State v. Moore

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 109,480

STATE OF KANSAS,
Appellee,

v.

DOMINIC MOORE,
Appellant.


SYLLABUS BY THE COURT

1.
An appellate court reviews a district court's decision to deny a motion for mistrial
for an abuse of discretion.

2.
A district court abuses its discretion if its decision is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on an error of fact.

3.
A district court may declare a mistrial if prejudicial conduct, inside or outside the
courtroom, makes it impossible for the trial to proceed without injustice to one or both of
the parties. When evaluating a motion for mistrial, the district court must take the first
step of deciding whether the prejudicial conduct created a fundamental failure in the
proceeding. If so, the district court's second step is to decide whether the prejudicial
conduct made it impossible to continue the proceeding without denying the parties a fair
trial, i.e., the prejudice could not be cured or mitigated through jury admonition or
instruction.

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4.
K.S.A. 60-404 provides that a verdict will not be set aside by reason of the
erroneous admission of evidence unless there appears of record objection to the evidence
timely interposed and so stated as to make clear the specific ground of the objection.

5.
Prosecutors have a positive duty to disclose evidence favorable to the accused
when the evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution. The favorable evidence that prosecutors must
disclose to the accused includes both exculpatory and impeachment evidence.

6.
To establish a prosecutor's violation of the duty to disclose favorable evidence, the
defendant must establish: (1) The evidence at issue is favorable to the accused, either
because it is exculpatory or because it is impeaching; (2) the evidence has been
suppressed by the State, either willfully or inadvertently; and (3) the evidence is material
so that its withholding is prejudicial.

7.
A party offering an object into evidence must show with reasonable certainty that
the object has not been materially altered since the object was taken into custody, albeit
the evidence need not have been kept under lock and key or continuously sealed. The test
for chain of custody is a reasonable certainty that the object has not been materially
altered. Any deficiency in the chain of custody goes to the weight of the evidence rather
than its admissibility.



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8.
A trial court is required to issue a cautionary instruction when an eyewitness'
identification testimony is critical to the prosecution's case, but it is erroneous for that
instruction to include a degree of certainty factor that prompts the jury to conclude that an
eyewitness identification is more reliable when the witness expresses greater certainty.

9.
If an eyewitness identification instruction erroneously contains a degree of
certainty factor, the first harmlessness inquiry asks two questions: (1) Whether the
eyewitness identification testimony was crucial to the State's case; and (2) whether the
eyewitness stated an opinion of certainty. If the answer to either question is "no," the
erroneous instruction was harmless. Otherwise, the harmlessness inquiry moves to a
consideration of the impact of the jury instruction in light of the entire record and
additional considerations, such as the procedural safeguards employed and the total
amount of inculpatory evidence presented.

10.
The cumulative error doctrine does not apply where the record fails to support
more than one of the errors raised on appeal by the defendant.

11.
Kansas' sentencing scheme for imposing a hard 50 life sentence in effect in this
case, whereby the factual findings necessary to impose the enhanced minimum sentence
were made by a judge by a preponderance of the evidence, rather than submitted to and
found beyond a reasonable doubt by a jury, violated defendant's right to a jury trial under
the Sixth Amendment to the United States Constitution.

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Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed August 28, 2015.
Convictions affirmed, sentence vacated, and case remanded with directions.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause, and was on the brief
for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Derek Schmidt, attorney
general, was on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Charles Ford and Larry LeDoux were killed in a shoot-out during an
attempted drug-house robbery. Brandon Ford, who survived the incident and who
previously knew Cedric Warren, named Warren as one of the two shooters and later
identified Warren's codefendant, Dominic Moore, as the second killer. Warren and Moore
were tried together, and a jury convicted Moore of one count of premeditated first-degree
murder based on an aiding and abetting theory, one count of intentional second-degree
murder, and one count of attempted premeditated first-degree murder. The district court
imposed a life sentence with a mandatory term of 50 years (hard 50 life sentence) for the
first-degree premeditated murder conviction.

On direct appeal to this court, Moore argues that (1) the district court violated his
right to an impartial jury by denying his motion for a mistrial after a potential juror's
comments irreparably tainted the jury pool; (2) the district court violated his due process
rights when it denied his motion to suppress an eyewitness identification; (3) the district
court erred in denying his motion for a mistrial and his motion for a new trial based upon
the eyewitness' changed testimony at trial; (4) the district court erred in admitting a
weapon and the results of scientific testing conducted on it without an adequate chain of
custody; (5) the district court erred in instructing the jury to consider the degree of
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certainty demonstrated by the eyewitness when identifying Moore; (6) cumulative error
denied him a fair trial; (7) the hard 50 sentencing scheme is unconstitutional; and (8) the
district court erred by ordering lifetime postrelease supervision.

Finding no reversible error, we affirm Moore's convictions. However, pursuant to
Alleyne v. United States, 570 U.S.___, 133 S. Ct. 2151, 2160-63, 186 L. Ed. 2d 314
(2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), we must vacate the
hard 50 life sentence and remand the case to the district court for resentencing.

FACTUAL AND PROCEDURAL OVERVIEW

On February 13, 2009, Brandon, Charles, and Larry spent most of the day at a
house in Kansas City, Kansas, which was used by Charles and Larry to facilitate their
drug transactions. Charles was armed with a loaded nine millimeter Glock and Larry kept
a loaded AK-47 within his reach, but Brandon was initially unarmed when two men came
to the house that evening.

Brandon's account of what happened when the two men arrived at the house
changed several times. Brandon initially told the police that he was walking up to the
house when people started shooting at him. Later that day, he changed his account and
related that he was inside the house walking toward the bathroom when the two men
entered the house, one of whom he knew as "Ced." As he entered the bathroom, Brandon
said he heard someone say "where's the shit" or "give me the shit," immediately followed
by gunshots. Brandon exited the bathroom and saw a short black male holding a gun,
whereupon he ducked into a bedroom, locked its door, and retrieved a weapon. Brandon
exchanged gunfire through the closed bedroom door with someone outside. After the
shots subsided, Brandon looked out the window and saw two men running toward an
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SUV. Brandon exited through the bedroom window, ran to a nearby house, and asked the
resident to call the police.

When police arrived at the residence, they found Charles' body near the front door
surrounded by several different types of cartridge casings and Larry's body in the dining
room with .40 caliber Smith and Wesson spent cartridges scattered nearby. Police also
discovered a locked bedroom door riddled with bullet holes. A police officer broke down
the door and observed an open window in the bedroom.

Although no weapons were found in the house, police recovered multiple gun
magazines and a significant amount of ammunition. Police also discovered a black bag
hidden inside a clothes dryer; the bag contained packets of cocaine.

Brandon was transported to the police station and shown a lineup, from which he
identified Warren as the individual he knew as "Ced." He also provided the police with a
description of the second killer. The day after the murders, police apprehended Warren at
a house in Kansas City, Missouri. Moore was also in the house, and he matched the
description Brandon gave of the second killer. A search of the Missouri house revealed
several weapons, including a Glock nine millimeter semi-automatic handgun, and drugs,
all hidden within an air duct. Brandon was later able to select Moore out of a lineup as
the short black man he saw in the hallway.

Moore was charged with the premeditated first-degree murder of Larry, based on
an aiding and abetting theory; the intentional second-degree murder of Charles; and the
attempted premeditated first-degree murder of Brandon. At trial, Brandon testified that he
was sitting in the living room when he saw Warren come up the stairs after entering the
house. Brandon said that Warren went straight into the kitchen and began shooting at
Larry. Brandon ran to the bedroom to retrieve a weapon, but he said that he was able to
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see Moore, while he was aiming his weapon through the cracked bedroom door, also
come up the stairs after entering the house. Brandon admitted that his trial testimony was
inconsistent with previous statements, wherein he said he was in the bathroom when
shots were fired. Brandon was extensively cross-examined on his inconsistent testimony.

A KBI firearm's examiner testified that the casings found at the crime scene came
from three different guns, one of which was the Glock seized from the Missouri
residence. Specifically, two cartridge casings found under Charles' body were fired from
the Glock. A KBI forensic scientist testified that a sample taken from the Glock was
consistent with Moore's DNA profile. The estimated frequency of the sample obtained
from the Glock was 1 in 43 for the black population, which the forensic scientist noted is
a "pretty common profile." The KBI firearm's expert testified that the bullet recovered
from Larry's body was a .40 caliber full metal jacket round, but he was unable to tie it to
a particular spent cartridge or to identify the type of weapon from which it was fired.

Warren presented two alibi witnesses in his defense. His stepmother, Nicole
Carter, testified that on the night of the murders, Warren was at her house until
approximately 11 p.m., when he left to go to a music show with his father. Warren's
father, Cedric Toney, testified that he dropped Warren off at a friend's Kansas City,
Missouri, house around midnight. The murders were alleged to have taken place around
11 p.m. Moore did not present any evidence in his defense.

The jury convicted both defendants as charged. Moore filed a motion for new trial,
which the district court denied. The State filed a motion for imposition of a hard 50
sentence for Moore's first-degree premeditated murder conviction under K.S.A. 21-4635,
which the district court granted. Moore's sentences for the other two convictions were
ordered to be served concurrently with the hard 50 life sentence.

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Moore filed a notice of appeal 1 day beyond the 14-day jurisdictional limitation of
K.S.A. 2011 Supp. 22-3608(c). We ordered Moore to show cause why his appeal should
not be dismissed for lack of jurisdiction. Moore responded that State v. Ortiz, 230 Kan.
733, 735-36, 640 P.2d 1255 (1982), applied because he was furnished an attorney who
failed to perfect and complete the appeal. We retained Moore's appeal. Additional facts
are provided as needed to address Moore's claims on appeal.

MOTION FOR MISTRIAL BASED ON POTENTIAL JUROR'S STATEMENTS

Moore's first issue concerns comments made by a member of the venire during
voir dire. We addressed this precise issue in affirming the conviction of Moore's
codefendant, Warren. See State v. Warren, (No. 107,159, this day decided). Nevertheless,
we include the entire analysis here, as well.

The potential juror, C.W., expressed fear over rendering a guilty verdict because
the defendants had access to the juror questionnaires, which contained his personal
information, specifically stating,

"[E]very time we talk they flip through these papers. It's got my name on it, it's got where
I work on it, it's got my family, it's got everything, and if I stand up in court and say hey,
they're guilty, they're like, hey, that's number 4, that's [C.W.]. They know where I work,
they know where I live, what if he gets mad? That's how I look at it."

The prosecutor followed up by inquiring whether C.W.'s apprehension would
interfere with his jury duty, and C.W. responded, "Kind of, yeah, because if I stand up
and say hey, you're guilty, they know my name, where I work and my family. That makes
you feel kind of awkward, don't you think?" C.W. explained that even if the jury rendered
a guilty verdict and the defendants went to jail, nevertheless "[t]hey know people. People
know people."
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Thereafter, the district court conducted a bench conference at which defense
counsel requested a mistrial, arguing that the jury pool had been "poisoned at this point
beyond—possibly beyond salvation." The prosecutor argued that any possible prejudice
could be cured by informing potential jurors that while the defendants could review the
questionnaires during jury selection, they did not have access to the questionnaires during
the trial. The district court took the motion for mistrial under advisement and thereafter
provided the following instruction to the jury pool:

"All right. I guess based upon [C.W.'s] comments, there's I wanted to clarify
things. Obviously, this is a serious case and there are serious charges, here. As the
defendants sit here, they are presumed to be innocent. The State has the burden to prove
their guilt beyond every reasonable doubt as to the elements with which they are charged.
It is also their right to have a jury trial, and that is why all of you have been summoned in
here to come down here and go through this process. That's why I've asked you questions,
Miss Lidtke has asked you questions and counsel will ask you questions.

"The questionnaires that he referred to are simply in order to try to speed up the
process as opposed to questioning each of you individually. These questionnaires are
used in every trial that we conduct here in Wyandotte County, they have been used for
many years, and it's the best possible way that we have come up with to expedite the
process as much as we possibly can.

"I understand that there's concerns about your names being on there and
information, but those questionnaires are not kept by anyone but the Court. They are
collected and destroyed. There is nothing that anyone—the attorneys, the defendants,
anyone else will have any information regarding anything what is on those
questionnaires. But that is the process that we have, that is the process that we use in
every jury trial, whether it's a civil trial or a criminal trial, so with that, Miss Lidtke, let's
move on."

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Despite the district court's instruction, C.W. still expressed doubt over whether he
could return an appropriate verdict. Consequently, the prosecutor moved, without
objection from defense counsel, to strike C.W. for cause. The district court took the
motion to strike under advisement.

Voir dire thereafter continued without any other potential juror expressing any
safety concerns. Of note, at the close of her voir dire examination, the prosecutor
specifically asked the jury pool if there was anything else that needed to be addressed or
considered when determining whether a potential juror should serve on the jury. None of
the potential jurors expressed any concerns about their safety or the defendants having
access to their personal information. Similarly, at the close of Warren's voir dire
examination, defense counsel specifically gave the jury pool the opportunity to discuss
anything that they thought would prevent them from acting as fair and impartial jurors,
but none responded.

The district court subsequently granted the prosecutor's motion to strike C.W. for
cause but denied the defendants' motion for mistrial, finding that while the jury pool may
have visibly reacted to the potential juror's comments, "the record should be perfectly
clear no one was nodding their head in agreement, no one was raising their hand to come
forward, no one anticipated any further questions when the broadest possible question
was asked, is there anything we should know about?" The district court found that if any
member of the jury pool had concerns for their safety, or believed such concerns would
prevent them from serving as a fair and impartial juror, they had ample opportunity to
express their concerns. The district court therefore concluded that a mistrial was not
appropriate.

Moore claims on appeal that C.W.'s comments irreparably tainted the jury panel
and the district court's curative instruction did not purge the taint.
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Standard of Review

We review a district court's decision denying a motion for mistrial for an abuse of
discretion. State v. Armstrong, 299 Kan. 405, 442, 324 P.3d 1052 (2014). A district court
abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on
an error of law; or (3) based on an error of fact. State v. Waller, 299 Kan. 707, 722, 328
P.3d 1111 (2014).

Analysis

Pursuant to K.S.A. 22-3423(1)(c), a district court may declare a mistrial if
prejudicial conduct, inside or outside the courtroom, makes it impossible for the trial to
proceed without injustice to the prosecution or defense. When evaluating a motion for
mistrial under this provision, the district court must take the first step of deciding whether
the prejudicial conduct created a fundamental failure in the proceeding. If so, the district
court's second step is to decide whether the prejudicial conduct made it impossible to
continue the proceeding without denying the parties a fair trial. Armstrong, 299 Kan. at
441-42. Under the second step, the court considers whether the conduct caused prejudice
that could not be cured or mitigated through jury admonition or instruction, resulting in
an injustice. State v. Ward, 292 Kan. 541, 551, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012).

The question of whether a fundamental failure in the proceeding existed "varies
with the nature of the alleged misconduct, such as whether the allegation is based on the
actions of a witness, the actions of a bystander, prosecutorial misconduct, or evidentiary
error." 292 Kan. 541, Syl. ¶ 4. Here, we are dealing with a potential juror's actions in
expressing fear of retribution from the defendants. Although we have yet to address the
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precise issue presented here, we have considered cases involving a potential juror's
prejudicial statements in the presence of the jury pool.

For example, in State v. McCorgary, 224 Kan. 677, 687, 585 P.2d 1024 (1978), a
potential juror, who also happened to be the defendant's cousin, "expressed a strong
feeling in front of other prospective jurors that what she had read in the paper about these
murders was true." The potential juror was excused from service, but the defendant
moved for a mistrial before voir dire was completed. The motion was denied, but the jury
was instructed to disregard statements by prospective jurors and to not consider what they
may have read in newspapers. On appeal, we held that the district court did not abuse its
discretion in denying the motion for a mistrial because there was no evidence that the
defendant's rights had been substantially prejudiced. 224 Kan. at 687.

Similarly, in State v. Mayberry, 248 Kan. 369, 380, 807 P.2d 86 (1991),
disapproved on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), the
defendant argued that the trial court erred in denying his motion for a mistrial based upon
a potential juror's statement that he knew about the defendant from his previous
conviction. The juror was excused for cause, and the district court instructed the jury to
disregard any information concerning the case other than the evidence presented at trial.
Once again, we held that the district court did not abuse its discretion in denying the
motion for mistrial because there was no showing of substantial prejudice to the
defendant's right to a fair trial. 248 Kan. at 381.

More recently, in State v. Betancourt, 299 Kan. 131, 322 P.3d 353 (2014), a
potential juror, during voir dire, disclosed that she had heard that the murder case was
gang related. Prior to voir dire, the district court had granted a motion in limine
precluding any evidence of gang membership during the trial. The defendant moved for a
mistrial based on a violation of the order in limine and because the jury panel was
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allegedly tainted. The district court denied the motion for mistrial. Citing cases from
other jurisdictions dealing with prospective jurors' prejudicial comments during voir dire,
we held that the district court did not abuse its discretion in denying the motion for
mistrial because there was no prejudice to the other jury members. 299 Kan. at 146. We
reasoned:

"[T]he juror mentioned gang involvement only in passing, and the topic was not brought
up again. The defense did not ask for permission to conduct an examination of the jury
for prejudice and did not request an instruction directing the jury to disregard unsworn
statements by jury members. Furthermore, the defense did not seek to strike the juror in
question for cause." 299 Kan. at 146.

On the other side of the argument, Moore points to State v. Yurk, 230 Kan. 516,
638 P.2d 921 (1982). There, during the course of an aggravated robbery trial, a juror read
a newspaper article, which revealed that Yurk had three prior convictions related to
larcenous activities. The juror initially stated that his ability to be fair and impartial
would be affected by the newspaper article, explaining "'the main thing that bothered me
were the other charges that had been filed against the man and the convictions.'" 230 Kan.
at 520. However, under further questioning by the trial judge, the juror stated he could
render a fair decision, prompting the trial court to deny the defense motion for mistrial
and to proceed with the trial. The Yurk majority found that the district court erred in
denying the mistrial and continuing the trial because the single juror involved admitted
that he was adversely influenced by the knowledge of defendant's prior convictions, and
the juror's subsequent assurances of fairness could not protect the defendant's right to a
fair trial. 230 Kan. at 523-24.

The Yurk court was concerned with the impartiality of a single juror who
improperly read forbidden and prejudicial information about defendant's prior
convictions during the course of the trial and admitted that the information bothered him.
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Here, we have no evidence that the impartiality of any sitting juror was actually
prejudiced. Rather, Moore surmises that the actual jurors might have been adversely
affected by overhearing the comments of an excused potential juror, notwithstanding the
total absence of any direct statements of such influence. In other words, our circumstance
more closely resembles that in McCorgary, Mayberry, and Betancourt, where we found
the respective jury pool was not tainted by a venireperson's prejudicial comment and,
consequently, no abuse of discretion in the district court's denial of a mistrial.

In this case, the district court noted that no one in the jury pool appeared to agree
with C.W.'s comments and that no one expressed any similar personal safety concerns
when asked if there was anything the parties or court should know about. Pointedly,
Moore's counsel did not request an individual polling of the jury pool to investigate the
existence of any prejudice. In short, there is no evidence of record indicating that the jury
pool was, in fact, prejudiced by C.W.'s comments. Therefore, we conclude that the
district court did not abuse its discretion in determining that C.W.'s comments did not
constitute a fundamental failure in the proceedings.

Notwithstanding the foregoing holding, we pause to note that the district court in
this case took the appropriate curative and mitigation measures to assure that Moore
suffered no injustice from C.W.'s remarks. Moore's assertion that United States v. Blitch,
622 F.3d 658 (7th Cir. 2010), required the district court to sua sponte poll the jury pool is
unavailing because of the factual distinction that the persons expressing personal safety
fears in Blitch actually sat as jurors in the case. Our circumstance is more analogous to
that in United States v. Small, 423 F.3d 1164 (10th Cir. 2005), where a venireperson
expressed doubt as to his impartiality because of safety concerns based on the number of
marshals present in the courtroom. The district court denied a defense motion for mistrial,
but explained to the jury pool that the number of marshals was due to the number of
defendants, not to concerns about potential violence. The Small Court upheld the denial
15



of defense counsel's mistrial motion, finding that "[a]ny prejudice that may have resulted
from the statement of the venireperson was adequately addressed by the district court's
explanation of the presence of the marshals in the courtroom." 423 F.3d at 1180. Here,
the district court adequately explained the use of the jury questionnaires.

In short, we find that the district court did not abuse its discretion in denying
Moore's motion for mistrial.

MOTION TO SUPPRESS LINEUP IDENTIFICATION NOT PRESERVED

Moore next argues the district court violated his due process rights when the court
denied his motion to suppress evidence of Brandon's lineup identification of Moore. He
also asserts that Brandon's subsequent identifications of Moore should have been
suppressed because of the lineup procedure utilized by the police.

Standard of Review

Moore argues that because the district court did not make factual findings when
denying his motion to suppress, our standard of review is de novo. But we review a
challenge to an eyewitness identification as a due process issue involving mixed
questions of fact and law. We apply a substantial competent evidence standard to the
district court's factual findings and review de novo the legal conclusion drawn from those
facts. State v. Cruz, 297 Kan. 1048, 1058-59, 307 P.3d 199 (2013) (citing State v.
Corbett, 281 Kan. 294, 304, 130 P.3d 1179 [2006]). The district court's lack of factual
findings does not alter our standard of review. See State v. Neighbors, 299 Kan. 234, 240,
328 P.3d 1081 (2014) (holding Court of Appeals erroneously applied de novo review for
motion to suppress evidence under the Fourth Amendment when district court had not
made factual findings).
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Moore's issue is not preserved for review.

A district court employs a two-step process to determine whether an eyewitness
identification is admissible evidence: "The first step examines whether the police
procedure used to obtain the original out-of-court identification was unnecessarily
suggestive. If so, the analysis moves to the second step of considering whether there was
a substantial likelihood of misidentification under the totality of the circumstances."
Cruz, 297 Kan. 1048, Syl. ¶ 2. Here, the district court found "that lineup was not
unnecessarily suggestive" and denied the motion to suppress. Moore argues the police
actions during the photo lineup procedure were highly suggestive, and the district court
erred in finding otherwise. Furthermore, he argues the procedure led to a substantial
likelihood of misidentification.

The State argues that Moore's lineup suppression issue is not properly before this
court because Moore did not object when the State sought to admit the six-person lineup
from which Brandon identified Moore into evidence. The State also points out that Moore
did not object to any of the testimony about the lineup identification. Furthermore, Moore
did not object to any of the testimony regarding Brandon's subsequent identifications.

K.S.A. 60-404 provides that a verdict will not be set aside "by reason of the
erroneous admission of evidence unless there appears of record objection to the evidence
timely interposed and so stated as to make clear the specific ground of objection."
Pursuant to this statute, "evidentiary errors shall not be reviewed on appeal unless a party
has lodged a timely and specific objection to the alleged error at trial." State v. King, 288
Kan. 333, 349, 204 P.3d 589 (2009); see also State v. Godfrey, No. 109,086, 2015 WL
3439127, at *2 (Kan. 2015) ("Without a contemporaneous objection, [defendant's] claim
17



is being asserted for the first time on appeal and is subject to the general rule that alleged
constitutional violations cannot be raised for the first time on appeal.").

Despite this general rule, Moore argues two exceptions allow us to consider his
constitutional issue for the first time on appeal. See State v. Dukes, 290 Kan. 485, 488,
231 P.3d 558 (2010) (listing three exceptions to the general rule that a constitutional issue
will not be heard for the first time on appeal). Moore first argues that his issue involves
only a question of law arising on proved or admitted facts and is determinative of his
case. But Moore's argument is premised upon contested facts. For example, in support of
his motion to suppress, Moore relied upon Brandon's preliminary hearing testimony.
There, Brandon testified that the police told him that they had located the second suspect
but just needed Brandon to confirm they had the right person and further that the police
showed him an individual photograph of Moore. But at the hearing on Moore's motion to
suppress, the State proffered that the officer who prepared the six-person lineup would
testify that he did not tell Brandon that the suspect was in the six-person lineup and that
the only photographs he showed Brandon were those contained in the six-person lineup.
Therefore, the exception for an issue involving only a question of law does not apply.

Moore additionally argues this court should apply an exception because
consideration of his claim is necessary to prevent the denial of a fundamental right. Since
King, however, we have applied the timely and specific objection requirement even in
cases where an evidentiary claim involved a defendant's constitutional rights. See State v.
Shadden, 290 Kan. 803, 840-41, 235 P.3d 436 (2010). We have held that if we were to
overlook the lack of objection in such circumstances, "these and other caselaw exceptions
would soon swallow the general statutory rule." State v. Richmond, 289 Kan. 419, 429-
30, 212 P.3d 165 (2009).

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Given that Moore failed to preserve his challenge to the lineup identification, we
decline to consider the issue for the first time on appeal.

FAILURE TO DISCLOSE EVIDENCE

Next, we consider Moore's contention that the district court erred when it denied
his motion for mistrial and motion for new trial. Both arguments are based upon
Brandon's changed testimony at trial regarding his whereabouts when the shootings
started. Moore argues that the prosecution may have known about Brandon's changed
recollection before trial and, therefore, a Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963), violation may have occurred. Moore argues that had the
prosecutor informed him of Brandon's changed recollection, he would have been able to
investigate Brandon's evolving stories, including interviewing his fellow inmates. Moore
claims these interviews would have led to information counsel received after the trial in
letters from inmates asserting that Brandon told the inmates he did not know who
committed the murders.

Under K.S.A. 22-3423(1)(c), a district court may declare a mistrial if prejudicial
conduct, inside or outside the courtroom, makes it impossible for the trial court to
proceed without injustice to the prosecution or defense. And under K.S.A. 2014 Supp.
22-3501, a district court may grant a new trial to the defendant "if required in the interest
of justice."

Standard of Review

We review a district court's decision denying a motion for mistrial for an abuse of
discretion. Armstrong, 299 Kan. at 442. Likewise, we review a trial court's ruling on a
motion for new trial for an abuse of discretion. State v. Warrior, 294 Kan. 484, 505, 277
19



P.3d 1111 (2012). A district court abuses its discretion if its decision is (1) arbitrary,
fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
Waller, 299 Kan. at 722.

Additionally, Moore's arguments in support of his motion for mistrial and motion
for new trial are premised upon the prosecution committing a Brady violation. We have
held that "a trial court's determination as to the existence of a Brady violation is reviewed
de novo with deference to a trial court's findings of fact, but the trial court's denial of the
defendant's motion for new trial is reviewed under an abuse of discretion standard."
Warrior, 294 Kan. at 510.

Analysis

Moore argues that the trial court erred in denying both his motion for mistrial and
motion for new trial because "it appears that a Brady violation may have occurred." In
Brady, the United States Supreme Court held that "prosecutors have a positive duty to
disclose evidence favorable to the accused when 'the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.'" Warrior,
294 Kan. at 505-06 (quoting Brady, 373 U.S. 87). Favorable evidence includes both
exculpatory and impeachment evidence. Warrior, 294 Kan. at 506 (citing Strickler v.
Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286 [1999]).

Moore argues that the State failed to notify the defense about Brandon's changed
recollection of his whereabouts when the shooting started. As this case progressed,
Brandon related at least three different accounts of the event. He initially told the police
that he was walking to the drug house when people started shooting at him. Later that
day, Brandon related that he was in the bathroom when he heard gunshots. At the
preliminary hearing, Brandon again recalled that he was in the bathroom when he heard
20



the gunshots. But at trial, Brandon testified that he was in the living room when the
shooting started. When Moore's defense counsel asked Brandon if he had told anyone at
the police department about his changed recollection, Brandon testified that he had told
the prosecutor in February, approximately 8 months before trial.

Three essential elements are required to establish a Brady violation: "(1) The
evidence at issue must be favorable to the accused, either because it is exculpatory, or
because it is impeaching; (2) that evidence must have been suppressed by the State, either
willfully or inadvertently; and (3) the evidence must be material so as to establish
prejudice." Warrior, 294 Kan. 484, Syl. ¶ 10. Under element one, the evidence at issue
was impeaching because the eyewitness' trial testimony varied from his pretrial accounts.
Nevertheless, Moore's argument fails under the remaining elements of a Brady claim.
As to whether the State suppressed the evidence of Brandon's changed testimony,
Moore argues that "[a]t a minimum, the [district] court should have conducted a hearing
to determine whether the state was aware of Brandon's [] new story before trial." But as
the State points out, the district court considered this issue before ruling on the motion for
mistrial. In arguing the motion, defense counsel candidly told the district court that the
attorney did not believe Brandon had previously told the prosecutor about the changed
testimony. In turn, the prosecutor also informed the trial court, "[O]bviously I didn't
know he was going to testify that way," pointing to her opening statement, where she
referenced Brandon's pretrial version of his whereabouts when the shootings started. In
denying the motion, the district court found, "I would give your motion more
consideration if there'd been a statement given where he changed the story back in
February . . . and the State had a statement and never turned it over to you." In other
words, the district court found that the State did not have the evidence prior to trial, and,
therefore, the State could not have suppressed it, and Moore has failed to meet the second
element.
21




Furthermore, under element three, the evidence was not material. In Warrior, this
court held that the third element is evaluated under the reasonable probability test, which
asks: "[D]oes the evidence put the whole case in such a different light as to undermine
confidence in the verdict?" 294 Kan. at 511. Although not using this verbiage, the district
court stated, "[Q]uite frankly, I think the third or fourth version that he's given of the
story might help your client." Moreover, defense counsel extensively cross-examined
Brandon about this inconsistency in his account, providing another avenue of defense for
Moore. Accordingly, Brandon's last account of his whereabouts when the shootings
began did not put this case in such a different light as to undermine confidence in the
verdict.
Given Moore's inability to establish the elements of a Brady violation, the district
court obviously did not abuse its discretion in denying the motions for mistrial and new
trial which were based solely on Brady.
CHAIN OF CUSTODY
Moore next claims that the district court should not have admitted the evidence
relating to the Glock handgun because the State failed to establish a proper chain of
custody between its discovery in the air duct of the house where Moore was located and
the evidence repository in Kansas City, Kansas. Moore argues that the State failed to
show with a reasonable certainty that the Glock had not been materially altered after it
was collected by the Kansas City, Missouri, police. More specifically, he argues that no
evidence established how the Glock "was collected, who did it, whether it was packaged,
what it was packed or stored with, or where it was stored after it was taken from the
house in Kansas City, Missouri and before the Kansas City, Kansas police picked it up."

22



Standard of Review

"A district judge's determination of whether there is a reasonable certainty that a
piece of evidence has not been materially altered is reviewed for abuse of discretion."
State v. Frierson, 298 Kan. 1005, 1016, 319 P.3d 515 (2014).

Analysis

State v. Horton, 283 Kan. 44, 62, 151 P.3d 9 (2007), sets forth the relevant legal
standard for chain of custody issues:
"A party offering an object into evidence must show with reasonable certainty
that the object has not been materially altered since the object was taken into custody.
However, the party is not required to keep the object under lock and key or continuously
sealed up. The test for chain of custody is a reasonable certainty that the object has not
been materially altered. Any deficiency in the chain of custody goes to the weight of the
evidence rather than its admissibility."
Here, Moore's argument on admissibility suffers from a lack of evidentiary
support; the record shows that the State met its evidentiary burden. Before the Glock was
admitted into evidence, Officer Dion Dundovich of the Kansas City, Kansas, police
department testified that he participated in the search of the Kansas City, Missouri, home
where the Glock was found. Dundovich explained that guns and drugs, including the
Glock in question, were found in an air duct in the house. Although another detective
discovered the Glock, Dundovich testified that the handgun was in substantially the same
condition as when it was recovered from the air duct. Dundovich testified that the Kansas
City, Missouri, crime scene unit initially had custody of the Glock and took it to that
department's property room.
23



After the Glock was admitted into evidence, Detective Darren Koberlein testified
that he picked up the Glock from the Kansas City, Missouri, property room and brought it
to the Kansas City, Kansas, property room. Further, Dundovich testified that he then
transported the Glock from the Kansas City, Kansas, property room to the KBI. And
finally, the KBI forensic scientist and firearm's expert both testified to examining the
Glock recovered from the Missouri house.
Notwithstanding that part of the testimony came after the trial court had admitted
the Glock into evidence, the record convinces us that the State proved to a "reasonable
certainty that the object ha[d] not been materially altered" after its initial discovery.
Horton, 283 Kan. at 62. Accordingly, any deficiency in the chain of custody goes to the
weight of the evidence, not its admissibility. We find no abuse of discretion.
EYEWITNESS IDENTIFICATION INSTRUCTION
Moore also argues the district court erred when it instructed the jury to consider
the degree of certainty demonstrated by Brandon at the time of his identification of
Moore, as a factor of the reliability or accuracy of the identification.

Standard of Review

Because Moore did not object to the instruction he now challenges, this court
applies the clearly erroneous rule. State v. Clay, 300 Kan. 401, 410, 329 P.3d 484 (2014).

"To determine whether a given instruction was clearly erroneous, we first determine
whether the instruction was erroneous. This is a legal question subject to de novo review.
If we find error, we then determine whether reversal is required. Reversal is required only
if we are firmly convinced the jury would have reached a different verdict absent the
error. We have unlimited review over the reversibility determination and, in conducting
that review, we examine the entire record as a whole. The defendant bears the burden of
24



establishing clear error under K.S.A. 22-3414(3). State v. Williams, 295 Kan. 506, 515-
16, 286 P.3d 195 (2012)." State v. Dobbs, 297 Kan. 1225, 1237, 308 P.3d 1258 (2013).

Analysis

The challenged instruction was modeled after PIK Crim. 3d 52.20 and stated:

"The law places the burden upon the State to identify the defendants. The law
does not require the defendant to prove he has been wrongly identified. In weighing the
reliability of eyewitness identification testimony, you first should determine whether any
of the following factors existed and, if so, the extent to which they would affect accuracy
of identification by an eyewitness. Factors you may consider are:

"1. The opportunity a witness had to observe. This includes any physical condition which
could affect the ability of the witness to observe, the length of the time of observation,
and any limitations on observation like an obstruction or poor lighting;
"2. The emotional state of the witness at the time, including that which might be caused
by the use of a weapon or a threat of violence;
"3. Whether the witness had observed the defendant on earlier occasions;
"4. Whether a significant amount of time elapsed between the crime charged and any
later identification;
"5. Whether the witness ever failed to identify the defendant or made any inconsistent
identification;
"6. The degree of certainty demonstrated by the witness at the time of any identification
of the accused; and
"7. Whether there are any other circumstances that may have affected the accuracy of the
eyewitness identification." (Emphasis added.)

In State v. Mitchell, 294 Kan. 469, 481, 275 P.3d 905 (2012), we reaffirmed that a
trial court is required to issue a cautionary instruction when an eyewitness' identification
testimony is critical to the prosecution's case. Nevertheless, we also held that including
the degree of certainty factor in the instruction is erroneous because the factor "prompts
25



the jury to conclude that an eyewitness identification is more reliable when the witness
expresses greater certainty." 294 Kan. at 481; see also Cruz, 297 Kan. at 1068 ("[A] trial
court errs by instructing the jury on the reliability of eyewitness identification by using
PIK Crim. 3d 52.20 without omitting the degree of certainty factor."). The State concedes
that it was error to instruct the jury on this factor.

Because there was error, we must next determine if the error requires reversal of
Moore's convictions. Moore did not object; therefore, he "faces the high burden of
convincing us that the inclusion of the degree of certainty factor in the eyewitness
identification cautionary instruction was clearly erroneous, i.e., that we are firmly
convinced that the jury would have reached a different verdict had the instruction not
included the erroneous language." Cruz, 297 Kan. at 1068; see Williams, 295 Kan. 506,
Syl. ¶ 5.
Regardless of whether a defendant objects to the degree of certainty factor error,
we employ the same initial questions: "(1) Was the identification crucial to the State's
case? and (2) Was there an opinion of certainty stated?" Cruz, 297 Kan. at 1068 (citing
Marshall, 294 Kan. at 867-68). In Moore's case, the answer to both initial questions is
"yes."
With regard to the first question, the State concedes Brandon's identification was
crucial to its case. Brandon was the only witness who placed Moore at the crime scene.
Granted, the State presented some physical evidence linking Moore to the crime scene
through the Glock, albeit the forensic scientist testified that the DNA profile from the
Glock was "pretty common." Brandon's identification of Moore was obviously critical to
the State's case. See Marshall, 294 Kan. at 868 (noting that the State's cases "rested
almost entirely on" the identification, although footprint evidence appearing to match the
defendant's shoes also linked him to the crime scene).

26



With regard to the second question, we agree with Moore that certainty evidence
was submitted to the jury. During cross-examination, while trying to detract from the
reliability of Brandon's identification of Moore, Moore's counsel evoked certainty
evidence. Brandon admitted to seeing a color photograph of Moore before he was shown
a six-person lineup. Brandon further testified that he was shown a second lineup
containing a more recent photo of Moore. Brandon indicated that when he saw the first
lineup containing Moore's photo, he told the police "that the person looks like the person
that was in the house" but with a different hairstyle. He explained that he "want[ed] to say
it is that person, but if you can get me a picture that actually shows what the person looks
like, I'll be able to be better off to clarify my decision." On cross-examination, Brandon
admitted that he was not "for sure" that the person in the lineup was the man from the
crime scene until he saw a more recent picture. Later in the cross-examination, Brandon
again indicated that before he saw a more recent picture of Moore, he "was positive, but
[he] just couldn't say yeah, that's the person and been wrong or something." In short, the
witness in this case opined on his certainty of identification.

The State argues that Moore invited the error by eliciting the certainty testimony
during cross-examination of the State's witness. But impeaching the credibility of a
State's witness is an essential function of defense counsel; it is not an invitation for the
court to give an erroneous jury instruction.

But an affirmative answer to both initial questions does not end our inquiry. Cruz,
297 Kan. at 1069 (citing Marshall, 294 Kan. at 868). We must next "consider the impact
of the jury instruction in light of the entire record and additional considerations."
Marshall, 294 Kan. at 868. "This particular review requires consideration of procedural
safeguards and the total amount of inculpatory evidence." Briseno, 299 Kan. at 886. With
regard to procedural safeguards, we have explained:

27



"Those safeguards include, but are not limited to, [1] the defendant's
constitutional right to confront the witnesses against him or her; [2] the defendant's
constitutional right to effective assistance of counsel '"who can expose the flaws in the
eyewitness' testimony during cross-examination and focus the jury's attention on the
fallibility of such testimony during opening and closing arguments"'; [3] eyewitness-
specific jury instructions that '"warn the jury to take care in appraising identification
evidence"'; and [4] the constitutional requirement that the State prove every element of
the crime beyond a reasonable doubt. Marshall, 294 Kan. at 868-69 (quoting Perry v.
New Hampshire, 565 U.S. ____, 132 S. Ct. 716, 728-29, 181 L. Ed. 2d 694 [2012])."
Dobbs, 297 Kan. at 1238-39.

The other procedural safeguards present in Cruz and Marshall included "a
rigorous cross-examination of the identifying witness and a closing argument that
'methodically reminded the jury of all the inconsistencies.'" Cruz, 297 Kan. at 1069
(discussing Marshall). Both were present here. Defense counsel's cross-examination
elicited the following testimony: Brandon's identification was made through a crack in a
bedroom door while Brandon was aiming his weapon at the suspect; Brandon had never
seen Moore prior to the events in question; Brandon saw a color photo of Moore before
he identified Moore in the lineup; and Brandon was uncertain about his identification
until he was shown a more recent photo.

During closing argument, defense counsel discussed the inconsistencies in
Brandon's testimony as well as the factors detracting from the accuracy of Brandon's
identification. Defense counsel stressed that Brandon only saw the suspect through a
crack in the door while trying to aim his weapon. He also reiterated that Brandon did not
know Moore before the events in question. Finally, defense counsel reminded the jury
that Moore was presumed innocent and argued that the State had not met its burden of
proving him guilty beyond a reasonable doubt.

28



Moreover, as in Cruz and Marshall, although Brandon's identification of Moore
was the strongest evidence linking Moore to the crime, it was not the State's only
evidence. Cruz, 297 Kan. at 1069-70; Marshall, 294 Kan. at 870. Police found the Glock
in the house where Moore and Warren were apprehended, two cartridges fired from the
Glock were found under Charles' body, and DNA samples taken from the Glock were
consistent with Moore's DNA profile.

Accordingly, we are "not firmly convinced that, if the eyewitness identification
cautionary instruction had not included the direction to consider degree of certainty in
determining the reliability of the identification, the jury would have reached a different
verdict, i.e., declined to convict him." Cruz, 297 Kan. at 1070. Consequently, the
instruction was not clearly erroneous.

CUMULATIVE ERROR

Alternatively, Moore argues that pursuant to the cumulative error doctrine he is
entitled to a new trial. Even if an individual error is insufficient to support a reversal, the
cumulative effect of multiple errors may be so great as to require the reversal of a
defendant's conviction. State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).

Above, we agreed with one of Moore's assertions of error—the district court erred
in instructing the jury to consider the degree of certainty in the eyewitness identification
cautionary instruction. We rejected each of Moore's remaining claims. One error does not
constitute cumulative error. State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).
Therefore, Moore has not established the applicability of the cumulative error doctrine.

29



SENTENCING ISSUES

Finally, Moore raises two sentencing issues. First, he asks us to vacate his hard 50
life sentence, arguing that K.S.A. 21-4635, the hard 50 statute in effect at the time of his
sentencing, is unconstitutional because it denies a defendant his or her Sixth Amendment
right to have a jury decide, beyond a reasonable doubt, all of the facts necessary to
increase the penalty for first-degree murder. Second, Moore argues, and the State
concedes, that the district court erred by ordering lifetime postrelease supervision, instead
of parole. See K.S.A. 22-3717(b); State v. Clay, 300 Kan. 401, 418, 329 P.3d 484 (2014)
(offenders sentenced for certain off-grid crimes subject to parole, not postrelease
supervision).

Because we hold that Moore's sentence was imposed in violation of his
constitutional right to a jury trial and that such error was not harmless, we vacate his hard
50 sentence and remand for resentencing. That holding renders moot the remaining claim
of sentencing error, which can be corrected on resentencing. See State v. Salary, 301
Kan. 586, 608-09, 343 P.3d 1165 (2015) (declining to address additional sentencing issue
as moot, once hard 50 sentence vacated for violating United States Constitution).

Standard of Review

Determining a statute's constitutionality is a question of law subject to unlimited
review. State v. Soto, 299 Kan. 102, Syl. ¶ 8, 322 P.3d 334 (2014).

Analysis

At the time of Moore's conviction, K.S.A. 21-4635 set forth a procedure whereby
the State could seek enhancement of the minimum sentence for premeditated first-degree
30



murder to 50 years before the convict is parole eligible. As a prerequisite to the enhanced
sentence, the State had to prove and the sentencing court had to find the existence of one
or more statutorily enumerated aggravating factors. K.S.A. 21-4635. In this case, the
district court found that Moore knowingly or purposely killed or created a great risk of
death to more than one person, K.S.A. 21-4636(b); that Moore committed the crime for
the purpose of receiving money or other things of monetary value, K.S.A. 21-4636(c);
and that Moore authorized or used another person to commit the crime, because a third
person drove the getaway car, K.S.A. 21-4636(d).

The statutory scheme then required the district court to determine whether there
were any mitigating circumstances present and, if so, whether they outweighed the
aggravating factors. K.S.A. 21-4635(d).

At the sentencing hearing, Moore's counsel opposed the hard 50 sentence, arguing
that there was insufficient evidence supporting each of the three aggravating factors.
With regard to killing or creating a great risk of death to more than one person, Moore's
counsel argued no evidence established that Moore brought a gun into the house or that
he shot anyone. With regard to committing the crime for himself or others for the purpose
of receiving money or other things of monetary value, Moore's counsel argued there was
no evidence that any cash, drugs, guns, or ammunition were taken from the crime scene.
With regard to authorizing or using another person to commit the crime, Moore's counsel
argued that Brandon's testimony regarding a third person driving the getaway vehicle did
not show the existence of the aggravating circumstance with the degree of specificity
required to impose an enhanced sentence. Moore's counsel did not argue any mitigating
circumstances to weigh against the State's allegation of aggravating circumstances, albeit
the district court determined that Moore's young age and his lack of criminal history
constituted mitigating circumstances.

31



Ultimately, the district court imposed a hard 50 life sentence for the premeditated
first-degree murder conviction. The court found the existence of each of the aggravating
circumstances alleged by the State and determined that the mitigating circumstances did
not outweigh the aggravators.

In Soto, which was issued after Moore filed his brief in this case, we determined
that Kansas' hard 50 sentencing statute was unconstitutional pursuant to the United State's
Supreme Court's ruling in Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 2160-
63, 186 L. Ed. 2d 314 (2013). Soto, 299 Kan. at 124. Alleyne held that a person's right to
a jury trial under the Sixth Amendment to the United States Constitution requires that any
fact increasing a mandatory minimum sentence for a crime must be proved to a jury
beyond a reasonable doubt. Given that our hard 50 procedure allowed a judge to find the
existence of one or more aggravating factors, instead of requiring a jury to find those
factors beyond a reasonable doubt, that procedure was unconstitutional as violative of the
Sixth Amendment. Soto, 299 Kan. at 124. The same unconstitutional procedure was used
in this case, i.e., the sentencing judge, not the jury, made the specific factual findings of
aggravating circumstances and did the balancing against mitigating circumstances that
resulted in an increased mandatory minimum sentence for Moore.

The State has acknowledged Soto's holding; but it relies upon Soto's statement that
"only in a rare instance could a hard 50/Alleyne error be harmless," to argue that Moore's
sentence represents that rare instance. See 299 Kan. at 127. Granted, Soto did describe a
harmless error test that would require the appellate court to find, beyond a reasonable
doubt, that (1) the uncontroverted and overwhelming evidence supported the aggravating
circumstance such that the jury would have found the existence of the aggravating
circumstance beyond a reasonable doubt; and (2) "that no rational jury would have
32



determined that any mitigating circumstances outweighed any aggravating
circumstances." Soto, 299 Kan. at 126-27.
Nevertheless, Soto declined to definitively decide whether a hard 50/Alleyne error
could ever be harmless because even assuming the applicability of a harmlessness
analysis, the error in Soto's case did "not come close to meeting that test." 299 Kan. at
126. Specifically, Soto opined that even if overwhelming and uncontroverted evidence
established the existence of an aggravating factor, this court could not conclude beyond a
reasonable doubt "that no rational jury would have determined that the mitigating
circumstance outweighed the aggravating circumstance." 299 Kan. at 127; see also State
v. Hilt, 299 Kan. 176, 205, 322 P.3d 367 (2014) (assuming without deciding that
harmlessness applies but concluding case did not present "one of the rare instances when
a hard 50 Alleyne error can be declared harmless"). Likewise, the case before us does not
justify our presuming to read the collective mind of a hypothetical jury to find, beyond a
reasonable doubt, that it would have determined that mitigating circumstances did not
outweigh aggravating factors. In other words, this is not one of the rare cases to which
Soto alluded.

The State contends that this case is different because Moore failed to present any
evidence of mitigating factors at the sentencing hearing so no weighing was necessary.
But as we noted, the district court engaged in a balancing of the aggravators against the
mitigators, which it determined to be Moore's young age and his lack of criminal history.
Evidence of those mitigators was contained in the presentence investigation report (PSI),
i.e., the record contains evidence of mitigating factors. A jury would have been free to
consider those factors as well, and we continue to avoid predicting the result of that
consideration.

33



In conclusion, we hold that the sentencing scheme under which Moore was
sentenced was unconstitutional, and we decline to declare that such unconstitutionality
was harmless in this case. Moore's hard 50 sentence is vacated, and the matter is
remanded for resentencing.

Convictions affirmed, hard 50 life sentence vacated, and case remanded for
resentencing.