Appeal from Wyandotte district court, J. DEXTER BURDETTE, judge.
1. Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. The analysis can apply to prosecutorial action in contexts beyond mere comment on the evidence.
2. In the second step of the two-step analysis of allegations of prosecutorial misconduct, the appellate court considers three factors to determine whether a new trial should be granted: (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 against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (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: Nuss, J.
Marc Vincent Sappington directly appeals his convictions of first-degree felony murder and attempted aggravated robbery. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
Approximately 2 months before these convictions, Sappington was also convicted of crimes arising out of a different episode: three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. His appeal from those convictions is the subject of State v. Sappington, (No. 94,415, this day decided).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the prosecutor commit reversible misconduct during closing argument? No.
2. Did the district court err in denying Sappington's motion for change of judge? No.
3. Did the district court err in admitting certain autopsy photographs into evidence? No.
4. Did the district court err in denying Sappington's requests for new counsel? No.
Accordingly, we affirm the district court and convictions.
David Mashak owned and operated Phase One Auto Sales, a detail and auto sales shop located in Kansas City, Kansas. On March 5, 2001, Mashak sold a 1984 Chevy Impala to A.G. for $750. Mashak's wife, Valerie Mashak, testified that in early March she accompanied Mashak to the shop when Mashak showed A.G. the car. Valerie testified that when Mashak sold the car to A.G., Mashak told A.G. to park the car because the "tags weren't right." Two days after the sale Police Officer Jason Allen stopped the Impala being driven by A.G. because the 30-day tag was altered. Due to the altered tag, Allen had the car towed to the impound lot. According to Valerie, on approximately March 10 A.G. called Mashak at home, complaining about his car being towed and asking Mashak to get it out of the impound lot.
On March 16, 2001, Mashak and Johnny Sublett, Mashak's employee and best friend, were eating lunch in the business' office around 2 p.m. when an African-American male entered the business. Mashak and Sublett were the only individuals in the shop at the time. Sublett did not know this individual; he was later identified as A.G. According to Sublett, A.G. was angry and spoke to Mashak about getting the vehicle that Mashak had sold to A.G. out of the impound lot. Mashak did not pay attention to A.G.; he continued eating his lunch. A.G. then walked out of the shop.
As soon as A.G. walked out, a different man wearing a black mask and a black Carhart or Dickie coat with a hood entered the shop. Sublett did not recognize this individual either. The man, later identified as Sappington, was carrying what Sublett described as a black AK assault rifle. As soon as Sappington entered, he started shooting. When Sublett saw the gun, he ran into the garage portion of the business and dived under a vehicle. From there, he could hear Mashak getting shot in the office and fleeing to the garage. After approximately 10 minutes, Sublett crawled out and called an ambulance. Mashak was lying on the garage floor, conscious, but dying.
Richard Turner, a customer at Loud and Clear Car Audio across the street, heard the gunshots and then saw one African-American male running out of Mashak's shop and another African-American male shooting into it. Turner and Donald Martin, the owner of Loud and Clear Car Audio, then saw two men speed away in a brown vehicle. According to Martin, a "hooded person" was driving the vehicle.
Police found Mashak and eight shell casings inside the shop. Officer Kim J. Crockett testified that AK-47 assault rifles and SKS assault rifles fire the caliber of ammunition found in the building. Seven of the shell casings were found in the office and one on the garage floor. The officers also found several bullet holes in the interior walls of the shop and in some of the vehicles parked in the garage.
Dr. Donald Pojman, the forensic pathologist who performed the autopsy, testified that Mashak suffered five gunshot wounds--two to the left shoulder, one to the right elbow, and two to the right side of the chest. Dr. Pojman opined that Mashak died from multiple gunshot wounds, most importantly the gunshot wound to the chest, with loss of blood the ultimate cause of death.
The next month an anonymous tip led officers to investigate Sappington as a participant in the shooting. He eventually confessed to his participation in the crime. Sappington stated that A.G. approached him about helping recover money from Phase One Auto Sales because the guys there had sold A.G. a car that had been towed because the "tags weren't right." He characterized himself and A.G. as "associates" prior to this incident. According to Sappington, A.G. said he would go into the shop first and talk to the owner and then Sappington was supposed to enter 6 seconds later as an "enforcer."
Sappington stated that his role was to hold a gun on the individuals to make sure they cooperated; there was no plan to shoot them. With a black scarf covering his face, he entered the shop and pointed the SKS rifle at the two men sitting behind the counter. Because they "quickly moved" and Sappington thought they were reaching for a gun, he shot them. He then ran out of the shop, and he and A.G. fled in a brown vehicle.
A pager registered to A.G.'s father was found at the scene which had independently led officers to investigate A.G. as a suspect. From a photo lineup, Sublett identified A.G. as the person who entered the shop on the day of the shooting, and Valerie Mashak identified him as the person who bought the car from her husband and who had called about getting it out of the impound lot. A.G. eventually confessed to his participation in the crime and implicated Sappington as the shooter.
The case against Sappington was continued a number of times over 3 years because of periods in which he alternated between competency and incompetency. Sappington was evaluated primarily by Dr. William S. Logan, a psychiatrist, who met with Sappington 13 times over that entire period. Sappington was ultimately deemed competent to stand trial in July 2004. He was tried and convicted later that month for the triple murders and other crimes committed in April 2001 (State v. Sappington, No. 94,415, this day decided). He was tried in September 2004 for the crimes in the instant case committed in March 2001.
At trial, both Sappington and A.G. recanted their confessions. Sappington testified that he had nothing to do with the shooting, that he was never at the shop and that he did not know A.G. or Mashak. He claimed that he agreed to confess to the murder because Detective Greg Lawson, who took his confession, promised that he would help Sappington avoid the death penalty in a different homicide case if he confessed to shooting Mashak. Sappington testified that he based his confession strictly upon information that Lawson gave him.
Although A.G.'s preliminary hearing testimony was consistent with his prior taped confession, when called by the State to testify at trial he stated, "I can't do this. I can't lie like this, man. This ain't right." He then testified that he did not know Sappington in March 2001 and did not know who did the shooting. As a defense witness, A.G. admitted that he had previously implicated Sappington as the shooter. However, he testified that he had gone to the shop only to talk to Mashak about getting his car out of the tow lot. While A.G. was talking to Mashak, a masked man entered the body shop and just started shooting. A.G. testified that he then ran out "scared for his life." After the shooting, his father picked him up; A.G. testified that his father would testify that the father did not pick up anyone other than A.G. at that time.
A.G. testified that he implicated Sappington only because Detective Lawson said that would mean that A.G. would remain in juvenile court for his own charges. He further testified that when Lawson walked him from the juvenile center to the police station, Lawson told him details on what to confess.
The jury convicted Sappington of one count of first-degree felony murder and one count of attempted aggravated robbery. The court sentenced him to life imprisonment without parole eligibility for 20 years plus a consecutive term of 130 months' imprisonment, with the sentences to run consecutive to the sentences imposed in the triple murder case: consecutive sentences of three life terms for the first-degree murders, 79 months for kidnapping, and 32 months for aggravated burglary.
More facts will be added as necessary to the analysis.
Issue 1: The prosecutor did not commit reversible misconduct during closing argument.
Sappington first contends that reversal and remand for new trial is required because the prosecutor improperly diluted the "beyond a reasonable doubt" burden of proof during closing argument. The State basically responds that no misconduct occurred.
"Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 ). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.32 261 (2006) (citing cases)."
In the second step of the two-step analysis, the appellate court considers three factors to determine whether a new trial should be granted:
"'(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 against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967) [conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial], have been met.'" State v. White, 284 Kan. at 338.
Sappington specifically challenges the following comments made by the prosecutor during his rebuttal closing argument:
"You know, one of the things we talked about in voir dire, if you will remember, we talked about this beyond a reasonable doubt concept and there's not a single one of you here can say--can go into that jury room and say, I know beyond all doubt that Marc Sappington is the one who did this. There's not a single one of the 12 of you that can go back there and say, I know beyond any doubt that Marc Sappington is the one that did this. It's not what the law is asking you to do, though. Remember our test is beyond a reasonable doubt. And is it ...