IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 91,518
STATE OF KANSAS,
Appellee,
v.
TREVER J. CORBETT,
Appellant.
SYLLABUS BY THE COURT
1. The transcript from a witness' prior testimony may be admitted as evidence at trial pursuant to K.S.A. 60-460(a) if the witness is testifying at the trial.
2. The critical element in analyzing whether an eyewitness identification should be admitted is the reliability of the identification. If the identification bears some indicia of reliability and there is not a substantial likelihood of irreparable misidentification, the jury must decide whether the evidence is reliable enough to support the defendant's conviction.
3. Juries have the knowledge and experience to determine the reliability of an eyewitness identification. However, the jury should be instructed on the factors to consider in determining the reliability of any eyewitness identification. When such an instruction is coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, the defendant's rights are protected.
4. The scope of cross-examination is subject to reasonable control by the trial court.
5. The opponent of evidence must make a timely and specific objection to the admission of evidence to preserve the issue for appeal.
6. A conviction for the gravest crime may be sustained by circumstantial evidence, which is any evidence that tends to prove a fact in issue by proving other events or circumstances which afford a basis for a reasonable inference by the jury of the occurrence of the fact in issue.
7. The jury is charged with the responsibility of weighing the evidence and determining witness credibility. Appellate courts do not reweigh the evidence or decide which witnesses are credible.
8. A prosecutor's misstatement of fact in closing argument does not warrant reversal if the comment was brief in the context of the entire record and the misstated fact is not a significant part of the State's theory of the case.
9. Under the facts of this case, the prosecutor's use of a demonstrative silence during closing argument was not improper.
10. Simply pressing a point without any supporting authority is akin to failing to brief an issue. When an appellant fails to brief an issue, the issue is deemed waived or abandoned.
11. Neither K.S.A. 60-456 nor K.S.A. 60-458 requires any specific form of questioning for an expert's opinion.
Appeal from Reno district court; RICHARD J. ROME, judge. Opinion filed March 24, 2006. Affirmed.
Michael S. Holland, of Holland and Holland, of Russell, argued the cause and Michael S. Holland II, of the same firm, was with him on the brief for appellant.
Keith E. Schroeder, district attorney, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: Trever Corbett appeals his conviction for the first degree premeditated murder of his ex-wife Crystal Casey, claiming that: (1) the trial court erroneously admitted transcripts of two witnesses' depositions; (2) the trial court erroneously admitted testimony from two eyewitnesses; (3) the trial court violated his right to confrontation by limiting his cross examination of an eyewitness; (4) the trial court improperly admitted hearsay from the decedent; (5) the evidence was insufficient to support his conviction; (6) the prosecutor committed misconduct during closing argument; and (7) the trial court erroneously admitted evidence.
Crystal Casey married Trever Corbett in August 1995. Their daughter, Emily, was born in January 1996. Crystal and Corbett divorced in December 1996. In their divorce decree, the court ordered joint legal custody of Emily and designated Crystal as the primary residential parent. Although Crystal and Corbett argued over the custody of Emily, the two eventually became friends. In fact, Corbett was one of the pallbearers at Crystal's funeral.
Crystal met her second husband, Shane Casey, in February 1997. She married Shane in September 1997. Crystal and Shane's first child, a daughter named Abbey, was born in April 1998. Their son, Kaleb, was born in December 1999. Crystal and Shane were divorced in April 2000.
Shortly before her death in June 2000, Crystal had decided to move with her children to Wichita to attend beauty school. Crystal planned to live with her sister, Melissa, and Melissa had given Crystal a key to Melissa's home. Corbett was very upset about Emily moving to Wichita. Crystal told her mom that Corbett acted like she was moving "clear across the country" rather than 35 minutes away. Corbett told Crystal that he wanted Emily to live with him instead. However, Crystal refused and insisted on moving with Emily to Wichita.
At approximately 11 p.m. on June 25, 2000, Crystal's best friend and part-time roommate, Bridgette Darling, left Crystal's apartment with her boyfriend. When Bridgette returned the next morning at approximately 8 a.m., she discovered Crystal's body lying at the bottom of the entry stairs in Crystal's apartment. Stiff from rigor mortis, Crystal's body was partially blocking the front door, and Bridgette had to push Crystal's body aside to enter the apartment.
Bridgette found the door to Crystal's apartment unlocked, which was very unusual. There were no signs of forced entry and no signs of violence in Crystal's apartment. Nothing appeared to have been stolen, and Crystal had not been sexually molested. Two of Crystal's three children Abbey, age 2, and Kaleb, age 7 months, were in the apartment. Neither of the children had been harmed. Crystal's 4-year-old daughter, Emily, was not home with Crystal that night. Emily had been with her father, Trever Corbett, for several days.
Bridgette immediately called Crystal's mother, who advised her to call 911. A few minutes later, police and an emergency paramedic arrived. The police had to move Crystal's body slightly to gain entry to the apartment. The paramedic, who put on gloves after receiving the emergency call, drove to the apartment and immediately checked Crystal's pulse by touching her neck and then touched Crystal's arm to note the rigor in her body.
An autopsy revealed that Crystal died from manual strangulation. She had multiple bruises all over her body and scratches on her face, indicating that she had been involved in a violent struggle. Because of the struggle, Crystal's attacker had to reposition his hands around her neck to compensate. The deputy coroner swabbed Crystal's skin and clipped Crystal's fingernails to test for the presence of her attacker's DNA.
Crystal's relationship with her second ex-husband, Shane, was very tumultuous. Crystal and Shane argued 2 days before Crystal's death. Because of the nature of Crystal's relationship with Shane, Crystal's mother and the police initially suspected that Shane had killed her.
Jenny Williams lived in the same apartment complex as Crystal. Williams had grown up in the same town as Crystal and had gone to high school with Corbett. Williams' daughter also attended the same preschool as Emily. At 1:30 to 1:45 a.m. on June 26, 2000, Williams and her boyfriend, Bryan Miller, were walking around the apartment complex. Williams and Miller observed a partially dressed man walking from the doorway to Crystal's apartment. The man was carrying a pile of clothes. Williams thought she recognized the man as Corbett, so she said hello. The man did not respond and pulled the pile of clothes closer to his face.
When Williams and Miller heard about Crystal's death the next morning, they both decided to contact the police to report seeing a man outside Crystal's apartment. Williams and Miller approached the police while they were at Crystal's apartment. Williams initially told Detective Rayburn that she thought she had seen Corbett outside Crystal's apartment but was not certain of his identity because he did not respond when she spoke to him. Williams also told two of her friends and her mother that she had seen Corbett outside Crystal's apartment. Erin Bailey, one of Williams' friends, worked with Crystal. Erin Bailey told Williams that Williams must have been mistaken about seeing Corbett because Corbett was Crystal's "nice" ex-husband. According to Erin Bailey, Williams must have seen Shane because he was the ex-husband who always fought with Crystal.
A few hours after Williams reported what she had seen, Detective Rayburn showed Williams a photographic lineup to see if she could identify the man outside Crystal's apartment. The photographic lineup included Shane's picture but did not include Corbett's picture. Williams did not know Shane, but she selected his picture from the photographic lineup. Miller did not know Corbett and did not identify the man outside Crystal's apartment by name. However, Miller provided police with a detailed description of the man he had seen and stated that he would probably recognize the man if he saw him again. After showing the photographic lineup to Williams, Detective Rayburn approached Miller with the same lineup. Miller did not initially select a picture from the lineup. Detective Rayburn accused Miller of smoking marijuana and ordered Miller to come to the police station another day to make an identification. Before Miller went to the police station, he spoke with Williams, and Williams told him which picture she had chosen. When Miller met with Detective Rayburn, he chose the same picture as Williams, later stating he felt pressured to choose one of the pictures in the lineup.
A couple of months later, Williams and Miller appeared for separate depositions with the district attorney. Williams reaffirmed her identification of Shane's picture. Miller, however, recanted his identification, stating that he could not identify Shane's picture under oath because Shane was not the person Miller had seen outside Crystal's apartment.
Sometime after the depositions, Williams also had second thoughts about her identification of Shane. She expressed her concerns to a police officer that moonlighted as a security guard at her place of employment. In January 2001, police approached Williams and Miller with a second photographic lineup, which included both Corbett's and Shane's pictures. Williams selected Corbett's picture from the second lineup, stating that she had initially selected Shane's picture because of what Erin Bailey said about Shane and because the man did not respond to her greeting and she assumed that Corbett would. Without coaching from Williams, Miller selected Corbett's picture from the second lineup, stating that he was 70-75% certain of his identification.
In January 2001, the police received the results of the DNA testing for the swabs from Crystal's skin and her fingernail clippings. The DNA swabs from Crystal's right upper arm revealed a DNA profile consistent with Corbett. Because the genetic material only provided a partial profile, DNA experts calculated that 1 in 25 people in the Caucasian race would have the same DNA profile as that found on Crystal's right upper arm.
Corbett was excluded as a contributor to the DNA present on Crystal's neck and left elbow. Testing indicated that the DNA on Crystal's neck and left elbow were contributed by an unknown male. Shane was excluded as a contributor for the DNA on Crystal's neck, left elbow, and right upper arm.
DNA testing of Crystal's fingernail clippings also revealed a minor DNA contribution from a person other than Crystal. The minor DNA profile was consistent with Corbett's DNA profile and inconsistent with Shane's DNA profile, excluding Shane as a possible contributor. The probability of finding another Caucasian with the same minor DNA profile as that found in Crystal's fingernail clippings was 1 in 2000. Notably, all of Crystal's family members including the 7-month-old son were excluded as contributors of DNA.
The State sent part of the sample taken from Crystal's fingernails to Reliagene Labs (Reliagene) for more DNA testing. Reliagene used a procedure that ignored female DNA and focused on the male DNA markers. Reliagene tested six markers in the DNA profile and determined that neither Corbett nor Shane could be excluded as contributors to the DNA in Crystal's fingernail clippings.
In addition to DNA evidence linking Corbett to Crystal's death, police discovered Corbett's thumbprint on the peephole in Crystal's front door. By January 2001, police had eliminated Shane as a suspect because his alibi appeared valid and the DNA evidence excluded him as a contributor.
In May 2001, the State filed a complaint charging Corbett with first-degree premeditated murder and issued a warrant for his arrest. Corbett's preliminary hearing was heard in August 2001. Williams testified that she recognized Corbett coming out of Crystal's apartment because she knew him from high school. Williams further testified that she had previously misidentified Shane because his picture was the only recent-looking picture; she did not want it to be Corbett; her friend Erin Bailey convinced her that it must have been Shane because Shane was the bad ex-husband; and she wanted to help the police. Miller also testified and identified Corbett as the person he saw outside Crystal's apartment the night she was murdered. Miller testified that he initially selected Shane's picture from the first photographic lineup because that was the picture Williams had selected and he felt pressured to choose one of the pictures.
Following the preliminary hearing, the district court found Williams' and Miller's identifications unreliable and concluded that the State had failed to establish probable cause that Corbett murdered Crystal. The district court dismissed the case against Corbett.
The State appealed the dismissal of Corbett's complaint to the Kansas Court of Appeals. In January 2003, the Court of Appeals reversed the district court's dismissal, finding identity testimony, DNA, and fingerprint evidence more than adequate to establish probable cause and remanded the matter for further proceedings. State v. Corbett, 31 Kan. App. 2d 68, 76, 59 P.3d 1054 (2003).
After Corbett was initially arrested, he called Crystal's friend Bridgette from jail and told her that he had taken a chest of Crystal's things to his brother's house in Great Bend to prevent police from finding it. In October 2002, while the State's appeal was pending, Detective Rayburn executed a search warrant at Corbett's brother's home in Great Bend. Detective Rayburn found a chest with Crystal's jewelry box, some of Crystal's jewelry, and a key to Crystal's sister's trailer-home in Wichita. Crystal's mother advised Detective Rayburn that those items were in Crystal's possession before her death and there was no way that Crystal would have given them to him.
In January 2003, the KBI extracted a second sample from Crystal's fingernail clippings and ran another DNA analysis. In the second sample, the KBI found three additional genetic markers in the minor DNA profile. The minor DNA profile from the second sample was consistent with Corbett's DNA profile. Because the second sample provided additional DNA markers for evaluation, the probability of finding another Caucasian with the same DNA profile was reduced to 1 in 52,000.
The KBI sent part of the second sample from Crystal's fingernails to Reliagene for retesting because Reliagene had developed new testing for five additional markers. Based on its testing of the additional five genetic markers, Reliagene concluded that the minor DNA profile found in Crystal's fingernail clippings was consistent with Corbett's DNA profile and inconsistent with Shane's DNA profile.
At Corbett's trial, the State admitted the DNA and fingerprint evidence to establish Corbett's presence at the scene of Crystal's murder. The State also presented testimony that Crystal's jewelry, jewelry box, and her sister's house key were in Corbett's possession even though Crystal would not have given him those items prior to her death. Both Williams and Miller testified about observing Corbett outside Crystal's apartment. Crystal's uncle testified that Corbett acted very nervously and admitted killing Crystal when questioned about it prior to Crystal's funeral. Corbett's cellmate testified that Corbett said he had a fight with Crystal and she fell down the stairs.
After less than 12 hours of deliberation, a jury convicted Corbett of first-degree premeditated murder. The district court sentenced Corbett to life in prison. Corbett appeals his conviction. His appeal is before this court pursuant to K.S.A. 22-3601(b)(1).
Admission of Deposition Transcripts
Corbett claims that the trial court improperly admitted the transcripts from Williams' and Miller's depositions. He raises three arguments to support his claim. First, Corbett argues that he did not have the opportunity to cross-examine Williams and Miller at their depositions. Second, Corbett argues that the depositions were not taken in compliance with K.S.A. 60-230(e) (deponent's signature), K.S.A. 60-232(a) (use of deposition only against a party present or represented at the deposition), K.S.A. 60-460(c)(2)(B) (hearsay exception for depositions), or K.S.A. 22-3211 (deposition of a witness who is unable or prevented from attending trial). Third, Corbett argues that the depositions were not admissible to impeach Williams and Miller.
When examining a challenge to the admission of evidence, an appellate court first considers whether the evidence is relevant. Relevant evidence is any "evidence having any tendency in reason to prove any material fact." K.S.A. 60-401(b). All relevant evidence is admissible except as otherwise provided by statute. K.S.A. 60-407(f). "Once relevance is established, evidentiary rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge's discretion, depending on the contours of the rule in question." State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004).
The depositions at issue here are relevant because they provide detailed descriptions of the man that Williams and Miller observed outside Crystal's apartment the night Crystal was murdered. Williams' deposition is also relevant because it contradicts her trial testimony. Miller's deposition is relevant because it contradicts his initial identification of Shane in the first photographic lineup.
K.S.A. 60-460(a) provides:
"Evidence 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, is hearsay evidence and inadmissible except:
"(a) Previous statements of persons present. A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness."
Admitting prior testimony from witnesses who are testifying at the defendant's trial is within the purview of K.S.A. 60-460(a). In Carter, an eyewitness identified the defendant at the preliminary hearing and the defendant's first trial but stated that he could not identify the defendant at the second trial and did not remember doing so in the prior proceedings. The trial court permitted the prosecutor to read portions of the eyewitness' previous testimony and question the witness about the passages. The Carter court upheld the admission of the eyewitness' prior testimony pursuant to K.S.A. 60-460(a). 278 Kan. at 79.
Similarly, in State v. Osby, 246 Kan. 621, 793 P.2d 243 (1990), two eyewitnesses testified for the State. The same eyewitnesses had testified in other criminal trials about the same events at issue in Osby's trial. The trial court allowed the State to admit portions of the transcripts from the eyewitnesses' testimony in the previous criminal trials where Osby was not a party. The Osby court upheld the admission of the transcripts pursuant to K.S.A. 60-460(a) because both witnesses testified at Osby's trial and were available for cross-examination. 246 Kan. at 631-33.
Like the eyewitnesses in Carter and Osby, both Williams and Miller testified at Corbett's trial and were available for cross-examination. In fact, Corbett's defense counsel extensively cross examined both witnesses, incorporating significant portions of their deposition testimony in his questions. Thus, K.S.A. 60-460(a) applies in this case regardless of whether Corbett had the opportunity to cross-examine Williams and Miller at the depositions or whether the depositions were used to impeach their testimony. Likewise, K.S.A. 60-460(a) applies independently under these facts without relying on the State's compliance with K.S.A. 60-230(e), K.S.A. 60-232(a), K.S.A. 60-460(c)(2)(B), or K.S.A. 22-3211.
To be circumspect in our analysis, we note that, even though the transcripts at issue in this case are testimonial in nature, their admission is not precluded by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). In Crawford, the State sought to introduce the transcript from the police interrogation of the defendant's wife, who did not testify at trial because of the marital privilege. Observing, that testimonial evidence "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations," the Crawford Court concluded that the defendant must have had a prior opportunity to cross-examine the declarant if the State seeks to admit a testimonial statement from the declarant when the declarant is unavailable to testify at trial. 541 U.S. at 68. Because the defendant did not have the opportunity to cross-examine his wife during her police interrogation, the Crawford Court held that the admission of the interrogation transcript violated the defendant's Sixth Amendment right to confrontation. 541 U.S. at 68.
Crawford does not apply in this case because both Williams and Miller were available for cross-examination and testified at trial. The language in K.S.A. 60-460(a), which limits the application of the statute to "a person who is present at the hearing and available for cross- examination," specifically protects the defendant's right to confrontation by requiring the person to be available for cross-examination at trial. Thus, the application of K.S.A. 60-460(a) negates the application of Crawford.
Although we find the trial court's admission of the entire transcripts to be unnecessary and cumulative, we conclude that, under these facts, the trial court properly admitted Williams' and Miller's deposition transcripts pursuant to K.S.A. 60-460(a).
Eyewitness Testimony
In addition to complaining about the admission of Williams' and Miller's deposition transcripts, Corbett claims that Williams and Miller should not have been allowed to testify regarding their eyewitness identifications. Corbett argues that their identifications were unreliable. Corbett points to the conclusions of the preliminary hearing judge who stated that "the testimony of [Jenny] Williams is of highly questionable reliability and credibility." Refusing to bind Corbett over for trial, the preliminary hearing judge concluded that neither Williams' nor Miller's identifications were reliable.
An appellate court's review of an eyewitness identification is a due process determination involving a mixed question of law and fact. This court applies a substantial competent evidence standard when reviewing the factual underpinnings of a trial court's decision to admit or suppress an eyewitness identification and applies a de novo standard to the ultimate legal decision drawn from those facts. State v. Trammell, 278 Kan. 265, 270, 92 P.3d 1101 (2004).
Courts apply a two-step procedure for analyzing whether an eyewitness identification should be excluded. First, the court determines whether the procedure used for making the identification was impermissibly suggestive. If so, the second step requires an analysis of whether the impermissibly suggestive procedure led to a substantial likelihood of misidentification. The court must consider the totality of the circumstances surrounding the identification, applying the factors set out in State v. Hunt, 275 Kan. 811, 817-18, 69 P.3d 571 (2003); and confirmed by Trammell, 278 Kan. 270-71:
1. The witness' opportunity to view the criminal at the time of the crime;
2. The witness' degree of attention;
3. The accuracy of the witness' prior description;
4. The level of certainty demonstrated by the witness at the confrontation;
5. The length of time between the crime and the confrontation;
6. The witness' capacity to observe the event, including his or her mental and physical acuity;
7. The spontaneity and consistency of the witness' identification and the susceptibility to suggestion; and
8. The nature of the event being observed and the likelihood that the witness would perceive, remember, and relate it correctly.
The critical element of the analysis is the reliability of the identification. Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). If the identification bears some indicia of reliability and there is not a substantial likelihood of irreparable misidentification, the jury must decide whether the evidence is reliable enough to support the defendant's conviction. 432 U.S. at 116. The Brathwaite Court stated:
"We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." 432 U.S. at 116.
Identification procedures are impermissibly suggestive if the officers conducting the proceeding give the witness information that highlights one of the individuals before the selection is made or make suggestions about who the witness should select. "A photographic lineup is impermissibly suggestive if the photographs do not depict individuals who generally fit within the witness' description or if there is a gross disparity between the defendant's photograph and the remaining photographs." Trammell, 278 Kan. at 273.
Notably, Corbett does not attack either the first or second photographic arrays shown to Williams and Miller or the procedure for showing them those arrays. Generally, if the procedure used for making the identification is not impermissibly suggestive, the analysis regarding the admissibility of the eyewitness testimony is complete. See Trammell, 278 Kan. at 270-71 (making the second step of the analysis dependent on finding that the procedure was unduly suggestive). However, because both Williams and Miller identified Shane in the first photographic lineup and because the preliminary hearing judge found their testimony to be unreliable, we must consider the Hunt factors to determine whether Williams' and Miller's identifications were admissible as a matter of law.
In our analysis of this issue we note our previous holdings which conclude that juries have the knowledge and experience to determine the reliability of an eyewitness identification. See State v. Gaines, 260 Kan. 752, 763, 926 P.2d 641 (1996); State v. Wheaton, 240 Kan. 345, 353, 729 P.2d 1183 (1986); State v. Warren, 230 Kan. 385, 395, 635 P.2d 1236 (1981). However, the jury should be instructed on the factors to consider in determining the reliability of an eyewitnesses identification. Warren, 230 Kan. at 395. When such an instruction is coupled with "vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process," the defendant's rights are protected. Warren, 230 Kan. at 395.
After thoroughly reviewing the extensive record before us in this case, we find that Williams' and Miller's identifications are supported by substantial competent evidence and both bear an indicia of reliability. Both eyewitnesses were vigorously challenged on cross- examination, and the trial court instructed the jury regarding the factors it should use in considering Williams' and Miller's identifications. We believe the jury had the knowledge and experience necessary to evaluate and weigh the eyewitness identifications and determine their reliability. We conclude that the trial court did not err when it permitted Williams and Miller to testify regarding their eyewitness identifications.
Eyewitness Cross-Examination
Next, Corbett claims that the trial court improperly limited his cross-examination of eyewitness Bryan Miller. Corbett's defense counsel attempted to question Miller regarding Miller's drug usage, and the following colloquy occurred:
"Q. Now, you then called–well, incidentally, have you ever been involved with drugs or marijuana?
"A. Yes, sir.
"Q. Have you had a conversation with [the assistant district attorney] about your involvement in drugs of marijuana?
"A. No, sir, not that I recall, no.
"Q. You never talked to [the assistant district attorney]?
"A. No, sir. He all–only thing–same questions you're asking me about the incident with Officer Rayburn. [Note this incident does not involve any drug charges against Miller. Rather it involves the first time Detective Rayburn showed Miller a photographic lineup containing Shane Casey's picture. Detective Rayburn accused Miller of being high and told him to come to the police station another day to make an identification.]
"Q. Well, are you presently charged in the District Court of Reno County, Kansas with drug charges?"
Before Miller could respond, the State objection. In response to the State's objection, Corbett's defense counsel stated: "Well, Your Honor, it certainly goes to his credibility . . . . In fact, he is charged with drug offenses in the District Court of Reno County, Kansas."
The trial court sustained the objection, struck Corbett's defense counsel's remark, and instructed the jury to disregard it. Corbett's defense counsel proffered that he was attempting to elicit evidence that the assistant district attorney had made a deal with Miller regarding his testimony in this case and the favorable effect it would have on pending criminal charges against him. Corbett claims that he was denied a fair trial because he was not permitted to es