IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,980
STATE OF KANSAS,
Appellee,
v.
CHASITY L. BOYD,
Appellant.
SYLLABUS BY THE COURT
1. The decision whether to grant a defendant's motion for severance lies within the sound discretion of the trial court. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. An abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.
2. When a decision is made regarding joinder or severance, even if it is determined that there was an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal.
3. Although no statute authorizes consolidation when two or more defendants are charged in separate complaints, case law recognizes the inherent authority of the trial judge to order consolidation. The test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information, or indictment.
4. Several defendants may be joined together in one trial, even if they were not in fact charged together in one complaint, in the following circumstances: (1) when each of the defendants is charged with accountability for each offense included; (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offense alleged to be in furtherance of the conspiracy; or (3) when in the absence of a conspiracy it is alleged the several offenses charged were part of a common scheme or were so closely connected in time, place, and occasion that proof of one charge would require proof of the others.
5. Even though the requirements of joinder are technically satisfied, the court should not join two defendants in one trial if either defendant will be prejudiced by joinder. Separate trials should be conducted upon a showing of actual prejudice stemming from a joint trial and, in such a circumstance, the trial court should not join the complaints or, if the complaints have been joined, should sever the cases for trial.
6. The usual factors to be considered in determining whether a joint trial is sufficiently prejudicial to mandate severance (or nonjoinder) are: (1) the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for all or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.
7. Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable. Disputes over which defendant is the most culpable, inconsistent trial strategies, and presentation of evidence by one defendant which is inconsistent with the evidence presented by another defendant do not make the defenses antagonistic.
8. A defendant is not denied the constitutional right to confrontation where a child-victim witness testifies via closed-circuit television pursuant to K.S.A. 22-3434, provided the trial court (1) hears evidence and determines use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify; (2) finds that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) finds that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.
9. The sufficiency of proof of unavailability of a witness is a question for the trial court within its discretion, and its ruling will not be disturbed unless an abuse of discretion is shown.
10. If rights under the Confrontation Clause of the Sixth Amendment to the Constitution of the United States and Section 10 of the Kansas Constitution Bill of Rights are violated, a constitutional harmless error analysis applies. To find the error harmless, this court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
11. Application of the constitutional harmless error doctrine in the context of a Confrontation Clause violation requires an inquiry as to whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Factors to be considered include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.
12. A trial court is required to instruct on lesser included offenses of felony murder only when the evidence of the underlying felony is weak, inconclusive, or conflicting. The rule does not pertain to evidence about who committed the underlying felony; the rule pertains to evidence that the underlying felony was committed.
13. When the primary offense is other than felony murder, if the defendant requests a lesser included offense instruction, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive. An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.
14. Endangering a child, as defined in K.S.A. 21-3608, is not a lesser degree of the crime of child abuse, as defined in K.S.A. 21-3609, pursuant to K.S.A. 2004 Supp. 21-3107(2).
15. When examining admission or exclusion of evidence, the first question is relevance. Once relevance is established, evidentiary rules governing admission or exclusion of evidence may be applied either as a matter of law or in the exercise of the trial court's discretion, depending upon the contours of the rule in question.
16. The purpose of K.S.A. 60-455 is to forbid introduction of crimes or civil wrongs committed by a defendant in a criminal action or a party in a civil action for the purpose of showing disposition to commit a crime or civil wrong. In a criminal action, K.S.A. 60-455 applies only to the acts of the defendant.
Appeal from Johnson district court; JOHN P. BENNETT, judge. Opinion filed February 10, 2006. Affirmed.
Rick Kittel, assistant appellate defender, argued the cause and was on the brief for appellant.
Paul J. Morrison, district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion was delivered by
LUCKERT, J.: Chasity L. Boyd (Boyd) was convicted by a jury of first-degree felony murder and two counts of abuse of a child. Boyd appeals her convictions, arguing: (1) the trial court abused its discretion in not granting her motion to sever her trial from that of her codefendants; (2) the trial court erred in failing to give instructions on lesser included offenses; and (3) the trial court erred in admitting evidence of child abuse other than the acts charged in this case.
Facts
On December 30, 2002, 9-year-old Brian Edgar's lifeless body was brought to the emergency room at KU Medical Center by his father, Neil Edgar. Rigor mortis had already set in, indicating Brian had been dead for several hours. Medical staff noticed that Brian had what appeared to be white tape residue on his face and the back of his head, bruises on his face, and suspicious injuries and scarring on his wrists and ankles.
When initially told of his son's death, Neil told doctors and, later, police that he was responsible for Brian's death. His first statement was that it was an accident resulting from his giving Brian a melatonin pill to help him sleep which must have caused him to stop breathing.
Police initiated an investigation. Neil consented to a search of a residence which he identified as the family's home. At that location, police discovered a sock with a piece of duct tape attached. When confronted with this evidence, Neil told police he had restrained Brian with belts around his arms and ankles, put a sock in Brian's mouth to keep him from "hollering" and put a small piece of duct tape over his mouth. Police were doubtful of Neil's story because they knew Brian's entire head had been taped, not just his mouth. Neil also stated that his wife knew about his restraining Brian but never participated in it.
The investigating officers determined that Brian was one of four children living in the Edgar home. Neil, who was a church pastor, and his wife, Christy Edgar, who was an evangelist and prophet for the church, had adopted three siblings in 1997: Christon, Martez, and Christina. The Edgars adopted Brian a few years later; he was biologically unrelated to the three other children. At the time of trial, Christon was 16 years old, Martez was 12 years old, and Christina was 9 years old. Police also learned that Boyd, who was referred to by the Edgars as their "granddaughter," often stayed with the family, babysitting the children, and that she had stayed over the night Brian died.
Police took the surviving Edgar children into custody and transported them to Sunflower House, a child advocacy center, for forensic interviews. Both Christina and Martez were initially reluctant to disclose any information but eventually began to open up. Both children told detectives that they had been frequently tied up with socks, duct tape, and plastic ties. Christina said that Boyd had tied up the children at the direction of Christy.
The next day, when police talked to Neil again and told him of their interviews with his other children, he said, "I did it. If my kids say I've done it, I did it." The police did not believe Neil was being truthful and thought he would admit to anything they said. Through the course of these interviews during the initial stages of the investigation, Neil never implicated Boyd.
As a result of the investigation, Neil, Christy, and Boyd were charged under separate complaints with the same crimes. Count I of the complaint against Boyd charged felony murder, in violation of K.S.A. 21-3401, occurring during the commission of abuse of a child by inflicting cruel and inhuman corporal punishment upon Brian Edgar. Counts II and III charged her with child abuse, in violation of K.S.A. 21-3609, arising from inflicting cruel and inhuman corporal punishment upon Martez and Christina Edgar, respectively, during the time period of May 9, 2002, through December 30, 2002.
The trial court consolidated the three cases for trial. Before opening statements, Christy pled guilty to all of the charges. After consent from the codefendants' attorneys, the jury was informed of Christy's plea and the trial against Neil and Boyd continued.
During the trial, medical evidence was presented establishing that Brian died of asphyxiation when he aspirated his own vomit while a foreign object was blocking his mouth. The medical examiner also opined that the injuries and scarring on Brian's wrists and ankles were consistent with ligature marks and were of different ages, from a few weeks to more than a year old.
In other testimony presented at trial, detectives recounted the initial admissions by Neil. With the exception of those statements by Neil, virtually all other evidence implicated Boyd. Christon explained that the night before Brian's death, Christy and Boyd stuffed a sock in Brian's mouth and taped him from his feet to his shoulders "like a mummy." The next night, the night of Brian's death, Boyd and Christy again taped Brian like a mummy, this time continuing past his shoulders to cover his mouth, which had been stuffed with a sock, and all of his nose except his nostrils. Christon told the jury one of the women said something like "try to get out of that one." Christon also testified that he saw Boyd carry Brian to an enclosed area under the basement stairs where he was left to sleep for the night on a sleeping bag placed on the concrete floor.
According to Christon, Boyd and Christy were punishing Brian for stealing food. This was verified by a note which had Boyd's fingerprints on it. The note read:
"Evangelist, Brian hasn't had enough. He stole a piece of your candy that goes on your paper towel for church while we were going up to sing and when we came back I seen him digging in his pocket and I looked in his pocket, and he was eating on one of your Cream Savers, and lied and said Cookie gave him two peppermints and that's not a mint. Then he finally told the truth."
The evidence also established that Boyd had bound Brian's brother and sister, Martez and Christina. Again, this evidence was basically uncontroverted. Detectives reviewed their interviews with Christina and Martez, recounting statements which had not been videotaped. Jurors were then shown the videotaped interviews. Additionally, Martez and Christina testified via closed-circuit television after the trial court found they would be extremely traumatized by testifying in the presence of their parents. Martez testified that he had been tied up twice by Boyd. Once was on the night Brian died, when Boyd tied Martez' hands in front of him with socks placed over his arms first to keep the plastic ties from scarring him after Martez had got in trouble with his father because Martez was talking too much. Martez testified that his father did not tell Boyd to tie him up. Martez also testified that on previous occasions he had seen Boyd tie up Brian after his mother had told Boyd to get the ties.
Christina testified that Boyd had taped her or used plastic ties to restrain her. She had also had a stocking or tape put over her mouth. On the night Brian died, Christina said all three of the youngest children had been in trouble. Christina was tied up and slept on the floor in a room in the basement.
Both Martez and Christina had scars on their wrists consistent with ligature marks. Christina also had scars on the back of one leg and one shoulder consistent with having been hit with a looped cord.
Another witness at the trial, Chauntel Williams, a member of the Edgars' church, testified that Christy said God had told her about a new way of disciplining the children by tying them up. Williams had seen Brian, Martez, and Christina tied up by their hands and feet with plastic ties at the direction of Christy.
Neil testified in his own defense. Neil said that Christy and "the womens [sic] of the church" handled the discipline of the children. According to Neil, on the night Brian died, he had seen that Brian's hands and legs had been taped and knew it was done to keep him from getting up, but he did not think Brian would be harmed by it. He told the jury that he lied to the doctor because he knew his wife and Boyd had done something wrong.
Boyd did not testify, but she called several witnesses who described her and her involvement in the Edgars' church. Because Boyd's mother was a church member, Boyd had been involved with the church since the age of 8 and was there every day. Boyd, who was 20 years old at the time of trial, was described as needy, submissive, and someone who acted younger than her age. Witnesses also described how Christy, acting as evangelist and prophet, controlled everyone in the church and told them how to behave. One former church member described the church as a cult that brainwashed its members.
The jury convicted Boyd and Neil on all three counts. The trial court sentenced Boyd to a controlling term of life imprisonment, with parole eligibility after 20 years. She was sentenced to 32 months' imprisonment on each of the child abuse convictions, with those sentences to run concurrent with each other and concurrent with the felony-murder conviction.
Analysis
I.
Motion to Sever Boyd contends that the trial court erred in denying her motion to sever her trial from that of codefendant Neil Edgar. Boyd's primary argument is based on the trial court's ruling which allowed Martez and Christina Edgar to testify by closed-circuit television based upon a finding that they would be traumatized by testifying in the presence of their parents. Because there was no direct evidence presented that the children would be similarly traumatized by testifying in the presence of Boyd, she contends her right of confrontation was violated by the trial court's failure to order a separate trial wherein Martez and Christina could have testified in person. Boyd also contends that she and Neil had antagonistic defenses which required severance of their trials.
A. Procedural History
The State filed a pretrial motion to admit the testimony of Martez and Christina Edgar via closed-circuit television. The motion alleged that the children's counselor was of the opinion that "if both children were required to testify about the events which resulted in the death of Brian Edgar, while their parents are physically present, they would become extremely confused and would be unable to testify before a jury much less communicate what they witnessed."
The trial court appointed psychologist Dr. Jeffrey Montolio as an independent expert to evaluate the children with respect to their ability to testify, the psychological effects that testifying in the courtroom or via closed-circuit television might have on them, and whether testifying in the presence of their adoptive parents, Neil and Christy Edgar, would be traumatic for them. After interviewing both children as well as their therapist, Dr. Montolio concluded that if the children were "to testify in the presence of their ex-adoptive parents, there would in fact be undue psychological injury likely to last for many years to come, this injury would be severe and substantially greater than the average reaction of a victim of child abuse." According to Dr. Montolio, there were two factors at work. First, the children had been asked to tell their story a number of times and their therapist believed that "if the children were asked to tell their story again, under any circumstances, they would "'shut-down' and be non-responsive." Second, the children would likely have "intrusive traumatic memories" which would interfere with their ability to accurately recount events if they had to do so in the presence of their adoptive parents. Nonetheless, Dr. Montolio concluded that the children would be able to testify via the "safe venue" of closed-circuit television without being psychologically traumatized because both children had indicated they felt comfortable with such a procedure and would be willing to tell their story again so long as their parents were not present.
Dr. Montolio did not evaluate and had no opinion on whether the children would be traumatized by testifying in the presence of Boyd.
Immediately after Dr. Montolio's testimony, defense counsel for Boyd stated that if the trial court were inclined to grant the State's motion and allow Martez and Christina to testify via closed-circuit television, then Boyd's trial should be severed in order to protect her right to confront and cross-examine the children in open court. The court took the matter under advisement.
At a later hearing prior to trial, the trial court ruled that the State could present the children's testimony via closed-circuit television as to all three codefendants. Although the court noted that Dr. Montolio had not directly considered whether the children would be traumatized by testifying in the presence of Boyd, the court found from Dr. Montolio's report clear and convincing evidence that the children would be traumatized by testifying in open court where they were asked to face any alleged perpetrator, including Boyd. Boyd's defense counsel then renewed her motion for severance, which the trial court denied.
Defense counsel again renewed Boyd's motion for severance after the jury had been selected, arguing the confrontation issue and also antagonistic defenses. Her motion was overruled. During trial, she made a contemporaneous objection to the admission of Martez' and Christina's testimony via closed-circuit television on confrontation grounds and again renewed her motion to sever at that time. She did not, however, object to the admission of testimony from detectives and employees of Sunflower House about statements Christina made to them during forensic interviews. Nor did she object to the admission of videotapes of the various interviews of Christina. Further, she did not object to detectives and Sunflower House employees testifying about statements made by Martez. Boyd did, however, assert an objection to the videotape of Martez' interview. Initially, her attorney objected on the grounds of hearsay and a Confrontation Clause violation. However, after a conference outside the presence of the jury, counsel stated, "I would rather the children testify first, but other than that I don't have any objection."
B. Severance Generally
The decision whether to grant a defendant's motion for severance lies within the sound discretion of the trial court. On appeal, an abuse of discretion standard applies to a denial of a request to sever trials. State v. White, 275 Kan. 580, 589, 67 P.3d 138 (2003). Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards. However, an abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards. Dragon v. Vanguard Industries, Inc., 277 Kan. 776, 89 P.3d 908 (2004); see State v. Richard, 252 Kan. 872, 881-82, 850 P.2d 844 (1993). When a decision is made regarding joinder or severance, even if it is determined that there was an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal. State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 (1994).
There are several steps of analysis to be applied in deciding whether to consolidate cases. There is no statute which authorizes consolidation when two or more defendants are charged in separate complaints as was done in this case. However, case law recognizes the inherent authority of a trial judge to order consolidation. State v. Aikens, 261 Kan. 346, 358, 932 P.2d 408 (1997). "The test for joinder of two or more cases for trial is the same as that for charging two or more defendants in the same complaint, information or indictment." State v. Tate, 228 Kan. 752, 753, 620 P.2d 326 (1980); see State v. Hunter, 241 Kan. 629, 632-33, 740 P.2d 559 (1987); State v. Coe, 223 Kan. 153, 157-58, 574 P.2d 929 (1977).
K.S.A. 22-3202(3) provides that two or more defendants may be charged in the same complaint if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting a crime or crimes. This court has explained:
"Several defendants may be joined together in one trial, even if they were not in fact charged together in one complaint, in the following circumstances:
'(1)when each of the defendants is charged with accountability for each offense included, or (2) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offense alleged to be in furtherance of the conspiracy, or (3) when in the absence of a conspiracy it is alleged the several offense charged were part of a common scheme or were so closely connected in time, place and occasion that proof of one charge would require proof of the others.' [Citation omitted.]" Aikins, 261 Kan. at 359 (quoting Tate, 228 Kan. at 754).
In this case, the trial court correctly found that the complaints charged the three codefendants–Neil, Christy, and Boyd–with the same crimes arising from the same acts; each was charged with accountability for each offense included. Christy, Neil, and Boyd were alleged to have bound and gagged all three children and, thus, committed inhuman and cruel acts of child abuse or aided and abetted in the commission of those crimes. Thus, they could have been charged together in one complaint. Consequently, the court had the discretion to consolidate the complaints for trial. Aikins, 261 Kan. at 359 (determination of whether several defendants could have been charged in same complaint and thus tried together rests in trial court's discretion); Tate, 228 Kan. at 753 (same).
However, "even though the requirements of joinder are technically satisfied, the court should not join two defendants in one trial if either defendant will be prejudiced by joinder. [Citation omitted.]" Aikins, 261 Kan. at 360. Separate trials should be conducted upon a showing of actual prejudice stemming from a joint trial and, in such a circumstance, the trial court should not join the complaints or, if the complaints have been joined, should sever the cases for trial. 261 Kan. at 360; see K.S.A. 22-3204 (providing court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney); Zafiro v. United States, 506 U.S. 534, 538-39, 122 L. Ed. 2d 317, 113 S. Ct. 933 (1993) (rejecting bright line rule mandating severance when defendants have conflicting defenses; concluding mutually antagonistic defenses are not prejudicial per se and severance should be granted "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence").
The usual factors to be considered in determining whether a joint trial is sufficiently prejudicial to mandate severance (or nonjoinder) are:
"(1) the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible on a separate trial would not be allowed on a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) the confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants." White, 275 Kan. 580, Syl. ¶ 2.
See State v. Davis, 277 Kan. 231, 240, 83 P.3d 182 (2004).
Boyd's arguments fall within the first and third factors, i.e., antagonistic defenses and evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury.
C. Antagonistic Defenses
In White, this court described when antagonistic defenses may justify severance:
"[A]ntagonistic defenses, has been referred to as the 'most compelling ground for severance.' [Citation omitted.] Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable. [Citation omitted.] 'The classic example of intrinsically antagonistic defenses is where both defendants blame each other for the crime while attempting to defend against the State's case.' [Citation omitted.] Short of this type of dichotomy, defenses will not be deemed antagonistic. For example, a dispute over who was the more culpable, such as arguing over who was the triggerman versus the aider and abettor, is not antagonistic. [Citations omitted.] Nor are inconsistent trial strategies. Further, the presentation of evidence by one defendant which is inconsistent with the evidence presented by another defendant does not make the defenses antagonistic. [Citation omitted.]" 275 Kan. at 590.
Under this standard, this case does not present a situation of antagonistic defenses. Neil Edgar's defense was to disclaim involvement and intent. He testified that discipline was only carried out by Christy "and the womens [sic] of the church." Neil claimed he knew taping was sometimes used as a disciplinary measure but did not know the women had taped Brian's mouth and head. He also said that he lied to the doctor at the hospital about what had happened to Brian because he knew his wife and Boyd had done something wrong. During closing argument, counsel for Neil argued:
"[T]he prosecution has already got the person who did this, the evangelist, the prophet, the manipulator. She was the person that did this; she was the person that told this poor little girl, You better wrap that head. And what does the little girl say? What does Chasity say? I bet you can't get out of that."
This strategy was not inconsistent with the defense presented by Boyd. According to Boyd, her approach was to blame Neil and Christy. She did so by introducing evidence that she was particularly susceptible to the influence of Christy, who told her to do the taping, and by eliciting evidence of Neil's initial statements to police where he claimed responsibility and said Boyd was not involved.
The State introduced the evidence of Neil's statements to po