IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,983
STATE OF KANSAS,
Appellee,
v.
DANA LINN FLYNN,
Appellant.
SYLLABUS BY THE COURT
1. The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution or the Kansas Constitution. This court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. The Supreme Court has only such appellate jurisdiction as is conferred by statute. When the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. However, there are exceptions to the rule requiring a dismissal following an untimely filed notice of appeal when the defendant either was not informed of his or her rights to appeal, was not furnished an attorney to exercise those rights, or was furnished an attorney for that purpose who failed to perfect and complete an appeal.
2. K.S.A. 22-3202(1) governs whether a defendant will be tried on separate charges in a single trial and allows two or more crimes to be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act, transaction, or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. When criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently connected together to allow consolidation for trial. The decision to try separate charges in a single trial is a matter within the discretion of the trial court, and the trial court's decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion. In order to find reversible error, the appellate court is required to find that no reasonable person would agree with the trial court's decision to try the separate charges in a single trial.
3. 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.
4. In a criminal case involving first-degree murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury, the record is reviewed and it is determined that the State presented sufficient evidence to support the jury verdicts.
5. The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
6. The appellate court considers three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) Whether the misconduct is so gross and flagrant as to deny the accused a fair trial, (2) whether the remarks show ill will on the prosecutor's part, and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Normally, there can be no reversible error based on prosecutorial misconduct absent a contemporaneous objection; however, if the prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.
7. It is improper to ask a witness whether other witnesses lied or were mistaken.
8. The defendant must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.
9. All relevant evidence is admissible. Relevant evidence is evidence having any tendency in reason to prove any material fact. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. The admission of evidence lies in the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.
10. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is grounds for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
11. Generally, an admonition to the jury cures the prejudice from an improper admission of evidence.
12. A generic objection is insufficient to preserve for appeal the issue of the erroneous admission of evidence.
13. The Sixth Amendment to the United States Constitution provides the criminal defendant with the right to be confronted with the witnesses against him or her, and the Kansas Constitution gives the criminal defendant the right to meet the witness face to face. Although certain hearsay statements may be admissible as an exception to the hearsay rule, the Confrontation Clause may bar admission of such evidence.
14. K.S.A. 2001 Supp. 60-460(i)(2) excepts from the general rule against hearsay those statements made against a party when the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination. There are five prerequisites for application of the statute: (1) The person testifying must be a third party, (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators, (3) the statement of the coconspirator must have been outside the presence of the accused, (4) the statement of the coconspirator must have been made while the conspiracy was in progress, and (5) the statement must be relevant to the plan or its subject matter.
15. The standard of review of a district court's denial of a motion for new trial based on newly discovered evidence is abuse of discretion. If a reasonable person could agree with the trial court's decision, it will upheld on appeal.
Appeal from Geary district court, MELVIN M. GRADERT, judge. Opinion filed September 27, 2002. Affirmed.
Kurt P. Kerns, of Ariagno, Kerns, Mank & White, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.
Chris E. Biggs, county attorney, argued the cause, and Robin Graham, assistant county attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
Per Curiam: Dana Flynn appeals her jury convictions of first-degree premeditated murder, conspiracy to commit first-degree murder, and conspiracy to commit perjury. Flynn raises the following issues: (1) The trial court erred in refusing to sever the conspiracy to commit perjury charge from the murder charges, (2) the State presented insufficient evidence to sustain its burden of proof, (3) prosecutorial misconduct denied her right to a fair trial, (4) the trial court admitted irrelevant inflammatory evidence, (5) the trial court improperly admitted hearsay evidence in violation of her rights under the Confrontation Clause of the United States Constitution, (6) cumulative trial error denied her right to a fair trial, and (7) the district court erred in refusing to grant her a new trial based upon newly discovered evidence. We consider and reject each of Flynn's claims, and affirm the jury conviction.
This appeal follows the jury convictions in a joint trial of Dana Flynn and Mikel Dreiling for the December 22, 1992, death of Randy Sheridan. The jury convicted Mikel of first-degree murder, conspiracy to commit murder, terroristic threat, and conspiracy to commit perjury. We do not recite the facts in this case; for a detailed statement of facts see the companion case of State v. Dreiling, ___ Kan. ___, ___, ___ P.3d ___, (2002) (No. 84,969, this day decided).
Analysis
1. Failure to file a timely notice of appeal
Before reaching the merits of this appeal, we briefly pause to consider whether this case is properly before us because of an untimely filed notice of appeal.
"The right of appeal is entirely a statutory right; no appellate review is required by the United States Constitution [citation omitted] or the Kansas Constitution [citation omitted]. It is the established rule in this state that this court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. [Citations omitted.] The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Article 3, Section 3, of the Kansas Constitution, and when the record discloses a lack of jurisdiction, it is the duty of the Supreme Court to dismiss the appeal. [Citations omitted.]" State v. Ji, 255 Kan. 101, 102-03, 872 P.2d 748 (1994).
Because this crime was committed prior to July 1, 1993, Dana was required to file a notice of appeal within 130 days after the oral pronouncement of the sentence from the bench in open court. K.S.A. 22-3608(a); K.S.A. 2001 Supp. 21-4603. See State v. Ji, 255 Kan. at 102-04; State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). If the trial court receives a motion for modification within 120 days of the sentencing hearing, it has jurisdiction beyond the 120 days to decide the motion. Ji, 255 Kan. at 105; State ex rel. Owens v. Hodge, 230 Kan. 804, 814, 641 P.2d 399 (1982). In the event a motion to modify is filed, the triggering event is not the district court's ruling from the bench, but rather the filing of the journal entry. Ji, 255 Kan. at 112; State v. Myers, 10 Kan. App. 2d 266, 270, 697 P.2d 879 (1985).
Dana failed to file a timely notice of appeal. She was sentenced on January 27, 1997. The trial court orally denied Dana's motion for modification of sentence on November 5, 1998, and memorialized its decision in its order filed November 10, 1998, which was further memorialized in its journal entry filed March 16, 1999. Dana's attorney filed the notice of appeal on January 11, 1999--almost 2 years after the oral sentencing and 2 months after the filing of the order denying the motion to modify.
This court in State v. Ortiz, 230 Kan. 733, 736, 640 P.2d 1255 (1982), held there are exceptions to the rule requiring a dismissal following an untimely filed notice of appeal: "where a defendant either was not informed of his or her rights to appeal or was not furnished an attorney to exercise those rights or was furnished an attorney for that purpose who failed to perfect and complete an appeal." There is authority for remanding this case for a hearing to determine whether the Ortiz exceptions apply. See State v. Medina, 256 Kan. 695, 701, 887 P.2d 105 (1994). However, this court has also held that the exceptions in Ortiz apply based on an affidavit alone, rather than a specific factual finding by the lower court. See State v. Shortey, 256 Kan. 166, 168, 884 P.2d 426 (1994).
This court issued an order to show cause why the case should not be remanded to the district court for an Ortiz hearing. Dana responded and in her affidavit asserted that she wanted to appeal, that she instructed her attorney she wanted to appeal, and that she believed her attorney would file a timely notice of appeal. Under these circumstances, we find an Ortiz exception applies, and we will, therefore, consider Dana's appeal.
2. Failure to sever conspiracy to commit perjury charge from murder charges
Dana argues the trial court erred in joining the perjury charge with the murder charges in the same trial. Specifically, Dana argues she was prejudiced by the joinder because (1) the joinder allowed the "cross-admissibility" of evidence, i.e., evidence was admitted as to the perjury count that would otherwise have been inadmissible in a separate trial on the murder charges, and (2) the joinder of the perjury charge gave the State license to call Dana, Mikel, and members of their family liars.
K.S.A. 22-3202 provides:
"(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
The standard of review is abuse of discretion. State v. Barksdale, 266 Kan. 498, 507, 973 P.2d 165 (1999). See State v. Crawford, 255 Kan. 47, 54, 872 P.2d 293 (1994) (holding that the defendant has the burden of showing prejudice requiring reversal); State v. Shively, 26 Kan. App. 2d 302, 312, 987 P.2d 1119 (1999) (noting the "minimal" requirements for meeting the connection element of K.S.A. 22-3202[1]).
Connection between separate charges
In State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979), this court considered the appeal of the defendant who had been tried jointly on two separate district court cases--one case involved aggravated robbery and kidnapping, the other corruptly influencing a witness and unlawful deprivation of property. A trial on the first case ended in a mistrial, and the second case was not filed until after the first case had gone to trial. Upon retrial, the two cases were joined. The second case involved Moore's attempt to secure the false testimony of a witness to aid him in the defense of the first case. He argued that the court erred in consolidating the cases and that the consolidation "unduly prejudiced his defense." 226 Kan. at 749. The State argued that the joinder of the two cases was proper "because the defendant would not have committed the acts giving rise to the corruptly-influencing-a-witness charge but for the aggravated robbery and kidnapping charges." Thus, the State argued that the cases were "necessarily 'connected' and properly joined for trial." 226 Kan. at 749.
The court held it was not an abuse of discretion to join the cases, since the two cases were sufficiently "connected together" under K.S.A. 22-3202 because the first case "precipitated the conduct" in the second case. 226 Kan. at 750.
In State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), the court considered the defendant's convictions of aggravated assault of a law enforcement officer, unlawful possession of a firearm, burglary, and attempted murder. The aggravated assault of a law enforcement officer charge and the unlawful possession of a firearm charge arose out of an October 22, 1981, incident in which two undercover police officers tried to purchase drugs from the defendant. The defendant failed to appear for the trial on these two charges, then later the defendant tried to kill one of the undercover officers. The defendant argued the new charges of attempted murder and burglary and the prior charges were separate incidents and joinder would be prejudicial.
Relying on K.S.A. 22-3202, the court concluded:
"The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullikin to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial." 234 Kan. at 217.
In State v. Walker, 244 Kan. 275, 768 P.2d 290 (1989), the defendant was convicted of two counts of aggravated criminal sodomy and two counts of endangering a child, based on her abuse of her two stepsons. The defendant was also convicted of one count of making a terroristic threat. The threat charge arose out of her comments to a hospital social worker after she was not allowed to visit one of the victims, who had been admitted to a psychiatric hospital. The defendant argued the trial court erred in consolidating the threat charges with the charges involving her stepsons.
The court acknowledged that the charge of terroristic threat and the charges involving the defendant's stepsons were not of the "same or similar character or based upon the same acts or transactions"; however, the court noted the State's argument--based on Moore and Pondexter--that the charges merely need be "connected together." 244 Kan. at 278. The Walker court noted that the defendant's case was not as strong as Moore and Pondexter, but that the charges were sufficiently "connected together" because the charges of aggravated criminal sodomy and endangering a child precipitated the threat charges. 244 Kan. at 279. Moreover, the defendant failed to "demonstrate prejudice which would justify reversal." 244 Kan. at 280.
State v. Anthony, 257 Kan. 1003, 898 P.2d 1109 (1995), also rejected an argument that the joinder of the defendant's charges for premeditated first-degree murder, aggravated robbery, sale of cocaine within 1,000 feet of a school, and unlawful possession of a firearm was improper. On the murder and robbery charges, the defendant was jointly tried with two other defendants. The drug charge was based on evidence gathered during a drug sting operation involving a confidential informant. The night following the murder and robbery of a motel night clerk, the defendant visited the drug sting confidential informant to sell drugs. While there, the defendant made statements linking himself to the robbery and murder of the motel night clerk. On appeal, the defendant argued the trial court erred in refusing to sever the sale of cocaine from the murder and robbery charges.
The court focused on the "connected together" language in K.S.A. 22-3202. Anthony concluded that even though
"the robbery and murder are separate and distinct charges from the sale of cocaine and unlawful possession of a firearm charges, all the charges are connected together. . . . The connection between the selling of cocaine and possession of the weapon on the one hand and the motel murder and robbery on the other hand is real and substantial enough to allow joinder. At the very least, we believe that reasonable persons could disagree on the ruling of the trial court, and we do not, therefore, find an abuse of discretion in granting joinder." 257 Kan. at 1016-17.
The connection in this case was substantial. The perjury was designed to conceal beliefs that God would take care of the victim, that the victim was evil, and that it was not God's will that the victim have custody of A.S. These beliefs established a motive for killing the victim, thus the connection under K.S.A. 22-3202(1) provided a sound basis for joinder.
Admission and prejudiceinadmissible evidence
This court in State v. Cromwell, 253 Kan. 495, 511-12, 856 P.2d 1299 (1993), resolved an attack to the joinder of multiple crimes in one trial by noting that where evidence objected to would have been admissible under K.S.A. 60-455, no error occurs in forming separate charges. Dana relies on United States v. Lewis, 787 F.2d 1318 (9th Cir. 1986), and Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998), for the proposition that when charges are joined for trial and evidence on one charge is not admissible on the other charge, there is a high likelihood of undue prejudice.
The defendant in Lewis argued the trial court abused its discretion in refusing to sever a receipt of firearm count from the charges of larceny and murder because his prior felony conviction would not have been admissible in separate trials. The test, according to Lewis, was whether the prejudice was "of such a magnitude that the defendant's right to a fair trial was abridged." 787 F.2d at 1321. The court reversed the murder conviction, noting that "[t]here is 'a high risk of undue prejudice whenever . . . joinder of counts allows evidence of other crimes to be introduced in a trial of charges with respect to which the evidence would otherwise be inadmissible.'" 787 F.2d at 1321 (quoting United States v. Daniels, 770 F.2d 111, 1116 [D.C. Cir. 1985]). The Lewis court explained that the reason for this was that "[i]t is much more difficult for jurors to compartmentalize damaging information about one defendant derived from joined counts [citation omitted] than it is to compartmentalize evidence against separate defendants joined for trial." 787 F.2d at 1322.
In Bean, the defendant was convicted by a California state court of two counts each of first-degree murder, robbery, and burglary as to two separate victims, Schatz and Fox and Bean was sentenced to death. The California Supreme Court affirmed the conviction, and Bean filed a federal habeas corpus action. The Bean court concluded that the "joinder of the Schatz and Fox indictments deprived Bean of a fundamentally fair trial on the Fox charges." 163 F.3d at 1083. The Fox case was relatively weak compared with the evidence from the Schatz case and the Bean court held that joinder of the weak case with the strong case permitted the jury to "infer criminal propensity." 163 F.3d at 1083.
Unlike Lewis, the evidence of perjury in this case was admissible both under K.S.A. 60-455 and independent of K.S.A. 60-455. It related to the victim, the attitude of Dana's church towards the victim, and the support Dana gained from her pastor and church members for preventing the victim's visitation of A.S. at any cost. Independent of 60-455, the evidence related directly to the motive for eliminating the victim from the life of A.S.
Unlike Bean, the case we now consider raises no concerns for an inference of criminal propensity. The perjury charge was occurring just prior to the murder charge. Both were inextricably connected, with the latter growing out of the perjury charge. Given such a connection, and the unquestioned admissibility of the perjury evidence, we conclude that the court did not abuse its discretion in joining the separate charges for trial. Finally, we note that the court instructed the jury to consider the charges separately "uninfluenced by [its] decision as to any other charge."
3. Sufficiency of Evidence
Premeditated murder and conspiracy to commit murder
"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." State v. Jamison, 269 Kan. 564, 571, 7 P.3d 1204 (2000). Moreover, "[a] guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence, even though the evidence is entirely circumstantial." State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001).
Dana contends that the State's theory that she and Mikel were influenced by Pastor Rollins' prophesies would not be accepted by any rational jury. Dana argues that the testimony of Lucille Johnson regarding the carwash should be discounted both because the testimony was incredible and because Johnson had a motive to lie. She attacks the probative value of Mikel's failed attempts to establish alibis for himself and his sister because there was no evidence presented to show that she knew about the alibis. She also argues the State presented no evidence linking her to Mikel's telephone call. According to Dana, the State presented insufficient evidence showing she had perjured herself for the purpose of covering up Randy's murder. Dana argues the jury verdict should be rejected according to State v. Doyle, 201 Kan. 469, 487, 441 P.2d 846 (1968), which held that motive alone is insufficient to sustain a conviction. In any event, she asserts that many others had a motive to kill Randy. Finally, Dana argues the tiny bits of irrelevant evidence do not collectively amount to relevant evidence with which the jury could have reasonably convicted her.
The facts leading to Randy's death demonstrate a number of motives why Dana wanted Randy out of her life. However, the court instructed the jury that motive alone was insufficient: "A finding of guilty for the crime of murder may not be based solely upon evidence of motive. Rather each element of the crime must be proved beyond reasonable doubt." The court also instructed the jury that inferences alone were not sufficient to establish any elements of any of the crimes: "You may not find an element of a crime from an inference that is based solely upon an inference. However, you may draw reasonable inferences from facts established in the evidence."
The evidence established that Dana needed a way out of the custody litigation with Randy for a number of reasons. First, Randy, with the critical help of Pottroff, had maneuvered Dana into a corner. She had lied about not spending any significant time with Pastor Rollins. Randy and Pottroff knew this to be a lie; therefore, Pottroff crafted a court order to restrain A.S. from associating with Pastor Rollins, thereby putting Dana in the difficult position between choosing between her daughter and the man she wanted to marry. Second, the litigation against Randy was not going Dana's way. Kansas Department of Social and Rehabilitation Services (SRS) social workers were concerned about the past allegations of sexual abuse. Finally, the evidence demonstrated that SRS was concerned Dana had coached A.S. to make untruthful allegations. SRS considered this coaching to be emotionally harmful to A.S., and it could have been grounds for Dana to lose custody of A.S.
In addition to motive evidence, the circumstantial evidence inevitably led to Dana and Mikel.
The December 7, 1992 threat to Steve Flynn was significant. Steve and Randy were similarly situated in that they both had a child with Dana, they both were fighting Dana over custody and supervision, and they both had a young child who believed their respective father was evil based on Dana's statements. When Steve pushed Dana too far with regard to J.F., Dana arrived at Steve's place of work with Mikel and a heated confrontation followed. Mikel threatened Steve with the "I'm going to take you down" language, and Dana responded by telling Mikel that it was not the appropriate time to take Steve down. Mikel attempted to explain that as a former wrestler, he had used the "take down" language to refer to a seemingly innocuous wrestling maneuver. However, the inference that Mikel intended his statement to be a life-threatening statement was equally supported and, with other evidence, became the likely intent.
The December 12, 1992, telephone call, viewed in the light most favorable to the State, was significant. First, the jury could reasonably conclude the telephone call was a death threat from Mikel to the Randy. Judith testified she heard the words "die" or dead." Judith also heard Randy refer to the caller as "Mikey," a derogative term Randy used for Mikel. The jury could have reasonably concluded the telephone call was a forecast, i.e., "drop the custody fight or you are dead." The evidence showed that Randy was proceeding with the custody battle, which was causing Dana concerns regarding her desire for sole custody of A.S. and her relationship with Pastor Rollins. Dana stated she would "do anything" to keep Randy from getting custody of A.S.
The testimony of Randy's attorney provided evidence that despite court orders for extended visitation, Dana did not intend on letting Randy have custody of A.S.
The State presented evidence of Dana's opportunity to commit this crime. She left work shortly after noon on December 22, 1992, after having a telephone conversation with her lawyer, the bearer of bad news in terms of the custody battle. The evidence showed it was likely Dana knew through her attorney that Randy was home that day. Her own statements following the murder established that she had purchased fuel for her car and telephoned her mother from a payphone to arrange for someone to pick up the children. Mikel's statements established that he was with his sister that afternoon, which likewise establishes his opportunity to commit this crime.
Admittedly, there was nothing at the scene of the crime to link the murder to either Dana or Mikel. Howeve