IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 93,489
STATE OF KANSAS,
Appellee,
v.
DEWEY A. GAITHER,
Appellant.
SYLLABUS BY THE COURT
1. An appellate court reviews a claim of judicial misconduct using an unlimited standard. An appellate court must determine the merits of an allegation of judicial misconduct by considering the particular facts and circumstances surrounding the allegation. Judicial misconduct warrants a new trial if it affirmatively appears that the conduct prejudiced the substantial rights of the complaining party.
2. The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean the proceedings or to undermine the judge's authority in the courtroom.
3. A judge who fails to control his or her temper and frustrations, declines to exercise control over his or her own conduct and utterances, and allows prospective jurors to embroil him or her in conflict commits misconduct.
4. When analyzing an issue of joinder, an appellate court determines which of the three conditions precedent the district court relied on (same or similar character; same act or transaction; or two or more acts or transactions connected together or constituting parts of a common scheme or plan); whether there is substantial competent evidence to support the district court's findings of fact, using a deferential standard; whether the district court properly concluded that a condition precedent had been met, using a de novo standard; and whether the district court abused its discretion in allowing joinder.
5. When a party fails to object to the lack of findings before the district court, an appellate court presumes that the district court made the factual findings necessary to support its decision.
6. The defendant's desire to testify about some but not all of the charges against him or her does not prevent joinder pursuant to K.S.A. 22-3202(1).
7. K.S.A. 60-455 does not prevent joinder pursuant to K.S.A. 22-3202(1).
8. A defendant is entitled to present his or her theory of defense. The exclusion of relevant, admissible, and noncumulative evidence, which is an integral part of the theory of defense, violates the defendant's fundamental right to a fair trial. However, the defendant's right to present a defense is limited by the statutory rules of evidence and the case law interpreting those rules.
9. When considering the admission or exclusion of evidence, a court must first consider whether the evidence is relevant to prove any material fact. Generally, all relevant evidence is admissible unless specifically excluded by statute. Relevant evidence is evidence having any tendency in reason to prove any material fact.
10. Failure to give a limiting instruction for evidence of other crimes or bad acts does not require automatic reversal.
11. When the complaining party fails to request the instruction or object to its omission, the failure to give the instruction is reversible only if 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.
12. Aggravated battery does not qualify as a lesser-included crime of attempted first-degree murder under K.S.A. 2006 Supp. 21-3107(2)(a).
Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge. Opinion filed April 27, 2007. Affirmed.
Sarah Ellen Johnson, of Kansas Appellate Defender Office, of Topeka, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for the appellee.
The opinion of the court was delivered by
ROSEN, J.: Dewey Gaither appeals his convictions and sentences for attempted first-degree premeditated murder; first-degree felony murder; aggravated robbery; aggravated kidnapping; and felony obstruction of official duty. Gaither asserts that his convictions should be reversed and his sentences vacated because of the following errors: (1) the district court denied his right to a fair trial by committing misconduct during jury voir dire; (2) the district court erroneously denied his motion to sever the charges against him into separate trials; (3) the district court erroneously excluded evidence that one of the victims had a warrant for a federal weapons violation; (4) the district court erroneously admitted evidence in violation of K.S.A. 60-455; (5) the district court erroneously instructed the jury regarding the 60-455 evidence; (6) the district court should have instructed the jury to consider aggravated battery as a lesser included offense to attempted first-degree premeditated murder; (7) the district court committed cumulative errors that denied him a fair trial; and (8) his sentence was erroneously based on his criminal history score, which was not proven beyond a reasonable doubt to the jury.
FACTS
The convictions in this case stem from Gaither's violent crusade to acquire illegal drugs. On or about July 16, 2003, Gaither went to Eddie Howard's house to buy drugs. Robert Barnes, a friend of Howard's who sold drugs at Howard's house, told Gaither that he did not have what Gaither wanted and advised Gaither to try again later. Gaither returned to Howard's house the following day while Barnes was gone. Leo Holloman, another one of Howard's friends, was sleeping on Howard's sofa when Gaither arrived. Gaither woke Holloman, pointed a 9 mm pistol at his head, and demanded Holloman's money. Before leaving, Gaither told Holloman to warn Barnes that Gaither would be back to get him. When Barnes returned to Howard's house, Holloman told him that Gaither would be back the next morning at 8.
Early the next morning, Gaither returned to Howard's house with his mother, Lenita DeGrate. DeGrate entered the house and spoke briefly to Holloman and Howard while Gaither remained outside on the porch. As Holloman opened the door to let DeGrate out, Gaither approached the door with a gun. When Holloman refused to let Gaither in, Gaither kicked in the glass storm door and burst into the house. Holloman warned Barnes as he ran out the front door yelling, "There go that nigger again."
Gaither immediately confronted Barnes, pointing a 9 mm pistol at Barnes' head and stating, "I'm going to kill you." Barnes struggled with Gaither, while Gaither's mother repeatedly hit Barnes on the head with a hard object, saying, "Get off my son." Shortly thereafter, Gaither's mother left through the front door. Barnes got away from Gaither and ran out the back door. Barnes then ran around to the sidewalk in front of the house to await the arrival of police. While Barnes was on the front sidewalk, Gaither exited the front door, pointed the pistol at Barnes, cocked it, and fired one shot into Barnes' chest. Gaither then walked across the street, entered the car where his mother was waiting, and drove away.
Police later found an unspent 9 mm cartridge on Howard's front porch. Police also found drops of blood matching DeGrate's DNA on Howard's front steps and sidewalk and on the street in front of Howard's house.
While Barnes was recovering in the hospital, a police officer showed him a photographic lineup. Barnes identified someone other than Gaither as the shooter, stating that he was 70% certain of his identification. Several months later, police presented photographic lineups to Holloman who identified Gaither as the shooter and DeGrate as Gaither's companion in photographic lineups.
Four days after shooting Barnes, Gaither was smoking cocaine with his friends, Shannon Doggett and Raina Islas. When the trio ran out of cocaine, Gaither stated that Bobby Washington owed him money and suggested going to Washington's house to collect the debt so they could purchase more drugs. Doggett drove Gaither to Washington's house. Gaither approached Washington's house alone, while Doggett and Islas waited in the truck.
Washington was home with his friend Stephanie Pounds when Gaither arrived. Gaither entered Washington's house and threatened Washington with a gun, demanding money or drugs. While Gaither was attempting to rob Washington, Kevin Phelps knocked at the back door. Gaither instructed Pounds to open the door. As soon as Phelps entered, Gaither demanded Phelps' money. Phelps initially thought Gaither was joking but quickly realized that he had walked into an armed robbery. Gaither reached into Phelps' pocket and took the $10 bill that Phelps had with him. Gaither was agitated when Washington failed to produce any money or drugs, so Pounds offered to go to the neighbors in search of drugs for Gaither. Gaither agreed to let Pounds go, but threatened to shoot Washington if Pounds did not return.
After Pounds had been gone for several minutes, Gaither told Phelps to go to the back door and look for Pounds. Phelps opened the door, thinking he would be able to run. Gaither, however, grabbed Phelps' shoulder and pointed the gun at Phelps' head. When Phelps and Gaither did not see Pounds, they went back into Washington's house. As soon as Phelps closed the door, Washington threw an oxygen bottle across the room at Gaither. Gaither shot Washington once in the chest, killing him. Phelps ran out the front door, and Gaither followed him.
As soon as Doggett heard the gunshots, she became frightened and started driving away from Washington's house. Doggett saw Gaither run out of Washington's front door towards the neighbor's house, carrying a gun. As Doggett drove by, she yelled at Gaither to get in the truck. Gaither got in, and Doggett drove away. Gaither told Doggett that he had shot the gun in the air to frighten Washington.
Two days later, Doggett heard that Washington had been shot and contacted the police to turn herself in. Doggett informed the police that Gaither had killed Washington with a 9 mm weapon. She also provided a description of Gaither and his vehicle.
The day after Doggett turned herself in, police received a call from the manager of the Holiday Inn reporting some suspicious individuals in the parking lot. Officers responded and found a car in the parking lot occupied by two black males. The driver identified himself as Chesster R. Ridge. The passenger, who was later identified as Gaither, identified himself as Tyrone DeGrate. The officer recognized tattoos on Gaither which matched those of the suspect in the Washington shooting. As the officer started to handcuff him, Gaither fled into the lobby of the Holiday Inn.
Inside the Holiday Inn, Gaither saw a housekeeper cleaning room 109. He pushed her into the room and closed the door. When the housekeeper attempted to use the telephone in the room, Gaither instructed her not to make any calls. While Gaither was getting a drink at the sink, she started to use her cell phone, but Gaither stopped her and took the phone away from her. Gaither returned the phone to the housekeeper, but she did not attempt to make another call. After waiting several minutes, the housekeeper opened the curtains and told Gaither that the police were gone. When Gaither went to the window to look for himself, she ran out of the room and informed police of Gaither's location. Gaither opened the first-floor window and jumped out. Police apprehended Gaither in the Holiday Inn parking lot and transported him to the jail.
Barnes was released from the hospital on the same day that Gaither was arrested. Due to an outstanding warrant, Barnes was arrested and transported to the jail. As Barnes was being fingerprinted at the jail, he saw Gaither and recognized him as the man who had shot him 1 week earlier. Barnes immediately pointed at Gaither and exclaimed, "That's the pussy that shot me."
The State charged Gaither with attempted first-degree premeditated murder for shooting Barnes; felony murder for killing Washington; aggravated robbery for taking money from Phelps at gunpoint; aggravated kidnapping for confining the housekeeper at the Holiday Inn; and felony obstruction of justice for fleeing the police at the Holiday Inn. Gaither filed a motion seeking the severance of his charges; however, the district court denied the motion. Gaither also moved to admit evidence that the Federal Bureau of Alcohol, Tobacco and Firearms (ATF) had a warrant for Barnes' arrest on a weapons violation, and the district court denied that motion.
During voir dire, the district judge became frustrated and angry with two prospective jurors, resulting in her losing her temper and yelling at them. One of the prospective jurors stated that she did not believe police officers could be truthful. After dismissing the woman from jury service, the judge ordered her to appear in court every day to watch the trial. Another prospective juror stated that her religion prevented her from judging Gaither. However, the prospective juror further stated that she believed Gaither must be guilty of something because he was being tried. The judge dismissed the prospective juror for cause, stating, "I feel sorry for the next person that ends up going, because I am going to hit the roof, I think."
Gaither moved for a mistrial. The State agreed that the judge's comments may have had a chilling effect on the jury. Nevertheless, the judge denied Gaither's motion for a mistrial. The following day, the judge apologized to the jury panel, released the prospective juror from the order to attend trial, and offered to excuse anyone who felt intimidated by her behavior. After two prospective jurors accepted the judge's offer, voir dire continued and the attorneys selected a jury. The jury ultimately found Gaither guilty on all counts.
The district court sentenced Gaither to serve life (hard 20) for felony murder; 203 months for attempted first-degree premeditated murder; 61 months for aggravated robbery; 165 months for aggravated kidnapping; and 7 months for felony obstruction of justice. The district court ordered all of the sentences to be served consecutively, resulting in a life sentence plus 436 months. Gaither now appeals his convictions and his sentences directly to this court pursuant to K.S.A. 22-3601(b)(1).
ANALYSIS
Judicial Misconduct
Gaither asserts that the district judge committed misconduct during voir dire when she harshly questioned prospective jurors, lost her temper, and yelled at members of the jury venire. Gaither's complaint stems from the judge's questioning of a prospective juror who indicated that she would not believe anything the police said. The following colloquy is the basis for Gaither's complaint:
"THE COURT: No one's asking the life history and the things that bring you to this place, but that's not what you started out saying, ma'am. What you started saying is, because someone has a uniform on, you will dislike them automatically, and you're going to discount their testimony; is that what you're saying?
"PROSPECTIVE JUROR [L]: When I got my driver's license –
"THE COURT: Answer me yes or no.
"PROSPECTIVE JUROR [L]: Yes. I have to really go and think about that a whole lot. I can't just take their word.
"THE COURT: I'm going to excuse you from your jury service, ma'am, but I'm going to require you to sit through this entire trial, so you can get an objective view of how people – of how people do testify. I think that you have – I think there is perhaps some validity to what you have to say, but I think that you – you need an opportunity to be exposed more to our law enforcement personnel, and I think that because this trial will have so many that will be testifying, I want you to – I'm ordering you to sit through this entire trial. It will be considered part of your jury service, and you will be paid at the rate of a jury member. You'll need to take your card back down.
. . . .
"PROSPECTIVE JUROR [L]: Okay.
"THE COURT: If you fail to appear on any day of the trial, that will be considered contempt of court, because this is a direct order."
After dismissing Prospective Juror L from serving on the jury and ordering her to attend the trial, the judge called Prospective Juror D from the jury pool. Then, the judge stated:
"All right. Anybody else want to mess with me? Just thought I would ask. If anybody doubts how much I value you as jurors and how much – how important I think your service is, I think you get the right idea now. Not one person here is more important than anybody else as far as their time. I really mean it. Thank you."
After this comment, the prosecutor began questioning Prospective Juror D, who stated that her religious beliefs made it uncomfortable for her to judge anyone. Prospective Juror D further advised the court that she believed anyone on trial must be guilty of something. In response to Prospective Juror D's statements, the judge made the following comments:
"I think what you're saying – you're contradicting yourself about what you're saying, and we have had Jehovah's witnesses that do sit on juries. I believe it's your personal feelings that you simply don't want to do it, not because it's a long trial, but I believe you don't want to do it. I've got quite a few people that don't want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.
. . . .
"[Prospective Juror D] made a comment which is completely wrong. Just because Mr. Gaither is here does not mean he must be guilty of something. That is the antithesis, the opposite of what our judicial system is about.
"Mr. Gaither sits before each and every one of you right now, and he is innocent until there has been evidence sufficient to what I will instruct the jury on to prove him guilty, and that's beyond a reasonable doubt. . . . Nobody here has heard one piece of evidence about anything, and despite what [Prospective Juror D] said in her misguided beliefs about not judging people, that was absolutely wrong. He sits here an innocent man until evidence has been presented – until and if evidence has been presented sufficient to prove that he's guilty. Does everyone here understand that? If you do not understand that, raise your hand right now. I am vehemently serious about that."
After Prospective Juror D was dismissed for cause, the voir dire continued and the prosecutor addressed Prospective Juror M, who had raised his hand in response to a question about contact with law enforcement officers. Prospective Juror M stated that he had changed his mind about responding to the prosecutor's question. At that point, Gaither's counsel asked to approach the bench. Following an off-the-record bench conference, the judge made the following comments to the jury:
"THE COURT: No one should be compelled – feel compelled to say anything that's not true, because they're afraid I'm going to yell at them. I haven't refused to let anybody off this jury who had a legitimate reason for being off this jury. I became angry with one juror who is going to come back and sit, because I believed that she had an agenda from the minute she walked in here to begin her jury service, based on things that I have observed about her sitting here.
"I was not happy with Prospective Juror D. I will tell you that, because I was not happy that she sat here and announced to a room full of people that she would not judge people, and yet, she turned around and said she believed Mr. Gaither was guilty of something just because he was sitting here. I didn't think that was right either.
"If you have a legitimate reason for not serving on this jury, if you have qualms about anything, I really – you know, I hope that I have not done anything to make you think I'm going to make the rest of you sit through the entire jury trial just because I don't like your answers. I can understand your concerns, and I'll tell you what: The next two people that have things negative to say, I give them amnesty right here ahead of time, all right? I'm really not that bad. I am really not that bad at all, and I want – and you all took an oath, and you must be honest in your answers. I presume that if you have something that's kind of not good, that I'm not going to like that you have the guts to say it because you're under oath. I've let everybody go except for one person who will be coming back, and I'm quite sure her circumstances were completely unique."
The prosecutor resumed his voir dire without further incident. At the end of the day, the judge recessed voir dire with the following comments:
"Don't talk about this case. Don't think about it. If I have been rude and mean today, I apologize very, very, very much so. I just believe that each one of you is as important as the others, and your time and everything else is as important, and I get a little bit abrupt at times, and I will be good tomorrow, if you all come in and you're nice tomorrow, too, okay?"
After the jury venire left, Gaither's counsel requested a mistrial, stating that the judge's comments had caused a chilling effect on the jury, preventing them from speaking honestly about their feelings and making them fear upsetting the court. The State agreed with Gaither's concern that the judge's comments may have prevented the jury from responding honestly but acknowledged that the jurors appeared to be giving honest responses to his questions. The judge admitted being angry and yelling at two of the prospective jurors and thanked counsel for reining her in. Nevertheless, the judge denied Gaither's request for a mistrial.
The next morning, the judge greeted the jury venire with the following comments:
"Well, I want to talk to you for a few minutes before we get started back on voir dire. I was pretty upset yesterday afternoon with two particular jurors, and it was obvious, and this morning I brought [Prospective Juror L] in, and we had a nice talk this morning, and I understand a little bit more about her position. I probably misunderstood it to some degree. I'm anything but perfect, and I did feel she came in with an agenda, and after talking with her this morning, I'm convinced that she did not have an agenda. And I have decided to let her go, and you all saw that this morning, and that's why I brought her in here.
"I also was not happy with [Prospective Juror D], and I want to make it very clear to all of the jurors here that I do not in any way, shape or fashion presume to judge anyone based on their religion, and my comments had nothing to do with her religion. We have had many Jehovah's witnesses in the over 200 trials that I've had that I have released, quite frankly, without any problem at all. We've had Jehovah's witnesses that have served on juries. That's why I inquired into her beliefs to see where it came from. The reason I released her actually had nothing to do with her religious beliefs, but because of the fact she clearly had a bias sitting here and had prejudged the case or had prejudged Mr. Gaither based on nothing she had heard in this courtroom, and that's one of the things that I try to make very clear to people, is that I try to make very clear to people, is that you only learn – you can only make decisions on the facts and the law. I was probably too cranky yesterday afternoon, I'm not sure why, but I was probably too cranky.
"My guess is that the reason I was a little cranky yesterday is that I'm looking at a room full of about 60 people who don't want to be here any more than anybody else does, and I see you're basically trying very hard to be pleasant about the prospect of spending two weeks in trial here. I also – I believe that other than military service, and we have a number of people who have done military service, jury duty is one of the most pure forms of service in your community that you can do. You know, especially in this time in our country, we're seeing people who don't just miss out on their job for a week or two because of jury duty. They're missing out on their jobs and families so they can serve their country through their military service, and I think about the sacrifices that people make in order to make this a better place for us to live, and I'm just supremely grateful for that, and I know that it might seem silly to some of you that jury service is like that as well, but that is what jury service is. We're making this community better. We're making this a place where we can have people that will come in, listen to facts and decide a case based on the law and the facts.
"I hope that none of you ever need to appear as a party in court, but if you do, I hope that you have the benefit or you realize the great benefit you have that people are willing to come in and perform their service as jurors. So if I have misled any of you into thinking that I am some angry shrew up here, I am not. I really and truly am not, and if any of you believe for one single minute that you are not free to say what is true in answer to the lawyer's questions, please raise your hand right now, and I will let you go. That is a promise to you. If you feel too intimidated to answer the lawyers' questions honestly, raise your hand right now, and you've just got a free pass out of here, and I won't berate you. I won't be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?"
Two venire members accepted the judge's offer to leave without questions. Afterwards, the voir dire continued without further incident until the jury was selected.
Gaither characterizes the judge's comments regarding Prospective Juror L as a "diatribe" against a prospective juror in defense of police officers. Gaither argues that he was prejudiced by the judge's conduct because the judge's comments bolstered the credibility of police officers.
An appellate court reviews a claim of judicial misconduct using an unlimited standard. An appellate court must determine the merits of an allegation of judicial misconduct by considering the particular facts and circumstances surrounding the allegation. Judicial misconduct warrants a new trial if it affirmatively appears that the conduct prejudiced the substantial rights of the complaining party. The party asserting judicial misconduct bears the burden of showing prejudice. State v. Hayden, 281 Kan. 112, 116, 130 P.3d 24 (2006). If the judge's comments can be construed properly and reasonably, rendering them unobjectionable, the remarks will not be regarded as prejudicial. State v. Patton, 280 Kan. 146, 182, 120 P.3d 760 (2005).
The judicial canons require a judge to perform the duties of the judicial office with impartiality. Canon 3 (2006 Kan. Ct. R. Annot. 572). The expectations for judicial conduct stated in Canon 3 have been summarized as follows in State v. Miller, 274 Kan. 113, 128, 49 P.3d 458 (2002):
"The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions. The judge should not permit any person in the courtroom to embroil him or her in conflict and should avoid conduct which tends to demean the proceedings or to undermine the judge's authority in the courtroom."
We recently reversed a defendant's convictions for second-degree murder, attempted second-degree murder, and aggravated battery because the district judge had polluted the defendant's trial with pervasive misconduct. See Hayden, 281 Kan. at 126. The district judge frequently interrupted the examination of witnesses, treated the parties and witnesses rudely and impatiently, failed to remain attentive to the proceedings, and exhibited open hostility toward counsel for both the prosecution and the defense. Noting that the judge's misconduct was not limited to an isolated incident, we commented that the judge had blatantly disregarded the admonition for judges to be sensitive to the grave responsibilities of the courtroom. Hayden, 281 Kan. at 126. In Hayden, the district judge violated the mandate of Miller by disregarding his duty to exercise restraint over his judicial conduct and utterances, refusing to control his temper and emotions, and exhibiting conduct that demeaned the proceedings. See Miller, 274 Kan. at 128.
We also reversed a defendant's convictions for rape and aggravated criminal sodomy based on comments made by the district judge during jury orientation because the comments impugned the defendant's credibility. State v. Plunkett, 257 Kan. 135, 139, 891 P.2d 370 (1995). The district judge implied that he was suspicious of defense attorneys because they always sat at the table farthest from the bench. The judge further demeaned defense counsel by praising the prosecutor's skills without acknowledging defense counsel's skills. In addition, the judge indicated that he knew secret, derogatory information about the defense counsel. Besides the improper comments during voir dire, the district judge interrupted defense counsel's opening statement, questioned a witness in such a manner as to identify and emphasize the State's theory of guilt, interjected an unwarranted comment during the cross-examination of the complaining witnesses, and stated that defense counsel was objecting for personal rather than legal reasons. Further impugning the defendant's credibility, the judge sent the jury to deliberate, stating that the jury would have to carry out its unpleasant burden just like the court would have to carry out its final obligation in the case, implying that the jury would find the defendant guilty. The Plunkett court was especially concerned with the judge's conduct that attacked the defendant's credibility but considered the entire record in determining that the misconduct was reversible. 257 Kan. at 139, 143. The district judge in Plunkett violated the madate of Miller by demonstrating his partiality for the State and failing to suppress his predilections. See Miller, 274 Kan. at 128.
Like the district judges in Hayden and Plunkett, the district judge in this case violated the mandate of Miller. She failed to control her temper and frustrations, declined to exercise