Appeal from Sedgwick District Court; WARREN M. WILBERT, judge.
SYLLABUS BY THE COURT 1. Because of the danger of enhancing a testifying law enforcement officer's credibility with the jury, a trial court has no discretion to allow a testifying law enforcement officer to sit at the prosecution table during a jury trial. 2. A trial court's decision regarding the sequestration of witnesses is discretionary. The trial court also has discretion to make exceptions for certain witnesses to remain in the courtroom even if a sequestration order is in place. 3. While a trial court has no discretion to allow a testifying law enforcement officer to sit at the prosecution table during trial, a trial court does have discretion to lift a sequestration order and permit a testifying law enforcement officer to remain in the courtroom.
4. When a trial court exercises its discretion regarding the sequestration of witnesses, the defendant bears the initial burden to demonstrate prejudice at the trial level. If an appellate court finds the trial court abused its discretion, the burden then shifts to the State to demonstrate a lack of prejudice. 5. Under our federal and state constitutions, a defendant is entitled to present his or her theory of defense, and the exclusion of evidence that is an integral part of that theory violates the defendant's fundamental right to a fair trial. But the defendant's right to present a defense remains subject to statutory rules and caselaw interpretation of the rules of evidence and procedure. 6. Whether the trial court complied with specific statutory requirements for excluding evidence requires interpretation of a statute, which an appellate court reviews de novo. Similarly, whether an evidentiary ruling violated the defendant's constitutional rights is reviewed de novo. 7. The admissibility of evidence for the purpose of impeaching a witness' credibility is governed by K.S.A. 60-420, K.S.A. 60-421, and K.S.A. 60-422. 8 K.S.A. 60-421 provides that a non-defendant witness' prior conviction is admissible only if the conviction is for a crime involving dishonesty or false statements. K.S.A. 60-421 contains no exception for admission of a non-defendant witness' prior convictions for crimes other than crimes involving dishonesty or false statements.
9. Evidence of a prior conviction to prove the character trait of engaging in criminal activity is inadmissible under K.S.A. 60-422(d) because a prior conviction is evidence of a specific instance of conduct.
The opinion of the court was delivered by: Moritz, J.:
The opinion of the court was delivered by MORITZ, J.:
In this appeal of his convictions for first-degree felony murder, aggravated robbery, and aggravated burglary, John Sampson contends the trial court violated his right to a fair trial when it granted his motion to sequester witnesses but allowed a testifying law enforcement officer to remain in the courtroom and at the prosecution table throughout trial. Sampson also claims the trial court violated his right to present his theory of defense by refusing to allow defense counsel to introduce evidence of an accomplice's prior felony conviction.
We conclude the trial court abused the discretion recognized in our caselaw as it existed at the time of trial when it permitted a testifying law enforcement officer to sit at the prosecution's table during trial. Additionally, because of the likelihood of this practice enhancing the officer's credibility with the jury, we hold today that a trial court may not permit a testifying law enforcement officer to sit at the prosecution's table during a jury trial. Further, while we recognize that a trial court retains discretion over decisions regarding the sequestration of witnesses, including whether to permit a testifying law enforcement officer to remain in the courtroom despite a sequestration order, we hold the trial court abused its discretion in permitting a testifying law enforcement officer to remain in the courtroom under the circumstances of this case. But because we conclude the officer's presence at counsel table and in the courtroom did not prejudice Sampson, we affirm his convictions.
Finally, we hold the trial court properly applied K.S.A. 60-421 and K.S.A. 60-422 in refusing to admit evidence of an accomplice's conviction. But we do not reach Sampson's claim that evidence of the accomplice's prior conviction was admissible under K.S.A. 60-446 or K.S.A. 60-447 because Sampson failed to preserve those arguments for review.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of July 10, 2007, police officers responded to a residence in Wichita to check on the welfare of Stanley Bloom. The officers found Bloom dead on the floor of his bedroom, and it appeared his apartment had been ransacked. Bloom's autopsy revealed he died from a gunshot wound and several blunt force injuries to his head.
In 2008, the State charged Sampson with first-degree premeditated murder, an alternative count of first-degree felony murder, aggravated robbery, and aggravated burglary. The following facts were developed at Sampson's trial.
Sometime before 1:30 a.m. on July 10, 2007, Sampson, Sampson's son Corey Logan, and Sampson's girlfriend's son, Joey Smith, drove to Bloom's home. Sampson and Logan believed Bloom had large amounts of cash and marijuana in his home, and they planned to rob Bloom to pay off a debt Sampson owed to Jeremy Harris. Harris solicited Sampson to commit the robbery, insisted that Sampson take Smith along, and supplied Sampson with a .45 caliber gun.
According to Smith and Logan, Smith stayed in the truck while Logan and Sampson broke into Bloom's home. According to Logan, Sampson shot Bloom and beat him with a nightstick. Ultimately, the intruders left Bloom lying on his bedroom floor with a fatal gunshot wound and blunt force injuries to his head. According to Smith, Sampson returned to the truck with a .45 caliber pistol and Bloom's pellet gun, among other items, and told Smith he shot someone.
When the men returned to Sampson's home, Sampson instructed Logan to clean out the car, burn the clothing and shoes worn by the men during the robbery, and bury the .45 caliber handgun and nightstick in the backyard. After changing his clothes, Sampson returned to work and told Carol Smith, Sampson's girlfriend and co-worker and Joey Smith's mother, that he had killed someone. According to Carol, Sampson "looked pretty stressed out," "[h]e was shaking," and "his face was white."
Detectives Thomas Fatkin and Blake Mumma interviewed Sampson twice in November 2007. During the first interview, Sampson identified Logan, Joey Smith, and Smith's brother, Kenny Smith, as the three men who robbed and killed Bloom. Sampson claimed Jeremy Harris solicited those three men to commit the crimes. Sampson admitted he disposed of a grill used by Logan to burn the men's clothing and told Logan to get rid of the gun used in the murder. During the second interview, Sampson admitted he drove Logan and Smith to commit the robbery at Jeremy Harris' request and that either Smith or Logan had a gun, but Sampson claimed he remained in his truck while Logan and Smith broke into Bloom's home and shot Bloom.
The jury found Sampson guilty of first-degree felony murder, aggravated burglary, and aggravated robbery. The court imposed a controlling prison sentence of life with no possibility of parole for 20 years plus 120 months. We have jurisdiction to hear Sampson's direct criminal appeal under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment imposed) and K.S.A. 2012 Supp. 22-3601(b)(4) (conviction of off-grid crime).
THE TRIAL COURT ABUSED ITS DISCRETION BOTH BY ALLOWING DETECTIVE FATKIN TO SIT AT THE PROSECUTION TABLE AND TO REMAIN IN THE COURTROOM DESPITE A SEQUESTRATION ORDER.
Sampson claims the trial court violated his right to a fair trial and to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution and Section 10 of the Kansas Constitution Bill of Rights when it allowed Detective Fatkin to sit at the prosecution table throughout the trial. First, Sampson argues Fatkin's presence in the courtroom violated the sequestration order and prejudiced Sampson because Fatkin listened to other witnesses and tailored his testimony to explain inconsistencies in their testimony. Second, Sampson argues Fatkin's presence at the prosecution table prejudiced Sampson because it enhanced Fatkin's credibility with the jury.
The State contends the trial court did not abuse its discretion by allowing Fatkin to remain in the courtroom despite the sequestration order or by allowing him to sit at the prosecution table. The State further argues Sampson failed to raise any specific allegations of prejudice at the trial court level. Alternatively, the State contends that even if the trial court erred, Sampson was not prejudiced by that error and reversal is not required.
A trial court's decision whether to sequester witnesses is discretionary. State v. Heath, 264 Kan. 557, 588-89, 957 P.2d 449 (1998). Further, the trial court has discretion to permit certain witnesses to remain in the courtroom even if a sequestration order is in place. See State v. Theus, 207 Kan. 571, 577, 485 P.2d 1327 (1971). Finally, our prior caselaw suggests that the practice of allowing a testifying law enforcement officer to sit at the prosecution table, while discouraged, is subject to the trial court's discretion. State v. Kirkpatrick, 286 Kan. 329, 342-43, 184 P.3d 247 (2008). Accordingly, we review both of Sampson's claims for an abuse of discretion. A judicial action is an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
Additional Facts Relevant to Our Discussion
The trial court granted Sampson's pretrial motion to exclude witnesses from the courtroom during the examination of other witnesses. Not surprisingly, at trial, Sampson challenged Detective Fatkin's presence at the prosecution table, pointing out that the State anticipated that Fatkin would be testifying for the State. Citing the sequestration order, Sampson argued Fatkin should not be permitted to hear other witnesses' testimony. The prosecutor responded that given the large number of witnesses and the volume of evidence, Fatkin would assist the prosecutor in presenting the case. Sampson's counsel argued he already was outnumbered by the two prosecutors at the State's table and that in light of the sequestration order, it was unfair to allow Fatkin to remain in the courtroom. Sampson pointed out that if Fatkin were permitted to remain in the courtroom, he could "offer explanations" if witnesses offered testimony inconsistent with their statements to Fatkin.
In denying Sampson's objection and permitting Fatkin to remain at the prosecution table "at least for right now," the trial court acknowledged that this court has discouraged the practice of permitting testifying law enforcement witnesses to sit at counsel table. Neverthless, the trial court reasoned that a case detective is generally more of a "fact gatherer" than a typical fact witness and likened a case detective's function to that of a legal assistant.
The jury heard testimony from several State witnesses before hearing from Fatkin for the first time. Fatkin testified regarding his role as lead case detective for the homicide investigation and described how the investigation unfolded from July 2007 to October 2007. With several remarks, Fatkin tied his own testimony to that of witnesses who previously had testified. For instance, Fatkin mentioned that Lieutenant Landwehr "spoke to you the other day" and "explained to you a little bit the other day" about how Fatkin became assigned the case. ...