The opinion of the court was delivered by
Faye Johnson-Howell appeals her convictions of one count of
first-degree murder, K.S.A. 1989 Supp. 21-3401, and one count of
conspiracy to commit murder, K.S.A. 1989 Supp. 21-3401 and K.S.A.
21-3302. Defendant claims (1) she was denied her state and
federal constitutional rights to confront a nontestifying
codefendant; (2) illegal wiretap information was admitted; (3)
she was denied the right to present evidence; and (4) she did not
receive a fair trial because of cumulative errors.
Johnson-Howell was charged with (1) aiding and abetting and (2)
conspiring with LaJuan Clemons to commit first-degree murder of
Charles Howell, her estranged husband. See State v. Clemons,
251 Kan. 473, 836 P.2d 1147 (1992), where LaJuan Clemons'
conviction of the first-degree murder of Howell was affirmed.
Johnson-Howell and Howell had separated. While separated,
Johnson-Howell had plotted over the telephone with others to kill
Howell; Howell had recorded the telephone conversations. When he
informed the police of the plot, things "cooled down." The
couple's divorce action was to be heard the day Howell was
murdered. Howell was shot twice in the head in Olathe on February
8, 1990. An autopsy on Howell revealed that he had suffered two
shotgun wounds. One wound was caused by a shotgun slug and the
second by pellets from a shotgun blast.
At Johnson-Howell's trial, Bobbi Bolton, Howell's girlfriend,
with whom he had been living, testified that she heard the
gunshots, went outside, and found Howell's body. She called 911
and told the dispatcher that Howell had been shot. Bolton also
told the dispatcher that she had observed a light blue four-door
small to mid-size car, possibly a rental car, with red license
plates, located on the street behind her house in an area which
was under development. At trial Bolton identified a picture of a
System One rental car as the car she saw the day of the homicide.
On cross-examination, she admitted she had previously told the
police that she thought the blue car was a Chevy Nova.
During the murder investigation, two System One employees
informed investigating officers that Johnson-Howell had rented a
blue Dodge Spirit automobile. Johnson-Howell, accompanied by
Clemons, had picked up the car on February 7, 1990, and they had
returned the car about "11:30 in the afternoon." The "System One"
bumper sticker had been removed. It was not unusual for cars to
be returned with the bumper stickers removed. The police obtained
a search warrant and seized the car at noon the same day. A
search of the car led to the discovery of a set of keys in the
car and a fingerprint on the trunk. The car had mud on the
driver's floorboard area. It was later determined the keys
belonged to Clemons, and it was his fingerprint on the trunk of
the rental car. The tires on the rental car matched tire tracks
found where Bolton saw the rental car parked. A police officer
who had responded to Bolton's 911 call testified that as he
approached the area, he observed a car leaving the area that was
similar to a car which had been rented by the defendant.
Julius Olubo, an employee at Johnson-Howell's insurance agency,
testified that on the day of the homicide Clemons showed up at
the insurance agency at about 8:45 a.m. Olubo testified Clemons
was driving a car similar to the rental car identified by other
Detectives from Olathe interviewed Clemons at his apartment on
February 9, 1990, at approximately 12:30 a.m. At the time Clemons
was being interviewed, there were numerous other possible
suspects in the homicide, and 11 detectives working throughout
the metropolitan area were following leads. Initially, Clemons
identified himself as Nelson Brown and advised the detectives
that he knew LaJuan Clemons but had not seen him for at least one
day. Eventually, he admitted he was LaJuan Clemons. Clemons told
the officers that he and Johnson-Howell were lovers. On February
11, 1990, police executed a search warrant at Clemons' residence
and recovered two shotgun shells similar to the shells used to
kill Howell. The search of Clemons' bedroom also yielded an
answering machine stolen from Bolton's apartment in June 1989. On
February 15, 1990, Clemons was arrested and charged with murder.
An expert in military equipment who had been Clemons' superior
in the military testified that footprints found leading to and
away from the homicide scene were made by a particular kind
of boot Clemons could have purchased while in the Army reserves.
When Clemons' apartment was searched, a variety of military
clothing was found, but no boots.
A police officer interviewed Max Howell, the young son of
Howell and Johnson-Howell, several days after the homicide. The
day of the homicide Max, who was living with his mother, called
his father at home at about 7:00 a.m. The police believed that
the son had been used to determine if his father was home and not
at work. Bolton testified that she heard Howell answer the phone
and say, "`If you thought I was at work, why did you call?'"
Howell worked the 6:00 a.m. to 2:30 p.m. shift at his job. Howell
told Bolton the call was from Max. Bolton testified Max had never
called at that time in the year she had been living with Howell.
Max testified his mother knew he was calling his father but she
did not tell him to do so.
In a May 1989 phone conversation recorded by Howell,
Johnson-Howell told Frank Parker, a friend and former employee of
hers, that she wanted Howell dead. She told Parker she was
plotting with a former lover, Henry Arbrought, to kill Howell.
Johnson-Howell asked Parker to give Arbrought some money for the
murder. Johnson-Howell later told Parker that Arbrought would not
commit the murder. She stated that she would have Clemons do it
instead. Neither Johnson-Howell nor Parker knew the conversation
was being taped by Howell. The State introduced, over the
defense's objection, the taped telephone conversation. Parker
testified that prior to the telephone conversation, Howell had
physically assaulted Johnson-Howell in front of Parker and the
Howells' son at Johnson-Howell's office.
During the trial, the following occurred outside the presence
of the jury: Clemons was to be a witness for the State. Clemons'
attorney told the court that Clemons was aware he had previously
waived his Fifth Amendment privilege by testifying at his trial
and understood he [Clemons] would be held in contempt of court if
he refused to answer any questions. When Clemons refused to
answer any questions, the judge found Clemons in contempt.
In order to obtain admission of Clemons' prior statement to
investigating officers, the State requested that the judge find
to be an unavailable witness. The defense objected, claiming it
would not be able to confront and cross-examine Clemons regarding
his statements to the officer. To provide the defendant his right
to confront Clemons, the judge decided to have Clemons sworn in
front of the jury, allow the State to examine him, and then, if
Clemons answered the State's questions, let the defense
cross-examine. The judge withdrew his finding that Clemons was in
Clemons took the stand and was sworn. In front of the jury,
Clemons refused to answer the prosecutor's questions. The State
requested that Clemons be declared a hostile witness so it could
ask leading questions. The defense's objection was overruled. The
State proceeded to ask leading questions. Clemons refused to
answer the questions. After the State had completed asking
Clemons a series of leading questions about his prior statements
to the officers, which Clemons refused to answer, the judge
informed the defense it could cross-examine Clemons within the
scope of the questions asked by the prosecutor. The defense
pointed out that because Clemons had not answered a question,
there was no scope of direct examination to stay within and did
not cross-examine the witness. The jury was excused, and the
judge then found Clemons to be in contempt.
Over the defense's hearsay objection, the State was able to
introduce the statements made by Clemons to the police the day
after the homicide as an exception to the rule against admission
of hearsay. Detective Halloran testified that when he talked to
Clemons the day after the homicide, Clemons stated he knew Howell
had been murdered. Clemons also admitted he and the defendant
drove a rental car to Howell's residence the night before the
homicide and then "went to the street behind the residence and
counted over the number of houses that Charles Howell's residence
A Kansas City, Missouri, police officer testified that about a
month before the homicide he stopped Clemons, who was driving a
rental car which had been rented by Johnson-Howell, and found two
loaded handguns in the vehicle. A forensic serology specialist
testified that an examination of Clemons' army jacket did not
any bloodstains. The State asked whether, hypothetically,
bloodstains would be present if the jacket was worn by the
shooter. The defense objected that the question was speculative,
but the court overruled the objection. The expert said there were
so many variables involved, he could not answer the question.
Johnson-Howell testified she rented a car because her car was
being repaired. She stated she had no involvement in Howell's
killing. She related all of her activities on the morning of the
homicide, including a stop at a beauty salon where she had her
hair done. On cross-examination she testified she did not believe
Clemons killed Howell. Johnson-Howell admitted that she had
written a letter to Oprah Winfrey after her indictment and either
threatened to kill Howell or to have him killed. The defense
attempted to introduce a subsequent letter written to Winfrey by
Johnson-Howell in which she detailed Howell's involvement in drug
trafficking. The State objected to its introduction. The judge
found that the second letter was self-serving and that without
further foundation it was not admissible. The defense did not
provide additional foundation.
Johnson-Howell's hair stylist testified that Johnson-Howell
came to the salon at about 8:15 or 8:30 a.m. the day of the
homicide. Johnson-Howell had testified that she normally had her
hair done on Fridays but she set up this appointment because of
the divorce hearing set for later that day. On cross-examination
the State inquired if the stylist knew whether the purpose of the
appointment was to establish an alibi for the defendant. The
defense objection to the question as speculative was sustained.
Johnson-Howell was convicted of first-degree murder, under the
aiding and abetting theory, a class A felony, K.S.A. 1989 Supp.
21-3401; and conspiracy to commit first-degree murder, a class C
felony, K.S.A. 1989 Supp. 21-3401 and K.S.A. 21-3302. She was
given consecutive sentences of life on the murder charge and 4-15
years on the conspiracy charge.
Admissibility under Hearsay Exceptions
Johnson-Howell argues the introduction of Clemons' statements
at trial denied her the constitutional right to confront the
witness against her. In addition, she argues the statements were
not admissible under any of the statutory exceptions to the
prohibition against the admission of hearsay, K.S.A. 1989 Supp.
60-460 (now 1993 Supp.).
Because the State sought to introduce the statements of the
unavailable witness at trial, it had the burden to provide the
foundation for the admission of those hearsay statements into
evidence. To obtain admission of the hearsay statements, the
State had to demonstrate that the witness was unavailable, and
then the court must have found that the statements bore
sufficient indicia of reliability or showed particularized
guarantees of trust-worthiness.
In State v. Myers, 229 Kan. 168, 172, 625 P.2d 1111 (1981),
we noted that a footnote in Ohio v. Roberts, 448 U.S. 56, 65 n.
7, 65 L.Ed.2d 597, 100 S.Ct. 2531 (1980), stated a demonstration
of unavailability is not always required. That footnote stems
from a concurring opinion to the plurality opinion in Dutton v.
Evans, 400 U.S. 74, 95-96, 27 L.Ed.2d 213, 91 S.Ct. 210 (1970),
where Justice Harlan opined, "A rule requiring production of
available witnesses would significantly curtail development of
the law of evidence to eliminate the necessity for production of
declarants where production would be unduly inconvenient and of
small utility to a defendant." We point out that our case does
not involve issues of inconvenience or limited utility to
defendant's defense by requiring production of the codefendant as
Evidence of a statement which is made other than by a witness
while testifying at the hearing, offered to prove the truth of
the matter stated, is hearsay evidence and inadmissible, subject
to enumerated exceptions. The State argues the statements were
admissible as a previous statement of a person present, K.S.A.
1993 Supp. 60-460(a); as a contemporaneous statement by an
unavailable witness, K.S.A. 1993 Supp. 60-460(d)(3); a vicarious
admission, K.S.A. 1993 Supp. 60-460(i); and a declaration against
interest, K.S.A. 1993 Supp. 60-460(j). A review of the exceptions
to K.S.A. 1993 Supp. 60-460 claimed by the State to be relevant
reveals that none apply here.
K.S.A. 1993 Supp. 60-460(a) provides:
"Previous statements of persons present. A
statement previously made by a person who is present
at the hearing and available for cross-examination
with respect to the statement and its subject matter,
provided the statement would be admissible if made by
declarant while testifying as a witness."
This exception does not apply because Clemons refused to testify;
therefore, he was not available for cross-examination.
K.S.A. 1993 Supp. 60-460(d) provides:
"Contemporaneous statements and statements
admissible on ground of necessity generally. A
statement which the judge finds was made . . . (3) if
the declarant is unavailable as a witness, by the
declarant at a time when the matter had been recently
perceived by the declarant and while the declarant's
recollection was clear and was made in good faith
prior to the commencement of the action and with no
incentive to falsify or to distort."
Under the hearsay rule, a witness is unavailable if the witness
is (1) exempted on the ground of privilege from testifying
concerning the matter to which his or her statement is relevant,
(2) disqualified from testifying to the matter, (3) unable to be
present or to testify at the hearing because of death or then
existing physical or mental illness, (4) absent beyond the
jurisdiction of the court to compel appearance by its process, or
(5) absent from the place of hearing because the proponent of his
or her statement does not know and with diligence has been unable
to ascertain his or her whereabouts. K.S.A. 60-459(g).
A witness is not unavailable (1) if the judge finds that his or
her exemption, disqualification, inability, or absence is due to
procurement or wrongdoing of the proponent of his or her
statement for the purpose of preventing the witness from
attending or testifying, or to the culpable neglect of such
party; or (2) if unavailability is claimed because the witness is
absent beyond the jurisdiction of the court to compel appearance
by its process, and the judge finds that the deposition of the
declarant could have been taken by the exercise of reasonable
diligence and without undue hardship and that the probable
importance of the testimony is such as to justify the expense of
taking such deposition. K.S.A. 60-459(g).
Clemons was not an unavailable witness as defined by K.S.A.
60-459(g). Cf. State v. Mack, 255 Kan. 21, 33, 871 P.2d 1265
(1994) (witness living in Germany; beyond jurisdiction of court
to compel attendance); State v. Green, 254 Kan. 669, 680,
867 P.2d 366 (1994) (witness had Fifth Amendment privilege to refuse
to testify; exercise of privilege made witness unavailable);
State v. Vaughn, 254 Kan. 191, 201, 865 P.2d 207 (1993)
(failure of good faith efforts to locate witness before trial,
other examples discussed). K.S.A. 1993 Supp. 60-460(d)(3) does
not apply because Clemons was not unavailable as defined by
K.S.A. 1993 Supp. 60-460(i) provides:
"Vicarious admissions. As against a party, a
statement which would be admissible if made by the
declarant at the hearing if . . . (2) the party and
the declarant were participating in a plan to commit
a crime or a civil wrong and the statement was
relevant to the plan or its subject matter and was
made while the plan was in existence and before its
complete execution or other termination. . . ."
The exception contained in 60-460(i)(2) is not applicable because
the statements by Clemons to the officers were made after the
crime had been completed. See Myers, 229 Kan. at 173.
K.S.A. 1993 Supp. 60-460(j) provides:
"Declarations against interest. Subject to the
limitations of [60-460] (f), a statement which the
judge finds was at the time of the assertion so far
contrary to the declarant's pecuniary or proprietary
interest or so far subjected the declarant to civil
or criminal liability or so far rendered invalid a
claim by the declarant against another or created
such risk of making the declarant an object of
hatred, ridicule or social disapproval in the
community that a reasonable person in the declarant's
position would not have made the statement unless the
person believed it to be true."
The declarations against interest exception of 60-460(j) also
does not apply because the statements did not, by themselves,
subject Clemons to criminal liability. Cf. State v. Jones,
246 Kan. 214
, 219, 787 P.2d 726 (1990) (statements made by
unavailable codefendant that he and two others, rather than the
defendant, were involved in shooting were admissible as
declarations against interest). Although the statements made by
Clemons were circumstantial evidence that supported an inference
that he knew Howell had been killed and was at the crime scene
prior to the murder, they are not sufficient to subject him to
Incriminating Statements By A Nontestifying Codefendant
Johnson-Howell challenges the admission of statements of her
codefendant that incriminated her, through the testimony of an
investigating officer. Johnson-Howell argues that the unorthodox
methodology of the court in allowing the investigating officer to
recite the previous statements of a codefendant, a State's
witness who refused to answer questions in the presence of the
jury, denied her the right to confront the declarant.
The Sixth Amendment to the United States Constitution provides
that in all criminal prosecutions, the accused shall enjoy the
right to be confronted with the witnesses against the accused. In
Pointer v. Texas, 380 U.S. 400, 403, 13 L.Ed.2d 923, 85 S.Ct.
1065 (1965), the Supreme Court held that this is a fundamental
right and is made obligatory on the states by the Fourteenth
Amendment. See State v. Willis, 254 Kan. 119, 123, 865 P.2d 1198
(1993). This constitutional provision, however, does not
preclude the admission of all hearsay evidence. See Ohio v.
Roberts, 448 U.S. at 63. Ordinarily, admissibility of evidence,
including hearsay, is within the discretion of the trial judge.
See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993).
That discretion is not unbounded. It should be noted that the
hearsay rule and the Confrontation Clause "generally" serve the
same interests, but sometimes do diverge. Ohio v. Roberts, 448
U.S. at 66; Dutton v. Evans, 400 U.S. at 81-82. The
Confrontation Clause places "limitations on the admissibility of
hearsay evidence in criminal cases which are not applicable in
civil cases." State v. Myers, 229 Kan. at 172. The courts>
should attempt to "harmonize the goal of ...