IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,020
STATE OF KANSAS,
Appellee,
v.
WALLACE L. DIXON, III,
Appellant.
SYLLABUS BY THE COURT
1. A district judge may declare a mistrial when prejudicial conduct makes it impossible to proceed with a trial without injustice to the defendant. Declaration of a mistrial is a matter entrusted to the trial court's discretion, and the judge's choice will not be set aside without an abuse of that discretion. An appellate court's inquiry should consider whether a limiting instruction was given, the degree of prejudice, and whether any evidence improperly admitted would affect the outcome of the trial.
2. In the circumstances of this case, when there was no nefarious conduct by the prosecutor concealing an alteration in expert testimony and any discrepancy was relatively minor, the district judge did not abuse his discretion in denying defendant's motion for mistrial.
3. The district judge in this case did not abuse his discretion by denying a motion for mistrial based on a juror's knowledge, shared with three other jurors, that the defendant wore leg restraints in the courtroom hallway.
4. When murder is committed during the commission of a felony, the ordinary rule requiring instructions on lesser included offenses does not apply. In a felony-murder case, a district judge is not required to instruct on lesser included offenses unless the evidence of the underlying felony is weak or inconclusive. In other words, instructions on lesser included offenses are not appropriate in those cases in which the evidence of the underlying felony is strong.
5. A defendant need not be prosecuted for or convicted of an underlying felony in order to be convicted of felony murder.
6. Evidence of three alternative predicate felonies–aggravated arson, criminal damage to property, and theft–for a second burglary underlying two felony-murder charges was sufficient to enable a rational trier of fact to find each means of committing the burglary proved beyond a reasonable doubt. It also was not weak or inconclusive, and the defendant was not entitled to lesser included instructions for felony murder.
7. In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. In reviewing an alternative means case, a court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, courts require that either the State elect the particular criminal act upon which it will rely for conviction or that the district court instruct the jury that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt.
8. In this alternative means case, the evidence of each alternative means of committing the second burglary was sufficient to enable a rational trier of fact to find each means of committing the crime proved beyond a reasonable doubt.
9. Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case and the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. Errors that do not affirmatively prejudice the substantial rights of a complaining party do not require reversal if substantial justice has been done.
10. The use of PIK instructions is not mandatory but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the district court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.
11. Read together, the instructions given in this case fairly and accurately state the law, and there was no possibility that the jury could have been misled on the value of property that must have been damaged to constitute a felony criminal damage to property.
12. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard.
13. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.
14. Evidence regarding defendant's mother's telephone conversation with woman whose apartment was damaged by defendant was relevant. The conversation's timing and content were, as a matter of law, material to defendant's possible consciousness of guilt and attempt at a coverup. It also was not an abuse of discretion for the district court judge to decide that the web of telephone conversations, of which defendant's mother's was a part, was probative on these material considerations. The admission of this evidence also was not unduly prejudicial.
15. Cumulative error, considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. Moreover, this doctrine does not apply if no error or only one error supports reversal. There was no cumulative error in this case.
Sarah E. Johnson, of Capital Appellate Defender office, argued the cause and was on the brief for appellant.
Jared S. Maag, deputy solicitor general, argued the cause, and Rebecca E. Rand, assistant attorney general, and Paul J. Morrison, attorney general, were with him on the brief for appellee.
Appeal from Lyon district court; MERLIN G. WHEELER, judge. Opinion filed June 19, 2009. Affirmed.
The opinion was delivered by
BEIER, J.: Defendant Wallace L. Dixon, III, brings this appeal challenging his convictions on two counts of felony murder and other offenses arising out of an apartment explosion in Emporia. We affirm.
Dixon challenges: (1) refusal to grant a mistrial because a witness altered his opinion on the stand; (2) refusal to grant a mistrial because a juror saw Dixon in shackles; (3) refusal to give instructions on certain lesser included offenses; (4) refusal to give a unanimity instruction regarding the underlying crime for the burglary charges; (5) adequacy of the felony-murder, burglary, and criminal damage to property elements instructions; (6) admission of evidence that Dixon's mother attempted to obstruct investigation of the explosion; and (7) cumulative error.
Factual and Procedural Background
This appeal follows Dixon's retrial after our decision in State v. Dixon, 279 Kan. 563, 112 P.3d 883 (2005) (Dixon I). Our opinion in Dixon's first appeal recites much of the pertinent factual and procedural background, which we will not repeat here. It is enough to say that Dixon was involved in a series of events leading up to a July 29, 2001, explosion and fire at an Emporia apartment complex, which resulted in the deaths of Dana Hudson and her infant son, as well as injuries to other residents and those who attempted to assist at the scene.
On remand, the district judge initially denied a defense motion to change venue but granted it after jury questionnaires were returned. The case was moved from Lyon County to Saline County. The charges at issue in the second trial mirrored those in the first: two counts of first-degree murder, in violation of K.S.A. 21-3401; aggravated arson, in violation of K.S.A. 21-3719; six counts of aggravated battery, in violation of K.S.A. 21-3414(a)(2)(A) and (B); two counts of burglary, in violation of K.S.A. 21-3715; felony theft, in violation of K.S.A. 21-3701; criminal damage to property, in violation of K.S.A. 21-3720; aggravated assault, in violation of K.S.A. 21-3410; and criminal possession of a firearm, in violation of K.S.A. 21-4204.
The State notified the court and Dixon of its intent to pursue the alternative charge of felony murder based on aggravated arson, anticipating correctly that the evidence in the second trial would be largely identical to the evidence in the first. The following events and comparisons between the first and the second trials bear specific mention because of their particular importance to the issues here.
Expert Testimony
Ethan Griffin, one of Dixon's accomplices, had testified during the first trial that he believed Dixon kicked the stove in Alicia Shaw's apartment, which he saw lying on its side when he and Dixon left the apartment. In the second trial, Griffin was a hostile witness. He admitted that he had heard the stove fall and that he had testified before that Dixon had kicked or pushed the stove.
Dixon's theory of the case was that agents of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) pressured Griffin into fabricating this portion of his story because ATF believed a gas leak from the stove was the best explanation for the explosion at the apartment complex. Defense counsel maintained that the evidence, including burn patterns and expert testimony from ATF's Peter Lobdell, would demonstrate that the stove was upright when the explosion occurred.
As he did in the first trial, Lobdell, a certified fire investigator with ATF, testified for the State concerning the cause of the explosion and fire. Dixon's counsel objected to a portion of Lobdell's testimony on the ground that it represented a change from his prior testimony and his original report.
In the first trial, Lobdell had observed that flexible tubing connecting the rigid natural gas supply pipe to the stove was intact but that the "supply pipe was manually manipulated to cause it to fail, to leak and emit gas into the apartment." In his expert opinion, he said, the manipulation of the pipe was an intentional criminal incendiary act. On cross-examination, he suggested that, in light of burn patterns on the stove, it could not have been situated on its side during the explosion.
On retrial, Lobdell again explained that the flexible tubing was intact and that the supply pipe had been manipulated and cracked. On cross-examination, however, he suggested that the stove could have been either on its side or upright at the time of the blast; he had no way to be certain. Lobdell acknowledged that he had said during the first trial that he did not think the stove could have been on its side. His ultimate opinion–that the pipe had been manually manipulated, creating a gas leak, and that the explosion was caused by an "intentional incendiary act"–remained unchanged.
The State also offered the testimony of a second expert, Dr. Mario P. Gomez, a professor of mechanical engineering, whom the ATF had hired to work as a consultant with Lobdell. Gomez testified at both trials that his observations led him to believe the supply pipe was "voluntarily" cracked or broken and had leaked natural gas into the apartment. Because natural gas is lighter than air, Gomez testified, it pooled near the ceiling, and the explosion created a powerful blast downward from a point somewhere above the apartment's refrigerator. Gomez opined at both trials that he believed the stove was on its side during the explosion. He also stated that he had learned since writing his report that the stove was found on its side, which was consistent with the damage he observed. He clarified, however, that the stove could have been either on its side or upright at the time of the explosion, that it made no difference whether it was standing, because "the same side was hit by the wave."
Dixon's counsel sought a mistrial after hearing Lobdell's testimony, claiming that the prosecution failed to notify the defense of Lobdell's change in his opinion. The State argued that there was no 180-degree change in the testimony, that the prosecution was unaware Lobdell had modified his opinion, and that the detail regarding the position of the stove was not significant. The district judge recessed to review case law, then questioned the prosecutor about whether the State had requested updated reports from its experts and questioned the defense about how the detail affected its strategy. The judge also reviewed a third expert's report, which had been obtained but not admitted by defense counsel; this report suggested that the stove may not have been upright at the time of the explosion. Ultimately, the judge denied the request for mistrial, stating:
"In considering this motion for mistrial, I note that the testimony of [Lobdell] in the first trial of the case fairly clearly evidenced his belief that the stove was upright at the time of the blast damage. His testimony here at this trial, in my view, indicated that that was still his belief, but he further expanded his opinion in this trial and went out on a limb to indicate that there may have been one other position for the stove that would have allowed it to receive the same amount of damage during the explosion as he observed, thinking the stove was upright. That was an expansion of his opinion, but apparently it is not reflected in any report nor did he make that information known to the State at any time prior to his testimony so that the State could have passed that to defense counsel."
The judge also noted that there had been no change in Gomez' opinion, who believed that the stove was on its side, despite a diagram in his report showing the stove sitting upright. The district court also observed that State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 (1985), to which the defense had directed his attention, did not require mistrial if an expert changes his or her position. Only if "the defendant has relied upon it to the point where now the defense would have been seriously prejudiced, then no admonition from the Court or instructions from the trial judge is going to make any difference and a mistrial would be mandated." The judge concluded that reports from other experts had put the defense on notice that there were questions about the position of the stove at the time of the blast. Furthermore, the defense had received a full opportunity to cross-examine, which established that there was "plenty of confusion as to where the stove was or was not"; there was no clear prejudice to defendant's position in any significant respect; and, "[i]f anything, [the discrepancy] has given the defense yet another tool to point out that perhaps the testimony, certainly, of [Lobdell] should not be accepted."
Shackles
During the retrial, it came to the district judge's attention that one juror had seen or heard Dixon in leg shackles and had told at least three other jurors about it. Dixon requested a mistrial, citing Deck v. Missouri, 544 U.S. 622, 635, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005). The State asserted that Kansas law did not require a mistrial if the jury inadvertently viewed a defendant in leg restraints and that a curative instruction should be adequate to correct any problem.
The district judge questioned the juror directly, and the juror said he heard Dixon coming into the courtroom with shackles and told three other jurors. The judge asked the juror if the incident would "in any way affect the manner in which you have viewed this case" or "cause you to feel one way or another for or against [Dixon's] guilt or innocence." The juror replied, "No." The judge did not follow up with the three other jurors before denying the motion for a mistrial. The judge asked the defense if a curative instruction was desired; when he did not receive a direct response, the following instruction was given:
"Members of the jury, late this morning it came to my attention that one or more of you may have had occasion to observe [Dixon] while coming or going from the courtroom and may have shared information regarding your observations [with] other jurors. I want to make clear to you that the manner in which [Dixon] arrives in the courtroom is not a matter that has any bearing whatsoever on this proceeding. It makes no difference. You're to draw no inferences from anything that you have seen or heard, and specifically I'm instructing you to disregard in these further proceedings any information with regard to the mode, mechanism of the transport or the appearance of [Dixon] here in any way. Simply put, it's not appropriate to consider those things."
Defendant's Mother
On the morning of July 29, 2001, when Shaw learned of the blast and fire at her apartment, she called Dixon and accused him of causing it. Shaw testified that when she called she was in her car with her sister, who had been Dixon's girlfriend, and a friend, Jessica Todd Bickerstaff. The women were driving to Emporia after spending the previous night in Topeka. At some point, Shaw hung up on Dixon. A call then came in on Shaw's sister's cell phone from Dixon's mother, Gwen Rios. Shaw answered the call. Shaw testified that, once Rios recognized that she was speaking with Shaw, Rios asked her if something had happened at her apartment. Shaw told Rios that she knew Dixon had something to do with it and that she was going straight to the police when she arrived in Emporia. Rios pleaded with her, "'Oh, please don't do that. Can we talk first? I can replace everything that you lost." Shaw testified that Rios "wanted to give her money not to tell [the police], to replace any furniture or anything that I had lost." Shaw did not accept Rios' offer.
Bickerstaff also testified about the call. Todd asserted that Dixon's mother said she would replace Shaw's lost belongings, that she would give Shaw "money for a new place and new toys for her kid and she wouldn't have to worry about anything if she–if she didn't say anything . . . about [Dixon's involvement in the apartment] complex blowing up."
Dixon's counsel objected to this evidence; the district judge noted the objection but did not sustain it.
In Dixon's later testimony, Dixon said that he had called his mother after Shaw accused him of being involved in the explosion and fire, that he told his mother that Shaw and her sister were making accusations, and that he hoped his mother could talk more calmly with them.
Jury Instructions
Dixon requested instructions on second-degree murder and involuntary manslaughter as lesser included offenses of felony murder, suggesting that evidence of either aggravated arson or burglary as the underlying felony was weak or inconclusive. The State argued in response that Dixon need not be charged with or convicted of an underlying felony in order for the felony to support felony murder and that proof of burglary does not require commission of the offense intended when an unlawful entry is made. The district judge rejected the defense request for the lesser included instructions, noting that the evidence in support of the felonies was nearly identical in both trials and that Dixon had not been entitled to the instructions in the first trial.
Verdict
The jury found Dixon guilty of two counts of felony murder, based on the underlying felony of burglary, attempted burglary or flight from burglary; two counts of aggravated battery; two counts of burglary; theft of an undetermined value; felony criminal damage to property worth at least $500 but less than $25,000; and criminal possession of a firearm. The jury acquitted Dixon of aggravated arson, two counts of aggravated battery, and aggravated assault. The district judge dismissed the remaining counts after a defense motion at the close of the State's case.
Mistrial for Change in Expert Testimony
A district judge may declare a mistrial if prejudicial conduct makes it impossible to proceed with a trial without injustice to the defendant. K.S.A. 22-3423(1)(c). Declaration of a mistrial is a matter entrusted to the district court's discretion, and the judge's choice will not be set aside without an abuse of that discretion. State v. Daniels, 278 Kan. 53, 66-67, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004); State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001). An appellate court's inquiry should consider whether a limiting instruction was given, the degree of prejudice, and whether any evidence improperly admitted would affect the outcome of the trial. State v. Sanders, 263 Kan. 317, 324, 949 P.2d 1084 (1997).
As before the district judge, Dixon attempts on appeal to compare his situation to that in Lewis, 238 Kan. 94. He also directs our attention to State v. Campbell, 29 Kan. App. 2d 50, 23 P.3d 176 (2001).
In Lewis, two defendants were accused of forcing their way into the home of their former drug supplier, placing a knife to his throat, and demanding money. When none was forthcoming, the victim was beaten. The altercation resulted in a cut on the victim's arm and violent separation from much of his hair. The victim reported the incident, and a search of one defendant's car revealed a large knife, a small knife, and a hunk of unattached hair.
Before trial, the State informed the defendants that a KBI report showed the victim's blood on two jackets taken from the defendants but not on the large knife. At trial, defendants' theory was that they were both at the victim's apartment; that one defendant got into an argument with the victim and the victim struck him; that, while fighting, the victim cut himself on broken glass; and that the victim called police with the story of the break-in and knifing because he was spiteful and vengeful. Defendants repeatedly relied upon the absence of blood on the large knife, which, in their view, made the State's theory of the crime impossible. Defendants did not know until the KBI expert testified for the State on direct examination that she had erred when she reported no blood from the victim on the large knife. The State had not disclosed this development, and the defense moved for a mistrial. The district judge denied the motion, instead striking the expert's testimony and giving a limiting instruction to the jury.
On appeal, the Lewis defendants argued that the district judge erred in denying the mistrial, and this court agreed. Noting that a judge's power to declare a mistrial must be exercised with great caution, we held that a mistrial is warranted if the damaging effect of prejudicial conduct cannot be removed by admonition and instruction. This court regarded the prosecutor's failure to disclose to the defendants and the district judge that its expert would testify in a manner materially contrary to her written report as such was prejudicial conduct; it could not be effectively cured by striking the expert's testimony or by giving a limiting instruction. Lewis, 238 Kan. at 97-99.
In Campbell, the defendant was tried in the death of her critically ill 2-year-old child, and one of the pivotal issues involved the child's time of death. The defendant informed a police investigator that she checked on her daughter sometime after 4 a.m. and suctioned secretions from her daughter's trachea tube. The defendant also said that she checked on her daughter at 6 a.m. and that she was alive at that time. By 7 a.m., she said, her daughter was not breathing and the trachea tube had been removed.
Given the defendant's commitment to this sequence of events and its timing, the defense made specific pretrial discovery requests for any evidence indicating time of death. The prosecutor deliberately failed to disclose that the daughter's pediatrician placed the time of death somewhere between 9:40 p.m. the previous evening and 3:50 a.m. on the date of death.
On appeal of the defendant's convictions for, inter alia, second-degree murder, our Court of Appeals held that a prosecutor who has or knows of evidence vital to the case and who deliberately misleads defense counsel into believing that no such evidence exists is guilty of prosecutorial misconduct sufficiently serious to trigger a reversal of the defendant's convictions. Campbell, 29 Kan. App. 2d at 61-62.
Contrary to Dixon's argument, this case bears little similarity to Lewis and Campbell. First, there was no nefarious conduct by the prosecutor in this case, a lynchpin for the reversals in Lewis and Campbell. There is nothing in the record on appeal to dispute the State's assertion that it was unaware before Dixon's second trial of Lobdell's modified opinion concerning the position of the stove at the time of the blast.
Moreover, unlike the situations in Lewis and Campbell, the discrepancy in the expert's testimony in this case was relatively minor. The two versions of Lobdell's testimony were not irreconcilable, as the district judge noted. The opinion drawn out at the second trial was merely an expanded–and somewhat weakened–version of the first opinion. At the first trial, Lobdell said that the stove was upright. In this trial, he said it could have either been upright or on its side. This situation is clearly distinguishable from those in Lewis, where the information was the opposite from that expected, and in Campbell, where the defense had been led to believe that information introduced by the State did not exist. Indeed, to the extent Lobdell's modification injected uncertainty into his analysis, that uncertainty undercut the State, not the defense.
Dixon also fails to acknowledge that the nature of the discrepancy here could not reach the level of obvious prejudice present in Lewis and Campbell. Those cases involved testimony that was absolutely critical to the defense. Here, the State's expert, Gomez, and the expert consulted by the defense in the case all opined the stove could have been on its side or upright. There was a great deal of inconsistency on this point, even without Lobdell's change. The defense could not have been surprised by this view of the evidence. In addition, Lobdell and Gomez consistently agreed that the explosion was fueled by natural gas leaking from a fracture or break in the supply pipe. If the jury agreed with this, then it mattered little whether the stove was upright or on its side as a result of the second break-in. No participant other than Dixon was identified as touching the stove; each of the three other individuals involved in the crimes confirmed that they heard, saw, or learned that Dixon had "shoved," "kicked," "pushed," or "pulled . . . out" the stove.
Given all of the above, we hold that the district judge did not abuse his discretion in denying Dixon's motion for mistrial based on Lobdell's testimony.
Mistrial for Jury Knowledge of Shackles
Dixon invokes federal and state precedent to support his argument that a mistrial was required because a juror viewed him in leg restraints. See Deck, 544 U.S. at 635; State v. Ninci, 262 Kan. 21, 53-54, 936 P.2d 1364 (1997).
Quoting Holbrook v. Flynn, 475 U.S. 560, 568, 570, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986), the United States Supreme Court in Deck stated that "shackling is 'inherently prejudicial.'" 544 U.S. at 635. Defendant Carman Deck had been convicted of first-degree murder, and related offenses, and had been sentenced to death. After Deck's postconviction relief motion resulted in a remand for resentencing, Deck was restrained by leg irons, handcuffs, and a belly chain during the second penalty proceeding. The death penalty was again imposed; the Supreme Court of Missouri affirmed; and the United States Supreme Court granted certiorari.
The Supreme Court held that due process prohibits routine use of physical restraints visible to a jury during the guilt phase of criminal trial, 544 U.S. at 626-29; courts also may not routinely place defendants in visible restraints during the penalty phase of capital proceedings. 544 U.S. at 632-33. Deck's shackling was not shown to be specifically justified by circumstances and thus offended due process. The Court stated that no showing of prejudice was required to make out a due process violation from routine use of visible shackles. 544 U.S. at 634-35.
"[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove 'beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.' [Citation omitted.]" 544 U.S. at 635.
This court has had several occasions to address shackling of criminal defendants in trial and similar issues.
In our most recent case, State v. Powell, 274 Kan. 618, Syl., 56 P.3d 189 (2002), this court upheld the decision of a district judge to permit defendant Richard Powell to wear a stun belt during the evidence phase of his capital murder trial. The use of the belt was not shown to have been a factor in Powell's decision not to testify; and, while in custody pursuant to his conviction in a prior case for involuntary manslaughter, Powell had stabbed another inmate, kept a shank in his shampoo bottle, and been the last individual to leave the jail's gymnasium before a shank was found there.
In State v. Davidson, 264 Kan. 44, Syl. ¶¶ 2-3, 954 P.2d 702 (1998), this court held that it was error for the district judge to tel