[Copyrighted Material Omitted]
Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge.
BY THE COURT
1. When the testimony of a State witness in a criminal trial has been so successfully impeached that it is shown to be a fabrication, and the defense chooses to continue the trial rather than argue for mistrial because it wants to use the fabrication to its advantage, any error in failing to grant the State's motion for mistrial is, at most, invited error that cannot provide relief to the defendant on appeal.
2. On the damning facts in this case, any failure on the part of the district court judge to analyze evidence of a prior dispute between the defendant and the murder victim under K.S.A. 2013 Supp. 60-455 was harmless.
3. A district judge's mistaken substitution of the word " any" for the word " each" in his or her oral recitation of the jury's instruction that " if you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty" does not require reversal of a criminal defendant's conviction when the preferred " each" appeared in the written instruction taken with the jury into deliberations.
4. A criminal defendant has personal statutory and constitutional rights to be present in open court when an answer to a jury question is delivered. The district court judge's failure to follow such a procedure in this case was harmless error.
Rick Kittel, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jennifer S. Tatum, assistant district attorney, argued the cause, and Michael C. Duma, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
[299 Kan. 777] BEIER, J.
A jury convicted Dominic Verser of first-degree murder and criminal possession of a firearm in the March 2009 shooting death of Olivia Anaekwe, the mother of his child. On this appeal, Verser raises four issues: (1) failure to grant a mistrial; (2) failure to apply K.S.A. 2013 Supp. 60-455 to evidence of a previous dispute between Verser and Anaekwe; (3) error in a jury instruction on reasonable doubt; and (4) error in responding to a jury question. None of these challenges requires reversal of Verser's convictions or sentences.
Factual and Procedural Background
Verser and Anaekwe began dating in late 2007 or early 2008. Anaekwe eventually became pregnant, and she and Verser began living together. In August 2008, Verser moved out. Verser moved in with his mother, Claudette Barker, who lived in one side of a conventional duplex, which shared a driveway with the duplex' other unit. According to Anaekwe's sister, Angel Sallis, Anaekwe would " constantly" visit Verser's home and the two continued to have an " off and on" relationship. In February 2009, Anaekwe gave birth to their daughter.
The problems between Verser and Anaekwe continued after the baby's birth. In the early morning hours of March 3, 2009, Anaekwe called 911 after Verser " kicked her out" of his home but kept their baby inside. When an officer arrived in response to the call, Anaekwe was waiting in her car. Anaekwe and the officer then went and knocked on the door of Verser's home and asked for the baby. Claudette answered the door and gave the baby to Anaekwe and the officer. Verser had left the home before police arrived.
On the afternoon of March 26, 2009, Anaekwe drove her brother, Richard, to work. Richard would later testify that Anaekwe told him during the car trip that she intended to " move away from Kansas" to " get away from it all" and to get away from Verser. After dropping Richard off, Anaekwe went to Verser's home to give Verser's sister, Chrishawn Barker, a ride to a bank.
When Anaekwe and Chrishawn returned from the bank, Verser was at the duplex. Anaekwe had overheard Chrishawn and Verser [299 Kan. 778] discussing whether he would go to Michigan with Chrishawn. But at about 4 p.m., on the front porch of the duplex, Verser told both women that, because of the baby, he would not be going to Michigan. Chrishawn then went inside and slept until approximately 9 p.m.
When Chrishawn woke up, she spent a short time at a house next door to the duplex, where her cousin, Anthony Barker, lived; Anthony was having a party. When she returned from the party, she saw Anaekwe, Verser, and the baby in the backseat of Anaekwe's car, which was parked in the driveway of the duplex. Chrishawn went back into the duplex and again fell asleep.
Sometime between 10 p.m. and 10:30 p.m., Steven Ward, who lived in the second unit of the duplex where Verser lived, heard a commotion outside. He believed the commotion--caused by two people, one of whom was a woman--lasted between 8 and 10 minutes and ended " [l]oud and fast" with " [a] loud thud, boom." After about 10 minutes of quiet, the police and fire departments responded to the scene.
Ward's wife, Joyce, was in another room of the Wards' side of the duplex during the commotion. She heard what sounded like a car " quickly" leaving the shared driveway between 9 p.m. and 10 p.m. A few minutes later, she heard a woman scream. To Joyce, the scream sounded like the woman was " scared like something was wrong."
A third neighbor reported that he heard what he believed to be a gunshot at approximately 10:45 p.m.
A 911 dispatcher received a call from Verser's residence at 10:41 p.m. Although Claudette would initially say that she placed the call after hearing what sounded like " firecrackers," she eventually conceded that she made the call after Verser came inside and
said Anaekwe had been shot. During the 911 call, Claudette gave the phone to Chrishawn. Chrishawn had just awakened, and, when she took the phone, her mother told her to tell the 911 operator that they had " heard gunshots."
Antonio Barker, Verser's brother who lived with Verser, said Verser had come into the duplex and admitted shooting Anaekwe.
[299 Kan. 779] Kevin Barker, a cousin who lived with Verser, also saw him after the shooting. Kevin was at Anthony's house next door when he and Anthony heard what sounded like a woman yelling. A short time later, Verser's mother arrived and handed Kevin a heavy object wrapped in a white t-shirt. According to Kevin, the object " felt like a firearm," and he hid it under a mattress in Anthony's bedroom.
When Verser arrived at Anthony's house a short time later, Kevin said, Verser had blood on his bottom lip. Verser went into a downstairs bathroom for a moment, and while he was in there, he looked in the mirror " like . . . he was looking to see what . . . was on his face." He also made a telephone call to an unidentified person. Kevin did not see Verser again between the night of the murder and Verser's trial.
After the 911 call, Chrishawn saw the baby lying on a couch in Verser's home and took her across the street to wait at a relative's house for the police. Chrishawn did not know how the baby had gotten inside the duplex and onto the couch. Although Chrishawn tried to get her mother to come across the street with her and the baby, her mother did not follow.
When firefighters arrived on the scene, they found Anaekwe's car stopped in the street with its driver's door open and a body lying partly in the street and partly in the car. There was no pulse detectible, and, based on that and the nature of the injuries, it was apparent that the person, later identified as Anaekwe, was dead.
According to an autopsy conducted the next day, Anaekwe had suffered a " perforating gunshot wound" to the right side of the top of her head. The coroner concluded that a high-powered round was fired from a gun at least 24 inches away. The State's bloodstain-pattern analyst concluded that the front driver's side and passenger doors were closed when the shot was fired, and a spent cartridge was found beneath Anaekwe's body. The cartridge's location, in addition to the pattern of the bloodstains, demonstrated that Anaekwe had been shot from the direction of the backseat and that the gun was inside the car when fired. The bloodstain-pattern analyst could not determine whether the person holding the gun also was inside the car when the shot was fired.
[299 Kan. 780] The gun used in the murder was never found, but the casing showed that the gun fired a .223 cartridge. A search of Verser's residence produced a live .223 REM cartridge in a dresser and a manual for a Kel-Tec PLR-16 pistol, which fires a .223 round. A firearms expert also was able to conclude from the casing that the murder weapon was likely to have been a Kel-Tec PLR-16 or a Kel-Tec SU-16 rifle, each of which employs a specific bolt mechanism; but the expert could not definitively rule out other guns.
Verser was immediately a suspect in the shooting, but police did not locate him until approximately 6 months later. Operating on a tip, Kansas City, Missouri, police officers found Verser in a park. Although Verser ran when the officers attempted to speak to him, he was caught after a short chase. Upon arrest, Verser gave a false name.
Before his trial, Verser filed a motion in limine to prevent the State from presenting testimony about any prior crimes or civil wrongs controlled by K.S.A. 2013 Supp. 60-455. Verser was primarily concerned about the March 3 incident, in which Anaekwe had to summon police to get the baby from inside Verser's residence. At a pretrial hearing on the motion, the district judge intimated that the evidence would not come within the purview of K.S.A. 2013 Supp. 60-455, but he did explicitly rule on the admissibility question. At trial, when Verser objected to testimony about Anaekwe's 911 call, the district judge allowed the evidence, apparently reasoning that the evidence did not fall under K.S.A. 2013 Supp. 60-455.
The most controversial testimony at Verser's trial came from Michael Cox, another neighbor. The State became aware of Cox only a few weeks before trial, after Anaekwe's mother found him. Cox met with detectives for the first time a week before trial began. Then, at trial, during his direct examination, Cox testified that he heard " firecrackers" at approximately 10:50 p.m. on the night of Anaekwe's murder. The noise prompted Cox to look outside, where he saw a car sitting in the street with its driver's side door open. A man that Cox was " 45%" sure was Verser was standing next to the car. Cox said that he observed a gun in the man's hand and that [299 Kan. 781] he saw the man take a baby out of the backseat. Cox testified that the man then ran away from the car and up the street.
Defense counsel's cross-examination of Cox entirely neutralized Cox's value to the State's case. Cox had testified on direct that he arrived home about 10:35 p.m., but he was forced to admit on cross that he had not left work until 11:10 p.m. and did not arrive home until approximately 11:50 p.m.--well after the murder. Defense counsel also asked Cox about a statement he had given to detectives about seeing the victim " hunched over to the right in the car." Cox admitted he had not actually seen any such thing. Cox also had told investigators and had testified on direct that he left his house after the murder, which explained why he was not around to provide a statement during the initial investigation. The cross-examination then concluded with the following exchange:
" Q. Are you sure you remember what you're testifying that you remember or do you think you remember ...