Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge.
SYLLABUS BY THE COURT 1. When a party seeks to admit hearsay testimony but fails to assert the ground upon which it would be admissible, the trial judge is not called upon to make the requisite findings for its admission into evidence. Under these circumstances, the party seeking to admit the evidence is precluded from asserting the ground for the first time on appeal as a basis for error. 2. A new legal theory for the admission of evidence may be considered for the first time on appeal where consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights. Such an issue does not arise if evidence, even evidence that is an integral part of the defense theory, is properly excluded under statutory rules and caselaw interpretation of the rules of evidence and procedure. 3. A failure to support an argument with pertinent authority or to show why the argument is sound despite a lack of supporting authority or in the face of contrary
authority is akin to failing to brief the issue. Therefore, an argument that is not supported with pertinent authority is deemed waived and abandoned. 4. The standard of review for the admission of photographic evidence requires an appellate court to first determine whether the photographs are relevant. If a party argues that the photographs are gruesome, inflammatory, prejudicial, or cumulative, the standard of review is abuse of discretion. The burden of showing an abuse of discretion rests with the party asserting the error. 5. Photographic evidence, like other evidence offered at trial, is relevant and generally admissible if the photographs have a reasonable tendency to prove a material fact in the case. Although autopsy photographs may sometimes be gruesome, those that assist a pathologist in explaining the cause of death are relevant and admissible. Nevertheless, admitting gruesome photographs simply to inflame the minds of the jurors is error, and the admission of unduly repetitious photographs can constitute an abuse of discretion. The key, as with prejudice, is the word "unduly." 6. A party who alleges error arising from a limitation of cross-examination by excluding evidence not found to be sufficiently probative of a material issue carries the burden of establishing an abuse of discretion. 7. Pattern Instructions for Kansas Crim. 3d 54.05, which instructs the jury regarding criminal responsibility for aiding and abetting the commission of a crime, clearly informs the jury a defendant is only responsible for actions occurring before or during the
commission of a crime, not future events, and is not erroneous because it does not contain a foreseeability requirement. 8. An appellate court will not consider new issues raised for the first time in a letter of additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49).
The opinion of the court was delivered by: Luckert, J.
The opinion of the court was delivered by LUCKERT, J.: Defendant Misty D. Tague appeals her jury trial convictions for felony murder, in violation of K.S.A. 21-3401(b), and aggravated robbery, in violation of K.S.A. 21-3427. She raises five issues in her brief and a sixth issue in a letter of additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49). The six issues are: (1) Did the trial judge err in excluding hearsay evidence relating to eyewitnesses who were unable to identify Tague in a photographic lineup? (2) Did the trial judge err in admitting Tague's out-of-court incriminating statements made to her best friend? (3) Did the trial judge err in admitting certain autopsy photographs at trial? (4) Did the trial judge abuse his discretion in not allowing defense counsel to cross-examine Tague's best friend, who was a witness for the State, regarding the friend's involvement in drug sales? (5) Did the trial judge err by giving an aiding and abetting instruction to the jury? and (6) Did the trial judge err in failing to give lesser included offense instructions?
We conclude the first, second, and sixth issues were not properly preserved or presented for review. Further, we hold that the trial judge did not abuse his discretion in admitting the autopsy photographs or in excluding evidence regarding the witness' involvement in drug sales. Finally, we conclude the trial judge did not err in giving the pattern jury instruction regarding aiding and abetting the commission of a crime. Consequently, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Tague's convictions stem from events that took place at a motel room in Sedgwick County on October 25, 2007. Around 1:22 a.m., law enforcement received a 911 call placed by a woman indicating her boyfriend had been shot. When officers arrived at the motel room, there were two women, Starrie Cross and Alexis Green, and two men, Michael Davidson and Titus Franklin, present. Franklin had been shot and was lying on the floor, cradled in Green's arms. According to Green, a white male and a white female knocked on the door and then pushed their way into the motel room. The male perpetrator told the occupants to "get down" and demanded money. Shots were fired, and the perpetrators rifled through dresser drawers and gathered money and drugs from the room. When questioned at the scene, Green provided a physical description of the assailants. Later, officers showed photo lineups to Green, who identified Tague and Leslie "Country" Keith, Jr., as the perpetrators. Keith eventually confessed to committing the crimes and initially told officers that Tague was his accomplice in the motel room. But at trial, Keith changed his story and testified that another woman, named "Pepper," was his partner in crime.
While interviewing Green at the crime scene, the law enforcement officers learned that just before the shooting a Hispanic male identified by Green as "Javier" had knocked on the door and had been allowed to come into the motel room. He was there to participate in a drug transaction involving crack cocaine. Once inside, Javier told the others that two people were standing outside by the soda machine. Before Javier could leave, Tague and Keith entered the motel room. Green indicated that Javier was not involved in the robbery.
After Tague and Keith left, Green realized her boyfriend, Franklin, had been shot and called 911. Franklin was shot twice, once in the left thigh and once in the right hip/buttock, and his injuries proved to be fatal. At trial, a criminologist and firearms examiner testified that all the spent shell casings collected from the motel room were fired from the same gun, consistent with a 9 mm. weapon.
Tague's best friend, Miranda Maupin, testified at trial for the State, over defense counsel's objections, about statements Tague had made to her after the incident. According to Maupin, Tague told her that "Country" shot somebody, that he was "in a lot of trouble," and that he had left town. Maupin testified that Tague was "freaking out for a long time." Tague told Maupin that "nobody had to die, that she didn't have anything to do with it, and that Country was . . . trying to prove he was hard and he didn't have to do that and she was really sad."
Testimony from other witnesses in the case indicated that Tague had told Maupin more details than Maupin had provided during her trial testimony. During a telephone conversation with a Sedgwick County Deputy Sheriff, Maupin told the deputy that Tague had admitted to being involved in a homicide with three other individuals-"Country," Dominic Myers, and Tague's brother, Travis Tague. The deputy relayed this information to the Wichita Police Department, which led Detective Thomas Fatkin to interview Maupin. During this interview, Maupin said that Tague had told her she was with "Country" when the murder and robbery took place. Travis and Myers went along but stayed in the van. Tague told Maupin that she and "Country" went into a motel room with guns pointed and the victim was shot by "Country" when the victim reached for a gun. Maupin also told the detective the group used Myers' work van as the getaway vehicle.
Keith, a/k/a "Country," was the only witness for the defense. His original version of events-relayed during his interrogation by Detective Fatkin-was consistent with the version Tague conveyed to Maupin. Keith acknowledged during his trial testimony that he had told Detective Fatkin that Tague, Travis, and Myers were involved in the crimes. But at trial, Keith claimed that he implicated those three individuals because he thought Tague told officers about Keith's involvement in the crimes. Keith testified that "[i]f somebody was snitching on me I was taking them with me." Keith said he had been motivated by revenge, but when he found out that Tague had not spoken to officers about him, he told his lawyer that he had committed the crimes not with Tague, but with a woman he only knew as "Pepper." He claimed Tague knew about the crimes only because he told her about them. According to Keith, Pepper went to some dude and got a van to use in the crimes. Keith admitted that both he and Pepper had guns at the motel; he always carried a 9 mm. or .45 caliber gun, and Pepper carried a .380 caliber gun.
Detective Fatkin testified about his interrogation of Keith in the State's rebuttal. Fatkin testified that Keith had described how he and Tague were armed with handguns, waited outside by the soda machine, and observed a Hispanic man enter the motel room before they pushed their way in. According to Keith's statements to the detective, his gun was a 9 mm. and he thought Tague's was a 9 mm. gun as well. Keith told Fatkin that when they entered the room, Tague pistol-whipped an older white male. This person turned out to be Davidson, who had a "knot on his head" after the robbery and shooting. Keith told Fatkin the robbery was planned by Myers and Travis, who had already been in the motel room to purchase crack cocaine. Keith shot Franklin when he saw him pull out a handgun.
A jury convicted Tague as charged. Subsequently, the sentencing court imposed a life sentence without possibility of parole for 20 years for the felony-murder conviction. The court imposed a consecutive sentence of 88 months' imprisonment for the underlying aggravated robbery conviction. Tague brings a timely appeal. This court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment imposed). Additional facts will be discussed as necessary.
HEARSAY STATEMENTS FROM UNAVAILABLE EYEWITNESSES
Tague first argues that the trial judge erred in excluding hearsay evidence showing that two eyewitnesses from the motel room, Cross and Davidson, had been unable to identify Tague in a photographic lineup.
The State argues Tague failed to preserve this issue for review because defense counsel failed to proffer a basis for the admissibility of the evidence after the State objected on the grounds of hearsay. Accordingly, we must first determine whether the issue was preserved for review and, if not, whether review would nevertheless be appropriate.
Ordinarily, the party arguing for admission of evidence must provide the trial judge with a specific basis for the admission so the judge has a chance to fully consider whether the evidence should be admitted and to avoid any potential reversible error. State v. Chanthaseng, 293 Kan. 140, 144, 261 P.3d 889 (2011). More specifically:
"When a party seeks to admit hearsay testimony but fails to assert the ground upon which it would be admissible, the trial judge is not called upon to make the requisite finding for its admission into evidence. Under these circumstances the defendant is precluded from asserting the ground for the first time on appeal as a basis for error." State v. Haislip, 237 Kan. 461, Syl. ¶ 5, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985).
At trial, Tague offered no hearsay exception for the admission of the evidence. When defense counsel first asked Detective Fatkin if Cross or Davidson had been able to identify Tague from the photographic lineup, the State objected on the basis of hearsay. The trial judge asked if counsel had any arguments on the matter, to which defense counsel queried, "Your Honor, may I try to rephrase the question?" With the judge's permission, the questioning continued without defense counsel asking about Cross' or Davidson's ability to identify Tague.
After the State's redirect examination of Detective Fatkin, defense counsel sought permission to approach the bench and, outside the hearing of the jury, stated:
"I don't know quite how to phrase this, Your Honor, but before this witness is excused my client is demanding that she talks to you because she disagrees with some of the things I have done. And I can't get her to listen to me, frankly, and I don't know-I don't want her to fly off the handle here in front of the jury."
The trial judge excused the jury, and defense counsel elaborated that Tague "disagrees with the Court's decision that the failure of two of the witnesses to identify her in the photo array, she disagrees that that should not be admitted." The judge said, "[I]t's a hearsay issue and counsel hasn't set forth any basis. . . . Any basis for that to be admitted?" Defense ...