IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,256
STATE OF KANSAS,
Appellee,
v.
JASON COLE HUGHES,
Appellant.
SYLLABUS OF THE COURT
1. When hearsay statements are testimonial, they may be admitted in accordance with the Sixth Amendment Confrontation Clause only if the declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant.
2. Whether a defendant's Sixth Amendment right to confrontation has been violated is a question of law subject to de novo review.
3. Testimonial statements include statements made under circumstances that would lead an objective witness to reasonably believe that the statements would be available for use at a later trial.
4. A violation of the Sixth Amendment Confrontation Clause is subject to harmless-error analysis. Error is harmless if this court can conclude beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial.
5. Under the facts of this case, a codefendant's out-of-court statements to cellmates were not of a testimonial nature.
6. When a codefendant's out-of-court statements are not of a testimonial nature, they may be introduced as evidence without violating the Sixth Amendment Confrontation Clause.
7. Generally, a trial court's determination of whether a statement is admissible under the Kansas hearsay statutes is reviewed by this court for an abuse of discretion, which includes a determination that the trial court's discretion was exercised in light of a correct understanding of the applicable law.
8. If a reasonable person in a witness' position would have understood that admissions of criminal conduct could be used against him or her, those admissions qualify as an exception to the hearsay rule under K.S.A. 60-460(j).
9. In considering a challenge to the admission of evidence, the court must first determine whether the evidence is relevant. Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish.
10. Res gestae is no longer a valid basis for independently admitting evidence.
11. Before the district court may admit evidence of another crime or civil wrong, it must determine whether the evidence is relevant to prove a disputed material fact and whether the probative value outweighs the prejudicial effect.
12. Motive and intent are not identical. The State may nevertheless admit evidence of motive to explain why the defendant may have committed the crime or crimes at issue even though motive is not an element of the offense.
13. Providing a motive for committing a crime may help establish a material or logical connection to the inference that a defendant participated in the crime.
14. Depending on the facts of the case, evidence of drug usage may help establish a motive for committing a crime.
15. A party must make a timely and specific objection in order to preserve for appeal an issue relating to the admissibility of evidence.
16. Behavioral profile evidence relating to the conduct of drug users as a class is not admissible to imply guilt by showing that the defendant falls within the profile and therefore has a propensity to commit certain crimes.
17. The appellate courts will not reverse a conviction based in part on the erroneous admission of expert testimony if that testimony did not affect the defendant's substantial rights.
18. When a defendant has previously provided immunized testimony, the State has the burden of proving it had a legitimate, independent source for the disputed evidence. The burden of proof on the State is an affirmative duty to prove that the evidence it plans to use is derived from "a legitimate source wholly independent of the compelled testimony." Kastigar v. United States, 406 U.S. 441, 460, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972).
19. When asked to review the violation of a defendant's Fifth Amendment right against self-incrimination, this court reviews the district court's factual findings using a substantial competent evidence standard, but the ultimate legal conclusion is reviewed as a question of law using an unlimited standard of review.
20. Use immunity prohibits the prosecutorial authorities from using compelled testimony in any respect.
21. At a Kastigar hearing, the State must demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony, and the district court must make specific findings on the independent nature of the proposed evidence.
Appeal from Lyon district court; MERLIN G. WHEELER, judge. Judgment of the district court is reversed and remanded with directions. Opinion filed August 22, 2008.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for the appellant.
Amy L. Aranda, assistant county attorney, argued the cause, and Mark Goodman, county attorney, and Paul J. Morrison, attorney general, were on the brief for the appellee.
The opinion of the court was delivered by
ROSEN, J.: Jason Cole Hughes appeals his convictions for felony murder and aggravated burglary. Hughes contends the district court erroneously admitted evidence in violation of his constitutional rights and the rules of evidence. This court concludes that prejudicial error occurred in the course of the trial, and the case is remanded for retrial.
Hughes and Marcy Carapezza were charged as codefendants with the homicide of Mary Clark. They were tried separately, and both were convicted and have appealed their convictions. Because the facts are the same for both cases, we are not repeating all the facts in this opinion. For a detailed statement of the facts, see the companion case of State v. Carapezza, No. 95,233, this day decided.
Clark was murdered in May 2004. In July 2004, Hughes testified before an inquisition into Clark's death under a grant of immunity. He was later arrested and charged with first-degree premeditated murder or, in the alternative, felony murder; aggravated burglary; aggravated robbery; and misdemeanor theft. The State presented a theory that Hughes and his codefendants robbed and killed Clark to fuel their crack cocaine addictions. With no physical evidence connecting Hughes with the crime scene, the State relied on testimony from Mollie Paico, one of Hughes' codefendants. Paico testified that she had seen Hughes standing over Clark with a hammer. The State also presented testimony from two of Carapezza's cellmates, revealing that Carapezza admitted to participating in Clark's robbery and murder. The State presented additional testimony from several of Hughes' associates in the crack community, who testified about Hughes', Carapezza's, and Paico's use of crack cocaine. In order to establish drug use as the motive for Clark's murder, the State presented testimony from Dr. Eljorn Don Nelson, an expert on drug addiction, regarding the use of crack cocaine, the effects of using crack cocaine, and the behaviors associated with addiction to crack cocaine.
Although the jury found Hughes guilty of felony murder and aggravated burglary, it acquitted him of aggravated robbery and misdemeanor theft. The district court sentenced Hughes to serve life in prison for felony murder and 32 months for aggravated burglary. The district court ordered the aggravated burglary sentence to run consecutive to Hughes' life sentence. Hughes now appeals his convictions directly to this court pursuant to K.S.A. 22-3601(b)(1).
ANALYSIS
Hearsay Statements
Hughes asserts that the district court violated his Sixth Amendment right to confrontation by admitting Carapezza's hearsay statements she made to police officers and her cellmates. The State subpoenaed Carapezza to testify at Hughes' trial after she was convicted of felony murder, aggravated burglary, aggravated robbery, and theft in Clark's death. Carapezza appeared at trial outside the presence of the jury and invoked her Fifth Amendment right to remain silent. In response, the State gave her use and derivative-use immunity, and the district court ordered Carapezza to testify. Carapezza still refused to testify, and the district court found her in direct contempt and ordered her to remain in the Lyon County jail until she testified or until the end of her life. She continued her refusal to testify until the jury had begun its deliberations, when she informed jail staff that she was willing to testify. Carapezza then told Hughes' counsel that her testimony would aid Hughes. Upon receiving that information, the State withdrew its grant of immunity, and the district court withdrew both the order to testify and the contempt citation. Hughes' counsel was given an opportunity to interview Carapezza regarding her possible testimony but apparently elected not to call Carapezza as a witness. The State likewise elected not to reopen its case to include Carapezza's testimony.
The Sixth Amendment Confrontation Clause requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." When hearsay statements are testimonial, they may be admitted in accordance with the Confrontation Clause only if the declarant was unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 59, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004); State v. Henderson, 284 Kan. 267, 277, 160 P.3d 776 (2007). Whether a defendant's Sixth Amendment right to confrontation has been violated is a question of law subject to de novo review. 284 Kan. at 276.
Hughes contends that Carapezza's statements to police officers and her cellmates were testimonial. The Crawford court defined testimonial statements to include "'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' [Citation omitted.]" Crawford, 541 U.S. at 52. Statements made by a witness to a police officer during an interview conducted as part of an investigation are testimonial. State v. Lackey, 280 Kan. 190, 201, 120 P.3d 332 (2005), cert. denied 547 U .S. 1056 (2006). We have not, however, determined whether a codefendant's confession to a cellmate or another accomplice is testimonial in nature.
Statements to police officers
Hughes first argues that the district court erred when it allowed Detective Schondelmaier to testify regarding statements that Carapezza made during an interview with him. Hughes specifically objects to the following portion of Detective Schondelmaier's testimony:
"Q. [County Attorney:] Was that interview that you conducted, was that relative to the checks that had been discovered with her name as the payee?
"A. [Det. Schondelmaier:] Yes, the checks on Mary Clark's account.
"Q. During that interview were you able to determine who she lived with?
"A. Who Marcy Carapezza lived with?
"Q. Yes, sir.
"A. Yes, at that time she said - - she identified her boyfriend as being Jason Connor. I later found out that it was Jason Hughes.
"Q. And was the content of that interview relative to those bad checks?
"A. Primarily.
"Q. Did you speak with her at all concerning her knowledge of a Mollie Paico?
"A. Yes.
"Q. Did you question her as to whether she knew the whereabouts of Ms. Paico?
"A. Yes, I did.
"Q. Were you able to determine from that conversation where Ms Paico was?
"Q. I believed that she was in Wichita."
Hughes correctly asserts and the State concedes that Carapezza's statements to Detective Schondelmaier were testimonial and admitted in violation of his Sixth Amendment right to confrontation. Such a violation is subject to a constitutional harmless error analysis, however, which requires us to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. Henderson, 284 Kan. at 294. In this case, the admission of the preceding statements did not affect any material issues. Hughes argues that the statements "were critical connecting pieces for the State's case against [Hughes]." This argument overstates, however, the importance of the limited testimony given. A substantial amount of testimony linked Paico, Carapezza, and Hughes. We therefore conclude beyond a reasonable doubt that the erroneous admission of these statements had little, if any, likelihood of changing the result of Hughes' trial.
Statements to others
Hughes relies on dicta from Crawford for his assertion that jailhouse confessions are testimonial. The Crawford Court referred to the trial of Sir Walter Raleigh as a notorious example of convicting a defendant without allowing the defendant to confront the witnesses against him. Sir Walter Raleigh's alleged accomplice had implicated Raleigh during an examination by the Privy Council and in a letter. The Crawford Court criticized the trial, stating that it "has long been thought a paradigmatic confrontation violation." 541 U.S. at 52. Hughes takes this quotation from Crawford and applies it out of context to an accomplice's confession. The accomplice confession at issue in Sir Walter Raleigh's trial was directly to the Privy Council, rather than indirectly through a jail cellmate.
Hughes also cites Lily v. Virginia, 527 U.S. 116, 144 L. Ed. 2d 117, 119 S. Ct. 1887 (1999) (involving the admission of an accomplice's statements to police); White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992) (involving the admission of a child victim's statements through various witnesses); and California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970) (involving the admission of an accomplice's statements to police). All of these cases were decided before Crawford and none of them are factually on point. We consequently do not find them helpful in analyzing this issue.
Hughes additionally cites State v. Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006), State v. Calliham, 55 P.3d 573 (Utah 2002), and Commonwealth v. Robins, 571 Pa. 248, 812 A.2d 514 (2002). Mechling involves the admission of a victim's statements to law enforcement officers and a neighbor. The Mechling court held that the victim's statements to law enforcement officers were testimonial, and their admission violated the defendant's right to confrontation. However, the Mechling court did not specifically rule that the victim's statements to a neighbor were testimonial. The Mechling court instead left it to the parties on remand to develop a thorough record of the circumstances of the statements. The Mechling court held that the victim's statements to the neighbor could be testimonial if it was related to what happened and the statements had occurred after a significant lapse of time. 219 W. Va. at 323-24. Mechling thus provides no authority for determining whether statements to people other than police officers are testimonial, and the case is not helpful in analyzing the issue before us. Calliham is likewise not helpful, because it involved an issue arising from Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), rather than an analysis of whether statements to cellmates are testimonial.
The only case factually similar to the present case is Robins. It involved a codefendant's confession to a cellmate, which implicated the defendant by association. The trial court admitted the cellmate's testimony regarding the codefendant's confession but excluded portions of the statement that referred either specifically or by implication to the defendant. 571 Pa. at 518. Analyzing the issue under Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the Robins court held that the cellmate's testimony had been erroneously admitted, because an admission against penal interest was not a firmly rooted hearsay exception and the confession did not bear sufficient indicia of reliability. 571 Pa. at 266, 270. However, the Robins court did not address the Crawford analysis and did not consider whether the codefendant's confession to a cellmate was testimonial.
Although we have never addressed whether a statement to a cellmate or another accomplice is testimonial, we have held that statements made by a defendant's new girlfriend to the defendant's old girlfriend were not testimonial. See State v. Miller, 284 Kan. 682, 713, 163 P.3d 267 (2007). In Miller, the State sought to admit the new girlfriend's statements that she loved the defendant and the defendant loved her to prove that the defendant lived a double life by maintaining a relationship with two women. The Miller court considered whether the statements were made "'under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" 284 Kan. at 713 (quoting Crawford, 541 U.S. at 52).
In State v. Garcia, 282 Kan. 252, 255, 144 P.3d 684 (2006), one of the defendant's associates kissed another associate on the forehead, stating that he "was part of the family now." The comment occurred immediately after the associate had witnessed the defendant kill someone. The defendant asserted that the admission of the statement violated his right to confront the declarant. This court concluded, however, that one accomplice's statement to another accomplice was not testimonial because it was made in "the absence of any governmental or law enforcement authority and in a nonofficial setting." 282 Kan. at 268.
Considering the test applied in Miller and the examples set forth in Miller and Garcia, we conclude that the statements Carapezza made to her cellmates were not testimonial. We likewise conclude that the statements Carapezza made to Paico while they were in Clark's house were not testimonial. Because the statements were not testimonial, we find Hughes' confrontation claim under Crawford unpersuasive.
In the alternative, Hughes argues that Carapezza's statements were not properly admitted pursuant to K.S.A. 60-460. "'A trial court's determination of whether a statement is admissible under the Kansas hearsay statutes is reviewed by this court for an abuse of discretion, which includes a determination that the trial court's discretion was exercised in light of a correct understanding of the applicable law.'" Miller, 284 Kan. at 712 (quoting State v. Davis, 283 Kan. 569, 575, 158 P.3d 317 [2007]).
Hughes asserts that the statements made to Carapezza's cellmates were not properly admitted under K.S.A. 60-460(j) because the statements were not against Carapezza's interest. K.S.A. 60-460(j) provides:
"Declarations against interest. Subject to the limitations of exception (f) [confessions by the accused], a statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true."
Carapezza's statements to her cellmates were made while she was in jail awaiting trial on charges related to the incident to which she confessed. A reasonable person in Carapezza's position would have understood that such statements could be used against her. It therefore sufficiently subjected Carapezza to criminal liability to qualify as an exception to the hearsay rule under K.S.A. 60-460(j), and the district court did not abuse its discretion by admitting Carapezza's jailhouse confessions as declarations against interest.
Hughes further argues that Carapezza's statements made to Paico while they were in Clark's house were not properly admitted pursuant to K.S.A. 60-460(d), which provides:
"Contemporaneous statements and statements admissible on grounds of necessity generally. A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort."
Hughes raises two objections to the admission of Carapezza's statements under K.S.A. 60-460(d). First, he argues that Carapezza was not describing contemporaneous events, because she was describing events that occurred prior to Paico's arrival at Clark's house. Second, Hughes argues that Carapezza was unavailable.
In State v. Bryant, 272 Kan. 1204, 1206-07, 38 P.3d 661 (2002), the State admitted evidence that a codefendant's wife overheard her husband ask the defendant why did he "kill those guys." The Bryant court held that the codefendant's statements were admissible because of the codefendant's emotional state and the close time frame after the triple homicide was committed.
Bryant supports the district court's decision in this case. Paico testified there was chaos in Clark's house after she arrived. Carapezza was physically struggling with Clark, who was screaming and trying to get away, and everyone was yelling and screaming at one another. In addition, Paico testified that Carapezza was crying. Under these facts, it is clear that Carapezza, like the codefendant in Bryant, was under the nervous stress and excitement caused by the ongoing aggravated robbery at Clark's house. K.S.A. 60-460(d)(2) does not require that the declarant be unavailable. It does not matter whether Carapezza was available as a witness; because Carapezza's statements to Paico while they were in Clark's house qualify as excited utterances, the district court did not abuse its discretion by admitting them.
Drug use as res gestae
Hughes argues that the district court erroneously admitted evidence of his drug use and addiction. The district court admitted the evidence as res gestae, stating that it was part of an "overall scheme to obtain money for drugs."
The first step in considering a challenge to the admission of evidence is to determine whether the evidence is relevant. State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006). All relevant evidence is admissible unless prohibited by statute. K.S.A. 60-407(f). Relevant evidence is any "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). Relevance is established by a material or logical connection between the asserted facts and the inference or result they are intended to establish. 282 Kan. at 47.
After relevance is established, the second step requires the application of the statutory rules governing the admission and exclusion of evidence. These rules are applied either as a matter of law or in the exercise of the district court's discretion, depending on the rule in question. Gunby did not establish our standard of review for analyzing relevance–in particular, the probative element–of certain K.S.A. 60-455 evidence. As set forth in our recent decision in State v. Reid, 286 Kan. , Syl. ¶ 5, 186 P.3d 713 (2008), we concluded that our standard of review of "the probative element" of 60-455 evidence is abuse of discretion. In Reid, we clarified the analytical steps to be taken when considering 60-455 evidence and our standard of review applicable to each step.
"[T]he K.S.A. 60-455 analysis requires several steps. . . . [t]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in." Slip op. at 14.
Res gestae is no longer accepted as a valid basis for independently admitting evidence. 282 Kan. at 63. The district court in the present case thus erroneously admitted the evidence of Hughes' drug usage and addiction as res gestae without applying the analysis required by K.S.A. 60-455.
K.S.A. 60-455 provides:
"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."
Before the district court can admit evidence of another crime or civil wrong, it must determine whether the evidence is relevant to prove a disputed material fact and whether the probative value outweighs the prejudicial effect. 282 Kan. at 48, 57. The State argues that evidence of drug usage and addiction was relevant to establish motive. "Motive is the moving power which impels one to action for a definite result . . . . Motive is that which incites or stimulates a person to do an action." State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 (1992) (quoting State v. Ruebke, 240 Kan. 493, 502, 731 P.2d 842, cert. denied 483 U.S. 1024 [1987]). According to the State's theory, Hughes, Paico, Carapezza, and Bennett robbed Clark so they could fuel their addictions to crack cocaine.
Hughes argues to the contrary that the evidence was not relevant to establish a motive for the burglary and robbery because the motive is inherent in the commission of those crimes. Hughes reasons that the motive was obviously financial gain, and it was irrelevant how the money would be used. In essence, Hughes argues that a secondary motive is irrelevant when the primary motive is obvious.
This is an issue of first impression in Kansas. Although intent is an element of aggravated burglary and aggravated robbery, motive is not an element. Motive and intent are not the same thing. The State may nevertheless admit evidence of motive to explain why the defendant may have committed the crime or crimes at issue even though motive is not an element of the offense. Ruebke, 240 Kan. at 502-03 (allowing the admission of other-crimes evidence to explain that defendant committed murder to prevent witnesses from identifying him and causing his probation to be revoked). See also Jordan, 250 Kan. at 191 (admitting evidence of a prior crime to establish the defendant's motive for going to the apartment where he later committed murder). But see State v. Tolson, 274 Kan. 558, 565, 56 P.3d 279 (2002) (admitting evidence that the defendant previously possessed drugs and guns to show knowledge and intent but concluding the evidence was not admissible to show motive because it did not imply the defendant would use the gun to cause trouble).
The evidence of Hughes' drug use is probative of the motive for robbing Clark. Hughes denied the allegations, testifying that he did not know Clark and had never been to her house. Providing a motive for Hughes' involvement establishes a material or logical connection to the inference that Hughes participated in the crime. The evidence was therefore relevant to establish motive, regardless of whether it was the primary motive - money - or the secondary motive - buying drugs.
Several other courts have allowed evidence of drug usage or addiction to establish motive. See, e.g., United States v. Cody, 498 F.3d 582, 590-91 (6th Cir. 2007) (admitting testimony from the defendant's wife and son regarding the family's drug use to establish the defendant's motive for robbing a bank); State v. Armstrong, 176 Ariz. 470, 473, 862 P.2d 230 (1993) (admitting a taped statement with defendant's admission to prior drug transactions because it was relevant to defendant's motive to traffic in stolen property); Craft v. Stratton, 2007 WL 3144855 at *11-12 (N.D. Cal. 2007) (unpublished opinion) (admitting evidence of defendant's drug use to establish defendant's motive for robbing and killing victim); State v Jarrett, 137 N.C. App. 256, 261, 527 S.E.2d 693 (2000) (allowing prosecutor to characterize defendant as a "crack head" because prosecutor was free to argue defendant had robbed and shot the victim to obtain money for drugs); People v. Wood, 245 App. Div. 2d 200, 666 N.Y.S.2d 599 (1997) (admitting testimony of defendant's drug addiction to establish defendant's motive for robbing his mother and the mother's reason for testifying against her son); Washington v. State, 2007 WL 1412903 at *3 (Tex. App. 2007) (unpublished opinion) (admitting evidence that defendant traded a stolen van for crack cocaine because it made the fact or consequence that defendant committed aggravated robbery more probable by providing motive). But see State v. Boman, 123 Idaho 947, 950-51, 854 P.2d 290 (Idaho App. 1993) (holding that bare allegation that defendant's drug addiction was relevant to prove motive was nothing more than speculation, but affirming defendant's conviction because the error in admitting the evidence was harmless). Here, the trial court did not abuse its discretion in finding that Hughes' drug use was relevant.
After determining relevance, we must consider whether the probative value of the evidence outweighed its prejudicial effect. Gunby, 282 Kan. at 48, 57. This part of the evidentiary analysis is also reviewed for abuse of discretion. Reid, 286 Kan. , Syl. ¶ 8; Garcia, 285 Kan. at 18 (citing State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 [2004]). The burden of proof is on the party al