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Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge.
BY THE COURT
1. When sufficiency of the evidence is challenged in a criminal case, an appellate court's standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the reviewing court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility.
2. Evidence is sufficient to support a conviction of robbery by threat of bodily harm if it supports reasonable inferences that the defendant threatened the victim and that the threat made the taking of property possible.
3. K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was prejudicial conduct inside or outside the courtroom that makes it impossible to proceed without injustice to a defendant or the prosecution. To follow the statute, a trial court must engage in a two-step analysis. It must (a) decide whether there was some fundamental failure of the proceeding, and (b) if so, determine whether it is possible to continue without an injustice. This second step requires assessing whether the damaging effect of any prejudicial conduct may be removed or mitigated through an admonition, jury instruction, or other action. If that is not possible because the degree of prejudice would result in an injustice, a mistrial is necessary.
4. An appellate court reviews a trial court's decision denying a motion for mistrial under an abuse of discretion standard. A district court abuses its discretion when its action is: (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.
5. Appellate review of a mistrial issue considers two questions: (1) Did the trial court abuse its discretion when deciding whether there was a fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion when deciding whether the conduct resulted in prejudice that could not be cured or mitigated through jury admonition or instruction, resulting in an injustice?
6. When reviewing a district court's denial of a mistrial motion based on allegations of prosecutorial misconduct, the appellate court decides (1) whether the prosecutor's comments were outside the wide latitude the prosecutor is allowed in presenting evidence and arguing the case, and (2) if so, whether the comments prejudiced the jury against the defendant and denied the defendant a fair trial.
7. The legislature did not intend to create alternative means of committing felony murder under K.S.A. 21-3401(b) by providing that felony murder occurs when there is a death in the commission of, attempt to commit, or flight from an inherently dangerous felony. Instead, the phrase " in the commission of, attempt to commit, or flight from" describes factual circumstances sufficient to establish a material element of felony murder.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
BILES, J. JOHNSON, J., dissenting. MORITZ, J., joins in the foregoing dissent.
[297 Kan. 1077] Biles,
Katron Harris appeals his convictions of aggravated robbery and first-degree felony murder based on the underlying felony of aggravated robbery. He argues: (1) The State presented insufficient evidence to prove the aggravated robbery was accomplished by " threat of bodily harm," which was how the crime was charged; (2) the district court abused its discretion in denying his request for a mistrial based on prosecutorial misconduct; and (3) the phrase " in the commission of, attempt to commit, or flight from an inherently dangerous felony" in the felony-murder statute, K.S.A. 21-3401(b), creates alternative means of committing the crime and the evidence was insufficient to support each means. We affirm.
[297 Kan. 1078]Factual and Procedural Background
The State charged Harris with felony murder, alleging he and two others intentionally killed Phillip Martin in the perpetration, attempt to perpetrate, or flight from the inherently dangerous felony of aggravated robbery. In charging the aggravated robbery, the State alleged Harris and the others took money and drugs from Martin exclusively by " threat of bodily harm" while armed with a handgun. The circumstantial evidence supporting this threat of bodily harm element is our principal focus.
On October 6, 2008, police officers responded to a 911 call at a home in Kansas City, Kansas. The officers found the garage door half open, the door into the house from the garage open, and Martin lying dead on his stomach in a small kitchen. Shell casings from two different caliber firearms surrounded Martin's body. Martin had a loaded .22 caliber semi-automatic handgun, with a bullet chambered, and $600 cash in his pants pockets. It appeared he had been cooking crack cocaine (powder cocaine mixed with baking soda and water) in the kitchen at the time he died. The kitchen faucet was running when police arrived.
Over the course of several days detectives investigating the crime learned Harris was involved and detained him. In his first police interview, Harris said he did not know Martin, had nothing to do with the crime, and was staying at a hotel in Johnson County with his girlfriend and his mother when the killing occurred. The detectives ended the interview, booked Harris, and placed him on a 48-hour hold. The next evening detectives interviewed Harris again. This time, Harris changed his story.
He told detectives he met Kelvin Gibson, Jr., the night of the killing. He and Gibson took a walk and met Demarcus Blakeney. Harris said the three men walked to Martin's house and Gibson went inside. Gibson came out and said he was going to rob Martin. Harris said he did not believe Gibson and did not want to rob anyone, so he stood across the street. Gibson instructed Harris to let him and Blakeney know if Harris heard anything. Gibson and Blakeney went into the house.
Harris said he heard approximately 12 gunshots in quick succession after about 5 minutes. He said Blakeney ran out, handed
[297 Kan. 1079] Harris a gun, and told Harris he had to go into the house and " put in [his] work" so that he would not " snitch" on them. Harris said he entered the house and saw Martin lying motionless on the floor. Gibson then told Harris to shoot Martin, which Harris did one time. Harris said Gibson went through the house because he knew where Martin's things were, and got a box of money. The three then ran. Harris said Gibson gave him $100.
The State charged Harris with felony murder with aggravated robbery as the underlying felony, and with aggravated robbery by threat of bodily harm.
At trial, the State established that Martin sold drugs out of his home. When customers came to buy drugs, they entered through the garage and often were met by a doorman. If there was no doorman, customers knocked on the door. Martin put his proceeds in two shoeboxes. The State presented testimony that 2 days before the murder one shoebox contained $1,900 and the other one contained $3,200. At the crime scene, police found only one shoebox with approximately $2,000. The State also established Gibson was often at Martin's home and ran errands for Martin in exchange for money, gas, and marijuana.
Christina Woody testified she bought marijuana from Martin at 8:45 p.m. on the night of Martin's death. When she entered Martin's house, a man she did not know but later identified as Gibson was sitting on the living room couch. Martin was cooking crack cocaine in his kitchen. After purchasing the marijuana, Woody left.
Brian Houston, Martin's friend, also testified. Houston spent time with Martin nearly every day. He said he called Martin a little after 9 p.m. on the night of the killing, but the call went straight to Martin's voicemail. Houston said he went to Martin's house around 9:30 p.m., exited his car, and saw Gibson wandering around outside. Houston said it was strange that Gibson's car was not at Martin's house. Houston walked up and Gibson gestured for him to come toward the garage. As Houston ducked under the garage door, Gibson stood between Houston and the door to the house and told Houston, " [A]in't nothing going on right now." Houston testified Gibson usually said something like this when Martin was conducting drug business. Houston also noticed Gibson was very [297 Kan. 1080] fidgety and that Martin's house was unusually quiet because normally Martin played videos and talked on the phone. Houston left without going inside. Houston continued to call Martin until 11 p.m. but never got an answer.
Martin's sister, Angela Martin, testified she spoke with Martin for 3 to 4 minutes by phone at 10 p.m. She heard several male voices in the house, but nothing struck her as out of the ordinary during the conversation.
Martin's neighbor from down the street testified she heard three gunshots the night Martin was murdered. She said it sounded like the shots came from a vacant house next door. She looked out the window. About 4 or 5 minutes after the shots she saw three black men running down the street. Each wore a black hooded sweatshirt and black pants.
Daneasha Connor testified she found Martin dead at approximately 9 p.m. and called police. Conner concluded Martin knew his killer because he did not usually allow others in the house while cooking drugs and would not turn his back to someone he did not know. Conner also testified she took a gun from Martin's back pocket. She believed Martin trusted the person in his home because he did not use the guns he carried.
An investigating detective testified there was no forced entry into the house and that Martin was shot multiple times. The detective thought Martin was comfortable with the perpetrator(s) being in his home. He also testified Gibson provided Harris' and Blakeney's names to police.
Dr. Erik Mitchell performed Martin's autopsy. He concluded Martin died from gunshot wounds primarily due to blood loss. Mitchell testified Martin had 16 gunshot wounds from at least two weapons, although he could not ascertain the order in which the wounds were inflicted. He concluded none were immediately fatal. He said Martin had a gunshot wound to his foot, an entry wound on the back side of his left leg indicating the shooter was behind him, an entry wound on
the back of his right thigh also indicating the shooter was behind him, an entry wound to his left hip with a direction of travel indicating the shooter was behind him, an entry [297 Kan. 1081] wound on the back of his left forearm, nine ...