IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,164
STATE OF KANSAS,
Appellee,
v.
WALLACE L. DIXON, III,
Appellant.
SYLLABUS BY THE COURT
1. This court has long held that an accused need not be prosecuted for or convicted of the underlying felony in order to be convicted of felony murder under K.S.A. 21-3401(b).
2. A trial court should only instruct on a lesser included offense of felony murder when the evidence of the underlying felony is weak or inconclusive. The reason for the rule is that the killer's malignant purpose is established by proof of the collateral felony.
3. A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to a lesser degree of the offense are not necessary.
4. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before an appellate court declares the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. The State bears the burden of proving that a constitutional error was harmless beyond a reasonable doubt.
5. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial.
6. If a claimed error implicates a defendant's right to a fair trial, the appellate standard of review is the same regardless of whether the issue of prosecutorial misconduct was preserved by an objection at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue of prosecutorial misconduct will be addressed.
7. The analysis for alleged prosecutorial misconduct is a two-step process. First, the court decides whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence. Second, the court decides whether the prosecutor's remarks were so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial.
8. The trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c).
9. Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the decision will not be set aside on appeal unless an abuse of discretion is clearly shown. The defendant has the burden of proving that he or she was substantially prejudiced.
10. The right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care.
11. The presumption of openness in a criminal trial may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
12. The admission or exclusion of evidence lies within the sound discretion of the trial court. One who asserts that the court abused its discretion bears the burden of showing such abuse.
13. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different objection.
14. Under the facts of this case, a condition of a plea agreement or probation order that requires an accomplice to testify consistent with his prior testimony in an inquisition is unenforceable.
15. The admissibility of expert testimony lies within the sound discretion of the trial court, and its determination will not be reversed on appeal absent a showing of an abuse of discretion.
16. Our standard of review is, if the jury instructions taken together and as a whole properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
17. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Appeal from Lyon district court; MERLIN G. WHEELER, judge. Opinion filed June 3, 2005. Affirmed in part, reversed in part, and remanded for a new trial.
Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the briefs for appellant.
Autumn L. Fox, special assistant attorney general, argued the cause, and Phill Kline, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Wallace L. Dixon, III, appeals his convictions of two counts of felony murder, five counts of aggravated battery, two counts of burglary, and one count each of theft, criminal damage to property, aggravated assault, and criminal possession of a firearm. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) and 120 months consecutive to the life terms. This is a companion case to State v. Griffin, Case No. 89,662, this day decided.
At approximately 9 a.m. on July 29, 2001, an explosion and fire destroyed a building containing five townhouse apartment units, A through E, at the Eastgate Plaza Apartments in Emporia. Dana Hudson and her infant son Gabriel, who lived in the middle apartment, C, were trapped inside by debris and flames. They died of smoke inhalation and exposure to heat. Other tenants and neighbors were injured. Tena Wright, who lived in apartment A, was injured when she had to jump from a second-floor window, and two neighbors, James Woodling and Nathan Medlen, were injured trying to help her. Stacey DePriest was upstairs in her apartment, D, when the ceiling fell on her. A neighbor, Rosalind Harris, was injured trying to assist DePriest.
The explosion and fire originated in unit B. Alicia Shaw and her young son lived in unit B. Alicia's sister, Schelese Shaw, and Schelese's son lived in Topeka with Dixon.
Several weeks before July 29, after quarreling with Dixon, Schelese removed her things from his house and went to stay with Alicia. For hours Dixon called Alicia's apartment and the sisters' cell phones and later banged on Alicia's door. He threatened to blow up Alicia's car if Schelese did not come out of the apartment. Schelese returned home with Dixon after 1 day.
At approximately 7 p.m. on July 28, Alicia and some friends drove to Topeka to get Alicia's son, who had been staying with Schelese for a few days. Schelese, Schelese's son, and Alicia's son came out of Dixon's house and got in the car with them. Schelese told her sister that she was leaving Dixon. Schelese had told Dixon that she was just going to get diapers. While the sisters were still in Topeka, Dixon began calling the sisters' cell phones. Schelese then told Dixon that she was going to Emporia to a bar called Fatty's, and he was angry. Instead of going to Emporia, the sisters left their sons with a sitter and went with their friends to a liquor store. Cell phone records showed that Dixon called Schelese's cell phone 95 times in the 15-hour period between 9:11 p.m. on July 28 and 12:12 p.m. on July 29. He called Alicia's cell phone and her apartment phone a total of 20 times during approximately the same period.
Dixon asked some friends to go with him to Emporia. Dixon drove his White Chevrolet Suburban. Rodney Hayes, Jerry Hall, and Ethan Griffin rode with him. They left Topeka for Emporia shortly after 12:20 a.m., when Griffin got off work. They went to Fatty's until it closed and then drove to an after-hours party at a house.
Later, after riding around awhile, they went to the apartment complex where Alicia lived. Dixon told his friends that he had gotten a lot of the belongings in the apartment and he wanted them back. The four men broke into the apartment. Dixon was angry, and he was barking orders to his friends. Hayes took a television and put it in the Suburban. Griffin took a jewelry box. They also took a video cassette recorder and a lamp.
After putting the belongings in the Suburban, they drove around while Dixon continued to make calls on his cell phone. Hayes complained that he wanted to go back to Topeka. Dixon slammed on the brakes, and he and Hayes jumped out of the vehicle and tried to hit and kick each other. Later, there was a second altercation between Dixon and Hayes. Dixon again slammed on the brakes, and, when he and Hayes got out of the vehicle, Dixon fired his gun at Hayes' feet until it was empty. When they got back in the Suburban, Dixon drove by the Eastgate apartments at least four or five times.
Dixon then drove to a gas station and had Griffin pump gasoline into a bucket. Griffin left the jewelry box at the station. When they left the gas station, the bucket was in the back seat between Griffin and Hall. Griffin heard Dixon say, "I'll burn it up." Hayes, Griffin, and Hall complained about the smell of the gasoline, its sloshing out of the bucket, and that they could not smoke with it in the vehicle. Dixon told Griffin to throw it out the window, and Griffin did.
After driving around some more, Hayes convinced Dixon to go see Donnie Wishon, a friend of Hall. They took the items from Alicia's apartment into Wishon's residence. Hayes and Hall stayed there and went to sleep.
Griffin went with Dixon back to Alicia's apartment. Griffin testified that after again entering the apartment, Dixon went upstairs, threw a candle, knocked over a television, and kicked a bookshelf. Back downstairs, he tore a curtain off a front room window, rifled through the kitchen cabinets, and knocked the stove onto its side. It was full daylight when Dixon and Griffin returned to Wishon's residence to wake up Hayes and Hall and urge them to hurry so they could head back to Topeka.
Peter Lobdell, a special agent, certified explosives specialist, and certified fire investigator with the federal Bureau of Alcohol, Tobacco, and Firearms, led the team that investigated the explosion and fire. He determined from the large debris field and large sections of intact walls which had been blown out that the explosion was a fuel-air explosion. The fuel was natural gas, which combined with air to support combustion. The source of the natural gas was a leak in the pipe that supplied fuel to Alicia's stove. According to Lobdell, "the supply pipe was manually manipulated," which caused "it to fail, to leak and emit gas into the apartment." He was unable to determine what ignited the fuel-air combination.
Additional facts will be developed as we consider the numerous issues raised by Dixon on appeal.
1. DID THE JURY'S FAILURE TO REACH A VERDICT ON AGGRAVATED ARSON AFFECT DIXON'S CONVICTIONS FOR FELONY MURDER AND BURGLARY?
Questions posed by the jury about aggravated arson demonstrate its lack of understanding about whether the defendant had to intend to use fire or explosive to damage property or whether the defendant simply had to intend to damage property and happened to have done so by fire or explosive. The following response, given by the trial judge to one of the questions, is typical of all his responses: "In addition to the required intent to damage, Element number 1 of Instruction 19 requires that you find that the damage occurred by means of fire or explosion." He further advised the jurors to "review all of the instructions as you consider this matter." Among the other instructions was the following: "Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant." The jury was unable to reach a verdict on the aggravated arson count.
Because Dixon was not convicted of aggravated arson, the State takes the position that any question about the offense is moot and not properly before the court. The defendant points out, however, that aggravated arson was a predicate offense for burglary and felony murder. Thus, Dixon contends, the jury's failing to convict him of aggravated arson ought to be examined relative to the burglary and felony murder convictions.
Dixon was charged with felony murder for the deaths of Dana and Gabriel Hudson. The jury was instructed that the State had introduced evidence on alternative underlying felonies--aggravated arson and burglary. The jury was instructed with regard to the second charge of burglary that the State was required to prove that Dixon knowingly entered a dwelling without authority with the intent to commit theft, aggravated arson, criminal damage to property, or some combination of the three. He was convicted of the second burglary.
Arson is "[k]nowingly, by means of fire or explosive: . . . [d]amaging any building . . . which is a dwelling in which another person has any interest without the consent of such other person." K.S.A. 2004 Supp. 21-3718(a)(1)(A). Aggravated arson is arson "committed upon a building . . . in which there is a human being." K.S.A. 21-3719. The jury was instructed on aggravated arson as follows in accordance with PIK Crim. 3d 59.22:
"To establish this charge, each of the following claims must be proved:
1. That Mr. Dixon intentionally damaged a building or property in which another person had an interest, and that Mr. Dixon did so by means of fire or explosion;
2. That Mr. Dixon did so without the consent of Eastgate Plaza, Inc.;
3. That at the time there was a human being in the building or property;
4. That the fire or explosion resulted in a substantial risk of bodily harm; and
5. That this act occurred on or about the 29th day of July, 2001, in Lyon County, Kansas."
Dixon maintains that the correct interpretation of the statutes and pattern instruction is that an accidental fire or explosion ignited as a result of intentional property damage is not aggravated arson because there was no intent to cause a fire or explosion. In other words, he contends that the required intent is the intent to use fire or explosion to damage property. He cites State v. Walker, 21 Kan. App. 2d 950, 910 P.2d 868 (1996), as suggesting the same construction.
Walker was convicted of attempted aggravated arson resulting in substantial risk of bodily harm for pouring gasoline on the ground in front of the apartment where McCoy, who earlier had poured gasoline on Walker, lived. Walker did not ignite the gasoline and testified that he never intended to do so, but merely wanted to force McCoy to smell gasoline. The Court of Appeals concluded that the legislature had not intended for the arson statute to be interpreted literally. 21 Kan. App. 2d at 954. It reasoned as follows:
"The literal interpretation of the statute would mean that if one pours gasoline on another person's shrubs in front of their house and the shrubs are damaged, he or she has damaged another's property with an explosive, gasoline. Pursuant to [the statute], the person would be guilty of arson. Similarly, if one throws an unlit stick of dynamite through the window of a building, he or she has committed arson. This is true even though the dynamite would not have exploded because the fuse was not lit.
"The question for the jury to decide was whether Walker intended to ignite the gasoline and damage the building by fire or explosion, not whether he intended damage by the pouring of gasoline around the building.
. . . .
"[W]e believe the unmistakable intent of the legislature was that the term 'explosive' was to be interpreted as 'explosion' and that the use of the word 'explosive' was an error in terminology. [Citation omitted.]" 21 Kan. App. 2d at 953-55.
The problem identified in Walker, the term "explosive," has been remedied in the pattern instruction and was avoided in the present case by use of the pattern instruction. See PIK Crim. 3d 59.22. The facts in Walker paralleled the illustration of an unlit stick of dynamite causing property damage by being thrown through a window. But in the present case, the property damage at issue is not comparable to the broken window but rather to the total destruction of a dwelling by the dynamite's exploding when it landed in a blazing fire. In the first instance, there was an explosive but no fire or explosion; in the second, there was a fire and explosion resulting from the ignition of an explosive. Nonetheless, Dixon would have the court apply the lesson from Walker to the facts of the present case to conclude that he could not have been found guilty of aggravated arson because he did not ignite the gas released from the broken supply pipe, nor did he ever intend to ignite it.
Examination of the statutory language does not support Dixon's construction. The legislature defined arson in pertinent part as knowingly, by means of fire or explosive, damaging property. "Knowingly" is an adverb that modifies the verb "damaging," and the phrase "by means of fire or explosive" is set off by punctuation, making it an independent phrase that could be placed elsewhere in the definition. For example: Arson is knowingly damaging any building or property, which is a dwelling in which another person has any interest, by means of fire or explosive without the consent of such other person. If the legislature had intended to require the specific intent to use fire or explosive in order to damage property, it could have expressed that intent by defining arson as knowingly using fire or explosive to damage property.
This court has long held that an accused need not be prosecuted for or convicted of the underlying felony in order to be convicted of felony murder under K.S.A. 21-3401(b). State v. Beach, 275 Kan. 603, 617, 67 P.3d 121 (2003); State v. Wise, 237 Kan. 117, 123, 697 P.2d 1295 (1985). In such a case, however, a challenge to the felony-murder conviction may be made on the sufficiency of the evidence to support it. In Beach, the court framed the issue and concluded as follows:
"The question in this case . . . is whether after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. We conclude that the jury rationally could have found Beach participated in the underlying felony of aggravated robbery. That the jury acquitted Beach of aggravated robbery independent of the felony murder does not impair our conclusion." 275 Kan. at 622.
Here, we conclude that the jury rationally could have found beyond a reasonable doubt that Dixon committed aggravated arson. Thus, aggravated arson could have supported his felony murder and burglary convictions.
2. WERE INSTRUCTIONS ON LESSER INCLUDED OFFENSES OF FELONY MURDER REQUIRED?
The defendant requested instructions on reckless second-degree murder and reckless involuntary manslaughter as lesser included offenses of felony murder. The trial court declined to so instruct on the ground that the evidence of the underlying felonies was neither weak nor inconclusive.
"A trial court should only instruct on a lesser included offense of felony murder when the evidence of the underlying felony is weak or inconclusive. The reason for the rule is that the killer's malignant purpose is established by proof of the collateral felony." State v. Sandifer, 270 Kan. 591, Syl. ¶ 3, 17 P.3d 921 (2001).
On appeal, Dixon argues that the evidence of the underlying felony, burglary, was weak and inconclusive. The jury was instructed that it could consider only the second of the two burglary counts, Count 11, as a predicate offense for the felony-murder charges. In closing argument, the prosecutor told the jurors that only the second burglary count could be a predicate offense because only during the second burglary was something done to start the chain of events that ended with the deaths of Dana and Gabriel Hudson. Dixon concedes that there was conclusive evidence that he entered Alicia's apartment the second time, but he disputes that there was conclusive evidence that he entered with a felonious intent. The jury was instructed that it could find that he entered Alicia's apartment with the intent to commit theft, aggravated arson, or criminal damage to property.
Griffin, who accompanied Dixon the second time he went into Alicia's apartment, testified that Dixon threw a candle at a television, kicked a bookshelf, knocked the stove onto its side, tore a curtain down off a front room window, and tore up the kitchen going through the cabinets. Viewed in the light most favorable to defendant, as required, State v. Gholston, 272 Kan. 601, 615, 35 P.3d 868 (2001), cert. denied 536 U.S. 963 (2002), Griffin's testimony provided substantial and conclusive proof of Dixon's criminal damage to property. And it could reasonably be inferred from the evidence that Dixon entered the apartment with the felonious intent to criminally damage property. No lesser offense instructions were required.
3. SHOULD THE TRIAL COURT HAVE INSTRUCTED ON LESSER DEGREES OF AGGRAVATED BATTERY?
Dixon was charged with five counts of aggravated battery. The jury was instructed for Counts 4, 5, and 9 that the State had to prove that Dixon recklessly caused great bodily harm to Tena Wright, Nathan Medlen, and James Woodling respectively. Counts 4, 5, and 9 are severity level 5 felonies. See K.S.A. 21-3414(a)(2)(A) and (b). For Counts 6 and 7, the jury was instructed that the State had to prove that Dixon recklessly caused bodily harm to Stacey Depriest and Rosalind Harris respectively in a manner whereby great bodily harm, disfigurement or death could be inflicted. Counts 6 and 7 are severity level 8 felonies. See K.S.A. 21-3414(a)(2)(B) and (b).
The defendant requested lesser included offense instructions on Counts 4, 5, and 9. Specifically, defense counsel requested that the jury be instructed on aggravated battery severity level 8 or simple battery. The trial court declined to so instruct on Counts 4, 5, and 9 on the ground that the jury could not reasonably conclude that the injuries of Wright, Medlen, and Woodling constituted anything other than great bodily harm.
A defendant has a right to an instruction and the trial court has a duty to instruct on a lesser included offense which is supported by substantial evidence. Where there is no substantial evidence applicable to the lesser degrees of the offense charged and all the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to a lesser degree of the offense are not necessary. State v. Brice, 276 Kan. 758, Syl. ¶ 4, 80 P.3d 1113 (2003).
The evidence shows that Tena Wright, whose apartment was next to Alicia's apartment on the north, was upstairs in her bedroom when the explosion occurred. Her daughter was downstairs. The ceiling of Wright's bedroom collapsed on her, and fallen rafters blocked the door so that she was unable to get out to go downstairs. Wright made her way through thigh-deep debris to the window, where she could see her daughter standing on the ground below. The smoke was beginning to get heavy, heat was rising up through the ductwork, and the fire was coming into the bedroom. Knowing that she either had to go out the window or be burned, she chose the window. James Woodling was standing on the fence below and reaching up for her, but he was unable to hold her. Wright fell against the fence and landed on the air conditioning unit. Her legs and feet were cut and so severely bruised that they became black and swollen to nearly double normal size. Her left side became numb and immobile, and fluid developed in her abdomen. Wright sustained permanent back injuries including a herniated disk, pinched nerve, and inflammation. She took physical therapy for 3½ months and, at the time of trial, was considering spinal injections or back surgery to treat continuing pain.
James Woodling lived next door to the Eastgate Plaza Apartments. When he heard the explosion, he told his wife to call 911 and ran toward the apartments. Woodling and another nearby resident got Wright's daughter out of her apartment. Woodling then got up on the fence to reach up toward the window of Wright's bedroom. As Wright gripped the windowsill, Woodling was able to reach her legs. The building wall was unstable so that Woodling had to push back the wall with one arm and try to hold Wright with the other. He tried to pull her to him as her grip on the sill loosened, but he was only able to slow her momentum as she fell. While he was trying to rescue Wright and hold the wall back, Woodling's back was injured. He suffered two herniated disks in his lower back, which have caused nearly constant pain since that day. At the time of trial, he had begun receiving epidural treatments for his back pain.
Nathan Medlen, another nearby resident who ran to help after the explosion, was told by Wright's daughter that her mother was upstairs. When he got about halfway up the stairs in Wright's apartment, a cylindrical projectile flew through the wall, trapping Medlen's hand between the railing and fallen sheetrock and breaking his fifth metacarpal. He lost his job as a result, and, at the time of trial, he was still receiving some disability benefits and was only able to do light-duty work. The fracture healed so that he has a big lump on the back of his hand.
In Brice, 276 Kan. 758, the court considered the recurring question whether a trial court acts properly in limiting a jury's consideration to great bodily harm. The court stated:
"It is a trial court's time-honored responsibility to examine the evidence to determine whether a defendant can be convicted of a lesser included offense. The trial court accordingly guides the jury's deliberations by giving or not giving lesser included offense instructions. . . . Whether there is evidence in the case to support the giving of a lesser included instruction is a determination to be made by the trial court. If there is evidence that the harm was slight, trivial, moderate, or minor, then the trial court must give a lesser included instruction. Thus a trial court could determine that a bullet wound, even one that missed bone, major arteries, veins, and nerves, is not slight, trivial, moderate, or minor and will not support a lesser included instruction for battery." 276 Kan. at 773-74.
Injuries in recent cases where the court affirmed the trial court's determination that an injury was great bodily harm and would not support a lesser included offense instruction include the following: In State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996), the defendant fired four or five shots at the victim. One bullet struck him in the arm, another severed his spine and paralyzed him from the waist down. In State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996), the defendant shot a police officer in the arm. The bullet did not strike bone. The officer missed 3 days of work on account of the injury. In State v. Moore, 271 Kan. 416, 23 P.3d 815 (2001), the defendant used a hot iron to burn his victim's legs, breast, and inner thighs. He was charged with intentionally causing great bodily harm or disfigurement. In Brice, the defendant shot his victim in the upper right thigh. Missing bone, major arteries, veins, and nerves, the bullet exited through the victim's right buttock. He missed a week and a half of work as a result of the injury.
In the present case, each of the three victims suffered an injury with long-term effects. Wright had undergone months of physical therapy for a herniated disk and was considering options for further treatment. Woodling had several herniated lumbar disks and had received an epidural injection to treat his pain. Medlen lost his job on account of the injury to his hand and, after many months, was still restricted to light duty. By the measure of lasting effect, the injuries of the victims in this case are more severe than those in Whitaker and Brice where the victims missed 3 days and a week and a half of work respectively. By any measure the injuries of the victims in this case are not slight, trivial, minor, or even moderate. The evidence would not support lesser included offense instructions in Counts 4, 5, and 9, and the district court did not err in refusing to give them.
4. DID THE QUESTIONS AND COMMENT ON DIXON'S CONTACTING COUNSEL CONSTITUTE PROSECUTORIAL MISCONDUCT?
The prosecutor asked four witnesses about Dixon's telephone calls to and a meeting with his attorney shortly after the explosion and weeks before Dixon was charged and arrested. The timing of the contacts is significant to defendant's complaint because it implies the question of why someone who was not guilty would contact his or her attorney before being arrested or questioned or even contacted by police. The evidence was elicited as follows:
Jerry Hall testified that after he, Dixon, Griffin, and Hayes returned to Topeka the morning of July 29, Hayes and he went to his apartment. Later in the day, Dixon returned to Hall's place. Dixon was nervous and agitated. He called someone trying to find out what was on the Internet about news in Emporia. The prosecutor asked: "Who else did he call?" Hall testified that Dixon called his attorney. The prosecutor asked the attorney's name, and Hall answered that it was Joe Johnson. The following questions and answers occurred:
"Q. "Let's talk a little bit about -- you said the defendant called his attorney?
"A. Yes.
"Q. Was it your attorney?
"A. No.
"Q. Okay. Did the defendant ask you to go anywhere with him --
"A. Yes, he did.
"Q. -- after, the next day?
"A. Yes, he did.
"Q. Where was that?
"A. To his -- to his attorney's office. </