Opinion
No. 109,887.
2014-10-24
STATE of Kansas, Appellee, v. David BRAY, Appellant.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.Charles Lamb, of Kansas City, for appellant.Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Stephen R. Tatum, Judge.
Charles Lamb, of Kansas City, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
A jury found David Bray guilty of one count of criminal threat, a severity level 9 person felony. On appeal, he first claims that he was tried on multiplicitous counts of criminal threat in violation of constitutional protections against double jeopardy. Since he was convicted of and sentenced for only one offense, there is no double jeopardy violation. Next, he contends that the prosecutor committed misconduct by improperly bolstering the credibility of the victim witness. We disagree. We affirm Bray's conviction.
Facts
In April 2012, David Bray and Amy Hines lived together as boyfriend and girlfriend in Gardner, Kansas. The couple resided with Bray's then 11–year–old son and Hines' then 9–year–old daughter, K.H. Bray and Hines had previously agreed to move to separate residences at the end of the school year.
Shortly after midnight the morning of April 28, 2012, Bray called Hines from a bar and asked for a ride back to their residence. Hines picked him up and took him home. Once there they became embroiled in a dispute that turned toward violence, although each attributed the violent behavior to the other. Police arrived and investigated. As a result, the State charged Bray with one count of domestic battery, a class B person misdemeanor, and two counts of felony criminal threat. One criminal threat count alleged that he threatened to commit violence and communicated that threat intending to place Hines in fear. The other count alleged that he had threatened to commit violence and communicated that threat with reckless disregard of the risk of placing K.H. in fear. Bray exercised his right to a trial by jury.
At Bray's jury trial, Hines testified that during her conflict with Bray she pushed him to get him away from her and then left the residence. Bray followed her outside. He pushed her to the pavement. Then, shortly after that, Bray “pinned” her against his vehicle, which was parked on the driveway next to Hines' vehicle (with K.H. inside). Bray leaned in close to Hines' face and yelled that if she ever put her hands on him again, he would kill her and K.H. Still pinned against Bray's vehicle, Hines “smacked” Bray on the cheek. Bray became even angrier. Hines said that he screamed through his teeth, almost growling, that Hines had just signed a death warrant for herself, her daughter, her parents, and everyone she knew. He said that within 2 years, they would all be dead. He would skin them, stab them, and slit their throats. Hines testified that she was terrified.
The State also called K.H. She generally corroborated Hines' version of events leading up to the threats. She said that as she was sitting in Hines' vehicle, she saw Hines and Bray come outside. Hines tripped over K.H.'s bicycle. Bray was yelling, but K.H. did not remember what he was yelling. Hines crawled behind Bray's van, and then Bray started screaming very close to Hines' face. The prosecutor asked what Bray was screaming. K.H., at first, said she could not recall. The prosecutor next asked K.H. how she felt when he was screaming.
“Q. Okay. Do you remember the way you felt when he was screaming?
“A. Scared—wait, yes, I do remember what he was saying.
“Q. Okay. What did he say?
“A. He was saying, you touch me one more time and I'm gonna kill everyone that you know in the next two years-can I start over?
“Q. Yeah. That's all right.
“A. ‘In the next two years everyone that you know will be dead.’
“Q. Okay. And you heard him say that?
“A. Uh-huh.
“Q. Okay. All right. Do you know what happened after that?
“A. My mom slapped him.
“Q. Okay. Did you see anything else or hear anything else after that happened?
“A. Yes. I heard him say, ‘That's it. Everyone that you know will be skinned alive.’ “
The defense called Bray to testify, as well as his brother, father, and three law enforcement officers. Bray contradicted Hines' and K.H.'s versions of the events, attributing the violence to Hines. He claimed Hines was setting him up for prosecution out of anger that he had decided to move away early from their residence. The defense, in cross-examination of the State's witnesses, direct examination of its own, and closing argument, maintained that Hines fabricated her story and had coached K.H. into corroborating her false testimony. The defense greatly exploited K.H.'s above lapse in recall to advance those claims.
The jury acquitted Bray of the charges of domestic battery and the separate criminal threat naming K.H. as the victim. It found Bray guilty of making a criminal threat against Hines. The district court sentenced Bray to a term of 10 months in prison but placed him on probation for 12 months. Bray timely appeals his conviction.
Analysis Multiplicity And Constitutionally Prohibited Multiplicity
Bray's brief styles his first argument as follows:
“Proposition One: The trial court erred in instructing the jury on Count III of the Amended Complaint since the facts supporting the same arose from the same unit of prosecution underlying Count II, thereby violating the rules against multiplicity and the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution.”
As a threshold matter, the State questions our jurisdiction because Bray did not object to the instruction on “Count III” in the district court. The State correctly acknowledges that, even when the complaining party has failed to object to the instruction at trial, we can review the instruction to determine whether it was clearly erroneous. See K.S.A.2011 Supp. 22–3414(3). State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012). We do not need to conduct such a review here. The only time Bray refers to any instructional error is in the statement of his “Proposition One” above. He did not brief any argument challenging the propriety of the instruction on count III. In fact he does not argue that any of the instructions given the jury were erroneous, let alone clearly erroneous. An issue not briefed by the appellant is deemed waived and abandoned. See State v. Holman, 295 Kan. 116, 145, 284 P.3d 251 (2012). Bray has abandoned any claim of instructional error.
Actually, Bray's entire argument under this proposition rests on his claim of multiplicity. Again, the State points out that Bray did not lodge a multiplicity objection in the district court. Ordinarily such constitutional issues cannot be raised for the first time on appeal. State v. Ortega–Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). The Ortega–Cadelan court cited three recognized exceptions to that general rule: (1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reason. Ortega–Cadelan, 287 Kan. at 159, 194 P.3d 1195.
Our Supreme Court has previously considered double jeopardy violation claims raised for the first time on appeal when the issue has been the multiplicity of convictions. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). We accept jurisdiction of Bray's multiplicity issue under the first Ortega–Cadelan exception: the newly asserted claim here involves only a question of law that we can decide from undisputed facts in the record, and it is determinative of this issue in the case.
The fact that we do not dismiss the appeal on this issue does not avail Bray. He is not entitled to double jeopardy-based relief. In State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984), the Court explained that multiplicity is “the charging of a single offense in several counts of a complaint or information.” Certainly, multiplicity in charging creates the potential for multiple convictions of and punishments for the same offense. Such multiple punishments are the target of the prohibition in the Double Jeopardy Clause. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Freeman, 236 Kan. at 280–81, 689 P.2d 885. The Freeman court stated that “[t]he fact that an accused is charged with multiplicitous crimes is not in and of itself a violation of the double jeopardy clause. The clause merely prevents a defendant from being punished more than once for the same crime.” Freeman, 236 Kan. at 282, 689 P.2d 885.
Here Bray was charged with one count of intentional criminal threat against Hines and one count of reckless criminal threat against K.H., each under K.S.A.2011 Supp. 21–5415(a)(1). Those charges may well be multiplicitous under the two-part test in State v. Schoonover, 281 Kan. 453, 496–98, 133 P.3d 48 (2006). See also State v. King, 297 Kan. 955, 957, 305 P.3d 641 (2013) (“[T]here can only be one conviction for a single communicated threat, regardless of the number of victims who perceive and comprehend the threat.”). Had Bray been convicted on both counts of criminal threat, then a multiplicity-based double jeopardy analysis might well have been appropriate. But, that issue is not before us. On the facts here, where Bray was found guilty of a single offense, the principles of double jeopardy are simply, and by definition, inapplicable. Constitutionally infirm multiplicity requires multiple punishments for the same offense. Here there was only one punishment. We affirm on this issue.
Bray's Claim of Prosecutorial Misconduct
In Bray's second argument on appeal he asks that we reverse his conviction because of prosecutorial misconduct. Rather than attempt to paraphrase and summarize this argument, we will simply quote from the brief. Styled as Proposition Two, Bray contends as follows: “The Prosecution engaged in prosecutorial misconduct during closing argument when attempting to bolster Hines' credibility by asserting that Hines would not put her small child through the hell of testifying unless she was telling the truth.”
Bray also argues that the prosecution attempted to bolster Hines' credibility by playing on the jury's sympathy through the use of Hines' 10–year–old child as a witness. Finally, he complains that the prosecutor “asked the jury [to] judge the credibility of Hines, and acquit Defendant if they did not believe her. His statement was not a fair argument based upon the evidence, not a reasonable inference drawn from the evidence.”
The State responds that the prosecutor's challenged statements were fair comment on the conflicting versions of events given by the witnesses. The State argues that the prosecutor properly addressed and countered the defense's contentions in closing argument that Hines and K.H. were not credible witnesses.
Our review of a claim of prosecutorial misconduct in closing argument can be a two-step process. First, we decide whether there was, in fact, misconduct. If there was no misconduct, our review is complete. If there was misconduct, under the second step we conduct an analysis to determine whether the misconduct prejudiced the defendant's right to a fair trial. See State v. Huddleston, 298 Kan. 941, 946, 318 P.3d 140 (2014).
Bray takes particular issue with the final portion of the prosecutor's rebuttal closing argument. We quote the challenged portion below:
“Now, defendant wants you to think that Amy is a conniving, manipulative woman. And he has to, that's his only option. And if you believe she's a conniving, manipulative woman, the correct verdict here is not guilty on every count. Because the fact is, either she is a conniving, manipulative woman who's willing to lie to police, who's willing to make her daughter lie to police, tell her daughter what to say, make up some grand story about what happened, commit perjury, have her daughter commit perjury, put her daughter through hell by making her testify today; either she is that person, or the defendant's guilty. There's no two ways about it.”
We have analyzed this paragraph and, first, find no corroboration for Bray's factual claim. Contrary to Bray's assertion in the statement of his proposition, nowhere did the prosecutor assert “that Hines would not [have] put her small child through the hell of testifying unless she was telling the truth.” Nor did the State attempt to improperly bolster Hines' credibility by injecting the prosecutor's personal opinion on witness veracity into the argument. Prosecutors improperly bolster credibility, or vouch for it, when they provide the jury with their personal opinion on a witness' credibility. State v. Dull, 298 Kan. 832, Syl. ¶ 1, 317 P.3d 104 (2014); State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012).
Rather, the prosecutor's comment about putting K.H. through the hell of testifying was a direct reference to statements about K.H.'s ordeal that defense counsel made in her closing. For context, we include from Bray's closing argument the following:
“And I know you heard from [K.H.], too. But come on, [K.H.] is just an extension of Amy Hines' testimony. [K.H.] is sweet and cute, and I am sure, a great girl. But she told you she loves her mom. And who's going to bite the hand that literally feeds you.
“And I don't think there's a question that [K.H.] was coached and coached and coached. And when you think about it, the one who puts [K.H.] into this whole mess is Amy Hines ....
“I believe it's fairly obvious after hearing [K.H]'s coached testimony yesterday, [K.H.] never heard David Bray threaten Amy. Amy told [K.H.] that David said he is going to kill us....
“And how did [K.H.]'s story get so much more specific six months later. And it's interesting that Amy and [K.H.]'s story is the same at the scene and then it changes exactly the same when they testify here yesterday. That's amazing. That is unbelievable. And I would submit that that's because Amy told her what to say on both occasions. There's no other explanation of how both of their stories are the same the first night and then both of them change their stories the same way yesterday.
“And if Amy coached her daughter, how can you consider her testimony at all? And I'm not trying to give [K.H.] a hard time. Actually, it's very tragic that she ... had to go through any of this. But once again, who's responsible for that? Amy Hines.” (Emphasis added.)
The prosecutor responded to this and similar attacks head-on. He basically told the jurors that if they believed that Hines and H.K. testified falsely, they should acquit. This is proper argument. The jury instructions told the jurors to do just that. If the State's witnesses testified falsely, as defense counsel vigorously maintained, there was no proof of guilt beyond a reasonable doubt.
Moreover, the record confirms that the condemning allegations the prosecutor cited about Hines and her credibility are the very allegations defense counsel made in her closing argument. We see nothing false, outside of the evidence, or bolstering Hines' credibility in the challenged portion of the State's closing argument. The recitation was a direct comment on what inferences could be drawn from the evidence and on the law the jurors were to apply to the facts as they found them.
Bray does not complain about the prosecutor's earlier closing comments about the inconsistencies and weaknesses in Bray's defense. We note that “[a] prosecutor may comment on any inconsistencies in a defendant's statements or may point out the weaknesses in a particular story.” State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013). “Particularly when a case turns on which of two conflicting stories is true, [the prosecutor] may advocate for reasonable inferences based on evidence suggesting that certain testimony is not believable.” State v. Hart, 297 Kan. 494, 505, 301 P.3d 1279 (2013). The prosecutor may explain to the jury what it should look for in assessing witness credibility. State v. Huerta–Alvarez, 291 Kan. 247, 262, 243 P.3d 326 (2010). But the jury must be left to draw the ultimate conclusion on witness credibility. Hart, 297 Kan. at 505–06, 301 P.3d 1279.
Since a prosecutor can comment on inconsistencies and weaknesses in the testimony of the defendant, a prosecutor is also free to recite the alleged inconsistencies and weaknesses the defendant attributes to the State's witnesses' testimony. As long as the prosecutor accurately states the defendant's contentions, this strategy does not constitute prosecutorial misconduct.
Bray's argument that the “prosecution attempted to bolster Hines' credibility by playing on the jury's sympathy through the use of Hines' ten year old child” is without merit. K.H. was a witness and an alleged victim. When she entered the courtroom to testify she began to cry. The trial court took a recess and allowed the child to collect herself. Bray's counsel claimed to the district court that the incident prejudiced Bray. Obviously, the trial court granted no relief on that claim because K.H. then testified. On appeal, Bray does not claim any error in the resumption of the trial. He just claims that the prosecutor, knowing the jury witnessed a 10–year–old girl crying when she was about to testify, “used the child in an attempt to prove his case.” It is not misconduct for a prosecutor to put an alleged victim on the stand to testify.
Finally, Bray complains that the prosecutor “asked the jury [to] judge the credibility of Hines, and acquit Defendant if they did not believe her. His statement was not a fair argument based upon the evidence, not a reasonable inference drawn from the evidence.” We find no merit in this claim. The prosecutor asked the jurors to do exactly what Bray's own attorney asked them to do: decide whether Hines was telling the truth, or whether she fabricated her story and coached K.H. into corroborating it. The prosecutor committed no misconduct in turning the closing-argument tables on Bray.
Since Bray has failed to demonstrate prosecutorial misconduct, our review of the prosecutorial misconduct claims is complete. See State v. Foster, 290 Kan. 696, 724, 233 P.3d 265 (2010).
Affirmed.