IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 85,442
STATE OF KANSAS,
Appellee,
v.
ROMEL METTEH ABU-FAKHER,
Appellant.
SYLLABUS BY THE COURT
1. The standard of review for a trial court's decision on a motion in limine is abuse of discretion. The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel.
2. The purpose for an order in limine is to exclude inadmissible evidence from trial, recognizing that the mere offer of inadmissible evidence at trial can prejudice the jury. A motion in limine should be granted if the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury.
3. Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-401(b) defines relevant evidence as evidence having any tendency in reason to prove any material fact.
4. A court's determination of relevancy of evidence is a matter of logic and experience, not a matter of law. To establish that evidence is relevant to the fact of the crime charged, this court has declared there must be some natural or logical connection between the evidence and the inference or result it is designed to establish.
5. The admission of evidence lies within the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion.
6. The trial court has discretion to allow evidence to be admitted in the least prejudicial manner to show possible bias on the part of a witness. The exposure of a witness' motivation in testifying is a proper and important function of cross-examination. A witness can be questioned about possible bias and motivation for testifying regardless of the scope of the direct examination. Bias, interest, or improper motives of a witness may always be shown in order to place his or her testimony in proper perspective.
7. A decision on a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. The defendant has the burden of showing substantial prejudice before an appellate court will find an abuse of discretion by the trial court.
8. When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous.
9. No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or failure to give an instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.
10. In a lesser included offense instruction the jury is directed to consider the offenses in descending order of severity because the greater (or greatest) offense is the one with which defendant has been charged. If the evidence, principally the State's evidence, establishes beyond a reasonable doubt the defendant's guilt of the charged offense, the case is over.
11. If a claimed error of prosecutorial misconduct rises to the level of a denial of the Fourteenth Amendment right to due process, the issue of prosecutorial misconduct will be addressed. The analysis of the effect of a prosecutor's allegedly improper remarks in closing argument is a two-step process. First, an appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, an appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
12. Premeditation, as it relates to a homicide, is the process of thinking about a proposed killing before engaging in the homicidal conduct. Premeditation is a state of mind.
13. A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. K.S.A. 60-404. It is well settled that a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal.
Appeal from Johnson district court; WILLIAM A. CLEAVER, judge. Opinion filed October 25, 2002. Affirmed.
Rebecca E. Woodman, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the briefs for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Carla J. Stovall, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Romel Metteh Abu-Fakher, from his conviction for the first-degree murder of his wife, Carol Abu-Fakher. He was sentenced to life imprisonment with no parole for 25 years followed by 24 months of postrelease supervision. His appeal comes before this court pursuant to K.S.A. 22-3601(b)(1), the direct appeal statute for first-degree murder convictions and sentences for life imprisonment.
Abu-Fakher was born in Syria, moved to Jordan, and then lived in Thailand from 1978 to 1991. He owned several houses in Thailand and rented two of them to members of the Iraqi Embassy. Abu-Fakher obtained information for the United States Embassy during Operation Desert Storm about a terrorist plan against the United States and its allies, and in exchange the State Department moved Abu-Fakher to the United States in January 1991.
The record revealed that Carol Abu-Fakher, the deceased victim, had a history of mental health problems. Sharon Whitley, Carol's sister, testified that she thought Carol had been institutionalized at some point in 1995 for a bipolar or manic-depressive disorder.
Abu-Fakher met Carol in Virginia in 1995 and married her later that year in Tampa, Florida. The couple began having problems. In July 1997, Abu-Fakher called Tampa police because as he tried to leave the house, Carol pushed him and prevented him from leaving. Carol continued to push Abu-Fakher even after police arrived. She was arrested and convicted of battery. Abu-Fakher obtained a restraining order, and Carol moved to her son's house. Abu-Fakher filed for divorce in September 1997.
The next time Abu-Fakher heard from Carol was in late 1997, after his Caller ID showed he had received calls from a mental health center. He went to the mental health center and learned that Carol was there. She eventually left the facility with Abu-Faker, but was recommitted to the facility on two more occasions in that time period.
After her last commitment, Abu-Fakher arranged for Carol to fly back to her family in Boonville, Missouri. Abu-Fakher drove to Boonville to speak with Carol's family about getting Carol some help. He stayed for 1 or 2 days and then began driving back to Florida. Carol's family told her to get help or get out, but Carol refused to cooperate and refused to stay. Abu-Fakher called Carol's family from St. Louis and learned she had left, so he returned to Boonville to look for her. He found her at the truck stop and took her to a hotel. The next morning he got her clothes from her family and drove her back to Florida.
Abu-Fakher testified that he decided it would be best for Carol if he moved her closer to her family, so they moved to Olathe, Kansas, in December 1997. There, Carol and Abu-Fakher worked as real estate agents. According to Abu-Fakher, Carol did better but on occasion when something was wrong with her he had to tell her to take her medicine. She thought the medicine made her hair fall out and hated to take it. During the time they lived in Olathe, another incident occurred where Abu-Fakher called the police. He testified, "We argue, she get drunk, she start argue, and I have to call the police to get out."
Whitley characterized Carol as vivacious and strong-willed but "very excitable" when she was ill. Joanna Engle, an acquaintance of Carol, thought of Carol as loud and obnoxious and felt "Carol had something wrong." Engle testified that Carol's behavior toward Abu-Fakher would often vacillate between "lovey-dovey" and "hateful" several times during the course of a social interaction.
In July 1999, Abu-Fakher rented a house to Jamie Saunders. Saunders telephoned Abu-Fakher later that day and asked him out; they had sex that night. Saunders' affair with Abu-Fakher continued until the time of his incarceration. Saunders eventually quit her job to work for Abu-Fakher. Approximately 1 week before Carol's death in September 1999, Abu-Fakher loaned Saunders his black Ford Crown Victoria to drive because her vehicle had been breaking down frequently.
On Saturday, September 18, 1999, Whitley and her husband, Jesse Jackson, drove to Overland Park to visit Carol and Abu-Fakher. Whitley said that "the minute they opened the door, we knew that something was wrong." Carol told them that Abu-Fakher had given their car away and that she suspected that Abu-Fakher and Saunders were having an affair. Abu-Fakher denied the affair and said he gave the car to a business associate who needed it to get to work. Carol argued with Abu-Fakher all day, riding him hard to get the car back. Carol's nagging continued even while Carol, Abu-Fakher, Jackson, and Whitley ate lunch. Whitley testified that she tried to get Carol to stop nagging, but said she would not be quiet. After returning to the house, the arguing continued; Whitley left for an hour because it was more than she could stand. At 5 p.m. she returned to find Carol was "still riding him." Jackson testified that Abu-Fakher tried to leave, but "Carol just stopped in front of him and put her hands up like that (indicating), and he whipped out his little cell phone and he dialed 911, which I had seen him do on a couple of other occasions."
The 911 dispatcher for Overland Park, Leigh Ann Greene, testified that an individual called from a cell phone at 6:11 p.m. on September 18 and said, "I need some help at 9900 Metcalf, please." Greene asked Abu-Fakher what was wrong, and he said, "I'm trying to leave the house and my wife, she is stopping me." Officer Peter O'Malley was dispatched to the Abu-Fakher residence at approximately 6:18 p.m. Abu-Faker was seated on the tailgate of a vehicle in the garage. Carol had locked him out. After officers spoke with Carol, she let Abu-Fakher come into the house to retrieve some clothing. The officers stayed at the residence until Abu-Fakher left in one of the vehicles.
Saunders testified that Abu-Fakher joined her and her mother at a nightclub around 8:30 p.m that night. They had drinks and danced, and Abu-Fakher told Saunders that Carol suspected he was having an affair and he would probably get divorced. Saunders testified that she and Abu-Fakher drove her mother home, then went back to his vehicle; she went home, and he went to his house.
Whitley testified that she had called Carol Sunday morning, September 19, and that Carol sounded great. Carol said she and Abu-Fakher were talking. Whitley thought things were okay between Carol and Abu-Fakher.
On Monday, September 20, Abu-Fakher called Saunders early in the morning and asked her if she could come into the office because he had a family emergency and would not be able to make it. She was surprised to see him stop by the office that morning. Saunders said that usually Abu-Fakher was a very neat person, but that morning he looked rough, his hair was a mess, his clothes were wrinkled, and his voice raspy. At trial, Abu-Fakher stated that Carol had kept him awake arguing all night Sunday and early Monday.
Don Ballard, a friend and business partner of Abu-Fakher, testified that Abu-Fakher telephoned on Monday around 10 or 10:15 a.m. to obtain help and guidance on how to deal with Carol. He wanted Ballard to recommend a doctor he could take Carol to see. Ballard testified that Abu-Fakher told him Carol was out of control, but when police officers were there she would act normal, and then the officers would leave.
On Monday, around 10:45 a.m., the police were again dispatched to 9900 Metcalf in response to a 911 call classified as a disconnect. Deputy Jennifer Hayes of the Wyandotte County Sheriff's Department testified about a tape recording made of the call. A male voice on the tape said, "She won't go with me to emergency." A female could be heard in the background using vulgarity and saying, "Hang up the phone." The male said, "I need some help." The female said, "Well then you are going too because I'm going to tell them what you did. I'm going to tell them what you did."
Officer Elgio Hernandez was dispatched to 9900 Metcalf at 10:52 a.m. Hernandez testified that Abu-Fakher answered the door and said he had called so officers could have his wife taken to seek psychological counseling. Hernandez spoke with Carol in the kitchen, and she explained that Abu-Fakher had called 911 because he wanted her to be committed or to seek psychological counseling because he felt she was having a nervous breakdown. Carol told Hernandez that they had an appointment at 2 p.m. to see a marital counselor. After questioning both parties, Hernandez informed Abu-Fakher there was nothing they could do to help him due to the fact that Carol had not made any threats toward him verbally or physically.
Kathy Calvert, a clinical social worker and psychotherapist, met with Abu-Fakher and Carol at 2 p.m. on Monday. She testified that Carol would not always respond directly to her questions, but was "oriented to person, place, and all of that kind of thing." Carol told Calvert that her husband was having an affair with a coworker and had given one of their family vehicles to her. She said Abu-Fakher had promised her if she would just come to the appointment he would get the car back from this woman. When Carol asked Abu-Fakher if he was going to get the car back in front of Calvert, he would not respond. Abu-Fakher told Calvert, "Get her records, she has a history of mental illness," and, "[S]he needs help." Calvert's impression was that Abu-Fakher wanted Carol hospitalized or committed in some way. Calvert explained to Abu-Fakher that unless Carol was in imminent danger of harming herself or someone else, she could not force treatment on Carol. Calvert concluded they were not getting anywhere after about 45 minutes, so she gave them both her business card, and told them to call her if one or both of them wanted to continue in some kind of treatment. Calvert did not see either of them again.
Abu-Fakher testified that as a result of the prolonged arguing, he got his handgun around 3 p.m. and tried to shoot himself. He stated that Carol saw him, took the gun from him, and put it in the kitchen cabinet.
Ballard went to the Abu-Fakher residence some time between 3 and 3:30 p.m. He testified that he wanted to be a good listener and a friend, try to work through some of the problems they were having, and impress on them that they needed to separate. Ballard asked Abu-Fakher about the affair, but Abu-Fakher denied he was having an affair and told Ballard it was strictly professional.
Ballard testified that he witnessed Carol's mood swings and stated she was "very aggressive, very boisterous, very argumentative, extremely physical, argumentative, demanding . . .[and] definitely was in charge of that home at that time . . . ." According to Ballard, Carol was completely out of control. Carol would physically manhandle Abu-Fakher, shoving him around, and would at times put her finger toward his face, causing him to jerk his head out of the way to avoid having his eye poked out. Carol told Ballard that Abu-Fakher was going to leave her and make her "homeless again," and that he would send her back to the "nut house." Ballard tried to act as peacemaker while he was there, but had to leave to attend a meeting around 6:15 p.m.
Around 8 p.m. Monday evening, Saunders spoke with Abu-Fakher again. Saunders testified that he told her "if there were any questions at the office the next morning, to try to maintain that our relationship was professional."
Abu-Fakher stated that Carol left the house around 9 p.m., telling him she was going to the drugstore. Engle testified that Carol came to her house sometime after 8 p.m. on Monday evening. According to Engle, Carol was looking for Ballard at her house because Ballard and Engle were dating. Engle testified that Carol was very emotional and was smoking cigarettes "like crazy." Carol asked for a beer and told Engle to tell Ballard that Abu-Fakher was not the man he thought he was. Carol told Engle something about the car and that Abu-Fakher was having an affair with Saunders. Carol stayed at Engle's house about 20 minutes and then left. According to Abu-Fakher, Carol did not return home for 3 hours.
Abu-Fakher testified that after Carol left, he went upstairs and got his Sony tape recorder and put it in his pocket. He wanted proof of Carol's behavior so others would know what was going on. The tape recorder was voice-activated. Abu-Fakher said he laid down on the sofa and fell asleep.
At approximately 11:45 p.m., Carol telephoned Ballard at home, waking him up. Ballard testified:
"She was very demanding of me. She essentially told me that she wanted me to come over to the house 'right now,' this was going to 'get resolved tonight.' She wanted the car back, she wanted Jamie out of her life, she wanted Romel to tell the truth, and it was going to get resolved tonight or she was going to go tell everybody tomorrow at the office."
Ballard wanted to postpone going to the Abu-Fakher's until morning. After speaking with Carol for about 10 minutes, Carol handed the phone to Abu-Fakher. Ballard testified that he advised Abu-Fakher if he could not get out of the house, to tell Carol whatever he could to pacify her and settle her down for the night. Ballard and Abu-Fakher continued talking as Carol was screaming in the background. Then the phone went dead. Ballard stated that as soon as he got his wits about him he called back, approximately 1 or 2 minutes later. Abu-Fakher answered the phone and told Ballard that Carol had been shot and he needed an ambulance. Ballard instructed Abu-Fakher to hang up and to call 911 and ask for an ambulance.
On September 21, 1999, at 12:41 a.m., an Overland Park police dispatcher received a 911 call from the address of 9900 Metcalf. A man reported that someone had been shot and, in response to the dispatcher's question, indicated that the shooting was accidental. At trial, the dispatcher testified she thought that the caller threatened to shoot himself.
Officers Kathleen Wedel and Michelle Manfield of the Overland Park police went to the 9900 Metcalf address in response to the dispatcher's call. When they arrived, Wedel testified she saw Abu-Fakher in the front yard with his hands in the air. He was holding a cordless phone in his left hand. As the officers approached Abu-Fakher to handcuff him, he yelled that there was a woman dying inside. He used the words woman and wife. Manfield recalled Abu-Faker yelling, "Save my wife." In response to Wedel's questions, Abu-Fakher told the officers the gun was in the house, but that no one but his wife was in the house.
Manfield patted Abu-Fakher down while Wedel handcuffed him. Manfield felt a hard object in his jacket pocket and pulled it out. It was a tape recorder. The red light on the recorder indicated that it was recording. Manfield and Wedel both indicated in their trial testimony that Abu-Fakher told them to turn the tape recorder back on and stated they might need it for later. Mansfield gave the tape recorder to Wedel and they put Abu-Fakher in a patrol car.
Officer Tom Keary entered the house and found Carol lying on the floor of the foyer just inside the door. Keary noted what appeared to be a gunshot wound on her right side a little below her armpit. When Keary first saw her it appeared to him that Carol might be breathing, but the paramedics informed him that Carol had been dead for some time.
Later, as Keary checked the house for weapons, he observed a black semiautomatic handgun laying on the kitchen counter. The officer found bloodstains on the front door by the bottom hinge, blood spatter on the foyer walls, and a spent 9 millimeter casing on the floor approximately 6 feet from Carol's body. According to Black, there were no indications that a struggle had taken place anywhere else in the house.
Sargent Kim Hulett of the Overland Park Police Department testified that she assisted at the crime scene and then helped pat down Abu-Fakher in the fingerprinting room of the police department. He told her,"I just killed my wife."
Deputy coroner Dr. Michael Handler, a forensic neuropathologist, performed an autopsy on Carol's body. He stated that the cause of death for Carol was "gunshot wound of abdomen and left arm." According to Handler, the bullet entered Carol's right side, traversed the abdominal organs, severed the vena cava, exited her left side, and passed through her left arm, fracturing ribs and her left ulna. He found about 1 1/3 quarts of blood in her abdomen, which in his opinion came from the severed vena cava. Handler's findings were consistent with other testing which indicated that the range of fire was within 3 feet, but not in contact with Carol's body.
Abu-Fakher testified that Ballard told him over the phone to leave the house, and he told Ballard he was leaving. He said he went to the kitchen cabinet and got the gun from the kitchen cabinet because Carol had threatened to kill Saunders, and also because he feared Carol would hurt herself. At that point, Carol was sitting on the sofa, apparently still talking on the phone with Ballard. Abu-Fakher said he turned the gun to his own head and stated, "It is over." According to Abu-Fakher, Carol screamed, "Don, Don, help," and, "He has got a gun." He testified that he did not shoot himself, but instead moved toward the front door. Abu-Fakher testified that she grabbed the gun and screamed at him to stop it. Abu-Fakher told jurors he ran toward the front door to get away from her and she came behind him, trying to block the door with the left side of her body. They argued briefly, and Abu-Fakher told her, "I want to kill you," thinking that would scare her and get her away from him. According to Abu-Fakher, they were both holding the gun, struggling with it, when it went off.
A jury trial was held in the District Court of Johnson County, Kansas. The jury unanimously found Abu-Fakher guilty of the first-degree premeditated murder of Carol. Judge Cleaver sentenced Abu-Fakher to life imprisonment with no parole for 25 years. Here, Abu-Fakher appeals his conviction and sentence.
I. TAPE RECORDING
The first assertion of Abu-Fakher is that the trial court erred in denying his motion in limine to preclude jurors from hearing the portion of the tape recording containing Carol's dying moans and gasps. According to Abu-Fakher, that portion of the tape was irrelevant, could have been redacted, and its prejudicial effect denied him a fair trial.
The standard of review for a trial court's decision on a motion in limine is abuse of discretion. State v. Humphery, 267 Kan. 45, 55, 978 P.2d 264 (1999). "The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel." Brunett v. Albrecht, 248 Kan. 634, 638, 810 P.2d 276 (1991).
Abu-Fakher does not argue that the tape recording was inaccurate, unauthenticated, or not freely or voluntarily given to police. Abu-Fakher's sole argument is that the portion of the tape containing the dying sounds of Carol constituted irrelevant and cumulative evidence. According to Abu-Fakher, that section of the tape recording is irrelevant and cumulative because the only item of evidentiary value ascertainable from that portion of the tape was the 911 call, which was available for the jury to hear on a separate tape. According to Abu-Fakher, the portion of the tape which recorded the sounds Carol made as she lay dying could have easily been redacted and served only to inflame the jury. Therefore, he asks this court find that he was denied his right to a fair trial by virtue of the trial court's refusal to limit the admission of that particular portion of the recording.
The State's position is that the trial court did not abuse its discretion by allowing the entire tape recording to come into evidence. The State asserts that (1) the section of the recording in question was material to the State's case in that it corroborated the testimony of a medical expert on cause of death; (2) that the portion of the tape in question had probative value because it captured Abu-Fakher's conversation with Ballard; and (3) that Abu-Fakher's trial counsel invited error by asking jurors to "listen to the tape" during closing argument.
Prior to trial in a motion in limine, Abu-Fakher asked the trial court to declare "inadmissible as gruesome, inflammatory and unduly prejudicial, those portions of the September 21, 1999, audiocassette tape wherein Carol Abu-Fakher is heard moaning and gasping in the background." On the first day of trial when asked about the recording, Judge Cleaver stated that he "found it to be disconcerting and unpleasant to listen to," but that he would have to make a determination as to whether "it rises to the level of being eliminated." On the second day of trial, after defense counsel again brought its motion in limine to the trial court's attention, the trial court stated it would admit the recording in its entirety. At that time, Judge Cleaver stated:
"With respect to the tape, I've had an opportunity to listen to that. I don't see how you can edit it per your request, Mr. Bath. It is so inclusive that I think that it would be impossible to edit. It is not pleasant listening. At the same time, I think that the probative value of that tape outweighs the prejudicial effect, and I will admit it.
. . . .
"When the tape is played, certainly Mr. Ballard can comment on his conversation and what he heard. But with respect to any other comments by third-party witnesses, it would be inappropriate and I'll sustain that on the motion in limine."
Later, Judge Cleaver clarified his intentions regarding the possibility of editing the recording, stating:
"Again, I don't mean to quarrel with you, I don't know that I made a ruling wherewhat I did was express an approach that I would like to see taken to this and I instructed [the prosecutor] to see if that couldn't be done. But I think I specifically said I was not going to eliminate the tape simply because it was unpleasant and I was willing to listen to editing a tape to eliminate those unpleasant matters that added noting to the trial. And, [the prosecutor] said he was going to look at that and it's on a CD, I think it could be fairly easily edited.
"It looks to me I need to take a copy of the CD and listen to it so I can respond to your request."
This court has previously observed:
"The purpose for an order in limine is to exclude inadmissible evidence from trial, recognizing that the mere offer of inadmissible evidence at trial can prejudice the jury. [Citation omitted.] A motion in limine should be granted if the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer of evidence or statements made during trial concerning the material will tend to prejudice the jury. [Citation omitted.]" State v. Galloway, 268 Kan. 682, 690, 1 P.3d 844 (2000).
Thus, we must first consider if the portion of the recording to which Abu-Fakher objects would be inadmissible at trial under the rules of evidence. If so, then we next consider whether the mere offer of the recording would tend to prejudice the jury.
"Except as otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. [Citations omitted.] K.S.A. 60-401(b) defines relevant evidence as 'evidence having any tendency in reason to prove any material fact.'" State v. Leitner, 272 Kan. 398, ___, 34 P.3d 42 (2001).
A court's determination of relevancy is a matter of logic and experience, not a matter of law. Leitner, 272 Kan. at ___ (citing State v. Gardner, 264 Kan. 95, 104, 955 P.2d 1199 [1998]). To establish that evidence is relevant to the fact of the crime charged, this court has declared there must be "some natural or logical connection" between the evidence and "the inference or result [it] is designed to establish." State v. Donesay, 265 Kan. 60, 85, 959 P.2d 862 (1998).
If the tape recording had no relevance to the crime, it would not be admissible. However, we find that the recording offers proof of the elements of the crime charged, including the fact and manner of Carol's death.
K.S.A. 60-445 provides:
"Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered."
"While K.S.A. 6