Opinion
No. 106,701.
2013-05-17
STATE of Kansas, Appellee, v. Willis L. DEWBERRY, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Willis L. Dewberry's direct appeal of his convictions by a jury of one count of aggravated robbery, K.S.A. 21–3427, one count of kidnapping, K.S.A. 21–3420(b), and one count of attempted aggravated robbery, K.S.A. 21–3301 and K.S.A. 21–3427.
Dewberry alleges that reversible error exists for the following eight reasons: (1) There was insufficient evidence to convict him of the alternative means crimes to which he was charged; (2) the jury instructions for attempted aggravated robbery were clearly erroneous; (3) and (4) the district court erred in excluding in one instance, and admitting in another, hearsay statements; (5) by instructing the jury it could consider the eyewitness victim's “degree of certainty” in her identification; (6) it was prosecutorial misconduct to tell the jury it could use the DNA evidence the State presented “however you want to use it”; (7) the cumulative effect of numerous errors deprived him of his right to a fair trial; and (8) he was unconstitutionally given an increased sentence based on his criminal history without requiring the State to prove his criminal history before a jury beyond a reasonable doubt.
Factual Background and Trial proceedings
We will consider each of Dewberry's appellate issues, but first we set forth the factual background, procedural matters, and trial proceedings which drive this appeal.
On December 22, 2009, Officer Robert Bachman was on patrol when he noticed two black men in a black Dodge Durango parked beside a school on Pennsylvania Street in Wichita. Bachman recorded the license plate on the vehicle as 582 AMV. Bachman drove around the block and when he returned the vehicle was gone. Bachman parked his car in the spot where the black Durango had parked and noted that he was able to see a Loan Smart business located on Central and Hydraulic Street about a block to the east.
The following evening, Maria Martinez was working at the same Loan Smart when she observed a vehicle pull into the parking lot around 5:45 p.m. Moments later, Martinez saw a black man come up to the door and place his face against the glass. Martinez believed that the man was a customer who wanted to transact business before the store closed, and she pressed a button that unlocked the door and allowed the man to enter the store. Martinez testified that the man's face was uncovered when he placed his face against the glass and that when he first entered the store she was able to see the man's entire face.
After the man entered the store, he covered a portion of his face with a piece of clothing and signaled for another individual to enter the store. A second man who was armed with what Martinez described as a shotgun or a hunting gun then entered the Loan Smart. Martinez described the first man who entered the store as a black male with a dark complexion and brown eyes, between 5'2? to 5' 4? in height, between 30 to 40 years old, and weighing between 200 to 250 pounds. Martinez stated that the second man who entered the Loan Smart was a black male dressed in black with his face partially covered, but he had distinctive eyes.
After the first man who entered the store covered his face, Martinez picked up the phone and began to dial 911, but before she could finish dialing, the man jumped over the counter and grabbed her arm. This man asked Martinez where the store's safe was located while the second assailant pointed his shotgun at her. Martinez told the men that the store safe was located in the back room in one of the drawers of a filing cabinet. The first assailant retrieved approximately $150 from the filing cabinet and then asked Martinez if this was all of the money that was in the store. Martinez pointed towards the cash register and told the men that the cash register could be opened by pushing a button on the register. The first assailant walked over to the cash register, pressed the button as instructed by Martinez, and removed approximately $25 from the register.
The two men then conferred briefly and then grabbed Martinez by the wrist and told her she was going to be tied up. One of the men had some white plastic zip ties and made Martinez kneel while the second man pointed the shotgun at her. The first assailant placed the zip ties on Martinez' wrists and then moved her into the back storage room.
After Martinez was in the storage room, the first assailant used a pair of pliers to cut the cord of one of the store's phones and then left the store. Martinez was able to free her hands, locked the front door, and then used another telephone to call the police.
Officers with the Wichita Police Department responded to her call, and during the investigation, a crime scene investigator collected four zip ties as evidence. The zip ties were later sent to the Sedgwick County Forensic Science Center for DNA testing.
On January 21, 2010, Aaron Goldston went to the Loan Smart and spoke with Martinez. During his conversation with Martinez, Goldston asked whether the store had recently been robbed and if they were offering a reward. Martinez told Goldston the store had recently been robbed. The police were called, and shortly thereafter, Goldston was located and put in contact with Detective Dan Binkley.
During the interview with Binkley, Goldston told Binkley that he had been at Dewberry's house earlier that day and had spoken with Dewberry's stepson, Walter Glass. Goldston told Binkley that during the conversation with Glass, Glass told Goldston that he and Dewberry were planning to rob a Family Video store later that evening and asked for his assistance. Goldston told Binkley that Glass and Dewberry would be driving Dewberry's black Durango and that the two would be armed with a sawed-off shotgun with a strap attachment and possibly a 9mm gun. Goldston also told Binkley that Glass had admitted that he and Dewberry had previously robbed a Loan Smart. Goldston reported that Glass told him that Glass and Dewberry went to the Loan Smart armed with a shotgun, jumped over the counter, tied up the store clerk with duct tape, and took money from the store.
Law enforcement established surveillance around Dewberry's residence. The police noted Dewberry's black Durango had a license plate of 582 AMV. Dewberry's Durango was observed leaving the residence, and the police followed him to a parking lot near a Family Video store.
Several officers converged on the Durango and apprehended the driver and the sole passenger. Police identified Dewberry as the driver of the Durango and Glass as the passenger. At the time of the arrest, Glass was wearing a trench coat, a neck gaiter that could be pulled up to cover part of his face, and a stocking cap. He was armed with a shotgun that appeared to have the barrel and the stock ends sawed off concealed beneath his coat. During a search of Dewberry's black Durango, officers found a pair of binoculars on the front passenger floorboard and a pair of latex gloves on the ground right outside the front passenger door.
After Dewberry was arrested, Binkley interviewed him and asked what a reasonable person would think a person was planning on doing when that person was wearing a cloth around their neck, a trench coat, had gloves, binoculars, and a shotgun in their possession. Dewberry answered, “Probably something illegal,” but Dewberry also maintained that he never saw Glass in possession of a shotgun when they were together in the Durango.
After Dewberry and Glass were taken into custody, Detective Jason Cates went to Martinez' residence to have her look at two photo arrays. While reviewing the first photo array, Martinez quickly selected Dewberry's photograph and stated, “That's him.” Martinez circled Dewberry's photograph, and in the comments section, she wrote that “[t]his gentleman has all the features + looks. His eyes! When he was demanding me to give him the money.” While reviewing the second photo array, Martinez selected Glass' photograph and indicated that she believed that this was the other individual involved in the robbery but that she was not 100 percent sure.
The State charged Dewberry and Glass with one count of aggravated robbery, one count of kidnapping, and one count of attempted aggravated robbery. Dewberry's motion to separate the trials was sustained by the court.
Prior to trial, oral swabs were collected from Dewberry, Glass, and Martinez to facilitate DNA testing. A summary of the DNA evidence and the prosecutor's comments thereto will be set forth later as one of the appellate issues.
This matter proceeded to a week-long trial which we will highly summarize as the facts we have set forth were the basis of the prosecutor's case. Dewberry presented an alibi defense, as well as medical testimony, contending he was not physically able to perform the action shown in a video and described by Martinez' testimony.
At trial, Binkley testified he had received the tip about the Family Video robbery from Goldston as previously set forth. Binkley testified he had interrogated Dewberry and after describing all the items found in the vehicle Binkley was able to obtain Dewberry's statement as to what a reasonable person would think and Dewberry's reply, “Probably something illegal.”
But, during his cross-examination of Binkley, defense counsel sought to verify that Dewberry had denied knowing Glass was planning on robbing the Family Video and had never seen the shotgun. The State lodged a hearsay objection, but defense counsel pointed out that Binkley had already testified about part of the interview and argued that it was all part of the same statement. The district court, however, sustained the State's objection.
Goldston also testified at trial. Goldston stated that on January 21, 2010, he had gone to the Loan Smart, the location of the first robbery and had asked Martinez, who was working at the time, “if they had recently been robbed.” The prosecutor asked, “Why did you ask that question?” Goldston responded, “Because my buddy had told me that he went in there.” Defense counsel objected, pointing out that the “buddy” in question was Glass, making the statement hearsay. The State, however, argued that the testimony was admissible under K.S.A. 60–460(i)(2) as a statement of a coconspirator. The district court agreed and overruled the objection.
Goldston also testified that he and Glass had spoken alone on January 21, 2010, and that Glass had asked him to participate in the Family Video robbery. Goldston testified that Glass had told him Dewberry was also going to participate in the robbery. Defense counsel lodged a continuing hearsay objection which the district court overruled. Goldston then testified that Glass had also told him about the Loan Smart robbery and stated that Dewberry had been involved. Although Goldston maintained at trial that Dewberry had not been present during this conversation, Binkley testified that Goldston had earlier told him that Dewberry was, in fact, present at the time.
Shelly Steadman, the “pathology/DNA laboratory manager” at the Sedgwick County. Regional Forensic Science Center testified regarding DNA evidence found on the zip ties police had collected from the scene of the Loan Smart robbery. According to Dr. Steadman, she had been able to obtain a “partial profile” from one of the zip ties. The entire sample had been used up during testing, she had “still obtained very little information.”
While discussing the DNA sample, Dr. Steadman had obtained from the zip tie, she clarified that some of the “peaks” in the sample were “below [the] analytical threshold.” That is, she “didn't use some of that because there were peaks at those loci that were below the threshold and in a range that could indicate that [they had] lost some information.” She also explained that her “statistical evaluation” was “conservative” in that she had not used all of the “peaks” in the DNA sample on her statistical evaluation.
While Dr. Steadman was able to exclude Martinez and Glass as possible contributors to the DNA sample on the zip tie, she was unable to exclude Dewberry. Dr. Steadman clarified that the “probability of selecting an unrelated individual at random ... who would exhibit a DNA profile that could not be excluded as a contributor to [that] profile would be 1 in 155 in the Caucasian population, 1 in 115 in the black population and 1 in 103 in the Hispanic population.” She admitted, however, that she could not tell whether the DNA belonged to a male or a female.
Martinez was a convincing witness for the State, identifying Dewberry as one of the men who robbed the Loan Smart. She testified to all of the facts of the robbery as previously set forth.
She then testified that she had picked a picture of Dewberry from a police photo array because she “was sure of who he was,” and assured the jurors, “I would never accuse anybody if I'm not sure.” She also testified that although she had picked Glass' photo out of a second photo array as the other robber, she had written on the array: “I believe this one could be him, but I'm not accusing this person. I'm not 100 percent sure. This could be him.”
After the State rested, defense counsel moved for a new trial based on the district court's refusal to allow defense counsel to question Binkley about the statements Dewberry had made to him during the postarrest interrogation. The district court asked, “Well, would you agree ... that you would be free to call Detective Binkley back to the witness stand?” Defense counsel replied, “Yes.” The district court then denied the motion, stating, “[T]he [c]ourt believes that there has not been error that substantiates the need for a new trial in this case.”
The security video of the Loan Smart robbery had been admitted into evidence at the trial. It showed the man Martinez claimed was Dewberry vaulting over a counter that was 3 feet, 7 inches tall, and 3 feet wide and doing so with impressive speed. At trial, however, Dewberry's doctor, Val Brown, Jr., testified, “The behavior of the individual in the clip is totally inconsistent with [Dewberry's] medical condition.” Dr. Brown explained that Dewberry “has one prosthetic hip and he has another hip that needs a prosthesis and it requires ... quite a lot of agility and strength and ability to vault a countertop like that.” Dr. Pedro Muzati also testified that he had done an independent medical evaluation of Dewberry in 2007 showing the need for a back fusion and a hip replacement.
Dewberry testified at trial and maintained that he had been home with his family at the time of the Loan Smart robbery. He also explained that he had only driven Glass to the area near the Family Video on January 21, 2010, so Glass could meet a friend there. Dewberry said he never saw the shotgun or the binoculars and maintained that he had no idea a robbery was going to take place.
After Dewberry's defense rested, the State recalled Martinez, over Dewberry's counsel's objection, who was allowed to testify that Dewberry's voice and the robber's voice “were exactly the same.”
During his closing argument, the prosecutor focused heavily on Martinez' credibility as an eyewitness, arguing that when shown the photo array, there was no hesitation. The prosecutor argued:
“She said, that's him. I'm sure. I think I've seen him before. Look at her comments. This gentleman has all the features and looks, his eyes, when he was demanding money from me. The first time she had an opportunity to look at ... Dewberry, she identified him as the person who robbed her on December 23, 2010.”
In addressing Dr. Steadman's testimony that Dewberry could not be excluded as a contributor to the partial DNA profile on one of the zip ties, the prosecutor said:
“If you look at the top numbers in each of the segments that she identified, [Mr.] Dewberry's numbers are there. Could she use all of those for her statistics? No, because the RFU level was too low. Can you use it in your determination? Yes. You can give it whatever weight you choose to give it. You aren't bound by the scientific principles of statistical calculations. You can take the information she gave you and use it however you want to use it.”
During its deliberation, the jury requested and received a readback of both Goldston's testimony and Binkley's testimony as to Binkley's conversations with Goldston.
The jury found Dewberry guilty of one count of aggravated robbery, one count of kidnapping, and one count of attempted aggravated robbery. Based on his criminal history score of A, Dewberry was sentenced to a 233–month prison term for the aggravated robbery conviction and a 59–month prison sentence for the kidnapping conviction, both sentences to run concurrently. Dewberry was sentenced to a 32–month prison term for the attempted aggravated robbery conviction which is to run consecutive to the sentence for aggravated robbery, for a controlling 265–month prison sentence. Dewberry has timely appealed.
Additional facts and jury instruction language will be presented in our analysis of the issues raised on appeal.
Analysis of Appellate Issues
Was there sufficient competent evidence to support the convictions of the crimes of aggravated robbery, kidnapping, and attempted aggravated robbery?
Dewberry challenges all three of his convictions based on numerous alternative means arguments. He contends his right to a unanimous jury was violated because the State alleged in separate counts of the complaints that the three crimes charged could be committed by alternative means and there was not substantial evidence to support each means. See State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010). Jury unanimity is statutorily required in Kansas. K.S.A. 22–3421.
Dewberry's arguments are predicated on the alternative means rule established by our Supreme Court in State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), which held: ‘ “[W]here a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ “ If the statute charged does, in fact, require alternative means to be proved, an appellate court must determine if a rational trier of fact could have found each means of committing the crime proven beyond a reasonable doubt. Wright, 290 Kan. at 202.
The State counters by contending that Dewberry's convictions for kidnapping and attempted aggravated robbery do not involve alternative means and there was sufficient evidence to support both the alternative means for his aggravated robbery conviction.
Dewberry's brief in this matter was filed prior to our Supreme Court's instructive decision of State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012). The State's brief herein was filed on September 11, 2012, and relies heavily on Brown. Dewberry has not filed a reply brief or responded to the Brown decision.
The teachings of Brown
Before responding to the parties' contentions, we will first attempt to summarize the lengthy Brown opinion and the rules and guidance which it provides. Justice Luckert wrote for the court. There was a concurring opinion from Justice Moritz.
George Brown was convicted of one count of aggravated indecent liberties with a child under the age of 14, K.S.A. 21–3504(a)(3)(A), and one count of lewd and lascivious behavior in the presence of a person under the age of 16, K.S.A. 21–3508(a)(2). Brown's alternative means argument as to the aggravated indecent liberties conviction focused on the instruction language ‘ “with the intent to arouse or satisfy the sexual desires of either G.V., or the defendant or both.’ “ 295 Kan. at 188. As to the lewd and lascivious behavior conviction, Brown emphasized that part of the jury instruction stating the State had to prove Brown ‘ “exposed his sex organ ... with the intent to arouse or gratify the sexual desires of the defendant or another.’ “ 295 Kan. at 189.
Brown's argument was that the State failed to prove that he intended, as to either count, to arouse or satisfy the sexual desires of anyone other than himself and, therefore, there was not substantial evidence to support conviction of each alternative means of each crime.
The Brown opinion began with a restatement of the alternative means rule from Timley and Wright as we have previously set forth.
Then, under the heading of “ Identifying Alternative Means Crimes ” the opinion stated that the prosecutor and trial judge should do an alternative means analysis and tailor elements jury instructions to include only alternative means which are supported by some evidence. 295 Kan. at 189–90. Without any tailoring, Brown argued that every option provided in each statute created an alternative means, while the State argued that the language Brown focused on did not create alternative means because the language related to the mens rea element, not to alternative acts.
The court rejected the State's argument that assertion of alternative mental states never create an alternative means issue. 295 Kan. at 190–91.Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), was cited and examined as a case holding “there was no reason ‘why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea,’ that is, to the requisite mental state. Schad, 501 U.S. at 632.” Brown, 295 Kan. at 191.
Next, the Brown court turned to and likewise rejected Brown's argument that the appearance of the word “or” in an elemental jury instruction always signals alternative means. The court noted the difficulty in applying the vague yet often used definition that “ ‘[i]n an alternative means case, ... a single offense may be committed in more than one way. Timley, 255 Kan. at 289 [citation omitted.].’ “ 295 Kan. at 192.
The court also pointed out that the Washington Supreme Court, from whom we draw this definition, recently rejected Brown's argument, stating that ‘ “[t]he mere use of a disjunctive in a statute does not an alternative means crime make.’ “ 295 Kan. at 193 (quoting State v. Peterson, 168 Wash.2d 763, 770, 230 P.3d 588 [2010] ). Instead of depending merely on the appearance of the word “or,” our Supreme Court stated that courts should return to the touchstone of legislative intent to determine whether there are alternative means. 295 Kan. at 193.
The court restated the rule that in determining legislative intent, we are to examine and interpret the language the legislature used. Only if the language is ambiguous does the court turn to legislative history, background considerations, or canons of statutory construction. Further, we are directed to determine for each statute what the legislature's use of a disjunctive “or” is intended to accomplish. 295 Kan. at 193–94. The court continued:
“The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. But merely describing a material element or a factual circumstance that would prove the crime does not create alternative means, even if the description is included in the jury instruction.” 295 Kan. at 194.
The Brown opinion then stated that the focus of the alternative means rule is on the jury instruction and noted that “merely describing a material element or a factual circumstance that would prove a crime does not create alternative means.” 295 Kan. at 194.
Having cited the Washington Peterson decision earlier in its opinion, Brown now looked to it again as being illustrative of “whether statutory alternatives lists two or more essential, distinct elements, either (1) mental state, the mens rea, (2) conduct, the actus reus, or (3) in some statutes, an indispensable causation element. See Peterson, 168 Wash.2d at 772.” 295 Kan. at 194. After discussing the factual and reasons behind the Peterson decision, our Brown opinion stated:
“(‘The “elements of a crime” are commonly defined as “ ‘[t]he constituent parts of a crime—[usually] consisting of the actus reus, mens rea [ sic ], and causation-that the prosecution must prove to sustain a conviction.” ”); see K.S.A.2011 Supp. 21–5201(a) (‘A person commits a crime only if such person voluntarily engages in conduct, including an act, an omission or possession.’); K.S.A.2011 Supp. 21–5202(a) (defining culpable mental states and noting that ‘[e]xcept as otherwise provided, a culpable mental state is an essential element of every crime defined by this code’).” 295 Kan. at 195.
It was then stated that along the way to the Peterson decision, the Washington court also referred to a line of cases in which it had drawn a critical distinction between alternative means and “means within a means,” which our Supreme Court next discussed under the heading “ Options Within a Means Are Not Alternative Means.” 295 Kan. at 196–99.
This turned the Brown opinion to another consideration for determining whether the items connected by the disjunctive “or” are merely “means within a means,” also called “options within a means.” History of this concept was traced back to a 1988 Washington Supreme Court case. It was noted the Washington court has said that ‘ “[a]s a general rule, [alternative means] crimes are set forth in a statute stating a single offense, under which are set forth more than one means by which the offense may be committed.’ “ 295 Kan. at 196 (quoting State v. Smith, 159 Wash.2d 778, 784, 154 P.3d 873 [2007] ). Although generally a legislature will separate such alternative means into distinct subsections, a legislature may list additional alternatives or options within one such subsection or alternative means. Brown, 295 Kan. at 196.
Our Supreme Court further stated that under the Washington decision
“these options within an alternative do not constitute further alternative means themselves if they do not state additional and distinct ways of committing the crime, that is, if they do not require proof of at least one additional and distinct material element. Rather they are only options within a means if ... their role is merely to describe a material element or to describe the factual circumstances in which a material element may be proven. [Citation omitted.]” 295 Kan. at 196–97.
Our Supreme Court then accepted this concept which it described as a legislative creation of “an option within a means.” Moreover, “[o]ptions within a means-that is, the existence of options that do not state a material, distinct element-do not demand application of the super-sufficiency requirement. [Citations omitted.]” 295 Kan. at 197. The Brown court also noted and agreed with the Washington Supreme Court's belief that requiring jury unanimity on options within a means would not further the two underlying purposes of the alternative means doctrine: (1) to prevent jury confusion about what criminal conduct must be proved beyond a reasonable doubt and (2) ‘ “to prevent the State from charging every available means authorized under a single criminal statute, lumping them together, and then leaving it to the jury to pick freely among the various means in order to obtain a unanimous verdict.’ [Citation omitted.]” 295 Kan. at 197. Therefore, our Supreme Court clearly stated: “[O]n appeal, a super-sufficiency issue will not arise regarding whether there is sufficient evidence to support all options within a means.” 295 Kan. at 198.
Regarding the question of how to identify such options within a means, the Brown court again turned to Washington caselaw and gave two indicators: (1) definitions may state options within a means, and (2) factual circumstances generally state options within a means. 295 Kan. at 198–99. First, our Supreme Court noted that in Washington “purely definitional statutory language that elaborates on or describes a material element has tended to signal a secondary matter—an option within a means—that does not raise an alternative means issue. [Citation omitted.]” 295 Kan. at 198.
Next, regarding factual circumstances as an indicator that statutory language indicates options within a means as opposed to alternative means to commit the crime, our Supreme Court turned to State v. Laico, 97 Wash.App. 759, 763, 987 P.2d 638 (1999). In Laico, the Washington Court of Appeals did not find alternative means in statutory language which described the term “great bodily harm” as including ‘ “bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.’ “ 97 Wash.App. at 762; see Brown, 295 Kan. at 199. Because this language was merely describing the term “great bodily harm,” which is an element of first-degree assault, there was no alternative means issue.
Our Supreme Court then stated:
“In summary, in determining if the legislature intended to state alternative means of committing a crime, a court must analyze whether the legislature listed two or more alternative distinct, material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in some statutes, causation elements. Or, did the legislature list options within a means, that is, options that merely describe a material element or describe a factual circumstance that would prove the element? The listing of alternative distinct, material elements, when incorporated into an elements instruction, creates an alternative means issue demanding super-sufficiency of the evidence. Often this intent can be discerned from the structure of the statute. On the other hand, the legislature generally does not intend to create alternative means when it merely describes a material element or a factual circumstance that would prove the crime. Such descriptions are secondary matters options within a means-that do not, even if included in a jury instruction raise a sufficiency issue that requires a court to examine whether the option is supported by evidence.” 295 Kan. at 199–200.
The court then considered both of Brown's convictions and found that neither presented an alternative means issue.
Justice Moritz filed a concurring opinion agreeing with the majority's manner of identifying alternative means issues, but she would have revisited Wright, 290 Kan. 194, and adopt a modified harmless error analysis which would be applied in alternative means cases. See Brown, 295 Kan. at 216–28 (Moritz, J., concurring).
We will consider Dewberry's multiple alternative means arguments looking to our past appellate decisions, but we are aware that the teachings of Brown must be of prime importance in reaching our conclusions as to each argument.
Standards of review
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
“Issues of credibility are within the province of the jury. On appellate review, the credibility of a witness will not be passed upon, conflicting evidence will not be weighed, and all questions of credibility are to be resolved in favor of the State.” State v. Lyons, 266 Kan. 591, Syl. ¶ 3, 973 P.2d 794 (1999). A conviction can be based entirely on circumstantial evidence and the inferences fairly deductible therefrom. See State v. Bird, 240 Kan. 288, 299, 729 P.2d 1136 (1986), cert. denied481 U.S. 1055 (1987).
Issues of statutory interpretation and construction, including issues of whether a statute creates alternative means, raises questions of law reviewable de novo on appeal. Brown, 295 Kan. 181, Syl. ¶ 6.
Force or threat of bodily harm
Dewberry first contends that the instruction as to the necessary proof to convict him of aggravated robbery, reading in part: “2. That the taking was by force or threat of bodily harm to Maria Martinez,” constitutes alternative means of committing aggravated robbery. He relies on State v. Reed, 45 Kan.App.2d 372, 384–86, 247 P.3d 1074,rev. denied 292 Kan. 968 (2011), where it was found that sufficient evidence existed of both force and threat.
The State more convincingly argues that Reed does not control in light of Brown. It is the State's argument that the essential element of the K.S.A. 21–3426 crime of robbery is “the taking of property from the person or presence of another by force or threat of bodily harm to any person,” which is, in fact, a resisted taking. Force or threat of bodily harm merely describes the factual circumstances by which the taking may be proven and are not alternative means of committing robbery or aggravated robbery. See K.S.A. 21–3427.
We agree with the State. As was said in Brown, “[o]ptions within a means or definitional statutory language that merely elaborates on elements rather than defining the subject crime signals secondary matter that does not raise an alternative means issue. 295 Kan. 181, Syl. ¶ 10.Brown also teaches us that “[s]tatutory language purely descriptive of factual circumstances that may prove the subject crime signals secondary matter not giving rise to an alternative means issue. 295 Kan. 181, Syl. ¶ 11.
Both of these concepts apply here. The required taking by force or threat of bodily harm merely describes options within a means or the factual circumstance which proves the subject crime. This is not an alternative means issue.
There is also an alternative reason why this “by force or threat of bodily harm” argument does not require reversal.
Dewberry attempts to convince us that force as employed in the robbery and aggravated robbery statutes necessarily requires physical contact, relying on State v. Hendrix, 289 Kan. 859, 862, 218 P.3d 40 (2009). In Hendrix, the phrase “use of force” was held to mean actual force, 289 Kan. at 862, but this was in the context of a self-defense claim under K.S.A. 21–3211 and not considering force as employed in K.S.A. 21–3426 and K.S.A. 21–3427 within the alternative means concept.
It is reasonable that force should include any situation where one is forced to give up possession of property without either physical force or a specific threat of bodily harm. See State v. Moore, 269 Kan. 27, 33, 4 P.3d 1141 (2000) (robbery conviction upheld despite threat to do bodily harm when defendant “orchestrated a situation intended to intimidate”).
Here, there is evidence to support both force and threat of bodily harm. Martinez specifically testified that when the robbers entered the store, Dewberry grabbed her arm and made her drop the telephone receiver. This is also shown by the video surveillance cameras in the store. This is clear evidence of actual force, as is the use of force in grabbing Martinez' wrist, forcing her to kneel, and tying her up. The evidence here clearly showed the taking was done by force as well as by threat of bodily harm to Martinez; and even if the force is construed to be required to be physical (which it should not), physical force occurred to facilitate the taking.
The contention Dewberry raises as to force or threat of physical harm are not sufficient to grant him any relief.
Kidnapping
Dewberry next argues that his kidnapping conviction should be reversed because instructing the jury on intent “to facilitate flight or the commission of any crime” creates alternative means of kidnapping which were not proven.
Dewberry relies on State v. George, No. 97,679, 2010 WL 2502869 (Kan.App.2010) (unpublished opinion), which, on petition for review our Supreme Court had summarily remanded to be considered in light of Wright. On remand, George was reversed in part by the Court of Appeals because the State failed to present any “evidence of facilitating flight.” 2010 WL 2502869, at *1.
The State again convincingly argues that Brown applies and that Dewberry's kidnapping charge did not create alternative means, but rather an option within a means.
We will treat Dewberry's arguments summarily because our Supreme Court recently decided this precise issue using a Brown analysis contrary to his argument here in State v. Haberlein, 296 Kan. 195, 290 P.3d 640 (2012). Haberlein, 296 Kan. 195, Syl. ¶ 2, specifically states: “Neither the phrase ‘force, threat, or deception’ nor the phrase ‘to facilitate flight or the commission of any crime’ in the Kansas kidnapping statute sets forth alternative means of committing the crime of kidnapping or aggravated kidnapping .” The Haberlein discussion of the application of alternative means to kidnapping statutes is found at 296 Kan. at 206–09.
Aiding or abetting another to commit a crime or acting as a principal
Dewberry alleges that because the jury was instructed that it could convict him as either a principal or an aider and abettor, this case presents an issue of alternative means.
The State counters with its argument that accomplice liability does not create an alternative means for committing a crime. Dewberry cites us to several Court of Appeals cases which have held that acting as an accomplice does constitute alternative means for committing a specific offense.
We begin our discussion by recognizing the discussion in State v. Johnson, 46 Kan.App.2d 870, 884–86, 265 P.3d 585 (2011), which holds that the statute defining and proscribing aiding and abetting, K.S.A. 21–3205(1) does not set forth alternative means of committing a crime.
K.S.A. 21–3205(1) states: “A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
Instruction No. 8 in our case follows this statute and as given in our case reads:
“A person who, either before or during its commission, intentionally aids or abets another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
The Johnson opinion held that all the terms such as “advises, hires, counsels, or procures” are simply more specific ways to aid and abet a crime and are essentially synonymous or redundant terms to define the same prohibited conduct. 46 Kan.App.2d at 885. None of these terms entail different or distinct ways to commit a crime and are not alternative means of committing a crime. 46 Kan.App.2d at 885–86.
With this ruling recognized, we then turn to Dewberry's specific claim that committing aggravated robbery as a principal and as an accomplice constitute alternative means of committing that crime. Dewberry contends because the State failed to produce evidence that he acted as an aider and abettor in the kidnapping or that he abetted in the attempted aggravated robbery, we must reverse those convictions.
Dewberry relies on State v. Boyd, 46 Kan.App.2d 945, 268 P.3d 1210 (2011), petition and cross-petition for rev. filed January 23 and February 6, 2012, and State v. Frye–Watson, No. 100,772, 2010 WL 653107 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1098 (2010), to support its claim that aiding and abetting and principal liability are alternative means.
The State contends neither of these cases are controlling precedent because of the Supreme Court's State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), decision and application of Brown's teaching negates the logic of both. The State also points to State v. Gonzalez, No. 104,612, 2012 WL 3822474 (unpublished opinion) (Kan.App.2012) (unpublished opinion) and the recent Court of Appeals decision of State v. Snover, 48 Kan.App.2d 298, 287 P.3d 943 (2012), as holdings that the aiding and abetting statute, K .S.A. 21–3205(1) does not create an alternative means for establishing criminal liability.
This conflict will be resolved by our Supreme Court but there is considerable logic to both positions.
The Boyd opinion relied on State v. Schreiner, 46 Kan.App.2d 778, 782, 264 P.3d 1033 (2011), rev. denied 296 Kan. (February 20, 2013), for its argument that alternative means derives from materially different ways of committing a crime. K.S.A. 21–3205(1) was rephrased more broadly as marking different ways of facing criminal conduct for participating in specific wrongful conduct. The Boyd opinion noted that by enacting K.S.A. 21–3501(1), the legislature confirmed that an aider and abettor and a principal were both deserving of the same punishment although their conduct might be materially different. This resulted in the conclusion that aiding and abetting must be recognized as an alternative means of committing a crime to the act of the principal. 46 Kan.App.2d at 952–53.
This did not result in ultimate benefit to Boyd for under the facts of the aggravated robberies there, Boyd performed both the actions of a principal and an aider and abettor so that his aggravated robbery convictions were affirmed. 46 Kan.App.2d at 954–55.
The recent Snover decision involved an argument by one of three men convicted of nonresidential burglary, theft, and criminal damage to property that the State had failed to present any evidence that he damaged the property himself. Snover argued that the aiding and abetting instruction given at trial created an alternative means for committing the crime of criminal damage to property.
The Snover panel recognized Boyd but reached a different conclusion relying in part on the Washington Supreme Court case of State v. McDonald, 138 Wash.2d 680, 687, 981 P.2d 443 (1999), which held “ ‘principal and accomplice liability are not alternative means of committing a single offense.’ “ Snover, 48 Kan.App.2d at 302–03.
The Snover opinion adopted the McDonald reasoning that “extending the alternative means doctrine to ‘accomplice liability’ would ‘contradict our holdings' concerning ‘the emptiness of any distinction between principal and accomplice liability.” ‘ Snover, 48 Kan.App.2d at 303 (quoting McDonald, 138 Wash.2d at 687–88). The Snover opinion concluded: “K.S.A. 21–3205(1) does not enumerate one or more ways of committing a single offense. Thus, this statute does not create an alternative means for committing criminal damage to property.” 48 Kan.App.2d at 303.
There is a similar but more extensive discussion of McDonald in State v. Delacruz, No. 106,082, 2012 WL 1352865 (Kan.App.2012) (unpublished opinion), petition for rev. filed May 10, 2012, where it is stated:
“In [ McDonald ], the Washington Supreme Court held that ‘principal and accomplice liability are not alternative means of committing a single offense’ because ‘ “[a]ccomplice liability represents a legislative decision that one who participates in a crime is guilty as a principal, regardless of the degree of participation.’ “ The McDonald court worried that a contrary holding would undermine its case law on the nature of accomplice liability. 138 Wash.2d at 688. The court even gave an example of the case law at risk:
‘ “ “The legislature has said that anyone who participates in the commission of a crime is guilty of the crime and should be charged as a principal, regardless of the degree or nature of his participation. Whether he holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant. The elements of the crime remain the same.’ “ 138 Wash.2d at 688 [citations omitted.].
“The Washington Supreme Court reaffirmed its McDonald holding in State v. Teal, 152 Wash.2d 333, 96 P.3d 974 (2004)....
“The Teal court found that the jury ‘need not reach unanimity on whether a defendant acted as a principal or an accomplice ..., so long as “it was convinced that the alleged crimes were committed and that the [defendant] participated in each of them.’ “ 152 Wash.2d at 339; see 152 Wash.2d at 338 (noting that accomplice liability is not an element of a charged crime or an alternative means of committing such crime).” Delacruz, 2012 WL 1352865, at *6–7.
McDonald and State v. Teal, 152 Wash.2d 333, 96 P.3d 974 (2004), were not cited in Brown, but numerous other Washington cases were followed and approved by Brown. We do not believe this pattern will be abandoned when our Supreme Court visits the issue of accomplice liability and alternative means.
Aiding and abetting is not a separate crime in Kansas. Nor is aiding and abetting two different ways of committing a crime. Rather, it is a concept that extends criminal liability to a person other than the principal actor or actors. See Johnson, 46 Kan.App.2d 870, Syl. ¶ 9. In an aiding and abetting situation, a crime is not being committed in more than one way; rather, the principal and the aider are engaged in the violation of a statutory crime at different levels of participation.
Any finding that the actions of either an aider or an abettor and the principal or principals should be divided runs contrary to the Kansas statute and decisions which have long held that a person is criminally responsible for a crime committed by another “if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.” K.S.A. 21–3205(1); see, e.g., State v. Donaldson, 279 Kan. 694, 703, 112 P.3d 99 (2005).
When we examine the teachings of Brown, accomplice liability and principal liability do not involve separate material elements of the crime which is charged but rather a factual circumstance (the existence of a criminal enterprise involving two or more individuals) under which criminal liability may be established.
We hold that principal and accomplice liability are not alternative means of committing any of the offenses for which Dewberry was convicted. All of his arguments on appeal to the contrary are rejected.
There are not any alternative means arguments which entitle Dewberry to any appellate relief.
Dewberry and the State phrase the second appellate issue with distinctly different legal prospective and consequences.
Dewberry suggests it is an issue of the lack of substantial competent evidence to convict him of attempted aggravated robbery. He states his premise for error as follows:
Because the State failed to present any evidence that Mr. Dewberry tried, but failed, to take property from Martinez, this court must vacate his conviction for attempted aggravated robbery.
The State views Dewberry's claim as raising the question of the sufficiency of a jury instruction, which was given without objection, and frames the issue in this manner:
The district court's attempted aggravated robbery instruction was not clearly erroneous.
The parties do agree the question presented is based on the language of two jury instructions which were given by the court without objection. As to the charge of attempted aggravated robbery, the jury was given Instruction No. 11, which reads:
“In Count 3, the defendant is charged with the crime of an attempt to commit aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant performed an overt act toward the commission of the crime of aggravated robbery;
“2. That the defendant did so with the intent to commit the crime of aggravated robbery;
“3. That the defendant failed to complete commission of the crime of aggravated robbery; and
“4. That this act occurred on or about the 21st day of January, 2010, in Sedgwick County, Kansas.
....
“The elements of the completed crime of aggravated robbery are set forth in Instruction No. 9.”
Instruction No. 9 referred to above relates to the count charging aggravated robbery and reads as follows:
“In Count 1, the defendant is charged with the crime of aggravated robbery. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant intentionally took property from the presence of Maria Martinez;
“2. That the taking was by force or by threat of bodily harm to Maria Martinez;
“3. That the defendant, or another for whose conduct he is criminally responsible, was armed with a dangerous weapon; and
“4. That this act occurred on or about the 23rd day of December, 2009, in Sedgwick County, Kansas.”
It is apparent that instead of relisting the elements of the completed crime of aggravated robbery in the attempted aggravated robbery instruction or setting out those elements in a separate instruction, the district court incorporated by reference the instruction for aggravated robbery into the instruction for attempted aggravated robbery.
Dewberry also argues that the district court instructed the jurors that it was their “duty to consider and follow all of the instructions.” And, “[a]ppellate courts presume that a jury followed the jury instructions.” State v. Becker, 290 Kan. 842, 856, 235 P.3d 424(2010).
Dewberry suggests the standard of review of this issue is one of sufficiency of the evidence, and as we have said when the sufficiency of the evidence is challenged in a criminal case, “this court reviews [such] claims by looking at all the evidence in the light most favorable to the prosecution and determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
As earlier set forth, the State looks at this issue as one of whether an unobjected-to instruction is clearly erroneous. See K.S.A. 22–3414(3). A recent Supreme Court case, State v. Williams, 295 Kan. 506, Syl. ¶¶ 3, 4, 5, 286 P.3d 195 (2012), has more specifically set forth our standard review of jury instruction issues in the following manner:
“K.S.A. 22–3414(3) establishes a preservation rule for instruction claims on appeal. It provides that no party may assign as error a district court's giving or failure to give a particular jury instruction, including a lesser included crime instruction, unless: (a) that party objects before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds for objection; or (b) the instruction or the failure to give the instruction is clearly erroneous. If an instruction is clearly erroneous, appellate review is not predicated upon an objection in the district court.”
“To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.”
“If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.”
Dewberry's creative argument is that it is obvious the State presented no evidence that he tried but failed to take property by force or threat of bodily harm on either December 23, 2009, or January 21, 2010. And, if he was one of the two men that robbed Martinez on December 23, 2009, the evidence established a completed crime so there could be no evidence which could convict him of an attempt. See State v. Gobin, 216 Kan. 278, 281–82, 531 P.2d 16 (1975); State v. Gonzales, No. 97,531, 2008 WL 3367561, at *2 (Kan.App.2008) (unpublished opinion), rev. denied 288 Kan. 834 (2009). Our agreement with this argument would require reversal of the attempted aggravated robbery conviction. This, we cannot do, for we view this argument of Dewberry being one of whether Instruction No. 11 was clearly erroneous.
The State admits there was a flaw in the aggravated robbery definitional instruction because it was drafted specific to the aggravated robbery of Martinez on December 23, 2009. But, the State contends this did not cause the instruction to be clearly erroneous nor can Dewberry show a real possibility exists that the jury would have reached a different verdict had the elements of aggravated robbery been included in Instruction No. 11.
Further, the State points out that the verdict form identified that the attempted aggravated robbery count was specific to the Family Video incident. Finally, the State argues there was no evidence of jury confusion, the questions to the court were on other issues, and closing arguments focused on the attempt as being related to Family Video.
We begin our analysis by deciding if there was any error at all. See Williams, 295 Kan. 506, Syl. ¶ 4. The State's admission of a “flaw” does not concede error. But, looking at both instructions together, it is apparent to us that error does exist. Critical to the error is the existence of two different dates in the two instructions and resulting confusion on exactly how those different dates relate to each other.
It is apparent the court below believed it was following PIK Crim.3d § 55.01, the
pattern attempt instruction, which in applicable part, shows: “The elements of the completed crime of __________ are (set forth in Instruction No. _____) (as follows: _________________________).”
When the two counts involved activity on two separate days, the instruction should not have utilized the first parenthetical language, but rather the second language reading “as follows: [with the elements of the completed crime then set forth].”
This compels us to find and hold the instruction was erroneous. We are then required to determine whether it was clearly erroneous. To do so, we employ an unlimited review of the entire record by considering “whether the subject instruction was legally and factually appropriate.” Williams, 295 Kan. 506, Syl. ¶ 4.
The confusion caused by inserting two different days and two different events into the two instructions involved make it obvious that we must find that the attempt instruction was not factually appropriate.
It is an entirely different question and problem to determine if it was legally appropriate. These appear to be words of art without long-time usage. For something to be “appropriate,” it is defined under our context as being “suitable: fitting.” Webster's II, New College Dictionary 56 (1999). Definitional analysis does not solve our problem. It is easy to say the instruction in issue was inappropriate. However, from an analysis of its legality, in the absence of questions by the jury during deliberations, it does not appear the jury misunderstood the instruction.
But, from a purely practical approach, the attempt instruction did not clearly or correctly set forth how the required legal conclusion was to be reached. Thus, without being clearly comfortable with our conclusion, we find the instruction to not be either factually or legally appropriate and therefore clearly erroneous.
This finding is not of initial benefit to Dewberry under the Williams, 295 Kan. 506, Syl. ¶ 5, teachings for we are not “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” We agree with the State's contentions previously set forth. The verdict form made it clear the attempt charge was related to the Family Video store incident. The jury did not have any questions about the instruction. Arguments of both the State and Dewberry seemed to separate the issues between the two different events.
The instruction, as given, was clearly erroneous. But, we are not firmly convinced that the jury would have reached a different verdict had this instruction error not occurred. As such, this error is not sufficient by itself to require reversal. It must however be given consideration in our determination of whether cumulative error requires reversal.
Did the district court abuse its discretion or commit legal error in excluding exculpatory hearsay statements made by Dewberry?
Dewberry contends the trial court erred when it allowed the State to introduce an incriminating statement he made to Detective Binkley during a postarrest interrogation but then refused to allow defense counsel to elicit an exculpatory statement Dewberry made at the same interview, holding it was inadmissible hearsay.
Standards of review
State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012), sets forth our standards of review of the admissibility of hearsay evidence in the following manner;
“Ordinarily, we review the admission of hearsay evidence for an abuse of discretion. State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007). However, the issue of whether the trial court complied with specific statutory requirements for admitting evidence requires statutory interpretation, which we rview de novo. State v.. Gonzalez, 282 Kan. 73, 80, 145 P.3d 18 (2006). Similarly, we review de novo whether an evidentiary ruling violated a defendant's constitutional rights. See State v. White, 279 Kan. 326, 332–33, 109 P.3d 1199 (2005).”
Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
“If the trial court erroneously admits evidence at trial, the appellate court must determine whether the error was harmless. Reversal is required only where an erroneous admission of evidence was of such a nature as to influence the outcome of the trial and deny substantial justice. State v. Ransom, 289 Kan. 373, 388, 212 P.3d 203 (2009). Thus, the appellate court must determine if there is a reasonable possibility that the evidence admitted affected substantial rights, meaning whether the error affected the outcome of the trial. See State v. Ward, 292 Kan. 541, Syl. ¶¶ 5–6.... In making such a determination, each case must be analyzed in light of the record as a whole. State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006).” In re Care & Treatment of Palmer, 46 Kan.App.2d 805, 817–18,265 P.3d 565 (2011).
Exclusion of Dewberry's exculpatory statements
At trial, Detective Binkley testified he had interviewed Dewberry shortly after he was arrested. Dewberry admitted that a reasonable person would believe that a person wearing a trench coat, a stocking cap, and a neck gaiter, armed with a shotgun, gloves, and a pair of binoculars was “[p]robably [planning] something illegal.”
During cross-examination of Binkley, Dewberry's counsel asked Binkley about other statements that Dewberry made during this interview. The State objected, contending those statements were hearsay, saying, “He's just trying to get in exculpatory hearsay. There is no exception for it.” The judge sustained the objection, saying, “If your defendant testifies, I'm sure he can testify as to what he told the officer at the point in time.”
Dewberry correctly argues to us on appeal that the trial court's ruling was a direct violation of the rule of State v. Hills, 264 Kan. 437, 448, 957 P.2d 496 (1998), where it was held:
“It is simply not permissible to admit an incriminating hearsay statement by the defendant while denying the admission of exculpatory portions of the same hearsay statement through the use of the hearsay rule. Where the State has introduced portions of the defendant's statement which are incriminating, the defendant is allowed to introduce exculpatory portions of his or her statement, even though the defendant does not intend to testify and such evidence is barred by the hearsay rule.”
Dewberry argues that in denying the admission of his exculpatory statement, the district court committed an error of law, thus abusing its discretion. State v. Gary, 282 Kan. 232, 236, 144 P.3d 634 (2006).
The State agrees that under the Hills decision the exclusion of Dewberry's exculpatory statements was improper. But, the State argues Dewberry is unable to show the error was not harmless because he failed to make an immediate proffer as to the statements he sought to present.
Actually, part of the exculpatory testimony Dewberry wished to have admitted was admitted. During further cross-examination of Binkley, defense counsel was able to get Binkley to admit he had a transcript of Dewberry's interview. When asked what the transcript showed as to Dewberry's statement to him, Binkley testified Dewberry had said: “A. Like I say, given that information that you gave me, probably something illegal, but I told you officer, I did not see him with no shotgun and you say he had a shotgun.”
In addition, Dewberry did take the stand at trial and testified he never saw Glass with a shotgun and did not know that Glass was planning to rob the Family Video store.
However, there is no question but that Dewberry's exculpatory statement to Binkley at the time of his arrest, had it been properly and correctly admitted in Binkley's initial cross-examination, would have been immeasurably more persuasive to the jury than what was later admitted.
Dewberry makes this precise argument in contending the jury would have found him much more credible had it heard his exculpatory statement immediately following the “probably something illegal” Binkley testimony.
The State's argument that the alleged error fails on review because of a lack of a proffer as to what precise evidence was to be presented must be considered. The State first suggested the lack of a proffer should preclude us from reaching the harmless error analysis and later cites State v. Evans, 275 Kan. 95, 99–100, 62 P.3d 220 (2003), as holding the failure to make a proffer precludes appellate review of whether the trial court abused its discretion. See also K.S.A. 60–405 which precludes reversal if a proffer is not made.
The problem with both arguments is we have Hills which appears to be directly on point and contains no language concerning a proffer requirement.
In balancing all of the conflicting arguments, it appears Hills requires we hold that the trial court's ruling permitting incriminating hearsay statements to be admitted and immediately thereafter denying the admission of exculpatory portions of the same hearsay statement constituted an abuse of discretion and was erroneous.
This error, analyzed in light of the record as a whole, may not have been of such a nature as to influence the outcome of the trial and deny substantial justice. As such, while we believe that a clear violation of the rule set forth by the Hill case occurred, we will not order a new trial based only on this erroneous evidentiary ruling. But this is an error which must be given due consideration, along with other trial errors, for its cumulative effect on Dewberry's right to a fair and impartial trial.
Did the district court err by admitting hearsay statements made by Dewberry's alleged accomplice?
The standard of review of this issue is as we have previously set forth. But here there is an allegation of the violation of a specific statutory provision which we review de novo.
It was an abuse of discretion to admit Glass' hearsay statements about the Loan Smart robbery but not the statements about the Family Video robbery.
During trial, Goldston began testifying that on January 21, 2010, Glass told him that Glass and Dewberry were planning on robbing a Family Video store later that day and they had previously robbed a Loan Smart store on December 23, 2009.
Dewberry's counsel made an immediate and continuing objection to Goldston's statement as hearsay, and in response to a suggestion by the court that the testimony was proper as that of a coconspirator under K.S.A. 60–460(1)(2), counsel said, “That would go to the Family Video crime, but I don't think it could go back to a prior crime of the conspirators—.”
The court overruled Dewberry's objections and found that all of Glass' hearsay statements were admissible as statements made by a coconspirator under K.S.A. 60–460(1X2).
Goldston testified about conversations with Glass regarding the prospective Family Video robbery which Goldston was asked to participate in and the Loan Smart robbery in which Glass told Goldston he and Dewberry had
“went in [the Loan Smart] and jumped over the counter and tied them up with duct tape is what he told me and he took some money and left.
“Q. Did he tell you whether or not Mr. Dewberry was involved in that?
“A. Yes, he said he was. But I can only take that at face value ‘cause I've known Walter to not be so honest.
“Q. Did Mr. Glass also tell you a shotgun was used?
“A. Yes.”
Dewberry argues on appeal that the district court abused its discretion in overruling his objection because Glass' statements as to both the Loan Smart and Family Video robberies were not statements made by a coconspirator.
As it relates to Glass' hearsay statements about the Family Video robbery, Dewberry argues that Glass' hearsay statements should also not have been admitted because there was not any evidence to establish a substantial factual basis for the existence of a conspiracy.
K.S.A. 60–460(i)(2) provides:
“(i) As against a party, a statement which would be admissible if made by the declarant at the hearing if ... (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
It is clear here that all of Glass' statements to Goldston about the pending Family Video robbery met the requirements of the statutory hearsay exception because Glass told Goldston about the intended robbery that he and Dewberry had planned and all of the statements were made before the robbery was scheduled to occur.
But, it is also equally clear that all of Glass' hearsay statements to Goldston about the Loan Smart robbery do not meet the requirements of the statutory hearsay exception because the statements were made after the Loan Smart robbery had been committed. Therefore, Glass' hearsay statements regarding the Loan Smart robbery do not fall within the K.S.A. 60–460(l)(2) exception and were not admissible.
The State agrees that Glass' hearsay statements regarding Dewberry's participation in the Loan Smart robbery should not have been admitted but argues the admission of those statements was a harmless error.
Before moving to a discussion of the harmless error arguments, we will give short shrift to Dewberry's appellate argument that there was no evidence to establish a factual basis for the existence of a conspiracy to perpetrate the Family Video robbery. When all of the evidence and testimony is considered, a conspiracy has been shown and all of Goldston's testimony as to Glass' statements to him about the proposed Family Video store robbery was clearly admissible.
Our harmless error analysis here is based on the same teachings which we applied in the previous issue. Making it more difficult and critical is the fact the jury showed great interest in Goldston's testimony. During its deliberations, the jury requested and received a readback of both Goldston's testimony and Binkley's testimony as to his conversations with Goldston.
We will not speculate as to the reasons for the jury's interest in Goldston's testimony, but we are directed to consider the record as a whole and the readbacks are a part of the record. If Goldston's testimony swung the balance towards Dewberry's conviction, it would be difficult to say its erroneous admission would be harmless.
But there was other credible evidence of Dewberry's involvement. Martinez' facial and voice identification of Dewberry was unshaken and appears from the cold record to have been well given. The DNA evidence was instructive but clearly inconclusive. On the other hand, Dewberry was not recognizable on the security video and his physician's testimony that Dewberry was not physically capable of the actions shown on the video appears to have been helpful to his defense.
We do not know how the jury viewed the testimony of Glass' supposed friend who was searching for a reward and possible personal gain on his own problems. If the jury disregarded Goldston's testimony, then the erroneous admission would likely be harmless.
Ultimately, although with equal difficulty, we reach the same conclusion as we did with the previous abuse of discretion hearsay ruling. We do not believe this error, by itself, was of such magnitude as to have shifted the outcome of the trial and denied substantial justice. By itself, this error, analyzed in light of the record as a whole, did not have a real reasonable possibility of altering the outcome of the trial. See In re Care & Treatment of Palmer, 46 Kan.App.2d at 817–18 (citing Ward, 292 Kan. 541, Syl. ¶¶ 5–6).
But as we previously said, and with more conviction, this is an error which must be given full consideration, along with other trial errors for its cumulative effect on Dewberry's right to a fair and impartial trial.
Did the district court err in instructing the jury it could consider Maria Martinez' “degree of certainty” in determining the accuracy of her identification of Dewberry?
The standard of review is the same as earlier set forth on the attempt instruction issue and need not be repeated.
Dewberry did not object below to the court's giving what was then PIK Crim.3d 52.20, so we consider this issue under a clearly erroneous standard.
We need not set forth the entire instruction, for the portion in issue reads as follows: “Factors you may consider are: ... 6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.”
Dewberry points out that Martinez testified she picked a picture of Dewberry from a police photo array in January 2010 because she “was sure of who he was” and assured the jurors “I would never accuse anybody if I'm not sure.” During closing, the prosecutor focused on Martinez' level of certainty in arguing her eyewitness identification of Dewberry was accurate. On appeal, Dewberry contends allowing a jury to consider a witness' degree of certainty is not warranted because it does not take into account the weak correlation between accuracy and certainty.
After Dewberry's trial, our Supreme Court held that “the witness certainty factor in PIK Crim.3d 52.20 should no longer be used because it prompts the jury to conclude that eyewitness identification evidence is more reliable when the witness expresses greater certainty.” State v. Mitchell, 294 Kan. 469, 471, 275 P.3d 905 (2012); see State v. Anderson, 294 Kan. 450, Syl. ¶ 2, 276 P.3d 200 (2012).
Thus, the district court erred in our case when it gave this instruction. But, the Mitchell opinion said the trial court's use of the degree of certainty factor is not reversible error unless the jury instruction “could reasonably have misled the jury.” 294 Kan. at 481.
In order to determine if the degree of certainty could reasonably have misled the jury, we are to:
“(a) decide whether an expression of certainty by the eyewitness was communicated to the jury and, if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions. 294 Kan. 469, Syl. ¶ 5.”
and, further:
“If an appellate court determines an eyewitness expressed a degree of certainty when making an identification of the defendant, the court next must determine: (a) whether the identification was a critical aspect of the prosecution's case and (b) whether there is any serious question about the reliability of the witness' identification.” 294 Kan. 470, Syl ¶ 6.
When Martinez viewed a photo lineup and identified Dewberry, she said, “This gentleman has all the features and looks. His eyes! When he was demanding me give him the money.” Her trial testimony was even more positive, “I would never accuse anybody if I was not sure!”
Based on this communicated degree of certainty of the identification, we must determine whether the identification was a critical aspect of the prosecution's case and whether there is any serious question about the reliability of the witness' identification. Mitchell, 294 Kan. at 482.
In this case, Martinez' identification of Dewberry as one of the robbers was extremely significant. There was other evidence. But, the DNA evidence was not strong. And there was Goldston's erroneously admitted testimony that Glass admitted he and Dewberry had robbed the Loan Smart store. This should not be considered. Looking to all these matters, we must conclude that Martinez' eyewitness evidence was a critical aspect of the State's case.
However, there is no serious question about the reliability of Martinez' eyewitness identification of one of the Loan Smart robbers. In addition to her visual identification, her testimony on rebuttal as to Dewberry's voice and that one of the robbers as being the same was strong and effective. She was thoroughly cross-examined by Dewberry's counsel. Dewberry's counsel questioned Martinez about the initial description of the assailant who first entered the Loan Smart and how that description compared with the physical attributes possessed by Dewberry. Dewberry's counsel also questioned Martinez about the amount of time that she was able to observe the first assailant's uncovered face, how the lighting inside and outside the store affected her ability to view the first assailant's face, whether the first assailant had facial hair, and how much time she had to view the assailant's face during the entire robbery. The jury was exposed to the facts and circumstances both in favor of and against the accuracy of Martinez' eyewitness identification of Dewberry, and this minimizes any concerns that one may have concerning the reliability of her identification.
It was error to give paragraph 6 of the eyewitness instruction but, having followed the instructions of Mitchell and Anderson, we hold the erroneous instruction “could [not] reasonably have misled the jury.”
The erroneous instruction was error but insufficiently prejudicial to warrant reversal. This again, as we have previously stated, must be given consideration in our cumulative error analysis. Did the prosecutor commit misconduct when he told the jury it could use the DNA evidence the State presented “ however ” it wanted to? Standards of Review
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
In the second step of the two-step analysis, the appellate court considers three factors: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012).
“ ‘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, [22,] 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.’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030(2011).
The prosecutor's statement was improper
Dewberry contends the prosecutor engaged in impermissible prosecutorial misconduct by making prejudicial statements during closing argument. During closing argument when commenting on the DNA testimony, the prosecutor said:
“We had a very, very small amount of DNA. We had a mixture and we had a partial profile. So that means that we aren't going to get those huge numbers. One in 115, that's not big, but let's look at it a little more critically. First of all, you remember that Dr. Steadman said the shorter fragments, the ones at the top of the segments in the slide here (indicating) are the ones that are most likely to show up on a partial sample.
....
“They have the most opportunity to be recovered and they are the ones that don't degrade as fast. If you look at the top numbers in each of the segments that she identified, Willis Dewberry's numbers are there. Could she use all of those for her statistics? No, because the RFU level was too low. Can you use it in your determination? Yes. You can give it whatever weight you choose to give it. You aren't bound by the scientific principles of statistical calculations. You can take the information she gave you and use it however you want to use it.” (Emphasis added.)
Dewberry argues the closing statement of the prosecutor emphasized above was clearly improper because it encouraged the jury not to decide the case based on the evidence presented and the controlling law.
“A prosecutor should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.” State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004). A prosecutor is also not permitted to deliberately misstate the governing law during the prosecutor's closing argument. See Burnett, 293 Kan. at 850. When a defendant challenges a prosecutor's statements regarding the law, an appellate court “must consider the challenged statements in the context of the entire closing argument and in conjunction with the instructions given at trial.” Burnett, 293 Kan. at 851.
The State argues the targeted statement was not improper. It is claimed to be a proper comment on the evidence to which a prosecutor is entitled. The State further contends that a prosecutor may draw reasonable inferences from the evidence and to comment on the evidence is appropriate argument.
We are reluctant to unduly restrict the right of fair comment to counsel during their closing arguments for we understand the emotional state near the closing of a jury trial. But telling the jurors they could use the DNA evidence “however they want to use it” and that they “aren't bound by the scientific principles of statistical calculations” is a misstatement of the applicable law. The jury could only consider the DNA evidence within the confines of Dr. Steadman's testimony. In effect, the prosecutor told the jury to consider the DNA evidence in a manner that was not supported by Dr. Steadman's testimony.
Although improper, we must next consider if the prosecutor's statement was sufficient to deprive Dewberry of a fair trial.
We first determine whether the prosecutor's statement was gross or flagrant. We consider whether it was repeated or emphasized clearly improper conduct. It also may have been of an impromptu nature or in response to arguments made by defense counsel. See State v. Peppers, 294 Kan. 377, 400, 276 P.3d 148 (2012).
The prosecutor's statement here was not gross or flagrant. It was made only one time. It was a difficult task to try to explain positively from the prosecutor's perspective, the different information relied on in reaching the statistical comparison testimony.
Second, in determining whether a prosecutor's conduct was motivated by ill will, a court considers whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling. Peppers, 294 Kan. at 400. In this case, the prosecutor's inappropriate statement was made one time and was not done in contravention of a court order. Thus, the prosecutor's statement was not motivated by ill will.
The third factor is whether there was direct and overwhelming evidence such that the misstatement would have little weight on the minds of the jurors. There was other evidence that linked Dewberry to the Loan Smart robbery, but the testimony of Goldston was improperly admitted. The DNA evidence was not strong, but Martinez' eyewitness identification was. The court instructed the jury, as is always done, that statements and arguments of counsel are not evidence and the jury should disregard any argument not supported by the evidence.
The prosecutor's statement did not, by itself, deprive Dewberry of a fair trial.
Cumulative error deprived Dewberry of his right to a fair trial
Dewberry argues that even if the numerous errors which occurred during his trial, standing alone, do not require reversal and a new trial, that when they are considered together, the cumulative effect shows he did not receive a fair trial and mandates that a new trial be granted.
The State has argued that all of Dewberry's claims of errors have failed on their own merits, thus “defendant necessarily received a fair trial.” The State further argues the evidence was overwhelming and points to State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007), as holding one error is insufficient to support reversal under the cumulative error rule.
Justice Luckert in State v. Tully, 293 Kan. 176, 205–07, 262 P.3d 314 (2011), summarized our obligation in this manner:
“In a cumulative error analysis, an appellate court aggregates all errors and, even though those errors would individually be considered harmless, analyzes whether their cumulative effect on the outcome of the trial is such that collectively they cannot be determined to be harmless. See State v. Colston, 290 Kan. 952, 978–79, 235 P.3d 1234 (2010). In other words, was the defendant's right to a fair trial violated because the combined errors affected the outcome of the trial? In a cumulative error analysis, ‘[i]f any of the errors being aggregated are constitutional in nature, the cumulative error must be harmless beyond a reasonable doubt.’ United States v. Toles, 297 F.3d 959, 972 (10th Cir.2002).
“In making the assessment of whether the cumulative errors are harmless error, an appellate court examines the errors in the contest of the record as a whole considering how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. See Ward, 292 Kan. at [569–70, 577–79];State v. Dumars, 33 Kan.App.2d 735, 754–55, 108 P.3d 448,rev. denied 280 Kan. 986 (2005). ‘No prejudicial error may be found upon this cumulative effect rule ... if the evidence is overwhelming against the defendant. Colston, 290 Kan. 952, Syl. ¶ 15.’ [Citation omitted.]”
The cite to Dumars in Tully references us to the following statement:
“As a necessary part of our determination of whether cumulative error merits a new trial, we must determine whether the identified errors, when considered together, were harmless. Moreover, before we can override the other factors incident to our analysis of prosecutorial misconduct, we must be able to say that both the K.S.A. 60–261 and the Chapman v. California, 386 U.S. 18, 22, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967), harmlessness tests have been met. See Tosh, 278 Kan. at 97. The statutory test is whether refusal to reverse would be inconsistent with substantial justice. The Chapman test requires us to determine that an error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial. See 386 U.S. at 22.” Dumars, 33 Kan.App.2d at 754.
In gathering together the errors and analyzing their cumulative effect, we need not again individually discuss each of the five errors which we have previously done in painful detail.
But, in doing so, it was clear that either the erroneous “attempt” instruction or the two erroneous rulings on hearsay testimony of Binkley (violation of Hills, 264 Kan. at 448) or Goldston (K.S.A. 60–460[l][2] improperly applied), by itself, could and possibly should have been sufficient to require reversal and the ordering of a new trial.
Perhaps the improper paragraph No. 6 in the eyewitness identification instruction was not, by itself, reversible error in light of Mitchell and Anderson, but the harm which was sought to be remedied by the removal of the offending language was present as the eyewitness identification by Martinez was the critical aspect of the State's case. This language may well have tipped the balance in favor of the Martinez identification and against Dr. Brown's testimony that Dewberry was physically incapable of the robber's actions as shown by the store's video.
In the absence of the four other trial errors, the prosecutor's statements that “[y]ou can take the information she [Dr. Steadman] gave you and use it however you want to use it,” and “[y]ou aren't bound by the scientific principles of statistical calculations,” might not be reversible error, but they were improper and add to the heavy weight of all the other errors.
It is not possible to rate the five errors enumerated above in order of their possible onerous effect. But when their cumulative effect is analyzed and the severity of each error is given its proper consideration, we conclude that there is reasonable probability that the cumulative errors affected the jury's verdict; that Dewberry was denied a fair trial; and our refusal to reverse would be inconsistent with substantial justice.
We are required by Tully as a part of our analysis to make a judgment call as to whether the evidence against Dewberry is considered to be overwhelming. For something to be “overwhelming,” it must be “overpowering in strength or effect.” Webster's II, New College Dictionary 785 (1999).
We view this consideration in light of the State's burden of proving the defendant guilty beyond a reasonable doubt and our instruction given in this case that says “the defendant is not required to prove he is not guilty.”
Much of the evidence that was presented was conflicted, some highly so. The DNA evidence was not conclusive. There was conflicting evidence as to the identification and physical capability of the defendant. Goldston's testimony was subject to question. The case took a week to try. After beginning deliberations, the jury asked for several readbacks and recessed over a weekend. When the entire record is examined, even with the jury's ultimate findings, we cannot say the evidence was overwhelming.
We have examined the record as a whole considering how the district court dealt with the errors as they arose (including the efficacy, or lack of efficacy, of any remedial efforts); the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence.
Our examination of the strength of the evidence does not alter our earlier conclusion. Based on the cumulative effect of all of the errors which we have previously set forth, Dewberry was denied a fair trial, failure to reverse would not be consistent with substantial justice, and a new trial must be ordered.
The convictions of all three counts are reversed, all the sentences are vacated, and this matter is remanded to the district court for a new trial.
With the sentences vacated, we do not consider the sentencing issue Dewberry has raised.
Convictions reversed, sentences vacated, and case remanded.
* * *
ATCHESON, J., concurring.
I concur fully with the majority's decision to reverse Defendant Willis L. Dewberry's convictions based on the cumulative effect of the outlined trial errors, and I agree with the thorough analysis of those errors. I part ways with the majority's treatment of aiding and abetting liability, on the one hand, and principal liability, on the other, for alternative means purposes. Notwithstanding the Kansas Supreme Court's recent decision in State v. Brown, 295 Kan. 181, 284 P.3d 977 (2012), and the criteria outlined there for determining alternative means, charging a criminal defendant both as a principal and as an aider and abettor for the same offense and then submitting those options to a jury creates an alternative means problem or its legal equivalent in establishing a unanimous verdict. Those criteria are sufficiently flexible—variously described as not definitive (differing mental states and use of “or” in the statutory language), clues (separate subsections within a criminal statute), and signals (statutory definitions)—that they cannot be said to ineluctably direct a conclusion here or in many alternative means disputes. See 295 Kan. at 191–92, 196, 198.
In Brown, 295 Kan. at 191, the court noted that premeditated murder and felony murder are alternative means of committing first-degree murder. Those ways of committing murder are legally analogous to principal and aider and abettor liability. A person may be guilty of first-degree murder if he or she kills the victim. But he or she may also be guilty by participating in a dangerous felony, such as aggravated robbery, even when someone else kills the victim. Similarly, a person may be guilty of a crime if he or she acts as a principal committing the statutory elements of the offense. But a person also may be guilty of the crime without committing those elements if he or she aids and abets the principal, as by being a lookout or the getaway driver.
I continue to adhere to the view I outlined in State v. Boyd, 46 Kan.App.2d 945, 952–54, 268 P.3d 1210 (2011), petition and cross-petition for rev. filed January 23 and February 6, 2012, that when a jury has the choice to convict a defendant as either a principal or an aider and abettor, there must be sufficient evidence to support convictions on both. Engaging the debate in full here-and there is considerably more to it-would serve little purpose, especially given the panel's unanimous conclusion that, for other reasons, Dewberry must receive a new trial on all of the charges against him. So I defer that debate to another time.