Opinion
No. 106,927.
2013-07-26
STATE of Kansas, Appellee, v. Warren Castille, Appellant.
Appeal from Geary District Court; John E. Sanders, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Appeal from Geary District Court; John E. Sanders, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Warren Castille's direct appeal from his jury convictions of the rape of two different women which he was found to have committed about 2 years apart.
Castille argues on appeal that the district court abused its discretion in granting the State's motion to consolidate the two separate cases against him. He further argues the State committed prosecutorial misconduct by suggesting he carried the burden to prove his innocence.
We find that neither of Castille's arguments justify a finding of reversible error and affirm both of his convictions.
Statement of the Facts and Legal Proceedings
In 2009, the State filed two separate complaints against Castille, primarily alleging that he raped two different women on two different occasions.
In No. 09 CR 000142, the State alleged that on November 1, 2006, Castille raped and committed aggravated kidnapping of A.D. In No. 09 CR 000069, the State alleged that Castille raped E.C. on January 24, 2009. A preliminary hearing was held in both cases, and probable cause was found to bind Castille over for trial in both cases.
A short time after the preliminary hearing, the State filed a motion to consolidate both cases so they could be prosecuted at the same trial. The State's motion and argument at a subsequent hearing contends consolidation was proper because their facts and charges were similar to each other.
The State also argued that Castille would not be prejudiced by the consolidation because the evidence of his sexual misconduct in one case would be admissible at a separate trial to establish his identity as the rapist. Indeed, Castille's identity was an issue at the preliminary hearing: Although the State presented evidence showing Castille's DNA on both victims, A.D. could not identify Castille as her attacker. Additionally, in an interview with police investigators, Castille denied having sexual intercourse with either woman and claimed that the DNA evidence was both inaccurate and that the Kansas Bureau of Investigation made up the case against him.
Defense counsel argued that a consolidated prosecution would unduly prejudice Castille's defense because a jury would likely convict Castille for one rape, even if the State's evidence of that rape was weak, if the State presented strong evidence that he raped the other victim.
The district court denied the State's motion to consolidate, though the court's order does not explain the reason for its decision.
But, the State, now represented by the Office of the Kansas Attorney General, filed a timely motion to reconsider the court's ruling on the consolidation request.
The State again argued Castille would not be prejudiced by a consolidated trial because even in separate trials, evidence of each rape would be admissible to establish Castille's identity as the rapist. More persuasively, the State argued that pursuant to a recent amendment to K.S.A.2009 Supp. 60–455, specifically the addition of subsection (d), the evidence of his sexual misconduct would be admissible to prove his propensity to commit rape. The State contended the evidence was not unduly prejudicial and its probative value outweighed its prejudicial effect.
In rebuttal, defense counsel emphasized the differences between the rapes and prejudice to Castille if the court ordered consolidation.
Although the district court again expressed concern about possible prejudice in a consolidated trial, the court nonetheless reversed its previous ruling and ordered consolidation. The court largely reasoned that because both rapes would be admissible at separate trials, “there's no reason not to consolidate these trials .” It is not clear whether the court based its decision on the admission of the evidence to prove identity, propensity, or both.
A jury trial ensued. The facts of each rape, as elicited at trial, are as next set forth.
Rape of A.D.
In the early morning of November 1, 2006, A.D. left Foxy's, a Junction City strip club and bar. She was alone and could not find a taxi cab to take her home. A man then offered to let A.D. use his telephone at his nearby apartment to call a cab. Although A.D. accompanied the man, she did not clearly see his face and believed that he was black or Hispanic.
When A.D. arrived at the man's apartment, she did not see a telephone. The man pushed her into his bedroom and onto his bed. She told him, “Leave me alone. I'm an old lady.” He removed a knife from under a pillow and cut her undergarments. He was angry because he did not have an erection, but once he did, he penetrated her vagina without using a condom. He raped her again a few hours later.
She eventually escaped after telling him she was going to the bathroom. She walked outside and looked back to see the number 1011 on top of the door.
At about 5:15 a.m., A.D. approached and sought help from Junction City Police Officer Jeffery Miller who was in a marked patrol car. Before going to the hospital, A.D. agreed to help Miller find the apartment where the rape occurred and she soon identified a building at 1011 North Jefferson Street. Miller then drove A.D. to the hospital where she received medical treatment and had DNA samples taken from her body.
At about this time, police spoke to Castille as he was entering the building where the rape occurred. Castille told police that he resided in one of the four apartment units in the building, and he admitted that he was at Foxy's in the early morning. Although Castille recalled that a woman at the bar needed a ride home, he told police that the woman left with two of his friends and that he did not see her again.
Castille then permitted police to search his apartment and take a swab of his mouth for DNA. Later that morning, Castille, upon request, went to the police station to discuss the alleged rape. At the police station, A.D. and Castille uneventfully walked past each other; A.D. did not recognize Castille as the man who raped her. Sometime later, A.D. also could not recognize Castille from a lineup of photographs shown to her.
DNA test results made known to Junction City police in August 2008, showed that Castille's DNA matched with a DNA sample taken from A.D.'s thigh and that his DNA was also found on swabs taken from A.D.'s vagina.
Rape of E.C.
On January 24, 2009, E.C. worked as a dancer and bartender at Foxy's. As E.C. was preparing to leave her shift, Castille, who was a friend and coworker, invited her to drink alcohol at his apartment.
E.C. accompanied Castille to his apartment. But when she entered the living room of the apartment, Castille pushed her down on the couch. Castille told E.C. he was aware of her promiscuity and implied that he wanted to have sex with her. Although E.C. screamed for him to stop, Castille, without consent, penetrated E.C.'s vagina with his finger and with his penis. During the rape, E.C. felt what she believed to be a gun on the back of her head. Afterward, E.C. left the apartment without further incident and promptly reported the rape to police. DNA swabs were taken from E.C.'s vagina.
As their investigation progressed, police interviewed Castille on both rapes of A.D. and E.C. Castille told police that he did not have sex with A.D. and that the DNA taken from her person could not be his. He claimed at trial that his DNA evidence was on E.C. because he “discharged” while she was giving him a lap dance in the VIP room of Foxy's. He also claimed at trial that E.C. visited him on the morning of the rape and stole $50 from him. His theory for why the DNA evidence was found on the women was that the evidence had been tampered with by the KBI or law enforcement officers.
After hearing all the above testimony and DNA evidence, the jury convicted Castille of two counts of rape but acquitted him of aggravated kidnapping of A.D. After sentencing, Castille now appeals both of his convictions. The district court did not abuse its discretion by consolidating Castille's criminal prosecutions Standard of review
Whether a defendant will be tried on separate charges in a single trial is a matter within the discretion of the district court, and its decision will not be disturbed on appeal unless there is a clear showing of abuse of discretion. State v. Bunyard, 281 Kan. 392, 397, 133 P.3d 14 (2006). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact See State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012). But, even if an appellate court finds that the district court abused its discretion by consolidating charges, the defendant must still demonstrate prejudice in order for his or her conviction to be reversed. See State v. Donaldson, 279 Kan. 694, 697–98, 112 P.3d 99 (2005).
State v. Bunyard
After citing K.S.A. 22–3202(1) which we will later set forth, the Bunyard opinion stated:
“In State v. Barksdale, 266 Kan. 498, 973 P.2d 165 (1999), severance was extensively discussed. We stated, inter alia:
‘This court has on numerous occasions throughout its history addressed the subject of whether crimes are of the same or similar character so as to permit their joinder. In State v. Hodges, 45 Kan. 389, 392, 26 Pac. 676 (1891), we stated: “Several separate and distinct felonies may be charged in separate counts of one and the same information, where all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment. [Citations omitted.] The defendant may be tried upon all the several counts of the information at one and the same time, and in one trial, but all this rests in the sound judicial discretion of the trial court.”
‘This standard has been reiterated many times by this court. [Citations omitted.]’ 266 Kan. at 507.” Bunyard, 281 Kan. at 397.
The Bunyard opinion noted one case where the Supreme Court had reversed a conviction after the trial court denied severance, State v. Thomas, 206 Kan. 603, 481 P.2d 964 (1971), which involved two unrelated and very different incidents. The Bunyard opinion then noted: “In our caselaw prior to Thomas, and the 30–plus years since Thomas, numerous claims of abuse of judicial discretion relative to joinder or denial of severance have been before Kansas appellate courts. None have been successful.” 281 Kan. at 398.
Analysis of arguments
Castille argues the district court erred by consolidating his two cases because the court based its decision upon a faulty premise: evidence of each rape would inevitably be admissible at separate trials. This error, he claims, precluded the court from conducting a proper balancing test to determine whether admission of this evidence would unduly prejudice his defense.
In rebuttal, the State argues that consolidation was proper, if not compulsory, and that the district court correctly reasoned that under K.S.A.2009 Supp. 60–455, the evidence of each rape would be admissible at a separate trial both to prove Castille's propensity to commit rape and to establish his identity as the rapist of A.D. and E.C.
K.S.A. 22–3202 and 22–3203 are the starting point for our analysis. Under K.S.A. 22–3203, a district court “may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information, or indictment.” Next, K.S.A. 22–3202(1) states:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” (Emphasis added.) K.S.A. 22–3202(1).
Both statutes demonstrate that in the instant case the district court properly and correctly exercised its authority to consolidate the State's charges against Castille in a single trial. As the State correctly observes, both of the State's complaints alleged that Castille committed the exact same crime—rape—against A.D. and E.C. These crimes are clearly of the same character under K.S.A. 22–3201(1). In addition, the facts are strikingly similar as to where the crimes were alleged to have been committed as well as the manner in which they were perpetrated.
Under the statutory authority, the charges were legally consolidated.
K.S.A.2009 Supp. 60–455
Castille, however, argues that even if the charges in the A.D. and E.C. cases could have been consolidated for trial under K.S.A. 22–3202 and 22–3203, the district court nonetheless abused its discretion because the consolidation unduly prejudiced his defense. To that extent, Castille contends the court improperly found that evidence of each rape would be admissible in separate trials to prove identity or propensity under K.S.A.2009 Supp. 60–455(b) and (d). According to Castille, this error prohibited the court from properly conducting a relevancy and balancing determination that would have found in his favor.
The State's rebuttal is two-fold. First, the State contends that the district court properly ruled that the evidence would have been admissible as propensity evidence under the broad provisions of K.SA.2009 Supp. 60–455(d). Alternatively, the State argues that the evidence would have been admissible to prove Castille's identity because he denied having sexual intercourse with both A.D. and E.C.
We first note that all relevant evidence is admissible unless statutorily prohibited. State v. Riojas, 288 Kan. 379, 382, 204 P.3d 578 (2009). Evidence is relevant if it has “any tendency in reason to prove any material fact.” K.S.A. 60–401(b). But even if evidence is relevant, the district court must still determine whether its probative value is outweighed by its potential for producing undue prejudice. See State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
The application of K.S.A. 60–455, both as it existed prior to 2009 amendments, and with the 2009 amendments, is the focal point for Castille's argument on appeal.
With respect to the admissibility of evidence of other crimes or civil wrongs, the statute remains unchanged insofar as it covers the admission of evidence concerning the identity of the person charged. However, the 2009 amendments to 60–455 clearly broadened its application with respect to propensity evidence concerning sexual misconduct.
To show the changes made we first set forth K.S.A. 60–455 as it existed prior to the 2009 amendments:
“Subject to K.S.A. 60–447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60–455 and 60–448, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.)
But, in State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009) ( Prine I ), our Supreme Court expressed concern that “evidence of prior sexual abuse of children is peculiarly susceptible to characterization as propensity evidence forbidden under K.S.A. 60–455 and, thus ... convictions of such crimes are especially vulnerable to successful attack on appeal.” The court then concluded that the legislature, not the court, “is the body charged with study, consideration, and adoption of any statutory change that might make K.S.A. 60–455 more workable in such cases.” 287 Kan. at 737.
In response to Prine I, the legislature swiftly amended K.S.A. 60–455 to add a provision, subsection (d), which has been construed to make propensity of sexual misconduct specifically admissible. The three pertinent provisions with respect to our case are the following:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
....
“(d) Except as provided in K.S.A. 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense ... evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.” K.S.A.2009 Supp. 60–455.
Two recent, but divided, Court of Appeals decisions, State v. Hart, 44 Kan.App.2d 986, 1013, 242 P.3d 1230 (2010), rev. granted May 16, 2011, and State v. Young, No. 102, 121, 2012 WL 401600 (Kan.App.2012) (unpublished opinion) petition for rev. filed March 1, 2012, analyzed the 2009 amendments differently but are only of historical interest because our Kansas Supreme Court has recently decided two cases that swing this appeal squarely to the State's position and reasoning of the district court in deciding to consolidate the two charges against Castille.
In State v. Prine, No. 103,242, opinion filed May 31, 2013 ( Prine II ), the retrial of the case resulting in the opinion giving rise to the legislative change, Justice Beier, speaking for a unanimous court, summarized the effect of the addition of subsection (d) to K.S.A. 60–455 in this manner.
“Under the plain language of K.S.A.2009 Supp. 60–455(d), the legislature carved out an exception to the prohibition on admission of certain types of other crimes and civil wrongs evidence to prove propensity of a criminal defendant to commit the charged crime or crimes for sex crimes prosecutions. As long as the evidence is of ‘another act or offense of sexual misconduct’ and is relevant to propensity or ‘any matter,’ it is admissible, as long as the district judge is satisfied that the probative value of the evidence outweighs its potential for undue prejudice.” Prine II, Syl. ¶ 3.
We need not further discuss Prine II as the above holding clearly justifies and confirms the district court's reasoning as to the effect of the language of subsection (d) of 60–455 in ruling that the cases should be consolidated.
Further, the Supreme Court accepted review of the Court of Appeals State v. Hart decision and, in an opinion filed a week after Prine II, did not approve that part of the Hart decision which broadly applied subsection (a) of the 2009 amendments to 60–455 as severely restricting the effect of subsection (d). State v. Hart, No. 101,723, decided June 7, 2013. For the discussion of the admission of the K.S.A. 60–455 evidence see slip opinion, pp. 20–22, and its conclusion in slip opinion, p. 26, which states that as to the Court of Appeals Hart opinion, “its rationale based on its interpretation and application of K.S.A.2009 Supp. 60–455 was error and has no force and effect.” The Supreme Court Hart opinion ratified and followed Prine II.
It is clear to us that Castille's identity in both cases was a disputed issue and the propensity evidence was clearly admissible once the required balancing test was made. The district court analyzed the issue correctly and did not abuse its discretion in ordering the cases to be consolidated.
Double jeopardy issues
We will not unduly lengthen this opinion with a discussion of K.S .A. 21–3108 on the question before us. It seems clear that if the State planned to use evidence of the other rape in one case, the compulsory joinder rule would have required the two cases to be tried at the same time in order to prevent double jeopardy issues. See K.S.A. 21–3108 and State v. Arculeo, 29 Kan.App.2d 962, 969–72, 36 P.3d 305 (2001).
For all the reasons we have above set forth the district court did not abuse its discretion or legally err in consolidating the cases subject to this appeal. The State did not commit prosecutorial misconduct Standard of review
Kansas appellate courts employ a two-step analysis when considering claims of prosecutorial misconduct. In the first step, the court determines whether the prosecutor's statements exceeded the wide latitude of language and manner afforded a prosecutor in making closing arguments. Second, the court determines whether the prosecutor's comments constituted plain error. Plain error occurs when the statements are so gross and flagrant that they prejudiced the jury against the defendant and denied the defendant a fair trial.
The second step of the prosecutorial misconduct inquiry requires investigation as to whether the error was harmless. Three factors are considered: (1) whether the misconduct was so gross and flagrant it denied the accused a fair trial; (2) whether the remarks showed ill will by the prosecutor; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor's statements would not have much weight in the jurors' minds. No individual factor controls. See State v. Phillips, 295 Kan. 929, 943, 287 P.3d 245 (2012).
Statements at oral argument
It was Castille's counsel's continuing theme during closing argument that the investigation of the cases was inadequate and created reasonable doubt as to guilt. Specifically regarding DNA evidence Castille's counsel argued:
“And how do you know this? You heard testimony that certain evidence was taken. The sofa cushion covers, as an example, fiber and hair samples. I believe blankets and pillows. Other items were taken from [Mr.] Castille's residence and sent to the FBI. Where are those items at? It is not Mr. Castille's obligation to prove himself innocent. It is the State's obligation to prove him guilty. Where did those things go? And what happened to them? Why did you not hear about that?”
The State, in its closing and apparently in response to the above statement, then told the jury:
“Sample number one. Swabs by consent in 2006. Sent to the KBI with [A.D.]'s vaginal swabs. [2009] arrives. More taken from him pursuant to a search warrant. And this time not just swabs, but hair and pubic hair sent to the FBI, along with all of those lint papers. Here is the deal, ladies and gentlemen, it is the State's burden to prove the defendant guilty beyond a reasonable doubt. But this is the part that the State wants to rebut. What has the defense talked about? Where is the stuff from the FBI that he—the defense has equal subpoena power as the State. They could have brought the evidence before you, but they did not.” (Emphasis added.)
Analysis of arguments
Castille contends the above statement impermissibly told the jury that he carried the burden to prove his innocence. He also argues this error is not harmless because the State's case against him was suspect, if not weak.
Neither of Castille's contentions are sufficient to provide him any relief.
Our Supreme Court has previously rejected assertions that statements such as “the defense has equal subpoena power as the State” constitute improper burden shifting. State v. Naputi, 293 Kan. 55, 63–64, 260 P.3d 86 (2011); State v. Verge, 272 Kan. 501, 512–14, 34 P.3d 449 (2001). In Naputi, the Kansas Supreme Court held:
“Here, the defense argued that the jury could assume that the therapist would not have helped the State's case because the State did not call him as a witness. The implication, then, is that the witness would have been beneficial to the defense. It is certainly within the wide latitude given to prosecutors to respond to that purported inference by pointing out that if the therapist would have been helpful to the defense, the defense could have subpoenaed him. Such a comment, refuting a purported inference, is not an impermissible shifting of the burden of proof.” 293 Kan. at 64.
In Verge, the court noted: “Our cases have generally held that comments in response to questions of why the prosecution did not call a certain witness allow the prosecution to equally respond.” 272 Kan. at 513. In doing so, the court favorably citing to State v. Robinson, 219 Kan. 218, 221, 547 P.2d 335 (1976), which noted: “ ‘The failure of a party to produce available evidence may give rise to an inference that it would be adverse to the party who could have produced it. [Citation omitted.] This applies equally to the prosecution and the defense.’ “ 272 Kan. at 514.
Even if the State's argument could be considered to be outside the wide latitude allowed in closing arguments it could be no more than harmless error. The State prefaced its statement by reminding the jury that the State carried the burden of proving Castille guilty beyond a reasonable doubt. The rest of the statement may not be the most articulate one ever made in a closing, but it sought to deflect defense counsel's efforts to question the State's failure to introduce certain items into evidence. The statement was at least similar to those upheld in Naputi and Verge. In total, these facts suggest that the State's comment was neither gross nor flagrant, nor did it demonstrate ill will by the prosecutor. See Naputi, 293 Kan. at 62.
Finally, despite Castille's arguments to the contrary, we view the State's evidence as strong and overwhelming evidence that Castille committed both rapes. The DNA evidence positively connected Castille to both rapes. A.D. directed Officer Miller to the apartment building where Castille lived. E.C. was familiar with Castille. Despite vigorous cross-examination A.D. and E.C.'s testimony remained extremely credible.
There was no prosecutorial misconduct. The statement was not gross and flagrant and did not show ill will by the prosecutor. The evidence was overwhelming. This issue ultimately has no merit.
The district court is affirmed.