Appeal from Butler District Court; DAVID A. RICKE, judge.
SYLLABUS BY THE COURT 1. When reviewing the admission of photographic evidence, an appellate court's first step is to determine whether the photographs are relevant. The decision to admit photographs alleged to be overly repetitious, gruesome, or inflammatory, i.e., prejudicial, is reviewed for an abuse of discretion. The party who challenges that decision bears the burden of showing such abuse. Admission of photographs that are unduly repetitious and cumulative, or that are introduced solely for a prejudicial purpose, constitutes an abuse of discretion. 2. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. 3. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a first-degree murder case. 4. Although they may sometimes be gruesome, autopsy photographs that assist a pathologist in explaining the cause of death are relevant and admissible. However, admitting gruesome photographs simply to inflame the minds of the members of the jury is error. The admission of unduly repetitious photographs can constitute an abuse of discretion. The key, as with prejudice, is the word unduly. The admission of photographs in a murder case has rarely been held to be an abuse of discretion. 5. K.S.A. 22-3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included offense instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. Consequently, if an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court. 6. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record. 7. If the reviewing court determines that the district court erred in failing to give the instruction at issue, then the court proceeds with a reversibility inquiry wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal. 8. Because capital murder is the highest degree of homicide in Kansas, first-degree murder is a lesser degree of capital murder under K.S.A. 21-3107(2)(a) and is therefore a lesser included crime of capital murder. Because first-degree murder encompasses the two alternative means of premeditated murder and felony murder, felony murder is a lesser included crime of capital murder. 9. In determining whether the evidence is sufficient to support a lesser included offense instruction, the relevant inquiry is whether there is some evidence upon which a jury could have reasonably convicted the defendant of the lesser crime. 10. Felony murder is the killing of a human being committed in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436. K.S.A. 21-3401(b). To convict a defendant of felony murder, the State must prove only that the defendant committed a felony inherently dangerous to human life, which directly resulted in the homicide. Accordingly, a defendant may be convicted of felony murder even if the victim was not killed by the defendant as long as the homicide occurred as a direct result of an inherently dangerous felony. 11. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, an appellate court decides whether the comments were outside the wide latitude that a prosecutor is allowed in discussing the evidence. Second, if misconduct is found, an appellate court must determine whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial. 12. Prosecutors must not state a personal opinion regarding the ultimate guilt or innocence of the defendant. The reason for prohibiting prosecutors from commenting on their opinion of the defendant's guilt is that such expressions of personal opinion are a form of unsworn, unchecked testimony, not commentary on the evidence of the case. 13. Although a prosecutor must not state a personal opinion regarding the ultimate guilt or innocence of the defendant, it is permissible for a prosecutor to argue that the evidence demonstrates a defendant's guilt. It is necessary, however, for a prosecutor to say something akin to "the evidence shows defendant's guilt" in order to make a statement merely directional and not an expression of the prosecutor's personal opinion.
The opinion of the court was delivered by: Rosen, J.:
The opinion of the court was delivered by ROSEN, J.:
Israel G. Mireles was convicted of capital murder and rape. The district court sentenced him to a life sentence without the possibility of parole for the murder conviction and imposed a consecutive 203-month prison sentence for the rape conviction. Mireles now brings this appeal in order to challenge the district court's decision to allow numerous photographs into evidence and its failure to instruct the jury on felony murder as a lesser included offense of capital murder. Mireles also argues that due to prosecutorial misconduct, he was denied a fair trial.
In the fall of 2007, Joe Terzui opened the Bella Casa Italian Restaurant in El Dorado, Kansas. The restaurant was located next to and shared a parking lot with the El Dorado Motel. Terzui leased the restaurant's building from the owner and operator of the motel, I.C. Patel.
Mireles had worked off and on for Terzui the previous 3 years at restaurants Terzui had opened in Vernon, Texas, and Hays, Kansas. In early October 2007, Mireles, along with his girlfriend, Victoria Martens, moved from Hays to El Dorado to help Terzui at the new restaurant. While in Hays, Mireles and Martens lived in a room at the motel (Room 21) that Terzui had rented for them.
A week before Thanksgiving 2007, Mireles and Martens decided to move to Texas to find new jobs. The couple's plan was for Martens to spend Thanksgiving Day in Baxter Springs, Kansas, with her family while Mireles stayed behind in El Dorado. On the Friday after Thanksgiving, Mireles planned to quit his job, collect his wages, rent a car, pack up the couple's possessions, and travel to Baxter Springs to pick up Martens. The couple would then travel to Texas to visit Mireles' grandmother and then stay with Mireles' family until they could find a place of their own.
On Thanksgiving Day, Martens' mother picked her up at the motel and took her to her grandmother's house in Baxter Springs. As planned, Mireles stayed in El Dorado for Thanksgiving Day; he did not work that day. On the afternoon of Friday, November 23, Mireles received $600 from Terzui. After receiving this money, Mireles rented a 2007 Ford Taurus from a car rental business in El Dorado and proceeded to run some errands around town. After doing so, he went to the Beijing Restaurant in El Dorado for drinks. He arrived there sometime between 7 and 8 p.m. and sat in the bar area of the restaurant.
At about this same time, E.S., an 18-year-old student at Butler County Community College, arrived at the Beijing Restaurant with Keeley McFann. Other acquaintances of E.S. and McFann arrived at the restaurant and soon joined them in the bar area: Brad Scott, Greg Bostwick, Misty Walton, and three of Walton's friends. They eventually all sat at a table and began socializing over drinks.
Mireles, a person no one in the group had met before, then walked over to the table from his seat at the bar and joined the group. Mireles proceeded to buy drinks for everyone at the table. Mireles paid particular attention to the females in the group, talking to them and continually buying them drinks.
While sitting at the table, Mireles told Scott about working at the Italian restaurant and about how he was going to visit his grandmother who was ill. Mireles also told Scott that he borrowed some money so he could pay for the visit and proceeded to show Scott the money he possessed. Mireles held the money so everyone at the table could see it. Later on, Mireles asked people at the table if they knew where to get drugs. He suggested to the group that they travel to Wichita to buy cocaine and then come back to his motel room to party. Scott told Mireles that he was not interested. Scott could not remember if anyone else explicitly objected to Mireles' plan.
As closing time for the restaurant drew near, the group decided to continue the night at the Retreat, a bar in El Dorado. They left the restaurant and traveled to the club in several cars. McFann rode with E.S. in her car, Bostwick rode with Scott in his car, Walton's friends rode in another car, and Walton rode with Mireles in his rented Taurus. On the way to the bar, Mireles drove by the motel and restaurant and mentioned to Walton that he worked at the restaurant and stayed at the motel.
The group arrived at the bar sometime between 10 and 11 p.m. Though there was a $5 cover charge to get into the bar, Mireles took it upon himself to pay for everyone's cover charge. When the group got inside the club, they sat down at a booth. McFann estimated that there were 80 to 90 people inside the bar. Walton said there was a "[m]oderate amount of people" inside the bar. Members of the group proceeded to drink, socialize, dance, and play pool. Mireles bought drinks for everyone in the group.
When they first arrived at the bar, Walton sat next to Mireles in the booth and the two of them talked exclusively to one another. Walton and Mireles eventually kissed. But as the night progressed, Walton's interest in Mireles declined due to him constantly asking her to accompany him to his motel room and after seeing him kiss E.S. McFann, who also saw E.S. and Mireles kiss, said that E.S. became interested in Mireles while at the club. After seeing Mireles kiss E.S., Walton left the bar with her friends at approximately midnight. Before leaving, Walton noted that E.S. appeared to be happy but intoxicated.
E.S.'s older brother, Jacob, arrived at the bar at 11:45 p.m. and met E.S. inside the bar. Jacob said that E.S. was intoxicated when he saw her. E.S. introduced Jacob to Mireles. Jacob said that it appeared that E.S. was "with" Mireles. While at the bar, Jacob said that E.S. danced, drank, and talked to her friends and to people that Jacob did not know. Jacob stayed at the bar for 30 to 45 minutes and eventually left the bar at 12:45 a.m. He said that E.S. was still at the bar when he left.
According to McFann, E.S. and Mireles became intoxicated while at the bar. They appeared to be happy and having a good time. McFann also said that as the evening progressed, Mireles became more persistent in asking the girls in the group to come to his motel room to party and even asked McFann about acquiring some cocaine.
While McFann was on the dance floor, E.S. approached her and told her that she was leaving the bar with Mireles. McFann tried to convince E.S. not to leave, but E.S. would not listen to her. A bouncer working at the bar that night saw E.S. leave the bar with Mireles. According to the bouncer, E.S. told him that she would be back. The bouncer said that E.S. appeared to be happy and not distressed.
Aurelia Resa, a high school classmate of E.S., came to the bar that evening and briefly spoke with E.S. at about the time she was getting ready to leave the bar. E.S. told Resa that she would return to the bar. Resa saw E.S. leave the bar with a man that Resa had never seen before. Resa asked the bartender about the man, and the bartender told her the man worked at the Italian restaurant.
McFann eventually left the bar with a friend who drove her to E.S.'s apartment. McFann knocked on the apartment door but no one answered. Resa called E.S. on her cellphone before leaving the bar, but E.S. did not answer her phone. Later, Resa tried calling E.S. a second time with still no answer.
At 4 a.m. on Saturday, November 24, Mireles called his girlfriend, Martens, and told her that "something" had happened and that he was on his way to Baxter Springs. He explained that he had "hurt a guy" at the motel and that he had blood on himself. Martens said that Mireles sounded scared and worried over the phone.
Mireles arrived at Martens' grandmother's house at about 8 a.m. Martens saw that Mireles had blood on his arm and on a white tank top he was wearing. The blood on the tank top looked like Mireles had smeared it onto his tank top with his arm. Martens also noticed that Mireles' knuckles were "busted up" and that he had a small cut on his shoulder. Mireles came into the house, and Martens directed him into the bathroom where he cleaned the blood off of himself. Martens gave Mireles a new shirt to wear.
In explaining what happened to him, Mireles told Martens that he had met a couple at the bar and invited them back to the motel room for drinks after the bar closed. Mireles said that when they got back to the room, the man started "pushing the girl" on him, i.e.,offering the girl to Mireles for sex. Mireles refused, leading to a fight between Mireles and the man. As they were fighting, the girl left the room. The guy eventually pulled a knife on Mireles, but Mireles used a toilet plunger to defend himself. Mireles beat up the man, injuring the man badly and causing him to lose a lot of blood. Mireles told Martens that he got scared at this point and quickly gathered up the rest of their possessions and left. Mireles claimed that the man was still alive when he left the room.
After cleaning himself off, Mireles ate and then went to sleep. While Mireles slept, Martens left the house to visit a relative.
Just before noon on Saturday morning, Patel, the owner of the El Dorado Motel, was doing a routine check of the motel grounds when he noticed that a window and screen to Room 21 (Mireles and Martens' room) were broken. The screen had about a 16- inch rip or cut in it and there was some glass on the sidewalk below the window. After knocking on Room 21's door and getting no response, Patel unlocked the door with his master key and opened the door. When he walked into the room, he saw a large amount of blood on the carpet and on the mattress. He left the room and walked over to the Italian restaurant to tell Terzui about the condition of Mireles' room. Terzui accompanied Patel back to Room 21 and examined the room. After seeing the blood, Terzui told Patel that he should contact the police. Patel did so, and law enforcement eventually arrived at the motel and began examining the room. Law enforcement found large blood stains on the carpet and on the bed. Enough blood was spilled on the bed that the blood actually soaked through the sheets and into the mattress. Law enforcement also found "cast off" blood stains on the ceiling and wall near the bed and found a toilet plunger in the room that appeared to have dried blood on its handle.
Underneath the bed, law enforcement found a black brassier and a white t-shirt with wording on the front that said "Everything is Bigger in Texas." Jacob and McFann later identified this shirt as the one E.S. was wearing on Friday night. Law enforcement also found four beer bottles in the room which they collected for DNA testing. Finally, law enforcement noted that the room's bedspread was missing.
On Saturday afternoon, Nathan Baker, E.S.'s roommate, received a phone call from Resa telling him that she was concerned for E.S. because she had left the bar with a guy named Israel who worked at the Italian restaurant. Resa said that E.S. had told her that she would be returning to the bar but never did. Resa said that she tried calling E.S. but was unable to get a hold of her. Finally, Resa told Baker that she drove by the bar's parking lot and saw that E.S.'s car was still parked in the lot.
After speaking with Resa, Baker drove to the restaurant to see whether E.S. was with Israel or to ask Israel whether he knew where E.S. was at. When Baker arrived there, he saw that police were already at the scene. Baker later went to the police station and filled out a statement conveying the information about E.S. that Resa had relayed to him.
In Baxter Springs that afternoon, Martens returned to her grandmother's home after visiting with a relative. Shortly thereafter, she left Baxter Springs with Mireles in the rented Taurus. Martens said that when she first got into the car, she smelled bleach and saw blood on the steering wheel. The couple drove to Vernon, Texas, where Mireles' mother lived. They stayed in Vernon for about an hour before leaving for Mexico. The couple ultimately succeeded in crossing the border into Mexico.
After law enforcement confirmed that Room 21 was rented to Mireles and Martens, a KBI agent traveled to Martens' grandmother's house in Baxter Springs to check on Martens' well-being. The agent arrived at the residence on Saturday at 10:30 p.m. and spoke with Martens' mother and grandmother. The agent learned that Martens had been at the residence from Thanksgiving until that day when she left with Mireles.
Law enforcement searched the residence's dumpster and found a white blouse that appeared to have a blood stain on it, a set of keys, a green handled knife with a green sheath, and a beer bottle. The officers also found a white plastic bag containing jeans, boxer shorts, and socks. The jeans appeared to be damp and had what appeared to be a blood stain on the crotch and thigh area. Law enforcement collected each of the items found in the dumpster and ultimately transported the items to the KBI lab in Great Bend.
On November 27, 2007, law enforcement in Vernon, Texas, found the rented Ford Taurus parked near a Best Western hotel. The vehicle was seized, and law enforcement from Kansas transported the vehicle from Vernon to the KBI lab in Great Bend.
On November 29, 2007, law enforcement found E.S.'s body lying near an embankment off of Highway 54 in Woodson County, Kansas, just south of the town of Toronto. Other than a sock on her left foot, E.S.'s body was naked. She had a telephone cord tied around neck. The cord was the same type as that found in Mireles' room. Furthermore, law enforcement found a bedspread near E.S.'s body-the same type as furnished in the rooms of the El Dorado Motel.
E.S.'s body was eventually transported to the Sedgwick County Regional Forensic Science Center in Wichita where a sexual assault examination and autopsy were performed on November 30, 2007. Diana Schunn, a sexual assault nurse examiner and sexual assault response team specialist, performed the sexual assault examination of E.S.'s body. Schunn collected forensic evidence from E.S.'s body-specifically, hair samples and swabs of E.S.'s mouth, vagina, cervix, and anus.
During her examination, Schunn observed trauma to E.S.'s vagina, specifically, an injury to the right posterior fourchette. Schunn described the injury as an "[a]ssault trauma measuring a little over 5 millimeters" caused by "blunt trauma" where the tissue exceeded its capacity "to stretch and accommodate any more pressure applied to that tissue." Schunn said that a laceration to the posterior fourchette was not an uncommon injury in a sexual assault case. Schunn also observed a "penetrating trauma" to E.S.'s cervix and the posterior of her uterus. Schunn said that the injury was consistent with a stab wound caused by a knife and that sexual intercourse would not have caused such an injury.
Schunn also observed several lacerations to E.S.'s anus resulting from "blunt penetrating trauma." Schunn said that a handle of a toilet plunger could have caused the injuries to E.S.'s anus.
After Schunn was finished with her examination, Dr. Jamie Oeberst, the district coroner for Sedgwick County and the chief medical examiner at the Sedgwick County Regional Forensic Science Center, performed an autopsy on E.S.'s body. Like Schunn, Oeberst examined the interior of E.S.'s vagina and noticed that E.S. had suffered stab wounds just posterior to her cervix. Oeberst said that these injuries were caused by a knife traveling up the vaginal opening. She also observed the blunt force trauma to E.S.'s anus. Oeberst noted that E.S.'s rectum was extensively bruised and that she had multiple deep injuries to her anus, rectum, and colon. Oeberst said that these injuries were consistent with someone inserting the handle of a plunger into E.S.'s anus.
Oeberst noted that E.S. had semicircular purple and red contusions on her shoulder and chest measuring between 2 and 2 3/16 inches in diameter. Oeberst said that the bottom of a beer bottle could have caused the contusions. Law enforcement measured the base of a beer bottle found in the motel room and determined that the diameter of the base was consistent with the size of the contusions. Oeberst also observed bruises on the top of E.S.'s hands, indicating blunt trauma and consistent with defense-type injuries.
Oeberst observed two stab entrance wounds to the left side of E.S.'s chest measuring 1 1/2 inches long and 5/8 to 9/16 of an inch wide. Though there were only two stab wounds, Oeberst found four perforations to the front of E.S.'s chest wall. In explaining how there could be four perforations to the chest wall when there were only two stab wounds visible on the outside of E.S.'s chest, Oeberst stated: "[I]t could be that the knife was pulled back and then pushed back in through the chest in a different location. Or the ribs are bone, so there may have been-had to be an adjustment of the path of the knife to get around some of the bone that is present in the chest wall." Oeberst noted that when E.S. was stabbed, her heart, aorta, esophagus, and the back of her chest wall were perforated and that the injuries were consistent with being caused by a knife.
Oeberst also found evidence that E.S. had been strangled with the telephone cord found wrapped around her neck. Specifically, Oeberst observed ligature furrows on the outside of E.S.'s neck and the soft tissues and muscles in E.S.'s neck showed signs of hemorrhage. Oeberst also discovered that the hyoid bone-a small bone that sits on the larynx-was fractured.
Oeberst observed multiple injuries to E.S.'s head and face, indicating that she sustained multiple blows. Oeberst said that the muscles on the left side of E.S.'s face near her jaw line were "macerated by blunt trauma" and that the left side of her face was swollen. Oeberst observed a laceration to the right side of E.S.'s forehead and two lacerations to E.S.'s scalp-one above her right ear and the other to the back right of her head. Oeberst said that these injuries were consistent with "blunt impact trauma blows to the head." Oeberst said that the lacerations on E.S.'s face and scalp would have caused significant bleeding.
Oeberst looked at the internal injuries to E.S.'s head and found a small amount of subdural arachnoid hemorrhage in the left temporal lobe and found a contusion to the temporal lobe portion of the brain. Oeberst also found evidence of some brain swelling. Oeberst said that blunt trauma to ...