State v. Harris (updated January 6, 2012)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,613

STATE OF KANSAS,
Appellee,

v.

KATREAL M. HARRIS,
Appellant.


SYLLABUS BY THE COURT

1.
When requested, a district court has a duty to instruct the jury on any lesser
included offense established by the evidence, even if that evidence is weak or
inconclusive.

2.
There is no duty to instruct on a lesser included offense if the jury could not
reasonably convict the defendant of that lesser included offense based on the evidence
presented. The evidence in this case was insufficient to support an instruction on
voluntary manslaughter based on imperfect self-defense.

3.
When a defendant fails to request a lesser included offense instruction, an
appellate court reviews the argument that a lesser included offense instruction should
have been given under a clearly erroneous standard.


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4.
An instruction is clearly erroneous only if the appellate court reaches a firm
conviction that, had the instruction been given, there was a real possibility the jury would
have returned a different verdict.

5.
When reviewing a district court ruling on a motion to suppress a confession,
appellate courts review the ruling's factual underpinnings under a substantial competent
evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de
novo. The appellate court does not reweigh evidence, assess witness credibility, or
resolve conflicting evidence. Under the facts in this case, the district judge did not err in
ruling that defendant's confession was voluntary and admissible.

6.
K.S.A. 22-3423(1)(c) permits a trial court to declare a mistrial if there was
prejudicial contact inside or outside the courtroom that makes it impossible to proceed
without injustice to a defendant or the prosecution. To follow the statute, a district judge
must engage in a two-step analysis: (a) decide whether there was some fundamental
failure of the proceeding; and (b) if so, determine whether it is possible to continue
without an injustice. This second step requires assessing whether the damaging effect of
any prejudicial conduct can be removed or mitigated through jury admonition or
instruction or other accommodation. If that is not possible and the degree of prejudice
would result in an injustice, a mistrial is necessary.

7.
An appellate court reviews a trial court's decision denying a motion for mistrial
under an abuse of discretion standard. Judicial discretion is abused if judicial action (a) is
arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the
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viewed adopted by the trial court; (b) is based on an error of law, i.e., if the discretion is
guided by an erroneous legal conclusion; or (c) is based on an error of fact, i.e., if
substantial competent evidence does not support a factual finding on which a prerequisite
conclusion of law or the exercise of discretion is based.

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed February 3,
2012. Affirmed.

Christina M. Waugh, of Kansas Appellate Defender Office, argued the cause, and was on the
brief for appellant.

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Katreal Harris directly appeals his convictions of first-degree murder,
attempted second-degree murder, and criminal possession of a firearm. He claims the
district court erred by: (1) failing to instruct the jury on the lesser included offenses of
voluntary manslaughter and attempted voluntary manslaughter based on a theory of
imperfect self-defense; (2) denying his motion to suppress statements made to police; (3)
admitting the victim's pretrial identification of him; (4) denying his motion for mistrial
during jury selection; (5) imposing a hard 50 sentence without first submitting the
aggravating factors to a jury for proof beyond a reasonable doubt; and (6) including his
prior juvenile adjudication in his criminal history without a jury determination. We
affirm.



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FACTUAL AND PROCEDURAL BACKGROUND

Blake Overton and Christopher Sloan were shot at close range in a car at an
apartment complex parking lot while attempting to buy cocaine. Sloan died at the scene.
Overton was hospitalized with life-threatening injuries, but survived. Overton's injuries
prevented him from being interviewed by police for more than a week.

Police initially investigated by interviewing residents at the apartment complex.
After a few days, a community police officer received a phone call that the shooter was at
the complex. Officers responded and found a disturbance outside an apartment building
involving a number of people discussing the shootings. As an officer approached the
crowd, he noticed Harris walking from around the side of the building and appearing
nervous. Harris was identified by a person at the complex as a man possibly involved in
the shootings. Officers arrested Harris after learning he had an outstanding warrant for an
unrelated offense. They took him to the police station for questioning. Upon their arrival,
officers placed Harris in a locked interview room. Harris claims he was handcuffed or
shackled while in the room.

Harris was not immediately interviewed at the station because officers were
questioning a woman from the apartment complex who claimed to have information
about the shootings of Overton and Sloan. Officers left Harris alone for about 3 1/2
hours, checking on him from time to time, escorting him to the restroom if needed, and
providing him with water and a blanket after he complained he was cold.

When his questioning began, the initial portion of Harris' interview was not
recorded. We will describe the testimony regarding that in greater detail when relevant to
one of the claimed errors on appeal. But once the recording began, Harris was advised of
his Miranda rights, asked if he understood them, and acknowledged that he had been read
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those same rights at the beginning of the interview. Harris confirmed he had been treated
fairly up to that point and was not under the influence of alcohol or narcotics.

Harris then told detectives he was the shooter. He explained that a black BMW
pulled into the complex, and the two men inside told him to come to them. He said that
once he approached the vehicle, the occupants asked for someone named Trey. Harris
responded that he did not know anyone by that name, so he went and got Henry "Deon"
Sullivan. Harris and Sullivan then returned to the BMW, where Sullivan and the driver
soon exchanged angry words during an altercation. Harris recalled the driver saying,
"You not Trey," and Sullivan responding, "Fuck Trey." Harris said at that point he saw
the driver's hands go down between the seat consoles, so he reached into the car with a
gun and fired twice into the driver's neck. Harris said he paused, thinking "Oh my God, I
just killed somebody," and fired again at the passenger's head because the passenger said
"what the fuck," and Harris "didn't know what else to do." Harris said he used Sullivan's
.40 caliber Smith & Wesson handgun to shoot the men, which Harris said he had gotten
from Sullivan earlier in the evening.

A few minutes later, the detective again asked Harris whether he fired the shots,
and Harris responded affirmatively, adding that he believed he saw the driver reaching
for a gun. The detective asked whether Harris ever saw the gun he thought the driver was
reaching for. Harris said he saw only a handle but not the entire gun, and that he thought
the gun was black with a clip. Harris also said that prior to seeing the driver reach for
what Harris thought was a gun, the driver had scratched Sullivan on the arm during a
scuffle after what Harris believed was Sullivan's attempt to reach in and take the gun
away. Harris described the events as a "domino effect" because they happened quickly.

About 9 days after the shootings, Overton was interviewed at the hospital. He told
detectives that he and Sloan had driven to an apartment complex parking lot to buy
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cocaine from a man Sloan had referred to as "T" or Trey. Overton drove his family's
black BMW. Upon arriving, Overton said they asked a person standing outside for Trey.
That person offered to sell them drugs, but Overton declined because he and Sloan were
waiting for Trey. The person left, but then returned with another person. Overton
described the two men who approached the vehicle, but did not know either of them
before the shooting.

To see if Overton could identify the men involved with the shootings, detectives
provided him with two displays containing six photographs each. Overton was shown the
first, which placed Harris' photo in the first position next to five others the detectives later
described as being similar in appearance to Harris. Overton said he recognized Harris. A
second display with Sullivan's photograph in the first position, along with five others,
also was shown to Overton. Overton indicated he was drawn to Sullivan's picture, but
could not positively identify anyone from that document.

Harris was subsequently charged with first-degree murder, attempted first-degree
murder with an alternative charge of aggravated battery, and criminal possession of a
firearm. Sullivan was arrested a few days later.

At trial, Harris took the witness stand in his own defense and recanted his recorded
statements to police. He testified he drank alcohol, smoked marijuana, and did a "couple
lines" of coke the day he was arrested, but acknowledged he told police during his
interview that he had not taken drugs that day. Harris also testified that he changed his
story during the police interview because he was tired of sitting there and being told the
detectives did not believe him, and that he was afraid of a man named "G" or "George,"
and what "G" would do to him if he told the truth about the shootings. Harris said he lied
during the interview because he wanted to "preserve [his] life." He testified he never saw
a gun that night, and only told detectives that he had because it was what he heard.
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Sullivan also testified at Harris' trial. His account was that he and Harris saw the
BMW pull into the complex, but they were not at the scene when the shootings occurred.
Sullivan said he had gone to a nearby gas station and Harris was at a woman's apartment.

The jury convicted Harris of the first-degree murder of Sloan, attempted second-
degree murder of Overton, and criminal possession of a firearm. Harris was sentenced to
a hard 50 life sentence for first-degree murder, a consecutive 233-month sentence for
attempted first-degree murder, and 19 months to run concurrently for criminal possession
of a firearm. The State did not submit aggravating factors or Harris' juvenile record to the
jury for proof prior to sentencing. Other facts will be discussed in detail as applicable to
each issue raised on appeal. Our jurisdiction is proper under K.S.A. 22-3601(b)(1) (off-
grid crime; life sentence).

ANALYSIS

Failure to instruct on voluntary manslaughter

Harris argues the trial court should have instructed the jury on voluntary
manslaughter as a lesser included offense of first-degree murder for the passenger Sloan's
death. Defense counsel requested this instruction during trial.

Standard of Review

When requested, a district judge has a duty to instruct a jury on any lesser included
offense established by the evidence, regardless if that evidence is weak or inconclusive.
But there is no duty to instruct on a lesser included offense if the jury could not
reasonably convict the defendant of the lesser included offense based on the evidence
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presented. When reviewing a district judge's refusal to give a requested instruction, this
court must view the evidence in the light most favorable to the requesting party. State v.
Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008).

Discussion

Harris was charged with first-degree murder under K.S.A. 21-3401, which
prohibits the intentional and premeditated killing of a human being. Defense counsel
requested a voluntary manslaughter instruction under a theory of imperfect self-defense,
which is the "intentional killing of a human being committed . . . (b) upon an
unreasonable but honest belief that circumstances existed that justified deadly force under
K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." K.S.A. 21-3403.
Imperfect self-defense may trigger a lesser degree of homicide, but it is not a defense to
criminal liability. State v. Nelson, 291 Kan. 475, 481, 243 P.3d 343 (2010).

During the instructions conference, the State initially questioned whether its use of
Harris' recorded interview with police raised an imperfect self-defense issue that required
a lesser included manslaughter instruction. Ultimately, the State argued the instruction
was not warranted because at trial Harris retracted his previous statements. But defense
counsel asked for the lesser included voluntary manslaughter instruction, arguing the
imperfect self-defense issue was raised by the State's own evidence, which included the
recorded statements. Counsel cited other evidence that supported giving the instruction,
including testimony from the doctor who performed the autopsy who said he believed the
shots were fired close together and at close range.

This issue arises because the State introduced the recorded statement, which
contained Harris' admission that he shot both men because he believed Overton was
reaching for a gun. Harris testified his statements made during the recorded interview
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were just a series of lies he thought necessary at the time, but that he was telling the truth
at trial when he claimed he was somewhere else at the time of the shootings. Harris now
argues that if the jury believed the recorded interview, then it must accept his statements
in that same interview about how the shootings occurred.

The district court denied Harris' request, saying:

"Well, I see your point, [defense counsel], and it does raise it. If Mr. Harris had
chosen not to take the stand, then I think you would have a better argument, quite
frankly . . . .
". . . [W]hen Mr. Harris took the stand and basically said I lied, my whole
statement's a lie, that's basically what his testimony was, I didn't have anything to do with
this, all right? The State's argument's going to be well, his statement was true up to the
point where he says there was a gun and that's why I pulled it, so, you know, there's really
no basis, I don't think, to include the lesser included, particularly given that if the jury's
going to believe Mr. Harris' testimony here today, he doesn't have anything to do with
this, so in any event, I'm not going to instruct on that at this point."

This holding is problematic to the extent the district court concluded Harris was
not entitled to the voluntary manslaughter instruction based on his statements during the
recorded interview simply because he recanted his confession and contradicted it with his
own trial testimony. This court recently held a defendant was entitled to lesser included
offense instructions on second-degree unintentional murder and involuntary manslaughter
based in part on the defendant's recanted confessions. State v. Tahah, 293 Kan. 267, 272,
262 P.3d 1045 (2011). So when determining whether there was some evidence to
reasonably justify an imperfect self-defense theory for Sloan's killing, we must consider
whether Harris' recanted statements would support the lesser included offense instruction.
We find they do not.

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To warrant a voluntary manslaughter instruction in this instance, there needed to
be evidence showing Harris had an honest belief deadly force was necessary to defend
himself, but that belief was objectively unreasonable. Nelson, 291 Kan. at 481. But
viewing the recorded statement in the light most favorable to Harris does not support a
voluntary manslaughter instruction for Sloan's killing. Harris told police that he shot
Overton, the driver, because he thought Overton was reaching for a gun. But this does not
explain the killing of Sloan, the passenger. In fact, Harris stated in the interview that he
shot and killed Sloan because he "didn't know what else to do" after Sloan said "what the
fuck" in apparent surprise that Overton had just been shot.

These statements, if accepted as truthful by the jury, effectively insert a change of
purpose by Harris between shooting Overton under the mistaken belief that Overton was
reaching for a gun, and shooting and killing Sloan because Harris "didn't know what else
to do." And regardless of whether Harris changed his story at trial from what he said at
the police interview, neither his recorded interview nor his trial testimony leads to a
reasonable conclusion that he believed self-defense was necessary in shooting Sloan.

We also find no corroboration for the imperfect self-defense theory in the
pathology evidence Harris argues exists regarding the path of the bullet that struck
Sloan's chest. Harris claims the doctor performing Sloan's autopsy testified this bullet
first struck and passed through Overton's head, and then penetrated Sloan's chest. But the
record reflects that the doctor only testified that the bullet was irregularly shaped and did
not offer a conclusion about its path, whether it was the first bullet fired, or even whether
Sloan died from the bullet in his chest rather than the bullet that struck him in the head.
This limited testimony from the doctor is insufficient to support giving the requested
instruction.

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We hold the district court did not err in refusing to instruct the jury on voluntary
manslaughter.

Failure to instruct on attempted voluntary manslaughter

Harris next argues the trial court should have instructed the jury on attempted
voluntary manslaughter as a lesser included offense of attempted first-degree murder for
the shooting of Overton. In his appellate brief, Harris claims he requested this instruction,
and he predicates his arguments on that belief. But we find no evidence of such a request
in the record. The court asked about this at oral argument but was not referred to any
portion of the record that showed the instruction was requested.

Standard of Review

We review this argument under a more restrictive standard than the previous issue.
When a defendant fails to request a lesser included offense instruction, appellate courts
review an argument that an instruction should have been given under a clearly erroneous
standard. K.S.A. 22-3414(3). Failure to give the instruction is clearly erroneous "only if
the appellate court reaches a firm conviction that, had the instruction been given, there
was a real possibility the jury would have returned a different verdict." State v. Martinez,
288 Kan. 443, Syl. ¶ 10, 204 P.3d 601 (2009).

Discussion

Under appropriate facts, attempted voluntary manslaughter may be considered a
lesser included crime of attempted first-degree murder. State v. Dixon, 252 Kan. 39, 41-
42, 843 P.2d 182 (1992). Harris argues his recorded interview supplies facts supporting
such a lesser included crime instruction. And we acknowledge that the record reflects the
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vehicle's passenger compartment where the shootings took place was equipped with a
wooden gear shift and a black emergency brake, which Harris argues he could have
mistaken for a black gun with a clip. But even assuming for the sake of argument that the
district court should have given this instruction sua sponte based upon the interview
statements and the vehicle's interior, we are firmly convinced the instruction, if given,
would have made absolutely no difference in the trial's outcome.

Overton testified that Harris attempted to sell him drugs, asking numerous times
before saying, "I'll just shoot you in the head, then." Overton also said there was a scuffle
about money, and that Sullivan became agitated when the men asked for Trey. This
testimony, coupled with Harris' own trial testimony stating he lied when he told police
about acting in self-defense, prevents us from being firmly convinced there was a real
possibility the jury would have returned a different verdict for Overton's shooting if the
jury had been instructed on attempted voluntary manslaughter. Harris diminished the
credibility of his recorded statements by testifying at trial that they were a lie. In addition,
the surviving victim's testimony further disputes the accuracy of what Harris said in the
recorded interview. We find no error in the district court's failure to give this instruction.

Denial of Motion to Suppress Recorded Statements

Harris next argues his recorded confession should have been suppressed because
the conditions under which it was taken rendered it involuntary. Harris filed a motion to
suppress before trial, which was denied after an evidentiary hearing. He renewed his
objection at trial. On appeal, he advances multiple arguments supporting suppression.




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Standard of Review

In reviewing a trial court's decision regarding the suppression of a confession, an
appellate court reviews the factual underpinnings of the decision by a substantial
competent evidence standard and the ultimate legal conclusion by a de novo standard.
The appellate court does not reweigh the evidence, assess the credibility of the witnesses,
or resolve conflicting evidence. State v. Ransom, 288 Kan. 697, 705, 207 P.3d 208
(2009).

Discussion

The State has the burden of proving by a preponderance of the evidence that a
confession was voluntary, i.e., the statement was the product of the defendant's free and
independent will. A nonexclusive list of factors are considered based upon the totality of
the circumstances, including: (1) the defendant's mental condition; (2) the manner and
duration of the interrogation; (3) the defendant's ability to communicate with the outside
world; (4) the defendant's age, intellect, and background; (5) the fairness of the officers in
conducting the interrogation; and (6) the defendant's proficiency with the English
language. State v. McMullen, 290 Kan. 1, 4, 221 P.3d 92 (2009). We must begin by
examining what arguments were raised to the district court when it ruled on the
suppression motion.

In the pretrial motion to suppress the confession, Harris alleged the recorded
statements were involuntary under the totality of the circumstances because "Miranda
warnings were not given initially and should have been" and because he was intoxicated
at the time the statements were made. Harris abandoned his claim related to Miranda
warnings on appeal, but has greatly expanded the reasons he argues on appeal that the
confession was involuntary based on the factors recited in McMullen.
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We will address each of Harris' arguments individually and cumulatively. But our
standard of review is difficult to apply in this case because the district court did not make
specific factual findings related to the motion to suppress. It simply stated at the
conclusion of the suppression hearing that the motion was denied "[b]ased upon the
evidence presented and the motions as set forth by the parties." For an appellate court,
this degree of brevity makes it difficult to determine what the district court considered
when denying Harris' motion, such as the weight to be given the evidence or witness
credibility. But Harris has not objected to the trial court's lack of factual findings, so we
proceed directly to the legal conclusions attendant to each claim without addressing
whether the factual findings were supported by substantial competent evidence. State v.
Gaither, 283 Kan. 671, 686, 156 P.3d 602 (2007) ("When a party fails to object to the
lack of findings before the district court, an appellate court presumes that the district
court made the factual findings necessary to support its decision.").

Harris first argues that he was intoxicated at the time of his confession after having
consumed alcohol, marijuana, and cocaine earlier on the day of his recorded statements.
But his contention is contradicted by his recorded statements in which he told detectives
he was not under the influence of alcohol or drugs. And the interviewing detective
testified at the suppression hearing and at trial that Harris did not exhibit symptoms of
intoxication, demonstrating no slurred speech, difficulty communicating, or blurry or
bloodshot eyes. In addition, the recorded statements supply no clues that Harris was
impaired or failed to comprehend the questions or his circumstances.

The only evidence in the record of Harris' consumption is his own testimony at
trial in which he said he was lying at the time of the interview. In State v. Hernandez, 292
Kan. 598, 607, 257 P.3d 767 (2011), we recently stated: "This court will not infer
impairment based on evidence of consumption alone." In this case, even if we accept the
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latter version of Harris' testimony when he claims he consumed alcohol and drugs, we are
left with other evidence contradicting that testimony, including other statements by the
defendant. We find no basis to conclude from this that Harris' recorded statement was
involuntary.

As to Harris' complaint about the length of his detention, we hold that it does not
support a finding that his statement was involuntary. Harris was arrested at the apartment
complex and waited in a patrol car until police verified there was an outstanding arrest
warrant for him on an unrelated charge before taking him to the station for questioning
about the shootings. When he arrived, Harris waited in an interrogation room for a little
over 3 hours while the woman from the disturbance was being interviewed. But once his
questioning began, it lasted only about 90 minutes. The officer testified that Harris was
tended to and offered water, a restroom, and a blanket. Under these conditions, the
interview and accompanying circumstances do not seem excessive. See State v. Brown,
285 Kan. 261, 271-78, 173 P.3d 612 (2007) (confession voluntary even though defendant
handcuffed to a small table in interrogation room for 12 hours); State v. Walker, 283 Kan.
587, 596-97, 153 P.3d 1257 (2007) (statements voluntary where defendant held for
almost 13 hours and confessed to committing crime after about 8 hours); State v.
Grissom, 251 Kan. 851, 919-20, 840 P.2d 1142 (1992) (confession voluntary where
defendant handcuffed the entire time during an 8-hour interview, with breaks for meal
time and restroom).

Harris next complains about his inability to communicate with others while at the
police station. But this court has previously held that refusal to permit a defendant to
contact others while being interviewed is not per se coercion, saying: "While isolation
from the outside world can be a factor in making an interrogation coercive, it is to be
expected that police will take steps to limit the ability of potential witnesses and suspects
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to communicate and, potentially, conspire during an investigation." Walker, 283 Kan. at
598.

Prior to Harris' interview, the detectives were meeting with a potential material
witness, who provided information material to the shooting investigation and, more
particularly, implicated Harris. So the reason for the apparent delay in beginning his
interview has justification. In addition, the record reflects Harris was advised several
times, beginning with his initial contact with police, of his Miranda rights, which
included his right to contact an attorney. Harris acknowledged those rights each time.
There is no claim that Harris requested an attorney and was denied one. Also, the record
provides no signs of physical or psychological coercion, other than Harris' claim that
temporary restraints and confinement were used in the interview room, which were
attendant circumstances to the police investigation. But if Harris had been free to walk
around the police station, he might have been able to make contact with the witness or
someone else, or even escape. Most importantly, however, Harris does not actually argue
that he made any requests to contact others that were denied by police. He simply
complains that he was never told that if he wanted he could contact someone. We see
nothing in the record that made Harris' claimed inability to communicate coercive.

Harris next argues he was only 18 years old at the time of the interview and that
his "tender age" cuts against the voluntariness of his statements. But the record reflects
that Harris had his GED and that detectives had Harris read his Miranda rights back to
them to determine that he could read. Detectives also discussed with him the meaning of
the word "coercion" to ensure he understood what this term in the Miranda warnings
meant. We find no evidence here to show that Harris' age or education affected his ability
to interact with detectives or to answer or refuse to answer questions. See Ransom, 288
Kan. at 706.

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Harris next claims that the manner in which detectives interrogated him was not
fair because a detective lied to him about finding his fingerprints on the BMW. But this
court has held that "[d]eceptive interrogation techniques alone do not establish coercion."
State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005). And we have also held a
confession voluntary even when officers lied to the defendant during an interview. See,
e.g., State v. Ackward, 281 Kan. 2, 10, 128 P.3d 382 (2006) (confession voluntary even
when defendant falsely told surveillance camera recorded him just prior to the shooting,
that gunshot residue analysis would determine if he held a gun within the past 48 hours,
and that multiple eyewitnesses were at the scene); State v. Wakefield, 267 Kan. 116, 128,
977 P.2d 941 (1999) (statement not involuntary where defendant falsely told that officers
had information and evidence implicating him in murder, including finding his
fingerprints). We find nothing coercive about the police statements in this case.

Harris next claims it was unfair to leave him in a cold room wearing only his shoes
and shorts for almost 4 hours without telling him why he was detained. But a detective
testified at the suppression hearing that he provided a blanket to Harris while he waited to
be interviewed. He also was checked on periodically to see if he needed water or an
escort to the restroom. We find these factors do not suggest his statements were
involuntary.

Finally, we note there is one argument Harris makes that at first glance would
appear to have some merit. He claims his statement was not voluntary because he was in
custody—either in shackles or handcuffs—before his questioning began. And his
testimony about this claim was not contradicted by the State's evidence during the
suppression hearing, although we note it was disputed at trial when a detective testified
Harris was neither shackled nor handcuffed. This testimony occurred before Harris
renewed his objection to the admission of his interview statements.

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We must first consider whether the initial determination from the suppression
hearing may be upheld based upon the uncontradicted testimony Harris gave. The crux of
the argument is that by being in handcuffs and shackles, he was in custody during the
time leading up to the confession and that his confession was involuntary because he did
not feel free to leave. But while there was no conflicting evidence at the suppression
hearing about whether Harris was handcuffed or shackled, there was testimony Harris
was restrained by being placed in a locked room guarded by officers from the outside,
and that he was not free to leave. Therefore, the trial court did have to consider testimony
that Harris was not free to leave, which is the heart of Harris' argument. Our court has
held that a defendant being handcuffed or shackled during an interview does not alone
make a statement involuntary. See, e.g., Brown, 285 Kan. at 271-78 (confession
voluntary even though defendant handcuffed to a small table in interrogation room);
Grissom, 251 Kan. at 919-20 (confession voluntary where defendant handcuffed during
entire 8-hour interview). We note further that at the beginning of Harris' recorded
statement, Harris said he had been treated fairly by the investigating officers. So despite
the conflicting evidence regarding restraints at trial, and assuming Harris was in fact
handcuffed or shackled during his interview as he claimed at the suppression hearing, we
hold that Harris' statements were not the result of coercion.

In summary, the essential inquiry as to whether Harris voluntarily made the
incriminating statements heard in his recorded interview with police is whether they were
the product of his free and independent will. Ackward, 281 Kan. 2, Syl. ¶ 2. Based upon
the totality of circumstances, we hold that Harris' statements were voluntary. The district
court did not err in finding the same.




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Overton's pretrial identification of Harris

Overton identified Harris from a photo lineup shown to him at the hospital while
he recovered from his gunshot wounds. At trial, both the lineup display and Overton's
identification of Harris from it were admitted into evidence. On appeal, Harris argues the
district court erred in admitting Overton's pretrial identification of him as the shooter,
claiming the identification was unreliable due to the dark conditions when the crime
occurred and the construction of the photo display.

But we must first determine whether Harris' challenge was preserved. In his
appellate brief, Harris treats the issue as if an objection was made to both the photo
lineup exhibit and Overton's pretrial identification of Harris as the shooter. Harris then
argues that the trial court erred in admitting Overton's identification of him as the shooter.
The State argues this issue was not preserved because at trial Harris only objected to
admission of the photo lineup as an exhibit, which was well after Overton's testimony
identifying Harris.

The record supports the State's version as to how the district court proceedings
unfolded. Harris' trial counsel made a single objection just as the photo display was
offered into evidence, which was during the testimony of a detective. The stated basis for
the objection was that the photo lineup was overly suggestive because Overton had no
prior knowledge of Harris and because it was dark outside at the time of the shootings, so
Overton could not have gotten a good look at the shooter. But this all happened after
Overton had testified about his pretrial identification at the hospital of Harris as the
person who shot him and Sloan.

The State correctly argues that the issue Harris seeks to advance in this appeal—
the reliability of Overton's identification—was not preserved. By the time the objection
20



was made, Overton had already testified about how he identified Harris from a photo
lineup at the hospital. Any challenge to the reliability of Overton's identification needed
to be made contemporaneously with his testimony. See K.S.A. 60-404. And Harris
appears to acknowledge the preservation problem, because he argues this court may still
reach the issue under one of the recognized exceptions from our prior caselaw.

But this court has recently emphasized the importance of lodging specific
objections to evidence at trial and disapproved any past loosening of the K.S.A. 60-404
requirement of specific and timely objections. See State v. King, 288 Kan. 333, 348-49,
204 P.3d 585 (2009) ("Although our past decisions may have relaxed the objection
requirement in the evidentiary context, this practice not only has led to confusion as to
the standards that should be applied on appeal, but also has deemphasized the role of
counsel at trial and has impaired the gatekeeping function of district courts in this
state.").We hold that the challenge to Overton's pretrial identification of Harris is not
preserved for appeal.

Denial of Motion for Mistrial

Harris next contends the district court erred in denying his motion for mistrial after
a prospective juror stated he could not be fair and impartial, and incorrectly stated his
understanding of a stipulation that Harris was not permitted to possess a firearm.

Standard of Review

Under K.S.A. 22-3423(1)(c) a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
creates a two-step process. First, the trial court must determine if there was some
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fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging effect can be removed or
mitigated by an admonition, jury instruction, or other action. If not, the trial court must
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011); see State v. Race, 293
Kan. 69, 80, 259 P.3d 707 (2011).

Appellate courts review a district court's ruling on a motion for mistrial for an
abuse of discretion. Judicial discretion is abused if

"judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; (2) is based on an error of law, i.e.,
if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of
fact, i.e., if substantial competent evidence does not support a factual finding on which a
prerequisite conclusion of law or the exercise of discretion is based." Ward, 292 Kan. at
550.

In Ward, our court articulated this standard by dividing the appellate court's abuse of
discretion inquiry into two parts, asking: (1) Did the trial court abuse its discretion when
deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court
abuse its discretion when deciding whether the conduct resulted in prejudice that could
not be cured or mitigated through jury admonition or instruction, resulting in an injustice?
292 Kan. at 551.

The analysis of the first question varies with the nature of the alleged misconduct,
such as when the allegation is based on the actions of a witness, the actions of a
bystander, prosecutorial misconduct, or evidentiary error. 292 Kan. at 551. Appellate
courts reviewing the second part for an injustice may take a broader view than the trial
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court because appellate courts may examine the entire record. The degree of certainty
required to conclude an injustice did not occur varies depending on whether the
fundamental failure infringes on a constitutional right or not. To declare a
nonconstitutional error harmless the appellate court must apply K.S.A. 60-261 and
K.S.A. 60-2105 to determine if there was a reasonable probability that the error affected
the trial's outcome. And if the fundamental failure infringes on a right guaranteed by the
United States Constitution, the appellate court applies the constitutional harmless error
analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705,
reh. denied 386 U.S. 987 (1967). Ward, 292 Kan. at 569.

Discussion

At trial, the State asked during voir dire whether any potential jurors had
experience in analyzing fingerprints. One juror, referred to by the parties as Juror #47,
replied he had taken fingerprints for "KCKPD" and had also worked for the Bureau of
Alcohol, Tobacco, and Firearms. When asked whether he could be fair and impartial, the
juror replied, "Truthfully, the third charge you read, criminal possession of a firearm,
that's stuff that I investigate. I do not think I could be fair and impartial." He went on to
say, "Basically from what I've understood and the charges you read, I think both parties
had agreed to criminal possession of a firearm. Felon in possession of a firearm, in the
Federal statute." He stated again he could not be fair and impartial. The State then asked
to remove the juror for cause, and defense counsel said, "Judge, we don't have—" before
the State interrupted and asked to approach the bench. At the bench, the parties discussed
whether the panel was prejudiced by the prospective juror's statements and whether to
clear up the misunderstanding to the entire panel. Harris said he would ask for a mistrial.
The State argued the prejudice did not rise to a level warranting a mistrial. The district
court quickly denied Harris' motion.

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The transcript excerpt was read back at the parties' request at the bench. The court
then openly clarified to the juror in front of the remaining panel that there was no
stipulation as to Harris' guilt on the firearm count, only a stipulation to one of the
elements, and that the State still had to prove all elements in order to obtain a guilty
verdict on that count.

Even with this explanation, Juror #47 acknowledged he would have a problem
remaining fair and impartial. The court then asked the juror to approach the bench to
clear up his reservations about serving. At the bench the juror seemed unclear about what
the stipulation was, saying he thought it meant the parties agreed that Harris had a gun.
The court corrected him by saying the stipulation was that Harris' status prohibited him
from having a gun, not that he actually had one. The juror replied that even if he were
instructed otherwise, he would draw inferences from that stipulation. After that exchange,
Juror #47 was released from the jury panel. After the verdict, Harris filed a motion for
new trial based on the remaining jury panel's exposure to what had happened in the
process of excluding Juror #47. The court denied the motion.

In our review of the record, the substantive portion of the discussion concerning
possession of the gun occurred in detail at the sidebar and outside the jury panel's
hearing, so the only substantive issue is whether there was prejudice when Juror #47
consistently said he could not be fair and impartial. This court has previously held that a
juror expressing strong feelings of partiality in front of the jury panel does not warrant a
mistrial in the absence of a showing of substantial prejudice. State v. McCorgary, 224
Kan. 677, 687, 585 P.2d 1024 (1978).

Similarly in this case, there is no showing of prejudice. In fact, Harris does not
argue that Juror #47 did prejudice the jury. In his brief, he says the juror's credentials
coupled with his statements "was likely to prejudice the jury." But in the absence of any
24



showing of substantial prejudice, we find the trial court did not abuse its discretion in
declining to grant Harris a mistrial. The court's explanation to the jury panel that the
parties stipulated to only one of multiple elements, coupled with the absence of any
indication of prejudice to the defendant, convinces us this argument is without merit.

Aggravating factors to impose hard 50 sentence

Harris next argues the hard 50 scheme is unconstitutional because it imposes
additional punishment based on factors not submitted to the jury, and asks this court to
revisit its decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532
U.S. 932 (2001), which affirmed the hard 50 scheme. This court has previously declined
to revisit or overrule Conley, and has also affirmed a defendant's hard 50 sentence despite
the claim that the sentencing scheme violated the defendant's Sixth and Fourteenth
Amendment rights. See State v. Washington, 280 Kan. 565, 574, 123 P.3d 1265 (2005),
cert. denied ___ U.S. ___, 166 L. Ed. 2d 408 (2006) (hard 50 sentence upheld after
defendant convicted of first-degree murder argued Apprendi required aggravating factors
to be submitted to the jury and asked the court to overrule Conley).

Similar rejections to challenges to the hard 50 sentencing scheme, as well as
declined invitations to revisit Conley, are found in State v. Foster, 290 Kan. 696, 699,
233 P.3d 265 (2010); State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006); State
v. Oliver, 280 Kan. 681, 707-08, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183
(2006); State v. James, 279 Kan. 354, 358, 109 P.3d 1171 (2005); State v. Buehler-May,
279 Kan. 371, 386, 110 P.3d 425, cert. denied 546 U.S. 980 (2005); State v. Robertson,
279 Kan. 291, 308, 109 P.3d 1174 (2005); State v. Hurt, 278 Kan. 676, 686-88, 101 P.3d
1249 (2004); State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v.
Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004); and State v. Douglas, 274 Kan. 96,
111-12, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003). Harris provides no
25



additional authority or facts not already included in these previous decisions that would
warrant reconsideration of the issue.

Proof of Prior Juvenile Convictions

Harris argues that because he did not have a right to a jury trial when he obtained
the juvenile charges that were used in sentencing, the prior juvenile adjudications must
have been pleaded in the charging document and proven to a jury beyond a reasonable
doubt because they were facts increasing the penalty for a crime beyond the prescribed
statutory maximum. This exact argument was considered and denied by this court in State
v. Fischer, 288 Kan. 470, 472-76, 203 P.3d 1269 (2009) (juvenile adjudications final on
June 20, 2008, the date this court filed In re L.M., 286 Kan. 460, 186 P.3d 164 [2008]),
which permits juvenile jury trials, may be included in an offender's criminal history
score); State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104
(2003) ("Juvenile adjudications need not be charged in an indictment or proven to a jury
beyond a reasonable doubt before they can be used in calculating a defendant's criminal
history score under the KSGA."). Harris' presentence investigation report indicates he had
three felony convictions on his juvenile record—two from 2004 and one from 2006. The
convictions occurred before the L.M. decision, and he was not entitled to have those
convictions referred to a jury prior to sentencing. Harris provides no additional authority
or facts not already included in these previous decisions that would warrant reconsidering
the issue.

Affirmed.