Appeal from Wyandotte district court; J. DEXTER BURDETTE, judge.
1. The hard 50 sentencing scheme enhances the minimum sentence which must be served for first-degree premeditated murder and does not legally increase the statutory maximum sentence of life in prison.
2. When a defendant challenges the sufficiency of evidence establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.
3. Evidence that the defendant's conduct made the victim aware of the possibility of the violence which awaited the victim is relevant to the determination of whether the defendant committed the subsequent murder in an especially heinous, atrocious, or cruel manner.
4. Evidence that the defendant attacked the victim in a brutal and ferocious manner, forcibly overcoming the victim's attempts at self-protection, will support the district court's determination that the crime was committed in an especially heinous, atrocious, or cruel manner.
5. A two-part test is used to evaluate alleged violations of a motion in limine: (1) whether there was a violation of the order in limine, and (2) if the order in limine is violated, whether the defendant carried his or her burden to show that the testimony substantially prejudiced the defendant. The district court is in the best position to decide if its order in limine was violated and to determine the degree of prejudice a violation may have caused the defendant.
6. A prosecutor may not propound questions which compel a defendant or other witness to comment on the credibility of another witness because it is the province of the jury to weigh the credibility of witnesses. A claim that the prosecutor violated that principle is reviewed under the standard for prosecutorial misconduct.
7. Photographs which depict the extent, nature, and number of wounds inflicted by the defendant and which assist the jury's understanding of the medical testimony are generally admissible in a murder trial.
8. Where an inconsistency on the face of a document undermines the trustworthiness of the hearsay statements contained in the document, the business records exception to the hearsay rule will not apply.
9. The test for cumulative error is whether the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
10. A conviction of the gravest offense may be sustained by circumstantial evidence. Although the stacking of inferences is impermissible, a jury may draw reasonable inferences directly from proven facts, and such reasonable inferences will support a conviction.
The opinion of the court was delivered by: Johnson, J.
Ronald Johnson appeals his conviction and sentence for one count of premeditated first-degree murder. Appellate counsel raises seven issues on appeal and Johnson purports to raise additional issues in a supplemental pro se brief. Finding no reversible error, we affirm.
On November 26, 2001, the Kansas City police responded to a call from an individual stating that his mother had been killed. The officers found the deceased victim, Dorothy Griffin, lying in a pool of blood in the doorway of a bathroom located at the end of the hallway in the front of her residence. A crime scene investigator found a bloody footprint inside the front door, blood spatters on the wall near the front door, and blood on the ceiling, floor, and walls trailing down the hallway to the body's location. Overturned and broken furniture and broken glass suggested that Griffin had struggled with her assailant.
The son, Clarence Jones, lived in the home. He testified that on the day of the murder, he stopped by the house after work before going to his sister's home. When Clarence returned home between 10:30 and 10:45 p.m., he found the front door open, observed broken glass and blood, and discovered Griffin on the floor in a pool of blood. When he was unable to get a dial tone on the house telephone, he drove to a nearby store to call the police.
The defendant had been dating the victim "off and on" for a number of months prior to the murder. On the day of the murder, Johnson was at his sister's home, where his niece, Ashlee, observed defendant take a knife from the kitchen counter and put it in his jacket. When Johnson noticed Ashlee, he put his fingers to his lips as if to say "be quiet." The next day, after learning of Griffin's death, Ashlee related the incident to her mother.
The evening of the murder, defendant' sister, Kwana, drove him to Griffin's home, ostensibly to pick up some of his belongings. Three other passengers were in the car: Rorena Williams, Roy Williams, and James Jefferson. Kwana recognized Griffin as the person who answered the door and let the defendant into the house, while the others waited in the car. When Johnson returned to the car, he had blood on his hand, face, and clothing and appeared anxious. In response to questioning from Kwana, Johnson repeatedly said, "Let's go."
Kwana learned of Griffin's death the next day. When Ashlee related that she had seen Johnson take a knife from their kitchen, Kwana realized that the largest knife from her butcher block was missing. Two of Johnson's jackets were recovered from Kwana's washing machine. Swabs taken from the drain hose tested positive for blood, albeit the samples were insufficient to yield a conclusive result from DNA analysis.
At trial, the State presented evidence of two confrontations between the defendant and the victim within the 2 weeks before the murder. Griffin's younger brother, Jimmy Jones, testified that he went to his sister's house about 2 weeks before her death after hearing that Johnson had beaten Griffin. Jimmy discovered Johnson walking a few blocks from Griffin's house, picked him up, and took him back to the house. Griffin told Jimmy that she did not want Johnson in the home any more. Jimmy and a cousin moved Johnson's belongings out of the house and gave him a ride to Olathe. Jimmy did not testify that Griffin said she was beaten or that Griffin had any visible injuries.
Clarence, a security guard, and one of Griffin's co-workers, all testified about an incident in the parking lot where Griffin worked, during which the defendant prevented Griffin from driving away from the parking lot by jumping on the hood of the car. Johnson would not leave, and the security guard had to escort Griffin back into the building. The guard filed a security report and called the police.
The forensic pathologist reported finding eight stab and slice wounds on the victim. The wounds were to the head, upper body, and forearms, including a stab wound that penetrated the heart. Three of the wounds were identified as defensive wounds. Griffin's left forearm was also broken. The cause of death was blood loss from the stab wounds.
After the jury convicted Johnson of first-degree, premeditated murder, the State sought a life sentence without the possibility of parole for 50 years (the hard 50) and presented a notice of intent to offer aggravating factors pursuant to K.S.A. 2006 Supp. 21-4635. Specifically, the State alleged that there was prior stalking of or criminal threats to the victim; preparation or planning, indicating an intention that the killing was meant to be especially heinous, atrocious, or cruel; infliction of mental anguish or physical abuse before victim's death; torture of the victim; continuous acts of violence begun before or continuing after the killing; and any other conduct in the opinion of the court that was especially heinous, atrocious, or cruel.
Johnson objected to the constitutionality of the hard 50 statute on the basis that the district court could not make a finding of aggravating circumstances under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000). Johnson also presented the testimony of a clinical psychologist, who opined that Johnson suffered from a psychotic disorder with hallucinations and delusions. Nevertheless, the district court imposed the hard 50 sentence, finding that the aggravating factors outweighed any mitigating factor of mental illness. The court found the prior stalking, the violent relationship of Griffin and Johnson, and the physical force employed to inflict the wounds, together with the manner in which the victim fought for her life, constituted aggravating circumstances.
CONSTITUTIONALITY OF THE HARD 50
Johnson begins by arguing that the hard 50 sentencing scheme is unconstitutional because it permits the sentencing judge to find facts that enhance the available sentencing range, utilizing a preponderance of the evidence standard, in violation of Apprendi, 530 U.S. 466, and Jones v. United States, 526 U.S. 227, 143 L.Ed. 2d 311, 119 S.Ct. 1215 (1999). The constitutionality of a statute is a question of law subject to de novo review. State v. Brown, 280 Kan. 898, 900, 127 P.3d 257 (2006).
Johnson acknowledges that this court found the hard 40 sentencing scheme constitutional in State v. Conley, 270 Kan. 18, 35-36, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001). Nevertheless, he urges us to revisit the Conley decision in light of recent case law. However, this court has consistently rejected similar arguments and declined to overrule Conley. See, e.g., State v. Lawrence, 281 Kan. 1081, 1096, 135 P.3d 1211 (2006); State v. Buehler-May, 279 Kan. 371, 386, 110 P.3d 425, cert. denied 546 U.S. 980 (2005); State v. James, 279 Kan. 354, 358, 109 P.3d 1171 (2005); State v. Robertson, 279 Kan. 291, 308, 109 P.3d 1174 (2005); State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d 1249 (2004).
The United States Supreme Court continues to invalidate judicial preponderance of the evidence fact finding that exposes a defendant to a sentence in excess of the statutory maximum as being a violation of a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments to the United States Constitution. See, e.g., Cunningham v. California, ___ U.S. ___, 166 L.Ed. 2d 856, 127 S.Ct. 856 (2007). Nevertheless, our highest court has not explicitly overruled its prior holdings that judicial fact finding utilizing a preponderance of the evidence standard to increase the mandatory minimum sentence does not run afoul of the jury trial guarantee. See, e.g., McMillan v. Pennsylvania, 477 U.S. 79, 91 L.Ed. 2d 67, 106 S.Ct. 2411 (1986). The maximum sentence for first-degree murder is life in prison. The hard 50 sentence enhances the minimum sentence which must be served and does not expose a defendant to a higher maximum sentence than provided by statute. Under current law, our hard 50 scheme is constitutional.
SUFFICIENCY OF THE EVIDENCE OF AGGRAVATING CIRCUMSTANCES
Johnson challenges the district court's finding under K.S.A. 2006 Supp. 21-4636(f) that the murder was committed in an especially heinous, atrocious, or cruel manner. He argues the evidence was insufficient to support aggravating circumstances.
"'When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.' State v. Buehler-May, 279 Kan. 371, Syl. ¶ 12, 110 P.3d 425 ...