Appeal from Montgomery district court, ROGER L. GOSSARD, judge.
1. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.
2. In the second step of this two-step analysis, the appellate court considers three factors: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is 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 (refusal to grant new trial is inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705,
The opinion of the court was delivered by: Davis, J.
Jeremy Hernandez appeals from his conviction of first-degree murder and from the trial court's imposition of his hard 40 sentence. The defendant contends that his conviction and sentence must be reversed based upon the following claims of error: (1) prosecutorial misconduct involving comments on his right to remain silent; (2) the admission of hearsay evidence; (3) the admission of repetitious, gruesome photographs; (4) the unconstitutionality of Kansas' hard 40 sentencing scheme; and (5) the insufficiency of evidence to support his hard 40 sentence. We consider each of his claims, find no reversible error occurred, and affirm.
Tina Davidson's body was found at her residence on November 26, 1995, when police went to her home in Independence, Kansas, to investigate reports of an abandoned vehicle. The body, discovered in Davidson's kitchen, was severely slashed and mutilated; it was evident that she was dead.
The police investigation revealed a trail of blood drops from Davidson's body, through the living room, on the front door knob, out the front door, and down the front sidewalk. The police collected samples of the blood drops for analysis; the blood did not match that of the victim. A DNA profile of the unknown blood sample was entered into the national Combined Offender DNA Index System (CODIS) database. Despite the ongoing investigation, Davidson's murder remained unsolved for 8 years.
No match was found for the DNA from the blood samples until 2003. The defendant was incarcerated on an unrelated charge, and his DNA profile was subsequently entered into the CODIS database. The defendant's DNA matched the DNA in the blood drops from the trail leading out of Davidson's house. Additional testing of the defendant's DNA, which was then compared with the blood collected from Davidson's residence, yielded 23 perfect DNA matches and 11 bloodstains that were consistent with the defendant's DNA.
After the police found that the defendant's DNA matched the blood at Davidson's murder scene, the police interviewed him. According to the testimony of the officers, the defendant initially waived his Miranda rights and agreed to speak with them. See Miranda v. Arizona, 385 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602, reh. denied 385 U.S. 890 (1966). He informed the investigators that he did not know Davidson, and he denied that he was ever at her house. The defendant then invoked his right to remain silent and the interview ended.
A jury trial was held in October 2004. Among other witnesses called by the State, the prosecution called Dr. Gregory Mears, the coroner at the original crime scene, and Dr. Jill (Gould) Cobb, the pathologist who performed the autopsy. Dr. Mears testified that Davidson had multiple slash wounds across her neck and throat that were long and "very deep." He also noted that her hands were lacerated, indicating that she bore "defense wounds" from attempting to prevent the attacker from slashing her throat. He summarized, saying, "This involved multiple lacerations. This was very violent. Patient was defending herself and the thought of dying like this causes me to shudder. This is a tremendously bad way to die." Dr. Cobb testified in detail regarding Davidson's injuries, assisted by the introduction of 26 photographs, which were admitted over the defendant's counsel's objection.
The defendant testified on his own behalf and related that on the night in question he gave Davidson a ride home because her car broke down. When they arrived at her house, she invited him in. He stated that while he and Davidson were in her kitchen, another man walked in from the living room, became angry, and began threatening both the defendant and Davidson. He testified that the man pushed him and swung at him with a knife, cutting him on his hand. The defendant explained that the man then began fighting with Davidson, and he hurried out of the house.
The defendant stated that he did not know that Davidson had been murdered until 2 weeks later. At no time between the date of the murder and the date he was charged with the murder did the defendant ever relate his version of the story to the police; in fact, the defendant's trial testimony was the first time the State heard what he claimed to have happened.
Jessica Hernandez, the defendant's wife, was called as a witness by the State. She testified that while she and the defendant were dating, he had asked her if she "knew what a lot of blood smelled like." According to her testimony, he then told her that he had been involved in a murder in Independence, and that he had "driven a friend to someone's house, and he [defendant] had sat and watched while [his friend] killed her." Jessica explained that the defendant had told her that "nothing really came up of" the murder because the police "didn't have evidence and it just couldn't be solved, like an unclosed case."
In his testimony, the defendant acknowledged that he had told Jessica about Davidson's murder and that he might have seen the person who did it. However, he stated that when he told her, Jessica acted like she did not hear him.
The jury found the defendant guilty of murder in the first degree. At sentencing, the trial court found that the murder was committed in an "especially heinous, atrocious, and cruel manner by the infliction of mental anguish or physical abuse before the victim's death and that the desecration of the victim's body before the killing indicates a particular depravity of mind." The trial court sentenced the defendant to life imprisonment with no possibility of parole for 40 years (hard 40).
(1) Prosecutorial Misconduct by Commenting on the Defendant's Right to Remain Silent
The defendant contends that the State committed reversible error by questioning him during cross-examination as to why he had not before volunteered his version of the events of the night of Davidson's death and reiterating in closing argument that he had not told anyone at any time before the trial about the other man allegedly at Davidson's house. He acknowledges that the State did not directly comment on his silence after being arrested, but claims that the prosecutor through questioning and closing argument implicitly and impermissibly referred to his post-arrest, post-Miranda silence.
In Doyle v. Ohio, 426 U.S. 610, 619, 49 L.Ed. 2d 91, 96 S.Ct. 2240 (1976), the United States Supreme Court held that "the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment" to the United States Constitution. Instead of claiming that the State directly violated his constitutional rights under Doyle, the defendant frames the alleged Doyle violations as instances of prosecutorial misconduct. We note that a defendant ordinarily waives a claim for a Doyle violation by not objecting at trial to a prosecutor's question or other conduct that implicates the defendant's post-arrest silence. See State v. Fisher, 222 Kan. 76, 83-84, 563 P.2d 1012 (1977). However, this court does not always require an objection by defense counsel before considering an allegation of prosecutorial misconduct. See State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006). We need not discuss the potential conflict raised by these decisions in this case since trial counsel did raise an appropriate objection under Doyle, which was sustained by the trial court with directions to the prosecutor as to what questions would be permitted. Under these circumstances, we consider the defendant's claims of prosecutorial misconduct.
Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. Sweeney, 280 Kan. at 779. In the second step of this two-step analysis, the appellate court considers three factors:
"(1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence is 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 [refusal to grant new trial is inconsistent with substantial justice] and Chapman [v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial)] have been met. [Citations omitted.]" 280 Kan. at 780.
Doyle and Post-arrest Silence
The use for impeachment purposes of a defendant's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment. See Doyle, 426 U.S. at 619. We adopted the Doyle holding in State v. Mims, 220 Kan. 726, Syl. ¶ 1, 556 P.2d 387 (1976). Mims was charged and convicted of felony murder based on an underlying robbery. Mims' primary defense was alibi. He testified that he was with his mother reupholstering a couch the morning of the murder. On cross-examination, the prosecutor put the following question to the defendant: "'Tell me this, Mr. Mims, how come you didn't tell this to the police about where you were on this particular day?'" 220 Kan. at 729. Reviewing this question, this court explained:
"We interpret the decision of the United States Supreme Court in Doyle to settle the question so as to make it constitutionally impermissible for a state prosecutor to impeach a defendant's exculpatory story told for the first time at the trial by cross-examining him as to his post-arrest silence after receiving the [Miranda] warnings." 220 Kan. at 730.
Reviewing the facts in that case, however, this court held that "the single question propounded by the prosecutor which was never answered and to which an objection was sustained constituted harmless error beyond a reasonable doubt in view of the overwhelming evidence of the defendant's guilt disclosed in the record." 220 Kan. at 731.
In State v. Heath, 222 Kan. 50, 563 P.2d 418 (1977), we again applied Doyle, this time overturning Heath's conviction. Heath was found guilty of burglary and felony theft. As in Mims, he claimed on appeal that the prosecutor had impermissibly made reference to his post-arrest silence to impeach his alibi testimony. Among other questions asked by the prosecutor during cross-examination, the following exchange took place:
"'Q: Over four months has elapsed in this interim since October 31, 1974 [the date Heath was charged], and this is the first time that this explanation has come forth, is that correct?
"'A: . . . The first time it has been out in court, yeah.
"'Q: The first time that the State has been aware of it, isn't that right?
"'Q: Well, if you had an alibi, if you had a person that would corroborate what you are now testifying to, why is it that you decided that you didn't want to tell the State about it?
"'A: The State never asked me.
"'Q: But at the same time you decided that it would not be in your best interest to tell them that, in fact, at the time you had an alibi?
"'A: No.'" 222 Kan. at 53.
The prosecutor also made reference to Heath's failure to provide the alibi in the 4 months since he was charged until the trial during closing argument. The Heath court concluded that "[t]here can be little doubt the rule in Doyle and Mims was violated in the present case." 222 Kan. at 53. Moreover, the court found that the prosecutor's error in referring to Heath's post-arrest silence could not be harmless:
"[T]here was no testimony indicating his actual participation in the burglary and theft other than his presence and participation as an aider and abettor. The cross-examination and closing argument was a direct attack upon defendant's defense of alibi. Due to the persistence of the prosecutor we are 'not able to say that these errors had little, if any, likelihood of having changed the result of the trial." 222 Kan. at 54.
In State v. Clark, 223 Kan. 83, 574 P.2d 174 (1977), this court considered whether Doyle barred prosecutors from commenting on a defendant's post-arrest silence even after an accused carries on a limited discussion with police officers. Clark was convicted of felony theft and burglary. The night he was arrested, Clark apparently spoke with police officers but neither was asked about nor provided information on his alibi. In particular, Clark made no mention of alibi witnesses during the police interrogation, though he testified at trial that 11 people could vouch for him that he could not have been present when the crime took place.
At trial, the prosecutor drew attention to this omission in both the cross-examination of Clark and during closing argument. The Clark court recognized the principle in Doyle that "[w]hen an accused elects to testify in his own behalf, his post-arrest silence may not be used solely to impeach his exculpatory testimony." 223 Kan. at 85. The court held that the defendant had no duty to volunteer his alibi witnesses, so the prosecutor could not use the defendant's failure to provide the alibi witnesses during the interrogation to impeach his later testimony at trial. 223 Kan. at 87-89. The court reasoned:
"An accused may remain completely silent, and he is under no duty to volunteer his exculpatory story. Thus, he should be afforded the same right after some discussion with the police when he remains silent as to matters later asserted at trial. We hold Doyle prohibits a state prosecutor from impeaching a defendant's alibi defense told for the first time at trial, when the defendant carried on limited discussion with police after arrest, but remained silent as to matters subsequently asserted at his trial." 223 Kan. at 89.
Although, as the above cases illustrate, it is well established that a prosecutor may not use the post-arrest silence of the defendant to impeach his or her later testimony, it is also well settled that a prosecutor may use a defendant's prearrest silence to impeach the defendant at trial. This holding was articulated by the United States Supreme Court in Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed. 2d 86, 100 S.Ct. 2124 (1980), 4 years after its decision in Doyle.
In Jenkins, the defendant was convicted of first-degree murder. Jenkins had turned himself in to the authorities for the murder 2 weeks after it happened, but he claimed he killed the victim in self-defense. On appeal, Jenkins argued that the prosecutor at trial repeatedly referred to the fact that Jenkins had waited 2 weeks before surrendering himself to the police, denying him the right to a fair trial.
The Jenkins Court recognized that "[c]ommon law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. 3A J. Wigmore, Evidence § 1042, p. 1056 (Chadbourn rev. 1970)." 447 U.S. at 239. The Court explained its deviation from this recognized principle in Doyle, explaining that
"Miranda warnings inform a person that he has the right to remain silent and assure him, at least implicitly, that his subsequent decision to remain silent cannot be used against him. Accordingly, '"it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony."'" 447 U.S. at 239-40 (quoting Doyle, 426 U.S. at 619).
Jenkins concluded, however, that there was no Doyle (or other due process) violation in the facts before it, where the prosecutor referenced Jenkins' silence prior to his arrest. The Court explained that "no governmental action induced petitioner to remain silent before arrest. The failure to speak occurred before the petitioner was taken into custody and given Miranda warnings. Consequently, the fundamental unfairness present in Doyle is not present in this case." 447 U.S. at 240. Thus, the Court held that "impeachment by use of prearrest silence does not violate the Fourteenth Amendment." 447 U.S. at 240.
In his concurrence, Justice Stevens explained the Court's holding, stating that "the privilege against compulsory self-incrimination is simply irrelevant to a citizen's decision to remain silent when he is under no official compulsion to speak." Jenkins, 447 U.S. at 241 (Stevens, J., concurring). The justice differentiated the privilege against self-incrimination at trial from the right asserted in the case presently before the Court, explaining:
"These reasons [behind the constitutional privilege against self-incrimination] have no application in a prearrest context. The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police. We need not hold that every citizen has a duty to report every infraction of the law that he witnesses in order to justify the drawing of a reasonable inference from silence in a situation in which the ordinary citizen would normally speak out. When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment." 447 U.S. at 243-44 (Stevens, J., concurring).
This court applied Jenkins in State v. Massey, 247 Kan. 79, 795 P.2d 344 (1990). In Massey, the prosecutor asked the defendant on cross-examination in his trial for first-degree murder questions regarding the defendant's contact with the police before he was arrested or read his Miranda rights. This court rejected Massey's assertion that this was a Doyle violation, citing Jenkins and explaining:
"In the case at bar, the prosecutor attempted to impeach Massey's credibility by asking him if he remembered making certain statements to the police regarding his Miranda warnings. Massey's statement was made prior to arrest and therefore prior to any Miranda warnings. We find no constitutional violation in the prosecutor's actions. Doyle and its progeny did not provide unlimited protection to the criminal defendant who testifies in his own behalf; rather, they stand for the principle that a defendant's silence induced by government action cannot be used to impeach his credibility. [Citations omitted.] Massey has attempted to extend the Doyle rule to a situation where no government action has induced silence . . . . We find no error." 247 Kan. at 82.
Finally, it is important to note that consistent with the decisions in Doyle and its Kansas progeny, this court continues to hold that a prosecutor may impeach a defendant's trial testimony through use of a prior inconsistent statement given by the defendant after he or she was provided Miranda warnings. This question arose in the context of State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985), disapproved on other grounds State v. Walker, 252 Kan. 279, 297-98, 845 P.2d 1 (1993) (disapproving of language used in Falke with regard to instructions on voluntary intoxication), where this court reviewed the murder and kidnapping convictions of the co-defendants Falke and White.
During cross-examination, White's defense counsel asked the investigating detective to read from the interrogating police officer's report. The report indicated that White told the interrogating officer at the time of arrest that White did not remember what happened when the crime took place because he was intoxicated. White later testified on his own behalf, explaining in detail the events surrounding the murder, but claiming that he was not involved in the murder but was merely present. White made no indication that he was unable to remember what happened.
The prosecutor asked White on cross-examination why he had not told the police this story when he first talked with them; White replied that he was "scared." 237 Kan. at 681. The defense counsel objected, arguing that the prosecutor had impermissibly commented on White's post-arrest silence.
The Falke court examined the Doyle and Mims decisions but concluded that the rule in those cases was inapplicable to the facts before it. The court reasoned:
"The Doyle rule does not apply to the situation presented in the case at bar for two reasons. First, the defendant was not silent. He made a statement to the police that he was too drunk to remember what had happened. Stating that he couldn't remember is clearly not the same as being silent. Therefore, when the defendant made a different statement at trial--he testified in detail to the events, thus indicating that he remembered what happened--the prosecutor could properly impeach him with his prior inconsistent statement. K.S.A. 60-422(b). (Emphasis added.)
"The second reason Doyle does not apply is that the defendant originally introduced the statements which he later objected to when the prosecutor sought to use them to impeach the defendant. The defendant may not invite error and then complain of that error on appeal. [Citation omitted.]" 237 Kan. at 682.
For these reasons, the Falke court found that "[t]he defendant's argument that he was denied due process is wholly without merit." 237 Kan. at 682.
We have set forth the above analysis concerning Doyle in order that we may properly address the specific prosecutorial misconduct allegations of the defendant. The defendant argues that the holdings of these cases illustrate that the prosecutor's conduct in the instant case violated the Doyle standard by impermissibly using the defendant's post-arrest silence to impeach his later testimony at trial. In particular, the defendant likens his case to Clark, where this court held that silence as to matters not discussed with the police cannot be used to impeach a defendant's alibi defense at trial. See 223 Kan. at 85-89.
Defendant's Silence or Lack Thereof
There is conflict in this case as to how much the defendant said during his original interview with the police. According to the testimony of Independence Police Detective Harry E. Smith and KBI Special Agent Robert Beckham, they met with the defendant after they received word that the defendant's DNA profile in CODIS matched that found in the blood samples from Davidson's murder scene in order to ask him questions and obtain another DNA sample. They read him his Miranda rights, and he indicated that "he understood his rights [and] was willing to talk" with them. Detective Smith, who was in charge of the investigation, testified as to the initial interview of the defendant:
"Q: [Prosecutor:] . . . So you went to talk to him?
"Q: Tell us about that conversation.
"A: At that point we met with the Defendant, advised him of his Miranda rights. He indicated that he understood his rights, was willing to talk with us. We asked him if he knew Tina Davidson [victim]. He stated he did not know her. I explained to him that she used to work at [Automotive Controls Corporation], that she had been murdered in her home back in 1995.
"He stated he didn't know her; he never knew her. I asked him if he had ever been at the residence at 721 South Fourth. He said he had never been to that residence." (Emphasis added.)
The above description was corroborated by the testimony of KBI Special Agent Beckham, who had worked on the case:
"Q: [Prosecutor:] Could you tell us about that conversation?
"A: [Beckham:] We told him why we were there, identified who we were, told him why we were there. Asked him if he knew Tina Davidson, which he said, No.
"We asked him if he had ever been to her house, and he said, No, he didn't know Tina Davidson, had never been around her, never been at her home.
"He was shown a picture that Detective Smith had of Tina Davidson. Mr. Hernandez looked at that picture and said that--Mr. Hernandez looked at ...