Review of the judgment of the Court of Appeals in an unpublished opinion filed April 15, 2010.
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Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge.
BY THE COURT
1. A decision on a motion in limine involves a two-pronged test. The court must determine whether: (1) the material or evidence in question will be inadmissible at a trial; and (2) the pretrial ruling is justified as opposed to a ruling during trial because the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; the consideration of the issue during the trial might unduly interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation.
2. A district court ruling on the first motion in limine prong-- i.e., the admissibility of evidence--and an appellate court reviewing that ruling apply a multistep analysis. For the first step, the court determines whether the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as that which has any tendency in reason to prove any material fact. Accordingly, relevant evidence must be both probative and material. Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. For the second step, the court determines which rules of evidence or other legal principles apply. The district court's conclusion is reviewed de novo. For the third step, the district court must apply the applicable rule or principle. This application is reviewed either for abuse of discretion or de novo, depending on the rule or principle being applied. Some rules and principles grant the district court discretion, while others raise matters of law.
3. While the exclusion of evidence that forms an integral part of the defendant's theory of the case can violate the defendant's right to a fair trial, the defendant's right to present a defense is subject to the rules of evidence and caselaw on the subject.
4. Unless a defendant's due process rights are implicated, a district court's exclusion of evidence as a permitted sanction because of a party's failure to comply with discovery under K.S.A. 22-3212(g) is reviewed on appeal for an abuse of discretion.
5. Material evidence tends to establish a fact that is at issue and significant under the substantive law of the case, while probative evidence requires a logical connection between the asserted facts and the inferences they are intended to establish.
6. Warnings based on the safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, reh. denied 385 U.S. 890, 87 S.Ct. 11, 17 L.Ed.2d 121 (1966), are required only for those who are in custody and subject to interrogation. A custodial interrogation, as opposed to an investigatory interrogation, is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom in any significant way.
7. The question of whether a suspect should be re- Mirandized after waiver of those communicated rights is one of law that an appellate court answers by considering the totality of the circumstances.
8. An appellate court employs the same standard of review for determining the voluntariness of a defendant's waiver of Miranda rights, for determining the voluntariness of a defendant's statement, and for determining whether a defendant's interview is custodial. Each inquiry requires an examination of the totality of the circumstances, and an appellate court reviews the factual underpinnings of the trial court's decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.
9. In making the ultimate legal conclusion of determining whether an interview is custodial, the court decides whether a reasonable person would have felt free to terminate the interrogation and disengage from the encounter.
10. In determining the voluntariness of a waiver of Miranda rights and the voluntariness of a defendant's statement, the State bears the burden of proof.
11. An appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. The appellate court should accept as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court.
12. Nonexclusive factors to be considered in determining if an interrogation is investigative or custodial include: (1) the time and place of the interrogation; (2) the duration of the interrogation; (3) the number of law enforcement officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by officers to the interrogation location or arrived under his or her own power; (8) the result of the interrogation, for instance, whether the person was allowed to leave, was detained further, or was arrested after the interrogation; and (9) whether the person was provided Miranda warnings. No one factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts.
13. Evidentiary claims--including questions posed by a prosecutor and responses to those questions during trial--must be preserved by way of a contemporaneous objection under K.S.A. 60-404 for those claims to be reviewed on appeal.
14. Review of prosecutorial misconduct claims involves a two-step process. The appellate court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, the court must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial.
15. The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified three factors to consider in determining if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (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 against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Under Tosh, none of these three factors is individually controlling. And 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 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), have been met.
16. Where both the constitutional and nonconstitutional error clearly arise from the very same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been met. Under both standards, the party benefiting from the error bears the burden of demonstrating harmlessness.
17. In general, a prosecutor may not offer a jury the prosecutor's personal opinion as to the credibility of a witness because such a comment is unsworn, unchecked testimony, not commentary on the evidence of the case. The determination of the truthfulness of a witness is for the jury.
18. In determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.
19. In determining whether prosecutorial misconduct was motivated by ill will, among the things an appellate court considers are whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling.
20. One error cannot support the application of the cumulative error doctrine.
21. Whether Kansas' identical offense sentencing doctrine applies is a question of law, which is reviewed de novo.
22. Under Kansas' identical offense sentencing doctrine, if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.
23. The generic crime of homicide, of which murder is the highest and most criminal species, is of various degrees and encompasses every mode by which the life of one person is taken by the act of another.
24. Kansas' identical offense sentencing doctrine does not apply to severity levels of the same offense. Per K.S.A. 21-3107(2)(a), involuntary manslaughter as stated in K.S.A. 21-3404(b) is a lesser included offense of reckless second-degree murder as set out in K.S.A. 21-3402(b). Therefore, under the facts of this case, the identical offense doctrine does not apply.
Heather Cessna, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was with her on the briefs for appellant.
Sheryl Lidtke, chief deputy district attorney, argued the cause, and Robbin L. Wasson, assistant district attorney, Jerome Gorman, district attorney, and Steve Six, attorney general, were on the briefs for appellee.
[297 Kan. 993] NUSS, C.J.
We granted Charles Bridges' petition for review of the Court of Appeals decision affirming his conviction and sentence for second-degree unintentional murder. The issues on appeal, and our accompanying holdings, are as follows:
1. Did the district court err in refusing to admit Bridges' expert witness testimony and thereby deny him his right to present his theory of defense? No.
2. Did the district court err in denying Bridges' motion to suppress his statements to investigators? No.
3. Did the district court err in allowing the State's witnesses to comment on Bridges' credibility? Not preserved for appeal.
4. Did the prosecutor commit misconduct by offering his opinion on Bridges' credibility? Yes, but harmless error.
5. Did cumulative error deny Bridges a fair trial? No.
6. Does the identical offense sentencing doctrine require reversing and remanding for resentencing? No.
7. Did the district court err in applying the BIDS application fee? No.
[297 Kan. 994] We therefore affirm the district court and the Court of Appeals panel.
On the evening of July 15, 2004, Bridges personally replaced his home's water heater. When Bridges left for work the next morning his fiancé e, Laura McCurley, stayed behind to continue her recuperation from recent surgery. At approximately 11:30 a.m., Bridges' home exploded, and McCurley was severely injured. She died from her injuries 11 days later.
Investigators determined that a valve on an uncapped natural gas pipe in the basement had been left in the " on" position. The open valve allowed natural gas to escape, fill the house, and then explode when McCurley lit a cigarette.
During different interviews with various investigators, Bridges gave varying and inconsistent explanations for the cause of the explosion. He eventually stated that before he left for work he checked the pipes due to a gas smell and instead of turning the valve off, he probably, by mistake, turned it on.
At the time of the explosion, Bridges' home was in foreclosure and he was pursuing his second bankruptcy. So the police theorized that he intentionally tried to set a fire to obtain insurance policy proceeds, and McCurley simply had been killed in the process. Bridges was ultimately charged with and convicted of unintentional reckless second-degree murder. This offense is a severity level 2 person felony, and the district court sentenced Bridges to 117 months' incarceration. See K.S.A. 21-3402(b).
The Court of Appeals panel affirmed in State v. Bridges, No. 101,222, 228 P.3d 441, 2010 WL 1610393 (Kan. App. 2010) (unpublished opinion), and we granted Bridges' petition for review under K.S.A. 20-3018.
Additional facts will be provided as necessary to the analysis.
Issue 1: The granting of the State's motions in limine did not infringe on Bridges' right to present his theory of defense.
[297 Kan. 995] Bridges argues the district court erroneously granted the State's motions in limine to exclude his evidence relating to (1) his depression and (2) the amount of the insurance proceeds he actually received. Bridges contends that the depression evidence via the testimony of psychologist Janice Scott was relevant for two reasons. First, it would show that he only acted negligently, not recklessly, when he installed the water heater. Second, it would explain the inconsistent statements he gave to investigating officials.
Bridges also contends evidence of the insurance proceeds he actually received was relevant to rebut the State's evidence that his house and personal effects were insured for $183,000, which was introduced to argue that his financial gain was a motive. By showing that most of Bridges' insurance proceeds went to his mortgage lender, he wanted to demonstrate financial gain was not a motive because he did not profit from the explosion.
As discussed below, the Court of Appeals panel affirmed the district court on both evidentiary issues. The State obviously agrees with these determinations.
Standard of Review
A decision on a motion in limine involves a two-pronged test. The court must determine whether: (1) the material or evidence in question will be inadmissible at trial; and (2) the pretrial ruling is justified as opposed to ruling during trial because the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the jury; the consideration of the issue during trial might unduly interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. State v. Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010). Bridges challenges only the first prong, i.e., whether the evidence is admissible.
We begin by recognizing that when this court reviews a district court decision to admit or exclude evidence, we use a multistep analysis. Shadden, 290 Kan. at 817. For the first step, we determine whether the evidence is relevant. Evidence is relevant when it has " any tendency in reason to prove any material fact." K.S.A. 60-401(b). [297 Kan. 996] Accordingly, relevant evidence must be both probative and material. State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 ). Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. Shadden, 290 Kan. at 817 (citing State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 ).
For the second step, we determine which rules of evidence or other legal principles apply. The district court's conclusion is reviewed de novo. Shadden, 290 Kan. at 817. For the third step, the district court must apply the applicable rule or principle. This application is reviewed either for abuse of discretion or de novo, depending on the rule or principle being applied. 290 Kan. at 817. Some rules and principles grant the district court discretion, while others raise matters of law. 290 Kan. at 817. Here, we are asked to review the exclusion of Bridges' expert testimony, which is generally reviewed for abuse of discretion. 290 Kan. at 819. We review the insurance proceeds exclusion for probativity, i.e., for abuse of discretion. See Reid, 286 Kan. at 507-09.
To the extent the district court's evidentiary exclusion infringed upon a defendant's constitutional right to present his or her theory of defense--as Bridges alleges--we exercise de novo review. See State v. Pennington, 281 Kan. 426, 433, 132 P.3d 902 (2006). We acknowledge that " '[t]he exclusion of evidence that forms an integral part of the defendant's theory of the case violates the defendant's right to a fair trial.'" State v. Gaona, 293 Kan. 930, 953, 270 P.3d 1165 (2012) (quoting State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 ; see Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 ). But we also ...