Opinion
108,947.
12-12-2014
STATE of Kansas, Appellee, v. Christina DEVINE, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Amy L. Aranda, first assistant county attorney, Marc Goodwin, county attorney, and Derek Schmidt, attorney general, for appellee.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Amy L. Aranda, first assistant county attorney, Marc Goodwin, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, SJ.
MEMORANDUM OPINION
PER CURIAM.
Christina Devine appeals after a Lyon County jury found her guilty of attempted first-degree murder of her newborn baby. Devine admitted to giving birth to a baby on the morning of October 22, 2010, placing the infant in a trash bag, and putting the bag containing the baby in a dumpster. Fortunately, the baby survived. At trial, Devine unsuccessfully claimed mental disease or defect as a defense. On appeal, Devine argues that the jury instruction given by the district court on mental disease or defect was erroneous, that the district court erred in denying her motion for a change of venue, and that the prosecutor committed reversible misconduct during closing arguments. Because we find no reversible error, we affirm.
Facts
On the morning of October 22, 2010, Alex DeLeon, who lived at the Chapel Ridge apartment complex in Emporia—and also worked as a maintenance person there—heard the sound of a baby crying coming from one of the apartment's dumpsters. DeLeon opened the lid of the dumpster and found a baby boy inside a trash bag. DeLeon took the bag out of the dumpster and handed it to a friend who was with him while he called 911. The men wrapped the baby in their shirts to keep him warm until help arrived.
When Emporia Police Officer Todd Ayer arrived at the apartment complex around 8:30 a.m., he located the men and the baby. Officer Ayer held the infant to keep him warm until paramedics arrived at the scene. While the officer was holding the baby, he noticed that the umbilical cord and placenta were still attached to the baby. After handing the baby to the paramedics, Officer Ayer returned to his police vehicle and followed the ambulance to the hospital. At the hospital, the officer seized as evidence the t-shirt, trash bag, hospital identification tag, and a tube of the baby's umbilical cord blood.
Dr. Derek Brown, a pediatrician called to the emergency room to examine the baby, determined that the male infant—who was full term—was suffering from moderate hypothermia and was at risk for infection. Dr. Brown believed the baby had been born approximately 2 hours before being brought to the hospital. The baby was treated at the hospital for 4 days before eventually being transferred to Children's Mercy Hospital in Kansas City due to a bacterial infection. The baby was successfully treated and was ultimately released from the hospital in a healthy condition.
On the day the baby was found, law enforcement contacted local media, released a public service announcement over the radio and television, and contacted hospitals in the area to obtain information regarding the infant. A Wal–Mart employee noticed that one of her fellow coworkers, Devine, no longer looked pregnant when she came to work that day despite having previously appeared to be pregnant. A friend of the Wal–Mart employee, Nicole Cunningham, texted her about a baby being found. In response, the Wal–Mart employee told Cunningham about Devine. Cunningham—who had also worked with Devine at Wal–Mart—contacted Crime Stoppers and then went to Wal–Mart. According to Cunningham, she observed that Devine did not look like her normal self and did not appear to be pregnant as she had appeared previously. Cunningham called Crime Stoppers again to report her observations.
Not knowing about the reports to Crime Stoppers, Emporia Police Department Detective Lisa Sage went through Devine's line at Wal–Mart that day before beginning her shift. Sage had heard about an abandoned baby and noticed that her checker—Devine—was pale and did not look like she felt well. In addition, Sage noticed that Devine's stomach was strangely lumpy and misshapen. After Detective Sage came on duty at 4 p.m., she learned of the calls to Crime Stoppers and was assigned to go to Wal–Mart with Detective Kelly R. Davis to interview Devine.
During the interview, Devine—who was 24 years old at that time—initially told the detectives that she was not pregnant. The detectives then asked her whether a medical examination would show that she had a baby recently and she admitted that it would. Moreover, Devine told the detectives that she had been raped in February 2010, but that she had not reported the crime. The detectives then took Devine to the emergency room at the hospital for an examination. On the way to the hospital, Devine told the detectives that she only figured out that she was pregnant in early October.
When Devine changed out of her clothing for the exam, Detective Sage observed that Devine had balled up a sweatshirt and stuffed in her undergarment over her stomach. At the emergency room, Devine stated that she took a bath at her apartment that morning, fell asleep, and when she woke up, the water had partially drained from the tub. She stated that there was blood everywhere and there was a baby with his head sticking face up out of the water. She also stated that the baby had cried.
Devine also told the detectives that she put the infant—“and all the other stuff that was with the baby”—into a trash bag before cleaning her apartment and herself. She then left her apartment, got into her vehicle, and drove around. Devine claimed that she left the baby's head out of the trash bag the whole time.
Devine was able to tell the officers specifically where she drove at first, but then claimed to have blacked out. Devine was able to recall that at some point she stopped at another apartment complex where she parked, pulled the baby and the trash bag out of her vehicle, walked over to a big green trash dumpster, put the baby into the dumpster, went back to her car, and drove back to her apartment. She also remembered that she finished cleaning her apartment, played with her dog, and watched some television. Devin left her apartment at around 1:15 that afternoon to go to work. She stopped at Braum's to get a chocolate shake on the way, which she drank in the break room before clocking in at 2:32 p.m.
Law enforcement officers obtained search warrants for Devine's vehicle and apartment in the late afternoon on the day the infant was found. During the search of Devine's apartment, the officers seized a box of Hefty trash bags, bloody towels and underwear, a pair of maternity pants, and other items. Three days later, the State filed a complaint against Devine alleging one count of attempted intentional and premeditated first-degree murder.
Prior to trial, Devine filed several motions as well as a notice that she was going to assert mental disease or defect as a defense. One of the pretrial motions filed by Devine was a motion for change of venue. In the motion, she argued that the media coverage of the case created significant prejudice against her in the community. Devine also filed a motion for individual voir dire of jurors or, in the alternative, small panel voir dire. Following a hearing, the district court denied Devine's motion for change of venue but granted her request to use a confidential special juror questionnaire for counsel to use for the course of trial.
Ultimately, a jury trial was commenced on June 25, 2012. After opening statements, the 911 call was played for the jury. Although it is not necessary to discuss every witness who testified at trial, we note that DeLeon was the first witness, and he testified about finding the baby in the dumpster. Additionally, Dr. Brown, the pediatrician who had treated the child at the hospital testified that in his opinion, if the baby had not been found when he was, it would have been “very difficult to bring that body core back to normal temperature,” which could have resulted in death.
Detective Davis testified that during the interview of Devine on the day the baby was found, she appeared to be “pretty calm and collected.” Specifically, Davis stated:
“She relied a lot on statements that she blacked out and then would later as we questioned her some more, she would come up with some more information and talk to us some more about it. And basically built upon all the stories as she continued talking to us throughout the afternoon and evening.”
Detective Davis further testified that he had no difficulty communicating with Devine. Although he indicated Devine was a little upset, she did not cry or yell during the interview. Davis stated that Devine did not like it when he referred to the baby as being her baby. According to Davis, Devine “put her hands up [at one point] and said, you know, I don't want that baby. Keep that baby away from me. I don't want to hold that baby.”
Detective Davis testified that Devine told him that she put the baby in the dumpster because “she didn't want to be a mom. And that she didn't want to take care of it. And she just kind of wanted it to go away.” He also testified that Devine told him that she was aware that there were other options for the baby but did not elaborate.
Detective Sage testified that Devine initially did not tell the officers about having the baby. According to Sage, once Devine admitted that she had the baby, her story remained consistent. Sage also testified that when Devine was told that the baby was alive, she stated that she did not want the baby.
The State also presented evidence that Devine was a student at Emporia State University and had received a Bachelor of Integrated Studies degree in 2009. At the time of her arrest, Devine told the detectives that she was enrolled at Emporia State University to obtain another bachelor's degree in elementary education.
At the conclusion of the State's case, the district court read a joint stipulation to the jury. The stipulation stated that Devine “is the mother of the minor child Baby Boy Devine,” and the court directed the jury to consider this fact to be true. After the State had rested, the defense moved for acquittal. After reviewing the State's evidence, the district court found that a prima facie case had been presented and denied the motion.
The first witness called by the defense was Devine's brother, who testified that his sister had lived with him and his wife on two occasions in 2008 and 2009. According to Devine's brother, his sister did not have any friends over to the house and she mostly stayed in her bedroom where she would suck her thumb while holding a rag. He also felt that her language was very elementary. On cross-examination, however, Devine's brother, who had been just one grade behind her in school, acknowledged that when they were growing up in Hutchinson, his sister had graduated high school on time, had taken classes at Hutchinson Community College, and was admitted at Emporia State. He also testified that while his sister was at Emporia, she was able to get a job as a resident assistant at an Emporia State dorm and held jobs at Applebee's as well as Wal–Mart.
Next, the defense called Caitlin Michael, a coworker of Devine's from Wal–Mart. In addition, Michael and Devine were in Emporia State's community chorus together. She testified that Devine was sweet but that she did not have many other friends. Michael indicated that Devine seemed to be needy and often wanted to talk about herself. Further, Michael testified that although she noticed that Devine looked pregnant, she did not ask Devine about it and avoided the issue.
Peter James Seberger, M.D., an emergency room physician who evaluated Devine on the day the baby was found, testified that she seemed frightened and could only give simple answers to his questions. Dr. Seberger indicated that he requested a mental health screening, but Devine refused. Dr. Seberger also suspected that Devine may have a genetic defect known as neurofibromatosis based on the appearance of her skin.
Devine then called Merlin G. Butler, M.D., a professor at the University of Kansas Medical Center and geneticist, who testified that he reviewed Devine's gene sequencing and determined that she had neurofibromatosis, type 1. Dr. Butler testified that neurofibromatosis is a mutation that causes an overgrowth of tissue on the skin and possibly on other organs as well. In addition, Dr. Butler testified that neurofibromatosis can be related to learning deficits and other problems. But Dr. Butler noted that he had never met or examined Devine. As such, he did not render any opinion regarding whether or not Devine had any of the problems associated with neurofibromatosis.
The defense also called a psychologist, George Athey, Jr., Ph.D. Dr. Athey was retained by the defense to examine Devine in an attempt to evaluate her honesty, cognitive function, and emotional adjustment. Dr. Athey testified that the psychological tests he conducted revealed that Devine scored low on intellectual functioning and that she had some attention deficit. Dr. Athey also opined that Devine disassociated from traumatic events, including two alleged rapes that were not reported to law enforcement.
Dr. Athey testified that Devine told him that some of what she reported to him was not what she actually recalled but what she had been told by others. According to Dr. Athey, Devine did not even mention a baby when telling him about the day in question. Based on his evaluation, Dr. Athey rendered the opinion that Devine suffered from posttraumatic stress disorder with dissociative features, major depression, and cognitive disorder not otherwise specified—which he presumed was associated with neurofibromatosis.
In Dr. Athey's opinion, Devine
“did not possess the mental state to have formed the intent to murder the baby. She lacked normal capacity to experience the events going on for what they were. Lacked normal capacity to guide her behavior during, due to the combined effects of Post Traumatic Disassociation and neuropsychological deficits. I never heard any mention of murdering the baby. I observed her wanting to get away from the baby. From the experience associated with the baby.”
In order to support Dr. Athey's opinion that Devine suffered from posttraumatic stress disorder, the defense recalled Detective Davis, who testified that Devine had told him that she had first been raped in July 2008, and that she had told a friend, Amber Labarca, and that she had spoken with a counselor at Emporia State about it. Likewise, the defense recalled Michael, who testified that Devine told her that she once had a boyfriend who committed suicide and another boyfriend who attacked her in some fashion. Afterwards, the defense rested.
In rebuttal, the State called Mark McDonough, Ph.D., a psychologist and neropsychologist. Dr. McDonough was retained by the State to review and interpret Dr. Athey's test results and conclusions. Dr. McDonough found “rather widespread” scoring errors in the tests performed by Dr. Athey. Likewise, Dr. McDonough did not agree with Dr. Athey's opinion that Devine had a cognitive disorder, nor did he find that Devine's neurofibromatosis rendered her incompetent. Ultimately, Dr. McDonough opined that Devine was not suffering from a dissociate disorder, that she was not suffering from the effects of a gene for neurofibromatosis, that she was a woman of average intelligence, and that she did not have a mental disease or defect that prevented her from forming the necessary intent to commit the crime of attempted first-degree murder.
The parties made their closing arguments the following Monday morning, and the jury returned a verdict at 5:20 p.m. that day. The jury found Devine guilty, and she was subsequently sentenced to 155 months' imprisonment. Thereafter, Devine timely filed a notice of appeal.
Analysis
Issues Presented
On appeal, Devine presents three issues. First, whether the district court erred in the wording of the mental disease or defect instruction given to the jury. Second, whether the district court erred in refusing to grant Devine's motion to change venue. Third, whether the prosecution committed misconduct during closing argument by making arguments designed to appeal to passion and prejudice.
Mental Disease or Defect Instruction
“ ‘For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).’ [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Here, it is undisputed that Devine gave notice to the State under K.S.A. 22–3219 of her intent to use mental disease or defect as a defense. As such, there is no question that the giving of a mental disease or defect jury instruction was both legally and factually appropriate. But Devine contends that the mental disease or defect jury instruction given by the district court in this case was erroneous.
Although Devine requested a jury instruction on mental disease or defect, she did not object to the instruction that was ultimately given. Accordingly, we analyze the jury instruction given by the district court under a clearly erroneous standard. See 297 Kan. at 204 (stating that a party cannot claim jury instruction error unless (1) the party distinctly objected to the instruction on the grounds complained about on appeal; or (2) the instruction or the failure to give the instruction is clearly erroneous); see also K.S.A. 22–3414(3).
To determine whether the jury instruction in question was clearly erroneous, we apply a two-step process. First, we must “determine whether there was any error at all. To make that determination, [we] must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.” State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). If we find error, we then move to the second step of the analysis and determine whether we are “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5.
The instruction given by the district court is taken from PIK Crim.3d 54.10. The PIK instructions were updated in 2012 after the legislature made extensive amendments to the criminal code effective July 1, 2011. Because the alleged crime at issue in this case occurred before the statutory amendments that resulted in the PIK amendments, it appears that the district court properly utilized PIK Crim.3d 54.10. See State v. Martin, 270 Kan. 603, 605, 17 P.3d 344 (2001) (“Criminal statutes and penalties in effect at the time of the criminal act are controlling.”). Moreover, Devine does not challenge the version used by the district court, which is identical to PIK Crim. 4th 52.120 with one exception—the comment to the instruction discussed below is not included in the PIK Crim. 4th version.
Specifically, PIK Crim.3d 54.10 states:
“Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime. Such evidence is to be considered only in determining whether the defendant had the state of mind required to commit the crime. You are instructed the defendant is not criminally responsible for (his)(her) acts if because of mental disease or defect the defendant lacked the (set out the particular state of mind which is an element of the crime or crimes charged ).”
The actual instruction given in this case states in pertinent part:
“Evidence has been presented that the defendant was afflicted by mental disease or defect at the time of the alleged crime. Such evidence is to be considered only in determining whether the defendant had the state of mind required to commit the crime. You are instructed the defendant is not criminally responsible for her acts if because of mental disease or defect the defendant lacked the intent to engage in the conduct. ” (Emphasis added.)
Devine argues that the instruction as given was erroneous because it is not legally correct. She contends that this instruction would have been appropriate for a general intent crime but not for a specific intent crime such as first-degree murder. Instead, Devine suggests that the instruction should have stated that the defense applied if, because of her mental disease or defect, she lacked “the specific intent to kill. ” (Emphasis added.)
The Notes on Use after PIK Crim.3d 54.10 states that “[w]here only general criminal intent is required for the crime charged, the language ‘intent to engage in the conduct’ should be included in place of a particular state of mind in the concluding parenthetical.” As discussed previously, this statement is not included in the Notes on Use of PIK Crim. 4th 52.120. The problem here, of course, is that attempted first-degree murder is a specific intent crime. See State v. Ellmaker, 289 Kan. 1132, 1142, 221 P .3d 1105 (2009), cert. denied 560 U.S. 966 (2010) ; State v. Hayes, 270 Kan. 535, 543, 17 P.3d 317 (2001). Furthermore, “[s]pecific intent requires a demonstration of a greater culpable mental state than mere recklessness or negligence.” State v. Spicer, 30 Kan.App.2d 317, Syl. ¶ 6, 42 P.3d 742 (2002).
Although we find that the instruction accurately states Kansas law, it should have included “the particular state of mind” that is required to prove first-degree murder instead of the generic language that was used. But this does not end our analysis. Instead, we must turn to the question of whether we are firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. In doing so, it is important to recognize that the party claiming that an instruction was clearly erroneous—in this case Devine-has “ ‘the burden to establish the degree of prejudice necessary for reversal.’ “ State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013) (quoting Williams, 295 Kan. 506, Syl. ¶ 5 ).
A review of the instructions given by the district court, when viewed as a whole, reveal that the jury was properly advised of the law applicable to this case. See State v. Clark, 261 Kan. 460, 475, 931 P.2d 664 (1997) (stating that a PIK instruction was proper because it accurately reflected Kansas law and properly advised the jury of the law). The jury instructions clearly identified and defined the crime of attempted first-degree murder. Specifically, the jury instructions provided that the State was required to prove each of the following elements:
• Intent to commit first-degree murder;
• An overt act in commission of first-degree murder;
• Failure to complete the commission of the murder; and
• The act occurred on or about October 22, 2010, in Lyon County.
Further, the jury was expressly instructed that “[m]ere preparation is insufficient to constitute an overt act” towards the commission of first-degree murder. Rather, the instructions stated that the State was also required to prove (1) intent to kill the baby and (2) premeditation. Moreover, the jury was specially instructed that “premeditation” requires one to have formed “the design or intent to kill before the act.” Finally, we note that the district court appropriately instructed the jury on the alternative of attempted second-degree murder.
Hence, the jury was properly instructed on the essential elements of the crime of attempted first-degree murder, including the “state of mind” that was required—that Devine intended to kill the baby and that her actions were premeditated. Moreover, when viewed as a whole, we find that the instructions accurately advised the jury of the status of Kansas law. In particular, we find that the instructions when taken as a whole sufficiently informed the jury that it was not to hold Devine criminally responsible for her actions if, as the result of a mental disease or defect, she lacked the state of mind to commit the crime of attempted first-degree murder.
Our review of the record in this case reveals that the evidence presented by the State against Devine was overwhelming. In fact, she did not deny that she hid her pregnancy, placed her newborn baby in a trash bag shortly after he was born, cleaned up her apartment, drove to another apartment complex, and left him in a dumpster. Notwithstanding her claim that she blacked out during some of these events, Devine was able to give the law enforcement officers a detailed account of what had occurred that morning. In addition, Devine admitted to law enforcement that she knew there were other options available for those who do not want to keep a newborn child.
On the issue of whether Devine lacked the specific intent to kill the baby and to do so with premeditation, the jury was presented with conflicting opinions rendered by the two expert witnesses who opined on the subject. Ultimately, after hearing all the evidence, the jury placed more weight on the testimony of the State's expert witnesses—including the State's mental health expert. Therefore, based on the overwhelming evidence in support of the jury's verdict in the record, we are not firmly convinced that the outcome of the trial would have been different had the instruction error not occurred, and we conclude that Devine has not met her burden to establish the degree of prejudice necessary for reversal.
Motion to Change Venue
Devine also contends that the district court erred in denying her motion for a change of venue. As a result, she argues that she was denied the right to an impartial jury under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The due process provision of the Fourteenth Amendment incorporates the Sixth Amendment protection and makes it applicable to the states. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Kansas Constitution recognizes not only a defendant's right to a trial by an impartial jury but also the right to have the trial conducted in “the county or district in which the offense is alleged to have been committed.” Kan. Const. Bill of Rights, § 10.
Here, Devine sought to have the trial moved from Lyon County due to pretrial publicity. In her motion to change venue, Devine argued that the district court should presume prejudice from the extensive local media coverage the case had received. Devine included examples of the media coverage, including photographs of her in shackles and prison clothes, quotes from the preliminary hearing that may not be admissible at trial, and opinions expressed in newspaper articles. In particular, Devine pointed out that on December 31, 2010, the Emporia Gazette online version identified this event as the number one news story of the year.
K.S.A. 22–2616(1) provides that a district court must grant a motion to change venue “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” “The determination of whether to change venue is entrusted to the sound discretion of the trial court, and its decision will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant.” State v. Higgenbotham, 271 Kan. 582, 591, 23 P.3d 874 (2001). “Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court....” See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
Recently, in State v. Carr, 300 Kan. –––, ––––, 331 P.3d 544, 596 (2014), the Kansas Supreme Court clarified that there are two considerations in a constitutional change of venue challenge based on pretrial publicity:
“The first context occurs where the pretrial publicity is so pervasive and prejudicial that we cannot expect to find an unbiased jury pool in the community. We “presume prejudice” before trial in those cases, and a venue change is necessary.' [Citation omitted .] ‘In such cases, a trial court is permitted to transfer venue without conducting voir dire of prospective jurors.’ [Citation omitted.]
“The second context, ‘actual prejudice,’ occurs ‘where the effect of pretrial publicity manifested at jury selection is so substantial as to taint the entire jury pool.’ [Citations omitted.] ‘In cases of actual prejudice, “the voir dire testimony and the record of publicity [must] reveal the kind of wave of public passion that would have made a fair trial unlikely by the jury that was impaneled as a whole.” [Citations omitted.]’ “
Although the Carr court acknowledged that courts had previously applied the abuse of discretion standard in considering whether a district court erred in failing to grant a motion to change venue, Carr changed the progression of the analysis and determined that a mixed standard of review applies when reviewing a presumed prejudice challenge on appeal. 331 P.3d at 596.
“A presumed prejudice challenge is subject to a mixed standard of review. The court first looks for substantial competent evidence in the record to support the factors that must be considered to determine presumed prejudice. See Carr, 331 P.3d at 599–603 (discussing Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 [2010] factors). But the overall weighing of the Stalling factors results in a conclusion of law that is subject to a de novo standard. [Citation omitted.]” State v. Roeder, 300 Kan. ––––, 336 P.3d 831, 840 (2014).
Devine appears to be alleging presumed prejudice on appeal. She does not argue that any actual prejudice manifested itself at vior dire. However, she does not argue any of the Skilling factors that were discussed in the Carr case-which admittedly had not been filed when Devine filed her brief-or even the Higgenbottom factors, which appellate courts have applied for years when analyzing claims that statutory change of venue should have applied. See Roeder, 336 P.3d at 841–43 ; State v. Parker, 48 Kan.App.2d 68, 77, 282 P.3d 643 (2012), rev. denied 297 Kan. 1254 (2013); State v. Krider, 41 Kan.App.2d 368, 372, 202 P.3d 722 (2009), rev. denied 289 Kan. 1283 (2010).
“The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.” Higgenbotham, 271 Kan. at 591–92. Media publicity alone is never enough to establish prejudice. State v. Verge, 272 Kan. 501, 508, 34 P.3d 449 (2001). The Kansas Supreme Court has stated that even where defendants sustained unflattering pretrial publicity, where the publicity “had not made the prosecution into a circus or created a lynch mob mentality,” there was no error in the district court's failure to grant a pretrial motion for change of venue on a presumed prejudice basis. Carr, 331 P.3d at 604.
On appeal, Devine argues the court should presume prejudice because pretrial stories in the Emporia Gazette newspaper conveyed to the public that Devine was guilty. Devine further argues that she faced an uphill battle trying to present a mental disease or defect defense because it was evidently not reported by the media. In support of her argument, she cites Irvin v. Dowd, 366 U.S. 717, 722–23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
In Irvin, the defendant was tried in a small community in a rural county of only 30,000 people saturated by news stories that provided information regarding the case. But Irvin is distinguishable from the present case. In Irvin, the evidence of pretrial publicity was as follows:
“[T]he awaited trial of petitioner had become the cause celebre of this small community—so much so that curbstone opinions, not only as to petitioner's guilt but even as to what punishment he should receive, were solicited and recorded on the public streets by a roving reporter, and later were broadcast over the local stations. A reading of the 46 exhibits which petitioner attached to his motion indicates that a barrage of newspaper headlines, articles, cartoons and pictures was unleashed against him during the six or seven months preceding his trial. The motion further alleged that the newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and that, in addition, the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents. These stories revealed the details of his background, including a reference to crimes committed when a juvenile, his convictions for arson almost 20 years previously, for burglary and by a court-martial on AWOL charges during the war. He was accused of being a parole violator. The headlines announced his police line-up identification, that he faced a lie detector test, had been placed at the scene of the crime and that the six murders were solved but petitioner refused to confess. Finally, they announced his confession to the six murders and the fact of his indictment for four of them in Indiana. They reported petitioner's offer to plead guilty if promised a 99–year sentence, but also the determination, on the other hand, of the prosecutor to secure the death penalty, and that petitioner had confessed to 24 burglaries (the modus operandi of these robberies was compared to that of the murders and the similarity noted). One story dramatically relayed the promise of a sheriff to devote his life to securing petitioner's execution by the State of Kentucky, where petitioner is alleged to have committed one of the six murders, if Indiana failed to do so. Another characterized petitioner as remorseless and without conscience but also as having been found sane by a court-appointed panel of doctors. In many of the stories petitioner was described as the ‘confessed slayer of six,’ a parole violator and fraudulent-check artist. Petitioner's court-appointed counsel was quoted as having received ‘much criticism over being Irvin's counsel’ and it was pointed out, by way of excusing the attorney, that he would be subject to disbarment should he refuse to represent Irvin. On the day before the trial the newspapers carried the story that Irvin had orally admitted the murder of Kerr (the victim in this case) as well as ‘the robbery-murder of Mrs. Mary Holland; the murder of Mrs. Wilhelmina Sailer in Posey County, and the slaughter of three members of the Duncan family in Henderson County, Ky.’ “ 366 U.S. at 725–26.
In contrast, Devine points to four newspaper articles that mostly quote the arrest affidavit and preliminary hearing evidence. At the hearing on the motion, Devine also showed the district judge an exhibit that included comments left on her facebook page, arguing that they were indicative of the community's attitude toward her. As the district judge noted, however, there was no way to know whether those comments came from residents of Lyon County. Likewise, the district court noted that the posts attacking her were a minority of the comments.
Our review of the record reflects that the district court carefully considered Devine's motion for change of venue. In denying the motion, the district court found that there was less publicity in this case than in several other cases that had gone to trial in Lyon County over the years. Nevertheless, the district court took steps to protect Devine's right to a fair and impartial jury by granting “the defense the opportunity to have a confidential questionnaire provided” to jurors.
Although Devine has shown that she received some unflattering pretrial publicity, the media never made the prosecution into a circus and there is no evidence of a lynch mob mentality. Accordingly, we find that the district court's decision not to change venue is supported by substantial competent evidence and led to the correct conclusion that a venue change was not necessary. We, therefore, conclude that the district court did not err in denying Devine's motion to change venue.
Prosecutorial Misconduct
Finally, Devine contends that the prosecutor committed misconduct during closing arguments. Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we determine whether the prosecutor's comments were outside the wide latitude that the State is allowed in discussing the evidence. If misconduct is found, we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
We consider three factors in the plain error prong: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012) ; State v. Inkelaar, 293 Kan. 414, 429, 264 P.3d 81 (2011). None of these three factors is individually controlling. Before the third factor can ever override the first two factors, however, we must find that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), have been met. State v. Bridges, 297 Kan. 989, Syl. ¶ 15, 306 P.3d 224(2013).
Under the constitutional harmless error test, the party benefitting from any prosecutorial misconduct must prove beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. Under the statutory harmless error standard, the court must determine “ ‘if there is a reasonable probability the misconduct affected the outcome of the trial.’ [Citations omitted.]” McCullough, 293 Kan. at 990. Although Devine did not object at trial, we may review a claim of prosecutorial misconduct based on comments made during closing arguments even when the appellant did not make a contemporaneous objection at the trial level. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
On appeal, Devine argues that the prosecutor committed misconduct by inflaming the passions or prejudices of the jury when the prosecutor made the following comments:
“In October 22nd you give birth. Now after that we can decide which version we're going to take, because she presents a couple of them. She presents one to the [detectives] and then when this guy comes to see her about whether she has some problem that will get her out of it, she has another one.
“It's not like you got a lot to do in jail. She has another one for the doctor. Now either way we can pick.”
Later in closing argument, the prosecutor discussed Devine's statements to the detectives about blacking out and stated that Devine made a mistake because she did not claim to have blacked out when putting the baby in the dumpster. Then during the rebuttal portion of closing argument, the prosecutor argued that Devine's “claimed disassociation” ended too early, before she arrived at the dumpster.
We do not find the prosecutor's comments were outside the wide latitude allowed for the State in closing arguments based on the evidence presented at trial as well as the closing argument of defense counsel. A prosecutor may comment on what he or she believes to be inconsistencies in a defendant's statements or point out weaknesses in a particular story Bridges, 297 Kan. at 1013. That is what the prosecutor did here.
Devine also takes issue with the following arguments made by the prosecutor:
“The S tate would suggest to you at most, most of what the defense relies upon would be character traits. Odd. Immature. Not the greatest social networking. Not the greatest social skills....
....
“And then we find out that actually what happens in 2010 with an individual that much like over the years we've read on a hundred front pages, a hundred internet articles, listened to a hundred news reports of somebody attempting to commit or committing a murder and they go and they ask the neighbors and the neighbors all say, I just can't believe that. They were the nicest person. They were quiet. They stayed to themselves. They were odd. Have we not heard that before?”
Devine contends that these arguments were outside the wide latitude a prosecutor is allowed because they were designed to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based only on the evidence presented at trial and the controlling law. In support of her contention, Devine cites State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 (2004), where the Kansas Supreme Court found a statement by a prosecutor in a rape case that the defense was raping the victim again by bringing up other evidence about the victim was improper. The Tosh court determined that in making the comment, the prosecutor intended to inflame the passions or prejudices of the jury and to distract the jury from deciding the case based on the evidence and controlling law. 278 Kan. at 90.
We do not find the arguments made by the prosecutor in this case to be substantially similar to those made by the prosecutor in Tosh. Arguably, the prosecutor's comparison of Devine's case to others may have briefly diverted the jury's attention away from the facts of this particular case. See State v. Ly, 277 Kan. 386, 393, 85 P.3d 1200, cert. denied 541 U.S. 1090 (2004) (stating that “[t]he fundamental rule for closing arguments is that the prosecutor must confine his or her remarks to matters in evidence”). Nevertheless, “a prosecutor may use ‘analogies, similes, allusions (be they historic, poetic, literary, or scientific), and other rhetorical devices' in an attempt ‘to bring order to the facts presented at trial, place them in a meaningful context, and out of this collection of bits and pieces construct the whole of a case.’ “ State v. Hilt, 299 Kan. 176, 198, 322 P.3d 367 (2014).
Even if the prosecutor's arguments were improper, we see nothing in the record to indicate that they were gross and flagrant or constituted ill will. As a general rule, misconduct is gross and flagrant if it was repeated or emphasized. It constitutes ill will if it is deliberate and repeated or indifferent to a court ruling. See Inkelaar, 293 Kan. at 429–30. We find none of these factors to be present here. Furthermore, the State has proved beyond a reasonable doubt that any error from these comments did not affect the outcome of the trial in light of the overwhelming evidence presented at trial. See McCullough, 293 Kan. at 990.
Affirmed.