Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge.
1. An appellate court reviews a claim of judicial misconduct using an unlimited standard. An appellate court must determine the merits of an allegation of judicial misconduct by considering the particular facts and circumstances surrounding the allegation. Judicial misconduct warrants a new trial if it affirmatively appears that the conduct prejudiced the substantial rights of the complaining party.
2. The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean the proceedings or to undermine the judge's authority in the courtroom.
3. A judge who fails to control his or her temper and frustrations, declines to exercise control over his or her own conduct and utterances, and allows prospective jurors to embroil him or her in conflict commits misconduct.
4. When analyzing an issue of joinder, an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder.
5. When a party fails to object to the lack of findings before the district court, an appellate court presumes that the district court made the factual findings necessary to support its decision.
6. The defendant's desire to testify about some but not all of the charges against him or her does not prevent joinder pursuant to K.S.A. 22-3202(1).
7. K.S.A. 60-455 does not prevent joinder pursuant to K.S.A. 22-3202(1).
8. A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and non-cumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial. However, the defendant's right to present a defense is limited by the statutory rules of evidence and the case law interpreting those rules.
9. When considering the admission or exclusion of evidence, a court must first consider whether the evidence is relevant to prove any material fact. Generally, all relevant evidence is admissible unless specifically excluded by statute. Relevant evidence is evidence having any tendency in reason to prove any material fact.
10. Failure to give a limiting instruction for evidence of other crimes or bad acts does not require automatic reversal.
11. When the complaining party fails to request the instruction or object to its omission, the failure to give the instruction is reversible only if clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
12. Aggravated battery does not qualify as a lesser-included crime of attempted first-degree murder under K.S.A. 2006 Supp. 21-3107(2)(a).
The opinion of the court was delivered by: Rosen, J.
Dewey Gaither appeals his convictions and sentences for attempted first-degree premeditated murder; first-degree felony murder; aggravated robbery; aggravated kidnapping; and felony obstruction of official duty. Gaither asserts that his convictions should be reversed and his sentences vacated because of the following errors: (1) the district court denied his right to a fair trial by committing misconduct during jury voir dire; (2) the district court erroneously denied his motion to sever the charges against him into separate trials; (3) the district court erroneously excluded evidence that one of the victims had a warrant for a federal weapons violation; (4) the district court erroneously admitted evidence in violation of K.S.A. 60-455; (5) the district court erroneously instructed the jury regarding the 60-455 evidence; (6) the district court should have instructed the jury to consider aggravated battery as a lesser included offense to attempted first-degree premeditated murder; (7) the district court committed cumulative errors that denied him a fair trial; and (8) his sentence was erroneously based on his criminal history score, which was not proven beyond a reasonable doubt to the jury.
The convictions in this case stem from Gaither's violent crusade to acquire illegal drugs. On or about July 16, 2003, Gaither went to Eddie Howard's house to buy drugs. Robert Barnes, a friend of Howard's who sold drugs at Howard's house, told Gaither that he did not have what Gaither wanted and advised Gaither to try again later. Gaither returned to Howard's house the following day while Barnes was gone. Leo Holloman, another one of Howard's friends, was sleeping on Howard's sofa when Gaither arrived. Gaither woke Holloman, pointed a 9 mm pistol at his head, and demanded Holloman's money. Before leaving, Gaither told Holloman to warn Barnes that Gaither would be back to get him. When Barnes returned to Howard's house, Holloman told him that Gaither would be back the next morning at 8.
Early the next morning, Gaither returned to Howard's house with his mother, Lenita DeGrate. DeGrate entered the house and spoke briefly to Holloman and Howard while Gaither remained outside on the porch. As Holloman opened the door to let DeGrate out, Gaither approached the door with a gun. When Holloman refused to let Gaither in, Gaither kicked in the glass storm door and burst into the house. Holloman warned Barnes as he ran out the front door yelling, "There go that nigger again."
Gaither immediately confronted Barnes, pointing a 9 mm pistol at Barnes' head and stating, "I'm going to kill you." Barnes struggled with Gaither, while Gaither's mother repeatedly hit Barnes on the head with a hard object, saying, "Get off my son." Shortly thereafter, Gaither's mother left through the front door. Barnes got away from Gaither and ran out the back door. Barnes then ran around to the sidewalk in front of the house to await the arrival of police. While Barnes was on the front sidewalk, Gaither exited the front door, pointed the pistol at Barnes, cocked it, and fired one shot into Barnes' chest. Gaither then walked across the street, entered the car where his mother was waiting, and drove away.
Police later found an unspent 9 mm cartridge on Howard's front porch. Police also found drops of blood matching DeGrate's DNA on Howard's front steps and sidewalk and on the street in front of Howard's house.
While Barnes was recovering in the hospital, a police officer showed him a photographic lineup. Barnes identified someone other than Gaither as the shooter, stating that he was 70% certain of his identification. Several months later, police presented photographic lineups to Holloman who identified Gaither as the shooter and DeGrate as Gaither's companion in photographic lineups.
Four days after shooting Barnes, Gaither was smoking cocaine with his friends, Shannon Doggett and Raina Islas. When the trio ran out of cocaine, Gaither stated that Bobby Washington owed him money and suggested going to Washington's house to collect the debt so they could purchase more drugs. Doggett drove Gaither to Washington's house. Gaither approached Washington's house alone, while Doggett and Islas waited in the truck.
Washington was home with his friend Stephanie Pounds when Gaither arrived. Gaither entered Washington's house and threatened Washington with a gun, demanding money or drugs. While Gaither was attempting to rob Washington, Kevin Phelps knocked at the back door. Gaither instructed Pounds to open the door. As soon as Phelps entered, Gaither demanded Phelps' money. Phelps initially thought Gaither was joking but quickly realized that he had walked into an armed robbery. Gaither reached into Phelps' pocket and took the $10 bill that Phelps had with him. Gaither was agitated when Washington failed to produce any money or drugs, so Pounds offered to go to the neighbors in search of drugs for Gaither. Gaither agreed to let Pounds go, but threatened to shoot Washington if Pounds did not return.
After Pounds had been gone for several minutes, Gaither told Phelps to go to the back door and look for Pounds. Phelps opened the door, thinking he would be able to run. Gaither, however, grabbed Phelps' shoulder and pointed the gun at Phelps' head. When Phelps and Gaither did not see Pounds, they went back into Washington's house. As soon as Phelps closed the door, Washington threw an oxygen bottle across the room at Gaither. Gaither shot Washington once in the chest, killing him. Phelps ran out the front door, and Gaither followed him.
As soon as Doggett heard the gunshots, she became frightened and started driving away from Washington's house. Doggett saw Gaither run out of Washington's front door towards the neighbor's house, carrying a gun. As Doggett drove by, she yelled at Gaither to get in the truck. Gaither got in, and Doggett drove away. Gaither told Doggett that he had shot the gun in the air to frighten Washington.
Two days later, Doggett heard that Washington had been shot and contacted the police to turn herself in. Doggett informed the police that Gaither had killed Washington with a 9 mm weapon. She also provided a description of Gaither and his vehicle.
The day after Doggett turned herself in, police received a call from the manager of the Holiday Inn reporting some suspicious individuals in the parking lot. Officers responded and found a car in the parking lot occupied by two black males. The driver identified himself as Chesster R. Ridge. The passenger, who was later identified as Gaither, identified himself as Tyrone DeGrate. The officer recognized tattoos on Gaither which matched those of the suspect in the Washington shooting. As the officer started to handcuff him, Gaither fled into the lobby of the Holiday Inn.
Inside the Holiday Inn, Gaither saw a housekeeper cleaning room 109. He pushed her into the room and closed the door. When the housekeeper attempted to use the telephone in the room, Gaither instructed her not to make any calls. While Gaither was getting a drink at the sink, she started to use her cell phone, but Gaither stopped her and took the phone away from her. Gaither returned the phone to the housekeeper, but she did not attempt to make another call. After waiting several minutes, the housekeeper opened the curtains and told Gaither that the police were gone. When Gaither went to the window to look for himself, she ran out of the room and informed police of Gaither's location. Gaither opened the first-floor window and jumped out. Police apprehended Gaither in the Holiday Inn parking lot and transported him to the jail.
Barnes was released from the hospital on the same day that Gaither was arrested. Due to an outstanding warrant, Barnes was arrested and transported to the jail. As Barnes was being fingerprinted at the jail, he saw Gaither and recognized him as the man who had shot him 1 week earlier. Barnes immediately pointed at Gaither and exclaimed, "That's the pussy that shot me."
The State charged Gaither with attempted first-degree premeditated murder for shooting Barnes; felony murder for killing Washington; aggravated robbery for taking money from Phelps at gunpoint; aggravated kidnapping for confining the housekeeper at the Holiday Inn; and felony obstruction of justice for fleeing the police at the Holiday Inn. Gaither filed a motion seeking the severance of his charges; however, the district court denied the motion. Gaither also moved to admit evidence that the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) had a warrant for Barnes' arrest on a weapons violation, and the district court denied that motion.
During voir dire, the district judge became frustrated and angry with two prospective jurors, resulting in her losing her temper and yelling at them. One of the prospective jurors stated that she did not believe police officers could be truthful. After dismissing the woman from jury service, the judge ordered her to appear in court every day to watch the trial. Another prospective juror stated that her religion prevented her from judging Gaither. However, the prospective juror further stated that she believed Gaither must be guilty of something because he was being tried. The judge dismissed the prospective juror for cause, stating, "I feel sorry for the next person that ends up going, because I am going to hit the roof, I think."
Gaither moved for a mistrial. The State agreed that the judge's comments may have had a chilling effect on the jury. Nevertheless, the judge denied Gaither's motion for a mistrial. The following day, the judge apologized to the jury panel, released the prospective juror from the order to attend trial, and offered to excuse anyone who felt intimidated by her behavior. After two prospective jurors accepted the judge's offer, voir dire continued and the attorneys selected a jury. The jury ultimately found Gaither guilty on all counts.
The district court sentenced Gaither to serve life (hard 20) for felony murder; 203 months for attempted first-degree premeditated murder; 61 months for aggravated robbery; 165 months for aggravated kidnapping; and 7 months for felony obstruction of justice. The district court ordered all of the sentences to be served consecutively, resulting in a life sentence plus 436 months. Gaither ...