Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge.
1. A claimed violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution due to the unavailabilityof a witness is a question of law, which an appellate court reviews de novo.
2. The Confrontation Clause of the Sixth Amendment to the United States Constitution bars witnesses' testimonial out-of-court statements that are offered to prove the truth of the matter asserted unless the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses.
3. If a declarant never testifies at trial, hearsay evidence of his or her out-of-court statements is inadmissible under K.S.A. 60-460(a).
4. When a defendant opens an otherwise inadmissible area of evidence during the examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere. By opening the door to otherwise inadmissible hearsay, a defendant waives his or her right to confrontation under the Sixth Amendment to the United States Constitution.
5. Under the facts of this case, the defendant waived his right to confrontation under the Sixth Amendment to the United States Constitution when he opened the door to the otherwise inadmissible hearsay testimony.
6. A defendant challenging a trial court's failure to redact an interrogation tape to remove false statements must have preserved the issue at trial. Absent an objection to the admissibility of the false statements before the interrogation tape is played to the jury, the defendant has not preserved the issue for appeal.
7. When a suspect makes a statement which might be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify, but the interrogator is not required to clarify and may continue the questioning.
8. A defendant cannot prevail by presenting on appeal reasons for suppressing evidence that were not presented to the trial court.
The opinion of the court was delivered by: Green, J.
Affirmed in part, reversed in part, and remanded with directions.
Before BUSER, P.J., GREEN and MARQUARDT, JJ.
Demetrius Birth appeals his jury trial convictions and sentences for aggravated burglary and robbery. First, Birth argues that the admission of hearsay statements of a witness who was not called by the State to testify at trial violated his right to confrontation under the Sixth Amendment to the United States Constitution. Nevertheless, under State v. Fisher, 283 Kan. ___, 154 P.3d 455 (2007), Birth waived his right to confrontation when he opened the door to the hearsay evidence during cross-examination of a witness. Next, Birth challenges the trial court's failure to redact an interrogation tape to remove false statements before the tape was played to the jury. Nevertheless, Birth's failure to preserve this issue at trial prevents this court from addressing his argument on appeal.
Birth raises a number of other arguments in his brief, including the following: that the prosecutor committed misconduct; that the trial court should have suppressed the interrogation tape; that there was insufficient evidence for the jury to convict Birth of aggravated burglary; that there was cumulative error; that the trial court erred in failing to consider Birth's financial circumstances before assessing fees to reimburse the Board of Indigents' Defense Services (BIDS) for attorney fees; and that the trial court erred in including Birth's prior convictions in his criminal history. Nevertheless, the only issue with merit concerns the trial court's failure to consider Birth's financial circumstances before assessing BIDS fees. Based on our Supreme Court's recent decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), the case must be remanded to the trial court to consider on the record at the time of assessing BIDS fees under K.S.A. 2006 Supp. 22-4513 the financial resources of Birth and the nature of the burden that payment of the fees will impose. Accordingly, we affirm in part, reverse in part on the BIDS issue, and remand to the trial court to comply with Robinson.
Hezzie Kendrick, the victim in this case, had developed what he characterized as a relationship with Amber Williams. Kendrick called and text messaged Williams frequently and loaned money to her on several occasions. Although Williams told Kendrick at one point that she wanted to end the relationship and even threatened to call the police, Kendrick continued calling and text messaging Williams.
One evening in October 2004, Williams came to Kendrick's apartment and asked him for money. Kendrick told Williams that he did not have any money. Kendrick and Williams left the apartment together to go to the liquor store. When they returned to the apartment, Williams used Kendrick's phone and then left Kendrick's apartment to go to the store. When Williams returned to Kendrick's apartment, Williams unlocked Kendrick's front door several times after Williams locked it. Kendrick finally locked the door, and he and Williams went to his bedroom to watch television. Approximately 20 minutes later, Kendrick heard a knock on his door. Although Williams told Kendrick not to answer the door, Kendrick opened the door.
At trial, Kendrick testified that when he opened the door, he was immediately confronted by two men. Kendrick testified that he was pushed back into his apartment and told that this was going to be a robbery. Both of the men entered Kendrick's apartment. At trial, Kendrick identified Birth as the man who pushed him inside his apartment. Kendrick was ordered to strip to his underwear. Kendrick lay on his bed while the men demanded money and items from Kendrick. According to Kendrick, the men told him that if he did not cooperate, they were going to shoot or kill him.
Kendrick testified at trial that he never saw a gun but that he saw the men make hand movements indicating that they might be concealing a gun. Nevertheless, Kendrick told the interviewing detective that one of the men had pointed a black semiautomatic handgun at him. A gun was never discovered by the police.
Kendrick testified that he saw Birth in his bedroom looking through drawers, going through his closet, and putting items in bags. Kendrick further testified that the other man was in the living room the majority of the time. A stereo was taken from Kendrick's bedroom. In addition, Birth demanded Kendrick's car keys. Birth ordered the other man to stand at the bedroom door and watch Kendrick while Birth left the bedroom. After telling Birth where the car keys were, Kendrick did not see Birth again. The man wiped down the doorknob and other objects in the apartment to remove fingerprints. The man told Kendrick not to call the police and left the apartment. Approximately 15 minutes later, Kendrick called the police. Kendrick discovered that a set of car keys was missing from his living room and that his car had been stolen.
In investigating Kendrick's report, Detective Dave Alexander thought it was strange that Williams had been at Kendrick's apartment but had not contacted the police. Alexander later discovered an incident report that occurred the day after the robbery involving Williams and two men, Robert Rayford and Birth. A fingerprint taken off of a box in Kendrick's closet matched that of Rayford. In addition, Kendrick's car was found approximately one block from an apartment complex where Birth had been staying. Alexander assembled two photo lineups, one containing Birth's picture and the other containing Rayford's picture. Nevertheless, Kendrick was unable to pick Birth out of the photo lineup. Rayford and Birth were arrested and interviewed separately by Alexander.
Rayford told Alexander that Birth had gotten upset over a man who was calling Williams. Birth had planned to rob the man. Williams, Rayford, and Birth then went to Kendrick's apartment complex. When they arrived, Williams went inside the apartment complex while Rayford and Birth waited in the parking lot. Rayford saw Williams and a man leave in a car. After they returned, Rayford and Birth walked to Kendrick's apartment. Birth knocked on the door. Rayford stated that Birth was holding something in his hand but that Rayford could not see what the object was. When a man opened the door, Birth immediately went through the doorway and told the man something. The man got down on the floor of his living room.
Rayford told Alexander that shortly after he and Birth went inside the apartment, Birth and Kendrick went into the bedroom. Rayford and Williams stayed in the living room. Williams took liquor from the apartment and left. Rayford stated that he took a stereo at Birth's direction and carried it down to the car. When Rayford returned to the apartment, Birth ordered him to watch Kendrick and not let him leave. Birth proceeded to look for Kendrick's car keys. After Birth found Kendrick's car keys, Birth left the apartment. Rayford said that he left the apartment 5 to 10 minutes later.
During his interview, Birth initially denied ever meeting Kendrick or talking to him on the phone. Moreover, Birth denied ever being at Kendrick's apartment complex. Later in the interview, however, Birth said that he and Rayford had gone with Williams to Kendrick's apartment complex so that Williams could get money from Kendrick. Birth stated that he and Rayford had gone with Williams as protection and had waited in the parking lot. Alexander told Birth that the police had found Birth's and Rayford's fingerprints in Kendrick's apartment and Birth's fingerprints in Kendrick's car. Moreover, Alexander told Birth that video surveillance from the apartment complex parking lot showed Birth and Rayford walking towards the apartment complex. Those statements by Alexander were not true. Birth told Alexander that he and Rayford had walked on opposite sides of the apartment building and that Rayford might have gone inside the apartment.
After Alexander took a break in the interview, Birth changed his story and stated that he had previously talked to Kendrick on the phone. Birth further stated that he had gone inside Kendrick's apartment to request that Kendrick stop text messaging Williams. Birth said that he never had any intent to steal from Kendrick. Birth told Alexander that he was in the bedroom speaking with Kendrick and did not know what Rayford was doing in the living room. Birth said that when they left the apartment, Rayford had a bag that he did not have when he entered the apartment. Moreover, Birth told Alexander that Rayford drove Kendrick's car when they left the apartment.
Birth was charged with aggravated robbery in violation of K.S.A. 21-3427 and aggravated burglary in violation of K.S.A. 21-3716. Birth moved to suppress his statements made during his interrogation. After holding an evidentiary hearing, the trial court found that Birth's statements were voluntary and denied Birth's motion to suppress.
At trial, Birth testified that he actually met Kendrick on two occasions. Birth testified that previous to the incident in question, Williams had introduced them outside of Kendrick's apartment, and he had asked Kendrick to stop calling Williams. Nevertheless, Kendrick kept calling and text messaging Williams. Birth testified that when he went back to Kendrick's apartment on the date in question, he knocked on Kendrick's door in order to get Williams to accompany him to a bar. Birth testified that Kendrick let him and Rayford inside the apartment and told them that Williams was in the back room. Once inside Kendrick's apartment, Birth requested that Kendrick stop calling and text messaging Williams.
The jury convicted Birth of robbery, the lesser included offense of aggravated robbery, and aggravated burglary. Birth was sentenced to 57 months in prison.
I. Did the admission of hearsay statements violate the Confrontation Clause?
First, Birth contends that the admission of the hearsay statements of Rayford, who was not called as a witness by the State and thus was not available for cross-examination at trial, violated Birth's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. An appellate court's "standard of review of a claimed violation of the Confrontation Clause of the United States Constitution because of the 'unavailability' of a witness is a question of law, which [an appellate court] review[s] de novo. [Citation omitted.]" State v. Saleem, 267 Kan. 100, 107, 977 P.2d 921 (1999).
At trial, over Birth's objection, the trial court allowed the State to question Alexander about Rayford's statements during his interview on the basis that Birth had "opened the door" to such testimony on cross-examination. The trial court limited the State's redirect examination to the scope of the questions asked by Birth on cross-examination. During redirect examination, the State elicited testimony from Alexander about Rayford's statements implicating Birth in planning and executing the robbery at Kendrick's apartment. Although the State had earlier endorsed Rayford as a witness, Rayford never testified at trial.
Citing Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2d 177, 124 S.Ct. 1354 (2004), Birth maintains that the admission of Rayford's testimonial hearsay statements violated his rights under the Confrontation Clause. The Sixth Amendment to the United States Constitution states that in all criminal prosecutions, the accused shall enjoy the right to be confronted by the witnesses against him or her. State v. Meeks, 277 Kan. 609, 613, 88 P.3d 789 (2004). The United States Supreme Court in Crawford held that the Confrontation Clause bars witnesses' testimonial out-of-court statements that are offered to prove the truth of the matter asserted unless (1) the witnesses are unavailable and (2) the defendants had prior opportunity to cross-examine those witnesses. See Meeks, 277 Kan. at 614.
Nevertheless, the United States Supreme Court in Crawford continued to accept the rule of forfeiture by wrongdoing, which "extinguishes confrontation claims on essentially equitable grounds." 541 U.S. at 62. Citing Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed. 244 (1878), our Supreme Court in Meeks, 277 Kan. at 614-15, stated as follows:
"'The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own [the accused's] wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.'"
Here, it is undisputed that Rayford's statements were testimonial as they were the product of a police interrogation. See Crawford, 541 U.S. at 68 (stating that testimonial evidence "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations"). Moreover, Rayford was never called as a witness at trial. Furthermore, there was never an argument made that the admission of Rayford's statements came within the rule of forfeiture by wrongdoing.
Nevertheless, the State maintains that the admission of Rayford's hearsay statements did not violate Crawford because Birth had the opportunity to confront Rayford. To support its argument, the State cites State v. Corbett, 281 Kan. 294, 303-04, 130 P.3d 1179 (2006), where our Supreme Court held that Crawford did not apply to the admission of two witnesses' deposition transcripts because the witnesses were available for ...