Review of the judgment of the Court of Appeals in an unpublished opinion filed March 29, 2013.
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Appeal from Cherokee District Court; OLIVER KENT LYNCH, judge.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
BY THE COURT
1. K.S.A. 60-404 requires that an objection to evidence be timely interposed and stated in a manner that makes clear the specific ground of objection. A party satisfies this requirement by making a timely trial objection that incorporates pretrial arguments, even if the party does not repeat those arguments, as long as the pretrial arguments were sufficiently specific to inform the trial court of the basis for the trial objection.
2. A defendant who appeals admission of a certain witness' testimony about the defendant's other crimes or civil wrongs under K.S.A. 2010 Supp. 60-455 without challenging the same or similar testimony admitted through other witnesses that is as prejudicial or more prejudicial than the contested testimony is not entitled to reversal; any error arising out of admission of the contested testimony is harmless.
3. The jury in this case is presumed to have followed the version of PIK Crim. 3d 52.06 given by the trial court. The instruction, as modified at the request of the defense, adequately informed the jury of the limited purposes for which evidence of other crimes or civil wrongs could be considered and was not clearly erroneous by virtue of being overbroad.
4. Appellate review of allegations of prosecutorial misconduct, including misconduct occurring during closing arguments, which need not be preserved by a contemporaneous objection, requires a two-step process. First, an appellate court determines whether there was misconduct, i.e., whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments compel reversal, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. In analyzing the second step of whether the defendant was denied a fair trial, an appellate court considers three factors: (1) whether the misconduct was gross and flagrant; (2) whether it was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors. No one factor is controlling.
5. A prosecutor has wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence.
6. A prosecutor may not make statements intended to inflame the jury's passions or prejudices or attempt to distract the jury from its duty to rely on the evidence to decide the case.
7. A prosecutor may not offer a personal opinion on the credibility of a witness because the statement amounts to unsworn and unchecked testimony. But when the evidence presents the jury with two conflicting stories, the prosecutor can argue why one version is not believable.
8. A prosecutor may not comment on facts not in evidence.
9. A prosecutor may use rhetorical devices to bring the evidence in a case into a meaningful context.
10. Issues regarding a trial court's compliance with the procedures set out in K.S.A. 22-3421 for inquiring about a jury's verdict in a criminal trial may not be raised for the first time on appeal.
11. Cumulative error occurs when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. But no prejudicial error may be found under this rule if the evidence against the defendant is overwhelming.
12. A trial court does not violate a defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using prior convictions in calculating the defendant's criminal history score to enhance a sentence without requiring the criminal history score to be included in the complaint and proven to a jury beyond a reasonable doubt.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Natalie A. Chalmers, assistant solicitor general, argued the cause and was on the brief for appellee.
Two-month old Autumn Barber suddenly developed life-threatening seizures and respiratory distress while at home in the sole care of her father, William Barber, Jr. Autumn's treating and examining physicians found recent traumatic injuries that were highly indicative of shaken baby syndrome. The State charged Barber with aggravated battery and child abuse, and a jury convicted Barber on both counts. On appeal to the Court of Appeals, Barber raised several issues.
The Court of Appeals panel affirmed Barber's convictions and sentences. State v. Barber, 297 P.3d 1194, 2013 WL 1339884 (Kan. App. 2013). The panel concluded: (1) The trial court properly admitted testimony under K.S.A. 2010 Supp. 60-455 of prior instances where Barber had shaken Autumn; (2) the trial court did not err in giving a jury instruction that limited the jury's consideration of evidence admitted under K.S.A. 2010 Supp. 60-455; (3) the prosecutor committed misconduct during her closing arguments but the error did not affect the jury's verdict; (4) Barber failed to preserve his claim that the trial court improperly accepted the jury's verdict under K.S.A. 22-3421; (5) there was no cumulative error in this case; and (6) Barber's criminal history score did not need to be proven to a jury in order for it to affect his sentence. 297 P.3d 1194, 2013 WL 1339884, at *2-10.
We agree and affirm Barber's convictions and sentences.
Facts and Procedural History
On February 7, 2008, a Cherokee County Sheriff's Office dispatcher received a 911 call for medical assistance from Barber, who reported, " My daughter, she's two months old, she's having a seizure, she's not breathing on me." When emergency services arrived, Barber explained he was home alone with Autumn, who had been sleeping in her " bouncy seat" when she suddenly screamed. He picked her up, and she became limp and began seizing. When the paramedic asked Barber about Autumn's medical history, Barber said that the seizures began suddenly and might be related to some routine shots from a couple of days earlier.
Once Autumn was at the hospital, a CAT scan revealed a subdural hematoma and
bleeding around the brain. The emergency room physician concluded a traumatic injury damaged Autumn's brain and caused her seizures. The physician met with Barber and his wife, Karen Barber, and without mentioning his exam results or his conclusions, asked if anything traumatic had happened to Autumn. Barber volunteered that he had never shaken her. After the conversation, the physician checked Autumn's eyes and found retinal hemorrhages. According to the physician's testimony at trial, retinal hemorrhages are most likely the result of shaken baby syndrome due to " the amount of pressure and force it requires to rupture those blood vessels in the retina."
Autumn's life-threatening injuries necessitated transporting her by helicopter to Children's Mercy Hospital in Kansas City, where multiple physicians in varying specialties examined her. Several of these physicians testified at trial that Autumn exhibited significant, multilayered hemorrhages in both eyes, there was blood throughout her brain, and her brain tissue was swollen. These physicians opined that Autumn suffered from inflicted trauma consistent with shaken baby syndrome and that she would have begun exhibiting symptoms immediately after the injury.
Evidence was admitted at trial of Barber's interviews with law enforcement officers. According to the police reports, Barber told officers he quit his job on the morning of February 7, 2008, after being asked to shovel manure. Karen left soon after he arrived home around 11 a.m. (According to other witnesses' testimony, Barber had told a physician he arrived home around 10:30, and his employer said that he left work at 9:30.) Barber and Karen both testified that Autumn was sleeping when Karen left. According to Barber, shortly after Karen left, Autumn woke up screaming. She then went stiff and stopped breathing. When investigators asked Barber how he generally handled Autumn's crying, Barber replied that Karen handled it--he did not pick Autumn up when she cried because he was afraid he would not be able to get her to stop.
Despite his claim that he did not handle Autumn when she cried, several trial witnesses testified about occasions when Barber did care for Autumn when she was crying. In addition, two eyewitnesses--Jolene Brown (Karen's sister-in-law) and Melissa Conner--testified at trial that Barber had previously shaken Autumn. An investigating officer recounted to the jury these witnesses' statements made during the investigation into the cause of Autumn's injuries; both statements included information about prior incidents of shaking.
More specifically, the investigating officer testified that Brown reported an incident when she was alone with Barber and Autumn. Brown told the officer she had seen Barber shake Autumn " back and forth trying to get her to quit crying. . . . [I]t wasn't a violent shaking. It wasn't anything that, you know, was a concern that it would cause any injury at that time but she could feel the frustration. And because of the frustration she became concerned." He also testified Brown had reported that Barber kept telling Autumn to " [j]ust shut up, will you just shut up." She recalled that the incident occurred sometime during the week before Autumn's hospitalization.
In Brown's trial testimony, she explained that Barber " was not really shaking her violently but he was kind of moving her in a way that I--it didn't raise concern to where I thought that I should do something right that second." Nevertheless, she spoke to her in-laws and suggested they " let him know that he can't be rough with the child or that he shouldn't move her that way."
The other eyewitness, Conner, testified that she spoke to Karen at least three times about her concern that Barber needed to be more careful in handling Autumn. Approximately a week or 2 before Autumn's hospitalization, she gave Karen a pamphlet on shaken baby syndrome. Conner testified she saw Barber throw Autumn in the air in play, and, on one occasion, she saw him shake the baby when he was frustrated. The investigating officer testified that Conner had reported she " quit hanging around over there [at Barber's home] in the last three to four weeks because she didn't like the way [Barber] was treating the baby." Conner had explained that Autumn was a " very fussy child" who " cries all
the time, especially when [Barber] is around and especially when [Barber] has the baby." She had also indicated to the investigating officer that Barber became frustrated with the crying, and she had reported seeing him shake Autumn " four or five times."
The jury convicted Barber of aggravated battery under K.S.A. 21-3414(a)(1)(A) and child abuse under K.S.A. 21-3609. At sentencing, the trial court found Barber to have committed the aggravated battery with excessive brutality. Therefore, the court imposed an upward departure sentence of 128 months' imprisonment for aggravated battery and the ...