 272 Kan. at 497. Then, in rebuttal the prosecutor stated that “ premeditation can take a second. ... It can happen in a second.’ ” 272 Kan. at 497. This court determined that the prosecutor’s statements constituted a deliberate misstatement of the law, noting the prosecutor had been cautioned in the jury instructions conference before argument began to avoid such comments. Cumulatively, the lack of evidence of premeditation before the struggle began and the deliberate nature of the comments convinced this court that the prosecutor’s misconduct created reversible error. 272 Kan. at 499-500.
Consistent with Holmes, this court has repeatedly warned prosecutors about going outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that are analogous to stating premeditation can occur in the same instant as the act that results in a death. See, e.g., State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011) (prosecutor’s statement during closing argument that defendant could have formed premeditation after the pull of the first trigger, “because remember, he pulls four times,” improperly stated the law and essentially suggested that premeditation could have been formed instantaneously); State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) (“We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous.”); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (reversible error for prosecutor to imply premeditation can be instantaneous, based on closing argument that “ ‘[o]ne squeeze of a trigger is all it takes’ ”); State v. Pabst, 273 Kan. 658, 662, 44 P.3d 1230 (“A discussion of PIK Crim. 3d 56.04[b] in closing argument should avoid any temptation to use a synonym to convey the suggestion of ‘an instant’ without using the actual phrase.”), cert. denied 537 U.S. 959 (2002); State v. Moncla, 262 Kan. 58, 70-73, 936 P.2d 727 (1997) (adding phrase “ ‘it may arise in an instant’ ” to pattern instruction on premeditation was inappropriate; use of such language tended to diminish importance of the element of premeditation).
The State suggests that while the prosecutor’s “half second” reference was inartful, the prosecutor was merely tiying to convey that the jury could find the decision to kill Dyer occurred in half a second, and it was the juiy’s duty to determine if that constituted “thinking it over beforehand.” This argument is not persuasive. The prosecutor’s statement informed the jury that the “beforehand” period could be a half second. Further, the descriptive term “half second” is obviously a shorter period of time than the “ ‘in a second’ ” phrase disapproved in Holmes and is not significantly different than saying “ ‘in an instant’ ” or in a “ ‘squeeze of a trigger,’ ” as disapproved in several cases. As in those cases, Phillips’ juiy could have taken the prosecutor’s choice of words as suggesting that premeditation can be instantaneous with the homicidal act. As such, we conclude the prosecutor misstated the law.
Not Reversible Error
With prosecutorial misconduct established, it is necessary to determine whether the error requires reversal under the second analytical step. As we have discussed, this requires a harmlessness inquiiy using three factors. See Bridges, 297 Kan. at 1012.
In assessing the first of these factors of whether gross and flagrant conduct occurred, a misstatement of the law can be considered gross and flagrant, especially if the statement is contrary 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 improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); accord State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). Given our past advice that prosecutors should be especially careful in discussing the meaning of the term “premeditation,” we conclude the misconduct was gross and flagrant.
Nevertheless, we do not find evidence of ill will. A prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct.’ [Citation omitted.]” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). These circumstances do not exist in this case. The misstatement was isolated and surrounded by correct statements of law. As shown in the portion of the transcript quoted above, both before and after the reference to the “half second,” the prosecutor mentioned correctly that premeditation means “thought it over” beforehand. The prosecutor argued that the evidence showed that Phillips and the others thought over the killing of Dyer before they arrived at Shaw’s house.
Even so, Phillips contends that the prosecutor’s ill will can be shown by this case’s “long and tortured path, including a mistrial” in the first trial and by what Phillips characterizes as Armstrong’s “personal attack” on the prosecutor. Presumably, Phillips is referring to the fact that Armstrong cursed on the witness stand and demonstrated an uncooperative attitude towards the prosecutor— the same prosecutor from Armstrong’s second trial, during which Armstrong was convicted of premeditated first-degree murder. Phillips contends that the prosecutor “would be less than human if he did not feel ill will towards the defendants.”
But a review of the record does not show any ill will on the part of the prosecutor or any connection between (l) the prosecutor’s performance in the second trial and the former mistrial or (2) the State’s separate prosecution of Armstrong. Consequently, we conclude there was no deliberate misconduct or ill will.
Turning to the third factor, whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in tire minds of the jurors, we conclude there is no reasonable possibility the misstate ment affected the verdict. The State’s theory of premeditation was that Williams, Kettler, Phillips, and Armstrong went into Shaw’s house with tire intent to kill Dyer. In fact, immediately upon making the misstatement, the prosecutor said that Williams and the others went to Shaw’s house “to get” Dyer and they thought about getting him on their way from the liquor store to the house. This theme was repeated and emphasized throughout the closing argument. As we have discussed, there was considerable evidence to support this theory, which distinguishes this case from Holmes, 272 Kan. at 499-500, where this court reversed a defendant’s conviction because of a similar statement. Further, the State did not discuss or emphasize any version of the facts that would suggest any of the defendants premeditated the murder in an instant or a half second.
In addition, the trial court properly instructed the jury on the definition of premeditation and instructed the juiy that arguments of counsel were not evidence. Specifically, the trial court gave PIK Crim. 3d 56.04(b) (premeditation) in conjunction with the instruction on first-degree murder prior to the parties’ closing arguments. See State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000) (“Consistent with our past decisions, we conclude that the definition of premeditation’ in PIK Crim. 3d 56.04[b] adequately conveys die concept that ‘premeditation’ means something more than the instantaneous, intentional act of taking another’s life.”).
Because we presume the jury followed the court’s instructions, 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 a juiy was misled.”); State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (prosecutor’s improper comment regarding premeditation was not reversible error when there was no evidence that prosecutor deliberately misstated the law, juiy was given proper PIK instruction on premeditation, and jury was told that arguments of counsel were not evidence); State v. Doyle, 272 Kan. 1157, 1165-66, 38 P.3d 650 (2002) (no indication prosecutor purposefully misstated the law and evidence of premeditation was strong); Jamison, 269 Kan. at 572-73 (pros ecutor’s misstatement on the law on premeditation was not reversible error when the jury was properly instructed on the law).
In light of the jury instructions, the facts of the case, and the theme of the prosecutor’s argument that the premeditation had occurred before Phillips and the others arrived at Shaw’s house, we conclude tire jury would not have been confused or misled by the prosecutor’s misstatement. The State has demonstrated beyond a reasonable doubt that the prosecutor’s misstatement did not affect the outcome of the trial and does not require reversal.
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The opinion of the court was delivered by
Nuss, C.J.:
Patricio Briseno appeals his convictions on one count of first-degree premeditated murder and three counts of attempted first-degree murder arising out of a drive-by shooting. The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court commit reversible error by failing to give an unrequested limiting jury instruction regarding evidence of Briseno’s gang membership? No.
2. Did the district court commit reversible error by instructing the jury it could consider the degree of certainty with which eyewitnesses identified Briseno? No.
3. Did the district court commit sufficient errors to deprive Bri-seno of a fair trial? No.
Accordingly, we affirm Briseno’s convictions.
Facts and Procedural Background
Four teenage boys, Ricardo Zamora, Edgar Gracia, Francisco Hernandez, and David Linares, were gathered in front of Hernandez’ house in Kansas City, Kansas. At approximately 3:10 p.m., a black SUV approached the house, and one of its occupants started shooting. The boys tried to run, but several bullets struck 13-year-old Zamora, mortally wounding him. A bullet also hit Gracia, but he recovered from his wound. Hernandez and Linares escaped without physical harm.
The wounded Gracia told police at the scene he was a member of the F-13 gang and the decedent Zamora was affiliated with it. Gracia also said F-13 was feuding with a rival street gang named SPV.
Police eventually located and interviewed Hernandez and Lin-ares. Hernandez told detectives he also was a member of F-13. He said that as the black SUV approached the boys, decedent Zamora yelled “SPV” and a vehicle occupant started shooting. According to Hernandez, he did not know who was in the SUV or who was responsible for the gunshots.
Linares gave a substantially similar account. Pie initially told detectives he did not know who was in the SUV. But he eventually said Briseno and a man known as “Droopy” were occupants. According to Linares, the driver was Briseno. Detectives later identified Droopy as Briseno’s codefendant Juan Lopez.
Police then contacted Briseno at a Briseno family residence. Bri-seno or one of his family members told the officers he had a black SUV parked in a neighbor s garage across the street. The neighbor allowed police in the garage, where they found an SUV matching the description of the one involved in the shooting.
The State charged both Briseno and Lopez with one count of first-degree premeditated murder (Zamora) and three counts of attempted first-degree murder (Gracia, Hernandez, and Linares). The two defendants were tried together.
The State filed a motion to admit evidence showing Briseno belonged to the SPV gang, which the court granted. Multiple witnesses then testified Briseno was indeed such a member. Briseno did not request a limiting instruction informing the juiy the gang evidence was admitted only for a specific purpose, and die court did not give one on its own.
Several eyewitnesses also identified Briseno as the driver of the black SUV. Patrick Fischer testified that he was delivering mail in the neighborhood on die day of the shooting. As he was preparing to cross the street two houses away from Hernandez’ house, he noticed a black SUV approaching from his right. Fischer looked directly at the driver to determine whether he had time to cross in front and observed the driver was a young, Hispanic male with facial hair. Fischer also observed the SUV had four occupants.
As Fischer crossed the street in front of the SUV, he noticed the group of boys to his left in front of Hernandez’ house, aldiough he erroneously testified the group contained three boys and a girl. Once die SUV passed behind him, Fischer heard gunshots from behind and to his left. He ducked behind a cinderblock wall and counted approximately seven gunshots before he looked up and saw a gun sticking out of the SUV’s rear passenger window.
Fischer told police at the scene he did not recognize the SUV’s occupants. Several days later he looked at a photo lineup, and with 70% assurance he identified Briseno as the driver. But when Fischer later testified at the preliminary hearing, he failed to identify Briseno in the courtroom. He eventually identified Briseno at trial, however. After counsel for the State and Briseno both inquired about his degree of certainty in making the identification, Fischer responded he was “sure” and “confident” that Briseno was the driver. But Fischer could not identify the shooter.
Jacqueline Segura also identified Briseno in her testimony. According to Segura, she was sitting in traffic at a stop sign approximately a half block from where the shooting occurred when she saw a black SUV speed through the intersection from the opposite direction. She believed the SUV had three or four occupants, but she was unsure because of its tinted windows.
Segura testified that the driver was a young, Hispanic male. She then specifically identified Briseno as the driver. Segura was able to identify Briseno because she had seen him driving the same SUV around the neighborhood on previous occasions.
In addition to observers Fischer and Segura, at trial F-13 member Hernandez also testified to identify Briseno as the SUV driver and to acknowledge Linares as a gang member. Finally, while Lin-ares was unavailable to testify, the State presented evidence through a detective that in a prior interview Linares had also identified Briseno as the driver. The district court ultimately instructed the jury that it could consider the degree of certainty with which the eyewitnesses identified Briseno as the driver.
The jury convicted Briseno, but acquitted Lopez, of one count of first-degree premeditated murder and three counts of attempted first-degree murder. The court sentenced Briseno to a hard 25 life sentence for first-degree premeditated murder and concurrent sentences of 155 months for each of the other counts. Jurisdiction over Briseno’s appeal is proper under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed).
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court did not err by failing to give a limiting instruction regarding evidence of Briseno’s gang membership.
Briseno argues that the district court committed reversible error by failing to give an instruction advising the jury of the limited purpose for which the evidence of his gang membership was admitted. He did not request a limiting instruction but contends that gang evidence is so inherently prejudicial that its admission should require such an instruction in all circumstances. According to Bri-seno, that failure to instruct is reversible error because the State’s other evidence was weak, permitting the jury to give undue weight to his gang affiliation.
The State responds Briseno has failed to meet his burden of proving the failure to give the unrequested instruction constituted clear error. We agree with the State.
Standard of review and framework
Because Briseno failed to request the instruction, our standard of review is informed by K.S.A. 22-3414(3) and State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012). As we stated in Williams, a jury instruction issue, like other issues, is subject to a stair-step process on appeal:
“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.” Williams, 295 Kan. 506, Syl. ¶ 1.
As for the first step, we have recognized that K.S.A. 22-3414(3) creates a higher hill for a party that fails to request an instruction:
“K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court’s giving or failure to give a particular jury instruction . . . unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.” Williams, 295 Kan. 506, Syl. ¶ 3.
As we restated in State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013), the test for determining whether a jury instruction is clearly erroneous is composed of two parts:
“First, ‘the reviewing court must . . . detennine 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 Williams, 295 Kan. 506, Syl. ¶ 4).
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 tire instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.’ Williams, 295 Kan. 506, Syl. ¶ 5.” 296 Kan. at 1121.
Accordingly, we must first determine if the limiting instruction should have been given because it was legally and factually appropriate.
Discussion
We have consistently held that, “absent a request for a limiting instruction concerning gang evidence and absent any objection for failure to give a limiting instruction on gang evidence, a trial court is not obligated to give such an instruction.” State v. Conway, 284 Kan. 37, 50, 159 P.3d 917 (2007); see State v. Gholston, 272 Kan. 601, 614-15, 35 P.3d 868, cert. denied 536 U.S. 963 (2002); State v. Jamison, 269 Kan. 564, 568, 7 P.3d 1204 (2000). In Conway, we considered, and then explicitly rejected, the same argument Bri-seno advances in his case: that evidence of gang affiliation is so inherently prejudicial that district courts should always give a limiting instruction when it is admitted. But Briseno provides no reason why we should reconsider our long-standing rule, and we decline to do so.
And Briseno does not argue the court abused its discretion in weighing the probative value of his gang affiliation against the potential for prejudice. See State v. Peppers, 294 Kan. 377, 391, 276 P.3d 148 (2012) (balancing gang evidence’s probative value against prejudice is reviewed for an abuse of discretion). Accordingly, we do not address that issue. See State v. Frierson, 298 Kan. 1005, 1021, 319 P.3d 515 (2014) (issue not briefed is deemed waived or abandoned).
So the district court did not err by failing to give a limiting instruction. Because there was no error, our analysis of Briseno’s argument ends. See Williams, 295 Kan. 506, Syl. ¶¶ 4-5 (If error is found, the court must determine whether it was clear error and therefore reversible.).
Issue 2: The district court did not commit reversible error by instructing the jury it could consider the degree of certainty 'with which eyewitnesses identified Briseno.
Briseno next argues that the district court committed reversible error by failing to delete subparagraph 6 of PIK Crim. 3d 52.20 from the cautionary instruction given to the jury about eyewitness identification testimony. The instruction stated in full:
“The law places the burden upon the State .to identify the defendant. The law does not require the 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, die extent to which diey 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 die witness to observe, the length of tíme of observation, and any limitations on observation like an obstruction or poor lighting;
“2. The emotional state of the witness at die time including that which might be caused by the use of a weapon or threat of violence;
“3. Whether die witness had observed the defendants on earlier occasions;
“4. Whether a significant amount of time elapsed between die crime charged and any later identification;
“5. Whether the witness ever failed to identify die defendants 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. Whedier there are any odier circumstances diat may have affected die accuracy of the eyewitness identification.” (Emphasis added.)
Briseno emphasizes this court explicitly disapproved subpara-graph 6 in State v. Mitchell, 294 Kan. 469, 275 P.3d 905 (2012). There we held tire degree-of-certainty factor, as worded in PIK Crim. 3d 52.20, should not be included in jury instructions because it prompts the jury to conclude that eyewitness identification is more rehable when tire witness expresses greater certainty. 294 Kan. 469, Syl. ¶ 4. According to Briseno, use of this degree-of- certainty factor constitutes clear error because it improperly focused the jury’s attention on the certainty of the eyewitnesses.
The State concedes use of this factor in the instruction is erroneous per Mitchell. But the State contends that because Briseno did not request the instruction, reversal requires clear error and he has not met his burden of showing it. Again, we agree with the State.
Standard of review
We agree with the State that because Briseno did not object to this instruction, we apply the same clearly erroneous framework and standard of review already discussed. See Herbel, 296 Kan. at 1121 (citing Williams, 295 Kan. 506, Syl. ¶¶ 1, 3).
Discussion
Briseno focuses his attack on mail carrier Fischer’s testimony. Briseno argues the error in using the degree-of-certainty factor in the instruction was clear error because Fischer was the State’s most important and rehable witness.
The State correctly concedes the legal error of including this factor in the instruction. See Mitchell, 294 Kan. at 481; State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200, cert. denied 133 S. Ct. 529 (2012). And we have held the factor’s inclusion is erroneous even if, as here, the trial occurred before release of those opinions. See State v. Marshall, 294 Kan. 850, 867, 281 P.3d 1112 (2012). With the State’s concession of error, we proceed to whether it was clear error, i.e., one requiring reversal.
As mentioned, an instruction is clearly erroneous only if “the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Williams, 295 Kan. at 516. To make this determination for Briseno, we first consider (1) whether the identification was crucial to the State’s case and (2) whether there was an opinion of certainty stated by the eyewitness. State v. Cruz, 297 Kan. 1048, 1068, 307 P.3d 199 (2013).
Here, the answer to both inquiries is indisputably “yes.” The State concedes, without explanation, that Fischer’s identification of Briseno was crucial to its case. At the outset we observe the State bears the burden of identifying the defendant, and a defendant is never responsible to prove that he or she has been misidentified. See Marshall, 294 Kan. at 869 (quoting Perry v. New Hampshire, 565 U.S. _, 132 S. Ct. 716, 729, 181 L. Ed. 2d 694 [2012]); PIK Crim. 3d 52.20. And we agree Fischer was crucial: as Briseno argues, Fischer was the State’s only witness who was not a gang member who testified Briseno was driving the black SUV when the shots were actually fired. The importance of Fischer’s contribution is reinforced by Briseno’s argument that the jury only acquitted his codefendant Lopez because, unlike Fischer identifying Briseno, no reliable eyewitness identification testimony placed Lopez at the crime scene. Only Gracia and Linares, both gang members, identified Lopez as the shooter.
The parties also agree eyewitness Fischer stated an opinion expressing his degree of certainty. Fischer testified multiple times to his degree of certainty about Briseno’s identification, and both the State and defense counsel asked Fischer how confident he was in his identification.
But just because an identification is crucial to the State’s case and the eyewitness states an opinion of certainty, our inquiry does not end. Instead, we next “ ‘consider the impact of the jury instruction in light of the entire record and additional considerations.’ ” Cruz, 297 Kan. at 1069 (quoting Marshall, 294 Kan. at 868). This particular review requires consideration of procedural safeguards and the total amount of inculpatory evidence. See State v. Dobbs, 297 Kan. 1225, 1238-40, 306 P.3d 1258 (2013).
When reviewing an erroneous eyewitness jury instruction in Marshall, we considered several procedural safeguards enunciated by the United States Supreme Court in Perry. We recognized the presence of those safeguards diminishes the risk the jury placed “ undue weight on eyewitness testimony of questionable reliability.’ ” 294 Kan. at 869 (quoting Perry, 132 S. Ct. at 728). As we later stated in Dobbs:
“Those safeguards include, but are not limited to, [1] the defendant’s constitutional right to confront the witnesses against him or her; [2] the defendant’s constitutional right to effective assistance of counsel ‘who can expose the flaws in the eyewitness’ testimony during cross-examination and focus, the juiy’s attention on the fallibility of such testimony during opening and closing arguments’ [3] eyewitness-specific jury instructions that “ ‘warn the jury to take care in appraising identification evidence’ and [4] the constitutional requirement that the State prove eveiy element of the crime beyond a reasonable doubt.” Dobbs, 297 Kan. at 1238 (quoting Marshall, 294 Kan. at 868-69 [quoting Perry, 132 S. Ct. at 728-29]).
In Dobbs, we considered whether a degree-of-certainty factor in the eyewitness identification jury instruction was clearly erroneous. We concluded it was not in light of the relevant procedural safeguards and the entire record. See 297 Kan. at 1241.
In reaching our conclusion, we emphasized that Dobbs took advantage of the relevant procedural safeguards. Specifically, we noted that he availed himself of vigorous cross-examination that exposed inconsistencies or errors in the identifying eyewitness’ testimony. During closing arguments, his lawyer also reminded the juiy of the eyewitness’ inconsistencies and ambiguities.
We further concluded in Dobbs that other significant evidence linked Dobbs to the crime. Because the State did not rely solely on the eyewitness’ testimony, we discounted tire impact that the erroneous instruction had on the jury’s verdict. Dobbs’ result is also consistent with other cases where we have considered this issue. See e.g., Cruz, 297 Kan. at 1070 (concluding that an erroneous degree-of-certainty instruction was not clearly erroneous); Marshall, 294 Kan. at 868-69 (same). And we now reach the same conclusion here.
Briseno had the benefit of each procedural safeguard identified in Perry. His counsel exercised Briseno’s right to confront his accuser. See Perry, 132 S. Ct. at 728-29. Counsel attacked Fischer’s credibility by questioning Fischer about inconsistencies in his testimony, including identifications he made on the day of the shooting, during the police lineup, at the pretrial hearing, and later at trial. Defense counsel also emphasized discrepancies in Fischer’s testimony regarding the color and model of the dark SUV. Her cross-examination about these inconsistencies cast some doubt on the reliability of Fischer’s identification.
Additionally, defense counsel emphasized that Fischer originally told police he only saw the driver’s facial hair and the driver had a hat pulled low over his face. These questions cast further doubt on Fischer s ability to perceive the driver’s identity. Further, Fischer’s eyewitness identification was subject to cross-examination not only by counsel for Briseno but also by codefendant Lopez. For example, Lopez’ counsel used Fischer’s professed degree of certainty against him by reminding the jurors that Fischer was also “sure” that there had been a girl in the group of boys.
During closing argument, Briseno’s counsel again attacked Fischer’s credibility. See Perry, 132 S. Ct. at 728-29. She reminded the jury that Fischer initially told police he only “got a glimpse” of the driver, who had a hat pulled low over his face. She also noted that Fischer had become more certain in his identification since the day of the shooting, suggesting his testimony may have been affected by die police lineup and his repeated opportunities to view Briseno once the court proceedings began. Finally, she emphasized other errors and inconsistencies in Fischer’s testimony, including his testimony that a girl was with the boys.
As to the last two procedural safeguards from Perry, they are unquestionably present here. See Perry, 132 S. Ct. at 728-29. Although this court has concluded that district courts should not use the degree-of-certainty subparagraph of PIK Crim. 3d 52.20, the remaining six subparagraphs provided the jurors with valuable warnings about the potential hazards of eyewitness testimony, e.g., “(2) [t]he emotional state of die witness at die time including that which might be caused by the use of a weapon or threat of violence.” Finally, the State obviously had the burden of proving Bri-seno guilty beyond a reasonable doubt. See K.S.A. 21-3109.
We additionally observe that Fischer’s eyewitness identification was not the only evidence linking Briseno to this crime. See Dobbs, 297 Kan. at 1240 (other circumstantial evidence linked defendant to crime). Specifically, Segura’s testimony identified Briseno— whom she knew from the neighborhood—as the driver of the black SUV speeding away from the scene only moments after the shooting. The State also presented evidence that both Hernandez and Linares named Briseno as the SUV’s driver. Finally, circumstantial evidence linking Briseno to the SUV on the day of the shooting was introduced throughout the trial, e.g., he had an SUV matching the description of the one used in the shooting. Fischer’s eyewitness testimony was important to the State’s case, but it was far from the only evidence implicating Briseno in the crimes.
After hearing all of the evidence and argument, the jury ultimately concluded that the State had met its burden to prove Bri-seno guilty beyond a reasonable doubt. And we conclude Briseno has failed to firmly convince us the jury would have reached a different verdict had the court omitted the erroneous degree-of-certainty provision in the instruction. See Williams, 295 Kan. at 516. Simply put, there were ample procedural safeguards and other evidence to counteract the erroneous instruction and to show that Briseno committed the crimes.
Issue 3: Cumulative error did not deprive Briseno of a fair trial.
Briseno finally asserts that even if the instructional issues do not establish reversible error when considered individually, their cumulative effect denied him a fair trial. So reversal of his convictions is required.
But the only error was the court’s use of the degree-of-certainty factor in its juiy instructions regarding eyewitness identification, which we determined was not clear error requiring reversal. We agree with the State that a single nonreversible error cannot constitute reversible cumulative error. State v. Littlejohn, 298 Kan. 632, 659, 316 P.3d 136 (2014) (citing State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 [2012]).
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Moritz, J.:
Jorge Alberto Prado appeals the district court’s denial of his motion to withdraw his plea and vacate the sentences imposed pursuant to the plea. Prado argues the district court erred by failing to inquire regarding an alleged conflict of interest between Prado and his counsel and by failing to appoint conflict-free counsel to represent Prado at the motion to withdraw plea and sentencing hearing.
Under the unique circumstances of this case, we conclude Prado and his counsel alerted the trial court to a potential conflict between them, and the district court erred by failing to further inquire into the nature of that conflict. Additionally, we hold Prado was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution because he was not provided conflict-free counsel to assist him in arguing his motion to withdraw his plea. Therefore, we reverse the district court’s denial of Prado’s motion to withdraw his plea, vacate Prado’s sentence, and remand to the district court to conduct a hearing on Prado’s motion to withdraw his plea and to appoint new, conflict-free counsel to represent Prado at that hearing.
Factual and Procedural Background
In September 2009, Prado’s wife informed police that Prado had inappropriately touched the couple’s 12-year-old daughter. During interviews with police, Prado admitted he inappropriately touched his daughter during the summer of 2009. The State charged Prado under K.S.A. 21-3504 with one count of aggravated indecent liberties with a child under 14 years old. If convicted of that single count, Prado faced a presumptive life sentence with a mandatory minimum temí of 25 years (hard 25 life sentence) under K.S.A. 21-4643(a)(l)(C) and lifetime postrelease supervision.
Despite this straightforward charge and potential sentence, Prado and the State entered into a convoluted plea agreement whereby the State agreed to file an amended complaint charging Prado under K.S.A. 21-3502(a)(2) with two counts of rape of a child under 14 by an adult over the age 18 and to dismiss the single aggravated indecent liberties charge in exchange for Prado’s no contest plea to the two rape counts. Under Jessica’s Law, each rape count carried a presumptive hard 25 life sentence. See K.S.A. 21-4643(a)(1)(B). Thus, the agreement required Prado to plead no contest to two crimes carrying a potentially far more severe total sentence tiran the sentence for tire single crime with which he was originally charged.
The complicated impetus for Prado’s agreement to plead to two more severe crimes with a potentially far more severe total sen tence was the State’s agreement to recommend that the district court depart from the presumptive hard 25 life sentence for each rape count and instead impose two consecutive on-grid terms of 147 months’ imprisonment.
However, any benefit from this agreement could occur only if the district court (1) followed the State’s departure recommendations, (2) imposed the low grid-box number for each rape conviction, and (3) ran the terms consecutively. If each of these uncertain conditions occurred, Prado would be sentenced to a certain 24½ years instead of the minimum hard 25 and potential life sentence he faced under the original complaint.
At the plea hearing, the State filed an amended complaint against Prado, dismissing the single aggravated indecent liberties charge and adding two rape counts. The district court conducted a plea colloquy during which Prado spoke through an interpreter and indicated he understood the charges in the amended complaint and the terms of the plea agreement and was satisfied with his attorney. Notably, however, neither the convoluted nature of the plea agreement nor the ultimate benefit of the plea was discussed or apparent at the plea hearing. After finding Prado’s plea to be both voluntary and informed, the district court accepted Prado’s no contest plea to both rape charges.
At the sentencing hearing 3 months later, Prado again spoke through an interpreter and expressed dissatisfaction with his counsel and confusion about the plea agreement:
“THE COURT: All right. Thank you. Mr. Prado, this case was set down this afternoon to proceed with sentencing. I understand, though, there’s a matter you wish to address to the Court at this time. If that’s so, what is your matter?
“THE DEFENDANT (through Interpreter): Yes.
“THE COURT: What is your matter, sir?
“THE DEFENDANT (through Interpreter): My attorney has not explained things properly to me. This doesn’t coincide with the charges I was made [sic].
“THE COURT: Why don’t you explain yourself a little more.
“THE DEFENDANT (through Interpreter): This charge has been dismissed, and this is a different situation. This is die other one. It’s not the same.
“THE COURT: There is an Amended Complaint that has been filed in this case. You entered pleas of no contest to both these charges. Each of tírese charges allege that you committed a rape of a child under 14 years of age.
“THE DEFENDANT (through Interpreter): Not true.
“THE COURT: Well, that’s the charge.
“THE DEFENDANT (through Interpreter): It doesn’t say ‘abuse’; it says ‘touching.’ ”
Prado’s counsel then interjected and attempted to explain Prado’s concerns, acknowledging that Prado’s complaint concerned his own representation.
“[DEFENSE COUNSEL]: Judge, if I can interject briefly, I think the best way to summarize what Mr. Prado is attempting to say is that it’s his position that I did not explain to him the nature of the charges, essentially that I didn't communicate to him what it was that he was pleading to, and based on that, he is asking the Court to allow him to withdraw his plea. I think that’s what he is attempting to say.
“THE COURT: Mr. Prado, be that as it may, this Court explained to you what the charges were and explained to you the consequences, and to those charges you then entered the pleas of no contest which means you did not wish to present a defense.
“So, yes, those charges were explained to you by the Court.
“THE DEFENDANT (through Interpreter): Why didn’t they tell me about this eight months before? They just gave it to me the day of the deal, the day of the plea.
“TPIE COURT: I’m not following.
“THE DEFENDANT (through Interpreter): This was my charge.
“TPIE INTERPRETER: He is making reference, Your Honor, he is looking at the original Complaint. Pie is looking at what appears to be the original Complaint, and he’s making reference to the word ‘touch’ instead of ‘rape.’
“THE COURT: There is an Amended Complaint that has been filed. It was filed on the 27th of August.
“THE DEFENDANT (through Interpreter): How can they dismiss touching and they are going to add rape?
“And furthermore there is medical reports that indicate that they never found anything in reference to me.
“There was further mention of a letter that my attorney told me about. I haven’t seen it. I want to see that letter. I want to see the digital fingerprints of the person that sent that letter. There is people who want to destroy me.”
The State responded to Prado’s concerns by noting the plea agreement, if followed, provided Prado with an opportunity to receive a definitive 25-year sentence instead of the presumptive hard 25 life sentence he would receive if convicted of the initial aggravated indecent liberties charge. The State argued that because Prado agreed to the amended charges and acknowledged the State possessed evidence to prove them, Prado had not shown either good cause or manifest injustice to warrant withdrawal of his plea.
The exchange between the district court and Prado continued, with the court attempting to explain that the primary benefit to Prado’s plea to two rape charges rather than a single aggravated indecent liberties charge was “the possibility of a shorter sentence.” Prado expressed confusion as to how he could receive a shorter sentence for two more serious charges. Ultimately, the court asked Prado whether he wanted to proceed with sentencing, and Prado replied, “No. There should be some evidence here instead of just having a report saying that I raped somebody. There should be some proof.”
Finally, Prado’s counsel attempted to articulate, and then rebut, his client’s concerns:
“[DEFENSE COUNSEL]: Judge, here’s my problem. It’s in the Complaint. As best I can understand Mr. Prado, he is trying to articulate that he did not understand what was going on. We’ve had extensive discussions. I didn’t file a motion to withdraw based on conflict because I didn’t see a conflict. The problem is, it appears to me, although maybe he hasn’t articulated it veiy clearly, he is at least implicating that he has not been counseled, didn’t understand what occurred regarding the plea.
“THE COURT: However, that is contrary to what you told the Court at the plea hearing. I accepted the plea after explaining everything to you in detail and after you told me you were fully satisfied with [Defense Counsel] and entered into this plea voluntarily and knowingly.
“Now you tell me you just didn’t know anything. I find that hard to believe.
“THE DEFENDANT (through Interpreter): I also don’t believe this.
“THE COURT: I’m not finding good cause to allow you to withdraw the plea, so the plea is going to stand.”
Having found no good cause to allow withdrawal of Prado’s plea, the district court proceeded to sentencing. Prado’s counsel requested the court grant Prado the downward departure contemplated by the plea agreement, and the State joined in the request. The district court inquired of Prado whether he wished to comment, and Prado’s response demonstrated continuing confusion regarding the State’s amendment of one count of “touching” to two rape charges. Consistent with the plea agreement, the district court sentenced Prado to two consecutive 147-month prison sentences, lifetime parole, and sex offender registration.
Prado appeals the denial of his motion to withdraw his plea and the sentence imposed. We have jurisdiction over Prado’s appeal pursuant to K.S.A. 22-3601 (off-grid rape, docketed prior to July 1, 2011).
Analysis
Prado argues the district court violated his Sixth Amendment right to effective assistance of counsel by deciding Prado’s motion to withdraw his plea and then sentencing him while he was represented by conflicted counsel. More specifically, Prado contends that because his oral motion to withdraw his plea demonstrated a conflict of interest between him and his counsel, the district court erred by failing to further inquire into the nature of the conflict and by failing to appoint conflict-free counsel for tire motion to withdraw plea and sentencing hearing. We agree.
Prado was denied his Sixth Amendment right to conflict-free counsel
The Sixth Amendment right to counsel includes tire right to conflict-free counsel and extends to postconviction proceedings in which the State is represented by counsel. State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). Here, because the State was represented at the motion to withdraw plea hearing, Prado had a constitutional right to conflict-free counsel at the hearing on his motion to withdraw his plea. See State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
The district court abused, its discretion hy failing to inquire into the nature of the conflict.
The district court is charged with safeguarding a defendant’s Sixth Amendment right to counsel. State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). So when a district court “ ‘becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.’ ” 280 Kan. at 789 (quoting Taylor, 266 Kan. at 979). The district court’s failure to inquire after becoming aware of a potential attorney-client conflict is an abuse of discretion. 280 Kan. at 789; see State v. Sharkey, 299 Kan. 87, 98-99, 322 P.3d 325 (2014).
Preliminarily, the State argues Prado’s failure to request substitute counsel below prevents him from raising this issue for the first time on appeal. But the State misinterprets Prado’s argument. Prado does not assert a substitute counsel claim; rather, he asserts his counsel was conflicted and the district court erred by failing to inquire into the nature of the conflict. Moreover, we have never required a defendant to explicitly request new counsel to initiate the district court’s duty to inquire. Instead, we look to whether the district court knew or should have known of a potential conflict. See State v. Galaviz, 296 Kan. 168, 185, 291 P.3d 62 (2012).
Relying on State v. Williams, 290 Kan. 1050, 236 P.3d 512 (2010), the State further argues the district court did not have a duty to inquire because Prado complained about the nature of the plea, not his attorney’s performance. In Williams, the defendant initially complained in a letter about her attorney’s performance; but at the hearing on the motion to withdraw her plea, she made no mention of her attorney’s services, instead asserting there was no evidence to support the charge and complaining that she had given up her right to appeal. Because the defendant’s complaints at the motion to withdraw plea hearing concerned the nature of her plea rather than her attorney’s performance, we concluded the complaints did not trigger the district court’s duty to inquire. 290 Kan. at 1056.
The State’s comparison of this case to Williams is inapt. Here, when the district court asked Prado about the nature of his concerns, he specifically responded through his interpreter, “My attorney has not explained things properly to me.” While Prado did not fully describe the basis for his dissatisfaction with his counsel’s performance, Prado’s counsel clarified any confusion regarding that basis when he informed die court, “[I]t’s [Prado’s] position that I did not explain to him the nature of the charges, essentially that I didn’t communicate to him what it was that he was pleading to.” Prado’s and his counsel’s explanations demonstrate that the primary basis for Prado’s motion to withdraw his plea was his dis satisfaction with his counsels performance during plea negotiations, not the nature of the plea.
When a defendant asserts alleged deficiencies in counsels performance during plea negotiations as the basis for a motion to withdraw plea, a district court must inquire further into the alleged conflict. See Taylor, 266 Kan. at 974-75; see also Sharkey, 299 Kan. at 97 (discussing State v. Toney, 39 Kan. App. 2d 1036, 1044, 187 P.3d 138 [2008], and agreeing with panels conclusion that defendant triggered district court’s duty to further inquire when defendant moved to withdraw plea based on apparent conflict of interest that “ 'necessarily undermined any possibility that Toney s motion would be successful ”).
In Taylor, the defendant sought to withdraw his plea before sentencing and requested a continuance in order to secure new counsel. At the sentencing hearing, the district court denied Taylor’s request for a continuance and his motion to withdraw his plea before permitting him to address the court. Taylor complained at length about his representation, chiefly suggesting he agreed to the plea because his defense counsel “was unwilling or unprepared to tiy his case on the day of trial.” 266 Kan. at 973. According to Taylor, the night before trial his counsel advised against taking a plea because she would win his case, but the next morning she advised him to take the plea.
We recognized that Taylor’s statements “placed [defense counsel] in a difficult position” and may have generated a conflict between Taylor and his counsel. 266 Kan. at 973. Namely, Taylor’s counsel could not contradict her client’s statement and simultaneously continue to represent Taylor’s best interests. 266 Kan. at 973-74. Ultimately, we concluded the district court erred by failing to inquire into the alleged conflict of interest because “without the assistance of conflict-free counsel, [defendant] was given no meaningful opportunity to show ‘good cause.’ ” 266 Kan. at 977.
Here, as in Taylor, the district court should have been aware that Prado potentially was forced to argue his motion without conflict-free counsel. Prado specifically informed the court, “My attorney has not explained things properly to me. This doesn’t coincide with the charges I was made [sic].” Prado’s counsel acknowledged Prado’s complaint regarding his services, saying, “[I]t’s [Prado’s] position that I did not explain to him the nature of tire charges, essentially that I didn’t communicate to him what it was that he was pleading to.” Prado’s counsel further noted, “[I]t appears to me, although maybe he hasn’t articulated it very clearly, he is at least implicating that he has not been counseled, didn’t understand what occurred regarding tire plea.” Both Prado’s and his counsel’s statements placed the district court on notice of the nature of the potential conflict and triggered the court’s duty to further inquire.
Moreover, even if Prado’s and his counsel’s statements failed to alert the district court to the potential conflict, Prado’s attorney put the court on notice of that potential when he explicitly advocated against Prado’s interest. After explaining tire basis for Prado’s motion to withdraw his plea, Prado’s attorney noted, “We’ve had extensive discussions. I didn’t file a motion to withdraw [from representing Prado] based on conflict because I didn’t see a conflict.” Essentially, Prado’s attorney argued against the merits of Prado’s motion to withdraw his plea.
Once alerted to the conflict of interest, the district court was required to inquire as to the nature of the conflict. But, as the State concedes, the district court failed to do so. While the district court provided Prado an opportunity to address tire court, we have held that “simply allowing a defendant to make a statement regarding his or her complaints is an insufficient inquiiy.” See Sharkey, 299 Kan. at 99; State v. Stovall, 298 Kan. 362, Syl. ¶ 6, 312 P.3d 1271 (2013). Further, once alerted to the conflict, the district court immediately considered whether good cause existed for Prado to withdraw his plea—i.e., whether Prado actually understood the plea agreement—rather than inquiring into the nature of the conflict.
By skipping this critical step, the district court abused its discretion in denying Prado tire opportunity to have conflict-free counsel argue Prado had good cause to withdraw his plea. See Taylor, 266 Kan. at 977. Here, in addition to the colloquy between Prado, the court, and Prado’s counsel establishing the nature of the conflict, additional circumstances warrant this conclusion: (1) Prado’s ob vious confusion during tire motion to withdraw plea hearing; (2) tire highly unusual plea agreement whereby the State amended a single charge of aggravated indecent liberties of a child to two counts of rape to provide Prado with the “possibility” of a lesser sentence, while at the same time providing the possibility of much greater consecutive life sentences; and (3) tire absence of any evidence that Prado understood the complicated procedural complexities required to understand tire potentially favorable or unfavorable nature of his plea. Under tírese circumstances, the district court abused its discretion in failing to inquire into the nature of Prado’s counsel’s conflict of interest.
Prado is entitled to a new hearing on his motion to withdraw his plea, with representation of conflict-free counsel.
Ordinarily, when a district court abuses its discretion by failing to further inquire about an alleged conflict of interest, “the appropriate remedy, in the absence of a suitable record on appeal concerning the alleged conflict of interest, is to remand to the trial court for a determination of whether tire defendant can "establish that the conflict of interest 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]).
Here, the record is sufficiently developed for us to conclude that an actual conflict of interest existed. Prado’s counsel attempted to explain the basis for Prado’s motion to withdraw his plea; but counsel advocated against Prado’s position, indicating he had extensive discussions with Prado and did not see a conflict. Because the record demonstrates an actual conflict, that conflict necessarily adversely affected Prado’s counsel’s performance and prejudice is presumed. See Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S. Ct. 1237, 152 L. Ed. 2d 291, reh. denied 535 U.S. 1074 (2002) (holding “ ‘actual conflict’ ” for Sixth Amendment purposes is necessarily conflict of interest adversely affecting counsel’s performance); Sharkey, 299 Kan. at 101 (presuming prejudice when defendant was “constructively denied his right to counsel because of his attorney’s conflict of interests”).
Accordingly, we reverse the district court’s denial of Prado’s motion to withdraw his plea, vacate Prado’s sentence, and remand to the district court to appoint conflict-free counsel to represent Prado at a new hearing on his motion to withdraw his plea. | [
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The opinion of the court was delivered by
LUCKERT, J.:
Corky A. Williams appeals his convictions for the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-degree murder; and criminal possession of a firearm. Williams raises numerous issues. We have reorganized and combined some issues. As restated, Williams’ arguments require us to consider: (1) whether the evidence was sufficient; (2) whether the complaint was insufficient when the aiding and abetting theory was not specifically pleaded; (3) whether the theory of aiding and abetting presented an alternative means of committing a crime; (4) whether there was a violation of Williams’ rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as guaranteed by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); (5) whether alleged prosecutorial misconduct denied Williams’ right to a fair trial; (6) whether Williams’ right to confront witnesses was violated; (7) whether there were multiple errors in the jury instructions; (8) whether Williams was denied a fair trial because of witness and juror misconduct; (9) whether the trial court erred in admitting a demonstrative photograph; and (10) whether errors accumulated to deny Williams a fair trial.
After reviewing Williams’ arguments, we find only one error— an instance of prosecutorial misconduct. But we conclude that error is not a basis for reversing Williams’ convictions.
Facts and Procedural Background
Dyer died from gunshot wounds he suffered on August 10,2007, in Topeka. Williams and three other individuals—Draise Kettler, Jr.; Kelvin Phillips, Jr.; and Antonio Armstrong—were charged with and convicted of crimes related to the death. All four defendants appealed, and their individual appeals were argued the same day. For these related opinions, see State v. Kettler, 299 Kan. 448 State v. Phillips, 299 Kan. 479, 324 P.3d 1095 (2014); and State v. Armstrong, 299 Kan. 405, 324 P.3d 1052 (2014).
The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many of the same issues. Consequently, our opinions in these cases are largely repetitive. We have followed this format for the ease of reading only one opinion; the reader will not need to refer to multiple opinions. For the benefit of anyone who wishes to read all three opinions, we offer as a guide that Williams has asserted the most issues. Kettler and Phillips have repeated some of those issues, making either identical or substantially similar arguments. Phillips does, however, present an issue not raised by Kettler or Williams—his first issue, which relates to the procedure for declaring a mistrial. Also, although Williams, Kettler, and Phillips all raise issues regarding tire sufficiency of the evidence and the prosecutor s misstatement of the definition of “premeditation” during the closing argument, there is some variance in the analysis because of each individual’s role in the shooting of Dyer. The decision in Armstrong’s appeal does not have the same level of overlap, and some factual details differ because of the variance in evidence in his separate trial.
Procedural History
The charges against the four defendants were not identical. Phillips, like Kettler and Williams, was charged with pi'emeditated first-degree murder, in violation of K.S.A. 21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and criminal possession of a firearm.
Armstrong’s case took a different procedural track when, before any of the defendants’ preliminary hearings, he decided to cooperate with the State in exchange for a favorable plea agreement. Initially, in Armstrong’s first contact with investigating law enforcement officers, he denied any knowledge of or involvement in the shooting. Later, in his attempt to obtain tire plea agreement, he gave a sworn deposition-style statement to the district attorney in which he incriminated himself and implicated the other three defendants in the premeditated killing of Dyer. Based on this statement and as part of Armstrong’s plea arrangement, the State called Armstrong as a witness at a joint preliminary hearing related to the charges against Williams, Kettler, and Phillips. Armstrong reiterated the truthfulness of his sworn statement and testified that he had joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.
Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed his mind about cooperating with the State and recanted his statements and testimony, even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated that his former defense counsel coerced him into making his prior statements implicating his friends.
Subsequently, Armstrong’s case was joined with the cases ofWil-liams, Kettler, and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung jury. After the first trial, the trial court severed Armstrong’s case from the others, and his second trial took place before the three other codefendants again went to trial. Armstrong testified at his second trial, providing yet another version of how Dyer was shot. Armstrong was convicted of premeditated first-degree murder and criminal possession of a firearm, the only charges brought against him.
The State then called Armstrong to testify at the joint second trial ofWilliams, Kettler, and Phillips. Armstrong testified that both his sworn statement and his preliminary hearing testimony against the other defendants were untrue. Armstrong explained that he had incriminated his friends because he was led to believe that “my homeboys, my brothers, was testifying on me, which I found out later was a lie.” He also told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong’s explanation was refuted by Armstrong’s attorney, who testified that Armstrong was not told what to say in his sworn statement.
Although Armstrong was called as a witness for tire State at the trial of Williams, Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong wore a mask to prevent him from spitting on tire law enforcement officers who transported him to the courtroom or on those in the courtroom.' He often cursed, and he usually either refused to answer questions or was evasive and claimed he could not remember details. Eventually, on redirect examination, Armstrong became so belligerent and uncooperative with the prosecutor that he was removed from the courtroom.
As this history suggests, the juiy was presented with multiple versions of the events that led to Dyer’s death. In addition to Arms trong’s various renditions of what happened, both Williams and Phillips testified at their second trial and offered slightly different versions of events. Plus, approximately a month before the second joint trial, Phillips proffered the substance of his trial testimony in order to obtain some pretrial evidentiary rulings; the jury would learn that some details included in the proffer differed from Phillips’ trial testimony. Kettler chose not to testify. The jury also heard the testimony of several individuals who witnessed some portion of the events, investigated the crimes, or had information about the relationship of Dyer and the defendants. Because Phillips attacks the sufficiency of the evidence against him, we will discuss the evidence in some detail.
Dyers Conflict with the Defendants
Through the testimony of several witnesses'—including Williams and Phillips—and Armstrong’s sworn statement, the jury learned of a dispute between Williams and Dyer that occurred several weeks before Dyer’s death. During this altercation, an argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams at gunpoint. Patton testified that after tire robbery, Williams issued a challenge by telephoning and saying, “It’s on.” Patton’s testimony was countered by Williams, who told the jury he had decided just to stay away from Dyer and Patton. He denied that Dyer’s death had anything to do with the prior encounter.
In turn, Williams’ testimony was contradicted by Armstrong’s sworn statement and the preliminary hearing testimony of Armstrong. According to that version of events, Williams told Armstrong and Kettler about the robbery immediately after it happened. The three men decided they would be on the lookout for Dyer and his friends. When Armstrong was asked whether there were any plans made to search for Dyer, Armstrong replied, “No. Just—-just when we—when we saw him, shoot him.” Armstrong was asked if that agreement would apply “to any of the three of you?” He answered, “Any of us ... . I’m not going to he, I wanted to do it because not too—not too long after that, just a couple of days after that . . . somebody shot... [a friend’s house] and grazed me on my arm.” Armstrong believed Dyer and Patton were the shooters.
Phillips did not participate in these discussions because he was in jail. Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking to Phillips in “code” during a telephone conversation. As it turned out, Phillips was released from jail the same day as Dyer was shot. According to Armstrong, Phillips joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer, they wanted to “[bjlow his head off.”
Phillips Spots Dyer; Other Defendants Join Him
Within hours of Phillips’ release from jail, he spotted Dyer and Dyer’s girlfriend, Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that she and Dyer had walked to the liquor store where they ran into some people they knew, Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While Shaw shopped, Johnson walked from the liquor store toward Shaw’s car. At that point, Phillips approached Johnson and asked if she was “straight,” meaning did she need to buy any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and Dyer were already sitting, Phillips told her to take his phone number and to call if she needed something.
Phillips testified that, after talking to Johnson in front of the liquor store, he talked to Shaw and asked her whether she wanted to purchase some drugs. Shaw indicated she had some money at her house, so she would buy drugs if Phillips stopped by. Phillips told Shaw he would be there within 5 to 10 minutes.
According to Phillips, after Shaw’s vehicle pulled away, Phillips called Kettler, and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop. They ran down the alley because Phillips was in a hurry to get to Shaw’s house so that another drug dealer would not beat him to the sale. Kettler then called Williams to ask for a ride to Shaw’s house.
Williams also testified that Kettler called him and asked Williams to give Kettler, Phillips, and Armstrong a ride to Shaw’s house. According to Williams, he had been with Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler, Armstrong, and another friend and they drove around for about 30 minutes. Then Kettler and Williams installed a CD player in Williams’ car, while the others were “sitting around talking.” Later, the group went their separate ways until Williams picked up the others to take them to Shaw’s house. He explained that he was told the men wanted to go to Shaw’s house because she owed Kettler some money and Phillips was going to sell her drugs.
According to Armstrong’s sworn statement, Kettler and Williams had picked him up earlier in the day and the three were still together when Phillips called. Like Williams, Armstrong stated that Kettler and Williams had installed a CD player in Williams’ car, but Armstrong also indicated that while doing so they had hidden a gun behind the CD player. Armstrong explained, “Like where tire CD player is in Oldsmobile Delta’s [sic] you can take that whole part out, the whole vent part out and you can fit a nice size gun in there.” Armstrong described the hidden gun as a “9 mm Ruger.” There was evidence at the trial suggesting that this gun was later used to shoot Dyer.
Once Williams and Kettler finished installing tire CD player, according to Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then told the others that Dyer “is at the smoke shop. Get diere. And tiien [Kettler] opened the vent and pulled a gun out of the vent.” Williams drove directly to the alley behind the store, which Armstrong said was merely 30 seconds or so away from where they were. Once they were near the store, Armstrong and Kettler jumped out of the car and started running down the alley. Phillips ran toward them and told them Dyer was on his way to Shaw’s house. They turned and ran back toward Williams’ car.
The timing of Armstrong’s version of events meshes with Johnson’s account. She saw Phillips and three or four other people running down the alley behind the liquor store as Shaw drove away.
Events at Shaw’s House, According to Johnson and Mun
Once Shaw, Mun, Dyer, and Johnson arrived at Shaw’s house, they carried beer inside and began hanging out. About 5 to 10 minutes after they sat down, Shaw’s home phone rang. Shaw answered the phone and simply said, “Yeah, yeah,” and tiien passed the phone to Mun. According to Mun, there was nobody on the other end, so he hung up. Other evidence suggested that either Phillips or Kettler used Phillips’ cell phone to call Shaw to verify whether Dyer was at her house. Mun indicated that shortly after the phone call, Shaw asked Dyer if he was J.D., to which Dyer answered, “Yes.”
Within a couple minutes of the phone call, there was a knock at Shaw’s front door. Mun walked up to the door and asked, 'Who is it?” The person on the other side responded, and Mun told the others it was “Little Man,” which was Kettler’s nickname. When Dyer heard “Little Man,” he jumped up and left the room.
Mun looked out the window and did not initially see anyone. When he opened tire door, Mun heard someone coming around the side of the house, asking why he had not answered more quickly. As the man approached Shaw’s front door, Mun recognized him as Kettler. Phillips and Armstrong came toward the front door from the side of the house, and the three men ran into the house. Phillips got in Johnson’s face, asked something like, “[W]here’s he at, Bitch?” meaning Dyer. Johnson acted like she did not know who Phillips was looking for because she “didn’t want [Phillips] to do nothing to [Dyer].” Phillips then turned around and walked out the front door.
Seconds later, Phillips returned to the house. According to Johnson, Kettler and Armstrong were with him and all three men had guns when they walked past her and moved toward the back of the house. Johnson immediately ran out of the house to get help.
Mun, who remained outside the front door, did not see guns when the group, which, according to him, now included Williams, walked into the house the second time. Mun testified that he heard “tussling” and “wrestling” sounds coming from inside Shaw’s house. He stepped inside and saw one of the men pick up a drinking glass and glass ashtrays and throw them into the bedroom. Then Mun heard the “pop, pop, pop” sound of gunshots and watched the four men run out of the house. When Mun looked into the bedroom, he saw Dyer lying on the floor, unresponsive.
Meanwhile, Johnson ran to a neighbor’s house and knocked on the door. When the neighbor responded, Johnson asked her to call law enforcement. Johnson then heard gunshots, so she ran back to Shaw’s house. As she approached, Johnson saw the same men run out of Shaw’s house, jump into a brown car, and drive away. This car was later identified as Williams’ car.
Johnson went inside Shaw’s house and found Dyer lying on the bedroom floor, bleeding and unresponsive. Dyer had been struck by two bullets, one of which entered through his arm and pierced his heart. In addition to the bullet wounds, Dyer suffered head wounds and a bite mark on his left shoulder. An expert opined that Phillips was the probable biter.
The juiy did not hear Shaw’s versions of events because she had passed away befox'e the first trial, and, as we have noted, Kettler chose not to testily. But, just as Williams, Phillips, and Armstrong provided different versions of what happened before the men got to Shaw’s house, they provided very different accounts of what occurred once they arrived.
Williams’ Version
According to Williams, he drove over to Shaw’s house with Ket-tler, Phillips, and Armstrong because Shaw owed Kettler money and because Phillips said “he needed to take care of some business over there,” meaning a drug deal. When they pulled up at Shaw’s house, Williams dropped off the other men. He then drove past the house before turning around and coming back to park. Williams said he was parked about a minute when Kettler came out the front door and got into Williams’ car. Then Williams heard gunshots coming from inside Shaw’s house. Seconds later, Williams saw Phillips and Armstrong running out of the house. When they got into the car, Williams noticed “a few blood spots” on Phillips’ shirt. Williams asked, “What’s going on?” but they just told him to “drive off.” So Williams drove over to the home of Latoya Austin, Armstrong’s girlfriend.
Williams testified that he did not see a gun, but when they went inside Austin’s house he heard Austin tell Armstrong to “get that out of here,” referring to the gun Armstrong was then holding. Williams saw Armstrong leave the house for a couple minutes, presumably to get rid of the gun. Then Armstrong started talking about what had happened at Shaw’s house and indicated that Phillips shot Dyer. Phillips and Armstrong talked about “tussling over the gun” with Dyer. They told Williams that Dyer tried to get the gun from Phillips and Dyer had hopped on Phillips’ back.
Phillips’ Version
Phillips’ testimony was consistent with Williams’, at least in many respects. According to Phillips, his “whole intention was to go over there [Shaw’s house] to bust a serve,” which he explained meant to complete a drug sale. Phillips denied having any discussion before arriving at Shaw’s house about settling a score with Dyer. In fact, according to Phillips, he did not know about Dyer’s robbery of Williams until after Dyer’s death. On the way to Shaw’s house, Phillips called Shaw to make sure she and Mun were there. Phillips testified that he did not see any guns and did not know whether Williams had hidden a gun in the dashboard of the car.
Phillips said Kettler went up to Shaw’s house first, knocked on the door, and announced that it was “Little Man.” Mun, who answered the door, mentioned that Dyer had run out the back. Phillips indicated he was not sure why Mun told them about Dyer. Armstrong then went around the side of the house, and Phillips and Kettler went inside. After Phillips completed his drug sale, Armstrong entered the house and began asking where Dyer was because he had not found Dyer behind the house. Next, Armstrong ran through the house, toward the back rooms, and Johnson stood up and ran out tire front door. Phillips testified that he tried to get Armstrong to leave, but then he heard “some tussling” and saw Dyer and Armstrong wrestling over a gun. Phillips did not know who brought the gun to Shaw’s house, but he assumed it was Armstrong; he specifically denied carrying a gun into Shaw’s house himself.
Phillips told the jury that he was not going to let Dyer hurt his friend, so he tried to break up the fight. When his initial efforts did not work, Phillips started hitting Dyer “in his face area.” These efforts did not stop Dyer, so Phillips grabbed an ashtray out of the living room and hit Dyer over the head several times. Phillips also bit Dyer. During this time, according to Phillips, Kettler also tried to break up the fight. At some point, Kettler yelled, “ ‘Come on, let’s get out of here. We didn’t come over here for this.” Kettler then ran toward the front of the house, and Phillips assumed Ket-tler left.
As the struggle continued, Dyer dropped the gun. Phillips picked it up, but in the process the gun went off. Phillips ran into the bedroom, and Dyer jumped on his back. This caused Phillips to stumble and “[t]wo shots went off.” Phillips broke lose from Dyer, and as Dyer “was falling, I let like two more shots go.” Phillips testified that the gun was still in his hand when he got into Williams’ car and he threw it on the back seat. When asked whether it was his intention to shoot Dyer, Phillips testified, “No, it wasn’t. I had no reason to. I don’t believe I would have had a reason. That’s not my style.”
Armstrong’s Versions
Armstrong’s sworn statement included some of the same details. There were significant differences, however, including his explanation of why the four went to Shaw’s house, which was to “[bjlow Dyer’s head off.” He also stated that he initially carried the gun that had been removed from tire dash of Williams’ car, but, after the men could not find Dyer in Shaw’s backyard, Phillips grabbed the gun from Armstrong and entered the house. Armstrong, Ket-tler, and Williams followed. The fight initially involved Kettler, Phillips, and Dyer while Williams stood nearby. During the struggle, Kettler had Dyer briefly subdued, but then Dyer got loose and jumped on Phillips’ back. At that point, Armstrong started hitting Dyer’s head with a glass ashtray and Dyer fell. After Dyer hit the floor, Phillips “backed up and I [Armstrong] started backing up just to malee sure that, you know,. . . wasn’t no chance I would get hit by die bullets because I already knew what was about to happen at that split second and that’s when [Phillips] just started shooting.” Phillips “was shooting to kill, but it was like he was land of shooting land of wild . . . like he was just trying to hit him everywhere.” After the shots were fired, Phillips ran out of the house. Armstrong followed him and saw Ketder in the kitchen doorway with a knife. Armstrong stated diat after the struggle moved from die bathroom to the bedroom, Kettler went to the ldtchen. “I guess before he got the knife, [Phillips] shot [Dyer].”
A transcript of Armstrong’s testimony from his own, separate trial was also admitted into evidence at the trial of Williams, Ket-tler, and Phillips. This version of events put yet another spin on the facts. Armstrong indicated that he, Williams, Kettler, and Phillips went to Shaw’s house to collect money that Shaw owed to Kettler. After all four men went into the house and Shaw paid Kettler, they heard the sound of a curtain being snatched back, and saw Dyer “came out [of] the bathroom with a black gun in one hand and a silver gun in the other.” Dyer said, “[Y]ou-all drop out,” meaning everyone give him their “property.” Phillips was able to hit Dyer “so hard that one gun flew out of his hand and hit the wall so hard that the clip fell out of it.” Kettler and Phillips “lunged after the other gun.” After wrestling around and after Armstrong hit Dyer on the head with an ashtray, Phillips tried to run away, but Dyer ran after Phillips and “grabbed him by the back of his neck.” So Armstrong grabbed Dyer and hit him again three times, causing Dyer to drop to the floor. That is when Phillips “came out of nowhere” and “started shooting” at Dyer. Phillips, Kettler, and Armstrong ran out of the house.
On Armstrong’s way out of the house, he saw Williams leaning down to pick up the first gun that Dyer had dropped. He did not see what happened to the gun after that. Williams followed Armstrong out of the house, and the four friends drove away in Williams’ car. According to Armstrong, they did not plan to kill Dyer: “We did not go over there intending to kill him. We didn’t have a gun to go over there to kill him with. He got shot with his own gun.”
Other Evidence
In other evidence, jurors heard from some of Shaw’s neighbors who described a car that matched the description of Williams’ car as being near Shaw’s house at tire time of the shooting. One couple was following Williams’ car through the neighborhood. They reported seeing three men get out of the car and approach Shaw’s house; one of the men walked to the door and the others ran around the side of the house, which made the couple suspicious. Meanwhile, the driver pulled forward, turned around, and parked. The description of the driver they provided was consistent with Williams’ appearance. After the shooting, another neighbor saw “three or four” men run out of Shaw’s house and get into a parked car.
The jurors also heard the testimony of Renee Stewart, who testified that Williams and Kettler came to her house the night Dyer was shot. Based on things that were said, Stewart concluded Williams had shot someone. She reported that he seemed very nervous, and he wiped down a 9 mm pistol and some ammunition and asked her to hide the gun. She later sold the gun for drugs. She also indicated that several days before the shooting she had given Kettler and Williams a ride and Kettler had left a box of 9 mm ammunition in the glove box. Law enforcement officers testified they found tire ammunition as described by Stewart; a few bullets were missing from the box and the ammunition matched the type and brand of the fired bullets recovered from Dyer’s body and Shaw’s house.
After weighing all the evidence, the jury convicted Williams of premeditated first-degree murder, conspiracy to commit first-degree murder, and criminal possession of a firearm. Williams filed a timely appeal, over which this court has jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime; maximum sentence of life imprisonment imposed).
Sufficiency of the Evidence
Williams raises three appellate arguments based on the underlying contention that there was insufficient evidence to support his convictions: (1) With regard to premeditated first-degree murder, Williams argues there was insufficient evidence of premeditation; (2) with regard to conspiracy to commit first-degree murder, Williams argues there was insufficient evidence of an agreement between Williams and his codefendants; and (3) with regard to the State’s alternative aiding and abetting theory, Williams argues there was only evidence showing a mere association on his part and no evidence establishing his participation in such a way as to facilitate die success of the venture.
The standard of review that applies when sufficiency- of the evidence is challenged in a criminal case is well known. After reviewing all the evidence in a light most favorable to the prosecution, the appellate court must be convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).
A. Premeditated First-Degree Murder
We first apply this standard to Williams’ argument that his conviction for premeditated first-degree murder must be reversed because there was insufficient evidence of premeditation.
In doing so, it must be remembered that premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004); see PIK Grim. 3d 56.04(b). Further, it is not necessary that there be direct evidence of either intent or premeditation. Instead, premeditation, deliberation, and intent may be inferred from the established circumstances of a case, provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In other words, “[i]ntent. . . may be shown by circumstantial evidence, and a person is presumed to intend all the natural consequences of his acts. [Citation omitted.]” State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977).
In considering circumstantial evidence, Kansas caselaw identifies factors to consider in determining whether the evidence gives rise to an inference of premeditation that 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. [Citation omitted.]” Scaife, 286 Kan. at 617-18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of what inferences can be reasonably drawn is not driven by the number of factors present in a particular case because in some cases one factor alone may be compelling evidence of premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v. Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
Evidence Was Sufficient
A review of the record shows evidence-—-both direct and circumstantial—of premeditation. Certainly the strongest evidence of premeditation came from Armstrong’s sworn statement, which establishes an agreement between Williams, Kettler, Armstrong, and, later, Phillips to ldll Dyer in retribution for his robbing Williams at gunpoint. But there was other evidence of premeditation as well.
Focusing .on the first factor traditionally considered as evidence of premeditation—the nature of the murder weapon—Johnson testified the men entered the house with guns. Armstrong stated a gun had been hidden in Williams’ car, removed from its hiding place before the men got to die liquor store, and then taken with them—specifically, by Phillips—into Shaw’s house. Even in Phillips’ version of events, he assumed the murder weapon had been brought into the house by Armstrong. Moreover, during the struggle over the gun, there was evidence that Kettier went to Shaw’s ldtchen to retrieve a knife—an alternative, but deadly weapon.
As for the second factor regarding lack of provocation, there was no evidence that Dyer did anything on the day of his death to entice Williams, Kettler, Phillips, and Armstrong to enter the house. Under any version of events other than Armstrong’s testimony at his own trial, the aggressors were Armstrong, Kettier, or/or Phillips, either individually or together, and Williams aided and abetted their efforts.
Patton provided evidence of the third and fourth factors—the defendants’ prior conduct and prior threats and declarations of the defendants before and/or during the occurrence. Patton testified that Williams had issued a challenge to him and Dyer. Then, on entering Shaw’s house, Phillips got in Johnson’s face “talldri about, ‘Bitch, where is he?’ ” Johnson apparently viewed this as a threat because she pretended not to know who Phillips was referring to because she “didn’t want [Phillips] to do nothing to [Dyer].”
Finally, the fifth factor—the dealing of lethal blows after the deceased was felled and rendered helpless-—also weighs toward a finding of premeditation. In Armstrong’s sworn statement, he indicated he had repeatedly hit Dyer in the head with a glass ashtray, causing Dyer to fall, and then Phillips fired several shots into Dyer as he was lying on the bedroom floor. Armstrong stated that Phillips was “shooting to kill.” Forensic evidence confirmed that shots were fired into the floor.
Williams ignores these factors and the circumstantial and direct evidence against him. Instead, he points to evidence supporting his defense theory—that Dyer was accidentally killed and Williams had no knowledge of what was happening in the house while he waited in the car. In addition, he focuses his argument on the circumstances of Armstrong’s statement, noting Armstrong had provided varied accounts of what happened on the date of the incident, had recanted his accusatory statements against Williams and the others, and had displayed uncooperative and belligerent behavior during his trial testimony.
To reach the result Williams requests, this court would have to malee its own determination of credibility and reweigh the evidence, but these are not tasks an appellate court performs when conducting a sufficiency review. Instead, an appellate court considers all evidence—even if there is conflicting evidence or reasons to question its credibility—and does so in the light most favorable to the State. See State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012). Factfinders—in this case the jurors, not appellate judges—make credibility determinations. Thus, Armstrong’s incriminating and accusatory statements are part of our consideration.
Further, the more incriminating versions of events relayed by Armstrong are consistent with other direct and circumstantial evidence, including tire testimony of Patton, Johnson, and Mun; the observations of several of Shaw’s neighbors; and much of the evidence gathered in the investigation, including videos from cameras at the liquor store, phone records, and the nature and location of Dyer’s wounds. See Scaife, 286 Kan. 614, Syl. ¶ 3 (“[A] factfinder is permitted to reasonably infer the existence of a material fact from circumstantial evidence, even though the evidence does not exclude eveiy other reasonable conclusion or inference.”). During the State’s closing argument, the prosecutor spent considerable time detailing the discrepancies between the physical evidence and the defendants’ testimony of how the fight played out.
Thus, the evidence from Armstrong’s sworn statement is not so incredible that it must be disregarded. See State v. Brinklow, 288 Kan. 39, 53-54, 200 P.3d 1225 (2009) (identifying State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 [1983], as “perhaps the only case of its land in this state where the Supreme Court directly weighed the evidence and assessed the credibility of the prosecutrix,” calling Matlock “aberrant,” and concluding in the case before it that the “inconsistencies in the evidence did not render [the victim’s] testimony ... so incredible or improbable as to defy belief’); accord State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997).
In summaiy, various versions of events were presented to the jury through an assortment of witnesses and other evidence. In this mix of testimony, there was sufficient evidence when viewed in the light most favorable to the State that a rational factfinder could have found beyond a reasonable doubt that Williams and the others premeditated the killing of Dyer.
B. Conspiracy to Commit First-Degree Murder
Williams next contends that the State provided insufficient evidence that he entered into an agreement to commit a murder to support the conspiracy charge. An agreement is an element of conspiracy, and the jury was instructed that it had to find that Williams agreed with others to commit the crime of premeditated first-degree murder. See PIK Crim. 3d 55.03 (conspiracy).
In order to meet the sufficiency of the evidence standard, there must be evidence supporting each element of a crime, such as the agreement element of the conspiracy charge. See K.S.A. 21- 3302(a); State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564 (2010); State v. Webber, 260 Kan. 263, 288, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). The existence of an agreement does not need to be proved directly, however. “[I]t is enough if the parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances. [Citation omitted.]” State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995); see State v. Sharp, 289 Kan. 72, 104-05, 210 P.3d 590 (2009); State v. Davis, 284 Kan. 728, 737-38, 163 P.3d 1224 (2007).
Applying these principles, we conclude the record includes evidence of an agreement between Williams, Kettler, Phillips, and Armstrong to shoot and kill Dyer. Armstrong had stated that he had several discussions with Kettler and Williams “about getting” Dyer. It was agreed that “if you see [Dyer], shoot him.” Armstrong also stated that although nobody explicitly said, “[W]e got to go kill” Dyer, “[W]e all knew what the goal was when we went over there ... to kill James Dyer.” Additionally, he said that Phillips joined in this agreement. The jury could have inferred that the foursome had an agreement to kill Dyer through Armstrong’s statements, the fact Phillips alerted the othei's to Dyer’s whereabouts, and the speed with which they acted once Phillips spotted Dyer.
Once again, Williams attacks the credibility of Armstrong’s incriminating and accusatory statements because of Armstrong’s various versions of events and because Armstrong later recanted his sworn statement. It was the jury, however, that had the duty to weigh tire evidence and determine the credibility of the witnesses. The jury was not bound to accept any one witness’ version of the facts; and having convicted Williams, the jury is presumed to have believed the State’s evidence and to have drawn from it all reasonable inferences favorable to the State. See State v. Aikens, 261 Kan. 346, 392, 932 P.2d 408 (1997), rev’d on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 1111 (2012); see also State v. Moody, 223 Kan. 699, 704-05, 576 P.2d 637 (evidence, which stood or fell on whether jury believed coconspirator who was primary witness against defendant, was sufficient to support defendant’s conviction of conspiracy to commit aggravated burglary and aggra vated robbery), cert. denied 439 U.S. 894 (1978). Further, this court does not reevaluate credibility a juiy has already determined. See State v. Peppers, 294 Kan. 377, 401, 276 P.3d 148 (2012); Raskie, 293 Kan. at 920; State v. Ward, 292 Kan. 541, Syl. ¶ 12, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Williams further suggests that it is unclear from Armstrong’s statements which of the four—Armstrong, Williams, Kettler, and Phillips—were going to find Dyer and kill him. While it is true there is no evidence of a plan for a specific person to kill Dyer, there was evidence that all four friends agreed whichever one of them had the opportunity would Ml Dyer. See Qualls, 297 Kan. 61, Syl. ¶ 2 (“Premeditation does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.”). Armstrong was asked if the initial plan to shoot Dyer “would apply to any of the three of you,” referring to Armstrong, Williams, and Kettler. Armstrong confirmed that the plan applied to “[a]ny of us.” Then, after discussing the fact that Phillips had been in jail and was released just before Dyer’s death, the prosecutor asked how Phillips got involved in the plan to shoot Dyer. Armstrong stated that Kettler and Phillips had previously talked on the phone and Kettler had explained the situation “in code.”
From this evidence, in a light most favorable to tire prosecution, a rational jury could infer beyond a reasonable doubt that an agreement existed between Williams, Kettler, Phillips, and Armstrong to Ml Dyer. The evidence was sufficient to establish the agreement element of conspiracy.
G. Aiding and Abetting Versus Mere Association
In another sufficiency argument, Williams argues that the State failed to present sufficient evidence to support its aiding and abetting theory. Instead, Williams contends that the evidence demonstrates his mere presence and association with the other participants in the crime of premeditated first-degree murder. Specifically, Williams asserts: “The weight of evidence shows Williams waited in the car while others went inside. There was no evidence that Williams encouraged anyone to kill Dyer, or that he helped plan it.”
As Williams points out, “[w]ithout other incriminating evidence, mere presence in die vicinity of the crime or mere association with the principals that committed die crime is not sufficient to establish guilt as an aider or abettor. [Citation omitted.]” State v. Green, 280 Kan. 758, 761-62, 127 P.3d 241, cert. denied 549 U.S. 913 (2006). Instead, to 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 he or she was facilitating the venture’s success. The element of intent necessary to obtain a conviction for aiding and abetting may be inferred from circumstantial evidence. State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009), overruled on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013); State v. Herron, 286 Kan. 959, 967, 189 P.3d 1173 (2008); State v. Goering, 225 Kan. 755, Syl. ¶ 2, 594 P.2d 194 (1979).
Williams focuses on the intent requirement of premeditated first-degree murder. But, as we have already discussed, there was ample evidence that Williams premeditated the murder of Dyer and that he conspired with Kettler, Phillips, and Armstrong. The evidence was that the murder was motivated by a desire to avenge Dyer’s robbery of Williams. Further, there was evidence that it was Williams who brought the murder weapon to Shaw’s house and that it was Williams who asked Stewart to hide the gun.
Although Williams attempts to cast himself as the innocent driver, there was evidence he knew what the others were going to do upon entering Shaw’s house and, under those circumstances, Williams’ participation in the planning, transporting the others to and from the crime scene, and providing a gun was evidence of aiding and abetting the murder. See State v. Llamas, 298 Kan. 246, 254-58, 311 P.3d 399 (2013) (evidence sufficient to establish aiding and abetting theory where defendant purposefully moved from the passenger’s side of the vehicle where he had been riding to the driver’s side so that he could drive shooter away from the scene of the crime); Gant, 288 Kan. at 84 (driving a vehicle with intent to transport others to or from crime scene sufficient to support con viction for aiding and abetting crime); State v. Huff, 235 Kan. 637, 640-41, 681 P.2d 656 (1984) (same); Goering, 225 Kan. at 758 (same).
This evidence was sufficient for a rational juror to find beyond a reasonable doubt that Williams helped facilitate the murder and did so after having formed tire intent that their actions would result in the murder of Dyer—that is, after premeditating the murder.
Aiding and Abetting Need Not Be Alleged
Williams raises two additional issues regarding the State’s aiding and abetting theory as it pertains to the crime of premeditated first-degree murder. The first of these issues involves subject matter jurisdiction and the State’s failure to charge aiding and abetting in the criminal complaint. For the first time on appeal, Williams contends that the State’s failure to specifically charge him with aiding and abetting as a separate crime rendered the charging document insufficient to confer subject matter jurisdiction upon the trial court. However, as correctly pointed out by the State, Kansas precedent does not require the State to charge a defendant with aiding and abetting a crime.
Williams acknowledges that he raises this jurisdictional question for tire first time on appeal; however, subject matter jurisdiction can be raised at any time. See State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013); State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010); see also In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997) (judgment rendered without subject matter jurisdiction is void; void judgment is nullity that may be vacated at any time). Thus, we can consider whether tire complaint conferred subject matter jurisdiction. This presents a question of law over which we have unlimited review. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009).
Williams notes that, under K.S.A. 22-3201(b), a complaint “shall be a plain and concise written statement of the essential facts constituting the crime charged, which . . . drawn in the language of the statute, shall be deemed sufficient.” Because “all crimes are statutory, and the elements necessary to constitute a crime must be gathered wholly from the statute!, a complaint] which omits one or more of the essential elements of the crimes it attempts to charge is jurisdictionally and fatally defective.” State v. Sanford, 250 Kan. 592, 601, 830 P.2d 14 (1992). Building on these principles, Williams argues that “aiding and abetting is a separate crime and has different elements of proof required than that of a person committing a crime as a principal.”
The problem with Williams’ argument is that this court has stated drat “aiding and abetting is not a separate crime in Kansas. Instead, it extends criminal liability to a person other than the principal actor.” State v. Robinson, 293 Kan. 1002, 1038, 270 P.3d 1183 (2012) (citing State v. Spangler, 38 Kan. App. 2d 817, 830, 173 P.3d 656 [2007]); see K.S.A. 21-3205 (liability for crimes of another); State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964) (“All participants in a crime are equally guilty, without regard to the extent of their participation.”). Accordingly, this court has consistently held that the State is not required to charge aiding and abetting in the charging document in order to pursue a theoiy of accomplice liability at trial. See, e.g., State v. Amos, 271 Kan. 565, Syl. ¶ 2, 23 P.3d 883 (2001); State v. Pennington, 254 Kan. 757, Syl. ¶ 4, 869 P.2d 624 (1994); State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976).
At oral argument, Williams’ counsel suggested that this caselaw must be reconsidered in light of language in the current version of the aiding and abetting statute. We need not reach the merits of this argument, however, because the current statute was not effective until July 1, 2011, almost 4 years after Dyer’s death and the filing of a complaint against Williams and approximately 2 years after the trial in this case. Thus, the trial court had exercised its jurisdiction before the provisions on which Williams relies were enacted. See K.S.A. 2013 Supp. 21-5210; L. 2010, ch. 136, sec. 30.
Consequently, the criminal complaint against Williams was not jurisdictionally defective for failing to charge aiding and abetting.
Aiding and Abetting Is Not An Alternative Means
Williams also contends that his conviction for premeditated first-degree murder must be reversed because the State presented two alternative means of committing the crime—as the principal actor or as an aider and abettor under K.S.A. 21-3205(1)—but tire State failed to present sufficient evidence diat Williams participated as the principal. See State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010) (in an alternative means case the State must present sufficient evidence to permit a jury to find each means of committing the crime beyond a reasonable doubt in order to assure juiy unanimity), overruled on other grounds by State v. Nunez, 298 Kan. 661, 316 P.3d 717 (2014); State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994) (same). The first question for consideration is whether we are even presented with an alternative means issue, a question that presents an issue of law. See State v. Brown, 295 Kan. 181, 193-94, 284 P.3d 977 (2012).
In Brown, we held that alternative means are legislatively determined distinct, material elements of a crime, as opposed to legislative descriptions of material elements or factual circumstances that would prove the crime. We explained:
“The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in a juiy instruction. [Citations omitted.]” 295 Kan. at 194.
Recently, in State v. Betancourt, 299 Kan. 131, Syl. ¶ 1, 322 P.3d 353 (2014), we applied these principles and held that “the Kansas aiding and abetting statute does not create distinct material elements of a crime but simply assigns criminal responsibility. The statute describes factual circumstances that maybe proved in order to obtain a conviction for other crimes.” Hence, the statute does not create an alternative means of committing the underlying crime, and the State is not required to prove that the defendant was both a principal and an accessory or to elect between the theory that the defendant was an aider and abettor or the theory that the defendant was the principal actor in the commission of the crime.
Under the holding in Betancourt, Williams’ alternative means argument has no merit.
Batson Challenges
Next, Williams contends that the State’s exercise of peremptory challenges to strike three African-Americans from the jury panel violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as analyzed in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). He focuses on prospective jurors L.S., R.N., and R.H. and notes that at the end of the jury selection process no African-Americans remained on the jury. Williams takes issue with this because he and his codefendants are African-Americans and some of their friends or acquaintances who testified are African-Americans as well. Williams contends that the State’s proffered reasons for striking L.S., R.N., and R.H. were pretextual, demonstrating purposeful discrimination, which entitles him to a new trial.
Standards of Review
In Batson, the United States Supreme Court held that the Equal Protection Clause applies to the State’s privilege to strike prospective jurors through peremptory challenges. When a Batson challenge is asserted, a three-step analysis applies; each step is governed by its own standard of review. State v. Hill, 290 Kan. 339, 358, 228 P.3d 1027 (2010); State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).
First, the party challenging the strike must make a prima facie showing that the other party exercised a peremptory challenge on the basis of race. Appellate courts utilize plenaiy or unlimited review over this step. Hill, 290 Kan. at 358.
Second, if 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. 290 Kan. at 358.
Third, the trial court must determine whether the objecting party has carried the burden of proving purposeful discrimination. This step hinges on credibility determinations. “[Ujsually there is limited evidence on the issue, and the best evidence is often the demeanor of the 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. [Citations omitted.]” State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142 (2012).
Striking of Prospective Jurors and the Trial Court’s Ridings
During the jury selection process, Williams raised a Batson challenge to the State’s decision to strike R.N. and L.S. Williams’ cod-efendant Phillips challenged the State’s decision to strike R.H., and Williams joined in this Batson challenge. The parties do not dispute that Williams established a prima facie case that these prospective jurors were struck based on race.
After Williams challenged those strikes, the trial court gave the State the opportunity to respond. As for prospective juror R.N., the race-neutral reason provided by the State was that R.N. indicated on his juiy questionnaire that he had unpaid traffic tickets pending; thus, the State argued that R.N. “had some adverse contact with law enforcement.” The State further noted that the prosecution was trying to eliminate younger individuals lacking in “life experience and/or combination of formal education,” and R.N. fit this description. Williams’ defense counsel responded that Williams “is a young black man and is not educated” and the existence of “unpaid traffic tickets . . . does not necessarily imply any significant law enforcement contact, [it] implies more inability to pay.”
After listening to all the arguments, the judge denied the Batson challenge regarding R.N., concluding, “I don’t believe that the defendant has made or met his burden to show purposeful discrimination based on the fact. . . the State is contending.”
As to L.S., the State explained it was striking L.S. because she was employed as a kitchen supervisor at a correctional facility during the time that one of the witnesses for the prosecution, Stewart, was incarcerated at that facility. The State opined it was possible that L.S. had contact with Stewart and other witnesses and would recognize them when they testified, even though L.S. had not recognized their names.
Williams’ defense counsel responded to the State’s explanation by arguing that other potential jurors (presumably non-African-Americans) remained on the jury panel despite having had “law enforcement contact with corrections’ personnel.” But the State then pointed out that L. S. was the only potential juror who worked at this particular correctional facility at the same time that a witness in the case was incarcerated there. The trial court found that the defendant failed to cany the burden of proving purposeful discrimination.
Finally, with respect to prospective juror R.H., the State’s proffered race-neutral reasons for the strike were that she “appeared to not be listening, not paying attention,” and possibly had difficulty processing a lot of information. The State further noted that R.H. failed to respond to some questions during voir dire or only responded after counsel or the trial court repeated questions several times. The prosecutor expanded on the explanation by pointing out that “there were multiple times when [R.H.’s] eyes were closed” and “her hands were resting on her head.” At one point, even Williams’ defense counsel noted that R.H. appeared to be asleep.
The defense attorneys in this case were not entirely in accord with regard to R.H. Phillips’ defense counsel accused the State of sending the message that “all the blacks out here aren’t smart enough, they’re stupid, they can’t comprehend, they’re not quick enough.” Williams’ defense counsel agreed that it was wrong to strike R.H., noting that one time when R.H. appeared to be sleeping she immediately told counsel that she was not sleepy. Kettler’s defense counsel, however, agreed with the State’s decision to strike R.H., stating that R.H. demonstrated a “complete lack of ability to function,” demonstrated “either a complete lack of interest or inability to or unwillingness to pay attention,” and displayed a possible “lack of intellectual functioning that we need for this jury.” The trial court concluded that the State’s motivation for striking R.H. was not discriminatory.
Summarizing the rulings regarding all of the challenges, the trial court found “there were race-neutral reasons that those individuals were struck and there was no purposeful discrimination against any of those individuals.”
State Proffered Nondiscriminatory Rulings for Strikes
In attacking the trial court’s ruling on appeal, Williams argues that the decision to strike L.S. and R.N. shows purposeful discrimination because these potential jurors exhibited “similar characteristics” to some non-African-American individuals who ultimately served on the juiy. This court has stated that the State’s failure to strike a nonminority juror with similar characteristics as a stricken prospective minority juror is circumstantial, although not conclusive, evidence of purposeful discrimination. State v. Trotter, 280 Kan. 800, 818, 127 P.3d 972 (2006). Conversely, evidence that the State struck minority and nonminority panel members for the same reason can be evidence that a defendant has failed to carry his or her burden of demonstrating purposeful discrimination. See Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); State v. Angelo, 287 Kan. 262, 274, 197 P.3d 337 (2008).
Consistent with these authorities, the State pointed out to the trial court that it had struck nonminority panel members for the same reasons it struck R.N.—youthfulness, lack of experience, and potentially negative experiences with law enforcement. In response to this statement, Williams’ counsel acknowledged that the defendants had also exercised peremptory challenges to strike other youthful prospective jurors. This concession was sufficient to establish youthfulness and lack of experience as a nondiscriminatory reason for the strike—a reason used by both the State and the defense—even if it could be disputed that R.N. had negative experiences with law enforcement. The additional reason of the traffic tickets does not negate the other nondiscriminatory reasons offered by the State.
Further, even though Williams contended before the trial court and now on appeal that there were venire members who had similar characteristics that remained on the jury, Williams’ counsel did not make a record adequate for us to rule in Williams’ favor; he did not identify those jurors he felt had similar characteristics. Hence, from the trial record itself, we are unable to analyze Williams’ argument.
Similarly, on appeal, Williams does not direct this court to any pages in tire record supporting his “similar characteristics” assertion. See McCullough, 293 Kan. at 999 (appellant’s burden to designate a record affirmatively showing error). Appellate courts “will not independently search die record and guess which specific facts [appellant] believes support his general allegations.” State v. Bryant, 285 Kan. 970, 977, 179 P.3d 1122 (2008); see Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39) (“The court may presume that a factual statement made without a.reference to volume and page number has no support in the record on appeal.”). Because we are unable to determine if there is factual support for Williams’ position, his arguments regarding the State’s decision to strike R.N. fails.
As to the reason given by the State for striking L.S.—that she might know one of the State’s witnesses—other courts have recognized that this is a nondiscriminatoiy reason for exercising a peremptory strike. See, e.g., United States v. McKay, 431 F.3d 1085, 1092 (8th Or. 2005), cert. denied 547 U.S. 1174 (2006). We agree; in fact, potential knowledge of a witness is a frequent reason for striking prospective jurors.
As for R.H., in looking for purposeful discrimination, the court can consider a potential juror’s body language. See State v. Dean, 273 Kan. 929, 932-33, 46 P.3d 1130 (2002); State v. Hood, 245 Kan. 367, 374-75, 780 P.2d 160 (1989). Here, the State proffered that factor as an explanation for striking R.H.—this potential juror was inattentive, failed to stand when introducing herself to the trial court, and appeared to be asleep at times. The State presented facially valid race-neutral reasons for striking R.H.
In summary, although the elimination of all African-American’s from die jury is very troubling, we note that Kettier’s defense counsel recognized that the defense had struck two other minority prospective jurors from the venire panel. This means that Williams has not established that the State purposefully sought to eliminate all minority members of the panel; we simply do not know whether the State would have exercised peremptory challenges to remove the two minority prospective jurors who were removed by the defense. Further, based on the race-neutral reasons articulated by the State for its strikes, we conclude that the trial court did not abuse its discretion in concluding that Williams failed in his ultimate burden to prove purposeful discrimination during the jury selection process.
Prosecutorial Misconduct
Williams raises two prosecutorial misconduct claims alleging misconduct during closing argument. The first claim involves the prosecutors comments on the gun evidence presented at trial and the prosecutor s corresponding reference to “street justice,” and the second claim involves die prosecutor’s comments on the meaning of the term “premeditated.” As will be discussed below, the first comment on guns and street justice was not improper; and while the second comment is a misstatement of the law, we are convinced beyond a reasonable doubt that the error did not affect Williams’ substantial rights.
Standard of Review
To determine whether a prosecutor committed reversible misconduct, we first decide if the challenged comment exceeded the wide latitude of language and manner afforded the prosecutor when discussing the evidence. If the comment was outside these bounds, we next decide if the comment constitutes reversible error, which requires a finding that the comment was so prejudicial as to deny the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
In analyzing the second step of whether the defendant was denied a fair trial, we consider 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. Bridges, 297 Kan. at 1012; Tosh, 278 Kan. at 93.
Before the third factor 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. Califor nia, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman, the United States Supreme Court directed that a constitutional error can be deemed harmless only if “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). If the error does not violate the United States Constitution, the harmless error analysis is defined in K.S.A. 60-261, and the test is whether “there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.” 292 Kan. 541, Syl. ¶ 6.
Even though we have applied this dual harmless error standard, we also have observed that as a practical matter the result of the harmless error evaluation depends on the outcome of the constitutional standard. “[Bjoth the constitutional and nonconstitutional error clearly arise from the very same acts and omissions,” and the constitutional standard is more rigorous. Thus, die State necessarily meets the lower statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. See Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 [2013]).
We next apply that standard to the instances of claimed misconduct.
A. Guns and Street Justice
Williams first argues that the prosecutor argued facts not in evidence and tried to appeal to the jury’s sense of community. He challenges the following italicized statement made by the prosecutor during closing argument, where the prosecutor was discussing Mun’s testimony and suggesting reasons why various witnesses provided different versions of what happened on the night of the incident:
“For whatever reason, maybe [Mun] didn’t think [the defendants] were going to murder [Dyer]. Maybe [Mun] was scared and wanted to stay out of the way. They weren’t after [Mun], They were after [Dyer], There’s no reason for [Mun] to be inserted into this situation. What [Dyer] gets, [Dyer] gets, he brought on himself. I [Mun] didn’t do any of this. I want none of it, I’m staying out of harm’s way. Not the most heroic position one could take [but] you could certainly understand why [Mun] would take it. These guys got guns. This is the street. Things are different out there than they may be in the courtroom.I [prosecutor] think [the] Detective . . . talked about street justice. They know what’s about to go down. It’s about self-preservation. I think that’s what [Mun] did. He tried to save his own neck. You can’t blame the guy. But if you have any problems with [Mun], that’s what it is, because you think he knew what was about to go down before it went down.” (Emphasis added.)
Williams argues that the statement, “These guys got guns,” was a misstatement of the evidence because there was only one gun amongst the four perpetrators and the evidence did not even place Williams with a gun inside Shaw’s house. Further, Williams contends that in context, the statement erroneously appealed to the jury’s sense of community by implying that the jury should prevent “street justice.”
A fundamental rule regarding closing argument requires prosecutors to confine their comments to matters in evidence and to not misstate the facts. See State v. Tahah, 293 Kan. 267, 277, 262 P.3d 1045 (2011); State v. McCaslin, 291 Kan. 697, Syl. ¶ 14, 245 P.3d 1030 (2011); State v. Richmond, 289 Kan. 419, 440-41, 212 P.3d 165 (2009) (quoting State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 [2006]). In addition, a prosecutor should not make statements intended to inflame the prejudices of the juiy 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. Nevertheless, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence. Richmond, 289 Kan. at 441; see State v. King, 288 Kan. 333, 351, 204 P.3d 585 (2009).
The State argues that it was not a misstatement of the evidence for the prosecutor to say, “These guys got guns.” We agree. Evidence that there was more tiran one gun was introduced through the testimony of Johnson. She testified to seeing Kettler, Phillips, and Armstrong enter Shaw’s house and “they had guns.” When asked if she was referring to all three men, Johnson said, ‘Tes.” As such, although there was conflicting evidence about the number of guns, the State did present evidence that there were multiple guns possessed by multiple perpetrators. Furthermore, although there was no evidence that Williams had a gun once inside the house, there was evidence that Williams had stored a gun behind the CD player in his dash, that this gun was a 9 mm weapon like the murder weapon, and that Williams took steps to have the gun hidden after the shooting. Hence, the prosecutors statement, “These guys got guns,” was consistent with evidence introduced at trial—-that all four defendants had possession of a gun at some point in time—and was directed to a point of evidentiary contention. The statement did not fall outside the wide latitude of proper comment.
Williams’ other argument—that the prosecutor’s gun statement referenced “street justice” and improperly appealed to the jury’s sense of protecting the community—-is not a fair description of what the prosecutor conveyed during closing argument. The prosecutor was not asking the juiy to exercise street justice, telling the jury it needed to convict Williams in order to protect the community or otherwise appealing to the juror’s emotions. Instead, the prosecutor’s mention of guns and street justice was made in the context of describing the evidence, explaining the motive for murder, and explaining Mun’s testimony. In essence, “street justice” was another way of explaining that the attack on Dyer was made in retaliation for the armed robbery of Williams, and it was a phrase that had been used by a detective in his testimony. Hence, the use of the phrase reminded the jury of a witness’ testimony, explained evidence, and was linked to evidence in the record.
Considering the evidence, along with tire “considerable latitude [allowed a prosecutor] in discussing the evidence and drawing reasonable inferences from that evidence,” the comments were not improper. See McCaslin, 291 Kan. 697, Syl. ¶ 14.
B. Misstatements Regarding Premeditation
Next, in an argument drat is identical to arguments made by Kettler and Phillips, Williams argues the prosecutor committed misconduct during closing argument by misstating the legal definition of “premeditation.” A misstatement of dre law during a pros ecutor’s closing argument can deny a defendant a fair trial when “the facts are such that the jury could have been confused or misled by the statement.” State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).
Alleged Misconduct
Here, the alleged prosecutorial misconduct occurred when the prosecutor was describing the elements of premeditated first-degree murder and stated:
“There are basically three elements to that offense that the State needs to prove to you. First, that the killing of James Dyer, Jr. was done intentionally, that means purposefulfly], willfully, but not by accident. And well get into each one of these and how the evidence applies to these, but I guess in summary, James Dyer did not die by accident. He was intentionally murdered by these individuals. The second ... is that it was done with premeditation. What that vneans is .. . that they thought it over before they went in ami did it. That’s what premeditation is. There’s even an instruction about what does that mean, thought it over, you could think it over, just a half second before you actually fired the fatal shot, that’s true, but that’s for you to decide whether or not they thought it over before they actually committed the act.
“Again, I would suggest that the evidence does support the fact that these three, along with Mr. Armstrong, clearly thought over what they were about to do before they went to Rhonda Shaw’s house. This was no happenstance. This was no accident. This is something these four individuals thought about as they made their way over to Rhonda Shaw’s house. It’s the reason they went there, was to get James Dyer.” (Emphasis added.)
Misstatement of Law
Williams contends that the prosecutor’s “half second” description of premeditation is analogous to stating premeditation can be instantaneous—language this court disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Williams makes a persuasive point.
In Holmes, the victim was shot and lulled in a struggle over a gun. The defendant was convicted of premeditated first-degree murder, although there was no evidence of premeditation before the struggle began. During closing argument, the prosecutor stated that “ premeditation can occur in an instant. That’s the law in the State of Kansas.’ ” 272 Kan. at 497. Then, in rebuttal the prosecutor stated that “ premeditation can take a second. ... It can happen in a second.’ ” 272 Kan. at 497. This court determined that the prosecutor’s statements constituted a deliberate misstatement of the law, noting the prosecutor had been cautioned in the jury instructions conference before argument began to avoid such comments. Cumulatively, the lack of evidence of premeditation before the struggle began and the deliberate nature of the comments convinced this court that the prosecutor’s misconduct created reversible error. 272 Kan. at 499-500.
Consistent with Holmes, this court has repeatedly warned prosecutors about going outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that are analogous to stating premeditation can occur in the same instant as the act that results in a death. See, e.g., State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011) (prosecutor’s statement during closing argument that defendant could have formed premeditation after the pull of the first trigger, “because remember, he pulls four times,” improperly stated the law and essentially suggested that premeditation could have been formed instantaneously); State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) (“We have consistently found reversible misconduct when a prosecutor states or implies that premeditation can be instantaneous.”); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004) (reversible error for prosecutor to imply premeditation can be instantaneous, based on closing argument that “ ‘[o]ne squeeze of a trigger is all it takes’ ”); State v. Pabst, 273 Kan. 658, 662, 44 P.3d 1230 (“A discussion of PIK Crim. 3d 56.04[b] in closing argument should avoid any temptation to use a synonym to convey the suggestion of ‘an instant’ without using the actual phrase.”), cert. denied 537 U.S. 959 (2002); State v. Moncla, 262 Kan. 58, 70-73, 936 P.2d 727 (1997) (adding phrase “ ‘it may arise in an instant’ ” to pattern instruction on premeditation was inappropriate; use of such language tended to diminish importance of the element of premeditation).
The State suggests that while the prosecutor’s “half second” reference was inartful, the prosecutor was merely trying to convey that the jury could find the decision to kill Dyer occurred in half a second, and it was the jury’s duty to determine if that constituted “thinking it over beforehand.” This argument is not persuasive. The prosecutor s statement informed foe juiy that foe “beforehand” period could be a half second. Further, the descriptive term “half second” is obviously a shorter period of time than the “ ‘in a second’ ” phrase disapproved in Holmes and is not significantly different than saying “ ‘in an instant’ ” or in a “ ‘squeeze of a trigger,’ ” as disapproved in several cases. As in those cases, Williams’ jury could have taken foe prosecutor’s choice of words as suggesting that premeditation can be instantaneous with the homicidal act. As such, we conclude foe prosecutor misstated the law.
Not Reversible Error
With prosecutorial misconduct established, it is necessary to determine whether foe error requires reversal under foe second analytical step. As we have discussed, this requires a harmlessness inquiry using three factors. See Bridges, 297 Kan. at 1012.
In assessing foe first factor of whether gross and flagrant conduct occurred, a misstatement of the law can be considered gross and flagrant, especially if the statement is contrary 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 improper point, planned or calculated statements, violation of a well-established rule, and violation of a rule designed to protect a constitutional right); accord State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). Given our past advice that prosecutors should be especially careful in discussing foe meaning of the term “premeditation,” we conclude tire misconduct was gross and flagrant.
Nevertheless, we do not find evidence of ill will. A prosecutor’s ill will is often “ ‘reflected through deliberate and repeated misconduct.’ [Citation omitted.]” State v. Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). These circumstances do not exist in this case. The misstatement was isolated and surrounded by correct statements of law. As shown in the portion of the transcript quoted above, both before and after the reference to the “half second,” the prosecutor mentioned correctly that premeditation means “thought it over” beforehand. The prosecutor argued that the evidence showed that Williams and foe others thought over foe killing of Dyer before they arrived at Shaw’s house. Given the context of the statement, we conclude the prosecutor was not motivated by ill will.
Turning to the third factor, 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, we conclude there is no reasonable possibility the misstatement affected the verdict. The State’s theory of premeditation was that Williams, Kettler, Phillips, and Armstrong went into Shaw’s house with the intent to kill Dyer. In fact, immediately upon making the misstatement, the prosecutor said that Williams and the others went to Shaw’s house “to get” Dyer and they thought about getting him on their way from the liquor store to the house. This theme was repeated and emphasized throughout the closing argument. As we have discussed; there was considerable evidence to support this theory, which distinguishes this case from Holmes, 272 Kan. at 499-500, where this court reversed a defendant’s conviction because of a similar statement. Further, the State did not discuss or emphasize any version of the facts that would suggest any of the defendants premeditated the murder in an instant or a half second.
In addition, the trial court properly instructed the jury on the definition of premeditation and instructed the jury that arguments of counsel were not evidence. Specifically, the trial court gave PIK Crim. 3d 56.04(b) (premeditation) in conjunction with the instruction on first-degree murder prior to the parties’ closing arguments. See State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000) (“Consistent with our past decisions, we conclude that the definition of premeditation’ in PIK Crim. 3d 56.04[b] adequately conveys tire concept that ‘premeditation’ means something more than the instantaneous, intentional act of talcing another’s life.”). The trial court also gave PIK Crim. 3d 54.05 (responsibility for crimes of another), which informed the jury, in part, that “[a] person who, eitirer before or during it commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed.” See K.S.A. 21-3205(1) (discussed previously). Because'the evidence suggested that Williams was not in the same room as Dyer during the fight and when the shots were fired, the application of this instruction to the facts meant that the jury had to find that the premeditation occurred before Williams’ conspirators began the fight.
Because we presume the jury followed tire court’s instructions, 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 a jury was misled.”); State v. Hebert, 277 Kan. 61, 85, 82 P.3d 470 (2004) (prosecutor’s improper comment regarding premeditation was not reversible error when diere was no evidence that prosecutor deliberately misstated the law, jury was given proper PIK instruction on premeditation, and jury was told that arguments of counsel were not evidence); State v. Doyle, 272 Kan. 1157, 1165-66, 38 P.3d 650 (2002) (no indication prosecutor purposefully misstated the law and evidence of premeditation was strong); Jamison, 269 Kan. at 572-73 (prosecutor’s misstatement on the law on premeditation was not reversible error when the jury was properly instructed on the law).
In light of the jury instructions, the facts of die case, and the theme of the prosecutor’s argument that the premeditation had occurred before Phillips and the others arrived at Shaw’s house, we conclude the jury would not have been confused or misled by die prosecutor’s misstatement. The State has demonstrated beyond a reasonable doubt tiiat die prosecutor’s misstatement did not affect the outcome of the trial and does not require reversal.
Confrontation Issue Not Preserved
Williams takes issue with the trial court’s decision to allow the jury to consider what Williams describes as Armstrong’s “recorded statement to police officers” and also Armstrong’s sworn statement. He contends diese were hearsay statements and that die admission of these statements violated his rights under the Confrontation Clause of the Sixth Amendment to die United States Constitution.
Williams failed to preserve tins issue for appeal, however, because he did not state a Confrontation Clause objection when this evidence was admitted. K.S.A. 60-404 provides that no verdict shall be set aside based upon the erroneous admission of evidence unless an objection was “timely interposed and so stated as to malee clear the specific ground of objection.” Generally, constitutional grounds for reversal are subject to this same rule, and objections raised for the first time on appeal are not properly preserved for appellate review. State v. Raskie, 293 Kan. 906, 919, 269 P.3d 1268 (2012); King, 288 Kan. at 348-49; State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007). This court has reiterated that “it is the defendant’s responsibility to ‘rais[e] his Confrontation Clause objection.’ ” State v. Dukes, 290 Kan. 485, 489, 231 P.3d 558 (2010) (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327, 129 S. Ct. 2527, 174 L. Ed. 2d 314 [2009]).
Williams acknowledges that he failed to make an objection to tire admission of Armstrong’s prior statements on the basis of the Confrontation Clause, but he urges this court to apply an “ends of justice” exception to the general rule that this court will not consider an issue that is raised for the first time on appeal. See State v. Kirtdoll, 281 Kan. 1138, 1149, 136 P.3d 417 (2006). This court has held, however, that if an appellate court was to overlook the lack of an objection “ ‘because it is necessary to serve the ends of justice or to prevent the denial of [a defendant’s] right to a fair trial, these and other caselaw exceptions would soon swallow the general statutory rule’ of K.S.A. 60-404.” State v. Randolph, 297 Kan. 320, 335, 301 P.3d 300 (2013) (quoting Richmond, 289 Kan. at 429-30); see State v. Harris, 293 Kan. 798, 813, 269 P.3d 820 (2012) (noting that this court has disapproved of any past loosening of K.S.A. 60-404 requirement of specific and timely objections); King, 288 Kan. at 348 (“[T]he legislature’s intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve tire evidentiary question for review.”).
Moreover, this court has declined to address confrontation issues for the first time on appeal. See, e.g., McCaslin, 291 Kan. at 708-09 (appellate issue on right of confrontation not preserved with a hearsay objection); Dukes, 290 Kan. at 489-90 (defendant failed to preserve confrontation rights issue for appeal); State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) (declined to entertain a Confrontation Clause challenge for the first time on appeal).
Consequently, we hold that Williams failed to preserve his Confrontation Clause issue.
Jury Instruction Issues
Williams raises two juiy instruction issues. Both arguments lack merit.
In the first of these issues, Williams argues that the trial court erred in denying his request for a limiting instruction regarding K.S.A. 60-455 evidence of prior drug transactions.
K. S.A. 60-455 Limiting Instruction
During the first trial, which ended in a hung jury, the trial court granted an order in limine that prohibited the parties from mentioning specific instances of prior drug transactions involving the defendants. Before the second trial, the trial court indicated the order in limine would again apply. But just before the second trial, Phillips introduced a new theory of defense—that he accidentally killed Dyer during a drug deal. Consequently, Phillips waived the order in limine, and the trial court lifted tire order as it applied to Phillips. Williams’ and Kettler s counsel requested, however, that the order in limine still apply to their clients.
The parries agreed that any drug deal evidence relating to the events on the date of Dyer s death was admissible, and general evidence showing that witnesses and key players in tire case knew each other through drug transactions was admissible. But the parties were prohibited from presenting evidence of specific prior drug transactions involving Williams or Kettler.
On appeal, Williams contends that the trial court’s lifting of the order in limine against Phillips rendered the order in limine with respect to Williams “meaningless.” He acknowledges that Phillips’ introduction of prior misconduct evidence was helpful to Williams in that it tended to “exculpate Williams’ liability on premeditation,” but he argues it also “prejudiced Williams in the eyes of the jury” because Williams’ efforts to hide his drug-dealing activities “appealed] evasive and disingenuous.”
Further, Williams contends he requested a mistrial after the trial court denied his request for a limiting instruction. Several issues, including some procedural problems, relate to Williams’ mistrial motion. But we need not delve into those problems if his basic premise—that tire trial court should have given a K.S.A. 60-455 limiting instruction—is flawed, and we conclude that it is.
Standards of Review
The analysis that leads us to this conclusion is guided by the following steps and standards 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, tire 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).
Application of Standards
As to die first step, Williams objected to the trial court’s failure to give die instruction. Thus, the quesdon of whether a limiting instruction should have been given was preserved. See K.S.A. 22-3414(3); State v. Ellmaker, 289 Kan. 1132, 1138-39, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). Nevertheless, the instruction was neitiier legally nor factually appropriate.
The trial court acknowledged the general rule that a trial court “must give a limiting instruction informing the jury of the specific purpose for admission” of evidence that a person committed a crime or civil wrong on a specified occasion. State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647 (2006); see K.S.A. 60-455. But the trial court ruled, in part, that those circumstances did not apply because no K.S.A. 60-455 evidence had been presented at trial that showed Williams’ involvement in any drug transactions other than Phillips’ sale to Shaw just before the shooting. As to aiding and abetting the sale to Shaw, “K.S.A. 60-455 does not apply if the evidence relates to crimes or civil wrongs committed as part of die events surrounding the crimes for which [a defendant] was on trial—that is, the res gestae of the crime.” State v. King, 297 Kan. 955, 964, 305 P.3d 641 (2013); see K.S.A. 60-455 (“evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible ... as the basis for an inference that the person committed another crime or civil wrong on anodier specified occasion.”); State v. Peppers, 294 Kan. 377, 389, 276 P.3d 148 (2012) (“Our decision in Gunby[, 282 Kan. at 59-63,] eliminated res gestae as an independent basis for the admission of evidence. It did not eliminate the admission of evidence of events surrounding a commission of the crime under the applicable rules of evidence.”). King, 297 Kan. at 964.
In attacking the trial court’s ruling on appeal, Williams fails to point this court to any location in the trial transcript where the State, Phillips in his own defense, or any odier witness introduced evidence of any specific drug transactions—either prior or subsequent to the sale to Shaw—involving Williams. This is critical to our analysis because factual assertions in an appellate brief are required to be keyed to the record on appeal. See Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39); State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007) (party alleging trial error has the burden to designate a record affirmatively showing prejudicial error). Neither the jury nor this court were advised of anything in the record establishing Williams’ past history of drug transactions. As the trial court concluded, the order in limine accomplished its purpose and this evidence was not admitted during the trial.
At most there was only evidence that Williams associated with individuals who sold drugs. But association with someone who has committed a crime is not a prior crime or civil wrong that would be covered by K.S.A. 60-455; see State v. Green, 280 Kan. 758, 761-62, 127 P.3d 241, cert. denied 549 U.S. 913 (2006). Williams emphatically makes this point when presenting his argument that his mere association was insufficient evidence that he had aided and abetted the commission of premeditated first-degree murder. Yet, Williams’ association with Phillips, an admitted drug dealer, is all that was established in the evidentiary record.
Because the requested limiting instruction was not legally or factually appropriate, the trial court did not err in refusing to give a limiting instruction.
Expanded Definition of Possession
Next, Williams contends that the trial court erred by instructing the jury on an expanded definition of possession, which included constructive possession. This issue arose in relation to the charge of criminal possession of a firearm, in violation of K.S.A. 21-4204(a)(4)(A). The State requested the expanded definition of possession, and the trial court gave the following jury instruction:
“Possession of an object requires that the defendant have control over the object with knowledge of and the intent to have such control. To possess an object, the defendant must have knowledge of the presence of the object with the intent to exercise control over it. Control means to exercise a restraining or directing influence over the object.
“Possession may be immediate and exclusive, jointly held with another, or constructive. Joint possession occurs when two or more persons, who have the power or control and intent to manage property, exercise the same jointly. Constructive possession is knowingly keeping an object in a place to which the defendant has some measure of access and right of control.” (Emphasis added.)
The parties do not dispute that Williams objected to this instruction. Williams taires issue with the italicized portion of the jury instruction. The trial court found the above-quoted instruction contains correct statements of law, and because the previous jury in the first trial had submitted a question during deliberations regarding constructive possession, the court decided to give an expanded definition of possession to the jury in the second trial.
Instruction Was Legally Appropriate
Williams’ arguments focus on whether the instruction was legally appropriate. He argues the constructive possession language was not legally appropriate because it conveyed an inaccurate statement of law. He fails to explain what was legally inaccurate, however. Instead, for explanation, he contemplates the instruction could have misled the jury “into thinking that because any defend ant could have grabbed the gun out of the car s dash, that any could have possessed it,” or the jury “could have thought that because Williams might have grabbed the gun from another defendant, he constructively possessed it.” He does not explain why any of those scenarios would have been legally inappropriate.
Further, contrary to the implications of Williams’ argument, the jury instruction is not inconsistent with legal definitions of the term “possession.” Black’s Law Dictionary 1282 (9th ed. 2009) defines “constructive possession” as “[cjontrol or dominion over aproperty without actual possession or custody of it.” “Possession” is defined as “[t]he fact of having or holding property in one’s power; the exercise of dominion over property,” and “[t]he right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a material object.” Black’s Law Dictionary 1281 (9th ed. 2009). “Joint possession” is “[pjossession shared by two or more persons.” Black’s Law Dictionary 1282 (9th ed. 2009).
In requesting the expanded possession instruction and arguing that it was appropriate to instruct the jury on constructive possession, the State relied on several cases, two of which are particularly helpful to our analysis—State v. Porter, 201 Kan. 778, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969), and State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985). Neither case involved guidance on when to give a jury instruction on constructive possession, but both addressed the general concepts of joint or constructive possession.
In Porter, the court discussed joint possession in the context of examining the meaning of “possession and control” of a pistol, as contemplated by the felony firearms statute in effect at that time, K.S.A. 21-2611 (Corrick). The court held the charge of possession was proper where the pistol was retrieved from a drawer in a bedroom the defendant shared with his wife. 201 Kan. at 781-82. In coming to dais holding, the Porter court discussed State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967), in which the charge was possession of burglary tools in violation of K.S.A. 21-2437 (Corrick). In response to the defendant’s claim that one of the tools was found on his companion and hence was inadmissible as to him, the Hart court said that possession of burglary tools may be joint as well as individual, and that two or more persons may have the power of control over them and intend to control and use the tools jointly Hart, 200 Kan. at 161. The Porter court found the same rule applicable to the possession and control of prohibited guns. Porter, 201 Kan. at 782.
Constructive possession was at issue in Cunningham, where the court held that the unlawful possession of a firearm under K.S.A. 21-4204 (Ensley 1981) does not require proof of the defendant’s “actual control” of the weapon. 236 Kan. at 845-46. The case arose when two masked burglars entered a store, and the owner exchanged gunfire with one of the men before they fled. The defendant argued that the trial court should have dismissed the charge of possession of a firearm because evidence showed only one of the burglars carried a gun, and there was no proof that the defendant had actual control of the weapon. The Cunningham court rejected the argument that actual control was required: “[A] holding that where one of two indistinguishable burglars wields a gun during the crime either or both may be charged with unlawful possession of the firearm is consistent with traditional aiding and abetting law.” 236 Kan. at 846.
The Cunningham court also cited other cases in which defendants were convicted of unlawful possession of a firearm when there was no evidence of “ ‘actual control.’ ” 236 Kan. at 845-46; see State v. Boster, 4 Kan. App. 2d 355, 361, 606 P.2d 1035 (1980) (charge of unlawful possession proper where gun found in trunk of a car over which defendant asserted control); State v. Goodman, 3 Kan. App. 2d 619, 627, 599 P.2d 327 (1979) (gun found in defendant’s car adequate to support charge of unlawful possession even though there was evidence there might have been two or more persons occupying tire vehicle before it was abandoned). Other states have upheld convictions for possessing firearms or contraband on the basis of constructive possession and have assigned a similar definition to “constructive possession.” See, e.g., People v. McIntyre, 962 N.E.2d 1108, 1112 (Ill. App. 2011) (for constructive possession charge, State had to establish that defendant had knowledge of the presence of the weapon and had im mediate and exclusive control over the area where weapon was found); Commonwealth v. Humphries, 465 Mass. 762, 768 n.6, 991 N.E.2d 652 (2013) (to prove constructive possession of firearm, must show defendant had ability to exercise dominion and control over the firearm); State v. Hankerson, 70 Ohio St. 2d 87, 91, 434 N.E.2d 1362 (1982) (constructive possession exists when an individual exercises dominion and control over an object and requires a showing that person was conscious of object’s presence); State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (stating a person constructively possesses an item when he or she has “ ‘ “the power and intention at a given time to exercise dominion and control over . . . [the contraband] either directly or through others" ’ ”).
In light of this authority, Williams fails to convince us the statement in the juiy instruction regarding constructive possession was an inaccurate legal statement or that it somehow misled tire jury. The definition, as given to the jury, encompassed both knowingly keeping the weapon and controlling or having the ability to exercise control over the weapon and its hiding place. Further, the instruction as a whole explained actual possession and constructive possession, as well as joint possession.
Instruction Was Factually Appropriate
Moreover, there was evidence that Williams had constructive possession of the gun; therefore, the jury instruction was factually appropriate. Williams takes issue with the “weight” of the evidence, but this court does not reweigh evidence. Rather, in considering whether an instruction is factually appropriate, the evidence that would support the instruction must be viewed in the light most favorable to the requesting party. Plummer, 295 Kan. 156, Syl. ¶ 1; see State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
Here, the State presented evidence that the gun belonged to Williams and that the gun was hidden inside the dashboard of Williams’ car, a vehicle and location over which Williams had control. There was also evidence of Williams’ actual physical possession of the gun. Stewart testified that Williams came over to her home on the night of Dyer’s death and he had a 9 mm pistol. She further testified that Williams dropped the magazine out of the gun, took the bullets out, and wiped down die gun. Based on their conversation, Stewart believed the gun belonged to Williams and that he had shot someone. According to Stewart, Williams gave her the gun and asked her to hide it.
Given the evidence that at various times Williams actually, joindy, and constructively had possession of the 9 mm Ruger, the trial court did not err by giving an expanded definition of possession, which included constructive possession.
Mistrial Based on Witness and Juror Misconduct
Next we consider Williams contention that he was denied his constitutional right to a fair trial due to prejudicial conduct inside and outside tire courtroom. Specifically, he complains about two courtroom interactions that occurred between Phillips and two witnesses—Phillips’ wife, Talisha Phillips, and Armstrong’s girlfriend, Latoya Austin. Williams also complains about the trial court’s dismissal of one juror (who was then replaced with an alternate) based on comments communicated by the juror to a third party outside the courtroom during a break. Significantiy, none of these occurrences—either individually or cumulatively—prompted Williams’ counsel or any of his codefendants’ attorneys to request a mistrial. Yet, on appeal, Williams argues the trial court erred by not declaring a mistrial when these circumstances allegedly denied him a fair trial. We reject his contentions.
Interaction Between Phillips and His Wife
With respect to Phillips’ wife Talisha, after her testimony, during which she basically tried to provide an alibi for Phillips on the afternoon and evening of the day when Dyer was shot, one of the jurors reported that during Talisha’s testimony he had witnessed Phillips “mouth” to his wife the phrase, “Stop lying.” The juror had not discussed this observation with any other jurors.
When Phillips’ defense counsel suggested that the juror be questioned on tire record, Williams’ defense counsel stated: “Judge, my thought is, it’s not testimony, therefore it’s not to be considered by him. . . . [H]e might have to receive some instruction not to share it. . . . It’s not the witness’ demeanor, it’s the conduct. And it’s not on the record, except in this way [via the discussion between the judge and defendants’ counsel].” After the court heard from Ket-tler’s defense counsel, Williams’ defense counsel then clarified: “Judge, can I add this, please? Since [the juror] didn’t say anything to the bailiff, [indicating] that he couldn’t sit fairly and impartially, it’s not an issue we could address.” The prosecutor agreed, and die court simply stated: “Okay. All right.” Thus, the court acceded to Williams’ request, and from the transcript, it appears that no fur-tiier action was taken on the matter.
Interaction Between Austin and Phillips
The next day, Austin testified. The trial transcript shows that after Austin was finished testifying, she got up and as she walked by Phillips, she pointed her finger at Phillips and said he better talk to his “baby mama.” Phillips’ defense counsel asked the trial court if he could poll the jurors to ask if they heard the comment and whether it impacted them. When die court asked the other attorneys if they wanted to respond or weigh in on Phillips’ request, Williams’ defense counsel stated: “I don’t have any position on it.” Then, when asked a second time whether “[a]nybody else want[ed] to weigh in on this issue,” Williams’ defense counsel said: “No.”
Ultimately, the trial court denied Phillips’ request to poll the juiy but did offer an admonition to the jury. The court told the jury to disregard the statement made by Austin as she was leaving the witness stand and emphasized that the jury should only consider “testimony that occurs when someone is under oath and on the stand.” The court’s admonition was not requested by Williams’ defense counsel.
Standards of Review
With regard to prejudicial conduct in general, in State v. Ward, 292 Kan. 541, Syl. ¶ 1, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012), this court stated:
“K.S.A. 22-3423(l)(c) permits a trial court to declare a mistrial because of prejudicial conduct, in or outside tire courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution. Applying the statute, a trial court must engage in a two-step analysis. First, tire trial court must decide if there is some fundamental failure of the proceeding. If so, in Ore second step of the analysis, the trial court must assess whether it is possible to continue the trial without an injustice. This means that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by admonition or instruction to the jury. If not, tire trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial.”
On appeal, the trial court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard. The rubric for analysis of whether the trial court abused its discretion in deciding if there was a fundamental failure in the proceeding varies with the nature of the alleged misconduct, such as whether the allegation is based on the actions of a witness, a juror, a bystander or on prosecutorial misconduct or evidentiary error. 292 Kan. 541, Syl. ¶¶ 2, 4. The burden of demonstrating error is on the party alleging the abuse. State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013).
Once an error has been established,
"[t]o determine whether an error makes it impossible to proceed with the trial without injustice, a court must assess whether the fundamental failure affected a party’s substantial rights under Kansas’ harmless error statutes, K.S.A. 60-261 and K.S.A. 60-2105, if a right guaranteed by the United States Constitution is not implicated or else under Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), if such a constitutional right is implicated.” Ward, 292 Kan. 541, Syl. ¶ 5.
Under Chapman, the burden is on the party benefiting from the error to prove beyond a reasonable doubt that the error complained of did not affect substantial rights. 292 Kan. at 578.
For authority on tire standard of review in juror misconduct cases, both parties cite State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980), in which the court stated that the party claiming prejudice has the burden of establishing such prejudice. But Fen-ton predates Ward, where this court stated: “We recognize that imposing that burden on the State at this point changes the rule because, as noted, past Kansas cases have placed tire burden of establishing prejudice on the defendant in mistrial cases.” 292 Kan. at 578. Neither party discusses Ward, although the appellate briefs in this case were filed after Ward was decided. Regardless, Ward applies and the State has the burden in this case.
No Merit to Williams’ Arguments
While die State has not raised a preservation objection, as we previously intimated, the fact that Williams’ defense counsel did not feel these outbursts warranted a mistrial or even corrective action suggests to us neither situation constituted a fundamental failure in the proceedings. Further, there is nothing in the record that makes us believe these short outbursts warranted a mistrial. We hold that die trial court did not abuse its discretion in dealing with the two interactions between Phillips and the two witnesses in the courtroom.
Even if it could be concluded that these courtroom interactions constituted some fundamental failure in die proceeding, any error was harmless. As noted by the State, the interaction between Phillips and his wife was brief and was only acknowledged by one juror who never indicated that it would affect his impartiality. The interaction between Phillips and Austin was more demonstrative but happened after Austin’s testimony had concluded, and it is not clear whether her interaction with Phillips was even seen by die jurors. Further, the trial court gave a limiting instruction to cure any potential prejudice, and appellate courts presume that the jury followed the court’s admonition. See State v. Barncord, 240 Kan. 35, 44-45, 726 P.2d 1322 (1986). Finally, even under the Chapman harmless error standard, we are confident beyond a reasonable doubt that these courtroom incidents did not affect Williams’ substantial rights. In other words, there is no reasonable possibility die jury would have rendered a different verdict if the incidents had not occurred. State v. Inkelaar, 293 Kan. 414, 436, 264 P.3d 81 (2011).
Alleged Juror Misconduct
Next, Williams complains about the trial court’s dismissal of one juror based on comments communicated by the juror to a third party outside the courtroom during a break. The court then replaced the dismissed juror with an alternate, but it did so at die request of Williams’ defense counsel and the other defense attorneys. No counsel contended that this juror contaminated other jurors. Nor did Williams move for a mistrial. Further, as the State aptly points out in its appellate brief, Williams fails to explain on appeal what specific details about this jurors dismissal from the jury can be characterized as “error.”
This court has stated that “where alleged juror misconduct claimed as prejudicial is known by the party or his counsel before the verdict is rendered, and no objection is made nor is the matter brought to the court’s attention, the party cannot later assert the misconduct as grounds for a new trial. [Citations omitted.]” State v. Wheaton, 240 Kan. 345, 354, 729 P.2d 1183 (1986); see State v. Williams, 298 Kan. 1075, Syl. ¶ 4, 319 P.3d 528 (2014) (citing Rule 6.02[a][5] [2013 Kan. Ct. R. Annot. 39-40] and noting that “rules of this court require a party briefing an issue on appeal to make ‘a reference to the specific location in the record on appeal where the issue was raised and ruled upon. If not raised below, explain why the issue is. properly before the court.’ ”); State v. Buggs, 219 Kan. 203, 208, 547 P.2d 720 (1976) (stating the rule is “a corollary” of the contemporaneous objection rule as to evidence and the requirement of an objection to erroneous instructions; “[a] party is not permitted to remain silent in the face of known error, gamble on the verdict, and show his hole card only if he loses”). Granted, once an error is shown and a constitutional violation is implicated, the burden of production is on the party benefitting from the error. Ward, 292 Kan. at 577-78. Arguably, that is the State in this case. But Williams fails to satisfy his burden of directing this court’s attention to what he considers to be the error.
Regardless, any juror misconduct was remedied with the trial court’s assignment of a replacement juror from the alternates that had been selected during voir dire. It is well settled that
“a defendant lias no right to any particular juror or to the original 12 jurors empanelled to hear the case. [Citations omitted.] Furthermore, it is well established that the decision to discharge a juror lies within the sound discretion of the trial judge. [Citations omitted.] ‘The defendant carries the burden of demonstrating substantial prejudice before an appellate court will find that the trial court abused its discretion.’ ” State v. Lowrance, 298 Kan. 274, 287, 312 P.3d 328 (2013).
Williams malees no argument explaining how the trial court abused its discretion in replacing the juror. Also, even under the Chapman harmless error standard, there is no reasonable possibility that the jurors misconduct or the trial court’s dismissal of the juror and assignment of a replacement juror affected the outcome of the trial. See Inkelaar, 293 Kan. at 436. Hence, Williams’ arguments are without merit.
Demonstrative Photograph Was Admissible
Williams contends that the trial court erred by admitting a photograph—Exhibit 208—of the dashboard of Williams’ car depicting an installed stereo, along with the testimony of a law enforcement detective detailing his attempt to reconstruct the State’s gun-in-the-dash theory as rebuttal evidence. This contention lacks merit.
Evidence at Issue
In this case, the detective testified on behalf of the State. During tire detective’s direct examination, he stated, without objection, that he had learned from Armstrong’s sworn statement that the gun used to kill Dyer had been hidden inside the dashboard of Williams’ car and had been removed by Kettler on the way to the liquor store. The detective explained that after this information came to light, he took steps to verify whether a gun could be concealed in that location. At the time the detective examined Williams’ car, there was an open hole in the dashboard where a stereo would have been installed. The detective testified that he went to the law enforcement impound lot, where the car was being held, and placed his 9 mm Glock, which was his service weapon, inside the dashboard.
Four photographs were admitted after that testimony. Williams and his codefendants objected on the basis of “foundation,” and the trial judge stated: “I believe there’s enough as far as foundation. I think the objections really go to weight, not admissibility.” The photographs depicted the interior dashboard area of Williams’ car, and one photograph showed the detective’s gun inside the open hole.
During a voir dire examination of the witness, the detective stated there was no car stereo installed when he examined Williams’ car. It was later established that the car had been burglarized at the impound lot and the stereo had been stolen. On cross-examination, Williams’ defense counsel asked the detective whether he had brought a radio to install into the opening in order to see if a gun could fit behind it. The detective said, “No,” he had not brought one with him.
Before the detective was recalled as a rebuttal witness, he returned to the impound lot with a stereo. Then, later on rebuttal, the State introduced three additional photographs of the dashboard of Williams’ car, one of which showed a stereo that had been installed in the proper location. This is the one photograph, Exhibit 208, about which Williams complains on appeal. Williams’ defense counsel objected to the admission of the photograph on the grounds that “it doesn’t simulate the evidence, it would be of no probative value.” Williams did not object to the detective’s rebuttal testimony, however.
The detective’s rebuttal testimony established that when he returned to the impound lot he placed his “9 millimeter [Glock] into the back as far as I could of the opening and then I placed the stereo in, again to see if it would actually fit flush up against the outer portion of the opening.” When asked if tire stereo, which he described as a “standard in-car stereo,” fit flush with the gun behind it, the detective answered, “Yes, it [did]. The handgun was in an up and down position (indicating).” When asked by Williams’ defense counsel about wiring the stereo, the detective acknowledged that he did not connect the wires on the stereo to the car.
Williams argues on appeal that this detail regarding the wiring was significant because the original stereo had been fully functional; there was evidence that Williams and the others were listening to loud music on the way to Shaw’s house. The trial court concluded that Exhibit 208 was admissible, finding that “the objections go to weight, not admissibility.”
Standards Regarding Demonstrative Photographs
Because Williams’ objection was limited to the photograph, the trial court had to consider principles relating to demonstrative evidence. Generally, in determining whether demonstrative photographs should be admitted, a trial court must determine whether they are relevant and whether a proper foundation has been laid. State v. Crum, 286 Kan. 145, 159, 184 P.3d 222 (2008); State v. Roberts, 261 Kan. 320, Syl. ¶ 3, 931 P.2d 683 (1997); State v. Kendig, 233 Kan. 890, 892, 666 P.2d 684 (1983); see State v. Kirby, 272 Kan. 1170, 1186, 39 P.3d 1 (2002). A proper foundation easts when the witness demonstrates he or she possesses the requisite skill and experience to conduct the demonstration and displays the accuracy and reliability of the models and photographs. Kendig, 233 Kan. at 892 (citing State v. Peoples, 227 Kan. 127, 132, 605 P.2d 135 [1980]). To the extent that Exhibit 208 is a photograph of a reconstructed scene, the proper test is whether the conditions are the same or substantially similar to the events depicted. Minor differences go to the weight of the evidence rather than its admissibility. The question of what constitutes a permissible variation depends on whether it tends to confuse or mislead the jury. Kendig, 233 Kan. at 893; see State v. Miller, 284 Kan. 682, 696, 163 P.3d 267 (2007) (“[D]emonstrative photographs that serve to better illustrate a witness’ testimony to tire jury are admissible when tire photographs themselves, if viewed in a vacuum, would be otherwise objectionable.”); State v. Suing, 210 Kan. 363, 365, 502 P.2d 718 (1972) (“ ‘When a picture is offered as a general representation of a scene or object, very slight proof of reliability may be sufficient; but when it is offered as representing slight differences of height, breadth or length, much more convincing proof of dependability should be required.’ ”).
The trial court has broad discretion when making these determinations, and the court’s decision to admit such photographs must be accepted on appellate review absent a showing of abuse of discretion. Crum, 286 Kan. at 159; Kendig, 233 Kan. at 893; See State v. Jones, 202 Kan. 31, 42, 446 P.2d 851 (1968).
No Abuse of Discretion
Williams’ claim that the admission of Exhibit 208 and the detective’s rebuttal testimony constituted an abuse of discretion is unpersuasive. First, the photograph was relevant to the State’s theory that the murder weapon was concealed in tire dashboard of Williams’ car, was retrieved from that location on the way to find Dyer, and was eventually used to shoot and kill Dyer. The photograph also corroborated Armstrong’s statements indicating that it was possible to hide a gun behind the stereo.
Williams complains that Exhibit 208 showed a stereo featuring a cassette tape player, whereas the original stereo featured a CD player, and he argues there was no “testimony or evidence about the size of the radio that Mr. Williams [previously] installed in his car.” These points were argued to tire jury, and they are not entirely correct. In fact, Williams was asked at trial about the size of his car stereo. He described drat it went into the dash approximately 5 inches, and he estimated the height and width of the stereo with hand gestures. Nevertheless, as acknowledged by the State in its appellate brief, there were some inconsistencies between the two stereos. But the details depicted in the photograph, which showed a “standard” size car stereo and focused on the dashboard of Williams’ car, the space behind the stereo, and a concealed gun, were substantially similar. There was only a finite amount of space in the cutout of the dashboard to fit a small stereo, and the detective’s testimony and photograph demonstrated that a 9 mm pistol could fit behind a stereo of standard size.
Although there may have been some discrepancies between the original stereo and the one in the photograph, minor differences go to the weight of the evidence rather than its admissibility. Kendig , 233 Kan. at 893; 29A Am. Jur., Evidence § 999, p. 323 (“[Pjhotographic evidence of reconstructed events is admissible as long as a proper foundation is laid and any discrepancies between the reconstruction and the original event are explained.”). Further, Williams’ defense counsel was able to question the detective thoroughly to explain to the jury why Williams believed the photograph failed to accurately represent die gun-in-the-dash theory. Thus, the jury was made aware of possible differences.
Consequentiy, we conclude that the trial court did not abuse its discretion in admitting the rebuttal evidence.
No Cumulative Error
Finally, Williams contends that even if no single error at trial was sufficient to require reversal and remand, the cumulative effect of errors nevertheless deprived him of a fair trial. But the only error found in this case was in the prosecutor s closing argument, which was determined to be harmless. Without more errors to accumulate, the error remains harmless. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009) (“The presence of one [trial] error is obviously insufficient to accumulate.”).
Affirmed. | [
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The opinion of the court was delivered by
Nuss, C.J.:
James F. Williams appeals the sentence imposed after his Alford plea to one count of first-degree felony murder and two counts of arson. He alleges the district court erred in calculating his criminal histoiy score by classifying a prior out-of-state conviction as a person crime instead of a nonperson crime. This classification elevated his overall score, which in turn allowed his sentence to be increased in severity.
We reject his arguments and affirm.
Facts and Procedural History
Williams was charged with one count of first-degree felony murder and two counts of arson arising from an incident involving domestic violence and a fire at a Wichita apartment. Williams asked the district court for a pretrial determination of his criminal histoiy score because the parties could not agree whether it was B or C. The dispute centered on how his 1996 Ohio burglary conviction should be classified. If this conviction were classified as a nonperson crime, his criminal history score would be C; if classified as a person crime, his score would increase in severity to B.
In 1996, Williams had entered an Ohio bank occupied by other people. While there, he was observed removing a small knife and stapler from a desk in an office on the 23rd floor. He was arrested at the bank in possession of the items.
Before the Sedgwick County District Court ruled on his pretrial motion to determine his criminal history score, Williams entered an Alford plea—pleading guilty to the charges without admitting to the commission of the offenses. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). His plea was accepted by the court.
At sentencing, the State argued the facts showed the Ohio crime of conviction was comparable to Kansas’ aggravated burglary, a person crime. Williams responded the facts failed to show he had acted with the intent to commit theft—which for certain aggravated burglaries in Kansas can be a required element. According to Williams, the Ohio crime of conviction and the Kansas crime of aggravated burglaiy therefore were not comparable and his Ohio crime was not a person crime in Kansas.
The court rejected Williams’ argument and ruled the two crimes were “substantially similar,” malting the Ohio conviction a person crime. Using this classification, the court computed Williams’ criminal histoiy score as B, not the lower C.
The court sentenced Williams to lifetime imprisonment without the possibility of parole for 20 years for the first-degree felony-murder conviction. It also ordered the sentences on the two arson convictions, 41 months and 19 months, to run consecutive to each other and consecutive to the felony-murder sentence, resulting in a controlling sentence of life plus 60 months.
We have jurisdiction of Williams’ appeal under K.S.A. 2013 Supp. 22-3601(b)(3) (life sentence imposed) and K.S.A. 2013 Supp. 21-6820(e)(3) (“[T]he appellate court may review a claim that . . . the sentencing court erred ... in determining the appropriate classification of a prior conviction . . . for criminal history purposes.”).
More facts will be added as necessary to the analysis.
Analysis
Issue: The district court correctly determined that Williams’ prior out-of-state conviction is comparable to aggravated burglary, a person offense, under KS.A. 21-3716 (Purse 1995).
Williams contends the district court erred by classifying his Ohio crime of conviction as a person crime comparable to Kansas’ aggravated burglary, which led it to erroneously calculate-—and inflate—his criminal history score as B. Williams also argues the rule of lenity requires the factual ambiguity regarding his out-of-state conviction to be resolved in his favor. The State responds the Ohio crime of conviction is comparable to Kansas’ aggravated burglary, and it was properly classified as a person crime. Accordingly, Williams’ score was properly calculated as B.
Standard of review and principles of statutory interpretation
Determining Williams’ criminal history score requires us to interpret the relevant substantive criminal statutes and provisions of the Kansas Sentencing Guidelines Act (KSGA). Statutory interpretation presents a question of law subject to de novo review. State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014) (de novo review of disputed criminal histoiy score).
When interpreting statutes, we abide by the fundamental rule of statutory interpretation that “ ‘ “[T]he intent of the legislature governs if that intent can be ascertained.” ’ ” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013) (quoting Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, Syl. ¶ 3, 218 P.3d 400 [2009]). “ ‘[T]he best and only safe rule for ascertaining the intention of the makers of any written law, is to abide by the language drey have used' ” Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]).
Like all criminal statutes, the KSGA must be stricdy construed in favor of the accused. See State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). But the rule of strict construction is subordinate to the rule that the court’s interpretation of the statutory language must be reasonable and sensible. 288 Kan. at 257-58 (citing State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 [2008]).
Discussion
K.S.A. 21-4711(e) controlled the classification of prior out-of-state convictions when the district court calculated Williams’ criminal history score. It provided in relevant part:
“Out-of-state convictions . . . will be used in classifying the offender s criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” (Emphasis added.)
When designating a prior out-of-state crime of conviction as a person or nonperson offense in Kansas, “the offenses need only be comparable, not identical.” State v. Vandervort, 276 Kan. 164, 179, 72 P.3d 925 (2003). There, we held the Kansas crime that was “the closest approximation” of the out-of-state crime was a comparable offense, and we explicitly ruled the crimes need not have identical elements to be comparable for making the person or nonperson designation. 276 Kan. at 179. We have also held “the comparable offenses in Kansas shall be determined as of the date the defendant committed the out-of-state crimes.” State v. Williams, 291 Kan. 554, Syl. ¶ 4, 244 P.3d 667 (2010).
Williams committed his Ohio crime in 1996 and was charged and convicted under Ohio Rev. Code Ann. § 2911.12(A)(1) (Matthew Bender 2010). It provided in relevant part:
“(A) No person, by force, stealth, or deception, shall do any of the following:
“(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense.” (Emphasis added.)
The Kansas aggravated burglaiy statute in effect in 1996, K.S.A. 21-3716 (Furse 1995), provided:
“Aggravated burglaiy is knowingly and without authority entering into or remaining within any building, manufactured home, mobile home, tent or other structure ... in which there is a human being, with intent to commit a felony, theft or sexual battery therein.” (Emphasis added.)
We begin our analysis by recognizing Williams’ appellate brief asserts that his counsel at the district court “argued that the evidence surrounding the prior conviction failed to demonstrate an Intent to permanently deprive’ to support the intent to commit a theft element.” His brief adopts this same theme argued at the district court: “The complaint and facts before the reviewing court here were ambiguous and insufficient to elevate the offense from a nonperson burglary to a person felony aggravated burglaiy.” More particularly, he argues: “Under the facts concerning the Ohio offense, there was insufficient evidence to establish the Kansas element of intent to permanently deprive.”
But the evidence-based approach Williams promotes is not the approach used by Kansas courts. Our courts examine the out-of-state crime of conviction and attempt to find a comparable Kansas crime. See, e.g., State v. Williams, 291 Kan. at 556-60; State v. Vandervort, 276 Kan. at 179. And K.S.A. 21-4711(e) plainly stated:
“In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime.” (Emphasis added.)
In this legal review of criminal statutes, there is no review of the evidence surrounding the out-of-state conviction. Nor is there review of the identicalness of the elements of the crimes identified in the out-of-state and in-state statutes. Rather, the review is for crime comparability. See Vandervort, 276 Kan. at 179 (“Vander-vort confuses the term ‘comparable’ with the concept of identical elements of the crime. For purposes of determining criminal history, the offenses need only be comparable, not identical.”). Accordingly, we reject Williams’ misplaced argument that the Ohio crime of conviction contains insufficient evidence to establish the Kansas element of intent to permanently deprive.
We additionally reject his sole remaining argument in his brief because it also suggests an evidentiary foundation. “The ambiguity in the Ohio complaint, and other facts surrounding the prior Ohio conviction, required the district court to apply the rule on lenity and classify the prior conviction as a nonperson felony.” Moreover, while this rule requires a court to resolve ambiguities in a defendant’s favor, it only applies when reasonable doubt exists about a statute’s meaning and application. State v. Coman, 294 Kan. 84, 97, 273 P.3d 701 (2012). The language of K.S.A. 21-4711(e) is not ambiguous.
Even if we allowed Williams’ evidence-based argument, we would be compelled to reject its flawed logic. Simply put, the presence of the element of intent to permanently deprive—to support the intent to commit a theft—does not distinguish the aggravated burglary determined by the district court from the simple burglary determination that Williams requests. And it does not distinguish a person crime from a nonperson crime as he contends.
For while there are differing severity levels for the various types of burglary under the 1995 version of K.S.A. 21-3715—subsections (a) (severity level 7 person felony), (b) (severity level 7 nonperson felony), and (c) (severity level 9 nonperson felony)—all these burglaries still required an “intent to commit a felony, theft or sexual batteiy.” (Emphasis added.) So did the crime of aggravated burglary under the 1995 version of K.S.A. 21-3716 (severity level 5 person felony).
We conclude the district court correctly determined Williams’ Ohio crime of conviction was comparable to aggravated burglary under K.S.A. 21-3716 (Furse 1995). Accordingly, it properly classified his Ohio conviction as a person crime, resulting in a criminal history score of B and supporting his controlling sentence of life plus 60 months.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Per Curiam:
Sidney Gleason was convicted by a jury of capital murder for the intentional and premeditated killing of more tiran 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.” K.S.A. 21-3439(a)(6). In a separate penalty phase, the same jury sentenced Gleason to death for the capital offense. The jury also convicted Gleason of separate charges of first-degree premeditated murder, aggravated kidnapping, aggravated robbery, and criminal possession of a firearm. On these convictions, the district court sentenced Gleason to a consecutive controlling prison sentence of life with no possibility of parole for 50 years.
We reject Gleason’s challenges to the district court’s jurisdiction over the capital murder charge and the sufficiency of the evidence to support his capital conviction and, finding no reversible guilt-phase errors, we affirm Gleason’s convictions of capital murder, aggravated kidnapping, aggravated robbery, and criminal possession of a firearm. But we vacate Gleason’s conviction of first-degree premeditated murder, and his corresponding hard 50 sentence, because that conviction is multiplicitous with his capital murder conviction.
Further, we reject Gleason’s claims that the aggravating circumstances supporting imposition of his death sentence were eitiier legally invalid or not supported by sufficient evidence. But because the district court failed to properly instruct the jury on its duty to consider mitigating circumstances, we vacate Gleason’s death sentence and remand for resentencing. Given our decision to vacate the death sentence, we decline to address Gleason’s statutory and constitutional challenges to the death penalty.
Factual and Procedural Background
On February 12, 2004, Gleason, Damien Thompson, Ricky Gal-indo, Brittany Fulton, and Mikiala “Mild” Martinez robbed Paul Elliott at knifepoint at his home in Great Bend. Sometime thereafter, Gleason and Thompson learned police had interviewed Fulton and Martinez about the robbery. Nine days after the robbery, Gleason and Thompson drove from Lyons to Great Bend where Gleason shot and killed Martinez’ boyfriend, Darren Wornkey, wounding Martinez in the process. Thompson and Gleason then kidnapped Martinez and took her to a rural location where Thompson strangled, shot, and killed her. Gleason and Thompson left Martinez’ body near the road and returned to Lyons. Later that evening, Gleason and Thompson returned to the scene of Martinez’ murder, placed Martinez’ body near a tree further from the road, and covered her body with small branches.
On February 22, 2004, Kansas Bureau of Investigation (KBI) Special Agent Cory Latham arrested Gleason and Thompson for the Elliott robbery. Five days later, the State jointly charged Gleason and Thompson with capital murder for killing Wornkey and Martinez. The State also charged both men with the first-degree premeditated murder and aggravated kidnapping of Martinez. Later, the State amended the complaint to charge both men with the attempted first-degree murder and aggravated robbery of Paul Elliott.
Thompson subsequently agreed to plead guilty to the first-degree murder of Martinez, to disclose die location of Martinez’ body, and to testily truthfully in any criminal proceedings against Gleason. In return, the State agreed not to seek a hard 50 sentence against Thompson and to dismiss the remaining charges against him.
In an interview with Agent Latham, Thompson confessed to his role in the Elliott robbery, confessed to killing Martinez, identified Gleason as Wornkey’s killer, and explained Gleason’s roles in the robbery and in Martinez’ kidnapping and murder. Thompson also led Ladiam and other officers to the location where he and Gleason hid Martinez’ body.
At Thompson s plea hearing, he pled guilty to and was convicted of the first-degree premeditated murder of Martinez. The district court then dismissed the remaining charges against Thompson and agreed to the State’s request to delay Thompson s sentencing until after Thompson testified at Gleason’s preliminary hearing. After Thompson’s conviction, the State amended Count 2 of the complaint against Gleason to charge Gleason with the first-degree premeditated murder of Wornkey, rather than Martinez.
At Gleason’s preliminary hearing, three witnesses testified— Thompson, Fulton, and Galindo. Thereafter, the district court granted the State’s request to add a charge of criminal possession of a firearm, bound Gleason over on all charges, formally arraigned him, and entered not guilty pleas on Gleason’s behalf. The State gave oral and written notice of its intent to seek the death penalty. The court later granted Gleason’s motion to dismiss the attempted first-degree murder charge arising from the attack on Elliott.
The day after Gleason’s preliminary hearing, the district court sentenced Thompson in accordance with his plea agreement to a term of life imprisonment with no possibility of parole for 25 years.
Jury Trial—Guilt Phase
The State’s first witness, Agent Latham, provided a comprehensive overview of the robbery/double homicide investigation, including extensive testimony about the substance of Thompson’s confession. Defense counsel made no hearsay or confrontation objections to Latham’s testimony about Thompson’s statements. Several other witnesses also testified without objection about statements Thompson made during and after the commission of the crimes and after his arrest.
Thompson, who the State called as its last witness, answered a few preliminary questions but ultimately refused to testify. Over Gleason’s objections, the district court declared Thompson an unavailable witness and granted the State’s request to admit Thompson’s preliminary hearing testimony. The district court overruled Gleason’s motion for mistrial based on Thompson’s refusal to testify.
Testimony of Damien Thompson
After Thompson refused to testify, his preliminary hearing testimony—both direct and cross-examination—was read into the record by the prosecutor, who read his own questions, and Agent Latham, who read Thompson’s responses. Through the introduction of Thompson’s preliminary hearing testimony, tire State established the following facts.
In February 2004, Thompson lived in Lyons and sold narcotics with his cousin, Gleason. On February 12, 2004, Thompson went to Paul Elliott’s house with Gleason, Fulton, Martinez, and Galindo to “pick[] up some money.” According to Thompson, the group planned that Fulton and Martinez would get money from Elliott in exchange for sex and Gleason and Thompson would collect die money. Thompson stayed in Fulton’s car while the others went inside. Martinez and Fulton returned to the car first, while Galindo and Gleason remained inside Elliott’s house. Galindo and Gleason later returned to the car with a box of cigarettes and between $10 and $35. Thompson did not ask for details regarding what occurred inside Elliott’s house during the robbery. However, he knew “it went bad” because the “old man [Elliott] got cut up.”
The group returned to Fulton’s house and discussed the robbery. Based on information the group received from Fulton before the robbery, Thompson believed Elliott would give them $500. When they said they did not get that money, Thompson forced Fulton and Martinez to strip down to their underwear, believing they had taken Elliott’s money and hidden it from the rest of the group. Even after the two women disrobed and Thompson found no hidden money, he did not trust them.
The group remained at Fulton’s house for a short time after the robbery and eventually went to Galindo’s house where they all stayed the night. Thompson, Gleason, and Galindo were all concerned Martinez and Fulton might talk to the police about the robbery, but Thompson denied having any group discussions about these concerns at Galindo’s house. Thompson also denied having any discussions that evening about harming Fulton or Martinez and denied ever having a conversation with Galindo about killing Martinez.
Sometime after the Elliott robbery, Thompson learned that either Fulton or Martinez had spoken with the police. Thompson confronted Fulton, demanding she “pick between her and [Martinez], [as to] which one [of the two should die].” Although Thompson was alone when he confronted Fulton, and Gleason did not tell him to do so, Thompson told Gleason about the confrontation after tire fact.
Around 11 or 11:30 p.m. on February 20, 2004, Thompson, armed with a 9-millimeter pistol, and Gleason, carrying a .22 caliber revolver, drove from Lyons to Great Bend to make a dope run and “bring some intimidation” to Fulton or Martinez. When the two men arrived in Great Bend shortly after midnight, a marked police vehicle immediately began following their vehicle. Thompson drove to Martinez’ house and parked across the street, and the police vehicle drove past Thompson s car.
Meanwhile, Martinez and Wornkey drove up in Womkey s Jeep and parked in front of Martinez’ house. Before Womkey and Martinez could get out of the Jeep, Gleason got out of Thompson’s car and approached the Jeep, carrying the .22 caliber revolver in his hand. Thompson fixed his eyes on his rearview mirror as he watched the police car drive away. He then heard three or four gunshots and looked toward the Jeep. Thompson could see Gleason standing next to the driver’s side where Wornkey was seated, but he did not see if anything transpired between Wornkey and Gleason before the shooting.
After the shooting, Martinez got out of the Jeep and ran to the middle of the street, screaming, “ Why, why, why.’ ” According to Thompson, Gleason told Martinez to calm down and get into Thompson’s car, but neither Thompson nor Gleason used physical force or verbal threats to force her into the car. Instead, Thompson claimed Martinez got into the car “of her own accord.” Thompson was “dumbfounded” at this point because he did not know Gleason was going to shoot Wornkey. After Gleason got into the car, Thompson drove out of Great Bend, taking back roads.
During the drive, Martinez “hysterically ask[ed] ‘why, why, why’ ” and at some point told Thompson and Gleason she had been shot in the leg. Thompson instructed her to “put something around her leg to tighten up.”
Both Thompson and Gleason knew Martinez and Wornkey had a history of domestic violence, and it occurred to Thompson that Martinez could claim she shot Wornkey in self-defense. So Thompson “brung up the idea to give [Martinez] the pistol,” and Gleason handed the loaded gun to Martinez. But Thompson quickly realized the flaws in his plan and retrieved the gun from Martinez.
After Thompson retrieved the gun, he and Gleason did not discuss what to do with Martinez. Thompson drove for about 15 minutes before parking the car and ordering Gleason and Martinez to get out. As Gleason, Martinez, and Thompson stood near the passenger side of Thompson’s car, Thompson pointed his 9-milli-meter pistol at Martinez’ chest and pulled the trigger, but his pistol jammed. Martinez dove into the backseat of the car to escape, but Thompson pulled her out. Thompson then exchanged guns with Gleason and hit Martinez in the head with Gleason’s .22 caliber revolver, causing Martinez to fall to the ground.
Thompson handed tire revolver back to Gleason, placed his hands around Martinez’ neck, and strangled her for about 5 minutes while Gleason held both guns. As Martinez struggled, scratching Thompson on the neck, Gleason stood by “watching,” but he did not tiy to stop Thompson. However, as Thompson strangled Martinez, Gleason said, “When you get done, let me go next.” Thompson responded that he “wasn’t no mother fucking pervert.” Thompson assumed from Gleason’s comment that Gleason thought Thompson was raping Martinez because Martinez made noises as Thompson strangled her, it was dark outside, and Gleason had poor eyesight.
When he finished strangling Martinez, Thompson grabbed the 9-millimeter pistol from Gleason and shot Martinez in the chest. Thompson then told Gleason they were “even,” meaning he and Thompson had each shot and killed one person. According to Thompson, it was entirely his idea to pull over and kill Martinez.
On cross-examination, Thompson testified it was “possible” that Gleason, due to his poor eyesight, had not seen Thompson try to shoot Martinez the first time when the gun misfired. Thompson testified he thought he had killed Martinez by strangling her and tried to explain why he also shot Martinez:
“Q. [Defense counsel:] Why did you shoot her then? If you thought you had already killed her, then why did you get the gun and shoot her?
“A. [Thompson:] Why did I get the gun?
“Q. Right.
“A. When I seen [Gleason] approaching her with the gun, I just took the gun away from him and then I shot her, and why I did that, I don’t know.
“Q. When you say [Gleason] approached her with the gun, he was walking towards her holding the gun; is that right?
“A. That’s right.
“Q. You have no idea whether he intended to shoot her, do you?
“A. Well, yeah, his arm was extended outward with the gun in hand.
“Q. Did he fire any shots?
“A. No, because I stopped the gun.
“Q. Did he pull the trigger?
“A. No.
“Q. But you got the gun and, in fact, did fire shots into what is, in your opinion, [Martinez’] dead body?
“A. That’s right.”
Thompson testified he and Gleason left Martinez" body on the ground and drove back to Gleason s mother s house in Lyons. They arrived home around 2 or 3 a.m. and, at some point, placed their shoes and clothing in trash bags. Later that day, Thompson hid the trash bags in a salvage yard, purchased a scrub brush, and tried to clean Martinez" blood out of the backseat of his car.
That evening, Thompson decided to return to where they had left Martinez’ body, and Gleason willingly accompanied him. Both men wore gloves and placed trash bags over their shoes so as not to leave any evidence. Thompson and Gleason moved Martinez’ body to a location farther from the road, placed her body behind a tree, disposed of the gloves and the trash bags they had worn over their shoes by “[t]hrowing them out [in] different areas,” and returned to Lyons.
On cross-examination, Thompson admitted that, as convicted felons, neither he nor Gleason could legally possess guns. Defense counsel also elicited testimony from Thompson about the terms of his plea agreement, emphasizing Thompson’s agreement to plead guilty to first-degree murder in exchange for the State’s agreement not to seek the death penalty against him.
Testimony of Other Witnesses and Physical Evidence
Other evidence at trial largely corroborated Thompson’s testimony. The State’s first witness, Agent Latham, testified at lengdr about Thompson’s postarrest statements and confession, which were substantially consistent with Thompson’s testimony as recounted above.
Ricky Galindo testified he participated in the Elliott robbery with Gleason, Thompson, Fulton, and Martinez. According to Gal-indo, before die robbery Fulton and Martinez told the odrers that Elliott kept between $500 and $700 in his home. Galindo testified all five members of the group walked up to Elliott’s house from Fulton’s car, while Thompson stayed outside to act as a lookout.
Galindo testified he and Gleason armed themselves with knives and went inside Elliott’s home, intending to rob him. They held Elliott down, and when he refused to give them any money, Gleason stabbed him in the neck. Galindo then continued to restrain Elliott while Gleason looked through tire house for cash. Galindo and Gleason eventually returned to Fulton’s car with less than $20, a cell phone, Elliott’s checkbook, and a few cigarettes.
Biittany Fulton testified she and Martinez had been to Elliott’s home before the robbeiy and had informed tire others that Elliott kept large amounts of cash in his home. Fulton testified she drove Gleason, Thompson, Galindo, and Martinez to Elliott’s home in her car. Fulton and Martinez went inside, intending that one of them would distract Elliott while tire other took his money. That plan did not work, so Gleason and Galindo went inside to get the money. Like Thompson, Fulton testified Thompson did not go inside but instead waited in Fulton’s car.
Galindo and Fulton both testified the group returned to Fulton’s house after the robbery and began arguing because Galindo, Gleason, and Thompson suspected Fulton and Martinez of taking Elliott’s money before the men went into Elliott’s house. Fulton testified Thompson ordered her and Martinez to disrobe to confirm they were not hiding any money. Galindo testified that in Gleason’s presence “Thompson told [Martinez, Fulton], and me that we better not say nothing, he knew where we lived, and stuff like that.” Fulton testified the group later went to Galindo’s house, where they discussed not talking to the police. According to Fulton, the next morning when the group saw a news report about the Elliott robbery, Gleason and Thompson both stated that “if somebody talked to the cops, somebody would disappear.”
A couple of days later, the group got back together. By then everyone in the group knew the police had interviewed Martinez and Fulton. Fulton testified that when the group asked Martinez what she told police, Martinez kept changing her story, causing the others to accuse her of lying. Martinez got upset and threatened to tell the police everything. According to Fulton, Thompson was not present at that time, but Gleason responded to Martinez’ threat by jumping up, yelling, and saying, “[I]f somebody tells the cops something, people are going to disappear.” Fulton testified she did not perceive this as a direct threat, but she later testified she was concerned for Martinez’ and her own safety because Gleason, Thompson, and Galindo all had threatened them.
Galindo testified that sometime after the robbery he, Gleason, and Thompson discussed killing Martinez and also killing Wornkey if he got in the way. According to Galindo, during that conversation Gleason said “let’s get rid of her” and ran his finger across his throat in a throat-slicing gesture. Galindo understood Gleason’s comment and gesture to indicate he intended to kill Martinez. Later, without Gleason, Galindo and Thompson discussed killing Martinez. Gal-indo said he and Thompson planned to go to Martinez’ house, choke Martinez, and shoot Wornkey. Galindo testified he had used cocaine the day he and Thompson planned to fell Martinez and Thompson refused to carry out any plans with Galindo until Gal-indo was sober. Galindo testified he did not want any part in killing Martinez or Wornkey but he was afraid to tell Gleason or Thompson that because he might become a target himself. Galindo testified he tried to avoid Gleason and Thompson after these conversations and, based on Galindo’s fear of Gleason and Thompson, Galindo and his girlfriend even moved to a different address.
Fulton testified Thompson angrily confronted her sometime after the robbery, believing that either she or Martinez had talked to police. According to Fulton, Thompson said “things are going to happen” and that when he found out which woman had talked, “that’s going to be the end of it.” Fulton testified she was afraid of Thompson and she understood that Thompson “was going to do something.”
Great Bend Police Officer Heather Smith testified she drove by Martinez’ house shortly after midnight on February 21, 2004. As she approached the house, which was on Laldn Street between Holland and Hubbard, Smith saw Wornkey’s Jeep parked in front of the house and noticed the Jeep’s headlights were on. Smith testified she was familiar with Martinez and Wornkey, Martinez’ house, and Wornkey’s Jeep because she had “taken calls” at Martinez’ house and had “talked to them” on prior occasions.
Smith also noticed a four-door passenger car approaching the stop sign at the intersection of Lakin and Hubbard. Smith drove through that intersection and past Wornkey’s Jeep, which was parked on the left side of Laldn. Smith testified she did not see anyone inside the Jeep or near Martinez’ house. Smith pulled over to the right side of Laldn, directly in front of Martinez’ house, and allowed the car to pass her so she could log the tag number. Smith testified she routinely logged tag numbers of vehicles while she was on patrol. Smith could not see the car’s driver, nor could she identify the car’s color, although she testified it might have been green or blue. Smith later ran the car’s tag number and learned it was registered to Thompson. According to Smith, Thompson’s car continued driving westbound on Laldn. -
After she wrote down Thompson’s tag number, Smith drove around the block in order to take another look at the Jeep. The headlights had turned off, but Smith still did not see anyone in or around the Jeep. Smith drove past the Jeep, made a U-tum, and pulled behind the Jeep before logging Wornkey’s tag number. As Smith drove away from Martinez’ house, she did not hear any gunshots.
Irma Rodriguez, Martinez’ neighbor, testified that sometime after midnight on February 21, 2004, she got up to go to the bath room and heard a noise “like something was hitting like metal on the trampoline that was beside the house.” Rodriguez also heard someone screaming, recognized Martinez’ voice, and went to her kitchen to look out the window. Rodriguez watched as two men pushed Martinez into a gray car before the car quickly drove away. Although Rodriguez was not wearing her glasses and could only see silhouettes, she recognized Martinez by her voice. After witnessing this event, Rodriguez went back to sleep.
Thompson’s ex-girlfriend, J’Anna Edwards, testified Thompson and Gleason left Lyons around 11:30 p.m. on February 20, 2004, and returned home about 2:30 the next morning. Later that morning, Edwards noticed several scratches on Thompson’s neck and arm. Edwards asked Thompson, and later Gleason, about the scratches. Both men instructed her not to ask about the injuries. The State admitted into evidence several booking photographs taken on February 22, 2004, showing scratches on Thompson’s arm, throat, and neck.
KBI Agent Steve Bundy testified he recovered trash bags containing Gleason’s and Thompson’s shoes and clothing from the salvage yard where Thompson said he had hidden the bags. Based on information from Thompson, investigators also recovered both murder weapons—the .22 caliber revolver and the 9-millimeter semiautomatic pistol. Thompson had given both guns to his younger brother, and the guns passed through several hands before officers recovered them. Bundy submitted the 9-millimeter pistol to the KBI for testing, but the State presented no fingerprint evidence.
KBI forensic scientist James Newman testified he found a Dollar General receipt in the backseat of Thompson’s car, found and tested at least three areas of blood from the backseat of Thompson’s car, and discovered a scrub brush in Thompson’s trunk. Newman tested several pieces of evidence against a known blood sample from Martinez and testified Martinez’ blood matched blood found in several locations: (1) the pavement and grass where Worn-key was shot; (2) on the backseat of Thompson’s car; (3) in a bullet hole in the ground at the Martinez crime scene; and (4) on Gleason’s and Thompson’s shoes. Additionally, a partial DNA profile taken from the scrub brush found in Thompson’s trunk was consistent with Martinez’ blood, but the profile was insufficient to make a positive match.
Terri Canterbury, manager of the Lyons Dollar General store, verified that the receipt found in Thompson’s car originated from the Lyons store and verified the purchase of two scrub brushes on the afternoon of February 21, 2004. Canterbury testified she recalled speaking to a KBI agent about the receipt and identifying the clerk who rang up the sale.
KBI firearm and tool mark examiner Amy Coody identified a bullet fragment recovered from Wornkey’s body as a .22 caliber bullet. Agent Latham testified that because revolvers do not eject spent shell casings, the absence of any spent shell casings at the Wornkey crime scene was consistent with Thompson’s statement that Gleason used a .22 caliber revolver to shoot Wornkey.
Latham also testified that officers discovered a live round of 9-millimeter ammunition at the Martinez crime scene, which was consistent with Thompson’s statement that his pistol jammed when he first tried to shoot Martinez. Latham explained that normally when a jammed pistol is cleared, a live round is ejected. Further, Coody identified a bullet recovered from a hole in the ground at the Martinez crime scene as having class characteristics similar to bullets she test-fired from Thompson’s 9-millimeter pistol. And Latham explained that the recoveiy of the bullet from a hole in the ground corroborated Thompson’s statement that he shot Martinez in the chest as she was lying on her back on the ground.
Martinez’ autopsy revealed a close-range gunshot wound to her chest, distant-range gunshot wounds to her right thigh and right calf, and a possible gunshot wound just above her right elbow. Wornkey’s autopsy revealed intermediate-range gunshot wounds to his head and left shoulder and two distant-range gunshot wounds to his upper right arm. Mary Dudley, the district coroner, performed autopsies on Martinez and Wornkey and testified the wound to Martinez’ right leg could have been caused by the same bullet that passed through Wornkey’s right arm.
Defense Case-in-Chief
Gleason presented testimony from several witnesses in his casein-chief. Optometrist David Cooper testified he examined Gleason in April 2005, more than 1 year after the double homicide. Cooper diagnosed Gleason as nearsighted in both eyes and testified Gleason had trouble seeing farther than 13 inches in front of him. On cross-examination, Cooper admitted he did not know the condition of Gleason’s eyes in Februaiy 2004, but he assumed his condition would have been the same. Cooper also testified that based on Gleason’s April 2005 diagnosis, Gleason likely could have seen the form of a person standing at least 4 feet away but could not have detected that person’s eye color or discerned words on that person’s clothing.
Sylvia Krause, a clerk from the Lyons Dollar General store, testified she spoke with a KBI agent in February 2004 regarding two men who purchased scrub brushes. According to Krause, one man was black and the other was “a taller skinny white man.” Krause testified Gleason looked “vaguely familiar” but she could not state whether she saw Gleason in the store on the day the scrub brushes were purchased.
KBI Special Agent Delbert Hawel testified he interviewed Canterbury and Krause several days after the double homicide. Canterbury told Hawel she worked on February 21, 2004, and recalled being approached by a white male who asked about scrub brushes. Krause told Hawel she remembered two men, one black and one white with light-colored hair, asking Canterbury about scrub brushes and purchasing scrub brushes at Krause’s register. Hawel testified he showed Krause a series of eight photographs, including photos of Gleason and Thompson, and Krause identified Thompson as the black male who purchased the scrub brashes.
Finally, Great Bend Police Officer William Widiger testified he interviewed Martinez’ neighbor, Irma Rodriguez, with an interpreter’s assistance. Rodriguez told Widiger she saw Wornkey and Martinez arguing on the evening of the double homicide and saw Wornkey bang a bat on a nearby trampoline. Rodriguez also saw Wornkey’s Jeep at Martinez’ house around midnight and could see Wornkey and Martinez sitting in the Jeep. Next, she saw a gray passenger car drive up, saw two men forcibly remove Martinez from the Jeep and put her in the car, and saw the two men go back to the Jeep and put their hands in the driver s window. The two men then got into the car and drove off.
The jury deliberated 2 hours and 12 minutes before finding Gleason guilty of capital murder under K.S.A. 21-3439(a)(6) for the murders of Wornkey and Martinez, premeditated first-degree murder for the toning of Wornkey, aggravated kidnapping of Martinez, aggravated robbery of Elliott, and criminal possession of a firearm.
Penalty Phase and Sentencing
In order to meet its burden to demonstrate the death penalty was warranted because aggravating circumstances were not outweighed by mitigating circumstances, the State alleged four aggravating circumstances: (1) Gleason had a prior felony conviction in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another, (2) Gleason knowingly or purposely tolled or created a great risk of death to more than one person, (3) Gleason committed the crime in order to avoid or prevent his lawful arrest or prosecution, and (4) Martinez was killed because she was a prospective witness against Gleason. See K.S.A. 21-4625 (listing aggravating circumstances).
The State presented evidence of Gleason’s prior felony conviction for attempted voluntary manslaughter. Agent Latham testified that less than 1 month before the double homicide that is the subject of this case, Gleason was released on parole from his sentence for that conviction. Further, Latham testified that at the time of Gleason’s trial in this case, the victim of Gleason’s prior crime still had a bullet in his chest, scars from three gunshot wounds, and a surgical scar from the removal of a bullet from his hip.
Latham also testified about the connection between the double homicide and tire Elliott robbeiy. Latham explained that police interviewed Martinez and Fulton about the Elliott robbery and Gleason knew about the interviews. Through his investigation, Latham learned Gleason had threatened others who participated in the robbeiy and suggested that anyone who talked to police would “disappear.” According to Latham, Martinez was a prospective witness against Gleason because of her involvement in the Elliott robbeiy.
Gleason asserted numerous mitigating circumstances including but not limited to: (1) He had an impaired capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law; (2) he was relatively young (age 24) at the time of the crime; (3) tire public would be adequately protected from him by a term of imprisonment; (4) he committed the underlying crimes with Thompson, who significantly participated and planned the crimes; (5) Thompson received a life sentence and would be eligible for parole in less than 23 years; (6) Gleason was deprived of contact with his mother in his youth' due to her incarceration; (7) he and both of his siblings were currently in jail or prison; (8) he was an obedient child and an excellent student when he lived with his great aunt; and (9) he is loved by his family. See K.S.A. 21-4626 (providing nonexclusive list of mitigating circumstances).
In support of mitigation, Gleason presented testimony from his mother, great aunt, two brothers, and his childhood pastor. Highly summarized, Gleason’s mother testified that while she was in prison on drug charges, Gleason lived with his great aunt from the time he was 4 or 5 years old until he was 12 or 13 years old. Gleason’s witnesses testified that during this time period Gleason was well-behaved and a good student. Gleason and his brothers, both of whom were incarcerated at the time of Gleason’s trial, essentially “ran wild” in their early teens after being reunited with their mother upon her release from prison. Gleason’s great aunt testified that Gleason was artistic and identified two exhibits as artwork Gleason created in his early 20’s.
Ultimately, the jury found the existence of .all four aggravating circumstances alleged by the State beyond a reasonable doubt, determined the aggravating circumstances were not outweighed by any mitigating circumstances, and unanimously agreed to sentence Gleason to death.
At sentencing, the district court accepted the jury’s guilt-phase and penalty-phase verdicts and imposed a sentence of death for the capital murder conviction. The court also imposed a consecutive controlling sentence of life without the possibility of parole for 50 years for the first-degree murder conviction, which included concurrent prison sentences of 586 months for the aggravated kidnapping conviction, 59 months for the aggravated robbery conviction, and 8 months for the firearm conviction. Finally, the court imposed periods of lifetime postrelease supervision for each non-captial conviction.
Because Gleason was sentenced to death, this court’s jurisdiction arises under K.S.A. 21-4627(a).
Challenges to the Capital Murder Conviction
We first consider Gleason’s challenges relating solely to his capital murder conviction. He claims (1) the district court lacked subject matter jurisdiction over the capital charge, (2) the State failed to prove every element of capital murder, (3) the district court failed to adequately instruct the jury on the law of aiding and abetting, and (4) the district court erred in refusing his request for an instruction on felony murder as a lesser included offense of capital murder. We reject each of these challenges.
The district court had subject matter jurisdiction over the capital murder charge.
Gleason claims the district court lacked subject matter jurisdiction over the capital murder charge because his actions in personally killing Womkey and aiding and abetting Thompson’s killing of Martinez do not constitute capital murder as defined in K.S.A. 21-3439(a)(6). This issue raises questions of jurisdiction and statutory interpretation, both of which are questions of law subject to de novo review. State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010).
District courts have subject matter jurisdiction to hear all felony and other criminal cases arising under Kansas statutes. K.S.A. 22-2601. Capital murder is a felony and, as charged in this case, is the “intentional and 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.” K.S.A. 21-3439(a)(6). Because it was undisputed that Thompson personally killed Martinez, the State relied on a theory of aiding and abetting as codified in K.S.A. 21-3205 to support its claim that Gleason was responsible for the intentional, premeditated killing of Martinez—the second murder necessary to support the capital murder charge against Gleason.
Gleason acknowledges that under the aiding and abetting statute “[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.” K.S.A. 21-3205(1). But he focuses on the phrase “to commit the crime,” arguing that “tire crime” at issue here is capital murder based on killing more than one person and “[n]either 21-3439(a)(6) nor 21-3205(1) contain language which would allow the State to hybridize two killings into one unit of prosecution for capital murder under 21-3439(a)(6) against an individual. . . who neither actually killed more than one person nor aided and abetted another’s act of killing more than one person.” Put more simply, Gleason argues that when the aiding and abetting statute is read in conjunction with the capital murder statute, it is clear that the capital murder statute applies only when the defendant either personally kills two people or aids and abets the killing of two people. Gleason argues his actions in killing Wornkey and aiding and abetting Martinez’ murder does not constitute capital murder as defined in K.S.A. 21-3439(a)(6).
But contrary to Gleason’s argument, nothing in the plain language of K.S.A. 21-3439 or K.S.A. 21-3205(1), or in our prior case-law, suggests a person must either personally kill more than one victim or aid and abet the killing of more than one victim to be charged with capital murder under K.S.A. 21-3439(a)(6). Further, “the crime” at issue for purposes of aiding and abetting liability in this case is not capital murder; rather, it is “the crime” of intentional, first-degree premeditated murder committed against Martinez by Thompson.
A defendant can be convicted of intentional, premeditated murder under a theory of aiding and abetting as long as the State proves die defendant shared the principal actor’s premeditated intent to murder the victim, knowingly associated widi the unlawful venture, and participated in such a way as to indicate he or she was facilitating the success of the venture. State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009); State v. Baker, 287 Kan. 345, 366, 197 P.3d 421 (2008); State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005); see also State v. Scott, 286 Kan. 54, 121, 183 P.3d 801 (2008) (“Even if a capital murder is predicated on a theory of aiding and abetting, we require that the defendant must intentionally aid or abet with the intent to promote or assist in the commission of the crime.”).
Accordingly, the State may rely on the theory of aiding and abetting to support one or more of the intentional, premeditated murders necessary to support a capital murder charge under K.S.A. 21-3439(a)(6) for the killing of multiple victims. The district court, therefore, had subject matter jurisdiction over the capital murder charge.
The State proved every element of capital murder.
Next, Gleason challenges the sufficiency of the evidence to support his capital murder conviction. To satisfy a criminal defendant’s right to due process under the Fourteenth Amendment to the United States Constitution, the State is required to prove “every fact necessary to constitute the crime” charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); see also State v. Switzer, 244 Kan. 449, 450, 769 P.2d 645 (1989).
“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 heyond a reasonable doubt. [Citations omitted.] The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Raskie, 293 Kan. 906, 919-20, 269 P.3d 1268 (2012).
Here, die State was required to prove beyond a reasonable doubt that (1) Gleason killed Womkey and Martinez, (2) the killings were intentional and premeditated, and (3) the killings were part of the same act or transaction or two or more connected transactions. See K.S.A. 21-3439(a)(6); Scott, 286 Kan. at 63 (discussing elements of capital murder). Gleason claims only that the State failed to prove the third element.
This element “requires that the multiple killings be related to one another in some way, that they occur ‘as a part of the same act or transaction,’ or ‘in two or more acts . . . connected together or constituting parts of a common scheme or course of conduct.’ ” State v. Harris, 284 Kan. 560, 572, 162 P.3d 28 (2007) (quoting K.S.A. 21-3439[a][6]). Although Gleason’s argument as to this issue is murky, he seems to suggest that there is no evidence the murders are related because there is no evidence he and Thompson talked about killing Wornkey or that Thompson knew Gleason intended to kill Wornkey, and no evidence he and Thompson talked about killing Martinez on the way to Great Bend or that Gleason knew Thompson intended to shoot Martinez.
But this argument ignores our standard of review, which requires us to view the evidence in the light most favorable to the State. Here, the State presented evidence that Gleason and Thompson armed themselves and drove to Great Bend to “bring some intimidation” to Martinez based on their mutual belief Martinez had talked to police about the Elliott robbery—a robbeiy in which Thompson and Gleason participated. Thompson parked across the street from Martinez’ house; and when Martinez and Wornkey arrived home, Thompson watched as Gleason approached Wornlcey’s Jeep and shot and killed Wornkey, wounding Martinez. Gleason and Thompson then kidnapped Martinez and took her to a rural location where Thompson strangled, shot, and killed her. Viewing this evidence in the light most favorable to tire State, we are convinced a rational jury could have found beyond a reasonable doubt that the murders of Martinez and Wornkey were sufficiently related to support the capital murder charge.
The district court adequately instructed the jury on the law of aiding and abetting.
Next, Gleason argues the aiding and abetting instruction, when considered in conjunction with the elements instructions on the capital murder charge and lesser included crimes, failed “to ade quately convey to the jury that, in order to convict [him] as an accomplice to tire crime of capital murder, it must find beyond a reasonable doubt that [he] himself had a specific, premeditated intent to kill” Martinez.
Standard of Review
Because Gleason objected to this jury instruction on different grounds at trial, we will consider this asserted error as raised for the first time on appeal. See State v. Ellmaker, 289 Kan. 1132, 1138-39, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). We review instruction errors raised for the first time on appeal for clear error, even in capital cases. See K.S.A. 22-3414(3); State v. Williams, 295 Kan. 506, 515, 286 P.3d 195 (2012); State v. Robinson, 293 Kan. 1002, 1036, 270 P.3d 1183 (2012) (applying dear-error rule to unpreserved guilt-phase instruction error in capital case); State v. Kleypas, 272 Kan. 894, 939-40, 941-42, 40 P.3d 139 (2001) (same), 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), rev’d on other grounds by Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006).
Applying Williams’ framework, we first determine whether the instruction was erroneous. If we find error, we then review the entire record de novo to determine whether reversal is required. Reversal is required only if we are firmly convinced the jury would have reached a different verdict absent the instruction error. Gleason bears the burden of establishing clear error under K.S.A. 22-3414(3). See Williams, 295 Kan. at 515-16.
Analysis
At the time Gleason committed the underlying offenses in this case, the aiding and abetting statute provided in relevant part:
“(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.
“(2) A person liable 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.” K.S.A. 21-3205.
Here, in Instruction No. 9 the district court instructed the jury on a modified form of PIK Crim. 3d 54.05:
“A person wlio, either before or during its commission, intentionally aids, abets, advises, hires, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for tire crime committed regardless of the extent of the defendant’s participation, if any, in the actual commission of the crime.
“Mere association widr the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider and abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”
Gleason acknowledges that the instruction’s first paragraph mimics the first paragraph of PIK Crim. 3d 54.05 and is consistent with K.S.A. 21-3205(1). But he argues this language was inadequate to inform the jury that a “ ‘person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim,’ ” as stated in State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005).
Gleason’s argument as to this issue is foreclosed by our recent decision in State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014). There, we rejected a similar challenge to the aiding and abetting instruction by the defendant in a first-degree premeditated murder case and reaffirmed that PIK Crim. 3d 54.05 accurately expresses the law on aiding and abetting when read in conjunction with the elements instruction for first-degree premeditated murder. 299 Kan. at 135-36.
As in Betancourt, the aiding and abetting instruction given here, when read in conjunction with the element instructions, accurately advised the juiy as to the law on aiding and abetting. In fact, the instructions given here arguably directed the jury more clearly than did the instructions at issue in Betancourt. Significantly, the Be-tancourt jury instruction included only the language of the first paragraph of what was Instruction No. 9 in this case. But here tire jury was further instructed: “To be guilty of aiding and abetting in the commission of a crime the defendant must willfully and know ingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”
This language draws directly from our prior caselaw explaining the law on aiding and abetting. See Betancourt, 299 Kan. at 134 (citing cases); see also Rosemond v. United States, 572 U.S. _, 134 S. Ct. 1240, 1248, 188 L. Ed. 2d 248 (2014) (discussing Judge Learned Hand’s “canonical formulation” of intent required to prove aiding and abetting: “To aid and abet a crime, a defendant must not just ‘in some sort associate himself with the venture,’ but also ‘participate in it as in something that he wishes to bring about’ and ‘seek by his action to make it succeed.’ ” [quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S. Ct. 766, 93 L. Ed. 919 (1949)]).
Thus, Instruction No. 9 fully informed the jury on the law of aiding and abetting. Further, when Instruction No. 9 is considered in conjunction with other instructions, the court fully informed the juiy that in order to find the defendant guilty of capital murder, it must first find that Gleason premeditated and intended both murders. See State v. Llamas, 298 Kan. 246, 261, 311 P.3d 399 (2013) (“When we review claimed instructional error, ‘we examine the instructions as a whole, rather than isolate any one instruction.’ ” [quoting Ellmaker, 289 Kan. at 1139-40]).
For instance, Instruction No. 10 informed the jury as to the elements of capital murder:
“To establish this charge, each of the following claims must be proved:
“1. That Sidney Gleason intentionally killed. Darren R. Wornkey and Mikiala ‘Mikki’ Martinez;
“2. That such killings were done with premeditation;
“3. That the premeditated and intentional killings of Darren R. Wornkey and Mikiala ‘Mikkf Martinez were part of the same act or transaction and/or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct; [and]
“4. That this act occurred on or about the 21st day of Februaiy, 2004, in Barton County, Kansas.”
Additionally, the trial court instructed the jury on the lesser included offenses of first-degree and second-degree murder. Both these instructions advised the jury it must find “Gleason intentionally killed” Martinez. Further, the first-degree murder instruction informed the jury that to convict Gleason of first-degree murder it must find “such killing was done with premeditation.”
In conclusion, whether standing alone or read in conjunction with the elements instructions, the aiding and abetting instruction given in this case correctly stated the law on aiding and abetting. Further, the instructions as a whole sufficiently conveyed to the jury that in order to find Gleason guilty of capital murder, the jury had to find Gleason premeditated and intended both Womkey’s and Martinez’ murders.
The district court did not err in denying Gleasons request for an instruction on felony murder as a lesser included offense of capital murder.
Gleason requested an instruction on felony murder as a lesser included offense of capital murder, arguing there was some evidence to support the instruction under K.S.A. 21-3107(2)(a). The district court denied his request, and on appeal Gleason challenges that denial, arguing the instruction was both factually and legally appropriate.
Standard of Review
Because Gleason requested a felony-murder instruction, we apply an unlimited review to determine whether the instruction would have been legally appropriate. If so, we next consider whether the evidence, when viewed in the light most favorable to the requesting party, was sufficient to support the instruction. Finally, if the district court erroneously refused to give the instruction, we determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
A felony-murder instruction would not have been legally appropriate because felony murder is not a lesser included offense of capital murder.
A trial court must give a lesser included offense instruction when “ ‘there is some evidence which would reasonably justify a conviction of some lesser included crime’ ” as defined in K.S.A. 21-3107(2). K.S.A. 22-3414(3); Plummer, 295 Kan. at 161.
At tire time of oral argument in this case, our caselaw supported Gleason’s position that a felony-murder instruction would have been legally appropriate. See State v. Cheever, 295 Kan. 229, 259, 284 P.3d 1007 (2012) (holding, as a matter of first impression, that “felony murder is a lesser included crime of capital murder” under K.S.A. 2011 Supp. 21-5109[b][l] because felony murder is a lesser degree of homicide tiran capital murder), reversed in part on other grounds by Kansas v. Cheever, 134 S. Ct. 596 (2013).
But while Gleason’s appeal was pending, tire legislature amended K.S.A. 2012 Supp. 21-5402 to explicitly provide that K.S.A. 2013 Supp. 21-5109 (defining lesser included crimes) is not applicable to felony murder and felony murder is not a lesser included offense of capital murder. K.S.A. 2013 Supp. 21-5402(d). Additionally, the legislature declared the 2013 amendments to K.S.A. 2012 Supp. 21-5402 “establish a procedural rule for tire conduct of criminal prosecutions and shall be construed and applied retroactively to all cases currently pending.” K.S.A. 2013 Supp. 21-5402(e).
Given the significance of these legislative amendments to Gleason’s alleged instruction error, we granted the State’s unopposed motion to file a supplemental brief addressing the amendments’ applicability to this case. In its supplemental brief, the State argues the 2013 amendments to K.S.A. 2012 Supp. 21-5402 foreclose Gleason’s argument since the amendments apply retroactively to cases pending on appeal and exclude felony murder as a lesser included offense of capital murder. Gleason, on the other hand, argues the statute as amended is unconstitutional because it violates capital murder defendants’ rights to due process as interpreted in Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980), and because retroactive application of tire statute in his case violates the constitutional prohibition against ex post facto laws.
Generally, statutes operate prospectively unless clear legislative language indicates otherwise. State v. Wells, 297 Kan. 741, 761, 305 P.3d 568 (2013) (citing State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 [2001]). Here, tire legislature clearly expressed its intent to retroactively apply K.S.A. 2013 Supp. 21-5402. Nevertheless, we must consider Gleason’s argument that the statute, as amended, is unconstitutional and that its retroactive application would violate the prohibition against ex post facto laws. See State v. Todd, 299 Kan. 263, 323 P.3d 829, 839 (2014) (noting legislative authority to declare statute retroactive is not unlimited because “neither the statute itself nor its retroactive application may offend the federal or state Constitutions”); see also State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004) (noting ex post facto limitations on retroactive legislation even when legislative intent is clear).
The 2013 amendment excluding felony murder as a lesser included offense of capital murder does not violate capital defendants’ due process rights.
Relying on Beck, Gleason contends a defendant facing a death sentence is constitutionally entitled to a lesser included offense instruction on felony murder as an alternative to capital murder when tire evidence supports such a verdict. Further, he argues this application of Beck renders K.S.A. 2013 Supp. 21-5402 unconstitutional. But Gleason misstates and misapplies Beck’s holding.
In Beck, the United States Supreme Court held that imposition of the death penalty violated the defendant’s due process rights when “ ‘the jury was not permitted to consider a verdict of guilt of a lesser included noncapital offense, and when the evidence would have supported such a verdict.’ ” 447 U.S. at 627. But the constitutional violation in Beck arose from unique provisions of Alabama law which prohibited giving any lesser included offense instructions in capital cases and required a jury-to impose tire death penalty upon conviction of a capital offense. Thus, at the time of Beck’s conviction, Alabama law gave capital juries two options: (1) find die defendant guilty of a capital offense and impose die death penalty, or (2) find the defendant not guilty. 447 U.S. at 628-29. In concluding the death penalty could not be imposed under these circumstances, the Beck Court reasoned:
“[Wjlien the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.” 447 U.S. at 637.
The Supreme Court subsequently clarified in Hopkins v. Reeves, 524 U.S. 88, 96, 118 S. Ct. 1895, 141 L. Ed. 2d 76, reh. denied 524 U.S. 968 (1998), diat it had premised its finding of a due process violation in Beck on Alabama’s preclusion of all lesser included offense instructions in capital cases even though such instructions generally were given in noncapital cases. The Court reasoned: “Alabama thus erected an ‘artificial barrier that restricted its juries to a choice between conviction for a capital offense and acquittal.” 524 U.S. at 96.
But the Kansas Legislature’s exclusion of felony murder as a lesser included offense of capital murder did not generate the same “all-or-nothing” situation for Kansas juries deciding whether to impose the death penalty. Unlike the Alabama law at issue in Beck, K.S.A. 2013 Supp. 21-5402(d) does not prohibit a trial court from giving other lesser included offense instructions in capital murder cases. For example, the trial court here instructed the juiy it could find Gleason guilty of (1) capital murder for killing Womkey and Martinez, (2) first-degree premeditated murder for killing Martinez, (3) second-degree intentional murder for killing Martinez, or (4) not guilty. Even under K.S.A. 2013 Supp. 21-5402(d), these same lesser included offense instructions would be legally appropriate in a capital murder case.
Our understanding of Beck is buttressed by Schad v. Arizona, 501 U.S. 624, 645-48, 111 S. Ct. 2491, 115 L. Ed. 2d 555, reh. denied 501 U.S. 1277 (1991). There, the Court emphasized that because the defendant’s jury was not faced with an “all-or-nothing choice between the offense of conviction (capital murder) and innocence,” the “central concern of Beck” was not implicated. 501 U.S. at 647; see also Spaziano v. Florida, 468 U.S. 447, 455, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (“The goal of the Beck rule, in other words, is to eliminate the distortion of the factfinding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence.”).
The Schad Court concluded the trial court’s refusal to instruct the jury on every lesser included noncapital offense supported by the evidence did not violate the defendant’s due process rights, reasoning, in part, that
“the fact that the jurys ‘third option’ was second-degree murder rather than robbery does not diminish the reliability of the jury’s capital murder verdict. To accept the contention advanced by petitioner and the dissent, we would have to assume that a jury unconvinced that petitioner was guilty of either capital or second-degree murder, but loath to acquit him completely (because it was convinced he was guilty of robbery), might choose capital murder rather than second-degree murder as its means of keeping him off the streets. Because we can see no basis to assume such irrationality, we are satisfied that the second-degree murder instruction in this case sufficed to ensure the verdict’s reliability.” 501 U.S. at 647-48.
Similarly, we will not assume here that the jury, unconvinced of Gleason’s guilt of capital murder, first-degree premeditated murder, or second-degree intentional murder “but loath to acquit him completely” (because the jury was convinced that he was guilty of felony murder), might have chosen the capital offense as its means of holding Gleason accountable for Martinez’ murder.
We therefore reject Gleason’s due process challenge to K.S.A. 2013 Supp. 21-5402 and conclude the district court did not err in denying Gleason’s request for a felony-murder instruction.
Applying the amended statute to Gleason does not violate the prohibition against ex post facto laws.
Alternatively, Gleason asserts that retroactive application of K.S.A. 2013 Supp. 21-5402 violates the prohibition against ex post facto laws. See U.S. Const. art. 1, § 9 (“No Bill of Attainder or ex post facto Law shall be passed.”); U.S. Const. art. 1, § 10 (“No State shall . . . pass any ... ex post facto Law.”).
We have held that a law is ex post facto if two critical elements are present: (1) The law is retrospective, and (2) the law disadvan tages the offender affected by it. State v. Jaben, 294 Kan. 607, 612, 277 P.3d 417 (2012); State v. Cook, 286 Kan. 766, 770, 187 P.3d 1283 (2008) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981]). Gleason claims both elements are present here.
Given the Kansas Legislature’s clearly expressed intent for retroactive application of K.S.A. 2013 Supp. 21-5402, we need only consider the second element of the test stated above—i.e., whether the law “disadvantages” Gleason. See K.S.A. 2013 Supp. 21-5402(e) (“The amendments to this section by this act. . . shall be construed and applied retroactively to all cases currently pending.”).
We recently clarified that “retroactively applied legislation that simply 'alters the situation of a party to his disadvantage’ does not, in and of itself, violate the Ex Post Facto Clause. The disadvantage, to be unconstitutional under tire Clause, must fall within one of tire categories recognized in Beazell [v. Ohio, 269 U.S. 167, 46 S. Ct. 68, 70 L. Ed. 216 (1925)].” Todd, 299 Kan. at 277. As identified in Beazell, those categories are:
“ ‘ “[A]ny statute which punishes as a ciime an act previously committed, which was innocent when done, which maizes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.” ’ ” Todd, 299 Kan. at 277 (quoting Beazell, 269 U.S. at 169-70).
As the State points out, the amendments in K.S.A. 2013 Supp. 21-5402 excluding felony murder as a lesser included offense of capital murder do not fit within any of these categories. Consequently, retroactive application of K.S.A. 2013 Supp. 21-5402 does not violate the Ex Post Facto Clause. See Todd, 299 Kan. at 277 (concluding K.S.A. 2013 Supp. 21-5402[d] could be applied retroactively without violating Ex Post Facto Clause).
K.S.A. 2013 Supp. 21-5402(d), by its express language, applies retroactively, foreclosing Gleason’s claim diat the district court erred in refusing Gleason’s request for a felony-murder instruction. Further, the 2013 amendments do not violate Gleason’s constitutional right to due process, as interpreted in Beck, nor does ret- reactive application violate the prohibition against ex post facto laws.
Challenges to All Convictions
We have rejected Gleason’s claims that errors specific to his capital murder conviction require reversal of that conviction. Next, we address Gleason’s claims that all of his convictions must be reversed because (1) the district court violated his constitutional right to confront the witnesses against him by declaring Thompson unavailable and admitting Thompson’s preliminary hearing testimony, (2) the district court failed to grant a mistrial after Thompson refused to testify, (3) the prosecutor committed misconduct during closing argument, (4) the district court erred in instructing the jury that “[ajnother trial would be a burden on both sides,” and (5) the cumulative effect of guilt-phase errors deprived him of a fair trial.
Issues Related to Thompsons Refusal to Testify at Trial
Gleason asserts the district court violated his confrontation rights under the Sixth Amendment to the United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and statutory rules of evidence by declaring Thompson an unavailable witness and admitting Thompson’s preliminary hearing testimony after Thompson refused to testify at trial. Further, Gleason argues the district court abused its discretion in failing to grant a mistrial after Thompson refused to testify. We separately address Gleason’s challenges to the district court’s confrontation and mistrial rulings after setting forth the following facts that are relevant to both challenges.
Additional facts regarding Thompson s refusal to testify
During opening statements, counsel for both parties indicated Thompson would testify. At one point, the prosecutor discussed Thompson’s plea deal and emphasized that Thompson was required to and would “appear on that witness stand. It’s part of his deal. He’s required to testify truthfully, and so you’ll get to look at him just like you look at [Gleason].”
When called as the State’s last witness, Thompson answered the prosecutor’s preliminaiy questions about his age, his current im prisonment, his address at the time of the double homicide, and his relationship to Gleason. But when asked to identify Gleason in court, Thompson refused to do so and refused to further testify, stating he had previously “came forward with the truth.” At the prosecutor’s request, the district court ordered Thompson to answer questions, but Thompson maintained his refusal. The prosecutor then asked tire court to direct Thompson to “answer on pain of contempt,” and defense counsel requested a bench conference.
The court conducted a brief, off-the-record discussion before recessing for lunch and contacting Thompson’s defense attorney, Val Wachtel. At the court’s request, Wachtel drove from Wichita to the proceedings in Great Bend. After Wachtel arrived, the court resumed the proceedings outside the presence of the jury. Wachtel advised tire court that he had spoken with Thompson about the potential consequences of his refusal to testify in light of his plea agreement. Specifically, Wachtel stated:
“I have told him that he exposes himself to at least the possibility that the State of Kansas may choose to attempt to set aside his plea, set aside his plea agreement, set aside his plea, and set aside his sentence and proceed against him as a capital homicide case.”
Wachtel further informed the court that Thompson did “not want to be involved in assisting either side in telling their version of the truth” and that Thompson fully understood that his refusal to testify could result in a contempt finding. The following discussion then occurred:
“[Prosecutor]: Your honor, I ask that the Court order die witness to testify.
“THE COURT: Mr. Thompson, you were here this morning, and you have heard the statement that Mr. Wachtel has made to the Court, and we are ready to proceed this afternoon with'—with your questioning, and since you refused to answer this morning, I am going to order you to answer the questions that will be posed by the State and by defense to you. Do you understand that?
“THE WITNESS [Thompson]: Yes, ma’am.
“THE COURT: Okay, and will you do that?
“THE WITNESS: I decline.
“THE COURT: Okay.
“[Prosecutor]: Your Honor, at this time, the Court can, if it chooses to do so, hold Mr. Thompson in direct contempt.
“THE COURT: I am going to hold him in contempt, but counsel knows that holding Mr. Thompson in contempt is meaningless at this point. He is serving a life sentence. My—obviously, the penalty that I can impose is nonexistent as far as he’s concerned. So I am going to hold him in contempt, and you may proceed.
“[Prosecutor]: I think you ought to excuse the witness, Judge, and he can depart the court.
“[Defense counsel]: Your Honor, I think you have held him in contempt, and I understand, for the Court’s saying given a life sentence, but there are some impacts. It’s going to—potentially, it’s going to affect the parole board when he sees the parole board in 25 years. I’m sorry. Granted, that’s away down the road. We think he’s done that. I think you have to give him time to purge himself of the contempt before we can proceed.”
In response to defense counsel’s request that Thompson be given an opportunity to purge himself of the contempt, the prosecutor argued the State had sufficiently established Thompson’s refusal to testify, particularly considering Wachtel’s consultation with Thompson and Thompson’s continued refusal to answer questions. Nevertheless, defense counsel suggested Thompson be permitted to reconsider his position overnight. The court declined, noting Thompson was already in jail so putting him in jail with an opportunity to purge the contempt was “meaningless.”
Next, the court granted the prosecutor’s request to declare Thompson unavailable. Defense counsel responded by immediately moving for a mistrial, noting that the court had admitted several of Thompson’s hearsay statements under K.S.A. 60-460(a) based on the assumption Thompson would be available for cross-examination. Defense counsel argued Thompson’s refusal to testify and the court’s finding that Thompson was unavailable rendered these hearsay statements inadmissible. Later, defense counsel narrowed the basis of the mistrial motion to the hearsay statements attributable to Thompson admitted through Agent Latham’s testimony.
Defense counsel further objected to what he characterized as a “separate issue”— the State’s anticipated admission of Thompson’s preliminary hearing testimony—and argued it would not adequately protect Gleason’s confrontation rights. The prosecutor maintained that only one issue was before the court and argued Gleason’s cross-examination of Thompson at the preliminary hearing adequately protected Gleason’s confrontation rights.
After hearing oral arguments from both parties, the district court released the jury early. The next morning, the court immediately advised the jury that the court would need time to address a legal issue and that because it was Good Friday, the courthouse would close at noon. The court then released tire jury until tire following Monday. On Saturday, the State filed a written response to Gleason’s oral motion for mistrial.
On Monday, the district court advised tire parties outside the presence of the jury that over tire weekend it had received and considered the State’s written motion. The court then heard additional oral arguments from both parties before denying Gleason’s motion for mistrial. Ultimately, the court concluded the admission of Thompson’s hearsay statements through Agent Latham did not violate Gleason’s confrontation rights because, based on the court’s own review of tire preliminary hearing transcript, Gleason had cross-examined Thompson about the substance of those statements at tire preliminary hearing. The court cited Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), for support. Further, the court ruled it would admit Thompson’s preliminary hearing testimony, reasoning Crawford was satisfied because Thompson was unavailable as a witness and Gleason had extensively cross-examined Thompson at the preliminary hearing. Finally, over Gleason’s objection, tire district court instructed the jury as requested by the State:
“You’re about to hear the reading of testimony of a witness taken under oath at another time and place. It is to be weighed by the same standards as other testimony. So even though Mr. Thompson now does not testify, you are to pay close attention to the testimony that you hear from the reading of that testimony. Okay, and tiren consider it just the same as if Mr. Thompson was sitting here and testifying in person.”
The State then proceeded to read Thompson’s entire preliminary hearing testimony into the record, with tire prosecutor reading his questions and Agent Latham reading Thompson’s responses. After Latham left the witness stand defense counsel clarified: “So the record is clear, Judge, there’s no opportunity for me to ask any questions.” The court responded: “Not at this time, no.” After presenting Thompson’s preliminary hearing testimony, the State rested.
The district court did not violate Gleason’s confrontation rights by declaring Thompson unavailable and admitting his preliminary hearing testimony.
Gleason first challenges the district court’s admission of Thompson’s preliminary hearing testimony, arguing the district court erred in finding Thompson unavailable and in finding Thompson’s prior cross-examination adequate to protect Gleason’s confrontation rights.
To protect a defendant’s constitutional confrontation rights, testimonial hearsay is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68; see also State v. Robinson, 293 Kan. 1002, 1024, 270 P.3d 1183 (2012) (discussing Crawford).
Initially, the State concedes Gleason correctly characterizes Thompson’s preliminary hearing testimony as testimonial. See Crawford, 541 U.S. at 68 (acknowledging that testimonial hearsay includes prior testimony given by witness at preliminary hearing). Further, the parties agree that the admission of testimonial hearsay implicates the Confrontation Clause of the Sixth Amendment to the United States Constitution. U.S. Const, amend. VI (“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”). See Kan. Const. Bill of Rights, § 10 (providing criminal defendants with right to “meet the witness face to face”).
Gleason contends, however, that Thompson’s preliminary hearing testimony was inadmissible because the State failed to establish Thompson’s unavailability or that Gleason had an opportunity to adequately cross-examine Thompson, as required by Crawford.
a. The district court did not err in finding Thompson unavailable.
Gleason argues the district court erred as a matter of law in declaring Thompson unavailable because the court ignored controlling precedent providing that a witness who is present but refuses to testify is not unavailable. Alternatively, Gleason argues the district court erred in declaring Thompson unavailable, because the prosecutor did not act with reasonable diligence to procure Thompson’s testimony at trial.
The State contends Gleason’s adamant refusal to testify rendered him unavailable as that term has been interpreted by this court in the context of the Sixth Amendment right to confrontation and in the context of K.S.A. 60-459(g):
“ ‘Unavailable as a witness’ includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.”
Gleason argues the controlling precedent at the time of his trial in 2006 was State v. Johnson-Howell, 255 Kan. 928, 881 P.2d 1288 (1994), overruled by State v. Jefferson, 287 Kan. 28, 194 P.3d 557 (2008). In Johnson-Howell, the defendant claimed the district court’s admission of hearsay statements of a codefendant who refused to testify violated her confrontation rights. The court analyzed the claim under both Kansas hearsay statutes and the Sixth Amendment and held that a nontestifying codefendant who was present at trial but refused to testify without asserting any valid privilege was not “unavailable” as defined in K.S.A. 60-459(g). 255 Kan. at 934-44. The court further concluded for Sixth Amendment purposes “[a] witness’ refusal to testify in a criminal case is not a recognized ground for unavailability of the witness in this state.” 255 Kan. at 940.
Significantly, Gleason fails to point out that this court clarified in Jefferson that Johnson-Howell was wrong on both points. In Jef ferson, this court interpreted the list of situations in K.S.A. 60-459(g) as exemplary rather than exclusive and held that a witness who refuses to testify after being ordered to do so by the court is an unavailable witness under K.S.A. 60-459(g). Jefferson, 287 Kan. at 37-38. In doing so, the Jefferson court found several flaws in Johnson-Howell’s analysis of whether the witness was unavailable under K.S.A. 60-459(g).
Further, the Jefferson court noted that although Johnson-Howell’ s conclusions regarding unavailability of a witness conflicted with this court’s prior decision in State v. Terry, 202 Kan. 599, 451 P.2d 211 (1969), Johnson-Howell did not overrule Terry. Jefferson, 287 Kan. at 36-37. The Jefferson court further noted its interpretation of K.S.A. 60-459(g) was consistent with Terry and with federal rules of evidence. Jefferson, 287 Kan. at 36-38; see Fed. R. Evid. 804(a)(2) (defining unavailable witness, in part, as declarant who “refuses to testify about the subject matter despite a court order to do so”). In Jefferson, this court ultimately affirmed the district court’s decisions to declare tire witness unavailable when that witness refused to testify at trial and to admit that witness’ preliminary hearing testimony under K.S.A. 60-460(c)(2)(B). 287 Kan. at 39.
Both parties proffer various arguments as to whether Jefferson, which was decided 2 years after the trial in this case and addressed the parameters of K.S.A. 60-459(g) rather than the Sixth Amendment right of confrontation, applies here. But we find it unnecessary to analyze these arguments because Terry, decided before the trial in this case, was not overruled by Johnson-Howell and is directly on point.
In Terry, this court recognized that “[t]he basic and primary reason underlying the constitutional ‘confrontation’ rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” 202 Kan. at 601 (citing Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 [1965]). The court further recognized an exception to the confrontation requirement “where a witness is unavailable and has given testimony at a previous judicial proceeding against the same defendant which was subject to cross-examination by that defendant.” Terry, 202 Kan. at 601. The court explained that, in that situation, the prior testimony of such witness may be introduced at the subsequent proceeding because “the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.” 202 Kan. at 602.
Applying these principles, the Terry court determined two witnesses, who had been granted immunity and who had testified and been subjected to extensive cross-examination at the defendant’s preliminary hearing but who “flatly refused to testify” at tire defendant’s trial, were “just as ‘unavailable’ as though [their] physical presence could not have been procured.” 202 Kan. at 603. Thus, the court concluded the defendant’s confrontation rights were not violated by the admission of the witnesses’ prior testimony. 202 Kan. at 603.
Temj controls this issue and remained good law at the time of Gleason’s trial. And, although Terry was decided several decades befoi'e Crawford, Terry’s analysis is consistent with Crawford and with decisions from other jurisdictions. See Annot., 92 A.L.R.3d 1138 (gathering cases regarding unavailability of witness who is present in court but refuses to testify without claiming a valid privilege). Finally, while the district court did not have Jefferson’s guidance at Gleason’s trial, it appears the district court did consider Terry. Accordingly, we affirm tire district court’s determination that Thompson’s refusal to testify rendered him unavailable.
b. The prosecutor made reasonable efforts to procure Thompson’s live testimony.
Alternatively, Gleason argues the district court erred in declaring Thompson unavailable because, under the facts of this case, the prosecutor failed to make reasonable efforts to compel Thompson to testify at trial. Specifically, Gleason contends the State should have sought a continuance to give Thompson time to change his mind about testifying as well as to consider possible contempt sanctions or withdrawal of Thompson’s plea contract. Gleason also suggests the court should have imposed contempt sanctions against Thompson.
The State, on the other hand, contends it exhausted all possible means of compelling Thompson to testify. Relying on Jefferson and Terry, the State argues the prosecutor and court took reasonable measures to compel Thompson to testify under these circumstances, including holding him in contempt after giving him the opportunity to consult with counsel who verified that Thompson fully understood all the potential repercussions of refusing to testify.
Although the prosecutor here obtained Thompson’s presence at trial, Gleason relies on a line of cases concerning “absent witnesses,” including State v. Washington, 206 Kan. 336, 338, 479 P.2d 833 (1971), where this court held:
“Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a ‘good faith effort’ to obtain the witness’s presence at trial [citation omitted]. Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial [citations omitted].”
See also State v. Flournoy, 272 Kan. 784, 799-802, 36 P.3d 273 (2001) (applying the “good-faith” standard when State failed to produce witness at trial); State v. Zamora, 263 Kan. 340, 342-48, 949 P.2d 621 (1997) (same). Ultimately, whether a prosecutor has made sufficient effort to secure the testimony of an unavailable witness is a question of reasonableness. Hardy v. Cross, 565 U.S. _, 132 S. Ct. 490, 494, 181 L. Ed. 2d 468 (2011) (citing California v. Green, 399 U.S. 149, 189 n.22, 90 S. Ct. 1930, 26 L. Ed. 2d 489 [1970] [Harlan, J., concurring]).
Notably, in Jefferson and Terry, the court did not discuss tire “good-faith” standard in considering the witness’ unavailability. In those cases, like this case, the State produced the defendant but the defendant refused to testify. But some courts have applied the good-faith standard to similar facts. See, e.g., Lowery v. Anderson, 225 F.3d 833, 839-40 (7th Cir. 2000) (discussing unavailability of physically present witness who refused to testify and noting reasonableness of prosecutorial efforts required consideration of whether prosecution “made a good-faith effort to obtain the witness’ testimony, in person, before the trier of fact”), superseded by statute on other grounds Corcoran v. Buss, 551 F.3d 703 (7th Cir. 2008), cert. granted, judgment vacated, and remanded by Corcoran v. Levenhagen, 558 U.S. 1, 130 S. Ct. 8, 175 L. Ed. 2d 1 (2009); see also 2 McCormick on Evidence § 253, p. 168 n.11 (6th ed. 2006) (“When the testimony is being offered against the criminal defendant, the Confrontation Clause requires good faith efforts to obtain the testimony of a physically available but unwilling person.”).
The facts of this case are quite similar to those in Lowery. There, Loweiy and his accomplice, Bennett, robbed and lulled an elderly couple. Bennett testified at Lowery’s first trial, pursuant to a plea agreement and in exchange for a guaranteed prison sentence of 40 years. Loweiy was convicted of both murders but successfully appealed, obtaining a new trial.
Before Lowery’s second trial, Bennett informed the State he would refuse to testify unless the State agreed to reduce his sentence. The State refused and transported Bennett from state prison so he could testify at the second trial. Outside the presence of the jury, Bennett refused to testify after being ordered to do so by the court, and the court held him in contempt. The next day, the court repeated the same procedure with the same result, and the court ultimately found Bennett to be an unavailable witness and admitted his testimony from the first trial. Loweiy claimed this practice violated his confrontation rights, arguing “Bennett was not truly ‘unavailable’ because the State failed to exhaust other means which might have induced Bennett to testify.” 225 F.3d at 839. The Lowery panel disagreed, stating:
“Although the record is silent as to why the prosecution chose not to threaten Bennett with further prosecution or charge him with a crime, there is no requirement to do so and such decisions are well within the prosecution’s discretion. [Citations omitted.] We decline to impose a rule imposing the court’s will upon the prosecution and we fear that to do so would violate the separation of powers.” 225 F.3d at 840.
The Lowery panel ultimately concluded the prosecutor acted reasonably in attempting to procure Bennett’s presence and testimony at trial. 225 F.3d at 840.
Similarly, in this case, Thompson testified against Gleason at the preliminary hearing, and in exchange the State agreed not to seek a capital sentence. At trial, Thompson took the witness stand and answered preliminary questions. When Thompson refused to continue testifying, the court ordered him to answer questions. Based on his continued refusal, the court recessed and contacted Thompson’s attorney, Val Wachtel. The court remained in recess while Wachtel drove from Wichita to Great Bend and consulted with Thompson. When the proceedings resumed, Wachtel advised the court that Thompson refused to testify with full knowledge of the potential consequences, including the possibility the State might seek to revoke Thompson’s plea agreement, move to set aside his plea and sentence, and pursue a capital charge and seek the death penalty against Thompson. The court confirmed Wachtel’s representations with Thompson, again ordered him to testify, and held him in contempt when he refused. However, the court declined to impose contempt sanctions, reasoning that it would be “meaningless” to place Thompson in jail for any length of time given Thompson was already serving a life sentence.
Notably, the prosecutor’s and die court’s efforts in this case to compel Thompson’s testimony exceed the actions taken to compel recalcitrant witnesses’ testimony in other Kansas cases. For instance in Jefferson and Terry, the prosecutor’s actions were found to be reasonable although there is no evidence that the unwilling witnesses in those cases consulted with counsel or that counsel verified after consultation that the witnesses refused to speak despite knowing the consequences of that refusal. See Jefferson, 287 Kan. at 30 (prosecutor subpoenaed incarcerated witness to testify at trial and witness appeared but refused to testify after consultation with counsel; court held witness in contempt and sentenced him to 6 months in jail); Terry, 202 Kan. at 603 (prosecutor secured presence of two incarcerated witnesses at trial and both refused to testify despite being granted immunity); see also, e.g., Gregory v. Shelby County, Tenn., 220 F.3d 433, 449 (6th Cir. 2000) (trial court failed to order unwilling witness to testify before declaring witness unavailable, but court found failure was harmless because judicial pressure to testify would have been unavailing when witness al ready serving life sentence), abrogated in parí on other grounds by Buckhannon Board & Care Home v. W. Va. Dept., of H.H.R. 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d. 855 (2001); 2 McCormick on Evidence § 253, p. 168 n.11 (6th ed. 2006) (“Reasonable efforts obviously include a judicial order to testify and holding the recalcitrant witness in contempt. Whether tire Confrontation Clause requires more is unclear.”)'
Finally, we reject Gleason’s assertion that, at the very least, the court should have given Thompson an overnight opportunity to further consider his refusal to testify. In light of the lengthy term of Thompson’s incarceration, his consultation with his counsel, and his adamant refusal to testify despite knowing tire potential implications and repercussions of that refusal, including a possible death sentence, we can discern no reason to require the. prosecutor to seek an overnight delay.
Considering die totality of these circumstances, we conclude Thompson’s adamant refusal to testify rendered him unavailable under Terry and K.S.A. 60-459(g) and the prosecutor’s efforts to compel Thompson’s live testimony at trial were reasonable under the circumstances. Consequently, we affirm the district court’s determination that Thompson was unavailable.
c. Gleason had an adequate prior opporíunity to cross-examine Thompson.
Gleason also suggests the district court erroneously concluded he had an adequate prior opportunity to cross-examine Thompson.
While “Crawford requires an opportunity for cross-examination before hearsay can be admitted, it provides no guidance for how much cross-examination is required to afford the defendant an adequate opportunity.” State v. Noah, 284 Kan. 608, 612-13, 162 P.3d 799 (2007). Each case involving the admission of an unavailable witness’ preliminary hearing testimony must be considered on its own particular facts. 284 Kan. at 615, 617.
It is undisputed that defense counsel extensively cross-examined Thompson at the preliminary hearing. But Gleason argues his prior cross-examination of Thompson was inadequate to protect his confrontation rights because: (1) Other states have recognized that preliminary hearings are too dissimilar from trials to permit adequate cross-examination, (2) substantial investigation occurred between the preliminary hearing and trial and new information was discovered, and (3) a defendant does not have the same motive to explore witness credibility at a preliminary hearing. As the State points out, we have previously rejected these same arguments as a basis for finding a full cross-examination conducted at a preliminary hearing is inadequate to satisfy Crawford. See State v. Stano, 284 Kan. 126, 142-45, 159 P.3d 931 (2007). Gleason fails to distinguish Stano on its facts or to offer any persuasive arguments as to why we should reconsider our conclusions from Stano.
Alternatively, Gleason compares the facts of this case to those in Noah and argues “[bjecause the defense was not able to cross-examine Thompson about his in-court statements, Mr. Gleason did not have a full and fair opportunity to cross-examine the witness” and all of his prior statements, including his preliminary hearing testimony, should have been excluded. But Gleason’s attempt to equate the facts of this case with those in Noah is unavailing.
In Noah, a child victim testified on direct examination at the preliminary hearing and answered several questions on cross-examination before becoming too emotional to continue. Consequently, defense counsel could not complete his cross-examination of the child victim at the preliminary hearing. The district court declared the child victim unavailable at trial and allowed the State to introduce the victim’s prior statements to her mother, brother, and social worker. This court concluded in Noah that the defendant had been denied an adequate opportunity for cross-examination due to the victim’s inability to continue testifying at the preliminary hearing and thus her prior testimonial hearsay statements to others were inadmissible under Crawford. We further concluded, under the particular facts of that case, that the erroneous admission of the victim’s hearsay statements was not harmless. Noah, 284 Kan. at 617-19.
Here, unlike in Noah, Gleason does not suggest he was unable to fully cross-examine Thompson at the preliminary hearing. And the facts demonstrate he was able to do so as Thompson testified on direct examination at the preliminary hearing and defense coun sel extensively and fully cross-examined him. Further, the trial court admitted Thompson’s preliminary hearing testimony in its entirety at trial.
Instead, Gleason contends the court limited his ability to cross-examine Thompson at trial when Thompson refused to respond to further questions after answering several preliminary questions on direct examination regarding his age, the reason for his imprisonment, his relationship to Gleason, and the fact he had entered into a plea agreement; and advised the court he previously “came forward with the truth.”
Gleason argues that because he was unable to cross-examine Thompson about his in-court comments, all of his prior statements, including tiróse subjected to extensive cross-examination at the preliminary hearing, should have been excluded. We disagree. Simply stated, Gleason’s inability to question Thompson about his in-court comments did not render his cross-examination of Thompson at the preliminary hearing inadequate under Crawford. And, as the State points out, the questions Thompson answered before he refused to continue testifying—questions not subject to cross-examination—did not lend themselves to cross-examination. Instead, his comments consisted of background information and nonres-ponsive remarks, rather than testimony about the underlying facts of the crimes charged.
As such, the facts of this case are clearly distinguishable from the facts in Noah, and we conclude Gleason had an adequate prior opportunity to cross-examine Thompson as required by Crawford.
Conclusion
Under the facts of this case, the district court correctly concluded Thompson’s refusal to testify at trial rendered him unavailable. Further, we find the prosecutor’s efforts to procure Thompson’s testimony at trial were reasonable under the circumstances and Gleason had a prior adequate opportunity to cross-examine Thompson at the preliminary hearing. Accordingly, we hold tire district court’s actions did not violate Gleason’s confrontation rights, and we affirm the district court’s decision to admit Thompson’s preliminary hearing testimony.
The district court did not abuse its discretion in failing to declare a mistrial.
In a separate but related argument, Gleason claims the district court abused its discretion in denying his motion for a mistrial. Gleason initially sought a mistrial because “several hearsay statements of Mr. Thompson elicited by numerous witnesses” had been introduced under the hearsay exception of K.S.A. 60-460(a) based on the assumption that Thompson would testify at trial and be available for cross-examination. See K.S.A. 60-460(a) (rendering prior hearsay statements admissible if declarant “is present at the hearing and available for cross-examination with respect to the statement and its subject matter”). Before the district court ruled on the motion, Gleason narrowed tire basis of his motion to the hearsay statements attributable to Thompson that came in through Agent Latham’s testimony. The district court ultimately concluded the admission of those particular hearsay statements did not violate Gleason’s confrontation rights, because Gleason had cross-examined Thompson at the preliminary hearing about the underlying facts of the double homicide.
A trial court may declare a mistrial if there is prejudicial conduct, either inside or outside the courtroom, that makes it impossible for the trial to proceed without injustice to the defendant or the prosecution. K.S.A. 22-3423(1). In considering a motion for mistrial, tire trial court must first determine if there was some fundamental failure of the proceeding. If so, the court must then determine whether it is possible to continue the proceeding without injustice. The second determination requires the court to “decide if the prejudicial conduct’s damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. [Citations omitted.]” State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012). We review both determinations made by the district court for an abuse of discretion. Harris, 293 Kan. at 814-15 (citing State v. Ward, 292 Kan. 541, 551, 256 P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]).
Based on the evolution of Gleason’s arguments, we find lengthy analysis of this issue unnecessary. As noted, Gleason narrowed the basis for his mistrial motion to Thompson’s postarrest interview statements to Agent Latham—statements Latham then testified about at trial. Even though Gleason challenged the admissibility of these statements under K.S.A. 60-460(a), Thompson’s statements to Agent Latham, like his preliminary hearing testimony, are testimonial hearsay statements and their admissibility is governed by Crawford rather than statutory hearsay exceptions. See State v. Bennington, 293 Kan. 503, 508-16, 264 P.3d 440 (2011) (clarifying that statements made during police interrogations are testimonial when primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecutions); State v. Robinson, 293 Kan. 1002, 1024, 270 P.3d 1183 (2012) (noting Crawford governs admissibility of testimonial hearsay while statutory hearsay exceptions govern admissibility of nontestimonial hearsay).
Because we have already concluded Thompson was unavailable and Gleason had an adequate opportunity to cross-examine Thompson at the preliminary hearing, and because the substance of Thompson’s statements to Latham were consistent with the substance of Thompson’s preliminary hearing testimony, we affirm the district court’s denial of Gleason’s motion for a mistrial based on the admission of these statements.
The prosecutor did not commit misconduct during closing argument.
Next, Gleason argues the prosecutor misstated the law or made improper comments on Thompson’s credibility during closing argument. The State contends the challenged statements were proper when considered in context.
Standard of Review
When considering a claim of prosecutorial misconduct, we must determine whether the prosecutor’s statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. If the statements were improper, we must then determine whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. McCullough, 293 Kan. 970, 985, 270 P.3d 1142 (2012).
Analysis
Gleason takes issue with the prosecutor’s statements that Thompson “ ‘refused to testify against his cousin, but he did tell you he told the truth before. That’s why you heard the testimony. That’s why it got read to you.’ ” Gleason contends the prosecutor misstated the law “by implying to the jury that the [district] court had made a finding that Thompson’s testimony was truthful” and by suggesting the district court considered the truthfulness of Thompson’s preliminary hearing testimony before admitting that testimony. Alternatively, Gleason asserts the prosecutor improperly commented on Thompson’s credibility.
It is improper for a prosecutor to misstate the law. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012) (“When a prosecutor deliberately misstates the controlling law, he or she steps outside the considerable latitude given prosecutors.”). And it is further improper for a prosecutor to offer his or her personal opinion regarding the credibility of a witness. See State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013) (noting that a prosecutor’s personal opinion of a witness’ credibility constitutes unsworn, unchecked testimony and impinges upon jury’s duty to determine truthfulness of witness); State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012) (noting general rule that prosecutor may not offer jury his or her personal opinion as to credibility of witness); see also Kansas Rules of Professional Conduct (KRPC) 3.4(e) (2013 Kan. Ct. R. Annot. 601) (“A lawyer shall not ... in trial . . . state a personal opinion as to . . . the credibility of a witness.”).
But, considering the prosecutor’s statements in context, we conclude neither of these improprieties occurred here. See Burnett, 293 Kan. at 851 (noting allegedly improper comments must be considered in context of entire closing argument and in conjunction with jury instructions); State v. Naputi, 293 Kan. 55, 59, 260 P.3d 86 (2011) (recognizing that “reading comments in isolation can frequently be misleading as to the message that the prosecutor was conveying to the jury”).
In the first portion of his closing argument, the prosecutor emphasized that Thompson’s testimony was corroborated by physical evidence and the testimony of other witnesses. The prosecutor reminded the jury that Thompson’s testimony did not come in as tire State expected it would and stated:
“Damien Thompson did take the stand in this case. You saw him sit there. You saw how he acted. You saw—heard what he said, and when he refused to say any more, you were read his transcript. Ask you to remember one thing when you’re thinking of Damien Thompson. What did he say when he was here? One of the things he said was that he had already told tire truth. When did he tell that truth? Well, he had already had a previous statement, not just a statement, a direct examination, a cross-examination conducted by [defense counsel], a redirect examination. You heard it when it was read to you. It took more than an hour to read all drat to you. You get to weigh that evidence. You get to weigh tiróse statements.”
Conversely, in his closing argument, defense counsel emphasized Thompson’s lack of credibility. He began by stating, “The tricky thing in this case it seems to me is are you going to believe Damien Thompson or are you not?” He pointed out inconsistencies between Thompson’s testimony and the testimony of other witnesses and within Thompson’s own testimony, argued that Thompson was the driving force behind the crimes, and reminded the jury that Thompson had made a deal with the State to avoid the death penalty.
In rebuttal, the prosecutor stated:
“We spent a lot of time in that first part of closing statement talking about corroboration. Corroboration of [Thompson’s] testimony from other witnesses, corroboration of evidence that had been seized in this case, evidence seized before Damien Thompson admits his guilt, evidence seized after Damien Thompson admits his guilt, evidence that corroborates the story. Damien Thompson said a lot of tilings in his testimony. He took that stand. Stopped talking, didn’t he? In this courtroom when asked to testify against his cousin, he made a lot of statements. You saw his attitude. You saw his demeanor. You saw how he was acting. You saw how he acted towards his cousin, towards the prosecutor, towards the judge. Refused to testify against his cousin, but he did tell you he told the truth before. That’s why you heard the testimony. That’s why it got read to you.” (Emphasis added.)
As the State admits, when read in isolation the challenged statements, italicized above, appear problematic and could be inter preted to imply that the jury heard Thompson’s prior testimony because Thompson told the jury he told the truth at the preliminary hearing. But when considered in context of the entire closing argument, the statements are not improper. Specifically, the prosecutor reminded the jury that it heard Thompson’s refusal to testify, that other testimony corroborated Thompson’s preliminary hearing testimony, and.that it was the jury’s duty to judge the credibility of the witnesses, including Thompson. Under diese circumstances, we conclude the prosecutor’s statements are more apdy characterized as an inartful attempt to explain to die jurors why they heard Thompson’s prior testimony and to remind them that they were to treat Thompson’s testimony the same as they would any odier testimony and judge his credibility accordingly.
Because die statements were not improper, we reject Gleason’s prosecutorial misconduct claim.
The district court did not commit clear error in instructing the jury 7another trial would be a burden on both sides.”
Citing State v. Salts, 288 Kan. 263, 200 P.3d 464 (2009), Gleason claims the district court committed reversible error by giving an Allen-type instruction that included the phrase “another trial would be a burden on both sides.” See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).
Standard of Review
Because Gleason objected on different grounds at the district court level, we will consider tiiis alleged instruction error under the clear-error rule of K.S.A. 22-3414(3). See Robinson, 293 Kan. at 1036. First, we determine whether the instruction was erroneous. This is a legal question subject to de novo review. If we find error, reversal is required only if we are firmly convinced that tire jury would have reached a different verdict had the instruction error not occurred. We have unlimited review over the reversibility determination and must examine the record as a whole. Gleason bears the burden of establishing clear error. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 193 (2012).
Analysis and Conclusion
We previously have disapproved of the challenged language and easily conclude the instruction was erroneous. See Salts, 288 Kan. at 266-67. But, we reject Gleason’s contention that this error constitutes “reversible error in a capital case because of the greater burdens associated with capital trials” and because the “ ‘burden’ language is more easily seen as an appeal to the financial interests of taxpayers when the case they are to consider is a capital case.”
As the State points out, we also previously have rejected a reversibility argument very similar to Gleason’s argument here. See Burnett, 293 Kan. 840. In Burnett, the defendant argued the Salts error in his capital murder case required reversal because die jury was “ ‘likely to be veiy mindful of the increased litigation costs that go along with capital trials,’ ” and that die erroneous instruction “ ‘surely invoked concerns that a failure to reach a verdict would waste taxpayer money.’ ” 293 Kan. at 855. We disagreed, noting the absence of any evidence in the record indicating the jury’s verdict was the product of the jury’s concerns about wasting taxpayer money. 293 Kan. at 855.
Similarly, the record here lacks any evidence suggesting the financial implications of another trial troubled Gleason’s jury. Instead, the record suggests Thompson’s testimony primarily concerned the jury. Further, nothing in the record suggests the jury was deadlocked, near deadlock, or otherwise pressured to reach its verdicts. See State v. Warrior, 294 Kan. 484, 515, 277 P.3d 1111 (2012) (finding Salts error did not require reversal and noting absence of any indication in record that error affected jury deliberations).
In light of our review of the entire trial record, we are firmly convinced that the jury would not have reached different verdicts on any of the charges had the Salts error not occurred.
The district court abused its discretion by allowing State witnesses to testify in prison clothing, but the error was harmless.
Although not raised by Gleason, we can discern from the record that Thompson and Galindo, each of whom acted as Gleason’s accomplices for one or more of the crimes charged, testified as witnesses for the State while clothed in orange prison jumpsuits. In State v. Ward, 292 Kan. at 576, we held that
“a trial court almost always abuses its discretion . . . when it allows a defendant, witness, or nonwitness to be brought before a jury in jail clothing without an articulated justification explaining why it is necessary for the person to wear jail clothing and does not consider giving an admonition or instruction to the jury that it should not consider die clothing or tire person s incarceration.”
The record contains no articulation by the district court of a reason for either witness to appear in prison clothing. Nor does the record indicate that the trial court admonished the jury to disregard the witnesses’ prison clothing. Admittedly, at the time of Gleason’s trial, the district court lacked the benefit of Ward, but we nevertheless conclude, as we did in Ward, that foe district court abused its discretion by allowing Thompson and Galindo to testify in prison clothing.
However, our independent review of the record also convinces us that this error was harmless. See 292 Kan. at 578 (stating harmless eri'or standard). Significantly, Ward recognized that foe primary potential impact or prejudice from witnesses associated with foe defendant testifying in jail clothing arises from its impact on foe credibility of those witnesses. 292 Kan. at 573. But under the facts of this case, it is equally likely that Gleason benefitted from having Thompson and Galindo testify, while clothed in orange prison jumpsuits, that they were serving time for the crimes they committed with Gleason. Notably, much of Gleason’s defense strategy consisted of minimizing his own involvement in foe crimes and suggesting his accomplices were more culpable, all foe while challenging their credibility, particularly Thompson’s. Consequently, we are satisfied beyond a reasonable doubt that there is no reasonable possibility this unassigned error contributed to foe verdict obtained.
The district court erred when it failed to respond to a jury question in open court and in Gleasons presence, hut the error was harmless.
Another error not raised by Gleason but apparent from the record relates to the district court’s response to a jury question. After beginning deliberations, the jury sent a written note to the court requesting a copy of Thompson’s preliminary hearing testimony. In chambers, the court, the prosecutor, and defense counsel discussed the appropriate response. Defense counsel noted for the record that Gleason was not present at this discussion but that he had advised Gleason of the juiy’s question and the court’s likely response. Ultimately, the prosecutor and defense counsel agreed to the following response: “[N]o, you can’t have a copy but you can request a readback if you desire.” The district court then provided this response to the jury in a written message rather than in open court.
The district court’s procedure for responding to the jury question did not conform to K.S.A. 22-3420(3), which requires any question from the jury concerning the law or evidence pertaining to the case to be answered in open court in the defendant’s presence unless the defendant is voluntarily absent. State v. Bowen, 299 Kan. 339, 323 P.3d 853, 864-65 (2014); State v. King, 297 Kan. 955, 967, 305 P.3d 641 (2013).
The court’s failure to comply with the statutory procedure set out in K.S.A. 22-3420(3) constitutes both a violation of Gleason’s statutory right to be present under K.S.A. 22-3405(1) and the constitutional right to be present under the Sixth Amendment to the United States Constitution. See King, 297 Kan. at 967-68 (citing State v. Herbel, 296 Kan. 1101, 1109, 299 P.3d 292 [2013]). Because this error implicates Gleason’s constitutional rights, we must determine whether the error was harmless under the federal constitutional harmless error standard. King, 297 Kan. at 968-69. Under this standard, reversal is required unless we can say “ ‘beyond a reasonable doubt that the error . . . did not affect the outcome of the trial in light of the entire record, i.e., [that] there is no reasonable possibility the error contributed to the verdict.’ ” 297 Kan. at 968 (quoting Ward, 292 Kan. at 541, Syl. ¶ 6).
Four factors are relevant to this analysis:
“(1) the strength of the prosecution’s case; (2) whether the defendant lodged an objection; (3) whether the communication concerned some critical aspect of the trial or was instead an innocuous and insignificant matter, as well as the manner in which the communication was conveyed to the jury; and (4) the ability of a posttrial remedy to mitigate the constitutional error.” Bowen, 299 Kan. at 357.
Here, only the third factor favors Gleason. Unquestionably, the jury’s request for Thompson’s preliminary hearing testimony concerned a critical aspect of the trial. Nevertheless, consideration of the first, second, and fourth factors lead us to characterize the error here as harmless. The prosecution’s case against Gleason was strong, and physical evidence and testimony from other witnesses corroborated Thompson’s testimony. Further, Gleason neither objected to the court’s deficient procedure below nor raised this issue on appeal. Finally, Gleason and his defense counsel both were aware of the content of and procedure used to deliver the response and chose not to pursue any posttrial remedies for this constitutional error.
Under these circumstances and in light of the trial record as a whole, we have no hesitancy in finding no reasonable possibility this unassigned error affected the outcome of the trial.
The cumulative effect of guilt-phase errors does not require reversal.
Finally, Gleason contends that even if we find each asserted guilt-phase error to be individually harmless, the cumulative effect of those errors deprived him of a fair trial. Gleason specifically asserts “the instructional errors, the multitude of errors in the handling of Damien Thompson’s refusal to testify, and the prosecu-torial misconduct rendered the verdict[s] from this trial too infirm to be reliable.”
“ ‘In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless. [Citation omitted.] In other words, was the defendant’s right to a fair trial violated because the combined errors affected the outcome of the trial?’ State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).” Warrior, 294 Kan. at 517.
Warrior further explains that in assessing whether cumulative errors are harmless, we examine the record as a whole and consider “how the trial court 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 the strength of the evidence. [Citation omitted.]” Warrior, 294 Kan. at 517.
Here, we have found three errors, a nonreversible Salts error and two harmless errors based on issues raised sua sponte by this court under K.S.A. 2013 Supp. 21-6619(b) (authorizing court to notice unasserted errors apparent from record), namely, witnesses testifying in jail clothing and a juiy question being answered in writing. Notably, the trial court had no opportunity to deal with any of these errors as they arose or to attempt remediation because Gleason did not raise the errors below. Further, these three procedural errors are unrelated, and the evidence against Gleason was strong. Consequently, we are convinced there is no reasonable possibility that these errors, even in the aggregate, affected the outcome of the trial, and reversal is not required.
Guilt Phase—Conclusion
Because we have found no guilt-phase errors requiring reversal, we affirm Gleason’s convictions of capital murder, first-degree murder, aggravated kidnapping, aggravated robbery, and criminal possession of a firearm. However, because we are affirming all of Gleason’s convictions, we must also address Gleason’s claim that his first-degree murder conviction is multiplicitous with his capital murder conviction.
Multiplicity
The juiy convicted Gleason of capital murder for killing Worn-key and Martinez and of first-degree murder for killing Wornkey. The State correctly concedes Gleason’s first-degree murder conviction is multiplicitous with his capital conviction. See Trotter v. State, 288 Kan. 112, 123-24, 200 P.3d 1236 (2009) (citing State v. Martis, 277 Kan. 267, 83 P.3d 1216 [2004]) (first-degree premeditated murder is lesser included offense of capital murder as defined in K.S.A. 21-3439[a][6]); State v. Scott, 286 Kan. 54, 64-68, 183 P.3d 801 (2008) (when two convictions arise out of double homicide, one for capital murder as defined in K.S.A. 21- 3439[a][6], and one for first-degree, premeditated murder of one of the capital murder victims, convictions are multiplicitous).
Consequently, we reverse Gleason’s first-degree murder conviction and vacate his corresponding hard 50 sentence, including the unauthorized period of postrelease supervision imposed as part of that sentence. See State v. Summers, 293 Kan. 819, 832, 272 P.3d 1 (2012) (noting that sentencing court has no authority to order any term of postrelease supervision when defendant receives off-grid indeterminate life sentence). The district court’s error in imposing a period of lifetime postrelease supervision for the off-grid crime appears to have influenced its decision to impose the same unauthorized period of postrelease supervision for each on-grid crime. Accordingly, we also vacate the periods of lifetime post-release supervision for each of Gleason’s on-grid convictions and remand to the district court for resentencing consistent with the provisions of K.S.A. 22-3717.
Challenges to Imposition of the Death Penalty
Next, we turn to Gleason’s challenges to the penalty-phase portion of his bifurcated trial and the imposition of the death penalty. Gleason challenges the constitutionality of the death penalty under § 9 of the Kansas Constitution Bill of Rights, contends the aiding and abetting statute does not permit imposition of the death penalty, alleges several errors regarding the penalty-phase instructions and verdict forms, and claims some of the aggravating circumstances supporting his death sentence are legally invalid or not supported by sufficient evidence.
Because we conclude the district court failed to properly instruct the jury on its consideration of mitigating circumstances and this error requires us to vacate Gleason’s death sentence and remand for resentencing, we address some but not all of Gleason’s alleged penalty-phase errors and death penalty challenges.
Challenges to the Validity and Sufficiency of Aggravating Circumstances
First, we briefly address Gleason’s claims that the jury considered one or more invalid aggravating circumstances in determining whether to impose his death sentence. In Kansas, the death penalty may be imposed only if the jury unanimously finds beyond a reasonable doubt that (1) the aggravating circumstances alleged by the State exist and (2) the existence of such aggravating circumstances is not outweighed by any mitigating circumstances found to exist. K.S.A. 21-4624(e).
Here, the State alleged the existence of four statutory aggravating circumstances, and the jury found all four: (1) Gleason was previously convicted of a felony in which he inflicted great bodily harm, disfigurement, or death on another, (2) Gleason knowingly or purposely lulled or created a great risk of death to more than one person, (3) Gleason committed the crime in order to avoid or prevent his lawful arrest or prosecution, and (4) Martinez was killed because she was a prospective witness against Gleason. See K.S.A. 21-4625 (listing aggravating circumstances).
Gleason claims the latter three aggravating circumstances are invalid and argues the juiy s consideration of these invalid aggravating circumstances infected the weighing process, requiring reversal of his death sentence. Because Gleason’s arguments challenge the constitutional validity of these aggravating circumstances and may require statutoiy interpretation, our review is unlimited. See State v. Sales, 290 Kan. 130, 134, 224 P.3d 546 (2010).
The risk of death aggravator is not unconstitutionally duplicative.
Gleason argues the aggravating circumstance that he “knowingly or purposely lulled or created a great risk of death to more than one person” (risk of death aggravator) is unconstitutionally dupli-cative because the State relied on the same evidence to support both an element, of the capital murder charge and the aggravator. In support of his argument, Gleason cites Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), and Stringer v. Black, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992). Gleason acknowledges that this court in Scott, 286 Kan. 54, resolved this issue adversely to his position, but he raises the issue to preserve it for federal review. Further, he urges us to reconsider Scott.
In Scott, this court reviewed Lowenfield, Stringer, and cases from other jurisdictions before concluding “the use of the same factor as both a narrowing qualification for the death penalty at the guilt phase and an aggravating factor at the penalty phase” is constitutionally permissible and conforms to legislative intent. Scott, 286 Kan. at 108-10. Gleason presents no arguments that persuade us to reconsider Scott, and we conclude the risk of death aggravator is not unconstitutionally duplicative.
The avoid arrest and victim witness aggravators are not unconstitutionally duplicative.
Gleason also argues two of tire aggravating circumstances—(1) that he “committed the crime in order to avoid or prevent a lawful arrest or prosecution” (avoid arrest aggravator), and (2) that Martinez was killed because she was a prospective witness against Gleason (victim witness aggravator)—are unconstitutionally duplicative because “[i]f [Martinez] was killed because she was a prospective witness in a prosecution for the Elliott robbery, her killing was necessarily committed in order to avoid arrest or prosecution for that robbery.” In support, Gleason primarily cites United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996), and Cooks v. Ward, 165 F.3d 1283 (10th Cir. 1998).
In McCullah, the United States Court of Appeals for the Tenth Circuit noted the “double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” 76 F.3d at 1111. According to the McCullah panel, the double counting problem occurs when two aggravating circumstances substantially overlap each other. 76 F.3d at 1111. In Cooks, the Tenth Circuit clarified the applicable test and noted it is “not whether certain evidence is relevant to both aggravators, but rather, whether one aggravating circumstance ‘necessarily subsumes’ the other.” 165 F.3d at 1289.
The State suggests these Tenth Circuit cases are not persuasive in light of Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d 370 (1999). In Jones, decided after both McCullah and Cooks, four members of the United States Supreme Court questioned McCullah’s double counting theory and noted tire Court had “never before held that aggravating factors could be duplicative so as to render them constitutionally invalid.” Jones, 527 U.S. at 398. Writing the opinion for a plurality of the Court on this particular issue, Justice Thomas noted:
“What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. [Citation omitted.] Petitioner’s argument (and the reasoning of tire Fifth and Tenth Circuits) would have us reach a quite different proposition—that if two aggravating factors are ‘duplicative,’ then the weighing process necessarily is skewed, and die factors are therefore invalid.” Jones, 527 U.S. at 398.
Ultimately, four members of the Jones Court concluded “[e]ven accepting, for the sake of argument, petitioner s ‘double counting’ theory,” die aggravates at issue in tiiat case which asked the jury to consider evidence relevant to the victim’s personal characteristics, (1) from the perspective of how her death affected her family and (2) from the perspective of how those characteristics related to the victim’s vulnerability, were not duplicative. Jones, 527 U.S. at 398-99. Rather, the court stated:
“[A]t best, certain evidence was relevant to two different aggravating factors. Moreover, any risk tiiat die weighing process would be skewed was eliminated by die District Court’s instruction tiiat the jury ‘should not simply count the number of aggravating and mitigating factors and reach a decision based on which number is greater [but rather] should consider the weight and value of each factor.’ ” 527 U.S. at 399.
We conclude the avoid arrest and victim witness aggravators are not unconstitutionally duplicative because one factor does not necessarily subsume the other. To establish the avoid arrest aggravator, “the State must show that a motive—not the dominant or only motive—for the murder was to avoid prosecution.” State v. Kleypas, 272 Kan. 894, 1022, 40 P.3d 139 (2001) (citing State v. Spain, 263 Kan. 708, 719, 953 P.2d 1004 [1998]). Similarly, we conclude that to establish the victim witness aggravator the State must show the victim’s status as a current or prospective witness in a criminal proceeding was a motive—not the dominant or only motive—for the murder.
Here, as in Jones, certain evidence was relevant to two different aggravators but because one aggravator does not necessarily subsume the other, the aggravators were not unconstitutionally dupli-cative. Further, any risk of a skewed weighing process was eliminated because Gleason’s jury, like the jury in Jones, was instructed that “[i]n making tire determination whether aggravating circumstances exist that are not outweighed by any mitigating circumstances found to exist, you should keep in mind that your decision should not be determined by the number of aggravating or mitigating circumstances that are shown to exist.” See Jones, 527 U.S. at 399-400. Consequently, we reject Gleason’s challenge to the validity of these aggravators.
Sufficient evidence supports the aggravating factors found by the jury.
Gleason also challenges the sufficiency of the evidence to support three of the four aggravating circumstances found by the jury. And, in reviewing a death sentence we have an independent duty to consider die sufficiency of the evidence to support the juiy’s findings on aggravating circumstances. See K.S.A. 2013 Supp. 21-6619(c)(2) (providing this court “shall determine . . . whether the evidence supports the findings that an aggravating circumstance or circumstances existed”).
“In a capital case, the standard of review on appeal as to the sufficiency of the evidence regarding an aggravating circumstance is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, tire appellate court is convinced that a rational factfinder could have found the existence of the aggravating circumstance beyond a reasonable doubt.” Kleypas, 272 Kan. 894, Syl. ¶ 50.
Viewing the evidence in the light most favorable to the State, we conclude sufficient evidence supports all four aggravating circumstances found by the jury.
Regarding the avoid arrest and victim witness aggravators, the evidence established that Gleason, Thompson, Galindo, Fulton, and Martinez robbed Elliott on February 12, 2004. After the robbery, Gleason and Thompson, collectively and individually, threatened their accomplices to discourage them from talking to the po lice about the robbeiy. Later, Gleason and Thompson learned that Martinez and Fulton had talked to the police and, 9 days after the robbery, Gleason and Thompson killed Martinez and Wornkey. We are convinced that a rational factfinder could have found beyond a reasonable doubt both that Gleason killed Martinez to avoid arrest or prosecution for the Elliott robbery and that Martinez was killed because she was a prospective witness against Gleason regarding the Elliott robbeiy. Further, we note that because Martinez witnessed Wornkey s murder, it also would have been reasonable for the jury to conclude that Gleason killed Martinez to avoid arrest or prosecution for killing Wornkey and that Martinez was lulled because she was a prospective witness against Gleason regarding Wornkey s murder.
Gleason challenges the sufficiency of die evidence to support the risk of death aggravator by incorporating his previous argument regarding the State’s alleged failure to prove the murders of Worn-key and Martinez were committed as “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.” We rejected that argument in the guilt phase portion of this opinion because the State’s evidence clearly established the requisite connection between the two murders. This same evidence supports the jury’s finding that Gleason “knowingly or purposely killed . . . more than one person.” See K.S.A. 21-4625(2).
Finally, the evidence clearly supports that Gleason previously had been convicted of a felony in which he inflicted great bodily harm, disfigurement, dismemberment, or death on another. See K.S.A. 21-4625(1). Agent Latham testified Gleason was convicted of attempted voluntary manslaughter in 2001 and that at tire time of Gleason’s trial in this case, the victim of that crime still had a bullet lodged in his chest, had significant scars from three gunshot wounds, and had a surgical scar from the removal of a bullet from his hip.
Conclusion
We conclude the jury considered only valid aggravating circumstances in determining whether to impose Gleason’s death sen tence and sufficient evidence supports the jury’s findings as to all four aggravating circumstances. Thus, Gleason is not entitled to reversal of his death sentence based on his challenges to the validity or sufficiency of the aggravating circumstances.
Challenges to Penalty-Phase Instructions
Next, we address only one of Gleason several challenges to penalty-phase instructions because we conclude that one alleged instruction error—the district court’s failure to properly instruct the jury regarding its consideration of mitigating circumstances—requires that we vacate Gleason’s death sentence and remand for resentencing.
The district court committed reversible error when it failed to instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt.
Gleason claims the district court erred in failing to instruct the jury that mitigating circumstances need not be proven beyond a reasonable doubt. Further, he argues this error requires reversal because the instructions as a whole exacerbated the error and there is a reasonable likelihood the jurors were precluded from considering relevant mitigating evidence in violation of the Eighth and Fourteenth Amendments to the United States Constitution.
Standard of Review
“In considering a claim that a jury instruction in the penalty phase of a capital trial prevented the jury from giving proper consideration to mitigating evidence, our standard of review 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.’ Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d 316, 110 S. Ct. 1190 (1990).” Scott, 286 Kan. at 104-05.
Analysis
Under the Eighth Amendment, “a state capital sentencing system must: (1) rationally narrow tíre class of death-eligible defendants; and (2) permit a jury to render a reasoned, individualized sentencing determination based on a death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.” Kansas v. Marsh, 548 U.S. 163, 173-74, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). “The use of mitigation evidence is a product of the requirement of individualized sentencing,” and to satisfy that requirement the sentencing judge or jury in a capital case must be allowed to consider all relevant mitigating evidence. 548 U.S. at 174-75 (citing Graham v. Collins, 506 U.S. 461, 484-90, 113 S. Ct. 892, 122 L. Ed. 2d 260 [1993] [Thomas, J., concurring]); see also Smith v. Spisak, 558 U.S. 139, 130 S. Ct. 676, 681-82, 175 L. Ed. 2d 595 (2010) (sentencing judge or jury may not refuse to consider or be precluded from considering any relevant mitigating evidence).
Barriers to a capital sentenceds consideration of relevant mitigating evidence are impermissible regardless of whether the barriers are imposed by statute, judicial interpretation of a statute, jury instructions and verdict forms, or prosecutorial argument. See, e.g., Abdul-Kabir v. Quarterman, 550 U.S. 233, 264, 127 S. Ct. 1654, 167 L. Ed. 2d 585 (2007) (“Our cases following Lockett [v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978),] have made clear that when the jury is not permitted to give meaningful effect or a 'reasoned moral response’ to a defendant’s mitigating evidence—because it is forbidden from doing so by statute or a judicial interpretation of a statute—the sentencing process is fatally flawed.”); Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988) (“Under our decisions, it is not relevant whether the barrier to the sentencer’s consideration of all mitigating evidence is interposed by statute, ... by the sentencing court, ... or by an evidentiary ruling . . . .”).
This court previously has considered claims that penalty-phase jury instructions impermissibly precluded consideration of relevant mitigating evidence. In Kleypas, the defendant argued that a penalty-phase instruction prevented jurors from considering any mitigating circumstances not unanimously found to exist by the jury, in violation of Mills. Kleypas, 272 Kan. at 1075-76; see McKoy v. North Carolina, 494 U.S. 433, 435, 110 S. Ct. 1227, 108 L. Ed. 2d 369 (1990) (invalidating North Carolina statute that required jury unanimity as to existence of mitigating circumstances); Mills, 486 U.S. at 369-84 (concluding juiy instructions and verdict forms violated Eighth Amendment because jurors “may have thought they were precluded from considering any mitigating evidence unless all 12 jurors agreed on the existence of a particular such circumstance”).
The instruction at issue in Kleypas stated, in part: “ Tt is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment.’ ” 272 Kan. at 1077. The court concluded this instruction correctly stated the law and satisfied Mills and McKoy because it informed jurors they need not be unanimous as to the existence of mitigating circumstances. Kleypas, 272 Kan. at 1078-79. But the Kleypas court further stated:
“Whether this sentence goes far enough by itself can only be determined by examining the other instructions relating to consideration by the jury of the aggravating and mitigating facts and circumstances. But, any instruction dealing with the consideration of mitigating circumstances should state (1) they need to be proved only to the satisfaction of the individual juror in die juror’s sentencing decision and not beyond a reasonable doubt and (2) mitigating circumstances do not need to be found by all members of the jury in order to be considered in an individual juror’s sentencing decision.” 272 Kan. at 1078.
Following this court’s ruling in Kleypas, the PIK committee amended the PIK instruction on mitigating circumstances to reflect Kleypas’ second statement regarding jury unanimity. But inexplicably, the committee did not amend the instruction to include the first statement—that mitigating circumstances need only be proven to the satisfaction of the individual juror and not beyond a reasonable doubt. See PIK Crim. 3d 56.00-D (2001 Supp.).
Several years later in Scott, this court again considered whether capital penalty-phase jury instructions impermissibly precluded the jury from considering mitigating circumstances not unanimously agreed upon by the juiy. The court reiterated that Kleypas’ two statements should be included in any mitigating circumstance instruction and then found reversible error because the trial court failed to include the second statement relating to jury unanimity. Scott, 286 Kan. at 104-07.
In finding reversible error in the court’s failure to affirmatively inform jurors they need not unanimously agree on mitigating circumstances, the Scott court considered the instructions as a whole, noting:
“[T]he instructions repeatedly emphasize the need for unanimity as to any aggravating circumstance found to exist. Conversely, the trial court’s instructions do not inform the jury as to a contrary standard for determining mitigating circumstances. The juiy is left to speculate as to the correct standard. Under diese circumstances, we conclude diere is a substantial probability reasonable jurors could have believed unanimity was required to find mitigating circumstances. We hold failure of the trial court to provide the jury with a proper standard for determining mitigating circumstances constitutes reversible error. See Mills v. Maryland, 486 U.S. 367, 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988) (holding a death sentence should be vacated where there was a substantial probability reasonable jurors may have thought they could only consider diose mitigating circumstances unanimously found to exist).” State v. Scott, 286 Kan. 54, 107, 183 P.3d 801 (2008).
Notably, the current PIK instruction on mitigating circumstances, PIK Crim. 4th 54.050, incorporates both of Kleypas’ recommended statements and correctly instructs the jury that “[mjitigating circumstances need not be proved beyond a reasonable doubt.” But here, the trial court instructed the juiy regarding mitigating circumstances consistently with the PIK instruction in effect at the time of Gleason’s trial, PIK Crim. 3d 56.00-D (2001 Supp.), as follows:
“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.
“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.
“The determination of what are mitigating circumstances is for you as jurors to decide under the facts and circumstances of this case. Mitigating circumstances are to be determined by each individual juror when deciding whether the State has proved beyond a reasonable doubt that the death penalty should be imposed. The same mitigating circumstances do not need to be found by all members of the jury in order to be considered by an individual juror in arriving at his or her sentencing decision.
“[This part of the instruction listed the nine mitigating circumstances asserted by Gleason.]
“You may further consider as a mitigating circumstance any other aspect of the defendant’s character, background or record, and any other aspect of the offense which was presented in either the guilt or penalty phase which you find may serve as a basis for imposing a sentence less than death. Each of you must consider eveiy mitigating circumstance found to exist.”
As Gleason points out, despite this court’s repeated recognition of the required content of penalty-phase mitigating circumstances instructions, this instruction erroneously failed to inform the jury that mitigating circumstances “need to be proved only to the satisfaction of the individual juror in the juror’s sentencing decision and not beyond a reasonable doubt.” See Scott, 286 Kan. at 106-07; Kleypas, 272 Kan. at 1078.
Notably, Gleason’s argument rests on Kleypas’ first statement regarding the required content of mitigating instructions, while only the second Kleypas statement implicates die Mills/McKoy prohibition against a jury unanimity requirement as discussed in Kley-pas and Scott. But we find this to be a distinction witíiout a difference because both recommended statements from Kleypas implicate the broader Eightíi Amendment principle prohibiting barriers that preclude a sentencer’s consideration of all relevant mitigating evidence. See, e.g., Smith v. Spisak, 558 U.S. at 144 (sentencing judge or jury may not refuse to consider or he precluded from considering any relevant mitigating evidence).
We recognize that the United States Supreme Court has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances. See Walton v. Arizona, 497 U.S. 639, 649-51, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990) (explaining that Court’s death penalty decisions should not be interpreted to create any constitutional requirements as to how or whether capital jury should be instructed on burden of proof for mitigating circumstances), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). The Walton Court held: “So long as a State’s method of allocating the burdens of proof does not lessen the State’s burden to prove . . . aggravating circumstances, a defendant’s constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency.” 497 U.S. at 650.
But the capital sentencing statute at issue in Walton explicitly required defendants to prove mitigating circumstances by a “pre ponderance of the evidence” standard. 497 U.S. at 651. Kansas’ capital sentencing statute differs distinctly from the statute at issue in Walton, and that distinction is critical to our analysis here. Namely, while K.S.A. 21-4624 requires the State to prove aggravating circumstances beyond a reasonable doubt, the statute is silent as to any burden of proof for mitigating circumstances. K.S.A. 21-4624(e); see also Marsh, 548 U.S. at 173 (contrasting Kansas’ statute, which places no evidentiary burden on capital defendants, with Arizona’s statute, which requires capital defendants to prove mitigating circumstances by a preponderance of the evidence).
As tire United States Supreme Court recognized, “[t]his distinction operates in favor of Kansas capital defendants.” 548 U.S. at 173. Notably, Kleypas’ first statement—that any mitigating circumstance instruction must inform the jury that mitigating instructions “need to be proved only to the satisfaction of the individual juror in the juror’s sentencing decision and not beyond a reasonable doubt,” both preserves the statute’s favorable distinction and protects a capital defendant’s Eighth Amendment right to individualized sentencing by ensuring jurors are not precluded from considering all relevant mitigating evidence. Kleypas, 272 Kan. at 1078.
In conclusion, both Kleypas and Scott support Gleason’s claim that the trial court here erroneously instructed the jury regarding mitigating circumstances. Here, the instruction failed to affirmatively inform tire jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt. See Kleypas, 272 Kan. 1078. Instead, the instruction informed the jury: “The determination of what are mitigating circumstances is for you as jurors to decide under the facts and circumstances of the case. Mitigating circumstances are to be determined by each individual juror when deciding whether the State has proved beyond a reasonable doubt that the death penalty should be imposed.”
Because K.S.A. 21-4624 expressly burdens tire State with proving the existence of aggravating circumstances beyond a reasonable doubt but places no evidentiary burden regarding the existence of mitigating circumstances on the defendant beyond the burden of production, we reiterate our holding in Kleypas and Scott that cap ital juries in Kansas must be informed that mitigating circumstances need not be proven beyond a reasonable doubt. Because the instruction given in this case failed to do so, it was erroneous.
Further, we agree with Gleason that, as in Scott, the instructions as a whole in this case exacerbated rather than cured the instructional error. Namely, foe instructions repeatedly emphasized foe State’s burden to prove the existence of aggravating circumstances beyond a reasonable doubt and to prove beyond a reasonable doubt that the death penalty should be imposed. Conversely, the instructions never informed or explained to the jury that no particular burden of proof applied to mitigating circumstances.
Thus, as in Scott, Gleason’s jury was left to speculate as to the correct burden of proof for mitigating circumstances, and reasonable jurors might have believed they could not consider mitigating circumstances not proven beyond a reasonable doubt. Thus, jurors may have been prevented from giving meaningful effect or a reasoned moral response to Gleason’s mitigating evidence, implicating Gleason’s right to individualized sentencing under foe Eighth Amendment. See Scott, 286 Kan. at 107 (relying on Mills to reason that failure to instruct jurors that they need not be unanimous as to existence of mitigating circumstances left jury to speculate as to appropriate standard and likely caused jurors to believe they could only consider those mitigating circumstances unanimously found to exist).
Conclusion
The district court’s instruction on mitigating circumstances failed to affirmatively inform the jury that mitigating circumstances need not be proved beyond a reasonable doubt. And foe penalty-phase instructions as a whole exacerbated foe error because they referred only to foe beyond-a-reasonable-doubt burden of proof. Under these circumstances, we conclude a reasonable likelihood exists Üiat foe jury applied foe mitigating circumstances instruction in a manner precluding individual jurors from properly considering relevant mitigating evidence as required by foe Eighth Amendment. Consequently, we vacate Gleason’s death sentence and remand for resentencing.
Constitutional and Statutory Challenges to the Death Penalty
Gleason contends the death penalty is an unconstitutionally disproportionate punishment under § 9 of the Kansas Constitution Bill of Rights as applied to an entire categoiy of offenders to which he claims to belong, namely “non-triggerman accomplice[s] who ha[ve] been found guilty of capital murder based on aiding and abetting.” Alternatively, Gleason argues the death penalty is an unconstitutionally disproportionate punishment as applied to him in comparison to the sentence imposed against his accomplice. Additionally, Gleason contends the aiding and abetting statute does not permit imposition of the death penalty when a capital murder conviction is based on aiding and abetting liability.
Because we are vacating Gleason’s death sentence, we decline to consider his constitutional and statutoiy challenges to the death penalty. See State v. Soto, 299 Kan. 102, 130, 322 P.3d 334 (2014) (declining to consider Eighth Amendment challenges to hard 50 sentence when sentence vacated on other grounds); State v. Jones, 293 Kan. 757, 762, 268 P.3d 491 (2012) (declining to reach Eighth Amendment challenge to lifetime postrelease supervision when defendant’s sentence vacated on other grounds). We note that Gleason is free to raise these issues below if the State seeks imposition of die death penalty on remand.
Finally, we decline to address Gleason’s argument diat the penalty-phase verdict forms did not adequately protect his right to be free from double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and interpreted by Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003). While we vacate Gleason’s sentence today, this issue will be ripe only if the State seeks imposition of the death penalty on remand. See State v. Burnett, 293 Kan. 840, 847-50, 270 P.3d 1115 (2012).
Penalty Phase—Conclusion
We reject Gleason’s challenges to the legal validity and eviden-tiary sufficiency of the aggravating circumstances supporting his death sentence. But we conclude the district court failed to prop erly instruct the jury on its duty to consider mitigating circumstances and hold a reasonable likelihood exists that this erroneous instruction precluded the jury from considering relevant mitigating evidence. Accordingly, we vacate Gleason’s death sentence and remand for further proceedings consistent with this opinion. Because we vacate Gleason’s death sentence, we decline to consider Gleason’s constitutional and statutory challenges to his death sentence.
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The opinion of the court was delivered by
Rosen, J.:
A jury convicted Anthony Waller of felony murder and aggravated kidnapping and found him not guilty of aggravated robbeiy. The district court sentenced him to a hard 20 life imprisonment for the murder conviction and a consecutive 285-month sentence for the aggravated kidnapping conviction.
On appeal, Waller argues that the trial court erred by not instructing the jury on several lesser included offenses of felony murder, aggravated kidnapping, and aggravated robbery and by failing to give a self-defense instruction. He also argues that the trial court erred in failing to grant his motion for a mistrial and that cumulative trial error denied him a fair trial. Finally, he argues that the trial court erred in using a juvenile adjudication to determine his criminal history for sentencing purposes and that his convictions and sentences for felony murder and aggravated kidnapping violate the constitutional prohibition against double jeopardy. For the reasons stated below, we reject Waller s arguments and affirm his convictions and sentences.
Facts
On March 9, 2010, Waller’s apartment was burglarized. He contacted the Hutchinson Police Department and reported that a PlayStation 2, numerous video games, a camera, clothing, and two pairs of size 13 Air Jordan shoes—one pair orange and white, the other black with lime green—-had been stolen. Waller told the responding police officer that he suspected that his downstairs neighbor, Vasie “Joe” Coons, broke into his apartment. Waller informed the officer that Coons had come to his apartment the previous night to use his phone and that he called the phone number 708-7333. It was later determined that this number belonged to Joshua Haines, the victim in this case. Waller also told the officer that while he was working across tire street from the apartment building on March 9, he saw Coons get out of a white Mazda RX-8. The responding officer tried to make contact with Coons that day, but no one was at his apartment.
According to Coons—a self-admitted drug user and paranoid schizophrenic who was off his medication when the events at issue took place—Waller later approached him and threatened to “lack [his] ass” in retaliation for the burglary. Waller also informed Coons that he had reported the burglary to the police and that they were now wanting to speak to Coons about the crime. Coons, who was afraid of Waller, denied being involved in the burglary but implicated Haines-—Coons’ drug dealer and supposed friend—in the crime. Upon hearing this, Waller became mad and expressed a desire to exact revenge upon Haines, suggesting that he wanted to place Haines in the hospital by giving him a beating and that he wanted to tie Haines up and rob his home.
About a month later, on April 9, 2010, Coons went to Haines’ house, where he and Haines consumed methamphetamine between 5 p.m. and 10 p.m. that day. After making a trip with Haines to WalMart and returning to Haines’ home, Coons left and returned to the apartment building. Coons then stopped by Waller’s apartment; while he was there, Waller asked him to call Haines and set up a drug deal for a gram of methamphetamine and to have Haines bring the methamphetamine to Coons’ apartment. Think ing he could “score some more” methamphetamine if he was able to set up a drug deal for Haines, Coons agreed to make the call, using Waller’s phone to do so. Because Waller did not want Haines knowing his phone number, Coons dialed “*67” before dialing Haines’ phone number in order to conceal Waller’s phone number on Haines’ caller ID. Coons spoke with Haines and set up the deal.
After calling Haines, Coons went downstairs to his apartment. Subsequently, Waller, accompanied by Jose Delacruz and Chauncey Grissom, came to Coons’ apartment and asked if Haines was coming over. Because a half hour had passed since Coons had spoken with Haines, Coons called Haines, again using Waller’s cell phone and dialing “*67” before dialing Haines’ number. Coons spoke with Haines, who told Coons he would be at his apartment within a few minutes.
Haines eventually arrived at the apartment building and knocked on the outside door leading into the building. As Coons walked out of his apartment to let Haines in, Waller, Delacruz, and Grissom went to the back bedroom of the apartment. When Coons walked out of his apartment, he saw that Haines was already in the building, standing at the top of the stairs leading down to Coons’ apartment. Haines proceeded to walk down the stairs and into the apartment. As Haines walked down the hallway leading to the bedroom, he asked out loud whether anybody else was inside the apartment. At this moment, Waller came out of tire bedroom and attacked Haines, hitting him and tackling him to the floor. Delacruz then joined Waller, and the two of them began kicking and hitting Haines. Waller eventually hit Haines with a 2 x 4 board that was in the apartment, splitting Haines’ ear open. Delacruz grabbed a chair and hit Haines with it.
While Waller and Delacruz were attacking Haines, Coons said that Grissom was pacing back and forth, looking out the windows of tire apartment, and eventually participated in the beating by hitting Haines with a mop handle a couple of times. Coons said that he tried to intervene, but Grissom prevented him from doing so. Shortly thereafter, Grissom left the apartment.
During the altercation, Coons saw a baggie of methamphetamine on the floor, which belonged to Haines. Coons picked up the baggie and kept it.
Eventually, Waller and Delacruz dragged Haines into the bedroom, put duct tape over his mouth and arms, and wrapped video game controller cords around him. Waller, Delacruz, and Coons dren left the apartment, leaving Haines behind. According to Coons, Haines was still alive at this point. Waller, using Haines’ car—a white Mazda RX-8—drove them to Haines’ home. On the way diere, Waller told Coons that he wanted to burglarize Haines’ home.
When the men arrived at the residence, Waller attempted to have Coons assist him with the burglary. Coons refused and ran away from the scene. According to Coons, he proceeded to walk around Hutchinson that night while consuming Haines’ methamphetamine.
At around noon on April 10, Coons returned to the apartment building and saw Waller. According to Coons, Waller asked him whether he had been home yet. Coons said no. Waller then told Coons that he had broken into his apartment, removed Haines’ body, carried die body to Haines’ car, and then drove the car and parked it down on Baker Street.
Coincidentally, after Coons returned to the apartment building, officers from the Hutchinson Police Department arrived at die scene to execute multiple arrest warrants for Coons. After meeting with the landlord, the officers walked towards Coons’ apartment. The officers noticed a large amount of blood on the sidewalk outside of Coons’ apartment, drops of blood on the stairs leading down to the apartment, swipes of blood on the stairwell walls, and blood on the threshold of the apartment door.
Officers entered the apartment and saw numerous bloodstains inside. The stains were primarily concentrated in the hallway and the bedroom. The officers also noticed a 2 x 4 board with blood on it and a green plastic baggie containing a white crystal substance, which one of the officers suspected was methamphetamine. In the bedroom, trash was scattered on the floor and a mattress was overturned.
After searching and not finding Coons inside his apartment, officers spotted him walking away from the apartment building. The officers eventually located him winding his way down on the 1300 block of Baker Street. When the officers approached him, they noticed that Coons was smoking marijuana and had the handle of a large butcher knife sticking out from his rear waistband. Coons refused the officers’ orders to stop, so the officers used tazers to take Coons into custody. While arresting Coons, officers found a small green baggie containing a white crystal substance in Coons’ front left pants pocket. This substance was later determined to be methamphetamine. Officers also found a syringe and a glass smoking pipe inside a jacket that Coons was holding. The pipe contained methamphetamine residue inside it. Coons was transported to jail.
As Coons was being arrested, law enforcement received a report that a car parked in the 1500 block of Baker Street had a body inside it. Police officers responded to the scene and found a white Mazda RX-8 registered to Haines. Haines’ body was lying on the front seat. He was wearing a black shirt but did not have pants or underwear on. A black KU jacket was covering the lower portion of his body. Investigators at the scene noticed that Haines had a large cut to his elbow, cuts to an ear, scrapes on his back, his eyes were black and blue, and he had injuries to his head, which appeared to be severely swollen. Haines also had a blackish gray mark around his neck, indicating that he was strangled. A small amount of blood was found inside the car, indicating to investigators that Plaines was tolled somewhere else and then placed inside the car.
At the jail, Coons acted fidgety and his speech was jumbled, leading the officer who arrested him to believe that he was under the influence of drugs. The officer asked Coons about the blood inside his apartment. Coons responded by saying that “people had been creeping in and out of his apartment.” When asked to identify these people, Coons said he was not going to rat anybody out. The officer asked Coons to provide him with at least a first name. Coons said that “Josh” was the one “creeping in and out of his apartment.” Coons later said that Josh was his friend. By this time, the officer was aware that the body found in the vehicle had been identified as Haines.
After Coons spoke with the officer, a jail deputy patted him down and discovered a small baggie of cocaine located inside his sock. Blood was also discovered on Coons’ left shoe and on his pants. Subsequent testing of this blood found the presence of Haines’ DNA. A cut and other bloody marks were observed on Coons’ hands. Later that day, another officer tried interviewing Coons but ended his efforts when it became obvious that Coons was under the influence of drugs.
After obtaining a search warrant for Coons’ apartment, law enforcement officers from the Hutchinson Police Department and the Kansas Bureau of Investigation conducted an extensive investigation of the area around and inside the apartment. Bloodstains and DNA testing of those stains confirmed that Haines was attacked inside Coons’ apartment and then carried to a vehicle in the parking lot.
On die roof of the entryway leading into the apartment building, officers found a pair of pants. Blood, duct tape, and duct tape adhesive were found on tire outside of the pants. A cell phone belonging to Haines was found inside one of the pockets. Officers also found a belt hanging from a nearby tree.
Officers found a pair of size 12 black shoes inside a doghouse of a residence immediately to the east of the apartment building. It was later confirmed that blood was present on these shoes. Haines’ DNA was found on the outside of the left shoe. Waller’s DNA was found on the inside of the shoes.
A beer can was found at the bottom of the stairs leading to the entrance of Coons’ apartment. Subsequent testing of this can revealed the presence of Waller’s DNA.
Inside the apartment, investigators found (1) a black leather jacket with blood and remnants of duct tape on it (Coons said that Haines was wearing a black leather jacket); (2) a black cable with duct tape on it; (3) a second cell phone which was later determined to also belong to Haines; (4) pieces of latex gloves; (5) a board with bloodstains concentrated at one end; (5) a mop with blood on the handle; and (6) an overturned broken chair with blood on it.
Testing of all the samples taken from inside the apartment could only definitely show the presence of Haines’ DNA. Though DNA from other contributors was found on some of the samples, there was an insufficient amount of DNA present to identify the con tributors. Furthermore, officers did not collect anything inside Coons’ apartment that could be linked to Waller.
Waller voluntarily spoke with detectives on April 11 and consented to a search of his apartment. During this interview, detectives inspected Waller’s shoes and did not see anything incriminating. Waller’s statements during this interview were never introduced at trial. During the search of Waller’s apartment— which was described as being untidy—officers noticed a strong odor of cleaning supplies. Cleaning supplies were found by the inside entryway to Waller’s apartment and by the entryway into the living room. The search of Waller’s apartment, however, did not reveal any direct evidence linking Waller to Haines’ murder.
On that same day, Dr. Bamidele Adeagbo, a medical examiner and deputy coroner at the Sedgwick County Regional Forensic Science Center, performed an autopsy of Haines. The examination revealed that Haines had somewhere between 50 and 70 total impact sites on his body. Adeagbo observed more than 30 impact sites to Haines’ head. Adeagbo noted that the left and right frontal bones and the zygomatic bones of Haines’ face, as well as his left jaw bone, were fractured. Adeagbo also stated that Haines’ neck showed signs of being strangled.
Adeagbo did not see any injuries to Haines that were caused by a knife, nor did he find any evidence to suggest that Haines was sexually assaulted. A test of Haines’ blood did reveal that amphetamine and methamphetamine were in his system at the time of his death.
Adeagbo determined that the cause of death was multiple blunt force injuries and strangulation and that either could have caused Haines’ death.
On April 12, officers interviewed Coons; it was a new morning and Coons appeared to have sobered up since his arrest. On this same day, police arrested both Waller and Delacruz. While Waller was being booked into jail, an officer noticed a small piece of duct tape attached to Waller’s shoe. Waller’s shoes and tire jeans he was wearing were taken into custody and subsequently tested for DNA. Though blood was found on the shoes, the sample was insufficient for DNA testing. Testing of the jeans revealed the presence only of Waller’s blood.
Police conducted a second search of Waller’s apartment on April 12. During the search, police found an empty Nike shoe box for size 12 shoes. Though the shoes found in the neighbor’s doghouse were size 12 shoes, it is unclear from the record whether the shoes’ brand was Nike. Police also searched Delacruz’ apartment, finding pieces of burnt clothing in an alleyway near the patio of Delacruz’ apartment.
Grissom was arrested in Wichita on April 14, 2010, and interviewed on April 20. On August 22,2010, Wichita police discovered a wallet belonging to Haines stuffed behind the backseat cushion of a police cruiser—the same cruiser that Grissom was transported in after being arrested. Grissom later admitted that when he was arrested, he had possession of Haines’ wallet and that he had stuffed the wallet behind the seat cushion while sitting in the backseat.
Police obtained Waller’s cell phone records, which showed that on April 10, 2010, at 12:13 a.m., someone using Waller’s phone dialed “*67” and then the number 708-7337—a number assigned to one of Haines’ two cell phones. The records indicated that this call was not completed. A minute later, a second call was made, this time “*67” was dialed, then the number 708-7337. This call lasted 93 seconds. At 12:25 a.m., a third call was placed. Again, “*67” was dialed, then the number 708-7337. This call lasted 110 seconds.
The State charged Waller with felony murder (based on the underlying felonies of either robbery or kidnapping), aggravated kidnapping, and aggravated robbery.
The jury found Waller guilty of murder and aggravated kidnapping but acquitted him of aggravated robbery. The trial court sentenced Waller to a hard 20 life sentence for the felony-murder conviction and imposed a consecutive 285-month prison sentence for the aggravated kidnapping conviction. Waller filed a timely notice of appeal.
More facts will be stated as they become pertinent to the issues discussed below.
Jury Instructions
Waller first argues on appeal that the trial court erred when it failed to instruct the jury on several lesser included offenses related to the crimes of felony murder, aggravated kidnapping, and aggravated robbery. He also argues that the trial court should have instructed the jury on self-defense. Each of these issues will be addressed in turn.
A. Lesser Included Offenses of Felony Murder
Waller contends that the trial court should have instructed the juiy on second-degree intentional and unintentional murder, voluntary manslaughter (based on an intentional killing committed during a sudden quarrel or in the heat of passion), involuntary manslaughter (based on a reckless killing), and battery as lesser included offenses of felony murder. Waller concedes in his brief that he failed to request these instructions. Accordingly, review of this issue is controlled by K.S.A. 22-3414(3) and the stair-step analytical process set out in State v. Herbel, 296 Kan. 1101, Syl. ¶¶ 7-8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
As Williams’ articulated, K.S.A. 22-3413(3) creates a procedural hurdle when a party fails to object because the statute establishes a preservation rule for instruction claims on appeal. It provides, in part, that no party may assign as error a district court’s giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous, appellate review is not predicated upon an objection in the district court. 295 Kan. at 511-12.
To establish whether the giving or failure to give an instruction was clearly erroneous, the reviewing court must first determine if thei'e was any error at all. This requires an evaluation of whether the proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. 295 Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the jury would have reached a different ver- diet had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal. 295 Kan. at 516.
1. Legally Appropriate?
Under K.S.A. 22-3413(3), a trial court must provide lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.” At the time of Waller s trial, however, felony murder was excepted from the purview of K.S.A. 22-3413(3) under a court-made rule, commonly referred to as the felony-murder instruction rule. See State v. Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (lesser included offense instructions required in felony-murder case only if evidence of underlying felony is weak, inconclusive, or conflicting).
While Waller’s appeal was pending, this court decided State v. Berry, 292 Kan. 493, Syl. ¶¶ 2-6, 254 P.3d 1276 (2011), in which this court abandoned the felony-murder instruction rule and held that the standard contained in K.S.A. 22-3414(3) for instructing on lesser included offenses applied to felony-murder cases. The Berry decision made clear that its holding applied to all pending felony-murder cases such as this one. 292 Kan. at 514. During the 2012 legislative session, however, the legislature amended the statute governing lesser included offenses to state: “[Tjhere are no lesser degrees of murder in the first degree under subsection (a)(2) of K.S.A. 2013 Supp. 21-5402 [the felony-murder statute], and amendments thereto.” K.S.A. 2013 Supp. 21-5l09(b)(l); see L. 2012, ch. 157, sec. 2. This amendment did not contain language indicating whether the legislature intended for the amendment to apply retroactively or only prospectively.
In State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013), this court had to determine whether the 2012 amendment eliminating all lesser included offenses for felony murder prevented Berry from applying to felony-murder cases still pending after the statutoiy amendment went into effect. The court began its analysis with this observation:
“The general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise. State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001); State v. Sisk, 266 Kan. 41, 44, 966 P.2d 671 (1998). An exception to this rule has been employed when tire statutory change is merely procedural or remedial in nature and does not prejudicially affect the substantive rights of the parties. Martin, 270 Kan. at 608-09; State v. Ford, 262 Kan. 206, 208, 936 P.2d 255 (1997).” Wells, 297 Kan. at 761.
Because the 2012 amendment did not expressly indicate whether it was to apply retroactively, Wells proceeded to consider the second exception to the general rule of prospective application of statutory amendments. Wells concluded that the elimination of lesser included offenses of felony murder constituted a substantive change. Accordingly, Wells held that the 2012 amendment could not be applied retroactively to the case currently before it. 297 Kan. at 761.
After Wells, the 2013 legislature amended K.S.A. 2012 Supp. 21-5402 (first-degree murder), adding subsections (d) and (e) to the statute. In K.S.A. 2013 Supp. 21-5402(d), the legislature reiterated that there are no lesser included offenses of felony murder. In K.S.A. 2013 Supp. 21-5402(e), the legislature expressly stated that the amendment is a procedural rule to be applied retroactively to any case currently pending. See K.S.A. 2013 Supp. 21-5402; L. 2013, ch. 96, sec. 2.
In contrast to the 2012 amendment at issue in Wells, the 2013 amendment in K.S.A. 2013 Supp. 21-5402 expressly stated that the amendment was to apply retroactively, triggering the first exception to the presumption of prospective statutory application. See State v. Martin, 270 Kan. 603, 608-09, 17 P.3d 344 (2001) (“The general rule is that a statute operates only prospectively unless there is clear language indicating the legislature intended otherwise.” [Emphasis added.]). Accordingly, discussion of whether the 2013 amendment is procedural or substantive in nature is unnecessary because the legislature clearly expressed its intent within the language of the 2013 amendment—the statutory change applies retroactively.
Though the legislature has the authority to declare whether a statute is to apply retroactively, that authority is limited by the Ex Post Facto Clause to the United States Constitution. State v. Barnes, 278 Kan. 121, 129, 92 P.3d 578 (2004). Accordingly, unless K.S.A. 2013 Supp. 21-5402 violates the Ex Post Facto Clause, the statute applies to this case, rendering as moot Waller s argument for why the trial court should have instructed the jury on lesser included offenses of felony murder.
Recently, in State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), we held that the 2013 amendment does not violate the Ex Post Facto Clause and, thus, the amendment could be applied retroactively to all cases not yet final. This holding means that instructions on lesser included offenses of felony murder are legally inappropriate. Accordingly, the trial court’s failure to give the instructions now requested on appeal by Waller was not error, much less clear error.
B. Lesser Included Offenses of Aggravated Kidnapping
Waller contends that the trial court should have instructed the jury on kidnapping, as defined in K.S.A. 21-3420(c), and criminal restraint, as defined in K.S.A. 21-3424(a), as lesser included offenses of aggravated kidnapping. In reviewing this claimed instructional error, this court conducts a four-step analysis. Those steps, with accompanying standards of review, 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 [_U.S. _,] 132 S. Ct. 1594 (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Waller preserved the issue by requesting instructions on kidnapping and criminal restraint in his proposed jury instructions and raising an objection at the jury instruction conference when the trial court denied his request. But, even if we assume that failing to give the instructions constituted error, we conclude that such error was harmless. The State presented overwhelming evidence (e.g., the coroner s testimony regarding the injuries to Haines’ body and the numerous bloodstains within Coons’ apartment) that Haines sustained substantial bodily injuiy as a result of being confined against his will inside Coons’ apartment. Thus, the evidence clearly established that an aggravated kidnapping was committed against Haines. See K.S.A. 21-3420(c) (defining kidnapping in part as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person: . . . (c) to inflict bodily injury or to terrorize the victim or another.”); K.S.A. 21-3421 (A kidnapping become an aggravated kidnapping “when bodily harm is inflicted upon the person kidnapped.” [Emphasis added.]); K.S.A. 21-3424(a) (defining criminal restraint as “Imow-ingly and without legal authority restraining another person so as to interfere substantially with such person’s liberty”). Accordingly, we conclude there is no reasonable possibility that the error did affect the outcome of the trial in light of the entire record. See Plummer, 295 Kan. at 168.
C. Lesser Included Offenses of Aggravated Robbery
Next, Waller argues that the trial court should have instructed the juiy on robbery as a lesser included offense of aggravated robbery. Considering that Waller was acquitted of aggravated robbeiy, this issue is now moot.
D. Self-Defense Instruction
Waller argues that the trial court should have instructed the jury on self-defense pursuant to K.S.A. 21-3211(a). Waller did not request this instruction. Accordingly, review of this issue is controlled by K.S.A. 22-3414(3) and the stair-step analytical process set out in Williams.
K.S.A. 21-3211(a) states:
“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 force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.”
Even if we assume without deciding that giving a self-defense instruction based on K.S.A. 21-3211(a) would have been legally appropriate, such an instruction would clearly not have been factually appropriate.
Waller testified that he walked out of the bedroom and saw Haines walking down the hallway towards the bedroom. Waller asked Haines, in a nonthreatening manner, “[Wjhat’s up man; you got my stuff?” Waller said that his comment startled Haines, and he reacted by cocking back his arm. Waller said he ducked and Haines swung at him and missed. Haines then grabbed Waller on the arm. Waller said he shook off Haines and punched him with his left hand, hitting him in the jaw and causing him to fall to the ground. Waller said that he hit Haines just one time and that he did so in self-defense.
According to Waller, as Haines was getting himself up after being floored by the punch, a one-sided donnybrook ensued: Coons came running from the doorway and began kicking Haines in the face multiple times. Delacruz came running out of the bathroom and joined Coons in kicking Haines. Grissom picked up a mop handle and used it to hit Haines in the head multiple times.
Waller maintains that after hitting Haines once in self-defense, Delacruz, Coons, and Grissom began beating him. Waller denied participating in the beating and stated that he left Coons’ apartment once the beating had ceased. At the most, Waller’s testimony, if believed, established that he did not participate in any conduct constituting felony murder or aggravated kidnapping. But his testimony certainly does not establish an absolute defense to being convicted of either crime. For a self-defense instruction to have been factually appropriate in this case, Waller would have had to acknowledge that he engaged in conduct constituting either felony murder or aggravated kidnapping but that his conduct was justified because he was acting in self-defense. See State v. Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008) (“Perfect self-defense is a concept based on justification or excuse and operates as a complete defense. It applies broadly to all crimes involving the use of force against another.”), overruled on other grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013). Waller’s testimony failed to establish a valid self-defense claim to the charged crimes and there is no other evidence in the record that supports this claim. Accordingly, the trial court did not err in failing to give a self-defense instruction.
Denial of Mistrial Motion
Next, Waller argues that the trial court abused its discretion by failing to grant his motion for a mistrial based on the courtroom actions of Grissom during his cross-examination.
On appeal, a trial court’s decision denying a motion for mistrial is reviewed under an abuse of discretion standard. Judicial discretion is abused if the decision (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Harris, 293 Kan. 798, 814, 269 P.3d 820 (2012).
A. Applicable Facts
During Grissom’s cross-examination, the following exchange took place:
“Q. [Defense Counsel:] Okay. You also told the officers you didn’t take anything from that apartment, correct?
“A. Yeah, but I turned around and I told the truth. I told that I . . . took the wallet. I admitted to what I did. I stepped up, I’ve been a man. And I mean, I could do a lot of tilings. I could pinpoint the blame on him, I could have came out with a stoiy, I could tell you guys so many things.
“Q. But that’s not what I’m asking you.
“A. I could tell you so many tilings—
“The Court: Just a second.
“A.—but I’m telling you the truth.
“The Court: Just a second.
“A. And I can only tell you what I know. That’s it. That’s all I can do. What they did afterwards, I left. I don’t know how he died, I don’t know what happened. I still don’t know. I don’t want to know.
“The Court: Okay.
“[Defense Counsel]: Objection, judge.
“The Court: Just take a second and compose yourself, Mr. Grissom.
“A. No, man, I live everyday over this shit, man. I didn’t do none of this shit. I don’t have to sit up here and go through this every day.
“The Court: Just a second. Just calm down. Take a drink of water.
“A. They already ruined my life. I have no friends, I have no place to go. Do you feel like—”
At this point, the trial court dismissed the jury to the juiy room. The record indicates that after the jury left the courtroom, the following exchange took place:
“The Court: Why don’t we take about a 10-minute recess. Just go out in the hallway, Mr. Grissom, and calm down a little bit. You’re doing fine.
“The Witness: I’m hurt, man. This is bullshit.
“The Court: Go out in the hallway.
“The Witness: I go to see Josh every week, man. You all, I don’t know what the hell you all did, man. Don’t put me in ya-all’s shit. Man up, man. Man up. If you’re going to do it, man up. I didn’t do shit, man. If I could have saved him I would. I’m not a hero. I got my own life to try to fend.
“[Defense Counsel]: Judge, I, I’d object.
“Witness: Shit.”
The record indicates that at this point Grissom was removed from the courtroom. After taking a 10-minute recess, court was reconvened without the jury present. The following exchange then took place:
“[The Court:] Counsel, I intend instructing the jury to disregard any statements of the witness made after the last question of [defense counsel] as the statements were not in response to a direct question of [defense counsel]. So at this point I need any recommendations or statements of counsel as to what they desire the court to do additionally, if anything, and also would like to know whether we are finished with the examination of Mr. Grissom or are we going to continue.
“[Defense Counsel]: Well, Your Honor, at this point I, I would just, I would like to, because, because the transcript will be, will not show volume and pitch and things like that I’d like to just put on the record that the witness was yelling, the microphone was on, and so that the statements of, ‘you got to man up, you got to man up,’ were loud, loud enough that it appears to me that the jury, who was still going back to the jury room, would have, may have heard that.
“Judge, at this stage I’m going to request a mistrial. I think it’s, there’s a significant possibility that the jury has been tainted by the, by the outburst.”
The trial court then asked the prosecutor for comment. The prosecutor stated that he believed giving the jury a curative instruction regarding Grissom’s statements would be sufficient. Defense counsel responded:
“Well, judge, I, you know, it's the old analogy of unring, unringing the bell. The initial part of the outburst was probably something that could have been cured. My biggest concern is tire, the witness yelling at my client, ‘you need to man up, you need to man up.’ Clearly it is an indication or may be seen by the jury as some sort of indication of, of knowledge of guilt beyond what he testified about previously. And judge, I just don’t think that can be cured.
“The Court: Clearly Mr. Grissom lost control of his emotions. The court attempted to have the jury removed when it became clear an issue was arising.
“As I recall, by the time the statements of defense counsel is specifically objecting to, the jury had already left the courtroom. That is my view of the situation, and I obviously cannot say whether those statements in question, about the manning up, were heard or not. Obviously at that point Mr. Grissom was speaking in an extremely loud tone of voice.
“I am not going to declare a mistrial at this time. I have faith that the jury will follow tire orders or the directions of tire court and we will proceed at this time.”
The trial court then instructed Grissom that if he had another outburst, he would be in danger of being found in direct contempt of court and if he needed a break, the court would take a break. Defense counsel then stated:
“Judge, one more tiring before we bring the jury back just to make sure the record was clear. I believe the bailiff was actually in the jury room with the door closed at some point during Mr. Grissom’s outburst. I would ask the court to inquire if she was able to hear any statements which would then have been heard by tire jury.
“The Bailiff: You could hear the noise, but it wasn’t audible. You, you couldn’t hear what was being said.”
The jury was then brought back into the courtroom where the trial court addressed the jury:
“The last question asked by [defense counsel] was: ‘Okay, you also told the officers you did not take anything from the apartment, correct?’ That was the last question she asked.
“You are hereby directed by the court to disregard any statements made by the witness following drat. By raise of hand, do you all believe you will be able to follow tire order of the court and do not consider anything you heard following that in your consideration of the case? All the jurors have answered in the affirmative.”
The trial then resumed with defense counsel finishing her cross-examination of Grissom.
After his jury trial, Waller filed a motion for a new trial in which he argued, among other things, that Grissom’s outburst on the witness stand deprived him of a fair trial. In his motion, Waller stated:
“The defendant’s right to a fair trial was prejudiced by the outburst of witness Grissom in the presence of the jury, the continued loud accusations of guilt by Grissom towards the defendant, and the subsequent denial of the defendant’s motion for mistrial. As the court is aware and the record reflects, during cross examination of Mr. Grissom, Mr. Grissom expressed extreme -emotional distur bance—crying, screaming, getting of [sic] the witness stand, etc. Much of the display was in the presence of the jury. As the jury was rushed from the court room, the witness left the witness stand yelling ‘you did it man, man up and take your punishment,’ or words to that effect. The witness continued to yell at the top of his lungs and approach [sic] the defendant causing [the prosecutor] to physically put himself between the witness and the defendant and physically escort die witness from the court room in addition to numerous deputies entering the court room for obvious security reasons. Even events that occurred once the jury was returned to the jury room could still hear [sic] the disturbance according to information from the bailiff even if the exact words were not discernible. However, for the purposes of the record, [defense counsel] was able to hear through out the course of the trial discussions of the jury during bréales and was able to distinguish specific words and topics of conversation leading to the inference that the jury may have been able to discern the content of Mr. Grissom’s statements in addition to perceiving the abnormal disturbance of the trial.”
At sentencing, Waller did not put on any evidence or raise any new arguments to support his motion for a new trial. The trial judge addressed the issue of Grissom’s outburst from the bench:
“As far as the issues for motion for new trial, tire court will rest on its previous rulings. Although I will note the one interesting situation involves the activities of the one witness in court. And for the record the court will indicate I am confident in my mind the jury was removed from the courtroom prior to anything of a prejudicial nature taking effect. That, in fact, the outburst of the witness primarily occurred, or anything of, what the court would consider significance occurred after the jury had left the courtroom. Certainly it may have been possible they could have heard noises as it was indicated by the bailiff. There were, she was not able to discern in the jury room what was occurring other than noises were occurring.”
B. Applicable Law
Under K.S.A. 22-3423(l)(c), a trial court may declare a mistrial if there was prejudicial conduct either inside or outside the courtroom that makes it impossible for the trial to proceed without injustice to either the defendant or the prosecution. This statute creates a two-step process. First, the trial court must determine if there was some fundamental failure of the proceeding. If so, the trial court moves to the second step and assesses whether it is possible to continue without an injustice. In other words, the trial court must decide if the prejudicial conduct’s damaging effect can be removed or mitigated by an admonition, jury instruction, or other action. If not, the trial court must determine whether the degree of prejudice results in an injustice and, if so, declare a mistrial. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012); see State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
In Ward, our court articulated this standard by dividing the appellate court’s abuse of discretion inquiry into two parts, asking: (1) Did tire trial court abuse its discretion when deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice? 292 Kan. at 551.
The analysis of the first question varies with the mature of the alleged misconduct, such as when the allegation is based on the actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary error. 292 Kan. at 551. Appellate courts reviewing the second part for an injustice may take a broader view than the trial court because appellate courts may examine the entire record. The degree of certainty required to conclude an injustice did not occur varies depending on whether the fundamental failure infringes on a constitutional right. To declare a nonconsti-tutional error harmless, the appellate court must apply K.S.A. 60-261 and K.S.A. 60-2105 to determine if there was a reasonable probability that the error affected the trial’s outcome. And if the fundamental failure infringes on a right guaranteed by the United States Constitution, the appellate court applies the constitutional harmless error analysis defined in 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. at 569.
When it became clear that Grissom was losing, control of his emotions and failing to respond with appropriate answers to defense counsel’s questions, the judge quickly intervened and dismissed the jury to the juiy room while trying to calm Grissom. Prior to tire jury leaving the courtroom, Grissom made comments indicating that he could have made up a story which shifted blame more towards Waller and less towards himself but that he declined to do so and was telling the truth at trial. Grissom also indicated that he did not know how Haines was killed or what the other men did to him after he left. These statements were entirely consistent with Grissom’s testimony at trial, and, therefore, we do not believe these statements caused Waller any undue prejudice.
The record indicates that after the jury left the courtroom, Gris-som yelled at Waller: “Man up, man. Man up. If you’re going to do it, man up.” This statement, implying that Waller should take responsibility for Haines’ death, was clearly prejudicial. But the judge stated that he was confident that the jury was out of the courtroom before Grissom made the statement, and the comments from the bailiff indicated that the statement was not discernible from inside the jury room. Once the jury returned to the courtroom, the judge admonished the jurors to disregard all of Grissom’s comments occurring after defense counsel’s last question. Fur-drermore, all of the jurors indicated that they would not consider the comments in their consideration of the case.
The trial court took appropriate curative actions which addressed the prejudicial conduct that occurred at Waller’s trial and properly concluded that granting a mistrial would have been an excessive remedy. In fact, the trial court’s decision to deny Waller’s request for a mistrial was consistent with numerous cases involving misconduct by witnesses where a mistrial was requested and denied. See State v. Leaper, 291 Kan. 89, 98-101, 238 P.3d 266 (2010) (reviewing cases from other jurisdictions involving witness misconduct). Based on a review of the entire record, we conclude that Grissom’s outburst was not significant enough to have affected the trial’s outcome. Waller had the benefit of the judge’s admonition to the jury to disregard Grissom’s improper comments. Furthermore, it appears that the juiy was not influenced by the outburst considering that it did, in fact, acquit Waller of aggravated robbery. Accordingly, we conclude that the trial court did not abuse its discretion by denying Waller’s motion for mistrial.
Cumulative Error
Waller argues that his convictions should be reversed due to cumulative error. Cumulative trial errors, when considered collec tively, may require reversal of the defendant’s conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Smith, 296 Kan. 111, 134, 293 P.3d 669 (2012). Notably, “[cjumulative error will not be found when the record fails to support the errors raised on appeal by the defendant.” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). A single error cannot constitute cumulative error. State v. Haberlein, 296 Kan. 195, 212, 290 P.3d 640 (2012), cert. denied 134 S. Ct. 148 (2013).
In making his cumulative error argument, Waller relies on the issues addressed above, none of which constituted error. Furthermore, in his brief, Waller raises numerous alleged errors in passing, which he claims added up to deny him a fair trial. However, he failed to brief each of these individual claims. An issue not briefed by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012); see also State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (A point raised incidentally in a brief and not argued therein is deemed abandoned.). Accordingly, Waller’s cumulative error argument—based almost entirely on alleged errors that were never briefed on appeal—must fail.
Juvenile Adjudication
Next, Waller argues that his prior 1999 juvenile adjudication for aggravated battery should not have been used to determine his criminal history score because, under In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), he was denied his right to a juiy trial at the time of his adjudication.
This argument has been addressed and decided against Waller’s position in State v. Fischer, 288 Kan. 470, 473, 203 P.3d 1269 (2009). In Fischer, the defendant argued that State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003), needed revisiting because of this court’s subsequent decision in In re L.M. In Hitt, this court held that juvenile convictions could be used to calculate criminal history scores without violating Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Hitt, 273 Kan. at 236. In re L.M. held that juveniles have a constitutional right to a jury trial, but this court noted that “[t]his right will apply only to cases pending on direct review or not yet final on the date of filing this opinion.” 286 Kan. at 473-74. The Fischer court further clarified the In re L.M. holding by noting:
“[W]e find that the holding in Hitt remains valid for all juvenile adjudications that were final on June 20, 2008, the date In re L.M. was filed. Because Fischer’s juvenile adjudications were final, they were ‘prior convictions’ under the Apprendi exception, and the district court properly included them in [Fischer’s] criminal history scoring.” 288 Kan. at 475.
Likewise, Waller s juvenile adjudication was final before June 20, 2008. Therefore, his argument fails.
Double Jeopardy
Waller argues that his convictions and sentences for felony murder (based on the underlying felony of kidnapping) and aggravated kidnapping constitute multiple punishments for the same offense (i.e., are multiplicitous) and thereby violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.
Whether convictions are multiplicitous raises a question of law over which this court’s review is unlimited. State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 (2006); State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
Waller’s multiplicity argument concerning felony murder has been repeatedly rejected by this court. See, e.g., State v. Jefferson, 297 Kan. 1151, Syl. ¶ 10, 310 P.3d 331 (2013) (“Convictions of felony murder and criminal discharge of a firearm at an occupied vehicle or dwelling are not multiplicitous even when the charges arise from the same conduct and involve the same victim.”); State v. Pham, 281 Kan. 1227, 1262-63, 136 P.3d 919 (2006) (inherently dangerous felony statute, K.S.A. 21-3436, states legislature’s intent to allow cumulative punishment for felony murder and inherently dangerous felonies). Both kidnapping and aggravated kidnapping are considered inherently dangerous felonies for felony-murder purposes; thus, Waller could be properly convicted and sentenced for both felony murder and the underlying felony supporting the felony-murder charge without violating the Double Jeopardy Clause. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983) (“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger [v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)], a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or juiy may impose cumulative punishment under such statutes in a single trial.”).
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The opinion of the court was delivered by
Nuss, C.J.:
This case requires us to determine the appellate courts’ authority to review certain criminal sentences under K.S.A. 21-4721. The district court denied Tyrone Lee Looneys motion for probation, i.e., for a downward dispositional departure from his presumptive sentence of 169 to 187 months’ imprisonment. Instead, the court granted a downward durational departure to 72 months in prison. When Looney appealed the denial of probation, the Court of Appeals summarily dismissed for lack of jurisdiction.
We conclude the Court of Appeals erred; it had jurisdiction under the plain language of the statute. Accordingly, we reverse and remand to that court for consideration of the merits of Looney’s appeal.
Facts and Procedural History
In 2010, tire State charged Looney with several drug-related offenses after narcotics and drug paraphernalia were discovered during a traffic stop in Dodge City. After negotiations, Looney pled guilty to either one count of manufacture of methamphetamine or one count of attempted manufacture of methamphetamine, both of which are severity level 1 drug felonies.
Given the severity of the crime and Looney’s agreed-upon criminal histoiy score of “C,” the sentencing guidelines prescribed a presumptive sentence range of 169 to 187 months’ imprisonment. But as part of Looney’s plea agreement, the State recommended the district court grant him a downward durational departure and sentence him to only 72 months in prison.
At Looney’s re-arraignment, the State confirmed the parties’ agreement to a downward durational departure to 72 months. But the prosecutor further announced the State was “not going to bind [Looney’s counsel] from making a dispositional departure motion.” Looney’s counsel declared that despite the State’s opposition, she would move for a dispositional departure, i.e., downward to probation. His counsel later did so at sentencing.
The court explicitly denied Looney’s request for a downward dispositional departure to probation. But it granted the durational departure request and imposed 72 months’ imprisonment.
Looney appealed the district court’s denial of his motion to the Court of Appeals, moving for summary disposition of his sentenc ing appeal under Supreme Court Rule 7.041 (2013 Kan. Ct. R. Annot. 62). The court simply ruled: “The appeal is dismissed for lack of jurisdiction under K.S.A. 21-4721(c) and State v. Huerta, 291 Kan. 831[, 247 P.3d 1043] (2011).”
We granted Looneys petition for review under K.S.A. 20-3018(b), providing us jurisdiction under K.S.A. 60-2101(b). More facts are added as necessary to the analysis.
Analysis
Issue: The Court of Appeals erred by dismissing Looney’s appeal for lack of jurisdiction.
K.S.A. 21-4721 governed Looneys appeal when he asked the Court of Appeals to review his sentence. The statute provided in relevant part:
“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court.
“(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review:
(1) Any sentence that is within tire presumptive sentence for the crime; or
(2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.”
The Court of Appeals’ summary order did not specify whether it dismissed Looney’s appeal under K.S.A. 21-4721(c)(l) or (2). And the parties appear to disagree on which section applies. Looney contends the court had jurisdiction under K.S.A. 21-4721(a) and it is not divested by (c)(1). Specifically, he argues the plain language of subsection (a) grants jurisdiction to review his departure sentence: “A departure sentence is subject to appeal by the defendant.” Similarly, he argues subsection (c)(1) only divests jurisdiction for presumptive sentences: “[T]he appellate court shall not review (1) [a]ny sentence that is within the presumptive sentence for the crime.”
The State responds the Court of Appeals properly dismissed Looney’s appeal for lack of jurisdiction under subsection (c)(2): “[T]he appellate court shall not review ... (2) any sentence re- suiting from an agreement between the state and the defendant which the sentencing court approves on the record.” It asserts his 72-month sentence was agreed upon and approved. But Looney counters that subsection (c)(2) does not apply because his request for dispositional departure to probation exhibits a failure to agree about his sentence.
Standard of review and general principles of statutory interpretation
Whether appellate jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012). To the extent our inquiry requires interpretation of K.S.A. 21-4721, we also exercise unlimited review. 294 Kan. at 109 (citing State v. Ballard, 289 Kan. 1000, 1005, 218 P.3d 432 [2009]).
The fundamental rule of statutory interpretation is “ ‘ “the intent of the legislature governs if that intent can be ascertained.” ’ ” State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013) (quoting State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 [2012]). A statute’s language is our paramount consideration because “ ‘the best and only safe rule for ascertaining the intention of tire makers of any written law is to abide by the language they have used.’ ” Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014) (quoting Wright v. Noell, 16 Kan. 601, 607, 1876 WL 1081 [1876]).
Discussion
The Court of Appeals has jurisdiction to consider Looney’s appeal under K.S.A. 21-4721(a).
Looney’s argument focuses on K.S.A. 21-4721(a) and (c)(1) because he interprets the Court of Appeals’ summary order as relying on subsection (c)(1) to bar- his appeal. His reading of the order is plausible given some of the caselaw construing this statute.
We begin our review of dris caselaw with State v. Crawford, 21 Kan. App. 2d 169, 897 P.2d 1041 (1995). There, similar to the instant case, the district court granted tire defendant’s motion to durationally depart from the presumptive sentence—mid-range sentence of 57 months’ imprisonment—and reduced it to 34 months. But the court refused his request for a dispositional departure to a nonprison sentence. Among other things, defendant argued on appeal that the court erred in not ordering a disposi-tional departure.
The Crawford panel reviewed subsections (a) and (c)(1) and concluded the latter “limitfs] appellate jurisdiction by either the State or defendant to those instances in which the sentencing court has departed adversely to the appealing party.” (Emphasis added.) 21 Kan. App. 2d at 170. With this conclusion as its springboard, the panel held the district court’s failure to grant a dispositional departure to a nonprison sentence was not appealable because the court had already granted a durational departure sentence favorable to the defendant: from 57 months to 34 months. In short, a defendant could not complain the sentencing court “did not depart enough.”
Crawford has been frequently relied upon to dismiss similar sentencing appeals for lack of jurisdiction. See, e.g., State v. Foy, No. 103,883, 2011 WL 432378, at *1 (Kan. 2011) (unpublished opinion); State v. Mondragon-Martinez, No. 107,833, 2014 WL 642023, at *2 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. 1050 (2015); State v. Croft, No. 105,597, 2012 WL 6634389, at *11 (Kan. App. 2012) (unpublished opinion), rev. granted 300 Kan. 1105 (2014).
Despite this widespread rebanee, we cast doubt on Crawford’s continuing validity in State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011). There, we considered equal protection and due process challenges to the restrictions on appellate jurisdiction contained in K.S.A. 21-4721. Although we did not directly address Crawford, we suggested its panel had erroneously construed K.S.A. 21-4721(c)(1) when we held:
“Merely moving for a departure sentence does not grant the right of appeal to a defendant, if the result of the motion is a presumptive sentence. See K.S.A. 21-4721(c)(1). The only defendants permitted to appeal are those sentenced to an upward departure on the State’s motion or the court’s notice, [citation omitted], or those who seek a downward departure to a specific term and who receive the departure hut to a term longer than the one sought, [citation omitted].” (Emphasis added.) 291 Kan. at 836.
So under Huerta, a defendant who requests a durational departure to a specific term, and then receives a favorable durational departure but to a term longer than the one requested, could appeal that ruling. In other words, under those circumstances the defendant could indeed complain the sentencing court “did not depart enough.”
Looney concedes Huerta could be read to preclude appellate review of his sentence because his requested probation, while a departure from his presumptive sentence, was not one of a specific term. He further concedes Crawford would certainly bar his appeal. But he argues these would be contrary to tire plain language of K.S.A. 21-4721, and therefore tire Court of Appeals had jurisdiction to consider his appeal. We agree with Looney.
Looney unquestionably received a departure sentence. He was sentenced to 72 months’ imprisonment when his presumptive sentence was 169 to 187 months. See K.S.A. 21-4703(f) (defining a departure as “a sentence which is inconsistent with the presumptive sentence for an offender”). Further, the court explicitly recognized on tire record Looney was receiving a durational departure.
And clearly “[a] departure sentence is subject to appeal by the defendant. . . .” K.S.A. 21-4721(a). The statute’s language makes no distinction between a favorable or unfavorable departure. Nor does it express the departure is not appealable because it is “enough.” See Gannon v. State, 298 Kan. at 1143 (“ ‘[T]he 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.’ ”). So the Court of Appeals has jurisdiction over Looney’s appeal under subsection (a).
As for its statutory basis to deny jurisdiction, the Court of Appeals simply cited K.S.A. 21-4721(c). To die extent die Court of Appeals relied on subsection (c)(1) to dismiss Looney’s appeal, it erred because this subsection only bars review of presumptive sentences: “[T]he appellate court shall not review . ■. . [a]ny sentence that is within the presumptive sentence for die crime.” (Emphasis added.) And Looney did not receive a presumptive sentence— from 169 to 187 months’ imprisonment. So subsection (c)(1) does not bar tire Court of Appeals’ jurisdiction to hear his appeal.
While in Huerta we essentially acknowledged the Crawford panel had erroneously ruled subsection (c)(1) barred review of many departure sentences, Looney argues our language was too restrictive. We agree. We therefore explicitly overrule Crawford and hold all departure sentences are subject to appeal under K.S.A. 21-4721(a) unless appellate jurisdiction is divested by a more specific provision. We also expressly clarify any contrary signal in Foy or Huerta.
Subsection (c)(2) does not divest the Court of Appeals of jurisdiction to consider Looney's appeal.
The State primarily argues the Court of Appeals correctly dismissed Looney’s appeal because its jurisdiction was divested by subsection (c)(2) of K.S.A. 21-4721. This provision states an appellate court shall not review “any sentence resulting from an agreement between the state and the defendant which tire sentencing court approves on the record.” And per die State, Looney agreed he should be sentenced to 72 months’ imprisonment.
Looney responds that his request for a downward dispositional departure to probation obviously is an express disagreement with a 72-month prison sentence. So the plain language of agreement contained in subsection (c)(2) cannot bar appellate jurisdiction over his appeal.
As mentioned, the prosecutor acknowledged to the court at re-arraignment that the State was “not going to bind [defense counsel] from making a dispositional departure motion.” Defense counsel later responded, “[T]hen, I’m free to argue for a dispositional departure, Judge, to Corrections and she’s [prosecutor] free to argue prison.” Consistent with these statements, Looney’s counsel eventually filed a motion for a dispositional departure and at sentencing argued in support while the State argued against it. Under these circumstances, we conclude there was nothing to establish an agreed-upon sentence under subsection (c)(2).
The State also argues States v. Williams, 37 Kan. App. 2d 404, 153 P.3d 566 (2007), supports its position. There, the defendant appealed the denial of his dispositional and durational departure motion, and the Court of Appeals panel dismissed for lack of jurisdiction. But Williams is readily distinguishable, primarily because the sentences imposed were within the presumptive sentencing ranges and therefore unappealable under K.S.A. 21-4721(c)(l).
Judgment of the Court of Appeals summarily dismissing the case for lack of jurisdiction is reversed, and the case is remanded to the Court of Appeals for consideration of the merits.
Moritz, J., not participating. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover on the partnership liability of those who wrongfully acted in a corporate capacity. From a judgment for the plaintiff, defendant Bowen appeals.
, This case was before this court on the same state of. facts and on substantially the same evidence, in Bank v. Sheldon, 86 Kan. 460, 121 Pac. 340. The principal testimony submitted in the present case was a transcript of the testimony given at the former trial, supplemented by a deposition and some other short items of documentary evidence. The additional evidence does not materially change the facts from those set out in the former opinion.
Defendant Bowen discusses this case upon the theory that no question was concluded by the former appeal, except that the bankruptcy proceedings mentioned therein did not justify an instructed verdict in favor of the defendants on the ground that the bank was estopped thereby. We do not agree with Bowen concerning what was decided on the former appeal. This court there decided that “where a number of persons assume to organize themselves into a corporation and fail to take the steps which are essential to their becoming incorporate they are liable as partners for debts incurred by them in the corporate name” (Syl. ¶ 1), and that this liability extends to all who participate in the enterprise. Because all the evidence was in writing, Bowen asks this court to examine the evidence and not be bound by the findings of the trial court, under Durham v. C. C. & M. Co., 22 Kan. 232, Cheney v. Hovey, 56 Kan. 637, 642, 44 Pac. 605, and Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580. We have carefully examined the evidence.
The trial court made extensive findings of fact. We have read these findings and examined the evidence to support them, and our conclusion is that the findings are supported by the weight of evidence where the evidence is contradictory. Where not contradictory there is ample evidence to support the findings. Bowen contends that the evidence does not show that he did anything to incur any debt in the corporate name, and that he did not participate in any corporate enterprise.
The evidence shows that C. M. Sheldon for some time prior to the attempted incorporation had been conducting his business in the name of “The C. M. Sheldon Company.” His letterheads and stationery had printed thereon “The C. M. Sheldon Company — Corporations—Financed. Paid-up Capital $100,-000.” Sheldon and defendant Bowen are brothers-in-law. Sheldon was interested in several promotion schemes in the development of oil wells. Bowen held stock in some of these schemes which were incorporated. Bowen trusted Sheldon implicitly, and turned over to Sheldon the management of Bowen’s interest in these promotion schemes. Bowen gave Sheldon a power of attorney to handle Bowen’s stock, and Sheldon handled this stock as he saw fit. Bowen knew Sheldon was doing business under the name of “The C. M. Sheldon Company.” Sheldon concluded to incorporate in this name under the laws of Arizona. He asked Bowen and his wife to become directors in this corporation and to sign the articles of incorporation, which they did. Thereafter Bowen trusted the ■ entire management and business of the corporation to Sheldon. A few days after the articles of incorporation were filed Sheldon contracted the indebtedness which is the foundation of this suit. Bowen afterward learned of this indebtedness and learned that stock held by him in other companies promoted by Sheldon had been put up as collateral security for the payment of this indebtedness, and made no objection. Bowen assumed that all stock owned by him would be returned by Sheldon, or other investments be made for Bowen, or the money therefor would be paid to him, so as to protect him. These facts we think were sufficient to show that Bowen did participate in the corporate enterprise and in incurring the indebtedness sued on in this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action in the nature of a creditor’s bill. The defendants filed a demurrer to the petition, which was sustained. The plaintiff appeals.
The petition is too long to set out. The facts disclosed therein are substantially as follows: On February 8, 1914, the plaintiff became the owner of two promissory notes for $1333.33 each, which had been executed by defendant Henry F. Fosha and delivered to The Ashurst Oil, Land & Development Company. These notes matured respectively on January 22 and April 22, 1904. On February 19, 1908, the plaintiff began the action which resulted in the judgment on which the present action is founded, and recovered judgment therein against Henry F. Fosha January 10, 1914, in the sum of $4980.
The note which matured January 22, 1904, was forwarded to The Riley State Bank, of Riley, Kan., for collection, and the same day Fosha filed suit to replevin the note from the bank. The action was thus prosecuted through the district court of Riley county, and to this court, wherein a decision was reached June 8, 1907. (Youle v. Fosha, 76 Kan. 20, 90 Pac. 1090.)
May 27, 1904, the plaintiff filed suit against defendant Henry F. Fosha in the' district court of Riley county, to recover on the note maturing April 22, 1904, and voluntarily dismissed the action January 13, 1905. January 26, 1905, the plaintiff filed suit against defendant Henry F. Fosha in the district court of Wyandotte county, to recover on both notes, and that case was disposed of in this court in April, 1906, by holding that no service of summons had been obtained on Fosha. (Underwood v. Fosha, 73 Kan. 408, 85 Pac. 564.)
Defendants Fosha and wife Sophia executed a general warranty deed conveying to defendant Herman Kleiner certain property for a purported consideration of $20,000. The deed was executed July 16, 1904, and was duly recorded next day in the office of the register of deeds of Riley county. This deed was voluntary and without consideration, and made for the purpose of hindering, delaying and defrauding the plaintiff and other creditors. The plaintiff did not learn of this fraud until within two years next preceding the filing of his petition in this action.
The plaintiff also complains of a subsequent warranty deed executed two years later, by which the above-mentioned land was.conveyed by defendants Herman and Katie R. Kleiner to Sophia Fosha, the wife of Henry F. Fosha. This' deed was without consideration and'fraudulent, and was recorded September 8, 1906.
The plaintiff commenced this action March 13, 1914, after the return of an unsatisfied execution on his judgment, to cancel and set aside the above-mentioned deeds.
The defendants demurred to the plaintiff’s petition on the grounds that the petition did not state facts sufficient to constitute a cause of action against the defendants, or any one of them, and that the action was barred by the statute of limitations when it was commenced.
Was this action barred by the two-year statute of limitations at the time it was commenced? The answer to this question depends on the answer to the next. Did the record of the deed from Fosha and wife to Kleiner impart notice to the plaintiff of the fraud of the defendants in executing the deed ? There is no question about the action having been cemmenced in time, so far as the deed from Kleiner and wife to Sophia Fosha is concerned. In Black v. Black, 64 Kan. 689, 68 Pac. 662, this court said:
“Where the means of discovery lie in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.” (Syl. ¶ 2.)
This language was quoted in Lewis v. Duncan, 66 Kan. 306, 308, 71 Pac. 577, and in Hutto v. Knowlton, 82 Kan. 445, 448, 108 Pac. 825. The same rule was announced in Rogers v. Lindsay, 89 Kan. 180, 131 Pac. 611, and in Walline v. Olson, 84 Kan. 37, 113 Pac. 426. The record of the deed imparts notice of everything contained therein. It does not impart notice of matters wholly outside the deed. There is nothing in the deed to show that the defendants executed it for the purpose of hindering, delaying or defrauding the plaintiff or other creditors in the collection of their debts. This the plaintiff alleges he did not discover until within two years prior to the commencement of this action.
In Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, the case principally relied on by the defendants, this court said :
“The ease of Laird v. Kilbourne et al., 70 Iowa, 83, 30 N. W. 9, cited in Black v. Black, 64 Kan. 689, 68 Pac. 662, holds that in an action to set aside a fraudulent conveyance of real estate the fraud is conclusively presumed to be discovered when the conveyance is filed for record. This rule, which is followed in several later Iowa cases, is exceptional only in that it makes the recording of the deed notice of the fraud as well as of the mere fact of the making of the deed. The usual rule is that the re cording of the deed is notice of its execution and contents, but not of the fraud. (14 A. & E. Encycl. of L. 355, note 2; Black v. Black, supra, and authorities there cited; Lewis v. Duncan, 66 Kan. 306, 71 Pac. 577; Gillespie v. Cooper, 36 Neb. 775, 55 N. W. 302; Hughes v. Littrell, 75 Mo. 573.) In the present case the circumstances are such that notice of the terms of the deed would necessarily be notice of the fraud, since plaintiff testifies that he knew of the purchase of the property and supposed that the deed was made to his debtor. The alleged fraud consisted in having the deed name Donaldson’s wife as grantee, and showed upon the face of the deed.” (p. 246.)
In the present case an inspection of the record of the deed will not disclose any fraud on the part of any person. The deed states that $20,000 was received by the defendants. If the estate of the defendants was as valuable as before the deed was made, and was as available to the plaintiff for the purpose of enforcing his claim, no fraud was committed against the plaintiff. In Kline v. Cowan, 84 Kan. 772, 115 Pac. 587, a similar statement was made:
“While, no doubt, the creditors are charged with notice of the consents of the recorded deeds, we are not disposed to hold that they are also charged with knowledge of the fraud practiced by means of such deeds. We fail to see how the record of a deed from White to the Klines would give any intelligible clue to the fact that Daniel Kline had disposed of his hotel, or that he had so manipulated its disposal as to make a deed, fair on its face, speak aught but the truth. In Lewis v. Duncan, 66 Kan. 306, 71 Pac. 557; Black v. Black, 64 Kan. 689, 68 Pac. 662; Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846; and Rogers v. Richards, 67 Kan. 706, 74 Pac. 255, the instruments held to impart notice were in and of themselves of such character as to inform the searcher of the record as to the nature of the fraud. But where the recorded instrument, as in this case, furnishes no evidence of the fraud, constructive knowledge thereof can not be imputed.” (p. 776.)
The record of the deed from Fosha and wife to Kleiner did not impart notice of the fraud of the defendants in executing the deed. It follows that the plaintiff’s action was not barred at the time it was commenced.
2. Is the plaintiff precluded by his own laches from maintaining an action to set aside the deeds? From the petition it appears that litigation over one or both of these notes has been almost continuously pending from the time they became due until the present time. From the petition it abundantly appears that the plaintiff has been diligent in his efforts to reduce these notes to judgment, and immediately after he ob tained judgment on them the present action was commenced. This action could not be brought until judgment was obtained on the notes. The action on the notes was a preliminary step that must be taken within a reasonable time after the discovery of the fraud. That reasonable time could not be more than two years after that discovery. The fraud was not discovered until within two years next preceding the. commencement of the present action. The plaintiff can not be said to be guilty of any laches under these circumstances.
The demurrer should have been overruled. The judgment of the district court is reversed. The cause is remanded with directions to overrule the demurrer and proceed with the cause. | [
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The opinion of the court was delivered by
Mason, J.:
W. L. Farquharson sued J. E. Lightner for a real-estate agent’s commission. He recovered judgment, and the defendant appeals.
The only errors assigned relate to the instructions that were given. The objection made is not that general principles of law were wrongly stated, but that there was no evidence to warrant some of the statements, that language was used which implied the existence of facts that were disputed, and that the charge did not adequately present the defendant’s contentions.
The defendant maintains that there was no evidence that he constituted the plaintiff his agent with respect to the sale of the land. The plaintiff testified that he was a real-estate agent; that he had done some business with the defendant; that the defendant “listed” the land with,, him for sale. He was then asked: “What did he tell you when he listed it?” He answered: “He told me he wanted fifteen dollars an acre •for it, or forty-eight hundred dollars.” The word “list” in this connection has a reasonably definite meaning, and implies invoking the services of an agent in finding a purchaser upon the terms stated. (Brown v. Gilpin, 75 Kan. 773, 780, 90 Pac. 267.) .We think the evidence warranted submitting to the jury the question whether what the defendant said and did was intended and understood to constitute an employment of the plaintiff as his agent to find a buyer for the land.
We further conclude that the instructions do not assume the existence of any material fact that was in dispute, and that at least in the absence of any request for a more specific statement they sufficiently presented the contentions of the parties.
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin a breach of a contract between two telephone companies. The answer was that the contract was void as against public policy and that it had been entered into under a mutual mistake of law. A permanent injunction was issued and the defendant appeals.
The plaintiff operates a telephone system with a. central office in the city of Washington. He has a large number of local subscribers on individual and party lines and has toll lines extending into the surrounding country and connected with various other telephone exchanges. The defendant operates a rural telephone system with toll lines and connections. About October 25, 1909, the defendant made application for admittance to the city of Washington, which application the city council denied. The officers of the city, the officers of the defendant, and the plaintiff all believed the action of the city to be according to law, and after negotiations between them the contract which is- the subject of the action was executed on November 1, 1909, by the city and by the plaintiff and the defendant. The contract provided for the erection of poles on specified terms along a prescribed route to carry the cables and wires of the defendant to its central office in the city, the connection of the central offices of the plaintiff and the defendant by a cable to be installed and maintained at their j oint expense, and free exchange between the patrons of the two telephone systems. The contract further provided as follows:
“It is further agreed and understood by and between the parties of this contract as a part of the consideration therefor that said Mutual Telephone Company party of the second part and all its assigns shall not during the period covered by this contract put in any telephone service in the city of Washington, except in its central office such as is necessary for the operation of its rural and toll lines and its connections with the central office of the third party.”
The contract took effect at once, but sometime after October 13, 1913, and before April 30, 1914, when the action was commenced, the defendant installed several telephones for local use in violation of the provision quoted. The petition alleged that the defendant was threatening to make other installations of the same kind. ,
Two telephone systems serving the same constituency place a useless burden upon the community, cause sorrow of heart and vexation of spirit, and are altogether undesirable. The public utilities commission, with its power over rates and sufficiency and efficiency of service, can quickly suppress any evil consequences of monopoly, and good public policy favors rather than discountenances a single system. In this instance the public was distinctly benefited by the arrangement whereby subscribers to each system, each operating in a different field, acquired the free use of the other.
No precise or comprehensive rule can be stated governing the subject of relief from the civil consequences of a mistake of law. The mere fact that a contract was made or other conduct was induced by such a mistake is not enough. If it were, ignorance might be more profitable than knowledge, the certainty and security of property and other rights would be destroyed, and the stability and tranquillity of society could no longer be maintained by means of the law. The mistake must be such that the parties are in effect unintentionally made to do something which would confer undue advantage or cause unj ust prej udice unless corrected. One party must be benefited or the other party burdened without consideration, or the circumstances must otherwise be such that it would be unconscionable to deny reformation, cancellation or rescission; and the party seeking absolvence must comply with all those conditions which are imposed on every one who invokes the aid of a court of equity. Besides this, the misconception must be of some plain rule of law which clearly would have governed if known and not of some principle of doubtful validity or uncertain application because not well established or defined; and if there be doubt or contention respecting legal rights, and instead of ascertaining and enforcing them parties with equal knowledge or means of knowledge settle the matter by fair-compromise free from fraud, the compromise will stand, although it would not have been made had the law. been understood.
When the defendant made application for admission to the city with its poles and wires the extent of the city’s authority was a subject of considerable doubt and uncertainty, and was the subject of undetermined litigation elsewhere. The matter was not finally settled until January 8, 1910, when the decision in the case of Telephone Co. v. Concordia, 81 Kan. 514, 108 Pac. 35, was rendered. The opinion shows there was a fair ground for the contentions of both parties. After reviewing the legislation on the subject the court reached the following conclusion:
“The theory of all these acts appears to be that telephone companies have the right to build their lines into a city and to use the streets for that purpose, under such reasonable regulations as the city council may prescribe. ... No company should undertake to enter a city and erect poles and string wires over or along streets, alleys or public grounds without making application and a proper effort to procure the passage of an ordinance defining the manner and place of construction of the contemplated lines. Such an application the council may not deny. It may regulate, but not exclude. The telephone companies get the right directly from the state, and not from the city. The city may prescribe terms and conditions upon which the right granted by the state shall be exercised, but it has no power to annul the right granted by the higher authority.” (p. 517.)
The opinion of this court not then being available, the city of Washington denied the defendant’s application. The defendant acquiesced in the city’s view of the law. The plaintiff, as the holder of a franchise and the owner of an established telephone system in the city, was involved in the controversy, and the contract was entered into for purposes which it stated as follows:
“For and in consideration of the covenants and agreement hereinafter set forth and for the purpose of compromising and settling' differences that now exist between the several parties hereto as to the conduct and management of the telephone business in the city of Washington, Washington County, Kansas, and adjacent territory and of adjusting the rights and privileges of the several parties hereto with reference to said business.”
The result was the city gave up its contention concerning the only matter about which the parties were mistaken, permitted the defendant to enter and occupy the public ways on conditions the reasonableness of which is not disputed, and the whole telephone situation was composed by a fair compromise which gave the public just what it was entitled to have, one local telephone system with free exchange between it and another system serving a different clientage. The infraction of the contract occurred four years after it was made. The defendant gives no intimation of when it learned the law publicly declared by this court on January 8,1910, and the presumption is it did not act diligently on discovery of its rights because it is silent respecting the matter. No notice to the plaintiff of a change in the relationship of the two telephone systems appears, so that the plaintiff could readjust his business if necessary. No notice to the city that the defendant regarded the contract as no longer in force appears, so that the city might, if it desired, regulate the defendant’s use of the streets unhampered by the contract. No purpose to give up the benefits which the defendant derives from the use of the plaintiff’s telephone system by means of the cable connecting the two central offices is indicated, and the defendant is in the position of demanding relief, not from the contract, but from the disadvantages of the contract. These are not matters of estoppel to be pleaded and proved by the plaintiff. They are conditions imposed upon an exercise of the right to rescind on the ground of mistake, and upon every one who comes into a court of equity seeking equity.
The court is inclined to regard the contract as one which should be enforced notwithstanding the mistake of the parties respecting the power of the city over the use of its streets. Leaving at one side the scope and effect of the contract, it should be enforced as the result of a fair compromise. But beyond this, the defendant did not assume an attitude which challenged the favor of the court and authorized it to relieve the defendant from the obligation of the contract. Therefore, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
In May, 1913, Junction City desired to sell certain bonds in the sum of $50,560 to raise funds for street paving. To that end it requested a bid from the Central National Bank of the same town. The city’s communication to the bank contained the following:
“All bids to be made subject to the legality of the issue. A certified check for $1000 is required to accompany bid.”
Seven days later the bank answered:
“In response to your favor of the 9th inst. I desire to make the following bid for the bonds referred ¿o by you, viz., $50,000 serial improvement bonds, bearing 5 per cent semi-annual interest subject to approval as to legality, you to furnish the bonds. We will accept and pay for said bonds when duly registered and ready for delivery, par and accrued interest and $75.00 premium. Central National Bank,
By S. W. Pierce, President.”
The following day, May 17, the city commissioners met and accepted the offer of the bank.
Four days later, May 21, the bank wrote :
“We desire to state that we wish the bonds which we purchased last week to be issued in denominations of $500.00 each, instead of $1000.00, and we will pay the additional costs for registering and printing same.
“We wish you would kindly furnish full transcript of all proceedings relating to this issue of bonds as soon as possible.”
In due time the bonds were executed, offered to and declined by the school-fund commission — a statutory prerequisite (Gen. Stat. 1909, § 8950), and on approval by the attorney-general were registered by the auditor of state. With these matters disposed of, the city tendered the bonds to the defendant bank on July 29, 1913, whereupon they were declined by the bank. The same day the hank addressed two letters to the city officials, as follows:
“Gentlemen: Referring to the issue of city bonds for the paving of North Washington street amounting to $50,560.00, which we purchased from you ‘subject to.legality,’ we beg to inform you that the transcript of the proceedings relating to the issuing of these bonds furnished us by your city clerk was duly submitted to McCune, Harding, Brown and Murphy, attorneys, 831 Scarret building, Kansas City, Mo., for examination and opinion as to the legality of said bonds.
“The firm referred to decline to approve the legality of the bonds and the proceedings were then forwarded to Hon. Chas. Wood of Chicago for examination and without any information as to the opinion of said firm and without prejudice. After waiting two weeks for this opinion we are informed that it is the same as Judge McCune’s, which is, that these bonds are in excess of the debt limit authorized by our statutes and therefore illegal.
“Under these circumstances you can not expect us to accept and pay for the bonds, and we would ask you to return to us the certified check submitted with our bid, and oblige.”
“Gentlemen: Whereas, Judge Henry L. McCune, of the firm of Mc-Cune, Harding, Brown and Murphy, Attorneys, Kansas City, Mo., and Judge Chas. B. Wood of Chicago have carefully examined the proceedings relating to the issue of the bonds for the paving of North Washington Street in this city to the amount of $50,560.00, and whereas both of these gentlemen express their opinion that in issuing these bonds, this city exceeds the limit of its authority to issue these bonds, and therefore said bonds are not legal. In view of the foregoing facts, we must decline to accept and pay for said bonds until such time as you have established in a court of competent jurisdiction that said bonds are legal beyond any doubt.”
Thereupon the plaintiff city sought a market elsewhere for its bonds, and as the bond market was down it had to sell them at a discount, and incurred certain expenses in so doing. This discount, expenses, etc., amounted to $1630.55, and after appropriating the proceeds of the bank’s certified check for $1000, the city brought this action to recover the balance, $630.55. .
The bank filed a general demurrer to the plaintiff’s petition. This was overruled. The bank then filed an answer in which it pleaded that as a national bank chartered under federal statutes it did not have authority to purchase the bonds; and (third) that the bonds were illegally issued because they exceeded the limit of indebtedness authorized by state statutes; that the bank’s contract of purchase was “subject to approval as to legality”; and (fourth) that “defendant, upon plaintiff's offer to deliver to it the aforesaid bonds, and in order that it might exercise an intelligent and prudent judgment and election under the aforesaid terms of its said bid as to the acceptance of the said bonds, submitted the subject of their legality to lawyers of high repute, skill and experience in the examination and the determination of the validity of such bonds, and were by such attorneys advised that said bonds were invalid and void for the reasons set forth in the third defense herein. Also alleged the good faith on the part of the attorneys in their examination and advice relative to the validity of said bonds and that it acted honestly and in good faith upon the aforesaid judgment and advice of said attorneys, and so doing, and so believing and relying thereon, elected to and did disapprove said, bonds as to their legality, and thereupon refused to accept them. That thereupon it promptly and in good faith notified plaintiff,” etc.
Other allegations covered good faith and mistake on the part of the bank as to its corporate powers, and concluded with a prayer for the restitution of the $1000 which had accompanied its original bid.
A demurrer was sustained to the- third defense; and on motion of plaintiff the fourth defense was stricken out on the ground that it was' essentially the same as that of the third defense to which a demurrer had been sustained.
The district court made findings of fact and conclusions of law, the latter being as follows:
“Conclusions op Law.
“No. 1. Under the Seventh sub-division of Section 5136 of the U. S'. Revised Statutes defining, the powers of National Banks, such Banks are not empowered or authorized to purchase or deal in municipal bonds as an investment, and when a National Bank makes a contract to purchase such bonds for such purpose, the contract, so far as is executory or unexecuted, can not be enforced.
“No. 2. A national Bank has no power or authority to act as agent or broker for another in buying and selling municipal bonds.
“No. 3. The bonds in question in this case are legal, valid and binding obligations of the city of Junction City, Kansas, and said city did not exceed the limits of its authority in the issuance of the same.
“No. 4. The plaintiff City is not bound to return the certified check that accompanied the bid in question in this case, and the defendant is not entitled to a judgment against the city for the amount of said cheek in this action.
“No. 5. That this action- should be dismissed at the costs of the plaintiff.”
From this judgment of dismissal both parties appeal.
The bank assigns error: 1. That the court held in effect-that the words “subject to approval as to legality” meant a judicial determination of the question. 2. That the bonds were illegal. 3. That the bank should have been given restitution of its $1000. 4. That the contract was ultra vires. 5. The city in its cross-appeal assigns error on the refusal of the court to give judgment for the $630.55, being the balance of the city’s expenses arising from the bank’s breach of contract.
1. Examining these alleged errors, the city’s offer read: “All bids to be subject to the, legality of the issue.” The bank’s bid recited: “Subject to approval as to legality,” But it is only fair to say that the general tenor of the bank’s letter was a bid for the bonds on the terms and conditions of the city’s offer. We can not view this letter of the bank as a counter proposition. The qualifying condition must be held to mean the same in both the offer and the bid. If the issue was valid, the bank was to be bound; if not, the bank was to be relieved. It would not have been difficult for the bank to have made the approval of its attorneys or of any reputable attorney a condition of its bid. It did not do so; and the fair import of its bid does not warrant the interpretation which it afterwards sought to place on it when the bond market had slumped. Counsel for the defendant call our attention to the case of City of Great Falls v. Theis, 79 Fed. 943, and some others to the same effect, which hold that the purchaser of bonds may be excused from his bargain where his attorneys had advised that the bonds were illegal, even though the issue was afterwards judicially upheld. But we doubt the wisdom of that doctrine, and in any event we decline to apply it here. If the lawyer’s doubt was founded upon a serious question touching the legality of this issue we would have a different case. There was no excuse for that doubt in the case at bar so far as now presented to us. Here it was certainly proper to consider the validity of the bonds as a judicial question.
2. The alleged defect in the bonds was that they were issued in excess of the limitations fixed by chapter 109 of the Laws of 1911. That statute provides that the bonded debt of a city of the second class, such as Junction City, shall not exceed one and one-half per cent of the assessed valuation of all taxable property within the city; but it is also provided that bonds for paving improvements and certain other specified purposes shall not be included in such limitation. The bonds in question were for paving, and therefore specifically excluded from the limit of indebtedness which chapter 109 sought to restrict.
3 and 4. Neither did the court err in holding that the bank was not entitled to restitution. It was bound by its contract. The purpose of a certified check to accompany a bid is well known. It was a pledge of good faith, and to guarantee a recoupment or partial recoupment for any contingent loss to the vendor if the contract was broken by the vendee. We can not agree with counsel for appellant nor with the learned trial court in its conclusion that the contract was ultra vires. Let it be conceded that the bank had no power to act as broker, or purchase the bonds as agent for another vendee. The city had no notice of the bank’s agency. It assumed that it was dealing with the bank as a bona fide purchaser. (10 Cyc. 1148.)
What is there to the contention that a national bank may not purchase muncipal bonds? The district court found that under subdivision 7 of section 5136 of the Revised Statutes of the United States, 1873-1874, no such power is conferred. That subdivision reads:
National banks have power—
“Seventh. To exercise by its board of directors, or duly authorized officers or agents, subject to law, all such incidental powers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange, and other evidences of debt; by receiving deposits; by buying and selling exchange, coin and bullion; by loaning money on personal security; and by obtaining, issuing and circulating notes according to the provisions of this title.”
Is not the purchase of municipal bonds an incidental power of banking? Are municipal bonds not an evidence of indebtedness which may be discounted? Shall we close our eyes to the fact that national banks, with the sanction or at least without the disapproval of the federal government, are state depositaries of this commonwealth, and that they do procure municipal bonds and deposit them with the state treasurer to’ secure state deposits ? Shall we ignore the financial and banking statistics of this state and the country at large, which continually show the vast sums invested by national banks in municipal bonds? We are bound to take judicial notice of matters of such great public concern. We could not give countenance even to an intimation that such investments are questionable. Nor does this power to acquire municipal bonds depend wholly upon the general language of the statute referred to.
In section 3 of the act of congress of May 30, 1908 (35 U. S. Stat. at Large, ch. 229, pp. 546, 548, Fed. Stat. Annotated, Supplement, 1909, p. 358), we find specific sanction given to such investments. It reads in part:
“That any national banking association which has circulating notes outstanding secured by the deposit of United States bonds to an amount of not less than forty per centum of its capital stock, and which has a surplus of not less than twenty per centum, may make application to the Comptroller of the Currency for authority to issue additional circulating notes to be secured by the deposit of bonds other than bonds of the United States. . . . The Treasurer of the United States, with the approval of the Secretary of the Treasury, shall accept as security for the additional circulating notes provided for in this section, bonds or other interest-bearing obligations of any State of the United States, or any legally authorized bonds issued by any city, town, county, or other legally constituted municipality or district in the United States which has been in existence for a period of ten years.”
5. Holding these views, we think that the city should have judgment for the balance of its expenses which arose from the bank’s breach of contract, and this case is remanded with instructions to enter judgment for the city as prayed for in' its petition.
It is so ordered. | [
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The opinion of the court was delivered by
Porter, J.:
An information was filed against W. M. Rose, a constable of Olathe township, Johnson county, and John D. Woodworth, charging them with exercising and attempting to exercise without authority the functions of a sheriff or deputy sheriff. They were convicted and sentenced each to imprisonment in jail for a term of three months. Woodward was paroled. Rose appeals.
The facts briefly stated are, that on Thanksgiving day Ralph Daughaday and three companions went from their homes in Wyandotte county to Johnson county, and were hunting. They had hunting licenses and one of them had a written permit to hunt on the “Bloom” farm. The others became separated from him and were arrested by Rose and taken to Olathe before a justice of the peace charged with hunting unlawfully, and were fined. They were without money, and Daughaday gave the justice his check for $47.50, the amount of the fines and costs, whereupon they were released. When the check reached the bank Daughaday was notified by telephone and very soon thereafter sent money to meet it, but through some oversight and without his knowledge the check was protested before his money was received. About a week later Rose and Woodworth came to the grocery store of Daughaday at Kansas City, Wyandotte county. He was busy with customers at the time and they waited. Afterwards appellant showed him the protested check and demanded payment. Upon his refusal to pay, Rose and Woodworth assaulted him, threw him to the floor, and threatened to put handcuffs on him. His father interfered and demanded to know the reason for the assault. Appellant said: “I am a sheriff and I have a state warrant for your arrest.” Ralph Daughaday demanded he be shown the warrant. Rose exhibited a paper but said he did not have to show it, and would not allow it to be read. After some parley Daughaday agreed to give another check. The appellant then demanded $1.35 protest fees, and $10 which he said was the regular sheriff’s mileage for himself and Woodworth. He threatened that unless the whole amount was paid he would take Daughaday to Johnson county. On receiving assurance from the bank by telephone that a check would be paid, the appellant accepted a check for $47.50, and $11.35 in cash to cover the other charges. Thereupon they released Daughaday and left the store.
It is to be regretted that the unlawful acts, of which the appellant’s own admissions show he is guilty, must go unpunished so far as this proceeding is concerned. Unfortunately it was attempted to prosecute him under the provisions of chapter 124 of the Laws of 1897 (Gen. Stat. 1909, §§ 2880-2883) which can not by the most liberal interpretation, if that were proper in a criminal case, be said to apply in any sense to the facts. The information in general terms charges the appellant with exercising or attempting to exercise the functions of “a sheriff or deputy sheriff in Wyandotte County.” The instructions adopted literally the language of the information: “sheriff or deputy sheriff,” and the jury, following one of the prepared forms of verdict, found that the functions he attempted to exercise were those% of “a sheriff or deputy sheriff.” The information fairly interpreted, however, does charge that he claimed to be acting as sheriff, because it sets forth his specific acts and language. Moreover, the evidence of the state showed without any question that he represented himself to be a sheriff. At no stage of the holdup did the appellant claim that he was a deputy sheriff, or were the words “deputy sheriff” used by any of those present in the store. In telephoning the bank about the check, he said he was a constable of Olathe, but this was after he had placed Daughaday under arrest and claimed to be a sheriff. The whole difficulty arises from the fact that the statute under which appellant was prose-' cuted does not cover the facts shown by the evidence of the state.
A simple reading of chapter 124 of the Session Laws of 1897 makes this clear. The title of the act and its provisions show that it was not intended to provide for a case where one without authority represents himself to be a sheriff. The title of the act reads:
“An act relative to the appointment of special deputies or policemen by sheriffs, mayors and other persons authorized by the law to make such appointments, and providing penalties for violation thereof.”
The act declares it shall be unlawful for a sheriff, mayor, or any private persons who are authorized to appoint special deputies, marshals or policemen, to appoint a person who is not a resident of this state. Section 3, under which the appellant was prosecuted, reads:
“That any person or persons who shall in this state, without the authority, exercise or attempt to exercise the functions of or hold himself or. themselves out to any as a deputy sheriff, marshal, policeman, constable or peace officer, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by imprisonment for a period of not less than three months nor more than one year.”
The charge against appellant was that he exercised the functions of a sheriff. Leaving out of consideration, therefore, the fact that the verdict was.in the alternative, the proceedings were brought under a statute which has no application to the facts as charged and established.
This decision is not placed upon any technical distinction between the functions of a sheriff and those of a deputy sheriff, but upon the clear and unmistakable provisions of the statute. The only thing which the statute in question prohibits a sheriff from doing is to appoint as a special deputy one who is not a resident of the state. Section 3 is levelled solely at persons unlawfully attempting to act as a deputy sheriff, marshal, policeman, etc.
The judgment must be reversed with directions to dismiss the action. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for damages for an injury alleged to have been caused by the defendant in running upon him with an auto delivery wagon. A demurrer to the plaintiff’s evidence was sustained and this is assigned as the principal error, the question for consideration being whether or not there was sufficient evidence to go to the jury, the defendant claiming that while there was no evidence of negligence there was testimony clearly showing contributory negligence.
The plaintiff was riding a bicycle easterwardly and was turning south across the street-car tracks to get on the proper side of the street when he was run into by the defendant’s auto car which, coming westwardly, was moving to the south side of the street. A street car approaching from the west was stopped near the place of the collision. One of the employees of the company testified:
“The boy was going in a southeasterly direction. T saw the auto as it approached the bicycle. The automobile looked to me like it was going to turn across the track and the bicycle seemed as though it was going on the south side in front of the car and in front of the automobile, that it kept turning out. At that time they were probably 6 feet apart. Our car was west of them. We had come to a stop. We did not stop, until they hit. At the time they hit they were about on the north rail of the railroad. The automobile was n’t quite up to the north rail and the boy about the center of the track. That is my recollection. The boy was heading, at that time, in a south-easterly direction. The car was just about to his side. The auto driver did not stop until he hit. I never heard a horn or a signal from the auto. As they got closer the boy was pumping the bicycle. He was apparently putting all his weight on the front pedal. They went a little further and hit or met. The boy was not facing the auto delivery after they begun to turn. It looked to me like the automobile hit the bicycle. Up to that time I did not hear any signal from the automobile. The automobile hit- the bicycle on the pedal or just behind it on the left side. Then the bicycle kind of tipped over and the boy threw his foot out to catch himself. The auto car had not stopped at that time. The boy fell over on one foot and it bumped him again; struck the bicycle about the same place. The boy fell down and the auto run up on the boy’s foot, stopped, and backed off. Up to that time I had never heard any signal or horn sounded. The auto did not stop until it got on the boy’s foot. I have had some experience in operating automobiles. ... It was running, I think, about 4 or 5 miles an hour and could have stopped in from 3 to 5 feet. The boy was about 45 or 50 feet from the car when I first saw it.”
Another employee of the car company testified:
“When I saw the boy, they were both going across the north rail. The motor car was pushing the bicycle. Pushing him from or back across the rail. I never heard any horn or signal given. I was about forty feet from them at the time. The motor car struck the bicycle about the time I saw them. When the motor hit the bicycle it looked to me like it struck the back of it. It did n’t look like the motor car slowed up any. When the auto hit the bicycle it knocked the boy over to one side. It looked like the boy was trying to catch himself, then he was knocked down. During the time until the boy was knocked down, it looked like the driver was trying to stop the motor car, I don’t know. When the boy went down the car stopped after it got across the track. I could n’t say what part of the bicycle was struck. When the boy went down I saw it go to one side. The boy fell to the pavement. The motor car run up on his leg. It backed off, just rolled back. I saw a couple of men pick the boy up and carry him into the garage. . . . When the car was pushing the boy, he was trying to catch himself; it looked that way to me. He was finally knocked down. I think the car pushed the boy 7 or 8 feet.”
Plaintiff himself testified:
“When I started diagonally across the street the Strasburger delivery wagon was standing still in front of the Peerless Machine Works, headed west. I did not know in what direction it was going to move, but knew it was headed west. When I started diagonally across the street, I could see the interurban baggage car coming from the west about a block back. That would give me plenty of time to cross their tracks. The next time I saw the Strasburger automobile, after I saw it at the Peerless Machine Shops, it was right upon me. It knocked me down, pushed me along, and the hub of the right-hand front wheel of the machine caught in the rear wheel of my bicycle, threw me down and the car ran up on my right leg. There was no horn sounded or signal given. In trying to get out of the way, I turned directly south and pumped as hard as I could. It struck first on the side of the bicycle behind the left pedal. Then I tried to get out of its way. There was no other direction, except going south, and I turned that way to get out of the way. When it first struck it- did not stop or slow up, and kept shoving me and pushing, until it knocked me down and run up on my leg, and then stopped. The automobile struck my bicycle twice. The second time it struck the hind wheel. I was then thrown to the curb on the south side, the auomobile run on my right leg, the car backed again and two fellows from the Peerless Machine Shop carried me in and set me down on a chair to see the extent of my injuries.”
The foregoing quotations are taken from the counter-abstract alone, and, regardless of all the other evidence submitted, appear to justify and require a submission of the case to the jury on the question of negligence, and we find nothing in the record conclusively showing contributory negligence.
The order of the trial court is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
West, J.:
Plaintiff appeals from an order sustaining a demurrer to his petition and insists that it stated a cause of action.
The pleading alleged in substance that the defendant sent out a load of iron by one of its employees, knowing that it would require outside assistance to unload it, and that upon arriving at the place of delivery the driver called upon the plaintiff to assist him, which he did, and that while engaged in the unloading he was painfully injured, one of the pieces of iron falling upon his hand and mashing it. The negligence complained of was in sending an employee with no means of unloading the material, making it necessary for the driver to call the plaintiff to assist him.
It may be conceded, as argued by the plaintiff, that upon answering the call of the driver to assist in unloading the relation of employee began and that the plaintiff was not to be considered a mere volunteer. But there is no allegation of any act of negligence on the part of the defendant causing the in jury. It seems to be the theory of the plaintiff, as indicated by his brief, that the defendant was negligent in not employing a sufficient number of men to do the unloading in a safe manner, but there is no averment that the number of men, including the plaintiff, was insufficient, and hence there was no foundation on which the trial court could have instructed the jury respecting any negligence which would justify a recovery.
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The opinion of the court was delivered by
Mason, J.:
The German American State Bank sued H. C. Goodrich upon a promissory note. An answer and reply were filed. The burden of proof was held to rest upon the defendant. At the conclusion of his evidence the court directed a verdict for the plaintiff, upon which judgment was rendered. The defendant filed a motion for a new trial, which was granted. The plaintiff appeals.
The plaintiff argues with much apparent force that the evidence introduced, if given its widest scope and most liberal interpretation, does not tend to establish a defense. The defendant does not undertake to meet this argument upon the merits, but insists that the granting of a new trial was within the discretion of the trial court, and can not be reviewed here.
The motion for a new trial set out four grounds: (1) abuse of discretion of the court, misconduct of the plaintiff, accident and surprise; (2) erroneous trial rulings; (3) that the verdict was contrary to the evidence; and (4) newly discovered evidence. The fourth ground may be disregarded since no affidavits were' filed, as required by the code. (Civ. Code, § 307.) No proceedings are pointed out to which the first and second may apply, and none are apparent from the record brought here. If the evidence had presented an issue of fact, on which the case had been submitted to the jury, the power of the trial court to grant a new trial on the third ground could not be doubted, since without its approval the verdict would not support a judgment. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108.) But the peremptory instruction to return a verdict had substantially the same effect as sustaining a demurrer to the evidence, and a plausible argument is made that the ruling turned upon a naked question of law and is subject to review. The practice with respect to-the two rulings, however, is not precisely similar. It has been held that while a motion for a new trial is not a prerequisite-to an appeal from an order sustaining a demurrer to evidence-(Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299), a different rule prevails upon a directed verdict for the defendant (Darling v. Railway Co., 76 Kan. 893, 93 Pac. 612). If we-were sure that the trial court granted the new trial because. upon further consideration it had reached the conclusion that the evidence introduced tended to establish a defense, the ruling, being based purely upon a question of law, could be reviewed. But the record is silent as to why the order was made. Assuming that the answer stated a defense (and as to that matter we express no opinion whatever, the question not having been passed upon by the trial court, nor argued here) the court may have been of the opinion that although the defendant had failed to make a prima facie case in its support, the failure, even if not due to any erroneous ruling against him, was for some reason excusable, and that justice would be promoted by allowing him another opportunity to introduce evidence. “New trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial . . . has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand them as well as the trial court and the parties themselves understood them.” (City of Sedan v. Church, 29 Kan. 190, 191.) If a defense really exists a reversal of the order granting a new trial would give the plaintiff a judgment to which it was entitled only by reason of some mistake of the defendant; if none exists the plaintiff suffers nothing by an affirmance beyond the delay occasioned by the granting of the new trial and the taking of the appeal.
The judgment is affirmed.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
DAWSON, J.:
This case was here before (Underwood v. Fosha, 89 Kan. 768, 133 Pac. 866). The comprehensive statement there made need not be repeated.
It is an appeal from a judgment of the district court of Riley county in favor of A. F. Underwood, the holder of two promis sory notes executed by Henry F. Fosha, and deposited by him with Henry Quantic to be delivered to the Ashurst Oil, Land and Development Company, a California corporation, for stock in that company when Fosha had satisfied himself as to its property and prospects. The corporation was one of the blue-sky type, probably a little worse than common. Quantic was duped into a surrender of the notes by L. J. Abrams, the company’s general manager, and they passed into the hands of one W. E. Youle in consideration of his doing some oil boring for the company, and Youle traded the notes to plaintiff Underwood for a stock of goods in Tres Pinos, Cal., at some distance from the field of operations of the oil company. About the time Youle received the notes, he and Abrams formed a partnership to do the well-boring for the company, and the notes were, in effect, a payment in advance for his work, and Abrams was on both sides of the contract. He knew of the infirmity of the notes. One O.- P. Parkinson negotiated the deal between Youle and Underwood, and was paid for his services as Underwood’s agent. Parkinson was one of the organizers of the oil company, and served as its attorney and secretary. He knew of the infirmity of the notes. He and Underwood were jointly interested as organizers and directors of a corporation which was organized to conduct the store which Youle acquired for the notes. Underwood was also a stockholder in the oil company.
Both notes were acquired by Youle before maturity, and when they were transferred by him to Underwood one was not due and the other was slightly past maturity.
It would impose, on our credulity too much to ask us to believe that these notes of a Kansas farmer had passed from hand to hand in good faith in the usual course of commercial trade in the far off state of California; but the jury never suspected that anything ,was amiss and gave judgment for the plaintiff. And our jurisdiction is limited to a review of errors of law. Let us see what errors are assigned:- 1. That the evidence does not sustain the finding that Youle was a purchaser in good faith.. 2. Inconsistency in the findings of the jury. 3. That notice of the infirmities in the notes to Parkinson was notice to his principal Underwood. 4. That the special questions were illegal in form. 5. That the trial court erred in voluntarily giving an instruction after the jury had deliberated for two days on the-case.- 6. Error in refusing an instruction as to the effect of Parkinson’s knowledge of the fraud. 7. Misconduct of counsel.
Touching these in order:
The great difficulty in dealing with the first error assigned is that it asks us to trench upon the recognized province of the jury. There was ample evidence to justify the jury in finding that Youle was not a purchaser in good faith. But, on the other hand, there was also the assevérations of Youle to the contrary. Has not the jury settled the question?
. “Question 3. Did Youle acquire the notes on January 11, 1904 in good faith or in bad faith? If you find that he acquired them in had faith, then state in detail in what his bad faith consisted? Answer. Good faith.”
Not a month goes by that this court does not have to repeat the elementary rule that the supreme court can not substitute its-judgment for the judgment of the jury on an issue of fact upon which there is conflicting testimony. Counsel can not seriously expect us to violate the fundamentals of appellate procedure in this respect.
Are the following findings inconsistent?
“Q. 7. When Parkinson negotiated the trade between Youle and Underwood was Parkinson engaged in a scheme to defraud Underwood? A. No.
“Q. 15. Did the Ashurst Oil, Land and Development Company transfer the notes in suit to Youle, and, if so, was this transfer in good faith? A. They did, in bad .faith.
“Q. 17. At the time of the- purported transfer of said notes from Youle to Underwood, was Underwood acting in good faith? A. Yes.”
. Parkinson, as ah officer of the oil company and privy and confederate in the fraud upon Fosha, participated in the transfer of the notes from the oil company to Youle. He was also the paid agent of Underwood in effecting the trade of Underwood’s stock of goods to Youle for the Fosha notes. But wherever this decision may eventually lead, the findings complained of are not subject to criticism.
Did Parkinson’s knowledge of the infirmities of the notes bind his principal? This is the crux of this lawsuit. There is a well-established rule of law that knowledge of the agent, not acquired in the course of the agency and not in the mind of the agent at the time of a transaction made by him in behalf of his principal, does not bind the principal. It is also the rule, at least the prevailing and more logical one, that knowledge and notice of the agent acquired prior to his agency but which was clearly in the mind of the agent at the time of the agency transaction does bind the principal. Both sides of the rule are thus stated in Cyc. by Professor Goddard in his article on Principal and. Agent:
“The duty of an agent to inform his principal of all material facts is a duty which the law conclusively presumes that the agent has performed, and a principal is therefore affected with knowledge of all material facts of which the agent receives notice or acquires knowledge while acting in the.course of his employment and within the scope of his authority, although the agent does not in fact inform his principal thereof. Conversely a principal is not affected with knowledge which the agent acquires while not acting in the course of his employment, or which relates to matters not within the scope of his authority, unless the agent actually communicates his information to the principal.” (31 Cyc. 1587.)
“While the general rule is that notice received by an agent during his agency is notice to the principal, its .operation is sometimes held to be narrowed by the condition that not only must notice be received during the existence of the agency, but that notice to bind the principal must be received by the agent while engaged in the particular transaction to which the information relates, and that notice to the agent in a prior disconnected transaction, although for the same principal, will not charge the latter. If, however, the agency is continuous as distinguished from an agency involving distinct transactions separated by considerable periods of time, knowledge acquired by the agent at one period of the agency will charge the principal in a subsequent transaction by the same agent in which the knowledge is material. Knowledge acquired by an agent in a prior transaction will not affect the principal in a subsequent transaction in which the agent does not represent him.
“On the question whether a principal is chargeable with knowledge acquired by an agent prior to the existence of his agency the authorities differ widely, some holding that in order to charge the principal the knowledge must be acquired by the agent during the agency, and that knowledge acquired prior thereto will not affect the principal. The more logical rule, however, and that which is supported by the great weight of recent authority, is that knowledge of an agent acquired prior to the existence of the agency will be chargeable to the principal if it be clearly shown that the agent, while acting for the principal in a transaction to which the information is material, has the information present in his mind, and if the information was not obtained under such circumstances as to make it the legal duty of the agent not to divulge it to the principal.” (31 Cyc. 1592.)
In the case entitled The Distilled, Spirits, 78 U. S. 356, it was held:
“The rule that notice to the agent is notice to the principal applies not only to knowledge acquired by the agent in the particular transaction, but to knowledge acquired by him in a prior transaction and present to his mind at the time he is acting as such agent, provided it be of such a character as he may communicate to his principal without breach of professional confidence.” (Syl. ¶ 5.)
This is a most instructive case. It traces the doctrine to English sources, but we can only take space to quote part:
MR. Justice Bradley. — “The question how far a purchaser is affected with notice of prior liens, trusts, or frauds, by the knowledge of his agent who effects the purchase, is one that has been much mooted in England and this country. That he is bound and affected by such knowledge or notice as his agent obtains in negotiating the particular transaction, is everywhere conceded. But Lord Hardwicke thought that the rule could not be extended so far as to affect the principal by knowledge of the agent acquired previously in a different transaction. (Warrick v. Warrick, 3 Atkyns, 291.) Supposing it to be clear,’that the agent still retained the knowledge so formerly acquired, it was certainly making a very nice and thin distinction. Lord Eldon did not approve of it. In Mountford, v. Scott (1 Turner & Russell, 274), he says: ‘It may fall to be considered whether one transaction might not follow so close upon the other as to render it impossible to give a man credit for having forgotten it. I should he unwilling to go so far as to say that if an attorney has notice of a transaction in the morning, he shall be held in a court of equity to have forgotten it in the evening; it must in all cases depend upon the circumstances.’ The distinction taken by Lord Hardwicke has since been entirely overruled by the Court of Exchequer Chamber in the case of Dresser v. Norwood, 17 Common Bench, n. s., 466. So that in England the doctrine now seems to he established that if the agent, at the time of effecting a purchase, has knowledge of any prior lien, trust, or fraud, affecting the property, no matter when he acquired such knowledge, his principal is affected thereby. . . . On the whole, however, we think that the rule as finally settled by the English courts, with the qualification above mentioned, is the true one, and is deduced from the best consideration of the reasons on which it is founded.” (pp. 366, 368.)
(See, also, the recent case, Hess v. Conway, 92 Kan. 787, 142 Pac. 253.)
We have therefore the highest sanction for the converse doctrine, that knowledge or notice of the agent prior to the agency and clearly in the mind of the agent at the timé of the agent’s transaction for his principal is binding on the principal.
In this case there is not the slightest room for doubt that the agent had knowledge of the infirmities of the notes in mind. He had helped to accomplish the fraud. The plaintiff himself offered to prove his agent’s duplicity.
What effect does this have upon Underwood’s right to re cover upon the note which Was not due when the acquired it? The jury found that Youle acquired it in good faith. (See, also, Youle v. Fosha, 76 Kan. 20, 90 Pac. 1090.) It is the law that where commercial paper passes through the hands of an innocent holder, the assignee under him takes it free of all infirmities although he may himself be fully apprised of them. (Negotiable-instruments act, § 65, Gen. Stat. 1909, § 5311; 1. Daniel on Negotiable Instruments,'6th ed., § 803.) It follows that Underwood can recover on the note which he obtained from Youle, the innocent holder, before its maturity.
It seems also to be the law that since the past-due note had passed through innocent hands before its maturity, and thus was freed from equitable defenses, it is of no consequence that one who acquires it after its maturity may have had notice of its original infirmities; such last owner can' recover on it and does not have to meet equitable defenses. The doctrine has a logical basis. If a third party can riot take commercial paper from an innocent holder free from equitable defenses because such third party knows of its original infirmities, then the rights of the innocent holder are greatly restricted. His market for such paper would be limited to those who like himself had no notice of its original infirmities. Since the innocent holder could collect from the maker, it can make no difference to the maker into whose hands the note may pass. (7 Cyc. 790.)
In 1 Daniel on Negotiable Instruments, 6th ed., it is said:
“But there is this limitation to this doctrine; that if the holder acquired paper after maturity, from one who became a bona fide holder for value and without notice before maturity, he is then protected by the strength of his transferrer’s title.” (§ 782.)
In Lill v. Gleason, 92 Kan. 754, 142 Pac. 287, Mr. Justice Burch said :
“Section 65 of the negotiable-instruments law merely affirms the settled principle of the law merchant that wjp.en a negotiable instrument once passes into the hands of a holder by indorsement in due course the maker’s right to interpose defenses good against the payee is cut off as to all subsequent holders not parties to fraud or illegality affecting the instrument. The reason is that if a holder in due course could not invest his transferee with his own capacity to recover on the paper his property rights would be materially and prejudicially reduced.” (p. 757-)
This is all settled law. Of course, if the note should come back into the hands of the original payee, or an assignee under him who had notice of the equitable defenses and who had owned it before it passed into the hands of an innocent holder, the original equitable defenses could be maintained. But that is not this case.
Exception was taken to the form of the special questions. Any one of these will illustrate:
“Question 3. Did Youle acquire the notes on January 11, 1904 in good faith or in bad fstith? If you find that he acquired them in bad faith,1 then state in detail in'what his bad faith consisted? Answer. Good faith.”
The objection to this form of question is not clear. Lawyers and judges know that juries are not always fair. They are also inclined sometimes to overlook controlling details in a lawsuit; and as a corrective the legislature has authorized the submission of special questions, and their number and scope are within the sound discretion of the trial judge. (Laws 1913, ch. 239.)
After this cause was submitted and the jury had deliberated upon it for two days, the court voluntarily gave them another instruction. The practice is not altogether rare; it should be used with great circumspection, for the obvious reason that jurors who have deliberated long upon a case will be apt to seize on a belated instruction and give it more than its proper proportionate significance. We do not find, however, that the practice has been condemned. In 38 Cyc. 1849, it is said:
“The court may exercise a wide discretion in the matter of charging the jury, and may of its own motion recall the jury and give them additional instructions, or give such instructions when they return to court and report that they are unable to reach an agreement. It has been held that the court may exercise this power, even though the jury say that they do not want any further instructions; and after the jury has announced that they have agreed upon a verdict the judge may send them out again with further instructions before receiving the verdict.”
The defendant asked an instruction to the effect that if Parkinson, the plaintiff’s agent, had in mind the fraudulent acquisition of the notes- from their maker at the time he negotiated the transfer of the notes from Youle to plaintiff, that Parkinson’s knowledge would bind his principal. Since Youle was found to be an innocent holder, the refusal to give the instruction in the desired form was not error.
Yet another error is urged. In concluding his argument before the jury, counsel for plaintiff, a California lawyer,, said:
“Now, gentlemen of the jury, at this time, on the part of the state of California as a state, and on the part of the city of San Francisco, and on the part of myself, I want to tender to each of you and to the honorable', judge of this court, individually, a very cordial invitation to attend the' exposition in 1915, and if any or all of you gentlemen should come to this great fair I will be delighted to see you and do anything in my power to make your visit pleasant.”
Such remarks were not proper, but they could hardly be said to be so prejudicial as to require a reversal. Moreover, they do not appear to have been excepted to, nor brought to the. trial court’s attention on a motion for a new trial. And while we are mentioning this we might add that we have been considerably handicapped in reviewing this case for want of the pleadings and a formal specification of errors as prescribed by the rules of this court.
This disposes of the matters raised on this appeal, and no reversible error appearing, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from personal injuries sustained through neglect of the city to repair its streets. A general verdict was returned for the plaintiff. With the verdict the jury returned special findings of fact. The defendant moved for judgment in its favor on the special findings. The motion was denied and the defendant appeals.
As the result of a previous trial judgment was entered for the plaintiff. On appeal the judgment was reversed for failure of proof to sustain a material allegation of the petition. (Martin v. City of Columbus, 93 Kan. 79, 143 Pac. 421.) The petition is abstracted in the former opinion. After the cause was remanded the statute of limitations prevented any amendment which would change the nature of the cause of action. It is sufficient for present purposes to say that Maple avenue in the city of Columbus extends east and west. It is crossed by Florida avenue, which extends north and south. Along the south side of Maple avenue a stone crosswalk was laid across Florida avenue. Seventeen and one-half feet north of the stone crossing was a wooden culvert. The culvert wás thirty-three feet long. Just south of the culvert and near its west portion the ground was sunken and low. The traveled way in Florida avenue was a little wider than the ordinary vehicle, about ten feet wide. The petition alleged that at the place used by the traveling public the stone crossing stood about eight inches higher than the general level of the street on the north side of and adjacent to the stone crossing. Whether or not the stone crossing west of the traveled way was highef than the general level of the street there was not stated. The negligence charged was in maintaining the low place just south of the culvert and the high place at the stone walk. No negligence was charged respecting the condition of the stone walk west of the traveled way. The plaintiff was chief of the city fire department and was making a run to a fire in a fire-wagon drawn by horses. The horses were driven west on Maple avenue at a rate of speed proper on such occasions. The plaintiff in due time directed the driver to turn south into Florida avenue, which the driver did. While going m a southwesterly direction into Florida avenue the west wheels of the wagon dropped into the low place just south of the 'west part of the culvert, the east wheels of the wagon struck the projecting stone walk, the wagon was turned over on its right side, and the plaintiff was injured.
From the language of the petition, the argument of counsel and portions of the proceedings the court concluded when the case was here before that the petition should be interpreted to charge that the impact of the east wheels of the wagon upon the stone walk caused the wagon to overturn. The depression just south of the culvert into which the west wheels dropped did not overbalance the wagon. It merely created a condition which made the striking of the stone walk by the east wheels the efficient cause. As the first opinion stated, the existence of the depression accentuated or made more dangerous the protruding stone walk in the beaten track which the east wheels passed over. “That is, that the right wheels falling to a lower level in this depression, the left wheels immediately striking the crossing gave the vehicle a wrench or turn by which it was overturned.” (Martin v. City of Columbus, 93 Kan. 79, 83, 143 Pac. 421.) In a petition for a rehearing filed after the first decision was rendered the plaintiff made no complaint of this interpretation. No complaint is now made of the court’s former interpretation of the petition. On the other hand, as will appear later, the plaintiff still argues that the striking of the east wheels against the stone walk was the proximate cause of the injury, so that there is no dispute about the matter.
At the first trial the jury returned the following special finding of fact:
“Q. 12. Were the wheels on the east or left hand side of the wagon off the ground and in the air at the time the wagon passed over the sidewalk crossing? Answer. Don’t know.” (93 Kan. 84.)
At the last trial the plaintiff and the defendant each submitted to the jury a question relating to the same subject. Those questions and the answers returned by the jury follow:
“6th. Did either of the east wheels of the fire-wagon strike a high part of the crosswalk and cause the'wagon to turn over? Answer: Don’t know.
“6th. Were the wheels on the east or left side of the wagon off the ground and in the air at the time the wagon passed over the sidewalk crossing? Answer: Don’t know.”
These questions related to the fundamental subject, the proximate cause of the injury stated in the petition. To recover at all the plaintiff was obliged to prove that his injury resulted proximately from the cause stated in the petition. The uniform answers “Don’t know” mean that the plaintiff failed to establish the ground of recovery upon which he based his action. The legal effect of the answer to the question, “Did either of the east wheels of the fire-wagon strike a high part of the crosswalk and cause the wagon to turn over?” is precisely the same as if it were “No.” The general verdict can not be based on the ground of recovery stated in the petition, because the jury found specially against the plaintiff on that subject. Unless based on a ground of recovery stated in the petition the verdict can not be upheld. Consequently the findings of fact and the general verdict in favor of the plaintiff can not be reconciled. When the general verdict and the special findings of fact in any case are contradictory, the statute declares the special findings shall control. All this is elementary law, and since the special findings under consideration cover- a vital issue — the cause of the injury — and are against the plaintiff, he is defeated.
There were other findings of the jury. They were to the following effect: The team was running at the time the turn was made into- Florida avenue, and when the stone walk was crossed the team did not go beyond the center of Florida avenue in Maple avenue before turning south and was not going directly south at the time the stone walk was crossed, but traveled west of south after the turn was made; when the turn was made the left-hand or east wheels left the ground and the wagon turned up on the right-hand or west wheels; the speed of the team was reduced because of making the turn and the east wheels of the wagon settled back toward the ground after they raised from the ground on the turn; the north side of the stone crossing was from two to three inches above the ground; the west wheels of the wagon passed over the stone walk from eighteen to twenty-four inches west of the traveled way; the right-hand singletree broke when the wheel struck the walk; the wagon was not overturned because of the abrupt turn or the negligence of the driver, and the wagon would have turned over if the team had been slowed down to proper speed when the turn was made and when the wagon passed over the crossing.
The district court denied the motion for judgment because it held the special findings to be inconsistent with each other. This ruling was made, the court said, because of the interpretation given by this court to finding No. 12, returned at the first trial, which finding was to the same effect as the two findings numbered six returned at the second trial. The interpretation given finding No. 12 in the former opinion was that it negatived the proximate cause of the injury stated in the petition. That interpretation was correct and is the same as must now be given to the two findings numbered six. There is no intimation in the former opinion that the special findings returned at the first trial were inconsistent with themselves and the reversal was not based on that ground.
The defendant’s position has always been that, considering the speed of the team, the turn was made too abruptly, the east wheels rose in the air, never settled back, and as the team took a southerly course down Florida avenue the wagon went on over. When his petition was drawn the plaintiff no doubt understood that he would be obliged to meet this defense. The plaintiff and his witnesses testified that the wagon did tilt, both juries found such to be the fact; and there is no doubt about it. If this initial lifting of the east side of the wagon when the turn was made were not arrested in some way the plaintiff had no case against the city. The plaintiff’s explanation was that the east wheels settled back toward the ground. This settling back process necessarily occurred while the team was galloping on, so the depression just south of the culvert was minimized to a mere condition, and the right to recover was staked on the fact that the east wheels struck the precipice presented by the north side of the stone walk in the traveled way. There was evidence that the east wheels did not settle back at all, and evidence that they did settle back. ■ In their special findings the jury went with the plaintiff all the way to the stone walk, but they did not know whether the east wheels were in the air or not when the walk was reached and did not know whether the east wheels struck the walk or not. This court is unable to detect any inconsistency whatever in the findings.
The only inconsistency in the special findings which the-plaintiff is able to suggest is indicated in the following extracts from his brief:
“In other words the jury by its answers found that the speed of the team, the acts of the driver or the character of the turn as alleged by defendant, had nothing to do with the wagon turning over; that after the east wheels raised from the ground at the turn they settled back again as they went toward the cross-walk but they did n’t know whether the east wheels struck the walk. We ask, in the name of common sense, if the tip was not enough to turn it over out at the turn on the north side of Maple Street and the wheels settled back as the wagon went from there on its fifty foot journey to the cross-walk, what did turn the wagon over if it was not the contact between the east wheels and the walk?”
“We think the material question was submitted to the jury when it was asked whether or not the east wheels settled back after the turn and there is involved in this question and answer the very substance of the question and answer numbered ‘6.’ When findings No. 6 are read in the light of the answer to plaintiff’s special question No. 2 that the east wheels did settle back the force of their answer, ‘Don’t know,’ to question numbered ‘6’ is destroyed, and especially when this is considered in the light of the general verdict and common logic — the law of gravity.” .
This is merely an argument on the weight of the evidence relating to the disputed question of how much if any at all the east wheels settled back after they were thrown into the air at the turn. Doubtless the same argument was made to both juries whose findings have been brought to this court by appeal. If so, the argument convinced neither one. Both juries refused to find that the east wheels were on the ground, or near enough to the ground to strike the projecting stone walk, when the wagon reached the walk. Reading the findings together, they are that after the east wheels were thrown into the air they settled back some but not far enough to touch the elevated stone walk when the wagon passed over it.
The plaintiff cites the decisions relating to inconsistency between special findings, conflict between special findings and the general verdict, and the duty of the court when dealing with those subjects. The court is very familiar with the decisions and the doctrines they establish. Special attention is called to the cases of A. T. & Santa Fe Rld. Co. v. Campbell, 16 Kan. 200, and Mo. Pac. Rly. Co. v. Holley, 30 Kan. 465, 1 Pac. 130. They presented questions arising in the general field of the law which embraces special findings and the duty of the court concerning them, but questions quite different from those presented here. Here the findings are few and simple. Those which determine the case relate to one of the “issuable, essential and principal facts.” There is no suggestion that the jury did not do its best. Two juries have encountered the same difficulty and have arrived at the same result. There is no finding of fact out of harmony with the findings negativing the allegation of the petition to the effect that the wagon was overturned because the east wheels struck the stone walk. That was the sole ground of recovery proposed in the petition, and findings destroying the only ground of recovery relied on can not be harmonized with a general verdict allowing recovery.
If the court were to speculate about the matter, this theory of the general verdict suggests itself, which harmonizes in point of fact with the special findings: The wagon was moving in a southwesterly direction and not toward the south. If the east front wheel of the wagon were on the ground or near enough to the ground it would strike the walk slightly ahead of the west front wheel. The evidence did not prove that this occurred. On the other hand the west wheel did strike the walk and the horse on that side broke his singletree. With the east wheels in the air but settling back, the west wheels dropped into the depression south of the culvert. Almost immediately afterward the walk was reached. The center of gravity of the wagon being disturbed and being thrown to the west toward the line of the west wheels, which were carrying all the weight, the momentum of the wagon was great enough to carry it over on its right side when the arresting impact of the west front wheel with the walk occurred. With the soundness of this theory the court is not concerned. It is merely suggested by way of explanation of the general verdict when read with the special findings.
If based on the theory suggested the general verdict can not stand. As pointed out in the former opinion, there was no charge in the petition that the street was defective west of the traveled way where the west wheels struck the walk. The only negligent obstruction created by the stone walk was located at the place where the east wheels passed over it, that is, where, according to the findings, the east wheels did not strike it. The plaintiff still contends that the earth was solid and flush with the walk where the west wheels passed over it. Witnesses testified to this condition. There was, however, some evidence that the walk projected a little above the surface of the ground, and this evidence doubtless lies at the basis of the answer, “When the wheel struck the walk,” given by the jury to the question “What caused the right singletree to break?” Of course the jury referred to the right wheel because they refused to say that either left wheel touched the walk. Whether the earth were flush with the walk where the right wheel struck or not, no negligence was charged respecting the condition of the street at that place. The city has never been called upon to defend the condition of the street at that place and no complaint is now made of the condition of the street at that place.
The result of the foregoing is that the suggested theory of the general verdict carries it outside the issues. The fact that no negligence was charged or is relied on with respect to the walk or street where the right wheel passed over the walk precludes recovery on that ground. Negligence in maintaining the depression south of the culvert was not charged in the petition either as an independent or as a proximate cause of injury, and is not relied on either as an independent dr as a proximate cause of injury. This depression was described as “a swag,” a sway between the culvert and the walk which, when the right-hand wheels went into it, helped to make the stone walk present itself as a dangerous obstruction to the left-hand wheels. The efficient cause of the accident was placed at the walk and in front of the left-hand wheels, not back at the south side .of the culvert and in front of the right-hand wheels, and the jury could not put into the case a ground of liability which the plaintiff did not put into it. Besides this, as the former opinion stated—
“Any negligence of the city in allowing the alleged depression, just south of and near the west end of the culvert, to remain, over which the right wheels passed, is not material unless a collision with the- crossing by the left wheels occurred. Such negligence, if any, was unrelated to the catastrophe since it is contended '.that it was the collision of the left wheels that caused it.” (93 Kan. 86.)
Whatever the theory of the - general verdict, it rests on something else than the cause of injury stated in the petition, and the special findings acquit the defendant of liability on the only ground on which the plaintiff might recover; therefore, the defendant is entitled to judgment. (McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999; Jolliff v. Railway Co., 88 Kan. 758, 129 Pac. 1178.) In the Adams case the special findings acquitted the defendant of the negligence charged, and disclosed that the plaintiff was guilty of contributory negligence; therefore, the defendant was entitled to judgment on two grounds. Either one was enough. In the McBeth case a finding of negligence not charged or proved acquitted the defendant of the negligencé charged, and because so acquitted the defendant was entitled to judgment. The Jolliff case is quite conclusive. In order to recover the plaintiff in that case was required to prove that lights were out because in bad condition and not merely because they were not turned on. When asked to state whether the lights were out of order or whether they were in order but were not turned on the jury answered there was no evidence to show why they were not burning. The court quoted the rule as it was stated in the second paragraph of the syllabus of the early case of Morrow, et al., v. Comm’rs of Saline Co., 21 Kan. 484:
“Where to a question the jury respond ‘We don’t know,’ or in any like manner, such an answer is tantamount to a simple denial, for if from the testimony the jury do not know whether an alleged fact exists, it follows that the testimony does not show that it exists, and therefore for the purposes of the case it does not exist.”
It was then held that a special finding of failure of proof concerning a fact essential to recovery precludes recovery, and judgment was ordered on the special finding notwithstanding a general verdict in favor of the plaintiff had been rendered.
“Here the plaintiff was required to show to the satisfaction of the jury that the reason why the lights in-the shop were not burning at the time of his injury was because they were out of order, and not simply because they were not turned on. The jury found that this fact was not proved, and the finding is fatal to a recovery.” (Jolliff v. Railway Co., 88 Kan. 758, 761, 129 Pac. 1178.)
So here. When the cause was returned to the district court it was returned with an authoritative interpretation of the allegations of the petition, binding on-the trial court and the trial jury. That interpretation coincided with the plaintiff’s own theory of his case, and was that the depression south of the culvert was inconsequential unless the east wheels of the wagon struck the crosswalk and that the striking of the crosswalk by the east wheels of the wagon constituted the proximate cause of the injury. Proof of the fact that the east wheels of the wagon struck the crosswalk was indispensable to recovery. The plaintiff failed to establish the fact, and the jury so found by a special finding which the statute declares superior to the general verdict. The finding is fatal to recovery.
The plaintiff says that if the defendant be entitled to judgment now it was entitled to judgment when the case was here before, but that when the case was here before a new trial was ordered. A motion by the defendant for judgment on the special findings was presented by the former appeal. No reference to it is contained in the former opinion. It is not now necessary to give the reasons which led the court to omit mention of the motion in the opinion and to grant a new trial. If the court simply ignored the motion and gave the plaintiff another opportunity to prove his case, he ought not to complain. There can now be no justification for continuing the litigation.
The judgment of the district court is reversed and the cause is remanded with instruction to enter judgment for the defendant on the special findings of fact. | [
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The opinion of the court was delivered by
Mason, J.:
The owner of a quarter section of land devised it to two of his sons in trust, the income to be used in their discretion for the support of a third son (William H. Harrison) and his wife during their lives. The trustees allowed Harrison and his family to occupy the property and enjoy its use, living in a dwelling house thereon. The house was nearly destroyed by fire. The only insurance was carried by Harrison in his own name. He collected and used the money in rebuilding. One of the trustees knew of the reconstruction while it was going on, and knew that the lumber used was furnished to Harrison by the plaintiffs, but neither had anything to do with the transaction. A balance of the bill for the lumber, amounting to a little over $200, remained unpaid. The firm that furnished it filed a mechanic’s lien against the property, and in an action to foreclose-it were awarded a judgment from which the trustees appeal.
The lien was awarded solely against the interest of William H. Harrison and his wife, which was defined to be that of tenants at will, with a right to the use of the real estate, or to its rental value, for life. The trustees make no objection to the formal declaration of a lien against the interest of the occupants of the property, but insist that as they are merely tenants at will, the purchaser under a sale based thereon could acquire nothing of any substantial value.
No lien was adjudged against the land itself, or the interest of the trustees, and none could have been, since the statute requires the material to have been furnished under contract with the owner. His knowledge of its being furnished is not sufficient. (Lumber Co. v. Washington, 80 Kan. 613, 103 Pac. 80; Potter v. Conley, 83 Kan. 676, 679, 112 Pac. 608; 27 Cyc. 74; Boisot on Mechanics’ Liens, § 293.)
Assuming that the right of William H. Harrison and his wife to enjoy the income of the property is of such character that it might otherwise be reached through the machinery of the mechanic’s lien statute, the question arises whether it is protected therefrom by the terms of the will. The testator’s purpose was thus expressed:
“To give said trustees the privilege to expend said net income at such time or times and in such manner as they or either of them may in his judgment consider most to the benefit, advantage and comfort of my said son and his wife and the survivor of them and said net earnings shall not be subject to the order or assignment of or by said William H. Harrison or his wife or the survivof of them, nor shall the same be subject to pay their debts on execution, attachment or otherwise, but is a humane provision of mine to keep them from absolute want or becoming a public charge or charges in their declining years.”
These words are sufficient to create a “spendthrift trust,” rendering the income of the property exempt from control by the Harrisons, and from seizure for their indebtedness, a device the validity of which is recognized in this state. (Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030.) Circumstances might perhaps arise in which the income of such a trust, while still in the hands of the trustee, would be chargeable with the debts of the beneficiary. Trustees holding a fund the income of which was to be .used by them for the support of an improvident person, have been required in equity to apply a part of it in payment of necessary medical services rendered to him with their knowledge. (Sherman v. Skuse, 166 N. Y. 345, 59 N. E. 990.) But here it can not be said that the trustees were under any enforceable obligation to rebuild after the fire, or to pay for the expense thereof, out of the earnings of. the property, although to have done so would have been in accordance with the spirit of their trust. The lien of the plaintiffs therefore can not attach to the income of the property.
It is said that a mechanic’s lien may attach to a building, apart from the land (27 Cyc. 226), although the decisions to that effect are for the most part based upon statutes materially different from ours. It attaches to a leasehold interest, and even where this is only that of a tenant at will the lien covers any building or improvement which the tenant would have a right to remove. (Hathaway v. Davis & Rankin, 32 Kan. 693, 5 Pac. 29; Lumber Co. v. Malone, 8 Kan. App. 121, 54 Pac. 692 ; Ombony v. Jones, 19 N. Y. 234; Boisot on Mechanics’ Liens, § 295; Phillips on Mechanics’ Liens, 3d ed., §§ 191, 193.)
The question whether the plaintiffs have a lien upon the building, or any part of it, depends upon whether a right of removal existed in the tenants. As found by the court, the dwelling house originally consisted of a two-story main portion, which was entirely destroyed by the fire, and a one-story ell, which was saved. In the reconstruction a new two-story part was erected, to which the old one-story part was joined, a second story being built over one room, the whole structure constituting one dwelling. Some old material, not of much consequence, was used in the reconstruction, and some of the new material purchased from the plaintiffs was used in the second story over a part of the ell. The new part could only be separated from the old by tearing it away, but this would leave the old part in as good or better condition than it was in just after the fire, but uninhabitable.
The right of the occupant of real property to remove improvements which he has placed upon it is more favored between tenant and landlord than in the case of any other relationship. (13 A. & E. Encycl. of L. 639.) The sole test has sometimes been said to be whether an injury to the freehold would result from a removal, but this is regarded as too broad a statement (supra, p. 647), although supported by authority so far as relates to trade fixtures (supra, p. 642; Van Ness v. Pacard, 27 U. S. 137). The presumed or “legal” intention of the occupant is often controlling in determining whether his improvement is to be deemed a part of the realty. (13 A. & E. Encycl. of L. 597-599.) A purpose to increase the value of the real estate at his own expense is not readily to be attributed to the ordinary tenant at will, but here the circumstances are exceptional in that the tenant, although having no ownership, reaps a benefit from the improvement, whether or not he remains in possession. Under the facts found the whole of the reconstructed building must be regarded as a part of the realty, no part of which is owned by the tenant or subject to removal by him. We are constrained to hold that the mechanic’s lien attaches neither to the land or its income, nor to the building, and since a sale of the leasehold of a tenant at will would be entirely barren of practical result, the plaintiffs are without remedy against the property.
The judgment is reversed with directions to eliminate therefrom the portion determining the interest of Harrison and his wife to include a right to the occupancy or income' of the property — a change which will render it ineffective. | [
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The opinion of the court was delivered by
Allen, J. :
Although we have before us a record covering 1,842 pages, and briefs containing nearly 300 pages, and although many errors are alleged by counsel for the plaintiff in error and discussed at great length, and although many defenses are insisted on by counsel for defendants in error, the view we take of the case and the conclusions reached reduce it to a comparatively small compass. A very great number of rulings of the court of which the plaintiff in error complains related to the admission and rejection of testimony. The case was tried mainly on depositions and other written evidence, and we think counsel for plaintiff in error are right in claiming that substantially all of the testimony bearing on the law governing the descent of lands belonging to members of the Shawnee tribe of Indians is contained in the depositions and writings, which this court is required to examine and consider as though the question were first submitted here — it must weigh conflicting evidence, and determine the disputed question of fact for itself. We shall therefore disregard all rulings of the district court as to the admissibility of testimony, and consider all that was offered that we deem competent and material, without reference to the rulings of the trial court.
Complaint is made of the refusal of the court to pass upon exceptions to the depositions before the trial was commenced. It appears that, after proceeding for a short time with the reading of the depositions, the court offered to set aside the trial so far as it had proceeded, and to hear the exceptions to the depositions if the plaintiff desired, to which action the defendants consented, but the plaintiff declined to have the action taken, claiming that the defendants had waived all exceptions to the depositions. While it was error for the court to refuse to pass upon the exceptions when requested so to do before the commencement of the -ferial, we do not think the action of the court and the defendants in reference thereto amounted to a waiver on the part of the defendants of their exceptions ; but, at all events, this matter appears to us now altogether unimportant, for we shall consider all competent evidence to be found in the depositions.
There was some conflict in the evidence as to the relationship of the parties, but on this question the findings of the court are favorable to the plaintiff. We deem it unnecessary to trace the relationship of all of the parties under whom the plaintiff claims to James Blacksnake, the patentee. It is sufficient to say that they are the heirs of Robert Williams, his half-brother, and the real question decisive of the case is, whether or not these heirs had, at the time they executed the conveyance to Hannon, a subsisting half interest in the lands. The question as to who are the heirs of the deceased Shawnee Indian must be determined by the laws, usages and customs of the Shawnee tribe of Indians. (The Kansas Indians, 5 Wall. 737 ; Brown v. Steele, 23 Kan. 672.) Very much of the great mass of testimony before us bears on the question as to what the Shawnee law or custom was. If Robert Williams, as well as William Williams, had survived his deceased half-brother, James Blacksnake, it is clear that the two half-brothers would have inherited equally. The plaintiff contends that the widow and child of Robert Williams, who died before James Blacksnake did, took the same share of his estate that Robert Williams would have taken if living. On behalf of the defendants, it is claimed that in such a case the whole estate went to the nearest of kin ; that Pish-é-qua-pe-a-se, the widow of Robert Williams, could not inherit from 'James Blacksnake in any event, because she was not of his blood, and that Koto-wah-cum-se, the daughter of Robert Williams, was one degree further removed from Blacksnake than the living half-brother, and, therefore, that she could not claim any part of his estate.
The evidence shows that prior to the treaty of 1854 the Shawnees never owned land in severalty, and, therefore, did not and could not have any laws, usages or customs with reference-to the transmission by descent of title to lands. Title to land, in the sense it is used in our law, was never conceived of by the primitive Indians. The idea of absolute ownership for all time to come of a portion of the face of.the earth by an individual is the invention of civilized man, and the rules and principles adopted, under which the right of future occupants and owners is made to depend on the will of the present owner, or on relationship to him by blood or marriage, never suggested themselves to the minds of any primitive people. By the savage, occupancy for the time being is all the right to the face of the earth recognized. It is only as they learn, through contact with the whites, the advantages to be gained through paper titles to the soil, that the Indians come to understand and comprehend the meaning of individual ownership and the advantages of inheritance. The patents issued under this treaty were not executed until 1859, and not delivered until I860, but the allotment was made in 1857. As James Blacksnake died before the 28th day of July, 1862, there were only five years for the enactment of laws or the growth of customs governing the descent of real property before the descent was cast by the death of Blacksnake. This case must be determined by the laws in force in 1862:
David Daugherty, a witness for the plaintiff, testified that a meeting of the Shawnees was held at Chillicothe, Johnson county, immediately after the allotment, for the purpose of determining when and how their lands would go in case of the death of an Indian; that he was present at the meeting ; that he lived three-quarters of a mile from the place where it was held, and went back and forth; that the council was in session at the time ; that Captain Parks was the principal chief, and Blackhoof the second chief; that right after the meeting Parks got up on a wagon, and explained to the people what they had done, and that in case of the death of an Indian the property would go to the nearest of kin. The witness explains his understanding of the meaning of the term, and testifies that Captain Parks's own estate was divided between his children and grandchildren. No record was introduced in which the proceedings of this council meeting were recorded, and whether any record was in fact made is not shown. The first entry on the subject appearing on the records produced is as follows :
“Resolution of the Council, first Monday, Decern ber, 1868 : Resolved, that the property, personal as well as real estate, of a deceased member of the Shawnee tribe of Indians, shall descend to a member or members of said Shawnee tribe of Indians who is or are of the nearest of kin by blood to deceased, and none others; but if deceased have no relative or relatives by blood who is or are members of said Shawnee tribe of Indians, the property, personal as well as real estate, shall revert to the Shawnee tribe of Indians, and be disposed of, and proceeds applied for the benefit of said Shawnee tribe of Indians as the Shawnee Council may direct. Approved this first Monday, December, 1868. Graham Rogers.
“Attest: S. M. Cornatzbr, Council Clerk.”
The next action of the council appearing of record, affecting the law governing the descent of property, was on the 8th day of May, 1889, when an act was' passed, or adopted, declaratory of the Shawnee law governing the descent of lands, and also of the power of the chiefs in certifying to the heirship of lands. This act is favorable in all respects to the contention of the plaintiff. It denies that the chiefs ever had power to determine who were the heirs of a deceased Indian, or to issue any certificate which should have the effect to defeat the claim of the real heirs, and asserts that the law was, and always had been, that the descendants of a deceased brother took the same share of the estate of- a deceased brother, or half-brother, that a surviving brother would take. This act, or resolution, was adopted by a full council, and signed by both chiefs and all the councilmen. This meeting of the council, however, it will be noticed, was held after the execution and approval of the deed to the plaintiff, and after the commencement of this action, the petition in this case having been filed on the 19th day of November, 1888. On the 16th day of January, 1890, another meeting of the council was held, at which the claims of the Indians under whom the plaintiff claims were presented for examination and consideration of the council, and a finding was made and signed by both chiefs and all members of the council showing the relationship of the parties to be as the plaintiff claims, and determining that they were heirs to one-half of the land in controversy. There is oral evidence to the effect that the law of Kansas governing the descent of lands was adopted, but at -what date is not shown. The evidence, so far as it goes, indicates that this action was not taken until after descent was cast by the death of Blacksnake.
Many persons who were or had been chiefs or members of the council were examined, and testified by -deposition with reference to the Shawnee laws and customs. They all stated that where an Indian died leaving neither widow or issue, nor father or mother, his lands would go to his nearest kin or nearest relation. But when, their attention is directed to particular cases they seem to recognize the right of inheritance by representation of those related in a more remote degree, and deny that the nearest of kin is entitled to inherit the whole to their exclusion. Their testimony indicates that grandchildren took by representation with children of a deceased person, and that nephews and nieces inherited the share which their deceased parents would have taken if living, although there were surviving brothers and sisters. The testimony of these witnesses is not very satisfactory. The able and adroit counsel who examined them succeeded in extracting contradictory answers. The counsel conducting the examination appears to have had little difficulty in obtaining the answer he sought. The witnesses were wholly unable to cope with the refinements invented by counsel in their in-
quiries concerning Shawnee laws of real property. Counsel on either side may now point with a fair degree of confidence to much testimony supporting almost any conceivable theory as to the Shawnee law of descents. We must view all this testimony in the light afforded us by our knowledge of the state of the tribe at the time, the number of its members, their intelligence, their exceedingly simple and primitive government, and their want of understanding of the white man’s laws relating to real property. It seems altogether probable that but little thought was given to the descent of lands to collateral heirs, and that a determination that, where there were no members of the immediate family of the owner surviving him, the land should go to the nearest of kin, would be about as far as the matter would probably be considered. The announcement testified to as having been made by Captain Parks after the session of the council at Chillicothe seems altogether probable and reasonable. The same idea appears in the resolution of 1868, and in the testimony of the witnesses when undertaking to state the general rule.
The governmental system of the Shawnee tribe was very simple. Two chiefs and five councilmen possessed the executive, legislative and judicial power of the tribe. The chiefs presided at the council meeting, and were the executive heads of the tribe. In the passage of a law the concurrence of the council and chiefs was required. In determining the law of the tribe in 1862, it must be apparent that no safe guide is afforded us. There is no written law enacted before that time to be interpreted, nor, of course, could so simple a community have records of judicial expositions of their customs which could afford us much light. We find nothing in all the testimony on which we can safely rest. It must be apparent that no custom governing any Considerable number of cases of descent of lands could possibly have been established in a little community of a few hundred simple Indians in the brief period of five years. The witnesses evidently had no knowledge of usages and customs, where there were no instances in which usages could have been established. We are in no better position to find a custom than were the witnesses. It must be evident that we can do little more, if we rest our conclusion on the testimon}^ than conjecture what the rule was, and make that conjecture in the light of a reasonable certainty that there was in fact no custom and no established rule beyond, perhaps, the very general one declared at the Chillicothe meeting, that the property should go to the next or nearest of kin.
In determining who is an heir of a deceased person it is not only necessary to know what the law is, but it is also necessary to know the relationship of the parties.
The evidence shows that the Shawnee laws of marriage and divorce were very lax. All that , ,. , was necessary to constitute a marriage was that the parties should live together by agreement as man and wife. All that was necessary to constitute a valid divorce was that they should separate. After such separation, either party was at full liberty to contract another marriage, and these marriages and divorces might go on without limit. Children born of the parties were regarded as legitimate, and the woman with whom a man lived as his wife at the time of his death was regarded as his widow, and entitled to inherit a share of his property. In one particular, at least, the Shawnee law of descent was always different from that of Kansas, for only a member of the Shawnee tribe could inherit. Article 9, of the treaty of May 10, 1854, is as follows: “Congress may hereafter provide for the issuing to such of the Shawnees as may make selections patents for the same, with such guards and restrictions, as may seem advisable for their protection therein.” And by the act of March 3, 18.59, (11 U. S. Stat. at Large, 431,) it is provided that patents may issue to such Indians and their heirs upon such conditions and limitations, and under such guards or restrictions as may be prescribed by the secretary of the interior. Ko-to-wah-cum-se, according to her own testimony, was about 30 years old in May, 1889, when her deposition in this case was taken. She would then have been only about three years old at the date of the death of James Blacksnake. While it is apparent from the testimony that the head men had a pretty general acquaintance among the members of the tribe, it would not have been an easy matter for a stranger to make an investigation into a question of heirship where the deceased Indian had no family of his own. The rules prescribed by the secretary for the conveyance of lands patented under the treaty require that the chiefs certify to the identity of the persons executing the conveyance, and, where they claim to be heirs of a deceased reservee, that the chiefs should certify that the persons executing the conveyance were the only heirs. It must be conceded that the secretary had no power to make any rule, governing the descent of property, or to make any person an heir who was not such under the Shawnee law. But it appears from the testimony that the Indians did accept, recognize and act upon the rules promulgated by the secretary, and that the matter of certifying as to who were heirs of deceased Indians was confided exclusively to the chiefs. The council did not undertake to control them in the discharge of this duty, and there is testimony that the chiefs had power to decide who the heirs were to lands of a deceased Indian. In this particular case, the chiefs certified that William Williams was the sole heir of James Blacksnake, the patentee. If the Shawnee law was that the property descended to the nearest of kin, this certificate was correct, for William Williams was one degree nearer to James Blacksnake than Koto-wah-cum-se, and Pish-a-qua-pe-a-se was not of his blood at all. Ko-to-wah-cum-se was but a little child. Charles Bluejacket, one of the chiefs, who certified to the deed under which the defendants claim, testified that when he signed this certificate he believed that William Williams was the only heir of James Blacksnake, but that he did not know that Robert Williams left a widow and child living ; that he ‘ ‘ did not know who his wife was exactly because they had moved to the Black Bob settlement and he picked up a wife — a woman there, and married and lived with her.” He did not know whether they had any children or not. Blackhoof, the other chief, was dead at the time this deposition was taken.
The deed to Gabbart and Baldwin remained unchallenged for 25 years, until the plaintiff sought to buy up the interest in the lands of those under whom he claims. During that time the city of Argentine grew up ; railroads were constructed across the lands, and they became very valuable. We are asked J J to hold that the statute of limitations applies, and that the plaintiff’s cause of action is barred by lapse of time. If these were really Indian lands, they were governed by the Shawnee law and not by that of Kansas, and our statute of limitations cannot be invoked. But the fact that the defendants’ title has remained unchallenged for a quarter of a century is a matter worthy of some consideration, and entitled to some weight in determining a disputed question of right. That an Indian may be guilty of laches in failing to assert his rights, see Felix v. Patrick, 145 U. S. 317. After the lapse of so long a period of time, we think that very great weight should be given to the certificates of the chiefs as to the law and the fact of heirship, and that where there is no claim of fraud, and where the proof in reference to what the law was is so vague and indefinite as it is in this case, the determination of the chiefs, made at the time and when the opportunities for determining both the law and the fact were so much better than are now afforded us, ought to have controlling weight in the decision of the case. Of course, in case of fraud like that of Richardville v. Thorp, 28 Fed. Rep. 52, relief might be afforded the defrauded heirs. But in this case there is nothing to indicate that the chiefs acted with anything but good faith, nor is there any proof that G-abbart and Baldwin knew at the time they bought the land that Blacksnake had any heir other than William Williams.
We do not deem it necessary to comment at length on the proceedings of the Shawnee chiefs and council had after this action was commenced. Nor can it be claimed that the investigation made under the direction of the department of the interior for its own information, and to govern the action of the secretary with reference to approving the deed to the plaintiff, has any binding force upon us. The case must be decided under all of the testimony, and the important question to determine is, Who were the heirs of James Blacksnake under the Shawnee law as it stood in 3862? We think it safest to adhere to the determination made and certified to by the chiefs at that time, and must hold that William Williams was the sole heir, and entitled to the whole of the land in controversy.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Martin, C. J. :
On August 8, 1890, Charles W. Hill died from the effects of injuries sustained at about 11 o’clock on the night of July 80, 1890, at a crossing of the railway of the plaintiff in error some two miles southwest of Nortonville, and about a mile before reaching his home, which was north of the crossing. At the May term, 1892, his widow, as administratrix, recovered a judgment against the plaintiff in error for $5,000, and this judgment is the present subject of review.
Hill left home in the morning, driving a horse which was hitched to a two-wheeled cart. ITe went first to Nortonville, with a view of going from there to Valley Falls. At Nortonville he met R. J. Eshom, who requested him to bring certain small castings belonging to a machine, and to leave them at his farm, in possession of a tenant. Pie got the castings at Valley F'alls, and was last seen there about seven o’clock in the evening. He left the castings at Eshom’s farm at some time between 10 and 11 o’clock, except a small piece, which was afterward found in his vest pocket. From Eshom’s farm he went -west to a road running north and south, which was the nearest way home, although not the best nor the most-traveled highway. The regular passenger-train from St. Joseph and Atchison to Topeka left Nortonville on time. At the place where the casualty occurred the train was running from east to west on a down grade and at a rapid rate of speed. About 800 or 900 feet east of the crossing the track curved to the north, and the train was hidden from view by the conformation of the ground. In driving north toward the crossing, however, a train might have been seen for a considerable distance at different points of view if it had been at certain places when those points were reached. South of and near the crossing there was a small bridge spanning a gully; along which willows and high weeds grew, and these tended to obscure the view of the train when near the track. The crossing was several feet above the level of the highway, and there was a steep ascent in crossing it. There was considerable evidence that the statutory signals were not given for the crossing, and the plaintiff in error relies chiefly upon the contributory negligence of Hill as a defense to the action.
There was no eye-witness to the casualty except Hill himself. Upon arriving at Valley Falls, the engineer discovered that the flagstaff had been struck by something ; that it was in an inclined position, and a portion of it gone. This flagstaff was a few inches from the outside of the bunting beam, on the front portion of the engine. On arriving at Topeka the engineer made further examination, and found evidences on the left side of the engine that it had struck a horse. He then remembered a slight shock at the crossing in question, and at his request the conductor telegraphed back to the agent at Nortonville to get the section-foreman and a hand-car and go to the crossing to see what injury had been done. This order was obeyed, but nothing was found that night. The next morning, however, the section-men found that Hill’s horse had been knocked a considerable distance and killed ; that the cart was broken, and Hill had been thrown into the gully and badly injured. The section-men testified that, when asked how the casualty happened, he answered that he was drunk, and that he was pretty full. Mrs. Hill and a physician were sent for, and were soon on the ground and Hill was taken home, but he never seemed able to give any account of the occurrence after his conversation with the section-men, which was only of the nature above stated. There was evidence that Hill drank some intoxicating liquor while in Valley Falls, and the jury found that he was slightly intoxicated there, but not at the time he was injured. The distance from Valley Falls to the crossing was eight or nine miles. It was a bright moonlight night, the sky was clear, and there was a light breeze from the southwest. The jury found that Hill both looked and listened for the train before attempting to cross the track, but there was no evidence that he did either.
The court instructed the jury that it was the duty of Hill to look and listen for an approaching train before 'going upon the track, and that if he failed to do so the administratrix could not recover in the action. In explanation of this the court said:
“ In considering the testimony in the case, as I have said to you casually, you have a right to take into consideration whatever common knowledge you have as intelligent men of how men do conduct themselves under the circumstances alleged to have surrounded this injury. And you have a right to consider all the testimony in determining whether he did do what the law required of him, judging it from the circumstances, because there is no testimony of an eye-witness as to what was actually done — from all the circumstances, taking into consideration the instincts of the man, his instinct of self-preservation, and anything else that would throw any light upon the question of whether or not he did take the proper precaution before entering upon this crossing.”
No exception was taken to this instruction, and, besides, we think it it well supported by the authorities. In Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 591, this court held that a jury may infer ordinary care and diligence on the part of an injured person from the love of life or the instinct of self-preservation and the known disposition of men to avoid injury. But this presumption is overthrown when there is direct proof to the contrary. See also, C. R. I. & P. Rly. Co. v. Groves, 56 Kan. 601, 613; Way v. Illinois Central Rld. Co., 40 Iowa, 341, 345. Counsel for plaintiff in error claim that the evidence conclusively shows contributory negligence on the part of Hill; that the demurrer to the evidence should have been sustained, and, that being overruled, the instruction requested for a verdict in favor of the railroad company should have been given. Numerous cases are cited in support of this position, while counsel for defendant in error cite other cases tending to support the contention that the case was a proper one for the consideration of the jury. We deem it unnecessary to review the cases on either side. In this case the crossing was an obscure and dangerous one for several reasons. The highway was badly grown up with tall weeds and willows, the track was several feet above the general surface of the highway, the train was going at a very rapid rate, and yet perhaps making little noise, no steam being necessary, and the breeze was in a direction to carry away the sound. We do not know that Hill was familiar with the crossing, nor but that he may have had difficulty with his horse on the approach of the train. The presumption is that he exercised ordinary care, and we cannot say that this was overthrown by the evidence, and therefore we think that the case was a proper pne for the consideration of the jury-
The judgment will be affirmed.
All the Justices concurring. | [
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Allen, J.
The questions presented to this Court arise from the trial of an interplea, filed by the plaintiff in error in an action brought by R. L. McDonald & Co. against W. B. Swisher, coroner of Sherman County, to recover a stock of merchandise theretofore owned by W. H. Daly. The Sherman County Bank claimed the property under a chattel mortgage executed to it by Daly. Questions with reference to the validity of the chattel mortgage under which McDonald claimed were decided in the case of McDonald v. Swisher, ante, p. 205, 45 Pac. Rep. 593. It was claimed by Swisher, the coroner, representing attaching creditors, that the mortgage to the Bank was fraudulent. The Court so held on the evidence.
The principal contention on the part of the plaintiff in error is that the finding that the mortgage to the Bank was fraudulent is not supported by the evidence. On reading it we find sufficient evidence to support the finding of the Court.
Complaint is made of several rulings with reference to the introduction of testimony. We find no substantial error in any of them. Certain witnesses were permitted to testify to conversations had with Daly in the absence of all the representatives of the Bank, and of which it does not appear that the Bank, or any person connected with it, had any knowledge. It is claimed that these conversations were inadmissible under these circumstances, but we hold otherwise. In showing the invalidity of the Bank’s mortgage it was necessary to prove, first, Daly’s fraudulent purpose ; second, that the Bank either actually participated in the fraud, or had knowledge of it, or of such circumstances as would put a reasonable man on inquiry concerning it; third, that, by taking the mortgage, the Bank aided him in carrying out his fraudulent design. Daly’s fraud could be shown by his acts and declarations made at the time of or prior to the execution of the mortgage. Knowledge of Daly’s fraudulent purpose by the officers of the Bank might then be shown by any competent evidence. There was no necessity of proving knowledge of each particular step taken by Daly in the accomplishment'of his design. It was sufficient if the 'Bank knew by any means that his purpose was to defraud his creditors, and that it, in taking the mortgage, attempted to aid him in its accomplishment. The testimony of A. H. Ellis as to the statements made by Daty after the execution of the mortgage, and which were in the nature of admissions, was improperly admitted, but the error does not seem important, and is insufficient to warrant a reversal. The fact sought to be established by this testimony was abundantly shown by other evidence in the case, and does not seem to have been disputed.
The judgment is affirmed.
All the Justices concurring. | [
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Johnston, J.
On April 5, 1890, Henry J. Croll, an employe of the Atchison, Topeka & Santa Pe Railroad Company was engaged in ditching along the railroad about 10 or 12 feet distant from the track. Tlie track was well ballasted and generally in good condition, but on account of recent rains and the frost coming out of the ground it had become somewhat soft and uneven. While a passenger train was passing the place where Croll was at work a lump of coal weighing between 12 and 15 pounds rolled from the top of the tender to the ground, and, bounding from there, struck Croll on the head, seriously injuring his eye and face. He brought this action charging that the Company was negligent in overloading the tender and in failing to keep its track in proper condition. At the trial there was testimony that the tender was very heavily loaded; that in the center of the tender the coal was heaped up two or three feet above the level of the top ; and one witness stated that it was piled above the flange which is on the outer edge of the tender. It appears not to be unusual to take a rounding load of coal, but it was shown, and indeed proof was hardly necessary, that it was not practicable or safe to heap it above the flange or edge of the tender.
A demurrer to the evidence was interposed and overruled ; but upon review the Court of Appeals held that there was no evidence tending to prove that the coal was negligently loaded, and ordered a reversal, with instructions to sustain the demurrer to the evidence. 3 Kan. App. 242; 45 Pac. Rep. 112.
We are unable to concur in this view. There is little if any testimony of negligence as to- the maintenance of the track, but we think there was evidence tending to show negligence in overloading the tender, and at least sufficient to take the case to the jury. It may be proper to carry a rounding load of coal, but certainly it is neither necessary nor safe to have it piled upon the flange or above the edge of the tender. It was contended that the testimony did not show that the coal was above the edge of the tender; but that given by Mayer will hardly bear that interpretation :
“ Ques. State about what height the coal was piled up at the edge of the tender, if at all. Ans. I should judge between two and three feet.
“ Q. You mean in the center? A. Yes, sir.
“Q,. About how high was it at the outer edge of the tender, where it came to the edge of the flange? A. It was above the edge of the flange ; I cannot say how far.”
On this testimony the jury found that the coal was loaded over the flange of the tender. If it was loaded on the flange or above the edge of the tender, the top coal would not have sufficient support and a slight jar would be likely to loosen and dislodge some of it. Some of the witnesses stated that the tender was loaded in the usual way, but there is testimony tending to show that it was an unusual load. The fireman stated that it was usually rounded up about a foot or a foot and a half in the middle of the tender, while the testimony in this case shows that it was heaped up from two to three feet high above the tender. In this respect it differs from the case of Shultz v. The Chicago & Northwestern Rld. Co., 67 Wis. 616, and therefore cannot be regarded as a mere accident for which there is no responsibility. In considering the demurrer the evidence must be viewed in the light most favorable to the plaintiff, and all reasonable inferences must be allowed in his favor, and unless all the testimony offered fails to establish his case or some material fact in issue the demurrer should be overruled. Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 516: Rogers v. Hodgson, 46 id. 276; K. C. Ft. S. & G. Rld. Co. v. Foster, 39 id. 329; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 id. 650. Measuring the testimony by the rule in these cases, it is clear that the case should have gone to the jury.
We are not impressed with the suggestion that Croll assumed the risks and dangers incident to the overloaded tender. It is true that he knew something of the condition of the track and roadbed and was aware that the roughness of the track gave the engine a swinging motion, but there is nothing to show that he had reason to apprehend that the coal would be piled above the edge of the tender, or that pieces of the same would be thrown so as to strike him when he was 10 or 12 feet away. He was at work in the place to which he was assigned, and we fail to see that lie had any reason to apprehend the peril to which he was subjected by the overloading of the tender. He had never seen any coal fall off the tender of a passing train, and while he may have seen pieces of coal lying along the track there is nothing to show whether they fell from the tender of a passenger engine or from coal-cars. In the view.we take of the case the matter of Croll’s own negligence or knowledge is entitled to but little consideration. It would seem as if an ordinarily prudent mq,n in the position in which Croll was would not have deemed himself in any danger from a passing train, and probably he would have been censured by the foreman if he had left his work and gone further away from the track because of the passing train. For this reason the objection to the .first special finding, which relates to Croll’s knowledge of the condition of the railroad, although the finding is somewhat inaccurate, is not deemed to be very material.
The testimony in the record does not indicate passion or prejudice on the part of the jury, and no good reason is seen why the verdict, which appears to have support in the testimony, should be set aside.
The rulings complained of upon the testimony and the instructions are not deemed to be erroneous nor such as require special comment.
The judgment of the Court of Appeals will be reversed, and the judgment of the District Court will be affirmed.
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Johnston, J.
This is an appeal from the ruling of the District Court quashing a complaint which charged F. A. Gamier with the violation of a city • ordinance regulating the business of pawnbrokers. The defendant was convicted in the Police Court, where a fine of $25 was imposed. To obtain an appeal he gave a recognizance, and it with the warrant and transcript of the proceedings were transmitted to the District Court. There, on motion of the defendant, the complaint was quashed and the defendant discharged.
Upon this appeal the City contends that the District Court had no jurisdiction, because the recognizance on appeal was defective; and an elaborate argument is made to show that it is void on its face. We think the statutory provision with reference to appeals was substantially complied with. It gave the title of the cause ; it recited the rendition of the judgment, that an appeal had been taken therefrom, and that the principal and one surety acknowledged themselves indebted to the city of Kansas City in a sufficient sum ; and the condition was that Gamier should personally be and appear before the District Court of Wyandotte County on the first day of the next term to be holden in that county, to answer the complaint made against him and to abide the judgment of the Court. It was taken by the Police Judge and the surety approved by him. When it was transmitted to the District Court it became a matter of record there, and it appears to accord with the general practice in respect to taking appeals. It is defective in this: That it does not definitely designate the offense of which the defendant was convicted; but as it refers to the complaint, which was transmitted and became a matter of record with the recognizance, there is no difficulty in ascertaining the offense, and the defect is no more than an irregularity.
Another alleged defect is that the recognizance runs to the City instead of the State. The statute does not provide that recognizances shall be given te the State, nor does it designate to whom they shall be executed; but, as the offense was a mere violation of a municipal regulation, we think it was properly executed to the City. None of the defects suggested by the City destroy the validity of the bond or take away the jurisdiction of the Court over the subject-matter.
The trial court quashed the complaint upon a motion alleging that it did not charge an offense against the law of the State or an ordinance of the City, and because the ordinance upon which the complaint is based is illegal and void. The specific ground upon which the judgment quashing the complaint was based is not stated, and no appearance has been made here in behalf of the defendant. The ordinance provides that every pawnbroker shall keep at his place of business a-register in which he shall enter in writing a minute description of every kind of property taken, purchased or received, the amount loaned thereon, the interest-charged, and when the loan falls due. He is also-required to give the person leaving the property a receipt in which the articles are to be described as in the register. It is further provided in section 3 of the ordinance that the pawnbroker shall make out and deliver to the chief of police every day before-noon a legible and correct copy from the register of all the personal property or other valuable things-received, deposited, or purchased during the preceding day, with a complete description of the persons leaving the pledges or from whom any purchase was made. At-the end of the section there is a proviso that no per son shall be required to furnish a description of any property purchased from manufacturers or wholesale dealers who have an established place of business, or of any goods or property purchased at an open sale ; but that such goods or property must be accompanied by a bill of sale or other evidence of an open and legitimate purchase, which must be shown to the mayor or any member of the police department when demanded. A person violating the provisions of the ordinance may be fined in a sum not exceeding $100.
In the complaint it was alleged that, on September 18, 1895, the defendant was engaged in business as a pawnbroker, when he received certain articles of personal property as a pawnbroker but failed to make out and deliver to the chief of police before noon of that day a copy of the register required to be kept by him under the provisions of section 3 of the ordinance. Provision is made by statute for regulating the calling and occupation of pawnbrokers, and this appears to be sufficient authority for the ordinance that was enacted. ¶"555 Gen. Stat. 1889. In view of the nature of the business, the character of many that are engaged in it, and the well-known fact that the pawnshop is frequently made a hiding place for the fruits of crime, the regulations prescribed by the ordinance cannot be regarded as unreasonable or oppressive. They are intended for the protection of the public, and they also tend to protect the pawnbroker himself from imposition and loss. Launder v. City of Chicago, 111 Ill. 291; City of Grand Rapids v. Braudy, 64 N. W. Rep.29.
One of the claims was that the complaint was insufficient because it failed to negative the proviso contained in the last part of section 3. The proviso or exception is distinct from the clause defining the of fense, and simply excepts from the operation of that clause a certain class of purchases which may be made by Persons engaged in the calling of pawnbrokers. The exception being in a subsequent clause, and not being incorporated in the definition of the offense, it was not necessary to negative it in the complaint. The State of Kansas v. Thompson, 2 Kan. 432; The State v. O’Brien, 74 Mo. 549; The State v. Elam, 21 Mo. App. 290; 1 Bishop, Crim. Proced., § 639; Wharton, Crim. Plead. & Pr., §238.
We think there was error in the ruling of the Court in quashing the complaint, and, therefore, its judgment will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Johnston, J.
In February, 1893, Hannah L. Whiteside obtained in the District Court of Stafford County a judgment for $327 and a decree foreclosing a mortgage upon real estate. The real estate was subsequently sold pursuant to the decree, and she became the purchaser. In 1895 she conveyed the land to the Lockwood Mortgage Company, and the title still remains in that company. An attempt was made to levy a tax upon the above-mentioned judgment for the year 1893, but it was never listed or valued by any officer, nor has it ever been placed upon the personal-property tax-roll. In August, 1893, the Board of County Commissioners of Stafford County made an order which in effect was a request for the Clerk of the District Court to certify a list of all judgments shown by the record of his office to the County Clerk, and the County Clerk was directed to place the list of judgments on the tax-rolls of 1893 to be taxed as other personal property of that year. In October of the same year the Board made an order to the effect that whoever filed an affidavit with the County Clerk that the judgment in his favor was of no present value should be exempt from having such judgment placed on the tax-roll. The Clerk of the District Court furnished a list of judgments to the County Clerk, and upon such list was that of Hannah L. Whiteside. The County Clerk entered this judgment on the real estate tax-rolls of'Stafford County, and there was levied upon the judgment a tax of $7.96. In March, 1894, a personal-property tax-warrant was issued with a view of collecting the taxes on such judgment, which was returned unsatisfied. The tax-warrants, with indorsements thereon, were filed with the Clerk of the District Court in May, 1894, and by that officer entered upon the judgment-docket of the District Court. In December, 1894, the Clerk of the District Court issued a real estate tax-warrant and placed it in the hands of the Sheriff, which commanded him to make the amount of the tax out of the lands and tenements of Hannah L. Whiteside. Under this warrant the Sheriff advertised the real estate which had been transferred by Hannah L. Whiteside to the Mortgage Company, and was proceeding to sell the same when the present action of injunction was commenced.
The District Court held the tax to be invalid and enjoined the sale, and upon review the Court of Appeals affirmed that judgment. A more complete statement of the facts may be found in the reported decision of the Court of Appeals. 2 Kan. App. 217.
We think the tax was illegal and that the judgment of affirmance must be sustained. The property was never assessed or valued, nor was it ever located for taxation in any city, township or school district. The statute provides for the listing and location of personal property, and until it is located the amount of taxes thereon cannot well be ascertained. The state and county taxes can be measured, but the city, township or school taxes, which constitute the greater part, cannot be determined until the location is fixed. The amount of the taxes to be paid depends upon the location as well as the valuation; and it. would seem to be essential that the property should be entered upon the proper tax-roll and that a valuation and location of the same should be made. Passing this .defect, however, we think there was a fatal omission in failing to give notice to the owner that the property was to be entered upon the tax-roll for taxation. Where property has been omitted or undervalued by the assessor, provision is made in section 70 of the Tax Law (¶6918 Gen. Stat. 1889) whereby returns of the assessor may be corrected and the property omitted entered for taxation. By this section ° before omitted property can be entered for taxation five days’ notice must be given to the taxpayer that his property is to be valued and taxed. We fully concur in the views expressed by the learned Judge of the Court of Appeals that the notice is jurisdictional in character and must be given as the statute prescribes before the county commissioners or the county clerk can enter omitted property upon the tax-rolls. Dykes v. Mort.Co., 2 Kan. App. 217 ; Comm’rs of Leavenworth Co. v. Lang, 8 Kan. 284; Griffith v. Watson, 19 id. 23 ; Coal Co. v. Emlen, 44 id. 117 ; City Rly. Co. v. Roberts, 45 id. 360 ; Water-Supply Co. v. Roberts, id. 363.
These authorities settle the proposition that the tax is invalid, and that the collection of the same may be enjoined. This determination disposes of the merits of the case and renders unnecessary the consideration of the other questions that have been discussed.
The judgment of the Court of Appeals will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Allen, J. :
The principal contention in this court is that there is no proof that Love was killed by the low bridge over Appanoose creek; that the plaintiff’s case rests wholly on unwarranted presumptions of fact. With this contention we do not agree. All the circumstances indicate that the right side of Love’s head struck the first lateral of the bridge at the place where the soot was brushed off; that the contusions were caused thereby and produced his death. No other adequate cause for the wound on his head and the mark on the bridge is shown. The claim that the mark on the bridge was caused by the same thing that made marks on the under side of many of the overhead pieces and tore out the west one is contrary to the evidence. George Ripper testified that he examined the marks ; that the marks extending across the bridge were alike., as if some machine had struck them, but that the one on the east side was different. The suggestion that Love might have met his death from other possible causes was one which might properly be urged before the jury, but reasonable men would not be very likely to indulge in fanciful speculations when a plain, adequate and reasonably certain cause of death was so clearly shown as in this case ; and we think the contention of counsel for plaintiff in error on the facts of the case is utterly without force.
Complaint is made of rulings on the admission of testimony, but we find nothing substantial in any of the objections urged, or worthy of comment. Complaint is made of the. instruction of the court to the effect that slight negligence on the part of the plaintiff would not bar a recovery if the defendant was guilty of gross negligence. The instruction on this point is substantially the same given in the case of A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491. But in this case there could be no possible error in giving the instruction for the reason that there was absolutely no proof of negligence on Love’s part. He had never been informed in any manner that there was a low bridge across Appanoose creek. He had never passed over the road in the performance of his duties as brakeman, except in the night-time, and it is not shown that he ever had an opportunity to observe the height of this bridge. This particular night on which he met his death was dark and cloudy. The jury would not have been warranted in finding that he was guilty of contributory negligence barring a recovery. On the other hand we are not prepared to say that the defendant was not guilty of very gross negligence in continuing to maintain for so manji years a low bridge, over which it operated trains with furniture- and other cars so high that a bralteman could not stand upon them and pass through the bridge in safety. Such structures have been strongly condemned by this court in prior cases, and if railroad companies will persist in maintaining them to the imminent peril of the lives of their employees, who are engaged in a service; whose necessary hazards are so great, it does not seem any hardship to require them to respond in damages to the families of those who are killed thereby.
The judgment is affirmed.
All the Justices concurring. | [
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Johnston, J.
J. H. Baker was convicted- of obtaining property by means of false pretenses. In the information it was alleged in substance that Baker obtained from H. H. Huntsinger 33 cases of eggs worth $3.80 per case, of the total value of $125.40, by falsely representing and pretending that he had money on deposit in the bank at Burr Oak subject to his check, whereas he had no money on deposit there and had no arrangement with the bank to cash his checks when presented. It is averred that Huntsinger, relying on the representations so made, did sell and deliver the eggs and took in payment therefor Baker’s check, which was of no value whatever ; and that by means of the false pretenses and with the intent to cheat and defraud Huntsinger, he obtained property to the amount and value of $125.40.
The defendant filed a plea in abatement upon the ground that he had not had a preliminary examination for the offense charged; or, rather, that he was not advised by the one had of the offense set out in the information. A preliminary examination was had, and upon an examination of the preliminary papers it is clear that he could not have misapprehended the character and nature of the charge made against him. It is not necessary that there should be the same fullness of statement in the warrant or preliminary papers that is required in the information. We think no error was committed in overruling the plea in abatement. The State v. Tennison, 39 Kan. 726; The State v. Smith, 50 id. 69; The State v. Myers, 54 id. 206.
The sufficiency of the information was questioned by a motion to quash, upon the ground that the check was not particularly set out in the "information with an averment of its delivery and acceptance. The check was only a step in the transaction, or an incident of the offense, and a particular description of the same was unnecessary. The amount for which the eggs were sold is alleged, and it is also stated that a check was taken by Huntsinger in payment of the purchase price. We think the information was sufficient and that the motion to quash was properly overruled.
The next complaint is that the Court erred in compelling the defendant to go to trial without arraignment. After the motion to quash had been overruled, “the Court without further plea by the defendant and without objecting or assenting thereto other than his silence, and without the waiver of the defendant to further plead, and without said defendant announcing that he was ready for trial, directed the County Attorney to proceed with the examination of the regular panel of jurors,” etc., and the jury were then empaneled and the trial proceeded to the end. In The State v. Gassady, 12 Kan. 550, it was decided that the failure to arraign the defendant and to have a formal plea of “ not guilty ” entered, is not prejudicial error where it appears that the defendant announced himself ready for trial upon the charge and submitted the question of guilt to the determination of the jury. In the present case, however, the defendant did not announce that he was ready for trial, and there was no waiver of arraignment or plea. Until a plea is entered there is no issue to try. It is an established rule of the criminal law that the defendant shall be arraigned and called upon to plead to the charge against him. In some cases a formal arraignment may not be indispensable, but in every case there must be a plea or the equivalent of one. In The State v. Cassady, supra, the announcement by the defendant that he was ready for trial upon the information was treated as a denial of guilt and an informal plea. Here, the defendant not only did not plead, but the opportunity for pleading was never extended, to him, although he was charged with felony. So wide a departure from the established rules of criminal procedure cannot be approved, and we think the defendant has cause to complain of the irregularity. The State v. Wilson, 42 Kan. 587.
Another objection of a more serious character arises upon the argument of the County Attorney. In his closing address to the jury he referred to the defendant in the following language: “He is a sharper, a villain and a knave.” The attention of the Court was called to the abusive language and it was asked to instruct the jury to disregard it; but, without admonishing him against the use of the language or instructing the jury to disregard it, the Court directed the County Attorney to proceed, The County Attorney proceeded, and among other things said: “If the evidence is not sufficient to convict this man of obtaining property under false pretenses, then, gentlemen of the jury, I want to say to you that it is useless for me to try to enforce the laws in Jewell County.” Another objec tion was made, but it was unheeded by the -Court. The County Attorney again proceeded with his address and made use of the following language : “ Gentlemen of the jury, this man Baker is a first-class scoundrel; he is a knave and cheat; he is a bad man, and a dangerous man, and it is your duty, gentlemen of-the jury, to see that he is not turned loose on the community. You should convict him. Sharpers cannot ply their calling in Jewell County.” An objection was made to this language by the defendant. He moved the Court to instruct the jury to disregard it and to reprimand the County Attorney for its use. The Court remarked that the County Attorney should confine his remarks to the evidence, but did not condemn the misconduct, nor admonish the jury to disregard the offensive language. There is no justification in the use of this language. It was personal abuse rather than argument, and was well calcrdated to prejudice the defendant, who was entitled to a fair and impartial trial. The non-interference of the Court when its attention was challenged to the abusive language may have led.the jury to think that the Court indorsed the statements of the County Attorney, and thus enhanced the prejudice. In The State v. Comstock, 20 Kan. 655, it was said:
“Courts ought to confine counsel strictly within the facts of the case, and if counsel persistently go outside of the facts in their argument to the jury, then the court should punish them by fine and imprisonment ; and if they should obtain a verdict by this means, then the court should set such verdict aside.”
In the The State v. Gutekunst, 24 Kan. 252, it was said:
“It is the duty of the district courts to interfere of their own motion in all cases where counsel in argu ment in jury trials state pertinent facts not before the-jury, or use vituperation and abuse, predicated upon alleged facts not in evidence, calculated to create prejudice against a prisoner.”
In Huckell v. McCoy, 38 Kan. 53, it was held :
“Certainly where counsel in his closing argument to the jury repeatedly makes improper remarks, prejudicial to the interests of the adverse party, and oveithe objection of the adverse party, and the verdict is-afterward rendered in favor of said counsel’s client, and may have been procured by reason of such remarks, a new trial should be granted.”
We think the Court committed prejudicial error in allowing the County Attorney to use the abusive language over the objection of the defendant without admonishing him to desist or instructing the jury to disregard such language.
Other objections were made to the rulings upon the testimony and instructions, but they are not deemed to be erroneous or to afford ground for reversal.
For the errors mentioned the judgment 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. :
This was an action by an heir of John R. Bradford, deceased, to recover a one-half interest in 320 acres of land in Johnson county from John Larkin, who holds under a purchase made at a guardian’s sale more than 22 years ago. At the time of bis death, in 1870, John R. Bradford was the owner of the land in question, and he left as his only heirs Selena Bradford; the widow, and William J. and Rosa M. Bradford, minor children. Some time after his death the widow intermarried with Jacob White, and in 1874 she was appointed guardian of the persons and estates of the minor children. After she had qualified, she applied to the probate court for permission to sell the minor children’s interest in the tract of land, and on April 21, 1874, three appraisers were appointed by the probate court to view and appraise the land, and, after being duly sworn, they appraised the undivided one-half interest of the 320 acres at the sum of $1,760. Each of the minor children was personally served with a copy of the application to sell the land, and with a notice that the application would be presented to the probate court on May 8, 1874. The application, however, appears not to have been filed in the probate court until April 24, 1874, at -which time the court fixed May 8 as the time for hearing the application. On that day a petition, duly verified, was presented to the probate court, and upon a hearing it was found by the court that due and legal notice to the minors had been given, and that there was no personal property belonging to the estate which could be used for the support, maintenance and education of the minor children. Thereupon it was ordered that the guar’dian sell the land at private sale for not less than three-fourths of the appraised value.
Afterward, the guardian filed a report in the probate court stating that, in pursuance of the order, and after having the land appraised, she had sold all the interest of the minor children in the real estate to John Walter for $1,500, a part of which was in cash and the deferred payments were secured by mortgage. On examination, the probate court found that the land had been appraised, that the sale made was regular and in conformity with law, that the guardian had fully complied with the terms of the order in making the sale, and that the price for which it was sold was the most that could be obtained. A deed was presented which was approved and confirmed. The deed recites the sale of all the right, title and interest of both of the minors, and also as to the report and confirmation of the sale, but in the granting clause the name of Rosa M. Bradford was omitted. On January 15, 1886, John Walter conveyed the land to John Larkin, the defendant in error, for the consideration of $3,000, and he has been in the continuous possession of the same ever since that time. The price obtained at. the guardian’s sale is found to be a fair price for the undivided one-half interest in the tract, and the proceeds of the sale were used by the guardian for the support, maintenance and education of the minors.
William J. Bradford claims to have purchased the interest of Rosa M., and brings this proceeding to obtain one-half of the land upon the ground that the guardian’s sale was void by reason of noncompliance with the provisions of the statute. The objections are that the notice was insufficient, and therefore that the sale and transfer of the real estate of the minors was void as to both of them ; and, second, that the interest of Rosa M. Bradford was not conveyed by the deed that was made. The claim of want of notice is based on the filing date of the ° petition to sell the land. It appears to have been filed in the probate court on April 24, 1874, whereas, the proof of notice to minors shows that a copy of the petition, together with a notice of the time of hearing, was personally served upon the minors on April 22, 1874. It is essential that a copy of the petition, together with notice of the time at which the application will be made, shall be personally served upon the minor 10 days prior to the time fixed for the application, and it is argued that, as the petition was not filed until April 24, 1874, it was impossible to have served a copy of the same prior to that time. There is confusion of dates in the records of the probate court, but, whether or not the file mark on the petition is a mistake, it is evident that the application or petition was in existence and had been brought to the attention of the probate court before April 24. Before that time, and based on the application of the guardian, the probate court had fixed the time when a hearing would be had upon the petition, and provided for an appraisement of the land. When the hearing was finally had, evidence was adduced, and the probate court found that due and legal notice had been given to the minors. What that testimony was has not been shown, and whether the discrepancy in the dates was then explained we cannot know. The probate court, however, had full jurisdiction in the premises, and it was competent for it to determine whether, upon the whole testimony, the notice was sufficient.
It is plain enough that there were irregularities in the proceedings, but irregularities alone, not mere omissions from the record, are not sufficient to destroy the validity of judicial proceedings. If errors were committed, they could have been corrected upon appeal or other direct proceeding, but collateral attacks of this kind are never favored. In such cases it devolves on those making the attack to show clearly and conclusively that the court had no jurisdiction before the proceeding will be held, to be void. (Head v. Daniels, 38 Kan. 1; Howbert v. Heyle, 47 id. 58.) In this case the petition was in due form. It, together with the notice, was actually served upon the minors more than 10 days before the hearing was had ; and, although the notice may have been defective, it conferred jurisdiction and is sufficient to resist a collateral attack on the proceedings.
The remaining contention — that the interest of Rosa M. Bradford was not transferred because of the omisson of her name from the granting clause of the deed — cannot be sustained. A sale of the interests of both minors was ordered to be made and was made for an adequate’ consideration. This sale, upon examination of the court, was duly confirmed. These steps were taken in a proceeding to which the plaintiff in error was a party, and the court having jurisdiction, they are certainly sufficient to convey the equitable title of both minors. The purchaser, having obtained the equitable title, is entitled to a conveyance of the legal title, and the right to the conveyance having become complete, it may be made at any time. Indeed, it would appear from the recitals in the record and in the deed that the omission of the name of Rosa M. Bradford was a clerical error, and that all the parties connected with the proceeding intended and understood that the conveyance transferred the interests of both. In Larkin's answer, after alleging the claim made by Bradford of an interest in the land, and that it was a cloud upon his title, he asked that the cloud might be removed, and that his title might be quieted as against Bradford. The district court therefore ruled correctly in decreeing that the adverse claim of title set up by Bradford should be declared void, the cloud upon the title removed, and that the estate, title and possession of Larkin should be forever quieted in him as against the plaintiff Bradford.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Johnston, J.
O. P. Michaels brought this action against the Southern Kansas Railway Company to recover for personal injuries received while acting as head-brakeman on a freight train running from Cherry Vale to Wellington. The distance between the points was more than 300 miles, and Longton was among the stations on the route. A branch road connected with the line at that point, and there were a number of sidetracks and switches in the yards. Michaels was an experienced brakeman. He was employed by the Company in that capacity in October, 1885, and coutinued in its service until May, 1886. He re-entered the employment of the Company in February, 1887, and was employed on the run mentioned until April 7, 1887. While engaged in switching in the Longton yards on that day he was hanging to the ladder on the side of a car, with his foot in the stirrup ; and while signaling to the rear brakeman was struck oh the back, knocked down, and severely injured by a switch-target, which is alleged to have been too close to the track. The switch-stand was midway between two tracks, and the center of the same was only 4 feet and 3 inches from the inside rail of either track. It was about 7 feet high, and on top there projected about 17 inches from the staff a spear or arrow-head used to indicate the direction in which the switch was turned. The cars of the Company projected about 25 inches over the rail, and when the 17-inch spear was turned it would leave a space of about 9 inches between the switch-target and the side of the car. It is customary and proper for the brakeman to hold to the ladder on the side of the car while switching about the yards; and at the time of the injury Michaels was engaged in the performance of his duty, and was giving directions to the rear brakeman with reference to a switch on another track which required adjustment. The train was moving west, while the brakeman with whom Michaels was communicating was east of him ; and therefore his back was toward the switch-stand the target of which knocked him off. He was familiar with the yards, and had previously used the switch-stand ; but he states that he had never observed that it was so close to the track as to make it dangerous for those who were upon the side of cars passing over the track.
There have been two trials of the case, and in each Michaels has been successful in obtaining a verdict. The first judgment was reversed on account of error commitced in the admission of testimony, and because the findings of the jury were unsupported by the testimony and inconsistent with each other. S. K. Rly. Co. v. Michaels, 49 Kan. 388. In the second trial he recovered a judgment for $6,860 ; and the Company brings the case here again, insisting that prejudicial errors were committed in the course of the trial.
We are not favorably impressed with the contention that the testimony is insufficient to support the verdict and judgment. The maintenance of a switch-stand so near the track as to knock from the cars trainmen regularly engaged in the performance of their duties, was a plain case of negligence ; and one, too, which warranted the Court in submitting to the jury the question whether or not it was gross negligence. Michaels was using the ladder in the ordinary way and lor a proper purpose. He was pursuing the usual course when he gave signals or directions to the rear, brakeman to proceed and adjust another switch. For the time being his -whole attention was engaged ; and his duty required him to look toward the rear of the train instead of in the direction in which it was moving and where the target was. If he had been looking ahead, he would probably have observed that the switch-target was so close to the car as to be dangerous ; but his duties apx^eared to require him to look in a different direction in order to accomplish his work in a proper manner.
It is contended that the plaintiff was aware of the location of the switch-stand and did not exercise due care for his own safety. His own statement, however, is, that while he had run through the yards many times and had previously handled the switch, he had never noticed how close the switch-target came to the passing cars when it was turned toward them. It is easy to understand how he might pass and repass the switch, when the 17-inch spear was not turned toward the cars, without observing that it would be dangerously close when. turned toward them; and also that while upon the ground setting the switch he might fail to observe how near the spear was to the passing cars. In Rouse v. Ledbetter, 56 Kan. 348, an injury to a switchman resulted from a defective structure in the yard, and one that he might have seen by the reasonable use of his eyesight. It was held, how ever, that the fact that he was working in that part of the yard and might have seen it if his attention had been called to it, was not conclusive evidence of contributory negligence. It was said :
“The faculty of close observation of objects is largely a gift. Some persons may walk once along a street and be able, without any special effort, to describe every prominent object upon and every projection into the street, while others might go up and down the same street for a year, who could not describe such objects and projections. . . . Many dangers necessarily attend the performance of the duties of a yard switchman, but the master is not allowed to increase the hazards of his servant by placing pitfalls, obstructions, traps or inclines in his path, whereby he may lose his footing and be mangled or killed.”
Testimony was introduced that Michaels knew of the dangerous proximity of the switch to, the track, and it appears that he had heard some one say a short time before that one of the switches at Long-ton was dangerous ; but he positively asserted that he had never observed that the switch which swept him from the car was so close to the track, and that he had no knowledge of its dangerous proximity. The mere fact that he had seen and handled the switch does not necessarily show that he had such information as would charge him with knowledge of the distance between the target on the top of the switch and the ladder on the side of the car. The switch-stand had been there from the time he was reemployed by the'Company — a period of about 55 days; but his work was not confined to that yard. On his trip between Cherry Yale and Wellington he passed through many stations and yards, and necessarily had to do with numerous switches. He may be said to have assumed the general danger from structures and erections near the tracks ; but it does not appear that there were any others dangerously near the tracks ; and from his testimony and the finding of the jury we must assume that he had no actual knowledge of this danger. It was not to be expected that he would observe or keep in mind the relation of all these switch-stands to the tracks, their distance and danger. In reason there can be no necessity for maintaining switch-stands so close to the tracks as to make it unsafe for trainmen to perform the duties required of them; and, in the absence of notice of the danger, they have the right to assume that the company will make adequate provision that no danger, other than the dangers naturally incident to the business, shall befall them while in the performance of their duties. In a somewhat similar case, where an employe was knocked from a train by the overhead timbers of a bridge, it was said:
“When he entered the service of the company he assumed the ordinary risks incident to the service ; and if he enters or continues in the service with a knowledge of the risk or danger, and without objection, he must abide the consequences. . . . The law, however, does not require that an employee shall know of all defects or obstructions that may exist on the road or in the service in which he is engaged.” St. L. Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701. See, also, A. T. & S. F. Rld. Co. v. Rowan, 55 Kan. 270.
In the present case the danger was not so obvious that it can be said as a matter of law that Michaels was bound to know and appreciate it. Although he did know of the existence of the switch, he may not have had such knowledge of its dangerous character as would charge him with the assumption of all risk arising from it. That was fairly a question for the jury, and it has been decided in favor of the defendant-in error.
Error is assigned on the refusal of an application to require Michaels to submit himself to a medical examination. The application was not made until the trial had commenced and after the plaintiff had closed his testimony. The Company then applied to have the plaintiff submit to an examination by a single physician, who was named. No reason was given for the examination nor any made of necessity for the same. It has been held that the power to compel the physical examination of one seeking to recover for personal injuries exists in proper cases. A. T. & S. F. Rld. Co. v. Thul, 29 Kan. 466. As it trenches closely upon an invasion of the private rights of the person, it should be exercised with great caution and only where it is necessary to effect the ends of justice. In the Thul case it was said that upon such application the court should exercise a sound judicial discretion, and the order for the examination should be made upon a proper application and upon a proper showing. When such an examination is necessary, a timely application should be made ; and it shoiild be conducted under the control and direction of the court, by competent physicians or surgeons selected by the court. There was no showing made that an examination was essential to a full understanding of the injuries, nor was the application made in proper time. If an examination was required, the application should have been made a sufficient time before the trial commenced, in order that it might have been deliberately and carefully made, and without interfering with the progress of the trial.
There are several objections to the testimony, and especially to that given by Dr. Forbes, who had examined the plaintiff below and who testified concerning the permanency of the injury. At the timé he made the examination the history of the case was given to him by Michaels, and he also had the written statements of Doctors Spitler and Hamilton, who had formerly examined Michaels. At the end of his testimony the Company requested the Court to withdraw from the consideration of the jury all the testimony of the witness as to the condition J of Michaels and the character of the injury. Most of the testimony given by the witness was free from objection, and was based upon the personal examination which he had made. Of course statements of the result of examinations made by other physicians could not legally be introduced in evidence. It was proper that he should be informed, however, of the injury and the time of its infliction, and, generally, of the history of the case ; and this appears to have been the only use that was made by him of the statements of the other physicians. However, he appears to have been a competent physician and surgeon, and- as nearly all of his testimony rested upon a personal examination, and was, therefore, unobjectionable, the motion to strike out the whole of his testimony was properly overruled.
We have examined the instructions refused and given, and find no cause for reversal. Most of the controlling principles of law in the instructions requested were embodied in the charge that was given ; and what has already been said as to the merits of the case disposes of several objections to the instructions. One of the instructions given may have been somewhat inaccurate in stating that a recovery might be had by the plaintiff even though he was not free from negligence, if the Company was guilty of gross negligence; and in a certain sense the negligence of the two was compared. If there was error in this respect, however, it must be regarded as harmless; as the jury, in answer to a special question, found that the plaintiff was in the exercise of ordinary care, and, in answer to another, that he was not guilty of any negligence.
In our view there is testimony to sustain the material findings in the case, and they support the verdict which was rendered. We have carefully examined all the questions discussed by counsel, some of which it is not deemed necessary to mention, and find that the record presents no prejudicial error.
The judgment of the District Court will, therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The Stevens-Scott Grain Company shipped a car of wheat by the Santa Fe railroad from Wichita to San Antonio. It was so badly injured in transit that the consignee refused to receive it, and it was sold by the carrier, bringing $293. The grain company brought an action against the railway company to recover compensation for its loss, and obtained a judgment for $789.17, which was found to be the market value of the wheat at San Antonio, in its original condition. The plaintiff appeals on the ground that it ought also to have been allowed interest on this amount from July 1, 1908, the time of the arrival of the wheat.
It has been repeatedly decided by this court that interest can not be allowed upon unliquidated damages for a tort which does not benefit the estate of the wrongdoer. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591.) The doctrine is general that in the case of damages for such wrongs as injuries to the person or reputation, inasmuch as the compensation to be awarded is necessarily a matter of general estimate, the amount not being subject to any exact ascertainment, interest is not allowed. (22 Cyc. 1500.) A distinction is sometimes made between allowances of interest and allowances of compensation for delay, measured by the legal rate of interest. It is said that in arriving at the amount to be allowed the j ury may take into account any delay that has occurred, although' they may not allow interest by that name. (Note, 1 Ann. Cas. 764; 22 Cyc. 1502.) That rule.may have a proper field of operation where the allowance can only be based on a more or less indefinite estimate, but. otherwise the distinction is a mere verbal one. Interest as such is a creation of the statute. (22 Cyc. 1475.) And to determine whether it is to be allowed in a particular case is a mere matter of statutory interpretation. The real question which is the subject of controversy is whether, in a given instance which does not fall within the statute, an aggrieved person is to be allowed compensation for delay, in the nature of interest. For convenience of statement such an allowance is ordinarily described as “interest,” as though it were strictly of that character, and the term will be so used in this discussion.
The rule in most jurisdictions undoubtedly is that interest should be allowed upon damages for the wrongful destruction of or injury to property, where the extent of the loss is capable of reasonably exact ascertainment. (22 Cyc. 1500-1503; 6 Cyc. 528; Note, 28 L. R. A., n. s., 1.) That fact was recently strongly urged upon this court as a reason for departing from the earlier practice, but it was held that the desirability of conforming to the view taken by other courts must yield to the importance of adhering to what had here become the settled law. (Latham v. Harrod, 83 Kan. 323, 111 Pac. 432.) How-ever persuasive the argument in favor of allowing interest upon such demands might be if the question were a new one, we do not feel justified in overruling the repeated decisions of this court to the contrary, which must be deemed to have settled the law of this state on the subject. The whole matter of the allowance of interest is one of public policy, in' which the will of the legislature is supreme. If the view heretofore announced by the court is regarded as mistaken, the remedy is in the hands of that body. And while this view remains in force it is better that it should be consistently adhered to and carried to its logical result, than that its effect should be restricted by a resort to artificial distinctions to avoid any hardship deemed to follow from it.
The plaintiff, however, maintains that the present case does not fall within the rule referred to, because the action is not founded upon tort, but upon the breach of the defendant’s contract, evidenced by the bill of lading, to carry the wheat to its destination and deliver it in the same condition in which it was received. While the relations between the parties are in a sense contractual, the action is essentially one to recover damages for the violation by the defendant of a duty laid upon it by the law, independent of its own consent. The petition charges that the wheat was injured by the negligence of the defendant, and by its misbehavior as a common .carrier. With respect to the matter now under consideration, the plaintiff’s claim is to be classified as one based upon the wrongful injury to or destruction of its property.
The plaintiff also contends that here the damages are not to be regarded as unliquidated, because they were fixed and definite in amount. This contention is based upon two theories. The first is that the defendant was liable in the sum the consignee had contracted to pay to the plaintiff for the wheat. As no notice to the defendant regarding the existence of this contract was shown, its liability was not affected by it. (6 Cyc. 529.) The other theory is that the market value of the wheat was capable of exact ascertainment, being a mere matter of computation. The answer of the defendant included a general denial. The plaintiff was required to show the quantity, quality and market value of the wheat. These were all matters as to which issues were joined, and concerning which there might have been some actual controversy, although it appears that in fact the defendant offered no evidence in contradiction of that introduced by the plaintiff, on which the judgment was based. The value of property destroyed may doubtless be more readily and satisfactorily determined where it consists of a shipment of wheat than where, for instance, it consists of hay in the stack. But the difference is in degree rather than in kind. In most cases a reasonably close estimate of the value of chattels can be made, and no good reason is apparent, for making a distinction in this regard between one kind and another. And the circumstance that the party to be charged does not attempt at the trial to contradict the evidence offered by the owner of the property does not warrant a departure from the general rule as to the allowance of interest.
A final contention of the plaintiff is that he should at least recover interest on the $293 which the railway company received from the sale of the wheat. As damages were allowed on the basis of the value of the wheat at San Antonio, the defendant had a right to deduct from the-salvage the freight charges, $177.50. The plaintiff was at all times entitled to the balance, or $115.50, and the defendant should pay interest on that amount for any period during which it was wrongfully withheld. The court found that the defendant had at once offered to pay the $115.50 in full settlement of its liability. This of course did not constitute a sufficient tender, by reason of the condition imposed. But the answer, filed July 6, 1911, included an unconditional offer to pay that amount. As the defendant appears to have retained all the salvage, without an offer to pay over any part of it, for a period of substantially three years, it should be charged with legal interest for that time on the proceeds of the sale in excess of the freight. The judgment will be modified by adding that amount, and as so modified, affirmed. | [
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