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STATE v. JOHNSON-HOWELL

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 ...


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