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State v. Drayton

February 1, 2008; as amended February 22, 2008, and March 17, 2008

STATE OF KANSAS, APPELLEE,
v.
PAUL D. DRAYTON, APPELLANT.



SYLLABUS BY THE COURT

1. If a party's motion in limine is granted to exclude the admission of certain evidence at trial, but the party does not object to the admission of such evidence at trial, then the issue is not preserved on appeal.

2. An appellate court employs a two-part test to evaluate alleged violations of a motion in limine: (1) Was there a violation of the order in limine and (2) if the order in limine is violated, did the testimony substantially prejudice the defendant?

3. 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. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.

4. When a defendant opens an otherwise inadmissible area of evidence during examination of witnesses, the prosecution may then present evidence in that formerly forbidden sphere.

5. A witness may not express an opinion on the credibility of another witness. The determination of the truthfulness of a witness is for the jury.

6. A trial court has no discretion as to whether to allow a witness to express an opinion on the credibility of another witness; such evidence is inadmissible as a matter of law.

7. A witness may not express an opinion on the guilt or innocence of the defendant. The determination of guilt or innocence is for the jury.

8. A trial court has no discretion as to whether to allow a witness to express an opinion on the guilt or innocence of the defendant; such evidence is inadmissible as a matter of law.

9. Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial.

10. 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.

11. 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, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.

12. Under the facts of this case, the prosecutor did not commit reversible misconduct during closing argument.

13. An accused may remain completely silent and is under no duty to volunteer his or her exculpatory story. Thus, he or she should be afforded the same right after some discussion with police when he or she remains silent as to matters later asserted at trial. Accordingly, a prosecutor cannot impeach a defendant's story told for the first time at trial, when the defendant carried on limited discussion with police after arrest but remained silent as to matters subsequently asserted at his or her trial.

14. It is constitutionally impermissible for the State to elicit evidence at trial of an accused's post-Miranda silence. 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 right to remain silent.

15. A Doyle violation is not committed by impeaching a defendant's trial testimony through use of a prior inconsistent statement given after he or she was provided Miranda warnings.

16. It is the jury's prerogative to determine the weight to be given the evidence and the reasonable inferences to be drawn from the evidence.

17. 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.

18. Under factual circumstances, where the defendant stabs his victim and later decides to take and remove the victim's wallet and van, and the act of force and the taking of the property are so connected as to form a continuous chain of events so that the prior force makes it possible for the defendant to take the property from the victim's body without resistance, these facts are sufficient to convict defendant for the crime of theft.

19. K.S.A. 2006 Supp. 22-4513 clearly requires a sentencing judge in determining the amount and method of payment of the State Board of Indigents' Defense Services (BIDS) reimbursement, i.e., at the time the reimbursement is ordered, to take account of the financial resources of the defendant and the nature of the burden that payment of such sum will impose. The language is mandatory; the legislature stated unequivocally that this "shall" occur.

20. Under the facts of this case, the district court erred in ordering the defendant to fully reimburse BIDS when the court essentially found that he would not have the financial ability to pay the amount ordered.

Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge. Affirmed in part and reversed in part.

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

Paul Drayton directly appeals his convictions of first-degree murder and felony theft. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

The issues on appeal, and this court's accompanying holdings, are as follows:

1. Did the State violate an order in limine by introducing testimony suggesting Drayton was incarcerated when detectives interviewed him? No.

2. Did the district court commit reversible error in allowing a police detective essentially to testify that, were he innocent, he would have responded to police questioning differently than Drayton did? No.

3. Did the prosecutor commit reversible error by eliciting testimony from a police detective that Drayton had invoked his right to silence and by using that invocation to impeach his credibility in closing argument? No.

4. Was the evidence insufficient to support a theft conviction because the State could not prove that the murder victim, who owned the van, was alive at the time of its taking? No.

5. Did the district court err in ordering Drayton to reimburse BIDS for attorney fees in the amount of $7,110, when it essentially found that he would not have the financial ability to pay? Yes.

Accordingly, we affirm the convictions but reverse the district court's attorney fees assessment.

FACTS

Paul Drayton was released from the Sedgwick County Adult Detention Facility on May 30, 2002. That same day he visited a friend, James Mayberry. After the two men engaged in sexual relations, Drayton discarded his condom in a trash can in Mayberry's bathroom.

The next day, a large blue plastic grocery/trash bag was found by the Magetti family near their curb in Wichita, approximately 2 to 3 miles from Mayberry's house. While they first saw it as they were leaving for work at approximately 8 a.m., they did not look more closely until returning home at approximately 4 p.m. Upon seeing the contents, the Magettis called the police.

The police found that the bag contained two knives with dried blood, wadded bloody paper towels, a used condom, and a wallet containing Mayberry's driver's license but no money. The police then went to Mayberry's house. They found no sign of forced entry but did find Mayberry nude, bloodied, and dead in his bed, with multiple wounds to his neck and chest. In the bedroom was a box of condoms and a roll of paper towels, like those found in the grocery/trash bag. The police noted that Mayberry's van was missing, which they later found--with the key in the ignition--a few blocks from the Magettis' house. The van had been seen there with its lights on as early as 4 a.m. that day by a neighborhood resident.

DNA profiles were later obtained from the condom found in the bag. Most of the DNA from the condom exterior proved to be Mayberry's, while the DNA profile from the semen in the condom interior was found to be a possible match to Drayton.

Approximately 18 months later, in December 2003, Wichita Police Detective Kelly Otis traveled with Detective Mark Gantt to interview Drayton in Texas where he was incarcerated for another crime. After Detective Otis advised Drayton of his rights, he agreed to speak with Otis. After approximately 50 minutes of interviewing, Drayton requested that it end.

A buccal swab was taken from Drayton after the interview. The DNA from that swab was matched to the profile of Drayton earlier obtained from the used condom. Drayton was then charged with first-degree murder and felony theft.

At trial, the coroner established that Mayberry died from multiple stab wounds to the neck and chest. The DNA samples from the condom were introduced and established as those of Mayberry and Drayton.

John Bailey, a mutual friend of Drayton and Mayberry, testified that in July 2002, a few months after the murder, Drayton telephoned him. When Bailey advised Drayton that Mayberry had been murdered, Drayton replied that he had not been in Wichita that weekend and asked that Bailey not tell anyone where he was.

Detective Otis testified that during the Texas interview with Drayton:

1. Drayton stated initially that he went straight from the county detention facility to the bus station and directly to Texas, without stopping to visit anyone in Wichita. Upon further questioning, however, Drayton then admitted that he had visited Mayberry.

2. Drayton said Mayberry had been sick, they had talked about a friend, and Mayberry then showed him Mayberry's recently acquired used van. Initially Drayton said he just looked at the van from the outside. After Otis falsely told Drayton that his fingerprints had been found inside the van on the steering wheel, however, Drayton then admitted that he had sat in the driver's seat but had not driven it.

3. Drayton said he left Mayberry's house the evening of his visit, walked the few miles to the bus station, and took the 11 p.m. bus to Dallas.

4. Drayton said that he and Mayberry had no sexual contact, asserting that he (Drayton) "was not that way."

5. Drayton did not say whether he was aware that Mayberry had been killed (Otis eventually told him that Mayberry had been), nor did Drayton ask Otis why he had come to Texas to interview him.

6. When Drayton asked for an attorney, Otis ended the interview. But Drayton then volunteered: "I don't know why you think I would kill him, I had my own money." However, neither Mayberry's wallet nor possibly missing money had been mentioned during the interview.

After Drayton's objection to Otis' testimony about the Texas interview was again overruled, Drayton then testified:

1. He did have sex with Mayberry during his visit on May 30, 2002. He had not admitted this conduct to Detective Otis during the Texas interview because he was very private about his sexuality.

2. He had left Mayberry's house around 7 p.m., and Mayberry was not feeling well when he left. He had walked the few miles back to the bus station, spent the night in and around that station, and left on the 11 a.m. bus the next day for Dallas.

3. He often got a.m. and p.m. mixed up, but he had told Otis during the Texas interview that he had left Wichita on a bus at 11, without specifying either a.m. or p.m.

A contractor for Greyhound Bus Lines in Wichita testified that when Drayton traveled from Wichita to Dallas in May 2002, only three buses made that trip. They left Wichita at 5:15 a.m., 12:25 p.m., and 5:45 p.m.

Drayton was convicted and sentenced to life imprisonment without the possibility of parole for 25 years for first-degree murder and 7 months' imprisonment for theft, to be served consecutively.

Additional facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: The State did not violate an order in limine by introducing testimony suggesting Drayton was incarcerated when detectives interviewed him.

Drayton's brief asserts that the State violated an order in limine when Otis referenced the Texas facility and its guards in his testimony and that the violation constitutes reversible error. The State responds that the issue has not been preserved for appeal because Drayton did not object at trial to Otis' references. See State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (if a party's motion in limine is granted to exclude the admission of certain evidence at trial, but the party does not object to the admission of such evidence at trial, then the issue is not preserved on appeal). In the alternative, the State argues that any error was harmless.

We agree with the State that the issue has not been preserved for appeal. While Drayton tried to avoid the trial objection requirement by reframing the issue at oral arguments as prosecutorial misconduct, we will not accept this late characterization.

Even if the issue were preserved for appeal, we hold that no order violation occurred; even if so, it caused no substantial prejudice to Drayton. See State v. Gleason, 277 Kan. 624, 640, 88 P.3d 218 (2004) ("'We employ a two-part test to evaluate alleged violations of a motion in limine: [1] Was there a violation of the order in limine and [2] if the order in limine was violated, did the testimony substantially prejudice the defendant?'").

No order violation

Drayton's actual motion in limine requests an order "restricting the State from admitting certain evidence . . .

"1. That the Defendant's prior criminal record . . . is immaterial, irrelevant, and inadmissible for the purpose of impairing his credibility as a witness . . . pursuant to K.S.A. 60-421.

"Furthermore, any evidence of a trait of the Defendant's character as tending to prove his guilt of any of the offenses charged, if offered by the State to prove guilt, may only be admitted after the Defendant has introduced evidence of his good character pursuant to K.S.A. 60-447(b)(ii). If such information were made known to the jury, it would be improper, unduly prejudicial and erroneous. Moreover, the prejudice and harm could not be erased by the court sustaining an objection and/or instructing the jury to disregard such evidence.

"3. The State has not filed a motion pursuant to K.S.A. 60-455 for the purposes of admitting into evidence the Defendant's prior criminal history. Any attempt to admit the same at trial would be substantially prejudicial to the Defendant and such could not be erased by the court sustaining an objection and/or instructing the jury not to consider evidence of any prior criminal history." (Emphasis added.)

There is no written order contained in the record on appeal, but later discussion of the actual motion consisted of this very brief exchange:

"THE COURT: Anything else? You had one, Mr. Brown [Drayton's Attorney]?

"MR. BROWN: Motion in limine for us, going into what he was convicted of.

"THE COURT: Motion in limine then to follow the law.

"MR. BROWN: Unless I let the cat out of the bag." (Emphasis added.)

The following exchange about the Texas interview occurred during direct examination of Otis during the State's case-in-chief:

"Q: And could you explain to the jury this interview that you had with Mr. Drayton? What was the size of the room?

"A: The room was -- I don't know what its official name was -- it was almost like a dayroom or visiting room.

"Q: Okay.

"A: It consisted of several tables, vending machines. The room was probably slightly larger maybe than this courtroom. The room at the time of the interview was empty. The guards had allowed us to have access to that room in the facility. We interviewed Mr. Drayton in that room. It was like a lunchroom." (Emphasis added.)

Drayton points to the italicized words and asserts that by mentioning "guards" and using the terms "visiting room" and "facility," Detective Otis "violated the order in limine by indirectly informing the jury that Mr. Drayton was in a secure facility with guards at the time of the interview" to convey that Drayton was in jail. He also asserts that the State, recognizing the impact of such information, agreed to keep ...


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