Lead Opinion
The opinion of the court was delivered by
Tyrone Leaper was convicted of second-degree murder for fatally shooting Christopher Lovitch and received a sentence of 620 months’ imprisonment. The Court of Appeals affirmed. We granted Leaper’s petition for review; our jurisdiction is under K.S.A. 20-3018(b).
Leaper’s issues on appeal, and our accompanying holdings, are as follows;
1. Did the district court err in denying Leaper’s motion for a mistrial? No.
2. Did the district court err in its procedures for the jury’s use of transcripts during its deliberations? Not preserved for review.
3. Did cumulative error deny Leaper a fair trial? No.
4. Did the district court improperly sentence Leaper to a higher sentence without submitting his criminal history score to the jury? No.
Accordingly, we affirm the decisions of the Court of Appeals and the district court.
Facts
On May 12, 2006, Tyrone Leaper left work and went to his sister’s apartment. Upon arriving, Leaper saw his brother, Roderick, sitting outside with his girlfriend’s brother, Christopher Lovitch. When Leaper attempted to enter the apartment, Lovitch ac
After the fight, Leaper went into his sister s apartment to tend to his bleeding eye. Leaper testified that he called a friend named Crystal to pick him up, but Roderick later told police that he heard Leaper ask someone on the phone to “come through.” Leaper left the apartment, but once outside the door, Lovitch attacked him again.
Laster watched this second fight from her nearby apartment. She testified that at some point Leaper struck Lovitch with a wooden pole. After being hit, Lovitch regained his composure and threw Leaper against an exterior apartment wall. Laster then called 911. While on the phone, Laster heard a gunshot. Her mother, Nina Jensen, and her son, I.M.H., were inside her apartment and watched the second fight. Both testified that they saw Leaper shoot Lovitch from the top of a staircase overlooking the courtyard.
Leaper denied shooting Lovitch. He testified that he fell to the ground after Lovitch slammed him against the wall. While on the ground, Leaper heard someone say “get off my cousin” and realized that his cousin Travis was present. After hearing the gunshot, Leaper ran to a parking lot in the opposite direction from the staircase where Jensen and I.M.H. placed him. Leaper testified that his cousin Travis, and not Leaper, was at the top of the stairs when the shot was fired.
Leaper’s brother Roderick testified that during the first fight between Leaper and Lovitch, Travis had the pole and was “trying to jump in the fight.” Roderick also testified that during the second fight, Leaper was on the ground near Laster s apartment when Roderick went inside to call his girlfriend, Misty Murphy. Murphy is the mother of 3 of Roderick’s children and is also Lovitch’s sister. While on the phone, Roderick heard the gunshot. He admitted seeing cousin Travis at the apartment with a gun but denied seeing who actually fired the shot. According to Roderick, Lovitch walked into the apartment soon after the gunshot and started talking to him. Lovitch collapsed without identifying the shooter.
Lovitch died from a single gunshot to his chest. Based upon the bullet entry wound, both the pathologist and crime scene investigator determined that the shot was fired from a higher level than Lovitch. Officer Bruce Cobbins testified that Lovitch was shot while inside the apartment screen door, looking up toward the hill. No gun or shell casing was ever recovered from the scene.
Although Roderick testified that Travis had a gun at the scene, he had not mentioned this detail when the police had earlier questioned him. To point out this discrepancy, the prosecutor handed him a copy of his transcribed police statement. When Roderick expressed difficulty in reading it, the State offered to play the audio tape of his interview. The judge excused the jury, and Roderick listened to his recorded interview.
When the jury returned, the State continued Roderick’s cross-examination and eventually offered the tape into evidence. The defense objected, and the judge took the matter under advisement. Following the testimony of Roderick and another witness and the jury’s departure for the day, the judge asked for the tape. However, the parties were unable to find it. During their search, they discussed whether Roderick had taken it from the courtroom, with the judge suggesting that Roderick “may have put it in his pocket.” The bailiff then entered the courtroom and the following collоquy occurred:
“Bailiff: Are you looking for the tape?
“Court: Yes.
“Bailiff: One of the jurors told me that Roderick took it.
“Court: Oh.
“Bailiff: Put it in his pocket.
“Court: Well, I will need to- -
“Bailiff: They said as he left, he grabbed it, put it in his pocket.”
When Roderick was brought back to the courtroom, he denied taking the tape. He encouraged and voluntarily submitted to a search of his person, but the tape was not found. The court concluded:
*93 “Court: Well, I don’t — if he did [take it], he doesn’t have it now in any event and I could not tell you that he, in fact, took it even though one of the jurors may have thought he did. I don’t know. I don’t know. But that’s neither here nor there.”
The next morning, the defense filed a motion for a mistrial, claiming that a juror s observation of Roderick taking the tape prejudiced Leaper and that no instruction could cure the problem. The defense argued that if no mistrial was to be declared, then the court should poll the jury to determine if аny other juror saw anything.
The motion stated in relevant part:
“6. That the tape was missing and the bailiff informed the court and the parties that one of the jurors told her that the witness had taken it and put it in his[] pocket when he left the witness stand.
“9. That the fact that the juror saw what happened prejudices the Defendant.
“10. The Defendant did not take the tape, but the jury may decide this testimony of the witness not based on what he said but what he did and there is no curative instruction that can be given.
“11. That the Court should grant a mistrial immediately or poll the jury to determine if any other juror saw anything.
“12. That [K.S.A.] 22-3423(l)(c) contemplates granting a mistrial when prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the Defendant or the prosecution.
“13. That this incident relates to the testimоny of a witness who identified someone else at the scene engaged in hitting the victim and carrying a weapon and who testified that he never saw the Defendant with any weapon, gun or stick, and that the Defendant was badly beaten by the victim.”
At the hearing on the mistrial motion, Leaper emphasized that the jury had been told by the court that it was to decide the case on the evidence presented, i.e., not the actions of a witness leaving the stand. He asked that at a minimum, the court bring in the reporting juror to find out exactly what was seen and to determine whether other jurors had seen anything. The State responded that “it’s no different than the jury can judge a witness’ demeanor in determining their credibility.”
The judge denied the motion, explaining that the jury was to determine the credibility of witnеsses. He acknowledged the “one known fact”: that one juror had informed the bailiff that the witness had taken the tape. But the judge opined that Leaper made many suppositions as to what the jury saw and heard. He further stated:
The jury ultimately found Leaper guilty of second-degree murder. Leaper filed a motion for a new trial, raising several issues, including the issue involving the juror’s comments to the bailiff. He again emphasized thаt Roderick was the only exculpatory witness, and his important testimony could have been totally rejected by the jury solely because of his conduct that was unrelated to the issues of the trial. Leaper essentially argued that the court’s failure to take any action beyond hearing the arguments denied his right to a fair trial. The motion provided in relevant part:
“4. That the Court erred in fading to grant a mistrial when the jury [a juror] notified the bailiff that they saw a witness take an offered exhibit . . . with him when he left the witness stand. The Court failed to protect the Defendant’s right to a fair and impartial jury when it failed to bring in the juror who made the report and failed to communicate with any other jurors as to whether or not they had seen him take it as well. . . . The jury had already been excused but they may have seen what happened before they left the building. At least one saw him take it. . . . Defendant filed a written Motion for Mistrial based on the jury observing something not related to the trial which might impact on the Defendant’s right to a fair trial. . . . This witness was the only exculpatory ivitness that had testified to that point and the Defendant is concerned that the jury would decide whether or not to believe him not based on his testimony but on him taking an exhibit [from] the witness stand. . . . The proper procedure would have been to bring the juror or jurors in who saw him take the tape and have them answer if they could still be fair to the Defendant based on the conduct of his brotherf] in taking something from the court. The court told the Defendant that he was just speculating about whether it affected the jury and that is why the Defendant asked that thе juror or jurors be brought in for questioning. The [juror] is the one who informed the Court that the witness had taken the exhibit.” (Emphasis added.)
The judge denied the motion for new trial, finding that no prejudice occurred that would have affected Leaper’s substantial criminal rights. On the tape issue, he held that “based upon the evidence against the defendant in this case, the eyewitness testimony, et cetera, I doubt if it [tire incident] had any effect whatsoever
The Court of Appeals affirmed Leaper’s conviction and sentence. Judge Malone concurred in the result but disagreed with the majority’s analysis of Leaper’s motion for a mistrial. State v. Leaper,
More facts will be added as necessary to the analysis.
Analysis
Issue 1: The district court did not err in denying Leaper s motion for a mistrial.
Parties’ arguments
Leаper contends the district court judge erred in denying his motion for a mistrial. He claims that (1) the judge’s failure to investigate the extent to which the jury was aware of, and possibly considered, Roderick’s alleged taking of the tape, coupled with (2) the judge’s failure to instruct the jury to disregard the event, resulted in substantial prejudice to his rights. In short, he was denied his right to a trial by an impartial jury because the juiy may have improperly considered matters outside of the evidence admitted at trial.
The State responds that “[t]he conduct of a witness on the witness stand under oath is something for the jury to consider in order to determine the credibility of the witness.” The State further claims that Leaper never proved how this event would affect him and therefore his rights were not prejudiced.
Court of Appeals’ decision
The majоrity opinion for the panel appeared to analyze Leaper’s claim as possible juror misconduct. It concluded that no misconduct occurred because Roderick’s actions were capable of being observed by the entire jury, i.e., this was not the independent act of a single juror. See, e.g., Saucedo v. Winger,
In Judge Malone’s concurrence, he concluded that the majority was wrong to analyze Leaper’s claim in terms of juror misconduct. Instead, the proper approach was to determine whether prejudicial conduct in the courtroom made it impossible for Leaper to receive a fair trial. He further concluded that Roderick’s alleged taking of the tape was not proper for the juiy’s consideration as a witness’ demeanor. Rather, it was extrinsic evidence and therefore improper. See Black’s Law Dictionary 597 (8th ed. 2004) (extrinsic evidence is that which is not legitimately before the court). According to Judge Malone, the district judge therefore should have instructed the juror to disregard this conduct. He opined the judge abused his discretion by failing to at least question the juror to discover what the juror knew, how the information affected the juror, and whether the juror shared this information with other jury members. Nevertheless, he concluded that given the amount of evidence against Leaper, these failures did not substantially prejudice Leaper’s right to a fair trial.
Standard of Review
The Kansas mistrial statute, K.S.A. 22-3423(1), states in relevant part:
“The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(c) prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustiсe to either the defendant or the prosecution.”
We have elaborated:
“As a general rule, a motion for a mistrial is reviewed under an abuse of discretion standard, and the party alleging the abuse bears the burden of proving*97 that his or her substantial rights to a fair trial were prejudiced.” State v. Angelo,287 Kan. 262 , 283, Syl. ¶ 16,197 P.3d 337 (2008) (citing State v. White,284 Kan. 333 ,161 P.3d 208 [2007]).
“ ‘It is necessary when justice so requires to declare a mistrial where there is some fundamental failure of the proceeding. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury,-the trial judge must declare a mistrial.’ ” Angelo,287 Kan. at 283-84 .
Discussion
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to a fair and impartial jury trial. The failure to accord a defendant a fair trial by impartial and indifferent jurors “violates еven the minimal standards of due process.” Morgan v. Illinois,
“[T]he right to a juiy trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. A juror’s verdict must be based upon the evidence developed at the trial of a criminal prosecution.”
See PIK Crim. 3d 51.04 (In fact finding, a juiy is only permitted to consider admissions or stipulations of parties and exhibits and testimony admitted into evidence.). Indeed, “[a] party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations.” Saucedo v. Winger,
In the exercise of the juiy’s duty, however, it is permitted to determine die weight and credibility to be given to the testimony of each witness. PIK Crim. 3d 52.09. And the jury may consider extrinsic evidence concerning a witness’ conduct if introduced into evidence. See K.S.A. 60-420.
We agree that the issue is not jury misconduct. More specifically, a juror saw something in the courtroom and thought it sufficiently unique to dutifully report it to the bailiff. But we disagree that the dispositive question is whether Roderick’s conduct occurred on or off of the witness stand. Rather, the question is whether Leaper was denied a fair trial by the conduct of Roderick and by the responsive action, or lack of such action, of the trial judge. The following cases are illustrative.
Numerous cases involve mistrial motions bаsed upon a witness’ conduct before physically being on the stand. For example, in State v. Crawford,
Other cases involve mistrials based upon a witness’ conduct, e.g.., “demeanor” while on the stand but before actually testifying. The casе of Cooper v. State,
Of a similar nature, but more recent vintage, is Spencer v. Commonwealth,
“[She] spoke only Korean and testified through an interpreter. Before she began to testify, the interpreter informed the court that [she] wanted ‘to pray by herself just a few moments because she can’t say anything.’ No objection was made. [She] then stood and began an ‘emotional outburst’ in Korean, in a loud and angry tone of voice, turning her eyes to the defendant. Although neither the court nor the jury could understand her words, which were not translated or recorded, the court promptly instructed the jury that her words were not'in evidence and were ‘not be considered part of the case.’ The defense moved for a mistrial and the court denied the motion.”240 Va. at 94 .
This event, and others, combined to form defendant’s appellate argument that the mistrial should have been granted. The denial was upheld because the court had given prompt and appropriate curative instructions.
Other cases involve mistrial motions based upon a witness’ conduct, c.g., “demeanor” while actually testifying. The pure conduct case of State v. Burgess,
Similarly, in Duncan v. State,
Other examples of witness stand conduct have included crying, unprovoked verbal outbursts, trembling and falling to the floor, and gasping aloud. See, e.g., State v. Worthen,
In a similar vein, thе eyewitness to fatal shootings was directed to leave the stand during her testimony and to identify a defendant by touching him in People v. Jean-Pierre,
Numerous cases involve mistrial motions based upon a witness’ conduct immediately after testifying. One vivid example is Berryhill v. State,
Based upon these cases and numerous others that they represent, we conclude that something more was present here thаn simply witness demeanor appropriate for the jury to consider — regardless of whether it happened on the stand, off the stand, or while leaving it. We most certainly reject the trial court’s general conclusion that “I can see no substantial criminal right of the de
We also reject the position of the panel majority that there can be no abuse of judicial discretion for failing to investigate actions simply because they did not constitute juror misconduct.
The case of State v. Dixon,
“ ‘Members of the jury, late this morning it came to my attention that one or more of you may have had occasion to observe [Dixon] while coming or going from the courtroom and may have shared information regarding your observations [with] other jurors. I want to make clear to you that the manner in which [Dixon] arrives in the courtroоm is not a matter that has any bearing whatsoever on this*103 proceeding. It males no difference. You’re to draw no inferences from anything that you have seen or heard, and specifically I’m instructing you to disregard in these further proceedings any information with regard to the mode, mechanism of the transport or the appearance of [Dixon] here in any way. Simply put, it’s not appropriate to consider those things.’ ”289 Kan. at 53 .
In affirming the mistrial denial, we pointed out that the juror who heard the defendant in shackles denied that the experience would affect his impartial decision making. We concluded that “although it would have been reassuring for the district judge to have questioned the other jurors, it was not absolutely necessary here. The judge’s specific curаtive admonishment to the entire jury was an excellent alternative to ameliorate any ill effect from a relatively minor incident.”
The “reassuring” approach referenced in Dixon was implemented by the trial court in Berryhill,
Here, the trial judge refused to inquire of the juror about the juror’s knowledge of Roderick’s tape taking and its possible impact on the juror. He also refused to inquire whether other jurors had knowledge of the incident and about the possible impact on them. We therefore agree with Leaper that while he has tibe burden of showing prejudice, and eventually abuse of judicial discretion in
Nevertheless, all three judges of the panel agreed that the evidence of Leaper’s guilt was overwhelming, i.e., any trial judge error on the issue was harmless. Cf. State v. Dixon,
Additionally, the majority concluded that Roderick’s taking of the tape would only have contributed to his already negative demeanor and weak credibility: He suggested at trial that Travis was the probable shooter but admitted he never told the police about Travis when they interviewed him on the day of the shooting.
We conclude that the trial judge abused his discretion by failing to investigate the alleged tape taking and by failing to provide die jury with an admonition to disregard. See State v. Dixon, 289 Kan.
In addition to the evidence cited by the panel, we observe that the defendant-identifying testimony of the two eyewitness neighbors is сorroborated by a third independent witness. Roderick’s girlfriend and mother of three of his children, Misty Murphy, testified that she was on the phone with Roderick when she heard a gunshot. Roderick then told her that Leaper — his brother — “shot your brother.”
As for Roderick’s credibility with the juiy being damaged by his taking the tape, we agree with the panel’s opinion that his veracity was already weak. Despite his girlfriend’s testimony about Roderick’s contemporaneous identification of his brother as the shooter, Roderick told the jury, “I didn’t see no one shoot.” And despite his trial testimony that his cousin Travis (1) had a gun (2) at the murder scene, he failed to mention either critical fact to the police immediately after the fatal shooting for which his own brother was rapidly becoming the prime suspect.
Oncе in front of the jury, Roderick partially explained this particular, critical failure. Before his interview began he had told the detectives about Travis’ presence. However, he did not mention this fact during the later taping of the interview simply because the detectives failed to ask him. It is doubtful that trained homicide detectives would have failed to follow up regarding another eyewitness, especially a cousin to Roderick and Leaper. Moreover, Roderick did not explain why he had never told the police, before or during the taped interview, that Travis had a gun at the scene.
Additionally, while in front of the juiy, Roderick was unable to recall many of the details he had provided during the taped interview. After Roderick listened to the tape outside the jury’s presence to refresh his memory, the State questioned him upon the jury’s return. The record reveals he became argumentative and blamed the State, declaring that the prosecutor “want[ed] to twist stuff around” and “make me trying to change my story.” His impatience with the State was repeatedly shown. The trial judge, who is in a better position than an appellate court to gauge a witness’ demeanor and credibility, denied Leaper’s motion for mistrial par
In later denying Leaper’s motion for new trial, the judge concluded, “Mr. Leaper was, in effect, a hostile witness. That was evident almost from him being sworn in.” Based on the judge’s view of Leaper and the remaining evidence, he stated, “I doubt if it [the tape incident] had any effect whatsoever against the defendant.”
As part of our analysis, we acknowledge Leaper’s argument that Roderick was the only exculpatory witness. As Leaper’s motion for mistrial made clear, Roderick was important because he was “a witness who identified someone else [Travis] at the scene engaged in hitting the victim and carrying a weapon” and was someone “who testified that he never saw the defendant with any weapon, gun or stick, and that the defendant was badly beaten by the victim.” And we must further acknowledge the possibility that Roderick’s important testimony could have been entirely rejected as incredible solely because of his tape-taking conduct on or near the witness stand. Nevertheless, as explained in detail above, Roderick’s credibility was independently weak before this conduct, and the evidence supporting Leaper’s conviction was strong. Consequently, we hold the error was harmless under all the circumstances of the case.
Issue 2: The district court did not err in its procedures for the jury’s use of transcripts.
Leaper next argues the district court erred in its procedures for the jury’s use of transcripts during its deliberations. The State responds that the Court of Appeals correctly determined that Leaper failed to preserve this argument for appellate review when he failed to object at the lower court.
Issue 3: Cumulative error did not deny Leaper a fair trial.
Leaper next argues that cumulative error deprived him of a fair trial. The State responds that no error occurred; but if errors occurred, their accumulation was harmless.
We held in Issue 1 that the district court erred in its treatment of the episode involving Roderick’s alleged taking of the cassette tape but that the error was harmless because it did not affect the outcome of the trial. We have held that no other error occurred. Because the presence of one trial error is insufficient to accumulate, we hold that Leaper was not deprived of a fair trial. State v. Houston,
Issue 4: The district court did not improperly sentence Leaper.
Finally, Leaper argues that the district court erred in sentencing him to a higher sentence based upon a criminal history not proved to a jury beyond a reasonable doubt in violation of Apprendi v. New Jersey,
Affirmed.
Dissenting Opinion
concurring: I concur in the result, but write separately on the mistrial issue. I agree with much of what the majority suggests, i.e. that the act of defendant’s brother in taking evidence from the witness stand was misconduct in the courtroom; that the observation of that conduct by one of the jurors was likely to be
Where I depart from the majority’s reasoning is when it assesses witness credibility to rationalize harmless error. The majority appears to be driven by its agreement with the opinions of the trial judge and the Court of Appeals panel that defendant’s brother was just not a very believable trial witness. Perhaps a witness’ prior inconsistent statements might be a valid consideration when considering the strength of the State’s case in the harmless error analysis. However, a judicial assessment of whether the jury would have believed a defense witness’ exculpatory trial testimony is way beyond the purview of appellate review. Cf. City of Mission Hills v. Sexton,