The opinion of the court was delivered by
This is a direct appeal by the defendant, Patricia Lee Leitner, from her conviction for first-degree murder of her ex-husband, Michael. She was sentenced to fife imprisonment.
Leitner raises four issues on appeal. She contends the trial court abused its discretion when it allowed the State to cross-examine her concerning her involvement with a pagan religion. She also contends the trial court abused its discretion when it allowed a Kansas Bureau of Investigation (KBI) agent to testify that in his opinion a State witness was not involved in the murder. She claims she was denied due process and a fair trial because of prosecutorial
Leitner met Michael when she was 17 years of age and he was 24 years of age. A common-law marriage followed and two sons were bom to the union. Leitner testified that it was an abusive marriage and that Michael frequently physically abused her. Leitner testified that she tried to end her relationship with Michael by poisoning him in February 1998. She stated that she poisoned him because she wanted the beatings to stop. She told the jury that because Michael was threatening her with guns, she “knew that one of these times that he was going to do it.” Leitner admitted the first time she tried to poison Michael, she crushed up D-Con rat poison and put about a teaspoon of it in a pot of coffee. Michael drank the coffee but did not even become ill. Leitner stated that the second time she attempted to kill him, she sliced wild mushrooms into an omelette, thinking they were poisonous. The mushrooms did not affect him.
In July 1998, Leitner obtained an emergency divorce from Michael. Leitner was awarded the couple’s residence and the proceeds of a sales contract of a tavern they had sold on contract along with other property. Custody of their two sons was given jointly to Leitner and Michael.
Less than 2 months later, Michael filed a motion to set aside the property settlement agreement, claiming that at the time he signed it, he was in “no condition to fully understand and appreciate [its] significance.”
Leitner’s babysitter, Honee Larcom, testified that Michael had continued to call Leitner following the divorce to ask about the boys. She continued to babysit for Leitner almost every weekend following the divorce. Larcom testified that during conversations with Leitner in late August or early September 1998, Leitner complained about Michael, saying he would not keep a job, he did not make enough money, and that if he would just die, her family would be better off. Larcom testified that Leitner told her:
“ ‘You know, if he would just die my family would be so much better off. I wish he would just die because he has [a] life insurance policy, we got it when webought the house, and I could get like $70,000,’ and the boys, they’d be set she said ‘cause they could get social security. They could get like $700 a month till they’re 18.”
Larcom also testified that she and Leitner talked about Leitner’s income. Larcom knew Leitner received $500 a month in payments from the sale of a tavern that she and Michael sold. Leitner told her there were only two more payments remaining on the contract, which worried Leitner. Larcom said that Leitner was going to apply at the Kansas State Department of Social and Rehabilitation Services for food stamps and talked about getting a job. Leitner asked Larcom whether she could babysit while Leitner worked.
Tammy Warner, Leitner’s younger sister, testified that she came to Kansas to visit Leitner in September 1998. Warner heard Leitner make threats toward Michael but believed Leitner was just angry because of the divorce. Leitner told her that “things would be better for her and the kids if Michael was dead, then they wouldn’t have to worry about it no more . . . it’d be so easy to have it done, you just make a phone call, you know, she knows people.”
Sometime on a weekday prior to Saturday, October 3, 1998, Leitner went to Chanute, Kansas, to see her insurance agent, Robert White. She paid the insurance premiums on her house, Michael’s vehicle, and her 1991 Dodge Dakota pickup truck. White gave Leitner a document concerning insurance coverage on Michael’s vehicle. Leitner told White she would be seeing Michael that weekend and would have him sign the document to take him off the policy. Michael’s visitation with their two boys was scheduled for the weekend of October 2 and 3, 1998. On Thursday, October 1, 1998, Michael telephoned to cancel his visitation with the boys. Leitner was upset because “he had been cancelling visits and it was really starting to hurt the boys.”
On Friday afternoon, Gary Hockett, Leitner’s brother, and his daughter went to Leitner’s house to ask if Leitner and his wife Pam wanted to go out that evening. Leitner called Larcom and asked her to babysit all four children at her house. After Larcom arrived, Gary, Pam, and Leitner left in separate vehicles to go to Gary’s house to get ready. At Gary’s house, Leitner told Gary and Pam
Leitner testified that “Gary didn’t really want me to go at first originally and then he — that’s when he decided that he didn’t have a problem with me going if I took protection with me just in case.” Leitner was referring to Pam’s and Tammy Warner’s two handguns. She stated that Gary retrieved Tammy’s gun out of a green box, then Pam got hers out of her purse and handed it to Gary. Leitner testified that Gary loaded the .380 caliber and .22 caliber handguns for her while she went to the liquor store to buy him a 12-pack of beer. Earlier in the trial, Leitner reported to jurors that she owned a .22 caliber Ruger at the time of her divorce and that in September 1998, she purchased a .25 caliber semiautomatic handgun for her protection. That night, however, Leitner used Gary’s and Pam’s .380 caliber and .22 caliber handguns to shoot Michael.
Kenny Wisdom testified that he worked with Michael at the Wyncroft Hill Apartments in Olathe on Friday, October 2, 1998. Around 7:30 p.m., Wisdom, a girl named Cindy, Michael, and Michael’s brother, Jeff, met in Jeff and Michael’s apartment. Wisdom stated that around 8 p.m., he and Michael went to the liquor store in Wisdom’s car. Prior to leaving the parking lot, a truck drove by on another road. Michael told Wisdom, “That looked like my ex-wife’s truck.” At the liquor store, Wisdom bought a case of beer, and Michael bought “a pint bottle of something.” Wisdom dropped Michael off in the parking lot of the apartment complex.
Leitner testified that when she arrived in Olathe, she drove around until she located the apartment complex where Michael worked. Leitner stated that Michael had given her his address that week. She did not know Michael’s apartment number, but her son Eric thought it was 203 or 302. After she saw Michael’s truck, Leitner said she found a place to park, got out, and knocked on a few doors. Christopher Paul answered the door of one of the apartments and later identified Leitner for investigators.
Leitner testified that when she saw Michael walking in the parking lot, she yelled his name and they spoke to one another. She told Michael she did not want to go into his apartment but pre
Jeff testified that in September and October 1998, he lived with Michael in the Wyncroft Apartments in Olathe in apartment 302. When Jeff left the apartment to get groceries around 9 p.m. on October 2, 1998, Wisdom, Cindy, and Michael were there, but when he returned, they were gone. Jeff testified that he owed Michael money for back rent, so after purchasing groceries he withdrew $550 from an ATM machine at 9:24 p.m. The bills Jeff received from the ATM machine were the new-style $20 bills. Jeff went back to the apartment, and at approximately 10:30 or 11 p.m., Michael returned. Michael told Jeff that Leitner was outside in her truck and he was going to go to Toronto with her. Leitner never came into the apartment. Michael seemed surprised by the fact Leitner was there and that she was crying and very upset. Jeff stated that since Michael had reopened the divorce case and Leitner showed up all of a sudden, he did not think it was a good idea for Michael to go with her. Jeff said that Michael had a brown Ford truck in good condition and that he could have driven to Toronto. Jeff said he tried to give Michael $300 that he owed him, but he did not want to carry that much with him, so Michael gave $200 back to Jeff and took $100 in new-style $20 bills.
Leitner told jurors that after stopping at an Ottawa convenience store, Michael took over driving her truck. Leitner testified that Michael took a couple of swigs of butter shots, a kind of liquor, on the trip to Toronto. She said Michael’s demeanor changed on the trip to Toronto and he hit her in the stomach with the back of his fist. She testified that he stopped the truck on a road and got out to refieve himself, then sat on the bumper and lit a cigarette. She said she got out of the truck, relieved herself, then retrieved her cigarettes and gun. Leitner was wearing a black duster and had
At trial, Gary testified as a State’s witness as a result of a plea agreement. Gary stated that he left the .380 caliber and .22 caliber handguns at Leitner’s house after target shooting on September 4, 1998, and had not given them to Leitner on Friday, October 2, 1998, as she claimed. Gary stated that on Friday, Leitner came over to his house, as they were getting ready to go out, and told him she had changed her mind and was going to Olathe to try to work things out with Michael. Gary said, “She was upset and everything about the way things had been going with her and Mike and she was wanting to resolve it.” Gary testified that Leitner left around 7 p.m. He and Pam went to Iola to Wal-Mart, ate supper at the Greenery Club, and then went to the Road Island Club on Highway 75 south of Burlington until 2 a.m. Gary stated that when they returned to their house in Toronto between 5 and 5:30 a.m., Leitner’s pickup was parked outside the house and Leitner was asleep on their couch.
Gary woke Leitner up and asked her what was going on, and she said she used both of them. He asked what she meant, and she said, “I used both guns. . . . I shot Mike.” He asked her why she used his guns, and she replied, “Because they was there ... I wanted to make sure they was — it was a big enough gun to stop him.” Gary testified that Leitner said she tried to shoot him earlier on the way to Toronto when she had pulled into a roadside park, but someone had pulled up, so she put the gun back in her coat and got back in the truck. Leitner told Gary that she had shot Michael later somewhere outside Gridley, first using the .380. After he fell to the ground his arm moved, so she took the .22 and shot him twice in the side of the temple.
Gary testified that Leitner told him she took Michael’s wallet so the authorities would not be able to identify him as quickly. He also said that Leitner was not worried about her fingerprints on the guns because she had worn gloves. Gary initially agreed to help his sister and wiped down the inside of her truck for fingerprints and buried the guns, wallet, and ammunition. Gary said they only wiped down the passenger side of the truck because that was where Leitner said Michael sat. In addition, Gary testified that on Saturday morning, when he, Pam, and Leitner returned to Leitner’s house, Leitner paid Larcom for babysitting. Leitner made the statement, “We’ll just let somebody else pay for it this time,” and handed Larcom some cash. Gary thought the cash was from Michael’s wallet.
Larcom testified that on Saturday, October 3, 1998, Leitner, Pam, and Gary came to Leitner’s house around 6:30 or 7 a.m.
Gary stated that he continued to cover up for his little sister until October 20 or 21, 1998. Around October 7, Gary asked Leitner why she shot Michael. Gary testified that she indicated it was for the boys’ sake; not just for their mental and physical well-being, but also for financial well-being. Gary stated, “She didn’t think Mike needed to be around the boys at all and she didn’t — she knew that if something had to happen to Mike that things would be took care of. . . . The boys would get social security, the house would be paid for, basically that type of deal.” Gary further told the jurors that his sister suggested he ought to take “the rap” because he could beat it. He did not like that idea.
A little after 8:30 a.m. that Saturday morning, October 3, 1998, Tom Kraft found Michael’s body lying on Iris Road just north of the Woodson-Coffey County fine. Kraft summoned police to the scene. Gene Morrow, a detective with the Coffey County Sheriff s Department, was one of the officers who responded to the call. Morrow testified he saw no signs that there might have been a struggle at the scene. In addition, he said the only footprints were Michael’s. Although police found no wallet on the body, they were able to tentatively identify Michael because of the insurance papers they found inside his jacket pocket. Morrow stated that they were later able to locate Michael’s suitcase in a ditch 1 to 2 miles south and east of the crime scene. In addition, Morrow testified that on October 22, 1998, Gary came to him and confessed that he had conspired with Leitner to cover up the crime and conceal evidence.
Dr. Erik Mitchell, a forensic pathologist who serves as coroner for several counties in Kansas, gave expert testimony at trial. Mitchell indicated that Michael had three gunshot wounds to the head. He testified that the wound on the back of Michael’s head was a contact wound where a gun was pressed up against his head and fired. Mitchell testified he believed the most likely sequence of events was that the gunshot to the back of the head was first, followed by two shots to the temple after Michael dropped to the ground.
I. CROSS-EXAMINATION CONCERNING WICCA, A PAGAN RELIGION
The first issue for determination is whether the trial court committed an abuse of discretion when it allowed into evidence the State’s cross-examination of Leitner concerning her involvement with Wicca, a pagan religion, sometimes referred to as witchcraft.
“The admission and exclusion of evidence lies within the sound discretion of the trial court.”
State v. Lumley,
On February 17, 1999, Leitner filed a pretrial motion in limine asking the trial court to prohibit counsel and witnesses for the State from, among other things, “making reference to, eliciting testimony or offering evidence of . . . [t]he alleged practice of ‘witchcraft’ by the accused.” The trial court heard oral arguments on pretrial motions on March 3, 1999. The State offered no objection to an order excluding such evidence. The court granted Leitner’s motion in limine in its entirety.
On the third day of the jury trial, the court heard the arguments of counsel on several issues outside the presence of the jury. The judge stated:
“[Wjitli regard to the issue of witchcraft, that the court lias determined . . . after reviewing K.S.A. 60-445 the court has discretion to exclude certain evidence, and as far as my knowledge of the case ... I question whether the State’s able toshow how her involvement with witchcraft or membership in any organization, religious beliefs, are related to the crime charged, and without a showing of that I think it’s highly prejudicial for that material to be before the jury, and we did have a motion in limine on that, and I think I’ll hold you to that. . . . I’ll forewarn you that I do find this fairly highly prejudicial potentially to the jury and very little probative value as far as showing how even her subsequent acts might relate to the crime . . . .”
The State agreed to instruct its witnesses of the court’s ruling. The trial court, noting that it was possible that defense witnesses could “open the door” to this subject, stated “if they do we’ll deal with it at that time.”
Later, during a recess in the trial outside the hearing of the jury, the State again raised the topic of questioning witness Pam Hockett regarding Leitner’s witchcraft activities following Michael’s murder. The State proffered to the court that Pam would testify
“that defendant was using a black caldron, she cooked flowers in there, seeds, and did chants of some sort, and she slept with some type of tree branch, and I think it was oak, over her bed, and diese were all particular to die defendant’s beliefs in what I’m going to call witchcraft but I think she calls Wicca. . . . [T]he defendant did these behaviors as protection spells ... to be protection from die KBI . . . discovering what she did to her ex-husband.”
Again, the court ordered the State not to “get into that area” because of the high prejudicial value of the testimony. The trial court noted that this evidence might possibly show some evidence of consciousness of guilt but determined that there was other evidence of that nature available.
On Friday, August 27, 1999, the defense called Leitner to the stand. She testified about the events that occurred the night of Michael’s death, their marital history, and about many specific instances of physical abuse Michael inflicted on her. She testified that after a certain time period, Michael stopped hitting her in the face but would hit her in places where her clothes would cover the injuries. She stated that did not seek medical attention after these instances because Michael was her nurse afterward and twice gave her stitches using “fishing line and a mattress needle.” Leitner testified that she intentionally shot Michael three times after he hit her in the stomach and choked her.
After a brief discussion of another issue, the court stated: “I’m concerned about the witchcraft. Do you have witnesses . . . that can testify that beatings were a result of her involvement ... in witchcraft?” The State made the proffer that testimony of Leitner’s sister, Tammy Warner, would be that Leitner only told her of two occasions of abuse, one of which was when Michael found out Leitner had attended a pagan ritual involving witchcraft and the other when he learned she was dating a man involved in it. Counsel for Leitner argued that the prosecutor seemed to be arguing “that the witchcraft and the affair justified the beatings.” The trial court acknowledged that “I don’t know that there’s any justification for beatings.” The court ruled, however, that despite efforts to keep the issues of witchcraft, prostitution, and fires from the jury, Leitner’s testimony appeared to open the door. Therefore, the court decided to allow the State to cross-examine Leitner about her for
The State proceeded to cross-examine Leitner concerning her testimony of Michael’s past physical abuse. Defense counsel objected on the grounds of relevancy, but the court allowed the questioning to continue. Leitner denied that she had been hit by Michael after he had caught her having sex with another man.
Next, the State brought up the subject of witchcraft. Following another objection by Leitner’s counsel, the court allowed the State to continue. The State repeated the question, asking Leitner whether she “got into an argument with Mike because [she] had entered into witchcraft and [she] had gone to a pagan ritual ceremony ....’’ Leitner denied it, stating that “none of the times that I got beat up was it ever or ever had anything to do with pagan religion.”
Following that exchange, the trial record reads:
“Q. You’re not denying that you were involved in that though?
“A. No, I am not.
“Q. You in fact were involved in that?
“A. Wicca.
“[Counsel for Leitner]: Judge, this is beyond the scope. I think the State has exceeded the boundaries.
“THE COURT: Well, I don’t know that we need to go further at this point.
“[The State]: I just want to make sure she wasn’t denying she was involved in that.
“[Leitner]: No.”
At trial, the prosecutor argued he should be able to question Leitner about witchcraft to clarify for the jury why the physical abuse may have occurred due to her fault because she was involved in things that Michael did not like. On appeal, the State contends that, in an effort to counter Leitner’s testimony that Michael indiscriminately physically abused her, it “sought to present evidence that he disliked her practice of witchcraft which caused marital strife.” The State’s asserted purpose was to impeach Leitner and “to put into context Michael’s alleged action against the defendant on die specific instance testified to by the defendant.” Further, the
Conversely, Leitner argues that “[t]he use of the word ‘witch’ to evoke terror in the jury in a contemporary criminal trial echoes the cries of ‘communist’ in the McCarthyist 1950’s or ‘witch’ in the days of Salem.” Relying on
State v. Pham,
The State’s position is that the trial court did not abuse its discretion in admitting evidence of Leitner’s affiliation with witchcraft. The State contends that, during the trial, the prosecutor “not only sought to show the jury that the defendant was not completely truthful in her statements to the jury, thus impeaching her, but also to put into context Michael’s alleged action against the defendant on the specific instance testified to by the defendant.” Additionally, the State argues that if, arguendo, the trial court did commit error by admitting this evidence, it constituted harmless error.
A. Abuse of discretion.
Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f);
State v. Galloway,
Leitner urges this court to consider several cases when determining whether the trial court abused its discretion when it allowed into evidence her involvement with Wicca, or witchcraft. The first is
Dawson v. Delaware,
In that case, after a jury convicted the defendant of first-degree felony murder, a penalty hearing was conducted so that the jury could decide whether he should be sentenced to death. At the hearing, the trial court allowed the introduction of evidence of the defendant’s Aryan Brotherhood tattoos during the jury’s consid
“[T]lie Constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations . . . simply because those beliefs and associations are protected by the First Amendment.
“[W]e nevertheless agree [that]. . . the receipt into evidence . . . regarding his membership in the Aryan Brotherhood was constitutional error.” Dawson,503 U.S. at 165 .
The
Dawson
Court reasoned that even if the Aryan Brotherhood espoused racist beliefs, those beliefs had no relevance to the defendant’s sentencing.
Next, Leitner cites the Nevada case of
Flanagan v. State,
“The United States Supreme Court stated that evidence of constitutionallyprotected associations could be admissible to show that a defendant poses a future danger to society. [Citation omitted.] However, the mere fact that a defendant belongs to a group holding racist or other antisocial beliefs is insufficient. To be admissible, the constitutionally suspect evidence must somehow be ‘tied’ to the defendant’s crime. [Citation omitted.]
“From Dawson, we derive die following rule: Evidence of a constitutionally protected activity is admissible only if it is used for something more dian general character evidence.”846 P.2d at 1055-56 .
Leitner further cites the case of
Unites States v. Abel,
Even though this court has not encountered a previous murder trial where evidence of a defendant’s association with witchcraft was admitted into evidence, it has considered cases concerning the admission of evidence of gang affiliation. In
State v. Sims,
“Evidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.”
In another recent Kansas case involving evidence of a person’s association with a gang, this court reviewed the Dawson case and stated:
“ ‘Dawson does not stand for the position that such evidence must always be excluded. In fact, United States v. Abel [citation omitted] held that evidence of gang membership was probative of witness bias, and its probative value outweighed the potential for prejudice. Dawson does not overrule or limit Abel; we read Dawson as applying to the sentencing fact scenario.’ ” State v. Roberts,261 Kan. 320 , 325,931 P.2d 683 (1997) (quoting State v. Tran,252 Kan. 494 , 503-04,847 P.2d 680 [1993]).
Thus, although there is no per se barrier to the introduction of evidence of a person’s membership or participation in a religious group or association, to be admissible such evidence should be related to the commission of the crime charged or should be used to show a person’s possible bias or motive. See
Dawson,
1. Relevancy, Impeachment.
“The determination of relevancy is a matter of logic and experience, not a matter of law. [Citations omitted.]” ’ ”
State v. Gardner,
Further, the State’s assertions that it sought to use this evidence to put Michael’s actions into context or to impeach Leitner’s testimony about the indiscriminate nature of Michael’s abuse are ludicrous. To believe these assertions, one must first believe that a justification exists for beating one’s spouse. The State fails to present a valid justification for its argument that Leitner’s testimony describing Michael’s physical abuse “opened the door” to collateral evidence of Leitner’s association with Wicca.
2. Probative value versus prejudicial effect.
The State further asserts on appeal that the evidence of Leitner’s involvement with witchcraft was more probative than prejudicial. K.S.A. 60-445 states:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered."
While K.S.A. 60-445 only refers to the element of surprise, as a rule of necessity the trial judge may exclude any evidence which may unfairly prejudice the jury against the defendant. See State v.
Davis,
On cross-examination, the prosecutor succeeded in getting Leitner to admit that she was involved in witchcraft and attended at least one pagan ceremony. As noted, however, the evidence failed to show Leitner’s bias or motivation for killing Michael and was not relevant to the commission of the crime charged. Thus, it had no probative value.
As to the possible prejudice generated, the idea of witchcraft has generated terror and contempt throughout American history. Be
Even in our culture today, Satanic imagery associated with witchcraft continues. For example, in
Altman v. Bedford Cent. School Dist.,
Therefore, because the evidence of Leitner’s practice of witchcraft was more prejudicial than probative, had no direct relevance to the crime charged, and did not serve to impeach Leitner, no reasonable person would take the view adopted by the trial court in admitting evidence of Leitner’s participation in witchcraft. The decision to admit this evidence at trial was in error.
B. Constitutional Error, Harmless Error.
“An appellate court’s review of tire trial court’s admission of evidence is a two-step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if tire evidence was improperly admitted, it must determine whether to apply tire harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.” State v. Smallwood,264 Kan. 69 , 80-81,955 P.2d 1209 (1998).
“Review of the admission or the exclusion of evidence is usually governed by die harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by die court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to die court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in die proceeding which does notaffect the substantial rights of tire parties. State v. Morris, 255 Kan. 964 , Syl. ¶ 6,880 P.2d 1244 (1994).
“Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that die error had little, if any, likelihood of having changed the result of the trial. State v. McClanahan,259 Kan. 86 , Syl. ¶ 4,910 P.2d 193 (1996).” State v. Clark,261 Kan. 460 , 469,931 P.2d 664 (1997).
Recently, in the case of
Pham,
the Kansas Court of Appeals considered the erroneous admission of the defendant’s gang affiliation during his trial on nongang-related crimes. In that case, the Court of Appeals found that where inflammatory evidence has no probative value of significant magnitude to counterbalance its prejudicial effect, its introduction becomes grossly and unfairly prejudicial.
We must consider whether the admission of evidence that Leitner was involved in witchcraft constituted reversible error. In this particular case, overwhelming evidence was presented concerning Leitner’s steadfast desire to kill Michael. Moreover, ample evidence illustrated Leitner’s belief that she and her boys would be better off financially if Michael were dead. At trial, Leitner did not dispute that she intentionally shot Michael. The issue was whether she acted in self-defense or with premeditation. Leitner’s intent was a key factor for the jury to decide.
Leitner testified that she made two previous attempts to kill Michael by poisoning him. She expressed to her brother, her sister, and her babysitter a continuing desire to be rid of Michael permanently for the sake of her family. Although she owned two guns of her own, she took two guns belonging to others with her the night she shot Michael. She wore gloves to hide her fingerprints. She told her sister-in-law that she asked Michael to come to Toronto with her to work things out. Leitner also told her that she walked up behind Michael and shot him in the head, then twice again in the temple as he laid on the ground to make sure he was
While in a close case, the admission of evidence of a defendant’s participation in Wicca might serve to inflame a jury to wrongfully convict a defendant and result in a reversal on appeal, it is clear in this case that the jury heard ample evidence to show that Leitner murdered her husband with premeditation. Therefore, based on the particular facts of this case alone, we decline to set aside the jury verdict based on the erroneous admission of witchcraft evidence.
II. AGENT HALVORSEN’S TESTIMONY CONCERNING THE NONINVOLVEMENT OF GARY HOCKETT
On appeal, Leitner asserts that the trial court erred when it allowed KBI agent Bill Halvorsen to testify that Gary Hockett “was telling the truth.” Halvorsen is a special agent with the KBI, assigned to the general felony investigations unit. Halvorsen assisted in the investigation of Michael’s homicide. Leitner states that Halvorsen served “as a sort of expert,” noting that he was permitted to observe the testimony of other witnesses throughout the trial prior to his testimony.
Expert opinion testimony is admissible if it aids the jury with unfamiliar subjects or interpreting technical facts or if it assists the jury in arriving at a reasonable factual conclusion from the evidence. Necessity is the basis for the admission of expert testimony, arising out of the particular circumstances of the case. Expert conclusions or opinions are not necessary if the normal experience and qualifications of jurors permit them to draw proper conclusions from the given facts and circumstances.
Smallwood,
“No error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect die substantial rights of die parties.” Smallwood,264 Kan. at 80 (citing K.S.A. 60-261; State v. Morris,255 Kan. 964 , Syl. ¶ 6,880 P.2d 1244 [1994]).
In particular, Leitner objects to the following testimony:
“Q. At some point after Gary Hockett’s interview that day to today’s date were you ever able to positively confirm that Gary Hockett was not involved prior or during the murder of Michael Leitner?
“MR. CLARK: I guess I’m going to object, your Honor. That’s one of the ultimate issues that the juiy’s going to have to decide, and I don’t think it’s proper for diis witness to render an opinion as to credibility of witnesses. That’s the ultimate issue.
“THE COURT: Not in this trial. You may repeat die question if you wish. You can answer.
“Q. Were you ever able after the interview of Gaiy Hockett on October 22nd, die five or six hour interview, ever able to absolutely positively confirm diat Gary Hockett was not involved prior to or during the murder of Michael Leitner?
“A. Yes, I was.”
At trial in her opening statement, Leitner’s theory of defense was that she intentionally shot Michael in self-defense. Upon direct examination, Leitner first stated that Gary encouraged her to take the guns with her and even loaded them for her while she went to the liquor store. Later, during cross-examination, Leitner testified that Gary did not know what she was going to do with the guns or that she was going to commit a crime on the night of the murder. In closing argument, defense counsel argued that Gary was not telling the truth when he testified that he did not give Leitner the two guns that evening. In addition, counsel for Leitner asserted that Pam and
Gary
lied in order to keep Gary from being prosecuted for his involvement in Michael’s murder. The inference de
Leitner’s theory that the trial court’s admission of Halvorsen’s testimony was in error because it touched on the ultimate issue of premeditation fails for two reasons. First, when considering whether Leitner committed the murder with premeditation, it makes no difference whether jurors chose to believe either Gaiy or Leitner. Even if Gary gave Leitner two guns for her protection that Friday night, as Leitner testified, reasonable jurors could conclude that she formed the requisite premeditation during her 2-hour drive to Olathe. “ ‘Premeditation under the law does not require any specific time frame.’ [Citation omitted.]”
State v. Moncla,
Second, the State’s inquiry did not concern Gary’s credibility during the trial; rather the question was designed to elicit a response from Halvorsen as to whether his investigation confirmed the truth of Gary’s story of noninvolvement prior to or during the murder. This information is helpful to a jury, and, thus, the trial court did not abuse its discretion when it allowed Halvorsen to testify. Moreover, Leitner’s own testimony confirmed that Gary was not involved prior to or during the murder. Thus, Leitner suffered no prejudice from Halvorsen’s testimony, and her claim of error is without merit.
III. ALLEGED PROSECUTORIAL MISCONDUCT
The next issue for consideration is whether Leitner was denied due process and a fair trial because of alleged persistent prosecutorial misconduct. According to Leitner, the prosecutor committed misconduct by (1) deliberately injecting evidence of her involvement with witchcraft; (2) making argumentative remarks about holding the gun; and (3) conducting an improper coerced reenactment of the shooting during cross-examination. In addition,
“Not every trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes a failure to observe the fundamental fairness that is essential to the very concept of justice.”
State v. Ruff,
“ ‘Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error.’ ”
State v. Lumley,
A. Witchcraft evidence.
In
State v. Lockhart,
“ ‘ “When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that die misconduct would likely have little weight in die minds of the jurors? [Citations omitted.]” ' ”24 Kan. App. 2d at 492 .
As discussed previously, the admission of the witchcraft evidence constituted
error;
however, even though the prosecutor should have avoided the introduction of irrelevant evidence of witchcraft, the prosecutor’s remark following the objection does not demon
This particular remark by the prosecutor, even if erroneous, had little or no likelihood of changing the result of the trial due to the overwhelming evidence against Leitner. When viewed in the light of the trial record as a whole, the complained-of conduct does not mandate a reversal.
B. Prosecutor’s remarks about holding the gun.
Next, we consider whether the prosecutor’s remarks to Leitner during cross-examination concerning her knowledge of how to hold a gun were so prejudicial as to require reversal. An examination of the trial record reveals the following exchange:
“Q. Was die .380 — were you still pointing it?
“A. I don’t remember.
“Q. Well, take the .22 then and show the jury how you were standing when you fired die .22 and how you were pointing it. Go ahead, pick it up. Go ahead and stand up, do the same thing, turn around, face the wall so it doesn’t point at anybody.
“A. What do you want me to do with it?
• “Q. Demonstrate how you shot the .22, what you were doing widi the gun. Hold it like you fired it. Ma’am, you know how to hold the gun.
“A. (Witness complies with request.)”
Here, Leitner asserts that the most egregious remark occurred when the prosecutor stated, “Hold it like you fired it. Ma’am, you know how to hold the gun.” Again, Leitner contends that this remark was motivated by nothing but ill will. Leitner compares this exchange with remarks made by the prosecutor in
State v. Gray,
The comparison is unconvincing. In
Gray,
the defendant denied ownership of drug paraphernalia, including spoons and syringes, during cross-examination. The defendant further denied using intravenous drugs since a month and a half before a search warrant was executed. In response, the prosecutor told the defendant to show his arms. When the defendant complied, his arms apparently
The record provides no evidence that the prosecutor’s remark was motivated by ill will. Viewed in the light of the entire trial record, the complained-of conduct does not require a reversal.
C. Reenactment of the shooting on cross-examination.
Next, we consider whether the prosecutor’s reenactment of the shooting substantially prejudiced Leitner. On appeal, Leitner argues that the reenactment during cross-examination was improper because (1) it was outside the scope of direct examination; (2) it constituted a form of compelled testimony in violation of the Fifth Amendment privilege against self-incrimination; and (3) because Halvorsen’s actions in playing the role of Michael misstated the evidence.
1. Reenactment on cross does not exceed the scope of direct examination.
At trial, counsel for Leitner objected once during the demonstration, but it was an objection on the basis that the question had been answered several times, not an objection to the demonstration itself. “The erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection. K.S.A. 60-404.”
State v. Sutton,
Even if counsel for Leitner lodged an appropriate objection at trial, her argument that the reenactment exceeded the scope of direct examination would fail. Courtroom demonstrations upon cross-examination of a defendant were ruled permissible in Kansas
2. Reenactment does not violate Fifth Amendment.
We next turn to Leitner s contention that the demonstration was a form of compelled testimony. Leitner cites
Gilbert v. California,
Because the reenactment was not purely testimonial in nature, no violation of the Fifth Amendment privilege against self-incrimination occurred. The case cited by Leitner bears out this idea. In
Gilbert,
the Court noted that the Fifth Amendment privilege against self-incrimination only reaches “compulsion of ’an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ’compulsion which makes a suspect or accused the source of “real or physical evidence” ....’”
On this issue,
Egbert
is controlling. In that case, this court held that a reenactment by the defendant on cross-examination “did not violate [defendant’s] constitutional guarantee against self-incrimination.”
3. Reenactment did not impermissibly misstate the evidence.
Next, we consider whether the demonstration was improper because it misstated the evidence. Following the initial demonstration, a recess was held. Thereafter, the prosecutor turned to the subject of the reenactment and asked Leitner questions concerning where she stepped when she shot Michael for the second time. After a brief exchange, Leitner’s counsel objected, stating: “State’s already gone over this. It’s been asked and answered.” The court responded: “Well I think some clarification’s in line.” At that point, counsel for Leitner objected on the ground that the demonstration
Leitner contends that misstating the facts in evidence is clearly improper under
Pabst,
Finally, we conclude that neither the prosecutor’s conduct nor the reenactment during cross-examination substantially prejudiced Leitner’s right to a fair trial.
IV. LIMITATION OF CROSS-EXAMINATION OF THE STATE’S WITNESSES TO THE SCOPE OF DIRECT EXAMINATION
The last issue for consideration is Leitner’s contention that the trial court denied her fundamental right to present a defense when it placed limitations on her ability to introduce evidence regarding her discordant marital relationship and specific instances of past physical abuse. More specifically, Leitner complains that the court erred when it ruled she could elicit evidence of specific instances of Michael’s physical abuse only in her case in chief, rather than being allowed to elicit such information from the State’s witnesses, Gary Hockett and Tammy Warner, on cross-examination. Leitner asserts that such evidence should have been allowed under the judicial marital homicide exception to K.S.A. 2000 Supp. 60-460 originally crafted in
State v. Taylor,
“The Confrontation Clause of the Sixth Amendment to the United States Constitution affords an accused the right to cross-examination. The United States Supreme Court has ‘recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ Davis v. Alaska,415 U.S. 308 , 316-17,39 L. Ed. 2d 347 ,94 S. Ct. 1105 (1974). The district court’s decision . . . concerning the scope of cross-examination is reviewed under the abuse of discretion standard. [Citation omitted.]” State v. Albright,271 Kan. 546 , 550,24 P.3d 103 (2001).
“A judge . . . has broad discretion to control examination and reviewing courts will not interfere unless discretion has been abused.’ ”
State v. Mitchell,
Prior to trial, a motion in hmine was filed by the State, which sought to limit the introduction of specific instances of Michael’s misconduct. The State asserted that since self-defense was an issue in the case, evidence of Michael’s turbulent character was admissible if confined to evidence of his general reputation in the community. The State asserted that language in
State v. Deavers,
“Where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime.”252 Kan. at 156-57 .
In her response to the State’s motion, Leitner relied upon Lumley for the proposition that evidence of specific instances of the Michael’s misconduct could be introduced under the “marital homicide exception.” In Lumley, this court reiterated the marital homicide exception first set forth in Taylor:
“ ‘Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between the parties, the existence of a continuing course of conduct between the parties,or to corroborate the testimony of tire complaining witness as to the act charged. Cases have allowed prior conduct to be admitted into evidence where a family relationship existed.’ 234 Kan. at 407 .” Lumley,266 Kan. at 954 .
The trial court held a pretrial hearing on the motion but did not rule on the issue at that time. On August 25, 1999, the third day of trial, the issue was revisited.
Counsel for Leitner twice requested permission to cross-examine a witness called by the State about specific incidents when Michael physically abused Leitner during their marriage. First, he asked to cross-examine Tammy Warner about evidence of marital discord between Leitner and Michael. The State indicated it would call Warner to testify regarding her conversation with Leitner in which Leitner threatened to kill Michael less than a month before the murder. The trial court sent the jury outside the courtroom and heard Warner’s proffered testimony of her personal knowledge of physical violence between Michael and Leitner. Warner testified that although she had not witnessed the fight, she had personally seen Leitner with a black eye and that both Michael and Leitner told her how it happened. The court ruled that the proffered evidence would be outside the scope of the State’s proposed direct examination, in that evidence allegedly showing her hatred towards the defendant was not the same as marital discord: “The relationship has changed. She’s no longer married to the defendant.”
Later in the trial, counsel for Leitner approached the court prior to the direct examination of Gary seeking to elicit on cross-examination his “general knowledge of the violent nature of the relationship . . . The trial court indicated that the permissiveness of the inquiry was dependent on the scope of his direct examination by the State, declaring: “His response to that subject matter’s going to determine whether it might open some doors or not.”
At trial, opposing counsel argued over whether defense counsel could inquire on cross-examination about specific instances of violent behavior for the reason that evidence of the relationship between the deceased and the accused is generally admissible.
“We have addressed the issue of relevance of evidence of a discordant relationship between a defendant and a victim in numerous cases and have held that admission of evidence of a discordant relationship is admissible independent ofK.S.A. 60-455 and relevant to show die ongoing relationship between die parties, the existence of a continuing course of conduct, or to corroborate die testimony of witnesses as to die act charged. See State v. Hedger, 248 Kan. 815 , 820,811 P.2d 1170 (1991); State v. Taylor,234 Kan. at 407 ; State v. Green,232 Kan. 116 , Syl. ¶ 4,652 P.2d 697 (1982). In Hedger, we also discussed the remoteness of such evidence and held that any lapse of time between die acts described in die trial testimony and die acts alleged does not preclude die admission of evidence relative to motive and intent, but only goes to die weight to be given die evidence.248 Kan. at 820 (citing State v. Green,232 Kan. 116 , Syl. ¶ 5).” State v. Clark,261 Kan. 460 , 470,931 P.2d 664 (1997).
Through her own testimony, Leitner was able to present evidence of approximately 70 acts of abuse against her by Michael. An instruction on self-defense was given to the jury. Leitner indicated she shared stories of the abuse with her sister, Tammy Warner. The trial court offered to extend the out-of-state subpoena of Warner so that Leitner could call her as a witness in her case in chief, but Leitner declined to do so. Leitner called Gary to the stand, and he testified that Leitner told him Michael had slapped her during fights, but Gary had never seen Michael hit Leitner.
Here, the core issue is not whether evidence of Leitner and Michael’s discordant relationship was admissible, but rather whether the judge’s limitation of the cross-examination of witnesses to the scope of direct examination constituted an abuse of discretion. Because Leitner was given the opportunity to present evidence of marital discord during her own case in chief, the trial court’s fimitation of the cross-examination of witnesses Gary and Warner to the scope of direct examination was reasonable. Under the facts of this case, the trial court did not abuse its discretion.
Affirmed.