Appeal from Shawnee district court, MATTHEW J. DOWD, judge.
1. The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice.
2. In some instances, the admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatory hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process. Where the State has introduced portions of the defendant's statement which are incriminating, the defendant may be allowed to introduce exculpatory portions of his or her statement, even though the defendant does not intend to testify and such evidence is barred by the hearsay rule.
3. Nothing in the Constitution gives an accused the privilege of proffering, through hearsay, his or her self-serving statements while denying the State access to the rest of the story that could be obtained by cross-examination.
4. Appellate court review of a defendant's claim that his or her constitutional rights were violated is undertaken without deference to the trial court's interpretation of the law.
5. The Confrontation Clause of the United States Constitution is implicated only when a hearsay statement is testimonial. Though the United States Supreme Court has not provided a comprehensive definition of testimonial evidence, the Court has explained that whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a formal trial, and to police interrogations.
6. Where the admission of testimonial evidence at a criminal trial is at issue, the Sixth Amendment to the United States Constitution demands what the common law required: unavailability of the witness and prior opportunity for cross-examination.
7. The hearsay exception of admitting preliminary hearing testimony has been explained as arising from practical necessity and justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.
8. It is well established that this court reviews a trial court's failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict.
9. Ordinarily it is error to refuse to give a cautionary instruction on the testimony of a paid informant or agent where such testimony is substantially uncorroborated and is the main basis for a defendant's conviction. Where, however, no such instruction is requested or objection made to the court's instructions, and such testimony is substantially corroborated, the absence of a cautionary instruction is not error and is not grounds for reversal of a conviction.
10. 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.
11. A prosecutor may not argue irrelevant evidence regarding the impact of a crime on a victim or a victim's family.
12. The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is improper for the prosecutor to state facts that are not in evidence.
13. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
The opinion of the court was delivered by: Davis, J.
Vaccaro Stano appeals from his conviction of first-degree, premeditated murder. The defendant contends before this court that his conviction must be reversed based upon the following claims of error: (1) the exclusion of his exculpatory statement to police; (2) the admission of preliminary hearing testimony at trial of an unavailable witness; (3) the trial court's failure to provide a cautionary instruction concerning informants' testimony; and (4) prosecutorial misconduct during closing argument. We have considered the defendant's claims, find no reversible error occurred, and affirm his conviction.
Duane Hayes was shot in the head in his own driveway in Topeka on the evening of February 26, 2003, and died from his wound. The defendant was charged with first-degree, premeditated murder in conjunction with Hayes' death.
During the 9 months before his death, Hayes had been a habitual user of crack cocaine. Steve Bell, one of Hayes' drug suppliers, sometimes acted as a "drug creditor" for Hayes, where Hayes would allow Bell to use his car in exchange for two or more pieces of crack. Bell testified that Hayes called him on the evening of the shooting and asked Bell if he wanted to borrow Hayes' car, according to their deal. Because Bell was already borrowing his girlfriend's car that evening, Bell testified that he asked the defendant, who was with him at the time, if he would be interested in using Hayes' car. The defendant said he would be interested, and the three men met at a gas station. The defendant and Hayes left the station in Hayes' car, and Bell went home.
According to Bell, the defendant called Bell shortly thereafter, told Bell he had been robbed, and told Bell to meet him and bring a gun. Bell called the defendant back to find out where he was; the defendant told him that he was at Hayes' house. Bell arrived and found the defendant and Hayes outside. Hayes was angry because the defendant had only given him one piece of crack instead of two. The defendant wanted the car and grabbed the gun from Bell's car. Hayes rushed at the defendant and the two men wrestled for a moment; when the defendant broke free, he shot Hayes in the head. He later shot Hayes a few more times. The defendant then wiped down Hayes' car and jumped into Bell's car with Bell, and the two men drove away. Bell testified that the defendant threatened to kill him and his mother if he ever told anyone about the incident.
The defendant's wife, Tanya, was awakened by the sound of gunshots. She testified that she found her husband dead at the end of the driveway. He had been shot once in the back, once in the shoulder, and once in the head. Tanya found a baseball cap, a lighter, and a pack of cigarettes lying nearby; the Hayes' car was parked down the street.
The defendant's palm print was found on the windshield of the Hayes' car. DNA testing revealed that there was 10 times more of the defendant's DNA on the baseball cap than that of the other two contributors.
In addition to Bell and Tanya Hayes, several other witnesses testified at trial regarding the events that evening. Four neighbors testified that they heard gunshots. Two neighbors testified that they saw two men drive away from the scene after they had heard gunshots.
Tishaun Berry testified that she had met Bell earlier that month at a gas station and had given him her phone number. Berry was going to meet Bell on the evening of February 26, but she wanted to know if Bell knew someone who could come along to go out with Berry's friend Siobhan Plunkett. Bell told Plunkett to call the defendant and gave her his cell phone number. Plunkett testified that she called the number on February 26 and was asked to hold on. While she was waiting, Plunkett, Berry, and Plunkett's cousin overheard an argument on the other end of the phone between two men about money and drugs, followed by loud noises. Plunkett's cousin, Aaron Quarles, testified that he thought the noises were gunshots.
In addition, three of the defendant's acquaintances testified that the defendant told them he murdered Hayes and provided details about the murder. DaMario Brooks and Terence Wilkins both testified to this effect at trial. Eugene Greene provided a written statement to the police regarding the defendant's comments to Greene concerning the murder and his interactions with the defendant after the night of the murder. Greene testified at the preliminary hearing; his statement was admitted into evidence and provided part of the basis for his direct and cross-examination at the preliminary hearing.
Greene could not be located to testify at trial. The trial court determined that he was unavailable as a witness and authorized the State to read his preliminary hearing statement and testimony at trial.
(1) The Exclusion of the Defendant's Exculpatory Statements to the Police
The defendant did not testify at trial. The State called Detective Louis Randall, the officer who investigated Hayes' murder, as a witness. At no point on direct examination did the State question the detective regarding his interrogation of the defendant. However, twice during defense counsel's cross-examination of Detective Randall, counsel attempted to elicit testimony from him that the defendant told the detective during the interrogation that "he didn't know anything" about the murder. On both occasions, the trial court sustained the State's hearsay objection.
The defendant acknowledges that his statements to the detective were hearsay, but he argues that the court violated his right to a fair trial by excluding his hearsay statements to the detective when it allowed three other witnesses--Brooks, Wilkins, and Greene--to testify as to incriminating statements that the defendant made to them regarding his participation in the murder. Specifically, the defendant argues that the exclusion of his exculpatory hearsay statements to Detective Randall and the admission of his inculpatory statements to Brooks, Wilkins, and Greene violated his constitutional right of due process as articulated in Chambers v. Mississippi, 410 U.S. 284, 302, 35 L.Ed. 2d 297, 93 S.Ct. 1038 (1973), and State v. Brickhouse, 20 Kan. App. 2d 495, 890 P.2d 353, rev. denied 257 Kan. 1093 (1995). In the alternative, the defendant argues that the statements should have been admitted under K.S.A. 60-462.
"This court has previously recognized that under the state and federal Constitutions a defendant is entitled to present the theory of his or her defense and that the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. [State v.] Mays, 254 Kan. [479,] 486[, 866 P.2d 1037 (1994)] (quoting State v. Bradley, 223 Kan. 710, Syl. ¶ 2, 576 P.2d 647 ); State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989). '"Few rights are more fundamental than that of an accused to present witnesses in his own defense."' Gonzales, 245 Kan. at 699 (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 35 L.Ed. 2d 297, 93 S.Ct. 1038 ). The right to present a defense is, however, subject to statutory rules and case law interpretation of rules of evidence and procedure. State v. Bedford, 269 Kan. 315, 319, 7 P.3d 224 (2000); State v. Davis, 256 Kan. 1, 11, 883 P.2d 735 (1994); Bradley, 223 Kan. at 714." State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003).
The admission or exclusion of hearsay evidence is within the sound discretion of the trial court. See State v. Thomas, 252 Kan. 564, 572, 847 P.2d 1219 (1993). "'The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.'" State v. White, 279 Kan. 326, 332, 109 P.3d 1199 (2005) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L.Ed. 2d 392, 116 S.Ct. 2035 ). Nevertheless, "[w]here constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanically to defeat the ends of justice." State v. Hills, 264 Kan. 437, Syl. ¶ 2, 957 P.2d 496 (1998). In some instances, "'[t]he admission of an incriminating hearsay statement, coupled with the refusal to admit an exculpatory hearsay statement by the same declarant, is so fundamentally unfair as to be an abuse of discretion and a denial of due process.'" DuMars, 33 Kan. App. 2d 735, 739, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (quoting State v. Brickhouse, 20 Kan. App. 2d at 503). In such cases, "'[t]he question of whether the exculpatory [hearsay] statement is reliable is overriden by the inherent unfairness that will occur if that statement is excluded while [an incriminating] hearsay statement . . . is admitted.'" DuMars, 33 Kan. App. 2d at 739.
Before discussing the defendant's arguments and the case law resolving this issue, we note that under time-honored rules of evidence, the defendant's exculpatory hearsay statements to Detective Randall were inadmissible. A criminal defendant is present at trial and has an absolute right to testify in his or her own behalf. Therefore, the defendant in this case could have taken the stand and testified about what he told Detective Randall. However, the defendant elected not to testify. In spite of this decision, the defendant now claims that the court erred by excluding the detective's testimony regarding the defendant's exculpatory hearsay statements.
The inculpatory statements admitted by the trial court that form the basis of the defendant's claim--statements that he made to his acquaintances that he committed the murder--were clearly admissible as party admissions under traditional rules of evidence. See K.S.A. 2006 Supp. 60-460(g). The defendant was present and could have taken the stand to deny he made such statements or to attempt to show that the statements were not true for whatever reason. However, the defendant elected not to testify. The question must be asked: "What, according to the law, makes this situation constitutionally unfair?" We have been unable to find any case to support the defendant's claim under the facts of this case.
Nevertheless, an apt answer to the above question is found in an opinion by the Court of Appeals for the Seventh Circuit in Gacy v. Welborn, 994 F.2d 305 (7th Cir.), cert. denied 510 U.S. 899, reh. denied 510 U.S. 1006 (1993), which involved a similar argument to that raised by the defendant in this case. Gacy filed a petition for federal habeas corpus relief from his murder conviction. In the underlying trial, Gacy did not testify but instead presented his insanity defense through the testimony of six expert witnesses. The court ruled that these witnesses could not relay Gacy's statements to them verbatim because such statements were inadmissible hearsay; however, the judge did allow the expert witnesses to "recount the substance of what Gacy had said." 994 F.2d at 315. In addition, the court allowed the prosecutor to question these witnesses about Gacy's incriminating statements and admitted such statements as admissions of a party opponent.
On appeal, Judge Easterbrook recognized that "the prosecutor used the hearsay objections to prevent Gacy from getting the more favorable portions of his story before the jury indirectly." 994 F.2d at 315. Nevertheless, the appellate court found no error in the ...