Appeal from Wyandotte district court, J. DEXTER BURDETTE and ROBERT L. SERRA, judges.
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 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.
2. In the second step of the two-step prosecutorial misconduct 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.
3. An appellate court will not independently search the record and guess which specific facts a party believes support its general allegations.
4. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness' veracity rests solely with the jury.
5. It is a party's obligation to provide an adequate record on appeal and to direct the appellate court with specific references within such a record.
6. As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.
7. The admission of photographs in a homicide case is a matter within the trial court's discretion.
8. An appendix to a brief is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself. An appellate court does not consider appended items which are not contained in the record.
9. When an objection has been made to instructions at the trial court level and on appeal, an appellate court is required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
10. When a party failed to object at the trial court to the giving of an instruction, the appellate court must determine whether the instruction was "clearly erroneous." Instructions are clearly erroneous if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
11. While a trial court is required under K.S.A. 22-3420 to accede to a jury's request to read back testimony, the statute does not foreclose all trial court discretion as to the manner of acceding to the request. The trial court has the discretion to control the read-back.
12. Generally, claims for ineffective assistance of counsel cannot be brought for the first time on appeal where the trial court has not had the opportunity to conduct the factual inquiry.
13. A trial court's refusal to appoint new counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the trial court. The burden is on the party alleging the abuse.
14. To warrant substitute counsel, an indigent defendant must show "justifiable dissatisfaction" with appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. But ultimately, as long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.
15. In order to determine whether to appoint new counsel, the district court must conduct some type of investigation.
16. Where the trial court becomes aware of possible conflict of interest between a defendant charged with a felony and his or her attorney, the court has a duty to inquire further.
17. Whether a disciplinary complaint creates an actual conflict of interest depends upon the nature of the complaint.
The opinion of the court was delivered by: Nuss, J.
Timothy C. Bryant directly appeals his jury convictions of felony murder and aggravated robbery. 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 prosecutor engage in misconduct during closing argument? No.
2. Did the district court err in admitting evidence of Bryant's purported prior crimes? No.
3. Did the district court err in admitting autopsy photographs? No.
4. Did the district court err in instructing the jury? No.
5. Did the district court err in its read-back of testimony to the jury? No.
6. Did the district court err in denying Bryant's motion to change counsel? No.
Accordingly, we affirm the district court and convictions.
On January 14, 2005, a Hispanic male, Gustavo Ramirez-Mendez (Gus), was severely beaten and robbed of $23 in Kansas City. Six days later Gus died of blunt force trauma to the head. The defendant, Timothy Bryant, and Walter L. Anderson, both black males, were arrested and charged with aggravated robbery. Within a week the complaint was amended to add one count of felony murder.
Evidence at trial revealed the following events surrounding Gus' robbery and murder. In the evening of January 14, 2005, several friends and family members gathered at the apartment of Bryant's mother, Rosie, in Kansas City, Kansas. Bryant, Anderson, and Gus were three of the individuals present. Gus worked as the maintenance man for Rosie's apartment complex.
Rosie's grandson, Kevin, gave Gus a ride to cash his check that evening. With some of the proceeds Gus then bought alcohol for Rosie and some of the other guests.
Shortly after 10 p.m., Rosie told everyone to leave because she was tired. She was additionally sick of Anderson pestering Gus for money; Anderson was also encouraging Gus to go to a bar with him. Rosie told Anderson to leave Gus alone and go home.
A short time after the party ended, Miguel Rodriguez and his mother-in-law, Otilia Dominguez, called police and reported that they had seen a disturbance in the complex near Rosie's apartment. Responding police found Gus bleeding and in and out of consciousness. His shoes and socks had been pulled off, his pockets had been pulled out, and the contents of his wallet were strewn over the area.
Bryant testified that on the night of the robbery, Kevin had taken Gus to cash his check around 8 p.m. Gus had told people at the party about his check because he was upset that more than half of its amount had been garnished. Sometime that evening Anderson asked Bryant whether Gus had any money.
According to Bryant, he heard his mother tell Anderson to leave her apartment because Anderson was pestering Gus and Rosie for money. Bryant then left Rosie's apartment and headed home. He stopped at a party along the way, and Anderson followed him there.
Bryant testified that he did not want Gus to go to a bar or for Anderson to take Gus' money so he decided to walk Gus home. He, Anderson, and Gus all walked to Gus' apartment. When Bryant left Gus' apartment, Anderson told him to "just go ahead and leave and let me do what I got to do." Bryant understood that Anderson was going to take Gus' money, so Bryant left.
Bryant further testified that as he was walking home, he heard Anderson call his name. He headed back toward Gus' apartment and saw Anderson removing Gus' socks. Bryant also saw Otilia nearby watching Anderson. Bryant then ran because he knew that Otilia would call the police.
According to Bryant, he ran and hid because he had just been released from prison a few days before. He believed he would be arrested when the police asked him for identification because warrants were still outstanding against him. Bryant repeatedly referred to his recent incarceration.
Bryant testified that after he ran, Anderson told him that he had stolen $23 from Gus. Anderson told him that if he bought drugs with the money, Anderson knew someone who would let them spend the night at her house. After Anderson bought some crack, Bryant "[took] a hit of the crack."
Otilia testified that she had been visiting from out of town that night. She heard knocking on the door around midnight. Otilia did not open the door but looked out the peephole and saw an arm break out the porch light. She notified Miguel, and they called the police.
Otilia first told police, however, that two black men had attacked Gus. At the preliminary hearing, she became more vague, and by trial, she claimed that she could not see much out of the peephole and had just originally thought there were two black men. Otilia also changed her story about the color of the sleeve on the arm breaking the light. Eventually, at trial Otilia could not tell how many individuals were involved, the color of their skin, what color clothes they were wearing, or whether they were male or female.
Officer Amy Sillings testified that on the night of the incident, Otilia told her that a Hispanic man had been followed up the stairs by two black men, and one of the black men broke out the porch light. According to Sillings, Gus told officers on the scene, through Miguel's interpreting, that two men attacked him and took his money.
Officer Mark Bundy also testified that Otilia told him that she had looked through the peephole because someone was banging on the door. She then saw Gus. Otilia said she saw a black man push Gus out of the doorway and break the light. She said she also saw another black man at the bottom of the staircase. According to Bundy, Gus told the officers, again through Miguel, that Gus was walking through the complex when two black men hit him in the face and head and took his money.
Officer Kelly Herron testified that Otilia told him that she heard a knock at the door, so she looked out the peephole. She saw two black men and a Hispanic man outside the door. Then one of the black men punched out the light.
Officer Richard Glenn Nepote testified that Miguel told him that Gus said he was beaten by two black men; Gus thought it was ...