Appeal from Osborne District Court; WILLIAM B. ELLIOTT, judge.
BY THE COURT
1. K.S.A. 22-2616(1) provides that a change of venue motion must be granted if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he or she cannot obtain a fair and impartial trial in that county.
2. The determination of whether to change venue is entrusted to the sound discretion of the district court, and its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant.
3. In determining whether the atmosphere is such that a defendant's right to a fair trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated to other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effects, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of the jury, both peremptory and for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn.
4. Under Kansas precedent, a district court has not been held to abuse its discretion by denying a change of venue motion when hindsight shows that there were no undue difficulties in empanelling an impartial jury. The district court did not abuse its discretion in denying the defense motion for change of venue in this case.
5. When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses.
6. There is no distinction between direct and circumstantial evidence in terms of probative value. A conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the right to make the inference.
7. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. Cumulative error, however, will not be found when the record fails to support the errors raised on appeal by the defendant.
Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause, and Andrew D. Bauch, assistant attorney general, was on the brief for appellee.
ROSEN, J. JOHNSON, J., dissenting.
[299 Kan. 732] Rosen, J.
Delbert McBroom was convicted of one count of first-degree murder, one count of aggravated burglary, and one count of burglary. On appeal, McBroom argues that (1) the district court erred when it denied his change of venue motion; (2) the State presented insufficient evidence to convict him of the crimes charged; and (3) cumulative error deprived him of a fair trial. Based on the analysis below, we reject each of McBroom's arguments and affirm his convictions.
This is a companion case to State v. Wilson, 295 Kan. 605, 289 P.3d 1082 (2012).
Scott and Carol Noel lived in rural Osborne County on West 20th Drive. Scott was a farmer and cattleman; Carol worked at a bank in Smith Center. Scott's daily routine included doing chores in the morning and then returning home around the noon hour for lunch. On March 25, 2008, Scott left the couple's residence sometime between 7:15 a.m. and 7:30 a.m. to do chores. Carol left for Smith Center shortly thereafter.
[299 Kan. 733] Elinor Fink Clark lived at a residence that was located a couple of miles northeast of the Noel residence. At approximately 11 a.m. on March 25, Clark left her residence. After spending some time at the senior center in Downs, Clark returned to her residence at 1:45 p.m. When Clark went into her kitchen, she noticed that paperwork she had placed in an envelope and left on the kitchen table was now spread out over the table. Clark walked into her bedroom and saw that it was in complete disarray--drawers had been removed from a dresser and her clothes were scattered all over the floor. After calling 911 and reporting that her house had been ransacked, Clark went around her house and determined that jewelry, cash, German coins, and a pillowcase were missing. Law enforcement later arrived at Clark's residence to investigate. During the investigation, a cigarette butt was found in Clark's front yard. Notably, Clark was not a smoker.
At 3:45 p.m. that day, Carol left the bank in Smith Center and arrived home sometime between 4 p.m. and 4:15 p.m. As she drove up the lane, Carol saw that Scott's truck was parked in his usual spot near the sidewalk to the backdoor of their house. When Carol walked into the house, she saw that chairs in the dining room were toppled over and that the tablecloth on the dining room table was pulled partly off. Carol walked into the kitchen through the dining room and saw her husband's body lying on the kitchen floor with his hands tied behind his back. She called 911 and reported that her husband had been murdered.
Law enforcement officers arrived at the residence and saw that Scott's body was lying face-down on the kitchen floor. A large pool of blood surrounded the body. Scott's hands were tied behind his back with a power cord. The cord appeared to be tightly wound around his wrists. Scott had a shotgun wound to the back of his head and upper neck.
On the table in the kitchen was Scott's 12-gauge shotgun with a spent shotgun shell inside the chamber. According to Scott's son, Jason, Scott stored the shotgun in a cabinet near the kitchen. Jason also said that the shotgun was always kept unloaded when it was stored inside the cabinet.
[299 Kan. 734] Agents from the Kansas Bureau of Investigation (KBI) assisted local law enforcement with the investigation of the murder. A KBI investigator conducted a blood splatter analysis of the crime scene and determined that Scott was shot while lying in roughly the same position as he was found. A pathologist determined that the cause of death was a shotgun wound to the back of Scott's head and neck. Based on the appearance of the entrance wound, the pathologist believed that the shotgun was in contact with the back of Scott's head when it was discharged.
While officers were conducting their investigation of the crime scene, it appeared to them that someone had rummaged through drawers and other things inside the residence. Furniture in the dining room area had also been knocked over. Most notable, though, was the officers' discovery of a cigarette butt lying on the floor of the Noels' sun room. Neither Scott nor Carol smoked, and no family members or guests ever smoked inside the home.
People driving in the area of the Noel residence around the noon hour reported seeing a suspicious vehicle. Bradley Davis stated that at approximately 11:45 a.m., he was driving west on West 20th Drive towards the Noel residence when he noticed from about 100 yards away a " four-door smaller vehicle" pulling out of the Noel driveway and turning west on West 20th Drive. Davis said that the vehicle was traveling faster than normal--between 20 and 30 miles per hour--when it pulled out the Noel driveway. Davis also thought that the vehicle looked out of the ordinary because he had never seen it before. He knew it was not a vehicle that would normally be seen leaving the Noel driveway.
Davis followed the vehicle westward on West 20th Drive until the road intersected with Highway 281. There, the vehicle turned north onto Highway 281; Davis turned south.
At McBroom's trial, Davis had the following exchange with the prosecutor concerning the vehicle he saw:
" Q. Okay. Give us the best description that you can of that vehicle.
" A. I thought it was a General Motors-type of vehicle, I wasn't really sure which brand, but it was kind of a smaller four-door car, kind of older, not very good shape at all.
" Q. What do you mean by that when you say not in very good shape?
[299 Kan. 735] " A. The paint was kind of faded, or oxidized, and kind of dirty, and like maybe there was a hubcap or two missing off it. It looked like the trunk lid wouldn't totally stay shut, so it was kind of basically an old junker car.
" Q. When you say it looked like the trunk lid wouldn't completely stay shut, can you describe exactly what you mean by that?
" A. As I was following it down the gravel road, the lid would bounce up and down just slightly as I was following it, like the lock or latch wouldn't work.
" Q. What color, do you recall?
" A. It was kind of a bluish-gray.
" Q. Were you able to make any observation of the license plate of the vehicle?
" A. I didn't really pay attention to the license plate, I guess."
With regard to who he saw inside the vehicle, Davis stated he could only see one person inside the vehicle. In describing this person, Davis stated:
" He was a male. I couldn't really tell the height. His shoulders and head were above the seat of the, or the back of the front seat of the vehicle, so I couldn't really see very much of the driver, but looked like he had some facial hair and wearing a hat, looked like a middle aged male."
Davis described the man's hat as a baseball hat. Later, on cross-examination, Davis confirmed the man as being " dark-skinned, unshaved."
At approximately 11:50 a.m., Brad Roadhouse was traveling south on Highway 281 towards Osborne when he passed the intersection of Highway 281 and West 20th Drive. As he approached and passed the intersection, he saw an older " mid-size sedan-type vehicle" slowly traveling east on West 20th Drive towards the Noel residence. He estimated that the vehicle was about an eighth of a mile east of the highway when he saw the vehicle. Roadhouse said that the vehicle did not look " roadworthy" and said that the trunk lid of the vehicle was not " very well latched" because it bounced up and down as the vehicle traveled down the road. Finally, Roadhouse described the vehicle's color as " probably gray to light blue."
Sometime between 11:35 a.m. and 11:40 a.m., Jeffrey Benson, a delivery driver for AmeriPride, left the town of Osborne and began traveling north on Highway 281 towards Smith Center. As he was driving on the highway, Benson was passed by an " older, four-door, bluish-gray car," which he thought looked " pretty unsafe." As the car passed him, he looked down and saw a person [299 Kan. 736] sitting in the passenger seat. Benson described this person as between 38 and 50 years old with " stringier hair" and wearing glasses that " seemed like they were bigger than what they should have been for his face." Based on his arrival time of 12:03 p.m. in Smith Center, Benson estimated that the vehicle passed him on the highway at approximately 11:50 a.m.
In an effort to identify the man that Benson saw, Benson was later shown a photo lineup which included McBroom's picture. Benson did not pick out McBroom's picture.
Based on the burglaries occurring at the Noel and Clark residences, law enforcement agencies in western Kansas and southern Nebraska were contacted about whether they had experienced any recent burglaries occurring at rural residences. Responses were received from Ness, Lane, and Gove Counties in Kansas and Clay and Gosper Counties in Nebraska. Subsequently, the KBI asked the agencies that responded to determine whether cigarette butts were present at the crime scenes.
Law enforcement officers investigating a March 24 burglary taking place at a rural residence in Clay County, Nebraska, reexamined the crime scene on March 27 and discovered a cigarette butt in the yard. The homeowner did not smoke. The butt was collected and turned over to the KBI. A subsequent analysis confirmed that the DNA present on this cigarette butt was the same as that present on the cigarette butt recovered from the Noel residence. Furthermore, a search of a DNA database showed that it matched Kenneth Wilson's DNA.
Based on this DNA match, law enforcement began a surveillance in mid-May 2008 of the Wilson residence in Salina. Coincidently, on May 15, 2008, McBroom and his wife, Enola, parked an RV in the Wilson backyard. Law enforcement determined that the couple was living out of the RV. Prior to this, McBroom and Enola had been living at a nearby residence. During the surveillance, law enforcement observed McBroom going in and out of the Wilson residence.
On May 23, 2008, law enforcement searched Wilson's trash and found several documents addressed to either Wilson or McBroom. One such document was a letter
addressed to Wilson from the [299 Kan. 737] Missouri Highway Patrol dated May 15, 2008. The letter advised Wilson that his 1987 Pontiac Bonneville had been towed from the side of a highway and was now stored at the towing company's place of business in Mound City, Missouri.
A trooper with the Missouri Highway Patrol later confirmed that the Bonneville had been left on the side of Highway 159 in Missouri. The car was " tagged" by the highway patrol in April 2008 and ...