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State v. Sean

Supreme Court of Kansas

August 4, 2017

State of Kansas, Appellee,
Dang Sean, Appellant.


         1. When 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 objection.

         2. In 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.

         3. When 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 standard.

         4. 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.

         5. 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.

         6. The 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.

         7. When 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).

         8. In 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 witnesses.

         9. A 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.

         10. A 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.

         11. Arguments not briefed on appeal are deemed waived and abandoned.

         12. 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.

         13. 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.

         14. 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.

         15. 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.

         16. When statements are not offered to prove the truth of the matter stated, they are not hearsay.

         17. 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.

         18. 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 prosecution.

         19. 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.

         20. An 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 injustice?

         21. 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 doctrine.

         Appeal 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.

          Lance 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.



         Dang 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.

         Facts and Procedural Background

         On 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.

         Sean 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.

         The 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.

         Sean 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."

         On 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.

         Carrion 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 "beat down."

         After 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.

         Bernhard 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.

         Sean, 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.

         Sometime 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 pay you."

         Once 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 affecting him.

         After 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.

         A 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.

         Noal 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 Wichita, Kansas.

         Around 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 dead.

         Bernhard 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.

         Lindsey's 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.

         Search 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.

         During 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.

         A jury 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 conviction.

         Sean 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).


         Sean presents a number of issues. We address each in turn.

         Suppression of Interrogation Statements

         Sean 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 appeal.

         When 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. 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.

         In 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 [2009]).

         Here, 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.

         At trial, Sean's statements were introduced via the testimony of investigating Detective Timothy Relph. Defense counsel did not object to Relph's testimony.

         However, 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 counsel said:

"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 the trial."

         The 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.

         Defense 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.

         We find 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 for appeal.

         Sean 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.

         Prosecutorial Error

         Sean 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; ...

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