IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,646
STATE of KANSAS,
Appellee,
v.
LEONARD C. REID,
Appellant.
SYLLABUS BY THE COURT
1. When examining a challenge to a trial court's admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish.
2. 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 trial court's discretion, depending on the contours of the rule in question. When the adequacy of the legal basis of a trial court's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.
3. Evidence of other crimes or civil wrongs committed by a criminal defendant is admissible if relevant to prove one of the eight material facts listed in K.S.A. 60-455 or some other material fact not listed in the statute, if the trial court determines (1) the relevance exists; (2) the material fact is in issue; and (3) the probative value of the evidence outweighs its prejudicial effect. In addition, to avoid error, the trial court must give a limiting instruction informing the jury of the specific purpose for admission.
4. Motive is the moving power that impels one to action for a definite result.
5. An appellate court reviews a trial court's determination of the probative element of relevance of K.S.A. 60-455 evidence under an abuse of discretion standard. Any contrary language in prior decisions of this court is disapproved, and any confusing language is clarified.
6. An appellate court reviews a trial court's determination of the materiality element of relevance of K.S.A. 60-455 evidence under a de novo standard. Any contrary language in prior decisions of this court is disapproved, and any confusing language is clarified.
7. A trial court's decision to admit evidence under K.S.A. 60-455 will not be reversed if it is right, but for the wrong reason. Any contrary language in prior decisions of this court is disapproved, and any confusing language is clarified.
8. An appellate court uses an abuse of discretion standard when reviewing admission of otherwise relevant evidence which arguably should have been excluded after a weighing of its probative value against the risk of unfair prejudice.
9. The burden of proof is on the party alleging that the discretion is abused.
10. A trial court's failure to instruct the jury on the specific purpose for admission of evidence under K.S.A. 60-455 is reviewed for clear error if the defendant did not ask for such an instruction.
11. Jury instructions are clearly erroneous if the appellate court finds there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
12. Under the facts of this case, the trial court did not err in giving the pattern jury instruction on eyewitness identification, PIK Crim. 3d 52.20.
13. When two or more defendants are jointly charged with any crime, the court may order a separate trial for any one defendant when requested by such defendant or by the prosecuting attorney.
14. Severance lies within the discretion of the trial court. However, severance should occur when a defendant has established there would be actual prejudice if a joint trial occurred. Accordingly, if a defendant's motion to sever is denied, on appeal he or she has the burden of establishing that there would be actual prejudice and thus discretion was abused.
15. The factors to be considered in determining whether there is sufficient prejudice to mandate severance are: (1) the defendants have antagonistic defenses; (2) important evidence in favor of one of the defendants which would be admissible in a separate trial would not be allowed in a joint trial; (3) evidence incompetent as to one defendant and introducible against another would work prejudicially to the former with the jury; (4) a confession by one defendant, if introduced and proved, would be calculated to prejudice the jury against the others; and (5) one of the defendants who could give evidence for the whole or some of the other defendants would become a competent and compellable witness on the separate trials of such other defendants.
16. Antagonistic defenses occur when each defendant is attempting to convict the other or where the defenses conflict to the point of being mutually exclusive or irreconcilable.
17. The presentation of evidence by one defendant which is inconsistent with the evidence presented by another defendant does not make the defenses antagonistic.
18. A jury is presumed to follow the instructions given to it.
19. A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction of the lesser offense. However, the duty to so instruct arises only where there is evidence supporting the lesser crime. An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.
20. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial.
21. When a defendant challenges the sufficiency of evidence for establishing the existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstance by a preponderance of the evidence.
22. Under the facts of this case, a robbery that immediately preceded the killing of the victim qualified as an aggravating circumstance to justify imposition of the hard 50 sentence under K.S.A. 21-4636(c), which provides that "[t]he defendant committed the crime for the defendant's self or another for the purpose of receiving money or any other thing of monetary value."
23. The Kansas hard 50 sentencing scheme is constitutional.
24. An appellate court has de novo review of constitutional questions.
Appeal from Johnson district court; JOHN ANDERSON III, judge. Opinion filed June 27, 2008. Affirmed.
Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Phill Kline, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: A jury convicted Leonard C. Reid of the first-degree premeditated murder of a Texaco store's assistant manager and of aggravated robbery of the business. It acquitted him of three counts of vehicle burglary and two counts of theft which were based upon his actions several hours earlier. Reid received a hard 50 sentence and now appeals his convictions and sentence. Our jurisdiction is under K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the trial court commit reversible error in admitting evidence under K.S.A. 60-455 that Reid had been fired from the Texaco store for stealing and in failing to give a limiting instruction? No.
2. Did the trial court err in giving the pattern jury instruction, PIK Crim. 3d 52.20, on eyewitness identification? No.
3. Did the trial court err in denying Reid's motion to sever and in failing to give an accomplice instruction? No.
4. Did the trial court violate Reid's due process and jury trial rights by failing to give instructions on lesser included homicides and robbery? No.
5. Did cumulative error deprive Reid of his right to a fair trial? No.
6. Did the trial court err in finding that Reid killed the victim for monetary gain? No.
7. Is the Kansas hard 50 sentencing scheme unconstitutional? No.
Accordingly, we affirm Reid's convictions and sentence.
FACTS
On October 23, 2002, Muhammad "Salim" Shahidullah was scheduled to work the first half of the night shift, from 10 p.m. to 3 a.m., at the Texaco Star Mart at 96th and Nall in Overland Park. Salim was worried about working at night, so he asked to wear a regular employee shirt, rather than the white shirt he normally wore as an assistant manager. Only managers and assistant managers wore white shirts. They were also the only employees who knew the combinations to the various safes in the store.
Early in the morning of October 24, Kevin Petree rode his bicycle toward the Texaco. As he approached he heard a sound which, as a veteran, he identified as a gunshot. A few seconds later, Petree saw a man run out the store's door and across the street. While he described the man as having dark brown or black curly, kinky hair, he was unable to identify any other distinguishing characteristics.
Petree smelled burnt gunpowder as he walked into the store. He then saw Salim lying face down on the floor. After quickly determining that Salim had been shot in the back of the head, Petree immediately dialed 911. Records show that his call was made at 2:32 a.m. Salim later died, and the store was later found to be missing $4,300.
For a number of reasons, the police believed that the crimes were probably committed by someone who knew how a Texaco store operated. Besides the cash register, the robber was also able to take money out of the drop/floor safe, the back office safe, and the car wash coin box–places about which customers would not generally know and to which only the manager or assistant manager had access by key or combination. In addition, the robber struck at a financially rewarding time: just before the manager, Cathy Williams (Cathy), began her shift at 3 a.m. and before she retrieved the entire day's receipts for Brinks' security's collection at 9 a.m.
The police also believed the crimes were committed by a person knowledgeable about this store because the perpetrator was aware that Salim was an assistant manager with access to these money depositories, despite his wearing a regular employee shirt. Furthermore, the video surveillance tape was taken, indicating that the perpetrator not only knew of the surveillance system but also that the VCR recorder was locked in a box in the office to which only management had a key.
Accordingly, the State's prosecution theory was that Reid was the shooter and that his codefendant, Lionel Williams (Williams), was his accomplice. Evidence revealed that Reid had worked as a cashier at the store for about a year and a half before being fired for stealing in April 2002, 6 months prior to the crimes. According to Cathy, Reid was pocketing money instead of putting it in the register. She discovered those thefts partly because of the surveillance cameras. After Reid challenged her accusations, she confronted him with her evidence. Among other things, she took a surveillance tape from the locked box containing the VCR in the office and showed Reid his thefts. She then used the evidence of stealing to support her decision to terminate his employment.
After Reid's firing, he often hung out at the store with the employees and regular customers. According to an employee's testimony, about 1 week before the crimes, Reid grabbed the employee work schedule from behind the counter, reviewed it, then immediately made a phone call to an unknown person in hushed tones.
Although Reid did not testify at trial, approximately 1 week after the crimes he told police in a videotaped interview that he was going to visit his girlfriend's daughter on October 23 and was planning to get his car washed at the store. The car wash was closed because it was too cold. Reid admitted to police that he arrived at the store between 10 p.m. and midnight. He remained there for about an hour, visiting with Salim and a customer who frequented the store. Reid then drove around the rest of the night until heading home around 7 the next morning. He also volunteered to the police he was aware of the store's videotape surveillance system, or, as he exclaimed, those "fuckin' cameras."
Codefendant Williams testified that sometime after 8 p.m. on October 23, he drove to an apartment complex by the store to meet Reid. Williams got into Reid's car and sold him two $10 bags of marijuana. They smoked some of the marijuana and then, at Reid's suggestion, moved to the Citgo across the street from the Texaco a little after 9 p.m. Police later found cigar butts with DNA from both Williams and Reid in that lot.
According to Williams, in between smokes he broke into three cars parked in the lot. During the 2 hours they sat there, both men made phone calls to their girlfriends on Williams' cell phone. Williams called his girlfriend about 12:45 a.m. Afterward, Reid drove Williams back to his car where Williams transferred the stolen property.
Williams testified that he left Reid to get something to eat and then went to his mother's house. An hour or two later, he left to make another drug sale. He then realized he did not have his phone and went home. Later the same day, Williams was at a friend's house with Reid and complained that he had lost his phone. Reid suggested that Williams look in Reid's car, where Williams found his phone under the driver's seat.
Phone records indicated that no calls were made from Williams' phone between 12:45 a.m. and 2:30 a.m. on October 24. However, several phone calls were made just after 2:32 a.m.–the time Petree called 911. By examining the records, the police determined that the calls were made from the store area. Williams insisted that he knew nothing about those calls and that he had lost his phone by that time. The records showed, however, the numbers dialed immediately after the crimes had been previously called many other times from Williams' phone.
Despite Reid's denial to the police that he was in the area after the shooting, one witness placed him there. Renee Showalter, who lived in a condominium near the store and was a frequent customer, testified that later that morning she saw Reid in his car parked in the lot outside her home. Additionally, while Petree could not identify Reid, he testified that during his call to the 911 dispatcher he saw the brake lights come on in a light-colored car across the street. Codefendant Williams testified that the night of the crimes, Reid was driving a silver Chevy Malibu.
Witnesses' descriptions of an individual actually seen in the store around the time of the crimes also resembled Reid. Marsha Brown testified that she pulled into the store around 2 a.m. After pumping the gas, she then went inside to pay and spent a few minutes looking for a Twix candy bar.
Brown was surprised that the store clerk stayed behind the counter and did not offer to assist her in finding the Twix. As she came to the end of a shelf, she turned around and saw that another person was standing behind the counter with the clerk. She described that individual as an African-American man with "either dreadlocks or real poofy" hair. Brown described the incident as "weird." When she was shown a line-up a week later, however, she was unable to identify Reid, an African-American, as the man behind the counter with Salim.
Brown could not find the Twix, so she left the store and went across the street to buy one at another store. That store's receipt was time-stamped 2:13 a.m. As Brown drove home, she passed the Texaco and noticed a man walking quickly down the street, hunched over as if carrying something inside his coat. She did not stop because she saw a Krispy Kreme truck parked in the store lot and assumed that the truck's driver would notice if something was wrong in the store.
The Krispy Kreme truck driver, Scott Roesler, testified that as he walked into the store a black man and Salim walked inside at the same time. Roesler made his delivery, had Salim sign the invoice for the donuts, and left. Store manager Cathy testified that Salim had filled out every single detail on the donut invoice, which she found odd because he usually just noted the log with "KK," the amount of the invoice, and perhaps the date. Cathy believed that Salim's sudden interest in invoice details indicated that the robbery was occurring while Roesler was still in the store.
When shown a photo line-up a few weeks later, Roesler was unable to identify Reid as the man in the store that morning. However, he testified that during a live line-up, he was 70 or 80 percent sure that the man was Reid.
Reid was charged with first-degree premeditated murder or, in the alternative, first-degree felony murder; aggravated robbery; three counts of burglary of a vehicle; and two counts of theft of property with a value of less than $500. The jury acquitted him of the burglary and theft charges and convicted him of first-degree premeditated murder and aggravated robbery. Because Williams pled guilty to the burglary and theft charges, he was tried with Reid only on the murder and aggravated robbery charges. He was acquitted.
The trial court found that Reid's offense was committed for the purpose of receiving money or obtaining something of monetary value. Accordingly, it gave Reid a hard 50 sentence.
Other facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not commit reversible error in admitting evidence that Reid had been fired for stealing and in failing to give a limiting instruction.
Reid argues that the trial court erred in overruling his objection and admitting Cathy's testimony that he had been fired for stealing from the store. He claims that the testimony was not admissible on the basis given by the trial court, i.e., to prove motive under K.S.A. 60-455. Reid also claims that the trial court erred in failing to give a limiting instruction informing the jury of the specific purpose for admission of such evidence.
Two years ago this court modified its approach to analyzing evidence under K.S.A. 60-455 in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). The Gunby court began with the threshold consideration of relevance:
"Generally, when considering a challenge to a district judge's admission of evidence, an appellate court must first consider relevance. Unless prohibited by statute, constitutional provision, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999)." 282 Kan. at 47.
Gunby further explained that after relevance, our possible standards of review were then dependent upon the contours of the evidentiary rule in question:
"'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. [Citation omitted.] When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, we review the decision de novo.'" (Emphasis added.) 282 Kan. at 47-48.
The statute under which Cathy's testimony about Reid's employment termination for stealing was admitted, K.S.A. 60-455, states in part:
"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 [that a person committed a crime or civil wrong on a specified occasion] is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident." (Emphasis added.) K.S.A. 60-455.
Gunby also clarified that the K.S.A. 60-455 analysis requires several steps. As mentioned, the 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. State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007) (citing Gunby, 282 Kan. at 48, 56-57). As we explained in Gunby: "These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant's mere propensity to commit the charged crime." 282 Kan. at 48.
Relevance, probativeness, and materiality
Reid first argues that the evidence of his firing for stealing was not relevant to prove motive. We have held that motive is the moving power that impels one to action for a definite result. State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 (1992). As we stated in State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 (2005): "Motive supplies the jury with some degree of explanation, responding to a juror's natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State's theory of its case."
While Gunby established that evidentiary rules may be applied either as a matter of law or in the exercise of the trial court's discretion, depending on the contours of the rule in question, this particular determination only occurs "[o]nce relevance is established." 282 Kan. at 47. Gunby did not establish our standard of review for analyzing relevance of certain K.S.A. 60-455 evidence.
We begin our analysis of this question with a short review. As mentioned, the legislature has defined "relevant evidence" as "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). This statutory definition bears some resemblance to one found in Federal Rule of Evidence 401: "'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Several treatises have recognized that the federal rule contains both a probative, i.e., relevancy, element and a materiality element.
"At common law, a distinction was drawn between relevancy and materiality. Relevancy meant that evidence had probative value in establishing a particular point, and materiality meant the point had legal significance in the case. For example, in a products liability action for injuries caused by a power mower, evidence that plaintiff was mowing wet grass in bare feet would be relevant on the issue of whether plaintiff was negligent, but such issue would be immaterial if the actual cause of the injuries was the blade flying off the mower.
"Under FRE 401, 'materiality' is merged into the definition of relevancy by the requirement that the fact proved must be 'of consequence to the determination of the action.' Therefore, an objection on grounds of irrelevancy now encompasses an objection on grounds of immateriality, and a separate immateriality objection is no longer required or appropriate. Determining whether evidence is 'consequential' depends on the applicable substantive law." (Emphasis added.) Mueller & Kirkpatrick, Evidence Practice Under the Rules § 4.2, pp. 228-29 (2d ed. 1999).
See also 1 Federal Rules of Evidence Manual, § 401.02[2] (9th ed. 2006) ("Both traditional requirements of relevance analysis–that evidence must relate to issues that are properly in dispute and that it must shed some light on those issues–are combined into one rule. Whether an issue is properly in dispute is, of course, determined by the applicable substantive law.").
The same merger of elements can be found in the Kansas counterpart, K.S.A. 60-401(b): "[E]vidence having any tendency in reason to prove" suggests the probative element, while "any material fact" suggests the materiality element.
K.S.A. 60-455 itself recognizes both elements. The statute provides that the evidence of the prior crime or civil wrong "is admissible when relevant to prove [i.e., probative] some other material fact including motive." In general, to be material the fact proved must "'be significant under the substantive law of the case and properly at issue.'" State v. Goodson, 281 Kan. 913, 922, 135 P.3d 1116 (2006) (quoting State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 [1976]); see Garcia, 285 Kan. at 14 (Materiality, for purposes of K.S.A. 60-455, contemplates "a fact which has a legitimate and effective bearing on the decision of the case and is in dispute.").
We have stated that materiality is largely a question of law. Faulkner, 220 Kan. at 155. Accordingly, even when a standard of review has been labeled as one for abuse of discretion, a review of the materiality element would most appropriately be de novo. See, e.g., Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.3d 1170 (2000) ("Questions of law are presented when an appellate court seeks to review the factors and considerations forming a district court's discretionary decision."). See also Gunby, 282 Kan. at 47-48 ("When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, we review the decision de novo.").
We observe, for example, that the Second Circuit reviews evidentiary rulings for abuse of discretion. However, in a recent civil rights case, it held that lost wages were not an issue "and thus legally could not 'affect the outcome of the suit under the governing law.'" Arlio v. Lively, 474 F.3d 46, 52 (2d Cir. 2007). It therefore held: "[T]he district court admitted evidence about the arbitration solely because it was probative of a non-material issue; why Arlio was not seeking back wages in the federal action. Thus, the testimony was not relevant and should have been excluded." 474 F.3d at 53. See also Ahlberg v. Chrysler Corp., 481 F.3d 630, 633 (8th Cir. 2007) (Utilizing an abuse of discretion standard of review, held Jeep-retrofit evidence "not relevant" to prove feasibility because feasibility was not an issue at trial due to Chrysler's concession); Richardson v. Missouri Pacific Railroad Co., 186 F.3d 1273, 1277 (10th Cir. 1999) (utilizing an abuse of discretion standard of review, held that while defendant argued that evidence of plaintiff's prior lawsuit and settlement was relevant to its defense of release and accord and satisfaction, this defense had no application to the issues; fact that defendant discharged the 1986 injury obligation "simply is not relevant" to the question of whether plaintiff is entitled to recover from defendant for the 1996 incident); Phillips v. Western Co. of North America, 953 F.2d 923, 930 (5th Cir. 1992) ("[I]f the substantive law disallows a setoff from the tortfeasor's damages for the plaintiff's collateral benefits, evidence of collateral benefits simply has no relevance in the lawsuit.").
These federal cases' results and specific rationale under federal rules of evidence are essentially contained in similar Kansas case law. In State v. Carter, 270 Kan. 426, 442, 14 P.3d 1138 (2000), we reviewed our decision in State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), in which the Donesay court reversed a jury conviction of premeditated murder and a hard 40 sentence because of the improper allowance of the testimony of the widow of the victim. As we stated in Carter:
"With regard to the materiality of the widow's testimony, the [Donesay] court observed:
'The purpose of the State's eliciting Mrs. Easter's testimony was not to identify the defendant as the killer, was not to show that he intended to kill Officer Easter, and was not to show premeditation. Her testimony was not intended to show the guilt of the defendant, and it did not. We can only conclude that it was intended to infuriate and inflame the jury against the defendant.' 265 Kan at 89." 270 Kan. at 442.
The Donesay court held the admission of this evidence was "patently improper and reversible error." 265 Kan. 60, Syl. ¶ 9. In short, the evidence was immaterial because it was not significant under the substantive law of the case.
In addressing a quite similar situation, the Carter court held that certain testimony of the murder victim's father was "immaterial and served only to inflame the jury against the defendant." 270 Kan. at 442. See also Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P.2d 837 (1931) ("Parts of this testimony had no bearing on the controversy of the parties and should have been excluded upon the ground of immateriality.").
Several examples of per se "material facts" are provided for in K.S.A. 60-455, e.g., motive, intent, and knowledge. Consequently, in the instant case the only materiality determination for the trial court to make would have been to see if motive or knowledge were material under the substantive law of first-degree murder or aggravated robbery. They clearly were material. See, e.g., Englehardt, 280 Kan. at 128 (Motive often "is a prominent feature of the State's theory of its case."). Indeed, Reid does not complain of lack of materiality. Contrast Garcia, 285 Kan. at 14 (Defendant argued that intent and identity were not disputed material facts; if they were, the evidence of his prior convictions were not relevant to prove those material facts.). Reid simply comp