State v. Sampson

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,535

STATE OF KANSAS,
Appellee,

v.

JOHN SAMPSON,
Appellant.


SYLLABUS BY THE COURT

1.
Because of the danger of enhancing a testifying law enforcement officer's
credibility with the jury, a trial court has no discretion to allow a testifying law
enforcement officer to sit at the prosecution table during a jury trial.

2.
A trial court's decision regarding the sequestration of witnesses is discretionary.
The trial court also has discretion to make exceptions for certain witnesses to remain in
the courtroom even if a sequestration order is in place.

3.
While a trial court has no discretion to allow a testifying law enforcement officer
to sit at the prosecution table during trial, a trial court does have discretion to lift a
sequestration order and permit a testifying law enforcement officer to remain in the
courtroom.

2



4.
When a trial court exercises its discretion regarding the sequestration of witnesses,
the defendant bears the initial burden to demonstrate prejudice at the trial level. If an
appellate court finds the trial court abused its discretion, the burden then shifts to the
State to demonstrate a lack of prejudice.

5.
Under our federal and state constitutions, a defendant is entitled to present his or
her theory of defense, and the exclusion of evidence that is an integral part of that theory
violates the defendant's fundamental right to a fair trial. But the defendant's right to
present a defense remains subject to statutory rules and caselaw interpretation of the rules
of evidence and procedure.

6.
Whether the trial court complied with specific statutory requirements for
excluding evidence requires interpretation of a statute, which an appellate court reviews
de novo. Similarly, whether an evidentiary ruling violated the defendant's constitutional
rights is reviewed de novo.

7.
The admissibility of evidence for the purpose of impeaching a witness' credibility
is governed by K.S.A. 60-420, K.S.A. 60-421, and K.S.A. 60-422.

8
K.S.A. 60-421 provides that a nondefendant witness' prior conviction is admissible
only if the conviction is for a crime involving dishonesty or false statements. K.S.A. 60-
421 contains no exception for admission of a nondefendant witness' prior convictions for
crimes other than crimes involving dishonesty or false statements.
3




9.
Evidence of a prior conviction to prove the character trait of engaging in criminal
activity is inadmissible under K.S.A. 60-422(d) because a prior conviction is evidence of
a specific instance of conduct.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed May 3, 2013.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

MORITZ, J.: In this appeal of his convictions for first-degree felony murder,
aggravated robbery, and aggravated burglary, John Sampson contends the trial court
violated his right to a fair trial when it granted his motion to sequester witnesses but
allowed a testifying law enforcement officer to remain in the courtroom and at the
prosecution table throughout trial. Sampson also claims the trial court violated his right to
present his theory of defense by refusing to allow defense counsel to introduce evidence
of an accomplice's prior felony conviction.

We conclude the trial court abused the discretion recognized in our caselaw as it
existed at the time of trial when it permitted a testifying law enforcement officer to sit at
the prosecution's table during trial. Additionally, because of the likelihood of this practice
enhancing the officer's credibility with the jury, we hold today that a trial court may not
4



permit a testifying law enforcement officer to sit at the prosecution's table during a jury
trial. Further, while we recognize that a trial court retains discretion over decisions
regarding the sequestration of witnesses, including whether to permit a testifying law
enforcement officer to remain in the courtroom despite a sequestration order, we hold the
trial court abused its discretion in permitting a testifying law enforcement officer to
remain in the courtroom under the circumstances of this case. But because we conclude
the officer's presence at counsel table and in the courtroom did not prejudice Sampson,
we affirm his convictions.

Finally, we hold the trial court properly applied K.S.A. 60-421 and K.S.A. 60-422
in refusing to admit evidence of an accomplice's conviction. But we do not reach
Sampson's claim that evidence of the accomplice's prior conviction was admissible under
K.S.A. 60-446 or K.S.A. 60-447 because Sampson failed to preserve those arguments for
review.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of July 10, 2007, police officers responded to a residence in
Wichita to check on the welfare of Stanley Bloom. The officers found Bloom dead on the
floor of his bedroom, and it appeared his apartment had been ransacked. Bloom's autopsy
revealed he died from a gunshot wound and several blunt force injuries to his head.

In 2008, the State charged Sampson with first-degree premeditated murder, an
alternative count of first-degree felony murder, aggravated robbery, and aggravated
burglary. The following facts were developed at Sampson's trial.

Sometime before 1:30 a.m. on July 10, 2007, Sampson, Sampson's son Corey
Logan, and Sampson's girlfriend's son, Joey Smith, drove to Bloom's home. Sampson and
5



Logan believed Bloom had large amounts of cash and marijuana in his home, and they
planned to rob Bloom to pay off a debt Sampson owed to Jeremy Harris. Harris solicited
Sampson to commit the robbery, insisted that Sampson take Smith along, and supplied
Sampson with a .45 caliber gun.

According to Smith and Logan, Smith stayed in the truck while Logan and
Sampson broke into Bloom's home. According to Logan, Sampson shot Bloom and beat
him with a nightstick. Ultimately, the intruders left Bloom lying on his bedroom floor
with a fatal gunshot wound and blunt force injuries to his head. According to Smith,
Sampson returned to the truck with a .45 caliber pistol and Bloom's pellet gun, among
other items, and told Smith he shot someone.

When the men returned to Sampson's home, Sampson instructed Logan to clean
out the car, burn the clothing and shoes worn by the men during the robbery, and bury the
.45 caliber handgun and nightstick in the backyard. After changing his clothes, Sampson
returned to work and told Carol Smith, Sampson's girlfriend and coworker and Joey
Smith's mother, that he had killed someone. According to Carol, Sampson "looked pretty
stressed out," "[h]e was shaking," and "his face was white."

Detectives Thomas Fatkin and Blake Mumma interviewed Sampson twice in
November 2007. During the first interview, Sampson identified Logan, Joey Smith, and
Smith's brother, Kenny Smith, as the three men who robbed and killed Bloom. Sampson
claimed Jeremy Harris solicited those three men to commit the crimes. Sampson admitted
he disposed of a grill used by Logan to burn the men's clothing and told Logan to get rid
of the gun used in the murder. During the second interview, Sampson admitted he drove
Logan and Smith to commit the robbery at Jeremy Harris' request and that either Smith or
Logan had a gun, but Sampson claimed he remained in his truck while Logan and Smith
broke into Bloom's home and shot Bloom.
6




The jury found Sampson guilty of first-degree felony murder, aggravated burglary,
and aggravated robbery. The court imposed a controlling prison sentence of life with no
possibility of parole for 20 years plus 120 months. We have jurisdiction to hear
Sampson's direct criminal appeal under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum
sentence of life imprisonment imposed) and K.S.A. 2012 Supp. 22-3601(b)(4)
(conviction of off-grid crime).

THE TRIAL COURT ABUSED ITS DISCRETION BOTH BY ALLOWING DETECTIVE FATKIN TO
SIT AT THE PROSECUTION TABLE AND TO REMAIN IN THE COURTROOM DESPITE A
SEQUESTRATION ORDER.

Sampson claims the trial court violated his right to a fair trial and to an impartial
jury under the Sixth and Fourteenth Amendments to the United States Constitution and
Section 10 of the Kansas Constitution Bill of Rights when it allowed Detective Fatkin to
sit at the prosecution table throughout the trial. First, Sampson argues Fatkin's presence in
the courtroom violated the sequestration order and prejudiced Sampson because Fatkin
listened to other witnesses and tailored his testimony to explain inconsistencies in their
testimony. Second, Sampson argues Fatkin's presence at the prosecution table prejudiced
Sampson because it enhanced Fatkin's credibility with the jury.

The State contends the trial court did not abuse its discretion by allowing Fatkin to
remain in the courtroom despite the sequestration order or by allowing him to sit at the
prosecution table. The State further argues Sampson failed to raise any specific
allegations of prejudice at the trial court level. Alternatively, the State contends that even
if the trial court erred, Sampson was not prejudiced by that error and reversal is not
required.

7



Standard of Review

A trial court's decision whether to sequester witnesses is discretionary. State v.
Heath, 264 Kan. 557, 588-89, 957 P.2d 449 (1998). Further, the trial court has discretion
to permit certain witnesses to remain in the courtroom even if a sequestration order is in
place. See State v. Theus, 207 Kan. 571, 577, 485 P.2d 1327 (1971). Finally, our prior
caselaw suggests that the practice of allowing a testifying law enforcement officer to sit
at the prosecution table, while discouraged, is subject to the trial court's discretion. State
v. Kirkpatrick, 286 Kan. 329, 342-43, 184 P.3d 247 (2008). Accordingly, we review both
of Sampson's claims for an abuse of discretion. A judicial action is an abuse of discretion
if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or
(3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012).

Additional Facts Relevant to Our Discussion

The trial court granted Sampson's pretrial motion to exclude witnesses from the
courtroom during the examination of other witnesses. Not surprisingly, at trial, Sampson
challenged Detective Fatkin's presence at the prosecution table, pointing out that the State
anticipated that Fatkin would be testifying for the State. Citing the sequestration order,
Sampson argued Fatkin should not be permitted to hear other witnesses' testimony. The
prosecutor responded that given the large number of witnesses and the volume of
evidence, Fatkin would assist the prosecutor in presenting the case. Sampson's counsel
argued he already was outnumbered by the two prosecutors at the State's table and that in
light of the sequestration order, it was unfair to allow Fatkin to remain in the courtroom.
Sampson pointed out that if Fatkin were permitted to remain in the courtroom, he could
"offer explanations" if witnesses offered testimony inconsistent with their statements to
Fatkin.

8



In denying Sampson's objection and permitting Fatkin to remain at the prosecution
table "at least for right now," the trial court acknowledged that this court has discouraged
the practice of permitting testifying law enforcement witnesses to sit at counsel table.
Neverthless, the trial court reasoned that a case detective is generally more of a "fact
gatherer" than a typical fact witness and likened a case detective's function to that of a
legal assistant.

The jury heard testimony from several State witnesses before hearing from Fatkin
for the first time. Fatkin testified regarding his role as lead case detective for the
homicide investigation and described how the investigation unfolded from July 2007 to
October 2007. With several remarks, Fatkin tied his own testimony to that of witnesses
who previously had testified. For instance, Fatkin mentioned that Lieutenant Landwehr
"spoke to you the other day" and "explained to you a little bit the other day" about how
Fatkin became assigned the case. Fatkin further testified, "some of you have heard that
evidence has been submitted by Detective Fatkin. You might have heard my name
already."

During a recess after the next witness, Sampson's counsel renewed his objection to
Fatkin's presence in the courtroom and at the prosecution table. He pointed out that the
State would soon call witnesses who Fatkin had interviewed and suggested Fatkin's
presence in the courtroom would unfairly allow Fatkin to anticipate and prepare his
rebuttal testimony. Finally, defense counsel reiterated that he was working alone and that
the "extra help" Fatkin provided the State unfairly prejudiced the defense.

In denying Sampson's renewed objection, the trial court recognized that Fatkin had
violated the "spirit of the sequestration rule," stating:

9



"Well, I have to candidly admit I had a little more concern when Detective Fatkin
was on the stand than I did when we first argued the motion, because during his
testimony he referred, well, you have already heard or you heard from Detective
Landwehr. He is definitely tieing [sic] his testimony in to what other witnesses have said,
because he has all that knowledge because he has been in the courtroom, as opposed to, I
thought he might get up there and just more directly testify from his reports or notes or
his investigative kind of historical perspective of what he did in the case, as opposed to,
he is commenting on what is going on in the courtroom and what other witnesses have
said, which I think, quite frankly, is, violates the spirit of the sequestration rule."

At this point, the prosecutor interrupted, suggesting that Fatkin referenced the
testimony of other witnesses to avoid repeating their testimony. The trial court then
clarified that Fatkin had not commented on the credibility of other witnesses.
Nevertheless, the court expressed concern that by commenting on the testimony of other
witnesses, Fatkin emphasized their testimony to the jury. The court stated: "Whether that
is going to make it stick in their mind more because they have been reminded of it again
or not, I don't know, but I'm becoming increasingly uncomfortable with my previous
ruling."

The prosecutor then inquired of the court how Fatkin's presence would prejudice
the defense. The court responded:

"Well, the prejudice can be that his very presence in the courtroom and being
able to hear what these witnesses testify to, when you have already indicated you are
going to recall him later, and both sides being the adversaries that you are and trying to
present your case in the best possible light, you may have intended to call Detective
Fatkin for the balance of his investigation, but you may say, oh, by the way, so-and-so
testified this way and it could change your subsequent examination of the witness,
because he will have knowledge of their in-court testimony. Then he is in a position to
comment on it or refer to a report and say they didn't testify that way or they did or didn't.
10



"You can call him, and even though sequestered, you can refer to a report and
you can have him read the report and the jury may figure out it's inconsistent with the
witness's testimony, but he doesn't have that advantage or that knowledge of hearing it
himself in the courtroom.
"We all know the Constitution is designed to protect the individual rights,
defendant's rights, the defendant's liberty interest that is at stake here, and we know a
murder conviction is a life sentence. If we are going to err, we need to err on the side of
indication for the defendant's Constitutional rights."

Citing State v. Gant, 288 Kan. 76, 201 P.3d 673 (2009), the prosecutor urged the
court to exercise its discretion to allow the case detective to sit at the prosecution table.
The court recognized "that has been the practice in Sedgwick County," but also noted this
court's directive in State v. Kirkpatrick, 286 Kan. 329, 184 P.3d 247 (2008), that the
"better practice" is to discourage law enforcement witnesses from sitting at the
prosecution table. Despite the trial court's expressed concerns and its indication that it
would err on the side of the defendant, the trial court ultimately overruled Sampson's
renewed objection, thereby allowing Fatkin to sit at the prosecution table and remain in
the courtroom, and the State subsequently called Fatkin as a witness on three more
occasions before resting.

Fatkin's Presence at Counsel Table

On appeal, Sampson asserts Fatkin's presence at the prosecution table allowed the
detective to serve both as a witness and as a quasi-prosecutor, adding to Fatkin's
credibility with the jury. Sampson urges us to issue a "definitive ruling outlawing the
practice of allowing the case detective to serve as both a witness and a quasi-prosecutor."

11



As noted, our prior holdings on this issue have discouraged but permitted a
testifying law enforcement officer to sit at the prosecution table absent an abuse of
discretion. See Gant, 288 Kan. at 82; Kirkpatrick, 286 Kan. at 343.

In considering Sampson's request for a bright-line rule, we first pay heed to the
well-accepted rule prohibiting prosecutors from commenting on the credibility of their
own witnesses. See State v. Elnicki, 279 Kan. 47, Syl. ¶ 6, 105 P.3d 1222 (2005) ("A
prosecutor should not comment on the credibility of his or her own witnesses."); State v.
Pabst, 268 Kan. 501, 506, 996 P.2d 321 (2000) (citing the Kansas Rules of Professional
Conduct and the American Bar Association Standards of Criminal Justice and stating
"[o]ur rules of conduct clearly and unequivocally say that it is improper for a lawyer to
comment on a witness' credibility"). Sampson argues that when a testifying law
enforcement officer is permitted to remain at the prosecution table, the State implicitly
vouches for the credibility of that witness.

Based on this potential credibility boost, the defendant in Kirkpatrick argued the
trial court abused its discretion in allowing the lead case detective to sit at the prosecution
table over defendant's objection. Ultimately, the Kirkpatrick court held that "the better
practice . . . is to discourage law enforcement witnesses from sitting at the prosecutor's
table during a jury trial." 286 Kan. at 343. Nevertheless, the court declined to find an
abuse of discretion, concluding practical reasons justified the court's action in permitting
the detective to sit at counsel table in that case. 286 Kan. at 343-44.

But we acknowledged in Kirkpatrick that when a trial court permits a case
detective to sit at the prosecutor's table "abuse is still a possibility" because the practice
might enhance the detective's credibility. 286 Kan. at 343 (citing Lollis v. Superior Sales
Co., 224 Kan. 251, 264, 580 P.2d 423 [1978] ["There is always the danger that a jury will
12



be overly impressed by the testimony of a police officer who gives the impression of
being clothed with public authority."]).

This case exemplifies the danger we acknowledged in Kirkpatrick. Here, as the
jury looked on, Fatkin sat at the prosecution table, acted as a legal assistant, rose four
times from the table to testify, and returned four times to the table.

Despite the State's asserted practical reasons for allowing Fatkin to sit at counsel
table, Fatkin's presence at the table under the circumstances of this case simply created
too great an impression that he was "clothed with public authority," thereby improperly
enhancing his credibility with the jury. Under these circumstances, we conclude the trial
court abused its discretion by allowing Fatkin to sit at the prosecution table throughout
Sampson's trial.

Further, because of the likelihood of this practice enhancing a testifying law
enforcement officer's credibility with the jury in any given case, we hold that from today
forward, a trial court has no discretion to permit a testifying law enforcement officer to sit
at the prosecution table, regardless of the practical benefits of that practice to the
prosecution.

Sequestration Order

Our conclusion that a trial court has no discretion to permit a testifying law
enforcement officer to sit at the prosecution table does not end our analysis in this case.
That is because a trial court retains discretion to lift a sequestration order and permit a
testifying law enforcement officer to remain in the courtroom, albeit behind the bar.
Sampson contends the trial court abused that discretion by permitting Fatkin to remain in
the courtroom throughout the trial.
13




The primary purpose of sequestering witnesses is to prevent them from tailoring
their testimony to that of earlier witnesses. Heath, 264 Kan. at 589. When, as here, a
party seeks an exception from a sequestration order for a testifying law enforcement
officer based on the need to utilize the officer as an assistant at trial, the trial court should
consider a number of factors, including, but not limited to, the number of attorneys
prosecuting the case, the complexity of the case, how often the State plans to call the
officer to testify, and whether the State could present the same testimony through other
witnesses. See, e.g., United States v. Jackson, 60 F.3d 128, 133, 135 (2d Cir. 1995)
(interpreting Federal Rule of Evidence 615, which requires sequestration of witnesses at
defendant's request, but permits an exception for "a person whose presence is shown by a
party to be essential to the presentation of the party's cause" and setting forth various
factors to be considered in deciding whether to allow exemption, including the
significance of the testimony, the extent to which the testimony of the witness is likely to
encompass the same issues as that of other witnesses, and whether the witness' presence
is "'essential' rather than simply desirable"); Knight v. State, 746 So. 2d 423, 430 (Fla.
1998), cert. denied 528 U.S. 990 (1999) (citing Florida rule of evidence based on Rule
615 and affirming trial court's exemption to sequestration order for detective at death
penalty sentencing hearing where detective testified as fact witness but essentially
reported what other witnesses had testified to at trial, his testimony could be compared to
trial transcripts, and there was no potential that he or other witnesses would alter their
testimony based on his presence in the courtroom); State v. Edwards, 209 Kan. 696, 697-
98, 498 P.2d 53 (1972) (noting that detective did not testify during State's case-in-chief);
State v. Fields, 342 So. 2d 624, 628 (La. 1977) (affirming trial court's decision to allow
deputy sheriff to sit at prosecution table and assist prosecutor, but noting that deputy did
not actively participate in trial and was needed to confer with prosecutor concerning facts
as evidence unfolded at trial).

14



Here, our review of the substance of Fatkin's testimony convinces us the trial court
abused its discretion in permitting Fatkin to remain in the courtroom despite his violation
of the spirit of the sequestration order.

Fatkin first testified after several witnesses had already taken the stand. He
described how the investigation of this case unfolded from July 2007 through October
2007. During this portion of his testimony, Fatkin tied his testimony to the testimony of
other witnesses, referring to some witnesses by name, and, in one instance, pointing out
that the jury had already heard Fatkin's name mentioned by other witnesses.

Following Fatkin's initial testimony, Sampson renewed his objection to Fatkin's
presence in the courtroom. The trial court candidly expressed concern regarding Fatkin's
presence in the courtroom, recognizing that Fatkin had tied his testimony to that of other
witnesses. Significantly, the trial court specifically noted that Fatkin's comments
"violate[d] the spirit of the sequestration rule." Nevertheless, the trial court upheld its
prior ruling allowing Fatkin to remain in the courtroom and Fatkin testified three more
times. Significantly, before Fatkin testified for the third time, the jury heard testimony
from Sampson's alleged accomplice, Joey Smith, regarding his version of the events
surrounding the murder. The jury then heard Fatkin testify about his second interview
with Sampson wherein Sampson admitted his involvement in the robbery. Fatkin also
testified that he interviewed Smith and that Smith denied involvement in the robbery and
murder. The jury then heard testimony from Sampson's alleged accomplice, Corey
Logan, regarding his version of the events surrounding the murder. Finally, the State
called Fatkin as its last witness. During his final testimony, Fatkin testified about his
interview with Logan, reiterating some of the information he obtained during the
interview and essentially corroborating that Logan testified consistently with the
statements he had given to Fatkin during his investigation.

15



Based on the substance of Fatkin's testimony, we have no hesitancy in concluding
the trial court abused its discretion in allowing Fatkin to remain in the courtroom
throughout the trial despite the sequestration order and, more importantly, despite the
court's expressed acknowledgement that Fatkin was tying his testimony to that of other
witnesses.

Harmless Error Analysis

Next, we must determine whether the trial court's errors prejudiced Sampson, i.e.,
whether the errors were harmless. See Ward, 292 Kan. at 569-70; Heath, 264 Kan. at
590; Theus, 207 Kan. at 577. Sampson contends the trial court's error both in permitting
Fatkin to remain in the courtroom and in permitting him to sit at the prosecution table
implicated Sampson's constitutional rights.

The State does not dispute that this is a constitutional error. Instead, citing Gant,
the State contends Sampson has the burden to establish prejudice and that he failed to
meet that burden here as he makes no allegations of prejudice. See Gant, 288 Kan. at 82
("In the absence of any specific allegations of prejudice, Gant does not raise an issue
stating reversible error."); see also Heath, 264 Kan. at 589-90 (finding abuse of discretion
but noting that "the defendant failed to demonstrate that [the witness'] presence at trial
resulted in any tailoring of her testimony").

But we clarified in Ward, 292 Kan. at 567-69, that the party benefitting from a
constitutional error—here, the State—bears the burden of demonstrating that the error is
harmless. And under this standard, in order to find an error harmless we "must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict." 292 Kan. at
565.
16




Here, the trial court instructed the jury on aiding and abetting:

"A person who either before or during its commission intentionally aids or abets another
to commit a crime, with intent to promote or assist in its commission, is criminally
responsible for the crime committed, regardless of the extent of the defendant's
participation, if any, in the actual commission of the crime."

Significantly, Sampson's own statements, which came in through Fatkin, admitted
the elements of aiding and abetting a felony murder. Specifically, Sampson admitted
during his second police interview that he drove his car to Bloom's house, he knew his
accomplices planned to break in and rob Bloom, he knew at least one of his accomplices
had a gun, and that Sampson told Logan to destroy evidence.

Further, both of Sampson's accomplices—Logan and Smith—testified that
Sampson and Logan planned to rob Bloom, broke into Bloom's home, and took various
items from the home. Logan testified that Sampson had a .45 caliber gun, shot Bloom
during the robbery, beat him with a nightstick, and afterward, told Logan to destroy
evidence. Smith testified Sampson admitted that he shot someone immediately after the
robbery. Carol Smith, Sampson's girlfriend and coworker, testified Sampson returned to
work on the night of the murder appearing "stressed out" and shaking, and told her he had
shot someone.

Under these circumstances, we are persuaded beyond a reasonable doubt that the
trial court's errors in allowing Fatkin to sit at the prosecution table and to remain in the
courtroom despite the sequestration order did not impact the trial's outcome.

17



THE DISTRICT COURT PROPERLY EXCLUDED EVIDENCE OF SMITH'S PRIOR FELONY
CONVICTION.

Next, Sampson claims the trial court violated his fundamental right to present his
theory of defense by limiting his cross-examination of alleged accomplice Joey Smith.
Sampson argues that after Smith testified on direct examination that it was not like him to
get involved in robbing or killing someone, the trial court should have permitted
Sampson to present evidence that Smith had a prior felony conviction of criminal
discharge of a firearm at an occupied building. Sampson reasons that Smith's testimony
opened the door to admission of the prior conviction. Further, Sampson contends the trial
court's evidentiary ruling is contrary to K.S.A. 60-446 and K.S.A. 60-447, which govern
the admissibility of character evidence.

But the State contends the trial court properly excluded Smith's prior conviction
under K.S.A. 60-421 and K.S.A. 60-422, which govern the admissibility of evidence to
challenge a witness' credibility. Additionally, the State urges us to reject Sampson's
argument regarding the admissibility of the conviction under K.S.A. 60-446 and K.S.A.
60-447 because Sampson failed to make this argument in favor of exclusion of the
evidence below.

Under our federal and state constitutions, a defendant is entitled to present his or
her theory of defense, and the exclusion of evidence that is an integral part of that theory
violates the defendant's fundamental right to a fair trial. But the defendant's right to
present a defense remains subject to statutory rules and caselaw interpretation of the rules
of evidence and procedure. State v. Walters, 284 Kan. 1, 8, 159 P.3d 174 (2007); State v.
White, 279 Kan. 326, 331-32, 109 P.3d 1199 (2005).

Generally, the extent of cross-examination of a witness for impeachment purposes
lies within the sound discretion of the trial court. State v. Albright, 273 Kan. 811, 820, 46
18



P.3d 1167, cert. denied 537 U.S. 962 (2002). But here, the trial court specifically
excluded Smith's prior conviction under K.S.A. 60-421 and K.S.A. 60-422. Whether the
trial court complied with specific statutory requirements for excluding the evidence
requires interpretation of a statute, which we review de novo. Similarly, we review de
novo whether the trial court's evidentiary ruling violated the defendant's constitutional
rights. See White, 279 Kan. at 332.

On direct examination, Joey Smith testified that Sampson telephoned him on the
evening of July 9 and asked him to come over. Smith ultimately rode with Sampson and
Logan to Wichita and, en route, learned that Logan and Sampson planned to rob Bloom.
Smith testified he was "[p]retty much freaking out" while Sampson and Logan discussed
kicking in Bloom's door and taking his money. Regarding this plan, Smith claimed: "I
didn't want no part of that. It's not me."

During Smith's cross-examination, defense counsel questioned Smith as to what he
meant when he said, "It's not me." The following colloquy then occurred:

"Q. When you say that is not the kind of person that you are, what do you mean
by that?
"A. To get involved in something like this. That is not me.
"Q. Something like what?
"A. Killing somebody.
"Q. Well, okay. You have been involved in other similar type things, haven't you?
"A. Yes.
"[By prosecutor:] Objection, Your Honor.
"THE COURT: Counsel approach." (Emphasis added.)

Outside the jury's presence, the trial court read from K.S.A. 60-421 and cited an
unspecified rule of evidence regarding the admission of evidence of specific instances of
19



conduct to prove a character trait, presumably based on an immediately preceding off-
the-record bench conference. It appears from the record that Sampson claimed Smith
opened the door to the introduction of his prior conviction for discharging a firearm at an
occupied building by claiming he was not the kind of person to get involved in robbery or
murder.

Ultimately, the trial court refused to permit Sampson to introduce Smith's prior
conviction, concluding that K.S.A. 60-421 limits the admissibility of prior convictions for
impeachment purposes to convictions for crimes involving dishonesty or false statements.
Further, the trial court reasoned that K.S.A. 60-422(d) bars the admission of specific
instances of conduct relevant to prove a character trait.

Analysis

On appeal, Sampson argues Smith's prior conviction was admissible under K.S.A.
60-446 and K.S.A. 60-447 because Smith placed his character in issue by testifying that it
was not like him to get involved in robbing or killing someone. But as the State points
out, Sampson failed to seek admission of Smith's prior conviction under K.S.A. 60-446 or
K.S.A. 60-447; therefore, he failed to preserve this argument for review. See State v.
Richmond, 289 Kan. 419, 428, 212 P.3d 165 (2009) (citing K.S.A. 60-404 as interpreted
in State v. King, 288 Kan. 333, 349, 204 P.3d 585 [2009], and refusing to consider
admissibility of evidence under K.S.A. 60-447 when defendant failed to argue
applicability of that particular statute at district court level).

Instead, we consider whether the trial court properly applied the rules of evidence
considered below, K.S.A. 60-421 and K.S.A. 60-422. The admissibility of evidence for
the purpose of impeaching a witness' credibility is governed by K.S.A. 60-420, which
provides:
20




"Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting
the credibility of a witness, any party including the party calling the witness may examine
the witness and introduce extrinsic evidence concerning any conduct by him or her and
any other matter relevant upon the issues of credibility." (Emphasis added.)

K.S.A. 60-421 limits the admissibility of prior convictions for impeachment
purposes:

"Evidence of the conviction of a witness for a crime not involving dishonesty or
false statement shall be inadmissible for the purpose of impairing his or her credibility. If
the witness be the accused in a criminal proceeding, no evidence of his or her conviction
of a crime shall be admissible for the sole purpose of impairing his or her credibility
unless the witness has first introduced evidence admissible solely for the purpose of
supporting his or her credibility." (Emphasis added.)

K.S.A. 60-422 further limits the admissibility of evidence for impeachment
purposes and provides, in relevant part:

"As affecting the credibility of a witness . . . (c) evidence of traits of his or her
character other than honesty or veracity or their opposites, shall be inadmissible; (d)
evidence of specific instances of his or her conduct relevant only as tending to prove a
trait of his or her character, shall be inadmissible."

Citing K.S.A. 60-421 and K.S.A. 60-422, Sampson argues Smith "opened the
door" to the admission of his prior conviction by testifying on direct that he was not the
type of person to get involved in robbing or killing someone. In support, Sampson cites
State v. Johnson, 258 Kan. 475, 481, 905 P.2d 94 (1995), where this court held that
"when a defendant opens an otherwise inadmissible area of evidence during the
examination of witnesses, the prosecution may then present evidence in that formerly
21



forbidden sphere." (Emphasis added.) But Sampson's reliance on Johnson is misplaced as
it provides no authority for the proposition that when a nondefendant witness opens the
door to otherwise inadmissible evidence, the defense may then present evidence in "that
formerly forbidden sphere."

Because Smith was not the defendant, the first sentence of K.S.A. 60-421
permitted admission of his prior conviction only if it was for a crime involving
dishonesty or false statement. K.S.A. 60-421; State v. Laughlin, 216 Kan. 54, 55, 530
P.2d 1220 (1975). Sampson does not challenge the trial court's conclusion that Smith's
conviction of criminal discharge of a firearm at an occupied building was not such a
conviction. And unlike the second sentence of K.S.A. 60-421, which limits its application
to testimony of the accused, the first sentence of K.S.A. 60-421 contains no exception
admitting a nondefendant witness' prior conviction based on the introduction of evidence
to support that witness' credibility. K.S.A. 60-421; see State v. Harris, 215 Kan. 961, 963,
529 P.2d 101 (1974) (expressing that K.S.A. 60-421 recognizes only one exception for
the admission of a defendant's prior conviction, i.e., when the defendant has previously
introduced evidence admissible for the purpose of supporting his credibility). Under these
circumstances, we conclude the trial court properly excluded Smith's conviction under
K.S.A. 60-421.

The trial court also properly excluded Smith's conviction under K.S.A. 60-422.
Under section (d) of that statute, evidence of a prior conviction to prove the character trait
of engaging in criminal activity is inadmissible as a specific instance of conduct. See
K.S.A. 60-422; State v. Smallwood, 223 Kan. 320, 326-27, 574 P.2d 1361 (1978) ("Thus,
a witness' credibility may be attacked by showing the witness has character traits for
dishonesty or lack of veracity, but those traits may only be proven by opinion testimony
or evidence of reputation. Those traits may not be proven by specific instances of the
22



witness' past conduct."). Accordingly, the trial court properly excluded Smith's prior
conviction under K.S.A. 60-422.

Affirmed.