*1 89,164 No. Kansas, III, v. Wallace Dixon,
State of L. Appellee, Appellant.
112P.3d883
*2
filed
Opinion
*3
3, 2005.
June
defender,
Sarah Ellen
assistant
the cause and was on
Johnson,
appellate
argued
the briefs for appellant.
Fox,
cause,
Autumn L.
assistant
and Phill
special
attorney general, argued
Kline,
was with her on the brief for
attorney general,
appellee.
of the court was delivered
opinion
Dixon, III,
L.
Wallace
his convictions
Allegrucci,
appeals
J.:
murder,
of two counts of
five counts of
felony
aggravated battery,
theft,
two counts of
count
and one
each of
criminal dam-
burglary,
assault,
to
and criminal
of a
age
property, aggravated
possession
(each
firearm. He was sentenced to two consecutive life terms
with
no
20
and 120 months consecutive to
parole eligibility
years)
the life terms. This is a
case to State v.
279
Griffin,
companion
(2005).
Kan.
At 9 a.m. on and fire approximately July explosion units, five townhouse A destroyed building containing apartment E, at the Plaza in Dana through Eastgate Apartments Emporia. Gabriel, infant in Hudson and her son who lived the middle apart- C, ment, were inside debris and flames. died of trapped They and to heat. tenants and smoke inhalation Other exposure neigh- A, Tena in bors were who lived injured. Wright, apartment window, when she had to from a second-floor and injured jump 566 Medien, and Nathan were
two injured Woodling neighbors, James DePriest was in her to her. help Stacey upstairs apartment, trying Harris, D, A when the fell on her. Rosalind ceiling neighbor, DePriest. assist trying injured to. and fire in unit B. Alicia Shaw and her
The explosion originated sister, Shaw, son lived unit B. Alicia’s Schelese Sche- young lived in with Dixon. lese’s son Topeka Dixon, weeks before after with Sche- Several July quarreling with Alicia. lese removed her from his house went to stay things called Alicia’s and the sisters’ cell For hours Dixon apartment and later on Alicia’s door. Pie threatened to blow phones banged if Alicia’s car Schelese did not come out of the Sche- apartment. up returned home with Dixon after 1 lese day.
At on Alicia and some friends July approximately p.m. son, drove to Alicia’s who had been Topeka get staying Schelese, son, Schelese for a few Schelese’s and Alicia’s son days. in the car with them. came out Dixon’s house Schelese got told her sister that she was Dixon. Schelese had told Dixon leaving that she was While the sisters were still just diapers. going get Dixon the sisters’ cell Schelese Topeka, began calling phones. then told Dixon that she was to a bar called going Emporia and he was Instead of the sisters Fatty’s, angry. going Emporia, with a left their sons sitter and went with their friends to a liquor store. Cell records showed that Dixon called cell Schelese’s phone times the 15-hour between 9:11 on phone period p.m. July 28 and 12:12 29. He called Alicia’s cell and her July p.m. phone total of times the same apartment phone during approximately *4 period.
Dixon asked some friends to with him to Dixon go Emporia. Hall, drove his White Chevrolet Suburban. Rodney Hayes, Jerry and Ethan Griffin rode with him. left They Topeka Emporia a.m., after 12:20 when Griffin off work. went to shortly got They it until closed and then drove to an after-hours at a Fatty’s party house.
Later, awhile, after around went to the they riding apartment Alicia where lived. Dixon told his friends he had complex got- ten a lot of the in the and he wanted them belongings apartment Dixon was men broke into The four back. apartment. angry, took a television to his friends. he was orders and Hayes barking a box. also in Suburban. Griffin took and it jewelry They put and a cassette recorder took a video lamp. Suburban, drove around
After they belongings putting calls on his cell com- continued to make while Dixon Hayes phone. slammed on back to Dixon that he wanted to go Topeka. plained brakes, out the vehicle and tried and he and Hayes jumped Later, a altercation other. there was second to hit and kick each brakes, slammed on the Dixon and Dixon between again Hayes. vehicle, and, fired his out of the Dixon when he and gun Hayes got When back the Sub- feet until it was empty. they got Hayes’ five urban, at least four or Dixon drove by Eastgate apartments times. a station and had Griffin
Dixon then drove to gas pump gasoline at the station. When a bucket. Griffin left the box into they jewelry station, Griffin the bucket was the back seat between left the gas Griffin, “I’ll burn it and Hall. Griffin heard Dixon say, up.” Hayes, its about the smell of the and Hall sloshing complained gasoline, bucket, with it in the and that could not smoke out of they window, it and Griffin vehicle. Dixon told Griffin to throw out did. more, Dixon to around some convinced
After Hayes go driving Wishon, Hall. took the items from Donnie a friend of see They Hall residence. Alicia’s into Wishon’s stayed Hayes apartment there and went to sleep. Griffin tes- with Dixon back to Alicia’s
Griffin went ápartment. Dixon went that after tified Upstairs, entering apartment, again candle, television, a and kicked bookshelf. threw a knocked over window, rifled downstairs, a curtain off a front room Back he tore cabinets, onto its side. and knocked the stove the kitchen through Wishon’s Dixon and Griffin returned to It was full when daylight them to so and Hall and residence to wake hurry Hayes urge up could head back to Topeka. they Lobdell, certified
Peter specialist, agent, explosives special Alcohol, To- with the federal Bureau of fire certified investigator Firearms, bacco, the team that led investigated explosion *5 568 field
and fire. He determined from debris sec- large large intact walls which had been blown out that the tions of explosion which was a fuel-air The fuel was natural combined explosion. gas, with air to combustion. The source of the natural gas support that a leak fuel to Alicia’s stove. pipe supplied According Lobdell, “the which supply manually manipulated,” pipe fail, “it to to leak and emit into the He was caused gas apartment.” unable to determine what the fuel-air combination. ignited
Additional facts will be as we consider the numerous developed issues raised Dixon on by appeal. 1. DID THE FAILURE TO REACH VERDICT ON A JURY’S
AGGRAVATED ARSON AFFECT DIXON’S CONVICTIONS MURDER AND BURGLARY? FOR FELONY about arson demonstrate Questions posed by jury aggravated its lack of about whether the defendant had to in- understanding fire tend to use or or whether explosive damage property defendant had to intend to simply damage property happened to have done so fire or The. by explosive. following response, given the trial to one of the of all his re- judge questions, typical “In addition to the intent Element sponses: required damage, that number of Instruction find that the you requires damage occurred means of fire or He further advised the explosion.” to “review all of the instructions as consider this matter.” jurors you other instructions was Among “Ordinarily following: per- son intends all of the usual of his acts. This consequences voluntary inference considered be with all the other evi- may by you along dence in the case. You it in may accept reject determining whether the State has met its burden to criminal prove required intent of the defendant.” The was unable to reach a verdict on the arson count. aggravated arson,
Because Dixon was not convicted of the State aggravated takes the about the offense is moot and position any question out, however, before the court. The defendant properly points arson was a offense for and fel- aggravated predicate burglary Thus, contends, murder. Dixon to convict him ony jury’s failing *6 relative to the to be examined arson burglary of ought aggravated murder convictions. and felony Dana the deaths of murder for with
Dixon was felony charged had that the State was instructed Hudson. The and Gabriel jury alternative evidence on introduced underlying aggra- felonies— to instructed with vated arson regard jury burglary. that the State the second required prove burglary charge without entered a Dixon authority dwelling knowingly arson, theft, criminal intent to commit damage aggravated three. He was convicted of or some combination property, the second burglary. fire or means
Arson is explo “[k]nowingly, in . . . which is a sive: . . . dwelling building [d]amaging any of such interest without the consent another has which person 21-3718(a)(1)(A). ar K.S.A. other Aggravated Supp. person.” is a ... which there “committed son is arson building upon was instructed on 21-3719. The K.S.A. human aggra being.” 59.22: with PIK Crim. 3d follows in accordance vated arson as claims must be each of the “To establish this following proved: charge, in which an- or Mr. Dixon property 1. That intentionally damaged building interest, means of fire or and that Mr. Dixon did so other had an person explosion; Plaza, Inc.; without the consent of 2. That Mr. Dixon did so Eastgate in the or time there was a human building property; 3. That at the being harm; risk of in a substantial That the fire or resulted bodily 4. explosion 2001, in the 29th act occurred on or about day July, Lyon 5. That this Kansas.” County, of the statutes maintains that correct
Dixon
interpretation
or
an accidental fire
instruction is that
ignited
explosion
pattern
arson
is not
a result of intentional
as
damage
aggravated
property
In other
a fire or
intent to cause
there was no
because
explosion.
fire,
intent to use
words,
intent is the
he contends
required
Walker, 21 Kan.
State v.
He cites
damage property.
explosion
the same construc-
as
Walker was convicted resulting aggravated attempted on the harm for risk of substantial pouring gasoline bodily in front of the where who earlier had McCoy, ground apartment Walker, lived. Walker did not poured gasoline ignite gaso- so, never line and testified he intended to do but merely wanted to force to smell The Court of McCoy gasoline. Appeals concluded that the had not intended for the arson stat- legislature ute to be 2d at 954. It reasoned interpreted literally. as follows:
“The literal of the statute would mean that if one interpretation pours gasoline on another their shrubs front of house and the shrubs are person’s damaged, he or she has another’s with an Pursuant damaged property explosive, gasoline. statute], would be of arson. if one throws [the person guilty Similarly, *7 unlit stick of the window of a he or she has committed dynamite through building, arson. This is true even the would not have because though dynamite exploded lit. the fuse was not
“The the to decide was whether Walker intended to the question ignite the fire or not whether he intended .gasoline damage building by explosion, the building. around damage by pouring gasoline .... believe the unmistakable intent of the was that the term “[W]e ‘ex- legislature was to be as and that tire use of the word plosive’ interpreted ‘explosion’ ‘explosive’ in was an error 21 Kan. 2d at 953-55. [Citation omitted.]” terminology. Walker, The identified in the term has problem “explosive,” been remedied in the instruction and in was avoided pattern case use of the instruction. See PIK Crim. 3d present by pattern 59.22. The facts in Walker the illustration of an unlit paralleled stick of thrown dynamite causing property damage by being case, a window. But in the through present property damage at issue is not to the broken window but rather to the comparable total destruction of a when dwelling by dynamite’s exploding instance, it landed a fire. In the first there was an blazing explo- second, sive fire but no or in the a there was fire and explosion; Nonetheless, from the of an explosion resulting ignition explosive. the lesson from Walker to the Dixon would have the court apply facts of the case to conclude that he could not have been present found arson because he did not guilty aggravated ignite gas released from the broken did he nor ever intend to supply pipe, it. ignite Dixon s does not
Examination
support
statutory language
as
defined arson
part
construction.
pertinent
legislature
fire or
means of
damaging property.
explosive,
knowingly,
the verb
that modifies
is an adverb
“damaging,”
“Knowingly”
off
is set
means of fire or
by punctuation,
explosive”
“by
phrase
elsewhere
that could be
it an
placed
independent phrase
making
Arson
definition. For
any
knowingly damaging
example:
in which another
which is a
or
person
dwelling
building
property,
consent
interest,
without the
of fire or
means
has
explosive
had intended
If the
of such other
require
legislature
person.
in order to
fire or
to use
damage property,
intent
explosive
specific
arson as
that intent
have
it could
knowingly
by defining
expressed
fire
damage property.
explosive
using
be
an accused need not
has
held that
This court
prosecuted
long
in order to be convicted
convicted of the
for or
felony
underlying
Beach,
21-3401(b).
State
under K.S.A.
murder
felony
Wise,
(2003);
State v.
the evidence to support follows: and concluded as evidence, review of all the ... is whether after in this case “The question court is con- to the appellate in the most favorable prosecution,
viewed
light
have found the defendant
beyond
factfinder could
guilty
vinced that a rational
*8
Beach
have found
could
conclude that the
rationally
doubt. We
jury
reasonable
That
acquit-
robbery.
jury
in the underlying felony
aggravated
participated
murder does
of the felony
independent
ted Beach
robbery
aggravated
2. WERE MURDER REQUIRED? FELONY FENSES OF on reckless instructions second-degree The defendant requested lesser included as reckless murder and manslaughter involuntary offenses of murder. The trial court declined to so instruct felony on the that the evidence of the felonies was ground underlying neither weak nor inconclusive.
“A trial court should
instruct on a lesser included offense
only
murder when the evidence of the
felony
underlying felony
weak or inconclusive. The reason for the rule is that die killers
is established
of the collateral
malignant purpose
by proof
felony.”
State v.
(2001).
Kan.
Griffin, who
Dixon the second time he went into
accompanied
Alicia’s
testified that Dixon threw a candle at a televi
apartment,
sion,
bookshelf,
lacked a
side,
knocked the stove onto its
tore a
curtain
window,
down off a front room
and tore
the kitchen
up
the cabinets. Viewed in the
most favorable to
going through
light
defendant,
Gholston,
as
State v.
required,
(2001),
P.3d 868
cert. denied
3. SHOULD THE TRIAL COURT HAVE INSTRUCTED ON LESSER DEGREES OF AGGRAVATED BATTERY? *9 The five counts of
Dixon was battery. aggravated charged 4, 5, 9 that the State had and for Counts was instructed juiy harm to Tena caused that Dixon bodily great recklessly prove Medien, Counts and Nathan Woodling respectively. Wright, James 21-3414(a)(2)(A) See K.S.A. 4,5, level felonies. and 9 are severity the State was instructed that (b). For Counts 6 jury harm to caused that Dixon had to Stacey bodily recklessly prove in a manner Harris and Rosalind whereby respectively Depriest inflicted. harm, or death could be bodily disfigurement great 21- felonies. See K.S.A. level 8 6 and 7 are Counts severity (b). 3414(a)(2)(B) and on included offense instructions lesser
The defendant requested that the counsel and 9. defense Counts requested Specifically, level 8 or be instructed on simple battery severity aggravated jury 4, 5, and to so instruct on Counts The trial court declined battery. conclude could not 9 on die reasonably ground Medien, and constituted of anything Woodling injuries Wright, than harm. other bodily great trial has and the has a to an instruction
A defendant which is a lesser included offense to instruct on supported duty evidence is no substantial evidence. Where there substantial and all the the offense to the lesser charged degrees applicable committed, offense, was if shows that the taken evidence together a lesser instructions degree relating clearly higher degree, Brice, 276 Kan. State v. are not offense Syl. necessary. (2003). P.3d 1113 ¶ was Tena whose shows that
The evidence apartment Wright, north, in her bed- was on the next to Alicia’s upstairs apartment downstairs. Her occurred. when the room daughter explosion her, raft- and fallen on bedroom collapsed Wright’s ceiling down- out to that she was unable the door so ers blocked go get the win- debris to made her stairs. way through thigh-deep Wright on dow, see her where she could standing ground daughter heat was The smoke was up below. rising get heavy, beginning ductwork, into the bedroom. the fire was coming through burned, window or be out the that she either had to go Knowing the fence the window. she chose standing Woodling James *10 her, below and but he was unable to her. hold reaching up fell the fence and landed on the air Wright against conditioning unit. Her and feet were cut and so bruised that legs severely they became black and swollen to double normal size. Her left nearly immobile, side became numb and and fluid in her ab- developed domen. sustained back a her- Wright permanent injuries including disk, nerve, niated and inflammation. She took pinched physical and, trial, for 3Vz months the time of therapy considering to treat back spinal injections surgery continuing pain. lived next door to the Plaza Woodling Eastgate Apart- James ments. When he heard the he told his wife to call 911 explosion, ran toward the and another res- apartments. Woodling nearby ident out of her then got Wright’s daughter apartment. Woodling on the fence to reach toward the window of got up up Wright’s windowsill, bedroom. As was able to Wright gripped Woodling reach her wall was unstable so that legs. building Woodling had to back the wall with one arm and to hold push try Wright with the other. He tried to her to him as her sill pull grip loosened, but he was able to her slow momentum as she fell. only back, While he was to rescue and hold the wall Woo- trying Wright back was He suffered two herniated disks dling’s injured. back, lower which have caused constant since that nearly pain day. trial, At the time of he had treatments begun receiving epidural for his back pain. Medien,
Nathan another resident who ran to after nearby help was told that her mother was explosion, by Wright’s daughter When he about stairs upstairs. got halfway up Wright’s apart- ment, wall, flew Med- cylindrical projectile through trapping len’s hand between the and fallen sheetrock and railing breaking result, his fifth and, He lost his as a at the time of metacarpal. job trial, he was still some benefits and was receiving disability only able to do work. The fracture healed so that he has a light-duty big on the back of his hand. lump Brice, 276 Kan. the court considered the recurring ques-
tion whether a trial court acts
consid-
properly
limiting
jury’s
eration to
harm. The court stated:
great bodily
the evidence to de-
to examine
time-honored
is a trial court’s
responsibility
“It
offense. The
of a lesser included
can be convicted
whether a defendant
termine
lesser
or not
dehberations
giving
jury’s
by giving
trial court
guides
accordingly
is evidence in the case to
. . . Whether there
sup-
instructions.
included offense
made
a determination to be
instruction is
of a lesser included
the giving
port
trivial, moderate, or
harm was
If there is evidence
slight,
the trial court.
Thus a trial
minor,
included instruction.
must
a lesser
then the trial court
give
bone,
wound, even one that missed
major
that a bullet
court could determine
trivial, moderate,
nerves,
arteries, veins,
and will not
or minor
is not
slight,
at 773-74.
instruction for
a lesser included
battery.”
support
*11
the trial court’s
the court affirmed
in recent cases where
Injuries
not
harm and would
determination that
bodily
injury
great
include the
instruction
a
included offense
lesser
following:
support
(1996),
431,
the de
Valentine,
defendant legs, bod with He was inner intentionally causing great charged thighs. Brice, his victim the defendant shot harm or disfigurement. ily veins, bone, arteries, and in the major Missing upper right thigh. He the victim’s buttock. nerves, exited the bullet through a half of work as result of a week and missed injury. case, three victims suffered an of the In the each injury present had months of with effects. physical undergone Wright long-term for further disk and was for a herniated considering options therapy disks and had herniated lumbar had several treatment. Woodling Medien lost his treat his received an job pain. injection epidural months, and, after to his hand of the on account many injury effect, the measure of restricted to still lasting duty. By light than those are more severe in this case of the victims injuries and a week missed 3 the victims and Brice where Whitaker days measure the a half of work and injuries By any respectively. minor, trivial, even moderate. are not victims in this case slight, offense instruc- lesser included The evidence would support tions in Counts and the district court did not err in them. refusing give
4. DID THE AND COMMENT ON DIXON’S QUESTIONS CONTACTING COUNSEL CONSTITUTE PROSECUTORIAL MISCONDUCT?
The asked four witnesses about Dixon’s prosecutor telephone calls and a his after the meeting attorney shortly explosion and weeks before Dixon was and arrested. The charged timing the contacts is to defendant’s it because im- significant complaint someone who was not would con- plies question why guilty tact his or her before arrested or or even attorney being questioned contacted The evidence was elicited as follows: by police. he, Dixon, Griffin, Hall testified that after re-
Jeriy Hayes turned to and he went to Topeka morning July Hayes his Later Dixon returned to Hall’s apartment. day, place. Dixon was nervous and He called someone to find agitated. trying out what was on the Internet about news in The Emporia. prose- cutor asked: “Who else did he call?” Hall testified that Dixon called name, The asked the and Hall attorney. prosecutor attorney’s answered that it was following questions Joe Johnson. answers occurred: *12 —
“Q. Let’s talk a little bit about said the defendant called his you attorney? "A. Yes. “Q. Was it your attorney? “A. No. — “Q. Did the defendant ask to with him Okay. you anywhere go Yes, “A. he did. — after, “Q. the next day? Yes,
“A. he did. “Q. Where was that? — “A. To his to his office. attorney’s “Q. That would be Joe Johnson?
“A. Yes.
“Q. Is that an here in attorney Topeka? “A. In Topeka.
"Q. Did to the office with the defendant? you go “A. Yes.
“Q. How did there? you get came, “A. Wallace me [Dixon] picked up. to talk to this did he he needed “Q. attorney? And say go why — said, reason, will he he let’s just go. you go “A. He never just really gave Me, him, Ethan Griffin went. me talk to my lawyer? The defendant arrived at the office. talk about when “Q. lawyer’s Let’s you
drove there? you
“A. Yes. there? Did meet Ethan Griffin
“Q. you
“A. Yes. to talk to the The three of did
“Q. lawyer? you, you go-in “A. Yes. — hire him? ever retain that Did ever did “Q. lawyer, you you Okay. No, “A. I didn’t. front room? His His conference room? His You walked into where? “Q. Okay. office?
“A. His office. office?
“Q. His personal
“A. Yes.
“Q. Did the three you go together?
“A. Yes. AliciaShaw’s and fire that had
“Q. And did discuss the destroyed you explosion apartment? he did. He had said that “A. He didn’t come out and what just really say — bad, this time real bad. And he his he he think he screwed did up something take a lie detector test. And chewed him out and asked if he was willing lawyer — detector, for Ethan. the lie said everyone yes except — the truth of what had on the “Q. Did or did he tell the you lawyer gone before? night “A. I don’t believe so. that?
“Q. What do mean you — he did. he told it because I don’t I don’t believe “A. I don’t believe lie to his own at that “Q. Did he lawyer point? Yes, down. tell about the fourth “A. because he didn’t person going “Q. Left out? Rodney
“A. Yes. was that he related to “Q. attorney? Can tell the what story you — — — was tell he I him because he “A. story gave story So, tell but I can’t I him a advised him to talk to gave story lawyer police. what it remember was. “Q. You were him with the story? helping Yes, I was.” “A. *13 line did not to this
Defense counsel questioning. object Halvorsen testi- William Kansas Bureau of Investigation Agent the cellular records for as a State’s witness about fied billing that Dixon carried on 28 and the next few July telephone days. Halvorsen testified about a number of calls made by tracking Dixon, including following: — Did call
“Q. did other numbers tracked? you you you “A. Yes. “Q. What was next number? home, “A. Johnson, attorney Topeka. Joe Joe Johnson’s Joe Johnson’s
office. — “Q. The first call to or the first to home? Okay. Joe Johnson’s Honor, Your I’m on relevance [Defense counsel]: object going grounds.
THE COURT: Overruled. 29th, “A. The first call to home was at 8:48 on the p.m. Joe Johnson’s last call was at 9:09 1st on the There were five calls to Mr. p.m. August. home, one of which was at 1:19 a.m. in the on the 31st. morning July Johnson’s “Q. To his home? home, “A. To his that’s correct. "Q. And what about to Mr. office? Johnson’s office, “A. Mr. the first call at 3:04 on the 30th of p.m. July, Johnson’s 1st,
last was at 5:18 five calls.” p.m. August including phone noted, Defense counsel as on the of relevance. objected, ground mother, Rios, asked Dixon’s Gwen about prosecutor going office. Defense counsel and the trial court objected, Johnson’s overruled the Here is the objection. exchange: “Q. After a later did ever have an occasion to couple days you go attorney — office Topeka Joe Johnson’s “A. Yes. — son, defendant, “Q. with and others? your — “A. I went to Joe Honor, Your we
[Defense counsel]: would to secure object any attempt counsel as evidence of legal guilt. it, Hall talked about [Prosecutor]: Jerry Judge.
THE COURT: I’ll allow the question.
“Q. Who was there? Well, there, Hall,
“A. I was there. not till later. son was and third My Jerry which later I found out Griffin. guy,
“Q. Ethan Griffin? ....
“A. Yes.
“Q. And Mr. went to see you Johnson? — “A. Not later when called me in there. they *14 defendant, son, the talk or in with "Q. Jerry But didn’t your you initially go Hall, to talk to Mr. and Ethan Griffin Johnson? “A. No.” that he went to work Ethan Griffin testified morning early was asked and answered the 29. Then he following questions July prosecutor: defendant? after that that next saw the “Q. Was there an occasion you — a call a or two later I received “A. day phone Probably day probably trouble, Dixon, like, I’m in I’m in some serious stuff. from Wallace and he was said, come with me to see he I’m to see would my And my lawyer, you going over, because we were And I said I had to wait on to come my lawyer? girlfriend there, somewhere, So, him I’ll but I eat I believe. I told yes, go up going go rode my girlfriend. “Q. Did to his lawyer’s? you go up I would Comment on the to counsel. object. [Defense counsel]: THE I don’t think that’s a here. You can COURT: proceed. problem “Q. Did to the office? lawyer’s you go Yes, “A. I did. “Q. Who was the lawyer?
“A. Johnson.
“Q. Joe Johnson?
“A. I’m not familiar with his first name. I remember Johnson. “Q. Who also was there? Okay. — Hall, Dixon, his “A. Wallace it was Wallace Johnson, myself, Jerry mother, Wallace Dixon’s mother.” on Dixon’scon- commented closing argument, prosecutor he call that Called his “Who else did attorney: morning? tacting — he called his his after he back to attorney beginning got Topeka, times, one call at He called him 10 at 8:48 7/29. including p.m., of his number.” In the final 1:19 a.m. his home phone portion attention to directed jury’s closing argument, prosecutor that, showed to the number of Dixon’s acts according prosecutor, include did not defendant’s consciousness of guilt. prosecutor the actions Dixon’s his purportedly contacting attorney among showed consciousness of guilt. his that in about
On Dixon testimony eliciting appeal, argues im- calls and visit to his attorney, prosecutor telephone showed that defendant’s attorney contacting properly implying other on cases from that defendant was He relies primarily guilty. that a defendant’s not be jurisdictions principle may guilt See, that he the assistance of counsel. implied by showing sought United, McDonald, (5th 1980) States v. 620 F.2d Cir. e.g., (“It is a defendant’s impermissible attempt prove guilt by fact that he has the assistance of pointing ominously sought counsel.”).
The State whether the issue was questions preserved appeal. seen, As have we no was made when the objection prosecutor ques- tioned Hall. A relevance made when the was objection prosecutor Halvorsen. The State contends questioned Agent objective alibi, of the examination was to refute defendant’s and the State asserts that defendant’s visit to en- testimony concerning Johnson contradicted his alibi. The State’s is not well taken for tirely point First, several reasons. was to that elicited objection questions Halvorsen’s about defendant’s calls to his at- testimony telephone addition, not the visit to defendant’s alibi was torney, Johnson. 28-29, an account of where he was not of his visit to during July office several later. attorney’s days with failed a relevance defense counsel ob- Having objection, to Rios and Griffin on the that it was jected questions ground for the to elicit information about improper prosecutor attempt defendant’s contacts with his On Dixon frames attorney. appeal, the issue as one of misconduct. prosecutorial out that an must be
Pointing
objection
timely
specific
order to
an issue for
see State v.
272 Kan.
preserve
appeal,
Diggs,
349, 365,
581 us, of witnesses which is whether prosecutor’s questioning after the incident im- Dixon’s about attorney shortly contacting defendant’s guilt. properly implied the lack of rel
It
not matter whether the
does
objection
the rule followed
this court for
evance or otherwise because
by
standard of
misconduct maintains
same
issues
prosecutorial
made at trial. See State v.
whether or not an
review
objection
122,
(2003).
Davis,
107,
The standard of review
cases
generally applied
foreign
error. In such a review an
cited Dixon is
for constitutional
*16
to a de-
court considers whether
references
appellate
improper
fendant’s
his or her counsel were harmless when meas-
contacting
a
standard.
ured
Chap-
by
harmless-beyond-a-reasonable-doubt
18,
705,
24,
L.
man v.
386 U.S.
17
Ed. 2d
87 S. Ct.
California,
824,
(1967).
987
The standard of
reh. denied 386 U.S.
Chapman
has
the standard
Kansas
courts for
been
long
applied by
appellate
517, 522, 450
constitutional error. See State v.
202 Kan.
Faidley,
(1969).
in
20
There is a current statement of that standard
P.2d
324, 335,
(2001):
21
997
State v.
271 Kan.
P.3d
Thompkins,
not be held to be
“An error of constitutional
is serious
magnitude
may
a
that it washarmless
harmless unless the
court is
to declare belief
appellate
willing
harmless,
Thus,
declare the error
we
a reasonable doubt.
before we may
beyond
little,
a
doubt that the error had
if
must be able to declare
reasonable
any,
beyond
trial.
likelihood of
the result of the
[Citation omitted.]”
changed
having
that a constitutional error
The State bears the burden
proving
272
was harmless
a reasonable doubt. See State Kleypas,
beyond
894, 1084,
(2001),
834
Kan.
582 as a matter of the issue as Dixon by alleged
Framing
suggested
misconduct rather than
as constitutional er-
strictly
prosecutorial
ror, however,
would
with Kansas
which pros-
comport
precedent
a
violation. In
ecutorial misconduct must involve
constitutional
Pabst,
501, 504,
(2000),
321
State v.
268 Kan.
996 P.2d
“[rjeversible
error
miscon-
stated
predicated
prosecutorial
must
of such a
as to
a defendant’s con-
duct
be
magnitude
deny
Pabst,
a fair trial.”
the claimed
stitutional
As
error may
right
a defendant’s
to a fair trial under the Fourteenth
implicate
right
cases,
Amendment.
other
other constitutional
are
rights
impli-
cated. For
State v.
264 Kan.
600-
example,
Higgenbotham,
416
P.2d
the court
státe-
analyzed prosecutor’s
ment
defendant claimed was
comment on his failure-to
Williams,
6-7,
And in State v.
268 Kan.
As we have
for issues of
this
prosecutorial
court’s standard of review is whether the error denied the defend-
trial,
ant his or her constitutional
to a fair
and the court’s
right
review is the same whether an
was or was not made at
objection
Davis,
trial.
For its decision on the California court cited right 380 U.S. 14 L. Ed. 2d 85 S. California, Griffin Ct. 1229 which that a held comment on a prosecutor’s Fifth defendant’s failure to violated the Amendment to the testily United States Constitution exercise of the by making right costly, as to the constitutional to counsel.” being “equally applicable *18 its also discussed 188. The California court 3d at 114 Cal. App. federal and state courts: from lower with several cases agreement ex rel. Macon in United States Court of with the Third Circuit Appeals “We agree 613, 615, 1973) of the (3d stated: ‘For the 476 F.2d which purpose Cir. v. Yeager little, valid if distinction between ... we any, analysis, perceive “penalty” can be and the to counsel. It argued, self-incrimination right privilege against . . that a . . . situation . as to either prosecu- rigor logical support, equal of from the in the minds an inference to raise jurors’ guilt tor’s comment seeking on the free conduct constitutes a “penalty” defendant’s constitutionally protected omitted.]’ of a constitutional [Fn. exercise right. Macon, to the commented in his summation upon “In the prosecutor crime and an after fact that tire defendant called morning alleged attorney on the defendant’s claim that this action cast doubt shooting argued error, 'in reversible constitutional court held this to be an accident. The Macon of any penalty as an absolute imposition prohibition against terpreting Griffin pp. (Id., law context. a constitutional a criminal for tire exercise of right at 615-616.) that a cannot have also held properly imply “Several states prosecutor generally (1975) (See, v. from a defendant’s for counsel. e.g., People Kennedy request guilt 1976) 414, 417-418]; (Iowa v. [240 N.E.2d State 33 Ill. 3d 857 Kyseth [338 ) 1972) 833, (Tenn. 674]; Crim. 495 S.W.2d N.W.2d v. State Mays 836. (D.C. 1977) 556 F.2d the Circuit v. Williams Cir. “In United States out that about for tire District of Columbia ‘[t]estimony Court pointed Appeals that The court noted for a is pros- the desire or lawyer impermissible.’ request a defendant’s ac- from testimony ecutor constitutionally precluded eliciting to serve as an in view of the of such testimony tion tendency hiring attorney an act. for an inference of based on such the base guilt “Earlier, (D.C. 1974) that same v. Cir. 509 F.2d in United States Liddy adverse inferences indicated that the principle prohibits drawing Griffin the time and circumstances the fact of an but also from not attorney only hiring warned of the ‘mischief of the The court attorney. specifically retaining account because it time and circumstances to be taken into that allows approach’ counsel,’ to seek ‘raises that hobble the inviting ‘probing right problems (Id. counsel-who, and where. . . .’ at when of selection why, p. very process 444.) (ibid.): indeed where ‘It would be rare case As the court observed Liddy out that the feature of could not incriminating employ point prosecutor in the time and . . . not in the as such but ment of counsel rests employment event, that reflect ad and inferences therefrom circumstances surrounding on the defendant. [Fn. omitted.]’ versely (N.D. 1979) Ill. 470 F. in United States Gold Supp. “Recently, that it was federal district court held prosecutors by questions improper em inferences from a to draw adverse and incriminatory corporation’s comments law of a administrative investigation particular proceedings ployment during firm which had a nationwide as criminal defense The court reputation lawyers. (id., 1352): stated ‘It is not to be doubted had the [the p. corporation] constitutional counsel of its choice in the administrative employ proceed *19 and to be advised with to the criminal ... It ings, certainly regard investigation. constitutional, where a is for either to or improper, right prosecutor question comment on its exercise. To do so is to make assertion of the [Citation.] right reason, context, For this in a criminal law it is [Citations.] unfair costly. basically for a to the time and circumstances his reten prosecutor urge against person ” tion of an 114 Cal. 3d at 188-89. attorney.’ App.
The California court reversed Schindler s murder conviction be-
cause it concluded that the errors were prejudicial:
“The
of defendant’s exercise of her constitutional
improper exploitation
rights
to remain silent and to retain the counsel of her choice cannot be deemed harm
(1956)
less error under either the standard
stated
v. Watson
46 Cal. 2d
People
243],
818
P.2d
or the
[299
standard
v.
higher
specified Chapman California
(1967)
824, 24
1065],
The italicized
preceding
quote
portion
re-
will
that the Fifth Circuit Court
shows
Appeals
paragraph
account of a
verse a conviction on
prosecutor’s questioning
at the defendant’s essential
where
are directed
comments only
they
Because
the crime for which he or she
charged.
story concerning
at-
references to McDonald’s
of the
prosecutor’s
implication
evidence”
had
was “that McDonald
destroyed incriminating
torney
and that
“struck at the
implication
jugular
exculpatory story,
the essence of which was that there was no evidence to destroy,”
the Fifth Circuit’s second
for reversal was satisfied.
requirement
See
victed on
to the
of offices
charges relating
burglary
wiretapping
of the Democratic National
(DNC)
Committee
in the Watergate
in the
hours of
1972.
complex
early morning
Saturday, June
was not
the men who were
in the of-
Liddy
among
apprehended
fices, but he was seen outside the
with Howard Hunt
building
after
arrived on the scene. At about 3
shortly
a.m. Hunt
police
called an
and then went to see him.
attorney, Caddy,
tes-
Caddy
tified that Hunt arrived at
at
3:40
Caddy’s apartment
approximately
a.m. and
with him to secure
criminal
arranged
counsel
experienced
for the five men arrested in the DNC
later,
offices. About an hour
Hunt called
Hunt and
what
Liddy.
Caddy explained
Liddy
they
had done to retain an
for the
this con-
attorney
burglars. “During
versation,
indicated that he desired to have
Liddy
Caddy represent
him in this matter.”
ing forward with evidence this The concerning process. mischief subtleties, is underlined its semantic which approach by opens 588 case where It would be a rare indeed door to and maneuver misunderstanding. feature of die could out incriminating employ- prosecutor point not in the as of the absence of ment counsel—in explanation employment —rests event, and and inferences such but in the time circumstances surrounding at 444. on the defendant.” 509 F.2d therefrom that reflect adversely however, case, of Court of
In the circumstances the Liddy that the error was harmless a reason- concluded beyond Appeals The court reasoned able doubt. the fact of “the effect the error was that evidence part Liddy’s mitigated a.m. with admissible to show involve- 5:00 conversation clearly Liddy’s Caddy His in his counsel for those arrested break-in. ment action retaining during use state- assertion of a to Sixth Amendment of his protection against into ments to counsel for himself does not obtain certainly prohibit inquiry por- with
tions of his his action counsel conversation Caddy relating obtaining five others. efforts on behalf of the defendants This evidence Liddy’s only hours their arrest was of his involvement their venture.” few after probative 509 F.2d 445. at State, 82 A.2d 85 de- In Hunter v. Md. App. Hunter, accident, a fatal fendant after vehicle went to causing 911. In a non- house to call He also contacted his attorney. nearby a state answer defense counsel’s questioning, trooper responsive his When defendant tes- mentioned that defendant called attorney. tified, back to and referred the officer’s testimony prosecutor if he had his and then asked him asked Hunter called lawyer why overruled, he called his Defense counsel’s lawyer. objection “ ” answered, me.’ and see if he would defend 82 Md. Hunter To “ at this ‘And 684. The followed with prosecutor up question, App. called to see if he would the reason defend your lawyer you you the road at least a .15 because were down you riding percent stream, alcohol blood ethyl your you percentage weight ” that correct?’ Hun- weren’t attention to isn’t your driving, paying “ ” answered, con- ter ‘No.’ Md. 684. App. prosecutor cluded as follows: his argument closing “ his caused ‘I Mr. Hunter was drunk and this accident negligence suggest you admission, his have Mr. to react own lastly, you inability properly, by “I the last he is wanted to talk to Hunter who talks to his says attorney thing ” Md. if he would me.” A mind. Thank to see defend you.’ my attorney guilty at 685. *22 with the outcome of Macon and a number of agreeing
Although it, cases that followed 82 Md. see at App. Maryland rest, i.e., which cases on those the exercise disapproved premise of a Sixth Amendment to counsel: right “This raises the whether the or obtention question obtention of a attempted or advice to that can be lawyer as the legal prior point exercise properly regarded of a under the Sixth Amendment for of a right purposes analysis. Griffin harm, course, trial, of occurs at when the is evidence elicited or the comment is made, and at that the Sixth Amendment surely has attached. But as point, right the harm consists of the earlier exercise of a Constitutional one penalizing right, must look back the event to constitute the exercise of If purporting right. fact, law, or in it does not constitute of a the exercise Constitutional right, whole 82 Md. at 690. penalty’ analysis collapses.” but convinced that evi- Having rejected analysis being Griffin dence of an or comment on contact counsel was early imper- missible, the court turned its attention to the Due Pro- Maryland cess of Clause the Fourteenth Amendment and the rules of evidence: not, “The of a to seek the advice and assistance of is right person counsel course, restricted to the afforded the Sixth Amendment or its specific right State A counterpart. [Citation has omitted.] person independent right, pro- clause,
tected we think due Amendment general process Fourteenth and its State [citation seek advice or counterpart legal omitted] representation time, matter, for any reason. This is so any when the especially that civil or criminal him person perceives be litigation may against offing, as was the case here. . . . surely “The exercise of this does not a consciousness of imply guilt. seeking advice or legal well believe representation, person himself may culpable some or tortious criminal conduct. But he as well believe himself may just entirely innocent or or he only know whether his acts partly may or culpable, simply omissions are violation of And if law. he has some as belief to his pre-formed innocence, Indeed, that belief turn to be culpability out unfounded. com- may that, mon human would absent some experience circumstance not suggest special here, evident the most advice or likely purpose legal seeking representation to find out one’s what status and If be. there is a inference exposure rational may therefore, to be drawn from the such advice or it cannot seeking representation be more than that —an To draw an inference of consciousness of uncertainty. guilt advice, then, unwarranted; from the of such is both seeking the fact illogical (or to be inferred —the consciousness of not made more less guilt probable —is from the mere advice or so probable) and evidence seeking legal representation, *23 it in- On irrelevant. evidentiary grounds,
of the fact is simply pure predicate at 690-91. 82 Md. admissible.” App. harmless, the that the error was it could not that say Concluding 82 Md. at 691. convictions. court reversed the Maryland case, that Dixon’s State contends In the the right present and with he met had attached when counsel not telephoned John- and criminal the before son in the after days immediately explosion and The State cites had been initiated. Liddy Riddley proceedings the to counsel threshold as attachment of the require- right making assertion, court, did to tire State’s not The ment. contrary Liddy relevant to that initiation criminal conclude the proceedings Instead, a it that cases the concluded prosecu- analysis. involving for counsel arrest on a defendant’s tor’s upon request commenting useful, the claim that not based on where defendant’s were Griffin, to consider when and in not have been the should permitted an circumstances he contacted what attorney: cases, to the coun- “Those right containing language referring generally though sel, an the accused to be bottomed on considerations involving rights appear in which the to counsel is context intimately right facing police interrogation —a self-incrimination. are thus of bound They marginal up privilege against the Sixth Amendment claim in value applicability ascertaining Griffin 509 at 443. in the case.” F.2d raised present who concluded court was between Riddley evenly split justices contact with his counsel was Riddley’s constitutionallypro- Amend- it was made before the defendant’s Sixth tected because who that Rid- attached and believed ment counsel justices Due Process contact with counsel was protected dley’s Amendment. 777 See So. 2d 34-36 Clause of Fourteenth (dissent). 36-39 (majority), 501, Pabst, 321 the court 268 Kan. 996 P.2d State a misconduct alleged
prescribed two-step analysis
prosecutorial
278 Kan.
in
This
was refined in State v. Tosh
test
argument.
closing
First,
(2004).
court decides whether
“(1)
is
and
whether
misconduct
the misconduct
Whether
flagrant;
gross
(3)
is of
whether the evidence
such
will on
shows ill
the prosecutor’s part;
have
would
little
nature that
misconduct
likely
direct and overwhelming
None of these factors
individually controlling.
in the minds of jurors.
weight
factors,
ever
the first two
the third factor can
override
appellate
Before
K.S.A. 60-261
that the harmlessness tests of both
Chap
be able
must
say
18, 17
have
Ed. 2d
Defendant mistrial after hearing testimony requested Dr. Mario Gomez. The motion overruled. trial declare a mistrial when conduct
The prejudicial may trial it the without makes injustice impossible proceed 22-3423(1)(c). mistrial Declaration of a the defendant. K.S.A. discretion, the to the trial court’s and decision matter entrusted an abuse of discretion is will not be set aside on unless appeal that he or The defendant has burden shown. proving clearly
593 Deal, she was State v. substantially prejudiced. Syl. (2001). P.3d ¶
On Dixon contends that his defense was when appeal, hampered Gomez testified with his written because inconsistently report Dixon relied Gomez’ written dis- hiring experts report. During Dixon received a written from Gomez that covery, report stating there were two sources for the leak—a burner possible gas stove or a break the flexible hose to the connecting range trial, wall outlet. At Gomez testified that he did not mean just hose, flexible Iwhat meant ais “Actually, complete assembly is now Exhibit not the flexible because I see the part already intact, flexible it’s so there’s there I can would part nothing say me. I was to the of the flexible help referring assembly pipe, tube plus pipe.” mistrial, of the for motion defense counsel told the support
trial court: “When we received this we told our that we had consulted report metallurgist with that he would no be needed because the State was not longer proceeding broken, on a had been the natural theory rigid or at pipe releasing gas, least were to that effect. based they expert We that on presenting testimony just plain language report.” Defense counsel added: “Dr. William Amoult drafted this so [a affidavit that we metallurgist]
could . . . State’s Exhibit electron subject We called scanning microscopy. all over to find a to do that and then we received this trying facility report, he at this would that he lacks sufficient information point say from materials we sent him him for to draw conclusion. itAnd would have been a costly endeavor himfor that and so that’s we get why quit.” State said its offers to allow defense counsel to have the examined were refused that it had made Gomez available. pipe The State also that Gomez’ ac- suggested imperfect English might count for some Defense counsel con- imprecision report. ceded that the had been offered to him pipe assembly inspec- tion. At the State’s the trial court examined suggestion, Agent Lobdell’s Lobdell testified preliminary hearing testimony. that the vertical prehminaiy hearing supply pipe through *26 it was at its threads where been broken off kitchen floor had joined the kitchen floor. under with the horizontal supply just pipe bench: issued from the trial court’s was ruling in Dr. for mistrial second motion hinges upon provisions “THE COURT: This number think it refers to conclusion I Gomez’s significantly report, NG, have flow started to natural may which alternatively, referring gas, says, quote, the hose the to or accidental flexible connecting range breaking by voluntary outlet, cor- If I’m defense counsel’s the wall end argument quote. understanding term hose’ there that because of the use of the ‘flexible that is argument rectly, to the that there had efforts evaluate claim the terminated to verify defendant also wall that is occur in the threads of the or solid part been a crack rigid pipe I from line. Did that of this line the get right? assembly gas supply gas Honor, a crackthere we understood there was Your COUNSEL]: “[DEFENSE whether that crack was the the union. The between question rigid is, emitted, it before or after that whether occurred reason that natural gas the explosion. Well, event, the motion is to I “THE COURT: understand. Okay. going it this has been Under circumstances case always be denied. appears this for the tried defendant much on responsible pretty premise line and a at the between creation of crack that occurred joint rigid supply (cid:127)— riser, it’s I which is also a where what call the rigid gas pipe, gas pipe hose, Now, which he Dr. Gomez’s refers to flexible threaded report together. includes flexible line and now indicates he calls the whole which assembly, part outlet, outlet, line, no wall refers the wall which there is but it also part rigid has that. Under those circum- it floor. comes up Everybody agreed through stances, I misled that would I don’t think that this so significantly anyone report I think it’s been call it the basis for a mistrial under these circumstances. already where occurred and the circum- what the State’s contention was the crack clear So, the State. . . . the motion is denied.” stances of the claim on part a defense Dixon noted the trial As strategy judge, planning account, to take into Lobdell’s had hearing testimony preliminary from the should have been aware as well as Gomez’ He report. im- Gomez’ contained some reference to wall outlet that report and to he had offered access Gomez been precise language; trial with the Exhibit We assembly. pipe agree gas have should not been that in these circumstances the defendant suffered, if What Dixon have misled. may significantly prejudice with the flexible from Gomez’ along supply any, including pipe less from defendant’s able in his trial resulted hose testimony being the difference doubt the State’s cast up theory playing *27 between the Lobdell. This Gomez and would be not opinions substantial so as to a motion for mistrial. In these prejudice support circumstances, Gomez’ the with the including supply pipe along flexible hose in his trial not in but was a matter testimony report for cross-examination rather than a trial mistrial. The court did not in abuse its discretion defendant’s motion. denying 6. WAS DIXON DEPRIVED OF HIS RIGHT TO A PUBLIC TRIAL? Griffin,
The trial Ethan who was all the charged nearly Dixon, same as was scheduled soon as Dixon’s as charges begin trial was over. Griffin and Dixon not be could tried simultaneously because there was one team. The for Griffin’s only prosecution jury trial was chosen before Dixon’s trial concluded. had it Although dire, sworn been to tell the truth voir at the time the Dixon during verdicts were returned Griffin had not and been sworn jury the trial. In order to de- Griffin empaneled prevent jury’s liberations from tainted information ver- about Dixon being dicts, the trial court closed courtroom to media and spectators before the Dixon verdicts. Defense counsel reading jury’s objected. staff, defendant, In addition to the Dixon and jury only counsel, Dana and Hudson’s were in allowed to remain parents the courtroom while the verdicts were After announced. the ver- read, dicts were the trial told the could not judge jurors they their disclose verdicts “until such I time as have directed that [they] in be disclosed order to undue influence may try prevent any on the trial that we’re to start I about tomorrow. And subsequent have said that would be released once I [these] verdict[s] got sworn, which I occur before jury impaneled expect probably issue, noon tomorrow.” this the trial announced ruling judge that as soon he had as the Griffin direct con- [his] jury “subject trol,” he would release the verdicts and make available complete transcript proceeding. Dixon
On
concedes that
trial
concern
about
court’s
appeal,
contamination Griffin’strial
and that criminal
legitimate
be closed in certain
As the United
circumstances.
proceedings may
States
Court stated
v.
Waller
U.S.
Supreme
Georgia,
to an
104 S.
“the
Ed. 2d
Ct.
81 L.
right
open
interests, such
or
in certain cases
other
trial
rights
way
may give
trial
to a fair
as
defendant’s
interest
government’s
right
information. Such circum-
disclosure
sensitive
inhibiting
rare, however,
of interests must be
balance
will be
stances
law
of this
care.” The
review
struck with
court’s
question
special
White, 275
The State
public
suggest
of the verdict.
trial
to announcement
does
question
apply
*28
to an
trial
a
in
was
defendant’s
Waller
whether
right
open
applied
that
the
Court concluded
to a
and
hearing,
Supreme
suppression
43,
in
has
which Waller
it
U.S. at
48-50. The
instance
did. 467
only
930,
894,
in a
v.
been cited
Kansas case is State Kleypas,
(2001),
40
139
where it was cited for another
P.3d
principle—that
Dixon
need be
cites
seized evidence
suppressed.
only improperly
in
new trials were
because
several New York cases which
granted
the
closed
of
evidence.
the courtroom was
following presentation
N,Y.S.2d
See,
732
Div. 2d
v.
287
People Singh,
App.
e.g.,
an
trial
(2001), in
the
to
was said
415
which
defendant’s right
open
from the time the
to
where the courtroom was closed
jury
apply
the end
Dixon also cites Peo-
was instructed to
of
proceedings.
(1991),
Martinez,
428,
940
172
Div. 2d
568 N.Y.S.2d
v.
ple
the courtroom
in which the defendant’s
removed from
family
of
verdict.
before announcement
Waller,
stated that “under the Sixth
Court
Supreme
over the
closure of a
Amendment
suppression hearing
objec
any
must
set out in
tions of the accused
meet
tests
Press-Enterprise
467
and
U.S. at 47. In
Co.
its
Press-Enterprise
predecessors.”
509-10,
629,
Cal.,
U.S.
78 L. Ed. 2d
Court
464
Superior
(1984),
Globe News
819
Court
S. Ct.
quoted
Supreme
596, 606-07,
Court,
73 L.
Ed. 2d
Co. v.
U.S.
paper
Superior
extensive
made
court it is
findings
by
apparent
to whether
consideration
the closure was ne-
required
given
a
cessitated
interest.
outline of
by
compelling governmental
the trial court’s
drawn from
the reasonable alternative
analysis
court in Kansas
Star
v.Co.
this
means noted
City
Fossey,
by
“
(1981):
‘(1) continuance,
(2)
Kan.
599 in that that of a closed courtroom the in lems Canady eclipsed a first of his conviction defendant learned newspaper. reading Hence, a to be at all of criminal the defendant’s stages right present his a was at heart of to the along right appeal proceeding trial, in At the the evidence bench trial. close of Canady’s public he read some cases and write the announced that would trial judge verdict, the of an Instead of court reconvening delivery opinion. filed the and mailed to trial copies parties. opinion judge in error the failure of the The federal Court of found Appeals in in the to its verdict court district court announce open presence F.3d at 362-63. of defendant. 126 that it was for the trial
We conclude case error present for announcement of verdicts. to close courtroom concluded, if we must determine such error was harm- so Having The less. The discussion of harmless error is instructive. Canady because, if stated: “This is a critical harmless federal court inquiry we have little doubt that verdict error analysis applicable, same that the error would be harm- would be the and therefore less.” F.3d at 363. 126 court continued: federal not are some to which harmless error does “While there errors analysis apply, if the had counsel are the and not the rule. defendant exception Accordingly, ‘they a and was tried there is strong impartial adjudicator, presumption are to harmless-error Rose other errors that have occurred may analysis.’ subject 570, (1986) Clark, 578-79, 106 S. L. Ed. 2d 460
v.
478 U.S.
Ct.
omitted).
(citation
Nonetheless,
so
a
there are ‘some constitutional
basic to
rights
v.
their
can never
treated as harmless error.’ Arizona
fair trial that
infraction
be
1264, 113
1246,
(1991)
Fulminante,
Ed. 2d 302
499 U.S.
111 S. Ct.
L.
are
in the
errors’
‘defects
consti
These so-called ‘structural
(plurality opinion).
‘entire
of the trial from
trial mechanism’ which affect the
conduct
tution
end,’
include,
alia,
for a criminal
inter
‘the absence
counsel
beginning
defendant,’
who is
‘the
‘the
the bench of a
not
judge
impartial,’
presence
309-10, 111
at 1264-65.
trial.’ Id. at
S. Ct.
right
public
listed
the Court
Fulminante
“While
deprivation
right
public
error,’
violation of that
trial as a
we have
‘structural
recognized
every
See,
[114,]
464 U.S.
review.
Rushen [v.
is free from harmless error
Spain],
e.g.,
118-19,
(1983)]
267, 104
ex
communication
L. Ed. 2d
S. Ct.
(finding parte
[78
Keane,
harmless);
101 F.3d
between
to be
Yarborough
juror
judge
(2d
1996)
from
question
that defendant’s exclusion
hearing
Cir.
(holding
brief,’ ‘not even a
part
witness was harmless because hearing
‘extremely
*31
600
denied,
1217,
the trial
and ‘of little
cert.
520
proper/
U.S.
117 S.
significance’),
1706,
(1997);
Williams,
(2d
Ct.
Fulminante case trial court’s failure to subjecting announce verdict publicly harmless error 126 analysis).” F.3d at 363-64. Canady, Here, the trial court considered the advocated interests and the alternatives. The trial court exercised care in a balance of striking those interests. But the court’s decision was made in response intervention area whose interests were the First newspapers, Amendment interests of media freedom. defense counsel Although made a statement of courtroom, simple objection closing Sixth Amendment interest a trial seems not to have been public The trial statement of the interests pressed. balanced was judge’s that “it to me that there is a that a disclosure appears greater danger of the verdict would jury to fair trial [Griffin’s] prejudice right than there is a to the to receive this danger rights public However, information.” it was Dixon’s to a trial that is public at issue here.
Because the reasonable and
obvious alternative of em
seemingly
Griffin’s
utilized,
was available but not
paneling
swearing
court erred. As
warranted and thus the trial
was not
the closure
noted,
be
an error of constitutional
may
magnitude
previously
can declare
held
be harmless unless
beyond
appellate
little, if
likelihood
the error had
doubt that
reasonable
any,
result
the trial. State v.
changed
Boldridge,
having
(2003).
As
cert. denied
7. INSTRUCTIONS JURY two of one for each Dixon was with counts burglary, charged in Alicia Shaw’s hours time he entered apartment early morning count, as 29. For each was instructed follows: of jury July claims must be “To establish this each of charge, following proved: Mr. in a which is a “1. That Dixon entered or remained building knowingly dwelling; so
“2. That Mr. Dixon did without authority; theft, so to commit a and/or “3. That Mr. Dixon did with intent aggravated therein; arson, to a a and/or criminal felony, felony, damage property, 2001 this about the 29th “4. That act occurred on or day July Lyon County, Kansas.” the first defense counsel ob-
For instruction on burglary, was no intent on two there evidence jected grounds—that acts instruction was to arson that commit multiple aggravated of an intent The to evidence needed. State responded regard about stuff arson defendant’s statements commit aggravated intent enter Ali- sufficient to show his flames were up going trial to commit arson. The refused cia’s give judge apartment that the acts instruction on burglary ground presented multiple an alternative means issue than a issue. rather acts He also multiple defendant’s to the lack of evidence: rejected objection evidence an intent “[T]he to commit arson on the first is aggravated burglary recall, I weak. As there a lot of to when discussion as this extremely gas and when these were made that statements are purchased attributed supposedly to the defendant about flames and that and the could things going up type, jury conclude that occurred after the first but entrance to the certainly prior it second entrance could it conclude that was to the first entrance into prior here, all But we’re with is an not intent the actual apartment. again dealing act, out of the and so I’m to allow it to as because carrying going charged go State is entitled to to the all theories of its case.” present jury On are there two to Dixon’s The first is appeal, parts argument. to a unanimous Dixon verdict. should argues have been on the intent with which unanimously required agree he entered Alicia’s He concedes that is apartment. jury unanimity toas which of alternative means which a crime was required committed, but he that the rule to be argues ought changed. rule has been as confirmed at least 2004 in as March State recently Morton, (2004). P.3d There no merit to the first For the second Dixon part argument. part, argues *33 that there is evidence no that he entered Alicia’s apartment the intent to commit arson. State fails to The address aggravated the issue of evidence of intent commit to arson. aggravated
For the
trial
court’s
alternative
proposition
including
means for
there
which
is no evidence
reversal of his bur-
requires
convictions,
Dixon
cites State
255 Kan.
“
glary
Timley,
The trial seems to have believed there was about judge dispute whether the of bucket was or before after the gasoline purchased Hall, all testified that it and Griffin but first Hayes, burglary, were before Hall and the and after first Hayes burglary purchased on the Hall’s friend. The time indicated to taken the residence a.m., and testified that he was 4:23 Hall for the receipt gasoline two after an hour or first occurred Fatty’s thought burglary believed also seems to have at 2 a.m. trial closed judge statements “about there was evidence defendant’s things making conclude were made before flames” that the could up going mind, how- the trial had first The evidence judge burglaxy. ever, which linked the bucket seems to be Griffin’s testimony, were as follows: and answers The pertinent questions gasoline. was with what his Did the defendant ever "Q. gas- say plan [Prosecutor:] oline, the defendant? No, “A. he didn’t. [Griffin:] — On the to 00 the other notebook here. “Q. I want Okay. you go get to 00:35:42. second page, go
“A. 35:42? 00:35:42? that, Yes, lines as well? "Q. Would read a sir. you couple past (The with the “A. witness complied request.) what was with the “Q. Did defendant tell gasoline? plan you — No, he would bum her I Wallace Dixon he say “A. he didn’t. overheard or bum the
would bum up yard apartment.
“Q. Referring gasoline?
“A. Maybe, yes. us the exact it to
“Q. try quote Would read read yourself give you Dixon Wallace gave you? “A. That I overheard? Yes.
“Q. — —(cid:127) is, when all I I’ll bum it and that’s “A. He I heard what heard didn’t up, out window. had when I threw the started that’s gas commotion threw And after that? After “Q. you what you got gas guys happened
it the window what did do? out you “A. We went to Donnie Wishon’s house.” seen, the we have evidence As Wishon is Hall’s friend Emporia. after first that the bucket of shows *34 purchased gasoline the were taken to residence Hall and and before Hayes burglary Hall’s friend. ra- evidence, that a it does not From review of the this appear the to that Dixon had intent fact have found tional trier of could 604
commit arson first time he entered Alicia Shaw’s aggravated 2001. apartment July
Dixon also asserts that there not sufficient evidence to support the instruction on with intent to commit entering apartment criminal This was not damage property. argument presented trial court.
For the instruction on the second defense ob- counsel burglary, on two there was no evidence of intent jected grounds—that commit theft criminal and that a damage property multiple acts instruction needed. The trial court stated that simply “[tjhose have been noted and overruled.” On objections appeal, Dixon there is no evidence that he entered Alicia’s argues apart- ment the second time with the intent to commit theft. The State fails to address the issue evidence of intent to commit theft. Griffin, in the who reentered Nothing testimony only person Dixon, Alicia’s seems to indicate that theft was apartment intent.
The nonexistence of direct evidence of Dixon’s intent does not Intent, end the a state of mind at the time the inquiry. existing committed, offense is not does need to be and can be rarely directly It be established acts circumstances and in- proven. may ferences deducible from evidence of acts and circum- reasonably Wilkins, 256, 264-68, stances. See State v. 269 Kan. 252 P.3d (2000). Wilkins, In we held evidence was sufficient to convict the defendant of where the evidence was that he burglary found in a broken in a hole in roof. pawn shop, having through Kan. case, 264. there was a into second present entry and from the evidence of his unlawful conduct apartment the first it could be inferred that Dixon intended entry reasonably to continue such conduct the second during entry. is whether Dixon’s convictions remaining question burglary
can stand in
of the absence of evidence sufficient to
spite
support
each
In State v.
theory
burglary charges.
Johnson,
921, 923-26,
2d
P.3d
rev. denied
605
286, 289,
(1994)
242
875 P.2d
255 Kan.
Court in State Timley,
“Our Supreme
410,
[1988]),
Kitchen,
756
stated:
Wash. 2d
P.2d 105
110
State v.
(quoting
‘
case,
committed in
where a
offense
be
an
means
may
“In
alternative
single
the
as to
for
crime
there must be
unanimity
guilt
single
more than one
jury
way,
however, as to the means which the crime
is not
charged. Unanimity
required,
each alternative means.
substantial evidence
was committed so
as
long
supports
case,
an
means
the court must de-
alternative
reviewing
omitted.]
[Citations
of
fact
have found each means
commit-
a rational trier of
could
termine whether
’
omitted.]”
a reasonable doubt. [Citations
the crime
beyond
proved
ting
record
contain
out in
the
must
substantial
“Under the doctrine set
Timley,
in
to
a con
all three means
order
uphold
evidence
charged
competent
proving
for kidnapping.
viction
....
a
have attained
of
of
courts of
the
Timley,
appeal
degree
“Despite
language
in
there is
evidence
in
verdicts of
cases where
overwhelming
confidence
guilt
jury
alternative means. Those courts have
the conviction under one
supporting
to
cases for the trial court
instruct
it was harmless error
such
concluded that
on all alternatives.
Grissom,
251 Kan.
with such a scenario
State v.
“Our
Court dealt
Supreme
(1992).
that
first-
Grissom
held
a
verdict of
basis of See United F.3d Cir. liability. 1999). court, Ice, “This State v. 2d P.2d 737 when conviction, that, after where Griffin, concluded one rape pondering reviewing *36 of the bases was of conviction neither unconstitutional but nor possible illegal, evidence,’ sufficient there is no constitutional unsupported by ‘merely problem with the conviction. The Ice court its from distinguished upholding opinion Griffin with the following: differs from those where there was ‘This case evidence one strong supporting another, situation, and none on such as in In a one can theory Griffin. Griffin assume the did not behave and convict on a reasonably jury capriciously theory evidence, in which there no when there was evidence an- strong supporting other 27 Kan. 2d at 7. theory.’ App. before “The task in this case was to determine whether jury Johnson of One cannot tell from the verdict what the for guilty kidnapping. basis that is; however, above, verdict under the cases cited this court can con reasonably clude the the basis of threat which is jury picked by kidnapping supported by evidence, rather than means force or for which overwhelming by deception or there is little no evidence. K.S.A. 60-261 defines harmless as error error any conclude, a court which is not inconsistent with substantial by We there justice. fore, that the term as a means of in the including ‘deception’ kidnapping in instructions this case constitutes harmless error. light overwhelming evidence of we can no see guilt charge, kidnapping injustice Johnson’s done this verdict 2d 923-26. by ." Johnson, Here, Grissom, like there was evidence at least strong supporting one of each and no evidence at least one other theory burglary Grissom, the erroneous Thus, instruc- theory. following burglary tions in this case were harmless.
8. THE DID DISTRICT COURT ABUSE ITS DISCRETION IN EXCLUDING EVIDENCE? testified that he did not want in Dixon s Terry testily Jones
case and received no benefit from so. For the doing purpose Dixon introduce motion impeachment, sought copy Jones’ a downward in his sentence for his seeking departure cooperating with the State. motion recites that he “has infor- provided Jones’ mation and testified on another matter another jurisdiction.” When asked the trial about the de- judge hearsay implications, fense counsel that conceded the exhibit was offered for the being truth of its statement had with the State cooperated Jones cocounsel, After reduced. his sentence order to consulting get the con- it was admissible under counsel defense suggested to the record. The trial tent-of-an-official-record hearsay exception disagreed: judge record, “Yes, but we’re about if we’re about an official talking pleading talking me And it strikes that if I filed court. buy your argument made an attorney I do to make a truthful in this case that all argument
that 60-460 something applies it I file a and I have certified is I be used somebody up pleading against go it can use and then anything.” anybody view in that the motion the trial The State echoed stating judge’s rather and the belief than documented Jones’, attorney’s Jones’ it was not relevant to added that therefore State impeach Jones. declined to admit document: The trial judge matter, this, nature of as a the rather but vague “It’s bad hearsay, practical given have before to this that we us. I that there is relevance can’t tell proceeding this to re-call Mr. and shore if want to make the efforts up But you Jones *37 can, that which I am not doubtful it in some what very way beyond you modify because much Mr. than to more out of already got .you’re get you’ve going Jones . . . .” on can do so he’s testified you he’s denied anybody anything, that be assured the trial he could Defense counsel ready judge he further examination of was next to do whatever morning Jones to do. going the document defense counsel offered The next again morning, evidence, on a uncited into relying hearsay exception— previously of an a matter within the the statement concerned agency scope Defense The trial court refused admission. again parties. testi- that had recalled who testified he counsel Jones, provided had said he in case. who before no other day mony Jones, motion based downward did not being departure approve case, in that he had further testified on his another cooperation the basis of mo- at his to not proceeding objected sentencing tion. evidence lies within sound or exclusion of
The admission
who
that the court abused
the trial
One
asserts
discretion of
court.
abuse. State v.
burden of
such
its discretion bears the
showing
(2002).
1366, 1378,
Although
exception
rule, on
contends that
Dixon
the motion was not
hearsay
appeal
trial
A
at
to the
admission
evidence
hearsay.
may
object
party
State
on one
and then
on
different
ground
appeal argue
objection.
(2002).
9. DID THE TRIAL ABUSE COURT ITS DISCRETION IN PERMITTING TO HALL TESTIFY? JERRY cross-examination, Hall was shown his Kansas Sen-
During Jerry Guidelines He that his tencing Entry Judgment. agreed Journal order included that he would behalf probation “testify State of Kansas a consistent and truthful as set manner forth in his inquisition.” limine,
The trial overruled Dixon’s motion in which judge sought to from Hall at trial on the prevent testifying ground pro- bation order him under a in a placed strong compulsion testify trial, At defense counsel’s renewed particular way. objection Hall’s The trial overruled. refused admit testifying Hall’s on the “it was made journal sentencing entry ground quite clear to the that Hall was a truthful jury” obligated testify manner consistent On Dixon inquisition testimony. appeal, *38 the contends that trial court abused its discretion in Hall permitting to in and the testify excluding journal entry.
K.S.A. 2004 22-3101 out sets the Supp. procedure inquisi- in (3) “[ejach tions criminal cases. Subsection that witness provides shall be to make sworn true answers to all questions propounded to such witness the matters under The tes- touching investigation. of each witness shall be reduced to and timony writing signed by the witness.”
609
Fisher,
179
176 Ariz.
859 P.2d
State
Dixon relies
the
undermined
(1993), in
that
requirement
consistency
arguing
him
threat
with the
of Hall’s
the
testimony by
reliability
pressuring
Fisher,
of the
in one version
facts.
to
of imprisonment
persist
a
“conditioned on
wife entered into
Fisher’s
plea agreement
in
a witness
the trial of
that if she is called as
[her
avowal
[her]
by
Fisher,
her
will
husband,]
to testify,
testimony
required
James
the statements
in relevant areas to
not
previously
vaiy substantially
. .
Ariz. at
The Arizona
. .” 176
80.
to
officers
investigative
given
Court
the
disapproved
agreement:
Supreme
the
fair-
involved
undermine
such as the one
here
reliability
“Agreements
and taint the
function
the trial and
ness of
plea
processes
truth-seeking
bargaining
to stick
one version of
on witnesses
with
of the courts
undue
by placing
pressure
the witness
The constraints
the facts
of its truthfulness.
imposed
regardless
upon
frustrate the
to deter-
with
duty
bound
to testify
consistency
jury’s
by promise
. . .
witness.
mine the
of the
credibility
have
with
for truth-
“. . . The
should
only
[Fisher’s wife]
bargained
prosecution
maintains the
and accurate
Such an
ful
agreement
integrity
plea
testimony.
a fair
unreliable tes-
trial without encouraging
process
promotes
agreement
Ariz.
176
at 74.
timony.”
Fisher
differs
Hall’s
order
from
agreement
probation
with
to
sworn
witness
testimony
testify consistently
requiring
law
officers.
than with
enforcement
rather
statements given
Thus,
where the Arizona court was concerned
agreement
its truth
to stick with one
witness
story regardless
required
witness to
with
fulness,
previous
testify consistently
requiring
or abate
about
seem alleviate
sworn testimony
questions
might
Rivera, In State v.
the truthfulness of
testimony.
previous
2004), however,
(Ariz.
the Arizona
Ariz.
P.3d
Fisher on the
refused to
Court of
ground
Appeals
distinguish
as
Rivera witnesses
well as consis
truthfully
testify
agreed
statements:
tently
previous
concerns
addresses the
that such a distinction
“We do
meaningfully
agree
Fisher is
designed
rise to
law
Fisher.
preserve
expressed
gave
of testi-
which a
evaluates
truthfulness
a trial as the crucible
role of
Thus,
the State from
Fisher
testify witness is not to the subject testing and confrontation her would receive at trial. Once testimony entered the having however, the witness is agreement, the desire to her compelled by preserve plea to hold to the version of events at trial agreement of its specified truth.” regardless State, that there is a as to whether stating split authority affects a trial, defendant’s to a fair consistency agreement its reliance on 236 Mich. places People Jones, App. (1999), N.W.2d 652 denied 461 Mich. 994 as counter app. to the Arizona cases. In four witnesses entered into use im- Jones, as follows: munity agreements provided “ [Witness], 7N THE MATTER OF that if a truthful [Witness] state- provides ment to the Detroit Police his Department of the concerning knowledge killing trials, Hackett and Tyrone [sic] testifies in all truthfully and hear- proceedings in connection with that ings Prosecutor’s Office killing Wayne County will not ” use [Witness’] testimony him.’ 236 bring Mich. at 399. charges against App. The Court of commented on the of the Appeals language agree- ments: “While it would from tire text of the appear that the immunity agreements
witnesses
a truthful
agreed
statement
to the
give
the future,
that was
police
not the
tire
agreement
It is
contemplated by
parties.
undisputed
police
statements referred to in the
were
immunity agreements
those
the wit-
given by
nesses when
were first arrested.” 236 Mich.
they
at 399.
App.
The trial court
a new trial on the
granted
ground
prose-
cutor’s actions with
to the
regard
immunity agreements deprived
the defendant of a fair trial. The
Court of
disa-
Michigan
Appeals
and held that the
had not
greed
resulted in
immunity agreements
236 Mich.
at 404-09.
miscarriage
justice.
The circumstances of the
case differ somewhat from
present
those in
and cases discussed in
in that what is at issue
Jones
Jones
is consistent and truthful
aas
condition of Hall’s
testimony
pro-
bation rather than as a term
Thus,
of a
plea agreement.
regard
order,
to the
there was incentive for Hall to confirm
probation
account but no
incentive that he
prior
not enter into an
balancing
unless his
account was true. Examination
agreement
prior
record, however, shows that Hall’s
also contained
plea agreement
that he
on behalf of the State in a
requirement
consis-
“testify
trial
in his
as set forth
and truthful manner
tent
inquisition
*40
State.”
to do so
the
that he
by
requested
into its
The State
argument by stating
incorporates Jones
if a con-
a
test to determine
court
the
three-part
approved
Jones
and
a
violates defendant’s constitutional rights
sistency agreement
fact,
the
the facts
the
case.
the test to
of
then
present
applying
the
the test
test
the State is not
touted
by
by
applied
three-part
court,
the
factor considered
is instead
one
but
by
only
Michigan
three
of a
factor
of
defendant’s
That
consists
court.
right
safeguards
the State
to be used when
a fair trial said
the
to
Michigan
his or
a witness
for
her testimony:
something
exchange
gives
(1)
the terms of the
struck
include
full disclosure of
“These
agreements
safeguards
witnesses, (2)
wit-
cross-examination of such
the
for full
with such
opportunity
effect,
(3)
the
and their
and
instructions cautioning
nesses regarding
agreements
witnesses who have been induced
to
evaluate the
of
the
carefully
credibility
jury
with
to
die defendant.”
testify
[Citations
the prosecution
against
by agreements
236 Mich.
at 405.
omitted.]
App.
were
that the three
The State contends
procedural safeguards
(1) full
of the
in the
case. There was
disclosure
followed
present
(2)
the
the
for full cross-exami-
terms of
agreement,
opportunity
Hall,
(3)
an
nation of
instruction
carefully
cautioning
jury
that,
witnesses. Dixon
evaluate
credibility
accomplice
argues
Hall’s
order
he was
introduce
because
not permitted
probation
it;
him
he did not have
and confront
with
fully
opportunity
it.
Hall about
Review of
cross-examination
cross-examine
however,
Hall the sen-
Hall,
that defense counsel handed
shows
it.
at
him about
issue here
journal
questioned
tencing
entry
Hall
terms
Defense counsel also
about
pertinent
questioned
a
that there was
full
his
It appears
opportunity
plea agreement.
instruction,
With
to a
cross-examine the witness.
cautionary
regard
did not
witness instruction
Dixon contends that
accomplice
not
fair trial because it did
to a
satisfactorily
safeguard
a witness
evaluate
caution
to carefully
credibility
an
with
had been induced
who
agreement
prosecution
him.
attendant
condition to
testify
probation
against
testi-
court,
for
The
bargain
specific
Michigan
approving
to be able to
reasoned
proceed
prosecution ought
mony,
in the truthfulness of a witness’
statement.
certainty
pretrial
See 236 Mich.
Court,
405-08. The Nebraska
Supreme
Burchett,
State v.
224 Neb.
N.W.2d 258
also
reasoned that the
to be able to
on the truth-
prosecution ought
rely
fulness of a witness’
statement. But the Nebraska court did
pretrial
conclude,
result,
as a
that a
for
bargain
specific testimony
The Nebraska court
considered
acceptable.
to the tes-
challenge
anof
witness who had
several
timony
different
accomplice
given
versions of the crime before
the defendant. The Ne-
implicating
braska court
treated the final ver-
recognized
prosecutor
sion as truthful
of the
entered into
purposes
plea agreement
with the witness and as
the witness’
part
agreement
required
truthful
however,
did not include in
testimony.
prosecutor,
*41
the
that the witness
bargain
requirement
testify consistently
his final statement.
view,
In the court’s
if the witness had been
in conformance
statement,
with his final
required
testify
his tes-
would be so tainted as to
its
timony
Because
require
preclusion.
the
was that the witness
requirement
his testi-
testify truthfully,
was admissible.
vious trial to establish Rivera’s
to establish
guilt.
Rivera’s
Additionally,
guilt
State cannot introduce
statements made
any
Valenzuela or Saiz
by
after they
taint caused
before any
by
consistency
entered their plea agreements
has been removed.
....
in their
agreements
provisions
plea
and Saiz
of Valenzuela
find no reason
testimony
similarly
preclude
“[W]e
taint of the
takes
to remove the
the new trial if the court
appropriate steps
during
demonstrate,
witness
this case
As the facts of
accomplice
improper provisions.
is unenforceable
must be informed that the consistency
prior
herself
provision
informed,
the belief that
and thus testifies under
If she is not so
her testimony.
valid,
still be tainted
the clause is
her
will
by
consistency provision.
testimony
terms
and to make ‘full disclosure of the
clause’
To ‘not
offending
enforc[e]
trial
is
Fisher to ensure
and circumstances
obliged
agreement,’
have,
witness,
to the
counsel she
underlying
may
parties
prose-
any
cution, and,
cases,
are aware
in the
underlying prosecution,
appropriate
in a
entered
accomplice
plea agreement
any consistency provision
The State takes the there is generally position split and, on this issue if Mitchell’s on the manner of authority opinion admitted, death was it is harmless error. The 1976 erroneously
615
State,
the ad-
71 A.L.R.3d
discusses
annotation cited by
coroners and morticians as to the cause
of
of
testimony
missibility
time,
at a
it
when cor-
of death
homicide
appears,
prosecutions
The State also mentions
oners tended to lack medical training.
that he was
K.S.A.2004
Dr. Mitchell is a coroner and
required by
of death. The
22a-232 to
on
cause
report
investigate
Supp.
(Mo.
1983),
Mondaine,
655 S.W.2d
State cites State
that Mitchell was
as to the
for the
testify
qualified
proposition
the State’s
manner of death. Mondaine does not support
position.
of the
in Mondaine was the
of the evidence
The issue
sufficiency
established death
as-
cause of death. The coroner’s
by
testimony
that the victim
established
eyewitness testimony
phyxiation,
witnesses
had been
The combined
of those
testimony
strangled.
of the condition of the victim’s
estab-
with evidence
body,
along
death. The Missouri court con-
lished
as the cause of
strangulation
cluded that
as to causation was admissible de-
opinion testimony
it
its not
mere
as
as was
spite
going beyond
possibility
long
The lies testimony admissibility expert court, will not reversed cretion of the trial and its determination be Shaw, an State v. absent abuse of discretion. appeal showing (1996). 921 P.2d 60-456(b) K.S.A. “If the witness is as testifying provides: the witness in the form of or infer- testimony opinions expert, (1) such as the finds are based ences is limited to opinions judge or known or made known on facts or data perceived by personally (2) and within the to the witness the hearing scope special skill, the witness.” knowledge, experience training possessed Mitchell whether subsection asked To satisfy prosecutor find- he reviewed police investigation reports investigation Mitchell testified that he had and that he did so “[t]rying ings. events, and not known as what is pos- figure sequence demise.” of events that led to these sible the sequence people’s need that infor- followed “Do you prosecutor up asking, or, me, excuse to then determine for the cause of death mation manner of under Kansas law to state the conclusion required answered, that, “I The witness include death?” yes.” *44 the district coroner for He testified Mitchell is Lyon County. that a within coroner is for death responsible investigating any her where the State has some interest in the death jurisdiction and that he is for the “cause and manner responsible determining death as stated in the statute.” Asked to from cause distinguish manner, “[cjause Mitchell that what stated kills you” “[mjanner of death defines the circumstances under which the cause results death.” He your gave following examples: could a at kill The cause would “[S]omebody you, you. point gun pull trigger, be tlie The manner in that would be a homicide. You gunshot injury. sequence it’s, constructed, it could would because let’s drop gun, discharge say,improperly the bullet strikes The cause of death will The manner that be you. gunshot. all, instance will be accident. You could tired of it get point gun yourself, death, the firearm. The cause of what killed would be the discharge you, gunshot. The manner under those circumstances would be suicide.” He testified that he was under Kansas law to file a death required certificate with the Office of Vital Statistics. Over defense counsel’s the death certificates of Dana and Gabriel Hudson were objections, admitted into evidence. The forms have a for the “Manner space natural, accident, suicide, of Death” with six listed: possibilities homicide, and could not be determined. On pending investigation, Hudson, the certificates Dana and Gabriel there is an “x” in the box for homicide. of a coroner’s death was issue admissibility report Hobbs, (2003).
State v.
276 Kan.
The in State’s reference case to K.S.A. 2004 present Supp. 22a-232 is to the statute the sort of death requiring likely report 22a-232(a) involved in Hobbs. K.S.A. 2004 a coro- Supp. requires ner to “make the cause of death and reduce inquiries regarding to a in to be filed the clerk of the findings report writing” district court of the in which the death occurred. The doc- county uments that were admitted into evidence in the case were present certificates, death which are to be filed with the state required and are the official death records. See K.S.A. 65-2412. registrar 65-2416(b) K.S.A. that “the state shall not provides certify registrar a death certificate which the manner of death is marked other than natural unless the death certificate district cor- signed by Mitchell, coroner, oner.” as the district required sign Hudson, and, death Dana certificates of and Gabriel as a matter law, certificates, he was The to do so. death which qualified homicides, the deaths as were admitted into evidence. classify Dixon does not of their admission. If admission of Mitch- complain reason, ell’s the manner death as to was error for testimony the error restated would be harmless because testimony merely the contents of the death certificates. There was no abuse of dis- cretion Mitchell to as to the manner of death. testify permitting INSTRUCTED, 11. SHOULD THE HAVE BEEN AS JURY DEFENDANT THAT HALL’S PLEA REQUESTED, JERRY THAT HIS TESTI- NOT GUARANTEE AGREEMENT DOES TRUTHFUL? MONY IS included in the of re- instruction was
The package following Dixon: instructions filed by quested which to a “Witness Hall has testified provides Jerry pursuant plea agreement Mr. in this case. That Hall’s that he must truthful plea testimony portion give will be truthful. It is does not that his testimony your duty guarantee agreement The no of Mr. Hall’s State has to determine the credibility testimony. weight this information the truthfulness of testimony beyond knowledge regarding this trial.” has been the evidence which presented during provided you Dixon con- trial did not the instruction. On The give appeal, to counter the tends that the instruction necessary agree- plea the State that Hall’s ment’s testimony implied representation would be truthful. is, if taken
Our standard of review the instructions together the law as to the facts as a whole state fairly applied properly have been misled of the case and could not jury reasonably them, reversible error even if the instructions do not constitute Peterson, are in some erroneous. State they way (2002). 42 P.3d contends that the trial court’s instructions on the cred- The State witnesses and the of an testimony sufficiently ibility accomplice to exercise caution in Hall’s testi- informed jurors assessing was instructed: “It is for to determine you mony. *46 the of each witness. You and credit to be testimony weight given have a to use common knowledge experience regard It was further to the matter about which witness has testified.” “An witness is one who testifies that he was instructed: accomplice which Mr. involved in the commission of the crime with Dixon is You should consider with caution the of an testimony charged. accomplice.” 257, 547
Dixon relies on Commonwealth v. 406 Mass. Ciampa, N.E.2d 314 his contention the should have jury support did not the been instructed plea agreement guarantee of Hall’s In the case truthfulness Ciampa, testimony. government’s on the of a witness named De- greatly credibility depended 4 for further Vincenzi. The deliberated for and asked jury days instructions on the In witnesses. determining credibility Ciampa, case, unlike the the was admitted into evidence present agreement and various bolstered provisions agreement spuriously the of DeVincenzi should have been redacted but were credibility not. Over the read the to De- objection, prosecutor agreement Vincenzi and asked him about his of each understanding para- Then, also over introduced graph. objection, prosecutor DeVincenzi’s that his a statement testimony attorney signed rep- that DeVincenzi understood the his resenting agreement, attorney him, had reviewed the with and his believed agreement attorney DeVincenzi’s decision to enter into the to be an in- agreement formed and one. The Massachusetts court concluded voluntary that the defendant was “from admission of the prejudiced plea with not deleted and from De- agreement damaging provisions Vincenzi’s involvement with testimony concerning attorney’s Mass, at 263. The Massachusetts court plea agreement.” further concluded that such “was not alleviated prejudice by Mass, at 263. judge’s charge.” from the case on a number of
Ciampa distinguishable present case, In counts. this the State’s case did not depend heavily Hall’s Hall did not Dixon testimony accompany during —because the second of Alicia’s he had no burglary apartment, testimony offer relevant to the cause of the and fire. The explosion questions asked in this case include no of concern by jurors expression about of witnesses. Neither the determining credibility plea nor the for Hall was admit- agreement journal entry sentencing ted into evidence. There was no that Hall’s implication attorney Thus, vouched for his truthfulness. found prejudice Massachusetts court is not in the case. Because apparent present the trial court did not need to alleviate prejudice cautionary case, instructions in this the instructions deemed necessary by case, Massachusetts are extraneous. this Ciampa instructions on the of witness weight credibility testimony taken with all the other instruc- accomplice testimony, together tions, stated the law as to the facts and a could fairly applied have been misled them. The trial court did not reasonably commit error is not instruction. giving requested *47 TO ESTABLISH SUFFICIENT THE EVIDENCE
12. WAS THE RESPONSIBLE FOR DIXON WAS CRIMINALLY THAT AND FIRE? EXPLOSION that he was evidence showed that the State’s
Dixon contends 29 and that a hours of in the Alicia’s morning July early apartment but that natural caused the malfunction of the stove gas explosion, the that he caused did not the evidence explosion. prove because Dixon was not that this issue is moot is State’s response that Dixon caused arson. The evidence convicted gas aggravated the fire was the basis leak, and fueled which eventually exploded deaths of Dana and murder for the convictions of for his felony vic- for the five and of Gabriel Hudson injured battery aggravated Hence, that Dixon tims. evidence criminally respon- showing to the case. and fire was essential sible for the explosion First, he to Dixon’s are several related There aspects argument. in Alicia’s that he left that there is no evidence states anything Second, that the stove. he from suggests ignited gas apartment an burner or two on the stove or an open light extinguished pilot Third, leak. he states the source of the have been gas may than rather evidence that the stove there was scientific upright the When the side at the time of on its sufficiency explosion. case, in a criminal the standard of review is the evidence challenged evidence, whether, all the viewed in after review of light court is convinced most favorable to appellate prosecution, have found the defendant that a rational factfinder could guilty Beach, 275 Kan. doubt. State v. reasonable Syl. ¶ beyond (2003). 67 P.3d evidence, most favor- viewed
After all light reviewing the State showed we determine able to the by prosecution, the debris field of elimination appearance process of Griffin that it was a natural testimony explosion gas stove, which, in- it be that Dixon overturned reasonably may create ferred, allowingescaping gas damaged gas supply pipe natural where the volatile condition gas proportion extremely Lobdell deter- for combustion. air Agent only spark required in Alicia’s the fire mined that the fuel-air originated explosion *48 He concluded that it was Dixon’s of the apartment. fracturing pipe that leak out caused the after other gas ruling possible explanations: left If Alicia had her stove with or a extinguished light pilot burner, would in have been the kitchen leaking gas apparent during the first Hall did smell first not the burglary. gas during burglaiy. Lobdell out ruled sources other than stove for the pipe escaped heater, furnace, the hot water and other gas, including appliances. Tests for accelerants were one negative liquid except insignif- basement, icant from the debris in the which was sample probably a can or bottle of some commercial product containing petroleum furniture, distillates. the condition of he determined By remaining that the in not basement. Then Lobdell ignition point determined from the meter to Alicia’s that gas apartment approx- 1,000 cubic feet more natural into her flowed imately gas apart- ment than to other during July apartments.
The State was unable
what
to show
off
touched
actually
Lobdell testified that there was no scientific
to de
explosion.
way
termine what
and that it
was not
ignited
explosion
commonly
so
to do
“because what
caused
possible
ignition
destroyed
in the
fire.” But it was not essential
State to
for the
show
resulting
that Dixon
the State
because
did show
Dixon’s
ignited
gas
actions caused
to be
in
From the
gas
present
explosive quantities.
absence of a
death or
in Alicia’s
person’s
injury
apartment,
could have
inferred that
was not
hu
reasonably
gas
ignited by
man action
rather from
but
from some nonhuman source.
spark
all the evidence in the
most favorable to the
Viewing
light
prose
cution,
must,
as we
in mind that a
conviction
even
keeping
evidence,
offense
be sustained
circumstantial
gravest
may
Davis,
State v.
13. DID CUMULATIVE ERRORS DEPRIVE DIXON OF A FAIR TRIAL? error,
As we have reversible do not reach found we previously this cumulative error issue.
Affirmed in reversed in and remanded for a new trial. part, part, Nuss, Luckert, Gernon, JJ., participating. Brazil, Patrick S.J., assigned. J.
Gary Rulon, C.J., assigned. I concur and dissenting Beier, part: J., concurring part all of the con- and rationale as to defendant’s result majority’s victions the two except burglaries. I member of the Court of was a Appeals panel
Although
*49
67, rev.
2d
11 P.3d
decided State v. Johnson,
Grissom,
(2000),
251
on State v.
Rulon,
While I
C.J.,
majority
dissenting:
agree
trial,
of the ev-
were errors
this
nature
overwhelming
given
were
State
idence of
the errors
harmless. See
v. Lumley,
guilt,
(1999).
affirm
Kan.