IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,416
STATE of KANSAS,
Appellee,
v.
MARC VINCENT SAPPINGTON,
Appellant.
SYLLABUS BY THE COURT
1. 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 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. The analysis can apply to prosecutorial action in contexts beyond mere comment on the evidence.
2. In the second step of the two-step analysis of allegations of prosecutorial misconduct, 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 ever 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 reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.
3. Under the facts of this case, the prosecutor did not commit reversible misconduct during closing argument.
4. When a district court refuses to recuse itself from a trial upon the defendant's request, appellate courts apply a two-part test to determine whether the defendant received a fair trial or whether the defendant's due process rights were violated: (1) Did the trial judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?
5. Under the facts of this case, the district court did not err in denying defendant's motion for change of judge.
6. The standard of review for the admission of certain autopsy photographs requires an appellate court to first determine whether they are relevant.
7. Appellate courts use an abuse of discretion standard to review claims that certain autopsy photographs are overly repetitious, gruesome, and introduced only to inflame the jury.
8. Under the facts of this case, the district court did not err in admitting certain autopsy photographs into evidence.
9. A district court's refusal to appoint new trial counsel is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the district court. The burden is on the party alleging the abuse.
10. To warrant the appointment of new trial counsel, a defendant must show "justifiable dissatisfaction" with appointed counsel. Justifiable dissatisfaction may be demonstrated by showing a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between counsel and the defendant. But ultimately, as long as the trial court has a reasonable basis for believing the attorney-client relation has not deteriorated to a point where appointed counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in refusing to appoint new counsel.
11. Under the facts of this case, the district court did not err in denying defendant's requests for new counsel.
Appeal from Wyandotte district court, J. DEXTER BURDETTE, judge. Affirmed. Opinion filed November 2, 2007.
Sarah Ellen Johnson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jerome A. Gorman, district attorney, argued the cause, and Paul J. Morrison, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
NUSS, J.: Marc Vincent Sappington directly appeals his convictions of first-degree felony murder and attempted aggravated robbery. Our jurisdiction is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.
Approximately 2 months before these convictions, Sappington was also convicted of crimes arising out of a different episode: three counts of first-degree murder, one count of kidnapping, and one count of aggravated burglary against four different victims. His appeal from those convictions is the subject of State v. Sappington, (No. 94,415, this day decided).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Did the prosecutor commit reversible misconduct during closing argument? No.
2. Did the district court err in denying Sappington's motion for change of judge? No.
3. Did the district court err in admitting certain autopsy photographs into evidence? No.
4. Did the district court err in denying Sappington's requests for new counsel? No.
Accordingly, we affirm the district court and convictions.
FACTS David Mashak owned and operated Phase One Auto Sales, a detail and auto sales shop located in Kansas City, Kansas. On March 5, 2001, Mashak sold a 1984 Chevy Impala to A.G. for $750. Mashak's wife, Valerie Mashak, testified that in early March she accompanied Mashak to the shop when Mashak showed A.G. the car. Valerie testified that when Mashak sold the car to A.G., Mashak told A.G. to park the car because the "tags weren't right." Two days after the sale Police Officer Jason Allen stopped the Impala being driven by A.G. because the 30-day tag was altered. Due to the altered tag, Allen had the car towed to the impound lot. According to Valerie, on approximately March 10 A.G. called Mashak at home, complaining about his car being towed and asking Mashak to get it out of the impound lot.
On March 16, 2001, Mashak and Johnny Sublett, Mashak's employee and best friend, were eating lunch in the business' office around 2 p.m. when an African-American male entered the business. Mashak and Sublett were the only individuals in the shop at the time. Sublett did not know this individual; he was later identified as A.G. According to Sublett, A.G. was angry and spoke to Mashak about getting the vehicle that Mashak had sold to A.G. out of the impound lot. Mashak did not pay attention to A.G.; he continued eating his lunch. A.G. then walked out of the shop.
As soon as A.G. walked out, a different man wearing a black mask and a black Carhart or Dickie coat with a hood entered the shop. Sublett did not recognize this individual either. The man, later identified as Sappington, was carrying what Sublett described as a black AK assault rifle. As soon as Sappington entered, he started shooting. When Sublett saw the gun, he ran into the garage portion of the business and dived under a vehicle. From there, he could hear Mashak getting shot in the office and fleeing to the garage. After approximately 10 minutes, Sublett crawled out and called an ambulance. Mashak was lying on the garage floor, conscious, but dying.
Richard Turner, a customer at Loud and Clear Car Audio across the street, heard the gunshots and then saw one African-American male running out of Mashak's shop and another African-American male shooting into it. Turner and Donald Martin, the owner of Loud and Clear Car Audio, then saw two men speed away in a brown vehicle. According to Martin, a "hooded person" was driving the vehicle.
Police found Mashak and eight shell casings inside the shop. Officer Kim J. Crockett testified that AK-47 assault rifles and SKS assault rifles fire the caliber of ammunition found in the building. Seven of the shell casings were found in the office and one on the garage floor. The officers also found several bullet holes in the interior walls of the shop and in some of the vehicles parked in the garage.
Dr. Donald Pojman, the forensic pathologist who performed the autopsy, testified that Mashak suffered five gunshot wounds–two to the left shoulder, one to the right elbow, and two to the right side of the chest. Dr. Pojman opined that Mashak died from multiple gunshot wounds, most importantly the gunshot wound to the chest, with loss of blood the ultimate cause of death.
The next month an anonymous tip led officers to investigate Sappington as a participant in the shooting. He eventually confessed to his participation in the crime. Sappington stated that A.G. approached him about helping recover money from Phase One Auto Sales because the guys there had sold A.G. a car that had been towed because the "tags weren't right." He characterized himself and A.G. as "associates" prior to this incident. According to Sappington, A.G. said he would go into the shop first and talk to the owner and then Sappington was supposed to enter 6 seconds later as an "enforcer."
Sappington stated that his role was to hold a gun on the individuals to make sure they cooperated; there was no plan to shoot them. With a black scarf covering his face, he entered the shop and pointed the SKS rifle at the two men sitting behind the counter. Because they "quickly moved" and Sappington thought they were reaching for a gun, he shot them. He then ran out of the shop, and he and A.G. fled in a brown vehicle.
A pager registered to A.G.'s father was found at the scene which had independently led officers to investigate A.G. as a suspect. From a photo lineup, Sublett identified A.G. as the person who entered the shop on the day of the shooting, and Valerie Mashak identified him as the person who bought the car from her husband and who had called about getting it out of the impound lot. A.G. eventually confessed to his participation in the crime and implicated Sappington as the shooter.
The case against Sappington was continued a number of times over 3 years because of periods in which he alternated between competency and incompetency. Sappington was evaluated primarily by Dr. William S. Logan, a psychiatrist, who met with Sappington 13 times over that entire period. Sappington was ultimately deemed competent to stand trial in July 2004. He was tried and convicted later that month for the triple murders and other crimes committed in April 2001 (State v. Sappington, No. 94,415, this day decided). He was tried in September 2004 for the crimes in the instant case committed in March 2001.
At trial, both Sappington and A.G. recanted their confessions. Sappington testified that he had nothing to do with the shooting, that he was never at the shop and that he did not know A.G. or Mashak. He claimed that he agreed to confess to the murder because Detective Greg Lawson, who took his confession, promised that he would help Sappington avoid the death penalty in a different homicide case if he confessed to shooting Mashak. Sappington testified that he based his confession strictly upon information that Lawson gave him.
Although A.G.'s preliminary hearing testimony was consistent with his prior taped confession, when called by the State to testify at trial he stated, "I can't do this. I can't lie like this, man. This ain't right." He then testified that he did not know Sappington in March 2001 and did not know who did the shooting. As a defense witness, A.G. admitted that he had previously implicated Sappington as the shooter. However, he testified that he had gone to the shop only to talk to Mashak about getting his car out of the tow lot. While A.G. was talking to Mashak, a masked man entered the body shop and just started shooting. A.G. testified that he then ran out "scared for his life." After the shooting, his father picked him up; A.G. testified that his father would testify that the father did not pick up anyone other than A.G. at that time.
A.G. testified that he implicated Sappington only because Detective Lawson said that would mean that A.G. would remain in juvenile court for his own charges. He further testified that when Lawson walked him from the juvenile center to the police station, Lawson told him details on what to confess.
The jury convicted Sappington of one count of first-degree felony murder and one count of attempted aggravated robbery. The court sentenced him to life imprisonment without parole eligibility for 20 years plus a consecutive term of 130 months' imprisonment, with the sentences to run consecutive to the sentences imposed in the triple murder case: consecutive sentences of three life terms for the first-degree murders, 79 months for kidnapping, and 32 months for aggravated burglary.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The prosecutor did not commit reversible misconduct during closing argument.
Sappington first contends that reversal and remand for new trial is required because the prosecutor improperly diluted the "beyond a reasonable doubt" burden of proof during closing argument. The State basically responds that no misconduct occurred.
Our standard of review was recently reiterated in State v. White, 284 Kan. 333, 337-38, 161 P.3d 208 (2007):
"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. State v. Elnicki, 279 Kan. 47, 58, 105 P.3d 1222 (2005) (quoting State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 [2004]). We have applied the test to prosecutorial action in contexts beyond mere comment on the evidence. See State v. Swinney, 280 Kan. 768, 779, 127 P.32 261 (2006) (citing cases)."
In the second step of the two-step 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 ever 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 reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial], have been met.'" State v. White, 284 Kan. at 338.
Sappington specifically challenges the following comments made by the prosecutor during his rebuttal closing argument:
"You know, one of the things we talked about in voir dire, if you will remember, we talked about this beyond a reasonable doubt concept and there's not a single one of you here can say–can go into that jury room and say, I know beyond all doubt that Marc Sappington is the one who did this. There's not a single one of the 12 of you that can go back there and say, I know beyond any doubt that Marc Sappington is the one that did this. It's not what the law is asking you to do, though. Remember our test is beyond a reasonable doubt. And is it reasonable given that evidence that we have that Marc Sappington is the one that did this? And I suggest to you the answer is, yes, it is.
"And, with that, I ask you to go back and consider all those things I asked you to do a little bit earlier and return those verdicts of guilty for both premeditated first degree murder and attempted aggravated robbery. Thank you." (Emphasis added.)
Sappington argues that the italicized statement suggested to the jury that it could convict him if they merely found it was "reasonable" to conclude he was the culprit, an incorrect statement of law that lessened the State's "reasonable doubt" burden of proof. As he correctly notes, a jury may convict a defendant only if it has "no reasonable doubt as to the truth of each of the claims required to be proved by the State." PIK Crim. 3d 52.02.
The parties have cited a number of cases for our guidance, several of which support both sides. In chronological sequence they are as follows:
In State v. Banks, 260 Kan. 918, 926, 927 P.2d 456 (1996), the defendant moved for a mistrial because the prosecutor argued in closing:
"'My burden is the burden that you must consider this case beyond a reasonable doubt. It is not beyond any doubt, it is not beyond the shadow of a doubt, it is beyond a reasonable doubt.
"'Reasonable doubt means if you are going to say these men are not guilty of something, you have to give a reason for it.'" (Emphasis added.)
The court found the italicized language improper. However, it held that the trial court did not abuse its discretion in refusing to declare a mistrial due to this one statement. 260 Kan. at 926-28. The court concluded that when the prosecutor's argument was considered in its entirety, particularly the preceding nonitalicized language correctly stating the burden, the statements ultimately recognized that the burden of proof falls on and remains with the State. 260 Kan. at 927.
As an apparent factor in its calculus, the Banks court also observed that the district court had correctly instructed the jury: in effect, PIK Crim. 3d 52.02.
"'The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.
"'The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims made by the state, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.'" (Emphasis added). 260 Kan. at 927.
In affirming the conviction despite the prosecutor's improper statement, this court emphasized the "other substantial and compelling evidence going directly to [defendant's] guilt." 260 Kan. at 928.
In State v. Mitchell, 269 Kan. 349, 7 P.3d 1135 (2000), the court held that the following remark during the prosecutor's closing argument was an erroneous and misleading statement of law: "'the State's burden of proof in this type of criminal case and in any criminal case is a common sense burden.'" 269 Kan. at 360-61. It reasoned that the comment impermissibly suggested to the jury that it could convict the defendant "by using a burden of proof less than 'reasonable doubt.'" 269 Kan. at 361.
As in Banks, however, in Mitchell the court ultimately ruled that the improper remarks did not deny the defendant a fair trial essentially because of the weight of the evidence against him. Echoing part of the federal standard from Chapman v. California, this court held that the remarks had little, if any, likelihood of changing the result of the trial. 269 Kan. at 361.
The next year in State v. Diggs, 272 Kan. 349, 34 P.3d 63 (2001), the defendant likewise argued that the prosecutor misstated the State's burden of proof and erroneously shifted the burden to the defense. The opinion does not quote the prosecutor's closing argument, but states:
"Diggs contends that the prosecutor erred by equating the 'reasonable doubt' standard with 'common sense' or 'reasonable explanation.' She argues that the burden was shifted to Diggs when the prosecutor repeatedly asked the jury to consider whether Diggs' actions were 'reasonable.
"Here, unlike State v. Mitchell, 269 Kan. 349, 357-61, 7 P.3d 1135 (2000), the prosecutor did not define reasonable doubt as 'common sense,' nor did he define it as a 'reasonable explanation.' He told the jurors that they could apply common sense to the facts in their deliberations, including the determination of whether rigor mortis had already started setting in when the EMT's arrived at the scene of the murder. It appears that the prosecutor questioned whether certain facts were 'reasonable' in order to argue to the jury that the facts did not create a reasonable doubt." 272 Kan. at 363.
The Diggs court concluded that the prosecutor's comments were within the bounds afforded counsel for argument.
The next year in State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), the defendant argued that the prosecutor improperly defined the State's burden of proof with the following statement during closing argument:
"'I would submit to you that a reasonable doubt is really nothing more than a fair doubt that's based on reason and common sense and arises from the status of the evidence. It's impossible for me to prove everything to you by an absolute certainty. At the same time, a defendant should not be convicted just on speculation and conjecture, but you have much more than that in this case. You don't just have speculation or conjecture that [defendant] is guilty.'" 273 Kan. at 248.
The Finley court noted the risk "that the definition gave the jury the impression that something slightly more than suspicion or conjecture 1s sufficient to reach reasonable doubt." 273 Kan. At 249. Nevertheless, it also noted that this conclusion would ignore the first part of the prosecutor's argument. Although seemingly deciding that the prosecutor's statement was error, and therefore qualifying as misconduct, the Finley court ultimately concluded that "[i]t cannot be said the prosecutor's argument regarding the burden of proof denied [defendant] a fair trial," because the court had earlier determined that the evidence of guilt was overwhelming. 273 Kan. at 249.
More recently, in State v. Wilson, 281 Kan. 277, 286, 130 P.3d 48 (2006), the court observed that the prosecutor's closing argument was far less egregious than the prosecutor's statement in Finley: "'I want you to look at the evidence, remember all the testimony that you heard, and go back to that definition of reasonable doubt that, unfortunately, no one can say in precise words what it is. You just have to intuitively know when you see it.'" This court held that the prosecutor properly stated the law regarding reasonable doubt. 281 Kan. at 287.
In the instant case, the prosecutor did not expressly define the term "reasonable doubt" in improper language as did the Banks and Mitchell prosecutors. However, his inaccuracy is more serious than the prosecutors' statements made in Finley and Wilson, and probably Diggs, on the issue of burden of proof. To convict a defendant of a crime, the jury must find that it has no reasonable doubt as to the truth of each claim the State must prove. PIK Crim. 3d 52.02. Yet, as Sappington argues, his prosecutor's statement suggests that a jury may convict if the jury believes that it is merely "reasonable" that he committed the crime. We conclude that this misstatement dilutes the State's burden because a jury could convict due to its reasonable belief that a defendant committed a crime while still having a reasonable doubt as to guilt. Accordingly, the comment is outside the wide latitude afforded a prosecutor.
The prosecutor's misstatement of the law, however, does not necessarily amount to reversible error. Reversal is not required unless the prosecutor's actions deprived Sappington of a fair trial. State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004). The first factor to consider in the harmlessness inquiry is whether the misconduct is gross and flagrant, i.e., did it prejudice the jury against Sappington? See State v. Elnicki, 279 Kan. 47, 65, 105 P.3d 1222 (2005). We hold it did not.
As did the prosecutor in Banks, the prosecutor here did properly state the burden of proof in the sentence immediately preceding his misstatement, saying: "Remember, our test is beyond a reasonable doubt." Also, as in Banks, the overall closing argument made several clarifications on the burden of proof: that reasonable doubt is not "beyond all doubt" or "beyond any doubt." See also Finley, 273 Kan. 237 (court must read the prosecutor's erroneous statement together with his or her correct statements on the burden of proof).
Likewise, as in Banks, here the district court properly instructed the jury on the burden of proof, providing PIK Crim. 3d 52.02 on the burden of proof and reasonable doubt. Additionally, the court provided the jury with Instruction No. 8, which explained the alternate theories of murder in the first degree and reiterated that the burden of proof is beyond a reasonable doubt. A jury is presumed to have followed the instructions. State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004). In short, the prosecutor's conduct was not gross and flagrant.
Next, no real prosecutorial ill will has been shown. There is no indication that the prosecutor deliberately misstated the burden of proof with this isolated statement: "And is it reasonable given that evidence that we have that Marc Sappington is the one that did this? And I suggest to you the answer is yes, it is." Citing Diggs, the State argues that when placed in the context of his entire rebuttal argument, the statement was intended only to mean that it was reasonable, based upon the evidence presented at trial, to believe Sappington's confession instead of his trial testimony. In other words, the State claims that the prosecutor merely questioned whether certain facts were reasonable in order to argue that the facts did not create reasonable doubt.
The prosecutor's language is more direct and more troubling than that suggested in Diggs, making ill will a closer question. But the fact that it is merely close, and not clear, and when coupled with the language's one-time appearance during a lengthy closing argument, weighs against our finding ill will.
Lastly, the evidence against Sappington was of such a direct and overwhelming nature that the misstatement likely had little weight in the minds of the jurors. In response to Sappington's and A.G.'s trial recantation of their confessions, Detective Lawson testified that he did not tell them what to say prior to taking their statements. Although he had a good idea of the physical evidence prior to taking Sappington's confession, he did not know the "play by play" as detailed in their confessions. Moreover, he testified that he was very careful not to tell A.G. anything about Sappington's confession because he wanted to judge both suspects' credibility based upon how their statements coincided.
Lawson further denied ever promising Sappington that he would not receive a death sentence if he confessed to Mashak's killing. He also testified that after he walked A.G. the short distance from the detention center to his adjoining office building, A.G.'s attorney was present for a large portion of the interview that occurred prior to the taped confession.
Both Sappington's and A.G.'s taped confessions were played for the jury. A review of the tapes reveals that the two confessions closely paralleled each other in their detail and seem spontaneous and unrehearsed. Both men were forthcoming with little need for exploratory questions by Lawson. During their taped confessions, both Sappington and A.G. stated that they were not coerced or promised anything in exchange for their statements. When questioned by Lawson at the end of his confession, Sappington specifically stated that the officers never told him what to say and that he volunteered all of the information.
Additionally, there was considerable circumstantial evidence supporting both confessions. Both Turner and Martin testified that after hearing shots at the body shop, they saw two men leaving together in a brown vehicle. Both Sappington and A.G. volunteered in their confessions that they fled in a brown vehicle. Eight assault rifle shell casings were found at the scene; shop occupant Sublett testified that the shooter not only fired an assault rifle but also wore a black mask. Sappington confessed to shooting an assault rifle and wearing a black scarf over his face.
Sublett testified that one man entered first, argued with Mashak, and as soon as he walked out an armed man entered and began shooting. He also testified that he could tell that the two men–A.G. and the shooter–were together and were executing a plan. Sappington confessed that they had a plan: A.G. was to enter the shop first, and he was to enter seconds later as the enforcer to hold a gun on the occupants. Additionally, an anonymous source called the police and identified Sappington as A.G.'s accomplice. Both Sappington and A.G. volunteered in their confessions that Sappington was the shooter.
Supportive of a plan, or at least of A.G.'s involvement, was an officer's testimony that the pager found at the scene contained messages from A.G.'s family on the day of the shooting, stating, "don't ruin your future," "please turn around before it's too late," "don't choose lockup over Grandma, Marie, yourself, your future," and "go to [church] before it's too late." Similarly, A.G. was identified by the victim's wife as the man with whom her husband had had recent difficulty about a blue car and identified by shop occupant Sublett as the man who had entered to angrily argue about the car shortly before the shooting.
Furthermore, A.G.'s father directly contradicted A.G.'s trial testimony that his father only picked up A.G. after the incident. In the process the father corroborated many of the details of the recanted confessions–October 30, 2007which Sappington and A.G. claimed were based upon information fed to him by Detective Lawson.
The father testified that on March 16, 2001, A.G. called him sometime in the afternoon to come pick him up at an apartment building. The father further testified that he picked up both A.G. and A.G.'s friend, whom he did not know. When he got to the building, he opened his trunk from the inside of his car, and A.G. and the friend put their shoes in the trunk. The friend then sat in the back seat and A.G. sat in the front. The father dropped the friend off somewhere