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Appeal from Douglas District Court; SALLY D. POKORNY, judge.
1. The forfeiture by wrongdoing exception to the right of confrontation only applies where the State has proved by a preponderance of the evidence that the defendant's act of wrongdoing was specifically intended to prevent the witness' testimony.
2. A defendant's prior testimony in a subsequent trial is inadmissible if the prior testimony was compelled by improper admission of evidence that was illegally obtained.
3. The district court commits reversible error by allowing a late witness endorsement when such endorsement results in surprise or material prejudice to defendant, preventing a fair preparation of his or her defense.
4. Where the elements of the two offenses are identical, a verdict of not guilty on one count is inconsistent with a verdict of guilty on the other count.
5. A verdict of not guilty on one criminal charge is inconsistent with a verdict of guilty on another criminal charge that includes the same acts necessary to the commission of the crime set forth in the first charge. But an acquittal under a count charging a major offense is not inconsistent with a conviction under a count charging a lesser included offense.
6. Reckless second-degree murder is the killing of a human being committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life. Involuntary manslaughter is the unintentional killing of a human being committed recklessly. The difference between the two crimes is the degree of recklessness required to prove culpability. Reckless second-degree murder requires proof of extreme indifference to the value of human life.
7. Verdicts are not inconsistent if they can be reconciled in any manner upon any rational basis.
8. A verdict, though inconsistent, is not erroneous so long as there is sufficient evidence to support it.
9. A party may not object at trial to admission of evidence on one ground and then on appeal argue a different ground.
10. No verdict shall be set aside based upon the erroneous admission of evidence unless an objection was timely interposed and so stated as to make clear the specific ground of objection. Generally, constitutional grounds for reversal are subject to this same rule; and objections raised for the first time on appeal are not properly preserved for appellate review.
11. Because testimonial hearsay implicates a defendant's constitutional right to confrontation, it may not be introduced into evidence unless a court finds that the declarant is unavailable as a witness and that the defendant had a prior opportunity to cross-examine the declarant.
12. As a general rule, statements made to health care professionals during the course of treatment are not testimonial; nevertheless, courts must analyze the testimonial nature of the statements in the context in which they were made rather than apply a broad, categorical rule designating all such statements testimonial. A nonexclusive list of the most relevant considerations for establishing the testimonial nature of a victim's statement to a medical provider include whether the provider was a state actor or agent, whether there was an ongoing emergency, whether the encounter was formal, and whether the statements and actions of both the victim and the medical provider reflect a primary purpose focusing on medical treatment or the later prosecution of a crime.
13. The district judge may terminate the trial and order a mistrial at any time that he or she finds termination is necessary because prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.
14. When a trait of a person's character is relevant as tending to prove conduct on a specified occasion, the evidence may be admitted by the prosecution in a criminal case only after the accused has introduced evidence of his or her good character.
15. Evidence is exculpatory if it tends to disprove a fact in issue that is material to guilt or punishment or if it may be used to impeach inculpatory evidence of the prosecution. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence of the outcome.
16. A violation under Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), does not occur when a defendant or counsel knew about the evidence and could have obtained it prior to or during trial.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and STANDRIDGE, JJ.
[51 Kan.App.2d 181] Standridge, J
In 2007, Christopher A. Belone was convicted of second-degree murder and other crimes relating to the beating death of his girlfriend, Linda Begay. The Kansas Supreme Court subsequently reversed Belone's convictions and remanded his case for a new trial, where he was convicted of unintentional second-degree murder and violation of a protective order. This is Belone's direct appeal from that second trial. Belone alleges a number of trial errors, some of which he argues deprived him of his constitutional right to a fair trial. Finding no error, we affirm.
On July 29, 2006, City of Lawrence Police Officers Anthony Brixius and Micah Stegall responded to Gaslight Village trailer park following reports of criminal damage to property and a possible domestic dispute. Officer Brixius spoke with Keith Bowers, who said Begay showed up at his trailer covered in blood and told Bowers that she had been at Frank Mallonee's trailer when Belone [51 Kan.App.2d 182] came inside and began beating her with a two-by-four. Bowers took Begay to the hospital.
At the hospital, Begay appeared intoxicated and hysterical. She told hospital staff she had been assaulted by her boyfriend. Begay had a large cut on the bridge of her nose,
blood on her face, and bruises on her face, arms, legs, chest, stomach, and buttocks. Begay complained of pain all over but emphasized the pain in her abdomen. A CT scan of Begay's abdomen showed bruising to her duodenum. Begay died on August 1, 2006, from peritonitis caused by blunt force trauma to her abdomen.
The State charged Belone with second-degree murder, kidnapping, obstructing legal process or official duty, and violating a protective order. Following a lengthy trial, the jury convicted Belone as charged. Belone's convictions were affirmed by this court in State v. Belone, 221 P.3d 642, 2010 WL 173950 (Kan. App.) (unpublished opinion), rev. granted 291 Kan. 913 (2010). On review, the Kansas Supreme Court reversed Belone's convictions and remanded the case for a new trial based on a finding that the district court violated Belone's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution by admitting into evidence testimonial statements made by Begay to law enforcement in State v. Belone, 295 Kan. 499, 285 P.3d 378 (2012).
Following a second trial, which is the subject of this appeal, the jury found Belone guilty of unintentional second-degree murder and violating a protective order. The district court sentenced Belone to a controlling term of 438 months' imprisonment.
Belone raises the following issues on appeal with regard to his second trial: (1) the district court violated his Fifth Amendment right to remain silent by admitting into evidence his testimony from the first trial; (2) the district court erred in upholding his conviction for unintentional second-degree murder because the jury also found him not guilty of involuntary manslaughter; (3) the district court violated his Sixth Amendment confrontation rights by admitting into evidence the testimony from a police officer, which created an inference that Begay had identified Belone as her attacker; [51 Kan.App.2d 183] (4) the district court violated his Sixth Amendment confrontation rights by admitting testimonial hearsay from medical personnel that Begay had identified Belone as her attacker; (5) the district court erred in denying his motion for a mistrial based on the admission of improper character evidence; (6) the State violated his Fourteenth Amendment due process rights by failing to disclose exculpatory evidence prior to trial; and (7) the district court erred by using his prior convictions to increase his sentence without requiring them to be proved to a jury beyond a reasonable doubt. We address each of these arguments in turn.
1. Admissibility of Belone's testimony from the first trial
Belone presents two arguments in support of his claim that the district court erred in allowing the transcript of his testimony from the first trial to be read to the jury at the second trial. First, Belone contends the State was substantively barred from introducing his testimony from the first trial because doing so violated his Fifth Amendment right to remain silent. Second, Belone contends the State was procedurally barred from introducing his testimony from the first trial because the State failed to endorse him as a witness at the second trial.
This court's standard of review for admissibility of evidence is well known:
" When a party challenges the admission or, exclusion of evidence on appeal, the first inquiry is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo." State v. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).
Here, there is no dispute that Belone's testimony was relevant. Belone's challenge to the admission of his prior testimony focuses solely on whether the district court's decision to allow it was proper as a matter of law.
Before the first trial, the State filed a motion requesting permission to introduce
into evidence the statements Begay made to law enforcement, within which she identified Belone as the individual [51 Kan.App.2d 184] who had beaten her. The State based its argument on the rule of forfeiture by wrongdoing, which creates an exception to the right of a defendant to confront witnesses testifying at trial. The rule is grounded in the notion that a defendant who obtains the absence of a witness by his or her own wrongdoing forfeits his or her constitutional right to confrontation. See Belone, 295 Kan. at 502-03. The district court initially ruled Begay's testimonial statements to the officers were inadmissible because the State failed to meet its burden to prove by a preponderance of the evidence that Belone was responsible for Begay's unavailability by causing her death. At some point not disclosed by the record, however, the district court reversed itself and determined the statements to the officers were admissible because they fit within the forfeiture by wrongdoing exception.
To that end, Officer Brixius testified at the first trial that when he spoke with Begay at the hospital, she reported her boyfriend had beaten her and identified her boyfriend as Belone. Brixius later returned to the hospital and made an audio recording of his interview with Begay, within which she confirmed that Belone was the person who beat her. The recording of the interview was played for the jury.
Belone later took the stand in his own defense. Belone testified that he went to Mallonee's trailer because Mallonee was going to help him build a porch. Belone said that he found Begay in the back bedroom of the trailer naked from the waist down. He claimed he tried to get her dressed, but she attacked him. Belone stated he must have accidentally hit Begay in the nose as they struggled. Belone said that after he tried to clean Begay up in the bedroom, they left in his truck to go home but Begay ultimately jumped out of the truck.
On appeal, our Supreme Court reversed Belone's convictions, holding that the forfeiture by wrongdoing exception did not apply to the statements Begay made to law enforcement officers. The court explained that at the time of Belone's trial, Kansas law only required the State to show by a preponderance of the evidence that the defendant was responsible for the witness' unavailability in order to trigger the forfeiture by wrongdoing exception. But [51 Kan.App.2d 185] after Belone's trial, the United States Supreme Court ruled that the forfeiture by wrongdoing exception only applies when the State has proved by a preponderance of the evidence that the defendant's act of wrongdoing was specifically intended to prevent the witness' testimony. Belone, 295 Kan. at 503 (citing Giles v. California, 554 U.S. 353, 368, 128 S.Ct. 2678, 171 L.Ed.2d 488 ). Based on the change in applicable law, our Supreme Court held that the district court erred in admitting Begay's testimonial statements to the police because the State did not show that Belone killed Begay for the specific purpose of preventing her from testifying at trial. The court determined that the error was not harmless under the constitutional harmless error test, reversed Belone's convictions, and remanded the case for a new trial. 295 Kan. at 504-05.
At the end of the fourth day of Belone's second trial, the prosecutor advised the district court that the State had no further witnesses but requested permission to wait until the following morning to rest its case. The prosecutor explained the State wanted to make sure all of the exhibits the State intended to introduce into evidence had been offered. The court granted the State's request. Thereafter, the district court spoke with Belone about his right to remain silent and advised Belone that he could have the evening to decide whether he would testify.
Later that night, the State provided the defense with notice of its intent to read Belone's testimony from the first trial to the jury. When trial reconvened the next morning, defense counsel objected to the admission of Belone's testimony from the first trial. In support of his objection, Belone relied on Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), to argue that introducing his testimony from the first trial would violate his Fifth Amendment right to remain silent. Belone also argued that the State was procedurally barred from introducing his testimony from
the first trial because the State failed to endorse Belone as a witness at the second trial. The district court overruled Belone's objections, and Belone's prior testimony subsequently was read to the jury.
[51 Kan.App.2d 186] a. Right to remain silent
The Fifth Amendment to the United States Constitution protects an individual from testifying under government compulsion. This protection is waived when an individual voluntarily testifies on his or her own behalf. See State v. Simmons, 78 Kan. 852, 853, 98 P. 277 (1908). The waiver remains in effect for purposes of a second trial as long as the defendant voluntarily testified at the first trial. State v. Willcox, 240 Kan. 310, 313-14, 729 P.2d 451 (1986); Simmons, 78 Kan. 852, 98 P. 277, Syl. ¶ 1. If the defendant's testimony at the first trial was compelled by introduction into evidence of whet is later determined to be an illegally obtained prior confession by that defendant, however, the waiver is deemed invalid. Harrison, 392 U.S. at 222; State v. Pabst, 273 Kan. 658, 665-66, 44 P.3d 1230, cert. denied 537 U.S. 959, 123 S.Ct. 384, 154 L.Ed.2d 311 (2002); see Willcox, 240 Kan. at 313-14.
On appeal, Belone seeks to expand the legal circumstances under which a defendant's waiver of the right to remain silent at a first trial is later deemed invalid for purposes of using that testimony at a second trial. Specifically, Belone urges us to hold that if a defendant's testimony at the first trial was compelled by evidence later deemed inadmissible under any constitutional provision, the defendant's testimony cannot be used in a second trial unless the State can show that the defendant would have testified regardless of that evidence ...