Opinion
110,469.
05-08-2015
STATE of Kansas, Appellee, v. Bernice BROWN, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Paul E. Brothers, legal intern, Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Bernice Brown appeals her conviction for abuse of a dependent adult on the grounds the Johnson County District Court erred by allowing the State to present improper impeachment evidence to the jury and in failing to give any limiting instruction regarding that evidence. Although the district court mishandled those related issues, the errors were harmless in light of the strong case against Brown, including two witnesses who saw her strike a nursing home resident in her care. We, therefore, affirm the judgment of conviction.
Factual and Procedural History
Brown, a certified nursing assistant, had worked at a private care facility in Johnson County for about 18 months at the time of the incident. Brown's duties as an activities assistant included regular contact with residents with moderate to severe dementia or similar cognitive impairments who lived in a designated unit at the facility. V.F., the victim, had significant dementia and resided there. V.F. needed assistance with basic tasks, including eating and bathing. As with many people afflicted with dementia, V.F. could become combative if she were upset.
On June 22, 2012, Tamara Koecher and Lontisha Tate, both nursing assistants, were helping V.F. clean up when she became agitated. Brown came into the room ostensibly to calm V.F. and help in the immediate task. At trial, Koecher and Tate gave generally similar accounts of what happened, although they differed on some details. According to them, Brown slapped V.F.'s bare buttocks and laughed. As a result, V.F. became more combative and began flailing at Brown with her arms and legs. V.F. hit Brown. Brown then again laughed at V.F. and slapped her right thigh. By then, Koecher and Tate had cleaned and diapered V.F. and had gotten her back in her wheelchair. They testified that Brown then taunted V.F. When V.F. verbally responded, they said Brown got angry and slapped her face. Neither Koecher nor Tate reported the incident promptly.
The next day, Tate was in the room when V.F. told another nursing assistant that someone had hit her. Tate then said she had seen Brown strike V.F. The other nursing assistant contacted LuAnn Fahey, the director of nursing at the care facility. In short order, Koecher and Tate described to Fahey what had happened. As required by law, Fahey reported the incident to state authorities. Brown was later fired. Following an investigation, the district attorney charged Brown with one count of mistreatment of a dependent adult in violation of K.S.A.2011 Supp. 21–5417(a)(1), a severity level 5 person felony.
At trial, Brown testified in her own defense. She told the jurors that Koecher asked her for help in changing V.F. Brown said she had a good relationship with V.F. and was often able to keep her calm when other staff couldn't. According to Brown, she assisted V.F. without incident and simply left the room when she finished.
After hearing 2 days of evidence in May 2013, the jury convicted Brown as charged. The district court later imposed a 34–month prison sentence on Brown, the mitigated presumptive period of incarceration, to be followed by a 24–month term of postrelease supervision. Brown has appealed.
Legal Analysis
As we have indicated, Brown raises two points on appeal related to the State's introduction of rebuttal evidence intended to impair her credibility. She contends the evidence was improper, and, even if it were admissible, the district court failed to give a limiting instruction to the jury on how the information should have been considered. We outline the pertinent trial proceedings and then address those issues.
Trial Proceedings
While cross-examining Brown in front of the jury, the prosecutor asked her about taunting V.F. Brown denied doing so, prompting this exchange:
“Q. Completely made up, wasn't it?
“A. Yes, it was because I [have] been doing this for a long time, and this is the first time this ever happened.”
The prosecutor then launched into a series of questions regarding what Brown meant about this being a first-time occurrence. The cross-examination went this way:
“Q. You've never been in trouble; you've never been called by LuAnn Fahey at your time at Shawnee Gardens about another resident?
“A. About doing vitals for a shower or something, they just said my voice was loud. That's why I ended up getting an opportunity to a better position for activities because I do a lot.
“Q. Let's back up. You first said you've never been in trouble before?
“A. I mean, like hitting a resident
“Q. Now you're changing that?
“A. Hitting a resident, no, I never ever—no, I haven't never ever been hit [sic ]
“Q. What did you do in the shower that you just talked about?
“A. I said vitals. It wasn't in a shower. It was in a resident's room getting vitals for some students. It wasn't from the employee. It was from students that—you got to come—when they go to school, you go to nursing homes and get—I guess that's how you get your training, how to shower residents, how to bath [sic ] residents, feed them, get them dressed for bed.
“Q. But you said you've never been in trouble, and now you're talking about
“A. As far as—no. I never been trouble for hitting a resident, no I haven't.
“Q: And I'm not talking about just hitting. Any behaviors toward a resident, have you ever been called to LuAnn Fahey's office or had discussions with her about that?
“A. About not hitting, but loud voice. My voice is loud.”
After the defense rested, the prosecutor called Fahey as a rebuttal witness. The district court overruled Brown's objection to the testimony. Fahey testified that before the incident with V.F., Brown had been suspended during an internal investigation of an allegation that she had required an unwilling resident to take a shower. Based on the investigation, the care facility administrators concluded Brown had not hit or physically abused that resident but deviated from accepted procedures for bathing or showering residents. According to Fahey, Brown was counseled as to the correct procedures. But it was unclear from Fahey's trial testimony whether Brown had been formally disciplined in any way.
In closing argument, the prosecutor told the jurors Brown should not be believed about what happened with V.F. at least in part because she had testified untruthfully about never having been in trouble for her dealings with other residents of the facility. In other words, according to the prosecutor, Brown's credibility had been impeached by the contradiction between her cross-examination testimony and Fahey's rebuttal testimony.
District Court Error in Allowing Rebuttal Testimony
Brown contends the district court erred in allowing Fahey's rebuttal testimony. We agree. There were several problems with admitting the testimony.
A district court's decision to admit or exclude evidence will be reviewed on appeal either as a matter of law without deference if the ruling is based on materiality or as an abuse of discretion if it is based on probativeness. State v. Boleyn, 297 Kan. 610, Syl. ¶ 1, 303 P.3d 680 (2013) ; see also State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010) (An appellate court reviews de novo a contested determination of materiality.); Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002) (A decision to admit or exclude a particular piece of evidence that is otherwise material largely rests in the trial court's sound discretion.). The Kansas Supreme Court succinctly laid out the general rule this way:
“When reviewing a district court's decision concerning the admission of evidence, an appellate court first determines whether the evidence is relevant. All relevant evidence is admissible unless statutorily prohibited. Evidence is relevant if it has any tendency in reason to prove any material fact. Accordingly, there are two elements of relevancy: a materiality element and a probative element. Materiality addresses whether a fact has a legitimate and effective bearing on the decision of the case and is in dispute. Evidence is probative if it has any tendency in reason to prove a fact. An appellate court reviews a district court's determination that evidence is probative for abuse of discretion whereas the district court's decision regarding materiality is reviewed de novo.” Boleyn, 297 Kan. 610, Syl. ¶ 1.
A district court abuses that discretion if it rules in a way no reasonable judicial officer would under the circumstances, if it ignores controlling facts or relies on unproven factual representations, or if it acts outside the legal framework appropriate to the issue. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106, cert. denied 134 S.Ct. 162 (2013) ; State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
We surmise the prosecutor knew about the earlier circumstance in which Brown required the reluctant resident to shower and was counseled about her conduct. Assuming that to be so, the prosecutor seemed to be looking for some evidentiary opening to get that information in front of the jurors. The prosecutor effectively invented one. Even if the prosecutor had no ulterior purpose in her cross-examination of Brown, the admission of Fahey's rebuttal testimony was improper.
Brown's conduct resulting in the counseling about facility procedures was not independently relevant or admissible to show Brown had criminally abused V.F. The earlier situation did not involve physical abuse, only the misapplication of an internal policy on when to bathe or shower residents. So that information would not have made a material fact directly related to the offense charged in this case any more or less likely true, since the crime turned on the physical abuse of V.F. K.S.A.2011 Supp. 21–5417(a)(1) (mistreatment of dependent adult entails “[i]nfliction of physical injury”). Stated in the converse, Brown's actions in showering the resident and the facility's response were irrelevant to the alleged mistreatment of V.F. See K.S.A. 60–401(b) (defining “relevant evidence”); K.S.A. 60–407(f) (relevant evidence admissible); State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014) (relevant evidence must have tendency to prove disputed, material fact). In short, the information was neither material to nor probative of the charged crime.
Even if the earlier situation had some tenuous relevance, it would have related only to Brown's “bad” propensities in dealing with residents, a statutorily impermissible purpose for offering such evidence. K.S.A.2011 Supp. 60–455(a). The State quite correctly advances no argument that the information could have been admitted to show plan, motive, intent, or some other proper purpose outlined in K.S.A.2011 Supp. 60–455(b).
But evidence may also be considered relevant and thus admissible, within certain constraints, if it affects the credibility of a witness. State v. Ross, 280 Kan. 878, 886, 127 P.3d 249, cert. denied 548 U.S. 912 (2006) ( “ “ ‘[P]roof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony.’ “ “ [quoting State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 (1996) ] ); State v. Nott, 234 Kan. 34, 40, 669 P.2d 660 (1983) (“Generally, it is proper to attack the credibility of a witness by showing a prior inconsistent statement.”). That is true even if the credibility evidence has no direct bearing on the legal dispute at issue in the case—here Brown's guilt or innocence.
In attacking the credibility of a defense witness, a plaintiff may offer in rebuttal extrinsic evidence showing that the witness has testified falsely regarding a relevant fact. And that method of impeachment may be deployed whether the testimony on the relevant fact had been elicited on direct examination or cross-examination. The extrinsic evidence undermines the witness' credibility by contradicting that specific aspect of the witness' testimony, presumably causing the jurors to question his or her trustworthiness and veracity generally. The rebuttal evidence may take the form of testimony from other witnesses or documentary evidence conflicting with what the defense witness has testified to. Defendants may, of course, use the same mode of impeachment by presenting that sort of evidence directed at plaintiffs' witnesses. Defendants simply roll the presentation into their cases in chief because procedurally they don't ordinarily get rebuttal.
If a criminal defendant testifies in his or her own defense, the State may offer extrinsic evidence contradicting specific facts brought out in the defendant's direct testimony whether those facts are otherwise relevant or not, since the contradiction itself becomes material in assessing credibility. Boleyn, 297 Kan. at 626 ; State v. Blue, 221 Kan. 185, 188, 558 P.2d 136 (1976). In Boleyn, for example, the defendant testified on direct examination that he was not a homosexual—a fact without legal relevance in the case. The court held the State could offer contradictory evidence for the narrow purpose of showing that the defendant was not credible precisely because he had given false testimony on direct examination. 297 Kan. at 624–25. As the court explained, “[b]ecause Boleyn denied being gay during his direct examination, we conclude that evidence establishing that Boleyn is gay would be material to the issue of judging the credibility of his testimony.” 297 Kan. at 626. The court in Blue similarly recognized the State could offer extrinsic rebuttal evidence to contradict specific facts in the direct testimony of the defendant and another defense witness, although the facts had no relevance to guilt or innocence. The contradiction itself bore on their credibility, making the rebuttal evidence admissible. 221 Kan. at 188 (“Admission of the rebuttal evidence, put forward to contradict facts brought forth in the defendant's evidence was not error.”).
The rule of Boleyn and Blue is akin to a particularized application of the notion that if a party opens the door by eliciting irrelevant testimony, the opposing party may then rebut that evidence. See Boleyn, 297 Kan. at 626. In its appellate brief, the State likens Brown's testimony on cross-examination to the open door allowing in the rebuttal evidence from Fahey. But the analogy fails.
First, as a general matter, the State cannot open its own door to get otherwise inadmissible evidence before the jury. See State v. Prine, 287 Kan. 713, 728, 200 P.3d 1 (2009). That's functionally what happened here. Brown opened no doors in her direct examination with testimony bolstering herself as an employee who had never been counseled or disciplined. In answering a question from the prosecutor, Brown added a nonresponsive and decidedly vague tagline, saying, “this is the first time this has ever happened.” Rather than moving to strike that part of the answer as nonresponsive, the prosecutor began questioning Brown about what she meant. The prosecutor, however, imputed her own meaning to the response and asked Brown if she had ever been “in trouble” at the facility. Brown responded that she hadn't been in trouble for hitting a resident, thus clarifying and explaining what she had said earlier. Brown wasn't portraying herself as a perfect employee of the care facility—only as one that hadn't hit its residents. But the prosecutor persisted in questioning Brown as if she had changed her testimony and had originally said she had never been counseled, disciplined, or in trouble. Brown, however, never made such a statement, as the transcript shows.
Even if the door had opened a crack with Brown's original answer, something we doubt, it was then firmly closed when Brown clarified at least twice in response to continued cross-examination that she had not been accused of hitting a patient before the report about V.F. Accordingly, the prosecutor could not then have continued based on the meaning she desired to give Brown's initial comment—a meaning rendered plainly inaccurate by Brown's explanation in response to follow-up questions. Once Brown clarified that she had never before been accused of hitting a resident of the facility—a clarification fully consistent with her initial comment—the prosecutor's continued cross-examination amounted to the State opening its own door by eliciting otherwise irrelevant information about Brown's employment history with the care facility.
Because that irrelevant information came out on cross-examination of Brown rather than on direct examination, the State could not then offer extrinsic evidence contradicting those irrelevancies for the sole purpose of attacking Brown's credibility. Both Boleyn and Blue stand for such a limitation on the scope of impeachment. Counsel for one party generally may not elicit otherwise wholly irrelevant facts on cross-examination and then offer contradictory extrinsic evidence about those facts simply to impeach the witness. So the prosecutor should not have been permitted to call Fahey as a rebuttal witness to talk about Brown's deviation from the showering policy. The prosecutor impermissibly opened the door to that otherwise irrelevant information.
In addition, Fahey's rebuttal testimony didn't contradict Brown's testimony on cross-examination that the incident with V.F. had been the first time she had been accused of hitting a resident of the facility. Fahey's testimony, thus, tended to confirm Brown's actual representation. But it also veered off into the otherwise irrelevant matter of Brown's compliance with the internal policy on bathing and showering residents. The district court should not have allowed Fahey as a rebuttal witness. See State v. Edwards, 299 Kan. 1008, 1016, 327 P.3d 469 (2014) (purpose of rebuttal witness to refute testimony given in opposing party's case in chief); State v.. Sitlington, 291 Kan. 458, 464, 241 P.3d 1003 (2010) (rebuttal evidence contradicts evidence introduced by an opposing party).
But not every trial error requires reversal. A defendant must show that the error has resulted in actual prejudice, i.e., the denial of a fair trial. See State v. Cruz, 297 Kan. 1048, 1075, 307 P.3d 199 (2013) (“As we have recognized for decades, ‘[a] defendant is entitled to a fair trial but not a perfect one[.]’ ”) (quoting State v. Bly, 215 Kan. 168, 178, 523 P.2d 397 [1974] ). In the absence of a constitutional defect—and there was none on this score—we should affirm a conviction if there is no reasonable probability the error contributed to the verdict. See State v. McCullough, 293 Kan. 970, Syl. ¶ 9, 270 P.3d 1142 (2012) ; Ward, 292 Kan. at 565. The State, as the party benefiting from the error, has the burden to demonstrate harmlessness. McCullough, 293 Kan. 970, Syl. ¶ 9.
The rebuttal testimony from Fahey did not materially contribute to the verdict, given the other evidence in the case. Principally, of course, two eyewitnesses described conduct establishing the essential elements of the charged crime and told the jurors Brown engaged in that conduct. Although their accounts didn't match perfectly, witnesses often do not see and recall a single event precisely the same way. They recounted versions that generally matched as to the material facts. Looking at the evidence—and that is all Brown asks us to do in assessing the impact of the error—we cannot say Fahey's rebuttal testimony made any tangible difference in the outcome. The testimony from Koecher and Tate was strong evidence supporting the conviction.
District Court Error in Failing to Give Limiting Instruction
For her second and related point, Brown contends the district court should have given a limiting instruction to the jurors about how they could consider Fahey's rebuttal testimony, assuming it were otherwise admissible. Brown requested a limiting instruction. We agree that the failure to give a limiting instruction was error.
As we have already discussed, Fahey's rebuttal testimony could have been admitted only to show that Brown was not credible and, therefore, the jurors should discount her version of the situation involving V.F. The jurors should not have considered the rebuttal testimony for any other purpose. There was at least a fair risk that without a limiting instruction the evidence might have been misused to support some sort of bad propensity or disposition on Brown's part.
As provided in K.S.A. 60–406, a district court should give jurors an appropriate instruction regarding the limited purpose for which specific evidence has been admitted and may be considered if the party against whom the evidence has been offered so requests. Here, Brown requested a limiting instruction. The limiting instruction she proffered failed to address adequately the limited purpose for Fahey's rebuttal testimony. The district court, however, decided not to give an instruction. We, therefore, presume without deciding that the issue is one of law governed by K.S.A. 60–406 and is, thus, subject to review without any particular deference to the district court. Brown would be entitled to no more generous a standard of review.
The district court declined to give a limiting instruction because it concluded Fahey's rebuttal testimony “went entirely to the credibility of [Brown] who testified in her own behalf[.]” And while that was the basis on which the State presented Fahey's testimony and on which the district court admitted it, that misses the point of a limiting instruction. The jurors could have misconstrued the testimony as some type of propensity evidence, as well.
Evidence sometimes can be appropriately admitted for more than one purpose. See Kansas City Mall Assocs. v. Unified Gov't of Wyandotte County/KCK, 294 Kan. 1, 13, 272 P.3d 600 (2012) (out-of-court statement of property owner as to value of real estate properly admitted by adverse party as both substantive evidence on value and as impeachment of owner given conflicting trial testimony). But when evidence can only be considered for a single purpose and there is some chance jurors might otherwise view it as relevant for an impermissible purpose, the district court should honor a request for a limiting instruction from the party against whom the evidence has been offered. See State v. Denney, 258 Kan. 437, 446, 905 P .2d 657 (1995) (finding failure to give properly requested limiting instruction error, though harmless on facts of case); cf. State v. Dixon, 289 Kan. 46, 68, 209 P.3d 675 (2009) (“A jury cannot be presumed to have legal knowledge outside the statements of law in the instructions.”). We do not mean to suggest a district court should give a limiting instruction against the wishes of the disadvantaged party; there may be sound tactical reasons in a given case for declining the instruction. See State v. Acevedo, 49 Kan.App.2d 655, 668–69, 315 P.3d 261 (2013), rev. denied 300 Kan. –––– (October 31, 2014); State v. Massengale, No. 109,351, 2014 WL 349612, at *10–11 (Kan.App.2014) (unpublished opinion) (Atcheson, J., concurring), rev. denied 301 Kan. –––– (January 15, 2015).
Here, the district court erred in failing to give an appropriate limiting instruction. But this, too, is an error subject to review for harmlessness. For the same reason that allowing Fahey's rebuttal testimony at all was harmless, the district court's failure to give a limiting instruction likewise did not substantially prejudice Brown.
Brown also contends the combined or cumulative effect of both related errors deprived her of a fair trial. Appellate courts will weigh the collective impact of trial errors and may grant relief if the overall result of the imperfections deprives the defendant of a fair hearing even when the errors considered individually would be harmless. State v. Smith–Parker, 301 Kan. 132, 167–68, 340 P.3d 485 (2014). Here, given the overlapping nature of the errors, we find their adverse cumulative impact to be diminished in contrast to multiple errors infecting different aspects of a trial. See 301 Kan. at 167–68 (exclusion of evidence, faulty jury instruction, and failure to conduct evidentiary hearing on potential juror misconduct, among other errors, combined to require reversal of convictions). We remain unpersuaded that Brown received so fundamentally flawed a trial as to call into question the verdict.
Affirmed.