State v. Tague

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,176

STATE OF KANSAS,
Appellee,

v.

MISTY D. TAGUE,
Appellant.


SYLLABUS BY THE COURT


1.
When a party seeks to admit hearsay testimony but fails to assert the ground upon
which it would be admissible, the trial judge is not called upon to make the requisite
findings for its admission into evidence. Under these circumstances, the party seeking to
admit the evidence is precluded from asserting the ground for the first time on appeal as a
basis for error.

2.
A new legal theory for the admission of evidence may be considered for the first
time on appeal where consideration of the claim is necessary to serve the ends of justice
or to prevent the denial of fundamental rights. Such an issue does not arise if evidence,
even evidence that is an integral part of the defense theory, is properly excluded under
statutory rules and caselaw interpretation of the rules of evidence and procedure.

3.
A failure to support an argument with pertinent authority or to show why the
argument is sound despite a lack of supporting authority or in the face of contrary
2

authority is akin to failing to brief the issue. Therefore, an argument that is not supported
with pertinent authority is deemed waived and abandoned.

4.
The standard of review for the admission of photographic evidence requires an
appellate court to first determine whether the photographs are relevant. If a party argues
that the photographs are gruesome, inflammatory, prejudicial, or cumulative, the standard
of review is abuse of discretion. The burden of showing an abuse of discretion rests with
the party asserting the error.

5.
Photographic evidence, like other evidence offered at trial, is relevant and
generally admissible if the photographs have a reasonable tendency to prove a material
fact in the case. Although autopsy photographs may sometimes be gruesome, those that
assist a pathologist in explaining the cause of death are relevant and admissible.
Nevertheless, admitting gruesome photographs simply to inflame the minds of the jurors
is error, and the admission of unduly repetitious photographs can constitute an abuse of
discretion. The key, as with prejudice, is the word "unduly."

6.
A party who alleges error arising from a limitation of cross-examination by
excluding evidence not found to be sufficiently probative of a material issue carries the
burden of establishing an abuse of discretion.

7.
Pattern Instructions for Kansas Crim. 3d 54.05, which instructs the jury regarding
criminal responsibility for aiding and abetting the commission of a crime, clearly informs
the jury a defendant is only responsible for actions occurring before or during the
3

commission of a crime, not future events, and is not erroneous because it does not contain
a foreseeability requirement.

8.
An appellate court will not consider new issues raised for the first time in a letter
of additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49).

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed March 22, 2013.
Affirmed.

Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A.
Maughan, of the same firm, was with her on the brief for appellant.

David Lowden, chief attorney, appellate division, argued the cause, and Nola Tedesco Foulston,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Defendant Misty D. Tague appeals her jury trial convictions for
felony murder, in violation of K.S.A. 21-3401(b), and aggravated robbery, in violation of
K.S.A. 21-3427. She raises five issues in her brief and a sixth issue in a letter of
additional authority under Supreme Court Rule 6.09(b) (2012 Kan. Ct. R. Annot. 49).
The six issues are: (1) Did the trial judge err in excluding hearsay evidence relating to
eyewitnesses who were unable to identify Tague in a photographic lineup? (2) Did the
trial judge err in admitting Tague's out-of-court incriminating statements made to her best
friend? (3) Did the trial judge err in admitting certain autopsy photographs at trial? (4)
Did the trial judge abuse his discretion in not allowing defense counsel to cross-examine
Tague's best friend, who was a witness for the State, regarding the friend's involvement in
drug sales? (5) Did the trial judge err by giving an aiding and abetting instruction to the
jury? and (6) Did the trial judge err in failing to give lesser included offense instructions?
4


We conclude the first, second, and sixth issues were not properly preserved or
presented for review. Further, we hold that the trial judge did not abuse his discretion in
admitting the autopsy photographs or in excluding evidence regarding the witness'
involvement in drug sales. Finally, we conclude the trial judge did not err in giving the
pattern jury instruction regarding aiding and abetting the commission of a crime.
Consequently, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Tague's convictions stem from events that took place at a motel room in Sedgwick
County on October 25, 2007. Around 1:22 a.m., law enforcement received a 911 call
placed by a woman indicating her boyfriend had been shot. When officers arrived at the
motel room, there were two women, Starrie Cross and Alexis Green, and two men,
Michael Davidson and Titus Franklin, present. Franklin had been shot and was lying on
the floor, cradled in Green's arms. According to Green, a white male and a white female
knocked on the door and then pushed their way into the motel room. The male perpetrator
told the occupants to "get down" and demanded money. Shots were fired, and the
perpetrators rifled through dresser drawers and gathered money and drugs from the room.
When questioned at the scene, Green provided a physical description of the assailants.
Later, officers showed photo lineups to Green, who identified Tague and Leslie
"Country" Keith, Jr., as the perpetrators. Keith eventually confessed to committing the
crimes and initially told officers that Tague was his accomplice in the motel room. But at
trial, Keith changed his story and testified that another woman, named "Pepper," was his
partner in crime.

While interviewing Green at the crime scene, the law enforcement officers learned
that just before the shooting a Hispanic male identified by Green as "Javier" had knocked
on the door and had been allowed to come into the motel room. He was there to
5

participate in a drug transaction involving crack cocaine. Once inside, Javier told the
others that two people were standing outside by the soda machine. Before Javier could
leave, Tague and Keith entered the motel room. Green indicated that Javier was not
involved in the robbery.

After Tague and Keith left, Green realized her boyfriend, Franklin, had been shot
and called 911. Franklin was shot twice, once in the left thigh and once in the right
hip/buttock, and his injuries proved to be fatal. At trial, a criminologist and firearms
examiner testified that all the spent shell casings collected from the motel room were
fired from the same gun, consistent with a 9 mm. weapon.

Tague's best friend, Miranda Maupin, testified at trial for the State, over defense
counsel's objections, about statements Tague had made to her after the incident.
According to Maupin, Tague told her that "Country" shot somebody, that he was "in a lot
of trouble," and that he had left town. Maupin testified that Tague was "freaking out for a
long time." Tague told Maupin that "nobody had to die, that she didn't have anything to
do with it, and that Country was . . . trying to prove he was hard and he didn't have to do
that and she was really sad."

Testimony from other witnesses in the case indicated that Tague had told Maupin
more details than Maupin had provided during her trial testimony. During a telephone
conversation with a Sedgwick County Deputy Sheriff, Maupin told the deputy that Tague
had admitted to being involved in a homicide with three other individuals—"Country,"
Dominic Myers, and Tague's brother, Travis Tague. The deputy relayed this information
to the Wichita Police Department, which led Detective Thomas Fatkin to interview
Maupin. During this interview, Maupin said that Tague had told her she was with
"Country" when the murder and robbery took place. Travis and Myers went along but
stayed in the van. Tague told Maupin that she and "Country" went into a motel room with
6

guns pointed and the victim was shot by "Country" when the victim reached for a gun.
Maupin also told the detective the group used Myers' work van as the getaway vehicle.

Keith, a/k/a "Country," was the only witness for the defense. His original version
of events—relayed during his interrogation by Detective Fatkin—was consistent with the
version Tague conveyed to Maupin. Keith acknowledged during his trial testimony that
he had told Detective Fatkin that Tague, Travis, and Myers were involved in the crimes.
But at trial, Keith claimed that he implicated those three individuals because he thought
Tague told officers about Keith's involvement in the crimes. Keith testified that "[i]f
somebody was snitching on me I was taking them with me." Keith said he had been
motivated by revenge, but when he found out that Tague had not spoken to officers about
him, he told his lawyer that he had committed the crimes not with Tague, but with a
woman he only knew as "Pepper." He claimed Tague knew about the crimes only
because he told her about them. According to Keith, Pepper went to some dude and got a
van to use in the crimes. Keith admitted that both he and Pepper had guns at the motel; he
always carried a 9 mm. or .45 caliber gun, and Pepper carried a .380 caliber gun.

Detective Fatkin testified about his interrogation of Keith in the State's rebuttal.
Fatkin testified that Keith had described how he and Tague were armed with handguns,
waited outside by the soda machine, and observed a Hispanic man enter the motel room
before they pushed their way in. According to Keith's statements to the detective, his gun
was a 9 mm. and he thought Tague's was a 9 mm. gun as well. Keith told Fatkin that
when they entered the room, Tague pistol-whipped an older white male. This person
turned out to be Davidson, who had a "knot on his head" after the robbery and shooting.
Keith told Fatkin the robbery was planned by Myers and Travis, who had already been in
the motel room to purchase crack cocaine. Keith shot Franklin when he saw him pull out
a handgun.

7

A jury convicted Tague as charged. Subsequently, the sentencing court imposed a
life sentence without possibility of parole for 20 years for the felony-murder conviction.
The court imposed a consecutive sentence of 88 months' imprisonment for the underlying
aggravated robbery conviction. Tague brings a timely appeal. This court has jurisdiction
under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment
imposed). Additional facts will be discussed as necessary.

HEARSAY STATEMENTS FROM UNAVAILABLE EYEWITNESSES

Tague first argues that the trial judge erred in excluding hearsay evidence showing
that two eyewitnesses from the motel room, Cross and Davidson, had been unable to
identify Tague in a photographic lineup.

The State argues Tague failed to preserve this issue for review because defense
counsel failed to proffer a basis for the admissibility of the evidence after the State
objected on the grounds of hearsay. Accordingly, we must first determine whether the
issue was preserved for review and, if not, whether review would nevertheless be
appropriate.

Ordinarily, the party arguing for admission of evidence must provide the trial
judge with a specific basis for the admission so the judge has a chance to fully consider
whether the evidence should be admitted and to avoid any potential reversible error. State
v. Chanthaseng, 293 Kan. 140, 144, 261 P.3d 889 (2011). More specifically:

"When a party seeks to admit hearsay testimony but fails to assert the ground
upon which it would be admissible, the trial judge is not called upon to make the requisite
finding for its admission into evidence. Under these circumstances the defendant is
precluded from asserting the ground for the first time on appeal as a basis for error." State
v. Haislip, 237 Kan. 461, Syl. ¶ 5, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985).

8

At trial, Tague offered no hearsay exception for the admission of the evidence.
When defense counsel first asked Detective Fatkin if Cross or Davidson had been able to
identify Tague from the photographic lineup, the State objected on the basis of hearsay.
The trial judge asked if counsel had any arguments on the matter, to which defense
counsel queried, "Your Honor, may I try to rephrase the question?" With the judge's
permission, the questioning continued without defense counsel asking about Cross' or
Davidson's ability to identify Tague.

After the State's redirect examination of Detective Fatkin, defense counsel sought
permission to approach the bench and, outside the hearing of the jury, stated:

"I don't know quite how to phrase this, Your Honor, but before this witness is
excused my client is demanding that she talks to you because she disagrees with some of
the things I have done. And I can't get her to listen to me, frankly, and I don't know—I
don't want her to fly off the handle here in front of the jury."

The trial judge excused the jury, and defense counsel elaborated that Tague
"disagrees with the Court's decision that the failure of two of the witnesses to identify her
in the photo array, she disagrees that that should not be admitted." The judge said, "[I]t's
a hearsay issue and counsel hasn't set forth any basis. . . . Any basis for that to be
admitted?" Defense counsel did not respond with a specific hearsay exception. Instead,
the following colloquy took place:

"[DEFENSE COUNSEL]: Your Honor, it was Ms. Tague's opinion since it was
in the report and we were reviewing [the detective's] report then that should be allowed
because other information from there was let out, I'm not sure if it was the same nature
and quality.
"THE COURT: I'm sure you've explained to her just because it's in a report
doesn't mean it's admissible in a criminal case or any other kind of case."

9

The trial judge again repeated that there had to be an applicable hearsay exception
before the evidence could be admitted. After some additional comments, the judge stated
that "hearsay is [a rule] that applies to both parties. Anything else with regard to that
issue . . . ?" The prosecutor then indicated that no part of the statements of the two
eyewitnesses "has been entered since it's [sic] hearsay." For a final time, although
referring broadly to whether there were any additional issues to be presented, the judge
asked, "[I]s there anything else?" The judge then offered defense counsel time to speak to
Tague. When the record continued, there was no additional mention of the hearsay issue.

Essentially, the legal rulings made by the trial judge never advanced past the point
of the ruling that the line of questioning would call for the admission of hearsay.
Following that ruling, the trial judge provided defense counsel repeated opportunities to
proffer an exception that would allow the hearsay to be admitted, but defense counsel
never took advantage of that opportunity. Although Tague's comments might be viewed
as a proffer of an exception for the report itself, there was never any attempt to justify the
introduction of the double hearsay regarding the eyewitnesses' statements. As a result, the
trial judge was never presented with an opportunity to rule whether an exception allowed
the admissibility of the eyewitnesses' statements regarding the photographic lineup.

Significantly, on appeal, Tague does not take issue with the ruling that the
statements were hearsay. The question she presents on appeal—whether there was a valid
exception for the admission of the hearsay—was not preserved for our review.

Tague, however, argues we should apply an exception to the general rule that new
legal theories cannot be asserted for the first time on appeal. We have recognized only
three exceptions: (1) where the newly asserted claim involves only a question of law
arising on proved or admitted facts and is determinative of the case; (2) where
consideration of the claim is necessary to serve the ends of justice or to prevent the denial
of fundamental rights; or (3) where the trial judge is right for the wrong reason. State v.
10

McCullough, 293 Kan. 970, 998, 270 P.3d 1142 (2012); State v. Gomez, 290 Kan. 858,
862, 235 P.3d 1203 (2010). Tague relies on the second exception and contends she
should have been allowed to present the evidence because proof that she did not
participate in the crimes was an essential part of her defense and justice demands she be
allowed to exercise her right to present a defense.

Indeed, as Tague argues, a defendant has a right to present his or her theory of
defense, and improperly excluding evidence that is an integral part of that theory may
violate a defendant's constitutional right to a fair trial. Nevertheless, this right is not
unlimited, but is instead subject to statutory rules and caselaw interpretation of the rules
of evidence and procedure. State v. Houston, 289 Kan. 252, 261, 213 P.3d 728 (2009).

Here, Tague was allowed to present evidence that she did not participate in the
crimes through the testimony of Keith and by cross-examining witnesses in a manner
designed to show that someone else committed the crimes. Thus, she presented her theory
of defense to the jury. Furthermore, Tague failed to comply with statutory rules and
caselaw interpretation of the rules of evidence and procedure that required her to present
to the trial judge a legal theory—a hearsay exception—that supported the admission of
the evidence. As such, Tague has failed to establish that consideration of the issue of
whether hearsay evidence was admissible is necessary to serve the ends of justice or to
prevent the denial of a fundamental right.

Consequently, we do not reach the merits of this issue.

TAGUE'S OUT-OF-COURT STATEMENTS

Tague next asserts the trial judge erred in admitting evidence of out-of-court
statements made by Tague to her best friend Maupin. The trial judge found the statements
11

were admissible as declarations against interest—an exception to the rule against
admission of hearsay under K.S.A. 2007 Supp. 60-460(j).

During the State's direct examination of Maupin, defense counsel objected on the
basis of hearsay when Maupin began to testify about a conversation that she had with
Tague concerning what happened in the motel room. The State argued the evidence was
admissible as a declaration against interest. Defense counsel indicated a foundation had
to be laid, stating, "I believe the standards are that the considerations must be made as to
the circumstances of the statement to whom the statement was made, the condition and
trustworthiness of the declarant." The trial judge excused the jury and heard additional
arguments, during which defense counsel stated, "I don't disagree it's a statement against
interest, but there does have to be a foundation laid before it can be admitted."

On appeal, Tague cites no authority to support her argument that the conditions
and trustworthiness of the declarant must be established before evidence can be admitted
under the exception in K.S.A. 2007 Supp. 60-460(j) regarding declarations against
interest. A failure to support an argument with pertinent authority or to show why the
argument is sound despite a lack of supporting authority or in the face of contrary
authority is akin to failing to brief the issue. Therefore, an argument that is not supported
with pertinent authority is deemed waived and abandoned. State v. Berriozabal, 291 Kan.
568, 594, 243 P.3d 352 (2010); see Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R.
Annot. 38) (appellant's brief must include "the arguments and authorities relied on"
[Emphasis added.]).

Consequently, we do not reach the merits of Tague's argument.




12

AUTOPSY PHOTOGRAPHS

Tague argues the trial judge abused his discretion in admitting gruesome and
repetitious autopsy photographs of the victim's body. She contends the photographs were
offered solely to prejudice the defendant and create sympathy for the victim. Tague
characterizes these photographs as "depicting medical care and instruments, bodily
organs pierced with instruments, bloody clothing, and other depictions of autopsy."

We have recently summarized our standard of review for this issue and the
relevant caselaw, stating:

"'The standard of review for the admission of photographic evidence requires the
appellate court to first determine whether the photos are relevant. If a party argued that
the photographs are overly repetitious, gruesome, or inflammatory, that is to say,
prejudicial, the standard of review is abuse of discretion.' [Citation omitted.]
"This court also reviews a question of whether evidence is cumulative for an
abuse of discretion. [Citation omitted.]
. . . .
"The burden of showing an abuse of discretion rests with the party asserting the
error. [Citation omitted.]
"Photographic evidence, like other evidence offered at trial, is relevant and
generally admissible if the photographs have a reasonable tendency to prove a material
fact in the case. [Citation omitted.] Although they may sometimes be gruesome, autopsy
photographs that assist a pathologist in explaining the cause of death are relevant and
admissible. [Citations omitted.] However, admitting gruesome photographs simply to
'"inflame the minds of the members of the jury"' is error. [Citation omitted.] We have also
often said that admission of unduly repetitious photographs can constitute an abuse of
discretion. [Citation omitted.] The key, as with prejudice, is the word unduly. [Citation
omitted.] The admission of photographs in a murder case has rarely been held to be an
abuse of discretion. [Citation omitted.]" State v. Rodriguez, 295 Kan. 1146, 1156-57, 289
P.3d 85 (2012).

13

Before we apply this standard of review and caselaw to Tague's arguments, we
note that Tague has not preserved her argument regarding all of the photographs she
discusses in her brief. She takes issue on appeal with the admission of seven photographs,
admitted as State's Exhibits 5A, 5P, 5T, 5U, 5V, 5Y, and 5Z. Yet, at trial, defense counsel
indicated that the defense had no objection to Exhibit 5A. Therefore, the issue of that
photograph's admission was not preserved for appeal. See K.S.A. 60-404; State v.
Sappington, 285 Kan. 176, 195, 169 P.3d 1107 (2007).

Tague did object to the six other photographs, which were taken during the
autopsy of the victim and admitted during the coroner's testimony. Prior to their
admission, the trial judge conducted a hearing outside the presence of the jury to
determine admissibility. During this hearing, defense counsel objected to the photographs
as inflammatory, unnecessary, gruesome, and more prejudicial than probative. The trial
judge examined all the photographs and noted that some of the photographs depicted the
victim's body and wounds but noted "there is no particular significant blood shown."
Nevertheless, the trial judge indicated that three photographs, 5T, 5U, and 5V, caused
some concern because they depicted internal organs. Because of this concern, the judge
entertained a voir dire examination of the coroner concerning the photographs.

The coroner testified that photographs 5U and 5T showed the "inferior vena cava,
which is the largest vein in the body," and the "gunshot injury to the vein." Photograph
5V showed "the injury from the gunshot wound to the right common iliac artery." The
coroner then explained that the "injury to these vessels . . . is essentially the fatal wound
for the decedent." The trial judge also asked the coroner about photograph 5Y, which
depicted the victim's kidney after it had been removed from the body. The coroner
testified that the photograph showed that "the projectile did penetrate the kidney."

The trial judge admitted the photographs after concluding:

14

"[N]one of these photographs distort the actual premise for which they are offered, they
do not appear to me to have been introduced for the primary purpose of inflaming the
passions of the jury. I don't find them to be particularly gruesome and they do not appear
to be unduly repetitious or cumulative in any way. They do appear to me to depict the
victim and his clothing from different angles and different aspects. Frankly, don't see any
basis to exclude any of the photographs, so . . . I will over the objection of defense admit
State's Exhibit[s] 5B through 5Z . . . ."

Following this ruling, the coroner used the photographs to explain the injuries and
the reason the injuries caused death, and each of the six photographs was offered to
support a different aspect of the coroner's testimony. The photographs were not overly
repetitious and were not more gruesome than necessary for the relevant purposes.
Therefore, we conclude the trial judge did not abuse his discretion in admitting the
autopsy photographs.

CROSS-EXAMINATION REGARDING WITNESS' DRUG SALES

Next, Tague contends the trial judge impermissibly limited defense counsel's
cross-examination of Maupin when he sustained the State's objections to any questions
about Maupin's involvement with the sale of drugs. She argues that the trial judge's ruling
prevented a full and complete assessment of Maupin's credibility and, specifically, her
ability to perceive events, in violation of Tague's right of confrontation under the Sixth
Amendment to the United States Constitution.

This issue arose during the cross-examination of Maupin when defense counsel
attacked her credibility by eliciting testimony about the effect of drug use on her
cognitive abilities. Defense counsel established that both women were regularly using
drugs during the time period Tague spoke with Maupin about the motel robbery and
shooting. When asked "which" drugs Maupin was using, she said, "Everything." Maupin
15

testified that her ability to fully understand conversations was dependent on how many
consecutive days she had been awake.

On redirect examination, Maupin testified that she was pregnant at the time she
spoke with Detective Fatkin about Tague's statements and was generally not using drugs,
although she admitted to having a "couple" of relapses. On recross-examination, Maupin
clarified that she was frequently using drugs during the time Tague told her about the
motel crimes, but she was not using drugs at the time she was talking to Detective Fatkin.
Defense counsel then asked, "Were you involved in drugs at all, buying or selling during
that time?" The State objected on the basis of relevance and also argued that the question
went beyond the scope of the State's redirect examination.

The trial judge heard arguments on the matter. During this hearing, defense
counsel explained that he was attempting to impeach Maupin's credibility:

"The relevance is that I want to know . . . how active she was in the drug area at
the time because that's going to . . . affect . . . whether we can trust her when she says she
wasn't using during the time she was pregnant. And as far as it being beyond the scope of
direct [sic], it's still within . . . the parameters of the drug usage and I'm trying to get to
usage, not necessarily the sale, but I want to find out what contact she had with that
culture during that time to help the jury determine what part of her testimony can be
trusted." (Emphasis added.)

The State then argued, "I don't know how you're going to find that out by asking if
[she] sold or bought drugs." The trial judge ruled that Maupin's use of drugs could be
explored, but not the sale of drugs: The judge recognized that "the use of drugs . . .
would certainly go to her ability to perceive and memory, those kinds of things, but I'm
not compelled to see where anything with regard to the sale of drugs would be."

16

On appeal, Tague quotes State v. Scott, 39 Kan. App. 2d 49, 56, 177 P.3d 972
(2008), for its statement that "'[t]he cross-examiner should have wide latitude in
establishing partiality, bias, motive or interest.'" She contends that given the "link
between sale and use for narcotics users," if Maupin had admitted to selling drugs, such
testimony "may" have led to "further information regarding use or abuse of drugs during
the time of perception or the time she communicated such statements to law enforcement.
. . . As such, the statements should be admissible in attacking the perception of the
witness at the time of the event."

In making this argument, Tague, as the person alleging error, carries the burden of
establishing that the trial judge abused his discretion in limiting the cross-examination by
excluding evidence he did not deem sufficiently probative of a material issue. See
Rodriguez, 295 Kan. at 1156 (burden of proof rests with party asserting error); State v.
Reid, 286 Kan. 494, 508, 186 P.3d 713 (2008) (probative element of relevance reviewed
under an abuse of discretion standard); State v. Corbett, 281 Kan. 294, 307-08, 130 P.3d
1179 (2006) (trial judge's decision to limit cross-examination reviewed under abuse of
discretion standard). A judicial action constitutes 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). In both the determination of whether a trial judge erred in weighing the
probative value of evidence and in limiting cross-examination, the applicable standard for
an abuse of discretion is whether the judicial action is arbitrary, fanciful, or unreasonable
i.e., no reasonable person would take the view adopted by the judge. See Ward, 292 Kan.
541, Syl. ¶ 3; Berriozabal, 291 Kan. at 586 (question of whether evidence is probative);
Corbett, 281 Kan. at 307-08 (cross-examination).

In this case, the trial judge recognized Tague's right to impeach Maupin and, in
fact, allowed her to do so by questioning Maupin about her drug use. See State v. Belote,
213 Kan. 291, Syl. ¶ 4, 516 P.2d 159 (1973) (evidence of drug use may be admissible for
17

impeachment where witness was under the influence of drugs at the time of the events or
the witness' mind, memory, or powers of observation were affected by the habit). The
judge drew a line, however, at evidence that the judge did not deem probative. Before us,
Tague has presented an argument that, at best, establishes an extremely tenuous link
between the question asked and possible impeachment evidence. Reasonable people
would agree with the trial judge that the evidence lacked sufficient probative value to be
admitted. Consequently, Tague has failed to meet her burden of establishing that the trial
judge's ruling was arbitrary, fanciful, or unreasonable.

AIDING AND ABETTING JURY INSTRUCTION

Tague also argues the trial judge erred by giving Instruction No. 7, an aiding and
abetting instruction, which was based on PIK Crim. 3d 54.05 and stated:

"A person who, either before or during its commission, intentionally aids, abets,
counsels and/or procures 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."

Tague's argument has two primary contentions. She first claims the aiding and
abetting instruction should not have been given because the jury could have been
confused by it and convicted Tague based on her knowledge of events after they occurred
rather than based on evidence of her participation in the crimes. Second, she claims the
aiding and abetting instruction impermissibly lessened the State's burden of proof
because it contained no foreseeability requirement. Tague contends that Franklin's death
had to be a foreseeable result of the motel robbery before she could be convicted of
felony murder.

18

In State v. Plummer, 295 Kan. 156, 283 P.3d 202 (2012), this court established the
analytical framework for instructional issues with corresponding standards of review. We
stated:

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." Plummer, 295 Kan.
156, Syl. ¶ 1.

Jury Confusion Issue

Regarding the first step of whether an issue of jury confusion was properly
preserved, the parties in this appeal take differing views. Tague's appellate counsel
focuses on an objection made during the preliminary phase of the jury instructions
conference. At that point, defense counsel argued that the aiding and abetting instruction
would be "confusing" because "[s]ome of the testimony indicated that perhaps [Tague]
learned about the crime after the fact and that she didn't report it and . . . maybe [the jury
would think] . . . this would require a finding of guilt." The trial judge observed that the
instruction accurately stated the law and noted that defense counsel "would certainly be
able to point out to the jury it says a person who [acted] either before or during its
commission." (Emphasis added.) Defense counsel agreed that the plain language of the
instruction required consideration of behavior before or during the crime but did not want
19

the jury "to be confused." Clearly, at this point, an objection was made to the confusing
nature of the instruction.

Nevertheless, the State focuses on a later exchange, after the trial judge prepared
the final jury instructions, during which the State argues defense counsel "let the matter
drop" by failing to "lodge an objection to the final form of the instruction." This
contention is not persuasive in light of the record, however. The trial judge, after
providing the parties with the final version of the instructions and verdict forms,
acknowledged the parties' previous objections to the jury instructions and stated, "I want
to make sure there's nothing else anybody has with regard to each page of the instructions
and the two verdict forms." (Emphasis added.) This exchange suggested the judge was
seeking additional objections or arguments pertaining to the final version of the jury
instructions. Under those circumstances, it was not necessary for defense counsel to
repeat the objections in order to preserve them for appeal.

Having concluded the objection was adequately made, we next consider whether
the aiding and abetting instruction was legally appropriate. In doing so, we exercise de
novo review. See Plummer, 295 Kan. 156, Syl. ¶ 1.

Tague contends that, while the instruction accurately and correctly stated the law,
the instruction was inappropriate because "defendant's general knowledge of the event
could be misconstrued as intentionally aiding and abetting during the offense." Tague
does not explain how the jury could have possibly been confused, however. As Tague
acknowledges, the aiding and abetting instruction accurately focused on the defendant's
behavior before and during the crimes, not on knowledge gained after the fact or even the
subsequent failure to report the crimes. This court presumes the jury followed the
instructions given. See State v. Mitchell, 294 Kan. 469, 482, 275 P.3d 905 (2012).
Nothing in the record suggests the jurors did not follow the instructions in reaching the
verdict.
20


Further, the evidence supported an aiding and abetting instruction. Tague's
arguments regarding jury confusion assume that she did not participate in the crimes and
was not at the scene. But the State's evidence, primarily through the testimony of Green
who was present in the motel room during the crimes, Maupin, and law enforcement
officers, supported the State's theory that Tague was present at the motel room and
actively participated in the robbery. The trial judge did not err in rejecting Tague's jury
confusion argument and in giving the aiding and abetting instruction.

Foreseeability Requirement

Turning to Tague's next argument regarding the jury instruction, we return to the
four steps of analysis set forth in Plummer. Regarding the preservation issue, there is no
dispute that Tague never raised the foreseeability issue before the trial judge. In State v.
Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012), which was decided shortly after
Plummer, we recognized that the clearly erroneous standard of K.S.A. 22-3414(3) applies
if there was not a specific objection to the instruction during the trial. See State v.
Ellmaker, 289 Kan. at 1138-39 (under K.S.A. 22-3414[3], if at trial a party did not state
the specific objection raised on appeal but rather a different objection, a clearly erroneous
standard of review applies).

In Williams, we observed that our past caselaw tended to blend or conflate the
determinations of appellate reviewability, error on the merits, and reversibility of the
error. Williams established the following framework when a jury instruction is claimed to
be clearly erroneous: (1) Utilizing the unlimited review applied to legal questions, the
reviewing court first determines whether the instruction or the failure to give the
instruction was erroneous; and (2) if error is found, the court must review the entire
record to make a de novo determination of whether it is firmly convinced that the jury
21

would have reached a different verdict had the instruction error not occurred. Williams,
295 Kan. at 515-16.

We, therefore, begin our analysis of the foreseeability issue by applying an
unlimited standard of review to the question whether it was error at all to omit a
foreseeability requirement from the instruction. We conclude it was not because this
court rejected the same argument under nearly identical circumstances in State v.
Gleason, 277 Kan. 624, 638, 88 P.3d 218 (2004) (victim's death does not have to be
foreseeable result of burglary or other inherently dangerous felony in order for defendant
to be convicted of felony murder, and thus aiding and abetting instruction was not
required to include foreseeability requirement). Tague fails to present any persuasive
reasons for us to overturn Gleason.

Because the trial judge did not err in giving the aiding and abetting instruction as
written, there is no need to move on to a reversibility inquiry. See Williams, 295 Kan. at
515-16.

6. RULE 6.09 LESSER INCLUDED OFFENSE ARGUMENT

Finally, Tague submitted a letter of additional authority under Supreme Court Rule
6.09(b) (2012 Kan. Ct. R. Annot. 49) in which she asked the court to consider State v.
Berry, 292 Kan. 493, Syl. ¶ 6, 254 P.3d 1276 (2011), as authority supplementing her
"previously submitted brief as part of Section IV," which is the issue related to the scope
of the cross-examination of Maupin. This court granted the motion.

At oral argument, however, it became clear that Tague's appellate counsel was not
citing Berry in support of the issue regarding the cross-examination of Maupin. Rather,
Tague was raising an entirely new issue not stated in her brief—whether the trial court
erred in failing to give lesser included offense instructions on second-degree murder and
22

involuntary manslaughter. Consequently, at oral argument the court questioned whether a
Rule 6.09(b) letter was an appropriate vehicle for raising an entirely new issue on appeal.
Following oral argument, Tague filed a motion to construe her prior Rule 6.09(b) letter as
a supplemental brief or to permit supplemental briefing. Both her attempt to raise a new
issue through her Rule 6.09(b) letter and her belated attempt to file a supplemental brief
fail.

Rule 6.09(b) letters are reserved for citing significant relevant authorities not
previously cited which come to a party's attention after briefing. We have previously held
that an appellate court will not consider new issues raised for the first time in a party's
Rule 6.09(b) letter. See, e.g., State v. Houston, 289 Kan. 252, Syl. ¶ 13, 213 P.3d 728
(2009) ("[Rule 6.09] was not intended to be, nor should it be, used as yet another briefing
opportunity."). Our order allowing Tague to file her Rule 6.09(b) letter did not except this
case from that rule. Our consideration of the new issue is prohibited by Houston and
similar cases.

Further, while a supplemental brief may have been a more appropriate vehicle for
raising a new issue with the court, a motion to file a supplemental brief that is submitted
after oral arguments is not timely. See Supreme Court Rule 6.01 (2012 Kan. Ct. R.
Annot. 37). The motion is denied.

Consequently, we will not address the issue raised for the first time in Tague's
Rule 6.09(b) letter.

Affirmed.