Appeal from Crawford district court; DONALD R. NOLAND, judge.
1. A defendant accused of murder may be prosecuted in either the county where the injury that was the cause of death was inflicted or in the county where the victim died.
2. K.S.A. 22-2611 creates a rebuttable presumption that the victim died in the county where the victim's body was found. However, that presumption does not relax the State's burden of overcoming the defendant's presumption of innocence. The State retains the burden of proving all of the elements of the crime.
3. When the State is relying on the statutory presumption to establish venue in the county where a deceased victim's body was found, the jury should be instructed that it must find that the act of murder occurred in that county and be additionally instructed on the statutory place of death presumption.
4. Evidence of a person's habit or custom is admissible if it tends to prove that the person's behavior on a specified occasion conformed to the habit or custom. A habit may be proved by opinion testimony or by evidence of specific instances of behavior.
5. A lay witness may provide testimony in the form of opinions or inferences if the presiding judge finds that the opinions or inferences may be rationally based on the witness' perception and that they are helpful to a clearer understanding of the witness' testimony. K.S.A. 60-456(a).
6. Where the defense elicits allegedly inadmissible testimony from a witness and presents arguments to the jury as to the inferences to be drawn from that testimony, it is not prosecutorial misconduct for the State to present arguments on that same testimony.
7. Where the defendant fails to request a limiting instruction on evidence admitted pursuant to K.S.A. 60-455, appellate review of the failure to give the limiting instruction utilizes the clearly erroneous standard. Instruction errors are clearly erroneous only if the reviewing court is firmly convinced that there was a real possibility that the jury would have rendered a different verdict if the instruction error had not occurred.
8. Impeaching a defendant with his or her post-Miranda silence violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The State may not 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 law enforcement officers, but instead invoked his or her constitutional right to remain silent.
9. Where the trial court has been in a position to avert error by ruling on the admissibility of evidence, the rationale of the contemporaneous objection rule has been met.
10. 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 or her a fair trial, even if the trial was imperfect in some respects.
The opinion of the court was delivered by: Johnson, J.
Paul C. Hunt appeals his conviction for first-degree, premeditated murder in the death of his mother. Hunt's principal complaint involves the question of where the crime occurred. He also raises questions about the admissibility of evidence and the jury instructions, as well as claims of prosecutorial misconduct. Although we find some error in the conduct of the trial, we affirm the conviction.
On Sunday, June 23, 2002, family members of Mary Sue Taylor, a resident of Fort Scott, Bourbon County, Kansas, reported to law enforcement that Taylor could not be located. Taylor's vehicle was parked in the driveway, her house was unlocked, the television was on, and items that she would normally take with her were still in the house. Nothing appeared out of the ordinary inside or outside the house. Neighbors reported last seeing Taylor the morning of June 20. Taylor had not appeared at her job on June 22 and 23.
At the time of the disappearance, Hunt and his minor child, Ryan, had been living with Taylor, albeit Hunt and his mother had a volatile, contentious relationship. Hunt told police that he last saw his mother at about 10:40 p.m. on June 20, before he left for work. Upon completing his shift on the morning of June 21, Hunt did not return to his residence before going to the house of his girlfriend, Tammy Rees, in Cartersville, Missouri. His son, Ryan, was also out of town, visiting maternal grandparents. After spending the weekend with Rees, Hunt returned to the Fort Scott home about 10:30 p.m. on Sunday, June 23, where the investigation into Taylor's whereabouts had commenced.
Several days later, on June 29, Taylor's body was found floating in a strip pit in Crawford County. The body was wrapped in a gray tarp which was tied with rope and taped, and the tarp-wrapped body was inside a sleeping bag which had also been wrapped with rope and tape. A rope was around the victim's neck. The coroner opined that Taylor died of ligature asphyxiation and ruled the death a homicide, albeit he could not determine the date of death. The coroner described the manner in which the body had been wrapped and secured with rope and tape as a fairly complicated and involved mechanism.
Hunt's behavior both before and after the discovery of Taylor's body caused some suspicion. The weekend of Taylor's disappearance, Hunt took some of Taylor's clothing to his girlfriend, saying that his mother wanted the girlfriend to have it. He also brought camping equipment and stored it in his girlfriend's shed. Later testing revealed that two ropes found with the equipment were consistent with the color, construction, and chemical composition of the rope around the victim's neck.
On the day before the discovery of the body, Hunt and a friend were leaving a convenience store in Missouri when police stopped Hunt's pickup. Hunt declared to his friend: "[M]an, I'm in trouble," and fled afoot after imploring his friend not to disclose that Hunt was driving. The police did not pursue Hunt, and the friend thought Hunt was concerned about being arrested for driving under the influence.
The day after the body was discovered, Hunt called his girlfriend to say that he was leaving town. He left his son with a brother but did not tell family members he was leaving. The following day he asked his girlfriend to bring soda and cigarettes to a park in Joplin, Missouri, where he planned to spend the night. He then rode a freight train to Kansas City, but then hitched a ride on a southbound freight train, eventually winding up in Emporia. There, he called his brother, Patrick, on July 4 asking Patrick to get him a motel room and to provide him with a ride back to Fort Scott.
Hunt did not attend his mother's funeral, ostensibly because his brother, Patrick, and an uncle were accusing Hunt of being the murderer. Hunt subsequently left the Fort Scott area, first going to live with Ryan's maternal grandparents in Missouri. He was in Pennsylvania when he was arrested in March 2005.
Police also located a witness who had observed a pickup truck parked in a low-lying area, adjacent to a strip pit situated on the Missouri side of the Missouri-Kansas border, near evening on June 20, 2002, the last day that Taylor was seen alive. The witness, who owned land containing strip pits in the area, proceeded to investigate whether someone was fishing on his land. As the witness approached the pickup, he observed a person initially standing next to the passenger door who then entered the pickup on the driver's side. Upon making contact with the pickup driver, the witness observed a motionless person in the passenger seat covered with a blanket or sleeping bag. In answer to the witness' inquiry, the pickup driver said the passenger was his sleeping fiancée. Being suspicious of a person being covered up with a blanket in hot weather, the witness went to the local sheriff's office to report his concerns. At trial, the witness could not identify Hunt, other than to say that he was about the same size as the pickup driver. Likewise, the witness' recollection of the pickup was limited to describing it as being a dark color which comported with the color of Hunt's pickup.
Because Taylor's body was discovered in Crawford County, Hunt was tried in that county. The jury convicted him of first-degree, premeditated murder.
Hunt's first four issues involve the question of where the act of first-degree murder occurred, i.e., whether Crawford County was the proper venue. Venue must be proved to establish the jurisdiction of the court; it is a question of fact to be determined by the jury, albeit the existence of jurisdiction is a question of law, subject to unlimited appellate review. State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006).
Although the State argued at trial that the act which caused Taylor's death occurred in the Bourbon County residence, the charging instrument alleged:
"That on or about June 20, 2002, Paul C. Hunt, did, in Crawford County, Kansas, contrary to the statutes of the State of Kansas, unlawfully, feloniously, intentionally, and with premeditation kill a human being, to wit: MARY 'SUE' TAYLOR, in violation of K.S.A. 21-3401(a)." (Emphasis added.)
The Kansas Constitution Bill of Rights, § 10 provides, in relevant part: "In all prosecutions, the accused shall be allowed . . . a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." (Emphasis added.) Statutorily, the place of a criminal trial is designated as follows: "Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed." (Emphasis added.) K.S.A. 22-2602.
A specific statute deals with the situation in which death and the cause of death occur in different places: "If the cause of death is inflicted in one county and the death ensues in another county, the prosecution may be in either of such counties." K.S.A. 22-2611. The same statute creates a presumption to assist in determining venue in murder cases. Specifically, "[d]eath shall be presumed to have occurred in the county where the body of the victim is found." K.S.A. 22-2611.
Hunt contends that (1) the evidence was insufficient to establish that the crime occurred in Crawford County; (2) he was denied his constitutional right to be tried in the county where the crime allegedly occurred; (3) the jury instructions were clearly erroneous in omitting the essential element of venue; and (4) the jury instructions were clearly erroneous in omitting an instruction on the presumption provided by K.S.A. 22-2611.
Sufficiency of the Evidence
Hunt argues that the evidence was insufficient to establish the venue element of first-degree murder, in that the State did not prove that the murder occurred in Crawford County, as opposed to Bourbon County. Our familiar review standard requires us to "consider all of the evidence, viewed in a light most favorable to the prosecution." See State v. Parker, 282 Kan. 584, 597, 147 P.3d 115 (2006).
Hunt does not appear to challenge the venue rule of K.S.A. 22-2611 that a murder is deemed committed in either the county where the injury that was the cause of death was inflicted or the county in which the death ensued. Obviously, one cannot have committed the crime of murder until the victim dies. Likewise, Hunt acknowledges that the statutory presumption that the death occurred in the county where the victim's body was found has been approved by this court as a practical necessity. See State v. McKibben, 239 Kan. 574, 578, 722 P.2d 518 (1986).
Hunt's challenge focuses on the State's closing argument, in which the prosecutor inexplicably suggested that Taylor was dead when Hunt wrapped her in the tarp and sleeping bag at the Fort Scott, Bourbon County, residence. One might find it curious that a prosecutor relying on a presumption that death occurred in Crawford County to establish an essential element of the charged crime would present a scenario in closing argument which contradicts the presumption. On the other hand, Hunt's attorney argued that the undisturbed condition of the residence and other evidence presented at trial contradicted the State's proffered scenario and declared that there was "no physical evidence of any kind that the State has presented . . . that Mary Sue Taylor died in that [Fort Scott] house." In other words, the prosecutor appeared to argue against the presumption, while the defense argued that the evidence was consistent with the presumption.
Nevertheless, Hunt's argument falters because he attempts to equate the prosecutor's arguments with the State's evidence. A prosecutor's supposition as to what might have happened is not a substitute for evidence, and the jury was advised accordingly. Instruction number two specifically advised the jurors that "[s]tatements, arguments and remarks of counsel . . . are not evidence."
The parties stipulated that it was Taylor's dead body which was found in the Crawford County strip pit on June 29, 2002. That evidence was sufficient to trigger the statutory presumption that Taylor died in Crawford County and present a prima facie showing of the venue element of the murder charge. Contrary to Hunt's contention, the State's evidence did not rebut the presumption. Indeed, the coroner could not pinpoint the day on which Taylor died, much less the place of death. When viewed in the light most favorable to the State, the evidence was sufficient to establish that, legally, the murder occurred in Crawford County.
Hunt contends that, alternatively, he was denied his constitutional right to have his case tried in the county where the crime allegedly occurred, as was guaranteed to him by the Kansas Constitution Bill of Rights, § 10. Hunt concedes that he did not object to venue in the district court on any basis, much less raise a constitutional question. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (constitutional grounds for reversal raised for the first time on appeal are not properly before the appellate court).
Nevertheless, the argument is factually flawed. Hunt relies on the prosecutor's statements in closing argument to support the argument that the State was alleging the offense occurred in Bourbon County. However, the complaint filed against Hunt clearly alleged that the act of murder occurred in Crawford County. The prosecutor's statements in closing argument, while arguably ill-advised or counterintuitive, cannot trump the official charging instrument so as to alter or modify the county in which the offense was alleged to have been committed. Thus, Hunt was afforded exactly what the Kansas Constitution guarantees, i.e., a speedy public trial by an impartial jury of the county in which the offense was alleged to have been committed in the official charging instrument.
In his third and fourth issues, Hunt challenges the manner in which the district court instructed the jury on the venue element of the murder charge. He first asserts that the trial court erroneously accepted the State's proffered modification to the elements instruction for murder and thereby effectively omitted the essential element of venue from the jury's consideration. Next, Hunt contends that the ...