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State v. Murray

January 18, 2008; as amended March 17, 2008


Appeal from Douglas district court, ROBERT W. FAIRCHILD, 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. No rule governing closing argument is more fundamental than that requiring counsel to confine their remarks to matters in evidence. The stating of facts not in evidence is clearly improper.

3. Although a prosecutor may not misstate the facts in evidence, a prosecutor is permitted to draw reasonable inferences from the evidence and is given latitude in drawing those inferences.

4. Under the circumstances of this case, no prejudicial prosecutorial misconduct occurred because the prosecutor's comments were provoked and made in response to prior arguments or statements by defense counsel.

5. The use for impeachment purposes of a petitioner's silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

6. A Doyle violation occurs when the State attempts to impeach a defendant's credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.

7. A litigant may not invite and lead a trial court into error and then complain of the trial court's action on appeal. However, the invited error rule cannot be used as a pretext for the violation of a defendant's constitutional rights where there is no justification for so doing.

8. The invited error rule may not be used to excuse actions by counsel during cross-examination or closing argument when such actions are ordinarily improper and erroneous, and are not a necessary or justified response to the actions of the other party in order to achieve a fair trial.

9. In determining harmless error in the context of a Doyle violation, we consider the nature and extent of the comment in comparison with the strength of the evidence of the defendant's guilt as well as whether the evidence was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the defendant to testify.

10. An appellate court reviews a trial court's admission of hearsay statements for an abuse of discretion. The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.

11. Before a court may find that an accused forfeited his or her confrontation rights and waived any hearsay objection regarding an unavailable victim's statements, the trial court must make a determination by the preponderance of the evidence that the accused brought about the unavailability.

12. The theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference, and therefore the asserter must be subject to cross-examination.

13. The fact that a statement goes to the "relationship of the parties" is not one of the exceptions to the hearsay rule in K.S.A. 2006 Supp. 60-460.

14. If a trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis.

15. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. To determine whether a trial error is harmless error or prejudicial error, each case must be scrutinized and viewed in light of the trial record as a whole, not on each isolated incident viewed by itself.

16. When the sufficiency of the evidence is challenged on appeal, this court must determine whether, after a review of all the evidence viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.

17. Whatever type of evidence is introduced in a criminal trial (whether it is termed direct, indirect, testimonial, circumstantial, or a combination), the trier of fact must apply the same test to convict the defendant: proof of guilt beyond a reasonable doubt.

18. A guilty verdict in a criminal case will not be disturbed on appeal if there is sufficient evidence, even though the evidence is entirely circumstantial.

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


Thomas Murray appeals from his conviction of first-degree murder for killing his former wife. He contends that his conviction must be reversed based on the following claims of error: (1) Prosecutorial misconduct during the State's closing argument; (2) the admission of testimony regarding the defendant's post-Miranda silence; (3) the admission of hearsay statements of the victim concerning her relationship with the defendant; (4) cumulative error; and (5) insufficiency of the evidence to support his conviction. We conclude that no reversible error occurred and affirm.


On November 14, 2003, the Douglas County Sheriff's Department received a call from Larry Lima, who lived in California, requesting that the police conduct a welfare check on his fiancee, Carmin Ross. Carmin lived at 1860 E. 1150 Road in rural Douglas County. The home is situated about .6 miles from County Road 438 and about 500 feet from the nearest residence.

The officers arrived at Carmin's residence shortly after 1 p.m. and knocked on the front door. One of the officers looked through a window and saw what appeared to be blood and someone's knee. The officers split up and met again at the back of the home; neither officer present observed any broken windows or other signs of forced entry into the home.

After entering the home through the back door, the officers found Carmin lying on the floor in her living room. The room was in disarray, with a potted plant on its side and the coffee table partially flipped over on the couch. Blood spots were found throughout the area. There was no evidence of a sexual assault and no evidence that anything had been removed from the home.

An autopsy revealed that Carmin had suffered 11 lacerations due to blunt force injury followed by 13 stabs in the neck with a knife, as well as several defensive wounds on her arms. Neither the knife nor any other weapon was found on the premises, although a knife was missing from Carmin's knife block in the kitchen. The detectives hypothesized that Carmin's attacker had first beaten her, and, unsure whether the beatings would kill her, the attacker retrieved a knife from Carmin's kitchen and stabbed her.

Aside from the mess in the living room, Carmin's house was clean and well kept. In addition, Carmin's car was still in the driveway; no windows were broken, and there was no indication that anything had been stolen.

An exhaustive investigation ensued. Officers searched the roadway and garbage from rest areas near Carmin's home and interviewed all those who knew Carmin to determine when she had last been seen alive.

The Riley County Police Department contacted the defendant at about 7:30 p.m. on November 14, 2003. The defendant and Carmin had been married until Carmin met Lima at a conference in Wichita in 2002; they divorced in the spring of 2003 and were currently in a custody struggle over their 4-year-old daughter, Ciara. When the police arrived at the defendant's home, the defendant walked into an adjacent room, picked up Ciara, and answered the door with his daughter in his arms. The defendant appeared distraught when the police informed him that Carmin had died. However, he never asked the officers how Carmin had died or whether her death had involved foul play. The defendant then drove himself to the police department for a requested interview with police.

The defendant's interview at the police department lasted approximately 9 1/2 hours, with the majority of the interview being audio- and video-recorded. The detectives noticed that during the first 2 hours of the interview, the defendant kept his right hand in his lap or under his leg. The detectives later noticed that the defendant had a cut on his little finger on his right hand and bruises along the outside of both of his wrists and on his hands and arms. The defendant explained that he cut his finger when cutting a pineapple for Ciara. Although he initially could not remember where the bruises came from, he later told the investigators he was bruised when he was playing with Ciara and bouncing her on his knees.

By 9 p.m., the defendant still had not asked how Carmin died but was voluntarily explaining in detail how he had spent his time the previous day. He also told the detectives that they would find his DNA on the carpet of Carmin's living room. At about 10 p.m., the investigators pointed out to the defendant that he had yet to ask how Carmin died; the defendant said he did not want to know the details.

At 11 p.m., investigators sought the defendant's consent to search his car and home. He signed a written consent for both searches and told the detectives, "I'll tell you what you're going to find in [the] car." The defendant explained that the detectives would find "Carmin's blood" and her fingerprints. No one had informed the defendant at that time that Carmin's death had been bloody or violent. The defendant also consented to the search of his computers both at home and at his office at Kansas State University.

The defendant went on to explain that Carmin had borrowed his car a few weeks ago when Ciara was ill so that Carmin could get medicine at Walgreens, because her car was blocked in by the defendant's vehicle when he was visiting. According to the defendant, Carmin suffered a horrible nosebleed on the way.

Although no one had informed the defendant how Carmin died, he told the police in his interview that he would not have done anything "like they were suggesting" because he was a "thinking man." He explained that if he were going to commit a homicide, he would do it with an airborne poison "or something really slick." He later stated that he was "having fun with this from a CSI perspective."

At about 12:30 a.m., the defendant agreed to provide the police with a written statement. He then asked a detective who came into the room whether there were cameras in the toll booths along I-70. When the officer answered that there were cameras, the defendant replied, "That's all I need to know."

When he completed his written statement, he told the detectives that something in the statement would cause them to look at it "with a raised eyebrow." He then stated that he failed to point out that he drove on I-70 the previous morning to look at pillow cases in Paxico.

About 3 a.m., the defendant explained that Carmin's blood would be in his house because Carmin had cut herself when trying to cut a piece of candy for Ciara on Halloween. He also explained that his blood would be found in her downstairs bathroom because when he was at Carmin's home after mediation on the previous Tuesday, he had picked a callus and had caused it to bleed. The detective then informed the defendant for the first time that Carmin had been murdered and that the murder had occurred in her own home.

Following the interview, the defendant left the police department without being charged.

Further consideration and investigation of the defendant's police interview undermined many of the explanations that he provided in his statement. Specifically, several acquaintances indicated that Ciara was not the type of child who wrestled or roughhoused. Furthermore, no witness could verify the defendant's statement that Carmin was prone to nosebleeds.

Ciara's babysitter told the detectives that on the morning Carmin was murdered, the defendant had dropped off Ciara at least 30 minutes early. Furthermore, although the defendant had initially told the police officers in his interview that he was at home grading tests all morning, a number of his students at the university stated that he was grading the students' papers in class as they were turned in. The defendant's statements regarding his grading of tests were also inconsistent with his later statement during the interview that he had driven to Paxico to look at antique pillowcases.

DNA testing showed that all of the blood in Carmin's house belonged to the victim, with the exception of a drop of blood on the baseboard of Carmin's downstairs bathroom. This drop of blood contained at least two contributors--Carmin and an unknown male.

While there was a blood pattern found just inside the front porch that was consistent with a work boot or shoe, no such shoe was found, either in the vicinity of Carmin's house or at the defendant's home. No other impression was found.

In addition, a number of acquaintances informed the investigators of statements made by the defendant leading up to Carmin's death. The defendant had told a neighbor that he "'would be better off if [Carmin] weren't alive.'" The defendant also made numerous statements to his best friend, GayLynn Crossley-Brubaker. Crossley-Brubaker explained that she had called the defendant on the evening of November 13 (the day Carmin was allegedly murdered) to discuss Thanksgiving plans and noted that the defendant seemed unusually upbeat.

On November 15, 2003, the defendant called Crossley-Brubaker and told her that Carmin was dead and that the police were treating him as a suspect. He also told his friend that he had cuts on his hands as if "holding a knife by the blade." He repeatedly said, "'[a]ll I see is the blood, all the blood.'"

Crossley-Brubaker also questioned the defendant's indication that he had gone to Paxico to look at pillowcases on the morning of Carmin's death, because she had not known that the defendant was interested in antiques and she did not think he would waste the gas on such a trip.

A search of the defendant's computer revealed that he had run several searches between October 8, 2003, and November 10, 2003, including: "colorless and odorless poison"; "homicide"; "poisoning and colorless and odorless and murder and perfect and tasteless"; "murder for hire"; "how to hire an assassin"; "how to kill someone quickly and quietly"; "the best way to kill someone"; and "eyedrops and murder and csi."

On November 12, 2003, the day before Carmin's death and the day after the defendant learned at custody mediation that Lima was moving to Lawrence and that eventually Carmin wanted to move with him and Ciara to California, the defendant conducted a search for "highway 40" and "Topeka." The links that followed illustrated how to drive from Topeka to Lawrence without using the Kansas Turnpike.

Ten months after her death, the State charged Thomas Murray with first-degree murder for killing Carmin. After a 4-week trial, the jury found the defendant guilty of first-degree murder. The court sentenced him to life in prison with the possibility of parole after 25 years. Murray now appeals his conviction.

I. Prosecutorial Misconduct During Closing Argument

The defendant argues that the State committed prosecutorial misconduct during closing argument by misstating the evidence relating to the DNA analysis of the blood spot found in Carmin's bathroom and by misconstruing testimony of GayLynn Crossley-Brubaker.

The defendant did not object to either of the prosecutor's comments that he now claims were problematic. Ordinarily, a party must make a timely and specific objection to an alleged error in order to preserve the issue for appellate review. See K.S.A. 60-404; State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). However, when a defendant's claim for prosecutorial misconduct implicates his or her right to a fair trial, an appellate court reviews the alleged misconduct under the same analysis, regardless of whether an objection was made. State v. Swinney, 280 Kan. 768, 779, 127 P.3d 261 (2006). We have found that a defendant's right to a fair trial is implicated when a prosecutor misstates facts or states facts not in evidence. See State v. Conway, 284 Kan. 37, 43-44, 159 P.3d 917 (2007); State v. Ly, 277 Kan. 386, 392-93, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004).

Standard of Review

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. Swinney, 280 Kan. at 779. In its plain error 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 779-80.

When a defendant claims that a prosecutor committed reversible misconduct, the prejudicial nature of alleged errors is analyzed in the context of the trial record as a whole. State v. Whitaker, 255 Kan. 118, 134, 872 P.2d 278 (1994).


Comments Regarding DNA Analysis

According to the defendant, the prosecutor committed reversible misconduct when she stated during the State's initial closing argument segment that there was "[b]lood in the house. His [the defendant's] blood, her [Carmin's] bathroom. Defendant killed Carmin." The defendant asserts that this statement misrepresented the results of the DNA tests relating to the blood stain on the floorboard of the bathroom, which were inconclusive as to whether the blood belonged to the defendant.

This court has previously explained that during "closing argument, the prosecutor may draw reasonable inferences from the evidence but may not comment upon facts outside the evidence. [Citation omitted.]" (Emphasis added.) State v. McCray, 267 Kan. 339, 351, 979 P.2d 134 (1999). More recently, the court stated:

"The fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence. It is clearly improper for the prosecutor to state facts that are not in evidence. When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met, and an appellate court must consider whether the misstatement of fact constitutes plain error." Ly, 277 Kan. 386, Syl. ¶ 4.

The defendant argues that the prosecutor's statement during closing argument that his blood was found in Carmin's bathroom was a misstatement of the evidence. In particular, the defendant asserts that the prosecutor's statement was inconsistent with the report from the DNA analysis of the bloodstain found on the baseboard of Carmin's bathroom, which stated that no conclusion could be drawn as to whether the bloodstain matched the defendant's DNA.

The State counters that the question of whether the bloodstain in the bathroom matched Murray's DNA was a hotly contended issue of fact. The State points to testimony and other evidence indicating that the blood on the baseboard was Murray's, claiming that the prosecutor was free to argue reasonable inferences from that evidence--namely, that the defendant's blood was found in the bathroom. In addition, the State claims that any possible error in the statement was cured since the court instructed the jury that the remarks of counsel in closing arguments are not evidence.

Our review of the record in this case reveals that there was evidence to support the prosecutor's statement that the defendant's blood was found in Carmin's bathroom. A drop of blood containing male DNA was found at the baseboard. After conducting a Y-STR analysis to isolate the male DNA, Dr. Sudhir Sinha, who conducted the analysis of the bloodstain, testified that according to scientific policies, the presence of one particular "peak" in the DNA of the bloodstain that did not match the defendant's sample, as well as the relatively weak nature of some of the peaks in the unknown sample, required Dr. Sinha to report that no conclusion could be drawn regarding the correlation between the unknown sample and the defendant's DNA. However, the doctor testified that the inconclusive results of the analysis were probably due to the location of the bloodstain--the bathroom baseboard--as a number of people would use that bathroom and the sample would be diluted and mixed over time. The doctor also testified that in his professional opinion and from his experience, the bloodstain DNA from Carmin's bathroom was consistent with the defendant's DNA:

"Q: [Prosecutor] Doctor, based on your experience, do you have an opinion with a reasonable degree of scientific certainty whether Tom Murray's DNA is consistent with the baseboard sample?

"A: [Dr. Sinha] Well, as far as our standard quality control we gave the result inconsistent, inconclusive. But as far as my experience looking at it and looking at the data and doing several times and always finding the fifteen there, and that it's my scientific opinion that, yes, he is not excluded, and the result looks consistent that out of the mixture he could be one of the person[s] there present."

In addition, the doctor testified that other DNA tests specifically excluded other men who could be connected to the bathroom, such as Lima, because the tests showed no correlation between the DNA samples. However, the defendant's sample resulted in a strong enough correlation to the unknown sample that scientific policies would not exclude Murray as a possible contributor--it was just not conclusive according to scientific standards.

Moreover, in his initial interview with the police after he learned of Carmin's death, the defendant stated that he would "guarantee that you'll [the police] find a drop of my [the defendant's] blood" in Carmin's bathroom. The defendant then explained that he had cut open a callus when he was at Carmin's house on the Tuesday before her death and had cleaned up the blood with a towel in the bathroom. The record indicates that the towel rack that would have held this towel (which was not found in the ...

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