State v. Warrior

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,799

STATE OF KANSAS,
Appellee,

v.

ALESIA WARRIOR,
Appellant.


SYLLABUS BY THE COURT


1.
The safeguards of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694, reh. denied 385 U.S. 890 (1966), are triggered only when an accused is (1) in
custody and (2) subject to interrogation. A custodial interrogation is defined as
questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his or her freedom in any significant way. A custodial
interrogation is distinguished from an investigatory interrogation, which occurs as a
routine part of the fact-finding process before the investigation has reached the
accusatory stage.

2.
Factors to be considered in determining if an interrogation is investigative or
custodial include: (1) the time and place of the interrogation; (2) the duration of the
interrogation; (3) the number of law enforcement officers present; (4) the conduct of the
officers and the person subject to the interrogation; (5) the presence or absence of actual
physical restraint or its functional equivalent, such as drawn firearms or a stationed
guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether
2

the person being questioned was escorted by officers to the interrogation location or
arrived under his or her own power; and (8) the result of the interrogation, for instance,
whether the person was allowed to leave, was detained further, or was arrested after the
interrogation. No one factor outweighs another, nor do the factors bear equal weight.
Every case must be analyzed on its own particular facts.

3.
Two discrete inquiries are essential to an appellate court's review of a trial court's
determination of whether an interrogation is custodial. Under the first inquiry, the
appellate court determines the circumstances surrounding the interrogation, employing a
substantial competent evidence standard of review. In determining if there is substantial
competent evidence supporting the existence of the circumstances found by the trial
court, an appellate court does not reweigh evidence, assess the credibility of the
witnesses, or resolve conflicting evidence. The second inquiry employs a de novo
standard of review to determine whether, under the totality of those circumstances, a
reasonable person would have felt free to terminate the interrogation and disengage from
the encounter.

4.
Generally, other things being equal, a person questioned in familiar, or at least
neutral, surroundings does not face the same pressures as one questioned in a police-
dominated atmosphere and this factor weighs against a conclusion that an interview was
custodial.

5.
Restraint, as contemplated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966), is the interference with a person's
freedom which is imposed by law enforcement officers. Consequently, a law enforcement
interview of an accident victim at a hospital is not a custodial interrogation unless the
3

victim's confinement is instigated by law enforcement or controlled for custodial
purposes.

6.
The fact a suspect is the focus of an investigation, standing alone, does not trigger
the need for Miranda warnings.

7.
Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
prosecutors have a positive duty to disclose evidence favorable to the accused when the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.

8.
Because law enforcement's knowledge of evidence is imputed to the State, a Brady
violation can occur when the prosecutor withholds material evidence that is not known to
the prosecutor but is known to law enforcement.

9.
Evidence that is favorable to the accused encompasses both exculpatory and
impeachment evidence. For Brady purposes, there is no distinction between these two
types of evidence that are favorable to the accused; thus, impeachment evidence is
considered exculpatory.

10.
There are three components or essential elements of a Brady violation claim: (1)
The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching; (2) that evidence must have been suppressed by the State,
4

either willfully or inadvertently; and (3) the evidence must be material so as to establish
prejudice.

11.
Under the test for materiality governing all categories of Brady violations,
evidence is material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.

12.
The sliding scale test of materiality utilized in United States v. Agurs, 427 U.S. 97,
103-07, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), is no longer used to determine whether
there has been a Brady violation, and Kansas cases utilizing the test are disapproved.

13.
A trial court's determination as to the existence of a Brady violation is reviewed de
novo with deference to the trial court's findings of fact, but the trial court's denial of the
defendant's motion for new trial is reviewed under an abuse of discretion standard. A trial
court abuses its discretion when it applies an incorrect legal standard, misapplies the
correct legal standard, or relies on clearly erroneous findings of fact.

14.
Once a reviewing court has applied the reasonable probability test to determine if
there is a Brady violation, there is no need for further harmless error review.

15.
In the context of a violation of evidentiary limitations proscribed by the Kansas
Code of Evidence, as opposed to a violation of a constitutional right, an appellate court
applies the statutory harmless error standard of K.S.A. 60-261 and K.S.A. 60-2105 to
5

determine if there is a reasonable probability the error affected the outcome of the trial in
light of the record as a whole. The party benefitting from the introduction of the evidence
has the burden of persuasion.

16.
A trial court errs in giving an Allen-type jury instruction that states "[a]nother trial
would be a burden on both sides."

17.
Kansas' hard 50 sentencing scheme under K.S.A. 21-4635 is not unconstitutional
under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
and Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).

18.
In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect is such that collectively they cannot be determined to be harmless. In
other words, was the defendant's right to a fair trial violated because the combined errors
affected the outcome of the trial?

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed May 11, 2012.
Affirmed.

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

Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by
6


LUCKERT, J.: Alesia Warrior (Warrior) was convicted by a jury of the
premeditated first-degree murder of her husband, in violation of K.S.A. 21-3401(a), and
conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302 and K.S.A. 21-
3401. Warrior received a controlling hard 50 life sentence. In this direct appeal, she
argues: (1) statements she made to law enforcement officers while she was hospitalized
were the result of a custodial interrogation and should have been suppressed because she
had not been read her rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966); (2) the trial court abused its discretion in
denying Warrior's motion for new trial in which she alleged the State failed to disclose
exculpatory evidence that pertained to a prior juvenile adjudication of a key prosecution
witness; (3) the trial court erred in allowing the State to present hearsay testimony
regarding statements made by the victim, Warrior's husband, indicating his belief that his
marriage was in trouble; (4) the trial court erred in giving a deadlocked jury instruction
prior to deliberations; (5) Kansas' hard 50 sentencing scheme under K.S.A. 21-4635 is
unconstitutional; and (6) cumulative error requires reversal of Warrior's convictions and
remand for a new trial.

We reject each of these contentions and affirm Warrior's convictions and sentence.

FACTS AND PROCEDURAL BACKGROUND

The State's theory was that Warrior, Darell Rodgers, and Jamar Moore conspired
to murder Warrior's husband, Jeremy Warrior (Jeremy). As evidence of motive, the State
presented testimony regarding marital discord between Warrior and Jeremy and
established that Warrior and Rodgers were having an extramarital affair. Financial gain
was an additional motive; after Jeremy's death, Warrior received benefit payments in
excess of $335,000 from life insurance policies she took out a few months before the
murder.
7


The murder occurred in the predawn hours of April 23, 2005, as Warrior drove
Jeremy to work. Typically, Jeremy would drive himself to work, but Warrior drove him
that day. The reason for the change of routine, according to Warrior, was that Jeremy's
car needed a new headlight, and she planned to take his car to a Firestone store to have
the light replaced. The State cast doubt on this explanation through the testimony of the
manager of the Firestone store. The manager told the jury that his store employees had
broken the car's headlight when it had been in for repairs before Jeremy's death. The store
had ordered a part and was planning to replace the headlight at no charge, but the part had
not arrived before the day of Jeremy's murder.

Warrior told the jury she had no part in planning the murder and did not know who
committed the crime. According to Warrior between 5 a.m., and 5:30 a.m., the couple got
into Warrior's car, a dark blue Nissan Altima, with Jeremy in the passenger seat and
Warrior in the driver's seat. As they were about to crest a hill, the driver of the vehicle
ahead of them, a sport utility vehicle (SUV), applied the brakes. Then, as Warrior and
Jeremy drove up slowly, "someone came running towards the car" and fired a gun.
Warrior testified she only heard one shot. The next thing she knew, she was in the
hospital. As a result of the shooting, Warrior's spinal cord was damaged, and she was
paralyzed from the waist down. Jeremy received multiple gunshot wounds, at least two of
which could have caused his death.

Officers were dispatched to the crime scene around 5:34 a.m. Officers came upon
the blue Nissan crashed into a ditch in the neighborhood, not far from the home Warrior
shared with Jeremy. Jeremy was still and unresponsive, and Warrior was injured and
moaning. Officers found bullet holes in the passenger window. There were no bullet
holes in the driver's side door, but a bullet went into the right side of the driver's headrest
near the passenger's seat and exited through the back of the driver's headrest. Two bullets
entered the passenger's side of the car and exited out the rear door on the driver's side. A
8

forensic pathologist testified that the bullets that hit Jeremy entered the right side of his
body and that the shooter would have been outside and in front of the passenger's side
window.

Neighbors testified to seeing Warrior's car and an SUV, which was described as a
light-colored vehicle. One neighbor testified the car's lights were off when he first saw it,
but the lights later came on. Another neighbor saw a person with a gun running up to the
SUV and getting inside. He was able to describe what the person wore.

Moore, a codefendant in this case, testified pursuant to plea negotiations. Moore
was not arrested for Jeremy's murder until 3 years after Jeremy died, when Moore
confessed. Up to that point, when officers questioned him, Moore generally denied any
involvement. In his earliest statements to officers during the initial investigation, he
relayed various versions of events, including a version in which Rodgers was involved in
the attack, but the shooter was a person named "Syan Crawford." Moore even identified
Crawford in a photo lineup. Years later, when Moore decided to confess, he explained he
was coming forward because Warrior and Rodgers had promised to pay him from the
insurance proceeds, but they never did. "[I]t was on my conscience and I got tired of
protecting people that never really cared about me," he explained.

Moore's testimony provided details regarding the planning of the murder and the
shooting. He testified that he had known Rodgers for 8 or 9 years and first met Warrior in
February 2005. In late March or early April 2005, Warrior asked Moore if he wanted to
"kill somebody to make a couple thousand dollars." Neither Rodgers nor Warrior
mentioned the identity of the intended victim, and no other details were discussed at that
time. But a few weeks later, on the night before Jeremy's murder, Rodgers explained that
Jeremy, Warrior's husband, was to be the victim. Moore testified that Rodgers and
Warrior went over "how it was supposed to be done." The plan was to kill Jeremy and
shoot Warrior in the leg. Rodgers persuaded Moore to drive what Moore described as a
9

"cream-colored" SUV, which previously had been rented by Warrior, to the place where
Rodgers would commit the murder.

Moore testified that between 2 a.m. to 3:30 a.m., Warrior drove to her home in her
car while Rodgers and Moore followed in the SUV. When they arrived in Warrior's
neighborhood, Moore parked down the block from Warrior's home to wait until it was
time for Jeremy to leave for work.

After waiting about 15 to 20 minutes, Rodgers used his cell phone to call Warrior
and to ask her "what was taking so long." Moore heard Warrior's reply, in which she said,
"I am trying to hurry it up." Five minutes later, Rodgers got out of the SUV and hid
behind some trees in a yard, holding the gun at his right side.

After another 5 or 10 minutes, Moore saw Warrior driving her car up the street,
and as she got closer to them, she "hit the lights," turning off the headlights. According to
Moore, this was a prearranged signal. At that point, Rodgers ran up to Warrior's car and
fired six gunshots into it. Moore immediately drove the SUV up the street a little way, as
Rodgers came running and jumped inside.

Much of the other incriminating evidence presented in the trial came from
Warrior's statements to law enforcement officers. After the shooting, officers questioned
Warrior on four occasions during her hospitalization. Warrior did not receive Miranda
warnings at any of these interviews. Greg Lawson, a detective for the Kansas City,
Kansas, Police Department, testified about several statements made by Warrior, and the
jury heard audio recordings of the interviews.

The first meeting with Warrior occurred in the intensive care unit at the hospital
on April 26, 2005. Warrior explained she was driving Jeremy to work when they came
upon a red SUV with its taillights on. She said two Hispanic men jumped out of the
10

SUV—one out of each side of the back seat—and approached her car on opposite sides.
Warrior described the men as short in stature and about the same age as her and Jeremy—
late 20's or early 30's. Warrior did not remember seeing or hearing any gunshots. She
denied having an affair or experiencing any major problems in her marriage.

During this first interview, Warrior also indicated she had been at a friend's
apartment the night before the incident, and Rodgers and Moore were there as well.
Warrior only casually mentioned Rodgers, claiming he was a close friend of the person
who lived at the apartment. Warrior told the officers she left her friend's around 1 a.m.
and called Jeremy to tell him she was on her way home.

After the first interview, Detective Lawson inspected Warrior's telephone records
and discovered numerous calls between Warrior and Rodgers. Of particular interest, on
April 23, 2005, there were calls from Rodgers to Warrior just minutes before Jeremy's
murder. Also, the records reflected calls from Warrior to Rodgers that morning at 4:57:00
a.m., 4:57:17 a.m., and 4:57:28 a.m. Between February 1, 2005, and April 23, 2005, there
had been 52 calls between Rodgers and Warrior at Warrior's work telephone number. In
addition, during Warrior's hospital stay after the shooting, there were three telephone
calls from her hospital room to Rodgers' mother's telephone.

Officers returned a second time to the hospital on April 30, 2005, and questioned
Warrior in her hospital room. They told her to tell them if she got tired during the
interview and wanted them to leave. Detective Lawson testified that this interview only
lasted 30 minutes and was not recorded. They indicated to Warrior that there were "things
that we needed to get through in order to find a motive" and cover "all of our bases." The
officers told Warrior that they did not want to embarrass her, but they had information
indicating the possibility she was having an affair with Rodgers. She denied having an
affair, and the officers left the room at Warrior's request.

11

The officers continued their investigation, speaking with other witnesses and
gathering more information. In addition to discovering telephone calls between Rodgers
and Warrior both before and after the shooting, the officers also learned that Rodgers had
visited Warrior in the hospital. According to Detective Lawson, the officers had "strong
cause" to believe Rodgers was somehow involved and wanted to hear the truth from
Warrior. Thus, on May 3, 2005, the officers returned to the hospital to interview Warrior
a third time. Warrior's sister, mother, and aunt were periodically present in the hospital
room while officers conducted the interview.

During this third interview, which was recorded, Warrior admitted to the officers
she had an affair with Rodgers. She said that she was falling in love with Rodgers and
that it caused problems with her husband because she was staying out late at night.
Jeremy did not know about the affair, but he had his suspicions. Warrior told the officers
that Rodgers got angry when Jeremy called her cell phone; on one occasion, about a
month before the shooting, Rodgers got so angry he broke Warrior's cell phone with his
hands. In the month before the shooting, Warrior would routinely pick up Rodgers in the
morning at his mother's apartment and would drive him to her place of employment,
where Warrior would get out and leave the car with Rodgers for the day. Rodgers would
pick up Warrior at the end of the work day, they would spend some time together, and
Warrior would return home alone.

Warrior indicated that on the day before the shooting, she went to pick up
Rodgers, but Rodgers had somehow acquired a gold SUV from a friend and wanted to
drive her to work in it. After work, Rodgers also picked her up in the SUV. Later,
Rodgers dropped Warrior off at her car, and she returned home alone around 7 p.m.
Then, Warrior told Jeremy she was going out with friends, and she went to a friend's
apartment. Rodgers and Moore arrived in the gold SUV. Warrior said she left the
apartment after 1 a.m., but before she left, Jeremy had tried to call her several times. This
upset Rodgers, who told her not to answer her cell phone. Nevertheless, Warrior talked to
12

Jeremy and told him she was on her way home. Warrior told the officers she had not
wanted Jeremy to know about Rodgers because she loved Jeremy and had not wanted to
hurt him.

Warrior told the officers that when she got home, she and Jeremy talked for 30 to
40 minutes. In the morning, they showered and had sex before getting into Warrior's car.
When they drove up the street, Warrior saw brake lights ahead on a gold SUV. Then, she
saw Rodgers exit the passenger's side of the SUV and run to the passenger's side of her
car. In this version of events, Warrior indicated she did not see a gun, but she heard one
gunshot. After that gunshot, she felt pain and experienced a "floating" sensation.

Warrior told the officers that Rodgers had called her in the hospital to see how she
was doing. He had also asked if he could visit Warrior, who said, "Yes." Warrior's sister
brought Rodgers up to the hospital room. When the sister left the couple alone for a short
time, Rodgers apologized for shooting Warrior. Warrior told the officers that Rodgers did
not explain why he shot Jeremy, but he told her not to talk to police. When asked about
Rodgers' telephone call to Warrior on the morning of the shooting, Warrior explained she
had not answered his incoming call, but she had immediately called Rodgers back. She
said Rodgers called because he wanted to know whether she was coming to see him that
day.

As the officers were leaving the hospital room, Warrior asked Detective Lawson
to come back in. She then told Lawson she had rented the SUV for Rodgers. According
to Warrior, she wanted to tell the officers about the SUV because she did not want them
to think she was involved in the attack.

This revelation prompted officers to check car rental records, which confirmed
that Warrior rented the gold or champagne SUV, a Ford Explorer, from Hertz at the
Kansas City International Airport, on April 21, 2005, and paid for the rental with her
13

credit card. This information led to the fourth interview on May 5, 2005. During this
fourth interview, Warrior explained she rented the SUV for Rodgers 2 days before the
shooting because he wanted to take his children to Worlds of Fun in Kansas City,
Missouri, on April 22, 2005. When asked what she had planned to do when Jeremy saw
the credit card bill, Warrior told the officers that she was going to tell him about Rodgers.
Warrior then identified Rodgers as the shooter.

After Warrior made this last recorded statement, the officers had her moved to a
different hospital room. The next day, Warrior called Detective Lawson and told him that
Rodgers had called her at the new location. She was concerned that Rodgers had
somehow learned of her room change.

Sometime after this, in 2005, Rodgers was arrested in connection with the attack
on Warrior and Jeremy. These charges were dismissed by the State when, just before
Rodgers' preliminary hearing, Warrior recanted her identification of Rodgers as the
shooter. Thereafter, officers continued to investigate the case.

On February 2, 2006, Warrior gave a deposition at the district attorney's office.
During the deposition Warrior, for the most part, reverted back to her first statement to
officers and indicated that she could not identify the shooter. Warrior indicated her first
statement about the two Hispanic attackers was accurate. Upon clarification, however,
she said she had only "seen one" perpetrator. According to Warrior's deposition, the SUV
at the scene was gold or champagne, not red, but she was "not for sure if it was the one I
rented." When asked about her relationship with Rodgers at the time of the shooting,
Warrior characterized it as a "friendship." She admitted that Rodgers had visited her in
the hospital, but he simply "[a]pologized for seeing me hurt." She denied having further
contact with Rodgers and denied that he had made any threats to her.

14

In 2008, upon Moore's confession, charges were filed against Warrior, Rodgers,
and Moore. After Warrior was arrested, officers interviewed her again. She denied that
either she or Rodgers was involved in the shooting. Warrior indicated to officers that at
the time of her 2008 arrest, she was living with Rodgers. According to Warrior, she had
previously identified Rodgers as the shooter because officers had pressured her to do so,
and she was trying to help the police. Warrior claimed one Hispanic man had committed
the crimes.

Similar to her 2006 deposition, Warrior basically repeated much of her first
version of events when she testified at her trial. Warrior explained she did not initially
disclose the affair to officers because she did not want that information to come out. She
no longer claimed that there was a red SUV involved in the attack; instead, a gold or
champagne SUV was involved. When asked whether the SUV at the shooting was the
same one she had rented from Hertz, Warrior said, "I believe so, I'm not for sure." She
denied talking to Moore or anybody else about shooting Jeremy and claimed she did not
know the identity of the shooter. Warrior also denied that there was any connection
between Jeremy's murder and Warrior's acquisition of life insurance. She testified that it
was Jeremy's idea to obtain life insurance after a family member had died and the family
had to raise money for the burial.

A jury convicted Warrior of premeditated first-degree murder and conspiracy to
commit first-degree murder. The court imposed a hard 50 life sentence for the murder
conviction and a concurrent sentence of 160 months' incarceration for the conspiracy
conviction. Warrior now makes a timely appeal. This court's jurisdiction is under K.S.A.
22-3601(b)(1) (appeal of murder conviction; off-grid crime; life sentence).




15

SUPPRESSION OF HOSPITAL INTERVIEWS

Warrior's first argument on appeal is that the trial court erred by admitting into
evidence certain statements made by Warrior to law enforcement officers who questioned
her while she was a patient in the hospital. Specifically, Warrior contends the third and
fourth hospital interviews conducted on May 3, 2005, and May 5, 2005, were custodial
interrogations, and her statements should have been suppressed because she was not
Mirandized. Warrior acknowledges officers had previously interviewed her at the
hospital on April 26, 2005, and April 30, 2005, the first and second interviews, but she
does not dispute the admissibility of her statements made during those encounters.

Warrior objected to the admission of the statements before and during the trial,
arguing she was considered to be a "suspect" early in the investigation of the case and
that, although officers did not arrest Warrior at the hospital, she "certainly was not able to
leave" at the time of the hospital interviews because of her physical condition. Therefore,
she argued, the interrogations were custodial.

After considering counsel's arguments, the testimony of both Warrior and
Detective Lawson, and the transcript of Warrior's indictment proceeding held before a
grand jury, the judge, at a pretrial hearing, found that the interviews were not custodial,
stating:

"[T]his brings to mind a quote from a famous detective, Inspector Clouseau, who
indicated, 'I suspect everyone and I suspect no one,' and I think that was probably the
case here, . . . is this defendant was never a non-suspect. I guess because she was a
spouse and because information that came in early, but she certainly remained possibly
only a victim all the way through this investigation, I guess up through her third
statement. But the key here is she was never in custody. I think clearly this was not a
custodial investigation, even by her own admission. She could have told [Detective
Lawson] to leave, in fact, did so and he did leave."
16

Custodial Interrogations

The trial court appropriately focused on whether the interviews were custodial
interrogations because law enforcement officers are not required to administer Miranda
warnings to everyone questioned, only to those who are (1) in custody and (2) subject to
interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh.
denied 385 U.S. 890 (1966); State v. Warledo, 286 Kan. 927, 935, 190 P.3d 937 (2008).
A custodial interrogation is defined as "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom in any
significant way." Miranda, 384 U.S. at 444. A custodial interrogation is distinguished
from an investigatory interrogation, which occurs as a routine part of the fact-finding
process before the investigation has reached the accusatory stage. State v. Jacques, 270
Kan. 173, 185-86, 14 P.3d 409 (2000).

Factors to be considered in determining if an interrogation is investigative or
custodial include: (1) the time and place of the interrogation; (2) the duration of the
interrogation; (3) the number of law enforcement officers present; (4) the conduct of the
officers and the person subject to the interrogation; (5) the presence or absence of actual
physical restraint or its functional equivalent, such as drawn firearms or a stationed
guard; (6) whether the person is being questioned as a suspect or a witness; (7) whether
the person being questioned was escorted by the officers to the interrogation location or
arrived under his or her own power; and (8) the result of the interrogation, for instance,
whether the person was allowed to leave, was detained further, or was arrested after the
interrogation. State v. Morton, 286 Kan. 632, 640, 186 P.3d 785 (2008), cert. denied 555
U.S. 1126 (2009). "No one factor outweighs another, nor do the factors bear equal
weight. Every case must be analyzed on its own particular facts. [Citation omitted.]"
State v. Schultz, 289 Kan. 334, 341, 212 P.3d 150 (2009).

17

An appellate court reviewing a trial court's determination of whether an
interrogation is custodial, makes two discrete inquiries. Under the first inquiry, the court
determines the circumstances surrounding the interrogation, employing a substantial
competent evidence standard of review. In determining if there is substantial competent
evidence supporting the existence of the circumstances found by the trial court, an
appellate court does not reweigh evidence, assess the credibility of the witnesses, or
resolve conflicting evidence. State v. Edwards, 291 Kan. 532, 545, 243 P.3d 683 (2010);
State v. Gant, 288 Kan. 76, 80, 201 P.3d 673 (2009). The second inquiry employs a de
novo standard of review to determine whether, under the totality of those circumstances,
a reasonable person would have felt free to terminate the interrogation and disengage
from the encounter. Schultz, 289 Kan. at 340-41; State v. James, 276 Kan. 737, 751, 79
P.3d 169 (2003).

As we apply these principles to the circumstances in this case, nearly all the
factors indicate the third and fourth hospital interviews conducted on May 3, 2005, and
May 5, 2005, were investigatory, not custodial.

1. Time and Place. The investigations occurred while law enforcement officers
were still tracking down information and were prompted by new information disclosed
through that investigation. With regard to the location of the questioning, the interviews
occurred in Warrior's hospital room, a neutral location. The neutral atmosphere is further
evidenced by the fact that Warrior's family members were present during the May 3
interview. Generally, other things being equal, a person questioned in familiar, or at least
neutral, surroundings does not face the same pressures as one questioned in a police-
dominated atmosphere and this factor weighs against a conclusion that an interview was
custodial. See 2 LaFave, Criminal Procedure § 6.6(e), pp. 738-39 (3d ed. 2007)
(discussing locations of interrogations in determining whether they are custodial).
Additionally, "a hospital room does not produce the aura of police authority that a police
18

department interview room does." People v. Vasquez, 393 Ill. App. 3d 185, 191, 913
N.E.2d 60 (2009).

2. Duration of Interrogation. The interviews were short in duration and dealt with
Warrior's accounting of events and the identification of the shooter. Warrior had been
told she could ask the officers to leave; in other words, she was in control of the length of
the interviews.

3. The number of law enforcement officers present. There were two officers
present in the room. We do not see this number as influencing our analysis.

4. The conduct of the law enforcement officers and the person subject to the
interrogation. The officers did not use coercive threats or employ a hostile or accusatory
tone. Instead, they used a conversational tone, asked for the truth, and offered protection
for Warrior, if needed. Warrior was not arrested at the end of either of these interviews.
As for Warrior's conduct during the interviews, although she had experienced a traumatic
event and was prescribed pain medication, there was no evidence she suffered from any
mental, intellectual, or emotional problems that would have affected her perception of
whether she was free to terminate the questioning.

5. The presence or absence of actual physical restraint or its functional
equivalent, such as drawn firearms or a stationed guard. Warrior contends she was in
custody because she "was not at the hospital voluntarily and was paralyzed, effectively
being medically restrained." While there is no dispute that Warrior's injuries prevented
her from leaving her hospital room, physical incapacity resulting from forces outside the
control of law enforcement does not amount to custody.

Restraint, as contemplated by Miranda, is the interference with a person's freedom
which is imposed by law enforcement officers. Consequently, this court has held that a
19

law enforcement interview of an accident victim at a hospital is not a custodial
interrogation unless the victim's confinement is instigated by law enforcement or
controlled for custodial purposes. State v. Louis, 240 Kan. 175, 181, 727 P.2d 483
(1986); State v. Brunner, 211 Kan. 596, Syl. ¶ 3, 507 P.2d 233 (1973), disapproved in
part on other grounds by State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001); see State v.
Canaan, 265 Kan. 835, 847, 964 P.2d 681 (1998) (defendant was not in custody where he
was alone for significant periods of time and was not arrested at hospital; purpose of
officers' presence at hospital was to determine when defendant would be released so they
could later question him); see generally, What Constitutes "Custodial Interrogation" at
Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be
Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation–
Suspect Hospital Patient, Annot. 30 A.L.R.6th 103, 120.

There is nothing in the record to indicate that the officers exercised any control
over Warrior's hospitalization before her interviews. After the fourth interview, officers
had Warrior moved to another hospital room. Warrior seemed to understand this was for
her safety because she contacted Detective Lawson and told him Rodgers had called her
at the new location. More significantly, the room change occurred after the final
interview. Also, the officers allowed Warrior to leave the hospital once she was
discharged.

Warrior argues another factor must be considered. Specifically, she contends the
"repeated interviews" effectively put Warrior under police custody. According to
Warrior, the "repeated intrusions gave the impression that although [Warrior] could
terminate an interrogation, the police would return and the interrogation would resume."
However, as the State notes, each hospital interview was prompted by new information.
Between the first and second interviews, officers obtained Warrior's telephone records.
Then, during the third interview Warrior revealed Rodgers was the shooter and—after
calling Detective Lawson back into the room as he was leaving—that she had rented the
20

SUV for Rodgers. Following that revelation, the officers investigated the car rental and
called on Warrior for some follow-up information. In light of the fact the ongoing
investigation raised new issues to be discussed with Warrior, we do not find the serial
nature of the interviews to necessarily mean the interviews were custodial.

Further, it is noteworthy that at the beginning of the fourth hospital interview, the
officers asked Warrior how she was feeling, made sure she was up to talking to them, and
told her this would be a short visit. The officers had demonstrated that all Warrior had to
do was ask to terminate the interview. Warrior asked to terminate the second interview,
and the officers did so. This demonstrates that Warrior was aware she could terminate the
interviews at any time. At the beginning of the fourth interview, Warrior agreed to speak
with the officers and indicated they had been very helpful in this situation. She indicated
she wanted to explain she had no role in the shooting. She then volunteered information.
At no point were the officers openly accusatory or threatening, and, as we have
repeatedly noted, they did not arrest Warrior after these hospital interviews. Compare
Effland v. People, 240 P.3d 868, 874-76 (Colo. 2010) (hospitalized defendant was in
custody for Miranda purposes, even though he was informed that he was not under arrest
and his mobility was limited for medical reasons; officer was posted outside hospital
room; officers ignored defendant's repeated statements that he did not wish to speak with
them; officers sat between defendant and the closed door; defendant was emotionally
distraught; officers' questions provided details of the incident and were designed to elicit
agreement from defendant); and Louis, 240 Kan. at 183-84 (hospitalized defendant was in
custody where defendant was notified that his blood was being drawn for law
enforcement purposes while three officers were present, and defendant was arrested
immediately upon release from hospital), with United States v. Robertson, 19 F.3d 1318,
1320-21 (10th Cir.), cert. denied 513 U.S. 906 (1994) (defendant was not in custody
where federal agent testified the FBI did not intend to take defendant into custody at time
of interview, and defendant was free to check himself out of hospital), and United States
v. Martin, 781 F.2d 671, 673 (9th Cir. 1985) (defendant, who had been making bombs in
21

his apartment, had been injured in explosion, and had gone to hospital for treatment, was
not in custody when officers went to hospital and questioned him, and thus, Miranda
warnings were not required), and James, 276 Kan. at 751-52 (defendant was not in
custody when officers questioned him in a hospital waiting room and at the police station
regarding the deaths of two dependent adults in his care).

We conclude Warrior was neither actually restrained by law enforcement nor
under the functional equivalent of custody.

6. Whether the person is being questioned as a suspect or a witness. Warrior also
contends she was being questioned as a suspect. Detective Lawson testified that he did
not begin to think of Warrior as a suspect until the time of Rodgers' 2005 preliminary
hearing―well after Warrior's May 3, 2005, and May 5, 2005, interviews—when Warrior
recanted her identification of Rodgers as the shooter. The trial judge apparently did not
find this testimony entirely credible, as shown by the judge's finding that Warrior
"certainly remained possibly only a victim all the way through this investigation, I guess
up through her third statement." (Emphasis added.)

Also, Warrior points out that in the time period between the second and third
hospital interviews, officers talked to Warrior's sister about information indicating that
Rodgers had called the sister's telephone sometime after the shooting. The officers told
Warrior's sister she needed to be truthful in order to avoid possible obstruction charges.
Warrior does not contend she was made aware of the officers' communications with her
sister before her interviews, however. Consequently, we do not consider this as a factor in
our analysis.

Nevertheless, in the time period between Warrior's second and third hospital
interviews, the officers did express to Warrior their doubts about her truthfulness
regarding the possible affair with Rodgers. They told Warrior that if she was afraid to
22

relay information about Rodgers, they could provide protection from him. In encouraging
Warrior to be truthful, the officers further stated that if it was later discovered Rodgers
was involved in the shooting, "it would be hard to justify she wasn't involved." It was
after this interaction with officers that Warrior admitted, during the third interview, that
she was having an affair with Rodgers and identified him as the shooter. Warrior
indicated she had not previously disclosed this information to officers because she was
fearful of Rodgers. But she also called Lawson back into her room to report her rental of
the SUV.

Because the officers focused on her potential culpability during this third
interview, Warrior argues she was an accused. She cites State v. Hewes, 558 A.2d 696
(Me. 1989), to support her contention that she was in custody at the time of the May 3,
2005, and May 5, 2005, hospital interviews. Besides the fact that Hewes is not binding
precedent, it is not helpful to our analysis. In Hewes, a case involving a charge of
manslaughter in the shooting death of a boarding house resident, the Maine Supreme
Court concluded that the evidence supported the trial court's finding that the defendant,
who was interrogated at the police station, was in custody, and the defendant's statements
made to officers during two interviews were suppressible in the absence of Miranda
warnings. Hewes was driven twice to the police station in a police cruiser, was
questioned by officers for 50 minutes and 45 minutes respectively, and was asked for
detailed and specific information about the victim's death. The Hewes court mentioned
the fact that the interrogating officer told the defendant he could terminate the second
interview and leave at any time "does not compel a finding that Hewes was not in
custody." Hewes, 558 A.2d at 699 n.6. Also, the court focused on the specific and lengthy
questioning. These factors are also present in this case, Warrior argues.

However, the facts and circumstances in Hewes are too dissimilar to be of any
assistance here. While Hewes was told he could terminate the interview, there was no
suggestion he was free to leave, a possibility that would seem unlikely to a reasonable
23

person who had been transported to the police station in a police car. In contrast, the
officers did not exercise control over Warrior's ability to leave the hospital and never
gave her any indication she was in their custody. Further, on the one occasion when she
asked to terminate the interview, the officers did so.

Nevertheless, this factor gives at least some support to Warrior's position that she
was in custody.

7. Whether the person being questioned was escorted by officers to the
interrogation location or arrived under his or her own power. Warrior was taken to the
hospital for treatment, not by order of law enforcement.

8. The result of the interrogation, for instance, whether the person was allowed to
leave, was detained further, or was arrested after the interrogation. As the State points
out, this was an ongoing investigation, where Warrior was seriously injured, and the
officers wanted to learn the truth about Warrior's relationship with Rodgers and what
motive Rodgers might have had to kill Jeremy. The officers did not arrest Warrior after
any of these hospital interviews.

Conclusion. At most, the only factor favoring Warrior's argument would be that
the officers considered Warrior to be a possible suspect by the time they conducted the
May 3, 2005, and May 5, 2005, the third and fourth interviews. But the fact a suspect is
the focus of an investigation, standing alone, does not trigger the need for Miranda
warnings. State v. Costa, 228 Kan. 308, 312, 613 P.2d 1359 (1980); State v. Bohanan,
220 Kan. 121, 129, 551 P.2d 828 (1976); see Minnesota v. Murphy, 465 U.S. 420, 431,
104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (mere fact that investigation has focused on
suspect does not trigger need for Miranda warnings in noncustodial settings); Beckwith v.
United States, 425 U.S. 341, 347-48, 96 S. Ct. 1612, 48 L. Ed. 2d 1 (1976) (same); 2
24

LaFave, Criminal Procedure § 6.6(a) (3d ed. 2007) (discussing differences between
custody and focus).

The totality of the circumstances in this case shows that the investigation had not
reached the custodial or accusatory stage. See Jacques, 270 Kan. 173, Syl. ¶ 7; State v.
Gooden, 22 Kan. App. 2d 271, 276, 915 P.2d 169, rev. denied 260 Kan. 998 (1996).
Consequently, we conclude that substantial competent evidence supports the trial court's
finding that Warrior was not in custody at the time of the May 3, 2005, and May 5, 2005,
hospital interviews. Further, under the totality of the circumstances, a reasonable person
would have felt free to terminate the interviews and disengage from these encounters.

FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

Next, Warrior argues the trial court abused its discretion in denying her motion for
new trial on the basis that the State failed to disclose exculpatory evidence which
pertained to a juvenile burglary adjudication of Moore, a key prosecution witness.
Warrior contends the State violated its disclosure obligations under Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and, consequently, Warrior's due
process rights under the United States Constitution were violated.

Procedural Posture and Trial Court Findings

Before trial, Warrior filed a discovery request, seeking, in part, the State's
production of the "criminal record[s] of all non-police and non-medical witnesses for the
State" and "[a]ll evidence exculpatory to the defendant." Sometime after the jury reached
its verdict, the State informed defense counsel about its discovery of Moore's 1994
juvenile adjudication for burglary, an adjudication of which the State was previously
unaware. One of the arguments in Warrior's posttrial "Motion for Acquittal or in the
Alternative for New Trial" claimed that because the State failed to provide information of
25

this adjudication before or during trial, Warrior was prejudiced because she was not able
to use this "conviction involving dishonesty or false statement as a means of impeaching
[Moore's] credibility as a witness." The exact timing of the State's discovery of this
information is not clear from the record. The State simply asserted in its response to
Warrior's motion for new trial that "[t]he State disclosed this information to Defendant
upon receiving a copy of Moore's Pre-Sentence Report."

At the hearing on Warrior's motion for new trial, the prosecutor explained that
before trial the State had entered Moore's name into two national computer databases
available to law enforcement, the National Crime Information Center (NCIC) and the
Interstate Identification Index (Triple I). (NCIC is a computerized index of criminal
justice information. United States v. McKenzie, 779 F. Supp. 2d 1242, 1243 [D.N.M.
2011]. Triple I is a criminal history database. Dempsey v. City of Baldwin, 143 Fed.
Appx. 976, 980 n.7 [10th Cir. 2005] [unpublished opinion].) Unfortunately, Moore's
juvenile adjudication, which occurred approximately 14 years earlier, did not show up on
the computer search.

The trial judge made the following findings regarding this evidence:

"I think Mr. Moore was a substantial witness here, and he testified at length that he had
lied to the police on several occasions. He was very forthcoming about that, as he pretty
much had to be. Of course, he was as most people do when they are charged with a crime
. . . not going to tell the police that he was involved in this case. . . . [A]ccording to the
evidence that the Court heard and this jury heard, he was the least culpable of the three
people involved in this by a long shot and he was the logical person for the State to make
a deal with. They made that deal. He was cross-examined at length about the deal. I don't
believe that the prior conviction from 14 years back as a juvenile was withheld by the
State. I think it was in actual likelihood overlooked by the State, and I don't believe that it
would have had any impact, given the other instances of him being untruthful. So I don't
believe it is a basis, given the total weight of the evidence here, to grant a new trial. So
the motion will be denied."
26


Standard of Review

K.S.A. 2011 Supp. 22-3501(1) permits a trial court to grant a new trial to the
defendant "if required in the interest of justice." Appellate courts review a trial court's
ruling on a motion for mistrial for an abuse of discretion. Judicial discretion is abused if
judicial action (1) is arbitrary, fanciful, or unreasonable, in other words, if no reasonable
person would have taken the view adopted by the trial court; (2) is based on an error of
law, in other words, if the discretion is guided by an erroneous legal conclusion; or (3) is
based on an error of fact, in other words, if substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied
132 S. Ct. 1594 (2012). "In some cases, this three-part standard may narrow the broad
discretion previously allowed when this court routinely applied only the no-reasonable-
person-would-take-the-same-view standard." Ward, 292 Kan. at 550-51 (citing State v.
Ransom, 288 Kan. 697, 715, 207 P.3d 208 [2009]) (mistrial abuse of discretion standard
"does not change even if legal error prompted consideration of a mistrial"; applying
standard of whether any reasonable person would take the same view).

Brady Violations: General Principles of Law

In Brady, the United States Supreme Court held that prosecutors have a positive
duty to disclose evidence favorable to the accused when "the evidence is material either
to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
Brady, 373 U.S. at 87; see Giglio v. United States, 405 U.S. 150, 153, 92 S. Ct. 763, 31 L.
Ed. 2d 104 (1972); accord State v. Gonzalez, 290 Kan. 747, 766, 234 P.3d 1 (2010); State
v. Francis, 282 Kan. 120, 150, 145 P.3d 48 (2006); see also United States v. Bagley, 473
U.S. 667, 678-81, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) (discussing discovery, after
trial, of information favorable to the accused that had been known to the prosecution but
27

unknown to the defense); In re Jordan, 278 Kan. 254, 261, 91 P.3d 1168 (2004)
(discussing prosecutor's duty to disclose negating and mitigating evidence under Kansas
Rules of Professional Conduct [KRPC]); KRPC 3.8(d) (2011 Kan. Ct. R. Annot. 578).
Further, because law enforcement's knowledge of evidence is imputed to the State, a
Brady violation can occur when the prosecutor withholds material evidence that is not
known to the prosecutor but is known to law enforcement. See Francis, 282 Kan. at 150
(citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 131 L. Ed. 2d 490 [1995]).

Evidence that is favorable to the defendant encompasses both exculpatory and
impeachment evidence. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144
L. Ed. 2d 286 (1999). For Brady purposes, there is no distinction between these two types
of evidence that are "favorable to accused"; thus, impeachment evidence is considered
exculpatory. Strickler, 527 U.S. at 281; see Bagley, 473 U.S. at 676.

There are three components or essential elements of a Brady violation claim: (1)
"'The evidence at issue must be favorable to the accused, either because it is exculpatory,
or because it is impeaching' [citation omitted]"; (2) "'that evidence must have been
suppressed by the State, either willfully or inadvertently' [citation omitted]"; and (3) the
evidence must be material so as to establish prejudice. Wilkins v. State, 286 Kan. 971,
989, 190 P.3d 957 (2008); Haddock v. State, 282 Kan. 475, 506, 146 P.3d 187 (2006); see
Banks v. Dretke, 540 U.S. 668, 691, 124 S. Ct. 1256, 157 L. Ed. 2d 1166 (2004); see also
Strickler, 527 U.S. at 290 (prejudice encompasses the materiality requirement of Brady).

In the present case, the first two Brady elements are not at issue. It is undisputed
that the evidence in question was exculpatory in the sense that it bore upon the credibility
of Moore, a key witness for the prosecution. Further, it is undisputed that the State, for
whatever reason, failed to timely produce the evidence of Moore's juvenile burglary
adjudication. Thus, our analysis requires the consideration of only the third element,
materiality.
28


Reasonable Probability Materiality Test

In their appellate briefs, both parties cite to a sliding scale materiality analysis,
which this court has endorsed in past cases. See State v. Adams, 280 Kan. 494, 501, 124
P.3d 19 (2005); State v. Aikens, 261 Kan. 346, 381, 932 P.2d 408 (1997). This analysis
was derived from the United States Supreme Court's materiality analysis in United States
v. Agurs, 427 U.S. 97, 103-07, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), which varied
depending upon the type of Brady violation, in other words, the level of intent behind the
prosecutor's conduct and the specificity of the defendant's discovery request. See Adams,
280 Kan. at 501 ("sliding scale" applies as "the level of intent supporting the State's
conduct decreases").

What the parties fail to recognize is that after Agurs the Supreme Court adopted a
more narrow, uniform test for materiality governing all categories of Brady violations:
"The evidence is material only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine confidence in the
outcome." Bagley, 473 U.S. at 682; accord Cone v. Bell, 556 U.S. 449, 470, 129 S. Ct.
1769, 173 L. Ed. 2d 701 (2009). The Bagley Court emphasized that this reasonable
probability test for materiality is "sufficiently flexible to cover the 'no request,' 'general
request,' and 'specific request' cases of prosecutorial failure to disclose evidence favorable
to the accused" that had previously served as the lines of demarcation for applying the
Agurs sliding scale test. Bagley, 473 U.S. at 682. The Bagley Court did not specifically
overrule Agurs, but it clearly rejected the use of a sliding scale analysis. Bagley, 473 U.S.
at 682; see Stacy, The Search for the Truth in Constitutional Criminal Procedure, 91
Colum. L. Rev. 1369, 1392-93 (1991) (noting that Bagley adopted the narrowest of three
potential materiality standards).

29

Subsequently, the Supreme Court has explained that the reasonable probability test
does not require a demonstration that disclosure of the evidence would have resulted in
the defendant's acquittal. Instead, it must be shown that "'the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.' [Citation omitted.]" Youngblood v. West Virginia, 547 U.S.
867, 870, 126 S. Ct. 2188, 165 L. Ed. 2d 269 (2006).

Despite these rulings of the United States Supreme Court, which control our
analysis of a due process issue brought under the United States Constitution, some
Kansas cases decided after Bagley have continued to refer to the abandoned Agurs sliding
scale materiality test. See, e.g., Adams, 280 Kan. at 501; Aikins, 261 Kan. at 381; State v.
Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986). These cases applying the sliding
scale materiality test have not cited an independent Kansas basis for continuing to use the
test and have failed to recognize the Supreme Court's disapproval of the test. Other cases
have appropriately applied the reasonable probability test. Francis, 282 Kan. at 151;
Haddock, 282 Kan. at 507; Ludlow v. State, 37 Kan. App. 2d 676, 685, 157 P.3d 631
(2007). To reconcile these conflicting lines of cases, we clarify that the Agurs sliding
scale test no longer applies and disapprove those cases utilizing the test.

In our past cases applying the sliding scale test, this court reviewed the trial court's
application of the test under an abuse of discretion standard. E.g., Adams, 280 Kan. at
501; Aikens, 261 Kan. at 381. In contrast, this court typically conducts a de novo review
of materiality, at least in other contexts. E.g., State v. Inkelaar, 293 Kan. 414, 424, 264
P.3d 81 (2011) (determining materiality of evidence under K.S.A. 60-455); State v.
Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010) (determining materiality of
evidence as part of relevancy equation). Our treatment of materiality determinations in
these other contexts raises the question of whether an abuse of discretion standard should
be applied when reviewing a trial court's ruling regarding an alleged Brady violation
under the reasonable probability test. Consistent with our general treatment of materiality
30

determinations, federal courts uniformly hold that the determination of a Brady violation
is a legal question. Consequently, that question is reviewed de novo with deference to any
factual findings. E.g., United States v. Turner, ___ F.3d ___, No. 10-60917, 2012 WL
716885, at *2 (5th Cir. 2012). Some of these federal courts have explained that a de novo
review of materiality does not conflict with the application of the abuse of discretion
standard to the question of whether the trial court erred in ruling on a request for new
trial. As one federal court explained:

"The district court's determination as to the existence of a Brady violation is reviewed de
novo, United States v. Miller, 161 F.3d 977, 987 (6th Cir. 1998), but the district court's
denial of [the defendant's] motion for new trial is reviewed under an abuse of discretion
standard. United States v. Jones, 399 F.3d 640, 647 (6th Cir. 2005). '"A district court
abuses its discretion when it applies an incorrect legal standard, misapplies the correct
legal standard, or relies upon clearly erroneous findings of fact."' [Citation omitted.]"
United States v. Holder, 657 F.3d 322, 328 (6th Cir. 2011).

See also, e.g., Turner, ___ F.3d ___, 2012 WL 716885, at *2 ("We review the denial of a
motion for a new trial for abuse of discretion but consider alleged Brady violations de
novo. This de novo review 'must proceed with deference to the factual findings
underlying the district court's decision.'"); United States v. Pelisamen, 641 F.3d 399, 408
(9th Cir. 2011) ("While the standard of review for a trial court's denial for a motion for a
new trial is generally abuse of discretion, review is de novo when the asserted basis for a
new trial is a Brady violation."); United States v. Wilson, 624 F.3d 640, 661 n.24 (4th Cir.
2010) ("[M]otions for a new trial based on an alleged Brady violation are reviewed for
abuse of discretion. It is an abuse of discretion for the district court to commit a legal
error—such as improperly determining whether there was a Brady violation—and that
underlying legal determination is reviewed de novo."); United States v. Graham, 484
F.3d 413, 416-17 (6th Cir. 2007), cert. denied 552 U.S. 1280 (2008) (The appellate court
"reviews denial of a motion for a new trial based on Brady violations under an abuse of
discretion standard," but reviews "the district court's determination as to the existence of
31

a Brady violation . . . de novo."); United States v. Pelullo, 399 F.3d 197, 202 (3d Cir.
2005), cert. denied 546 U.S. 1137 (2006) (An appellate court ordinarily reviews "a
district court's ruling on a motion for a new trial on the basis of newly discovered
evidence for abuse of discretion." But, where "the motion for a new trial is based on a
Brady claim, which presents questions of law as well as questions of fact," the appellate
court "'will conduct a de novo review of the district court's conclusions of law as well as
a "clearly erroneous" review of any findings of fact.'").

These decisions are consistent with one part of our three-part abuse of discretion
standard, specifically, the one prong under which judicial discretion is abused if judicial
action is based on an error of law. Ward, 292 Kan. 541, Syl. ¶ 3. Consequently, we hold
that a trial court's determination as to the existence of a Brady violation is reviewed de
novo with deference to a trial court's findings of fact, but the trial court's denial of the
defendant's motion for new trial is reviewed under an abuse of discretion standard.

As a final note of clarification, we address the role of the harmless error standard
in a Brady analysis because the State has cited to this standard, although it has done so in
the context of the sliding scale test. The United States Supreme Court has explained that
"once a reviewing court applying Bagley has found constitutional error, there is no need
for further harmless-error review." Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555,
131 L. Ed. 2d 490 (1995). Although Kyles was a habeas action—in other words, a
collateral attack—the federal courts and commentators have recognized there is no need
to conduct a harmless error analysis if a Brady violation is found in a direct appeal. E.g.,
United States v. Kohring, 637 F.3d 895, 902 (9th Cir. 2011); Kahn, Presumed Guilty
Until Proven Innocent: The Burden of Proof in Wrongful Conviction Claims under State
Compensation Statutes, 44 U. Mich. J.L. Reform 123, 160 n.164 (Fall 2010) (noting that
Brady violations are exempt from harmless error analysis); see United States v. Snipes,
751 F. Supp. 2d 1279, 1288 n.9 (M.D. Fla. 2010) ("The 'reasonable probability' standard
is substantially the same as the classic 'harmless error' standard.").
32


With these principles in mind we turn to application of the reasonable probability
test to the facts of this case.

Application of Reasonable Probability Test

Again, in applying the reasonable probability test we must make a de novo review,
giving deference to the trial court's factual findings, of whether there is a reasonable
probability that, had Moore's juvenile burglary adjudication been disclosed to the defense
before the end of Warrior's trial, the result of the proceeding would have been different.
In other words, does the evidence put the whole case in such a different light as to
undermine confidence in the verdict? Although not stating the test in these terms, the trial
judge answered the question by stating, "I don't believe that it would have had any
impact."

Our de novo review leads us to the same conclusion. Certainly, as Warrior points
out in her appellate brief, Moore was a key witness for the prosecution in that Moore
provided "first-hand knowledge" of Warrior's involvement in Jeremy's murder, detailing
the plan and the execution of the plan. Yet, as the State observed, the credibility of Moore
on the question of dishonesty was thoroughly attacked at trial. During defense counsel's
extensive cross-examination of Moore, Moore admitted to initially naming a person other
than Rodgers as the shooter and identifying that person in a photo lineup, changing his
versions of events, repeatedly lying to officers, and "making up stuff." Moore also
admitted to testifying in exchange for a plea agreement with the State. He was
significantly impeached on his motive for testifying and his capacity for truthfulness—
the very factors that, according to Warrior, make this juvenile adjudication evidence
prejudicial. See State v. Armstrong, 240 Kan. 446, 452, 731 P.2d 249, cert. denied 482
U.S. 929 (1987) (impeachment evidence not material where witness had been impeached
at trial with his prior inconsistent statements and with alleged "concessions" made to his
33

son); see also, e.g., Morris v. Ylst, 447 F.3d 735, 741 (9th Cir. 2006), cert. denied 549
U.S. 1125 (2007) (indicating that if suppressed evidence is merely cumulative, then the
failure to disclose is not a violation); United States v. Trujillo, 136 F.3d 1388, 1394 (10th
Cir.), cert. denied 525 U.S. 833 (1998) (stating undisclosed impeachment evidence is
immaterial where it was cumulative of evidence of bias or partiality already presented
"and thus would have provided only marginal additional support for [the] defense");
Spence v. Johnson, 80 F.3d 989, 995 (5th Cir.), cert. denied 519 U.S. 1012 (1996)
(stating information is not material under Brady if it is merely cumulative of other
evidence already before the factfinder).

Moreover, the undisclosed adjudication was for an offense committed by Moore as
a juvenile and 14 years before the trial. Given that, evidence of the adjudication added
little to the impeachment evidence presented to the jury.

Therefore, it cannot be concluded that there was a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different. The confidence of the jury's verdict has not been compromised.

HEARSAY REGARDING MARITAL STRIFE

Next, Warrior argues the trial court erred in allowing the State to present hearsay
testimony regarding statements made by Jeremy indicating his belief that his marriage
was in trouble. This testimony came from two witnesses—Jeremy's uncle and a friend
who was also a coworker of Jeremy's. Jeremy's uncle testified that Jeremy was
considering a divorce. The uncle described a telephone conversation several weeks before
Jeremy's death in which Jeremy complained about Warrior being out all night. The uncle
asked, "'Well, do you think she is messing around?'" Jeremy did not give him an answer
but said he was going to wait a couple of weeks to make a decision. About a week later,
Jeremy reported things had improved. But Jeremy's uncle testified, "[T]he night before he
34

got shot, he had called me and said that she had been gone all of that night, most of that
night."

The other witness, Jeremy's friend and coworker, testified Jeremy had confided
about trouble in his marriage and suspected Warrior was not working as many hours as
she claimed to be. The day before Jeremy was killed, the friend suggested Jeremy check
Warrior's pay stub to see if her pay correlated with her claims of working late and then he
should confront her.

During the testimony of both witnesses, Warrior objected on the basis of
"hearsay." Although the trial court found that the statements did not constitute hearsay
because they were not offered for the truth of the matter asserted, it also found the
statements showed Jeremy's "impressions" and "feelings" at the time he made them,
implying they fit into a hearsay exception. In making these rather ambiguous findings,
the trial court did not explicitly reference any statutory exceptions to hearsay. Although
the State notes that the trial court found the statements were not offered for the truth of
the matter asserted, it did nothing more to advance this argument on appeal. Even if it
had, the evidence of Jeremy's growing suspicions and discussions of divorce―indeed, the
truth that those existed―impacted the State's evidence of motive. All but conceding this,
the State offers suggestions for hearsay exceptions under which the trial court's rulings
might fall.

Despite the State's suggestions, it is impossible from the record to determine
which, if any, exceptions the trial court might have contemplated as a basis for admitting
the evidence. We need not attempt to divine the trial court's rationale, however, because
even if the evidence was erroneously admitted, the admission was harmless.

In making that determination in the context of a violation of evidentiary
limitations proscribed by the Kansas Code of Evidence, as opposed to a violation of a
35

constitutional right, we apply the statutory harmless error standard of K.S.A. 60-261 and
K.S.A. 60-2105 to determine if there is a reasonable probability the error affected the
outcome of the trial in light of the record as a whole. The State, as the party benefitting
from the introduction of the evidence, has the burden of persuasion. State v. McCullough,
293 Kan. 970, 270 P.3d 1142 (2012) (citing Ward, 292 Kan. at 568-69).

Here, the State has met that burden, primarily because the evidence from these two
witnesses regarding Jeremy's suspicions added little to the considerable evidence from
Moore and from Warrior herself about Warrior's and Rodgers' relationship. Moore
testified that Rodgers and Warrior were having an affair. Warrior admitted to an
extramarital affair and explained the when, where, and how aspects of the two spending
time together on an almost daily basis. The jury heard the recording of Warrior's
statements in her third hospital interview, in which she said she was falling in love with
Rodgers and that her behavior caused problems with Jeremy because she was staying out
late at night. Jeremy did not know about the affair, but he had his suspicions, she stated.
These statements by Warrior are essentially the same as the hearsay statements to which
she objects. The hearsay evidence added little or nothing to the issue.

Hence, we find the admission of the evidence, assuming it was error, to have been
harmless.

DEADLOCKED JURY INSTRUCTION

Next, Warrior challenges language found in an instruction given to the jury before
deliberations that stated "[a]nother trial would be a burden on both sides." This
instruction mirrored a prior version of PIK Crim. 3d 68.12 (2005 Supp.), commonly
known as the "deadlocked jury" instruction or Allen-type instruction. See Allen v. United
States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). Warrior admits she did not
object to the instruction and that the clearly erroneous standard of review applies as a
36

result. See K.S.A. 22-3414(3). Nevertheless, she argues the trial court clearly erred in
giving the instruction in light of our disapproval of this language in State v. Salts, 288
Kan. 263, 265-66, 200 P.3d 464 (2009).

Subsequent to Salts, this court has consistently confirmed its holding, which
means that the instruction in this case was erroneous. But in numerous cases applying this
holding, we have concluded that giving the instruction with the challenged language was
not clear error. See, e.g., State v. Burnett, 293 Kan. 840, 270 P.3d 1115 (2012); State v.
Washington, 293 Kan. 732, 740, 268 P.3d 475 (2012) (listing cases). Instructions are
clearly erroneous only if the reviewing court is firmly convinced there is a real possibility
the jury would have rendered a different verdict if the trial error had not occurred. Salts,
288 Kan. at 265-66.

Warrior attempts to distinguish the long list of cases that hold the instructional
error was not clearly erroneous by arguing the evidence against her "was largely
circumstantial and not overwhelming." This argument is not persuasive. There was ample
evidence, both circumstantial and direct, of Warrior's guilt. There was evidence Warrior
was having an affair with Rodgers, she plotted her husband's death with Rodgers and
Moore, she offered to pay Moore out of the proceeds from her husband's life insurance
policies, she rented the SUV used by Rodgers and Moore in the attack, she led Rodgers
and Moore to her house on that fateful morning, she had at least one telephone
conversation with Rodgers just moments before the shooting, and she signaled to
Rodgers as she drove down the street. In addition to Moore's testimony, independent
evidence corroborated many of these details.

Moreover, Warrior's argument does not suggest why the misleading nature of the
instruction might have made a difference in the jury's deliberations. Nothing in the record
demonstrates the jury was near deadlock, deadlocked, pressured to reach a verdict, or
concerned about the implications of another trial.
37


Consequently, we conclude there was not a real possibility that the jury would
have rendered a different verdict had the error not occurred. The trial court's giving the
Allen-type jury instruction was not clearly erroneous.

CONSTITUTIONALITY OF K.S.A. 21-4635

Next, Warrior contends that because a jury does not determine the facts that
increase the penalty beyond a reasonable doubt, Kansas' hard 50 sentencing scheme
under K.S.A. 21-4635 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119
S. Ct. 1215, 143 L. Ed. 2d 311 (1999).

This court has previously rejected the same challenge in numerous cases. See, e.g.,
State v. McCaslin, 291 Kan. 697, 729-30, 245 P.3d 1030 (2011); State v. Ellmaker, 289
Kan. 1132, Syl. ¶ 11, 221 P.3d 1105 (2009), cert. denied 130 S. Ct. 3410 (2010); State v.
Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009); State v. Conley, 287 Kan. 696, 700-
01, 197 P.3d 837 (2008); State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008);
State v. Reid, 286 Kan. 494, Syl. ¶ 23, 186 P.3d 713 (2008). Warrior does not present any
grounds for reconsidering our prior holdings, and based on those holdings, her argument
fails.

CUMULATIVE ERROR

Finally, Warrior argues that cumulative error requires reversal of her convictions
and remand for a new trial. She contends that even if the errors alleged on appeal do not
individually require this court to reverse her convictions, the cumulative impact of the
alleged errors denied her a fair trial. As discussed, the trial court erred in giving an
erroneous deadlocked jury instruction and we have assumed the court erred in admitting
38

the hearsay evidence regarding Jeremy's statements about his deteriorating marriage. Two
other points of error must also be discussed.

The first of these is one that Warrior points to in her brief. She states in passing
that during trial testimony a witness expressed his personal opinion that Warrior was
involved in the shooting. Defense counsel objected to this statement, and the trial court
ordered the witness' response to be stricken. Warrior fails to cite any authority or make
any argument to support the contention that this incident, which was immediately dealt
with by the trial court, contributes to "cumulative error." Moreover, we see no basis to
believe the jury did not follow the court's instruction to disregard the evidence.
Consequently, any harm caused by this error is extremely minimal, if not nonexistent.
But the error did occur, even if immediately remedied.

The second point relates to the alleged Brady violation. The State admits it failed
to provide exculpatory evidence that was within the State's control. Nevertheless, we
have determined there was not a Brady violation because the evidence was not material.
The role of a failure to disclose evidence that is not a Brady violation in a cumulative
error analysis seems to be a matter of some debate with federal courts adopting different
approaches. For example, one panel of the Ninth Circuit Court of Appeals recently held
that the failure to provide exculpatory evidence that was not material does not factor into
a cumulative error analysis. See United States v. Wilkes, 662 F.3d 524, 543 (9th Cir.
2011). On the other hand, a different Ninth Circuit panel combined the materiality
analysis of the Brady violation and a prosecutorial misconduct analysis, although it noted
that "[i]t is unclear whether we should employ Brady's prejudice standard to evaluate the
cumulative effect of the prosecutorial misconduct and the non-disclosure." Hein v.
Sullivan, 601 F.3d 897, 914 (9th Cir. 2010). Because of this uncertainty, we reserve the
determination of the question for another day when the parties in a case have argued the
question. For our purposes, we will give Warrior the benefit of considering the failure to
disclose in our cumulative error analysis. Nevertheless, because we have held that there
39

was not a Brady violation, we will not consider the State's failure to disclose the
information as a constitutional error.

Hence, we consider the cumulative effect of four nonconstitutional errors—the
Salts error, the assumed hearsay error, the witness' statement regarding his belief in
Warrior's guilt, and the failure to disclose Moore's 14-year-old juvenile adjudication.

"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless. [Citation omitted.] In other words, was the defendant's right
to a fair trial violated because the combined errors affected the outcome of the trial?"
State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011).

Where, as here, the only errors we have found or assumed are not constitutional in
nature, we examine whether there is a reasonable probability the aggregated errors would
have affected the outcome of the trial. See State v. Ward, 292 Kan. 541, 578, 256 P.3d
801 (2011), cert. denied 132 S. Ct. 1594 (2012). In making the assessment of whether the
cumulative errors are harmless error, an appellate court examines the errors in the context
of the record as a whole considering how the trial court dealt with the errors as they
arose, including the efficacy, or lack of efficacy, of any remedial efforts; the nature and
number of errors committed and their interrelationship, if any; and the strength of the
evidence. See Ward, 292 Kan. at 578.

As we have discussed, none of these errors or presumed errors were independently
significant. The hearsay was cumulative of statements made by Warrior herself, the court
immediately told the jury to disregard the witness' opinion regarding Warrior's guilt,
Moore's juvenile adjudication was cumulative, and there is no reason to believe the Salts
error had any impact. Further, these errors were not related. Finally, the evidence against
Warrior, while largely circumstantial or based on a codefendant who had entered a plea,
40

was strong. Although Warrior's statements were inconsistent, in some of her interviews
she implicated Rodgers as the shooter. And the telephone records show her contact with
Rodgers just before the murder thereby providing circumstantial evidence implicating
her. Furthermore, a neighbor identified the vehicle Warrior had rented as the vehicle at
the scene, and another testified to seeing her lights off and then on―the prearranged
signal, according to Moore. Moore, whose statements and testimony must be viewed in
the light of our knowledge that he had a plea agreement with the State, provided details
that were consistent with the telephone records, the neighbor's accounts of what they saw,
the pathologist's opinion, and Warrior's own statements.

In light of the record as a whole, we conclude there is not a reasonable probability
the combined errors affected the outcome of the trial.

Affirmed.