IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 89,481
STATE OF KANSAS,
Appellee,
v.
TYLER BLOCK PATTON,
Appellant.
SYLLABUS BY THE COURT
1. Under our state and federal constitutions, a defendant is entitled to present the theory of his or her defense. The defendant's fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded. However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.
2. An appellate court's first consideration when examining a challenge to a district court's admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question.
3. Generally, all relevant evidence is admissible. Relevant evidence is defined as evidence having any tendency in reason to prove any material fact. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. Beyond relevance, an appellate court's standard of review regarding a trial court's admission or exclusion of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable.
4. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge or indicated the substance of the expected evidence by questions indicating the desired answers.
5. An out-of-court declaration by a third party to a police officer which is offered at trial merely to explain the officer's conduct in the investigation of a crime, although hearsay, is usually admissible because it is not offered for the truth of the matter stated. However, when such declaration also directly incriminates the defendant, it is inadmissible unless it falls within one or more of the hearsay exceptions of K.S.A. 2004 Supp. 60-460.
6. The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the potential jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.
7. Whether a prima facie showing of a racially based strike of a potential juror has been made is a question of law subject to plenary review. The trial court decision about whether the State acted with discriminatory purpose, however, is subject to an abuse of discretion standard of review.
8. Body language is a race-neutral reason to strike a potential juror. Likewise, if the potential juror who is being struck in fact has difficulty with English, the justification is a race-neutral reason.
9. If the defendant or the trial court do not correct errors in statements of fact presented by the prosecutor as reasons for exercising a peremptory challenge, these facts will be considered as true for purposes of determining whether the prosecutor set forth a race-neutral reason for the strike.
10. The second step of the Batson analysis does not require an explanation that is persuasive, only one that is facially valid, because that is not where the validity of the strike is considered. It is not until the third step that the persuasiveness of the justification becomes relevant, and implausible or fantastic justifications may be found to be pretexts for purposeful discrimination.
11. Under the facts of this case, a potential juror who displayed nervous mannerisms, mistakenly approached the court reporter, had difficulty communicating, had very accented speech, and could not be understood by a prosecutor presented sufficient race-neutral reasons under Batson to justify a peremptory strike, and the trial court did not abuse its discretion in making that determination.
12. An appellate court's first consideration when examining a challenge to a district court's admission of evidence is relevance. Once relevance is established, the admissibility of marital discord evidence in marital homicide cases properly rests in the sound discretion of the trial court.
13. Evidence of a discordant marital relationship is generally admissible to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the witnesses as to the act charged. As a general rule in a case of marital homicide, evidence of a discordant marital relationship and of the defendant's previous ill-treatment of the spouse is relevant as bearing on the defendant's motive and intent. Evidence of prior discord between a defendant and a victim does not have to rise to a violent level to be admissible.
14. Three requirements must be satisfied for the admission of evidence under K.S.A. 60-455. First, the evidence must be relevant to prove one of the facts specified in the statute. Second, the fact must be a disputed, material fact. Third, the probative value of the evidence must outweigh its potential prejudice. If these requirements are met, the scope of appellate review is limited to whether the trial court abused its discretion.
15. The admission or exclusion of relevant evidence in a criminal case is governed by two rules, the harmless error rule and the federal constitutional error rule. K.S.A. 60-261 sets out the harmless error rule. Error in the admission or exclusion of evidence by the court is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. At every stage of the proceeding, the court must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties. When reviewing the erroneous admission or exclusion of evidence, the error is harmless if no substantial right of the defendant is involved.
16. Error in the admission or exclusion of evidence in violation of a constitutional or statutory right of a party is governed by the federal constitutional error rule. An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that the error is harmless. Before an appellate court may declare such an error harmless, the court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Where the evidence of guilt is of such direct and overwhelming nature that it can be said that evidence erroneously admitted or excluded in violation of a constitutional or statutory right could not have affected the result of the trial, such admission or exclusion is harmless.
17. The admissibility of expert testimony is subject to K.S.A. 60-456(b), but the Frye test acts as a qualification to the K.S.A. 60-456(b) statutory standard. Frye is applied in circumstances where a new or experimental scientific technique is employed by an expert witness. Frye requires that before expert scientific opinion may be received into evidence, the basis of the opinion must be shown to be generally accepted as reliable within the expert's particular scientific field.
18. The Frye test does not apply to pure opinion testimony, which is an expert opinion developed from inductive reasoning based on the expert's own experiences, observations, or research. The validity of pure opinion is tested by cross-examination of the witness. The distinction between pure opinion testimony and testimony based on a scientific method or procedure is rooted in a concept that seeks to limit application of the Frye test to situations where there is the greatest potential for juror confusion.
19. The distinction between pure opinion testimony and testimony relying on scientific technique promotes the right to a jury trial. Judges generally are not trained in scientific fields and, like jurors, are lay persons concerning science. A Kansas jury has a constitutional mandate to decide conflicting facts, including conflicting opinions of causation. Cross-examination, the submission of contrary evidence, and the use of appropriate jury instructions form the preferred method of resolving factual disputes. The trial judge under K.S.A. 60-456(b) may exclude expert opinion evidence that would unduly prejudice or mislead a jury or confuse the question for resolution.
20. The determination of whether the Frye test was correctly applied at trial is subject to de novo review.
21. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. The mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict or judgment.
22. When considering an allegation of judicial misconduct where a construction can properly and reasonably be given to a remark which will render it unobjectionable, the remark will not be regarded as prejudicial.
23. A witness' credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness' past conduct.
24. A nonexpert witness may testify to his or her opinions or inferences that the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony. If the witness is testifying as an expert, his or her opinions and inferences are limited to those the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience, or training possessed by the witness.
25. A defendant may not object to the introduction of evidence on one ground at trial and then assert a different objection on appeal.
26. Testimony as to whether a cut appears to be fresh or healed is something that a nonexpert witness who observed the wounds could describe since the determination of whether a cut appears to be fresh or healed is not highly technical.
27. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found based on cumulative error if the evidence is overwhelming against the defendant.
Appeal from Johnson district court, JAMES FRANKLIN DAVIS, judge. Opinion filed September 30, 2005. Affirmed.
Bob L. Thomas, of Thomas & Associates, LLC, of Olathe, argued the cause and was on the brief for appellant.
Richard G. Guinn, assistant district attorney, argued the cause, and Steven J. Obermeier, assistant district attorney, Paul J. Morrison, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Defendant Tyler Block Patton appeals her jury trial conviction of first-degree murder in violation of K.S.A. 21-3401(a) and her sentence of life imprisonment with the possibility of parole after 25 years directly to this court pursuant to K.S.A. 22-3601(b)(1). She raises nine issues on appeal. Our review of each issue establishes that no reversible error occurred during trial or sentencing. We therefore affirm her conviction and sentence.
On January 16, 2001, at 9:31 p.m., the Overland Park Police Department responded to a 911 call made by the defendant. She was inside her vehicle across the street from the residence she had shared with her husband, Ed Patton, Jr. She told officers that her husband had been sick with the flu and had wanted her to stay elsewhere. She stopped by the residence and entered through the garage, noticing debris and drawers thrown around and items scattered in the stairway. As she started up the stairs she heard a noise which scared her so she ran outside and called the police.
The responding officers entered the residence through the unlocked front door and noticed debris scattered throughout the house. Ed Patton's body was discovered in an upstairs bedroom which was filled with the odor of a decaying body. He was lying on his back in bed with a blanket up to his neck, and his arms were down to his sides. A second blood-soaked blanket was placed over his head, the headboard was splattered with blood, and a piece of his skull was lying up against the blanket. The victim's face was so bloody and swollen that it was unidentifiable.
Dr. Michel Handler conducted the autopsy and testified that the victim had been struck at least eight times in the face and skull and did not have any defensive injuries on his hands and arms to indicate that he was awake during the attack. Four small pieces of dark wood were found in his hair and face, which were later identified as part of a bloody 2-by-4 piece of wood found on the back porch of the residence. He ruled the cause of death a homicide and opined that the victim had been dead for at least 48 hours prior to discovery. Pathologist Dr. Thomas Bennett reviewed the autopsy report, photographs, interviews, and investigative reports and opined that the victim died either the late evening of January 14 or the early morning hours of January 15, 2001.
Marijuana and drug paraphernalia were found in the basement of the home. Evidence technician Andy Black opined that the extent of drugs discovered was consistent with personal use rather than someone involved in the sale of drugs. Officers discovered a pill bottle in back of the residence near a gate containing six different types of medication and three empty pill bottles inside the residence in the trash.
The defendant was interviewed by Detective Bobby Jo Hohnholt on January 17, 2001. The detective testified over objection that the defendant had recent cuts on her hands during this interview. Initially, the defendant told the detective that she cut herself while sanding cabinets but later said the cuts were from razor blades during a failed suicide attempt. At trial, the defendant said the cuts were from razors and screwdrivers she used while remodeling cabinets.
During this interview, the defendant characterized her relationship in a positive manner, indicating that the victim was the best man ever, that he had her on a pedestal, that she received anything she wanted, and that their marriage only got better over time. However, a January 2, 2001, tape-recorded argument between the defendant and the victim was discovered in the residence that indicated otherwise.
During the recorded argument, the victim indicated he thought the defendant wanted to commit suicide, and the defendant then said that she did not love him and wanted to end the relationship, that she was unhappy with their current residence and the amount of money the victim made, and that she planned to immediately move to a second home they had recently purchased. At trial, the defendant claimed for the first time that this fight was precipitated by her observing the victim using cocaine and that the tape recording was turned on well into the fight. The defendant moved to the new house on January 3, 2001, taking most of the contents of the marital residence with her.
The defendant told the detective that on Monday, January 15, 2001, she stayed home to work on remodeling her new house because it was a holiday. The victim called her at about 10 a.m. saying that he missed her and wished they could be together. She went shopping at Name Brand Clothing or Home Depot but made no purchases. She then drove by the victim's residence but did not stop. At trial, she said that she stopped by the residence to pick up some articles and put clothes in the dryer. The victim told her not to bother him for a few days because he was sick and wanted to get well, and he asked her to take care of the real estate calls as they came in. She purchased a microwave at Sears at 5:27 p.m. that day, went to Walmart, and arrived home at her new house after 9 p.m.
On Tuesday, January 16, 2001, the defendant met with an employee of Drywall Basements to get an estimate on basement repairs around 10 a.m. and then drove by the victim's house on her way to a bank. The time on her bank receipt was 12:56 p.m. She went to a library and printing shop, although she did not have a receipt from either place. She purchased keys from a lock and key store at 1:36 p.m. She went to Lowe's but made no purchases there either, and she went to Burlington Coat Factory to purchase a pair of work jeans at 3:50 p.m.
She met with her visiting parents at their hotel between 4:30 and 5 p.m. The defendant and her parents subsequently drove to her new residence, passing the victim's residence on the way. Although the defendant thought it was unusual that the house appeared dark, she did not stop. Her parents stayed for about an hour, and then the defendant went to Home Depot to buy several items so she would have an excuse to stop by the victim's home. The receipt showed the transaction took place at 8:39 p.m. After being told that the 911 call was placed at 9:27 p.m., she could not recall whether she went straight to the victim's home or stopped at her new home first. At trial, she remembered that she had run back into Home Depot to look at other items. She left the victim nine voice mail messages throughout the day the victim's body was found.
The defendant was charged with premeditated first-degree murder. The State's expert witness testified at trial that the crime scene appeared to be staged to make investigators believe that the murder was committed by an outside intruder during a burglary. He pointed to evidence that although numerous items of financial value had been disrupted, they were not damaged or broken. Nothing was determined to have been stolen from the residence, and things that normally are not disturbed during burglaries had been. The only items of value which were removed from the residence were a halogen light and computer speakers, which were not consistent with a burglary based on their relative values. Although an individual spent some time combining prescription pills into one bottle, it was left behind. Marijuana found on the steps in the basement appeared to have been spread out.
DNA testing revealed multiple samples of blood from the residence and the defendant's vehicle that either matched the defendant's DNA profile or would not exclude her as the known source of the sample.
The statistical probability of selection of an unrelated individual at random from the population having a DNA profile matching the blood sample of the defendant would be about 1 in 53.9 billion. The following blood samples matched the defendant's DNA profile: (1) A bloodstain found on a blanket on the bed where the victim was murdered, (2) a blood sample found on a dresser sitting inches away from the murder weapon, (3) a bloodstain on the dryer knob in the victim's residence (while a bloodstain near the dryer door handle matched the victim's DNA profile), and (4) blood on a tissue in her vehicle.
The statistical probability of selection of an unrelated individual at random having a DNA profile that could not be excluded as being a contributor to a mixture of blood or a single blood sample varied between the samples. The defendant could not be excluded as a contributor to the bloodstains in the following samples: (1) A mixture of blood from the victim and at least another person on the murder weapon (1 in 431,000); (2) blood found on the sheets and pillow where the victim was murdered (1 in 27,880); (3) blood on the dryer door (1 in 7); (4) a bloodstain on the front passenger seat of the defendant's vehicle; and (5) a tissue with biological matter found in the defendant's vehicle.
Several witnesses offered marital discord testimony indicating that the victim wanted to separate from the defendant but she was not financially capable of taking care of herself. The victim had described the defendant as crazy and as having significant mood swings where she would become violent, scream, and throw things.
Evidence was presented that the victim's mother was financially secure and had provided the couple with nearly $25,000 over the course of the year leading to the victim's death and that she gave the defendant $10,000 after the victim's death. The victim's mother was unaware of problems in the marriage. Additionally, if the defendant was acquitted of the murder charges, the defendant would have received $126,000 from the sale of the couple's real estate properties following the victim's death. The defendant also expressed frustration after she found out that she was not the designated beneficiary of the victim's retirement account balance of $103,000.
The defendant presented multiple theories of defense that someone else committed the murder or that it was drug related. Witness Nancy Pratt testified that another individual, J.S., had knowledge of the victim's murder prior to the information becoming public and had given contradictory stories about when he last saw the victim alive. Another witness, K.R., testified that she and the victim had used cocaine and methamphetamine between 1996 and 1999 and the victim had taken a trip to Pittsburg, Kansas, where another individual, M.D., lived, possibly to buy drugs.
The defendant testified that M.D. and the victim had a screaming match at the residence and the defendant was told to go and wait upstairs. Later that same fall, the victim became angry with M.D. because she had brought strangers to the victim's house. On three occasions after the murder, the defendant called the police and reported a possible intruder. Former Federal Bureau of Investigation (FBI) Agent Danny Conway testified that in his opinion, drug use places an individual in a high risk category for violence.
The defendant was convicted of premeditated first-degree murder and was sentenced to life imprisonment with the possibility of parole after 25 years. Her motions for new trial and judgment of acquittal were denied. Additional evidence necessary to resolve the issues raised by the defendant is set forth below.
1. Exclusion of Drug Related Evidence Relevant to Theory of Defense
Under our state and federal constitutions, a defendant is entitled to present the theory of his or her defense. State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003). The defendant's fundamental right to a fair trial is violated if relevant, admissible, and noncumulative evidence which is an integral part of the theory of the defense is excluded. See State v. Mays, 254 Kan. 479, 487, 866 P.2d 1037 (1994).
However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure. State v. Thomas, 252 Kan. 564, 573, 847 P.2d 1219 (1993). An appellate court's first consideration when examining a challenge to a district court's admission of evidence is relevance. Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question. State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 ( 2004).
"Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as 'evidence having any tendency in reason to prove any material fact.' K.S.A. 60-401(b). Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge. [Citations omitted.]" State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004).
Beyond relevance, an appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. State v. Cordray, 277 Kan. 43, 58, 82 P.3d 503 (2004).
The defendant argues her theory of defense revolved around the fact that the victim was a drug user who had substantial associations with known drug users in Kansas and Missouri and that this evidence was relevant to prove that other persons had motive and opportunity to commit the crime and to show that one of the State's expert witnesses received incomplete information on which he based his opinion. She argues the trial court erred in excluding various drug-related evidence throughout the trial and that the cumulative effect of those errors requires reversal.
a. Cross-Examination of State's Expert About Known Drug Associates
At trial, Alan Brantley, a supervisory special agent with the FBI, testified on behalf of the State. After previously reviewing the entire police file and visiting the residence, he opined that the crime scene was staged to divert attention away from someone who would be considered a logical suspect or was diverted from a logical motive. Part of Brantley's determination involved what the particular risk factors were to the victim of the crime.
During cross-examination, defense counsel asked Brantley if he became aware of a person, E.C., in connection with the investigation, but Brantley did not recall that name. Upon the State's objection, the defense proffered testimony that E.C. was a major drug dealer in the Kansas City area who was murdered in 1989 or 1990. At the time of E.C.'s death, P.G. was E.C.'s live-in girlfriend. P.G.'s name was found in an address book at the victim's residence, and she was also the sister of the victim's first wife. The defense argued that Brantley should have been given this information in order to appropriately assess the risk factors in his analysis. The court ruled that the probative value of the evidence was far outweighed by its prejudicial nature and the information was too remote in time.
On appeal, the defendant argues that if Brantley had been aware that the victim previously associated with known drug conspirators, including someone who was murdered, then the risk factors would have been increased, possibly affecting Brantley's total assessment of the crime scene. The defendant's argument is without merit.
Initially, a question arises concerning the relevancy of this evidence, as the defense was unable to proffer any evidence that E.C.'s murder had anything to do with the murder in this case. However, Brantley testified that he did look at the level of the victim's participation and involvement with drugs and considered it as a risk factor. Even if this evidence was relevant to demonstrating an increase in the personal risk factors to the victim, it is unlikely that this evidence alone would have had any effect on Brantley's firm opinion that "[c]learly the level of violence and the other activity within this residence is inconsistent with a burglary for financial gain or other acquisition of property [as the crime scene was staged to appear], but it is consistent with a personal cause homicide." As this evidence seemingly would not have changed Brantley's evaluation, the trial court properly concluded that this evidence was tenuous, too remote in time, and more prejudicial than probative.
Moreover, the defendant was given the opportunity to pursue the theory of defense that the victim's drug use could have created other motives for the murder. Defense counsel extensively examined Brantley about the police department's investigation of the victim's drug dealers and the marijuana, methamphetamine residue, and drug paraphernalia found at the residence, and he elicited testimony from Brantley that drug dealers sometimes kill or beat up their customers who do not pay. Additional testimony was also presented that the victim had drugs in his home, used drugs, had arguments with an alleged drug dealer, and that the victim's drug use put him at a higher risk for violence. As such, the trial court did not abuse its discretion in excluding the proffered evidence.
b. Cross-Examination Regarding a Name in the Victim's Address Book
The defendant's argument here is related to the previous issue. The defense asked Detective Hohnholt if she recalled defense counsel giving her the name of P.G. from the victim's address book. The trial court sustained the prosecution's objection that the issue had already been addressed by the court and told defense counsel to "[m]ove along." Defense counsel made no further argument or proffer of evidence following the court's ruling.
On appeal, the defendant argues that she was prevented from eliciting evidence that would have been valid impeachment of Brantley's testimony and would have supported her theory of defense. However, the defendant failed to comply with K.S.A. 60-405 after the prosecutor's objection was sustained:
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers." K.S.A. 60-405.
When this issue arose during cross-examination of Brantley, the defense proffered that it had given the information about P.G. to Hohnholt and that the detective was familiar with the E.C. case. However, the key issue that the defense wanted to get to--whether the detective actually informed Brantley about this possible association between the victim and P.G.--who had been convicted of being involved in a drug conspiracy with E.C., who had been murdered, was never proffered to the trial court. The defen