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State v. Miller

July 27, 2007


Appeal from Douglas district court, PAULA B. MARTIN, judge.


1. Generally, all relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.

2. The appropriate exercise of judicial discretion varies, depending on the character of the question presented for determination. A district court's decision is protected if reasonable persons could differ about the propriety of the decision, as long as it was made within and took into account the applicable legal standards. If, among other things, a district court's decision goes outside the legal framework or fails to properly consider statutory limitations, it constitutes an abuse of discretion.

3. An appellate court's review of questions of law is unlimited.

4. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal.

5. Photographs that are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. Nevertheless, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue.

6. The trial court has broad discretion regarding the admission of relevant demonstrative photographs. In order to demonstrate that the district court abused its discretion in admitting the photographs, it is not enough for a defendant to show that photographs were prejudicial. Rather, the defendant must demonstrate that the photographs' probative value was substantially outweighed by their unfair prejudice.

7. The test to determine whether the admission of a hearsay statement violates a defendant's rights under the Confrontation Clause turns on whether the statement is testimonial. If a statement is found to be testimonial, it must be excluded unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant. If a statement is not testimonial, then it does not implicate the Confrontation Clause, and the only consideration before the court is whether it may be admitted under one of the statutory exceptions to Kansas hearsay law.

8. The right to recall a witness for further cross-examination lies in the sound discretion of the trial court. The language of K.S.A. 60-460(a), "available for cross-examination with respect to the statement and its subject matter," clearly warrants recalling a witness for cross-examination on his or her hearsay statement admitted subsequent to his or her testifying.

9. 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.

10. A prosecutor is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Nevertheless, this court cannot condone the use of epithets which in any way may be construed in derogation of the presumption of innocence which attaches to one on trial for crime.

11. To determine whether prosecutorial misconduct constitutes plain error, a court must consider (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 was so overwhelming that the misconduct was likely to have little weight in the minds of jurors.

12. A prosecutor's indifference to a court's rulings, mocking of a defendant, or repeated acts of misconduct are evidence of ill will, and the lack of such conduct tends to show that there was no ill will.

13. While the lack of an objection does not preclude an appellate court from reviewing an allegation of prosecutorial misconduct, it nevertheless may play into the court's examination of whether the comments of the prosecutor constitute ill will. In the absence of an objection, neither the defendant nor the court gives the prosecutor immediate reason to believe that his or her comments are unacceptable.

14. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial.

The opinion of the court was delivered by: Davis, J.


Martin Miller appeals from his conviction of first-degree murder for the killing of his wife, claiming that the following errors require reversal of his conviction: (1) the admission of several pieces of evidence whose prejudicial nature outweighed their relevance; (2) the admission of hearsay statements of Laura Cuthbertson regarding her relationship with the defendant; (3) prosecutorial misconduct during closing argument; and (4) cumulative error. We conclude that no reversible error occurred and affirm.


The defendant placed a 911 call to the police on the morning of July 28, 2004, stating that he had found his wife, Mary, dead in her bed. He explained that she was not breathing and that her body was cold. Police arrived at the house around 6 a.m. and determined that Mary was dead and had been so for some time.

A police officer informed the defendant that Mary was dead and observed as the defendant related the news to his 14-year-old daughter, Melodie. According to the officer, Melodie stated that she had awoken to hear her mother scream during the night and had heard the defendant's voice calming Mary down. The defendant denied that it was his voice. At this point, the officers treated the case as suspicious and separated the defendant, Melodie, and the defendant's son, Matthew, so they could be interviewed.

The defendant told the police that he went to bed around 11 p.m. the night before and that his wife joined him after he went to sleep. He got out of bed around 2 a.m. with a headache and pain in his hip. He took an aspirin, went to sleep in the living room recliner, and did not wake up until the morning when he heard Mary's alarm clock going off in the bedroom. He did not attempt to resuscitate her, but instead called the police.

The detective interviewing the defendant asked him about his relationship with Mary, and the defendant told him that they never fought and that their relationship was in good standing. He also gave his consent to the detective's search of his computers.

There were no signs of a struggle in the Miller house or bedroom and no signs of a forced entry.

Melodie testified at trial that she was up until midnight on that night working on her computer, though both of her parents thought she was in bed. She heard the sounds of someone getting up and hurried to her bedroom; she assumed the person stirring was the defendant, who often slept in the living room. She pretended to be asleep while a person (who she believed was her dad) looked in on her. She heard someone boot up the computer down the hall, and then she fell asleep.

Melodie testified that she next was awakened from her sleep when she heard Mary "screaming but not like the high-pitch scream. It was muffled." She was going to go check on Mary, but she heard her father's voice trying to calm her down. Melodie stated that she assumed her mom was having a nightmare and thought things were fine when she heard the defendant's voice.

Melodie was next awakened to the sounds of police sirens. When she got out of bed, she asked her brother Matthew whether he heard the screams, and he told her that he did. She asked the defendant whether he had heard Mary during the night, and he said he did not, since he was asleep in the living room. Melodie stated that later that day, the defendant took her and her brother aside and explained that there were "'three possibilities for what's going to happen or how they are going to say your mother died'"--that someone broke into the house and killed her, that she died of natural causes, or that the defendant killed her. Melodie said that her father told them that it was "most likely the police will say he [the defendant] did it because the police just want to find someone."

Melodie also testified regarding the defendant's relationship with a woman named Carrie Parbs. She explained that the defendant would often talk with Parbs on the telephone in his carpentry shop or go visit Parbs in Eudora to swim in the pool in her apartment complex. Melodie was concerned that her father and Parbs' relationship was "more than a friendship" because "she flirted with him and . . . he kind of flirted back." (When asked about Parbs on the day after Mary's death, the defendant told the interviewing detective that he did have a relationship with her but that it had ended the previous fall.)

Matthew testified at trial that he also heard his mother make "a raspy like--yell, like where she couldn't get any air in." He explained that it "sound[ed] like she was having a hard time breathing" and that he had never heard his mother make a sound like that before. Matthew testified that after he heard the noise from his mother, he heard his father's voice saying, "'Calm down. Calm down. Everything's going to be alright.'"

The defendant elected to testify in his own defense. He stated that he went to bed around 11 p.m. but woke up around midnight in pain. He looked in on Melodie and turned off Melodie's laptop. He then went to the kitchen for medicine and sat down at his computer while he waited for the medication to take its effect. When it had done so, he went to the recliner in the living room and went to sleep.

The defendant testified that he woke up again sometime around 3 a.m. because he had to use the restroom. He went to the master bathroom and fell asleep on the toilet, when he awoke to Mary making "an outburst of sound." He went to her and touched her, telling her to calm down and breathe. When her breathing went back to normal, he thought everything was okay and went back to the living room to go to sleep.

The coroner who first examined Mary at her home and later performed the autopsy also testified at trial. He noted that there was no indication of sexual assault and no injury to Mary's hands. However, he noted that there was petechiae in Mary's eyes and pulmonary edema foam coming from Mary's nose. During the autopsy's internal examination, he noticed a flame hemorrhage in the sternohyoid muscle over the thyroid, which indicated an applied injury to the neck, and another area of hemorrhage on the superior horn of Mary's thyroid cartilage, which could only be caused by pressure applied to the neck. The coroner also explained that he observed bruises to Mary's scalp, showing that force had been applied in that area within a day or two of death. He found no evidence of other injury, trauma, disease, drugs, or poison. The coroner concluded that Mary died from asphyxiation by strangulation.

An examination of defendant's computer revealed 6,801 images that the examiner described as "pornographic," organized into 29 different folders and one folder of unsorted images and labeled according to the type of activity portrayed. The computer also contained a program called "Magic Folders," which the defendant told the detective that he used to hide pornography. Searching this program revealed another 2,000 to 2,500 pornographic images, as well as 291 videos. It also revealed the defendant's memberships at several Internet dating websites, with profiles active until the day before Mary's death.

The examination of the computer also revealed several photographs of the defendant and Parbs together, as well as a document entitled "'Marriage Dairy [sic],'" where the defendant stated that he regretted ever marrying Mary and articulated his frustration with that relationship, and an undated letter from the defendant to Parbs. In the letter, the defendant expressed his love for Parbs but said that being exposed in an adulterous affair would destroy both himself and her. The letter concludes with the defendant stating that he and Parbs will be together in the future "when the time is right." Both of these documents were admitted into evidence.

In addition to these documents and images, the forensic examination of the defendant's computer also showed that the defendant had received numerous e-mails from Parbs, including one sent a little more than 24 hours before Mary's death. In this e-mail, titled "'instincts,'" Parbs told the defendant that Mary had almost caught the two of them hugging and kissing in the defendant's shop when Mary arrived home that evening.

Finally, the search of the computer revealed that between 12:48 a.m. and 12:51 a.m. on July 28, 2004, someone using the defendant's computer conducted Internet searches using the terms "sleep patterns" and "deep sleep patterns."

The State's theory of the case was that the defendant had been living a "double life" before Mary's death. To the public, he was a family man active in his church and his children's school. Privately, however, the defendant was extremely unhappy with his marriage, was obsessed with pornography, had been involved in an extramarital sexual relationship with Parbs for 4 years, and was active on a number of Internet dating sites. To establish the defendant's motive in killing Mary to pursue this "other life," the State sought to offer as evidence a few of the pornographic photographs and photographs of the defendant and Parbs as representative of the defendant's collection, as well as a number of documents written by the defendant, correspondence between the defendant and Parbs, and the defendant's profiles on the Internet dating sites.

Prior to trial, defense counsel sought to limit the number of commercial pornographic images admitted so as to prevent unfair prejudice. The court directed the State to select the images that it planned to use and provide them in advance to the defense, and to do the same with any autopsy photographs that would be used. In addition, the defendant sought to exclude images of Parbs and himself; noting that some of the images would be relevant to demonstrate the severity of the defendant and Parbs' relationship, the court told the defendant's counsel to work with the prosecutor to choose which images should be used in advance and to object at trial if and when "enough is enough."

The defendant also sought to exclude evidence regarding his relationship with Laura Cuthbertson, a member of his church who acted as his "caregiver" after Mary's death, and a "Dream of Roses" letter Miller had written regarding a dream he had involving Parbs, Mary, and Cuthbertson. Defense counsel objected to Cuthbertson's testimony regarding the dream letter and again objected based on relevance when Parbs testified regarding the letter. However, the court found the letter relevant and ruled it was admissible. Without objection, Parbs also testified that Cuthbertson told her that Cuthbertson loved the defendant and that he loved her back.


(1) Admission of Evidence

The defendant argues that the trial court erred by admitting various pieces of evidence throughout the course of the trial relating to his pornography collection and his relationships with Parbs and Cuthbertson. In particular, the defendant claims that the trial court erroneously admitted (1) two commercial pornographic images obtained from the defendant's computer; (2) four photographs of the defendant in sexually suggestive poses wearing little or no clothing, taken during his relationship with Parbs and also obtained from the defendant's computer; (3) two photographs of the defendant and Parbs partially clothed and in sexually suggestive positions, obtained from Parbs; (4) evidence of the defendant's relationship with Cuthbertson, which started after his wife's death, and (5) the "Dream of Roses" letter. The defendant claims that this evidence was highly prejudicial and of limited probative value, such that the trial court's admission of the evidence constituted reversible error.

Standard of Review

Recently, we explained that "[o]nce relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." In re J.D.C., 284 Kan. __, Syl. ¶ 1, 159 P.3d 974 (2007). Furthermore:

"The appropriate exercise of judicial discretion varies, depending on the character of the question presented for determination. A district court's decision is protected if reasonable persons could differ about the propriety of the decision, as long as it was made within and took into account the applicable legal standards. If, among other things, a district court's decision goes outside the legal framework or fails to properly consider statutory limitations, it constitutes an abuse of discretion." In re of J.D.C., 284 Kan. __, Syl. ¶ 3.

See also 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 [1996]). "An appellate court's review of questions of law is unlimited." In re J.D.C., 284 Kan. __, Syl. ¶ 2.

Relevance of Evidence Generally

K.S.A. 60-407 states that "[e]xcept as otherwise provided by statute . . . (f) all relevant evidence is admissible." "'Relevant evidence'" is defined by K.S.A. 60-401(b) as "evidence having any tendency in reason to prove any material fact." Kansas courts have held that "'"[t]he determination of relevancy is a matter of logic and experience, not a matter of law. [Citations omitted.]"'" State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 (1998). Therefore "'"when a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it."' [Citations omitted.]" 264 Kan. at 104. We have also explained:

"'For evidence to be admissible in the trial of a case it must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish.'" State v. Gauger, 200 Kan. 563, 565, 438 P.2d 463 (1968) (quoting In re Estate of Isom, 193 Kan. 357, Syl. ¶ 2, 394 P.2d 21 [1964]).

As indicated above, the admission or exclusion of evidence lies within the sound discretion of the trial court. If the trial court determines the probative value of the evidence offered is substantially outweighed by the risk of unfair prejudice, the court may exclude relevant evidence. State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001).

At the same time, the law in this state favors the admission of otherwise relevant evidence. See Gardner, 264 Kan. at 104; Gauger, 200 Kan. at 565-66. The Court of Appeals for the Tenth Circuit has explained with regard to Rule 403 of the Federal Rules of Evidence (which has similar language to K.S.A. 60-445 and that used in Leitner, 272 Kan. at 415) that "[t]he exclusion of relevant evidence under Rule 403 is 'an extraordinary remedy to be used sparingly.'" K-B Trucking Co. v. Riss Int'l Corp., 763 F.2d 1148, 1155 (10th Cir. 1985) (quoting United States v. Plotke, 725 F.2d 1303, 1308 [11th Cir.], cert. denied 469 U.S. 843 [1984]).

In Leitner, 272 Kan. 398, we were confronted with an example of evidence that was so lacking in probative value and yet so prejudicial to the defendant that the admission of the evidence was held reversible error. Leitner was convicted of first-degree murder for the death of her ex-husband. The evidence showed that Leitner had shot her ex-husband once in the back of the head and twice more in the temple out of frustration from their divorce, fear of physical abuse, and need for his life insurance proceeds. 272 Kan. at 402-06. Leitner testified in her own defense at trial and described at length the nature of her marriage with her ex-husband and the beatings and abuse he inflicted upon her. See 272 Kan. at 409.

The State sought to cross-examine Leitner regarding her practice of Wicca, a pagan religion, arguing that it was relevant in that it was her husband's dislike of the religion that often caused him to beat her. 272 Kan. at 410. The trial court recognized the highly prejudicial nature of this evidence but reluctantly allowed the State to cross-examine Leitner on her involvement with Wicca, finding that her testimony "open[ed] the door" to inquiry. 272 Kan. at 410-11.

On appeal, this court found the admission of the evidence relating to Leitner's practice of Wicca to be error. The court noted that "the evidence showing that Leitner participated in Wicca bears no relevance to the crimes charged against her. The record contains no hint or innuendo that her abstract beliefs had any connection to Leitner killing Michael." 272 Kan. at 415. Furthermore, the court found the evidence to be "highly prejudicial," explaining that "the idea of witchcraft has generated terror and contempt throughout American history." 272 Kan. at 415-16. This court therefore held that "because the evidence of Leitner's practice of witchcraft was more prejudicial than probative, had no direct relevance to the crime charged, and did not serve to impeach Leitner, no reasonable person would take the view adopted by the trial court in admitting evidence of Leitner's participation in witchcraft. The decision to admit this evidence at trial was in error." 272 Kan. at 416. However, the court concluded that the admission into evidence of the defendant's involvement with Wicca was harmless in light of the "overwhelming evidence" against her. 272 Kan. at 416-18.

In State v. Morfitt, 25 Kan. App. 2d 8, 9, 956 P.2d 719, rev. denied 265 Kan. 888 (1998), the defendant appealed from his convictions of attempted second-degree murder, aggravated kidnapping, aggravated indecent liberties, and aggravated battery. Relevant to this discussion, the Court of Appeals considered whether the district court erred in admitting an ice pick, condoms, and "sexual devices" that had been recovered from Morfitt's car. 25 Kan. App. 2d at 16-17. The State argued that the items were properly admitted as res gestae evidence, contending that "because Morfitt was charged with premeditated attempted murder and a sexual crime, anything that could have been used as a weapon or anything relating to sex would somehow have sufficient relevance to substantiate the connection." 25 Kan. App. 2d at 17.

The Morfitt court rejected this argument, finding that "[t]here was no indication that [the defendant] used any of the items taken from his car during the perpetration of the crimes, and the State did not attempt to argue that Morfitt brought the items with him with the intent to use them on [the victim]." 25 Kan. App. 2d at 18. The court further noted that "none of the sexual items involved child pornography or would otherwise have probative value." 25 Kan. App. 2d at 18. Because "[t]he evidence was not part of the crimes charged and had no tendency to prove a material fact," the court found the admission of the evidence found in Morfitt's car was error. To hold otherwise, the court explained, would require an "'unrealistic leap of faith.'" 25 Kan. App. 2d at 19 (quoting State v. Bornholdt, 261 Kan. 644, 660, 932 P.2d 964 [1997]).

Both Leitner and Morfitt involved evidence that bore little if any relevance to the charges against the respective defendants. Nevertheless, the evidence admitted--whether the statements describing participation in "witchcraft" in Leitner or the various sexual devices in Morfitt--was extremely prejudicial to each defendant. Thus, the probative value of the evidence was "substantially outweighed" by the evidence's prejudicial effect. See K.S.A. 60-445. Under such circumstances, both the Kansas Supreme Court and Court of Appeals acknowledged that the trial court abused its discretion in admitting such evidence.

With these statutes and cases as background, we now turn to the evidence admitted in this case--the photographs, the evidence of the defendant's relationship with Parbs, and the "Dream of Roses" letter.

(A) Photographic Evidence

The defendant claims that the trial court erred in admitting eight photographs into evidence: Exhibits 44 and 47, commercial pornographic photographs from the defendant's computer collection, both of which portray a man and a woman having intercourse with exposed genitalia; Exhibits 48 through 51, photographs of the defendant alone from his computer collection, which portray the defendant in very little or no clothing in suggestive poses; and Exhibits 61 and 62, photographs of the defendant and Parbs from Parbs' collection, which show the defendant and Parbs semi-nude in sexually suggestive poses, though not actually having intercourse. The defendant argues that these photographs were highly prejudicial and had little if any probative value; he also argues that the photographs were cumulative in that the substance of the photographs was already before the jury by way of witnesses' testimony, and the actual photographs served only to inflame the jury.

The State counters that the photographs were relevant in order to prove its theory of the defendant's motive and intent. The State points out that its theory of the case centered on the fact that the defendant was leading a "double life"--his public life with his wife and kids and his "secret" life with his affair and pornography obsession. According to the State, the photographs admitted were demonstrative of this theory and provided a better understanding than the testimony alone.

The State also responds that the defendant's only objection to the admission of the photographs during its pretrial motions and contemporaneous objections at trial was that the admission of all of the photographs would become cumulative to the point of their prejudice outweighing their probative value. The State argues that both the prosecution and defense counsel worked together before trial to limit the number of photographs that would be shown. Thus, the State moved to admit only two out of roughly 8,000 pornographic images found on the defendant's computer, and six out of thousands of pictures from the defendant and Parbs' sexual encounters. Moreover, the State argues that it attempted to minimize the embarrassment caused to the defendant by showing only two of the pictures (both of which were of the defendant alone) on the overhead and publishing the remaining six photographs to the jury without showing the entire courtroom.

Specific Objection Requirement

Before analyzing whether it was error to admit the eight photographs in question, we consider the State's argument that the defendant's counsel failed to lodge a specific objection to the admission of the photographs at trial. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404; State v. Sims, 265 Kan. 166, 174, 960 P.2d 1271 (1998).

The State claims that the defendant failed to specifically object to the admission of the photographs at trial and so is precluded from arguing that issue before this court. Although the State acknowledges that the defendant's counsel objected to the admission of the photographs at trial based on the defendant's pretrial motions in limine, the State asserts that these objections were pro forma given the ...

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