IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 84,275
STATE OF KANSAS,
Appellee,
v.
PATRICIA LEE LEITNER,
Appellant.
SYLLABUS BY THE COURT
1.
The admission and exclusion of evidence lies within the sound discretion of the trial court. An appellate court's standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court.
2.
Evidence of constitutionally protected associations could be admissible to show that a defendant poses a future danger to society. However, the mere fact that a defendant belongs to a group holding racist or other antisocial beliefs is insufficient. To be admissible, the constitutionally suspect evidence must somehow be tied to the defendant's crime.
3.
Under the common law of evidence, the admission of evidence relating to a witness' membership in an organization may be relevant to show witness bias, i.e., that his or her testimony was slanted or perhaps fabricated.
4.
Although there is no per se barrier to the introduction of evidence of a person's membership or participation in a religious group or association, to be admissible such evidence should be related to the commission of the crime charged or should be used to show a person's possible bias or motive.
5.
While K.S.A. 60-445 only refers to the element of surprise, as a rule of necessity the trial judge may exclude any evidence which may unfairly prejudice the defendant. Where the probative value is substantially outweighed by the risk of unfair prejudice, even relevant evidence may be excluded by the judge.
6.
An appellate court's review of the trial court's admission of evidence is a two- step process. First, it must determine whether the evidence was admissible or inadmissible. Then, if the evidence was improperly admitted, it must determine whether to apply the harmless error rule of review or the federal constitutional error rule to the erroneous admission of that evidence.
7.
Review of the admission or the exclusion of evidence is usually governed by the harmless error rule. K.S.A. 60-261 provides that no error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
8
Under the federal constitutional error rule, an error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before the court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.
9.
An expert's opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. An expert witness may not pass on the weight or credibility of evidence. An expert may testify and give his or her opinion concerning the ultimate issue of the case; however, such testimony is admissible only if it actually assists the jury.
10.
No error in either the admission or the exclusion of evidence by the court is a ground for granting a new trial or for setting aside a verdict unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
11.
Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. Each case must be scrutinized on its particular facts to determine whether a trial error is harmless error or prejudicial error when viewed in the light of the trial record as a whole, not whether each isolated incident viewed by itself constitutes reversible error. An appellate court analyzes the prosecutor's conduct during cross-examination using a standard similar to that used when reviewing remarks made in closing argument. Specifically, in deciding the question of whether prosecutorial misconduct requires reversal, an appellate court must determine whether there was little or no likelihood the error changed the result of the trial.
12.
When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor's part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.
13.
A judge has broad discretion to control examination, and reviewing courts will not interfere unless discretion has been abused. The appropriate standard of review is not one of constitutional error, but whether the trial judge abused his or her discretion.
14.
Evidence of prior acts between a defendant and a victim are admissible independent of K.S.A. 60-455 if the evidence is to establish the relationship between the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. Cases have allowed prior conduct to be admitted into evidence where a family relationship existed.
Appeal from Coffey district court; PHILLIP M. FROMME, judge. Opinion filed October 26, 2001. Affirmed.
Mary Curtis, assistant appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with her on the brief for appellant.
Douglas P. Witteman, county attorney, argued the cause, and Athena E. Andaya, assistant attorney general, Stephen D. Maxwell, assistant attorney general, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
ABBOTT, J.: This is a direct appeal by the defendant, Patricia Lee Leitner, from her conviction for first-degree murder of her ex-husband, Michael. She was sentenced to life imprisonment.
Leitner raises four issues on appeal. She contends the trial court abused its discretion when it allowed the State to cross-examine her concerning her involvement with a pagan religion. She also contends the trial court abused its discretion when it allowed a Kansas Bureau of Investigation (KBI) agent to testify that in his opinion a State witness was not involved in the murder. She claims she was denied due process and a fair trial because of prosecutorial misconduct and that the trial court abused its discretion when it limited cross-examination of a State witness to the scope of direct examination.
Leitner met Michael when she was 17 years of age and he was 24 years of age. A common-law marriage followed and two sons were born to the union. Leitner testified that it was an abusive marriage and that Michael frequently physically abused her. Leitner testified that she tried to end her relationship with Michael by poisoning him in February 1998. She stated that she poisoned him because she wanted the beatings to stop. She told the jury that because Michael was threatening her with guns, she "knew that one of these times that he was going to do it." Leitner admitted the first time she tried to poison Michael, she crushed up D-Con rat poison and put about a teaspoon of it in a pot of coffee. Michael drank the coffee but did not even become ill. Leitner stated that the second time she attempted to kill him, she sliced wild mushrooms into an omelette, thinking they were poisonous. The mushrooms did not affect him.
In July 1998, Leitner obtained an emergency divorce from Michael. Leitner was awarded the couple's residence and the proceeds of a sales contract of a tavern they had sold on contract along with other property. Custody of their two sons was given jointly to Leitner and Michael.
Less than 2 months later, Michael filed a motion to set aside the property settlement agreement, claiming that at the time he signed it, he was in "no condition to fully understand and appreciate [its] significance."
Leitner's babysitter, Honee Larcom, testified that Michael had continued to call Leitner following the divorce to ask about the boys. She continued to babysit for Leitner almost every weekend following the divorce. Larcom testified that during conversations with Leitner in late August or early September 1998, Leitner complained about Michael, saying he would not keep a job, he did not make enough money, and that if he would just die, her family would be better off. Larcom testified that Leitner told her:
"'You know, if he would just die my family would be so much better off. I wish he would just die because he has [a] life insurance policy, we got it when we bought the house, and I could get like $70,000,' and the boys, they'd be set she said 'cause they could get social security. They could get like $700 a month till they're 18."
Larcom also testified that she and Leitner talked about Leitner's income. Larcom knew Leitner received $500 a month in payments from the sale of a tavern that she and Michael sold. Leitner told her there were only two more payments remaining on the contract, which worried Leitner. Larcom said that Leitner was going to apply at the Kansas State Department of Social and Rehabilitation Services for food stamps and talked about getting a job. Leitner asked Larcom whether she could babysit while Leitner worked.
Tammy Warner, Leitner's younger sister, testified that she came to Kansas to visit Leitner in September 1998. Warner heard Leitner make threats toward Michael but believed Leitner was just angry because of the divorce. Leitner told her that "things would be better for her and the kids if Michael was dead, then they wouldn't have to worry about it no more . . . it'd be so easy to have it done, you just make a phone call, you know, she knows people."
Sometime on a weekday prior to Saturday, October 3, 1998, Leitner went to Chanute, Kansas, to see her insurance agent, Robert White. She paid the insurance premiums on her house, Michael's vehicle, and her 1991 Dodge Dakota pickup truck. White gave Leitner a document concerning insurance coverage on Michael's vehicle. Leitner told White she would be seeing Michael that weekend and would have him sign the document to take him off the policy. Michael's visitation with their two boys was scheduled for the weekend of October 2 and 3, 1998. On Thursday, October 1, 1998, Michael telephoned to cancel his visitation with the boys. Leitner was upset because "he had been cancelling visits and it was really starting to hurt the boys."
On Friday afternoon, Gary Hockett, Leitner's brother, and his daughter went to Leitner's house to ask if Leitner and his wife Pam wanted to go out that evening. Leitner called Larcom and asked her to babysit all four children at her house. After Larcom arrived, Gary, Pam, and Leitner left in separate vehicles to go to Gary's house to get ready. At Gary's house, Leitner told Gary and Pam that she was not going to go with them because she felt she really needed to talk with Michael.
Leitner testified that "Gary didn't really want me to go at first originally and then hethat's when he decided that he didn't have a problem with me going if I took protection with me just in case." Leitner was referring to Pam's and Tammy Warner's two handguns. She stated that Gary retrieved Tammy's gun out of a green box, then Pam got hers out of her purse and handed it to Gary. Leitner testified that Gary loaded the .380 caliber and .22 caliber handguns for her while she went to the liquor store to buy him a 12-pack of beer. Earlier in the trial, Leitner reported to jurors that she owned a .22 caliber Ruger at the time of her divorce and that in September 1998, she purchased a .25 caliber semiautomatic handgun for her protection. That night, however, Leitner used Gary's and Pam's .380 caliber and .22 caliber handguns to shoot Michael.
Kenny Wisdom testified that he worked with Michael at the Wyncroft Hill Apartments in Olathe on Friday, October 2, 1998. Around 7:30 p.m., Wisdom, a girl named Cindy, Michael, and Michael's brother, Jeff, met in Jeff and Michael's apartment. Wisdom stated that around 8 p.m., he and Michael went to the liquor store in Wisdom's car. Prior to leaving the parking lot, a truck drove by on another road. Michael told Wisdom, "That looked like my ex-wife's truck." At the liquor store, Wisdom bought a case of beer, and Michael bought "a pint bottle of something." Wisdom dropped Michael off in the parking lot of the apartment complex.
Leitner testified that when she arrived in Olathe, she drove around until she located the apartment complex where Michael worked. Leitner stated that Michael had given her his address that week. She did not know Michael's apartment number, but her son Eric thought it was 203 or 302. After she saw Michael's truck, Leitner said she found a place to park, got out, and knocked on a few doors. Christopher Paul answered the door of one of the apartments and later identified Leitner for investigators.
Leitner testified that when she saw Michael walking in the parking lot, she yelled his name and they spoke to one another. She told Michael she did not want to go into his apartment but preferred to go to a public place. She stated that Michael told her his truck was not running right so she drove to a nearby park to talk. Leitner testified that Michael asked about going to Toronto for the weekend so they could talk to their sons together and said he offered to pay for her gas. She said Michael went to his apartment to get a change of clothes. When he got back in the truck, she handed him the insurance document, and he put it inside his coat pocket.
Jeff testified that in September and October 1998, he lived with Michael in the Wyncroft Apartments in Olathe in apartment 302. When Jeff left the apartment to get groceries around 9 p.m. on October 2, 1998, Wisdom, Cindy, and Michael were there, but when he returned, they were gone. Jeff testified that he owed Michael money for back rent, so after purchasing groceries he withdrew $550 from an ATM machine at 9:24 p.m. The bills Jeff received from the ATM machine were the new-style $20 bills. Jeff went back to the apartment, and at approximately 10:30 or 11 p.m., Michael returned. Michael told Jeff that Leitner was outside in her truck and he was going to go to Toronto with her. Leitner never came into the apartment. Michael seemed surprised by the fact Leitner was there and that she was crying and very upset. Jeff stated that since Michael had reopened the divorce case and Leitner showed up all of a sudden, he did not think it was a good idea for Michael to go with her. Jeff said that Michael had a brown Ford truck in good condition and that he could have driven to Toronto. Jeff said he tried to give Michael $300 that he owed him, but he did not want to carry that much with him, so Michael gave $200 back to Jeff and took $100 in new-style $20 bills.
Leitner told jurors that after stopping at an Ottawa convenience store, Michael took over driving her truck. Leitner testified that Michael took a couple of swigs of butter shots, a kind of liquor, on the trip to Toronto. She said Michael's demeanor changed on the trip to Toronto and he hit her in the stomach with the back of his fist. She testified that he stopped the truck on a road and got out to relieve himself, then sat on the bumper and lit a cigarette. She said she got out of the truck, relieved herself, then retrieved her cigarettes and gun. Leitner was wearing a black duster and had placed a gun in each pocket. She lit a cigarette and went back to the rear bumper to smoke it. Leitner testified Michael hit her "upside the head" and then he started choking her as she was standing at the side of the truck. She said he put his hands around her neck, commented that all he had to do was to squeeze harder, and then started squeezing her Adam's apple. Leitner said she kicked him with both her legs, then pulled the guns from her pocket, and shot him as he was getting up.
At trial, Gary testified as a State's witness as a result of a plea agreement. Gary stated that he left the .380 caliber and .22 caliber handguns at Leitner's house after target shooting on September 4, 1998, and had not given them to Leitner on Friday, October 2, 1998, as she claimed. Gary stated that on Friday, Leitner came over to his house, as they were getting ready to go out, and told him she had changed her mind and was going to Olathe to try to work things out with Michael. Gary said, "She was upset and everything about the way things had been going with her and Mike and she was wanting to resolve it." Gary testified that Leitner left around 7 p.m. He and Pam went to Iola to Wal-Mart, ate supper at the Greenery Club, and then went to the Road Island Club on Highway 75 south of Burlington until 2 a.m. Gary stated that when they returned to their house in Toronto between 5 and 5:30 a.m., Leitner's pickup was parked outside the house and Leitner was asleep on their couch.
Gary woke Leitner up and asked her what was going on, and she said she used both of them. He asked what she meant, and she said, "I used both guns. . . . I shot Mike." He asked her why she used his guns, and she replied, "Because they was
there . . . I wanted to make sure they wasit was a big enough gun to stop him." Gary testified that Leitner said she tried to shoot him earlier on the way to Toronto when she had pulled into a roadside park, but someone had pulled up, so she put the gun back in her coat and got back in the truck. Leitner told Gary that she had shot Michael later somewhere outside Gridley, first using the .380. After he fell to the ground his arm moved, so she took the .22 and shot him twice in the side of the temple.
Pam also testified at trial as a result of a plea agreement. She talked about many statements Leitner had made, both before and after she killed Michael. Pam said that Leitner loved her house and had said she would do anything to keep it. Pam reported that on Friday, October 2, 1998, the two guns used in the homicide were at Leitner's house because that is where she and Gary left them after some target practice at Leitner's in September. She stated that Leitner reported that she was the one who had asked Michael to come to Toronto to work things out. Leitner also told her that Michael told Jeff that he was going to spend the weekend with another woman in Olathe. Pam testified that Leitner said she turned off the highway to Gridley onto back roads and drove until she could not see any houses. Leitner told Pam she walked up behind Michael and shot him in the head once, then twice again in the temple as he lay on the ground to make sure he was dead. Then she picked up a few of the shell casings and drove away. Pam further testified that Leitner threatened her more than once by talking about the big gray hole in the back of Michael's head and making the statement, "Now you see what happens to people who cross me." Pam also said that on several occasions Leitner told her she was such a good actress that she could plead temporary insanity or spousal abuse and get anybody to believe it.
Gary testified that Leitner told him she took Michael's wallet so the authorities would not be able to identify him as quickly. He also said that Leitner was not worried about her fingerprints on the guns because she had worn gloves. Gary initially agreed to help his sister and wiped down the inside of her truck for fingerprints and buried the guns, wallet, and ammunition. Gary said they only wiped down the passenger side of the truck because that was where Leitner said Michael sat. In addition, Gary testified that on Saturday morning, when he, Pam, and Leitner returned to Leitner's house, Leitner paid Larcom for babysitting. Leitner made the statement, "We'll just let somebody else pay for it this time," and handed Larcom some cash. Gary thought the cash was from Michael's wallet.
Larcom testified that on Saturday, October 3, 1998, Leitner, Pam, and Gary came to Leitner's house around 6:30 or 7 a.m. Leitner paid Larcom $60 for babysitting, using three new-style $20 bills.
Gary stated that he continued to cover up for his little sister until October 20 or 21, 1998. Around October 7, Gary asked Leitner why she shot Michael. Gary testified that she indicated it was for the boys' sake; not just for their mental and physical well- being, but also for financial well-being. Gary stated, "She didn't think Mike needed to be around the boys at all and she didn'tshe knew that if something had to happen to Mike that things would be took care of. . . . The boys would get social security, the house would be paid for, basically that type of deal." Gary further told the jurors that his sister suggested he ought to take "the rap" because he could beat it. He did not like that idea.
A little after 8:30 a.m. that Saturday morning, October 3, 1998, Tom Kraft found Michael's body lying on Iris Road just north of the Woodson-Coffey County line. Kraft summoned police to the scene. Gene Morrow, a detective with the Coffey County Sheriff's Department, was one of the officers who responded to the call. Morrow testified he saw no signs that there might have been a struggle at the scene. In addition, he said the only footprints were Michael's. Although police found no wallet on the body, they were able to tentatively identify Michael because of the insurance papers they found inside his jacket pocket. Morrow stated that they were later able to locate Michael's suitcase in a ditch 1 to 2 miles south and east of the crime scene. In addition, Morrow testified that on October 22, 1998, Gary came to him and confessed that he had conspired with Leitner to cover up the crime and conceal evidence.
Dr. Erik Mitchell, a forensic pathologist who serves as coroner for several counties in Kansas, gave expert testimony at trial. Mitchell indicated that Michael had three gunshot wounds to the head. He testified that the wound on the back of Michael's head was a contact wound where a gun was pressed up against his head and fired. Mitchell testified he believed the most likely sequence of events was that the gunshot to the back of the head was first, followed by two shots to the temple after Michael dropped to the ground.
On October 22, 1998, Leitner was arrested and charged with the premeditated first-degree murder of Michael. Although Leitner initially indicated that she would rely on the battered woman syndrome as a defense, she later decided not to do so. After a 7- day jury trial, a jury convicted Leitner of first-degree murder on August 31, 1999. On October 6, 1999, Judge Phillip M. Fromme imposed a sentence of life imprisonment, with the eligibility of parole after serving 25 years of confinement.
I. CROSS-EXAMINATION CONCERNING WICCA, A PAGAN RELIGION
The first issue for determination is whether the trial court committed an abuse of discretion when it allowed into evidence the State's cross-examination of Leitner concerning her involvement with Wicca, a pagan religion, sometimes referred to as witchcraft.
"The admission and exclusion of evidence lies within the sound discretion of the trial court." State v. Lumley, 266 Kan. 939, 953, 976 P.2d 486 (1999). "'"[I]t is clear that our standard of review regarding a trial court's admission of evidence, subject to exclusionary rules, is abuse of discretion."' [Citation omitted]" 266 Kan. at 950. Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999).
On February 17, 1999, Leitner filed a pretrial motion in limine asking the trial court to prohibit counsel and witnesses for the State from, among other things, "making reference to, eliciting testimony or offering evidence of . . . [t]he alleged practice of 'witchcraft' by the accused." The trial court heard oral arguments on pretrial motions on March 3, 1999. The State offered no objection to an order excluding such evidence. The court granted Leitner's motion in limine in its entirety.
On the third day of the jury trial, the court heard the arguments of counsel on several issues outside the presence of the jury. The judge stated:
"[W]ith regard to the issue of witchcraft, that the court has determined . . . after reviewing K.S.A. 60-445 the court has discretion to exclude certain evidence, and as far as my knowledge of the case . . . I question whether the State's able to show how her involvement with witchcraft or membership in any organization, religious beliefs, are related to the crime charged, and without a showing of that I think it's highly prejudicial for that material to be before the jury, and we did have a motion in limine on that, and I think I'll hold you to that. . . . I'll forewarn you that I do find this fairly highly prejudicial potentially to the jury and very little probative value as far as showing how even her subsequent acts might relate to the crime . . . ."
The State agreed to instruct its witnesses of the court's ruling. The trial court, noting that it was possible that defense witnesses could "open the door" to this subject, stated "if they do we'll deal with it at that time."
Later, during a recess in the trial outside the hearing of the jury, the State again raised the topic of questioning witness Pam Hockett regarding Leitner's witchcraft activities following Michael's murder. The State proffered to the court that Pam would testify
"that defendant was using a black caldron, she cooked flowers in there, seeds, and did chants of some sort, and she slept with some type of tree branch, and I think it was oak, over her bed, and these were all particular to the defendant's beliefs in what I'm going to call witchcraft but I think she calls Wicca. . . . [T]he defendant did these behaviors as protection spells . . . to be protection from the KBI . . . discovering what she did to her ex-husband."
Again, the court ordered the State not to "get into that area" because of the high prejudicial value of the testimony. The trial court noted that this evidence might possibly show some evidence of consciousness of guilt but determined that there was other evidence of that nature available.
On Friday, August 27, 1999, the defense called Leitner to the stand. She testified about the events that occurred the night of Michael's death, their marital history, and about many specific instances of physical abuse Michael inflicted on her. She testified that after a certain time period, Michael stopped hitting her in the face but would hit her in places where her clothes would cover the injuries. She stated that did not seek medical attention after these instances because Michael was her nurse afterward and twice gave her stitches using "fishing line and a mattress needle." Leitner testified that she intentionally shot Michael three times after he hit her in the stomach and choked her.
Following the direct examination of Leitner during a hearing outside the presence of the jury, the prosecutor again broached the topic of her involvement with witchcraft. The prosecutor asserted that "[t]he defendant in her testimony has opened the door to several items . . . when she testified about the nature of the relationship with the victim, Michael Leitner" and stated that witnesses had alleged that "the reasons Michael hit her on a couple of occasions was that the defendant was involved in witchcraft and he didn't like it, being the reason for possibly Michael hitting her." The central concern of the prosecutor regarding Leitner's testimony was that she had misled the jury by making direct misstatements about her sexual experience with men prior to and during her marriage to Michael, about reporting to others that he abused her, and about the lack of provocation on her part when Michael hit her. Counsel for Leitner argued that as to "the affairs or the witchcraft, nothing Patricia testified to touched on those issues . . . . It's not relevant. It's highly prejudicial." The prosecutor countered by stating, "Well, oh, he wants her to be able to testify, your Honor, that all this abuse occurred, but we're not allowed to get into why it may have occurred and that it may be her fault that she was involved in things that Michael didn't want her to." (Emphasis added.)
After a brief discussion of another issue, the court stated: "I'm concerned about the witchcraft. Do you have witnesses . . . that can testify that beatings were a result of her involvement . . . in witchcraft?" The State made the proffer that testimony of Leitner's sister, Tammy Warner, would be that Leitner only told her of two occasions of abuse, one of which was when Michael found out Leitner had attended a pagan ritual involving witchcraft and the other when he learned she was dating a man involved in it. Counsel for Leitner argued that the prosecutor seemed to be arguing "that the witchcraft and the affair justified the beatings." The trial court acknowledged that "I don't know that there's any justification for beatings." The court ruled, however, that despite efforts to keep the issues of witchcraft, prostitution, and fires from the jury, Leitner's testimony appeared to open the door. Therefore, the court decided to allow the State to cross-examine Leitner about her former involvement with prostitution, witchcraft, and extramarital affairs. Leitner's attorney requested a standing objection to any of this evidence coming in. The trial court required the attorney to make specific objection or to just say objection.
The State proceeded to cross-examine Leitner concerning her testimony of Michael's past physical abuse. Defense counsel objected on the grounds of relevancy, but the court allowed the questioning to continue. Leitner denied that she had been hit by Michael after he had caught her having sex with another man.
Next, the State brought up the subject of witchcraft. Following another objection by Leitner's counsel, the court allowed the State to continue. The State repeated the question, asking Leitner whether she "got into an argument with Mike because [she