[Copyrighted Material Omitted]
Appeal from Sedgwick District Court; Joseph Bribiesca, judge.
BY THE COURT
1. When a district court provides alternative bases to support its ultimate ruling on an issue and an appellant fails to challenge the validity of each alternative basis on appeal, an appellate court may decline to address the appellant's challenge to the district court's ultimate ruling.
2. When an eyewitness is acquainted with the defendant, the normal concerns about eyewitness reliability are not present. In such cases, the likelihood that a suggestive identification procedure led to misidentification is lessened, and the jury is the appropriate body to consider the weight to be given to the eyewitness identification evidence.
3. An instruction on aiding or abetting is appropriate if, from the totality of the evidence, the jury could reasonably conclude that the defendant aided and abetted another in the commission of the crime.
4. An appellate court reviews a trial court's response to a jury question for an abuse of discretion.
5. When the answer to a jury's question is adequately covered by the original instructions, the trial court may decline to answer the question and direct the jury to reread the instructions already given.
6. Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude allowed the prosecutor in discussing the evidence. Second, if misconduct is found, the appellate court determines whether the improper comments prejudiced the jury against the defendant and denied the defendant a fair trial.
7. In closing argument, a prosecutor may draw reasonable inferences from the evidence but may not comment on facts outside the evidence.
Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause, and Theresa L. Barr, of the same office, was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
[297 Kan. 1175] Moritz, J.
Steven S. Novotny directly appeals his jury convictions of first-degree felony murder and aggravated battery. Novotny argues the district court erred in (1) denying his motion to suppress evidence seized during a search of his house; (2) denying his motion to suppress one victim's identification of him as the shooter; and (3) improperly instructing the jury on aiding and abetting. Novotny further argues the prosecutor committed reversible misconduct during closing arguments and the cumulative effect of trial errors deprived him of a fair trial. Finally, he argues the district court violated his constitutional rights at sentencing. We affirm Novotny's convictions and sentences.
Factual and Procedural Background
On April 25, 2007, as Xavier Worley and Desmond Adams stood on the front porch of Worley's apartment, two men came around the corner of the building and walked past Worley and Adams, only to turn around and walk back. One of the two men said, " What's up." After Worley replied, " What's up," one of the men opened fire, shooting Worley three times and fatally striking LaQuishia Starr, Worley's girlfriend, who was inside the apartment.
Officer Joshua Lewis of the Wichita Police Department accompanied Worley on his ambulance ride to the hospital. Worley told Lewis he did not know who shot him, but that he had seen the shooter earlier that day in the neighborhood. Worley described the shooter as a 5'9" tall light-skinned black man with cornrow braids.
Starr's sister, Trashell Gasper, arrived at the hospital sometime after Worley emerged from surgery and asked Worley who shot [297 Kan. 1176] him. Worley could not speak following his surgery, but he wrote the word " Loco" on a piece of paper and indicated that his cousin, Lori Worley, knew Loco. On the same piece of paper, Gasper wrote a description Worley provided of Loco through nonverbal responses to Gasper's questions about Loco's appearance--Mexican, black hair, 5'8" to 5'10" tall and skinny, with long hair and braids. Gasper gave the written information to Detective Thomas Fatkin.
The next day, Detective Thomas Fatkin visited Worley in his hospital room. Worley was still unable to speak, but he communicated with Fatkin through nonverbal gestures and in writing. Worley described the shooter to Fatkin as a 5'7" tall, " mixed-male" man,
weighing approximately 175 pounds with brown and black hair. Worley indicated the shooter's name was Loco and that Worley's cousin, Lori Worley, previously dated a friend of Loco's and had a child with that friend. Finally, Worley informed Fatkin that he had seen Loco in Worley's neighborhood earlier on the day of the shooting.
Because of tips from Worley's family that Novotny shot Starr, Fatkin showed Worley a single photo of Novotny, who police knew by the alias " Loco." Fatkin asked Worley if the person in the photo was the same " Loco" who shot him. Worley wrote " not the same" on Novotny's photo. Later that day, Fatkin returned to the hospital and showed Worley six more individual photos that did not include Novotny's photo. Worley identified a man in one photo as Lesly Pruitt, the man he previously referred to as Loco's friend and Lori Worley's ex-boyfriend. But Worley informed Fatkin that none of the individuals in the photos was involved in the shooting.
A few days later, Worley regained his ability to speak and told Detective Robert Shea that one of the men involved in the shooting was light skinned and the other was dark skinned, but Worley did not know which man shot him. Shea showed Worley another photo lineup. This lineup included a photo of Desmond Adams, who earlier had told police he was with Worley during the shooting. After Worley denied recognizing anyone in the lineup, Shea informed Worley he had already spoken with Adams. Worley then [297 Kan. 1177] changed his story and admitted Adams was with him on the front porch immediately before the shooting.
After Shea asked Worley whether tips received by police identifying Loco as the shooter were true, Worley admitted Loco shot him. Shea then showed Worley a single photo of Novotny and asked Worley, " Is this Loco?" Worley said the photo " [It] looks like him." Shea asked, " So that's the guy that was there?" Worley replied, " Yes." Even though Worley verified that he knew the man in the photo as Loco, he refused to sign the photo identifying Novotny as the shooter, citing fears of retaliation.
At trial, Worley testified he did not initially admit to police that Novotny shot him because " they could have came back after me or something like that" and he " wasn't feeling comfortable with snitching on somebody." Worley explained that for his family's sake, he finally admitted Loco shot him. Further, Worley identified Novotny at trial as the man he knew as Loco.
Worley testified that on the night of the shooting, he and Desmond Adams were standing on Worley's porch. Worley saw two men come around the corner and walk past before turning around and walking toward the porch. The man Worley knew as Loco and a second man approached Worley and Adams, and Loco said, " What's up." After Worley replied, " What's up," Loco shot him three times. Worley testified he knew Loco because his cousin, Lori Worley, had dated Loco's friend several years ago. At trial, Worley could not recall whether he identified Loco's friend as Lesly Pruitt when he spoke with Detective Fatkin, but he did recall identifying Loco as Lori Worley's " baby daddy's friend." Worley further testified he had seen Loco at an apartment across the street on the day of the shooting. However, Worley said he could not identify the other man involved in the shooting because he wore a hooded sweatshirt.
Adams testified at trial that he saw two black males--one lighter skinned and one darker skinned--approach Worley before the shooting. Adams could not see either of the men's faces, but he identified the darker-skinned black male, who was wearing a hooded sweatshirt, as the shooter. Adams also identified Novotny [297 Kan. 1178] as the man he knew as Loco, but he testified that Novotny was not the light-skinned black man involved in the shooting.
Brandi Williams lived across the street from Worley. Brandi testified that several people were visiting her home on the night of the shooting, including Novotny, whom she knew as Loco, and Brandi's friend, Shannon Williams. At some point, Brandi and Shannon went to a local restaurant and, as they were leaving, Brandi saw Worley outside his apartment near some cars. When Brandi and Shannon returned several hours later there were police everywhere.
Shannon Williams testified that on the night of the shooting, Novotny, whom she knew as Loco, and several other men were sitting around a table at Brandi's home, " drinking and getting high." Shannon saw guns on the table and saw a few men holding guns, but she could not recall if Novotny was holding a gun. Shannon heard Novotny say he was upset because " his sister's house got hit up by a drive-by." According to Shannon, Novotny said " he wanted to do something about it" and " get back at" those responsible for the drive-by, but he did not specifically refer to the men across the street. Shannon also testified that " [Novotny] and a couple other people were talking about doing something," and several of the men, including Novotny, were " getting hyped up" about the situation.
Law enforcement officers eventually searched Novotny's residence pursuant to a search warrant. During the search, officers retrieved a number of items, including a 9-millimeter live cartridge. Gary Miller, a firearm and tool mark examiner, testified for the State that the two cartridge casings found at the crime scene had both been fired from the same firearm. Miller compared the two cartridge casings from the crime scene with the live cartridge found at Novotny's house and opined that all three " had at one time been chambered and extracted from the same firearm." Miller also compared three 9-millimeter bullets found at the crime scene with each other and determined the bullets were all fired from the same firearm, but Miller could not determine whether the two cartridge casings and the three bullets were all fired from the same firearm.
[297 Kan. 1179] John Cayton, a private forensic firearm and tool mark examiner, testified for the defense. Cayton agreed that the two cartridge casings found at the crime scene were fired from the same firearm, but he could not conclude the live cartridge found at Novotny's residence had been chambered or extracted from the same gun as the two cartridge casings.
A jury found Novotny guilty of the aggravated battery of Worley and the first-degree felony murder of Starr. The court sentenced Novotny to life in prison with a mandatory minimum of 20 years on the first-degree murder conviction and a consecutive term of 48 months' imprisonment on the aggravated battery conviction. We have jurisdiction ...