[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from Montgomery District Court; Frederick William Cullins, judge.
BY THE COURT
1. Exposing bias or motive for testifying is a proper subject for cross-examination, and, by extension, a prosecutor is free to argue potential bias or motive to the jury if the evidence has established the facts on which the argument is based.
2. A prosecutor is permitted to draw reasonable inferences from the evidence and is given latitude in drawing those inferences.
3. A defendant has no right to any particular juror or to the original 12 jurors empanelled to hear a case.
4. The decision to discharge a juror lies within the sound discretion of a trial judge. The defendant carries the burden of demonstrating substantial prejudice before an appellate court will find that the trial judge abused his or her discretion.
5. Relevance presents a threshold question in determining the admissibility of evidence because K.S.A. 60-407(f) provides that all relevant evidence is admissible unless prohibited by statute.
6. To determine if evidence is relevant a trial judge must evaluate whether there is a material or logical connection between the asserted facts and the inference or result the facts are intended to establish. This evaluation is guided by the legislative directive in K.S.A. 60-401(b) that evidence having any tendency in reason to prove any material fact is relevant.
7. The definition of relevancy includes both a materiality element and a probative element. Different standards of review apply when an appellate court examines the trial judge's evaluation of each of those elements. The determination of materiality is reviewed de novo, and the assessment of probative value is reviewed under an abuse of discretion standard.
8. The type of character traits contemplated by K.S.A. 60-447 are traits such as violent, gentle, trusting, or angry. Evidence that demonstrates a pattern of behavior--a modus operandi--is not character evidence.
9. A trial judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by its prejudicial impact. On appeal, this determination is reviewed under an abuse of discretion standard, and the burden of persuasion is on the party alleging that the discretion was abused.
10. Under K.S.A. 60-456(a), a lay witness is allowed to offer opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony. An opinion is not objectionable simply because it embraces the ultimate issue or issues to be decided by the trier of fact. K.S.A. 60-456(d).
11. A trial judge has broad discretion in determining whether a witness may testify in the form of an opinion. Consequently, an appellate court reviews a trial judge's ruling on the admissibility of opinion testimony under an abuse of discretion standard. Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial judge; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is 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.
12. Under K.S.A. 60-456(a) there is no theoretical prohibition against allowing lay witnesses to give their opinions as to the mental states of others. Nevertheless, it may be error to admit a lay witness' opinion testimony regarding another's state of mind if the opinion (a) is not rationally based on the perception of the witness and (b) is not helpful to a clearer understanding of the witness' testimony.
13. When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
14. The crime of attempted rape may be established without evidence of attempted penetration.
15. Even the gravest offense may be sustained by circumstantial evidence, but the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.
16. The cumulative error doctrine is inapplicable when no errors have been found.
Sarah Ellen Johnson, of Capital Appellate Defender Office, argued the cause and was on the brief for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause and was on the brief for appellee.
[298 Kan. 276] Luckert,
A jury convicted Christopher M. Lowrance of capital murder under K.S.A. 21-3439(a)(4) for the intentional and premeditated killing of Rachel Dennis in the commission of, or subsequent to the commission of, attempted rape. We affirm Lowrance's conviction, holding: (1) The prosecutor did not commit reversible misconduct in closing argument by commenting on the defense expert's compensation or in drawing reasonable inferences from forensic evidence; (2) the trial judge's removal of a juror did not cause substantial prejudice; (3) the trial judge did not err in allowing the prosecution to introduce evidence of Lowrance's prior, premarital sexual relationship because the evidence was relevant, not prohibited by K.S.A. 60-447 as contended by Lowrance, and not unduly prejudicial; (4) the trial judge did not err in admitting opinion testimony of a lay witness regarding Lowrance's state of mind because the testimony satisfied the criteria of K.S.A. 60-456; (5) there was sufficient evidence for a rational factfinder to convict Lowrance of capital murder; and (6) cumulative error did not deprive Lowrance of his right to a fair trial.
Facts and Procedural Background
On the evening of March 1, 2007, Lowrance went to a party at Cole Osborne's house in Coffeyville. Dennis was also at the party. [298 Kan. 277] Around 4 a.m., Lowrance left the party, walked to his house to get his car, and drove back to Osborne's house. Dennis, who had gotten " pretty drunk" at the party, had fallen asleep. Osborne planned to let her sleep, but Lowrance was " pretty persistent on taking her home." Lowrance shook Dennis awake and helped her stand up. He held her upright as she stumbled to his car, where he helped her into the front passenger seat. One of the other people at the party, Ramsey Aduddell, testified he thought that Lowrance was " trying to get some," meaning that Lowrance planned to have a sexual encounter with Dennis.
Vicki Lowrance, Lowrance's wife, heard him arrive home around 5:50 a.m. on March 2. When Vicki left for work at 10 a.m., she drove the same car as the one Lowrance had used to drive Dennis from the party. Because there was mud on the car, Vicki stopped by the car wash on the way to work. She noticed what looked like vomit in the front seat of the car, and she tried to clean it up using Windex and a shop rag. When she opened the front passenger door, she saw a cell phone charger between the door and the seat.
Later that day, Lowrance told Osborne about his actions after he left the party. He stated that Dennis " had gotten sick in his car, and he went up to [the convenience
store] to clean out his car, and she wanted something to drink, and she had went in and came out with a guy and got in a black truck." Lowrance gave law enforcement officers the same account when they questioned him after Dennis was reported missing. Following up on the interview, an officer checked the convenience store's surveillance video and found images of Lowrance in the store but no images of Dennis. The officers interviewed Lowrance again, and he repeated the same account. Lowrance gave the officers a cell phone charger that he said Dennis had left in his car and a polo shirt he told them he had worn the night of the party. This shirt did not match the one Lowrance was seen wearing in the surveillance video.
On March 7, 2007, officers searched Lowrance's house and seized his car. Lowrance was interviewed again on March 9, 2007, in the presence of his attorney. In this recorded interview, he repeated what he had previously told officers. In addition, he specifically stated that he stayed in his car while Dennis went inside [298 Kan. 278] the convenience store. He also admitted he had been very intoxicated and should not have been driving, but he denied knowing where Dennis was and denied doing anything to hurt her.
On March 13, 2007, Lowrance and his attorney viewed the convenience store video in the presence of law enforcement officers. After seeing that the video showed Lowrance entering the store, walking to the counter, making a purchase, and leaving, Lowrance and his attorney privately conferred. Approximately 7 to 10 minutes later, the attorney advised the officers that Lowrance would direct them to a location where they might find Dennis' body.
Lowrance directed a detective to a bridge located approximately 10 miles north of Coffeyville. As they drove closer to the bridge, Lowrance became more nervous, started crying, and apologized to the detective. He admitted to throwing Dennis from the bridge into the river. Lowrance asked the detective to apologize to Dennis' family on his behalf and made several comments about having lied to everyone and wishing he had just told the truth from the beginning. After they got to the bridge, Lowrance became so emotionally upset he had to be removed from the scene. On the way back to the sheriff's department, Lowrance admitted to throwing Dennis' purse into the river as well.
Dennis' body was found snagged on a partially submerged tree 350 yards downstream from the bridge. A cell phone charger cord was wrapped tightly around her neck and tied in a tight knot. Lowrance was charged with capital murder under K.S.A. 21-3439(a)(4) for the intentional and premeditated killing of Dennis in the commission of, or subsequent to the commission of, attempted rape.
At Lowrance's trial, several witnesses described the river, the bridge, the location where Dennis' body was found, and the condition of her body. They described that the water level was below normal and was flowing approximately 47 feet under the bridge. At the point where Dennis' body was recovered, the surface velocity of the river was slower than other parts of the river. Dennis' upper body was clothed with several layers, including a partially zipped jacket, but there was no clothing covering any part of her body from the waist down. She still wore a necklace and had rings on one finger and on one toe, and an earring was found in the front [298 Kan. 279] part of her bra. Dennis' ...