Reginald Dupree appeals his convictions for felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. On appeal, Dupree raises a total of eight arguments, which can be generally categorized as follows: two charging information issues, a sufficiency of the evidence challenge, three jury instruction issues, a witness sequestration issue, and a cumulative error argument. For the reasons set forth below, we affirm Duprees convictions.
Factual and Procedural History
On the evening of December 14, 2011, two intruders pushed their way into a Wichita home (the “Locust Street home”). The homeowners 19-year-old daughter, Regina Stuart, was home at the time with her boyfriend, Markez Phillips, and her 5month-old nephew. Someone knocked on the side door, and when Phillips went to answer there was a struggle. As Phillips tried to close the door on the intruders, one of them shot him in the face. Two men then entered and forced Stuart to accompany them while they went throughout the house looking for valuables; the two men, plus another intruder, ultimately left with several televisions.
Investigators soon linked five men to the crime. The State charged Dupree with seven criminal counts: first-degree felony murder, kidnapping, aggravated burglary, aggravated robbery, two counts of aggravated endangering a child, and aggravated assault. At trial, Dupree did not deny that he was involved in the crimes and was one of the two initial intruders; nor, in asserting his arguments on appeal, does he deny his involvement. Instead, he took the stand in his own defense and explained he was an unwilling or unaware participant and never intended to rob or shoot anybody.
Given Dupree’s admission to being present when the crimes occurred, we need not discuss many of the evidentiary details heard by the jury in this lengthy trial. Instead, we will confine ourselves to the essential facts necessary to understanding his issues on appeal.
Many of these essential facts stem from Stuart’s testimony. Although she did not know the two men who first entered her home, she later identified them as Dupree and Malek Brown. She told the jury the men entered the room where she had been watching television; she described them as rounding the corner into the room at the exact same time. One man, Brown, held a black handgun. Stuart testified both men asked her for her cell phone, wallet, and money. She told them she only had her phone, which she gave to them. Brown then put the gun to the back of her head, and both men forced her to move room to room while asking her about the location of a safe. She repeatedly told Dupree and Brown there was no safe, but both said she was lying and threatened to kill her. Eventually she told the men to just take the televisions. She heard Brown make a phone call and ask someone to pull up and help him load the televisions.
After Brown made the phone call, Dupree told her to sit in a chair, but Brown made her lie face-down on the floor next to her nephew. At this point a third person, whom Stuart recognized as Daniel Dupree, entered the house. Daniel seemed shocked to see Phillips on the ground and asked Dupree what they were doing. Daniel told the men they needed to leave and were not supposed to have killed anybody. The men then took televisions out of the house.
Stuart testified it did not seem Brown forced Dupree to do anything, and she never
The State presented other evidence impheating Dupree and the other men in the crimes. Stuart’s grandmother, along with another of Stuarts nephews, encountered the men as they were leaving the Locust Street home, and one of the men pointed a gun at them. Others testified about their observations of and conversations with Dupree and his companions both before and after the crimes. In general, these witnesses did not observe anything indicating Du-pree was ill on the day of the shooting or suggesting he had been coerced to participate. In addition, video from a nearby security camera corroborated the testimony of Stuart, her grandmother, and Dupree about the incident: a Jeep drove up to the Locust Street home, two occupants got out and moved toward the home, and the Jeep returned after a few minutes and backed up the driveway so the men could load the televisions.
The defense presented only one witness: Dupree. Dupree testified that the day of the shooting he felt like he was coming down with something — his nose was running, he had an itchy throat and the chills, and he was tired. As the day went on, he felt worse and worse. During the afternoon or evening, Dupree asked for a ride to get some medicine. Dupree, Francis Dupree, and Daniel Dupree all got into a Jeep driven by Brown. Dupree testified that Brown seemed upset, possibly intoxicated or high, and did not seem like himself. Brown announced he had to pick something up first and pulled into a neighborhood. Brown circled the block a few times before pulling in front of a house. He asked the passengers to help him get some stuff. But when they all got out, Brown said, “I don’t think this is the house.” So the men all got back in the vehicle and left.
According to Dupree’s testimony, after driving around for a bit longer, Brown decided the house they went to was the right one after all. He drove back to the house and parked, at which time Dupree told Brown he felt poorly and his body was aching. Brown replied, “Come with me.” They walked up to the house, and Brown knocked at tire side door. Dupree then said, “I forgot my phone in the car. I’ll be right back.” He turned to walk away. As soon as he did, he heard the door open. Brown said something, and the man inside tire house replied, “I said I was going to beat your ass if I see you again.” Before Dupree got halfway down the driveway he heard a pop.
Dupree testified he was scared and jogged back to the doorway to see what had happened. He saw Phillips on the ground and Brown with a gun in his hand. He asked Brown what he was doing, but Brown did not reply and just waved the gun at him. Browns attorney asked whether Brown pointed the gun at him, and Dupree replied, “You can say that.” Dupree hesitated at the threshold, but Brown waved the gun again and said, “Come on.” When Dupree entered the Locust Street home he saw Stuart standing in the living room. Brown took her phone and then asked about a safe and some money. Brown pointed the gun at Stuart s back and made her lead him around the house. Dupree stayed close because he did not know what was going on.
Dupree testified that after Brown called for help loading the televisions, Brown told Dupree to stop standing around and help. Dupree complied because he was shocked and did not want anything else to go wrong. On his way out, he saw Daniel enter the house and heard him tell Brown he was not supposed to have shot anybody. As they were driving away, Daniel kept yelling at Brown for shooting someone.
On cross-examination, Dupree explained he did not leave after hearing a gunshot and seeing Phillips on the ground because he was afraid for his fife. Although Brown did not threaten him, he waved his gun at him. Dupree denied ever speaking to Stuart at any
The juiy found Dupree guilty on all seven counts. After denying Dupree s posttrial motions for a new trial and judgment of acquittal, the district court sentenced him to a total sentence of life imprisonment, with 20 years’ minimum, plus 122 months. Dupree now appeals from his convictions. We have jurisdiction over his appeal pursuant to K.S.A. 2015 Supp. 223601(b)(3) (permitting a direct appeal to the Kansas Supreme Court in any case where a maximum sentence of life imprisonment has been imposed).
Analysis
Dupree raises eight arguments on appeal, and, as we briefly mentioned above, they can be categorized as arguments relating to deficiencies in the charging information, sufficiency of the evidence, the jury instructions, witness sequestration, and cumulative error. We will address his claims in that order.
Issue 1: The State’s failure to charge Dupree specifically loith “aiding and abetting” aggravated assault and aggravated child endangerment offenses did not deprive the district court of jurisdiction over these offenses.
Dupree contends the State’s failure to charge him specifically with aiding and abetting aggravated assault and aggravated child endangerment rendered the charging information insufficient, such that it never conferred subject matter jurisdiction on the district court. He argues there was no evidence he committed these offenses as a principal, and thus the States failure to charge him specifically as an aider and abettor requires these convictions be reversed. He acknowledges he failed to raise this argument before the district court, and he also acknowledges our precedent is contrary to his claim.
In making his argument, Dupree relies on past cases in which we have stated that, “if a complaint fails to include an essential element of a crime charged, it is ‘fatally defective, and the trial court lacks jurisdiction to convict the defendant of the alleged offense.’” State v. Gonzales,
Turning to the specifics of Dupree s argument, he asserts that aiding and abetting is a specific intent crime with a separate, additional element of proof beyond the elements of aggravated child endangerment and aggravated assault — namely, the specific intent to aid and abet. See K.S.A. 2015 Supp. 21-5210. According to his theoiy, that means the charging information must allege that the defendant aided and abetted the commission of a crime. Absent that specific allegation, he argues, the information was fatally defective.
Three aiding and abetting liability statutes that have been in effect in Kansas at one point or another put Dupree’s argument in context. Prior to July 1969, tire Kansas aiding and abetting statute read: “Any person who counsels, aids, or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Emphasis added.) G.S. 1949, 621016. This older statute expressly permitted the State to charge a defendant as a principal even if tire defendant was only an aider and abettor.
From July 1969 to July 2011 (several months before die December 2011 events at issue in dris case), Kansas utilized K.S.A. 21-3205(1),
Williams, which was published after Dupree filed his appellate brief, represents one of our more recent affirmations of this longstanding rule. The Williams defendant, like Dupree, had argued the district court lacked subject matter jurisdiction over certain offenses because the State failed to separately charge aiding and abetting. See
Nevertheless, Williams only addressed K.S.A. 21-3205, which was the statute in effect at the time of the crime and trial in that case.
Now, because K.S.A. 2011 Supp. 21-5210(a) was the statute in place at the time of Dupree s crime and trial we must determine the pleading requirements under its terms. It provides: “A person is criminally responsible for a crime committed by another if such person, acting with the mental culpability required for the commission thereof, advises, hires, counsels or procures the other to the commit the crime or intentionally aids the other in committing the conduct constituting the crime.”
The difference between our present statute and the earlier statute discussed in Williams comes down largely to formatting; in other words, we see no meaningful difference supporting a departure from Williams. Under K.S.A. 2015 Supp. 21-5210 the State is not required to use the words “aiding and abetting” in the charging document in order to pursue a theory of accomplice liability at trial.
Dupree’s charging information thus did not fail to allege an essential element of the crimes of aggravated child endangerment and aggravated assault. See Gonzales,
Issue 2: The State’s oral amendment to the felony-murder charge did not deprive the district court of jurisdiction or otherwise constitute reversible error.
Dupree’s second jurisdictional argument relates to the State’s oral amendment, at the close of evidence, to the felony-murder charge. The State’s motion, which was made after the district court had denied Dupree’s motion for acquittal, requested permission to change the underlying felony from aggravated robbeiy to aggravated burglaiy.
Dupree’s counsel responded by saying, “I suppose for the record, I would [object].” He argued that he approached the case with the idea that “aggravated] robbeiy was the underlying felony.” The State contended there was no prejudice to Dupree, since during the preliminaiy hearing the district court approved both the aggravated robbery and aggravated burglary charges and thus both
Now, on appeal, Dupree urges us to conclude the State’s amendment was not sufficiently specific. Additionally, while he recognizes the State need not always formally file an amended complaint, he contends its failure to do so in this case prejudiced his defense and constituted reversible error.
In general, the State bears the burden of filing a written complaint setting forth the essential facts constituting die crime charged. See K.S.A. 22-3201(b). The State may, with the district court’s leave, amend an information “at any time before verdict... if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.” K.S.A. 22-3201(e). This amendment may be oral, but “the prosecution has the duty to memorialize the amendment by filing an amended complaint.” State v. Switzer,
To determine whether a failure to memorialize an oral amendment requires us to reverse a conviction, we examine (1) whether the amendment was appropriate — meaning no additional or different crime was charged and the substance of the amendment was not prejudicial, and (2) whether the failure to memorialize the amendment was prejudicial to the defendant. See Davis,
Applying these concepts in this case, we first conclude the information did not charge a new or different crime. Second, changing the underlying felony did not prejudice Dupree. The States oral amendment only affected the felony-murder count by changing the underlying felony. And this change came as no surprise because Dupree had been charged with both underlying felonies, had defended against each, and his defense did not revolve around the nature of the underlying" felony. In fight of these circumstances, Dupree has failed to convince us that swapping the underlying felony for the felony-murder charge impaired his ability to defend himself or impaired his right to a fair trial. See K.S.A. 22-3201(e); Nunn,
So far we have considered the amendment itself. We must now consider whether the fact that the State did not follow up its oral amendment with a written amendment constitutes reversible error — that is, whether amendment only by oral motion prejudiced Dupree. See Davis,
Dupree had notice of the amendment made on the record. See Switzer,
Accordingly, we hold the State’s oral amendment to the felony-murder charge, even though not memorialized, did not deprive tire district court of jurisdiction or otherwise constitute reversible error.
Issue 3: Sufficient evidence supports Dupree’s felony-murder conviction.
Dupree claims insufficient evidence supported his felony-murder conviction. He points out that while the amended information charged him with felony murder based, on a killing that happened “while in the commission of, attempt to commit, or flight from” aggravated burglaiy, the juiy instructions only asked the jury to consider whether Phillips was killed while Dupree “was committing” aggravated burglary. He contends aggravated burglary is not “committed” until a perpetrator actually enters a building. Thus, Dupree argues the evidence was sufficient to establish only an “attempt to commit” aggravated burglary at the time of the murder because the evidence only established, at most, that he and Brown were trying to get into the Locust Street house (by pushing on the door or shooting through the door from the outside). In other words, according to Dupree, because the jury instructions theory only encompassed a completed burglary and not an attempted burglary there was insufficient evidence supporting his felony-murder conviction as charged.
Given that Dupree raises this issue as a sufficiency of the evidence claim, our standard of review is to “look[] at all the evidence in a light most favorable to the prosecution and determin[e] whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye,
The felony-murder instruction required the jury to consider whether “[t]he killing was done while defendant was committing aggravated burglary.” Granted, this was narrower than the charging information, as amended, which stated that Dupree and others killed Phillips “while in the commission of, attempt to commit, or flight from” aggravated burglary, language that mimicked the felony-murder statute. See K.S.A. 2015 Supp. 215402(a)(2) (defining felony murder as “the killing of a human being committed ... in the commission of, attempt to commit, or flight from any inherently dangerous felony.”).
Despite this deviation and the focus on whether the killing occurred while Dupree “was committing” aggravated burglary, we have previously explained:' “ ‘The question for the jury is whether the death is within the res‘gestae of the crime, regardless of the actual sequence of events.’” State v. Beach,
Plere, to determine whether Dupree “was committing” aggravated burglary when Phillips was shot, the jury could consider the moments immediately preceding the shooting, the moment of the shooting, and the moments immediately after the shooting, all of which fell within the res gestae of the felony murder in this case. Thus, it does not matter whether Phillips was shot during the scuffle to enter the home (which Dupree argues would only be an “attempt” to commit aggravated burglary) or once Dupree and Brown were over the threshold (which Dupree agrees would be a “committed” aggravated burglary) because the instruction permitted the jury to consider all these moments together as it determined whether a killing occurred while Dupree “was committing” aggravated
In fact, Dupree acknowledges that his attempt to distinguish between attempting to commit and committing a completed underlying felony is contrary to our precedent regarding res gestae. But he nonetheless urges us to set this precedent aside as inconsistent with legislative intent. He argues the three options in the felony-murder statute — a killing that occurred in the commission of, attempt to commit, or flight from any inherently dangerous felony — eliminate the res gestae concept and segment the nature of the State’s proof.
Dupree is nominally correct because K.S.A. 2015 Supp. 21-5402(a) does set forth various circumstances in which the crime can occur. As we have stated:
“The felony-murder statute has two primary elements — killing and simultaneously engaging in an inherently dangerous felony. The second element can be established through proof that the killing occurred while the defendant was committing, attempting to commit, or fleeing from an inherently dangerous felony. These are simply factual circumstances in which a material element may be proven.” State v. Cheffen,297 Kan. 689 , 702,303 P.3d 1261 (2013).
In some felony-murder cases, there will be clear evidence that the death occurred after completion of the crime. See State v. Kunellis,
Here, the struggle at the door, the shot, and the entry happened so close together that they were all part of the same occurrence and within the res gestae. The evidence sufficiently supported the jury’s finding that Phillips was killed while the men were committing aggravated burglary. Accordingly, we need not reach the parties’ other arguments, and we hold there was sufficient evidence to support Dupree’s felony-murder conviction.
Issue 4: The jury instructions do not require reversal.
We turn now to Dupree’s three jury instruction arguments. We begin by discussing the steps of analysis that we apply when analyzing a claim of error arising from jury instructions. These steps are:
‘“(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of foe claim to determine whether error occurred below; and (3) assessing whether foe error requires reversal, i.e., whether the error can be deemed harmless.’” State v. BolzeSann,302 Kan. 198 , 209,352 P.3d 511 (2015) (quoting State v. Williams,295 Kan. 506 , 510,286 P.3d 195 [2012]).
Applying these steps to each of Dupree’s three jury instruction issues, the parties focus on the second step, at which we determine whether there was any error at all by “ ‘considering] whether the subject instruction was legally and factually appropriate, employing an unlimited review of the
4.1. The jury instructions did not result in an erroneous felony-murder conviction based on principal liability as opposed to aiding and abetting liability.
Turning to the specifics of Dupree’s first jury instruction issue, Dupree claims his felony-murder conviction must be reversed because the jury was not properly instructed about aiding and abetting liability. He believes the jury instructions precluded consideration of aiding and abetting liability for the felony-murder charge— meaning the jury could only have convicted him of felony murder as a principal. He further contends no evidence established he was the one who fired the gun and shot Phillips, and he also seems to imply the jury could not consider that he aided and abetted the aggravated burglary to the extent the commission of that crime was an element of felony murder, as charged. Therefore, he argues, the jury could not find him guilty of felony murder.
The aiding and abetting instruction at issue was given after both the State and Dupree proposed using PIK Crim. 4th 52.140, the pattern jury instruction explaining accomplice liability based on the theory of aiding and abetting. The district court proposed a slight modification, beginning the instruction with the words “[a]s to Counts 2 to 7.” As Dupree points out, this alteration effectively informed the jury that the instruction did not apply to the felony-murder count, which was Count 1.
Before turning to the merits of Duprees arguments, we first briefly address his contention that we must rule in his favor because the State “invited error” by requesting the use of the pattern jury instruction on aiding and abetting, PIK Crim. 4th 52.140, and defending the district courts addition of the phrase limiting the instruction to Counts 2 through 7. But invited error is not a path to relief for the party making a claim of error in an appeal. Typically, unless tire error is structural, invited error works to preclude appellate review of a claim of error if the party making the claim invited the error. See State v. Verser,
Turning to Dupree’s principal argument, we conclude it also lacks merit. Dupree argues the jury could not find him guilty of aiding and abetting felony murder if it followed the courts instructions. But he premises his argument on a fundamental misunderstanding of the nature of felony murder. If someone dies in the course of an inherently dangerous felony, such as aggravated burglary, “all the participants ... [are] equally guilty of the felony murder, regardless of who fired the fatal shot.” State v. Thomas,
If the evidence shows someone other than the defendant did the shooting, a district court may choose to issue a felony-murder instruction like the one given in this case, which requires the State to prove “the defendant, or another, lulled [the victim].” See PIK Crim. 4th 54.120 & Notes on Use. Choosing to add “or another” so that the instruction more closely matches a particular factual scenario does not require the court to then also issue an aiding and abetting instruction specific to felony-murder. Indeed, this would be at odds with the nature of felony murder.
As to intent and participation in the underlying felony, it is enough that the instructions as a whole informed the jury about the nature of the defendant’s liability for the underlying felony — in this case, Dupree’s liability for the aggravated burglary. See State v. Edgar,
While Dupree essentially reads the felony-murder instruction in isolation, the jury had to — and this court in reviewing his claim of error must also — consider the instructions as a whole. See State v. Keel,
We also note that the juiy could well have concluded Dupree was guilty of tire underlying felony of aggravated burglaiy as a principal. See State v. Gleason,
Dupree also argues the problems with the jury instructions are illustrated by misstatements in the State’s closing argument relating to his culpability for the acts of another. At issue is a portion of the argument where the prosecutor stated, “In for a penny, in for a pound.” The State then recited the text of the court’s aiding and abetting instruction and told the jury, “Now, don’t get confused about the language here where it says as to Counts 2 through 7, when you’re looking at Count 1, the felony murder. It’s already built in. Go to . . . the felony murder [charge].” The State continued by noting Dupree had admitted that Brown lulled Phillips and that the Mling happened “while [Dupree] was committing an aggravated burglary. They’re pushing their way into the house .... They>re trying to get in.” The State asserted it did not have to show Dupree intended to Ml Phillips or that he knew Phillips would die; all it had to show was that the men were committing an inherently dangerous felony, Dupree was involved in it, and a person died.
This argument, rather than pointing out a problem with the instructions, illustrates how the instructions, when read as a whole, correctly reflected Kansas law and fully explained the theory of accomplice liability relevant to the facts of Dupree’s case. Liability for felony murder does not distinguish between principals and aiders and abettors, and
We therefore reject Duprees first jury instruction argument. The instructions regarding felony murder, aggravated robbery, and aiding and abetting properly and fairly stated the law as applied to the facts of his case. Because we find no error, we need not discuss the other steps of the juiy instruction analysis. See Williams,
4.2. The district court did not commit reversible error by declining to instruct the jury on Duprees requested compulsion defense.
In Dupree’s next claim of jury instruction error, he contends the evidence at trial, taken in the light most favorable to him, supported a compulsion defense. He argues there was evidence that Brown pointed a gun at him and directed him .into and around the Locust Street home. Accordingly, he contends, the district court erred as a matter of law in rejecting his request for such an instruction.
The compulsion defense is defined in K.S.A. 2015 Supp. 21-5206(a), which provides:
“A [defendant] is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which [he or she] performs under the compulsion or threat of tire imminent infliction of death or great bodily harm, if [the defendant] reasonably believes that death or great bodily harm will be inflicted upon [him or her] or upon [his or her family] if [he or she] does not perform such conduct.”
The compulsion defense “is not available to a person who intentionally or recklessly places such person s self in a situation in which such person will be subjected to compulsion or threat.” K.S.A. 2015 Supp. 21-5206(b).
As to the first part of the statute making the defense unavailable to defendants accused of “murder or voluntary manslaughter,” this court has explained this phrase means murders resulting from an intentional killing. See State v. Hunter,
Hence, the compulsion was legally available to Dupree as a defense to the felony-murder charge. Even so, the district court had to determine whether the evidence supported the instruction— that is, whether the instruction was factually appropriate. See Herbel,
In making this assessment, the district court had to consider the limited nature of the compulsion defense. State v. Dunn,
Considering tírese requirements, a district court must evaluate whether a rational juror could conclude that the defendant reasonably believed he or she was in danger of death or great bodily harm, see K.S.A. 2015 Supp. 21-5206, and whether coercion induced a ■well-grounded fear, see Dunn,
Here, the district court determined there was not enough evidence to permit a rational jury to believe Dupree’s compulsion defense. See Anderson,
Dupree argues the district court erred in making this ruling because four portions of his trial testimony supported a compulsion defense instruction: (1) Duprees testimony he was walking away from the Locust Street home when, after hearing a pop, Brown waved a gun at Dupree and indicated he should follow inside; (2) Dupree’s testimony that when he hesitated at the threshold, Brown again waved the gun and told him to come on; (3) his testimony that he stayed close to Brown inside the house because he did not know what was going on and felt his life was in danger; and (4) his testimony that he helped steal the televisions because Brown told him to stop standing around and help and because he did not want anything else to go wrong.
While Duprees testimony represents some slight evidence of duress, his testimony is not sufficient to entitle him to a compulsion defense instruction. See Anderson,
Thus, even Dupree’s own testimony, considered in the light most favorable to him, does not provide evidence sufficient to support his request for an instruction regarding the compulsion defense. See Anderson,
4.3. The district court did not err in failing to give a lesser included offense instruction for the felony-murder charge.
Dupree’s third and final jury instruction argument is that the district court committed
At the time of Dupree’s trial, Kansas law held that lesser included offense instructions must be given, even in felony-murder cases, when there was some evidence that would reasonably justify a conviction of a lesser included crime. State v. Berry,
However, after our opinion in Berry the legislature eliminated all lesser included offenses of felony murder. See K.S.A. 2013 Supp. 21-5109; L. 2012, ch. 157, sec. 2; see Todd,
With this recent legislative history in mind, we readily agree with tire State that Dupree’s argument lacks merit. The legislature has made clear that (1) felony murder has no lesser included offenses and (2) this rule applies retroactively to all cases pending, which would include Dupree’s case. See Todd,
Issue 5: The district court's order permitting the case detective to sit at or near counsel table during trial, and its decision to exempt the case detective from a sequestration order, did not prejudice Dupree and do not require reversal.
Dupree argues the district court abused its discretion in allowing the case detective to sit with the State’s attorneys at or near the prosecution’s table and also abused its discretion by permitting the case detective to remain in the courtroom despite the general sequestration order. He asserts the case detective’s presence and testimony unfairly bolstered the State’s case and amounted to a constitutional error requiring reversal of his convictions.
Prior to trial Dupree had moved for an order of sequestration and specifically requested the order cover the case detective— meaning she, like all other witnesses, would not be permitted to hear any other person’s testimony. Dupree’s motion also stated that even though it might not be per se abuse of the district court’s discretion to allow a case detective to sit at counsel table during trial, it nonetheless opened the door to possible prejudice.
The State responded by noting it was the general practice in Sedgwick County to permit detectives to remain in the courtroom despite a sequestration order. But on Dupree’s second point, the State agreed — it assured the district court it would not place the case detective at counsel table. Instead, she would sit behind counsel but still assist the State.
The district court entered a sequestration order but exempted the case detective from its order. It also specifically ruled the case detective would be permitted to sit near the prosecutor. In the course of its ruling the district court stated it had “always been [its] practice over the years to allow the case detective to sit at the table or in close proximity to the prosecutor,” and it “[had not] been made aware of a case that stands for the proposition that it is definitely prejudicial and [should not] be allowed.” The State again confirmed it was not intending to have the case detective sit at counsel table and
With these facts in mind, we will separately consider the two aspects of Dupree’s argument: (1) whether the district court erred in allowing the case detective to sit with counsel and (2) whether the district court erred in exempting her from the sequestration order.
As to the first aspect, in State v. Sampson,
That post-Sampson holding does not apply to this case, which preceded the filing of Sampson. Nevertheless, the reasoning of Sampson supports Dupree s arguments as to why the district court abused its discretion in permitting the case detective to sit nearby and assist the prosecutor. Indeed, in Sampson,
We also specifically stated in Sampson that the “practical benefits” of having a case detective handy are simply not more important than the need to avoid improper credibility vouching by tire State.
The State counters, however, that before Sampson the practice was still allowed and nothing suggests this case differs in kind from those past cases. This may be valid. Regardless, even assuming an abuse of discretion here, the assumed error was harmless. Dupree asserts, without analysis, that we must apply the constitutional harmless error standard. Under this standard,
“the error may be declared harmless where the party benefitting from the error proves beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict.” State v. Ward,292 Kan. 541 , 569,256 P.3d 801 (2011), cert. denied132 S. Ct. 1594 (2012) (citing Chapman v. California,386 U.S. 18 ,87 S. Ct. 824 ,17 L. Ed. 2d 705 , reh. denied386 U.S. 987 [1967]).
Assuming this standard controls, we conclude the State has met its burden in light of the overwhelming evidence against Dupree and tire fact that the case detectives testimony had little, if any-tiring, to do with Dupree s defense. The bulk of the case detective s testimony consisted of a summary of the police investigation, direct evidence of her
Stuart was the main witness against Dupree, and she told the jury about his personal involvement and his culpability for the crimes. Other witnesses, too, implicated him in the crimes. Even Duprees testimony tracked Stuarts version of events, only differing on the matter of his intent — i.e., he claimed he was an unwilling actor. Like Stuart, Dupree subjected himself to the juxy s credibility evaluation by testifying, and the jury apparently rejected his testimony about being sick and not acting of his own free will — a theory rebuffed by several fact witnesses and his own answers on cross-examination. The case detectives testimony had little bearing on that point. Hence, we do not believe there is any reasonable possibility the result would have changed if the case detective had not been sitting near the prosecutors table.
For the same reasons, even if we assume the district court abused its decision when it exempted the case detective from the sequestration order, considering the record as a whole, we cannot conclude the case detectives presence prejudiced Dupree. Du-pree points to no indication in the record of prejudice and makes no suggestion, for example, that the case detective tailored her testimony to buttress or to rebut another witness’ testimony. See State v. Heath,
We conclude the district court’s orders regarding the sequestration and seating of the case detective do not require us to reverse Dupree’s convictions.
Issue 6: The cumulative error doctrine does not require reversal of Dupree’s convictions.
In his final argument, Dupree argues all of the alleged errors discussed above, when considered together, deprived him of a fair trial.
“Cumulative trial errors, when considered collectively, may require reversal of the defendant’s conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.” State v. Waller,
As we have explained above, each of Dupree’s claims fails individually; at most, we have assumed error in die orders regarding the case detective but have determined that this assumed error did not prejudice Dupree. There are no other errors to accumulate, and the cumulative error doctrine does not apply. See Foster,
Conclusion
For the foregoing reasons, we affirm each of Dupree’s convictions and sentences.
Affirmed.