MODIFIED OPINION
IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 98,373
STATE OF KANSAS,
Appellee,
v.
MICHAEL D. HOUSTON, SR.,
Appellant.
SYLLABUS BY THE COURT
1. Under the state and federal Constitutions, a defendant is entitled to present the theory of his or her defense, and the exclusion of evidence that is an integral part of that theory violates a defendant's fundamental right to a fair trial. However, the right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.
2. When self-defense is raised to criminal charges arising out of a death caused by the defendant, evidence of the victim's prior specific bad acts of violence and threats may be admitted to prove the defendant's state of mind at the time of the crime, i.e., the defendant's honest and sincere belief that it was necessary to kill in self-defense, and to show that the belief was reasonable.
3. Evidence is relevant if it has any tendency in reason to prove any material fact. To establish relevance, there must be some logical connection between the asserted facts and the inference or result they are intended to establish.
4. An appellate court reviews trial court determinations of the probativity prong of relevance for an abuse of discretion.
5. Determining whether evidence is too remote to be admissible rests within the sound discretion of the trial court.
6. Consistent with K.S.A. 60-261, errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. Among other things, an appellate court specifically considers whether the error is of such a nature as to affect the outcome of the trial.
7. Before a federal constitutional error can be held harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; stated another way, that the error had little, if any, likelihood of having changed the result of the trial.
8. Allegations of prosecutorial misconduct require a two-step analysis. First the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.
9. In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman. v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial), have been met.
10. When the trial court denies a motion in limine to suppress evidence, the moving party must object to the admission of the evidence at the time it is offered during trial to preserve the issue for appeal.
11. A trial court must instruct the jury on a lesser included offense where there is some evidence which would reasonably justify a conviction of the lesser offense. Conversely, an instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.
12. In determining whether the defendant is entitled to instructions on his or her lesser included offense claim, the evidence must be viewed in the light most favorable to the defendant.
13. Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47) was not intended to be, nor should it be, used as yet another briefing opportunity. The appellate courts will not consider those parts of a Rule 6.09 letter that fail to comply with the rule.
14. In the absence of any trial error, none can accumulate; the presence of one trial error is insufficient to accumulate. When more than one error has occurred, cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial.
Review of the judgment of the Court of Appeals in an unpublished opinion filed September 5, 2008. Appeal from Wyandotte district court, THOMAS L. BOEDING, judge. Judgment of the Court of Appeals affirming the district court and dismissing the sentencing issue for lack of jurisdiction is affirmed. Judgment of the district court is affirmed . Original opinion filed July 17, 2009. Modified opinion filed August 19, 2009.
Carl Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
Edmond D. Brancart, deputy assistant district attorney, argued the cause, and Cathy A. Eaton, assistant district attorney, Steve Six, attorney general, and Jerome A. Gorman, district attorney, were with him on the briefs for appellee.
The opinion of the court was delivered by
NUSS, J.: Michael D. Houston, Sr., was convicted of intentional second-degree murder for shooting Joshua Johnson and received a sentence of 165 months' imprisonment. He appealed, and the Court of Appeals affirmed. State v. Houston, No. 98,373, unpublished opinion filed September 5, 2008. We granted Houston's petition for review under K.S.A. 60-2101(b).
Houston's issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court prevent Houston from fully presenting his theory of defense by refusing to admit certain evidence about Johnson's prior acts of violence against Houston's family? No.
2. Did the prosecutor commit reversible misconduct in eliciting testimony from Houston about his stay at Larned State Hospital? No.
3. Did the trial court commit reversible error in admitting testimony about Johnson's statement that Houston had a gun hours before the shooting occurred? No.
4. Did the trial court commit reversible error in refusing Houston's request to instruct the jury on the lesser included offense of involuntary manslaughter? No.
5. Did cumulative error deny Houston a fair trial? No.
6. Did the trial court violate Houston's Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when sentencing him to the aggravated sentence in the grid box without requiring that the aggravating factors be charged in the complaint, put before a jury, and proved beyond a reasonable doubt? No.
Accordingly, we affirm.
FACTS
The defendant, Michael D. Houston, Sr., lived on Delavan Avenue in Kansas City, Kansas, with his wife and children. Around 2000, Houston became friends with Joshua Johnson. Johnson did not live in the neighborhood, but his grandparents lived next door to Houston, and Johnson's mother lived across the street.
The friendship soured in 2001 when Johnson learned that Houston had a sexual relationship with Johnson's girlfriend, Natasha Tavai. One of Houston's sons also allegedly had sex with Tavai.
Johnson and Tavai continued to date, but the Houston and Johnson families became embroiled in an ongoing feud that involved threats and acts of violence by both sides. This feud lasted for more than a year and a half. During this time, Tavai gave birth to Johnson's son, and the three continued to visit his family members in Houston's neighborhood.
Both families filed complaints against the other, with some resulting in municipal court cases. Sherri Houston, Houston's wife, testified that there was always something going on between the two families, and that she kept a journal documenting the incidents. According to Sherri, on one occasion Johnson drove by and directed racial slurs at her family; her son ended up hurt the next day. She could not recall exactly when this incident occurred. Sherri also testified that she tried to get help from the police department, the Federal Bureau of Investigation, the United States Department of Justice, and the community police officer.
On March 24, 2003, the day of Johnson's death, Houston was driving three of his children home when a bottle flew across his windshield. He quickly turned and saw Johnson and Tavai going by in a minivan. There were no other cars nearby. Houston followed them to Leonard's auto body shop. When he arrived, he got out of his car, approached Johnson, and the two men got into a heated argument on the lot.
Houston claimed to have seen Johnson reaching into Tavai's minivan for a baseball bat during one point in the argument. After several bystanders gathered, the argument ended, and Houston drove away. Johnson remained at Leonard's for about 2 hours waiting on his car to be repaired.
Linda Parker, Johnson's grandmother, testified that she and her husband, Donald, drove past Leonard's during the altercation. Linda and Donald both testified that there was a lot of yelling and cussing. According to Linda, Houston told Johnson, "[C]ome on, big boy, come on."
Houston's versions are mixed on exactly what he did after leaving Leonard's. According to his statement to the police the next day, he drove to a liquor store and purchased a 6-pack of beer. He then drove to his house, where the children got out. Houston told the police he went into the house and got his loaded shotgun out of his closet, got back into the car with the gun, and then called his son, Mike, Jr., to tell him about the argument. He then drove to Conoco to get more cigarettes.
At the later trial, however, Houston testified that he went to the liquor store and bought some liquor and a 6-pack of beer. According to his testimony, he went to his house where the children got out and he called 911; he was advised that police would not be dispatched. Houston then got his shotgun out of the closet, returned to his car, smoked the last of his cigarettes, and went to Conoco for more cigarettes.
Jeff Betts, who witnessed the earlier altercation from his auto shop next door to Leonard's, testified that Houston called him afterward. According to Betts, Houston told him about an ongoing feud with Johnson. Betts also testified that Houston told him that someone had hit one of his sons with a crowbar or pipe, and indicated–but did not say–it was Johnson.
Johnson's mother, Lora Walker, testified that Johnson called her from Leonard's about an hour before the shooting and told her to be careful because he thought Houston had a gun. Ashley Walker, Johnson's sister, testified that Johnson called her a little later and said that he was planning to come back to their house for a family dinner.
Ashley testified that sometime after the call she heard horns honking so she went to the front door. According to Ashley, her mother was already headed out the front door, and yelled for her son D.J. to bring the phone to her. When Ashley went outside, she saw Tavai's van parked behind Johnson's car in front of the house. She also saw Houston's car parked across the street. Ashley testified that she heard her mother screaming and saw Houston fire a "long gun" at Johnson. She believed that Houston was 6 or 7 feet away from Johnson's car when he pulled the trigger.
D.J. testified he heard horns honking in front of the house and followed his mother to see what was going on. When D.J. got to the porch, he saw Houston pointing a shotgun at Johnson. A few seconds later, he saw the blast of the gun and immediately ran to Johnson's car. He saw Houston get in his car and back down Delavan Street.
Houston testified that Johnson swung his car door open, forcing Houston to swerve his own car. Houston then stopped his car in the middle of the street. He testified that he got out and approached Johnson's car. According to him, by then Johnson was almost completely out of his car. Houston testified that he shot Johnson because Johnson was reaching behind him for a weapon.
"[PROSECUTOR]: . . . What was he [Johnson] doing with his right hand?
"[HOUSTON]: Reaching just like I'm coming out now (indicating).
"[PROSECUTOR]: Okay. Could you tell what he was reaching for?
"[HOUSTON]: No, sir, I could not.
"[PROSECUTOR]: What did you think he was reaching for?
"[HOUSTON]: I didn't know.
"[PROSECUTOR]: Did you have some idea, though?
"[HOUSTON]: I knew it had to be a weapon of some type, but what type of weapon, no."
Police found no weapons in Johnson's car. However, after Houston told them that they would find a bat in Tavai's van, they recovered one there.
Houston turned himself in to the police the morning after the shooting. As mentioned, his statement to the police contained some differences from his trial testimony, e.g., he did not claim that Johnson was almost completely out of his car. Rather, Houston only told them that Johnson was in his car trying to open the door when Houston fired. Indeed, because Johnson was 6' 2" and weighed over 400 pounds, his family members testified that he would have had a difficult time getting out of the car quickly. Also unlike Houston's trial testimony, he did not tell the police that he thought Johnson was reaching for a weapon.
Officer Dustin Sillings, who picked up Houston when he turned himself in, testified that Houston told him, "I said I'm tired of this shit, I got out of the car with my gun and I walked around and pulled the trigger." When the police asked Houston whether he saw Johnson with a weapon, he responded, "Not as far as, not like drawn on me or nothing like that, as far as I know." The officer then asked, "You didn't see any weapon?" Houston responded, "No."
Houston was charged with first-degree premeditated murder. A jury convicted him of the lesser included offense of second-degree intentional murder. The Court of Appeals reversed and remanded for a new trial in State v. Houston, No. 93,771, unpublished opinion filed March 31, 2006.
Upon remand, the State amended the complaint and charged Houston only with second-degree intentional murder. At the retrial, he contended that he shot Johnson in self-defense. After being instructed on second-degree intentional murder, voluntary manslaughter, and self-defense, the jury again convicted Houston of second-degree intentional murder.
Houston appealed and the Court of Appeals affirmed on all issues. More facts will be provided as necessary to the analysis.
ANALYSIS
As a threshold matter, we observe that the parties devoted their entire oral arguments before this court to discussing issue 4: whether Houston was entitled to a jury instruction on involuntary manslaughter. Consequently, their positions on the remaining five issues derive entirely from their appellate briefs and the petition for review.
Issue 1: The trial court did not prevent Houston from presenting his theory of defense.
Houston first argues that the trial court violated his right to present his theory of defense by excluding evidence of Johnson's prior acts of violence. Specifically, he claims that the trial court erroneously excluded evidence that on prior occasions Johnson: (1) hit Houston's son, Frank, with a crowbar; (2) hit Frank with a rock; (3) hit Houston's son, Michael, Jr., in the head with a brick; and (4) spun his tires at Houston's family and made racial slurs. Per Houston's petition for review, he claims this evidence was necessary to his theory of defense because it was relevant to establish his state of mind at the time of the shooting.
The State responds that the record is replete with numerous other acts of violence by Johnson, and Houston's thorough exploration of this behavior allowed him to present his self-defense theory.
Houston additionally argues that the Court of Appeals erroneously applied an abuse of discretion standard of review. He contends that whether evidence is relevant is a legal question that appellate courts review de novo.
We begin our analysis by noting that during a hearing on pretrial motions, extensive discussion occurred regarding Houston's written proffer containing 20 items. The hearing transcript reveals that the trial court recognized that evidence of Johnson's violent nature or acts toward Houston was relevant to Houston's self-defense theory. See State v. Walters, 284 Kan. 1, 14, 159 P.3d 174 (2007). However, the court found that some testimony, i.e., regarding acts committed by, or directed toward, Johnson's or Houston's family members, was not relevant.
"Switching over to defendant's proposed evidence, I think evidence showing the propensity of the deceased for violence towards Mr. Houston I think is admissible as well, but I don't think evidence of–I think it has to be limited to that type of evidence. The fact that something was going on with the deceased and the defendant's children, . . . I don't believe that that is probative to any issue in the case." (Emphasis added.)
The trial judge later observed in the hearing, "I think we need to limit ourselves here to the evidence that is clearly relevant to this issue 'was this self defense or not?'." (Emphasis added.) The court then recited the specific testimony to which the State objected:
"Okay. Well, let's talk then–let's just start on number three, August 2001, defendant's children have rocks thrown and pepper spray directed at them by Joshua and his family.
"Number four, September 2001, Joshua hit Frank Houston with a crowbar. Donald Walker pulled a gun and pointed it at defendant's son. Joshua hit Frank Houston in the head with a rock.
. . . .
"Number nine, Joshua spun truck tires at family and said he was going to get us niggers and the next day hit Michael Houston, Jr. in head with a brick.
"Those are on this proffer items number three through nine. [Defense counsel], it does not appear to me that those would be relevant to the issue of your client's–that would give your client reason to believe that Mr. Johnson was going for a gun and that he needed to kill him in self defense under the circumstances that this occurred." (Emphasis added.)
After argument from both sides, the court disallowed Houston's use of items three through nine of his proffer.
In rejecting Houston's argument, the Court of Appeals noted that much of his proffer of Johnson's acts about which he now argues should have been admitted into evidence was actually presented at trial. It stated:
"Jeff Betts testified that Houston called him after the incident at Leonard's. Betts testified that Houston told him about previous problems with Houston's daughter being hit and his son being hit with a crowbar. Betts testified that he assumed Johnson had committed these acts because that is who Betts and Houston were talking about. [Next,] Sherri Houston testified that Johnson drove by and directed racial slurs at her family and that her son ended up hurt the next day. It appears that the only specific evidence that was excluded was that Johnson hit Frank with a rock, and in a separate incident, Johnson hit Michael, Jr., in the head with a brick." Slip op. at 3.
The panel then determined that the trial court did not abuse its discretion in excluding evidence of these final two episodes because they were not "relevant to Houston's claim of self-defense." Slip Op. at 3. Specifically, the panel found the allegation that Johnson previously threw a rock or a brick at Houston's sons was not logically connected to Houston's belief that Johnson was reaching for a weapon in his car on the night of the shooting. Slip op. at 3.
Houston now argues that both lower courts denied his fundamental right to a fair trial because the erroneously excluded evidence was relevant to his theory of self-defense by tending to prove his state of mind at the time of the shooting.
We have held that a defendant is entitled to present his or her defense, and a defendant's fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. State v. Cooperwood, 282 Kan. 572, Syl. ¶ 1, 147 P.3d 125 (2006). However, that right is not unlimited. "[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure." Walters, 284 Kan. 1, Syl. ¶ 1.
We also acknowledge that when a defendant raises a claim of self-defense, evidence of the victim's violent or turbulent character may be relevant to establish the defendant's state of mind. Walters, 284 Kan. at 10-11. However, to establish relevance, i.e., probativity, there must be some logical connection between the asserted facts and the inference or result they are intended to establish. See State v. Reid, 286 Kan. 494, 502-03, 186 P.3d 713 (2008). In Reid, we explained that the definition of "relevance" as described in K.S.A. 60-401(b) ("'[R]elevant evidence' means evidence having any tendency in reason to prove any material fact."), like Federal Rule of Evidence 401, contains both a probative element and a materiality element. There we held that we review trial court determinations of the probativity prong of relevance for an abuse of discretion, and determinations of materiality are reviewed de novo. 286 Kan. at 508-09. We therefore expressly reject Houston's general assertion that relevance is reviewed de novo.
Houston relies upon Walters and State v. Mays, 254 Kan. 479, 866 P.2d 1037 (1994). Neither case, however, supports his argument. In Walters, the defendant was charged with and convicted of second-degree murder. He argued that the trial court erred in excluding evidence establishing his actions were in self-defense. This court explained that evidence tending to prove the defendant's state of mind prior to the shooting, i.e., that "he was induced to believe in good faith that he was in imminent danger of death or great bodily harm at the hands of the person killed," is admissible. 284 Kan. at 10 (quoting State v. Burton, 63 Kan. 602, Syl. ¶ 3, 66 P. 633 [1901]).
Walters sought to call a witness to testify about an incident approximately 1 year before the murder in which the victim told the witness that the victim was going to kill Walters and then commit suicide. This threat was relayed to Walters. The trial court excluded the evidence, finding it was irrelevant due to its remoteness. After observing that "'"[d]etermining whether evidence is too remote to be admissible rests within the sound discretion of the trial court,"'" 284 Kan. at 14, the Walters court noted that more recent incidents were testified to at trial. Consequently, the court concluded that the trial court did not err in excluding this evidence. 284 Kan. at 15.
As noted above, the incident involving Frank getting struck by a rock happened in 2001, but the fatal shooting occurred in 2003. Because this incident occurred 2 years before the shooting, per Walters it was well within the trial court's discretion to determine that the evidence failed to provide a logical connection to Houston's state of mind the day of the shooting.
In Mays, the defendant was charged with rape and aggravated robbery. He argued that the trial court denied him a fair trial by excluding evidence that supported his theory of defense. This court agreed because the excluded evidence was "key to and an integral part of the defendant's defense." 254 Kan. at 486. The only evidence supporting the conviction was the victim's testimony; therefore, the excluded evidence bearing on the victim's credibility was key to Mays' defense. The Mays court noted that if the jury believed the victim's testimony, "it necessarily would convict the defendant." 254 Kan. at 486.
By contrast, in addition to the testimony of Betts (Frank being struck by a crowbar) and Sherri Houston (Johnson's spinning tires and racial slurs) noted by the panel, Houston was able to present his own considerable testimony in support of his theory of self-defense. He testified extensively to his history with Johnson, including the following:
"[DEFENSE ATTORNEY]: . . . At any point in the past had Joshua done anything with a baseball bat or had you heard or were you familiar with him doing something with a baseball bat?
"[HOUSTON]: He had never swung or hit at me or nothing like that with a baseball bat, but past experience, gentleman said every time they get into it with somebody, this is what weapon they would use.
"[DEFENSE ATTORNEY]: Okay. How about had Joshua ever said anything to you about having a gun or using a gun towards you?
"[HOUSTON]: There have been times that he have hollered, you niggers gonna make me get my gun and stuff like that.
. . . .
"[DEFENSE ATTORNEY]: Was there any point when you were almost–almost struck by a car driven by Joshua?
"[HOUSTON]: Yes, sir. . . . [A]fter he made his turn, he swove [sic] over and tried to hit me. . . . I jumped up against the fence out of the way from getting hit by the car.
"[DEFENSE ATTORNEY]: At any time had Joshua made threats to you?
"[HOUSTON]: Several times.
"[DEFENSE ATTORNEY]: And had you filed complaints with the police?
"[HOUSTON]: Yes, sir."
As for the remaining excluded evidence about which Houston complains–Johnson hitting Michael with a thrown brick on an unknown date–we agree that the trial court was within its discretion to exclude this as having no logical connection to Houston's belief that Johnson was reaching for a weapon in his car on the night of the shooting.
Finally, the panel noted that even if the trial court had erroneously excluded the relevant evidence, reversal would not be required. Slip op. at 4. See State v. Drayton, 285 Kan. 689, 702, 175 P.3d 861 (2008) (consistent with K.S.A. 60-261, errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial.); Walters, 284 Kan. 1, Syl. 6 ("Before a federal constitutional error can be held harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; stated another way, that the error had little, if any, likelihood of having changed the result of the trial.").
The panel observed that the jury heard Houston's testimony set forth above, testimony about the general animosity between the Houston family and the Johnson family, and the specific animosity between Houston and Johnson after Houston had sex with Tavai. The record on appeal readily supports the panel's observation. We independently observe the testimony of Betts and Sherri Houston and the testimony regarding the confrontation at Leonard's 1 hour before the shooting.
In short, we agree with the Court of Appeals that the trial record as a whole clearly established that Houston was able to adequately present his theory of defense.
Issue 2: The prosecutor did not commit reversible misconduct.
Houston next argues that the prosecutor committed reversible misconduct when he "willfully" elicited testimony from him that he had been to Larned State Hospital. He contends that the key issue in this case was his state of mind and that this testimony was highly prejudicial because it inferred that he was not "reasonable or ordinary." Houston further argues that the Court of Appeals erred in concluding that his statement was simply a nonresponsive answer and that the prosecutor's questions were permissible.
The State essentially responds that the prosecutor's primary question was proper and that Houston's answer was nonresponsive to a simple yes-or-no question.
Our standard of review of allegations of prosecutorial misconduct is well-known:
"Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal." State v. White, 284 Kan. 333, Syl. ¶ 1, 161 P.3d 208 (2007).
The same basic analytical framework applies to a defendant's claim that the prosecutor asked improper questions, except in such scenarios the defendant is required to have made a contemporaneous objection. State v. King, 288 Kan. 333, Syl. 5,7, 204 P.3d 585 (2009). If the questions are impermissible, and contemporaneous objections made, the court must then determine whether the questions were so prejudicial as to require a new trial. State v. Hernandez, 284 Kan. 74, 159 P.3d 950 (2007); State v. Swinney, 280 Kan. 768, 127 P.3d 261 (2006). We have provided specific guidance on how to make this determination:
"In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the r