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Appeal from Sedgwick District Court; WARREN M. WILBERT, judge.
BY THE COURT
1. A defendant requesting a change of venue based upon pretrial publicity must satisfy the district court 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. The defendant bears the burden to show prejudice exists in the community as a matter of demonstrable reality and to show that the level of prejudice makes it reasonably certain that the defendant cannot obtain a fair trial.
2. Both our federal and state constitutions entitle a criminal defendant to present evidence in support of his or her theory of defense, but a trial court does not err by excluding evidence that is not relevant to a legally sufficient theory of defense.
3. Regardless of whether Kansas courts can recognize a necessity defense as a matter of common law and regardless of the formulation of the defense that might be adopted, the necessity defense would never be available to a defendant who commits premeditated first-degree murder of a doctor in order to prevent that doctor from performing an abortion sometime in the future, even if the defendant is convinced that the doctor will fail to comply with all the administrative rules and regulations applicable to abortion providers.
4. The crime of imperfect defense-of-others voluntary manslaughter is defined as the intentional killing of a human being committed upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211. Under K.S.A. 21-3211, a person is justified in the use of deadly force against another's use of unlawful force when the person reasonably believes deadly force is necessary to prevent the imminent death or great bodily harm to a third person.
5. An unreasonable but honest belief that circumstances existed that justified deadly force will not support a claim of imperfect defense-of-others unless the circumstances, if reasonably believed, would have supported a claim of perfect defense-of-others under K.S.A. 21-3211.
6. If, as a matter of law, the circumstances that the defendant honestly believed existed would not have supported a claim of imperfect defense-of-others, the trial court does not err in refusing to admit the defendant's proffered evidence to corroborate the honesty of the defendant's belief.
7. A prosecutor's improper comment or argument during closing argument can be prejudicial, even if the misconduct was extemporaneous and made under the stress of rebutting defense counsel's arguments. The extemporaneous, rebuttal nature of a prosecutor's comment or argument is merely a factor that may be considered on appeal.
8. Where there is no reasonable possibility that a prosecutor's improper comment or argument during closing argument contributed to the jury's verdict, the error will not result in a reversal of the defendant's conviction.
9. Where the defendant testified that he intentionally killed a specific person after having premeditated the murder for approximately 16 years, any error by the district court in refusing to give a lesser included offense instruction on second-degree murder based upon the killing being an instantaneous act was harmless beyond a reasonable doubt.
10. A perfect defense-of-others claim is not objectively reasonable where the perceived harm to be prevented will not occur until sometime in the future, i.e., where the other's unlawful use of force against a third person is not imminent.
11. The test for cumulative error is whether the trial errors, which were not singularly reversible, nevertheless combined in such a way as to deny the defendant his or her right to a fair trial.
12. Kansas' statutory procedure for imposing a hard 50 sentence as provided in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution as interpreted in Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 2155, 2160-63, 186 L.Ed.2d 314 (2013), because it permits a judge to find by a preponderance of the evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.
13. The propriety of retroactively applying the hard 50 sentencing scheme set forth in K.S.A. 2013 Supp. 21-6620 after an appellate court vacates a hard 50 sentence imposed pursuant to K.S.A. 21-4635 will not be ripe for appellate review until a prosecutor chooses to pursue such a sentence upon remand for resentencing.
Rachel L. Pickering, of Kansas Appellate Defender Office, argued the cause, and Michelle A. Davis, of the same office, was with her on the briefs for appellant, and Scott P. Roeder, appellant pro se, was on the supplemental briefs.
Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Stephen Douglas Bonney, of ACLU of Kansas & Western Missouri, of Kansas City, Missouri, and Alexa Kolbi-Molinas and Talcott Camp, of counsel, ACLU Foundation, of New York, New York, were on the brief for amici curiae National Abortion Federation, American Civil Liberties Union, and ACLU of Kansas & Western Missouri.
JOHNSON, J. MORITZ, J., not participating.
[300 Kan. 903] JOHNSON,
On May 31, 2009, Scott Roeder executed his years-old plan to kill Dr. George Tiller to prevent the Wichita, Kansas, doctor from performing any further abortions. After fatally shooting the doctor from point blank range during church services while the doctor served as an usher, Roeder hastily fled the premises. During his getaway, Roeder threatened to shoot two other ushers who had pursued him outside the church. Roeder did not deny [300 Kan. 904] committing the physical acts underlying a premeditated first-degree murder charge and two counts of aggravated assault, and the jury convicted him of those offenses.
On appeal, Roeder challenges both his convictions and his hard 50 life sentence. With respect to his convictions, Roeder raised numerous issues, some of which overlap, to-wit: (1) The district court erroneously denied his requested instruction on voluntary manslaughter based upon an imperfect defense-of-others; (2) the district court violated his due process right to present a defense of voluntary manslaughter based upon an imperfect defense of another; (3) the district court erroneously denied the defense motion for a change of venue; (4) the prosecutor committed reversible misconduct during closing argument; (5) the district court violated his due process right by excluding evidence to support a necessity defense and by failing to instruct on the necessity defense; (6) the district court erroneously denied his requested second-degree murder instruction; (7) the district court erroneously denied his requested defense-of-others instruction; and (8) the cumulative effect of trial errors denied him a fair trial. Finding that Roeder was not denied a fair trial, we affirm his convictions.
With respect to Roeder's sentence, our determination that the sentencing scheme in K.S.A. 21-4635 violates the Sixth Amendment to the United States Constitution requires that we vacate Roeder's hard 50 sentence and remand for resentencing. Therefore, we will not address Roeder's other sentencing issues.
Factual and Procedural Background
Because Roeder did not deny that he intentionally shot Dr. Tiller in the head with the premeditated intent to kill him or that he intentionally threatened to shoot the two ushers to prevent their pursuit as he ran away from the church, a good deal of the evidence at trial dealt with Roeder's religious beliefs and their manifestation into his perceived need to kill Dr. Tiller.
Roeder testified about his 1992 conversion to Christianity, which ultimately led to a strong opposition to abortion. He testified that he believed that " [f]rom conception forward, [abortion] is murder" because " [i]t is not man's job to take life." As his feelings against [300 Kan. 905] abortion intensified, Roeder became actively involved in the anti-abortion movement, often demonstrating at abortion clinics, including Dr. Tiller's, in an attempt to convince patients not to have abortions. Roeder focused on Dr. Tiller because the doctor " was one of the three late-term abortionists in the country," and Roeder believed late-term abortions " are definitely wrong." Roeder encouraged women arriving at Dr. Tiller's clinic to instead seek counseling next door at the Crisis Pregnancy Center. Roeder related that some of the women with whom he spoke outside Dr. Tiller's clinic ultimately decided not to have abortions, and he therefore deemed his interventions to be successes in his fight against abortion.
Roeder was also allowed to testify about the criminal charges that had been brought against Dr. Tiller and Roeder's frustration with the results of those cases. He related that in 2006, the Attorney General at that time filed felony charges in Sedgwick County alleging that Dr. Tiller had unlawfully performed late-term abortions but that those charges were dismissed the next day at the insistence of the Sedgwick County District Attorney. In 2009, an assistant attorney general prosecuted Dr. Tiller on 19 misdemeanor counts of failing to follow the correct procedure in performing late-term abortions, but a jury acquitted Dr. Tiller on all 19 counts. Roeder testified that the acquittal caused him to believe that
" [t]here was nothing being done and the legal process had been exhausted and these babies were dying every day, and I felt that if someone did not do something, he was going to continue aborting children, and so I felt that I needed to act and quickly for those children."
Roeder was further permitted to discuss previous attempts to " stop" Dr. Tiller by other anti-abortion criminals. For instance, Dr. Tiller's clinic was bombed in 1986, but the clinic was functioning again a few days later. In 1993, a woman shot Dr. Tiller once in each arm, but he was back at work the next day. Accordingly, in 1993, Roeder began exploring the possibility of personally using physical force against abortion providers in general and Dr. Tiller in particular. Roeder even admitted that he initially thought about cutting Dr. Tiller's hands off
with a sword but ultimately decided that he needed to kill Dr. Tiller.
[300 Kan. 906] Roeder explained that he abandoned his initial plans to commit the murder at Dr. Tiller's home or clinic because of the security measures the doctor had put in place. That circumstance led Roeder to the realization that the only place he could get close enough to Dr. Tiller was in the doctor's church. From the record, one cannot discern whether Roeder grasped the irony of his testimony, i.e., the only way that Roeder could kill the doctor in the name of his own God was to commit the murder in the house of Dr. Tiller's God. Roeder took affirmative steps toward accomplishing the goal of his new plan as early as 2002 when he made his first visit to the doctor's church and gathered information about the premises.
Some years later, in 2008, Roeder again attended the services at Dr. Tiller's church, this time armed with a 9mm weapon with which to shoot the doctor. That attempt was thwarted by the doctor's absence from that particular service.
On May 18, 2009, Roeder bought a Taurus PT .22 caliber semi-automatic handgun from a pawn shop in Lawrence, Kansas. Roeder's federal background check was held up, delaying delivery of the weapon to Roeder until May 23, 2009. The next day, Roeder took that weapon to Dr. Tiller's church, but again, the doctor was not attending the service. Six days later, Roeder returned to the pawn shop to buy two boxes of ammunition, which he took to his brother's home in a rural area near Topeka, Kansas, to test fire his gun. After experiencing problems with the weapon, Roeder and his brother went to a gun shop in Topeka and purchased a different type of ammunition before Roeder headed to Wichita to " deal with Dr. Tiller." During his drive to Wichita, Roeder pulled over in rural areas and test-fired the weapon with the new ammunition.
After arriving in Wichita, Roeder attended the Saturday evening service, but again, the doctor was not in attendance. After staying the night in a Wichita hotel, Roeder returned to Dr. Tiller's church. He backed his car into a stall as close as possible to the church doors to facilitate a hasty exit. Roeder entered the church and took a seat in the sanctuary until he spotted Dr. Tiller in the church foyer. Then, he approached the doctor and, without warning, placed the gun to Dr. Tiller's forehead and pulled the trigger. Roeder immediately fled the scene of the crime, running from the [300 Kan. 907] church foyer to his parking spot and then driving away in his vehicle.
Two men who were serving as ushers with Dr. Tiller that Sunday, Gary Hoepner and Keith Martin, separately chased after Roeder. At different points along his escape route, Roeder separately pointed his weapon at Hoepner and Martin, threatening to shoot each of them. Hoepner was able to report the shooting to a 911 operator, and another church member relayed Roeder's vehicle license plate number.
After leaving the church parking lot, Roeder drove towards his Kansas City home. Along the way, he disposed of his weapon in Burlington, Kansas. A deputy spotted Roeder's vehicle on I-35 and pulled him over near Gardner, Kansas, at approximately 1:25 p.m. Roeder made no attempt to resist arrest.
Roeder testified that he killed Dr. Tiller because if someone did not stop Dr. Tiller, " he was going to continue [performing abortions] as he had done for 36 years." More specifically, Roeder believed that if he did not kill Dr. Tiller, unborn children were going to die 22 hours later because Dr. Tiller had abortions scheduled at his clinic the next day.
The jury convicted Roeder of premeditated first-degree murder and two counts of aggravated assault. The district court found aggravating circumstances to impose a hard 50 life sentence on Roeder's first-degree murder conviction, as will be discussed below, and further imposed 12 months' imprisonment on each of the aggravated assault convictions; all sentences were imposed consecutively.
Roeder timely appeals his convictions and hard 50 sentence. We take the liberty of addressing Roeder's issues in a different order than he presented them, beginning with his change of venue request, the disposition
of which could render the remaining issues on appeal moot.
Change of Venue
Prior to trial, Roeder's counsel filed a motion for change of venue based on the long history of public conflict and controversy surrounding the abortion portion of Dr. Tiller's medical practice [300 Kan. 908] and, more particularly, based on the publicity surrounding this homicide case. At the motion hearing, defense counsel proffered into evidence 32 exhibits which detailed the reporting of the case by The Wichita Eagle, the community's major daily newspaper. Defense counsel " stipulate[d] that part of the pretrial publicity [was Roeder's] own doing" but argued that fact did not change the district court's inquiry into whether pretrial publicity had tainted the jury pool. The defense asked the judge to either rule that the pretrial publicity, standing alone, mandated moving the trial to a new venue or to keep an open mind throughout jury selection because defense counsel, if necessary, planned to make a renewed motion after attempting to impanel a jury.
The district court initially held that it would be premature to rule on a change of venue until the court had attempted to impanel a jury. Jury selection began with 140 venire persons, who had all completed a questionnaire prepared by the district court to be utilized during jury selection. The court split the potential jurors into three panels, and the parties conducted an individual voir dire of the first panel of 61 persons. Jury selection proceeded smoothly, and the district court was able to impanel a jury that it declared to be fair and impartial without going beyond the first panel of potential jurors. The district court then denied Roeder's renewed motion for a change of venue. On appeal, Roeder contends that the district court abused its discretion in refusing to change venue because the prior history of turmoil surrounding the abortion clinic in Wichita, coupled with the pretrial publicity in this case, resulted in the Wichita community being prejudiced against Roeder. We disagree.
Standard of Review
Roeder's appellate counsel acknowledges that, pursuant to State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001), this issue would be reviewed for an abuse of discretion and that the defendant would carry the burden to show prejudice. Recently, in State v. Carr, 300 Kan. 1, 331 P.3d 544, 596 (2014), we clarified that a change of venue challenge under the Sixth Amendment to the United States Constitution [300 Kan. 909] based on pretrial publicity is viewed through two different lenses:
" 'The first context occurs where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in the community. We " presume prejudice" before trial in those cases, and a venue change is necessary.' [ Goss v. Nelson,] 439 F.3d [621,] 628 [10th Cir. 2006]. 'In such cases, a trial court is permitted to transfer venue without conducting voir dire of prospective jurors.' House v. Hatch, 527 F.3d 1010, 1023-24 (10th Cir. 2008).
" The second context, 'actual prejudice,' occurs 'where the effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.' Goss, 439 F.3d at 628; see Gardner v. Galetka, 568 F.3d 862, 888 (10th Cir. 2009). 'In cases of actual prejudice, " the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole." [Citation omitted.]' Hatch, 527 F.3d at 1024."
A presumed prejudice challenge is subject to a mixed standard of review. The court first looks for substantial competent evidence in the record to support the factors that must be considered to determine presumed prejudice. See Carr, 300 Kan. at 70, 331 P.3d at 599-603 (discussing Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619  factors). But the overall weighing of the Skilling factors results in a conclusion of law that is subject to a de novo standard. Carr, 300 Kan. at 2, 331 P.3d at 599. On the other hand, the actual prejudice analysis is reviewed for
an abuse of discretion. 300 Kan. at 73, 331 P.3d at 605.
The Kansas statute governing a change of venue calls for the defendant to establish a high level of prejudice, to-wit:
" In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him [or her] to another county or district 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." K.S.A. 22-2616(1).
Our caselaw confirms that a defendant seeking reversal of a denied motion to change venue is facing a steeply uphill battle. " The determination of whether to change venue is entrusted to the sound discretion of the trial court, and its decision will not be [300 Kan. 910] disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999)." Higgenbotham, 271 Kan. at 591. The defendant bears the burden " to show prejudice exists in the community, not as a matter of speculation but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial. 267 Kan. at 336." 271 Kan. at 591-92.
Roeder does not make a constitutional presumed prejudice challenge. His brief quotes Higgenbotham for the factors to consider when determining whether the statutory grounds for a change of venue exist:
" 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." 271 Kan. at 592.
Roeder does not segregate the factors for individual consideration, rather he focuses on the general facts that Dr. Tiller was at the center of a decades-long conflict with anti-abortionists and that there was " 'massive pretrial publicity'" about Dr. Tiller's death. Certainly, there is plenty of evidence in the record from which one could find that the particular degree to which the publicity circulated throughout the Wichita community was much greater than for most other homicides. For instance, the day after Dr. Tiller's death, June 1, 2009, The Wichita Eagle printed seven articles--three on the paper's front page--which contained multiple statements from anti-abortion and abortion rights groups, together with an opinion piece and letters to the editor relating to Dr. Tiller and the homicide investigation. Several articles identified Roeder as the suspect in Dr. Tiller's murder, including a front page article headlined: [300 Kan. 911] " Suspect is linked to anti-government group," which included Roeder's photograph and information on his past anti-abortion activities. The Wichita Eagle continued to carry articles related to Dr. Tiller and/or the homicide investigation each day through June 10, 2009, and, thereafter, the paper ran relevant articles on the following dates in 2009: June 13, 14, 17, 19, 20, 21; July 26, 29; August 10, 30, 31; October 23, 25, 30; November 10, 11, 13, 14, and 24. Letters to the editor and opinions regarding Dr. Tiller's death were also prevalent. Several of the articles contained information the media received from Roeder and his counsel. For example, one article discussed Roeder's interview with The Kansas City Star where Roeder admitted killing Dr. Tiller and discussed his trial strategy.
But Roeder has not met his burden by simply establishing the existence of a large amount of pretrial publicity. This court has opined that " media publicity alone never establishes prejudice." (Emphasis added.) State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001); see also Higgenbotham, 271 Kan. at 593 (quoting State v. Ruebke, 240 Kan. 493, 500, 731 P.2d 842, cert. denied 483 U.S. 1024, 107 S.Ct. 3272, 97 L.Ed.2d 770 ; " '[m]edia publicity alone has never established prejudice per se'" ). Moreover, although we are not aware of any precedent that would preclude a defendant from intentionally creating the publicity upon which the defendant later relies to establish the requisite prejudice to support a change of venue, such a ploy should be unavailing.
Notwithstanding the notion of gamesmanship, one can imagine that there is a sound basis for refraining from exclusive reliance on the degree to which publicity circulated throughout the community when considering whether to change the venue of a trial. For one thing, there must be some place to which the trial could be moved that would not be subject to the same degree of prejudice as the original community. Thus, the second factor addresses the degree to which the publicity or that of a like nature has circulated to those other areas to which venue could be changed.
Roeder did not present evidence on this factor, in stark contrast to the defendant in Higgenbotham, who presented a survey conducted by a litigation consulting firm. The Higgenbotham survey [300 Kan. 912] revealed that a high percentage of the people residing in Harvey County, the trial community, believed that the defendant was guilty. In comparison, the survey revealed that the residents of Ellis County, with a similar makeup as Harvey County, did not suffer " the same problems with regard to publicity and knowledge of the case." Higgenbotham, 271 Kan. at 593. In contrast to that comparative information, Roeder's own pretrial motion alleged that Dr. Tiller was known on a national scale and that the national media " including network television, national daily publications, and major internet news sources ran stories detailing the events of the killing with utmost priority." That argument actually counseled against changing venue because a move to another Kansas judicial district would still leave the trial susceptible to the prejudice created by such pervasive national publicity.
The factor addressing the amount of time that elapsed between the most intense publicity and the date of trial does not appear to be particularly compelling for either side. The majority of the coverage about which Roeder complains, especially the coverage not spurred by Roeder himself, occurred months before the trial. Some prospective jurors noted during individual voir dire that they had heard about the case when it first happened but that they had thereafter not followed or heard much about the case. Others mentioned that a lot of time had passed between the crime and the voir dire.
With respect to the next Higgenbotham factor, the record reveals that the district court exercised a great deal of care in selecting the jury. On January 6, 2010, approximately 140 jurors were summoned to court to complete the questionnaire. On January 11, 2010, at the request of the State and defense, the district court issued an order closing jury voir dire " to insure the defendant a fair and impartial jury to decide this trial." Further, based on the answers given by the potential jurors in the questionnaires, the court granted the State and defense's request for " individual voir dire of each juror to explore any challenges for cause, outside of the presence of [the] entire venire, so that any individual answers [would not] taint the entire panel." As previously noted, the court impaneled a jury from the first group of 61 persons.
[300 Kan. 913] Not surprisingly, given the amount of initial publicity, all of the selected jurors had experienced some degree of media exposure about the case prior to trial. But as Roeder acknowledges, all of the selected jurors indicated that they could be fair and impartial and base their decision on the evidence presented in court, rather than what they had previously heard or read. Moreover, the history of abortion as a hot button issue in Wichita, together ...