Appeal from Kingman district court; LARRY T. SOLOMON, judge.
1. Imposition of the K.S.A. 21-4638 hard 40 sentence based on a fact not found by the jury does not increase a defendant's maximum sentence of imprisonment for life imposed under K.S.A. 21-4706(c). Rather, it dictates the minimum time to be served. A hard 40 sentence violates neither the Due Process Clause of the Fourteenth Amendment to the United States Constitution nor the right to trial by jury guaranteed by the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, §§ 5, 10.
2. A district court's ruling on a motion for mistrial is reviewed under an abuse of discretion standard. A court abuses its discretion when no reasonable person would take the view adopted by the court. A defendant must show substantial prejudice before an appellate court will find the district court abused its discretion in denying a motion for mistrial.
3. When reviewing a district court's denial of a mistrial motion based on violations of an in limine order by the prosecutor, an appellate court may employ a prosecutorial misconduct-type analysis to the extent it is helpful in determining whether there has been substantial prejudice.
4. Under the facts of this case, a prosecutor's passing reference to a prior trial rather than prior testimony was inadvertent and isolated, and the prosecutor immediately corrected himself after the slip. No attention was drawn to the mistake, and defendant declined the district court's offer of a curative instruction. The prosecutor's conduct was not gross or flagrant and did not appear to be the product of ill will or bad faith. The mistake was not likely to have any weight in the minds of the jury.
5. Under the facts of this case, the district court did not abuse its discretion in refusing to grant a mistrial after an expert witness for the State mentioned that defendant's fingerprints were obtained from Kansas Bureau of Investigation's central records repository. The unsolicited statement did not inevitably suggest that the defendant had a prior criminal record.
6. An appellate court employs a two-step analysis for allegations of prosecutorial misconduct. This analysis applies regardless of whether the alleged misconduct occurred during witness examination or during closing argument and applies regardless of whether a contemporaneous objection was made. The first step asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. The second step asks whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. The second step requires three factors to be considered: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705,
The opinion of the court was delivered by: Beier, J.
On this direct appeal from defendant William D. Albright's conviction of first-degree murder at retrial, defendant challenges the constitutionality of his hard 40 sentence, argues the district judge erred in overruling his motions for a mistrial, and alleges prosecutorial misconduct during closing argument denied him a fair trial.
Factual and Procedural Background
The facts underlying defendant's conviction are set out in detail in State v. Albright, 271 Kan. 546, 547-49, 24 P.3d 103 (2001), and are summarized as follows:
Defendant and David Barker, the victim, went to visit Jason Hoffine, who ran an auto repair shop. Defendant wanted two things--a new life in Mexico and money from Hoffine. Barker's wife and defendant's girlfriend decided to stay together in a motel because Barker's house had just been searched by police. The next day, the group met back at the motel. Barker and defendant talked about returning to Hoffine's to sell the Barkers' 1961 Chevrolet Impala for $2,000 cash. The two men went to Barker's house, picked up the car, returned to the motel about 7:30 p.m., and unloaded the car.
About 9:15 p.m., the two women left the motel. Barker's wife noticed that defendant had a 9-mm hand gun, which belonged to a friend, Stephen Jeffrey Phillips. Barker carried two guns and a pocketknife. Defendant and Barker left to talk to Hoffine about the Impala. The women returned to the motel about midnight; although the men were supposed to meet them, they did not return that night.
About 4 a.m., defendant unexpectedly arrived alone at Hoffine's house, driving the Impala. Defendant told Hoffine that he would take just about anything for the Impala, although days earlier, Barker had tried to convince Hoffine that the car had been appraised at $3,300. The car's ignition switch could be activated without a key. Defendant did not have the keys, but he had the unsigned title certificate. In Hoffine's presence, defendant forged Barker's signature on the title and sold the Impala to Hoffine, who then drove defendant back to the motel.
Defendant also fabricated a story that Hoffine believed he was supposed to repeat if questioned. According to the story, defendant and Barker had come to Hoffine's house about midnight, and Hoffine gave defendant some money. Barker left with a Mexican driving a blue Suburban.
In actuality, according to Hoffine's testimony, after defendant arrived at his house, defendant washed his hands and arms because he was concerned about "ballistics" testing. Then defendant told Hoffine that he had shot Barker in the back of the head while Barker stood behind the Impala about 26 miles outside of town. Defendant also said that he had left Barker's body lying beside the road and that the body should be found fairly soon.
Defendant and Phillips left for Oklahoma that evening. On the trip, defendant told Phillips that he had shot Barker in the head while Barker stood by the trunk of the Impala. Defendant also told Phillips that he had used Phillips' 9-mm Ruger and that he had dismantled the gun and disposed of it.
Phillips had two 9-mm Rugers that looked nearly identical. He testified that he had lent one of them to defendant. Defendant returned it 2 days before the murder, and Phillips had placed the gun in the kitchen drawer where defendant knew he usually kept it. When Phillips looked for the gun the next day, it was gone. The Ruger admitted into evidence at trial was not the one used to kill Barker; it was the other 9-mm Ruger owned by Phillips.
Phillips testified that defendant said he killed Barker because Barker was going to have Phillips and Phillips' mother, niece, and nephew killed. Defendant told him that Barker thought Phillips had called the police about raiding Barker's house. Phillips said he did not know about Barker's threats until defendant told him about them.
After a farmer found Barker's body lying in the middle of the road, an autopsy revealed that Barker died from a gunshot wound to the back of his head. Dr. Corrie May, a forensic pathologist, testified that, in her opinion, the death was a homicide. Forensic testing showed that tissue scraped ...