IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 82,610
STATE OF KANSAS,
Appellee,
v.
JON L. WHITESELL,
Appellant.
SYLLABUS BY THE COURT
1. Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt.
2. Stalking is an intentional, malicious, and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety. K.S.A. 21-3438(a).
3. "Course of conduct," under the stalking statute, means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of course of conduct. K.S.A. 21-3438 (d)(1).
4. "Harassment," under the stalking statute, means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. K.S.A. 21-3438(d)(2).
5. "Credible threat," under the stalking statute, means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person's safety. The present incarceration of a person making the threat shall not be a bar to prosecution. K.S.A. 21-3438(d)(3).
6. While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.
7. Despite our First Amendment rights, we are not free to harm others under the guise of free speech. As speech strays further from the values of persuasion, dialogue, and free exchange of ideas, and moves toward willful threats to perform illegal acts, the State has greater latitude to regulate expression.
8. It is well settled that no one can use constitutional rights to invade the rights of others. As the Supreme Court has repeatedly held, expressive activity may be prohibited if it involves substantial disorder or invasions of the rights of others. Moreover, the Supreme Court has held that violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact are entitled to no constitutional protection.
9. The stalking statute serves significant and substantial State interests by providing law enforcement officials with a means of intervention in potentially dangerous situations before actual violence occurs, and it enables citizens to protect themselves from recurring intimidation, fear-provoking conduct, and physical violence.
10. The admission of evidence lies in the sound discretion of the trial court. 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. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.
11. Kansas courts have consistently allowed evidence of marital discord for the purpose of showing intent and course of conduct.
12. A trial court may declare a mistrial when prejudicial conduct makes it impossible to proceed with the trial without injustice to the defendant. K.S.A. 22-3423(1)(c). The decision to declare a mistrial lies within the sound discretion of the trial court and will not be reversed absent a clear showing of abuse of that discretion. The trial court is in the best position to determine if its order in limine has been violated and to determine the degree of prejudice a violation may have caused the accused.
13. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. If the claimed error has been determined to implicate a defendant's right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed.
14. The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
15. To warrant reversal of a judgment because of improper contact or communication between juror and an outsider, there must be some showing or indication of injury, actual or potential, to the complaining party, or the act or conduct complained of must be such as to afford reasonable grounds to question the fairness of the trial or the integrity of the verdict, or as would tend to destroy or impair public confidence in trial by jury.
16. When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
17. The use of Pattern Instructions for Kansas (PIK) is not mandatory but is strongly recommended. The pattern instructions have been developed to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.
18. Cumulative trial errors may require reversal of a defendant's conviction if the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.
Appeal from Sedgwick district court; RICHARD T. BALLINGER, judge. Opinion filed December 8, 2000. Conviction affirmed, sentence vacated, and case remanded with directions.
Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, argued the cause and was on the brief for appellant.
Charles R. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: The appellant, Jon L. Whitesell, appeals his conviction for one count of stalking his wife, Julie Whitesell. Whitesell was sentenced to 60 months of probation. Whitesell raises several issues on appeal. This court has jurisdiction pursuant to K.S.A. 20-3018(c).
The relevant facts of this case span over an 8-year period. Julie met Whitesell in 1989, became pregnant, and married him in 1990. Whitesell and Julie rarely lived together as the relationship was abusive from the start. When Julie and Whitesell did live together, Julie would often flee with her children to her sister's house when Whitesell became violent.
In March 1991, Whitesell became very angry during an argument when he discovered his large hunting knife he kept in his vehicle was gone. Evidently, Julie had taken the knife from the truck. Whitesell subsequently threw Julie into a closet and refused to let her out. Julie eventually fled to her mother's home. When Julie returned home, Whitesell had laid out all the knives in the kitchen in a triangle pattern on her kitchen table. Julie believed that Whitesell was considering either suicide or killing her. Whitesell was hospitalized on March 11, 1991, because his family believed he was suicidal.
In April 1991, while Julie was driving Whitesell from the hospital to another medical appointment, Whitesell became angry, reached over, turned off the vehicle, and pulled her out of her seat. Whitesell got into the driver's seat and started driving very fast. Julie begged him not to kill her. At a stop light, Julie jumped out of the car and ran away.
During periods of hospitalization in 1991, Whitesell called Julie repeatedly and accused her of having affairs. He told her that he could come and find her if he needed to and that she "has not seen anything yet" if she thought she was afraid of what had happened before.
In June 1991, in a violent rage, Whitesell threw water on Julie while she lay in bed sleeping. Whitesell told Julie that he was taking their daughter. When Julie tried to stop him from driving away, Whitesell pounded her head against the steering wheel, shoved her to the ground, and pulled out her hair. Whitesell also shoved Julie's older daughter against the side of the house. Whitesell was eventually held down, cursing and screaming, by several firemen who had responded to a nearby emergency. Whitesell was arrested and convicted for domestic battery.
In 1992, Julie filed a protection from abuse order. Whitesell subsequently filed for divorce. Later that year, Julie's brother discovered Whitesell attempting to break into Julie's home. Whitesell had also disabled the air conditioner and had previously removed the spark plugs or distributor from Julie's car.
In October 1992, Whitesell dismissed the divorce action and told Julie that marriage was "till death do us part."
On January 20, 1993, Julie filed another protection from abuse order. Two days later, Whitesell pushed Julie, bruising her arm. Whitesell then locked Julie in the bedroom with him, threw her into the corner, and pressed his pelvis against her. Julie believed that Whitesell was going to rape her. Whitesell then threw Julie out into the hall with so much force that Julie's foot went through the wall.
In April 1993, Julie filed for divorce. Whitesell went to Julie's house to talk to her about the divorce and the two engaged in sexual intercourse. Shortly thereafter, Julie discovered that she was pregnant with Whitesell's baby. Julie eventually dismissed the divorce action. Whitesell moved back in to the house with Julie when they discovered that she had been diagnosed with cancer.
In March 1994, Julie became fearful of Whitesell when he became violent and threw a television set. Julie tried to leave the home, but Whitesell slapped her on the back of the head and kicked her. Julie tried to escape to a bedroom with the children but Whitesell kicked in the door. Julie eventually got outside, but Whitesell shoved her and her children to the ground.
Julie then filed another protection from abuse order. In October 1994, Whitesell was arrested for violating the order. Whitesell was angry because Julie had missed a marriage counseling session. Whitesell called Julie and wanted to know where his gun was. He told her, "Since I'm crazy there's no telling what I'll do." Whitesell went to Julie's father's house, beat on the door, and screamed at him to give him his gun. Whitesell then went to Julie's home and broke into the side garage door.
In November 1994, Whitesell returned to Julie's house and tore off a storm drain, broke a flower pot, and kicked in her garage door.
In late 1994 or early 1995, Julie filed a mental commitment on Whitesell. Whitesell called the district attorney's office in a rage and said that he was going to kill Julie and that he had a gun. A few days later Whitesell went to the district attorney's office and told them that he was very angry, that he owned a gun, and that he would kill Julie and himself.
Whitesell was hospitalized from January through March 1995. In August 1995, Whitesell called Julie and threatened suicide. Whitesell was very angry as he had seen Julie with another man. Police officers went to Whitesell's apartment to check on him. Whitesell told officers that he had been hospitalized nine times and that he did not want to go back. Three hours later, after the SWAT team was called in and after police had agreed not to arrest Whitesell or take him to the hospital, Whitesell was taken into custody.
After the August 1995 incident, Julie isolated herself with her children. Julie did not allow her children to ride their bikes and only let them play in the backyard. Julie never opened the blinds or left the garage door open.
In early September 1995, Julie called police and reported that Whitesell was following her, driving by her home, repeatedly calling her, and was checking the tags of cars in her driveway. Whitesell also sent Julie a note referencing spousal abuse and the O.J. Simpson trial which was being televised at the time.
In December 1996, Julie returned to work. Shortly afterwards, Julie began to find suicidal notes from Whitesell taped to the steering wheel of her locked car. In October 1996, Whitesell sent Julie a birthday card telling her "I will not quit!"
In April 1997, Julie filed for divorce a second time. During the 4-month period from March to July 1997, there was a dramatic escalation in Whitesell's activities with Julie. Julie believed that this was prompted by her decision to seek a divorce. Whitesell's actions during this period prompted the district attorney's office to file this stalking case against him. Because several of the issues in this case turn on the particular facts, we will review the events of this period in greater detail.
March 23, 1997. Julie called the police to complain that Whitesell was driving in the area and told police that she was scared of him. Julie told officers that Whitesell had been hospitalized before for "different reasons" and that Whitesell had "homicidal thoughts." As the responding officer left Julie's house, he saw Whitesell driving down the street. The officer pulled Whitesell over. Whitesell explained that he was in the area to check on Julie's safety. Whitesell was arrested for driving on a suspended license.
April 18, 1997. Julie filed a divorce petition and obtained temporary orders notifying Whitesell that his return to said residence without the permission or upon the invitation of the petitioner could be considered as criminal trespass.
April 23, 1997. Julie called the police in the early morning hours to request an "extra watch" on the house. Julie told officers that Whitesell had threatened to harm her throughout the divorce proceedings. Julie told officers that she had seen Whitesell riding a bicycle by her house several times, including the previous evening. Whitesell's parents later stated that Whitesell was on vacation in Albuquerque, New Mexico, with them at the time.
May 11, 1997. Divorce papers with temporary orders were served on Whitesell.
May 25, 1997. While performing a routine patrol at approximately 11:20 p.m., Deputy James Moreland found Whitesell parked down the street about six houses from Julie's house with his lights off. Whitesell had a pair of binoculars in his vehicle. Moreland advised Whitesell to go home. Whitesell told Moreland that he was sad because he wanted to see his children and that Julie had refused to let him see them. Moreland told Whitesell that he was "starting to get close to borderline stalking." Whitesell also told Moreland that he wanted to say a prayer for his children before he left the area; however, Moreland told Whitesell to go home and pray. After Whitesell left, Moreland talked with Julie. Julie was scared and trembling and had a "look of panic on her face." Julie was afraid that Whitesell was going to kill her.
May 31, 1997. Julie called the police to complain that Whitesell was yelling threats at the house; however, Whitesell was not there when the responding officer arrived. Julie told the officer that Whitesell had driven by several times while staring intently. Julie also told the officer that Whitesell pulled up to the front of the house to find Kyle Foland, Julie's new boyfriend, mowing the lawn. Whitesell asked Kyle if he was a Christian and then made crude comments to Julie about what he thought was makeup on her face. Whitesell called Julie a slut and a whore and told her to watch her back. Julie asked the officer to patrol the area occasionally and watch for Whitesell.
June 1, 1997. Julie called the police at 2:24 a.m. to report that she thought she saw Whitesell drive by the house. Deputy Moreland once again responded to the call but could not locate Whitesell. Moreland did find a "trampled down" area in a wheat field near the back yard. Several pop cans were located near the trampled down area. Both Moreland and Julie speculated that the wheat was trampled down by Whitesell while he was watching the house.
June 5, 1997. Julie received a Bible in the mail from Whitesell, along with a copy of the Kansas adultery statute and a note. His handwritten inscription inside the cover of the Bible described how he would not quit and would not be silenced, which frightened Julie.
Later in the day, Whitesell called Julie wanting to see the children. Julie told Whitesell that he could not see the children. In response, he called her an adulteress and then hung up.
June 11, 1997. Julie called the police to report that her oldest daughter saw Whitesell watching her play baseball from across a field. (Julie's oldest daughter is a child by another man.)
June 13, 1997. Julie called police to report that an anonymous person had mailed a postcard to Kyle's brother-in-law, which advised him that Kyle and Julie were having an adulterous affair. The postcard urged the brother-in-law to "confront them both on this matter, witnessing to them the critical nature of this sin and its consequences." When Kyle showed the card to Julie, she was shocked and frightened.
July 4, 1997. Whitesell went to Julie's house in a rental car and told Kyle how much he missed Julie. Whitesell admitted to Kyle that he had hit Julie in the past, but also said that Julie was abusive and that his home was his castle. Whitesell asked Kyle if he would pray with him, which he did.
July 20, 1997. Whitesell drove up and down the street in front of Julie's house several times in the morning. Whitesell then followed Kyle from Julie's house to the Boeing parking lot and confronted him about "screwing his wife." Whitesell told Kyle that "you have nothing to fear but my prayers." Julie called the police to report the incident and also told them that she believed Whitesell was writing down the license numbers of cars which had been at her residence.
The incidents frightened Julie; she lost weight and did not "take care of herself" as she normally did. Julie was afraid of leaving her oldest daughter with her children. She was afraid that Whitesell would attempt to come and talk her daughter into letting him in the house. Julie was terrified that Whitesell was going to attack her or her children.
As a result of Julie's frequent reports in the summer of 1997, Detective Tom Lee compiled all of Julie's past police reports and presented them to the district attorney's office with a recommendation that charges be filed against Whitesell. Charges were filed on July 21, 1997, and Whitesell was arrested the next day. Whitesell was convicted of stalking between the dates of March 23, 1997, and July 20, 1997. The judgment of the first trial, however, was vacated on jurisdictional grounds. The second trial also resulted in a conviction for one count of stalking. Whitesell was sentenced to 60 months of probation. Whitesell raises several issues on appeal.
I. CONSTITUTIONALITY OF THE STALKING STATUTE
Whitesell argues that K.S.A. 21-3438 is unconstitutionally vague and overbroad.
Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. State v. Rucker, 267 Kan. 816, 830, 987 P.2d 1080 (1999); State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (1996); State v. Adams, 254 Kan. 436, 438-39, 866 P.2d 1017 (1994).
In Adams, we discussed our review of statutes and stated:
"'The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt.'" 254 Kan. at 438-39.
Prior to trial, Whitesell filed a motion to dismiss, arguing that K.S.A. 21-3438 is unconstitutionally vague and overbroad on its face and as applied to him. The trial court denied the motion. After trial, Whitesell filed a motion for arrest of judgment, again raising the vagueness and overbreadth issues. The trial court denied the motion.
K.S.A. 21-3438 sets forth in pertinent part:
"(a) Stalking is an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety.
. . . .
"(d) For the purposes of this section: (1) 'Course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of 'course of conduct.'
"(2) 'Harassment' means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.
"(3) 'Credible threat' means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person's safety. The present incarceration of a person making the threat shall not be a bar to prosecution under this section."
A. VAGUENESS
Whitesell admits that this court recently rejected the vagueness argument in Rucker and does not offer anything of substance in the way of new argument on the subject. Arguments which are raised but not briefed will not be considered on appeal. State v. Pratt, 255 Kan. 767, Syl. ¶ 4, 876 P.2d 1390 (1994); McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994); State v. Trudell, 243 Kan. 29, 38-39, 755 P.2d 511 (1988); Supreme Court Rule 6.02(e) (1999 Kan. Ct. R. Annot. 33).
Nothing has changed since our holding in Rucker. In Rucker, the appellant challenged the stalking statute on vagueness grounds, arguing that "repeated," "course of conduct," "series of acts," "credible threat," and "legitimate purpose" were unconstitutionally vague. After evaluating case law from other jurisdictions, we held that the language in K.S.A. 21-3438 was not unconstitutionally vague, stating:
"It appears to us that all the amendments made in the 1995 stalking law followed our recommendation in Bryan. The majority of jurisdictions with statutes which include these terms have upheld the constitutionality of their statutes and reject vagueness claims. The terms 'repeatedly,' 'apparent authority,' and 'legitimate purpose' when read in conjunction with the rest of the statutory language do not require that a person of common intelligence guess as to their meanings. The terms are defined in relation to an objective standard, the statute contains a credible threat element, and it excludes constitutionally protected conduct. We reject Rucker's claim of vagueness and hold K.S.A. 21-3438 to be constitutional." 267 Kan. at 837.
Pursuant to Supreme Court Rule 6.09(b) (1999 Kan. Ct. R. Annot. 39), Whitesell submitted additional authority concerning the vagueness issue after the briefs were filed. Whitesell points to Staley v. Jones, 108 F. Supp. 2d 777 (W.D. Mich. 2000), in support of his vagueness argument. Staley provides nothing in the way of support for Whitesell's argument that the Kansas stalking statute is unconstitutionally vague. Whitesell references footnote 4 in which the Staley court states that "the statute provides absolutely no guidance as to what constitutes a 'legitimate purpose.' Therefore, the public and the police are left solely to their own speculative powers to determine the meaning of this clause." There are several problems with Whitesell's argument on this point. First, footnote 4 is merely dicta, as the district court is clearly speculating on what it might decide, had the Michigan Court of Appeals not already decided the issue in People v. White, 212 Mich. App. 298, 536 N.W.2d 876 (1995). The dicta in Staley is frustrating in that the judge admitted that it is not the law but merely what he would decide if there was no controlling precedent. The federal judge noted as much, stating:
"If the White interpretation of the statute were not binding on the Court, it would agree that these portions of the statute violate the Due Process Clause. . . . As such, without the White interpretation, the Court would agree with Staley that the statute fails to meet the basic requirements of the Due Process Clause." 108 F. Supp. 2d at 786, fn. 4.
Second, the opinion in Staley is not binding upon this court. Third, this court already determined that the language as currently contained in K.S.A. 21-3438 is not unconstitutionally vague, and without any new substantive argument by Whitesell on this issue, the holding in Rucker stands.
B. OVERBREADTH
In State ex rel. Murray v. Palmgren, 231 Kan. 524, 533, 646 P.2d 1091 (1982), this court discussed overbroad statutes, stating:
"While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. [Citations omitted.] Obviously, almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when 1) the protected activity is a significant part of the law's target, and 2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications. [Citation omitted.]"
"An overbreadth challenge will be successful if the challenged statute trenches upon a substantial amount of First Amendment protected conduct in relation to the statute's plainly legitimate sweep." Staley, 108 F. Supp. 2d at 786 (referring to Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 37 L. Ed. 2d 830, 93 S. Ct. 2908 [1973]).
Although the court in Staley held that the stalking statute was unconstitutionally overbroad, the opinion is not binding on this court. Furthermore, the reasoning and analysis is questionable at best. After reviewing a significant number of cases on the subject, the Staley decision appears to stand in isolation.
A criminal statute should not infringe upon the First Amendment in an unconstitutional manner. The First Amendment, however, is not an impenetrable shield which protects any speech or conduct, whatsoever, with disregard to its harm and effect. Despite our First Amendment rights, we are not free to harm others under the guise of free speech. "As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the State has greater latitude to regulate expression." People v. Borrelli, 77 Cal. App. 4th 703, 715, 91 Cal. Rptr. 2d 851 (2000) (referring to Shackelford v. Shirley, 948 F.2d 935, 938 [5th Cir. 1991]). "Application of the overbreadth doctrine . . . is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort." Broadrick, 413 U.S. at 613. Concerning stalking laws, there must be a balance that is struck between our constitutional right to free speech and our personal right to be left alone. In Borrelli, the California appellate court discussed the legislature's ability to criminalize some types of speech and conduct, stating:
"'Many crimes can consist solely of spoken words,