IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,662
STATE OF KANSAS,
Appellee,
v.
ETHAN M. GRIFFIN,
Appellant.
SYLLABUS BY THE COURT
1. As a general rule, issues not raised before the trial court will not be considered on appeal. There are several exceptions to the general rule, including where consideration of the question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights.
2. An appellate court's standard for review of prosecutorial misconduct is the same whether an objection was or was not made at trial. Reversible error based on prosecutorial misconduct must show the alleged error denied the defendant his or her right to a fair trial under the Fourteenth Amendment.
3. A two-step process is used in analyzing allegations of prosecutorial misconduct. First, the court determines whether complained-of comments were outside the wide latitude permitted a prosecutor for language and manner. Second, the court determines whether the prosecutor's remarks constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial.
4. When applying the felony-murder rule, the felony and the victim's death do not need to occur simultaneously, nor does the felony need to occur before the death. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was a part of the felony and therefore subject to the felony-murder rule.
5. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial.
6. Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review.
7. Evidence of flight may be admissible to establish the consciousness of guilt, the commission of the acts charged, and the intent and purpose for which those acts were committed. Even where other evidence may weaken this inference of guilt, the objection to such evidence goes to the weight rather than the admissibility.
8. When a defendant challenges the sufficiency of evidence, this court's standard of review is whether, after review of all the evidence, viewed in the light most favorable to the State, the appellate court is convinced that a rational jury could have found the defendant guilty beyond a reasonable doubt.
9. Whether the underlying felony had been abandoned or completed prior to the killing so as to remove it from the ambit of the felony-murder rule is ordinarily a question of fact for the jury to decide.
10. All participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime.
11. The general rule for giving lesser included offense instructions is not followed in the case of felony murder. In felony-murder cases, the trial court is only required to instruct on a lesser included offense of felony murder when the evidence of the underlying felony is weak or inconclusive. The reason for this rule is that the killer's malignant purpose is established by proof of the collateral felony.
12. Errors that do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done.
13. The court reviews instructions by a clearly erroneous standard where there was no objection to the instructions at trial. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.
Appeal from Lyon district court; MERLIN G. WHEELER, judge. Opinion filed June 3, 2005. Affirmed.
Reid T. Nelson, capital appellate defender, argued the cause and was on the briefs for appellant.
Kristafer R. Ailslieger, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
ALLEGRUCCI, J.: Ethan Griffin appeals his convictions of two counts of felony murder, five counts of aggravated battery, and two counts of burglary. He was sentenced to two consecutive life terms (each with no parole eligibility for 20 years) plus 72 months consecutive to the life terms.
This case is a companion case to State v. Dixon, Case No. 89, 164, this day decided. The convictions of Griffin and Dixon arose out of an explosion and apartment fire, which occurred in Emporia in July 2001. Dixon and Griffin were coparticipants in the crimes charged but were not tried together. Griffin testified as a witness for the State in Dixon's trial. He did not testify in his trial. The facts surrounding the explosion and fire are set out in State v. Dixon and will not be set out in detail in this opinion except as may be necessary in discussing issues not raised and discussed in State v. Dixon.
Griffin raises 10 issues on appeal. Five of them are similar to issues raised by Dixon.
1. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE STATE'S USE OF INCONSISTENT PROSECUTORIAL THEORIES TO CONVICT HIM AND WALLACE DIXON OF THE SAME CRIMES?
Griffin makes two claims of prosecutorial inconsistency between his trial and Dixon's. First, he contends that he was portrayed as truthful in Dixon's trial, where he testified for the State, and as less than truthful in his own trial. Second, he contends that his participation in the second burglary of Alicia Shaw's apartment was played down in Dixon's trial and up in his own.
The State argues that this issue is not properly before the court because it is raised for the first time on appeal. Griffin does not contend that the issue was raised at trial, but he states that it was argued at the remand hearing on ineffective assistance of counsel. Examination of the transcript of the remand hearing at the pages cited by Griffin shows that the issue presented to the trial court was whether trial counsel should have had Griffin testify. The argument was made at that time by appellate counsel that inconsistencies between Dixon's and Griffin's trials could have been avoided if trial counsel had convinced Griffin to testify on his own behalf. Inconsistent prosecutorial theories were not an issue presented to the trial court so as to provide an opportunity to avoid or correct error.
As a general rule, issues not raised before the trial court will not be considered on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). There are several exceptions to the general rule, including where consideration of the question raised for the first time on appeal is necessary to serve the ends of justice or to prevent denial of fundamental rights. State v. Wiegand, 275 Kan. 841, 844, 69 P.3d 627 (2003). Griffin does not argue for exercising an exception in the circumstances of this case. We do not address the issue.
2. WAS GRIFFIN DEPRIVED OF A FAIR TRIAL BY THE PROSECUTOR'S MISSTATING THE EVIDENCE AND THE LAW IN CLOSING ARGUMENT?
Griffin contends that the convictions against him were obtained, at least in part, by prosecutorial misconduct in closing argument. An appellate court's standard of review is the same whether or not an objection was made at trial. State v. Davis, 275 Kan. 107, 121-22, 61 P.3d 701 (2003). "Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial." State v. Pabst, 268 Kan. 501, 504, 996 P.2d 321 (2000).
We use a two-step process in analyzing allegations of prosecutorial misconduct. First, the court determines whether complained-of comments were outside the wide latitude permitted a prosecutor for language and manner. Second, the court determines whether the prosecutor's remarks constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny the defendant a fair trial. 275 Kan. at 121.
(a) Evidence. Griffin contends that, because the evidence was that Dixon knocked over the stove, it was incorrect for the prosecutor to state that defendant's acts were responsible for the deaths of Dana and Gabriel Hudson. Griffin complains of the following statements:
"Dana and Gabriel Hudson died that night. They died because of the defendant's acts along with Wallace Dixon and he should be held responsible for that."
"We know the defendant was inside that apartment, him and Wallace Dixon, and that they caused a leak in this pipe that ultimately exploded killing Dana and Gabriel. Nothing else caused it."
The prosecutor's statements conform to the well-established principles of aiding and abetting. The court has long recognized that all participants in a crime are equally guilty of that crime and any other reasonably foreseeable crime committed in carrying out the intended crime. See State v. Turner, 193 Kan. 189, 196, 392 P.2d 863 (1964); PIK Crim. 3d 54.05 and 54.06.
The prosecutor told the jury that Griffin admitted burglarizing Alicia Shaw's apartment, but Griffin contends that he did not admit burglarizing the apartment on the second entry. He complains of the following statements:
"But that's what happened and that's what he admitted to. He went in the apartment. He committed a burglary and it was during the course of that burglary the place blew up."
"We brought you the defendant admitting going into the apartment, burglarizing it, and what Wallace Dixon did."
The State concedes that Griffin never said that he burglarized the apartment on the second entry; he did admit to entering the apartment with Dixon. The State contends that Griffin's entering the apartment a few hours earlier and stealing property raised the inference that he intended to do the same when he entered the apartment the second time. Intent, a state of mind existing at the time an offense is committed, does not need to be and rarely can be directly proven. It may be established by acts, circumstances, and inferences reasonably deducible from the evidence of acts and circumstances. State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 (2000). In the absence of proof of other intent, or an explanation of an unlawful breaking and entry into the dwelling of another at night, it reasonably may be inferred that the intruder intended to commit a felony, theft, or sexual battery therein. In Wilkins, although the court reversed the defendant's conviction of burglary on double jeopardy grounds, it held that the evidence was sufficient to convict defendant of burglary where he was found in a pawn shop, having broken in through a hole in the roof. 269 Kan. at 264. In the present case, too, there is no other explanation for Griffin's second unlawful entry into the apartment, and from the evidence of his conduct in the first entry it reasonably may be inferred that he intended to resume his thievery in the second entry.
Griffin complains of two aspects of the following statements about how the apartment was going to be blown up:
"You heard what [Griffin] said about Wallace Dixon's intent, I'm going to burn that house down, I'm going to blow that apartment up. He chose. He chose to stay there. Even when Rodney Hayes, his best friend, said I'm done, I'm done, he shot at me, he wants to blow up a house, I'm done, we're going over to Donnie Wishon's . . . ."
"The defendant made yet another choice, I'm going to go with Wallace Dixon. And when he did so he knew Wallace Dixon's intent. Because as you heard him say, he knew Wallace was intending to blow up that apartment. He knew and yet he made the choice."
Griffin claims that there was no evidence that Dixon said anything about an explosion. Griffin himself, however, told police that Dixon was talking like he would blow the house up. Griffin also complains that the prosecutor improperly changed the term "house," which was in evidence, to "apartment," which was not. The significance of the latter, according to Griffin, is that Dixon's referring to an apartment would have been a clearer expression of his intent. There is no need, however, to impute Dixon's intent to Griffin because the jury reasonably could have inferred that Griffin intended to commit theft when he entered Alicia Shaw's apartment the second time.
(b) Law--aiding and abetting. Griffin complains that the prosecutor told the jurors, contrary to established law, that his mere association with Dixon was sufficient to establish his guilt of felony murder. He identifies the following statements:
"[Dixon] had the reasons to do this. But the defendant went along. The defendant aided Wallace Dixon for, you see, ladies and gentlemen, when you go into a place like this when you're going to commit a crime[,] is it easier to do it alone or with someone else[?] We know this defendant is the one who crawled through the window and cut himself the night during the first burglary. It's easier to do it with a group. That encourages bad behavior, that's common sense.
"Would Wallace Dixon have done this alone had the defendant not helped him? We'll never know."
"No one forced him to enter that apartment to help Wallace Dixon, to aid, to encourage, to help Wallace Dixon. No one made him do it, it was his choice to do so. And regardless of the extent of his participation, you heard him start out with the police denying any participation and ultimately he got to the point where he admitted it. But regardless of that, a person who intentionally aids, abets is guilty of the primary crime."
In neither of these excerpts did the prosecutor tell the jury that mere association was sufficient for conviction. These remarks do not touch on Griffin's own intent in reentering the apartment. As we have seen in the preceding paragraphs, the prosecutor urged the jurors to infer from all the evidence that Griffin reentered the apartment with a felonious intent. The State's position was not that Griffin was guilty by mere association, and these excerpts do not suggest that it was.
(c) Law--intended consequences. Griffin contends that the prosecutor asked the jurors to misapply the law of intended consequences. He states that the theme of the State's closing argument was that, at a number of different times, Griffin chose to associate with rather than distance himself from Dixon so that he eventually was in Alicia Shaw's apartment when Dixon knocked over her stove. The prosecutor quoted the following part of the pattern instruction on intended consequences: "And the law says as you've just been instructed in Instruction Number 9 that ordinarily a person intends all of the usual consequences of their voluntary acts. It's a choice we make." Griffin contends that the prosecutor's statements were intended to convince the jury to convict him without reference to the elements of felony murder.
We find it difficult to understand Griffin's argument. It appears to be another way of arguing that, without felonious intent to reenter the apartment, Griffin was merely associating with Dixon and the deaths were not the usual consequences of mere association. The prosecutor's statement about intending usual consequences is a correct statement of the law, and, even though the prosecutor did not restrict his use of the principle strictly to a presumption of intent, there does not seem to be anything improper about the way he used it. Hence, the prosecutor's theme and remarks do not extend beyond the wide latitude permitted a prosecutor for language and manner.
(d) Law--felony-murder rule. The prosecutor stated:
"The felony murder rule is simply this: The State says that in our laws that if you commit certain classes of felonies and during the commission of one of those felonies the attempt, even the attempt to commit one of those felonies, or the flight from one of those felonies and someone dies as a result of what happened, it's felony murder.
". . . So if you're -- for lack of a better example, if you're just committing a burglary and you trip over something on the way out and that causes a gas leak, that's felony murder if people die."
Griffin complains that the statement leaves out the requirement that the death must occur during the attempt, commission of, or flight from the felony. His argument is based on an overly narrow reading of K.S.A. 21-3401, which provides that a felony murder is "the killing of a human being committed . . . in the commission of, attempt to commit, or flight from an inherently dangerous felony." A less restrictive construction of the statute prevails in the case law, where the requirement is that the killing be some part of the felony. For example, in State v. Jacques, 270 Kan. 173, 14 P.3d 409 (2000), the defendant's conviction of felony murder, with possession of cocaine as the underlying felony, was affirmed where he killed the person who was supposed to buy cocaine for him and then went into the drug house and made the purchase for himself. The court held:
"When applying the felony-murder rule, . . . the felony and the victim's death do not need to occur simultaneously, nor does the felony need to occur before the death. Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing was a part of the felony and therefore subject to the felony-murder rule. [Citations omitted.]
"We hold that the death need not occur during or after the commission of the felony to support a conviction for felony murder. The question for the jury is whether the death is within the res gestae of the crime, regardless of the actual sequence of events. [Citations omitted.]" 270 Kan. 189-90.
3. WAS THE ASSISTANCE PROVIDED BY GRIFFIN'S TRIAL COUNSEL INEFFECTIVE?
In May 2003, after his appeal had been docketed in this court, Griffin filed a motion seeking remand for a determination whether he was denied effective assistance of counsel at trial. The court granted the motion in June 2003. In a November 2003 letter, the trial judge advised the court that a hearing had been conducted and the claim of ineffective assistance denied. In December 2003, a journal entry was filed, which recites that a hearing was conducted and the defendant's request for relief was denied.
The trial judge announced his ruling from the bench at the conclusion of the hearing. He began with the general observation that defendant was represented throughout the course of the underlying trial by an attorney with "extensive trial experience in criminal cases, trying between 160 and 170 cases for the defense," who devoted 250 to 300 hours to preparing and trying the case. The trial judge also noted that Griffin's counsel watched Dixon's trial before Griffin's began. In the judge's view, "that presents to a defense trial counsel a unique perspective of literally having seen the case tried previously and being able to adopt an approach and a strategy based upon what he had seen and heard of the prior case." Here are the concluding paragraphs of the trial judge's remarks from the bench:
"I, therefore, find based upon the totality of my circumstances here that the defendant has not met its burden to demonstrate, first of all, that trial counsel's performance was deficient; secondly, even if I had so found then I must go on to the question of whether or not that conduct was prejudicial. . . . But I think I want to make it very clear for this record that even if I had taken a different view and determined that there were errors on the part of Mr. Brown, I cannot conclude under these circumstances that those errors were in any way prejudicial. To do so I would have had to find that there was a reasonable probability that the result would have been different.
"The evidence against Mr. Griffin was quite extensive. The jury gave considerable thought to that evidence and applying the evidence to the law as they were instructed. In fact, as I recall some not-guilty decisions were rendered in this regard. I cannot see in any respect, having looked back through this case and reconsidered this matter, how a change in the defense' tactics would have altered or in any way changed the decision of the jury. Consequently, it would be my secondary finding that there was no prejudice even if one found that there was a deficient performance. Under these circumstances the request of the defendant to set aside the verdict based upon Sixth Amendment grounds of ineffective assistance of counsel is denied."
Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial. State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2004). Both the performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact on appeal requiring de novo review. Easterwood v. State, 273 Kan. 361, 370, 44 P.3d 1209, cert. denied 537 U.S. 951 (2002).
On appeal, Griffin makes 10 claims of ineffective assistance of counsel. The State objects to the court's consideration of half of the claims on the ground that Griffin did not raise them in the district court. Griffin contends that some of the claims were presented to the district court and, even if they were not, it does not matter because this court is obligated to base its ruling on a review of the entire trial record. He cites State v. Rice, 261 Kan. 567, 608, 932 P.2d 981 (1997), which does not involve the question whether an instance of alleged ineffective assistance will be considered for the first time on appeal.
In Rice, the trial court determined that defense counsel's performance, which included advising his client for unsound reasons not to testify, was not unreasonably deficient. This court disagreed but upheld the trial court's overruling of the motion for new trial on the ground that Rice was not so prejudiced by his attorney's deficient performance as to be denied a fair trial. 261 Kan. at 607-09. In discussing that the trial court's ruling on prejudice undoubtedly would have been negative if the second prong had been reached, this court made the following statement:
"It is apparent the trial judge was not limited to the evidence presented at the ineffective assistance hearing, but took into consideration, as we must do, the totality of the evidence before the jury. There is considerable evidence sufficient to uphold the verdict which would not have been affected by Rice's testimony." 261 Kan. at 608-09.
Taking all the evidence into consideration is not the equivalent of considering an issue for the first time on appeal.
Generally, an allegation of ineffective assistance of counsel will not be considered for the first time on appeal. State v. Gleason, 277 Kan. 624, 647, 88 P.3d 218 (2004). The trial court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court and should be the first to make a determination of such an issue. State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986). This court, however, has made exceptions in a few cases where the record on appeal was sufficiently complete for the appellate court to decide the issue. See, e.g., State v. Jones, 273 Kan. 756, 785, 47 P.3d 783 (2002); State v. Carter, 270 Kan. 426, 433, 14 P.3d 1138 (2000); State v. Jenkins, 257 Kan. 1074, 1079-80, 898 P.2d 1121 (1995).
(a) Griffin contends that his trial counsel should have introduced Griffin's testimony and the prosecutor's closing argument remarks about Griffin's testimony from Dixon's trial in order to show Griffin's lack of culpability. The State contends that the issue was not raised before the trial court. In his reply brief, Griffin states that it was raised and cites certain portions of the transcript of the hearing on the claim of ineffective assistance of counsel.
Examination of the specified portions of the record shows that the principal contention presented to the trial judge was that Griffin would have benefitted from testifying in his own defense. Griffin's testimony from Dixon's trial and a question the prosecutor asked Griffin, but not the prosecutor's closing remarks, are cited. In reference to Griffin's position in testifying in his own trial Griffin's appellate counsel asked and Griffin's trial counsel answered the following questions:
"Q. . . . What was Mr. Griffin's position on testifying?
"A. He did not want to testify.
"Q. And that would have been after consultation with you?
"A. Several consultations, yes.
. . . .
"Q. His decision not to testify after consultation with you.
"A. Yes.
"Q. Do you recall whether or not you advised him that his testimony in Dixon's trial could be beneficial to him in his own trial?
"A. I don't believe we had that conversation, no, sir."
In another instance, Griffin's appellate counsel argued that Griffin should have been advised to testify in his own defense. The trial judge stated that he "didn't hear anything about that today," and "[w]e don't have any evidence of that," to which Griffin's appellate counsel responded, "I don't have that evidence, no." Later, Griffin's appellate counsel stated, "I don't think the prosecution should be switching positions between one defendant -- codefendant's culpability to obtain a conviction on the other one and then reverse it again when it's the next defendant's time for trial, and that would have plainly come out if he would have taken the stand." The last cited excerpt is a question by the prosecutor and Griffin's response, which appellate counsel commended to the trial judge as showing that in Dixon's trial the State characterized Griffin as less culpable than in his own trial. The trial judge asked Griffin's appellate counsel, "[I]s there anything that you wanted to submit in written form that you haven't already submitted either in the motion for remand or otherwise here today that you think I need to read before I can rule?" In response, Griffin's appellate counsel suggested that the trial judge read page 1890 of Dixon's trial transcript. At pages 1890-91 of Dixon's trial transcript, Griffin testified about when Hall and Hayes stayed at Donnie Wishon's house and Griffin left with Dixon. The prosecutor asked, "You were along for the ride?" Griffin answered, "I was ready to go. He asked me -- I was just -- I was ready to go and I was in the car, yeah."
Although the issue as framed on appeal was not clearly presented to the trial judge, the issue will be considered to the extent that it was brought to the trial judge's attention. The question would be whether trial counsel was ineffective in not introducing Griffin's testimony from Dixon's trial in Griffin's trial. The first part of the analysis is whether Griffin has established that trial counsel's performance was deficient, which requires a showing that counsel made errors so serious that his performance was less than that guaranteed by the Sixth Amendment. Such a serious error in this context would be trial counsel's failure to introduce clearly exculpatory testimony from Dixon's trial. What Griffin brought to the trial court's attention is that, in response to the question whether he was just along for the ride when he and Dixon left Wishon's residence, Griffin answered that he was ready to go. Griffin's readiness to accompany Dixon, who earlier had purchased a bucket of gasoline and spoken of burning and blowing up Alicia Shaw's apartment and had fired a number of shots at Griffin's friend's feet, indicates Griffin's readiness to associate himself with a person who intended to and did engage in criminal activity. It is not exculpatory, and trial counsel's failing to introduce it was not deficient in this regard.
(b) Griffin contends that trial counsel should have objected to and corrected misstatements of law made by the prosecutor in closing argument. Griffin refers the court to Issue 2 for the list of misstatements. As discussed in Issue 2, the prosecutor's statements that Griffin complained of were not misstatements of the law.
(c) Griffin contends that trial counsel should have more extensively cross-examined Agents Jimerson and Durastanti and Shameika Holmes. The State contends that the issue was not raised before the trial court. Griffin's response is obscure: "[M]ost of the points were clearly presented as to whether the prosecution's evidence on these points was relevant. In addition, in assessing ineffective assistance of counsel claims, this court reviews the entire record of the trial." It does not appear that the question of the cross-examination of the specified witnesses was raised for the trial court's consideration.
(d) Griffin complains that trial counsel did not object to Jimerson's and Wright's testimony about law enforcement officers' attempts to find Griffin during August 2001. They testified that, after Dixon was arrested, a warrant was issued for Griffin's arrest. They looked for Griffin at the Burger King where he had been employed and at the apartment of his girlfriend, Shameika Holmes, and they conducted surveillance of both places. They expected that Griffin would try to get his paycheck from Burger King. After Holmes picked up the check, the officers followed her to Griffin's aunt's house in Kansas City, Missouri. Griffin left the house and ran. Thirty to 45 minutes later, officers found him hiding under a bush in the 45-degree angle of a fence.
On appeal, Griffin admits that evidence of the foot cha