IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 87,383
STATE OF KANSAS,
Appellee,
v.
MARCUS B. WASHINGTON,
Appellant.
SYLLABUS BY THE COURT
1. In reviewing a challenge under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), concerning the State's use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court.
2. The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.
3. On appeal, the reviewing court is required to accept as true the statements of fact given by the prosecutor for purposes of determining whether the prosecutor gave race-neutral reasons for the strike if the defendant failed to object to the statement.
4. An appellate court reviews the factual underpinnings of a district court's decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.
5. The proper analysis of whether a person is in custody is an objective analysis that ignores subjective beliefs, personality, and mental capacity of the defendant. The proper analysis is how a reasonable person in the suspect's position would have understood the situation. If a reasonable person would have felt that he or she was in custody, any statement given before the suspect was advised of his or her Miranda rights must be excluded.
6. On appeal, the reviewing court must conduct a two-part test for the evaluation of a claim of ineffective assistance of counsel. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or sentence resulted from a breakdown in the adversary process that renders the result unreliable.
7. A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial. However, a defendant's right to call and examine witnesses is not absolute and on occasion will be overridden by other legitimate interests in the criminal trial process.
8. The admissibility of evidence lies within the sound discretion of the trial court. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, the trial court has not abused its discretion.
9. The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
10. The Sixth Amendment provides that the criminal defendant have the right to be confronted with witnesses against him. The Confrontation Clause of the Sixth Amendment of the United States Constitution affords the accused the right to cross-examination. However, the criminal defendant's right to cross-examination is generally subject to the rules of evidence. The scope of cross-examination is a matter within the sound discretion of the trial court and, absent a showing of clear abuse, the exercise of that discretion will not constitute prejudicial error.
11. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The evaluation of witness credibility is for the jury.
12. Ordinarily, the appellate court will not consider an issue which has not been raised before the trial court and which has not been raised by the parties on appeal. However, the appellate court has the power to consider sua sponte an issue for the first time on appeal if to do so is necessary to serve the ends of justice or to prevent the denial of fundamental rights.
Appeal from Wyandotte district court, JOHN J. MCNALLY, judge. Opinion filed May 9, 2003. Convictions affirmed, sentences vacated, and case remanded for resentencing.
Janine Cox, assistant appellate defender, argued the cause, and Steven R. Zinn, deputy appellate defender, was with her on the brief for appellant. Marcus B. Washington, Jr., appellant, was on a supplemental brief pro se.
Jerome A. Gorman, assistant district attorney, argued the cause, and Terra D. Morehead, assistant district attorney, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Marcus Washington was convicted of first-degree premeditated murder and criminal possession of a firearm based upon the January 16, 2000, shooting death of Stacey Quinn. The defendant was sentenced to 50 years in prison without the possibility of parole (a hard 50 sentence). He contends that numerous errors occurring before, during, and after trial require reversal of his convictions and a new trial. Based upon the record and for reasons set forth in this opinion, we affirm the defendant's convictions, vacate his sentences, and remand for resentencing.
Officer James Bauer of the Kansas City, Kansas Police Department responded to a report of shots fired in the neighborhood of 33rd and Farrow at 1:26 a.m. He found a woman later identified as Stacey Quinn, laying on the lawn of Beatrice Cannon's home at 3217 Farrow. Medical personnel summoned to the scene determined that Quinn was dead.
Erik Mitchell, a forensic pathologist, testified that Quinn suffered a number of gunshot injuries, with entry and exit wounds to her neck, chest, torso, and extremities. Dr. Mitchell recovered a bullet from Quinn's clothing and another from the surface of Quinn's neck. He also recovered a bullet from Quinn's liver. Dr. Mitchell opined that Quinn died from the gunshot wounds, which caused internal hemorrhaging and great blood loss.
Neighbors' Trial Testimony
Erica Warrior, who lived next door to where Quinn's body was found, testified that she heard gunshots in the early morning hours, dialed 911, and then heard a young woman cry for help. After the 911 call, Warrior heard another set of gunshots. Contrary to the defendant's testimony, Warrior did not hear tires screeching and did not hear a car speeding away. She also did not hear the victim make a threatening statement.
John Carr also lived next door to the crime scene. At approximately 1:30 a.m., he heard a volley of about 10 shots, which lasted about 5 seconds. The shots sounded to Carr like they came from a handgun. Carr testified he then heard a woman cry for help. According to Carr, he heard the woman say, "Help me, oh help me, please somebody help me." Carr testified that the woman's cry sounded like it came from Cannon's house.
Carr called the authorities, and as he was calling he heard a second volley of shots. Carr believed the second volley also contained 10 shots and lasted about 5 seconds. Carr said that 1 minute lapsed between the first volley of shots and the woman's cry, and less than 1 minute lapsed between the cry and the second volley. He did not hear an automobile collision or screeching tires during this time.
Carr's daughter also testified and generally confirmed her father's testimony. In addition, she testified that she looked out of her bedroom window and viewed a man with a gun run across the front lawn of her house. Carr's daughter identified the defendant to the jury as the man she saw run in front of her house.
Mashan Minor, who resides three houses from the crime scene, testified that the early morning shots woke her up. She opened her front door and saw a young lady hopping in the street on the corner of 33rd and Farrow. Minor observed that a shoe was in the middle of the street. She also heard the victim at Cannon's house knocking on the door and pleading for help. Minor looked out the door again and observed someone standing in Cannon's driveway. Minor shut her door and then heard another round of gunfire.
Investigation of Evidence at the Crime Scene
After calling for medical help, Officer Bauer testified he noticed blood at one location and shell casings at two different locations. Marvin Main, a crime scene technician for the police department, identified and gathered the shell casings at 33rd and Farrow and those found near the body of the victim. He found no firearm at the scene or on the body of the victim. He recovered a bullet from the living room of Cannon's house. Officers also recovered .40 caliber bullets from the scene, in addition to one .25 caliber casing which tended to support the defendant's theory that Quinn shot at him with a small caliber firearm.
Officers found a Chevrolet Cavalier parked on 33rd Street not far from where Quinn's body lay. The vehicle's engine was still warm. The car was locked, but the keys were lying on the back floorboard of the vehicle. The Chevrolet Cavalier was registered to Nina Betts. Detective Zeigler, along with another detective, Roger Golubski, contacted Betts at her apartment between 8:30 and 8:45 that morning. The defendant answered their knock at the door, and Zeigler asked to speak with Betts. Zeigler went outside with Betts and asked about her car. According to Zeigler, Betts said that when her mother had left around 11 the night before, her car was still parked outside. There was no indication, such as broken glass, that the car had been stolen.
Betts told Zeigler that the defendant had been at her apartment the entire evening. Zeigler wanted to get both the defendant and Betts to the detective bureau to see whether their stories matched. Zeigler asked the defendant to go to the detective bureau, and the defendant agreed. Zeigler also asked Betts' permission to search her apartment. She agreed, and officers found a styrofoam container for bullets in the bathroom. They also found a bullet on the floor of a closet in a bedroom and a handgun in the closet which was later identified as the one used against the victim, Stacey Quinn. Betts had denied that any firearms were in her apartment.
Zeigler and his partner, Golubski, took Betts' statement at the detective bureau at around 1:15 p.m., and then took the defendant's statement. At one point during the discussions with the defendant, he began to cry uncontrollably. The detectives concluded that the defendant might implicate himself in the shooting. After settling the defendant down, the detectives advised him of his Miranda rights. He acknowledged these rights and elected to talk to the detectives. He admitted his involvement in the shooting. An audiotape of the defendant's statement was played for the jury, and a transcript from the interview was shown to the jury.
The defendant testified that he was deathly afraid of a man by the name of Hill at the time of the shooting, who, according to the defendant, had made prior attempts on the defendant's life. He believed the victim, Stacey Quinn was involved with Hill in a plot on his life. Because of this fear, the defendant testified he acted in self-defense in shooting Quinn. Consistent with psychiatric testimony on his behalf, the defendant testified that he had not intended to kill Quinn and that he had not possessed the mental state necessary to commit the crime of premeditated murder.
The defendant's ex-wife, Sony Reeves, testified that Hill demonstrated threatening behavior toward the defendant on two occasions and, after each of these incidents, the defendant was very scared. In August or September 1999, she bought the .40 caliber handgun because there had been break-ins at the apartments where she lived. Reeves left the handgun at the house of the defendant's mother when she and the defendant separated in October 1999. On cross-examination, Reeves identified the firearm recovered from Betts' apartment as the one she had purchased.
Betts testified that there was no damage to the Chevrolet Cavalier on the day before the shooting. However, after the shooting, Betts noted that there was a dent behind the driver's side door. Betts also testified that after the shooting, there were approximately five to eight new dents on the passenger door which looked like buckshots.
The defendant testified concerning the first incident between him and Hill which occurred in a parking lot during the summer of 1997. The defendant told the jury that Hill fired shots at him and that he had been afraid of Hill from that time on. The defendant did not report this incident to the police. The second incident occurred in June 1998 while the defendant attended a barbecue. A vehicle pulled up to the house and stopped, and Hill emerged from the vehicle pointing a gun at the defendant. The defendant testified he dove through a screen door to protect himself. The police were called, and they responded to the scene.
The defendant testified that as a result of the two incidents he had been having nightmares in which he was killed as a result of an altercation with Hill. In his dream, the defendant was unable to make it through the screen door. The defendant testified that his fear of being killed existed at the time of the shooting and continued to exist at the time of his testimony at trial.
The defendant also described for the jury his version of the events that led to Quinn's death. He received a call from his mother the night before the shooting. She asked him to pick up his younger brother from a skating rink which closed at 11:30 p.m. The defendant picked up his brother from the skating rink and dropped him off at his mother's house. He then visited a friend for about an hour, leaving around 1 a.m. and drove by his mother's house to make sure that everything was in order there.
After driving past his mother's house, he saw a woman frantically waving her arms along the street in the area of 27th and Brown. The defendant partially rolled down his window to see what the trouble was. The woman, who was later identified as Quinn, asked the defendant whether he had any "yay." The defendant said that he did not sell drugs. Quinn asked for a ride, and the defendant agreed to give her a lift. Quinn asked the defendant to let her visit a house at 3216 Farrow. The defendant turned right off of Farrow onto 33rd Street and waited for Quinn to return to his car. Quinn returned to the defendant's car, and the defendant began to reverse toward Farrow to leave.
At this point, the defendant said that another vehicle heading east on Farrow struck his car while he was in the process of backing onto Farrow. The defendant said that he panicked and drove a short distance forward on 33rd and then stopped.
The defendant said that he believed Hill or Hill's relatives were somehow involved in the collision. The defendant grabbed the .40 caliber firearm and got out of the car. Quinn tried to wrestle the gun away from the defendant, but the defendant managed to get the gun and exit the vehicle. The defendant proceeded to walk down 33rd toward the intersection of 33rd and Farrow. The vehicle that collided with the defendant's vehicle approached the defendant. He pointed his firearm at the car, and the car reversed away from the defendant. The defendant shot at the vehicle. The defendant said that he was fearful.
As he returned to his vehicle in order to call the police, Quinn confronted him pointing a small caliber chrome firearm directly at him from the middle of the street. The defendant described the woman as wild-eyed and shaking. He thought that Quinn was under the influence of something. The defendant testified that Quinn said that she was going to "fuck [him] up." According to the defendant, Quinn fired first and he fired back without stopping until his gun was empty.
The defendant said he went back to his car but the keys that he thought were in the ignition when he left his car were gone. The defendant ran down the street, and a man picked him up and took him home. The defendant told the jury he did not intend to shoot Quinn. When he returned to Betts' apartment, Betts was there, and she was sleeping.
The defendant called Steven Weinberg, an accident reconstructionist, to testify. In Weinberg's opinion, the damage to Betts' car was consistent with the story that his car was parked and that it was impacted by a larger vehicle. Weinberg testified that the damage to the passenger side of the vehicle appeared to be caused by gunshots. Weinberg observed eight distinctive dents. Weinberg opined that a small-caliber firearm, either a .22 or a .25 caliber would have caused the damage to the passenger side of the vehicle. According to Weinberg, the bullets came at an angle from the rear of the car, which was consistent with the defendant's story that he encountered Quinn standing in the middle of Farrow.
The defendant also called Gilbert Parks, a psychiatrist, to testify. Dr. Parks testified he met with the defendant on five different occasions and the defendant talked to Dr. Parks about the two incidents involving Hill. Dr. Parks believed each of the incidents involving Hill were key to understanding the defendant's emotional state. Dr. Parks testified that the incidents between Hill and the defendant were traumas for the defendant. Dr. Parks diagnosed the defendant with having suffered from posttraumatic stress disorder (PTSD) on the day of the shooting. Dr. Parks said that when Quinn pointed a gun at the defendant, it was just another of a string of incidents during which the defendant perceived a threat to his life. It was Dr. Parks' opinion that the defendant did not possess the requisite intent of willfulness when he shot Quinn. Dr. Parks believed that the defendant was not capable of intentionally shooting Quinn that day.
In rebuttal, William Logan, a psychiatrist, criticized Dr. Parks' diagnosis. Dr. Logan reviewed a report written by Dr. Parks and found that it did not list the qualifying symptoms for PTSD. Dr. Logan questioned why Dr. Parks did not interview the people surrounding the defendant to verify the symptoms the defendant described. Dr. Logan said that PTSD did not explain why the defendant would have followed Quinn to Cannon's front steps. Further, Dr. Logan found it questionable that someone suffering from PTSD would pick up a stranger so early in the morning.
To counter Dr. Logan's testimony, the defendant called another psychiatrist, Elizabeth Roberta Hatcher, who testified that after reviewing Dr. Parks' report she did not find anything that would lead her to believe the defendant was not suffering from PTSD.
The Defendant's Claims on Appeal
With the aid of appellate defense counsel, the defendant raises the following claims: (1) Racial bias in the selection of the jury, (2) failure to suppress his confession, (3) exclusion of evidence in support of his trial theory, (4) prosecutorial misconduct, (5) limitation of cross-examination, (6) insufficiency of evidence to support first-degree premeditated murder, (7) refusal of trial court to provide posttrial counsel with a trial transcript resulting in a lack of adequate representation for the defendant in his motion for new trial and in his sentencing, and (8) a violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), in his hard 50 sentence. In addition, the defendant assigns six errors in his pro se brief, most of which are raised above by appellate defense counsel.
(1) Racial bias in the selection of the jury.
The defendant argues the State's use of its peremptory challenges violated his equal protection rights under the Fourteenth Amendment to the United States Constitution, as interpreted in Batson v. Kentucky, 476 U.S. 79, 84-89, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). This court's standard of review is set forth in State v. Vargas, 260 Kan. 791, 794-95, 926 P.2d 223 (1996):
"In reviewing a Batson violation concerning the State's use of a peremptory challenge, the applicable appellate standard of review is whether the trial court abused its discretion in determining if the challenged strikes were constitutionally permissible. State v. Walston, 256 Kan. 372, 373-74, 886 P.2d 349 (1994). Judicial discretion is abused only when exercised in an arbitrary, fanciful, or unreasonable manner, or in other words, when no reasonable person would take the view adopted by the trial court. Walston, 256 Kan. at 374 (citing State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 [1991]).
"The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Batson, 476 U.S. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. 476 U.S. at 97-98. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination. 476 U.S. at 98."
In State v. Bolton, 274 Kan. ___, 49 P.3d 468, 475 (2002), we said that review of the first step (whether the defendant has made a prima facie showing that the prosecution has used peremptory challenges on the basis of race) is a question of legal sufficiency subject to plenary review. We also confirmed in Bolton that the standard of review for the third step (whether the trial court erred in determining the defendant has failed to carry the burden of establishing purposeful discrimination) was deferential: "A reviewing court gives great deference to findings of the district judge in actions of this nature because the findings turn upon evaluation of the credibility of the prosecutor." 49 P.3d at 476. See State v. Douglas, 274 Kan. ___, 49 P.3d 446, 452 (2002).
The defendant acknowledges the holding of the United States Supreme Court in Purkett v. Elem, 514 U.S. 765, 767-68, 131 L. Ed. 2d 834, 115 S. Ct. 1769 (1995), with reference to Batson's second step:
"The second step of this process does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.' [Citations omitted.]"
The defendant argues that we should interpret the Kansas Constitution as providing more protection to its citizens than United States Constitution provides under Purkett. We rejected this argument in Bolton:
"Bolton presents no argument that would warrant this court to find the Kansas Constitution provides greater protection under this particular circumstance. Thus, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike to satisfy the second step of the Batson analysis." 49 P.3d at 480.
Nevertheless, the defendant also argues that his equal protection rights were violated under Batson and Purkett because the State failed to give factually correct reasons for the strikes of venireperson Spratt and venireperson Anderson. This argument is addressed below.
The jury selected to hear the defendant's case was composed of two African-Americans, one Asian-American, one Native American, and eight white jurors. Following the jury selection, the defendant lodged a Batson objection. The defendant noted that of the 12 venirepersons struck by the prosecutor 10 were African-American. As to four of the African-Americans struck, the defendant on appeal concedes that there were legitimate reasons to strike venirepersons Blake, Fielder, and Collins and fails to mention venireperson McDonald. Thus, the defendant abandons any claim of error based upon these persons.
The defendant's arguments concerning the remaining six African-Americans struck by the prosecution fail because he either failed to object to the prosecutor's factual basis for the race-neutral explanations or because the trial court did not err in finding that the State offered a facially valid race-neutral explanation for striking the venirepersons.
On appeal, we accept as true the statements of fact given by the prosecutor for purposes of determining whether the prosecutor gave race-neutral reasons for the strikes if the defendant failed to object to the statements. Bolton, 49 P.3d at 480; see State v. Poole, 252 Kan. 108, 843 P.2d 689 (1992). With the exception of venirepersons Spratt and Powers, the defendant failed to object to the State's statements of fact as to the race-neutral reasons.
Venireperson Spratt
The prosecutor asked venireperson Spratt about her education level because Spratt failed to indicate it on the questionnaire. Spratt said that she graduated high school and junior college. Spratt said that she served on a criminal case 5 to 6 years ago but that she "vaguely" remembered what the prior case was about: "It was--I don't know what you would describe it as. I guess a young man and lady got into an argument at a gas station and it ended up being criminal because she said he took jewelry from her."
In giving a race-neutral reason for striking Spratt from the panel, the prosecutor gave three reasons: (1) Spratt was evasive on what kind of jury trial she had served on, (2) Spratt had a hard time remembering or understanding the concept of what that case was about, and (3) that Spratt "lives in the projects" where there were many homicides. The defendant objected to the reference to the fact that Spratt lived in the projects. The prosecutor reminded the court that there were other reasons for her strike of Spratt.
The defendant argues that "living in the projects" is a proxy for race, citing United States v. Bishop, 959 F.2d 820, 826 (9th Cir. 1992), wherein the court noted that "where residence is utilized as a surrogate for racial stereotypes--as for instance, a short hand for insensitivity to violence--its invocation runs afoul of the guaranties of equal protection." The defendant also disputes that Spratt was vague about her prior jury service.
Spratt admitted that she vaguely remembered the facts of the prior case and that she was unsure about how to describe what seemed to be a simple robbery. This alone constitutes a facially valid, race-neutral reason to strike Spratt. Thus, regardless of how one might view the prosecutor's remarks concerning Spratt's residence, the defendant's Batson challenge as to Spratt fails.
Venireperson Hodges
Venireperson Hodges said that she works two jobs, one of which requires her to work from 5 p.m. until 10 p.m. The prosecutor asked Hodges about her education level because Hodges failed to indicate that information on the questionnaire. Hodges said she had a bachelor's degree in business administration and she had previously served as a juror in a criminal trial which involved a nonhomicide shooting about 15 years ago. In giving a race-neutral reason for striking Hodges, the prosecutor said that Hodges was evasive about her prior jury experience and had a difficult time remembering or understanding the concept of what the case was about.
On appeal, the defendant disputes that Hodges was evasive about her prior jury service. The State cites State v. Thomas, 28 Kan. App. 2d 655, 663, 20 P.3d 82 (2001) (racially neutral reason when prosecutor said potential juror gave prosecutor "very funny, weird looks and she wasn't responding very well"). Like the court in Thomas, this court does not have a way of determining Hodges' demeanor. See 28 Kan. App. 2d at 663. The State also points out the detail with which a white potential juror described his prior jury experience, recalling that the case in which he served as a juror was a robbery and murder and remembering that the prosecutor in the case was now the judge presiding over the defendant's trial. We conclude the trial court was correct in its determination that the State established a facially valid race-neutral reason for striking Hodges.
Venireperson Anderson
Venireperson Anderson volunteered that she was a cousin of Greg Hill. The prosecutor asked Anderson the age of her cousin, and she estimated him to be about 18 years old. When told that the Hill involved in the case was about 28 years old, Anderson said that the two Hills could not be the same person. The prose