State v. Bridges

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,222

STATE OF KANSAS,
Appellee,

v.

CHARLES BRIDGES,
Appellant.


SYLLABUS BY THE COURT

1.
A decision on a motion in limine involves a two-pronged test. The court must
determine whether: (1) the material or evidence in question will be inadmissible at a trial;
and (2) the pretrial ruling is justified as opposed to a ruling during trial because the mere
offer or mention of the evidence during trial may cause unfair prejudice, confuse the
issues, or mislead the jury; the consideration of the issue during the trial might unduly
interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial
may limit issues and save the parties time, effort, and cost in trial preparation.

2.
A district court ruling on the first motion in limine prong—i.e., the admissibility of
evidence—and an appellate court reviewing that ruling apply a multistep analysis. For the
first step, the court determines whether the evidence is relevant. K.S.A. 60-401(b) defines
relevant evidence as that which has any tendency in reason to prove any material fact.
Accordingly, relevant evidence must be both probative and material. Whether evidence is
probative is reviewed under an abuse of discretion standard; materiality is judged under a
de novo standard. For the second step, the court determines which rules of evidence or
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other legal principles apply. The district court's conclusion is reviewed de novo. For the
third step, the district court must apply the applicable rule or principle. This application is
reviewed either for abuse of discretion or de novo, depending on the rule or principle
being applied. Some rules and principles grant the district court discretion, while others
raise matters of law.

3.
While the exclusion of evidence that forms an integral part of the defendant's
theory of the case can violate the defendant's right to a fair trial, the defendant's right to
present a defense is subject to the rules of evidence and caselaw on the subject.

4.
Unless a defendant's due process rights are implicated, a district court's exclusion
of evidence as a permitted sanction because of a party's failure to comply with discovery
under K.S.A. 22-3212(g) is reviewed on appeal for an abuse of discretion.

5.
Material evidence tends to establish a fact that is at issue and significant under the
substantive law of the case, while probative evidence requires a logical connection
between the asserted facts and the inferences they are intended to establish.

6.
Warnings based on the safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966), are required only for those who
are in custody and subject to interrogation. A custodial interrogation, as opposed to an
investigatory interrogation, is questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his or her freedom in any
significant way.
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7.
The question of whether a suspect should be re-Mirandized after waiver of those
communicated rights is one of law that an appellate court answers by considering the
totality of the circumstances.

8.
An appellate court employs the same standard of review for determining the
voluntariness of a defendant's waiver of Miranda rights, for determining the
voluntariness of a defendant's statement, and for determining whether a defendant's
interview is custodial. Each inquiry requires an examination of the totality of the
circumstances, and an appellate court reviews the factual underpinnings of the trial
court's decision by a substantial competent evidence standard and the ultimate legal
conclusion by a de novo standard.

9.
In making the ultimate legal conclusion of determining whether an interview is
custodial, the court decides whether a reasonable person would have felt free to terminate
the interrogation and disengage from the encounter.

10.
In determining the voluntariness of a waiver of Miranda rights and the
voluntariness of a defendant's statement, the State bears the burden of proof.

11.
An appellate court does not reweigh evidence, pass on the credibility of witnesses,
or resolve conflicts in the evidence. The appellate court should accept as true all
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inferences to be drawn from the evidence which support or tend to support the findings of
the district court.

12.
Nonexclusive factors to be considered in determining if an interrogation is
investigative or custodial include: (1) the time and place of the interrogation; (2) the
duration of the interrogation; (3) the number of law enforcement officers present; (4) the
conduct of the officers and the person subject to the interrogation; (5) the presence or
absence of actual physical restraint or its functional equivalent, such as drawn firearms or
a stationed guard; (6) whether the person is being questioned as a suspect or a witness;
(7) whether the person being questioned was escorted by officers to the interrogation
location or arrived under his or her own power; (8) the result of the interrogation, for
instance, whether the person was allowed to leave, was detained further, or was arrested
after the interrogation; and (9) whether the person was provided Miranda warnings. No
one factor outweighs another, nor do the factors bear equal weight. Every case must be
analyzed on its own particular facts.

13.
Evidentiary claims—including questions posed by a prosecutor and responses to
those questions during trial—must be preserved by way of a contemporaneous objection
under K.S.A. 60-404 for those claims to be reviewed on appeal.

14.
Review of prosecutorial misconduct claims involves a two-step process. The
appellate court first decides whether the comments were outside the wide latitude a
prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct.
Second, if misconduct is found, the court must determine whether the improper
comments prejudiced the jury and denied the defendant a fair trial.
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15.
The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified
three factors to consider in determining if the prosecutorial misconduct so prejudiced the
jury against the defendant that a new trial should be granted: (1) whether the misconduct
was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's
part; and (3) whether the evidence against the defendant was of such a direct and
overwhelming nature that the misconduct would likely have little weight in the minds of
the jurors. Under Tosh, none of these three factors is individually controlling. And before
the third factor can ever override the first two factors, an appellate court must be able to
say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), have been met.

16.
Where both the constitutional and nonconstitutional error clearly arise from
the very same acts and omissions, an appellate court begins with a harmlessness
analysis of the constitutional error. If the constitutional error is reversible, an
appellate court need not analyze whether the lower standard for harmlessness
under K.S.A. 60-261 also has been met. Under both standards, the party benefiting
from the error bears the burden of demonstrating harmlessness.

17.
In general, a prosecutor may not offer a jury the prosecutor's personal opinion as
to the credibility of a witness because such a comment is unsworn, unchecked testimony,
not commentary on the evidence of the case. The determination of the truthfulness of a
witness is for the jury.

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18.
In determining whether prosecutorial misconduct was gross and flagrant,
among the things an appellate court considers are whether the comments were
repeated, emphasized improper points, were planned or calculated, or violated
well-established or unequivocal rules.

19.
In determining whether prosecutorial misconduct was motivated by ill will,
among the things an appellate court considers are whether the conduct was
deliberate, repeated, or in apparent indifference to a court's ruling.

20.
One error cannot support the application of the cumulative error doctrine.

21.
Whether Kansas' identical offense sentencing doctrine applies is a question of law,
which is reviewed de novo.

22.
Under Kansas' identical offense sentencing doctrine, if two criminal offenses have
identical elements but different penalty classifications, a defendant convicted of either
crime may be sentenced only under the lesser penalty provision.

23.
The generic crime of homicide, of which murder is the highest and most criminal
species, is of various degrees and encompasses every mode by which the life of one
person is taken by the act of another.

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24.
Kansas' identical offense sentencing doctrine does not apply to severity levels of
the same offense. Per K.S.A. 21-3107(2)(a), involuntary manslaughter as stated in K.S.A.
21-3404(b) is a lesser included offense of reckless second-degree murder as set out in
K.S.A. 21-3402(b). Therefore, under the facts of this case, the identical offense doctrine
does not apply.

Review of the judgment of the Court of Appeals in an unpublished opinion filed April 15, 2010.
Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed August 9, 2013.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of
the same office, was with her on the briefs for appellant.

Sheryl Lidtke, chief deputy district attorney, argued the cause, and Robbin L. Wasson, assistant
district attorney, Jerome Gorman, district attorney, and Steve Six, attorney general, were on the briefs for
appellee.

The opinion of the court was delivered by

NUSS, C.J.: We granted Charles Bridges' petition for review of the Court of
Appeals decision affirming his conviction and sentence for second-degree unintentional
murder. The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in refusing to admit Bridges' expert witness testimony
and thereby deny him his right to present his theory of defense? No.
2. Did the district court err in denying Bridges' motion to suppress his statements
to investigators? No.
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3. Did the district court err in allowing the State's witnesses to comment on
Bridges' credibility? Not preserved for appeal.
4. Did the prosecutor commit misconduct by offering his opinion on Bridges'
credibility? Yes, but harmless error.
5. Did cumulative error deny Bridges a fair trial? No.
6. Does the identical offense sentencing doctrine require reversing and remanding
for resentencing? No.
7. Did the district court err in applying the BIDS application fee? No.

We therefore affirm the district court and the Court of Appeals panel.

FACTS

On the evening of July 15, 2004, Bridges personally replaced his home's water
heater. When Bridges left for work the next morning his fiancée, Laura McCurley, stayed
behind to continue her recuperation from recent surgery. At approximately 11:30 a.m.,
Bridges' home exploded, and McCurley was severely injured. She died from her injuries
11 days later.

Investigators determined that a valve on an uncapped natural gas pipe in the
basement had been left in the "on" position. The open valve allowed natural gas to
escape, fill the house, and then explode when McCurley lit a cigarette.

During different interviews with various investigators, Bridges gave varying and
inconsistent explanations for the cause of the explosion. He eventually stated that before
he left for work he checked the pipes due to a gas smell and instead of turning the valve
off, he probably, by mistake, turned it on.

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At the time of the explosion, Bridges' home was in foreclosure and he was
pursuing his second bankruptcy. So the police theorized that he intentionally tried to set a
fire to obtain insurance policy proceeds, and McCurley simply had been killed in the
process. Bridges was ultimately charged with and convicted of unintentional reckless
second-degree murder. This offense is a severity level 2 person felony, and the district
court sentenced Bridges to 117 months' incarceration. See K.S.A. 21-3402(b).

The Court of Appeals panel affirmed in State v. Bridges, No. 101,222, 2010 WL
1610393 (Kan. App. 2010) (unpublished opinion), and we granted Bridges' petition for
review under K.S.A. 20-3018.

Additional facts will be provided as necessary to the analysis.

ANALYSIS

Issue 1: The granting of the State's motions in limine did not infringe on Bridges' right to
present his theory of defense.

Bridges argues the district court erroneously granted the State's motions in limine
to exclude his evidence relating to (1) his depression and (2) the amount of the insurance
proceeds he actually received. Bridges contends that the depression evidence via the
testimony of psychologist Janice Scott was relevant for two reasons. First, it would show
that he only acted negligently, not recklessly, when he installed the water heater. Second,
it would explain the inconsistent statements he gave to investigating officials.

Bridges also contends evidence of the insurance proceeds he actually received was
relevant to rebut the State's evidence that his house and personal effects were insured for
$183,000, which was introduced to argue that his financial gain was a motive. By
showing that most of Bridges' insurance proceeds went to his mortgage lender, he wanted
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to demonstrate financial gain was not a motive because he did not profit from the
explosion.

As discussed below, the Court of Appeals panel affirmed the district court on both
evidentiary issues. The State obviously agrees with these determinations.

Standard of Review

A decision on a motion in limine involves a two-pronged test. The court must
determine whether: (1) the material or evidence in question will be inadmissible at trial;
and (2) the pretrial ruling is justified as opposed to ruling during trial because the mere
offer or mention of the evidence during trial may cause unfair prejudice, confuse the
issues, or mislead the jury; the consideration of the issue during trial might unduly
interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial
may limit issues and save the parties time, effort, and cost in trial preparation. State v.
Shadden, 290 Kan. 803, 816, 235 P.3d 436 (2010). Bridges challenges only the first
prong, i.e., whether the evidence is admissible.

We begin by recognizing that when this court reviews a district court decision to
admit or exclude evidence, we use a multistep analysis. Shadden, 290 Kan. at 817. For
the first step, we determine whether the evidence is relevant. Evidence is relevant when it
has "any tendency in reason to prove any material fact." K.S.A. 60-401(b). Accordingly,
relevant evidence must be both probative and material. State v. Martinez, 290 Kan. 992,
1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289 Kan. 46, 69, 209 P.3d 675 [2009]).
Whether evidence is probative is reviewed under an abuse of discretion standard;
materiality is judged under a de novo standard. Shadden, 290 Kan. at 817 (citing State v.
Reid, 286 Kan. 494, 507-09, 186 P.3d 713 [2008]).

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For the second step, we determine which rules of evidence or other legal principles
apply. The district court's conclusion is reviewed de novo. Shadden, 290 Kan. at 817. For
the third step, the district court must apply the applicable rule or principle. This
application is reviewed either for abuse of discretion or de novo, depending on the rule or
principle being applied. 290 Kan. at 817. Some rules and principles grant the district
court discretion, while others raise matters of law. 290 Kan. at 817. Here, we are asked to
review the exclusion of Bridges' expert testimony, which is generally reviewed for abuse
of discretion. 290 Kan. at 819. We review the insurance proceeds exclusion for
probativity, i.e., for abuse of discretion. See Reid, 286 Kan. at 507-09.

To the extent the district court's evidentiary exclusion infringed upon a defendant's
constitutional right to present his or her theory of defense—as Bridges alleges—we
exercise de novo review. See State v. Pennington, 281 Kan. 426, 433, 132 P.3d 902
(2006). We acknowledge that "'[t]he exclusion of evidence that forms an integral part of
the defendant's theory of the case violates the defendant's right to a fair trial.'" State v.
Gaona, 293 Kan. 930, 953, 270 P.3d 1165 (2012) (quoting State v. Evans, 275 Kan. 95,
102, 62 P.3d 220 [2003]; see Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35
L. Ed. 2d 297 [1973]). But we also recognize that the defendant's "'right to present a
defense is subject to the rules of evidence and caselaw on the subject.'" 293 Kan. at 953.

Evidence Related to Depression

The district court and the Court of Appeals panel both analyzed Bridges' proposed
expert witness testimony of psychologist Scott under K.S.A. 22-3220 and K.S.A. 22-
3219(1). They concluded the testimony involved a "mental disease or defect" offered to
determine Bridges' ability to form the requisite mens rea for the offense. The panel
affirmed the district court decision to exclude the evidence because, among other things,
Bridges failed to comply with the notice requirement of K.S.A. 22-3219.
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The panel also noted the district court's exclusion on the additional basis that "the
late identification of the witness violated the district court's discovery order." Bridges,
2010 WL 1610393, at *1. The panel only indirectly addressed this basis when it held no
good cause existed under K.S.A. 22-3220 to excuse the lack of timely statutory notice
and to allow the admission of Scott's testimony.

We start with this latter holding of untimeliness. At the hearing on the State's
motion in limine, Bridges' counsel acknowledged that Scott's name had not appeared on
the witness list she earlier provided to the State per the "Order for Agreed to Reciprocal
Discovery" dated July 16, 2007. That order, which is in the record on appeal, states the
following relevant agreement by Bridges:

"[T]he defendant agrees to provide the State with a written list, at least 10 days prior to
jury trial, of prospective witnesses intended to be called by the Defendant in jury trial.
The list shall include the name, address, date of birth and any other identifying data
which would be required for the State to locate the witnesses."

The order, signed by both counsel and the court, then mandates that "the defendant
will provide to the State a written list, at least 10 days prior to jury trial, of prospective
witnesses intended to be called by the Defendant in jury trial as described here-in-above."
(Emphasis added.)

Consequently, the State objected to Scott as untimely identified. Bridges' counsel
explained she had been unable to locate a Dr. Haines regarding Bridges' mental
condition. So she requested Scott be allowed to testify that around the time Bridges' home
exploded he was diagnosed with major depression. Bridges' counsel conceded she did not
know whether Scott was a doctor of psychology. She also conceded that Scott did not
13



have any memory of treating Bridges, was unable to locate her notes and records
regarding his treatment, and did not create a report. According to counsel, the only
documentation regarding Scott's consultation was a bill and a diagnostic sheet with a
check mark indicating that Bridges suffered from a major depressive disorder at the time.

In holding the witness identification endorsement of Scott was untimely and
excluding her testimony, the district court noted the quid pro quo concept contained in
reciprocal discovery. It further observed the State's need to contact Bridges' proposed
witnesses to discover their proposed testimony before trial. The court also noted that the
identification of Scott was made on Thursday (March 20, 2008) before the trial was to
start the following week.

Whether untimely submitted evidence will nevertheless be admitted is generally
subject to the district court's discretion. See Gaona, 293 Kan. at 953 ("Unless a
defendant's due process rights are implicated, a district court's exclusion of evidence as a
permitted sanction because of a party's failure to comply with discovery under K.S.A. 22-
3212[g] will be reviewed on appeal for an abuse of discretion.").

Gaona is instructive. There, as here, the parties each requested discovery from the
other well before trial. Per K.S.A. 22-3212, the State requested medical records which the
defendant intended to produce at trial. But defendant produced no records until
approximately 2 hours before he sought to introduce them at trial. We affirmed the trial
court's exclusion of the records, holding that among its "multiple sound legal reasons"
were "the sanctions available to the district judge for Gaona's violation of reciprocal
discovery included exclusion" under K.S.A. 22-3212(g). 293 Kan. at 954. We also held
that Gaona's due process right to present a defense was not implicated, as he was free to
present his own testimony about the medical problem contained in the records, with
corroboration of its existence from his wife.
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Similarly, Bridges was free to present his own testimony on this particular issue.
Although he chose not to take the stand to testify about his alleged depression, we agree
with the district court that its ruling did not prevent his theory of defense, i.e., mistake,
from being presented to the jury. The jury heard various recordings of his interviews in
which Bridges stated that he had "been under stress" and had problems "for the last 10
years." He also explained his behavior by saying that he did not know why he had turned
the valve to open and that he never intended to hurt McCurley. In addition, Bridges'
counsel emphasized in closing argument that Bridges' opening of the valve was a
mistake.

As in Gaona, we hold the district court did not abuse its discretion in rejecting
Scott's proffered testimony as violating the court's discovery order. See 293 Kan. at 954;
accord State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012) (judicial discretion is abused if judicial action is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court).

Even if we agreed the district court had abused its discretion in excluding the
evidence because of untimely identification or it appeared to infringe on Bridges'
constitutional right to present his theory of defense, we agree with the State's additional
position at the district court and on appeal: on the merits, Scott's testimony was
irrelevant, e.g., not probative. See Gaona, 293 Kan. at 954 (multiple sound legal reasons
for the district judge's decision to exclude evidence). Probativity is judged under an abuse
of discretion standard. Reid, 286 Kan. at 507-09.

As mentioned, evidence must be both probative and material to be relevant.
Martinez, 290 Kan. at 1009. Material evidence tends to establish a fact that is at issue and
15



significant under the substantive law of the case. Reid, 286 Kan. at 505. On the other
hand, probative evidence only requires a logical connection between the asserted facts
and the inferences they are intended to establish. State v. Richmond, 289 Kan. 419, 437,
212 P.3d 165 (2009).

Perhaps because Scott did not have any memory of treating Bridges, was unable to
locate her notes and records regarding his treatment, did not create a report, and had only
a bill and a diagnostic sheet with a check mark indicating that Bridges suffered from a
major depressive disorder at the time to document her consultation, Scott would only
generally testify about the symptoms of a major depressive disorder. Bridges' counsel
agreed with the district court's assessment of the matter:

"You want to present the psychologist to basically indicate what in general a major
depressive disorder consists of, but not make any specific reference to the defendant's
situation because we don't have any notes or any recollection as to the situation."

As the State points out, this is a concession by the defense that Bridges' expert
witness would not provide any nexus between Bridges' depression and his conduct. We
agree with the State that without this nexus, Scott's proffered testimony simply is not
probative of Bridges' behavior during the explosion and its aftermath. In short, it is not
probative of his contention that he acted negligently, not recklessly, when installing the
water heater. Nor is the testimony probative of his explanation about his inconsistent
statements to investigating officials.

The Court of Appeals decision in State v. Edwards, 48 Kan. App. 2d 383, 408-10,
290 P.3d 661 (2012), is instructive. There, the panel held that expert testimony solely
about defendant's mental illness was not probative to show his involuntary ingestion of
Haldol affected his mental state the day of the crime to support his claim of involuntary
16



intoxication. Rather, additional testimony was required to show that his mental illness
made him particularly susceptible to suffering from akathasia—an inner restlessness
leading to confusion, aggression, and increase in homicidal or suicidal behavior—as a
result of ingesting Haldol. This additional testimony was needed because akathasia as a
side effect of Haldol is extremely rare in the general population. See 48 Kan. App. 2d at
408-10; cf. State v. White, 279 Kan. 326, 341, 109 P.3d 1199 (2005) (An expert was
prepared to testify that defendant "had a mental disease or defect [depression], that
people with this disease or defect can lack the ability to premeditate and to form intent,
and that his conduct on the date of shooting was consistent with somebody acting under
that disease or defect." [Emphasis added.] Accordingly, district court erroneously
excluded expert's testimony under K.S.A. 22-3220.).

Evidence of Insurance Proceeds

The district court also excluded evidence of the insurance proceeds Bridges
actually received. The court reasoned that because the payment occurred after the alleged
criminal acts, it was irrelevant. The Court of Appeals panel agreed the payment was
irrelevant—because motive was based on Bridges' mere perception of potential insurance
benefits, not the reality of what was actually received.

Our rejection of Bridges' position is more straightforward than the lower courts'.
We acknowledge Bridges argues that he knew he would not receive all of the insurance
proceeds due to his mortgage-secured home loan, which he claims negates any alleged
financial motive to blow up the home. But we are unable to determine from his references
to the record that he personally knew before the explosion he would actually receive
anything less than the full amount of the proceeds. So we must presume the district
court's action was proper. See State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107
(2007) (A defendant possesses the burden to designate a record that affirmatively shows
17



prejudicial error. Without such a record, an appellate court presumes the action of the
trial court was proper.).

The district court correctly granted the State's motion in limine to exclude this
evidence.

Issue 2: The motion to suppress Bridges' statements was correctly denied.

Bridges argues that the district court erred by not suppressing statements he made
to investigators during three separate interviews in 2004: (1) on July 16 at the explosion
scene; (2) on July 27 at the Kansas City, Kansas, Police Department; and (3) on July 30
at Bridges' hotel room. He argues all three interviews were custodial interrogations.
Concerning the July 16 statement, Bridges argues that he was not properly readvised of
his Miranda rights. For the July 27 statement, he argues that he involuntarily waived his
Miranda rights. For the July 30 statement, he argues he was never advised of his Miranda
rights, but if so, he involuntarily waived them.

Standard of Review

An appellate court reviews the district court's decision on a motion to suppress
using a bifurcated standard. State v. Gilliland, 294 Kan. 519, 545, 276 P.3d 165 (2012),
cert. denied 133 S. Ct. 1274 (2013). Without reweighing the evidence, the district court's
findings are reviewed to determine whether they are supported by substantial competent
evidence. The ultimate legal conclusion regarding the suppression of evidence is then
reviewed using a de novo standard. When the facts material to a trial court's decision on a
motion to suppress evidence are not in dispute, the question of whether to suppress is a
question of law over which an appellate court has unlimited review. 294 Kan. at 545.

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The July 16 interview

On July 16, Bridges drove to his property a few hours after the explosion. While
Bridges was there, Fire Chief George Steens advised Bridges of his Miranda rights.
Steens received Bridges' executed written waiver and asked questions which Bridges
answered. As Bridges began to leave after the interview, Steens informed him that a
police detective also wanted to speak with him.

Bridges then sat in the front seat of Detective Terry Mast's patrol car, with Mast in
the driver's seat and Steens in the back. Mast did not advise Bridges of his Miranda rights
prior to asking him questions. Although Bridges acknowledges that Chief Steens had
advised him of his Miranda rights several minutes before his interview with Mast,
Bridges claims Mast's failure to readvise him of those rights while he was in Mast's
custody was a violation of the Fifth Amendment to the United States Constitution. The
State responds the interview was not custodial but, if so, the Miranda warning by Steens
was sufficient.

We begin our analysis by observing that law enforcement officers are only
required to give Miranda warnings to those who are in custody and subject to
interrogation. State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012) (citing Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S. 890
[1966]; State v. Warledo, 286 Kan. 927, 935, 190 P.3d 937 [2008]). A custodial
interrogation, as opposed to an investigatory interrogation, is questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his or her freedom in any significant way. Warrior, 294 Kan. at 496.

The district court concluded Bridges was not in Mast's custody but in noting
Steens' prior Miranda warning, implied that warning was sufficient to cover the Mast
19



interview if it was custodial. The Court of Appeals panel did not answer the threshold
question of whether the Mast interview was custodial or investigatory. Instead, in
affirming the district court, it determined that Steens' Miranda warning also covered the
later Mast interview. We agree with the panel's holding and rationale, which negates the
need for determining if the Mast interview is custodial or investigatory.

The question of whether a suspect should be re-Mirandized after waiver of those
communicated rights is one of law that this court answers by considering the totality of
the circumstances. See State v. Mattox, 280 Kan. 473, 489-90, 124 P.3d 6 (2005) (citing
cases); see also State v. Ransom, 288 Kan. 697, 706-07, 207 P.3d 208 (2009); State v.
Nguyen, 281 Kan. 702, 723-24, 133 P.3d 1259 (2006). One factor this court considers is
the time interval between the waiver and the giving of the statement. Ransom, 288 Kan.
at 706-07 (citing Nguyen, 281 Kan. at 723).

In first considering the time factor, we observe that Bridges admits only minutes
elapsed between the end of the Steens Mirandized interview and the beginning of the
Mast interview. See Nguyen, 281 Kan. at 724 ("under the rationale of Mattox, the waiver
does not expire through the mere passage of 5 to 8 hours a suspect has been in continuous
custody"). And here, as in Nguyen, "[t]here is no evidence in the record that anything
happened after the waiver that affected [Bridges'] understanding of his rights." See 281
Kan. at 723-24. For example, like in Nguyen, here the same individual—Steens—was
present when Bridges initially had been Mirandized, when Bridges had waived his
Miranda rights, and then later when Bridges had spoken with Mast.

We conclude as a matter of law that under the totality of the circumstances, a
second Miranda warning was not required for the Mast interview. See Mattox, 280 Kan.
at 491.

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July 27 interview

On July 27 Detective Michael Vega called Bridges and asked him to come to the
detective bureau of the Kansas City, Kansas, Police Department for questioning. Bridges
drove himself there and submitted to a 4-hour unrecorded "pre interview" and then to a
recorded interview. Bridges argues he was subjected to custodial interrogation and
involuntarily waived his Miranda rights. The State responds that while the interview was
not custodial and Miranda warnings therefore were not required, Bridges' waiver of those
rights was voluntary.

The district court concluded Bridges was not in custody but was nevertheless
Mirandized twice and gave a written waiver of those rights. It concluded Bridges'
statement was voluntary. As with the July 16 interview, the Court of Appeals panel did
not expressly answer the threshold question of whether the July 27 interview was
custodial or investigatory. Instead, in affirming the district court, it held Bridges was
properly Mirandized and voluntarily waived his rights in writing and by continuing to
talk. We agree with the panel's holding and rationale, which again negates the need for a
custodial determination.

We confirmed the two-step standard for determining the voluntariness of a
Miranda waiver in Mattox, 280 Kan. 473, Syl. ¶ 3:

"An appellate court employs the same standard of review for determining the
voluntariness of the waiver of Miranda rights as it does for assessing the voluntariness of
a defendant's statement. The inquiry requires an examination of the totality of the
circumstances, and an appellate court reviews the factual underpinnings of the trial
court's decision by a substantial competent evidence standard and the ultimate legal
conclusion by a de novo standard." (Emphasis added.)

21



In other words, determining waiver is ultimately a legal conclusion. Similarly, as
with the voluntariness of a confession, the State bears the burden of proof to establish the
voluntariness of a Miranda waiver. Colorado v. Connelly, 479 U.S. 157, 168-69, 107 S.
Ct. 515, 93 L. Ed. 2d 473 (1986) (the burden of proof for each is on the State by a
preponderance of the evidence). And as with the voluntariness of a confession, it makes
sense that for determining the voluntariness of a Miranda waiver, "an appellate court
does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the
evidence." State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005) (determining the
voluntariness of a confession). Similarly, as with the voluntariness of a confession, the
appellate court should accept as true all inferences to be drawn from the evidence which
support or tend to support the findings of the district court. See State v. Sharp, 289 Kan.
72, 91, 210 P.3d 590 (2009) (determining the voluntariness of a confession).

We begin our analysis by acknowledging that "[T]he sole concern of the Fifth
Amendment, on which Miranda was based, is governmental coercion. . . . The
voluntariness of the waiver of this privilege is always dependent on the absence of police
overreaching." (Emphasis added.) Connelly, 479 U.S. at 170.

In our review of the totality of circumstances, we start with the district court
findings that Bridges was read his Miranda rights shortly after he arrived at the detective
bureau, and then again before his formal recorded statement was taken. It also found
Bridges executed a written waiver of his Miranda rights.

These findings are supported by substantial competent evidence. See Sharp, 289
Kan. at 88 (substantial competent evidence is that which possesses both relevance and
substance and which furnishes a substantial basis in fact from which the issues can
reasonably be resolved" [citing U.S.D. No. 233 v. Kansas Ass'n of American Educators,
275 Kan. 313, 318, 64 P.3d 372 (2003)]. More particularly, Captain John Cosgrove
22



testified the warnings were given twice. While Bridges testified he was not Mirandized
before the recorded statement, an appellate court does not pass on the credibility of
witnesses or resolve conflicts in the evidence. Swanigan, 279 Kan. at 23.

Additionally, a waiver of rights form signed by Bridges is in the record on appeal.
As the Court of Appeals panel correctly observed, the waiver form clearly included the
following statement:

"I have read this statement of my rights and understand what my rights are. I am
willing to make a statement and answer questions. I do not want a lawyer at this time. I
understand and know what I am doing. No promises or threats have been made to me and
no pressure or coercion of any kind has been used against me." (Emphasis added.)

The panel observed that Bridges indicated he understood the waiver form and agreed to
give a statement of his own free will. According to the panel's examination of the
transcript of Bridges' recorded interview, it

"shows the defendant's Miranda rights were reviewed at the beginning of the interview.
The defendant indicated he understood the form and agreed he wished to give a statement
about the investigation, of his own free will. The defendant asked if he should have an
attorney and the questioner told him that he needed to decide that for himself and that,
'You also have the right to stop answering at any time until you talk to a lawyer. If you
don't want to answer a certain question, you can stop. If you don't want to engage in this
at all right now, you don't have to. That's your right.' After being advised of all this,
defendant was asked if he wanted to continue with the recorded statement, and the
defendant indicated he did." Bridges, 2010 WL 1610393, at *5.

Our review of the interview transcript in the record on appeal reveals this
observation is also supported by substantial competent evidence.

23



Nevertheless, Bridges apparently contends that the same facts not only show his
interview was custodial but also help show his Miranda waiver—written or not—was
involuntary. See Mattox, 280 Kan. at 483 (the issue of whether the defendant waived his
or her Miranda rights can be virtually indistinguishable from the issue of whether the
defendant's statement was voluntary). In support, Bridges points out: (1) he told
Detective Vega that he was emotionally distraught and feeling too overwhelmed to talk at
that time; (2) the interview occurred at the detective bureau interview room located
behind several locked doors; and (3) the interview continued even after Bridges informed
Vega that he had not slept in days and was emotionally shot and requested to continue the
interview at a later date. Cf. Warrior, 294 Kan. at 496 (nonexclusive factors to be
considered in determining if an interrogation is investigative or custodial include the time
and place of the interrogation and duration of the interrogation); State v. Stone, 291 Kan.
13, 21, 237 P.3d 1229 (2010) (nonexclusive factors to be considered in determining
voluntariness of the confession include the accused's mental condition and the duration
and manner of the interrogation).

We note the record reveals more circumstances to also be considered in the waiver
voluntariness calculus. While Bridges told Detective Vega on the telephone that he was
emotionally distraught and too overwhelmed to talk, it is uncontroverted—and the district
court found—that he nevertheless then drove himself to the detective bureau for the
interviews. The district court also specifically noted Bridges' testimony that "he was an
emotional wreck and he was depressed" but found Bridges talked to his father on a
number of occasions and received advice about whether "he should or should not do
these things." Additionally, there is no evidence in the record showing Bridges was ever
handcuffed or restrained. Moreover, it is uncontroverted, and the district court found, that
Bridges was allowed to leave the detective bureau immediately after the recorded
interview was over. Cf. Warrior, 294 Kan. at 496 (factors to be considered in determining
if an interrogation is investigative or custodial include whether the person being
24



questioned was escorted by the officers to the interrogation location or arrived under his
or her own power; the presence or absence of actual physical restraint or its functional
equivalent, such as drawn firearms or a stationed guard; and whether the person was
allowed to leave, was detained further, or was arrested after the interrogation).

In short, substantial competent evidence supports the district court's findings. We
acknowledge Bridges testified that while at the detective bureau he requested to continue
the interview until a later time. But under the totality of the circumstances, we
independently conclude that Bridges' Miranda rights were voluntarily waived on July 27.
There was no police overreaching. See Connelly, 479 U.S. at 170.

The July 30 interview

At approximately 4:30 p.m. on July 30, Captain Cosgrove and Detective Vega
interviewed Bridges at his room at the Drury Inn in Johnson County, Kansas. The officers
knocked on the room's door and a recently awakened Bridges let them in for
approximately 30 minutes.

Bridges argues he was subjected to custodial interrogation and that he was never
advised of his Miranda rights. In the alternative, if he was advised, his rights were
involuntarily waived. The State responds the interview was not custodial and although
Miranda warnings therefore were not required, Bridges was nevertheless Mirandized.

The district court found Bridges was not in custody. It noted conflicting testimony
regarding whether the Miranda warning had been given and noted the absence of a
written waiver but held there was "nothing to indicate that . . . it was not a voluntary
statement." In affirming the district court, the Court of Appeals panel agreed with the
State that Bridges was not in custody but was nevertheless Mirandized.
25




Because the district court did not make an express determination that Bridges had
been Mirandized, it therefore did not expressly determine if any waiver of those rights
was involuntary. So we examine the threshold question answered by the district court and
affirmed by the panel: whether Bridges was in custody. We agree that he was not in
custody. Accordingly, we need not determine whether Miranda warnings had been given
or, if so, whether Bridges had voluntarily waived those rights.

We recently articulated our approach to this custody question in Warrior.
Nonexclusive factors to be considered in determining if an interrogation is investigative
or custodial include: (1) the time and place of the interrogation; (2) the duration of the
interrogation; (3) the number of law enforcement officers present; (4) the conduct of the
officers and the person subject to the interrogation; (5) the presence or absence of actual
physical restraint or its functional equivalent, such as drawn firearms or a stationed
guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether
the person being questioned was escorted by the officers to the interrogation location or
arrived under his or her own power; and (8) the result of the interrogation, for instance,
whether the person was allowed to leave, was detained further, or was arrested after the
interrogation. 294 Kan. at 496. "No one factor outweighs another, nor do the factors bear
equal weight. Every case must be analyzed on its own particular facts. [Citation
omitted.]" State v. Schultz, 289 Kan. 334, 341, 212 P.3d 150 (2009).

As with the appellate review of a district court's determination of whether a
confession was voluntarily given or whether Miranda rights had been voluntarily waived,
reviewing a determination of whether an interrogation is custodial requires two discrete
inquiries:

26



"Under the first inquiry, the court determines the circumstances surrounding the
interrogation, employing a substantial competent evidence standard of review. In
determining if there is substantial competent evidence supporting the existence of the
circumstances found by the trial court, an appellate court does not reweigh evidence,
assess the credibility of the witnesses, or resolve conflicting evidence. State v. Edwards,
291 Kan. 532, 545, 243 P.3d 683 (2010); State v. Gant, 288 Kan. 76, 80, 201 P.3d 673
(2009). The second inquiry employs a de novo standard of review to determine whether,
under the totality of those circumstances, a reasonable person would have felt free to
terminate the interrogation and disengage from the encounter. Schultz, 289 Kan. at 340-
41; State v. James, 276 Kan. 737, 751, 79 P.3d 169 (2003)." Warrior, 294 Kan. at 497.

As we apply these principles to the July 30 episode, nearly all the factors indicate
this interview was merely investigatory, not custodial.

We logically start our analysis with the time and place of the interrogation. A
neutral location—as opposed to the police station—"weighs against a conclusion that an
interview was custodial." Warrior, 294 Kan. at 497; see State v. Summers, 293 Kan. 819,
826, 272 P.3d 1 (2012) (defendant's parents' house); State v. Woolverton, 284 Kan. 59,
72, 159 P.3d 985 (2007) (stairwell of defendant's apartment complex); but see Schultz,
289 Kan. at 341 (at defendant's home but authorities told defendant not to move from the
kitchen table and kept defendant under constant observation). It is undisputed that the
interview occurred at Bridges' motel room at 4:30 on a July afternoon.

As for the duration of the interview, it was short: 30 minutes. This too weighs
against a conclusion that the interview was custodial. As for the number of law
enforcement officers, two were present, which could weigh toward custody. As for the
conduct of those officers and the person subject to the interrogation, Captain Cosgrove
testified he told Bridges that Bridges did not have to let them into the room to talk, that
Bridges did not have to discuss anything with them, and they would leave if he so
27



desired. Bridges testified that he let the officers in because he was tired and just wanted
to get the interview over with. And the officers left without incident once the interview
was over.

As for the presence or absence of actual physical restraint or its functional
equivalent, Bridges was neither confined nor restrained during his interview. Moreover,
there were no "drawn firearms or a stationed guard." See Warrior, 294 Kan. at 496. No
force or threat was used—indeed the Kansas City officers testified they told Bridges that
they did not have "police authority" in Johnson County. They also testified they told
Bridges they were only there to follow up with some additional questions regarding his
two previous statements on July 16 and July 27—and after which he had voluntarily left
the interviewers' presence.

As for whether Bridges was escorted to the interrogation location or arrived under
his own power, Bridges clearly was in his own motel room when the officers arrived.
Finally, as for whether Bridges was detained further or arrested after the interrogation,
the officers left without him.

One factor listed in Warrior favoring Bridges' argument that he was in custody
would be that the officers probably considered him to be a suspect. The Court of Appeals
panel specifically observed: "[T]he defendant was clearly a suspect at [the] time."
Bridges, 2010 WL 1610393 at *6. But the fact that a suspect is the focus of an
investigation, standing alone, does not trigger the need for Miranda warnings. Warrior,
294 Kan. at 503.

Although not mentioned in Warrior, some courts have held that reading Miranda
rights to an interviewee may be included in the calculus to determine whether, under the
totality of those circumstances, a reasonable person would have felt free to terminate the
28



interrogation and disengage from the encounter. See State v. Green, 133 N.H. 249, 258,
575 A.2d 1308 (1990) ("the reading of Miranda warnings may be a factor in deciding
whether a person is in custody under some circumstances"); see also State v. Winegar,
147 Ariz. 440, 448 n.6, 711 P.2d 579 (1985) ("though the Miranda warnings inform the
suspect that she need not talk to the police and can have legal counsel, most people
undoubtedly associate Miranda warnings with arrest"). Compare United States v. Akin,
435 F.2d 1011, 1013 (5th Cir. 1970) (the mere giving of Miranda warnings does not
convert an otherwise noncustodial situation into a "custodial interrogation"); State v.
Simmons, 329 S.C. 154, 157, 494 S.E.2d 460 (App. 1997) (same). Some testimony
indicates Bridges was advised of his Miranda rights, e.g., Captain Cosgrove's, and other
evidence indicates that he was not, e.g., Bridges'. The district court's failure to make a
finding either way does not assist the analysis. But to the extent Captain Cosgrove
testified Bridges had been Mirandized, and we consider that in the calculus, we do not
consider it a strong factor under these circumstances.

Accordingly, we conclude substantial competent evidence supports the trial court's
findings. And although we acknowledge that two officers were present, that Bridges
probably was considered a suspect, and that he was perhaps Mirandized, under the
totality of the circumstances we independently conclude that he was not in custody
during the July 30 interview. In other words, a reasonable person would have felt free to
terminate the interview and disengage from the encounter in Bridges' hotel room. See
Warrior, 294 Kan. at 497.

The district court correctly denied Bridges' motion to suppress his three
statements.

29



Issue 3: Bridges' argument that witnesses inappropriately commented on his credibility
is not preserved for appeal.

Bridges argues that several of the State's witnesses improperly commented on his
credibility during trial. He acknowledges that he did not object to these comments. But he
argues this court should nevertheless consider the merits of his argument to prevent the
denial of his fundamental due process right to a fair trial. The State responds the issue is
not preserved and no exception should allow consideration on the merits.

We have repeatedly required that "evidentiary claims—including questions posed
by a prosecutor and responses to those questions during trial—must be preserved by way
of a contemporaneous objection for those claims to be reviewed on appeal." State v. King,
288 Kan. 333, 349, 204 P.3d 585 (2009); see K.S.A. 60-404. In King we held that without
a trial objection, defendant's argument that evidence was admitted in violation of his Fifth
Amendment right to remain silent was not preserved for appeal. Bridges' evidentiary
issue likewise is not preserved for our review. See also State v. McCaslin, 291 Kan. 697,
706, 245 P.3d 1030 (2011) (without a trial objection, argument that evidence was
admitted in violation of Sixth Amendment's Confrontation Clause was not preserved for
appeal).

Issue 4: The prosecutor committed misconduct but the error was harmless.

Bridges argues the prosecutor committed misconduct in his closing argument and
the error is reversible. The State admits some error occurred but contends the error was
harmless.

30



Standard of Review
We have said that review of prosecutorial misconduct claims involves a two-step
process. The court first decides whether the comments were outside the wide latitude a
prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct.
Second, if misconduct is found, we have said the court must determine whether the
improper comments prejudiced the jury and denied the defendant a fair trial. State v.
Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).

For years we have considered several factors in analyzing this second step: (1)
whether the misconduct was gross and flagrant; (2) whether it was motivated by
prosecutorial ill will; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors has been individually controlling. Marshall, 294
Kan. at 857.

Since 2004, this court has also demanded that any prosecutorial misconduct error
meet the "dual standard" of both constitutional harmlessness and statutory harmlessness
to uphold a conviction. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (Before
the third factor can ever override the first two factors, an appellate court must be able to
say that the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386
U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 [1967], have been
met.).

Under the constitutional harmless error analysis defined in Chapman,

"the error may be declared harmless where the party benefitting from the error proves
beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
31



possibility that the error contributed to the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

Under the harmless error analysis defined in K.S.A. 60-261, the test is equally
clear. The court "determine[s] if there is a reasonable probability that the error did or will
affect the outcome of the trial in light of the entire record." 292 Kan. 541, Syl. ¶ 6.

Under both standards, the party benefiting from the error—here, admittedly the
State—bears the burden of demonstrating harmlessness. State v. Herbel, 296 Kan. 1101,
1110, 299 P.3d 292 (2013). That burden is higher when the error is of constitutional
magnitude. See Herbel, 296 Kan. at 1110 ("Clearly, the party benefiting from the
constitutional error must meet a higher standard to show harmlessness than the standard
required in nonconstitutional error.").

Discussion

Bridges particularly complains that three statements made by the prosecutor
during closing argument were improper commentary on Bridges' credibility. He claims
the comments were gross and flagrant and demonstrated ill will.

Generally, prosecutors may not present their personal opinion of a witness'
credibility to the jury because such comments constitute "'unsworn, unchecked
testimony.'" Marshall, 294 Kan. at 857 (quoting State v. Pabst, 268 Kan. 501, 510, 996
P.2d 321 [2000]). The determination of the truthfulness of a witness is for the jury. State
v. Elnicki, 279 Kan. 47, Syl. ¶ 2, 105 P.3d 1222 (2005). But a prosecutor may comment
on any inconsistencies in a defendant's statements or may point out the weaknesses in a
particular story. See State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009)
("When a defendant has told one story during interrogation and a completely different
32



story at trial, it would be difficult for a prosecutor to comment on the evidence without
suggesting that untruths existed.").

The first prosecutorial statement in closing argument about which Bridges
complains was as follows:

"[Defense counsel] asks you to blame and to look down upon the police and the fire
[departments] for continuing their investigation when you know that the information
provided by Mr. Bridges, the one person who could tell you exactly what happened that
day, was false, and he intentionally gave them false information the date that this
happened and continued to do that until . . . confronted [by the insurance investigator]."
(Emphasis added.)

We conclude this was a fair comment on the evidence because Bridges openly admitted
to the investigators that he had made false statements during the investigation.

For Bridges' remaining complaints, the State conceded at oral arguments, and we
agree, that parts of the closing arguments about the assistance with a water heater by
Bridges' friend Roger Davis were outside the wide latitude afforded to prosecutors.

"Mr. Bridges tried to suggest to the investigators that Roger Davis paid $50 for [the
dryer]. Roger Davis told you that's not what happened. That's not true. It's not—it's not
any more true than Roger Davis came over and helped him on July 16, 2004[,] or that he
called Roger Davis on July 16, 2004[,] or that Roger Davis helped install the prior water
heater.

"He [Bridges] doesn't even want the police to know that he was able to install the
first water heater. Why? Because that shows he knows how it works. That's what that
shows. So he concocts this story that Roger Davis came over and helped him with that."
(Emphasis added.)
33




Unlike the first statement, where the prosecutor was accurately pointing out
Bridges admitted he had provided false information to the investigators, here the
prosecutor actually misstated the evidence when informing the jury that Davis had not
helped with the first hot water heater. Davis testified that he had indeed helped Bridges
with it; allegedly helping with the later, exploding water heater is what Davis denied.

The prosecutor's misstatement was misconduct. "'When a prosecutor argues facts
that are not in evidence, this court has consistently found that "the first prong of the
prosecutorial misconduct test is met."'" State v. Simmons, 292 Kan. 406, 414, 254 P.3d 97
(2011); see also Gershman, Prosecutorial Misconduct § 11:30 p. 529 (2d ed. 2012)
("Whether the prosecutor deliberately tried to mislead the jury or did it inadvertently
ordinarily is irrelevant. Misstating the record is a serious violation . . . ."); Prosecutorial
Misconduct § 11:32, p. 533 ("By going beyond the record, the prosecutor becomes an
unsworn witness, engages in extraneous and irrelevant argument, diverts the jury from its
proper function, and seriously threatens the defendant's right to a fair trial.").

This evidentiary misstatement is aggravated by the prosecutor's further argument
that essentially contended Bridges' true statement to the contrary was "not true." This
additional argument is an improper comment on Bridges' credibility, as is the prosecutor's
opinion that Bridges therefore "concoct[ed] this story." See, e.g., Elnicki, 279 Kan. at 63
(prosecutor's comments calling the defendant's story a "fabrication" and "yarn" were "not
based upon a later inconsistent statement, and were unquestionably outside the wide
latitude allowed in discussing the evidence"); see also Prosecutorial Misconduct § 11:27,
p. 526 ("Courts caution prosecutors against characterizing testimony as a 'lie' because
such categorical and conclusory opinions make the prosecutor an unsworn witness and
invade the province of the jury to determine credibility.").

34



With the misconduct established, we turn to the second analytical step. See
Marshall, 294 Kan. at 857. This includes determining whether the prosecutor's improper
statements were harmless error under the standards of both K.S.A. 60-261 and Chapman,
386 U.S. 18.

We recently held that where both the constitutional and nonconstitutional error
clearly arise from the very same acts and omissions, we logically begin with our
harmlessness analysis of the constitutional error. See Herbel, 296 Kan. at 1111. We reach
this conclusion because if we decide the constitutional error is not harmless and reverse
the convictions, there is no point in analyzing whether the State met the lower standard
for harmlessness under K.S.A. 60-261. Herbel, 296 Kan. at 1111.

In turning to our constitutional error analysis, we review the factors upon which
Bridges relies to argue reversal and remand to the district court. Per Tosh, these are gross
and flagrant conduct and prosecutorial ill will. See 278 Kan. at 93.

In determining whether prosecutorial misconduct was gross and flagrant, among
the things we have considered are whether the comments were repeated, emphasized
improper points, were planned or calculated, or violated well-established or unequivocal
rules. See, e.g., State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012). Our caselaw is
well established: a prosecutor may not misstate the evidence or comment on the
defendant's credibility. It is also well established that the prosecutor may not argue the
defendant has lied or fabricated, e.g., "concocted," a story. We therefore agree with
Bridges and conclude the misconduct by the prosecutor was gross and flagrant.

In determining whether prosecutorial misconduct was motivated by ill will, among
the things we have considered are whether the conduct was deliberate or in apparent
indifference to a court's ruling. See, e.g., Marshall, 294 Kan. at 862; see also Prosecutorial
35



Misconduct § 14.5, pp. 602-03 ("'Other factors considered by courts in determining
harmfulness are whether the prosecutor's misconduct was deliberate, related to a crucial
issue in the trial, or was followed by a prosecutorial apology.'"); cf. Prosecutorial
Misconduct § 10:51, p. 458 (a prosecutor's failure to obey court rulings increases the
likelihood of reversal). As with determining gross and flagrant conduct, for determining ill
will this court has also considered whether the conduct was repeated. See, e.g., Marshall,
294 Kan. at 862.

Here, the prosecutor's improper comments were made in close proximity to each
other, which would suggest they were not "repeated" as we have typically viewed that
term. Nor can we conclude they were made deliberately as we have typically viewed that
term or made indifferently to a court ruling. The prosecutor may simply have become
confused about which of the two water heaters Davis actually assisted Bridges on. We
observe that Bridges himself admitted giving false and inconsistent statements to the
investigators, which could have contributed to any prosecutorial confusion. Under these
particular circumstances, we disagree with Bridges and conclude the misconduct was not
motivated by ill will.

In continuing our constitutional harmlessness analysis, we address the State's
argument that there is no reasonable possibility the misconduct contributed to the verdict.
See Ward, 292 Kan. 541, Syl. ¶ 6. More specifically, we consider Bridges' admissions to
the investigators that he probably, but accidentally, turned the gas valve in the wrong
position ("on") and then left the home that morning to go to work. His fiancée, probably
known by him to be a smoker, remained there—also probably known by him because she
was recuperating from surgery. His crime of conviction, unintentional second-degree
murder, requires the killing of a human being committed "unintentionally but recklessly
under circumstances manifesting extreme indifference to the value of human life." K.S.A.
21-3402(b).
36




Additionally, Bridges was admittedly in financial difficulties at the time. And he
certainly could have been attempting to set the house on fire to claim insurance proceeds
to forestall mortgage foreclosure and his second bankruptcy. Finally, Bridges eventually
admitted that he had given false and inconsistent information to the investigators. So the
prosecutor's arguments that misstated some evidence about the timing of Davis'
assistance to Bridges and indicated that Bridges was "not true" and "concocted" parts of
his story must be weighed against these other matters.

Considering the overall standard of review for determining the magnitude of
constitutional error as articulated in Ward, 292 Kan. 541, Syl. ¶¶ 5-6, we conclude the
prosecutorial misconduct was harmless error. In other words, the State has proven
"beyond a reasonable doubt that the error complained of will not or did not affect the
outcome of the trial in light of the entire record, i.e., where there is no reasonable
possibility that the error contributed to the verdict." 292 Kan. 541, Syl. ¶ 6. Given this
holding, we need not determine whether the State has met its burden of showing harmless
error under the lower standard articulated in K.S.A. 60-261. See Herbel, 296 Kan. at
1111.

Issue 5: The cumulative error doctrine does not apply to single trial error.

Bridges contends that even if no single error at trial is sufficient to require reversal
and remand, the cumulative effect of errors nevertheless deprived him of a fair trial. But
the only error was in the prosecutor's closing argument, which we determined was
harmless. We agree with the State that without more error to accumulate, the error
remains harmless. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009) ("The
presence of one [trial] error is obviously insufficient to accumulate.").

37



Issue 6: The identical offense sentencing doctrine does not apply because involuntary
manslaughter is a lesser included offense of reckless second-degree murder.

Bridges next argues that instead of being sentenced for reckless second-degree
murder under K.S.A. 21-3402(b), a severity level 2 person felony, he should have been
sentenced for involuntary manslaughter under K.S.A. 21-3404(b), a severity level 5
person felony. More specifically, he argues that the two offenses contain identical
elements and per the identical offense sentencing doctrine he must be resentenced for the
lesser offense. Under this doctrine, if two criminal offenses have identical elements but
different penalty classifications, a defendant convicted of either crime may be sentenced
only under the lesser penalty provision. State v. Thompson, 287 Kan. 238, 258-59, 200
P.3d 22 (2009). The State responds that the doctrine is inapplicable to Bridges. See State
v. Sandberg, 290 Kan. 980, 235 P.3d 476 (2010).

Standard of Review

Whether Kansas' identical offense sentencing doctrine applies is a question of law
to which we apply de novo review. 290 Kan. at 984.

Discussion

In Sandberg we considered when to apply the identical offense sentencing
doctrine. There, the defendant pled no contest to electronically soliciting a child in
violation of K.S.A. 21-3523. At the time, the statute established two severity levels. A
more severe punishment was imposed if the offender believed the person being enticed or
solicited was younger than 14 years of age. K.S.A. 2006 Supp. 21-3523(a)(2), (b)
(severity level 1 person felony). A less severe punishment was imposed if the offender
38



believed the person was younger than 16 years of age. K.S.A. 2006 Supp. 21-3523(a)(1),
(b) (severity level 3 person felony).

The age groups obviously overlapped. Relying on this overlap, the defendant—
who was charged and pled no contest to the more severe level 1 person felony—argued
that the identical offense sentencing doctrine required the less severe level 3 person
felony sentence.

After reviewing Kansas caselaw, we identified three situations where the doctrine
may apply: "'"(1) where one statute defines a lesser included offense of the other and they
carry different penalties . . . ; (2) where the statutes overlap and carry different penalties
. . . ; (3) where the statutes are identical . . . ."'" Sandberg, 290 Kan. at 986 (quoting State
v. Campbell, 279 Kan. 1, 14, 106 P.3d 1129 [2005]).

We recognized the first situation involving lesser included offenses and their
different penalties was "unobjectionable." We stated:

"'"The first of the three is certainly unobjectionable. Such provisions are quite
common (robbery-armed robbery; battery-aggravated battery; joyriding-theft;
housebreaking-burglary), and usually are a consequence of a deliberate attempt by the
legislature to identify one or more aggravated characteristics which in the judgment of
the legislature should ordinarily be viewed as making the lesser crime more serious. They
afford guidance to the prosecutor, but . . . do not foreclose the prosecutor from deciding
in a particular case that, notwithstanding the presence of one of the aggravated facts, the
defendant will still be prosecuted for the lesser offense."'" Sandberg, 290 Kan. at 986
(quoting Campbell, 279 Kan. at 14).

We concluded that Sandberg's case fell within the first category: lesser included
offenses. See K.S.A. 21-3107(2)(a) (lesser included offense is, inter alia, a crime that is a
39



"lesser degree of the same crime"). After observing our past cases' limited application of
the identical offense sentencing doctrine to "two criminal offenses that . . . have identical
elements," while "in contrast Sandberg [had] attempt[ed] to apply the doctrine to severity
levels of the same offense," 290 Kan. at 985, we refused to extend the application of the
doctrine to "severity levels of the same offense." 290 Kan. at 988.

Per Sandberg, we must now decide whether the doctrine applies to Bridges'
situation. As mentioned, he argues that while he was sentenced for reckless second-
degree murder, a severity level 2 crime, he instead should have been sentenced for
involuntary manslaughter, a severity level 5 crime.

We begin with the reckless second-degree murder language in K.S.A. 21-3402(b),
which states:

"Murder in the second degree is the killing of a human being committed:
. . . .
(b) unintentionally but recklessly under circumstances manifesting
extreme indifference to the value of human life."

In turn, the involuntary manslaughter language in K.S.A. 21-3404 states in
relevant part:

"Involuntary manslaughter is the unintentional killing of a human being
committed:
. . . .
"(b) in the commission of, or attempt to commit, or flight from any
felony, other than an inherently dangerous felony as defined in K.S.A. 21-3436
and amendments thereto, that is enacted for the protection of human life or safety
or a misdemeanor that is enacted for the protection of human life or safety,
including acts described in K.S.A. 8-1566 and subsection (a) of 8-1568, and
40



amendments thereto, but excluding the acts described in K.S.A. 8-1567 and
amendments thereto."

Bridges notes that unintentional second-degree murder is not an inherently
dangerous felony. See K.S.A. 21-3436. So he argues that the elements of involuntary
manslaughter for subsection (b) of 21-3404 could be read in conjunction with subsection
(b) of 21-3402 as follows: "Involuntary manslaughter is the unintentional killing of a
human being committed . . . in the commission of . . . [the killing of a human being
committed unintentionally but recklessly under the circumstances manifesting extreme
indifference to the value of human life]." Bridges then argues that because second-degree
murder is entirely subsumed in involuntary manslaughter through his interpretation, he
must be sentenced for the lesser violation of involuntary manslaughter. The State
responds that such an interpretation leads to the absurdity that a killing done "in the
commission of a killing" results in a lesser offense than the original killing. We agree
with the State.

In addition, per Sandberg's analytical framework, we conclude Bridges' situation
actually falls within Sandberg's first category—lesser included offenses. We recently
affirmed that involuntary manslaughter is one of four degrees of homicide. See State v.
Cheever, 295 Kan. 229, 258, 284 P.3d 1007 (2012) ("[O]ur caselaw has recognized the
following homicide degree crimes, in descending order: first-degree murder, second-
degree murder, voluntary manslaughter, and involuntary manslaughter."). As we
explained in Cheever:

"Kansas has long-recognized that the generic crime of homicide, '"of which
murder is the highest and most criminal species, is of various degrees, according to
circumstances. The term . . . is generic, embracing every mode by which the life of one
man is taken by the act of another."' State v. Gregory, 218 Kan. 180, 182-83, 542 P.2d
1051 (1975) (citing State v. Ireland, 72 Kan. 265, 270, 83 Pac. 1036 [1905] [quoting
41



Commonwealth v. Webster, 59 Mass. 295, 1850 WL 2988 (1850)]). Thus, in Gregory, we
held that involuntary manslaughter is a lesser degree of second-degree murder and is
therefore a lesser included crime under K.S.A. 21-3107(2)(a). We explained that while it
appears murder and manslaughter are different crimes, '"they involve but one crime and
are only degrees of felonious homicide."' 218 Kan. at 183 (quoting Warren on Homicide
§ 83, pp. 415-16)." (Emphasis added.) 295 Kan. at 258.

We have also specifically held that involuntary manslaughter as set out in
subsection (a) of K.S.A. 21-3404 is a lesser included crime of both first- and second-
degree murder. See State v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005). Given
our holding in Cheever, it logically follows that involuntary manslaughter as set out in
subsection (b) of K.S.A. 21-3404 is likewise a lesser included offense of unintentional
second-degree murder as set out in subsection (b) of K.S.A. 21-3402. See K.S.A. 21-
3107(2)(a) ("A lesser included crime is [a] lesser degree of the same crime.").

We held in Sandberg that the identical offense sentencing doctrine does not apply
to lesser included offenses. Per Sandberg's rationale and holding, we therefore conclude
the district court correctly sentenced Bridges for the severity level 2 person felony and
not the lesser included severity level 5 person felony.

Issue 7: The district court's order that Bridges pay a Board of Indigents' Defense
Services application fee was constitutional.

Bridges initially argued that the district court's order for him to pay a fee to apply
for a defense from the Board of Indigents' Defense Services was unconstitutional. He
now acknowledges this court has previously rejected this argument. See State v. Casady,
289 Kan. 150, 158-59, 210 P.3d 113 (2009). We continue to reject this argument.

The judgment of the district court is affirmed.