Appeal from Sedgwick district court; WARREN M. WILBERT, judge.
1. Review of an allegation of prosecutorial misconduct requires a two-step analysis: First, the 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. In the second step of the prosecutorial misconduct analysis, the court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was 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 and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), have been met.
3. Propounding a question which invites the witness to comment on the weight the witness would assign to the testimony of another witness' inconsistent testimony is improper. It is the jury's function to determine what weight and credit it will give to each item of evidence presented.
4. The prosecutor is allowed to make fair comment on trial tactics and the interpretation of evidence, so long as care is taken not to inappropriately disparage opposing counsel or inject personal evaluations of the honesty of witnesses.
5. A defendant's not guilty plea places in dispute all of the elements of the crime and requires the State to prove each and every element beyond a reasonable doubt. A lay witness opinion as to the existence of any element of the crime does not relieve the State of its duty to prove that element.
6. After an exhibit is admitted into evidence without objection or limitation, the jury may consider it as evidence in the case and shall determine the weight and credit to assign to the exhibit.
7. To warrant the appointment of new trial counsel, a defendant must show justifiable dissatisfaction with his or her currently appointed attorney. Justifiable dissatisfaction may be demonstrated by showing that the current attorney has an actual conflict of interest, that an irreconcilable conflict has arisen between the defendant and the current attorney, or that a complete breakdown in communications between the defendant and the current attorney has developed. A defendant's dissatisfaction with the amount of attention the current attorney has bestowed upon the defendant does not necessarily rise to the level of a conflict of interest or an irreconcilable conflict.
8. Within the sound discretion of the trial court, crime scene photographs may be admitted for the purpose of identifying the victim.
9. To warrant a mistrial for the State's violation of an order in limine, the defendant has the burden of showing that the prohibited testimony substantially prejudiced the defendant. A trial court's denial of a motion for mistrial is reviewed under an abuse of discretion standard.
10. The aim of witness sequestration is to exercise a restraint on a witness tailoring his or her testimony to that of earlier witnesses. A violation of a sequestration order which does not prejudice the defendant does not mandate a mistrial.
11 An appellant has the burden to furnish a record which affirmatively shows the occurrence of the prejudicial error which the appellant claims. Without such a record, an appellate court can presume the error did not occur.
12. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction where the totality of circumstances reveals that the defendant was substantially prejudiced and denied a fair trial.
The opinion of the court was delivered by: Johnson, J.
Kim E. Crum appeals from his jury trial conviction for the first-degree premeditated murder of John Neal. Crum makes multiple claims of prosecutorial misconduct; complains about two exhibits; argues that he should not have been required to proceed with an appointed attorney with whom he had a conflict; contends that violations of an in limine order should mandate reversal; and asserts that cumulative error denied him a fair trial. Although Crum did not receive a perfect trial, we find that reversal of his convictions is not required.
In the early morning of January 1, 2005, Neal died of multiple blunt force and sharp force injuries. A number of people testified as to their respective recollection of the events surrounding the homicide. There were some inconsistencies in the various descriptions of the witnesses, especially as to the time of day that certain events occurred. However, Crum does not challenge the sufficiency of the evidence, so a full recitation of each witness' testimony is unnecessary.
Tamara Fainter lived in a triplex with her teenaged son, Colby Carson, and a daughter. Her boyfriend, Crum, was a frequent overnight guest. For a few weeks prior to the murder, Fainter had occasionally permitted Neal, who was homeless, to sleep on her couch. Often, Neal would arrive at Fainter's residence in an intoxicated condition which made him loud and talkative. If the other inhabitants were trying to sleep, they would admonish Neal to be quiet. Sometimes, Neal would take offense to the admonishments and leave the house for another friend's house or to pass out in the yard or in Fainter's car.
Fainter and Crum attended a New Year's Eve party, returning home early in the morning of the murder. Fainter testified that she was drunk and passed out. Carson arrived home later from another party. Subsequently, Neal appeared and began "preaching" to Carson, who responded by yelling at Neal to be quiet. The ruckus awakened Fainter, albeit she remained in bed. Neal eventually left the house.
According to Fainter and Carson, Crum got dressed and went outside shortly after Neal's departure. Later, the two heard yells or screams and went outside to investigate. Some time later, they observed Crum, ostensibly in possession of a piece of wood or handle. Carson said Crum went inside Fainter's house, then exited to walk toward an abandoned house next door.
Fainter then took Carson to the home of a friend, Jaimie Brown, but Carson soon returned home. Brown and her mother, Tami Spann, eventually came to the Fainter residence, and Spann purportedly discovered Neal's body in back of the adjacent abandoned building. Spann then returned inside the Fainter residence and confronted Crum, accusing him of the murder.
The police were called, but when they arrived, Crum hid in the attic for a time. A wooden handled hammer was located under a tree some distance from the site of the murder. DNA from the hammer matched Neal's DNA. Also, Neal's DNA was contained in blood and matter found on Crum's shoe. Crum told the police that he went to bed after the party and slept through the entire ruckus, and that his shoe was contaminated when he later went out to observe Neal's body. At the police station, Crum asked an officer how long the sentence was on a murder case.
Ultimately, a jury convicted Crum of the first-degree premeditated murder of Neal, and Crum received a hard 50 life sentence.
In his first two issues, Crum raises questions of prosecutorial misconduct, which triggers a two-step analysis: First, did the prosecutor exceed the bounds of permissible conduct. Second, if so, did the conduct constitute plain error; that is, did the statements or conduct prejudice the jury against the defendant and deny the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
"The second step requires three factors to be considered: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was 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 and Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), have been met. [Citation omitted.]" Albright, 283 Kan. at 428.
Attack on Defense Counsel
Crum's first challenge is to the prosecutor's rebuttal comments relating to defense counsel's closing argument. Defense counsel suggested to the jury that the truth never changes, but that false stories will change with each telling because it is difficult to remember what one has said previously. Defense counsel then reviewed the inconsistencies in the testimony of Fainter, Carson, Brown, and Spann, and argued the incredible nature of some of the testimony, such as Spann confronting Crum about killing Neal, rather than calling the police. The defense concluded:
"There are inconsistencies that are huge. Now, you see the pictures of the body and you see the size of my client and you see the size of Colby [Carson]. Who could have beaten him to death and dragged the body around the back? That's what you have to decide."
The prosecutor began the rebuttal closing argument by stating:
"You know, defense counsel can sit here and he can ridicule these people as much as he wants, he can use his little voices and say they said this, they said that, he can talk about them taking six steps and he can talk about them taking 10 steps. What he wants to do is he wants to belittle these people, he wants you to decide if I put myself in their shoes, which ladies and gentlemen, I'm not asking you to do, are they doing things that are stupid, are they being ridiculous. He's berating them. Nobody would be stupid enough to go back to where a killer is and yell at him, nobody would be stupid enough to try to keep the person they love from going to prison.
"Well, ladies and gentlemen, Tami Spann was on that stand and do you believe for a second that she wasn't actually gonna go in there and confront him? You saw her, she was gonna do it. And what's more, is that when he got on the stand he sat there and he said she did come in and yell at me. So is it that stupid for us to believe that they would act like that, when he said she did it? Is it necessary to belittle them and berate them for the ways their memories have changed?"
Crum argues that the prosecutor was attacking the defense counsel instead of addressing the inconsistencies in the witnesses' statements, which were the core of the defense. He asserts that the prosecutor's comments improperly shifted the jury's focus to a personal analysis of the defense counsel instead of an objective analysis of the evidence. In support, Crum cites to Florida cases where reversal was based on prosecutorial misconduct in closing argument, including attacks on the defense counsel. See, e.g., Adams v. State, 830 So. 2d 911, 915-16 (Fla. Dist. App. 2002); Lewis v. State, 780 So. 2d 125, 131 (Fla. Dist. App. 2001); Barnes v. State, 743 So. 2d 1105, 1108 (Fla. Dist. App. 1999). We find that the peculiar facts of those cases render them unpersuasive here.
Obviously, "[t]rials cannot be allowed to degenerate into name-calling contests." State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461, rev. denied 263 Kan. 889 (1997) (prosecutor called both defendant and defense counsel liars). However, fair comment on trial tactics and the interpretation of evidence is allowed, so long as care is taken not to "inappropriately denigrate opposing counsel or inject personal evaluations of the honesty of witnesses." State v. Mosley, 25 Kan. App. 2d 519, 525, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998). We perceive that the prosecutor's statements were fair comment on the defense tactic of suggesting to the jury that the inconsistencies in the testimony of the State's witnesses proved the testimony to be false. If the defense attempts to put the State's witnesses on trial, the prosecutor can point that out to the jury.
Further, in addressing the defense argument that Spann's story was illogical and incredible, the prosecutor was certainly within the bounds of fair argument to remind the jury that defendant's own testimony corroborated parts of Spann's testimony. Thus, we find that the prosecutor's comments were not outside the wide latitude ...