September 16, 1994.
STATE OF KANSAS, Appellee,
v.
FAYE A. JOHNSON-HOWELL, Appellant.
The opinion of the court was delivered by
[255 Kan. 930]
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
[255 Kan. 931]
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
witnesses.
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
[255 Kan. 932]
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
Clemons
[255 Kan. 933]
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
contempt.
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
was."
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
reveal
[255 Kan. 934]
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
[255 Kan. 935]
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
a witness.
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:
[255 Kan. 936]
"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
[255 Kan. 937]
(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. 60-459(g).
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
criminal punishment.
[255 Kan. 938]
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 the [Confrontation]
Clause ? placing limits on the kind of evidence that may be
received against a defendant ? with a societal interest in
accurate factfinding, which may require consideration of
out-of-court statements." Bourjaily v. United States, 483 U.S. 171,
182, 97 L.Ed.2d 144, 107 S.Ct. 2775 (1987).
When the Confrontation Clause becomes an issue as to the
unavailability of a witness, whether the witness is unavailable
is a question of law. See Jennings v. Maynard, 946 F.2d 1502,
1504 (10th Cir. 1991) ("We review an issue of unavailability
under the Confrontation Clause de novo."). Under the
Confrontation
[255 Kan. 939]
Clause, the inquiry is whether the State has made a good faith
effort to obtain the presence of the witness at the trial. Ohio
v. Roberts, 448 U.S. at 74. The defendant claims that the
production of the witness by the State was not made in good faith
because the State knew that the witness would refuse to testify.
To support its claim that it made a good faith effort to
produce the witness and, therefore, the codefendant's statements
to the officer were admissible, the State points to State v.
Mitchell, 3 Kan. App. 2d 635, 599 P.2d 1025 (1979). In
Mitchell, the Court of Appeals stated that when the trial judge
has reasonable cause to believe a witness will refuse to testify,
it is better practice to conduct a hearing outside the presence
of the jury to ensure that the defendant's right to a fair trial
is not inadvertently violated; but when the witness has no legal
right to refuse to testify, it is not reversible error per se for
the court to refuse to conduct such a hearing. 3 Kan. App. 2d at
640.
A somewhat similar situation occurred in Jennings v. Maynard,
946 F.2d 1502. In Jennings, a witness refused to testify in an
Oklahoma state court proceeding. The witness claimed that he and
his family had been threatened with harm if he testified. The
10th Circuit Court of Appeals found a refusal to testify because
of threats was a "well-established ground" for finding a witness
unavailable under both Oklahoma and federal rules of evidence.
946 F.2d at 1505.
Witnesses have a state and federal constitutional right against
compelled self-incrimination. Except as otherwise provided by
statute, every person is qualified to be a witness. No person has
a privilege to refuse to be a witness or to refuse to disclose
any matter, and no person has a privilege that another shall not
be a witness or shall not disclose any matter. K.S.A. 60-407 (a),
(b), (d), and (e). Subject to K.S.A. 60-423 and K.S.A. 60-437,
every natural person has a privilege, which he or she may claim,
to refuse to disclose in an action or to a public official of
this state or the United States or any other state or any
governmental agency or division thereof any matter that will
incriminate such person. K.S.A. 60-425. A matter will incriminate
a person if it constitutes, or forms an essential part of, or,
taken in connection
[255 Kan. 940]
with other matters disclosed, is a basis for, a reasonable
inference of such a violation of the laws of this state as to
subject the person to liability to punishment therefor, unless he
or she has become for any reason permanently immune from
punishment for such violation. K.S.A. 60-424. Except as otherwise
provided by the Kansas Constitution, the federal Constitution,
and our state statutes, every person is qualified to be a
witness.
A person who would otherwise have a privilege to refuse to
disclose a matter has no such privilege as to that matter if the
judge finds that such person, without coercion, or without any
trickery, deception, or fraud practiced against him or her, and
with knowledge of the privilege, made disclosure of any part of
the matter. K.S.A. 60-437(b). If a privilege is exercised not to
testify or to prevent another from testifying, either in the
action or with respect to particular matters, or to refuse to
disclose or to prevent another from disclosing any matter, the
judge and counsel may not comment thereon, no presumption shall
arise with respect to the exercise of the privilege, and the
trier of fact may not draw any adverse inference therefrom. In
those jury cases wherein the right to exercise a privilege, as
herein provided, may be misunderstood and unfavorable inferences
drawn by the trier of the fact, or may be impaired in the
particular case, the court, at the request of the party
exercising the privilege, may instruct the jury in support of
such privilege. K.S.A. 60-439.
A witness' refusal to testify in a criminal trial is not a
recognized ground for unavailability of the witness in this
state. See State v. Lomax & Williams, 227 Kan. 651, 660,
608 P.2d 959 (1980). In Lomax a witness, Mary Ellen Bagby, had
identified the three males at a codefendant's preliminary
examination as the individuals who had committed the robbery.
When called to testify at the defendants' trial, the witness
stated that she would not testify because she could not remember
what had occurred during the robbery. Bagby was declared a
hostile witness, and the prosecutor questioned Bagby about her
prior testimony at a codefendant's preliminary examination by
reading the question and the answer which Bagby gave at that
hearing. Bagby's responses were that she could not remember or
recall either the question or her answer.
[255 Kan. 941]
When defense counsel cross-examined the witness, she again stated
that she did not remember anything.
The Lomax court reviewed federal cases which held that where
a prosecution witness refuses to take an oath or refuses to give
testimony of any sort or responds with answers such as "I don't
recall" or "I don't know," the prior hearsay statements are not
admissible under the constitutional confrontation rule. It then
noted that in United States v. Fiore, 443 F.2d 112 (2d Cir.
1971), the court held that prior grand jury testimony of a
witness who refused to testify at a subsequent trial was not
admissible. Pointing out that the witness was not subject to
cross-examination by the defendant because of his refusal to
testify, the Fiore court stated that the admission of his grand
jury testimony violated not only the hearsay rule but also the
confrontation rule of the Sixth Amendment.
In Fiore, the witness had been placed on the stand by the
prosecutor and, when asked if he had previously testified before
the grand jury, answered, "I don't remember." There followed a
protracted examination in which the prosecutor read portions of
the grand jury testimony framed by the questions, "Were you asked
the following questions and did you give the following answers?"
The witness invariably gave such answers as, "I might have," or
"I don't know whether I did or not." 443 F.2d at 114. This line
of questioning was held to be reversible error on the basis that
the witness was not available for cross-examination as required
by defendant's constitutional right of confrontation.
The Lomax court noted that in United States v. Gonzalez,
559 F.2d 1271 (5th Cir. 1977), the court reversed a conviction
for marijuana possession, holding that the grand jury testimony
of a coconspirator who refused to testify at the trial was not
admissible hearsay. The witness had already been convicted, was
granted immunity, and was ultimately found in contempt when he
refused to testify. The case was reversed on the basis that the
witness was unavailable as a witness under Fed. R. Evid. 804(a).
The Gonzales court did not consider it necessary to consider
the defendant's argument that the introduction of such evidence
violated his right to confront witnesses. 559 F.2d at 1274.
[255 Kan. 942]
In Gonzalez, reference is made to United States v. Carlson,
547 F.2d 1346 (8th Cir. 1976), cert. denied 431 U.S. 914
(1977), where the federal district court had held admissible the
grand jury testimony of a witness who refused to testify because
of threats directed against him by the defendant Carlson. On
appeal, the Carlson court held that the defendant had waived
his right of confrontation since the witness' refusal to testify
was procured by the accused. 547 F.2d at 1358. The Gonzalez
court refused to apply the exception stated in Carlson because
there were no threats of harm directly attributed to defendant
Gonzalez. 559 F.2d at 1274. It is important to note that in
Lomax there was no finding by the trial court that the refusal
of Mary Ellen Bagby to testify was the result of threats made to
her by the defendants. 227 Kan. at 660-61.
The Lomax court applied the basic principles previously
discussed and concluded that Mary Ellen Bagby was not available
for cross-examination by the defendants Lomax and Williams during
their trial or the preliminary hearing of Cashley Woods. Under
these circumstances, Lomax and Williams were not afforded the
right of cross-examination. The Lomax court noted that Mary
Ellen Bagby was obviously a recalcitrant witness from the
beginning of the defendants' trial. It observed that she
testified at Woods' preliminary examination only after being
threatened with punishment for contempt. When called as a witness
at the trial of Lomax and Williams, she again refused to testify,
stating that she could not recall what happened. Although she
failed to testify as hoped for by the State, her testimony was
not affirmative, contradictory, or adverse to the party calling
her, as required by State v. Potts, 205 Kan. 47, 52, 468 P.2d 78
(1970). She simply refused to testify, claiming that she could
not remember. The Lomax court interpreted the evidentiary
record as establishing a clear case where a witness simply
refused to testify at the trial by claiming that she could not
remember what happened. It found that this is not a case where a
witness, acting in good faith, was unable to testify as to the
subject matter of her prior statement because, through no fault
of her own, she had lost her memory as to the events. It
determined that the prior testimony of Mary Ellen
[255 Kan. 943]
Bagby was not admissible although she was present at the hearing,
because she was not available for cross-examination. The court
found that the admission of Bagby's testimony violated the
defendants' right to confrontation as provided for in the United
States and Kansas Constitutions. The case was reversed. 227 Kan.
at 661-62.
In State v. Myers, 229 Kan. 168, 173-75, 625 P.2d 1111
(1981), an analogous situation occurred during Joe Myers' trial
for murder. Shortly after the murder, Lorin Axvig informed his
wife that he and Myers had killed someone. Warrants were issued
for the arrest of Myers and Axvig for murder. Prior to Myers'
trial, Axvig was killed in Texas. In Myers' trial, the State
attempted to introduce Axvig's statement to his wife. For
authority to admit the statement, on appeal the State directed
our attention to 60-460(d)(3), which provides an exception to the
hearsay rule where a declarant is unavailable as a witness and
the statement offered is one narrating, describing, or explaining
an event which the judge finds was made by the declarant when the
matter had been recently perceived by the declarant and while his
or her 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. The State also argued that the oral
statements of Lorin Axvig were admissible under the hearsay
exception contained in 60-460(j) as a declaration against penal
interest.
The Myers court concluded that if the State was correct in
its position, then the specific statutory limitations on the
admissibility of confessions (60-460[f]) and incriminating
statements of coparticipants (60-460[i]) would, in effect, be
totally nullified. It did not believe that it was the intent of
the legislature to permit hearsay confessions and extrajudicial
statements of coparticipants in crime to be admitted against the
accused in a criminal case without satisfying the requirements
set forth in those subsections of 60-460. Sections 60-460(f) and
60-460(i) controlled where the issue before the court at a
criminal trial is the admissibility of the confession or hearsay
statement of a coparticipant. The Myers court determined that
must be the law in light of the purpose of the Confrontation
Clauses of the Sixth Amendment and Section
[255 Kan. 944]
10 of the Kansas Constitution Bill of Rights. In reaching that
conclusion, it considered the fact that in Kansas out-of-court
hearsay statements of coparticipants in crime have traditionally
been considered as unreliable and untrustworthy. In fact, the
testimony of an accomplice against an accused is considered so
unreliable as to require a precautionary instruction where there
is a lack of evidence which corroborates the testimony of the
accomplice. 229 Kan. at 174-75. See State v. Moody,
223 Kan. 699, 576 P.2d 637, cert. denied 439 U.S. 894 (1978).
Applying the Kansas statutes to the facts of this case, Clemons
was not an unavailable witness. The conviction and sentencing of
Clemons, and the resolution of his direct appeal, removed all
protection of the Fifth Amendment for any incriminating testimony
Clemons might provide at Johnson-Howell's trial. See State v.
Anderson, 240 Kan. 695, 700, 732 P.2d 732 (1987). Unlike the
witness in Jennings, Clemons' reason for refusing to testify
was not fear of retaliation by the defendant. Under the
circumstances, Clemons possessed no privilege to refuse to
testify when called as a witness. He was a witness who chose not
to testify, even after being ordered to by the trial judge and
threatened with being found in contempt. Cf. State v. Bird,
238 Kan. 160, 174, 708 P.2d 946 (1985) (witness who exercised her
Fifth Amendment privilege against self-incrimination was
unavailable for purposes of confrontation). The trial court did
not have discretion to require Clemons to take the stand before
the jury and to order him to answer the questions posed by the
State.
Clemons was not subject to cross-examination by the defendant
because of his refusal to testify. The admission of Clemons'
statements not only violated the hearsay rule, their admission
violated the accused's state and federal constitutional right of
confrontation.
Harmless Error
The State argues the admission of the codefendant's statements
into evidence was an error of constitutional magnitude; however,
under the facts, its admission was harmless and does not require
that the defendant's conviction be reversed. An error of
constitutional magnitude is serious and may not be held to be
harmless
[255 Kan. 945]
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 the error had little, if any, likelihood of having
changed the result of the trial. State v. White, 246 Kan. 28,
37, 785 P.2d 950, aff'd as modified 246 Kan. 393, 789 P.2d 1175
(1990). To make this determination, we must review the statements
and the other evidence of the defendant's guilt. Johnson-Howell
points out that when determining if the admission of the
statements was harmless error, we must consider the fact that the
jury requested, and received, a readback of Clemons' testimony.
First, we note that Clemons' statements regarding the rental
car were corroborated by other witnesses called by both parties
and by the testimony of Johnson-Howell. There is no prejudice
resulting from admitting Clemons' statements as to the rental
car.
That leaves the sole statement that Clemons knew Howell had
been murdered. This single statement did not inculpate either
Johnson-Howell or Clemons. In light of the length of the trial
and the other evidence adduced, that statement cannot be viewed
as having any effect on the outcome of the trial.
Johnson-Howell's final claim on this issue is that even though
the court sustained the defense's objection when the State sought
to have the detective testify that Clemons said he would do
anything for the defendant, the State introduced the relationship
into evidence through inference when the prosecutor asked Clemons
if he had told the detective he would do anything for the
defendant. Clemons did not answer the question.
We disagree with the defendant's assertion. During the trial,
to show the relationship between the defendant and Clemons, the
State introduced evidence that prior to Howell's death Clemons
and the defendant had traveled together to Dallas, New Orleans,
and Las Vegas. A photograph showing the defendant in a negligee
was recovered from the search of Clemons' bedroom. In addition,
there was evidence that the defendant and Clemons were in contact
after the murder. The State introduced evidence that while
Clemons was in the Johnson County jail, approximately 1,747
collect phone calls were placed to Johnson-Howell's residence
[255 Kan. 946]
and place of business from phones set aside for use by prisoners.
Several witnesses testified about the relationship between
Clemons and the defendant during the trial.
In State v. Lomax & Williams, 227 Kan. 651, the improperly
admitted hearsay statement identified the defendant as one of the
three individuals who had committed the robbery. In State v.
Myers, 229 Kan. 168, during Myers' trial the hearsay statement
admitted indicated that Myers had participated in the killing of
the victim. Here Clemons' hearsay statements did not directly
connect the defendant with the killing of her estranged husband,
and the same information was introduced through the testimony of
other witnesses. Even though the admission of Clemons' statements
violated the defendant's constitutional right to confront the
witnesses against her, under the circumstances, the introduction
of the statements were harmless error and did not deprive the
defendant of a fair trial.
Violation of the Federal Wiretap Statutes
The defendant filed a motion to suppress introduction of the
tape-recorded conversation between herself and Frank Parker.
Johnson-Howell asserted that the admission into evidence of the
tape-recorded conversation violated the federal wiretap statutes,
which prohibit the use in any trial of communications intercepted
in violation of the Omnibus Crime Control and Safe Streets Act of
1968, 18 U.S.C. ? 2510-2520 (1988) (Title III). The State argued
that to have a violation of the federal wiretap statutes the
interception must be willful.
The trial judge denied Johnson-Howell's motion to suppress the
taped phone conversation recorded by Howell before his death. The
trial judge found that at the time of the recording, Howell and
Johnson-Howell shared a residence and both had joint control of
the facilities in the residence where the recording was made. The
judge noted that there were two phone lines and Howell was a
subscriber on both lines. The judge found that in March 1989
Howell installed a voice-activated answering machine on a
basement telephone line extension because he felt he was not
receiving his telephone messages. In May 1989, Howell checked his
messages and discovered a recording of a conversation between
[255 Kan. 947]
Johnson-Howell and her secretary, Frank Parker. Johnson-Howell
does not challenge these findings. Findings of fact by the trial
judge which are not appealed are final and conclusive. Sullivan,
Bodney & Hammond, P.C. v. Bodney, 16 Kan. App. 2d 208, 209,
820 P.2d 1248 (1991).
18 U.S.C. ? 2515 (1988), prohibits, inter alia, the use of
evidence in state court criminal proceedings if the evidence was
obtained through unauthorized interception of an oral
communication in violation of Title III. The unauthorized
interception must be intentional. 18 U.S.C. ? 2511(1)(a) (1988);
see United States v. Ross, 713 F.2d 389, 391 (8th Cir. 1983).
The party claiming a violation of Title III has the burden to
show such violation. See, e.g., United States v. Ross, 713 F.2d
at 391. Interception is defined as "the aural or other
acquisition of the contents of any . . . oral communication
through the use of any electronic . . . device."
18 U.S.C. ? 2510(4) (1988). An electronic device includes "any device or
apparatus which can be used to intercept a[n] . . . oral . . .
communication." 18 U.S.C. ? 2510(5). An extension phone is not a
device under the statute. 18 U.S.C. ? 2510(4)(a); Simpson v.
Simpson, 490 F.2d 803, 809 (5th Cir.), cert. denied 419 U.S. 897
(1974).
In United States v. Harpel, 493 F.2d 346 (10th Cir. 1974),
and United States v. Cheely, 814 F. Supp. 1430 (D. Alaska
1992), two federal courts> have found recordings are not
necessarily covered under Title III where the recording device
merely records a conversation that has already been intercepted.
The Cheely court opined that recording a phone conversation
would be a violation only "if the conversation could not have
been heard by the human ear listening to the same telephone." 814
F. Supp. at 1441. If Howell had listened in on the basement
telephone extension, he would have heard the same conversation
recorded by the answering machine.
In Harpel, the 10th Circuit Court of Appeals stated that a
recording device placed next to, or connected with, a telephone
receiver cannot itself be the "acquiring" mechanism. It is the
receiver which serves this function ? the recorder is a mere
accessory designed to preserve the contents of the communication.
493 F.2d at 350.
[255 Kan. 948]
Although Howell was not staying at the house at the time he
installed the answering machine and when the tape was made, he
retained joint control with Johnson-Howell over the premises. The
trial court found Howell's purpose in installing the answering
machine was to ensure he would receive his phone messages, not to
record his wife's conversations with third parties. The defendant
has failed to meet her burden of showing that her estranged
husband had intentionally sought to intercept her oral
communication. Under these circumstances no violation of federal
law occurred, and the tape was admissible into evidence.
Denial of the Right to Present A Defense
Johnson-Howell asserts the refusal to permit her testimony
regarding her interview with the police and the refusal to admit
a letter denied her the right to have a meaningful opportunity to
present a complete defense. The State argues the standard of
review on admissibility or exclusion of evidence is whether the
excluded evidence is relevant and material and whether the trial
court abused its discretion in refusing to admit the evidence.
The defendant claims that the trial judge abused his discretion
by failing to allow her to present evidence relevant to her
defense and that the denial of her right to present this evidence
diminished her constitutional right to present a defense.
The defendant's right to present a defense is subject to the
rules of evidence and the case law. State v. Thomas,
252 Kan. 564, 573, 847 P.2d 1219 (1993). The standard of review for a
claim of improper exclusion of relevant evidence is whether the
trial court abused its discretion in excluding the testimony.
State v. Walker, 252 Kan. 117, 133, 843 P.2d 203 (1992).
After Johnson-Howell testified, the State questioned her on
matters omitted from her interview with police the day after the
homicide, as well as on the fact that she terminated the
interview on her attorney's advice. On redirect, she testified
she was "a bit hysterical and somewhat withdrawn, and I don't
know" at the time of the interview because her husband had been
murdered the day before. She also stated the officers told her
that her life had been threatened by Howell's friends and
"perhaps Sam or Gilbert Dowdy," alleged to be "Kansas City drug
kingpins." The State
[255 Kan. 949]
objected, arguing that this line of questioning violated a
pretrial motion in limine. The defense responded that the State
had opened up the subject by bringing out "one detail or two
details" regarding her interview with the police and leaving out
information that would show that Johnson-Howell "was an emotional
wreck" when the interview was terminated. The defense claims that
the excluded evidence was relevant to defendant's state of mind
and composure during the interview with the police and would have
explained her omission of certain information during the
interview.
We have reviewed the record and determined that the judge did
not prevent Johnson-Howell from pursuing this line of
questioning. The judge stated:
"I'll certainly allow you to allow her to explain if
she felt she was upset at the time the interview took
place, . . . but any innuendo that ? trying to bring
in somebody else committed the crime, there's no
foundation for that at this time."
The defense then chose not to follow this line of questioning by
laying a foundation but instead directed its attention to a
letter defendant wrote to Oprah Winfrey and then to the tape
recording of Johnson-Howell's conversation with Parker. Under the
facts, the evidence was not excluded by the judge; the judge
required the defendant to lay the foundation for the admission of
the evidence. To require a defendant to lay a foundation for the
admission of evidence is not an abuse of discretion.
The State introduced a letter Johnson-Howell wrote to Oprah
Winfrey. The defense attempted to introduce a second letter
written by Johnson-Howell to Winfrey. The State objected to the
admission of the second letter, claiming that it was written with
the intent to attack the victim's character, was self-serving,
and lacked relevance. The judge sustained the objection, finding
the letter was self-serving. The judge noted he would admit the
letter if a proper foundation was laid.
Johnson-Howell argues that the State's objection to the
admission of the letter because it was self-serving was not a
proper objection in that most evidence adduced by a party is
self-serving or prejudicial to the other party. On appeal, the
State concedes there is no rule in Kansas prohibiting the
introduction of self-serving
[255 Kan. 950]
evidence and, instead, argues that the judge's ruling should be
affirmed because the letter was hearsay.
In Schmeck v. City of Shawnee, 232 Kan. 11, 34, 651 P.2d 585
(1982), it was noted that there is no rule of evidence per se to
exclude a letter as a self-serving statement. The court
recognized that a self-serving statement may be excluded as
hearsay. Defendant's letter, though hearsay, would have been
admissible under 60-460(a) as a previous statement of a person
present and available for cross-examination.
A review of the record shows that the court initially prohibited
Johnson-Howell from attempting to introduce the letter but
required that a proper foundation be laid before the evidence
would be submitted for the jury to consider. Johnson-Howell could
have attempted to lay a foundation for admission of the second
letter but did not.
The Effect of Cumulative Errors
Johnson-Howell contends that in addition to the errors she
previously raised in the appeal, there were numerous other
prejudicial instances that cumulatively denied her the right to a
fair trial. Johnson-Howell asserts "the State repeatedly stepped
over the line of fairness." The specific instances she cites are:
1) the calling of Clemons' parole officer to testify
regarding his lack of employment, and, in doing so,
repeatedly stressing that the witness was a parole
officer even though the court instructed the State
to limit its questioning to Clemons' employment and
not his probationary status (over a string of 17
questions, the State prefaced 4 with a reference to
the witness' capacity as a Missouri State Parole
Officer);
2) the introduction of evidence that Clemons had
previously been arrested for carrying a concealed
weapon, a handgun, and the introduction of a
handgun that Johnson-Howell owned (the relevance of
Johnson-Howell's possession of a handgun is
questionable; however, Clemons' arrest occurred
while he was driving a car rented by
Johnson-Howell, which makes the circumstances
sufficiently similar to the crime charged to
establish relevance);
[255 Kan. 951]
3) following up an expert's testimony that Clemons'
jacket had no blood on it with a hypothetical
question that shooting someone would not
necessarily result in blood being deposited on the
shooter's clothing (the expert's answer was that
there would be too many variables involved to be
able to answer the question);
4) asking Johnson-Howell whether she was familiar
with Henry Arbrought's convictions, even though no
evidence of the same was introduced;
5) improper argumentative examination of
Johnson-Howell's hairdresser on whether the motive
behind a hair appointment was to establish an alibi
for the defendant (this objection was sustained);
and
6) prosecutorial misconduct in closing argument by
the State's heavy focus on Clemons' background and
reference to matters not in evidence (this
objection also was sustained); the prosecutor's
reference to what the "big, bad defense" had to
prove; and, finally, repeated references to
Clemons' refusal to testify.
Johnson-Howell argues this case is based on circumstantial
evidence and the evidence is "hardly overwhelming." The State
contends that although the evidence was circumstantial, the
evidence of guilt was overwhelming. This court has recognized
that in some cases circumstantial evidence can provide
overwhelming evidence of guilt. See State v. Henderson,
226 Kan. 726, 736, 603 P.2d 613 (1979) (under harmless error
analysis, "the totally circumstantial evidence presented against
the accused . . . of guilt was not overwhelming, to say the
least" [emphasis added]); State v. Coe, 223 Kan. 153, 164,
574 P.2d 929 (1977) ("in view of the overwhelming circumstantial
evidence disclosed in the record, the limitation placed on [the
witness'] testimony concerning his use of marijuana the night of
the alleged confession was harmless error"); State v. Harding,
208 Kan. 882, 884, 494 P.2d 1122 (1972) (noting the "trial court
found the defendant guilty as charged and referred to the
circumstantial evidence against the defendant as overwhelming").
[255 Kan. 952]
The evidence, in a nutshell, was that Johnson-Howell had two
motives for wanting Howell killed: revenge for his physical
beating of her and financial gain from death benefits, insurance,
and marital assets that would not then be subject to division in
the divorce action. She had an emotional and physical
relationship with the individual who murdered her estranged
husband. The car Clemons was driving the morning of the homicide
was seen in the vicinity of the homicide. Johnson-Howell and
Clemons drove out to Howell's neighborhood the night before the
homicide. Defendant was in a position to know that Howell was
home that morning. A search of Clemons' apartment turned up
shotgun ammunition similar to the type used to kill Howell. Boot
tracks of the type of boot that Clemons could have owned while in
the military were found leading to and away from where Howell's
body was found. Although testimony indicated Clemons possessed a
shotgun and could have possessed the type of boots involved, a
search of the apartment turned up shotgun shells and a variety of
other military clothing and equipment, but no sign of the two
real incriminating pieces of evidence ? the boots or the shotgun.
The cumulative effect rule is that trial errors, when
considered collectively, may be so great as to require reversal
of the defendant's conviction. The test is whether the totality
of circumstances substantially prejudiced the defendant and
denied the defendant a fair trial. Taylor v. State,
251 Kan. 272, 284, 834 P.2d 1325 (1992). The admission of Clemons'
statements and the reference in closing argument by the State to
the "big, bad defense" were trial errors. However, the cumulative
effect rule does not apply where the evidence is overwhelming
against the defendant. State v. Lumbrera, 252 Kan. 54, Syl. ?
1, 845 P.2d 609 (1992).
A defendant in a criminal case is entitled to a fair trial, not
a perfect one. State v. Chandler, 252 Kan. 797, Syl. ? 3,
850 P.2d 803 (1993). In light of the trial record as a whole, the
errors, when viewed together, do not show Johnson-Howell was
substantially prejudiced or denied her right to a fair trial. We
can declare beyond a reasonable doubt that the trial errors had
little, if any, likelihood of changing the results of the trial.
Affirmed.
[255 Kan. 953]
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