State v. Breedlove

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,350

STATE OF KANSAS,
Appellee,

v.

TERRAL BREEDLOVE,
Appellant.


SYLLABUS BY THE COURT

1.
When this court reverses and vacates a juvenile adjudication and the case is
subsequently certified for adult prosecution, the speedy trial statute, K.S.A. 22-3402
(Furse), does not apply until the time of arraignment.

2.
The time limitations set out in K.S.A. 22-3402(4) (Furse) do not apply to a
juvenile defendant.

3.
The appellant has the burden of preserving and designating a record that supports
an appellant's claim that the speedy trial statute was or was not violated.

4.
The method employed in presenting admissible evidence, including a reading of
testimony from a prior hearing that was subject to cross-examination, is reviewed for
abuse of judicial discretion.

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5.
Vacating a judgment does not undo history and make it so that the proceeding
never occurred or was defective in every respect.

6.
An order resulting from a motion in limine is a temporary protective order that is
subject to change during the trial.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed September 14,
2012. Affirmed.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ROSEN, J.: After this court reversed for lack of jurisdiction Terral Breedlove's
convictions for murder, robbery, and assault, he was convicted of first-degree murder in a
new trial, and he now appeals. We find no reversible error in the prosecution of the new
trial, and we affirm the conviction.

In order to address the issues presented in the present appeal, it is necessary to
review why the first group of convictions were vacated and what evidence was presented
at the second trial.

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On August 12, 1995, when Breedlove was 17 years old, the murder for which he
has been twice convicted took place. Then, on September 3, 1995, he committed
additional crimes, all stemming from a carjacking and subsequent police chase. The
juvenile court authorized prosecuting him as an adult for the September 3 crimes, and
Breedlove eventually entered a guilty plea to those charges. Later, when he was 19 years
old, the State charged him with crimes alleged to have occurred on August 12: felony
murder, aggravated robbery, and four counts of aggravated assault. He was arraigned and
tried in district court without the State receiving judicial authorization to prosecute him as
an adult. A jury convicted him of those crimes in 1997, and the district court sentenced
him to life imprisonment plus 52 months, to be served consecutive to the sentences for
the crimes disposed of in the plea. In 1999, this court affirmed the convictions and
sentences for the August 12 crimes in State v. Breedlove, No. 80,952, 1999 WL 509667
(Kan. 1999) (unpublished opinion).

In 2006, Breedlove filed a motion to correct an illegal sentence, alleging that the
district court lacked jurisdiction over his prosecution as an adult because he was not
initially charged in juvenile court and the State never obtained authorization to prosecute
him as an adult.

This court agreed, holding that the convictions were void, and reversed those
convictions and vacated the sentences in State v. Breedlove, 285 Kan. 1006, 179 P.3d
1115 (2008). The mandate issued on April 21, 2008.

On April 30, 2008, the State filed new case number 08JV0623 in juvenile court,
charging Breedlove with the six counts for which he had earlier been convicted. On May
5, 2008, the State filed a motion requesting authorization for adult prosecution. On
November 10, 2008, Breedlove filed a motion to dismiss the nonmurder counts based on
the expiration of the statute of limitations. The motion was heard on November 18, 2008.
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On February 19, 2009, the Sedgwick County Juvenile Department filed a journal entry
authorizing prosecution of Breedlove as an adult. On the same date, the district court filed
a journal entry arraigning Breedlove on one count of first-degree murder. On February
23, 2009, the juvenile court granted the motion to dismiss the five nonmurder counts.

Prior to his trial in district court, Breedlove filed a motion to dismiss based on
speedy trial grounds. This motion was denied, and a jury trial took place on June 23-25,
2009. At the second trial, the jury heard the testimony of witnesses relating to events of
August 12 and September 3, 1995.

Callie Bishop testified that she was a young teenager in 1995, and that on the night
of August 12, 1995, Breedlove approached her and some friends in the driveway of a
friend's house in Wichita while a Hispanic man waited at the end of the driveway.
Breedlove pointed a gun at Bishop, asked the teenagers if any of them owned a car, and
then walked away when they explained that they were too young to drive. Danielle
Hardman and Kevin Hammond corroborated Bishop's account.

Shelly Hernandez testified that she was sitting outside her apartment in Wichita on
that same night when Breedlove and a Hispanic man approached them through the
parking lot. Breedlove was holding a gun, and he asked them if they had seen his car. The
men left when she told them she had not.

Dawn Landsdowne worked at a Checkers grocery store in Wichita. She testified
that Rigoberto Garcia returned to the store on the night of August 12 to get a refund for
merchandise. She observed Breedlove and another young man hanging out around the
front of the store asking people if they could get a ride. The two men asked Garcia if they
could get a ride with him, and they left the store shortly after Garcia left with his refund.
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The testimony of Craig Wilson from the first trial was read to the jury. He was a night
manager at Checkers, and he corroborated Landsdowne's testimony.

Sergeant William Stevens of the Wichita Police Department testified that he
responded to a call at 11:43 in the evening and found Garcia lying on his back by some
trash dumpsters in a corner of the Checkers parking lot. Garcia was still breathing at the
time, but he was not conscious. Garcia never regained consciousness, and he died around
12:45 on the afternoon of August 14. At the hospital it was determined that a bullet was
lodged in Garcia's head. The testimony of Dr. Marcus Nashelsky from the first trial was
read to the jury. He testified that the wound was consistent with a close-range gunshot
from the back left side of the head toward the front right side. He concluded that the
bullet was the cause of Garcia's death.

The testimony of Andrea Carlyle from the first trial was read to the jury. She was
dating Breedlove in August 1995. When she got home from work at 5:30 on the evening
of August 12, Breedlove and Israel Sosa were waiting for her. They told her they were
going to get something to eat and left around 6 p.m. They did not have a car and left on
foot. Breedlove returned alone to her house around 2 in the morning of August 13. He
told her that Sosa and he had eaten and then gone to Checkers, where they found an old
man who had been shot and whose keys were lying on the ground beside him. They
picked up the keys and took his car because they needed a ride home. Breedlove then told
her he had shot the man, but soon afterwards told her that "he was just kidding."

Sosa testified that he and Breedlove went walking after they ate dinner on August
12. He told the jury that Breedlove was carrying a gun and that the two of them
approached some children in a driveway and some people outside an apartment. They
then went to Checkers, where Sosa bought a drink. They were walking away from
Checkers behind the store when Sosa watched Breedlove shoot someone. Breedlove and
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the victim were "wrestling" over the gun when the gun went off. Breedlove then got into
the victim's car, drove over and picked up Sosa, and took him home. Sosa and his family
took a vacation out of town soon afterwards; when they returned, Sosa met up with
Breedlove, and the two once again set out to find a car. Sosa initially testified that they
traded some crack cocaine for a car, and the police chased them down. Responding to a
transcript of his previous testimony, Sosa acknowledged that he and Breedlove had
carjacked the car and that Sosa was driving when the police pursued them while
Breedlove fired a shotgun out the rear window.

Alvin Mitchell testified that on September 3, 1995, he was driving in Wichita
when he thought he heard two young men standing near the street ask him to stop. He
initially thought it was one of his nephews. When he stopped, Breedlove approached
Mitchell's car and held a gun to his head; he demanded that Mitchell give him his car, his
billfold, and his shoes. With Breedlove at the wheel, he and Sosa drove off in the car,
leaving Mitchell by the side of the street.

Deputy Brenda Dietzman testified that she identified and pursued Mitchell's stolen
car that night, and during the pursuit two shots from a shotgun were fired at her from the
car. She and other officers eventually trapped Breedlove and Sosa as they attempted to
flee on foot.

Anthony Davis testified that he was involved in a conversation in jail with
Breedlove and Sosa in which Breedlove stated he had killed Garcia and Breedlove urged
Sosa to remain quiet about Garcia's death.

Breedlove called no witnesses and introduced no evidence in his defense. The jury
found Breedlove guilty as charged. The district court sentenced him to life imprisonment.
Breedlove filed a timely notice of appeal.
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Speedy Trial

Breedlove first argues on appeal that his trial violated the requirements of the
Kansas speedy trial statute, K.S.A. 22-3402 (Furse).

On April 21, 2008, this court issued the mandate in Breedlove, 285 Kan. 1006.
The new jury trial did not commence until June 22, 2009. Prior to trial, Breedlove filed a
motion to dismiss, arguing that, under K.S.A. 22-3402(4) (Furse), the State had only 90
days from April 22, 2008, to bring him to trial. The district court denied the motion to
dismiss on the grounds that K.S.A. 22-3402(4) (Furse) does not apply when a conviction
is reversed and vacated for want of jurisdiction.

Whether a defendant's statutory right to a speedy trial was violated is a question of
law that is subject to de novo review. State v. Montes-Mata, 292 Kan. 367, 369, 253 P.3d
354 (2011).

K.S.A. 22-3402(1) (Furse) sets out a 90-day limit for holding a person in jail
without bringing that person to trial:

"If any person charged with a crime and held in jail solely by reason thereof shall
not be brought to trial within ninety (90) days after such person's arraignment on the
charge, such person shall be entitled to be discharged from further liability to be tried for
the crime charged, unless the delay shall happen as a result of the application or fault of
the defendant, or a continuance shall be ordered by the court under subsection (3)."
(Emphasis added.)

K.S.A. 22-3402(4) (Furse) addresses the special situation when this court reverses
a conviction:

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"In the event a mistrial is declared or a conviction is reversed on appeal to the
supreme court or court of appeals, the time limitations provided for herein shall
commence to run from the date the mistrial is declared or the date the mandate of the
supreme court or court of appeals is filed in the district court." (Emphasis added.)

Breedlove's argument on appeal is straightforward: The statute applies to him
because in his 2008 appeal this court explicitly considered the remedy and held that the
appropriate relief was to reverse and vacate the convictions. See Breedlove, 285 Kan. at
1017. The State has the burden of bringing an accused to trial within the statutory time
limitation; the defendant has no obligation to take any affirmative action to ensure that
the trial takes place within the allowed time. State v. Vaughn, 288 Kan. 140, 144, 200
P.3d 446 (2009). The State failed to commence the trial in the present case within 90 days
of the mandate, and the new conviction violated the speedy trial statute.

We are persuaded, however, that K.S.A. 22-3402(4) (Furse) does not govern
Breedlove's second trial. Because the original conviction was vacated for lack of
jurisdiction, this is not a retrial of the same case. The proceeding leading to the present
conviction was initiated in juvenile court and led to a de novo arraignment.

The 90-day speedy trial provision sensibly begins with the new arraignment
because there is no "old case" from which to begin counting the 90 days. "[T]he time
limitations provided for herein" to which K.S.A. 22-3402(4) (Furse) refers could not
apply in this case until after arraignment in district court. A juvenile has neither a
constitutional nor a statutory right to a right to a speedy trial in matters conducted under
the Juvenile Justice Code, so the time limitations of K.S.A. 22-3402 (Furse) would have
no application before arraignment in district court. See In re S.A.J., 29 Kan. App. 2d 789,
790, 31 P.3d 320 (2001); In re T.K., 11 Kan. App. 2d 632, Syl. ¶ 2, 731 P.2d 887 (1987).

9



Because the case began again, the speedy trial requirements did not come into play
until Breedlove's arraignment. See State v. Thomas, 291 Kan. 676, 692, 246 P.3d 678
(2011) (calculation of time under speedy trial statute begins on date of arraignment).
K.S.A. 22-3402(4) (Furse) calls for "the time limitations provided for herein" to apply,
and those time limitations commence to run from the time of arraignment, which did not
happen in this case until February 19, 2009. Trial began on June 23, 2009, which was 124
days after the arraignment.

Breedlove does not demonstrate that the time in excess of 90 days beyond the
arraignment was the responsibility of the State. Delays resulting from requests of a
defendant toll the statutory speedy trial period. Vaughn, 288 Kan. at 144.The appellant
has the burden of preserving and designating a record that supports an appellant's claim
that the speedy trial statute was or was not violated. Vaughn, 288 Kan. at 148; State v.
Humphrey, 252 Kan. 6, 27-28, 845 P.2d 592 (1992) (appellant has burden of designating
a record showing speedy trial violation).

K.S.A. 22-3402(4) (Furse), in the context of the entire speedy trial statute, requires
only that the State commence the trial within 90 days of a valid arraignment, and
Breedlove does not demonstrate that he was denied his right to a speedy trial.

The Evidence of Other Crimes

Breedlove contends on appeal that the district court improperly allowed the State
to introduce evidence showing that he engaged in criminal activity outside of the time
immediate to Garcia's murder. This activity included the testimony of witnesses whom he
approached on the night of the murder, displaying a gun and asking about access to a car,
testimony suggesting that Breedlove kidnapped Sosa by intimidating him into riding with
him in Garcia's car, and testimony relating to the carjacking incident of September 3,
10



1995. Breedlove did not make specific objections to the introduction of this evidence at
the time it was first put before the jury.

K.S.A. 60-404 requires a timely and specific objection to the introduction of
evidence before an appellate court may reverse a verdict based on that evidence.
Challenges on appeal to questions posed by a prosecutor and the responses to those
questions must be preserved by a contemporaneous objection. State v. King, 288 Kan.
333, 349, 204 P.3d 585 (2009). Although the district court limited some bad-acts
testimony in a pretrial ruling, Breedlove did not renew his objections to the testimony at
issue here, or only objected well into the testimony. Failing to raise a timely objection
forecloses appellate review. State v. McCullough, 293 Kan. 970, 1000, 270 P.3d 1142
(2012). The issue is therefore not properly before this court, and we decline to consider it.

Reading Transcribed Testimony to the Jury

The district court allowed the testimony of Wilson, the store manager, and Carlyle,
Breedlove's girlfriend in August 1995, to be read into the record before the jury.
Statements that Sosa made at the first trial were also read into the record in an attempt to
impeach his version of events regarding the September 3, 1995, carjacking. Breedlove
contends that because these statements were made at a void trial, they became in effect a
legal nullity, and he was consequently deprived of his constitutional right to confront
witnesses against him. The State responds that Breedlove failed to make a sufficiently
specific objection at trial, that the earlier trial was not void in its entirety, and that any
error was harmless because the evidence at issue was cumulative and corroborative.

The method employed in presenting admissible evidence, including a reading of
testimony from a prior hearing that was subject to cross-examination, is reviewed for
abuse of judicial discretion. State v. Davis, 284 Kan. 728, 736, 163 P.3d 1224 (2007).
11



The standard for reviewing a district court decision that a witness is unavailable to testify
is also abuse of discretion. State v. Young, 277 Kan. 588, 597, 87 P.3d 308 (2004). When
reviewing issues related to the Confrontation Clause of the Sixth Amendment to the
United States Constitution, this court analyzes questions of law and applies a de novo
standard of review. State v. White, 284 Kan. 333, 345, 161 P.3d 208 (2007).

We hold that the issue was preserved for appeal but that vacating the earlier trial
did not render the sworn testimony from that trial void, did not remove the constitutional
protections in place at that trial, and did not change the credibility of the testimony.

A. Preservation

The State filed a pretrial motion to allow it to introduce Wilson's prior trial
testimony. The motion asserted that Wilson was being deployed to North Carolina in his
capacity of service in the United States Air Force National Guard. Breedlove did not
contest Wilson's lack of availability, but instead challenged a hearsay statement contained
in the transcript. The district court found Wilson to be unavailable, allowed the
transcribed testimony to be read, and noted that no contemporaneous hearsay objection
was raised at the initial trial and therefore the objection was waived.

The State also filed a pretrial motion to declare Carlyle unavailable because she
had suffered head injuries in a car accident several years after the first trial and those
injuries had disrupted both her short-term and long-term memory. The district court
conducted a hearing to determine her availability and examined her medical records. She
testified at this hearing that, although she remembered that Breedlove had been her
boyfriend, she was unable to remember talking with him or him being at her apartment.
She also testified that she could not remember anything about Sosa. She remembered that
12



she had testified at the earlier trial, but she could not remember what she had said. She
explained that even after reading a transcript of her prior testimony she could not recall
the events about which she had testified, including the fact that a man had been
murdered. She informed the court that she was in a car accident in 2001, and her head
went through the windshield. The court found her unavailable to testify and allowed the
State to read her transcribed testimony to the jury.

Breedlove raised the objection at that time that this court had found the previous
trial to be void for lack of jurisdiction and that any testimony transcribed from that trial
should therefore be struck as a legal nullity. The district court overruled the objection,
holding that, notwithstanding the nullity of the trial, the oaths and the cross-examinations
remained valid.

Before Wilson's testimony was read to the jury, Breedlove's counsel stated to the
court:

"Your Honor, again just as far as this testimony goes, I did make an earlier
objection about one of the objections contained in, or I guess maybe not contained in the
record, and I just again note that objection for the record at this time. And I'm sure that is
clear as mud."

The court responded: "The objection you raised earlier, I recall it, and the ruling
will be the same as I made prior to that. And you will be overruled, but it's noted for the
record."

Before Carlyle's testimony was read to the jury, Breedlove's counsel stated to the
court: "Judge, as far as this witness, or I guess with regard to this witness' testimony, I
would just again note my prior objection for the record at this time." The court
13



responded: "Duly noted and my ruling will be consistent with the one I made prior to the
commencement of the trial."

Finally, during the reading of Sosa's prior testimony, Breedlove's counsel made
several objections going to the scope of the impeachment and the allegedly repetitive
nature of the questions.

A defendant must make a timely and specific objection in order to preserve an
issue for appeal. K.S.A. 60-404; State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010).
Furthermore, the defendant may not object on one ground at trial and then argue another
ground on appeal.

To be sure, the objections voiced at trial were not specific, referring only to an
"earlier objection" or a "prior objection." It is clear, however, that the district court
understood the basis of the objection, referring back to its earlier ruling. The pretrial
objection as to the nullity of the first trial applied to any evidence read to the jury from
that trial: "I would just simply make the argument that if that trial was a nullity, any of
the testimony that arose during that trial would be a nullity as well . . . ."

We therefore elect to address on their merits the issues of the reading of
transcribed testimony from the prior trial.

B. Confrontation Clause

K.S.A. 2008 Supp. 60-460 provides for consideration by the factfinder of
testimony given in a previous trial:

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"Evidence of a statement which is made other than by a witness while testifying
at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and
inadmissible except:
. . . .
"(c) Depositions and prior testimony. Subject to the same limitations and
objections as though the declarant were testifying in person, . . . if the judge finds that the
declarant is unavailable as a witness at the hearing, testimony given as a witness in
another action . . . or former trial in the same action, . . . when (A) the testimony is
offered against a party who offered it in the party's own behalf on the former occasion or
against the successor in interest of such party or (B) the issue is such that the adverse
party on the former occasion had the right and opportunity for cross-examination with an
interest and motive similar to that which the adverse party has in the action in which the
testimony is offered, but the provisions of this subsection (c) shall not apply in criminal
actions if it denies to the accused the right to meet the witness face to face."

Out-of-court testimonial statements by witnesses used against the accused are
barred under the Confrontation Clause of the Sixth Amendment to the United States
Constitution unless the witness is unavailable and the accused had prior opportunity to
cross-examine the witness, regardless of whether such statements are deemed reliable by
the court. Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). The Crawford Court emphasized the importance of cross-examination: "When
testimonial evidence is at issue, . . . the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-examination." 541 U.S. at
68.

The Sixth Amendment right of confrontation is satisfied if the accused confronted
the witnesses against him or her at any stage of the proceedings and has had an
opportunity of cross-examination. State v. McCray, 267 Kan. 339, 353, 979 P.2d 134
(1999). Breedlove was represented at his previous trial and his counsel cross-examined
Wilson, Carlyle, and Sosa.
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C. Void First Trial

Vacating a judgment does not undo history and make it so that the proceeding
never occurred or was defective in every respect. If a witness had perjured himself or
herself at the first trial, that perjury would not have been undone by the subsequent
finding that the trial was void. See K.S.A. 21-3805(a)(1) (crime of perjury includes
testifying to any material fact upon oath before any entity authorized to administer oaths).
Similarly, counsel and witnesses from the first trial are not required to return fees paid for
their appearances at a proceeding where the judgment was subsequently vacated.

In Roche v. Lang, No. B 114622, 2010 WL 779782, at *4 (2010), an unpublished
opinion of the California Court of Appeal filed March 9, 2010, the court noted that
testimony from a void judgment may be used in a later proceeding:

"The default judgment was erased after the trial court found that Lang was not properly
served with the summons and complaint. The judgment is void ab initio, and we cannot
consider it for any purpose. The only use Roché can make of the default prove-up hearing
is the transcript of his sworn testimony." (Emphasis added.)

In People v. Graham, 43 A.D.2d 182, 350 N.Y.S.2d 458 (1973), the court
considered a case in which the defendant succeeded in having a murder conviction
reversed through federal habeas corpus relief. The state court deemed the reversal a
"voiding" of his conviction, but nevertheless allowed transcripts of witnesses from his
earlier trial to be read into evidence because those witnesses were no longer available.

We agree with those decisions. The testimony given in the first trial was presented
with all statutory and constitutional protections in place. Breedlove's Sixth Amendment
right to confront the witnesses against him was satisfied at the first trial. There was no
16



connection between the testimony of those witnesses and the grounds for vacating the
conviction. It is undisputed that those witnesses were unavailable at the second trial or
that Sosa had changed his testimony and was no longer a friendly witness to the State. It
was not error for the district court to allow the State to read into evidence testimony from
the first trial.

Prosecutorial Misconduct During Closing Argument

During closing argument, the prosecutor stated:

"Remember that Alvin Mitchell has been approached by two males, one with a shotgun.
He puts this defendant as the man with the shotgun, the black male. He is held up at
gunpoint, the gun to his head, similar to Rigoberto Garcia, and his car, his wallet, his
money, is demanded from him."

During his rebuttal argument, the prosecutor stated:

"He is the one that was shooting that gun. He is the one that used the gun. He is the one
that put it in the same place on Alvin Mitchell's head that he put his pistol to the head of
Mr. Garcia. The same one. That is what Sosa said."

Breedlove contends on appeal that these statements misrepresented the evidence,
i.e., there was no evidence in the record that Breedlove put a gun to Garcia's head.

Appellate review of an allegation of prosecutorial misconduct involving improper
comments to the jury during closing arguments requires a two-step analysis. First, the
appellate court decides whether the comments were outside the wide latitude that the
prosecutor is allowed in discussing the evidence. Second, if misconduct is found, the
appellate court must determine whether the improper comments prejudiced the jury
17



against the defendant and denied the defendant a fair trial. State v. Bennington, 293 Kan.
503, 530, 264 P.3d 440 (2011).

The record contains evidence showing that Breedlove indeed placed a gun to
Garcia's head. Garcia was shot in the head at close range according to the forensic
testimony. Sosa testified that he watched Breedlove shoot Garcia in the head while the
two were wrestling for the gun. Whether Breedlove deliberately held the gun to Garcia's
head or whether the gun ended up there in the course of the struggle is of minor
significance; the prosecutor made the reasonable inference that Breedlove had held a gun
to Garcia's head at close range, and the prosecutor's statements were within the scope of
the latitude afforded him in commenting on the evidence.

Violation of the Order in Limine

Prior to trial, the district court made a ruling in limine limiting certain evidence
relating to Sosa's interaction with Breedlove. Breedlove argues that the State violated the
order by presenting to the jury information regarding the putative kidnappings of Sosa
committed by Breedlove on the night of the murder and several weeks after the murder.

Courts employ a two-part test to evaluate alleged violations of orders in limine:
first, was there a violation of the order in limine, and second, if the order was violated,
did the testimony substantially prejudice the defendant? Because the trial court is in the
best position to decide whether its order in limine was violated, the denial of a motion for
mistrial is reviewed under an abuse of discretion standard. State v. Crum, 286 Kan. 145,
160, 184 P.3d 222 (2008).

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An order resulting from a motion in limine is a temporary protective order that is
subject to change during the trial. State v. Bloom, 273 Kan. 291, 300, 44 P.3d 305 (2002);
State v. Quick, 226 Kan. 308, 313, 597 P.2d 1108 (1979).

A. The State's Examination of Sosa

When Sosa began to testify about the events of September 3, he explained that he
and Breedlove traded crack cocaine for the car and that the police were investigating
reports of a shooting in the neighborhood and suspected the car had been a target of the
shooting. Upon hearing that testimony, the prosecutor approached the bench, suggested
that Sosa had become a hostile witness, and asked for permission to read from the
transcript of Sosa's testimony at the first trial. Breedlove's counsel did not object. The
court declared Sosa to be a hostile witness and allowed the testimony regarding how Sosa
ended up in the car on both days to be read to the jury as impeachment evidence. The
State then went over the prior testimony with Sosa in detail, again without objection.
When counsel finally did object, it was based on repetition rather than violation of the
order in limine. The district court allowed the testimony to come in, noting that Sosa had
been vague in his testimony about events during the second trial.

The question of the violation of the order in limine as it pertains to the questions to
Sosa is not properly before the court. There was no contemporaneous, specific objection,
and the district court clearly modified its order to allow the testimony.

B. The Opening Statement

Breedlove also contends the prosecutor violated the order in limine in his opening
statements.

19



Appellate review of an allegation of prosecutorial misconduct involving improper
comments to the jury during opening or closing argument to the jury requires a two-step
analysis. First, the appellate court decides whether the remarks were outside the wide
latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct
is found, the appellate court must determine whether the improper remarks prejudiced the
jury against the defendant and denied the defendant a fair trial. State v. Miller, 293 Kan.
535, 550, 264 P.3d 461 (2011).

During his opening statement, the prosecutor told the jury:

"Mr. Sosa started to run after Mr. Garcia went down. Mr. Breedlove got in Mr.
Garcia's 1989 Sable and came back out of the driveway where Sosa was running back
toward Pawnee and told Sosa to get in. Sosa hesitated, he pointed a gun at him. 'Get in.'
So he got in. Took him home."

Reversing a conviction because of violations of motions in limine and
prosecutorial misconduct requires a finding of prejudice to the defendant. Because the
district court subsequently modified its order restricting the scope of direct examination
and the evidence about Breedlove threatening Sosa came in, the opening statement was
prejudicial: it made a one-phrase reference to facts that were later properly disclosed to
the jury.

The State argues on appeal that this statement did not violate the court's order
because the prosecutor did not actually tell the jury that Breedlove kidnapped Sosa. This
argument is somewhat specious: clearly, the State suggested that the reason that Sosa got
in the car with Breedlove was because Breedlove was pointing a gun at him, which
appears to be kidnapping.

20



The State also argues that Breedlove did not preserve the issue on appeal because
he failed to object to the opening statement. This court, however, reviews a prosecutor's
comments to a jury during the opening statement that are not in evidence even when no
objection is lodged at the trial, although the absence of an objection may figure into the
court's analysis of the alleged misconduct. State v. King, 288 Kan. 333, 349, 204 P.3d
585 (2009).

We nevertheless find no prejudice to Breedlove because the reference to the
kidnapping was passing and because the district court later revised its order in limine.

The Allen-type Instruction

Jury Instruction Number 12 read as follows:

"Like all cases, this is an important case. If you fail to reach a decision, that
charge is left undecided for the time being. It is then up to the state to decide whether to
resubmit the undecided charge to a different jury at a later time.
"This does not mean that those favoring any particular position should surrender
their honest convictions as to the weight or effect of any evidence solely because of the
opinions of other jurors or because of the importance of arriving at a decision.
"This does mean that you should give respectful consideration to each other's
views and talk over any differences of opinion in a spirit of fairness and candor. If at all
possible, you should resolve any differences and come to a common conclusion.
"You may be as leisurely in your deliberations as the occasion may require and
take all the time you feel necessary."

Jury Instruction Number 1 read in part:

"Your only concern in this case is determining if the defendant is guilty or not
guilty. The disposition of the case thereafter is a matter for determination by the Court."
21




Breedlove contends on appeal that these instructions are confusing, suggesting to
the jury that it both should and should not concern itself with what happens after it
concludes deliberations.

When a party objects to an instruction before the district court, this court considers
whether the instructions as a whole properly and fairly stated the law as applied to the
facts and whether they could have misled the jury. State v. Duong, 292 Kan. 824, 839,
257 P.3d 309 (2011). However, when a party does not make a timely and specific
objection to an instruction, the standard of review is whether the instruction is clearly
erroneous, which means that this court must be convinced that there is a real possibility
that the jury would have rendered a different verdict if the error had not occurred. 292
Kan. at 838-39.

Breedlove's counsel lodged a vague objection to the instruction:

"Well, I consistently ask the Court to not include the Allen instruction which is in
instruction 12."

The State actually lodged a more specific objection:

"I do have an objection to number 12, Judge, that it's a modified-modified Allen. There
was a recent case that came out—and I apologize I haven't been downstairs yet, but I
know the Court is aware of what I'm talking about—that disapproves of any, that's the
way I read it, disapproves of any Allen instruction."

The district court overruled the State's objection, contending that this court's
opinions disapproving of Allen-type instructions have focused on language missing from
22



the present instruction: "Another trial would be a burden on both sides." See, e.g.,
Duong, 292 Kan. at 838 (focusing on those words in determining whether instruction was
clearly erroneous). The State then agreed, albeit reluctantly, with the district court's
decision to leave the Allen wording in the instructions.

In Duong, this court considered an objection that was similar in specificity to the
one Breedlove's counsel lodged in the present case. The Duong court elected to apply a
clearly erroneous standard and concluded that the instruction, including the "burden on
both sides" language, was not clearly erroneous. 292 Kan. at 839. Because Breedlove's
objection was not specific and because the offending instruction in his case places even
less pressure on the jury than the Duong instruction, we find no error requiring reversal.

Cumulative Error

Under the cumulative error doctrine, this court determines whether the totality of
the circumstances caused substantial prejudice to the defendant and denied him or her a
fair trial. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). Having found no
error of substance, we conclude that Breedlove did not suffer substantial prejudice that
denied him his right to a fair trial.

Affirmed.