State v. Sean ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,417
STATE OF KANSAS,
Appellee,
v.
DANG SEAN,
Appellant.
SYLLABUS BY THE COURT
1.
When a pretrial motion to suppress has been denied, K.S.A. 60-404 requires that
the moving party still object to the introduction of the evidence at trial in order to
preserve the issue for appeal. This is known as the contemporaneous-objection rule.
Specifically, the statute requires a timely, on-the-record objection to the admission of the
evidence that clearly states the specific ground of objection.
2.
In this case, we decline to use exceptions to the contemporaneous-objection rule to
bypass the clear statutory guidelines provided in K.S.A. 60-404.
3.
When analyzing a claim of prosecutorial error, an appellate court employs a two-
step process. First, the appellate court determines whether error occurred. If there was
error, the second step is to determine whether prejudice resulted. Under the first step, the
appellate court analyzes whether the prosecutor's acts fell outside the wide latitude
afforded prosecutors. At the second stage of the analysis, the appellate court focuses on
whether the error prejudiced the defendant's due process rights to a fair trial. If a due
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process violation occurred, the appellate court assesses prejudice by applying the
constitutional harmless error standard.
4.
Under the constitutional harmless error standard, prosecutorial error is harmless if
the State proves beyond a reasonable doubt that the error complained of will not or did
not affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.
5.
Generally appellate courts do not require a contemporaneous objection to preserve
issues of prosecutorial error for appellate review. However, in accordance with the plain
language of K.S.A. 60-404, evidentiary claims—including questions posed by a
prosecutor and responses to those questions during trial—must be preserved by way of a
contemporaneous objection for those claims to be reviewed on appeal. But appellate
courts will review a prosecutor's comments made during voir dire, opening statement, or
closing argument on the basis of prosecutorial error even without a timely objection,
although the presence or absence of an objection may figure into the analysis of the
alleged error.
6.
The Fourteenth Amendment affords a criminal defendant the right to employ
counsel as an extension of his or her right to a fair trial. Accordingly, it is improper for
the prosecutor, by questions or comments, to draw incriminating inferences from a
defendant's exercise of this right.
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7.
When the State asks a witness questions regarding the defendant's retention of an
attorney, those questions contravene the protections explicitly enumerated in State v.
Dixon, 279 Kan. 563, 112 P.3d 883 (2010).
8.
In general, prosecutors may not offer juries their personal opinions as to the
credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes
explaining to juries what they should look for in assessing witness credibility, especially
when the defense has attacked the credibility of the State's witnesses.
9.
A prosecutor acts outside of that wide latitude afforded when the prosecutor refers
to the defendant as a "liar" and states in closing argument that the truth shows beyond a
reasonable doubt the defendant is guilty.
10.
A prosecutor does not act outside of the wide latitude afforded if he or she merely
observes that some reasonable inference about witness credibility may be drawn from
evidence introduced at trial.
11.
Arguments not briefed on appeal are deemed waived and abandoned.
12.
Unlike a failure to object to evidence, a failure to object to an instruction does not
bar appellate review of the instruction. It does, however, raise the persuasive bar the
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complaining party must hurdle on appeal; the appellate court must be convinced the
instruction is clearly erroneous.
13.
When a party's appellate arguments regarding a limiting instruction are actually
veiled attempts to reach unpreserved evidentiary issues, courts do not consider the
arguments.
14.
Appellate courts review a trial court's determination that hearsay is admissible
under a statutory exception for an abuse of discretion. Judicial action constitutes an abuse
of discretion if it is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would have taken the view adopted by the trial court; is based on an error of law, i.e., if
the discretion is guided by an erroneous legal conclusion; or 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.
15.
K.S.A. 2016 Supp. 60-460 bars admission of evidence of a statement that is made
other than by a witness while testifying at the hearing, offered to prove the truth of the
matter stated, unless it falls into one of the exceptions outlined in the statute. One of these
exceptions is the declarations against interest exception, which provides that a statement
which the judge finds was at the time of the assertion so far contrary to the declarant's
pecuniary or proprietary interest or so far subjected the declarant to civil or criminal
liability or so far rendered invalid a claim by the declarant against another or created such
risk of making the declarant an object of hatred, ridicule, or social disapproval in the
community that a reasonable person in the declarant's position would not have made the
statement unless the person believed it to be true.
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16.
When statements are not offered to prove the truth of the matter stated, they are
not hearsay.
17.
When determining whether an alleged violation of statutory evidentiary limitations
was error, an appellate court applies the standards set out in K.S.A. 2016 Supp. 60-261
and K.S.A. 60-2105. These standards provide that the court will consider whether a
reasonable probability exists that the error affected the outcome of the trial in light of the
record as a whole. The burden of persuasion lies with the party benefitting from the
introduction of the evidence.
18.
Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution.
19.
K.S.A. 22-3423(1)(c) creates a two-step process. First, the trial court must
determine if there was some fundamental failure of the proceeding. If so, the trial court
moves to the second step and assesses whether it is possible to continue without an
injustice. In other words, the trial court must decide if the prejudicial conduct's damaging
effect can be removed or mitigated by an admonition, jury instruction, or other action. If
not, the trial court must determine whether the degree of prejudice results in an injustice
and, if so, declare a mistrial.
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20.
An appellate court reviews a trial court's decision regarding a motion for mistrial
in two parts: (1) Did the trial court abuse its discretion when deciding if there was a
fundamental failure in the proceeding? and (2) Did the trial court abuse its discretion
when deciding whether the conduct resulted in prejudice that could not be cured or
mitigated through jury admonition or instruction, resulting in an injustice?
21.
When a party argues that the cumulative impact of alleged errors is so great that
they result in an unfair trial, an appellate court aggregates all the errors and, even if those
errors individually would be considered harmless, analyzes whether their cumulative
effect is so great that they collectively cannot be determined to be harmless. In
undertaking such an analysis, an appellate court reviews the entire record and exercises
unlimited review. One error is insufficient to support reversal under the cumulative error
doctrine.
Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed August 4,
2017. Affirmed.
Richard Ney, of Ney & Adams, of Wichita, argued the cause and was on the briefs for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
MALONE, J.: Dang Sean appeals his convictions of first-degree premeditated
murder and kidnapping. This is a companion case to State v. Jones, No. 113,409, an
appeal from convictions arising out of the same series of events presented in this case.
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Sean raises eight issues in his appeal, alleging (1) a denial of his Fifth Amendment right
to counsel; (2) multiple claims of prosecutorial error; (3) error in the admission of bad
acts evidence; (4) error in the admission of certain hearsay statements; (5) error in the
denial of his motion for mistrial; (6) a violation of his Confrontation Clause rights; (7)
error in the admission of sympathy evidence; and (8) cumulative error compelling
reversal. We reject Sean's claims and affirm his convictions and sentence.
FACTS AND PROCEDURAL BACKGROUND
On January 16, 2013, Shawn Lindsey's body was discovered by a passerby off a
road near the Humane Society in Wichita, Kansas. The body had ligature marks on the
wrist, and there was evidence someone had dragged the body to the spot. The forensic
pathologist who performed an autopsy testified that the cause of death was
methamphetamine toxicity and the manner of death was homicide.
Sean was charged with first-degree premeditated murder, felony murder, and
aggravated kidnapping of Lindsey. Justin Jones (Justin) and Jason Jones (Jason) were
also charged in connection with Lindsey's murder, and Phomphikak Phouthalaksa (Air),
Aaron Stricker, and Anthony Garza were charged in connection with his kidnapping. The
defendants were tried separately.
The State's case against Sean was based largely on the eyewitness testimony of
Garza, an acquaintance of both Sean and Lindsey. The State secured Garza's testimony
by agreeing to amend his charges down from murder and aggravated kidnapping to a
single count of kidnapping. Will Coleman, an employee of Sean, corroborated much of
Garza's testimony. Through these witnesses and others, the State presented evidence to
establish the following facts.
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Sean and Lindsey opened an auto shop together in 2012 but cut business ties by
the end of the year. In January 2013, Lindsey was in debt to Sean for using the company
credit card and account without permission and for stealing parts from the shop. The
State introduced evidence that the debt had been accruing for some time, and that by the
end of 2012, Sean had grown impatient with Lindsey, demanding repayment and
threatening via text message to "repo" and "crack sum fuckn heads" if Lindsey did not
comply. In November 2012, Sean texted Lindsey and demanded Lindsey turn over his
truck and come to the shop. He also texted Lindsey to "get zip tie ready."
On Friday, January 11, 2013, Garza called Sean to tell him he was coming to the
shop. Sean asked Garza to pick up Lindsey on his way there. Garza went to Lindsey's
house around 4:30 p.m., accompanied by his girlfriend's 17-year-old nephew Reuben
Carrion, Jr., and his friend, Stricker. The men arrived at Lindsey's house right as Lindsey
and his girlfriend, Chelsea Bernhard, were returning from an errand. The men talked
inside the house while Bernhard took a phone call in the other room. When Bernhard
finished her phone call, Lindsey and Garza said they were going to the shop and that she
should come by, too. The men left for the shop and Bernhard followed later.
Carrion dropped Garza, Lindsey, and Stricker off at the shop and left. Sean and his
employees, Air, Justin, Jason, and Coleman, were inside. Lindsey and Sean talked about
Lindsey's debt until the conversation became heated. Sean began beating Lindsey,
knocking him to the ground. Sean then demanded that Lindsey get his truck. At 6:18
p.m., Coleman texted Lindsey's ex-girlfriend that Lindsey had just been "beat down."
After the beating, Lindsey, Stricker, and Jason left to look for Lindsey's truck. The
State posited that Sean wanted the truck as satisfaction or collateral for the debt. While
they were looking for the truck, Garza received a phone call from Justin's phone and was
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told that Sean had gone home for awhile but wanted Lindsey zip-tied by the time he got
back to the shop. The men did not find Lindsey's truck and returned to the shop.
Bernhard arrived at the shop but could not get inside. Lindsey met her at the door
and told her through the glass that he could not leave and that she should go get his friend
Neeley. Bernhard left to find Neeley.
Sean, carrying a duffel bag, returned to the shop. Shortly thereafter, Sean
instructed Garza to zip-tie Lindsey. Garza zip-tied Lindsey's arms to a chair behind his
back and zip-tied his feet. At this point, Coleman left the shop after asking Sean for
permission to do so.
Sometime after Coleman left, Sean handed Jason a bag of methamphetamine and
Justin looked for a heat source. Sean slapped Lindsey's arm and injected him with a large
syringe full of the methamphetamine while Justin held the arm in place. Sean asked
Lindsey if it burned, and Lindsey replied, "Yeah, it does burn. Please stop, please stop,
please stop. You don't have to do this, I'm going to pay you."
Once Sean finished injecting Lindsey, Air brought in an electric fence, which
Jason and Justin wrapped around Lindsey and then hooked up to a car battery starter.
Sean pulled an airsoft pellet gun and a firearm from his bag and began shooting Lindsey's
shins with the airsoft gun. Sean then loaded the firearm and pointed it at Lindsey,
taunting him. Sean also shot at the battery starter with the airsoft gun in an effort to turn
on the electric fence. During this time, Lindsey started shaking and bouncing his feet up
and down, which Garza took to be a sign that the methamphetamine was affecting him.
After Sean failed to turn the battery charger on with the airsoft gun pellets,
someone removed the electric fence from around Lindsey. Lindsey was shaking violently
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by that point and going stiff, and Garza heard someone say that "he's about to go."
Lindsey asked Garza to cut the zip ties because they were hurting him. Sean told Garza to
leave the wrist ties but to cut the ties from Lindsey's ankles so they could take him to the
hospital. Jason and Sean then loaded Lindsey into a black Chevy Silverado. Garza left the
shop shortly thereafter at Sean's direction.
A security camera in the Humane Society parking lot showed the driveway to the
area where Lindsey's body was discovered days later. Just after 10:47 p.m., the camera
recorded headlights in the area. A dark-colored vehicle with a bed left shortly thereafter.
The State posited that this was the same black Silverado that left the auto shop with
Jason, Sean, and Lindsey and that it was traveling in that area to dump Lindsey's body.
Noal Reynolds, an employee of the Pleasures nightclub, testified for the defense.
He stated that Sean and Air were at Pleasures on January 11, 2013, from 11:30 p.m. until
about 2 a.m. Pleasures is located at 4849 South West Street in Wichita, Kansas.
Around 1:30 a.m. on January 12, 2013, Jason texted Garza not to say anything to
his girlfriend. Jason then called Garza to say they were coming to pick him up. Coleman
returned to the shop around 2 a.m. Soon thereafter Jason and Justin showed up with
Garza and were met by Sean and Coleman. The five men smoked methamphetamine
together, and Sean pressed Garza for Stricker's "information." Sean told Garza that if
Garza or Stricker "said anything" they were dead.
Bernhard spent the next few days trying to track down Lindsey. She texted Sean to
ask about Lindsey. Sean replied that "he might be working it off in Mexico" and that "it
[was] out of [his] hands." On January 13, 2013, Bernhard and Lindsey's father reported
Lindsey missing.
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Lindsey's body was recovered on January 16, 2013, near the area where the
security camera recorded headlights and a dark-colored vehicle with a bed on the night of
January 11. Detectives interviewed Sean later that evening. Sean told detectives that on
January 11, 2013, Lindsey arrived at his shop around 6 p.m. with two "Mexicans" named
Paloen and Fernando. Sean claimed that the two "Mexicans" looked around for Lindsey's
truck. According to Sean, the three men left after about 15 minutes, and he went to his
sister's house around 6:15 or 6:20. Sean said that he also went to Pleasures nightclub that
night.
Search warrants were executed at the shop on January 16, January 18, and January
20. From these searches, the police recovered methamphetamine and paraphernalia, a
duffel bag, two airsoft pistols, two airsoft BBs, a bag of additional BBs, a needleless
syringe, zip ties, and an electric fence.
During trial, defense counsel focused heavily on the fact that Garza's initial
statement to the police was different from his second and third interviews conducted after
reaching an agreement with the State. In that first statement, Garza claimed to have much
less involvement than he later admitted. Defense counsel's theory of the case appeared to
be that Garza was one of the "Mexicans" who arrived at the shop with Lindsey, that
Garza killed Lindsey because of a debt Lindsey owed Garza, and that Garza was pinning
the murder on Sean in exchange for a lighter sentence.
A jury convicted Sean of premeditated first-degree murder and kidnapping but
acquitted Sean of felony murder. The jury did not unanimously agree on a hard 50
sentence; so the district court imposed a hard 25 sentence for the murder conviction and a
consecutive 77-month sentence for the kidnapping conviction.
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Sean timely appealed. This court has jurisdiction under K.S.A. 2016 Supp. 22-
3601(b)(3) and (4) (off-grid crime; maximum sentence of life imprisonment imposed).
ANALYSIS
Sean presents a number of issues. We address each in turn.
Suppression of Interrogation Statements
Sean first argues the trial court should have suppressed statements he made during
a police interrogation because they were given in violation of his Fifth Amendment right
to counsel. We do not reach the merits of this argument because we conclude that Sean
failed to preserve this issue for appeal.
When a pretrial motion to suppress has been denied, K.S.A. 60-404 requires that
the moving party still object to the introduction of the evidence at trial in order to
preserve the issue for appeal. State v. Houston, 289 Kan. 252, 270, 213 P.3d 728 (2009).
This is known as "the contemporaneous-objection rule and is codified in K.S.A. 60-404.
[Citation omitted.] Specifically, the statute requires an on-the-record 'objection to the
evidence timely interposed and so stated as to make clear the specific ground of
objection.'" 289 Kan. at 270.
In State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010), we noted our recent
and consistent refusal to review evidentiary issues that were not preserved even when
those issues involved fundamental rights. In that discussion, we expressed our concern
that, otherwise, "[t]he contemporaneous objection rule 'case-law exceptions would soon
swallow the general statutory rule.'" 290 Kan. at 488 (citing State v. Richmond, 289 Kan.
419, 429-30, 212 P.3d 585 [2009]).
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Here, in a pretrial motion, defense counsel argued that the trial court should
suppress all statements Sean made during a police interrogation because the statements
were involuntary and were not made pursuant to a knowing and intentional waiver of
rights. After an evidentiary hearing, the trial court denied the motion, finding that Sean
had voluntarily reinitiated contact with the police after requesting an attorney and thereby
waived his right to counsel.
At trial, Sean's statements were introduced via the testimony of investigating
Detective Timothy Relph. Defense counsel did not object to Relph's testimony.
However, Sean argues that this issue was preserved for appeal because an
objection made earlier in the trial served to give the trial court notice that defense counsel
meant to renew his challenge to the admission of Sean's statements. However, the record
makes it clear that this was a State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005),
objection to the State's desire to play a videotape of the interrogation, not an objection to
the admission of the statements made during the interrogation. During a break in the trial,
the prosecutor informed the judge and defense counsel that the State intended to play a
redacted video of Sean's interrogation for the jury. In response, defense counsel said:
"I object to the transcript ever being shown to the jury. I object to this tape being called or
played, where they pull out what they want to pull out, put in what's clearly inadmissible
under Elnicki, and expect me over the lunch hour to review all of their exhibits to make
sure they are admissible or not. I have better things to prepare for than exhibits being
dumped on me in the middle of the trial."
The prosecutor responded that it would "just put Detective Relph on" and would
not "even bother with the video." The judge replied "if the proposal now is to just call
Detective Relph, have him testify as to the interview, that's fine. The tape-recorded
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conversation will not be allowed at this point. Anything further we need to take up before
we bring the jury in?" To this, defense counsel replied, "No, Your Honor." Later that
afternoon, the prosecutor called Relph who testified about Sean's statements during the
interrogation. Defense counsel did not object to this testimony.
Defense counsel's statements at trial were clearly in reference to the admission of
the videotape without his having had an opportunity to review the tape for Elnicki
violations. That the objection was in reference to Elnicki and nothing else was
underscored by defense counsel's failure to object to the State's offer to instead introduce
Sean's statement's via Detective Relph's testimony. Because Sean did not renew his
objection to the admission of these statements during trial, he did not preserve this issue
for our review.
We find it concerning that appellate defense counsel argued so strongly that the
objection at trial amounted to a specific objection to the admission of Detective Relph's
testimony. Whether this argument evolved from a misunderstanding of the record or an
unclear assessment of the law, we do not know. In case appellate counsel's arguments
stem from some obscurity surrounding the contemporaneous objection rule, we take this
opportunity to reiterate an important principle. When a party moves to suppress evidence
and the court denies the motion, the party must timely and specifically renew this
objection when the opposing party moves to admit the evidence during trial. Failure to do
so results in a failure to preserve the issue for appeal.
Sean contends that, even if this issue was not preserved for appeal, review is
necessary to serve the ends of justice and prevent denial of a fundamental right. See State
v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011) (explaining that exceptions may be
granted if the argument presents a question of law arising from proved or admitted facts
that is determinative of the case; consideration of the issue is necessary to serve the ends
14
of justice or prevent the denial of fundamental rights; or the trial court is correct for the
wrong reason). We decline to use this exception to bypass the clear statutory guidelines
provided in K.S.A. 60-404.
Prosecutorial Error
Sean argues that the prosecutor committed error in four different ways: (1) by
repeatedly introducing drug evidence in violation of an order in limine; (2) by asking
questions regarding Sean's retention of an attorney; (3) by violating a court order when it
procured certain testimony regarding an alibi; and (4) by commenting on the credibility
of a witness. We address each argument separately.
When analyzing a claim of prosecutorial error, we employ a two-step process.
First, we determine whether error occurred. If there was error, the second step is to
determine whether prejudice resulted. Under the first step, we analyze whether the
prosecutor's acts fell outside the wide latitude afforded prosecutors. At the second stage
of the analysis, we focus on whether the error prejudiced the defendant's due process
rights to a fair trial. If a due process violation occurred, we assess prejudice by applying
the Chapman constitutional error standard. Chapman v. California, 386 U.S. 18, 24, 87 S.
Ct. 824, 17 L. Ed. 2d 705 (1967). Under Chapman, "'prosecutorial error is harmless if the
State proves beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.'" State v. Kleypas, 305
Kan. 224, 316, 382 P.3d 373 (2016).
Generally we do not require a contemporaneous objection to preserve issues of
prosecutorial error for appellate review. State v. King, 288 Kan. 333, 344, 204 P.3d 585
(2009). However, "in accordance with the plain language of K.S.A. 60-404, evidentiary
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claims—including questions posed by a prosecutor and responses to those questions
during trial—must be preserved by way of a contemporaneous objection for those claims
to be reviewed on appeal." 288 Kan. at 349. But we will review a prosecutor's comments
made during voir dire, opening statement, or closing argument on the basis of
prosecutorial error even without a timely objection, "although the presence or absence of
an objection may figure into our analysis of the alleged misconduct." 288 Kan. at 349.
1. Violation of the order in limine
Sean argues the prosecutor violated the order in limine by introducing drug
evidence on 14 different occasions, including once in the opening statement and once
during closing arguments. After review of the record, it is clear that Sean only objected
on one of those occasions and that the trial court sustained that objection.
Because Sean did not object to the 13 other alleged violations, the only instances
of alleged error that we review are those that occurred during the opening statement and
closing argument. While Sean argues that this court should review all instances in the
interest of justice, we again decline to use this exception to bypass clear statutory
guidelines.
We begin by assessing whether the State's actions fell outside of the wide latitude
afforded prosecutors.
The State filed a pretrial motion to admit evidence that would establish the
following three points:
"1. Evidence that Shawn Lindsey was killed to settle a debt that may have been
incurred through illegal drug transactions."
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"2. Evidence that [Sean] (as well as co-defendants) possessed illegal drugs and
drug paraphernalia."
"3. Evidence that on August 4, 2012, police searched and located a 2001 black
Chevy Silverado truck belonging to Dang Sean on the premises of Automotive Bullies."
Sean had no objection to paragraph 2 of the motion and thus the court granted
paragraph 2. The court granted paragraph 3 over Sean's objection. Sean also objected to
paragraph 1, arguing that "there has to be some evidence to back it up [that the victim
owed a drug debt to Lindsey] and they don't have any." In a subsequent pretrial hearing,
the State entered a stipulation with regard to paragraph 1 that read "Sean Lindsey had a
debt to Dang Sean," eliminating the reference to a drug debt. Sean accepted that
stipulation, and the court entered an order acknowledging the stipulation.
Sean argues that prosecutorial error occurred because "[d]espite the parties'
stipulation, and the district court's in limine order, the State repeatedly introduced drug
evidence at trial in violation of the order."
Sean's argument is perplexing because the order in limine did not prohibit drug
evidence. Indeed, it was an unopposed order that allowed such evidence.
Sean contests this point by directing this court to the State's comments regarding
the stipulation. During a pretrial hearing, the prosecutor said, "I suggest that maybe we
need to table this Paragraph 1, is that we craft a stipulation that meets both parties' goal
and limits evidence of other crimes evidence."
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This statement fails to offer support for Sean's argument because, even if it did
function to limit the admissibility of "other crimes evidence," paragraph 2, to which Sean
had no objection, specifically allowed drug evidence.
It may be that when Sean says the prosecutor offered drug evidence in violation of
the order, he means that the prosecutor offered drug debt evidence in violation of the
order. Even if we accept this as his argument, there was no error because the prosecution
never introduced evidence of a drug debt.
During the opening statement, the prosecutor told the jury:
"You're going to hear from Will Coleman. Will is an interesting character. Will is going
to tell you that this shop is a place where people went to use methamphetamine. He said
they used it all the time. In fact, Will is even going to say that for a time period his
primary wages at the shop was just basically the ability to smoke free
methamphetamine."
During closing arguments, the prosecutor said the following:
"I want to pause for a moment, and in case anybody says, 'Well, why Garza? I mean, why
would you choose Garza?' Look at that cast of characters. The evidence is [that] this man
[Sean] is owed a debt. This man is the man who's dealing the drugs to the people in the
shop and this man is the one who wants Shawn Lindsey's truck, and injected his arm with
methamphetamine to get even, to take his revenge. This man. Are we going to make a
deal with him to get the other guys?"
Neither of these passages describe a drug debt. While they describe drug evidence,
they do not imply that the debt owed to Sean is connected to this drug evidence.
Furthermore, we reiterate that Sean had no objection to paragraph 2 of the motion in
limine, which requested that the court allow the admission of evidence that Sean and the
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codefendants possessed illegal drugs and drug paraphernalia. Thus, "drug evidence" is
specifically admissible under the motion.
As a final note, we point out that none of the alleged errors, even those that were
unpreserved, violated the order in limine. We have reviewed the unpreserved statements
and not one of them mentions drugs as the source of Lindsey's debt to Sean. Thus, even if
we were to review Sean's unpreserved arguments, they would fail.
We conclude that there was no violation of the order in limine. Because there was
no violation, there was no prosecutorial error.
2. Questions regarding retention of an attorney
Next, Sean argues that the prosecutor erred by asking questions about his retention
of an attorney.
The Fourteenth Amendment affords a criminal defendant the right to employ
counsel as an extension of his or her right to a fair trial. Accordingly, it is improper for
the prosecutor, by questions or comments, to draw incriminating inferences from a
defendant's exercise of this right. State v. Dixon, 279 Kan. 563, 591, 112 P.3d 883 (2005),
disapproved of on other grounds by State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010).
During the testimony of Ana Garcia, Sean's fiancée, the prosecutor asked her, "Is
it fair [to say] between the 16th and the 18th, before your fiancé had even been arrested
you went and had a meeting with Kurt Kerns to talk about your representation, right?"
Later, the prosecutor asked Garcia whether Sean had asked her to contact someone to get
$30,000 or $40,000. Garcia answered yes, and the prosecutor asked, "And he's somebody
who would have access to 30 or 40 grand to help pay for an attorney to get Dang Sean
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out of jail, right?" Then, the prosecutor asked Garcia if she was supposed to try to help
get codefendant Jason Jones an attorney and whether Sean was going to help pay for that
attorney. Finally, the prosecutor asked, "So Dang Sean felt responsible enough that he
was going to help Jason Jones also pay for the attorney?"
Sean argues that these questions were constitutionally impermissible under Dixon.
We agree that the prosecutor's questions regarding Sean's retention of an attorney
contravene the protections we explicitly enumerated in Dixon. Because Dixon clearly
holds that a prosecutor should not comment on or question a criminal defendant's right to
employ counsel, we conclude that the comments regarding Sean's retention of an attorney
fell outside of the wide latitude afforded to prosecutors. We caution that the remaining
questions came very close to doing the same.
This moves the analysis to the second question in a prosecutorial error analysis.
We now consider whether the questions prejudiced Sean's right to a fair trial.
As we noted in Dixon, a prosecutor's questions about the defendant's retention of
counsel endangers that defendant's right to a fair trial. 279 Kan. at 591. However, under a
prosecutorial error analysis, these questions only prejudiced Sean's right to a fair trial if
they do not survive a constitutional harmless error test. While we find error, we conclude
that it was harmless.
The error here came in the form of only two questions to the defendant's fiancée.
Furthermore, defense counsel had already introduced evidence that Sean sought the
services of an attorney before the jury heard it from the prosecutor. For these reasons, and
in light of the great weight of evidence that otherwise implicates Sean in the charged
20
crimes, we conclude beyond a reasonable doubt that the error did not affect the outcome
of this trial.
3. Questions regarding alibi
Sean's next prosecutorial error argument is that the prosecutor violated a court
order when it asked Detective Harty if he was aware that Hernandez "talked about the
need for Anthony Garza and Aaron Stricker to develop an alibi for the night that this all
went down on January 11th?"
The "order" Sean references came about during the State's direct examination of
Marcus Hernandez. The prosecutor asked Hernandez, "[W]hat did [Stricker] tell you that
the Asians told him regarding an alibi?" Defense counsel objected on double hearsay
grounds. The court responded, "Well, the question was what did [Stricker] tell you that
the Asians told him regarding an alibi. I think it needs to be established what Asians
we're talking about, specifically how many Asians were there, who were they, and
establish that if it can be established." The prosecutor then resumed his questioning but
was unable to establish who the "Asians" were. At that point, the judge sent the jury out
and told counsel
"[t]he thing that is troubling is the use of the plural word 'Asians' without any
attribution. . . .[I]f [Hernandez] has something that he wants to say about the Asians told
him this, the Asians told him that, the Asians said get an alibi, that is not going to be
allowed."
When the jury returned, the prosecution resumed its questioning but abandoned any
references to the alibi and thus never established which "Asian" was talking about an
alibi or what was actually said regarding an alibi.
21
Stated more clearly, the order Sean refers to here is a directive from the trial court
that the State could not procure any testimony that "the Asians" told Stricker and Garza
to get an alibi unless at least one particular "Asian" could be identified. Consequently, if
the prosecutor attempted to elicit the alibi statement without first identifying the person
who said it, the State would have been in violation of the court's directive.
Even if we assume the prosecutor violated this directive, and the violation resulted
in an action outside the wide latitude afforded prosecutors, we conclude that his actions
did not prejudice Sean's right to a fair trial.
The prosecutor's statement was: "You're aware that he [Hernandez] talked about
how Anthony Garza and Aaron Stricker talked about . . . the need for Anthony Garza and
Aaron Stricker to develop an alibi for the night that this all went down on January 11th?"
(Emphasis added.) Thus, this statement fails to suggest that Sean had anything to do with
the crime on January 11th. Instead, it suggests that Garza and Stricker were the ones who
needed an alibi. While it does reinforce the theory that a crime was committed on January
11th and suggests that Garza and Stricker were involved, it does nothing to suggest that
Sean was a part of that crime. In fact, it tends to buttress the defense theory that Garza is
the guilty party, not Sean. While it may speak to Garza's credibility, the other evidence
and witnesses that corroborated his testimony outweighed any effect this could have had
on a credibility determination. For this reason, the prosecutor's comment did not result in
prejudice to Sean's trial, and therefore any assumed error was harmless.
4. Credibility of a witness
Finally, Sean argues that the prosecutor erred by commenting on the credibility of
witness Anthony Garza during closing argument.
22
In State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010), we explained the rules
governing when prosecutors may offer their opinions on a witness' credibility:
"'In general, prosecutors may not offer juries their personal opinions as to the
credibility of witnesses. Prosecutors have wide latitude, however, to craft arguments that
include reasonable inferences to be drawn from the evidence. That latitude includes
explaining to juries what they should look for in assessing witness credibility, especially
when the defense has attacked the credibility of the State's witnesses. [Citations
omitted.]'"
An example of a prosecutor who acted outside of that wide latitude comes from
State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005), where the prosecutor referred to
the defendant as a "liar" and stated in her closing argument that "'the truth shows you
beyond a reasonable doubt the defendant is guilty . . . .'" See also State v. Pabst, 268 Kan.
501, 507, 996 P.2d 321 (2000) (prosecutorial misconduct when the prosecutor told the
jury that the defendant and defense counsel lied); State v. Akins, 298 Kan. 592, 607, 315
P.3d 868 (2014) (misconduct when the prosecutor explicitly stated that the witnesses and
their statements were or were not "credible").
On the other hand, a prosecutor does not act outside the wide latitude afforded if
he or she merely observes that some reasonable inference about witness credibility may
be drawn from evidence introduced at trial. See State v. Duong, 292 Kan. 824, 831-32,
257 P.3d 309 (2011) (prosecutor's explicit comments about witnesses' credibility not
improper because they were reasonable inferences based on the evidence at trial and
prosecutor directed jury to that evidence); see also State v. Davis, 275 Kan. 107, 122-23,
61 P.3d 701 (2003) (prosecutor made reasonable inferences based on evidence in stating
witness should be believed and that witness was more likely to tell truth in first police
interview than second).
23
Here, the prosecutor's statement with which Sean takes issue is:
"One of the agreements here is defendant will be required to testify truthfully at any and
all proceedings in which he is subpoenaed. . . . This requirement shall apply when the
defendant is called to the stand by the State or by any other party in the matter. Any
question regarding the truthfulness of the testimony given by the defendant will be
resolved by an independent magistrate."
Notably, both Sean and the State seem to consider this a reference to Garza's
requirement to tell the truth, even though the prosecutor says "defendant," which would
mean Sean, not Garza. To their credit, it does appear that the prosecutor meant Garza,
based on his previous statement:
"[STATE:] Anthony Garza came forward when he was arrested on the 20th and said,
'Look, guys, this is what I know.' . . . Well, think about his plea agreement. The part that
wasn't read to you in Court the other day is this—Judge, can I ask if Mr. Peeler—okay.
Sorry, I saw his eyes closed. I wanted to make sure you were awake.
"JUROR PEELER: Yeah.
"[STATE:] One of the agreements here is defendant will be required to testify truthfully
at any and all proceedings in which he is subpoenaed."
It appears from the transcript that the prosecutor was referring to Garza and his
plea agreement but lost his train of thought when he observed a juror with closed eyes
and then started calling Garza the "defendant." Consequently, it is unclear exactly what
the jury took from the prosecutor's statements.
24
If the jurors understood this to be a reference to Garza's plea agreement and his
obligation to tell the truth, the prosecutor committed no error. The prosecutor never
mentioned his own opinion about Garza's credibility, but simply stated a fact that was
easily confirmed by Garza's own testimony and his oath to tell the truth. Garza
confirmed, on the stand, that he had entered a plea agreement in exchange to testify. In
Duong and Davis, the prosecutor went one step further by not only pointing to facts but
then explicitly stating that the facts made the witness credible. 292 Kan. at 831-32; 275
Kan. at 122-23. Because here, the prosecutor simply stated a fact based on something
already in evidence, the prosecutor was not improperly offering an opinion on Garza's
credibility and was thus acting within the wide latitude afforded prosecutors.
If the jurors took the prosecutor's statement to mean that Sean had a plea
agreement that required him to tell the truth, it is more likely that the comment amounted
to error because such a statement is false. However, neither party considered this scenario
or provided any argument on the issue. Thus this argument is not properly before this
court. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (arguments not
briefed on appeal are deemed waived and abandoned).
We conclude that the prosecutor did not act outside of the wide latitude afforded
prosecutors when the prosecutor stated that Garza would be required to tell the truth at
any proceedings because of the plea agreement. Thus, there was no prosecutorial error.
In sum of this four-part issue, prosecutorial error occurred when the prosecutor
made comments regarding Sean's retention of an attorney and we assume error in the
prosecution's comments regarding the alibi. However, because both errors were harmless,
there is no reversible error.
25
Erroneous Admission of Bad Acts Evidence
Sean presents four arguments in this issue: (1) the trial court failed to make
findings on the record that it was required to make before admitting prior bad acts
evidence under K.S.A. 2016 Supp. 60-455; (2) the prior bad acts evidence was either
irrelevant or the probative value of the evidence was outweighed by its prejudicial effect;
(3) the limiting instruction given by the trial court in regard to the prior bad acts evidence
was erroneous; and (4) the limiting instruction did not cure the lack of findings on the
record.
Because we conclude that Sean did not preserve this issue for appeal, we do not
reverse on these grounds.
"K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal
unless a party has lodged a timely and specific objection to the alleged error at trial."
King, 288 Kan. at 349.
"[U]nlike a failure to object to evidence, a failure to object to an instruction does
not bar appellate review of the instruction. It does, however, raise the persuasive bar the
complaining party must hurdle on appeal; the appellate court must be convinced the
instruction is clearly erroneous." State v. Breeden, 297 Kan. 567, 581, 304 P.3d 660
(2013).
First, Sean argues that the court was required to make certain findings under
K.S.A. 2016 Supp. 60-455 and State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 647
(2006), before it could admit the following evidence: certain testimony from Bernhard, a
statement made during the State's closing argument, numerous text messages, and a
26
detective's testimony that Sean allegedly had possession of a firearm that had been
reported stolen.
Sean did not object to the introduction of the text messages or the statement in the
closing argument. Sean did object to some of Bernhard's testimony, but he did so on
grounds of hearsay, cumulative evidence, and that some of her testimony was not in
dispute. At no point did Sean challenge the lack of Gunby findings. Because Sean either
failed to object or objected on different grounds than he raises on appeal, this argument is
not properly before this court.
Sean's second argument that the evidence was more prejudicial than it was
probative was likewise not preserved by a timely objection on this ground. Accordingly,
this argument cannot be raised for the first time on appeal.
Sean's third and fourth arguments purport to take issue with the limiting
instruction. He contends that the instruction did not cure the trial court's error in failing to
make Gunby findings. Additionally, he contends the instruction itself was erroneous
because it allowed the jury to consider prior crimes evidence for motive and the
relationship of the parties without the district court having made the required Gunby
findings.
The trial court provided the following limiting instruction with regard to K.S.A.
60-455 evidence: "In this case, ladies and gentlemen, evidence has been admitted
tending to prove the defendant committed crimes other than the present crimes charged.
This evidence may be considered solely for the purpose of proving the defendant's motive
and the relationship of the parties."
27
While this court can address challenges to jury instructions not raised below, we
observe that neither of Sean's contentions actually concern the instruction itself. Rather,
they are veiled continuations of his arguments that the admission of the evidence was
erroneous and that the court failed to make Gunby findings. Accordingly, Sean cannot
make these arguments on appeal. See Breeden, 297 Kan. at 580 (explaining this court
would not "allow [a party] to merely disguise an evidentiary argument as an instructional
issue" in order to present an unpreserved argument on appeal); State v. Rojas-Marceleno,
295 Kan. 525, 538, 285 P.3d 361 (2012) (refusing to review an unpreserved issue that
was framed as an instructional error).
We are unable to reach the merits of Sean's prior bad acts arguments because he
failed to properly preserve them for review and sought to reframe unpreserved issues as
instructional error.
Erroneous Admission of Hearsay Statements
Next, Sean argues the trial court erred by admitting certain hearsay statements
under the declarations against interest exception.
"This court reviews a trial court's determination that hearsay is admissible under a
statutory exception . . . for an abuse of discretion." State v. Summers, 293 Kan. 819, 827,
272 P.3d 1 (2012). Judicial action constitutes an abuse of discretion if it
"'(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. [Citations omitted.]'" State v.
Shank, 304 Kan. 89, 92, 369 P.3d 322 (2016).
28
K.S.A. 2016 Supp. 60-460 bars admission of "[e]vidence of a statement which is
made other than by a witness while testifying at the hearing, offered to prove the truth of
the matter stated" unless it falls into one of the exceptions outlined in the statute. One of
these exceptions is the declarations against interest exception, which is defined as
"a statement which the judge finds was at the time of the assertion so far contrary to the
declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or
criminal liability or so far rendered invalid a claim by the declarant against another or
created such risk of making the declarant an object of hatred, ridicule or social
disapproval in the community that a reasonable person in the declarant's position would
not have made the statement unless the person believed it to be true." K.S.A. 2016 Supp.
60-460(j).
Marcus Hernandez testified for the State and described a conversation that he
overheard between Stricker and Garza. The trial court ruled that many of the statements
that Hernandez recounted were admissible under the declarations against interest
exception. Sean argues that Stricker and Garza were coparticipants in this crime, and
under State v. Myers, 229 Kan. 168, 174, 625 P.2d 1111 (1981), hearsay statements by
coparticipants may not come into evidence under the declarations against interest
exception. Specifically, Sean takes issue with the admission of the following testimony:
 Hernandez' testimony that, upon hearing that a body was found, Stricker
said: "I hope they didn't kill that fool."
 Hernandez' testimony that Stricker said he went over to Lindsey's house,
picked him up, and took him to Sean's shop.
29
 Hernandez' testimony that Stricker said there were Asians at the shop and a
particular Asian was the "supposed boss."
 Hernandez' testimony that Stricker said he and Garza took Lindsey to
Sean's shop because of money.
 Hernandez' testimony that Garza said he had zip-tied Lindsey to a chair.
 Hernandez' testimony that, after getting a phone call, Stricker said: "We got
to go. The weakest link has been caught."
 Hernandez' testimony that, after Stricker said his mother had informed him
that a body was found, Stricker was not surprised at the news, but skeptical.
 The prosecutor's question to Hernandez "what did SB [Stricker] tell you
that the Asians told him regarding an alibi?"
 Hernandez' testimony that "there was talk about, you know, just . . . a
certain Asian guy out at the Asian group that's just . . . was just a bad-ass"
in response to the court's question regarding whether Stricker had ever told
Hernandez the names of any of the Asians.
30
Before addressing whether the testimony was erroneously admitted as hearsay
declarations against interest, we first rule out the testimony that did not actually describe
hearsay statements.
First, we conclude that Stricker's statements "I hope they didn't kill that fool,"
"[w]e got to go," and "[t]he weakest link has been caught," were not admitted to prove
Stricker's hopes, his need to leave a place, or that someone had been caught. Rather, they
appear to be an attempt to show that Stricker had knowledge of the crime and a guilty
conscience. As the statements were not admitted to prove the truth of the matter asserted,
they do not constitute hearsay.
Second, Hernandez' testimony that Stricker was not surprised but skeptical appears
to be Hernandez' own perception of Stricker's emotions on the day in question. Under
these circumstances, we do not regard Hernandez' description of Stricker's apparent
emotional state as an out-of-court statement. See Markgraf v. State, 12 P.3d 197, 198
(Alaska App. 2000) (citing John W. Strong et al., McCormick on Evidence [5th ed.
1999], § 250, Vol. 2, pp. 108-109) (explaining that "[c]ourts routinely hold that testimony
concerning a person's apparent mental state-testimony that the person appeared angry,
fearful, agitated, happy, or excited-is not hearsay" because the person does not intend the
"demeanor to be an assertion about his mental state").
Finally, we observe that the State's question to Hernandez regarding an alibi was
not a statement, but a question posed by counsel. As the prosecutor abandoned the
question without receiving an answer, no hearsay statement was admitted.
These five excerpts of testimony were not hearsay statements and were thus
admissible without falling into any exception. This leaves the following testimonies for
this court's review:
31
 Garza's statement that he zip-tied Lindsey to a chair.
 Stricker's statement that he went over to Lindsey's house, picked him up,
and took him to Sean's shop.
 Stricker's statement that he and Garza took Lindsey to Sean's shop because
of money.
 Stricker's statement that there were Asians at the shop and a particular
Asian was the "supposed boss."
 Hernandez' testimony that "there was talk about, you know, just . . . a
certain Asian guy out at the Asian group that's just . . . was just a bad-ass"
in response to the court's question regarding whether Stricker had ever told
Hernandez the names of any of the Asians.
We decline to address the admission of each statement in turn as it will have no
effect on our ultimate conclusion. Even if we assume all of the testimony was
erroneously admitted, our analysis below demonstrates its admission amounted to
harmless error.
When determining whether an alleged violation of statutory evidentiary limitations
was error, we apply the harmless error standards set out in K.S.A. 2016 Supp. 60-261 and
K.S.A. 60-2105. This standard provides that we must consider "whether a reasonable
32
probability exists that the error affected the outcome of the trial in light of the record as a
whole." State v. Betancourt, 299 Kan. 131, 144, 322 P.3d 353 (2014). The burden of
persuasion lies with the party benefitting from the introduction of the evidence. 299 Kan.
at 144.
Review of the record demonstrates that the substance of the majority of the
challenged testimony was cumulative and established through other evidence. First,
Bernhard, Coleman, and Garza testified that Lindsey owed Sean money. Second, the
State offered a series of text messages in which Sean repeatedly told Lindsey to get him
his money and threatened to take his truck and "crack . . . heads." Third, Garza testified
that he and Stricker picked up Lindsey and took him to the shop. Sean's text messages
confirm that he sent men to collect from Lindsey. Fourth, Garza and Coleman both
testified that Sean and Air, who both appear to be of Asian descent and were depicted in
photos given to the jury, were at the shop on January 11. Fifth, Coleman testified that
Sean was the owner of the shop—thus implying that he was the boss. Finally, Garza
testified that he zip-tied Lindsey to the chair.
The only noncumulative evidence in the challenged testimony was the reference to
one of the "Asians" as a "bad-ass." However, this one passing comment, when coupled
with the other challenged cumulative evidence, could not have reasonably affected the
outcome of the trial in light of the great weight of evidence implicating Sean in the crime.
Any error in the admission of this challenged evidence amounts to harmless error.
The statements that Sean challenges as inadmissible hearsay were either not
hearsay statements or their admission was harmless. This argument fails.
33
Motion for Mistrial
Sean argues the trial court should have granted his motion for mistrial because the
prosecutor introduced inadmissible gang evidence in violation of an agreement between
the parties. The State acknowledges that it agreed not to introduce evidence of gang
affiliation but responds that the gang reference that entered evidence did not amount to
reversible error.
This court recently articulated the law and standard of review applicable to a
motion for mistrial:
"'Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
creates a two-step process. First, the trial court must determine if there was some
fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without an injustice. In other words, the trial
court must decide if the prejudicial conduct's damaging effect can be removed or
mitigated by an admonition, jury instruction, or other action. If not, the trial court must
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct.
1594 (2012); see State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011).
"'In Ward, our court articulated this standard by dividing the appellate court's
abuse of discretion inquiry into two parts, asking: (1) Did the trial court abuse its
discretion when deciding if there was a fundamental failure in the proceeding? and (2)
Did the trial court abuse its discretion when deciding whether the conduct resulted in
prejudice that could not be cured or mitigated through jury admonition or instruction,
resulting in an injustice? 292 Kan. at 551.' Waller, 299 Kan. at 725-26." State v. Moyer,
302 Kan. 892, 906, 360 P.3d 384 (2015).
34
In the present case, Garza provided the following testimony during the State's
direct examination:
"[PROSECUTOR:] Mr. Kerns also mentioned something in his opening about chatter
going on over at the jail between you and some guy named Caesar?
"[GARZA:] Caesar Reyes.
"Q. Caesar Reyes?
"A. Yes.
"Q. What have you told Caesar Reyes about this case?
"A. I actually never told that man nothing about this case. I was sitting in chapel—he was
actually in the same pod, in the same section as Dang Sean. He asked me what I was here
on, I said aggravated kidnapping. And then he was actually to the left of me in chapel,
and he was like, oh, man, I'm—I know this guy, this Asian dude, he has a big A on his
back saying he's a shock collar for the Asian Boy Crips. And that he's in here on agg
kidnapping, first-degree murder, and a gun charge. I was like—I said Dang Sean? And
said he yeah. And I was like I'm on the same case. He was like, oh, oh."
Defense counsel moved for a mistrial after the prosecutor concluded the direct
examination of Garza, arguing that the parties' agreement that there would be no
discussion of gang affiliation had been violated.
The trial court denied the motion for mistrial reasoning there was no deliberate
violation of the parties' agreement. The judge admonished the parties not to make any
references to gangs, but Sean declined his offer to give a limiting instruction or
admonishment to the jury.
35
Step 1: Did the trial court abuse its discretion in deciding whether there
was a fundamental failure?
Under the first step of the mistrial analysis, it is not clear whether the trial court
considered the admission of the gang reference a fundamental failure in the proceeding.
The court did note that gang references can be very prejudicial, depending on the context,
but then commented that in this instance, the comment was made in passing by a witness
"in the middle of a bunch of other things that he said" and was not a deliberate violation
of the parties' agreement. From these comments, it seems the court may have been
implying that there was no fundamental failure.
However, the trial judge went on to address the second step in considering a
motion for mistrial when he offered to give a jury admonishment or limiting instruction.
Because this step is necessary only when there was a fundamental failure in the trial, we
assume the trial court determined the gang reference constituted a fundamental failure in
the proceedings.
Sean presents a number of arguments to support the trial court's conclusion
that there was a fundamental failure in the proceeding: the prosecution violated an
agreement that it would not introduce evidence of gang affiliation; any references
to gangs were not relevant and thus inadmissible under State v. Goodson, 281 Kan.
913, 135 P.3d 1116 (2006); and the statements were inadmissible hearsay. The
most compelling, however, is that the prosecution violated the parties' agreement
that no evidence of gang affiliation would be admitted at trial. The State
acknowledges this agreement but argues that it is "a stretch" to consider the
admission of Reyes' statements a fundamental failure because, but for the
agreement, gang evidence may have been admissible. Furthermore, the State
argues, the prosecutor did not desire the admission of this evidence. Rather, the
reference was "blurted out" by a witness. Because the State's witness testified to
36
Sean's gang affiliation nonetheless, we conclude that the trial court did not abuse
its discretion in apparently concluding this was a fundamental failure in the
proceedings.
Step 2: Did the trial court abuse its discretion in deciding any potential
prejudice could be mitigated?
In the second step of the mistrial analysis, we decide whether the trial court abused
its discretion in concluding that any potential prejudice from the fundamental failure
could be mitigated. Moyer, 302 Kan. at 907-08.
Here, the judge admonished the parties not to mention any more gang affiliations
and asked Sean if he would like a limiting instruction or jury admonishment to negate
any potential prejudice. Sean denied a jury admonishment or limiting instruction.
We conclude that the trial court did not abuse its discretion in deciding that any
prejudice could be mitigated. This testimony amounted to one passing gang reference
made by one witness and was never highlighted or dwelled upon by the prosecution. The
court mitigated any potential prejudice with an admonishment to the parties and an offer
to provide a limiting instruction or jury admonishment. Consequently, the trial court
acted within its discretion when it denied the motion for mistrial.
Limitation on Cross-examination
Sean argues that the trial judge's decision to limit cross-examination of a State's
witness precluded him from asking pertinent questions that went to the witness'
credibility. Sean contends this limitation resulted in a violation of his rights under the
Confrontation Clause.
37
Even if we assume the limitation was erroneous, our analysis below demonstrates
that reversal is not required.
When an error infringes upon a party's federal constitutional right, a court will
declare a constitutional error harmless when the party benefiting from the error persuades
the court "beyond a reasonable doubt that the error complained of will not or did not
affect the outcome of the trial in light of the entire record." Ward, 292 Kan. at 569.
In the present case, Coleman testified for the State. During cross-examination,
defense counsel asked about a statement Coleman made to a detective regarding an
episode of 20/20 that Coleman had watched. The prosecutor objected to this question
based on relevance. The trial judge sustained the objection and explained that the
testimony would tend to confuse the issues or mislead the jury.
After redirect, the jury was dismissed for the day and the judge allowed defense
counsel to explain what testimony he was trying to elicit from the witness. Referencing
Detective Robert Reichenberger's report of an interview with Coleman, defense counsel
explained:
"The sentence I wanted to ask him about was whether this person advised the Detective
Reichenberger that the—this is how he felt, that he was being made to say something he
didn't know anything about. That's what I wanted to get out on cross. That Will advised
Reichenberger that he felt like he was being made to say something he didn't know
anything about."
The prosecutor responded by reading aloud this portion of the interview. In that
portion of the interview, the Detective explained that Coleman told him
38
"'he had seen a shown [sic] on 20/20 called Confessions, that he had learned of five
young men who had been implicated in being involved in a criminal investigation and
who had been convinced by the detectives to plead guilty to something they hadn't
actually done but did so because they had been influenced by detectives to say that
something happened when, in fact, it hadn't.
"[Coleman] advised me that this is how he felt, that he was being made to say
something that he did not know anything about. I asked Will if he said anything that is
untrue, and he advised me that, no, he did not. I advised Will if he hadn't said anything
that wasn't true, that he wasn't, in fact, guilty of the same behavior as the five males. And
about that time [Coleman] made the statement, quote, 'I'm going to die, [Sean]'s going to
kill me. I'm frightened for my life because I'm jeopardizing [Sean]'s freedom,' end quote."
After the prosecutor read this report, the trial judge reiterated his earlier decision
to sustain the objection, noting that the 20/20 reference was "vague, ambiguous . . . [and]
misleading."
We disagree with the trial judge's characterization of the 20/20 reference because
the credibility of a participant in the crime was potentially important to the defense. The
reliability of a witness is an essential jury consideration, one upon which guilt or
innocence may ultimately rest. See State v. Francis, 282 Kan. 120, 149-50, 145 P.3d 48
(2006) (credibility evidence may be considered as exculpatory evidence). However,
despite its relevance to credibility, we observe that the 20/20 reference offered no
substantive or exculpatory evidence. Thus, given the overwhelming evidence in this case,
including evidence which corroborated Coleman's testimony, we conclude that, beyond a
reasonable doubt, the exclusion of the 20/20 reference did not affect the outcome of this
trial. The admission of this testimony does not constitute reversible error.
39
Improper Sympathy Evidence
Sean next argues that during direct examination, the prosecutor elicited improper
sympathy evidence from Lindsey's mother, Anita Lindsey (Anita). However, Sean has
failed to preserve this issue for review.
"K.S.A. 60-404 dictates that evidentiary errors shall not be reviewed on appeal
unless a party has lodged a timely and specific objection to the alleged error at trial."
King, 288 Kan. at 349.
Defense counsel lodged no objections during any of Anita's testimony.
Sean argues that this court should review this issue even though he made no
contemporaneous objection because this court reviewed similar issues in State v.
Kunellis, 276 Kan. 461, 477-49, 78 P.3d 776 (2003), and State v. Carter, 270 Kan. 426,
441-42, 14 P.3d 1138 (2000), even though there was no contemporaneous objection in
either case.
However, in Kunellis and Carter, we reversed and remanded both cases on issues
other than sympathy evidence and addressed the sympathy evidence only to guide the
trial court on remand. Kunellis, 276 Kan. at 478-79, 489; Carter, 270 Kan. at 441-42.
These cases do not stand for the proposition that this court should review unpreserved
sympathy evidence as the basis for reversible error, as Sean implies.
Alternatively, Sean argues that this court should review this issue "to prevent the
denial of [his] fundamental right to a fair trial free from irrelevant and prejudicial
sympathy evidence, meant only to arouse the passions of the jury." In support of this
assertion, Sean cites one Kansas Court of Appeals case in which the court held that even
40
if it were to consider the party's unpreserved constitutional argument, it would fail on the
merits. State v. Stevens, 36 Kan. App. 2d 323, 338, 138 P.3d 1262 (2006). Thus, Sean
provides no support for why the court must review this issue to prevent the denial of a
fundamental right.
Finally, Sean argues that review is necessary to serve the ends of justice because
he was "actually harmed by the introduction of this inadmissible evidence, in
combination with the other errors of the trial court and the prosecutorial misconduct that
saturated this trial." In support, Sean cites State v. Holt, 285 Kan. 760, 769-70, 175 P.3d
239 (2008).
Sean's reliance on Holt is misplaced. In Holt, this court declined to conclude that
an unpreserved argument fell into the "ends of justice" exception to the contemporaneous
objection rule because the party failed to show that the alleged error actually caused
harm. 285 Kan. at 770. Sean urges this court to conclude that Holt also stands for the
inverse: that this court will review an unpreserved argument when the party can show
that an alleged error did cause harm. But Holt does not stand for this proposition and we
decline to adopt Sean's interpretation. Thus, Sean presents no support for his assertion
that this court must review the issue to serve the ends of justice.
Because defense counsel failed to object to this testimony at trial, and Sean offers
no persuasive support for his arguments that this court should nonetheless review this
argument, Sean fails to present grounds for reversal.
Cumulative Error
Sean finally argues that cumulative error resulted in an unfair trial.
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When a party argues that the cumulative impact of alleged errors is so great that
they result in an unfair trial, this court aggregates all the errors and, even if those errors
individually would be considered harmless, analyzes whether their cumulative effect is so
great that they collectively cannot be determined to be harmless. State v. King, 297 Kan.
955, 986, 305 P.3d 641 (2013). In undertaking such an analysis, this court reviews the
entire record and exercises unlimited review. State v. Cruz, 297 Kan. 1048, 1073-74, 307
P.3d 199 (2013). One error is insufficient to support reversal under the cumulative error
doctrine. State v. Novotny, 297 Kan. 1174, 1191, 307 P.3d 1278 (2013).
As discussed above, the prosecutor erred in asking questions about Sean's
retention of an attorney, and we have assumed error in the prosecution's questions
regarding an alibi and the trial court's admission of certain hearsay testimony and
limitation of cross-examination of one State's witness. None of these errors were
independently harmful in nature. Furthermore, overwhelming evidence implicated Sean
in these crimes, including eyewitness testimony, physical evidence, and Sean's own text
messages. The harmless nature of the error and assumed errors, coupled with the strength
of the State's case, compels our conclusion that the cumulative effect of the errors is not
so great as to warrant reversal.
The district court is affirmed.
ROSEN, J., not participating.
MICHAEL J. MALONE, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 114,417
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.
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