IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,447
STATE OF KANSAS,
Appellee,
v.
FAYVUN MANNING,
Appellant.
SYLLABUS BY THE COURT
1. The determination of whether a witness is hostile is within the discretion of the trial court and is based upon the demeanor of the witness, the witness' situation and relationship to and with the parties, the witness' interest in the case, and the inducements he or she may have for withholding the truth.
2. A defendant charged with a crime is entitled to a right of confrontation. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him or her. A similar provision in § 10 of the Kansas Constitution Bill of Rights provides that in all prosecutions the accused shall be allowed to meet the witnesses face to face.
3. Where a party has been entrapped or deceived by an artful or hostile witness, he or she may examine such witness as to whether the witness had not previously made contrary statements and may, in the discretion of the court, be permitted to show what the contrary statements were. K.S.A. 60-422 grants impeachment privileges to a party calling the witness. The mere fact that a witness has failed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what the witness was expected to testify, but the testimony given must be affirmative, contradictory, and adverse to the party calling him.
4. The purpose of the voir dire examination is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court.
5. A juror may be challenged for cause when the juror's state of mind with reference to the case or any of the parties is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. K.S.A. 22-3410(2)(i). The trial judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned. Challenges for cause, therefore, are reviewed on appeal under an abuse of discretion standard of review.
6. The failure to excuse a juror for cause does not constitute a ground for reversal unless the defendant was prejudiced. We have consistently held that a trial court's discretion on removing a juror for cause is not an issue and that there is no reversible error where a trial court refuses to excuse a juror for cause and one of the parties subsequently removes the juror using one of its peremptory challenges.
7. Peremptory challenges are a creature of statute and are not required by the Constitution. It is for the legislature to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the right to peremptory challenges is denied or impaired only if the defendant does not receive that which state law provides.
8. No federal constitutional rights are implicated by the forced use of peremptory challenges.
9. A trial court should terminate the trial and grant a mistrial if prejudicial conduct makes it impossible to proceed without injustice to the defendant. A decision on a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.
10. Prosecutorial misconduct requires a finding that the actions of the prosecutor constitute plain error in the event there is no objection. The actions of the prosecutor must be so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
11. A prosecuting attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he or she is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He or she mayindeed, shouldprosecute with earnestness and vigor. But, while he or she may strike hard blows, he or she is not at liberty to strike foul ones. It is as much his or her duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
12. Questions by a prosecutor which compel a defendant or witness to comment on the credibility of another witness are improper. It is the province of the jury to weigh the credibility of the witnesses.
Appeal from Wyandotte district court; JOHN J. BUKATY, JR., judge. Opinion filed March 9, 2001. Affirmed.
Craig H. Durham, assistant appellant defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.
Terra D. Morehead, assistant district attorney, argued the cause, and Daniel Cahill, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the appellant, Fayvun Manning, of his convictions by a jury of one count of first-degree felony murder and one count of aggravated robbery. The victim, Beverly Chatmon, was shot on December 26, 1997, as she was tending the cash register at a liquor store in Kansas City, Kansas. She died as a result of the gunshot wound.
Leroy Bartlett, Chatmon's husband, owned the liquor store and a party shop in Kansas City, Kansas. The two stores are in the same building but are separated by a wall. The only connection between the stores is a small glass window in the wall. It is difficult to communicate through the window because it does not open and the view of each store through the window is opaque.
Kwaine Young, Chatmon's young adult son, was working in the party shop on December 26, 1997, while his mother was tending the cash register in the liquor store. Late in the afternoon, he heard a loud noise coming from the liquor store. Young looked out of a window in the party shop after he heard the noise and saw a black man, about 6'1" and 180 pounds, walking by the window fairly quickly. The man was wearing a blue sweatshirt with something covering his head, such as a hood or a beanie. He was also carrying a small box that looked like a milk crate. Young admitted that he did not get a good look at the man and he never identified him.
After hearing the loud noise, Young went to the small window that separates the two stores. He could not see his mother, so he called for her, thinking that she had knocked something over, but he received no response. Young decided to check on her. As he was leaving the party shop side of the building, he noticed a "70s style," blue van with a "teardrop" window drive away.
Before it pulled away, the van had been parked some distance behind Alfred Anderson's car. Anderson, a regular customer at the liquor store, had just been inside to buy a can of beer and to visit with Chatmon. He had just returned to his vehicle when he noticed a young black man go into the liquor store. The man was about 5'9" to 5'10" tall, wearing dark clothing, with a hood over his head. He was walking in a casual manner with his back to Anderson.
Anderson soon noticed the man reappear from the liquor store, walking as casually as before to a dark van parked over 100 feet behind him. The man got into the van and it pulled away. The driver did not appear to be in a hurry, and the van left without squealing tires or speeding away.
After the van pulled away, Young rushed out of the liquor store yelling something that Anderson did not understand. He followed Young inside and saw Chatmon lying on the floor bleeding from the left side of her jaw. Chatmon had been shot. She later died of complications from the gunshot wound. Several items were missing from the liquor store, including cash, some papers, a strongbox, and a milk crate.
The State's theory that Manning shot Chatmon was based largely upon the testimony of Arlandar McAbee and Lisa McKenzie, who had waited in the getaway van but denied having prior knowledge there would be a robbery or murder. They both testified that Manning was the triggerman. Manning defended on the theory that he was not present during the shooting and that the individuals who testified against him were not credible because they were heavy drug users who were involved in the criminal activity themselves.
MCABEE'S TESTIMONY
On the same day as the shooting, McAbee stopped at a friend's house acting panicky and nervous. McAbee is a crack cocaine addict, a burglar, and a thief who has been in and out of jail. On the day of the robbery and shooting, McAbee had been smoking crack cocaine consistently. McAbee told his friend that he was involved in the shooting at the liquor store, and the friend claimed that McAbee said that he thought some of his "partners" shot people in the store. McAbee also sold some liquor from the liquor store to his friend while he was at his house and used the proceeds to buy more crack.
The police arrested McAbee that next day. He was taken to the police station where he waived his Miranda rights and gave the police a statement because he was worried that if he did not he would be implicated in the crime. McAbee claimed that he, McKenzie, and Williams were in Williams' van smoking crack on December 26, 1997. They went to a house in Kansas City, Kansas, at McKenzie's suggestion, so that they could get more crack "on credit" from a man she knew. McKenzie went into the house and returned, telling her friends that the man was willing to give them a $20 rock on credit if they would give him a ride to the liquor store. They agreed. McAbee claimed that the man was Manning.
The four then proceeded to Bartlett's liquor store. According to McAbee, Manning told Williams to get him a 40-ounce beer from the store. Williams got out of the van and disappeared in the store. When he came back, Manning got out of the van and he and Williams passed each other immediately outside of the van. The next thing McAbee remembered is that Manning returned to the van carrying a milk crate that contained bottles of alcohol, a box, and some other items. McAbee testified that Manning pulled a gun, placed it to McKenzie's head, and said to her "bitch, drive" and that he would "blow her fuckin' head off" if she did not drive him back to his house. She drove him back to his house where he departed with the milk crate, leaving behind some bottles of liquor. Those were the bottles that McAbee sold for more crack.
MCKENZIE'S TESTIMONY
The police also brought McKenzie in for questioning and took her statement. She also testified at trial. According to McKenzie, she, McAbee, and Williams were "hanging out" in Williams' van on the day of the shooting. McKenzie, like McAbee, is a crack cocaine user and a street person. McKenzie testified that when they picked Manning up from his house, she noticed that he had a gun but she did not worry about it because everybody she knew carried a gun.
Once they arrived at the liquor store, Williams got out of the van and went into the store to get a beer. McKenzie claimed that Manning got out of the van and passed Williams at the entrance of the liquor store. She testified that Williams exclaimed, "The MF is doing it," as he got into the van. She claimed that it was then, and only then, that it dawned on her that this might be a robbery. McAbee, on the other hand, did not remember anyone saying anything specific during the time that Manning was in the store.
In McKenzie's testimony, Manning returned to the van carrying a milk crate with a cash register drawer on top. McKenzie's testimony, however, differed from McAbee's testimony in that she could not recall Manning pointing a gun to her head, telling her to drive or he would "blow her fucking head off." McKenzie claimed that while in the van Williams asked Manning if he hurt the woman in the liquor store and, after Manning said no, Williams asked him to swear to it. McKenzie claimed that Manning hesitated and then said that "she was going to call the police." McKenzie dropped Manning off at his home. She took $10 from him and left with Williams and McAbee.
Williams was not located for trial and did not testify.
CANADY'S TESTIMONY
Angela Canady, Manning's mother, also became involved in this case. Like the other witnesses upon which this case is based, Canady is a drug and alcohol abuser who often lives on the streets. At the time of the robbery and shooting, Canady and her son were arguing constantly and because she was smoking "wet" (which is some substance dipped in morphine) and other drugs, she was "paralyzed" much of the time.
Canady called the police soon after the robbery and shooting. She told them that the shooter was Manning. The police took a formal statement from her in which she stated that Manning returned to his house on the day of the shooting in an older model cream or brown van carrying a red crate with a number of items contained within, including cash, jewelry, liquor, and a silver handgun in a Crown Royal bag. Canady said Manning dumped the items on the floor and that she noticed some papers and car titles with the name "Leroy Barnett" on them. Canady also claimed to overhear Manning tell a few people that he "hit a liquor store on 7th street" and that he had to kill the woman because he thought she was going for the alarm. She claimed that Manning or someone later took some of the papers and tried to burn them in a Chinese wok.
Based upon Canady's statements, the police received and executed a search warrant of the house. Inside they found various items that were identified as coming from Bartlett's liquor store and that some of the papers had been partially burned.
At trial, Canady was a recalcitrant witness. She repeatedly stated that she did not remember, or did not know, most of the substance of her formal police statement or most of what occurred on the day of the shooting. She testified that she was afraid of Manning at the time; that they had been arguing and fighting constantly; and that she called the police because she believed somebody was trying to kill her son. The State was permitted to treat Canady as a hostile witness and cross-examine her using her pretrial statement, over defense counsel's objection. The statement was also introduced through a police detective's testimony and as an exhibit.
MANNING'S TESTIMONY
Manning testified at trial in his own defense as follows:
On the day of the shooting, Manning was at his house with a few other people, including his ex-girlfriend and his cousin. Manning was not well acquainted with McKenzie, Williams, or McAbee when they came to his house that day. Manning admitted that he sold crack cocaine to supplement his income and that he believed these individuals came by his house to purchase some crack. Manning told them that he did not have any, so they offered to sell him a milk crate full of various items. After haggling over the price, Manning gave them $30. McKenzie, Williams, and McAbee left, returned a short time later, and demanded another $20. Manning refused, but admitted that he "ripped these people off" for the additional $20.
When he brought the milk crate into his house, he discovered that it contained various paper items, some coins in a cash register drawer, and liquor bottles. He denied that he burned any of the items, instead insisting that it was his mother who placed them on a dryer in a utility room and burned them. He also claimed that he and his mother had a history of arguments and fights; that she was a chronic drug abuser; and that he did not do the things that she attributed to him in her statement. He testified that he did not leave the house to go to the Bartlett liquor store on December 26, 1997, and that he did not rob the store or shoot Chatmon. His ex-girlfriend and his cousin also testified that he did not leave the house that day.
The jury ultimately convicted Manning of one count of first-degree felony murder and one count of aggravated robbery. The trial court sentenced him to life without the possibility of parole for 15 years for the felony murder and 51 months for the aggravated robbery, to run consecutive to the life sentence.
Manning raises four issues on appeal: (1) whether the trial court erred when it declared Canady a hostile witness and allowed the State to examine her regarding her statement she made to the police; (2) whether the trial court erred when it refused to excuse a juror for cause and forced Manning to use a peremptory challenge; (3) whether the trial court erred when it refused to grant a mistrial following a police officer's testimony; and (4) whether the State improperly cross-examined Manning by asking him to comment on the veracity of the State's witnesses.
I. DECLARATION OF HOSTILE WITNESS
Manning argues that the trial court erred when it declared Canady a hostile witness and allowed the State to examine her regarding the statement she gave to the police even though she claimed no recollection of the statement during trial.
The determination of whether a witness is hostile is within the discretion of the trial court and is based upon the demeanor of the witness, the witness' situation and relationship to and with the parties, the witness' interest in the case, and the inducements he or she may have for withholding the truth. State v. Hobson, 234 Kan. 133, 147, 671 P.2d 1365 (1983).
Canady initially gave police a statement that Manning was involved in the robbery of the liquor store and that she overheard him tell a friend that he had shot the clerk because she was going to call the police. Canady also told officers that she had seen him come home with a milk crate full of items such as papers, money, and liquor bottles. Her information was instrumental in obtaining a search warrant for the home.
At trial, however, Canady was less than helpful to the State. Her answers were evasive and she responded over and over again that she did not remember about the events that occurred the day of the shooting. The State was eventually permitted to treat Canady as a hostile witness and to cross-examine her. Specifically, the trial court stated:
"All right, I think it's obvious to me at this point this witness is an adverse witness, and I'm going to allow you to ask the witness questions up to this point. I do think you had established that. From what I heard, she is obviously reluctant to testify. She doesn't like you. She's hostile. And I don't know if she likes [counsel for defendant] or not.
. . . .
"[S]he hasn't refused to answer. She obviously is very hostile, she is veryin her own words, she said she is reluctant to say anything. I believe that it is quite incredible that she can't remember anything that happened this particular date, and I believe at this time that to establish the fact that she is a hostile witness now, when you are asking the same questions, don't argue with her. You can ask her, did you say this or whatever, but let's move on."
Manning objected to the ruling of the trial court. Manning argued then and contends now that Canady did not remember the events which occurred the day of the shooting, nor does she have any memory of her meeting with officers. Manning argues that because Canady was not able to remember the events, the State should not have been able to declare her a "hostile" witness and subsequently introduce into evidence statements she made to officers which she can no longer remember. During examination by the State, the following took place concerning Canady's statements she made to the police and the events the day of the shooting:
"Q. Now, when we left here, Angela, we were talking about when [Manning] and the boys went in the bathroom, you went over to be nosey, didn't you; isn't that what you said, you went over there to be nosey?
"A. (No response.)
"Q. Is that a yes or no?
"A. I have no idea.
"Q. And then you heard [Manning] tell one of the boys that was there, that he had hit a liquor store on 7th Street; didn't you?
"A. I don't remember saying that.
"Q. I'm not asking you if you remember saying that. I'm asking you if you remember hearing it.
"A. No.
"Q. Do you remember hearing [Manning] say that?
"A. No.
"Q. Did you hear [Manning] say that?
"A. I don't remember hearing it.
"Q. Do you recall your hearing it?
"A. I don't remember it.
"Q. You recall this day perfectly well?
"A. Who?
"Q. This day for thethat we have been talking about for the last hour or so?
"A. This day?
"Q. The day that we have been talking about, the day that [Manning] came home with the tin box and milk crate full of liquor, that day?
"A. Oh, okay.
"Q. You remember that day, don't you, because you had been talking about it?
"A. I remember some things on that day, yes, I do.
"Q. And you talked to the detective about that day? You remember what you said, you remember talking to Detective Shomin?
"A. Yeah, I remember talking to him. I remember walking up in the office, I do remember.
"Q. You remember the day you talked to Detective Shomin perfectly well?
"A. No, I don't. I really don't.
. . . .
"Q. So you heard [Manning] say that he hit that liquor store?
"A. I don't know what I heard anybody say.
"Q. Did you hear him say he had the boy in the van [go in] first?
"A. Did I hear who said?
"Q. [Manning] say that?
"A. I don't know. I don't know.
"Q. Did you hear him say that he went in behind him?
"A. I don't know.
. . . .
"Q. You heard [Manning] say he was telling these boys what he had done, and you heard him say he called the lady a name . . . and he told her to hold her hands up. You heard him say that?
"A. He told who to hold her hands up?
"Q. We're talking about this conversation that you listened to in the bedroom when [Manning] was talking to these boys?
"A. I don't remember even hearing a conversation now.
. . . .
"Q. You heard [Manning] tell these boys that he told the lady you be quiet, don't you say nothing.
"A. I don't remember saying that.
"Q. Okay, and you heard him say as he was going out the door with a gun on the dude, the man in front, but that he looked back and it looked like she pushed the alarm, so he said he had to kill her. You heard [Manning] say that?
"A. I don't remember saying all that. Where are you seeing this?
"Q. Page 7 at the very top of it, where you told the detective what you heard. (Indicating.)
"Q. You got that whole paragraph? Did you read it?
"A. Yeap, yeah, I read it.
"Q. You didn't say that?
"A. I don't recall saying that. It really don't sound right.
"Q. Why doesn't it sound right?
"A. Like it just don't sound like something I'd say, or it doesn't sound like something I heard rather.
"Q. So you didn't hear [Manning] say those things?
"A. I don't know.
"Q. What do you mean you don't know?
"A. I just don't remember if I heard [Manning] say this stuff or not. I mean, look at all this stuff.
"Q. Do you remember [Manning] saying that he killed somebody?
"A. No, uh-uh.
. . . .
"Q. Did you say that [Manning] shot this lady?
"A. Did Idid I say that?
"Q. Yes.
"A. No, I couldn't have said that.
"Q. Later, the question was: [Manning] saidto which they say you answered: He said: I had to shoot. [Manning] said, I had to shoot her. He didn't say that either?
"A. I don't remember him sayin' that.
"Q. Do you remember telling the detective that?
"A. I don't remember it at all, you're the first one hearing it. I mean, it's wrote down on here.
"Q. Are you telling me ma'am, that it's possible?
"A. I'm telling you I don't know.
"Q. Is itare you telling it's possible that your son came home with all this loot, the liquor, both milk crates, tin boxes, things like that, and you remember that because you talked about that earlier?
"A. I remember liquor.
"Q. You talked about the strong box, you remember that?
"A. What's a strong box? No.
"Q. You remember at the time, a metal box was dumped out on the floor?
"A. No, this is what I told you, I remember seeing money on the floor, a lot of money on the floor, coins."
A defendant charged with a crime is entitled to a right of confrontation. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him or her. A similar provision in § 10 of the Kansas Constitution Bill of Rights provides that in all prosecutions the accused shall be allowed to meet the witnesses face to face. State v. Terry, 202 Kan. 599, 601, 451 P.2d 211 (1969).
K.S.A. 2000 Supp. 60-460 governs out-of-court statements and the hearsay rule. It sets forth in pertinent part:
"Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and is inadmissible except:
(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness."
K.S.A. 2000 Supp. 60-243(b) governs the scope of examination and cross-examination and sets forth:
"A party may interrogate any unwilling or hostile witness by leading questions. A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate such witness by leading questions and contradict such witness and impeach such witness in all respects as if such witness had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of such witness' examination in chief."
Where a party has been entrapped or deceived by an artful or hostile witness, he or she may examine such witness as to whether the witness had not previously made contrary statements, and may, in the discretion of the court, be permitted to show what the contrary statements were. K.S.A. 60-422 grants impeachment privileges to a party calling the witness. The mere fact that a witness has failed to testify as expected does not warrant impeachment by proof of prior statements in conformity with what the witness was expected to testify, but the testimony given must be affirmative, contradictory, and adverse to the party calling the witness. State v. Potts, 205 Kan. 47, 51-52, 468 P.2d 78 (1970).
The parties cite several cases in support of their position. A brief review is necessary. Manning cites State v. Lomax & Williams, 227 Kan. 651, 608 P.2d 959 (1980). In Lomax & Williams, the appellants argued on appeal that their Sixth Amendment right to confront the witnesses against them was violated when the State presented testimony of Mary Ellen Bagby which was previously given under oath at a preliminary hearing for another defendant. Bagby testified at the preliminary hearing that she was present at the time of the robbery of which the defendants were accused and identified the defendants as the perpetrators of the robbery. At trial, however, Bagby stated that she was not going to testify because she could not remember anything that had happened on that day. The prosecutor asked the court to declare Bagby a hostile witness and to be allowed to ask her leading questions. Over objections of the defendants, the court ruled that the prosecutor could cross-examine Bagby on her prior inconsistent statements if it appeared during her testimony that she was a hostile witness. When Bagby took the stand to testify, she was evasive concerning the events on the day of the robbery. Bagby responded to each and every question by either saying that she did not remember or could not recall the events on the day in question. When Bagby was examined by defense attorneys, she also stated that she could not remember what had happened. This court held that the trial court erred in allowing the State to question Bagby with the use of her previous preliminary hearing testimony and that it was error to declare her a hostile witness. We stated:
"The record reflects that Bagby's memory was adequate as to other events but she claimed a complete loss of memory as to the identification of the three defendants and the happenings that occurred on December 9 at Leon Smith's residence. . . .
. . . .
"[E]vidence of prior hearsay statements cannot be used to impeach a witness who simply refuses to testify or testifies that he cannot remember anything. . . .
"[W]here a prosecution witness refuses to take an oath or refuses to give testimony of any sort or responds with