IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,870
STATE OF KANSAS,
Appellee,
v.
LYNWOOD M. BAKER,
Appellant.
SYLLABUS BY THE COURT
1. Failure to object to the admission of evidence at trial precludes raising the issue on appeal.
2. A trial court is required to instruct the jury on the law applicable to the defendant's theories if there is evidence to support the theories.
3. The pattern sympathy instruction formerly found in PIK 51.07 has been disapproved for general use and deleted from the Pattern Instructions, Kansas. The sympathy instruction should only be used under very unusual circumstances.
4. A defendant is entitled to an instruction on lesser included offenses when the evidence would justify a jury verdict in accordance with the defendant's theory, even if the evidence is slight or supported only by the defendant's own testimony, and the evidence does not exclude a theory of guilt on the lesser included offense.
5. To commit the crime of assisting a suicide, the defendant must knowingly provide the means or participate in an act by which another person commits or attempts to commit suicide.
6. When the evidence negates the specific intent element required for assisting a suicide, the trial court need not instruct the jury regarding the offense.
7. A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial. However, the defendant's right to present a defense is limited by the statutory rules of evidence and the case law interpreting those rules.
8. As a general rule, all relevant evidence is admissible.
9. When evidence is too remote or tenuous to establish a material fact, the evidence is not admissible.
10. Testimony in the form of opinions or inferences that is otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.
11. As a fundamental rule in closing arguments, prosecutors must confine their comments to matters in evidence. Commenting on facts not in evidence is clearly improper. However, a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence.
12. When the prosecutor misstates facts that are insignificant to the State's theory of the case, the error is not so gross and flagrant as to deny the defendant a fair trial.
13. During closing argument, prosecutors may attempt to show that the defendant's version of the events was not feasible.
14. Simply pressing a point without any supporting authority is akin to failing to brief an issue. When an appellant fails to brief an issue, the issue is waived or abandoned.
15. Prosecutors are not allowed to make statements that inflame the passions or prejudices of the jury or distract the jury from its duty to make decisions based on the evidence and the controlling law.
16. During closing argument, prosecutors may encourage the jury to seriously consider the nature of the defendant's actions toward the victim.
17. Standing alone, the fact that the victim was killed by gunshots fired by the defendant is generally not sufficient to support a finding that the manner of death was especially heinous, atrocious, or cruel for purposes of imposing a hard 50 sentence pursuant to K.S.A. 2005 Supp. 21-4636(f).
Appeal from Sedgwick County district court, ERIC YOST, judge. Opinion filed June 9, 2006. Conviction affirmed, sentence vacated, and case remanded for resentencing.
Heather Cessna, assistant appellate defender, was on the brief and argued the cause for appellant.
David Lowden, assistant district attorney, argued the cause, and Kristi L. Barton, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Lynwood Baker appeals his conviction for first-degree premeditated murder for the shooting death of Gerard Fields, claiming that (1) the trial court erroneously allowed a police officer to testify regarding the credibility of another witness; (2) the jury should have been instructed about sympathy; (3) the jury should have been instructed on assisted suicide as a lesser included offense; (4) the trial court improperly excluded evidence of Baker's defense; (5) the prosecutor committed misconduct during the examination of a witness and closing arguments; (6) he was denied a fair trial by cumulative errors; (7) there was insufficient evidence to support his hard 50 sentence; (8) the hard 50 sentence is unconstitutional.
In July 2003, Gerard Fields was a bedridden paraplegic. His paralysis was a result of a bullet that lodged in his neck when he was shot at point-blank range approximately 11 years earlier. Gerard also suffered from cerebral palsy which increased his physical disability. He weighed about 99 pounds, was unable to care for himself, and lived in constant pain. Because of his disabilities, Gerard's mobility was severely limited. His hands were extremely weak. He could not reach out and grasp objects and had very little control over the movement of his fingers. Gerard could not hold an ink pen without assistance. He used his tongue to push the buttons on the television remote and the telephone because he could not push the buttons with his fingers.
In spite of all the hardships in his life, Gerard had a positive attitude. He struggled with bouts of depression from time to time, but, generally, he was in good spirits. Gerard never told his wife or his family that he wanted to die and never made any overtures about wanting to end his life.
Gerard was very close to his sister, Shelley Fields, who talked with him on a daily basis. Shelley was very protective and also a caregiver and companion of Gerard. At times, in order to ease his pain, she would help Gerard smoke marijuana.
Shelley began dating the defendant, Lynwood Baker, near the end of May or the beginning of June 2003. A short time later, Shelley introduced Baker to Gerard. Shelley told Baker that she and Gerard were very close and that Gerard was very special to her. Baker helped Shelley purchase marijuana for Gerard.
By early July 2003, Baker and Shelley's relationship deteriorated. Shelley had stated she had grown tired of Baker's lying and womanizing, so she stopped seeing Baker and refused to tell him where she could be reached. On July 11, 2003, Gerard called Shelley and told her that Baker had contacted him wanting to know Shelley's whereabouts. Shelley told Gerard that she had broken up with Baker and asked Gerard not to reveal where he could find her. Gerard agreed he would not tell Baker where Shelley could be found. Shelley then asked Gerard to make a three-way call to Baker, so she and Gerard could talk to him. During the call, Baker continued to ask about Shelley's whereabouts and became irate when she would not reveal her location. Shelley and Gerard hung up on Baker. Shelley asked Gerard not to talk to Baker anymore.
Later the same day, Baker and his girlfriend, Paishus Williams, drove over to Gerard's house in Baker's car. While Paishus remained in the car listening to loud music and attracting the neighbors' attention, Baker went inside Gerard's house. Inside the house, Baker went to Gerard's bedroom, argued with Gerard, and then shot Gerard point blank in the forehead, killing Gerard instantly.
Baker returned to the car and drove to a nearby gas station with Paishus. After getting gas, Paishus overheard Baker tell someone on the phone that "people are going to learn not to mess with me." Baker told Paishus the man was dead and he had to return to Gerard's house to find his shell casing. Paishus did not believe that the man was dead, so, when she and Baker returned to Gerard's house, Paishus went inside with Baker to see Gerard's body.
Paishus asked Baker why he had killed the man, and Baker responded, "He's been playing me." Paishus returned to the car. Baker followed a few minutes later, and the two went to Paishus' house.
Shelley heard that Gerard had been shot and went to Gerard's house. When she got there, a neighbor described Baker's car to Shelley, and she called the police to identify Baker. Shelley told the police that she was the reason Baker had killed Gerard.
Police officers found Baker at Paishus' house. While searching Paishus' house, police found the gun that killed Gerard. Police then escorted Baker and Paishus to the police station to interview them. Paishus initially denied going to Gerard's house, but eventually told police about going there with Baker and returning to see Gerard with a gunshot wound in his head. Paishus was released, and Baker was charged with first-degree premeditated murder for shooting Gerard.
At trial, Baker testified in his own defense, admitted being present when Gerard was shot, but denied killing Gerard. According to Baker, he was an unwitting accomplice to Gerard's suicide. Baker testified that he went to Gerard's house to retrieve a gun that Baker had left under Gerard's couch. After retrieving the gun, Baker went to Gerard's room to say hello. Gerard was very depressed and talked about wanting to die. Gerard asked Baker to show him the gun, and Baker complied. Baker testified that he thought he would bluff Gerard into changing his mind about committing suicide. Baker put Gerard's finger on the trigger and told Gerard to shoot himself. According to Baker, Gerard then leaned his head into the gun, said thanks, and pulled the trigger, killing himself before Baker knew what happened.
To contradict Baker's theory that Gerard committed suicide, the State called a firearms expert to testify that pulling the trigger required 12 ½ pounds of pressure. Shelley and other witnesses for the State testified that Gerard was incapable of shooting himself because he was incapable of doing simple things like lighting a lighter, holding an ink pen, or pushing the buttons on the telephone or the television remote. Gerard's family members also testified that Gerard was not depressed and had not professed any suicidal ideation.
To rebut the State's evidence that Gerard was not suicidal, Baker attempted to admit testimony from a security guard who had worked at an assisted living center where Gerard resided in 2000. Baker proffered that the security guard would testify that Gerard was on a suicide watch in 2000. The State objected to the relevancy of the security guard's testimony, and the court sustained the objection, excluding the witness' testimony.
A jury convicted Baker of first-degree premeditated murder. Finding that Baker's actions were especially heinous, atrocious, or cruel because of Baker's indifference to Gerard's defenselessness, the district court sentenced Baker to life in prison with no possibility of parole for 50 years. Baker appeals his conviction and sentence to this court pursuant to K.S.A. 22-3601(b)(1).
Witness Credibility
Baker claims that the trial court should not have allowed Detective Otis, who interrogated Paishus Williams, to comment on Paishus' veracity during the interrogation. Detective Otis testified that during the interrogation, he confronted Paishus because he knew she was lying when she said she was not at Gerard's house. However, Baker did not object to Detective Otis' testimony about Paishus' truthfulness. Failure to object to the admission of evidence at trial precludes raising the issue on appeal. K.S.A. 60-404; State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003); State v. Arrington, 251 Kan. 747, 750-51, 840 P.2d 477 (1992).
We have recognized three exceptions to the general rule precluding parties from raising new issues before an appellate court: (1) the newly asserted theory involves only a question of law on proved or admitted facts and will be finally determinative of the case; (2) consideration of the newly asserted theory is necessary to serve the ends of justice or prevent the denial of fundamental rights; or (3) the trial court's judgment may be upheld despite its reliance on the wrong reason or basis for its decision. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005).
Baker asserts that this court must consider Detective Otis' testimony regarding Paishus' credibility because addressing the issue would serve the ends of justice and prevent the denial of his fundamental right to have a jury determine his guilt. Baker argues that Paishus' credibility was crucial to the determination of his guilt or innocence.
However, Baker's argument overstates the impact of Paishus' testimony. Baker admitted arguing with Gerard and holding the gun when Gerard was shot. The key factual issue was the credibility of Baker's suicide story or the State's theory that Gerard was physically and emotionally incapable of committing suicide. Paishus' testimony did not assist the jury in making this factual determination.
The most damaging part of Paishus' statement to Detective Otis occurred when she said that Baker returned to Gerard's house to find the shell from his gun. At trial, Paishus interpreted Baker's statement to mean that he wanted to find his "Shell," Shelley Fields. Baker reinforced Paishus' testimony by testifying that he was referring to Shelley Fields when he said he needed to find his "Shell." However, this statement does not necessarily support the inference that Baker murdered Gerard and wanted to retrieve incriminating evidence. It is also consistent with Baker's theory that he would have been suspected of murder if the police had found his bullet shell even though Gerard committed suicide.
Although Paishus' testimony placed Baker at the scene of Gerard's death, she was not present when the shooting occurred and did not testify about what happened between Baker and Gerard. Her testimony is consistent with both the State's theory that Baker shot Gerard and Baker's theory that Gerard committed suicide using Baker's gun. Consequently, the jury's consideration of Paishus' credibility could not have been crucial to its determination of Baker's guilt or innocence. Because the jury's determination turned on evidence other than Paishus' testimony, Baker's argument that this court must address Detective Otis' testimony to prevent the denial of a fundamental right is without merit.
Baker failed to object to Detective Otis' testimony and none of the three exceptions for raising a new issue on appeal apply. As a result, he has failed to preserve the issue, and we will not address the merits of his claim.
Jury Instruction for Sympathy
Baker argues that the trial court should have given the jury the following sympathy instruction that he requested at trial: "You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you." PIK Crim. 3d 51.07.
When considering the trial court's refusal to give an instruction requested by the defendant, an appellate court reviews the evidence in a light most favorable to the defendant. A trial court is required to instruct the jury on the law applicable to the defendant's theories if there is evidence to support the theories. State v. Holmes, 278 Kan. 603, 634, 102 P.3d 406 (2004).
The pattern sympathy instruction formerly found in PIK 51.07 has been disapproved for general use and deleted from the Pattern Instructions. PIK Crim. 3d 51.07; State v. Sully, 219 Kan.. 222, 226, 547 P. 2d 344 (1976). The sympathy instruction should only be used under very unusual circumstances. State v. Reser, 244 Kan. 306, 316-17, 767 P.2d 1277 (1989).
Baker argues that there are unusual circumstances in this case because of Gerard's paraplegia, medical condition, extreme pain, and depression. He analogizes the facts in this case with those in State v. Rhone, 219 Kan. 542, 545, 548 P.2d 752 (1976), where this court found unusual circumstances to support a sympathy instruction.
In Rhone, the defendant was charged with aggravated burglary, felony theft, aggravated sodomy, and rape against two victims. The victim of the aggravated burglary and felony theft charges was extremely ill with cancer at the time of Rhone's trial. The victim's doctor testified that the victim would be unable to sit as a witness and the court should take the victim's testimony in her home. Consequently, the judge, jury, and all personnel associated with the trial traveled to the victim's home to hear her testimony. The defendant requested an instruction advising the jury not to give the victim's testimony any additional credibility because of the circumstances under which it was received, but the trial court refused the instruction. The Rhone court held that it was not error to deny the defendant's instruction because the trial court had given the jury the sympathy instruction from PIK 51.07 and an instruction on witness credibility from PIK 52.09. Rhone is the only case where this court has found sufficiently unusual circumstances to support a sympathy instruction. See Holmes, 278 Kan. at 635; Reser, 244 Kan. at 317.
In Reser, the defendant was convicted of multiple counts of rape and sodomy against his 14-year-old stepdaughter. 244 Kan. at 306. Reser requested a sympathy instruction because of the disparity in age and size between himself and his victim and because the crimes occurred in a small town where it was likely the jurors were familiar with both Reser and his victim. The trial court denied Reser's request, and this court upheld that denial, finding that the circumstances were not unusual. 244 Kan. at 316-17.
In Holmes, the defendant was convicted of first-degree murder. During the trial, one or two of the victim's family members burst into tears and had to be escorted out of the courtroom. Believing that the jury had been influenced by the victim's family, Holmes requested a sympathy instruction. This court upheld the trial court's refusal to give the instruction, distinguishing the facts in Rhone and concluding that the incidents were brief and the circumstances were not unusual. 278 Kan. at 635-36.
Although the facts in this case are not analogous to those in Rhone, Reser, or Holmes, they are not sufficiently unusual to require the trial court to give a sympathy instruction. Moreover, we believe that Baker's request for a sympathy instruction was inconsistent with his defense. Baker exploited Gerard's paralysis, pain, and medical condition to support his claim that Gerard committed suicide. Thus, Baker was relying on the jury's sympathy for Gerard to convince them that Baker had helped Gerard by giving Gerard an opportunity to kill himself. In closing argument, Baker's counsel stated: "The worst thing he could have done to Gerard Fields was to let him lay in that bed like that. That's the worst thing he could have done to him. But he wasn't looking to hurt Gerard Fields, he considered Gerard Fields a friend."
We conclude that even when the facts are considered in a light most favorable to Baker, the trial court did not err when it denied his request for a sympathy instruction.
Instruction for Assisted Suicide
Baker claims that his conviction should be reversed because the trial court did not give an instruction for assisting suicide as a lesser included instruction for first-degree premeditated murder. A defendant is entitled to an instruction on lesser included offenses when the evidence would justify a jury verdict in accordance with the defendant's theory, even if the evidence is slight or supported only by the defendant's own testimony, and the evidence does not exclude a theory of guilt on the lesser included offense. State v. Jackson, 280 Kan. 16, 31, 118 P.3d 1238 (2005). When a defendant requests an instruction, the evidence is viewed in a light most favorable to the defendant's theory. 280 Kan. at 27.
The PIK instruction for assisting a suicide provides that the State must prove:
That the defendant with the intent and purpose of assisting another person to commit or attempt to commit suicide knowingly:
a. provided the means by which another person committed or attempted to commit suicide; or
b. participated in a physical act by which another person committed or attempted to commit suicide. PIK Crim. 3d 56.08.
The State argues that assisting a suicide is not a lesser included offense of first-degree premeditated murder. Although Kansas courts have not determined whether assisting a suicide is a lesser included offense of first-degree premeditated murder, this court has considered whether the instruction should have been given. See State v. Cobb, 229 Kan. 522, 524-25, 625 P.2d 1133 (1981).
In Cobb, the defendant was convicted of first-degree premeditated murder. Cobb's friend, Henry Davis, told Cobb that he wanted to die. Davis procured enough cocaine to cause an overdose and provided Cobb with a gun to shoot him with in case the cocaine did not work. Davis inserted a syringe containing a large dose of cocaine in each arm, and Cobb pushed the plunger, injecting the drug into Davis' bloodstream. After Davis convulsed and gurgled for about 15 or 20 minutes, Cobb attempted to speed Davis' death by suffocating him with her hand over his mouth. Cobb could not determine whether Davis was dead, so she placed the gun at Davis' temple and shot him in the head. 229 Kan. at 523-24.
Like Baker, Cobb requested an instruction on assisting a suicide as a lesser included instruction. Without addressing whether assisting a suicide is a lesser included offense of first-degree premeditated murder, the Cobb court concluded that the facts did not warrant an instruction on assisting a suicide because Cobb was an active participant in the overt act of shooting Davis, which caused his death. 229 Kan. at 525-26.
Like the Cobb court, we do not need to address whether assisting a suicide is a lesser included offense to first-degree premeditated murder because the facts in this case do not support giving the instruction. Assisting a suicide requires a specific intent to assist another person in committing suicide. The defendant must knowingly provide the means or participate in an act by which another person commits or attempts to commit suicide. See K.S.A. 2005 Supp. 21-3406; PIK Crim. 3d 56.08. Baker's testimony is the only evidence supporting Baker's contention that Gerard committed suicide. However, Baker's testimony does not support the mens rea elements for assisting a suicide. Baker testified that he did not intend for Gerard to kill himself. Baker further testified, I wasn't expecting none of this to happen, period. That's what I'm trying to tell you. I thought about everything you're saying now, I wasn't expecting none of this to happen, none of it. This testimony negates the specific intent element required by the statute.
Because the evidence excludes the defendant's theory of guilt for assisting a suicide, we conclude that the trial court did not err when it refused to give the jury an instruction on assisting a suicide as a lesser included offense to first-degree premeditated murder.
Exclusion of Evidence Supporting Baker's Defense
Baker claims that the trial court denied his right to a fair trial by excluding evidence in support of his defense. Baker sought to admit testimony from a security guard who had worked at an assisted living center where Gerard had been living about 3 years before his death. According to Baker's proffer, the security guard would have testified that Gerard was on a suicide watch during a portion of his stay at the assisted living center. Following the State's objection for relevance, the trial court excluded the security guard's testimony because it was too remote in time to be relevant to the events that caused Gerard's death.
A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial. However, the defendant's right to present a defense is limited by the statutory rules of evidence and the case law interpreting those rules. State v. Patton, 280 Kan. 146, 156, 120 P.3d 760 (2005).
When reviewing a challenge to the admission of evidence, an appellate court first considers whether the evidence is relevant. 280 Kan. at 156. As a general rule, all relevant evidence is admissible. K.S.A. 60-407(f). K.S.A. 60-401(b) defines relevant evidence as evidence having any tendency in reason to prove any material fact. Once relevance is established, the court must apply the evidentiary rules governing the admission and exclusion of evidence, either as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the rule in question. Patton, 280 Kan. at 156.
Baker argues that the security guard's testimony that Gerard had been on a suicide watch approximately 3 years before his death is relevant to show that Gerard had contemplated suicide. The State, on the other hand, argues that the security guard's testimony is too remote in time to be relevant to Gerard's state of mind on the day of his death.
In Patton, the defendant was charged with murdering her husband. Patton claimed that her husband was a drug user who associated with drug dealers. According to Patton's theory of defense, her husband was killed by a third party with a drug-related motive. To establish this defense, Patton sought to admit evidence that her husband had connections with the girlfriend of a major drug dealer who had been killed about 11 or 12 years before her husband's murder. The Patton court concluded that the evidence was tenuous, too remote in time, and more prejudicial than probative. 280 Kan. at 158.
A similar analysis applies in this case. The security guard's testimony regarding Gerard's state of mind approximately 3 years before his death is too remote or tenuous to establish Gerard's state of mind at the time of his death. Gerard had experienced a major change in his life since the security guard had observed him. Gerard had gotten married and moved out of the assisted care center into his wife's home. The security guard did not maintain contact with Gerard and could not testify about Gerard's state of mind at the time of his death. Because the security guard's testimony did not address Gerard's state of mind at or near the time of his death, we conclude that the testimony was not relevant to prove that Gerard was suicidal on the day he died. The trial court properly excluded the testimony from the security guard because it was irrelevant.
We further note that Baker was not prejudiced by the exclusion of this evidence. Even without the security guard's testimony, Baker was able to present evidence that Gerard was depressed and unhappy in his marriage. A police detective testified that Shelley said Gerard wanted to leave his wife and move in with her. Baker testified that Gerard was unhappy with his marriage and tired of being in pain. This testimony allowed Baker to present his theory of defense to the jury. The exclusion of the security guard's testimony did not deny Baker's right to a fair trial.
Prosecutorial Misconduct
Baker asserts that prosecutorial misconduct denied him a fair trial. Baker points to the prosecutor's redirect examination of Shelley and his remarks during closing argument. We have grouped Baker's complaints into four categories, eliciting improper opinion evidence, commenting on facts not in evidence, commenting on the defendant's credibility, and appealing to the passions and prejudices of the jury.
When reviewing an allegation of prosecutorial misconduct, an appellate court applies a two-step analysis to determine whether a prosecutor's comments have denied a defendant his or her constitutional right to a fair trial. First, the court must determine whether the remarks were outside the considerable latitude that the prosecutor is allowed in commenting on the evidence. Second, the court must decide whether the comments were so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby constituting plain error requiring reversal. State v. Harris, 279 Kan. 163, 173, 105 P.3d 1258 (2005).
An appellate court applies the same approach to the defendant's claim that the prosecutor asked improper questions. First, the court must decide if the prosecutor's questions were relevant and supported by a good faith basis for believing the asserted matter to be true. If not, the court must determine whether the improper questions constituted plain error. State v. Overton, 279 Kan. 547, 558, 112 P.3d 244 (2005).
In determining whether the prosecutor's questions or comments denied the defendant's right to a fair trial, the court must consider the following three factors:
(1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. State v. Elnicki, 279 Kan. 47, 64-65, 105 P.3d 1222 (2005).
(a) Eliciting improper opinion evidence
Baker first complains about the following questions the prosecutor asked Shelley on redirect examination:
Q. You have - - you weren't there when your brother was shot?
A. No, I wasn't.
Q. Do you know whether or not he committed suicide with a gun?
A. I know my brother couldn't commit suicide with a gun.
Baker objected to Shelley's response, asserting that it was an opinion. The trial court instructed the prosecutor to rephrase the question, and the following colloquy occurred:
Q. When you say you didn't know what happened, that's because you weren't there; is that right?
A. Yes.
Q. But you've testified previously that you just put two and two together and you knew what happened?
A. Yes.
Q. All right. What two and two did you put together?
A. I put the fact that I had left town –
Before Shelley could finish her response, Baker objected again on the basis of opinion, stating it's a conclusion the