Appeal from Saline district court; DAN D. BOYER, judge.
1. A district court may grant a continuance for good cause shown, and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion. Moreover, a defendant has the burden to prove that his or her rights were substantially prejudiced by the decision of the district court.
2. When a criminal defendant claims that a district judge has interfered with his or her constitutional right to present a defense, an appellate court reviews the issue de novo.
3. When a continuance is requested during a criminal trial, the district judge should weigh the possible prejudice to the parties, the diligence or lack thereof in attempting to secure a witness, the materiality and importance of the probable testimony, and the probability of the witness' appearance at a later date if a continuance is granted.
4. When a district judge becomes aware of a possible conflict of interest between criminal defense counsel and his or her client, the trial court must inquire; failure to do so may require reversal.
5. No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects, distinctly stating the matter objected to and the grounds for the objection before the jury retires, unless the instruction is clearly erroneous. Instructions are clearly erroneous only if a reviewing court is firmly convinced there was a real possibility the jury would have rendered a different verdict if the error had not occurred.
6. Imperfect self-defense is not appropriately considered simultaneously with premeditated first-degree murder.
7. A two-step analysis governs allegations of prosecutorial misconduct: it applies regardless of whether the alleged misconduct occurs during witness examination or during closing argument, and it applies regardless of whether a contemporaneous objection was made. The first step asks whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. The second step asks whether the remarks constituted plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. The second step requires three factors to be considered: (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 so direct and overwhelming 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 statutory and federal harmless error tests have been met.
8. Under the facts of this case, the prosecutor committed misconduct when she told the jury that it was required to rule out intentional second-degree murder before it considered voluntary manslaughter. A jury must consider these two offenses contemporaneously. Under the facts of this case, however, the error was harmless under both the standard recited in K.S.A. 60-261 and the constitutional harmlessness standard.
9. When the admission or exclusion of evidence is challenged, an appellate court's first inquiry is relevance. Generally, all relevant evidence is admissible. Evidence is relevant if it renders a desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.
10. The admission of photographs in a homicide case is a matter within the district court's discretion, and its ruling will not be disturbed on appeal absent the showing of an abuse of that discretion. Such discretion has been abused when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice.
11. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. Photographs that are relevant and material to assist the jury's understanding of medical testimony are admissible. Specifically, photographs that aid a pathologist in explaining the cause of death are admissible. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.
12. Under the facts of this case, although the cause and means of death were not disputed, the single photograph admitted was relevant. It gave the jury an understanding of the size of the living space in which the events transpired; gave context to the diagrams in which eyewitnesses had placed the people; and showed the position of the victim and, to a limited degree, the nature and extent of the injury. The photograph was not unduly repetitious or cumulative, and, while unpleasant, was not so gruesome that it compels the conclusion it was admitted solely to cause undue prejudice to the defense.
13. An Allen-type instruction, see Allen v. United States, 164 U.S. 492, 41 L.Ed. 528,
The opinion of the court was delivered by: Beier, J.
In this appeal from his convictions for first-degree murder, aggravated assault, and criminal possession of a firearm, defendant Victor A. Carter claims that the district court erred by denying a continuance to enable proof of his theory of defense; refusing to allow defense counsel to withdraw; failing to instruct jurors they should consider imperfect self-defense as they deliberated on first-degree murder; admitting a gruesome photograph; and giving an Allen-type instruction. See Allen v. United States, 164 U.S. 492, 41 L.Ed. 2d 528, 17 S.Ct. 154 (1896). He also argues that the prosecutor committed reversible misconduct and asserts that even if no single error compels reversal, cumulative error does.
Victim Darryl Revels was killed when he was hit at close range by a shotgun blast to his abdomen. Salina police responded to the scene, the living room of a house where Carter was living, and talked to a neighbor. The neighbor told them she had heard the shot and had then seen Carter walk out of the front of the house.
Revels was a bodyguard of sorts for Carter. He would do household chores and would screen visitors who came to do money and drug deals and other illegal transactions with Carter.
On the night of the crime, William Gardenhire came over to the house to help Revels set up stereo equipment for Carter. Several other people also were at the house: Carter, Carl Christiansen, James Armstrong, Lori Harris, Christopher Williams, Twayne Bledsoe, and another man identified only as "Johnny." Carter, who was high on crack, initially was in the basement.
Carter then called everyone in the house into the front room. He ordered Williams to lock the front door and stand there. When everyone was assembled, Carter began asking questions about who was robbing him and refused to let anyone leave. He accused Revels of manipulating everyone to rob him. He then ran to the bedroom and came back with a 12-gauge shotgun. Carter continued to direct his accusations at Revels and pointed the shotgun at Revels' head. He pulled the trigger, but the shotgun did not fire.
Carter then loaded the shotgun and sat down on a couch. He then focused his accusations on Gardenhire, pressuring Gardenhire to admit he had robbed him or was planning to do so. Carter put the shotgun to Gardenhire's forehead, giving him "ten seconds." After 5 seconds, he put the gun to Gardenhire's eye. Gardenhire protested that he would never rob Carter and suggested that Carter just pull the trigger. Carter looked at Revels and said Gardenhire sounded "real convincing." Then Carter turned and shot Revels.
After the shot was fired, Gardenhire, Harris, and Armstrong ran out the back door and jumped into their cars. Gardenhire called 911 but did not give his real name for fear his involvement would be a violation of his parole. Gardenhire later made a statement to the police implicating Carter. Christiansen also called 911; he, Harris, and Armstrong were initially reluctant to provide information but eventually pointed police toward Carter. Police later arrested Carter near his ex-wife's apartment in Topeka and charged him with first-degree murder of Revels, aggravated assault of Gardenhire, and criminal possession of a firearm.
Carter went through four attorneys: his first appointed counsel, Mark J. Dinkel, withdrew based on a conflict of interest; Dinkel had previously represented Gardenhire and suggested he might need to use information gained in that representation to represent Carter effectively. Carter's next appointed counsel, Joseph A. Allen, had previously represented Bledsoe, another eyewitness who was endorsed by the State. Attorney Ronald Hodgson was appointed next; he also filed a motion to withdraw based on a conflict of interest with another client of the public defender's office. When the district court permitted Hodgson to withdraw, the court appointed Jack Sheahon to defend Carter.
At Carter's jury trial, Gardenhire, Christiansen, Harris, and Armstrong described the events leading to Revels' death essentially as set out above. Each testified that Revels was unarmed and that he had not provoked or attacked Carter. Williams testified he was not at the murder scene and knew no one involved.
Judith Wesley, Carter's ex-wife, testified that Carter had admitted killing Revels; he told her Revels and Gardenhire threatened to rob him and kill him, so he shot first. Regarding Gardenhire, she reported that Carter said "he was going to shoot [him], but he forgot or something." Carter did not mention to Wesley whether Revels was armed.
Among the State's other evidence was a photograph of Revels' body lying in the living room where he was killed. The photograph also depicts Revels' intestines partially outside of his abdomen. The defense had objected to admission of such photographs earlier in the proceedings.
Toward the end of the State's case, Carter told the district judge that he was unsatisfied with his lawyer's performance and that he did not want to continue with him as counsel. Defense counsel Sheahon told the judge that he "didn't feel he was providing inadequate counsel." After learning more from Carter about the nature of his complaints, the district judge ruled that he would not allow Carter to obtain new counsel in the middle of the jury trial.
One of the reasons Carter expressed dissatisfaction was related to Bledsoe. Specifically, Carter wanted Bledsoe to testify about the content of a telephone conversation he had had with Carter while Carter was in jail awaiting trial. During that conversation, Bledsoe stated that he knew there had been a plan to rob Carter. Defense counsel had subpoenaed Bledsoe, as had the State. Although served personally three times, Bledsoe absconded. The State then issued a pick-up order, but Bledsoe had not been found in time for trial. In place of his testimony, the audiotape of the telephone conversation between Carter and Bledsoe was admitted into evidence. The State also offered to let the defense question the investigator who had interviewed Bledsoe pretrial and pledged not to object to admission of Bledsoe's hearsay statements.
Carter testified in his own defense. He said that he shot Revels because he believed he was going to be robbed; that Gardenhire, Revels, Armstrong, and others had been in the basement with him and were armed with a Taser, a gun, and a hammer; and that they had assaulted him and threatened to hang him with electrical wires. Carter testified he was scared for his life and "thought he was dead." Then everyone went upstairs, and Revels, who had a gun, told Carter that he was going to kill him. It was only then that Carter's shotgun "went off." Carter walked out of the front of the house, and everyone else ran out of the back.
Other defense witnesses supported Carter's self-defense theory. Reola Lane testified that she had been talking to Carter in the basement on the night of the crime while the others were upstairs. He told her he thought somebody was trying to set him up. She left the house before Revels was shot. An officer testified about a monitored jail telephone call in which Carter told another inmate that Revels, Gardenhire, and Armstrong had taken Carter down to the basement, hung him up, and were electrocuting him, but that they later acted as though Carter was out of his mind. Briana Jacobson, Carter's girlfriend, testified that she talked with Carter while he was in jail awaiting trial and that he told ...