IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 100,074
STATE OF KANSAS,
Appellee,
v.
ALBERT EUGENE RICHMOND,
Appellant.
SYLLABUS BY THE COURT
1. When a party challenges the admission or exclusion of evidence on appeal, the first inquiry 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. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo.
2. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence when presented at trial in order to preserve issues arising from that admission for appellate review.
3. The contemporaneous objection requirement of K.S.A. 60-404 gives the district court the opportunity to conduct the trial without using tainted evidence and thus avoid possible reversal and a new trial. Failure to comply with the contemporaneous objection rule or some other state procedural requirement may bar a challenge, even upon federal constitutional grounds, to a conviction in a state court.
4. A defendant cannot object to the introduction of evidence on one ground at trial then assert another ground on appeal.
5. A defendant is entitled to present the theory of his or her defense, and the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure. Accordingly, under the facts of this case, defendant's fundamental right to a fair trial was not denied where his failure to testify was allegedly because of a pretrial evidentiary ruling which could have allowed evidence of his prior convictions to be admitted into evidence under certain circumstances during rebuttal.
6. Determining whether evidence was properly admitted pursuant to K.S.A. 60-455 requires several steps. The appellate court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact has a legitimate and effective bearing on the decision in the case. The appellate court standard of review for materiality is de novo. The appellate court must also determine whether the material fact is disputed, i.e., the element or elements being considered must be substantially at issue in the case. The appellate court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has any tendency in reason to prove that fact. The appellate court reviews relevance–in particular, the probative element–of K.S.A. 60-455 evidence for abuse of discretion. The burden of proof is on the party alleging that the discretion is abused. The court must also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. The appellate standard for reviewing this determination is abuse of discretion.
7. If the evidence presented under K.S.A. 60-455 meets all these requirements–that the fact is material; that the material fact is disputed; that the evidence is relevant, i.e., probative to prove the disputed material fact; and that the evidence's probative value outweighs its potential undue prejudice–then the trial court must give a limiting instruction informing the jury of the specific purpose for the evidence's admission. 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.
8. An issue not briefed is deemed waived or abandoned.
9. Relevance requires a logical connection between the asserted facts and the inferences they are intended to establish.
10. Allegations of prosecutorial misconduct require a two-step analysis. First the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.
11. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.
12. As a fundamental rule in closing arguments, prosecutors must confine their comments to matters in evidence.
13. A prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence.
14. A prosecutor is prohibited from commenting on a witness' credibility.
15. When a case turns on which of two conflicting stories is true, it may be reasonable to argue, based on the evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness' veracity rests solely with the jury.
16. Prosecutorial ill will can be found when the prosecutor ignores a prior sustained objection.
17. In the absence of any trial court error, none can accumulate, and the presence of only one error is insufficient to accumulate. When more than one error occurs, their accumulation requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
18. An appellate court has de novo review of constitutional questions.
19. The Kansas hard 50 sentencing scheme is constitutional.
Appeal from the Crawford district court, DONALD R. NOLAND, judge. Opinion filed July 24, 2009. Affirmed.
Christina Waugh, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant, and Albert E. Richmond, appellant was on a supplemental brief pro se.
Jared S. Maag, deputy solicitor general, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Albert Richmond was convicted of first-degree premeditated murder for shooting Tyrone Owens and sentenced to prison without the possibility of parole for 50 years (hard 50). Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in admitting into evidence a statement made by Richmond more than 2 years before the shooting? No.
2. Did the trial court deny Richmond his right to present his defense when ruling that the State could present evidence of his 1995 convictions if his testimony provided an innocent explanation for his presence at the shooting scene? No.
3. Did the trial court err in admitting into evidence specific instances of Richmond's drug dealing as evidence of his motive, knowledge of the local drug culture, and awareness that drug dealers may carry money on their persons? No.
4. Did the prosecutor commit reversible misconduct? No.
5. Did cumulative error deny Richmond his fundamental right to a fair trial? No.
6. Were Richmond's Sixth and Fourteenth Amendment rights violated when the trial court imposed a hard 50 sentence without submitting the aggravating factors to a jury for proof beyond a reasonable doubt? No.
Accordingly, we affirm.
FACTS
On October 21, 2006, defendant Albert Richmond, Rayland Brown, Ramone Hester, and Malcolm Jackson traveled to a convenience store in Pittsburg so Hester could buy marijuana from Tyrone Owens. Jackson drove the car, with Richmond in the front passenger seat and Hester and Brown in the back.
Upon arrival, Hester called Owens from a pay phone. When Owens arrived, Hester got into Owens' car and it pulled away. According to Jackson, Richmond told him to follow. Owens stopped a block later. After Hester purchased $20 worth of marijuana, he got out and started walking back toward the Jackson car. Jackson testified that Richmond then handed him a .40 caliber handgun and told him to "go get" Owens. Once Jackson neared Owens' passenger side window, however, Owens drove away. Jackson testified that he got back in his car and tossed the handgun at Richmond, who told him to follow Owens.
After pursuing for a couple of blocks, Jackson cut Owens off by swerving in front of his car. Jackson and Richmond then got out and approached Owens' car. Jackson testified that he tried to reach in and turn the ignition off so he could take Owens' money. As Jackson reached, Richmond shot through the front windshield and struck Owens in the chest. While Owens put the car in reverse to get away, Jackson grabbed the steering wheel. Owens' car then got stuck on a fire hydrant. According to Jackson, Richmond fired several more shots, and Owens was hit twice more. One was a head shot which instantly killed him.
While Jackson identified Richmond as the shooter, both Hester and Brown testified that they ducked when they heard shots and saw nothing more happening outside of the car. Richmond did not testify.
After the shooting, Hester moved into the driver's seat and began to drive once Jackson and Richmond got back in the car. Hester testified that after the shooting, Jackson was carrying a different handgun from what he had been carrying earlier. Jackson also got some of Owens' blood on his arm.
Owens was a well-known drug dealer. Officers found $25 in his left hand, $15 in his pocket, and a small baggy of drugs on his person. They also found a glove containing Richmond's DNA at the scene. Richmond was arrested in Miami, Florida, approximately 10 days later.
In exchange for their testimony in Richmond's jury trial, the three other men received plea deals. Jackson pled guilty to one count of conspiracy to commit aggravated robbery, one count of attempted aggravated robbery, and one count of aiding a felon. He testified that he expected to serve 8 1/2 years in prison. Hester pled guilty to attempted aggravated robbery and testified that he expected to receive 4 years in prison. All charges against Brown were dropped. The jury convicted Richmond of first-degree premeditated murder, and the court later sentenced him to the hard 50.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not err in admitting a statement made by Richmond more than 2 years before the shooting.
Richmond first argues the trial court erred in admitting evidence of his statement to drug task force agent Beth Brooks. Specifically, Brooks had interviewed Richmond in September 2004 as part of a cocaine investigation. Brooks testified that Richmond told her at that time that he did not sell crack cocaine. The prosecutor then asked, "What did he tell you his specialty was?" Brooks answered, "He said that he robbed and killed people." Richmond now argues that the testimony was inadmissible because of K.S.A. 60-445, 60-447, and 60-455.
The State generally responds that the evidence is not barred by K.S.A. 60-455 and that Richmond is prohibited from arguing the other statutory prohibitions.
The State had filed a motion in limine to admit Brooks' testimony about Richmond's statement as relevant to his state of mind, plan, and intent. Richmond responded that the State was instead trying to inform the jury of his prior crimes: 1995 guilty pleas to second-degree murder and voluntary manslaughter arising out of a Missouri drug robbery. Specifically, he noted that Brooks remembered his statement–"[he] said that he killed and robbed people, he did not sell crack"–as being said in the present tense, but that she admitted that her written report showed his statement was made in the past tense, i.e., "Richmond stated that he had committed robbery and murder." The report is not in the record on appeal.
After the trial court determined that Brooks' evidence was susceptible to both interpretations–past or present tense–it found that Richmond's argument went more to the weight of her testimony than its admissibility. He invited defense counsel to explore her inconsistencies at trial:
"It seems to me that your argument, [defense counsel], goes more towards the weight rather than the admissibility. You have a full right to cross-examine Agent Brooks with regard to the factors you've just told me about. This was three years ago. Well, you put it in the past tense in your report. You just now a week before trial, roughly, brought it up. Those are valid points for cross-examination but if, in fact, it is said in the present tense, it is not referencing the 1995 murder when the defendant, pursuant to the testimony today, says I don't do crack cocaine, I kill and I rob in so many words."
The court then found that the statement was relevant because it essentially referred, among other things, to Richmond's sense of identity:
"That speaks to his method of acting, his approach to these things, his state of mind, his plan, and that is not referencing–that is a course of conduct, typical course of conduct, that in the present tense is not referencing the incident in 1995.
"This is just what he does, this is him, as [the State] pointed out. He doesn't do crack cocaine. He kills, he robs . . . . And I think in that instance it is arguably relevant." (Emphasis added.)
Shortly before Brooks' trial testimony, Richmond again objected. He argued that the testimony was too remote to be relevant to prove his state of mind on the day of the shooting and was being offered as propensity evidence in violation of K.S.A. 60-455.
The trial court rejected Richmond's argument that the evidence was being offered to show propensity:
"[P]ropensity evidence applies to priors the defendant was involved in. The State cannot introduce priors to show a propensity to commit crime. This is not offered for that purpose. This is not a specific prior the State is attempting to introduce to show propensity."
The court again observed that the statement instead referred, among other things, to Richmond's sense of identity:
"These are words spoken by the defendant which arguably shed lit [sic] on his state of mind, his method of being, this is what I am, this is what I'm about, this is what I do. That's the context the Court accepts these comments in. I don't accept them in the past tense because Beth Brooks testified [at the pretrial hearing] these were said in the present tense."
The court reminded the State that "under no circumstances" would Brooks be allowed to mention the 1995 convictions. She later testified:
"[PROSECUTOR]: What was the reason for the interview [on September 17, 2004]?
"[BROOKS]: We were interviewing Mr. Richmond in reference to sale of cocaine.
"[PROSECUTOR]: What did he tell you about selling cocaine?
"[BROOKS]: That he did not sell crack.
"[PROSECUTOR]: What did he tell you his specialty was?
"[BROOKS]: He said that he robbed and killed people.
"[PROSECUTOR]: When he said this, was he serious or kidding?
"[BROOKS]: He was very serious.
"[PROSECUTOR]: No further questions." (Emphasis added.)
After Brooks' testimony, Richmond asked that it be stricken because it was stated in the past tense and essentially referred to his 1995 convictions. He also asked for a mistrial. The judge disagreed: "[h]e just said this is his specialty, robs and kills people, I didn't take it in the past tense." The judge found that the State had "gone out of its way to be particularly careful so we didn't reference this past tense and present tense issue," i.e., place before the jury any reference to his 1995 convictions. After both motions were denied, Richmond cross-examined Brooks on the differences between her written report and trial testimony.
Standard of Review
Our standard of review for admissibility of evidence is well known:
"When a party challenges the admission or exclusion of evidence on appeal, the first inquiry 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. When the adequacy of the legal basis of a district judge's decision on admission or exclusion of evidence is questioned, an appellate court reviews the decision de novo." State v. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).
Richmond argues that the evidence should have been excluded under three different evidentiary statutes. Each basis will be discussed in turn.
K.S.A. 60-455
K.S.A. 60-455 prohibits evidence of prior crimes from being admitted to prove a defendant's propensity to commit the charged crime, but it can be "'admissible when relevant to prove some other material fact.'" State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007). Richmond again argues that Brooks' "robbed and killed" testimony was inadmissible evidence of his prior crimes, i.e., to prove propensity. The State responds that the testimony simply does not fit within the statutory prohibitions. That statute states:
"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. 40-445 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." (Emphasis added.)
We agree with the State. Richmond's statement to Brooks simply does not concern a "crime or civil wrong [committed] on a specified occasion" as the statute requires. Indeed, the trial court reminded the State that Brooks was not to mention Richmond's 1995 convictions and later complimented the State for being particularly careful in its efforts to comply. It admitted Brooks' testimony as generally indicating Richmond's state of mind and sense of identity, e.g., who I am and what I do.
K.S.A. 60-447
Richmond next argues that Brooks' testimony is evidence of a bad character trait and that its admission violates K.S.A. 60-447 because he did not first offer any evidence of his good character. The statute states in relevant part:
"Subject to K.S.A. 60-448 when a trait of a person's character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that . . . (b) in a criminal action evidence of a trait of an accused's character as tending to prove guilt or innocence of the offense charged, . . . (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character."
Richmond acknowledges that he makes this particular argument for the first time on appeal and recognizes that "[a]s a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal." (Emphasis added.) State v. Bryant, 285 Kan. 970, Syl. 6, 179 P.3d 1122 (2008); see K.S.A. 60-404. He nevertheless contends that our rule should be waived because he qualifies in two of the categories recognized in State v. Stevens, 278 Kan. 441, 454, 101 P.3d 1190 (2004), for when appellate courts can consider new issues on appeal:
"'"(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
"'"(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights."'"
The State essentially responds that a party "'cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.'" State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005); see State v. Patchett, 203 Kan. 642, 645, 455 P.2d 580 (1969) ("the specification of an objection to evidence on one ground waives or estops the objector from making an objection on any other ground"). It further asserts that neither of Richmond's proffered Stevens exceptions apply. We agree with the State for many reasons, several of which will suffice.
First, as recently as March of this year in State v. King, 288 Kan. 333, 204 P.3d 585 (2009), we emphasized "the importance of this legislative mandate" contained in K.S.A. 60-404 which "dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial." (Emphasis added.) 288 Kan. at 349. There, because defendant failed to object at trial to the prosecutor's cross-examination of him, we refused to consider his argument that the examination violated his rights under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976) (prosecutor's use of defendant's postarrest silence to impeach credibility violates Fifth and Fourteenth Amendments to the United States Constitution). We acknowledged, however, that we would continue to review, without trial objection, nonevidentiary-based claims of prosecutorial misconduct, e.g., comments to a jury during voir dire. 288 Kan. at 349.
King affirmed this court's prior treatment of failures to object to evidence under K.S.A. 60-404, even where constitutional rights were at stake. See, e.g., State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 (2004) (defendant's failure to timely object to alleged hearsay statements precludes defendant from raising issue on appeal, even where alleging violation of Confrontation Clause of Sixth Amendment to United States Constitution). While we acknowledge King and Mays involved no objection, and here we are instead concerned with an objection on one ground at trial and another ground on appeal, the same rationale applies. Both types of failure undercut the purpose of contemporaneous objections:
"'The purpose of the rule requiring a timely and specific objection is to give "the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial." [Citation omitted.]'" (Emphasis added.) King, 288 Kan. at 342.
In short, the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.
Second, even were we to overlook the failure to object on this particular ground, we reject Richmond's argument that here "'the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case.'" (Emphasis added.) Stevens, 278 Kan. at 454. This issue–the admissibility of the "robs and kills" testimony–is not finally determinative. At a minimum, the magnitude of any evidentiary error would still have to be determined by reviewing all other evidence under either the state standard, the federal standard, or both. See K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial).
Third, we agree with the State that if we were to overlook the lack of this particular objection and consider the issue because it is necessary to serve the ends of justice or to prevent the denial of Richmond's right to a fair trial, these and other case law exceptions would soon swallow the general statutory rule. We refrain primarily because we acknowledged in King that "the legislature's intent in enacting K.S.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review." (Emphasis added.) 288 Kan. at 348. In reaching this conclusion, we contrasted that statute with other legislative pronouncements, e.g., K.S.A. 22-3414(3), where the legislature "has created exceptions to the rule requiring objections to preserve an issue for appeal in some non-evidentiary contexts." 288 Kan. at 348.
We finally observe that here defense counsel clearly had several opportunities to argue the applicability of K.S.A. 60-447–at the pretrial hearing, during the afternoon shortly before Brooks testified at trial, and during her later testimony itself. For all of these reasons, we will not consider this argument on appeal.
K.S.A. 60-445
Richmond also argues for the first time on appeal that Brooks' testimony should have been excluded under K.S.A. 60-445 because its probative value was substantially outweighed by its resulting prejudice. That statute provides:
"Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered."
We will not consider this argument for the same reasons outlined above concerning K.S.A. 60-447.
Issue 2: The trial court did not prevent Richmond from fully presenting his defense.
Richmond next argues he was denied his fundamental right to present his defense because a trial court evidentiary ruling effectively prevented him from testifying. Specifically, the court had denied the State's motion under K.S.A. 60-455 to introduce evidence in its case-in-chief of Richmond's 1995 Missouri convictions for second-degree murder and voluntary manslaughter. But it held that if Richmond admitted he was present at Owens' shooting, but was unaware of what was going to happen, the State could introduce his convictions on rebuttal.
Richmond contends this ruling was erroneous because his providing an innocent explanation of his presence at the scene with a general denial of wrongdoing does not place intent at issue. Moreover, he argues that he did not testify because he did not want these convictions in evidence.
The State responds that Richmond's decision not to testify waives any challenge to the trial court's ruling. Its cited authorities include Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), and State v. Smyers, 207 Ariz. 314, 86 P.3d 370 (2004). We generally agree with the State.
After denying the State's motion brought under K.S.A. 60-455 to admit the conviction evidence in its case-in-chief, the judge stated:
"However, having said that . . . if it should become a situation where the defendant does admit some sort of presence and indicates he was not aware of what was going down, so to speak, he has an absence of knowledge, some sort of mistake, some sort of lack of intent; in other words, he has some sort of innocent explanation for what occurred . . . then I would allow the State to introduce the Kansas City homicide in rebuttal."
Later during trial, he reiterated:
"The defendant won the 60-455 motion but I think it is inherently fundamentally unfair for the defendant to win that motion and then testify he was present at the scene but had no awareness that this was going to occur.
"Because of that, I would allow the State to present that on rebuttal should the defendant allege 'I was there but I had no awareness that this was going to occur.' However, if the defendant simply testifies and alleges 'I was not there, I don't know what you are talking about,' then that does not open . . . up the presentation of the prior [convictions] through rebuttal offered by the State."
Standard of review
We have held that a defendant is entitled to present his or her defense, and a defendant's fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. State v. Cooperwood, 282 Kan. 572, Syl. 1, 147 P.3d 125 (2006). However, that right is not unlimited. "[T]he right to present a defense is subject to statutory rules and case law interpretations of the rules of evidence and procedure." State v. Walters, 284 Kan. 1, Syl. 1, 159 P.3d 174 (2007).
We begin our analysis by reviewing Luce. There, the defendant was charged in federal district court with conspiracy and possession of cocaine with intent to distribute. At trial, he sought to prevent the government from impeaching him with a prior conviction for possession of a controlled substance. The district court found that the prior conviction was proper impeachment evidence under Federal Rule of Evidence 609(a). It noted, however, that the nature and scope of Luce's later testimony could affect its initial evidentiary rulings. As the Luce Court explained:
"[F]or example, the [district] court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then