IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 84,112
STATE OF KANSAS,
Appellee,
v.
BRIAN BETTS,
Appellant.
SYLLABUS BY THE COURT
1.
Two requirements must be met before a trial court will grant the defendant's motion for a new trial based upon newly discovered evidence. First, the defendant must establish that the newly proffered evidence is indeed new, in that it could not, with reasonable diligence, have been produced at trial. Second, the evidence must be of such materiality that there is a reasonable probability that the newly discovered evidence would produce a different result upon retrial.
2.
New trials on grounds of newly discovered evidence are not favored and such motions are to be viewed with caution.
3.
The standard applied by the trial court for granting a new trial based on recanted testimony is well established. Where a new trial is sought on the basis of recanted testimony of a prosecution witness, the weight to be given such testimony is for the trial court to determine. The trial court is required to grant a new trial only when the court is satisfied the recantation of the witness' testimony is true and material.
4.
Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion.
5.
A conviction obtained by the introduction of perjured testimony violates a defendant's due process rights if (1) the prosecution knowingly solicited the perjured testimony, or (2) the prosecution failed to correct testimony it knew was perjured.
6.
The hearsay exception K.S.A. 2000 Supp. 60-460(h)(2) applies to statements of which the party with knowledge of the content thereof has, by words or other conduct, manifested the party's adoption or belief in its truth. Through this exception, an incriminating statement of a third person, which an accused has admitted to be true, is admissible in evidence against the accused as his or her own statement by adoption. This exception also allows the admission, under certain circumstances, of statements to the prejudice of the accused that are made in his or her presence and tolerated without resentment, explanation, or denial by the accused.
7.
In order for such adoptive silence statements to be admissible, the evidence must disclose: (1) the statement was extrajudicial, (2) it was incriminatory or accusative in import, (3) it was one to which an innocent person would in the situation and surrounding circumstances naturally respond, (4) it was uttered in the presence and hearing of the accused, (5) the accused was capable of understanding the incriminatory meaning of the statements, (6) the accused had sufficient knowledge of the facts embraced in the statement to reply thereto, and (7) the accused was at liberty to deny it or reply thereto.
8.
The Confrontation Clause of the Sixth Amendment to the United States Constitution operates in two ways when determining the admissibility of hearsay statements. First, the Sixth Amendment establishes a rule of necessity. In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Second, once a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantee of trustworthiness.
9.
The hearsay exception under K.S.A. 2000 Supp. 60-460(h)(2) for adoptive admissions, including admissions by silence, is a firmly rooted hearsay exception.
10.
Prosecutorial misconduct by a prosecutor during argument to the jury is subject to the following test. First, the appellate court must determine whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. Second, the appellate court must determine whether the remarks constituted plain error; that is, whether they were so gross and flagrant as to prejudice the jury against the accused and deny him a fair trial. In order to find that the remarks were not so gross or flagrant, this court must be able to find that when viewed in light of the record as a whole, the error had little, if any, likelihood of changing the result of the trial.
11.
When a prosecutor's statements rise to the level of violating a defendant's right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs despite the lack of a contemporaneous objection.
12.
In a criminal case, the granting or denying of a motion for continuance is within the discretion of the trial court.
13.
Before defense counsel's assistance is determined to be so defective as to require reversal of a conviction, a defendant must establish (1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived the defendant of a fair trial.
14.
K.S.A. 2000 Supp. 22-3405, as well as the Sixth Amendment Confrontation Clause and the Fourteenth Amendment Due Process Clause of the Unites States Constitution, require the defendant's presence at every critical stage of a trial, including whenever the trial court communicates with the jury. K.S.A. 22-3420(3) requires that once a jury has begun deliberations, any questions concerning the law or evidence pertaining to the case must be answered in open court in the defendant's presence, unless the defendant is voluntarily absent.
15.
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. To show prejudice, the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. The performance and prejudice prongs of the ineffective assistance of counsel inquiry are mixed questions of law and fact, requiring de novo review.
16.
When experienced attorneys may disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective assistance of counsel.
17.
In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held that the Equal Protection Clause forbids the challenging of potential jurors solely on account of race or on the assumption that the jurors of that race as a group will be unable to impartially consider the case. In order to challenge the striking of a venireperson under the Batson methodology, the defendant must first make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. If such a showing is made, the burden then shifts to the State to articulate a race-neutral reason for striking the venireperson in question. The court must then determine whether the defendant has carried the burden of proving purposeful discrimination.
18.
The fact the State strikes a minority juror but fails to strike a white juror with similar characteristics is circumstantial evidence of purposeful discrimination. However, while this kind of circumstantial evidence may be sufficient to prove that the State's race-neutral reason was pretextual, it cannot be considered conclusive evidence in each case as a matter of law. The trial court's finding ultimately hinges on the court's evaluation of the prosecutor's credibility, which is entitled to great deference upon appellate review.
Appeal from Wyandotte district court, THOMAS L. BOEDING, judge. Opinion filed October 26, 2001. Affirmed.
David A. Kelly and Cheryl A. Pilate, of Wyrsch Hobbs & Mirakian, P.C., of Kansas City, Missouri, argued the cause and were on the briefs for appellant.
Michael A. Russell, assistant district attorney, argued the cause, and Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Brian Betts appeals from his conviction of premeditated first-degree murder in the death of Greg Miller. He contends (1) the trial court erred in denying his motion for a new trial following the recantation of the primary witness against him, (2) the court erred in admitting evidence in certain hearsay testimony, (3) the prosecutor committed misconduct during closing arguments, (4) the court erred in denying him a continuance after the revelation of exculpatory evidence requiring further investigation, (5) the prosecutor knowingly presented perjured testimony, (6) the court erred in denying his motion for new trial based on ineffective assistance of counsel, (7) the trial court failed to follow the proper procedure in answering questions posed by the jury, and (8) the court erred in overruling his objection to the prosecutor's peremptory strikes of jury members. Finding no reversible error, we affirm.
Brian Betts, Celester McKinney, and Celester's brother, Dwayne McKinney, were all charged with the first-degree premeditated murder of Greg Miller. Based upon a pretrial motion to sever, the defendant and the McKinney brothers were granted separate trials. Defendant Betts was found guilty, and we deal with his appeal in this case. Celester McKinney was also found guilty, and on appeal his conviction was affirmed by this court in State v. McKinney, No. 83,217, filed this date. Dwayne McKinney was found not guilty.
The major players involved in this appeal are Brian Betts and Celester and Dwayne McKinney. The main witness for the prosecution was Carter Betts, who is the uncle of the three codefendants. Jimmy Spencer, Jr., uncle of the victim, also testified on the part of the State. Other witnesses who testified at trial are identified below.
In the early morning hours of December 29, 1997, police in Kansas City, Kansas, responded to a report of shots fired and found Greg Miller's body. Greg had been shot 18 times with both a shotgun and a rifle. A trail of blood ran to the body. Spent 12-gauge shotgun shells and empty rifle shell casings were found near the body.
Alfred Burdette, Jr., the person who reported the shots, testified he heard the gunshots at approximately 3 a.m. He looked outside and saw a person walking and firing a gun. Another person on the other side of the street was also firing. At first, Burdette thought the persons were shooting at each other, but then he noticed they both ran off together in the same direction. Burdette testified at trial that he saw one of the shooters enter the rear gate at 2917 N. 5th. The person went to the door, hesitated, and then went in. Officer Keto Thompson was one of the responding officers. Officer Thompson testified that he talked to Burdette. According to Officer Thompson, Burdette said the person went between the houses, but Burdette did not know whether the person had actually entered the house in question.
Brian Betts resided at 2119 N. 5th with his uncle, Carter Betts. The defendant lived in an apartment at the residence with a separate entrance, while Carter, Celester McKinney, and Dwayne McKinney lived in the main part of the house.
Carter provided the testimony linking the defendant to the crime. Celester and Dwayne were cleaning a building on the night in question and returned home between 11:30 p.m. and midnight. Carter went to sleep but was awakened at approximately 3 a.m. by gunshots. He testified he then heard the front door open and close. He went downstairs to investigate and found the defendant, Dwayne, and Celester. A pistol grip shotgun and an assault rifle lay at the feet of Dwayne and the defendant.
According to Carter, he asked what happened and Celester replied that they "shot that Greg cat." Carter stated that Celester did most of the explaining, although the defendant and Dwayne also interjected comments. Celester explained to Carter that they suspected Greg, the victim, broke into and burglarized the defendant's apartment. Celester stated the defendant and Dwayne were looking for Greg but could not find him, so Celester went to his house to urge him to come out. When Greg denied having broken into the defendant's apartment, Dwayne raised a gun to shoot him. However, the gun jammed and Greg began to run away. Celester told Dwayne and the defendant to stop him because they could not let him live to be a witness. Dwayne and the defendant began firing and their shots knocked Greg down. Celester told Carter that the defendant then went over and finished Greg off. According to Carter, the defendant also confirmed that he stood over Greg and shot him. Carter testified the defendant later told him they had gotten rid of the guns.
Carter testified that when the police questioned him regarding the incident, he told them his nephews had been in bed asleep at the time the shots were fired. Later, however, the police questioned him at the station and he changed his story. Carter stated that his family was split over his testifying against his nephews. Near the end of the testimony, he began to cry. Under cross-examination, Carter testified that he and the defendant had a disagreement because the defendant thought Celester had broken into his apartment and Carter was protecting Celester by telling the defendant that Celester was with him when the break-in occurred. However, according to Carter, the defendant and he had resolved their differences by the time of the shooting.
Jimmy Spencer, Jr., Greg Miller's uncle, also provided information linking the defendant to the crime. Spencer stated that he woke up around 3 a.m. in order to get something to eat, and found that the soda pop that he had put in the refrigerator was gone. He woke Greg, who was living with him, and asked him if he had taken the soda pop. Greg confirmed that he had. Spencer sent Greg out to buy a soda pop from a nearby machine. When Greg returned, he told Spencer that a person named Les wanted to talk to him. Spencer testified he thought Greg was referring to the defendant as Les. Greg left to find out what Les wanted. Spencer stated he heard gunshots a few minutes later. He looked out the window and saw someone shooting toward the ground. Spencer dressed and went to investigate whereupon he found Greg's body. Soon after, the police arrived.
The other evidence linking the Betts' household to the crime came from a member of Greg's family who told police that a person named Les was involved.
The defendant presented an alibi defense. He testified he was asleep in bed with his fiancee and baby son when he heard the shots. The defendant stated he and Carter had many disputes over many things, including the break-in at his apartment, and that he did not associate with Carter, Celester, or Dwayne. The defendant also presented the testimony of his fiancee, who indicated the defendant was in bed when the shooting occurred, and that of his mother, who testified the defendant and Carter had quarreled over the defendant's pay from Carter's cleaning business.
The jury convicted the defendant of premeditated first-degree murder on August 21, 1998. The defendant filed a motion for new trial, arguing that Carter had recanted his trial testimony. The motion also alleged 11 other grounds for a new trial including: (1) the State had violated his constitutional rights by suborning the perjury of Officer Keto Thompson, Spencer, and Carter; (2) the State had failed to provide the defendant with exculpatory evidence including Carter's retraction and Spencer's criminal record; (3) the court erred in severing the trials of the codefendants; (4) the court had erroneously denied the defendant's Batson objection; (5) the court had erred in allowing Carter's hearsay testimony; (6) the prosecutor had committed misconduct in closing argument; (7) the court had not properly instructed the jury as to lesser included offenses; (8) the court had not properly read back testimony to the jury; (9) the court had not properly responded to questions asked by the jury; (10) the defendant was denied effective assistance of counsel; and (11) the verdict was contrary to the evidence and the law.
The district court held a hearing on the motion for a new trial. Carter testified his statement to police was untrue and he did not know anything about the murder of Greg because he was asleep when the shooting occurred. According to Carter, he made up the statements of his nephews because police told him they already knew Celester and Dwayne were involved, and that three persons were seen entering his house following the shooting. Carter thought the police were suspicious that he might be the third person. He also felt pressured by the community and the police. Carter testified that Detective Smith said he would be charged if he did not tell the police what he knew and Smith also informed him as to what guns were used.
Carter testified he later told the police that his statement was untrue but they insisted he testify. He stated that Prosecutor Dan Cahill met with him before the preliminary hearing and instructed him as to what his story should be, as well as what to say to avoid the hearsay rule. When he told Cahill he did not want to testify, Cahill threatened him with prosecution.
The testimony then moved to the defendant's allegation that he had received ineffective assistance of counsel from his trial attorney, Mark Sachse. Sergeant Charles Patrick testified jail records indicated Sachse had made two visits to the defendant between February and September of 1998, one for 15 minutes and another for 25 minutes. Again, the defendant's trial was in August 1998.
Della Betts, the defendant's aunt, stated she had planned to testify on the defendant's behalf at trial but Sachse told her she should not testify because she would be a bad witness due to a bad check issue. Della stated that she would have testified that Carter told her he had no idea about the shooting and that one of the witnesses, Alfred Burdette, was a drunk. Della testified that she discussed this testimony with Sachse.
Ellen Lenard, the defendant's mother, testified that she visited Sachse approximately six times. She told Sachse of possible witnesses including her own mother, Mary Mitchell; her sister, Norma Jean Meeks; and Della Betts. She stated she pressed Sachse to file a motion for discovery but he told her such a motion was not necessary. She also informed Sachse that Burdette was a drunk.
The defendant testified that he met with Sachse one time prior to his preliminary hearing when Sachse urged him to take a plea. Later, Sachse visited him prior to trial and told him that he did not file a motion for discovery because he did not want to make the district attorney mad. The defendant testified that Sachse visited him the week before trial when Sachse told him to make a list of witnesses he wanted to call.
The defendant stated he wanted Sachse to call his grandmother, Mary Mitchell, to testify regarding problems and lack of affiliation with Carter, Dwayne, and Celester. He wanted to call Della Betts, and also Norma Jean Meeks, who would testify that Carter told her he lied to the police. He wanted to call another aunt, Lori Betts, and also Jesse Brochovich, both of whom would have testified that Carter told her Celester and Dwayne were asleep at the time of the shooting. Further, he wanted to call Detective Golubskie, who is married to the victim's aunt, to testify that he, Golubskie, had leaked certain confidential information to the victim's family. Finally, he wanted to call Andrea Burdette, daughter of Alfred Burdette, to testify that her father was an alcoholic and did not witness the shooting. However, according to the defendant, Sachse stated he did not want anyone to testify on the defendant's behalf.
The defendant testified that he sent Sachse letters on several different occasions, but Sachse did not respond or accept his telephone calls. The defendant also claimed he was unable to talk to Sachse during trial and that Sachse did not prepare him to testify. Sachse never revealed the information in the police report to him, nor did Sachse explain what his theory of defense would be. He also asked Sachse to investigate the crime scene but Sachse did not do so.
Sachse testified concerning his representation of the defendant. Sachse stated that he had tried approximately 130 jury trials prior to that of the defendant, with the vast majority of those being criminal, including eight murder cases. Sachse noted that he had actually been appointed twice in this case. The first time he managed to get the case dismissed at preliminary hearing. After charges were refiled, the defendant's family hired an attorney, who withdrew prior to trial. Sachse was reappointed.
Sachse stated he met with the defendant three or four times prior to trial and also met several times with the defendant's mother and family members. He also went to the crime scene and after reviewing the scene, decided it was in the defendant's best interest that the crime scene not be fully explained to the jury. With regard to discovery, he stated he was able to review the prosecutor's entire file. Although the defendant's mother pushed him to file a discovery motion, he explained to her that a discovery motion was not necessary because the State's entire file was available to him and provided more information than would be available under a discovery motion. Sachse admitted he did not file any pretrial motions but stated he believed none were necessary. By the time he entered the case for the second time, the case had already been severed from those of the codefendants.
With regard to his trial strategy regarding the calling of witnesses, Sachse stated he felt the key to the defense was to discredit Carter's testimony. Although the family wanted him to call the defendant's grandmother, Mary Mitchell, he discovered she did not want to testify and that she believed Carter was telling the truth. Sachse stated he did not want to call Della Betts because she had a dispute with Carter resulting in criminal charges being filed against her and also had a conviction which involved her veracity. He testified he did not want to put the defendant's aunt, Patricia Betts, on the stand because there was a note in the file that one of her sons, Celester or Dwayne, had called her and admitted being involved in the murder. When asked about a person named Robert Law, Sachse testified that neither the defendant nor the family told him about Law and, further, that Law would not have been a good witness because he was facing capital murder charges at the time of trial.
Sachse stated he advised the defendant not to testify, although the defendant did so. He also put the defendant's fiancee on the stand at the defendant's insistence, although the defendant had written a letter to her with lyrics from a rap song talking about shooting someone for stealing.
Sachse testified that much of the evidence the defendant's mother wanted him to present would not have been helpful to the case. Because Sachse's theory denied the defendant's involvement and placed the blame on Celester and Dwayne, it was important that Alfred Burdette's testimony be considered credible, as Burdette saw two people, not three, shooting the victim.
Sachse admitted he did not give an opening statement at trial. However, he testified he often does not do so when there is a chance his witnesses will testify differently than he expects.
On cross-examination, Sachse was confronted with the log book which detailed only two visits to the defendant. Sachse stated that he disagreed with the log book, and noted that the keeping of the book by the sheriff's office was done inconsistently. Sachse testified that in his opinion, he communicated sufficiently with the defendant to put on a competent defense. He stated he fully explained his strategy to the defendant.
The trial court ultimately found Carter's recantation was not credible. With regard to the defendant's claim of ineffective assistance of counsel, the trial court held that Sachse's performance was not deficient and that most of the allegations related to trial strategy. The trial court rejected all other arguments of defendant and denied his motion for new trial.
Denial of New Trial--Recanted Testimony of Carter Betts
Carter's testimony not only linked the defendant to the crime but provided the basis for the defendant's conviction. Without his testimony, there would have been no evidentiary basis for the defendant's murder conviction. After trial, Carter recanted his trial testimony; thus, Carter provided the defendant with new evidence which, if believed, would leave the State with very little evidence to connect the defendant to the crime. The trial court, following the hearing of the defendant's motion for a new trial, concluded that Carter's recantation was not credible and provided no basis for a new trial.
K.S.A. 22-3501 provides a court may grant a motion for a new trial based on the ground of newly discovered evidence. Two requirements must be met before a trial court will grant a defendant's motion for new trial based upon newly discovered evidence. First, the defendant must establish that the newly proffered evidence is indeed "new," in that it could not, with reasonable diligence, have been produced at trial. Second, the evidence must be of such materiality that there is a reasonable probability that the newly discovered evidence would produce a different result upon retrial. State v. Moncla, 269 Kan. 61, 64, 4 P.3d 618 (2000). The granting of a new trial is a matter within the discretion of the trial court. State v. Reed, 256 Kan. 547, 560, 886 P.2d 854 (1994).
While the State argues that the recanted testimony of Carter was not newly discovered evidence primarily because the defendant knew Carter's trial testimony was false at the time given, it is clear that until Carter recanted his testimony after trial, the defendant could not have known about the recanted testimony. We conclude that the recanted testimony of Carter was newly discovered and could not, with reasonable diligence, have been produced at trial.
New trials on grounds of newly discovered evidence are not favored and such motions are to be viewed with caution. State v. Thomas, 257 Kan. 228, Syl. ¶ 2, 891 P.2d 417 (1995).
The standard applied by the trial court for granting a new trial based on recanted testimony is well established. Where a new trial is sought on the basis of recanting testimony of a prosecution witness, the weight to be given such testimony is for the trial court passing on the motion for a new trial to determine. The trial court is required to grant a new trial only when he or she is satisfied the recantation of the witness' testimony is true and material. Appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. See State v. Norman, 232 Kan. 102, 109, 652 P.2d 683 (1982).
In this case, after a full hearing upon the defendant's motion for a new trial, the trial court determined that Carter's recantation was not credible. The record supports this determination and at the very least fails to support the conclusion that no reasonable person would agree with the trial court's decision. Shepherd, 232 Kan. at 619. The defendant fails to establish an abuse of discretion and the trial court's denial of the defendant's motion for new trial stands.
Perjured Testimony
The defendant claims the prosecutor presented perjured testimony requiring this court to reverse his murder conviction. A conviction obtained by the introduction of perjured testimony violates a defendant's due process rights if (1) the prosecution knowingly solicited the perjured testimony, or (2) the prosecution failed to correct testimony it knew was perjured. Napue v. Illinois, 360 U.S. 264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959). However, the evidence fails to support a conclusion that perjured testimony was presented at trial. Instead, the trial court concluded with ample evidentiary support that Carter's recantation was not credible and that his trial testimony was credible. Under these circumstances, the defendant fails to establish that the prosecutor presented perjured testimony.
Hearsay Statements
Carter, over objection, was allowed to testify as to Celester's explanation of the crime. The defendant argues that the admission of the statements under the guise of adoptive admissions violated his due process rights and his rights under the Confrontation Clause of the United States Constitution.
The trial court found Celester's statements to Carter were admissible against the defendant as adoptive admissions under K.S.A. 2000 Supp. 60-460(h)(2). This exception applies to statements "of which the party with knowledge of the content thereof has, by words or other conduct, manifested the party's adoption or belief in its truth." K.S.A. 2000 Supp. 60-460(h)(2). Through this exception, an incriminating statement of a third person, which an accused has admitted to be true, is admissible in evidence against the accused as his or her own statement by adoption. State v. Buckner, 223 Kan. 138, 145, 574 P.2d 918 (1977). This exception also allows the admission, under certain circumstances, of statements to the prejudice of the accused, made in his or her presence, and tolerated without resentment, explanation, or denial by the accused. Buckner, 223 Kan. at 145; State v. Ritson, 210 Kan. 760, 763-64, 504 P.2d 605 (1972).
The evidence in this case, according to Carter, established that the defendant heard Celester's explanation of the events surrounding the shooting, agreed with it, and interjected several comments. Thus, if Carter's testimony is credible, the defendant "mani