a pretrial motion to suppress has been denied, K.S.A. 60-404
requires that the moving party still object to the
introduction of the evidence at trial in order to preserve
the issue for appeal. This is known as the
contemporaneous-objection rule. Specifically, the statute
requires a timely, on-the-record objection to the admission
of the evidence that clearly states the specific ground of
this case, we decline to use exceptions to the
contemporaneous-objection rule to bypass the clear statutory
guidelines provided in K.S.A. 60-404.
analyzing a claim of prosecutorial error, an appellate court
employs a two-step process. First, the appellate court
determines whether error occurred. If there was error, the
second step is to determine whether prejudice resulted. Under
the first step, the appellate court analyzes whether the
prosecutor's acts fell outside the wide latitude afforded
prosecutors. At the second stage of the analysis, the
appellate court focuses on whether the error prejudiced the
defendant's due process rights to a fair trial. If a due
process violation occurred, the appellate court assesses
prejudice by applying the constitutional harmless error
Under the constitutional harmless error standard,
prosecutorial error is harmless if the State proves beyond a
reasonable doubt that the error complained of will not or did
not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable
possibility that the error contributed to the verdict.
Generally appellate courts do not require a contemporaneous
objection to preserve issues of prosecutorial error for
appellate review. However, in accordance with the plain
language of K.S.A. 60-404, evidentiary claims-including
questions posed by a prosecutor and responses to those
questions during trial-must be preserved by way of a
contemporaneous objection for those claims to be reviewed on
appeal. But appellate courts will review a prosecutor's
comments made during voir dire, opening statement, or closing
argument on the basis of prosecutorial error even without a
timely objection, although the presence or absence of an
objection may figure into the analysis of the alleged error.
Fourteenth Amendment affords a criminal defendant the right
to employ counsel as an extension of his or her right to a
fair trial. Accordingly, it is improper for the prosecutor,
by questions or comments, to draw incriminating inferences
from a defendant's exercise of this right.
the State asks a witness questions regarding the
defendant's retention of an attorney, those questions
contravene the protections explicitly enumerated in State
v. Dixon, 279 Kan. 563, 112 P.3d 883 (2010).
general, prosecutors may not offer juries their personal
opinions as to the credibility of witnesses. Prosecutors have
wide latitude, however, to craft arguments that include
reasonable inferences to be drawn from the evidence. That
latitude includes explaining to juries what they should look
for in assessing witness credibility, especially when the
defense has attacked the credibility of the State's
prosecutor acts outside of that wide latitude afforded when
the prosecutor refers to the defendant as a "liar"
and states in closing argument that the truth shows beyond a
reasonable doubt the defendant is guilty.
prosecutor does not act outside of the wide latitude afforded
if he or she merely observes that some reasonable inference
about witness credibility may be drawn from evidence
introduced at trial.
Arguments not briefed on appeal are deemed waived and
Unlike a failure to object to evidence, a failure to object
to an instruction does not bar appellate review of the
instruction. It does, however, raise the persuasive bar the
complaining party must hurdle on appeal; the appellate court
must be convinced the instruction is clearly erroneous.
When a party's appellate arguments regarding a limiting
instruction are actually veiled attempts to reach unpreserved
evidentiary issues, courts do not consider the arguments.
Appellate courts review a trial court's determination
that hearsay is admissible under a statutory exception for an
abuse of discretion. Judicial action constitutes an abuse of
discretion if it is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the
view adopted by the trial court; is based on an error of law,
i.e., if the discretion is guided by an erroneous
legal conclusion; or is based on an error of fact,
i.e., if substantial competent evidence does not
support a factual finding on which a prerequisite conclusion
of law or the exercise of discretion is based.
K.S.A. 2016 Supp. 60-460 bars admission of evidence of a
statement that is made other than by a witness while
testifying at the hearing, offered to prove the truth of the
matter stated, unless it falls into one of the exceptions
outlined in the statute. One of these exceptions is the
declarations against interest exception, which provides that
a statement which the judge finds was at the time of the
assertion so far contrary to the declarant's pecuniary or
proprietary interest or so far subjected the declarant to
civil or criminal liability or so far rendered invalid a
claim by the declarant against another or created such risk
of making the declarant an object of hatred, ridicule, or
social disapproval in the community that a reasonable person
in the declarant's position would not have made the
statement unless the person believed it to be true.
When statements are not offered to prove the truth of the
matter stated, they are not hearsay.
When determining whether an alleged violation of statutory
evidentiary limitations was error, an appellate court applies
the standards set out in K.S.A. 2016 Supp. 60-261 and K.S.A.
60-2105. These standards provide that the court will consider
whether a reasonable probability exists that the error
affected the outcome of the trial in light of the record as a
whole. The burden of persuasion lies with the party
benefitting from the introduction of the evidence.
Under K.S.A. 22-3423(1)(c), a trial court may declare a
mistrial if there was prejudicial conduct either inside or
outside the courtroom that makes it impossible for the trial
to proceed without injustice to either the defendant or the
K.S.A. 22-3423(1)(c) creates a two-step process. First, the
trial court must determine if there was some fundamental
failure of the proceeding. If so, the trial court moves to
the second step and assesses whether it is possible to
continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging
effect can be removed or mitigated by an admonition, jury
instruction, or other action. If not, the trial court must
determine whether the degree of prejudice results in an
injustice and, if so, declare a mistrial.
appellate court reviews a trial court's decision
regarding a motion for mistrial in two parts: (1) Did the
trial court abuse its discretion when deciding if there was a
fundamental failure in the proceeding? and (2) Did the trial
court abuse its discretion when deciding whether the conduct
resulted in prejudice that could not be cured or mitigated
through jury admonition or instruction, resulting in an
When a party argues that the cumulative impact of alleged
errors is so great that they result in an unfair trial, an
appellate court aggregates all the errors and, even if those
errors individually would be considered harmless, analyzes
whether their cumulative effect is so great that they
collectively cannot be determined to be harmless. In
undertaking such an analysis, an appellate court reviews the
entire record and exercises unlimited review. One error is
insufficient to support reversal under the cumulative error
from Sedgwick District Court; Benjamin L. Burgess, judge.
Richard Ney, of Ney & Adams, of Wichita, argued the cause
and was on the briefs for appellant.
J. Gillett, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
MICHAEL J. MALONE, SENIOR JUDGE 
Sean appeals his convictions of first-degree premeditated
murder and kidnapping. This is a companion case to State
v. Jones, No. 113, 409, an appeal from convictions
arising out of the same series of events presented in this
case. Sean raises eight issues in his appeal, alleging (1) a
denial of his Fifth Amendment right to counsel; (2) multiple
claims of prosecutorial error; (3) error in the admission of
bad acts evidence; (4) error in the admission of certain
hearsay statements; (5) error in the denial of his motion for
mistrial; (6) a violation of his Confrontation Clause rights;
(7) error in the admission of sympathy evidence; and (8)
cumulative error compelling reversal. We reject Sean's
claims and affirm his convictions and sentence.
and Procedural Background
January 16, 2013, Shawn Lindsey's body was discovered by
a passerby off a road near the Humane Society in Wichita,
Kansas. The body had ligature marks on the wrist, and there
was evidence someone had dragged the body to the spot. The
forensic pathologist who performed an autopsy testified that
the cause of death was methamphetamine toxicity and the
manner of death was homicide.
was charged with first-degree premeditated murder, felony
murder, and aggravated kidnapping of Lindsey. Justin Jones
(Justin) and Jason Jones (Jason) were also charged in
connection with Lindsey's murder, and Phomphikak
Phouthalaksa (Air), Aaron Stricker, and Anthony Garza were
charged in connection with his kidnapping. The defendants
were tried separately.
State's case against Sean was based largely on the
eyewitness testimony of Garza, an acquaintance of both Sean
and Lindsey. The State secured Garza's testimony by
agreeing to amend his charges down from murder and aggravated
kidnapping to a single count of kidnapping. Will Coleman, an
employee of Sean, corroborated much of Garza's testimony.
Through these witnesses and others, the State presented
evidence to establish the following facts.
and Lindsey opened an auto shop together in 2012 but cut
business ties by the end of the year. In January 2013,
Lindsey was in debt to Sean for using the company credit card
and account without permission and for stealing parts from
the shop. The State introduced evidence that the debt had
been accruing for some time, and that by the end of 2012,
Sean had grown impatient with Lindsey, demanding repayment
and threatening via text message to "repo" and
"crack sum fuckn heads" if Lindsey did not comply.
In November 2012, Sean texted Lindsey and demanded Lindsey
turn over his truck and come to the shop. He also texted
Lindsey to "get zip tie ready."
Friday, January 11, 2013, Garza called Sean to tell him he
was coming to the shop. Sean asked Garza to pick up Lindsey
on his way there. Garza went to Lindsey's house around
4:30 p.m., accompanied by his girlfriend's 17-year-old
nephew Reuben Carrion, Jr., and his friend, Stricker. The men
arrived at Lindsey's house right as Lindsey and his
girlfriend, Chelsea Bernhard, were returning from an errand.
The men talked inside the house while Bernhard took a phone
call in the other room. When Bernhard finished her phone
call, Lindsey and Garza said they were going to the shop and
that she should come by, too. The men left for the shop and
Bernhard followed later.
dropped Garza, Lindsey, and Stricker off at the shop and
left. Sean and his employees, Air, Justin, Jason, and
Coleman, were inside. Lindsey and Sean talked about
Lindsey's debt until the conversation became heated. Sean
began beating Lindsey, knocking him to the ground. Sean then
demanded that Lindsey get his truck. At 6:18 p.m., Coleman
texted Lindsey's ex-girlfriend that Lindsey had just been
the beating, Lindsey, Stricker, and Jason left to look for
Lindsey's truck. The State posited that Sean wanted the
truck as satisfaction or collateral for the debt. While they
were looking for the truck, Garza received a phone call from
Justin's phone and was told that Sean had gone home for
awhile but wanted Lindsey zip-tied by the time he got back to
the shop. The men did not find Lindsey's truck and
returned to the shop.
arrived at the shop but could not get inside. Lindsey met her
at the door and told her through the glass that he could not
leave and that she should go get his friend Neeley. Bernhard
left to find Neeley.
carrying a duffel bag, returned to the shop. Shortly
thereafter, Sean instructed Garza to zip-tie Lindsey. Garza
zip-tied Lindsey's arms to a chair behind his back and
zip-tied his feet. At this point, Coleman left the shop after
asking Sean for permission to do so.
after Coleman left, Sean handed Jason a bag of
methamphetamine and Justin looked for a heat source. Sean
slapped Lindsey's arm and injected him with a large
syringe full of the methamphetamine while Justin held the arm
in place. Sean asked Lindsey if it burned, and Lindsey
replied, "Yeah, it does burn. Please stop, please stop,
please stop. You don't have to do this, I'm going to
Sean finished injecting Lindsey, Air brought in an electric
fence, which Jason and Justin wrapped around Lindsey and then
hooked up to a car battery starter. Sean pulled an airsoft
pellet gun and a firearm from his bag and began shooting
Lindsey's shins with the airsoft gun. Sean then loaded
the firearm and pointed it at Lindsey, taunting him. Sean
also shot at the battery starter with the airsoft gun in an
effort to turn on the electric fence. During this time,
Lindsey started shaking and bouncing his feet up and down,
which Garza took to be a sign that the methamphetamine was
Sean failed to turn the battery charger on with the airsoft
gun pellets, someone removed the electric fence from around
Lindsey. Lindsey was shaking violently by that point and
going stiff, and Garza heard someone say that "he's
about to go." Lindsey asked Garza to cut the zip ties
because they were hurting him. Sean told Garza to leave the
wrist ties but to cut the ties from Lindsey's ankles so
they could take him to the hospital. Jason and Sean then
loaded Lindsey into a black Chevy Silverado. Garza left the
shop shortly thereafter at Sean's direction.
security camera in the Humane Society parking lot showed the
driveway to the area where Lindsey's body was discovered
days later. Just after 10:47 p.m., the camera recorded
headlights in the area. A dark-colored vehicle with a bed
left shortly thereafter. The State posited that this was the
same black Silverado that left the auto shop with Jason,
Sean, and Lindsey and that it was traveling in that area to
dump Lindsey's body.
Reynolds, an employee of the Pleasures nightclub, testified
for the defense. He stated that Sean and Air were at
Pleasures on January 11, 2013, from 11:30 p.m. until about 2
a.m. Pleasures is located at 4849 South West Street in
1:30 a.m. on January 12, 2013, Jason texted Garza not to say
anything to his girlfriend. Jason then called Garza to say
they were coming to pick him up. Coleman returned to the shop
around 2 a.m. Soon thereafter Jason and Justin showed up with
Garza and were met by Sean and Coleman. The five men smoked
methamphetamine together, and Sean pressed Garza for
Stricker's "information." Sean told Garza that
if Garza or Stricker "said anything" they were
spent the next few days trying to track down Lindsey. She
texted Sean to ask about Lindsey. Sean replied that "he
might be working it off in Mexico" and that "it
[was] out of [his] hands." On January 13, 2013, Bernhard
and Lindsey's father reported Lindsey missing.
body was recovered on January 16, 2013, near the area where
the security camera recorded headlights and a dark-colored
vehicle with a bed on the night of January 11. Detectives
interviewed Sean later that evening. Sean told detectives
that on January 11, 2013, Lindsey arrived at his shop around
6 p.m. with two "Mexicans" named Paloen and
Fernando. Sean claimed that the two "Mexicans"
looked around for Lindsey's truck. According to Sean, the
three men left after about 15 minutes, and he went to his
sister's house around 6:15 or 6:20. Sean said that he
also went to Pleasures nightclub that night.
warrants were executed at the shop on January 16, January 18,
and January 20. From these searches, the police recovered
methamphetamine and paraphernalia, a duffel bag, two airsoft
pistols, two airsoft BBs, a bag of additional BBs, a
needleless syringe, zip ties, and an electric fence.
trial, defense counsel focused heavily on the fact that
Garza's initial statement to the police was different
from his second and third interviews conducted after reaching
an agreement with the State. In that first statement, Garza
claimed to have much less involvement than he later admitted.
Defense counsel's theory of the case appeared to be that
Garza was one of the "Mexicans" who arrived at the
shop with Lindsey, that Garza killed Lindsey because of a
debt Lindsey owed Garza, and that Garza was pinning the
murder on Sean in exchange for a lighter sentence.
convicted Sean of premeditated first-degree murder and
kidnapping but acquitted Sean of felony murder. The jury did
not unanimously agree on a hard 50 sentence; so the district
court imposed a hard 25 sentence for the murder conviction
and a consecutive 77-month sentence for the kidnapping
timely appealed. This court has jurisdiction under K.S.A.
2016 Supp. 22-3601(b)(3) and (4) (off-grid crime; maximum
sentence of life imprisonment imposed).
presents a number of issues. We address each in turn.
of Interrogation Statements
first argues the trial court should have suppressed
statements he made during a police interrogation because they
were given in violation of his Fifth Amendment right to
counsel. We do not reach the merits of this argument because
we conclude that Sean failed to preserve this issue for
pretrial motion to suppress has been denied, K.S.A. 60-404
requires that the moving party still object to the
introduction of the evidence at trial in order to preserve
the issue for appeal. State v. Houston, 289 Kan.
252, 270, 213 P.3d 728 (2009). This is known as "the
contemporaneous-objection rule and is codified in K.S.A.
60-404. [Citation omitted.] Specifically, the statute
requires an on-the-record 'objection to the evidence
timely interposed and so stated as to make clear the specific
ground of objection.'" 289 Kan. at 270.
State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558
(2010), we noted our recent and consistent refusal to review
evidentiary issues that were not preserved even when those
issues involved fundamental rights. In that discussion, we
expressed our concern that, otherwise, "[t]he
contemporaneous objection rule 'case-law exceptions would
soon swallow the general statutory rule.'" 290 Kan.
at 488 (citing State v. Richmond, 289 Kan. 419,
429-30, 212 P.3d 585');">212 P.3d 585 ).
in a pretrial motion, defense counsel argued that the trial
court should suppress all statements Sean made during a
police interrogation because the statements were involuntary
and were not made pursuant to a knowing and intentional
waiver of rights. After an evidentiary hearing, the trial
court denied the motion, finding that Sean had voluntarily
reinitiated contact with the police after requesting an
attorney and thereby waived his right to counsel.
trial, Sean's statements were introduced via the
testimony of investigating Detective Timothy Relph. Defense
counsel did not object to Relph's testimony.
Sean argues that this issue was preserved for appeal because
an objection made earlier in the trial served to give the
trial court notice that defense counsel meant to renew his
challenge to the admission of Sean's statements. However,
the record makes it clear that this was a State v.
Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005), objection to
the State's desire to play a videotape of the
interrogation, not an objection to the admission of the
statements made during the interrogation. During a break in
the trial, the prosecutor informed the judge and defense
counsel that the State intended to play a redacted video of
Sean's interrogation for the jury. In response, defense
"I object to the transcript ever being shown to the
jury. I object to this tape being called or played, where
they pull out what they want to pull out, put in what's
clearly inadmissible under Elnicki, and expect me
over the lunch hour to review all of their exhibits to make
sure they are admissible or not. I have better things to
prepare for than exhibits being dumped on me in the middle of
prosecutor responded that it would "just put Detective
Relph on" and would not "even bother with the
video." The judge replied "if the proposal now is
to just call Detective Relph, have him testify as to the
interview, that's fine. The tape-recorded conversation
will not be allowed at this point. Anything further we need
to take up before we bring the jury in?" To this,
defense counsel replied, "No, Your Honor." Later
that afternoon, the prosecutor called Relph who testified
about Sean's statements during the interrogation. Defense
counsel did not object to this testimony.
counsel's statements at trial were clearly in reference
to the admission of the videotape without his having had an
opportunity to review the tape for Elnicki
violations. That the objection was in reference to
Elnicki and nothing else was underscored by defense
counsel's failure to object to the State's offer to
instead introduce Sean's statement's via Detective
Relph's testimony. Because Sean did not renew his
objection to the admission of these statements during trial,
he did not preserve this issue for our review.
it concerning that appellate defense counsel argued so
strongly that the objection at trial amounted to a specific
objection to the admission of Detective Relph's
testimony. Whether this argument evolved from a
misunderstanding of the record or an unclear assessment of
the law, we do not know. In case appellate counsel's
arguments stem from some obscurity surrounding the
contemporaneous objection rule, we take this opportunity to
reiterate an important principle. When a party moves to
suppress evidence and the court denies the motion, the party
must timely and specifically renew this objection when the
opposing party moves to admit the evidence during trial.
Failure to do so results in a failure to preserve the issue
contends that, even if this issue was not preserved for
appeal, review is necessary to serve the ends of justice and
prevent denial of a fundamental right. See State v.
Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011)
(explaining that exceptions may be granted if the argument
presents a question of law arising from proved or admitted
facts that is determinative of the case; consideration of the
issue is necessary to serve the ends of justice or prevent
the denial of fundamental rights; or the trial court is
correct for the wrong reason). We decline to use this
exception to bypass the clear statutory guidelines provided
in K.S.A. 60-404.
argues that the prosecutor committed error in four different
ways: (1) by repeatedly introducing drug evidence in
violation of an order in limine; (2) by asking questions
regarding Sean's retention of an attorney; (3) by
violating a court order when it procured certain testimony
regarding an alibi; ...