Lead Opinion
The opinion of the court was delivered by
A jury сonvicted Christopher Tahah of felony murder and the underlying felony: discharge of a firearm at an occupied dwelling resulting in great bodily harm. The court sentenced him to prison without the possibility of parole for 20 years for the felony-murder conviction and 102 months for the underlying felony, with tire sentences to run consecutively. Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
The issues on appeal and our accompanying holdings are as follows:
1. Did the district court err in refusing to give a lesser-included offense instruction on second-degree unintentional murder and involuntaiy manslaughter? Yes.
2. Did the district court erroneously exclude third-party evidence? No.
3. Did the prosecutor commit reversible misconduct during closing argument? Harmfulness of error not required to be addressed because of reversal and remand on other grounds.
4. Did the district court err in admitting evidence under K.S.A. 60-455? Not preserved for appeal.
5. Was Tahah’s confession voluntary? Not preserved for appeal.
Facts
Christopher Tahah was an officer with the Dodge City Police Department. In December 2006, Tahah met Erin Jones and they began to date. He would occasionally spend the night at Jones’ house, and he moved some of his personal items into her house. The two vacationed together as well.
A few days later, on April 13, Tahah saw Jones riding in a truck with an unknown male. Tahah testified that he contemplated following them but went home instead. Around 11:30 p.m., Tahah went to Jones’ house. Tahah testified that he did not think she would answer the front door so he used the code that opened the garage door, walked through the garage, and entered the house.
According to Tahah, Jones was scared by his entry, but she eventually calmed down. Tahah entered Jones’ house to get an explanation for the break up, and she explained they broke up because she felt they were sexually incompatible and because he snored.
One of Jones’ friends, Vanessa Weber, stated that Tahah’s April 13 entiy into Jones’ house greatly affected Jones. According to Weber, Jones told her it was “the scariest night of her life.” After the incident Weber would help Jones search the house to make sure no one was hiding inside. Jones also changed the garage codе.
According to Tahah, several weeks later on May 4, he drank alcohol while helping a friend paint a house in the early evening. Around 9:30 p.m., Tahah and several friends went barhopping. They eventually stopped at the Central Station bar where Tahah saw Jones dancing with another man. This sight upset Tahah, and he and his friends left the bar for another. Around 1:30 a.m. the next morning, Tahah left his friends at the bar and returned to his apartment. Tahah stated that he consumed alcohol at every bar he entered that night.
Weber testified that she was with Jones for most of May 4. According to Weber, they attended a Dodge City Legends’ basketball game that evening through tickets Jones received from a member of the Legends, Elvin Mims. Jones had recently met Mims and was communicating with him through the internet website “MySpace” and by exchanging text messages. Around 11:30 p.m., Weber and Jones went to Central Station where Jones ran into another friend,
Around noon, Weber entered Jones’ backyard because Jones had not responded to phone calls. After seeing that the window on Jones’ bedroom door was broken, Weber callеd 911. Authorities would later learn that Jones was inside and dead from a single gunshot to the head.
According to Tahah, on May 5, the day of Jones’ death, he woke up around 12:45 p.m. Around 4 p.m., Sergeant Shckers of the Dodge City Police Department arrived at Tahah’s apartment along with KBI Agents Jason LaRue and Mark Kendrick. The KBI officials took Tahah’s service weapon and then conducted their first of three interviews.
During the May 5 interview, the KBI agents informed Tahah that Jones was dead. Tahah cried upon hearing the news. Agent LaRue testified that during the interview Tahah stated that he had considered revenge on Jones but that he never acted on it.
KBI officials prohibited Tahah from reentering his apartment and secured a search warrant. The officers then searched Tahah’s apartment on May 6 and May 11. They seized several items including one Winchester .270 Rifle, a single Winchester “Short Mag” .270 shell casing stored in a “Chinese puzzle box,” and a dark ski mask. After searching Tahah’s trash, the officers recovered two more Winchester Short Mag .270 shell casings, several pieces of dark clothing, and shoes. Once the officers finished searching Ta-hah’s apartment on May 6, he was allowed to return home.
The next day, May 7, Tahah spoke during a second interview with KBI officials LaRue and John Nachtman at his apartment. They questioned Tahah about his relationship with Jones. After the interview, Tahah decided to “get out of Dodge.”
Tahah drove to Denver, Colorado. According to his trial testimony, Tahah did not eat and contemplated suicide multiple times. On May 11, Tahah “made a decision to come back to Dodge to try to explain myself to the agents.” Because Tahah did not have enough gas to make the return trip, he stole a hotel guest’s idling Hummer.
After he was arrested, Tahah informed Sgt. Hilferty of the Colorado State Patrol that he was a murder suspect in Dodge City and that he wanted to talk. According to Hilfertys trial testimony, Ta-hah stated that he murdered his ex-girlfriend the previous Friday with a .270 Winchester. Tahah then produced a written confession to that effect.
Once KBI agent Kendrick was notified Tahah was in custody, he drove to Colorado and interviewed Tahah for the third time. In this videotaped interview, Tahah stated that he had lain in wait in Jones’ backyard and had aimed his rifle at her house. He stated that the rifle discharged when he was lowering it.
At trial, however, Tahah testified that his confessions to the Colorado and Kansas authorities were untrue. He denied being present at Jones’ house that night and stated that he confessed merely to give Jones’ family closure.
The jury found Tahah guilty of felony murder and criminal discharge of a firearm. The district court sentenced him to a hard 20 for the felony-murder conviction that was to run consecutive to the 102 months for the underlying felony of criminal discharge of a firearm conviction.
Additional facts will be added as necessary to the discussion below.
Analysis
Issue 1: The district court erred in not including a lesser included offense instruction to felony murder.
Standard of Review
K.S.A. 22-3414(3) directs courts to issue lesser included offense instructions “where there is somе evidence which would reasonably justify a conviction of some lesser included crime.” Historically, however, felony-murder cases have not followed the statutory rule but have been analyzed under a court-created rule commonly known as the “felony-murder rule.” See, e.g., State v. Hoffman,
In Berry, we thoroughly reviewed the history of the felony-murder rule in Kansas. We ultimately recognized that K.S.A. 22-3414(3) makes no exception for felony murder and concluded that it applies as written to felony-murder cases.
Discussion
At trial, Tahah’s written and videotaped confessions from May 11 were admitted into evidence. In Tahah’s videotaped confession with Kendrick, he admitted that he aimed the rifle at Jones’ bedroom door window but as he lowered the rifle “a round went off.” In Tahah’s written confession given to Sergeant Hilferty, Tahah wrote: “As I was going to put down the front end of the rifle the rifle went off.” He also wrote, “I didn’t want to kill her.”
At the instructions conference, Tahah argued for two lesser included offenses of first-degree murder: second-degree unintentional murder and involuntary manslaughter. The district court understandably applied the felony-murdеr rule then in effect and denied Tahah’s request after finding that evidence of the underlying felony was neither weak nor inconclusive.
As we currently apply K.S.A. 22-3414(3) per our holding in Berry, however, we conclude the trial evidence, particularly those parts of Tahah’s confessions regarding his lack of intent to discharge the rifle, could reasonably support a conviction for both lesser included offenses. See K.S.A. 21-3402(b) (second-degree unintentional murder is “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life”); K.S.A. 21-3404(a) (“Involuntary manslaughter is the unintentional killing of a human being committed recklessly.”). We reach this conclusion after viewing the evidence, as we must, in the light most favorable to Tahah. See State v. Houston,
Consequently, we reverse Tahah’s felony-murder conviction and remand for a new trial. We consider Tahah’s additional issues only to provide guidance to the district court in the event the same issues resurface. See State v. Kunellis,
Issue 2: The district court appropriately excluded third-party evidence.
On the night before Jones died, she exchanged numerous text messages with a third party — Elvin Mims. Tahah attempted to in
Standard of Review
We stated our standard for reviewing this issue in State v. Brown,
“A trial court’s decision under the third-party evidence rule at the heart of an evidentiary question before us here is subject to an abuse of discretion standard of review on appeal. [Citation omitted.] This standard of rеview places the burden of proof on appeal on the party alleging that such an abuse of discretion occurred. [Citation omitted.]”
We recently held that “[a] number of considerations comprise this standard, including review to determine that the discretion was not guided by erroneous legal conclusions.” State v. Bricker,
Discussion
The admissibility of third-party evidence is evaluated under the “totality of facts and circumstances in a given case.” State v. Adams,
In Marsh, we held that “while evidence of the motive of a third party to commit the crime, standing alone, is not relevant, such evidence may be relevant if there is other evidence connecting the third party to the crime.”
We conclude that under the totality of facts and circumstances in this case, the text messages neither indicate Mims’ motive to commit the crimes nor otherwise connect him to the murder. The district court reviewed the messages and stated that they were indicative of two people “trying to feel their way into a new relationship.” The court did not abuse its discretion by excluding this evidence.
Issue 3: The prosecutor misattributed the source of evidence during closing argument.
Tahah argues that the prosecutor’s misconduct during closing argument violated his right to a fair trial. He argues that the prosecutor intentionally misstated tire evidence when he informed the jury that the forensic pathologist told detectives the autopsy results proved Jones was lolled by a “high powered” rifle. Tahah further alleges drat the pathologist never testified that the bullet “had gone through the glass” as the prosecutor claimed. These alleged errors occurred during the following argument:
“The pathologist, forensic pathologist told you there was no gun powder and all thаt sort of stuff on [Jones’] body. So that meant there was distance. She’s lying clutching a blanket on her left side. There are little fragments on her body right to the head where she was hit. You can look over here at the curtain and there’s black something on it. Hole in the door, glass is fallen down. He could tell from the examination it was a bullet wound when they did the autopsy I think the very next day, if not, it was shortly after she was killed. The doctor then said there’s a high powered rifle that committed this. That’s why they didn’t check the shotguns, didn’t check the pistol. The expert said it was a high powered rifle. It [came] from*276 a distance. That round had gone through glass. That’s probably the glass lead peeling off the bullet that’s on the curtain.” (Emphasis added.)
Standard of Review
We recently outlined our two-step analysis for prosecutorial misconduct claims in State v. McCaslin,
“ ‘Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki,279 Kan. 47 , 58,105 P.3d 1222 (2005) (quoting State v. Tosh,278 Kan. 83 , 85,91 P.3d 1204 [2004]). We have applied tire test to prosecutorial action in contexts beyond mere commеnt on the evidence. See State v. Swinney,280 Kan. 768 , 779,127 P.3d 261 (2006) (citing cases).’ State v. White,284 Kan. 333 , 337-38,161 P.3d 208 (2007).”
With Tosh as our foundation, we have provided specific guidance on the second step of the analysis, i.e., when to grant a new trial because of the misconduct. See, e.g., McCaslin,
Discussion
We begin our analysis by observing that Dr. Gеorge Thomas, a forensic pathologist, performed Jones’ autopsy and testified at trial. He testified that Jones was killed by a gunshot wound to the head. When discussing the wound, Dr. Thomas stated that it was atypical because “the bullet is not traveling in a stabilized fashion.” According to Dr. Thomas, “[I]f the bullet is disturbed in its pathway the bullet can wobble severely or tumble as it’s approaching the
The prosecutor asked wbat the intervening object could have been, but the defendant’s “speculation” objection was sustained. Following the оbjection, the prosecutor stated:
“[Prosecutor]: Doctor, if the round was fired from a high powered rifle, went through two intervening objects which were glass before striking the body, do you have any idea how a wound would be inflicted upon a body in that manner compared to this wound?
“[Dr. Thomas]: Well this wound is consistent with that scenario that you described.” (Emphasis added.)
Dr. Thomas also testified that glass causes a bullet to wobble and tumble and can cause an atypical gunshot with particles from the bullet also impacting the body. However, Dr. Thomas did not testify as to the caliber of the weapon that had fired the bullet or opine that it was a high-powered rifle.
It is fundamental thаt prosecutors must not argue facts not in evidence. We acknowledge, however, that prosecutors are given wide latitude during closing to argue reasonable inferences based on the evidence adduced at trial. State v. Pabst,
Here, contrary to Tahah’s claim, the prosecutor’s closing argument did not clearly attribute the fact of the bullet’s having “gone through glass” to Dr. Thomas. Even if so, Dr. Thomas testified that Jones’ “wound [was] consistent” with a bullet passing through glass before striking her body. Accordingly, such an attribution to Dr. Thоmas could be a reasonable inference based upon the evidence.
More important, evidence from law enforcement witnesses indicated that the bullet travelled through the glass window before striking Jones. Additionally, Jones’ friend Weber testified she noticed the window in Jones’ bedroom door was broken, causing her to call 911. We conclude the prosecutor did not argue facts not
The prosecutor did misstate the facts, however, when he argued to the jury that Dr. Thomas, “the expert,” himself opined that the murder weapon was а high-powered rifle. This argument was “not supported by the evidence [and was] beyond the wide latitude prosecutors are allowed in commenting on the evidence.” State v. Baker,
Issue 4: Tahah did not preserve for appeal the issue of whether the district court erred in admitting evidence under K. S.A. 60-455.
Tahah contends the district court erred in admitting into evidence tire April 13 event where he entered Jones’ house through the garage. The State filed a pretrial motion seeking to admit this evidence under K.S.A. 60-455. It argued that the event had a drastic impact on the relationship between Jones and Tahah, and that it gave Tahah motive to kill Jones several weeks later on May 5. In addition to motive, the State sought admission to prove intent and Jones’ state of mind. Tahah opposed the motion. After holding a hearing, the court eventually issued an order permitting the event to be used for motive and intent purposes under K.S.A. 60-455.
At trial, the State introduced evidence of the event through Ta-hah’s videotaped confession plus the testimony of Weber and KBI Agent LaRue. The confession included Tahah’s version of the event and his reason for going to Jones’ house. LaRue testified as to what Tahah disclosed during the initial interviews with law enforcement about the event, and Weber testified to the emotional and psychological effect it had on Jones.
Several analytical steps are required to determine whether evidence was properly admitted under K.S.A. 60-455, the statute concerning the admissibility of a person’s other crimes and civil wrongs. See, e.g., State v. Richmond,
Discussion
We need not engage in this multistep analysis, however. Although Tahah opposed the pretrial motion, he failed to object to the introduction of any of the evidence about the event at trial except to lodge one “asked and answered” objection during Weber’s direct examination. Accordingly, he failed to preserve the issue for appeal. See State v. Houston,
Issue 5: Tahah did not preserve for appeal the issue of whether the district court erred in admitting his confession.
Tahah finally claims that his confession during his May 11 interview was involuntary and therefore improperly admitted into evidence.
The State filed a pretrial motion to admit various pieces of evidence and requested that the court rule on the admissibility of Tahah’s statements at all three interviews: May 5, 7, and 11. The State alleged: “Defеndant made the statements [in the three interviews] consciously, knowingly, and voluntarily; and he, at the time, was not under any compulsion or coercion, or threats of compulsion or coercion, or acting upon any promise or promises.”
In Tahah’s response he did not discuss the voluntariness of his confessions, nor did he move to have them suppressed. After a hearing, the court ultimately ruled that all of Tahah’s statements
Standard of Review
When reviewing a challenge to the admission of a defendant’s confession the apрellate court reviews “ ‘the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.’ ” State v. Sharp,
Discussion
We need not engage in this multistep analysis, however. Although Tahah opposed the pretrial motion, he did not challenge the voluntariness of his confessions. Moreover, he failed to object to the introduction of his confessions into evidence at trial. Accordingly, he failed to preserve the issue for appeal. See State v. Stevens,
Reversed and remanded for a new trial.
Dissenting Opinion
dissenting: I respectfully dissent from the majority opinion, which concludes that a jury could have reasonably convicted Tahah of second-degree reckless murder or involuntary manslaughter. K.S.A. 22-3414(3) and State v. Berry,
This was never a case of an accidental shooting. Tahah was a trained law enforcement officеr with the Dodge City Police Department. On the night of the shooting, he declined to assist with the department’s response to the Greensburg tornado because he had been drinking. He continued drinking with friends at several bars. At one bar, Tahah was upset by the sight of his ex-girlfriend, Erin Jones, dancing with another man. After drinking into the early morning hours, Tahah drove past Jones’ house before returning to his apartment where he changed into dark clothing and dark shoes. Tahah then returned to Jones’ residence and lay in wait, hidden in Jones’ backyard and armed with his rifle, before firing the shot that killed her. The dark clothing and shoes were later recovered from his trash by officers searсhing his apartment. Officers also seized a Winchester .270 rifle and three “Winchester Short Mag” .270 shell casings.
The majority relies on Tahah’s later-recanted statement to police that the rifle discharged when he was lowering it as sufficient evidence to lead a jury to conclude that the shooting was accidental. Tahah’s statement was internally inconsistent with the suggestion that his gun fired accidently. While Tahah said he changed his mind and “when I was lowering the gun a round went off,” he later said “[ajfter I made the shot,” language that is used when a person intentionally fires a gun. Tahah also made a noticeable trigger-action hand gesture when he talked about firing the rifle. The State presented evidence that trained law enforcement officers are taught to keep their trigger finger off the trigger until ready to fire, and Tahah acknowledged that he had been trained to use that precaution. The State also presented testimony that the angle of the shot was inconsistent with a shot fired while the rifle was being lowered. Tahah provided details of his location in the yard and corrected officers who suggested the shot was fired from inside the house.
Or consider this scenario: a car salesman confesses that he stole a low-mileage, late-model Mercedes-Benz. In his statement to police, he gives explicit details about the Mercedes location and the means by which he stole it. He also states that he believed it to be worth $500. At trial, he not only recants and denies ever being in possession of the Mercedes, the State puts on evidence independent оf tire confession supporting the theft and of the vehicle’s value being at least $35,000. Further, there is testimony that the defendant sold one just like it a month prior for $40,000. The majority would find that it was reversible error for the trial court not to instruct on the lesser included crime of misdemeanor theft. The law has never been that simply saying something in a statement, especially when it is later repudiated by the declarant and unsubstantiated by any evidence, suffices to validate it as “some evidence reasonably justifying a conviction of some lesser crime beyond a reasonable doubt.” In State v. Calderon,
In Calderon, this court reviewed the record and concluded that the evidence did not support an instruction for reckless second-degree murder. We noted that there was overwhelming evidence of intent and Calderon’s self-serving statement regarding his lack of intent did not in itself support the lesser included instructions based on recklessness. Calderon,
Second-degree reckless murder is the killing of a human being committed unintentiоnally but recklessly under circumstances manifesting extreme indifference to the value of human life, K.S.A. 21-3402(b); and involuntary manslaughter is the unintentional killing of a human being committed recklessly, K.S.A. 21-3404(a). Here, there was no evidence presented at trial that could reasonably justify a conviction that Tahah unintentionally but recklessly discharged his rifle at an occupied dwelling. Based on the evidence presented and consistent with his theory of defense before the jury, Tahah either committed the act and was guilty of felony murder as charged or he was guilty of nothing at all.
Second-degree reckless murder and involuntary manslaughter may now be lesser includеd offenses of felony murder in some situations in which they were not previous to Berry. However, in this case there was no evidence, when viewed in the light most favorable to Tahah, on which a reasonable jury could convict Tahah of either of the requested lesser included instructions beyond a reasonable doubt. “Where there is no substantial testimony applicable to the lesser degrees of the offense charged and all of the
Accordingly, I conclude it was not error to deny Tahah’s request for second-degree reckless murder and involuntary manslaughter as lesser included offenses of felony murder.