IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 97,759
STATE OF KANSAS,
Appellee,
v.
RUBEN Y. WARLEDO,
Appellant.
SYLLABUS BY THE COURT
1. If a statement by an accused is made without interrogation or its functional equivalent, the statement may be admissible even if the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), were not given. Spontaneous, volunteered statements are admissible even when made after the accused is arrested and in custody.
2. Invoking the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by law enforcement officers. This rule has two aspects. First, the suspect must articulate a desire to have counsel present and must do so in a manner that is sufficiently clear so a reasonable law enforcement officer in the circumstances would understand the statement to be a request for an attorney. Second, the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings.
3. Issues not raised before the trial court cannot be raised on appeal. A recognized exception to that general rule applies when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Under the facts of this case, the exception does not apply to a claim of a violation of Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976).
4. Under the facts of this case, the admission of evidence regarding prior crimes and civil wrongs in violation of the requirements of K.S.A. 60-455 was harmless because it was not inconsistent with substantial justice, did not affect the defendant's substantial rights, and had no likelihood of changing the results at trial.
5. The admission of photographs in a homicide case is within the trial court's discretion. To determine whether the trial court abused its discretion in admitting the photographs, two questions must be resolved: (1) Were the photographs relevant, and (2) if the photographs were relevant, did the prejudicial nature of the photographs substantially outweigh their probative value?
6. When evaluating a prosecutorial misconduct claim, the two-step appellate analysis asks first whether the complained-of conduct was outside the considerable latitude given a prosecutor in discussing the evidence and, second, whether the remarks constitute plain error, that is, whether the statements prejudiced the defendant and denied him or her a fair trial. The second step requires three factors to be considered: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3) whether the evidence was so overwhelming that the misconduct was likely to have little weight in the minds of jurors. None of these factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967), are met.
7. On the facts of this case, no reversible prosecutorial misconduct occurred.
8. Under the identical offense sentencing doctrine, offenses are identical when they have the same elements. In order to determine whether the elements are identical for sentencing purposes, an appellate court must consider the statutory elements and that review is unlimited.
9. Premeditated first-degree murder and intentional second-degree murder are not identical and the identical offense sentencing doctrine does not apply.
10. Under K.S.A. 21-4635, when a defendant is convicted of premeditated first-degree murder, Kansas law provides that the sentencing court shall determine whether the defendant shall be required to serve a mandatory term of imprisonment of 50 years without eligibility for parole. The court is required to make the hard 50 sentencing determination after considering evidence of aggravating and mitigating circumstances. If the sentencing court finds that one or more of the aggravating circumstances enumerated in K.S.A. 21-4636 exists and that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances, the defendant shall receive a hard 50 sentence.
11. In weighing aggravating and mitigating circumstances for the determination of whether to impose a hard 50 sentence, one aggravating circumstance can be so compelling as to outweigh several mitigating circumstances and vice versa.
12. The Kansas hard 50 sentencing scheme is constitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and its progeny because any judicial fact-finding relates to establishing the minimum sentence and does not expose a defendant to a higher maximum sentence than provided by the legislature.
13. Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant's conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative effect rule if the evidence is overwhelming against the defendant.
Appeal from Sedgwick district court; BENJAMIN L. BURGESS, judge. Opinion filed August 8, 2008. Affirmed.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause, and Jennifer E. Conkling, of the same office, was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LUCKERT, J.: Ruben Y. Warledo appeals from his convictions of arson and premeditated first-degree murder and his hard 50 life sentence for the murder conviction. Warledo raises a number of issues, including whether: (1) the trial court erred by admitting into evidence statements he made to authorities before he was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966); (2) the trial court erred by admitting into evidence a video of Warledo, by himself, in the interrogation room because (a) Warledo made an unequivocal request for counsel which should have been subsequently honored by the interrogating officers and (b) the jury was allowed to hear his request for counsel in the context of a murder investigation; (3) the trial court erred by admitting evidence of Warledo's prior crimes and civil wrongs in violation of K.S.A. 60-455; (4) the trial court abused its discretion by admitting gruesome photographs of the victim when the cause and method of death were not in dispute; (5) the prosecutor committed misconduct and deprived Warledo of a fair trial by misstating the law regarding premeditation during closing argument; (6) the trial court erred by imposing a hard 50 sentence in that the identical offense sentencing doctrine mandated a lesser penalty equal to that of intentional second-degree murder; (7) the trial court abused its discretion in weighing the aggravating and mitigating circumstances and concluding that a hard 50 sentence was warranted; (8) the hard 50 sentencing scheme is unconstitutional; and (9) cumulative errors denied Warledo a fair trial.
We reject Warledo's arguments and affirm his convictions and hard 50 life sentence.
Facts
It is undisputed that Warledo killed his mother, Marcia Squirrel, by repeatedly stomping on her as she was lying on the floor of her kitchen. He then set fire to her body. The primary issue for the jury to determine was whether Warledo premeditated the murder.
During the attack, Squirrel was apparently able to dial 911 on a cellular phone. Emergency dispatch received the call but never spoke directly with anyone. The emergency dispatch operator recorded the call, which captured the yelling of a man–later identified as Warledo–in the background. Also, for the first couple of minutes during the attack, Squirrel could be heard moaning. Stomping, pounding sounds emanated intermittently as Warledo yelled and ranted his hatred toward Squirrel, calling himself "Satan" and his mother "sick" and a "nasty whore." Sometimes Warledo would pause and then start stomping again. At one point after a pause, he said something to the effect, "'You want to live? You want to live? You're not gonna live. Die. Die. Die.'" Then, he stomped some more.
Warledo noticed that Squirrel was still moving, and he feared she would call the police. He knew he needed to get away, so he began emptying his closet and packing his clothes in his vehicle. Warledo then returned to the residence to "burn up the evidence." He poured lighter fluid over Squirrel's face and set her on fire.
While Warledo was committing the crimes, the dispatch operator was able to contact the cell phone provider, obtain a billing address for the telephone, and dispatch law enforcement officers to the address. When officers arrived they found Warledo standing outside, but he quickly went inside and slammed an interior door when the officers called his name. They then spotted Warledo running out an opposite door. Officers stopped Warledo, and he repeatedly told them to "check my mom." After he was handcuffed, the officers noticed smoke coming out of the house. When the fire was extinguished, officers found Squirrel dead on the kitchen floor.
Officers put Warledo, who had been drinking heavily throughout the day, inside the B.A.T. (breath alcohol testing) van while they searched the house. On the way to the van, Warledo stated, "'I killed my mom. I killed my mom because I'm evil.'" Then, Warledo lowered his voice, stepped toward one of the officers and said he "had to do it" to protect his family from the Bloods gang. After being placed in the van, Warledo began banging his head on the divider and yelling about spiders and snakes. Officers shackled him to keep him from further injuring himself.
Warledo was transported to an interrogation room at the Wichita Police Department. His feet were shackled and his hands were cuffed to the table. Warledo was then left alone in the room for 30 to 40 minutes. A video camera recorded the events inside the interrogation room, but the camera was not monitored during the recording process. Subsequent viewing of the video showed that, while alone, Warledo cried and muttered to himself. Towards the end of his wait, while still alone, Warledo loudly stated, "'I need to call a lawyer. Where's my lawyer?'"
Approximately 5 minutes later, Investigator David Higday from the Kansas State Fire Marshal's office, Detective Robert Chisholm, and another detective entered the interrogation room for the purpose of gathering and processing physical evidence from Warledo. They were unaware of Warledo's solitary statements regarding an attorney. Before Detective Chisholm could fully conduct introductions or could even explain to Warledo why they were there, Warldo started making statements like, "'I admitted what I did. I'll sign anything you want. I did it. I did it. I did it.'" Chisholm testified he told Warledo he did not want to talk to him about that right now. At one point Warledo asked Chisholm if his mother was dead, and the detective said, "Yes." Although Chisholm could not remember Warledo's specific response, the detective indicated his response was "very unemotional." The second detective, a female, left the room when it was time for Warledo to change his clothes.
Over the course of approximately 30 minutes, Investigator Higday took photographs of Warledo, gathered his clothing and shoes, and swabbed his extremities for samples. While the fire investigator was collecting evidence, Warledo repeated that he would "sign anything" because "he did it." Warledo also made statements about stomping on his mother and physically demonstrated the stomping motion with his feet. About 7 or 8 minutes into their time with Warledo, Higday wanted to ask him about the use of accelerants on the fire, so Warledo was verbally Mirandized. When asked, Warledo said he had used Kingsford lighter fluid.
After collecting the physical evidence, Chisholm and Higday left the interrogation room. Detective Chisholm then returned shortly thereafter to question Warledo about the events. First, the detective filled out a personal history sheet with Warledo. According to the detective, Warledo understood the questions and gave appropriate responses.
Upon completing Warledo's personal history, Detective Chisholm then Mirandized Warledo a second time by providing him with a written waiver, which Warledo read to the detective and signed. Warledo explained the chronology of what happened. He indicated he came home intoxicated and went in search of something to eat. Squirrel confronted him about his drinking and slapped him in the face. In response, Warledo struck his mother with enough force to knock her down. Warledo admitted he "flipped out" and started kicking and stomping his mother. He said he could not remember everything, but he remembered going outside to get the lighter fluid and bringing it back in the duplex. Warledo told detectives he did not remember setting the fire. But at another point Warledo said he lit the fire because "[t]hat's what you do . . . [to] burn up the evidence."
At trial, evidence was admitted regarding the cause of death. Forensic testing indicated that Squirrel was alive well into the attack, but her body was set on fire postmortem. The cause of death was blunt force trauma to the head and neck. Squirrel suffered approximately 7 blows to the face, 10 to the head, 1 to the neck, and 1 to the chest.
Based upon this evidence, a jury convicted Warledo of arson and premeditated first-degree murder. Before sentencing, the State presented a notice of intent to seek a hard 50 life sentence on the murder conviction by offering aggravating factors pursuant to K.S.A. 21-4636. Warledo objected to the constitutionality of the hard 50 statute on the basis that the sentencing court could not make a finding of aggravating circumstances under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
In addition, at the sentencing hearing, Warledo presented evidence that his mother had abused him, emotionally and physically. In addition, evidence established that Warledo suffered from depression, alcoholism, and drug abuse and had attempted suicide on several occasions, the most recent attempt occurring approximately 2 months before he killed his mother. After that attempt, Warledo was hospitalized in a psychiatric unit and was placed in alcohol and drug treatment for 6 weeks. As part of Warledo's treatment, he was to take medication for depression. Nevertheless, he stopped taking the medication, along with his diabetes medication, several days before the murder.
As a result of his mental illness, lack of medication, and alcohol use, Dr. William Albott, a psychologist, opined that Warledo suffered from a mental disease or defect on the night of the attack, as shown by his "psychotic behavior." In Dr. Albott's opinion, when Warledo attacked his mother he was acting in a psychotic rage in reaction to his mother, whom he perceived as a threat. It was also Dr. Albott's opinion that Warledo generally suffers from "major depression without manifest psychotic features."
After hearing this evidence, the sentencing court recognized that some level of mental or emotional "disturbance" existed and that Warledo's capacity to appreciate "the criminality of his conduct at the moment in time was substantially impaired." Recognizing the existence of this mitigating factor, the court also found that there was an aggravating factor. Specifically, the court found it significant that there were continuous acts of violence–continual stomping–which began before the killing and continued afterward. Moreover, the body was desecrated by fire, which the court found indicated a particular depravity of mind. The court also found the infliction of mental anguish or physical abuse before the victim's death. These factors, according to the sentencing court, supported the aggravating circumstance that the murder was especially heinous, atrocious, or cruel. Finding that the aggravating circumstance outweighed any mitigating circumstances, the court imposed the hard 50 sentence.
Warledo now appeals, raising the nine issues listed above. This court has jurisdiction over the appeal under K.S.A. 22-3601(b)(1) (life sentence; off-grid crime).
1. Miranda
First, Warledo contends the trial court erred by admitting into evidence his incriminating statements made to authorities in the interrogation room before he was verbally Mirandized. Warledo argues that the purpose behind Detective Chisholm's and Investigator Higday's presence in the room–the collection of physical evidence such as photographs, clothing, and swabs–was equivalent to police interrogation in that the authorities should have known their actions were likely to elicit an incriminating response from him. The specific statements with which Warledo takes issue are: "'I admitted what I did. I'll sign anything you want. I did it. I did it. I did it.'"
The issue of whether the statements were admissible was first raised when, prior to trial, the State filed a Jackson v. Denno motion to determine the voluntariness of Warledo's statements. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). At the hearing, the trial court found that the statements were admissible because Warledo voluntarily waived his rights under the Fifth Amendment to the United States Constitution, stating that "the oral Miranda [was] given, and before that's given, he's volunteering statements as to what he's done."
This ruling, and the procedure leading to it, frame our standard of review: When a trial court conducts a Jackson v. Denno hearing, determines a defendant's statements were freely, voluntarily, and knowingly given, and admits the statements into evidence at the trial, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and reviews the ultimate legal conclusion drawn from those facts de novo. In doing so, an appellate court does not reweigh evidence or assess the credibility of the witnesses but will give deference to the trial court's findings of fact. State v. Harris, 279 Kan. 163, 167, 105 P.3d 1258 (2005).
We apply this standard to well-established rules regarding custodial interrogations and an accused's constitutional rights. The Fifth Amendment to the United States Constitution guarantees the right against self-incrimination, including the right to have a lawyer present during custodial interrogation and the right to remain silent. Miranda, 384 U.S. at 479. The United States Supreme Court and this court have recognized that these rights are "'sufficiently important to suspects in criminal investigations'" to require that a defendant subject to custodial interrogation be fully advised of his or her rights through the giving of the Miranda warnings so that any waiver of such rights be knowing and intelligent. State v. Henry, 273 Kan. 608, 613, 44 P.3d 466 (2002) (quoting Davis v. United States, 512 U.S. 452, 458, 129 L. Ed. 2d 362, 114 S. Ct. 2350 [1994]); see Edwards v. Arizona, 451 U.S. 477, 489, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981) (Powell, J., concurring). If a suspect knowingly and intelligently waives these rights, law enforcement officers are free to ask questions. North Carolina v. Butler, 441 U.S. 369, 372-73, 60 L. Ed. 2d 286, 99 S. Ct. 1755 (1979).
The questions of voluntariness and waiver do not arise, however, if the essential requirements for triggering the Miranda safeguards are not present. Those essential requirements are that an accused must be (1) in custody and (2) subjected to interrogation. Miranda, 384 U.S. at 479. In this case, there is no dispute that Warledo was in custody. The issue is whether Warledo was subjected to interrogation before he was given the Miranda warnings.
The term "interrogation" under Miranda refers not only to express questioning but also its functional equivalent, which has been defined as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 300-01, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980); see State v. Woolverton, 284 Kan. 59, 70-71, 159 P.3d 985 (2007) (Miranda warnings required for all custodial interrogations). The test of whether the officers should know their words or actions are reasonably likely to elicit an incriminating response, so as to amount to the functional equivalent of interrogation, is an objective one. Even so, the officers' intent is not necessarily irrelevant. Innis, 446 U.S. at 301-02 n.7; see also United States v. Cooper, 19 F.3d 1154, 1162 (7th Cir. 1994) ("Where an objective observer would believe that the encounter was reasonably likely to elicit an incriminating response from the defendant, the court will find that the encounter constituted the 'functional equivalent' of interrogation.").
It follows from these rules that if a statement by an accused is made without interrogation or its functional equivalent, the statement may be admissible under the Innis rule or its progeny even if the Miranda warnings were not given. As a result, spontaneous, volunteered statements are admissible even when "'"made after the accused is arrested and in custody."' [Citations omitted.]" State v. Lackey, 280 Kan. 190, 225, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056 (2006), overruled in part on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007).
In the present case, the trial court found Warledo's statements were made without interrogation and were spontaneous and volunteered. The video of Warledo's time in the interrogation room supports this conclusion by showing Warledo blurting out the statements he seeks to suppress as soon as the fire investigator and detectives entered the room. His statements were made before Detective Chisholm told Warledo that they would be performing some "processing" and before any evidence was collected. As a result, we need not discuss his contention that the authorities' collection of physical evidence from his person was the functional equivalent of an interrogation. Warledo voluntarily spoke before any evidence collection took place.
The trial court did not err by admitting Warledo's statements into evidence.
2. Video
Next, Warledo contends that he was prejudiced and denied his due process rights because (a) the law enforcement officers questioned him despite his "request for counsel" and (b) the jury was allowed to hear his "invocation of his Fifth Amendment rights" in the context of a murder investigation. This claim is based upon Warledo's statement made toward the end of his 30- to 40-minute wait alone in the interrogation room, "I need to call a lawyer. Where's my lawyer?"
The trial court determined this statement was an unequivocal request for counsel but that no officers were aware of the statement. The record provides substantial competent evidence to support this conclusion because, according to the uncontroverted testimony, officers neither accompanied Warledo at the time of the statement nor monitored the video camera as this "event" unfolded. As a result, the trial court determined the interrogating officers could not be faulted for failing to honor Warledo's request, meaning there was no basis to apply the exclusionary rule.
Miranda. The trial court's analysis is correct. Invoking the Miranda right to counsel, which may occur at any time, "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991). This rule has two aspects. First, the suspect "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459. Second, the request must be for assistance with the custodial interrogation, not for subsequent hearings or proceedings. McNeil, 501 U.S. at 178.
The rule that the request must be one that a reasonable officer would understand implies that a law enforcement officer must be aware of the request. Here, there were no officers present in the room, so Warledo was not making a request to anyone who could grant it. The admission of such statements did not violate Warledo's Miranda rights, since such rights were not properly invoked.
Doyle. In addition, Warledo argues it was improper to allow the jury to hear his request for counsel when it viewed the video. He argues this portion of the video should have been muted. To support his argument, he cites Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), in which the United States Supreme Court held a defendant's invocation of his or her right to silence should not be used against the defendant at trial. 426 U.S. at 618. "The Doyle rule also applies when the State attempts to impeach a defendant's credibility by arguing that the invocation of his or her right to counsel evidences guilt." State v. Cosby, 285 Kan. 230, 245, 169 P.3d 1128 (2007); see also Doyle, 426 U.S. at 618; State v. Edwards, 264 Kan. 177, Syl. ¶ 8, 955 P.2d 1276 (1998). Under Doyle and its progeny, it has been made clear that the prosecution may not penalize a defendant for invoking Miranda rights during interrogation by using the invocation against him or her at trial. See Cosby, 285 Kan. at 245; People v. Lucero, 23 Cal. 4th 692, 713, 97 Cal. Rptr. 2d 871, 3 P.3d 248 (2000); Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. 1991) (evidence of accused invoking right to counsel may improperly be considered as inference of guilt).
Warledo asserts that by allowing the jury to hear his statements regarding counsel, the State sought to infer guilt. In asserting this argument, Warledo presents an argument that he did not raise before the trial court. At trial, Warledo merely raised the question of whether officers had ignored his assertion of his right to counsel; he did not object based upon Doyle. Generally, issues not raised before the trial court cannot be raised on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007); State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). A recognized exception to that general rule applies when consideration of the newly asserted claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. State v. Moody, 282 Kan. 181, 192, 144 P.3d 612 (2006); State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353 (2003).
The exception does not apply in this case, however. Rather, the circumstances required an objection. Specifically, the record establishes that both counsel had viewed the video and had agreed to redact certain portions. The edited video was presented for admission into evidence, and defense counsel requested the video be shown to the jury.
In editing the video, counsel left in Warledo's statement, "'I need to call a lawyer. Where's my lawyer?'" As a result, under the circumstances of this case, a question arises whether a strategic decision was made to let the jury hear the statement. Such a decision may have been made because the segment arguably supports the defense that Warledo was incapable of forming intent or premeditating the murder. Warledo's statement was made relatively soon after the murder and demonstrate that the momentarily coherent thought process that led to the realization that Warledo should have an attorney was quickly countered by his blurting out incriminating statements as soon as someone entered the interrogation room. This rapid change in behavior and irreconcilable demonstration of intent–asserting the right and then almost immediately giving up the right–evidenced the disorder of Warledo's thought processes and, consequently, may have been something defense counsel wanted the jury to hear.
Moreover, we note that the State did not exploit the assertion of the right to counsel. It made no mention of the situation during arguments and did not ask the jury to consider the assertion as evidence of guilt.
As a result, we cannot say that it serves the ends of justice to consider the issue. Consequently, under the circumstances of this case, the failure to object bars our consideration of the Doyle issue.
3. K.S.A. 60-455
Warledo next contends the trial court erred by admitting evidence in violation of K.S.A. 60-455.
The State filed a pretrial notice of intent to introduce evidence regarding the prior relationship of the parties. More specifically, three categories of evidence are at issue. First, the State sought to admit evidence establishing that 2 days before Squirrel's death, she and Warledo had an argument which resulted in Squirrel's calling 911. Law enforcement officers responded, and Squirrel felt it necessary to leave her residence for the night. The State submitted evidence of the police report of the incident and of Squirrel's statement to officers that "she had problems with the defendant in the past." The second category related to evidence of a protection from abuse order issued in 2000. Squirrel had filed the action against Warledo. Related to this order, the State sought to present evidence regarding some "surrounding battery cases." Finally, the third category involved a neighbor's testimony testified regarding a few occasions on which he had called officers when Warledo had been drinking because Warledo had been "violent" with other individuals.
At trial, the above evidence was admitted over defen