Opinion
No. 107,117.
2013-12-27
STATE of Kansas, Appellee, v. Mario T. COLEMAN, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
GREEN, J.
Mario T. Coleman appeals from his convictions by a jury of criminal possession of a firearm and three counts of aggravated assault. On appeal, Coleman argues that the trial court committed clear error in failing to give a limiting instruction on stipulated evidence proving the elements of criminal possession of a firearm. Coleman also contends that the trial court erred in denying his motion for new trial based on newly discovered evidence. And finally, Coleman maintains that the trial court improperly used witnesses' prior out-of-court statements as substantive evidence. Finding no reversible errors, we affirm.
Coleman was upset with his cousin and good friend Derrick Jackson because Derrick had dated Coleman's ex-girlfriend, Jackie Jackson. Although Coleman and Jackie had gotten back together, Coleman was still upset with Derrick. On June 3, 2011, Derrick was visiting his mother, Joyce Coleman, and her friend Arnett Hyde. Derrick, Joyce, and Arnett were having a barbecue and sitting on Joyce's front porch drinking all afternoon and evening.
That afternoon, while they were sitting outside, they saw Coleman drive by in Jackie's white Expedition and he yelled out the car window at them. That evening, Derrick saw Coleman drive by four or five more times in Jackie's black Escalade.
The last time Derrick saw Coleman drive by was around midnight. This time Coleman yelled out the window, “[B]itch ass nigger.” Derrick then heard gunshots coming from the car. Derrick called 911 and told the dispatcher that Coleman had shot at him. Derrick testified that he was confident that Coleman was the one who had fired shots at him.
Officer Elledge was the first officer to arrive at the scene. Officer Elledge testified that Derrick, Joyce, and Arnett all seemed to be intoxicated. Officer Elledge testified that Derrick told him that he had seen Coleman drive by Joyce's house and that he believed that Coleman had shot at him. Officer Elledge further testified that Arnett, who seemed agitated, told him that Coleman had turned on the interior light of the car so she was able to see him and he had honked the horn. She told Officer Elledge that she heard two bangs and saw an unknown object in Coleman's hand move each time she heard a gunshot.
Derrick's brother Daniel and his girlfriend Delicia Johnson were also at Joyce's house on the night of the shooting. Delicia testified that she was inside Joyce's house sleeping while Joyce, Derrick, and Arnett were outside drinking. Delicia testified that she heard a gunshot and dropped to the floor for safety.
Joyce's neighbor, Adriana Bachar, who lived two houses down, testified that she was in her backyard around midnight when she heard two or three gunshots. Adriana further testified that she heard someone yell “bitch ass nigger” and then she heard tires squealing. Adriana admitted that she was not sure that what she heard were gunshots and she also admitted that she did not see anyone shoot a gun.
Coleman was charged with criminal possession of a firearm and three counts of aggravated assault. A jury convicted Coleman of all charges. Coleman moved for new trial which the trial court denied. The trial court then denied Coleman's motion for departure and sentenced him to 29 months in prison.
Does the failure of the trial court to instruct the jury that evidence of Coleman's prior conviction was introduced for the limited purpose of establishing an element of the K.S.A. 21–4204(a)(2) charge of unlawful possession of a firearm after imprisonment for a felony, in the absence of a request for such an instruction, constitute reversible error?
Coleman first argues the trial court erred in failing to give a limiting instruction to evidence admitted by stipulation of the parties even though Coleman did not request a limiting instruction or object to the admission of the evidence. Coleman maintains that the trial court should have, on its own, given a limiting instruction. Coleman argues that the evidence was admitted for the limited purpose of proving the elements of criminal possession of a firearm, Coleman contends that any other use of that evidence violates K.S.A. 60–455 and that the lack of a limiting instruction constituted reversible error.
In response, the State argues that Coleman failed to preserve this issue for appeal because he stipulated to the admission of the evidence and because he failed to request a limiting instruction. To support its argument, the State relies on State v. Whetstone, 43 Kan.App.2d 650, 229 P.3d 399 (2010), and State v.. Hood, No. 103,378, 2011 WL 2793234 (Kan.App.2011) (unpublished opinion). Our Supreme Court has granted a petition for review in each case. In both Whetstone and Hood, our court held that where the defendant did not make a State v.Gunby, 282 Kan. 39, 114 P.3d 647 (2006), objection to certain evidence when admitted at trial, the defendant failed to preserve an appeal as to the admissibility of the evidence and the failure of the trial court to give a limiting instruction as to that evidence. See Hood, 2011 WL 2793234, at *6; see also Whetstone, 43 Kan.App.2d at 654. The State's reliance on these cases is misplaced because, as discussed below, Gunby and K.S.A.2012 Supp. 60–455 are inapplicable to this situation.
“An appellate court reviewing a district court's giving or failure to give a particular instruction applies a clearly erroneous standard where a party neither suggested an instruction nor objected to its omission.” State v. Martinez, 288 Kan. 443, 451, 204 P.3d 601 (2009). See also K.S.A. 22–3414(3). To determine whether it was clearly erroneous to give or fail to give an instruction, the reviewing court must determine whether an error occurred. Thus, the court must review the merits of the claim of error; this presents a legal question subject to unlimited review. State v. Williams, 295 Kan. 506, 515–16, 286 P.3d 195 (2012).
The test for clear error requiring reversal is whether the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. This assessment involves a review of the entire record and a de novo review. The burden of showing clear error remains with the defendant. Williams, 295 Kan. at 516.
During the trial, Coleman stipulated that he had a previous felony conviction and was found to have been in possession of a firearm when the prior crime was committed for the purpose of establishing his convicted felon status as an element of the felon-in-possession charge. K.S.A. 21–4204(a)(2). The stipulation, which was admitted into evidence, read as follows:
“STIPULATION
“Mario T. Coleman has previously been convicted of a person felony on April 23, 2004, and was found to have been in possession of a firearm at the time of the commission of the prior offense.
/s/________________
Justen Phelps # 22670
Deputy District Attorney
/s/________________
Gary Owens # 16012
Attorney for Defendant
/s/________________
Mario T. Coleman, Defendant”
Coleman did not object to the admission of the stipulation.
Coleman was charged with criminal possession of a firearm in violation of K.S.A. 21–4204(a)(2). The jury received the following instruction regarding this charge:
“To establish this charge, each of the following claims must be proved:
1. That the defendant knowingly had possession of a firearm;
2. That the defendant had been convicted of a person felony;
3. That the defendant was found to have been in possession of a firearm at the time of the commission of the prior offense; and
4. That this act occurred on or about the 4th day of June, 2011, in Sedgwick County, Kansas.
“For the purpose of this instruction you may consider elements 2 and 3 as proven by agreement of the parties in the form of a stipulation.”
Coleman concedes in his brief that the stipulated evidence was admissible to prove the elements of criminal possession of a firearm. Yet, he states: “Any other use of that evidence violates K.S.A. 60–455. Failure to give a limiting instruction in this case is [reversible] error.”
Our Supreme Court has specifically addressed the issue of whether a trial court's failure to give a limiting instruction regarding evidence of a previous felony conviction constitutes reversible error. In State v. Denney, 258 Kan. 437, 441–46, 905 P.2d 657 (1995), our Supreme Court held that when evidence of a prior crime is introduced for the limited purpose of establishing an element of the current crime, and the defendant requests a limiting instruction, the trial court should give the instruction under K.S.A. 60–406. Nevertheless, in State v. Banks, 260 Kan. 918, 928, 927 P.2d 456 (1996), Banks argued that the trial court committed reversible error when it failed to give a limiting instruction that the evidence of his prior conviction was only to be used for the limited purpose of establishing an element of the crime of unlawful possession of a firearm even though Banks had not requested such an instruction. In rejecting Banks' argument, the Banks court relied on State v. Knowles, 209 Kan. 676, Syl. ¶ 3, 498 P.2d 40 (1972), which held: “Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.” Neither the State nor Coleman discusses the Banks' holding or the result its holding has on Coleman's argument.
Here, as in Banks, Coleman did not request a limiting instruction. Therefore, based on Banks, it was not reversible error for the trial court to fail to give a limiting instruction regarding the stipulated evidence of Coleman's prior conviction in the absence of a request. Moreover, stipulations as to evidence in criminal cases are binding upon the parties represented. By entering into the stipulation, a defendant waives his right to contest the factual evidence included therein. State v. Downey, 27 Kan.App.2d 350, 358–59, 2 P.3d 191,rev. denied 269 Kan. 936 (2000); see also State v. Bogguess, 293 Kan. 743, 745, 268 P .3d 481 (2012).
Finally, K.S.A.2012 Supp. 60–455 has no application here because the stipulation was not used to prove Coleman's propensity to commit crimes or civil wrongs. K.S.A.2012 Supp. 60–455(a). For example, Coleman implicitly concedes in his brief that the stipulation and instruction involving his previous felony conviction did not dominate the State's case. Coleman states the following:
“This evidence was clearly admissible in relation to the criminal possession of a firearm charge and, undoubtedly, this is why the defense decided to stipulate to the evidence. And the district court instructed the jurors that elements 2 and 3 were proven by the stipulated evidence.”
Obviously, Coleman does not dispute that this evidence was relevant to prove a material fact: two elements of his current charge of criminal possession of a firearm.
Coleman asserts that since jurors were told that elements 2 and 3 were proven based on the stipulation, without a limiting instruction, “there was a high risk that a jury could have convicted [him] on all charges, not because of the evidence presented, but because of the prior bad act evidence.” In People v. Griggs, 110 Cal.App. 4th 1137, 1142, 2 Cal.Rptr.3d 380 (2003), the Griggs court similarly rejected the argument asserted by Coleman in this case. In rejecting the argument, the Griggs court stated:
“It is apparent from the jury instructions given here that the obvious use of the stipulation was only to prove an element of the crimes charged. The only direct reference to the stipulation to appellant's prior felony conviction is in the instructions given with respect to the crimes of being a felon in possession of a firearm and a felon in possession of ammunition. These instructions show that the stipulation was ‘obviously used’ only to prove an element of the offense charged, and was so obviously not used to prove propensity to commit crimes, that an instruction on limited admissibility was not essential to the jury's understanding of the case.” 110 Cal.App. 4th at 1142.
The Griggs court held that the trial court was not required to give a limiting instruction, sua sponte, to ensure that the jury did not consider his prior felony convictions as showing that he had a propensity to commit crimes. We agree with the Griggs court reasoning and conclusion on this point.
Here, there is no evidence that the jury instructions given in this case created “a high risk that a jury could have convicted [Coleman] on all charges, not because of the evidence presented, but because of the prior bad act evidence.” The jury was instructed to accept the fact of Coleman's previous conviction as proven. The jury instructions never stated that the stipulation had any purpose other than to prove elements of the criminal possession of a firearm charge.
Based on Coleman's stipulation, Banks, and Griggs,K.S.A.2012 Supp. 60–455 has no application here. As a result, Coleman's argument fails.
Moreover, if the concurrences are correct and K.S.A.2012 Supp. 60–455 controls the admission of Coleman's prior conviction, this would mean that the State and a defendant could never enter into a stipulation similar to Coleman's without violating the three-step Gunby test summarized as follows:
“First, the district court must determine whether the fact to be proven is material, meaning that this fact has some real bearing on the decision in the case. The appellate court reviews this determination independently, without any required deference to the district court.
“Second, the district court must determine whether the material fact is disputed and, if so, whether the evidence is relevant to prove the disputed material fact. In making this determination, the district court considers whether the evidence has any tendency in reason to prove the disputed material fact. The appellate court reviews this determination only for abuse of discretion.
“Third, if the fact to be proven was material and the evidence was relevant to prove a disputed material fact, then the district court must determine whether the probative value of the evidence outweighs the potential for undue prejudice against the defendant. The appellate court also reviews this determination only for abuse of discretion,
“If the evidence meets all of these requirements, it is admitted, but in a jury trial the district court must give the jury a limiting instruction telling the jury the specific purpose for which the evidence has been admitted (and reminding them that it may only be considered for that purpose).” State v. Torres, 294 Kan. 135, 139–40, 273 P.3d 729 (2012).
Under this framework, Coleman's prior felony conviction would be inadmissible because it fails the second step of the three-step Gunby analysis. The material fact of Coleman's previous felony conviction as proof of the second and third elements of his current criminal possession of a firearm charge was not in dispute. Here, Coleman stipulated to the admission of his prior felony conviction for this purpose. As a result of the stipulation, the State could not produce other evidence of the specific nature of Coleman's prior felony conviction, thus protecting Coleman from undue prejudice that might result from the State introducing the prior crime evidence. Therefore, this material fact was not disputed.
If the second and third elements of Coleman's current offense are in dispute, as the concurrence alleges, then what purpose does the stipulation serve? The reason a defendant enters into a stipulation is to prevent the State from presenting evidence of the specific nature of the defendant's prior conviction. If the elements are still in dispute, then the State would not have to honor the stipulation and could bring in other evidence to prove the elements in dispute. This means that a defendant who agrees to stipulate to a prior felony conviction would be in no better position than a defendant who refused to stipulate.
Finally, how could Coleman's prior felony conviction be in dispute when a trial court is required to accept a defendant's offer to stipulate to the fact of a prior conviction? See State v. Lee, 266 Kan. 804, 814–16, 977 P.2d 263 (1999) (“When requested by a defendant in a criminal possession of a firearm case, the district court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon.”). Thus, there was no dispute over the status of Coleman's prior felony conviction.
This court acknowledges that our Supreme Court has held that admitting other crimes evidence independent of K.S.A.2012 Supp. 60–455 is no longer allowed; however, this court believes that this case is an exception to that rule. Recently, in State v. Everett, 296 Kan. 1039, 297 P.3d 292, 297 (2013), our Supreme Court explained that in Gunby it ended the previous practice of admitting evidence of other crimes or civil wrongs on any grounds independent of K.S.A.2012 Supp. 60–455. In Everett, 297 P.3d at 297, the court rejected the admission of evidence under the “open door” rule and held that even evidence admitted in rebuttal to other evidence must go through the K.S.A.2012 Supp. 60–455 analysis. In determining that the evidence the State sought to admit was not relevant, the Everett court pointed out that Everett's prior conviction was not an element of the offense and it had no legitimate and effective bearing on the decision of whether Everett unlawfully manufactured a controlled substance.
Unlike Everett, Coleman's prior conviction was an element of the current offense, and it had a legitimate and effective bearing on the decision of whether Coleman unlawfully possessed a firearm. Thus, the evidence is clearly relevant to prove a material fact, i.e., to prove the elements of the current charge of possession of a firearm. Yet, because Coleman stipulated to the admission of his previous conviction as proof of the second and third elements of his current criminal possession of a firearm offense, this material fact was no longer disputed.
Because Coleman's prior conviction was inadmissible under the second step of the three-step Gunby analysis, this court would be required to determine whether the admission of that evidence was harmless under K.S.A.2012 Supp. 60–261. State v. Wells, 289 Kan. 1219, 1232–33, 221 P.3d 561 (2009). Here, Coleman was currently charged with criminal possession of a firearm. The evidence against Coleman was purely circumstantial, was not overwhelming, and the key witnesses that testified against Coleman were admittedly intoxicated at the time of the alleged crime. Because Coleman's prior conviction involved the use of a firearm, it would be difficult to conclude that admitting the evidence of Coleman's previous conviction was harmless.
Did the trial court err in denying Coleman's motion for new trial?
Next, Coleman argues that the trial court erred in denying his motion for new trial based on newly discovered evidence. Coleman contends that Arnett admitted that her trial testimony was false and that he had no prior knowledge that Arnett would “recant with such wild zeal and add false statements to her testimony.” Coleman acknowledges that “[w]hen Arnett took the stand and adopted such a defensive position with the prosecutor, she essentially tainted the jury against her to the point where they weren't going to believe anything she said, including her recantation.” As a result, Coleman requests a new trial so that Arnett can testify again, arguing that a jury would likely find her credible and give more weight to her in-court statements rather than her previous statements to officers.
“The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. [Citation omitted.] Judicial discretion is abused only when no reasonable person would take the view of the district court. The party who asserts abuse of discretion bears the burden of showing it. [Citation omitted.] The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions. [Citation omitted.]' “ State v. Fulton, 292 Kan. 642, 648, 256 P.3d 838 (2011) (quoting State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 [2007] ).
A two-part test is used to determine whether a new trial is warranted on the ground of newly discovered evidence: “(1) whether the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial and (2) whether the evidence is of such materiality that it would be likely to produce a different result upon retrial.” Fulton, 292 Kan. at 649. Coleman's argument fails each part of this test. First, as Coleman admitted in his brief, he was aware that Arnett had recanted much of her testimony when she spoke with the private investigator. Additionally, Arnett had made it clear that she did not want to testify in this case. Arnett refused to testify at the preliminary hearing and only testified at trial to avoid going to jail. Therefore, Coleman's counsel knew that Arnett was going to be a difficult witness and should not have been surprised when she took the stand and recanted her previous statements. In fact, in his brief, Coleman simply argues that he could not have known that Arnett would recant her testimony with such “wild zeal,” not that he was surprised by the fact that she recanted. Moreover, the alleged new evidence that Coleman presented to the trial court was that Arnett had falsely testified at trial and had exaggerated her testimony. As stated earlier, at trial, Arnett recanted her previous statements to the police. This alleged newly discovered evidence again states that Arnett recanted her previous statements to the police but for different reasons than what she testified to at trial. Therefore, there is no new evidence that was presented to the trial court that would likely produce a different result upon retrial.
In denying Coleman's motion for new trial, the trial judge stated:
“[N]ot only did the witness Hyde [Arnett] present severe problems, but also, some of the other State's witnesses, because they were trying to backtrack on their earlier statements and it was quite clear that their credibility was highly in issue. That, however, is not enough to, at this juncture, require a new trial.
“This was a circumstantial case and the jury chose to believe the evidence presented by the State that Mr. Coleman had, in fact, committed these offenses. I will deny the motion for new trial.”
As stated earlier, Arnett testified at trial and recanted her previous statements to the police; thus, her new statements, also recanting her previous statements to police, are irrelevant. Coleman is essentially wanting Arnett to testify again so she can attempt to repair the damage she caused by defiantly recanting in the original trial. Coleman is not entitled to a second bite at the apple. The fact that her recantation testimony was false is nothing new. The trial court stated that Arnett's credibility was highly in issue and that the jury chose to believe the evidence presented by the State. Therefore, Coleman is not entitled to a new trial for the sole purpose of Arnett again telling the jury that her previous statements to police were false, but this time in a more compliant manner.
Because Arnett recanted her testimony at trial, her alleged corrected recantation testimony is irrelevant. As a result, the trial court did not abuse its discretion in denying Coleman's motion for new trial based on newly discovered evidence.
Did the trial court improperly use witnesses' prior out-of-court statements as substantive evidence?
Finally, Coleman contends that it was error to admit out-of-court unsworn statements of Joyce and Arnett. Coleman maintains that this evidence was not only used to impeach these witnesses, it was also used as substantive evidence.
As the State correctly argues and Coleman concedes, our Supreme Court has previously dealt with this issue and held that prior out-of-court statements can be used, not only for impeachment purposes but also as substantive evidence. See State v. McMullen, 290 Kan. 1, 7–8, 221 P.3d 92 (2009), which held:
“A witness achieves turncoat status when the witness' trial testimony deviates from a previous statement the witness has provided on the topic. [Citation omitted.] K.S.A.2008 Supp. 60–460(a) authorizes the admission of that prior statement if the witness is present at the hearing and available for cross-examination. See State v. Holt, 228 Kan. 16, 22, 612 P.2d 570 (1980) ( “ ‘Prior hearsay statements of a ‘turncoat witness' are admissible as substantive evidence under K.S.A. 60–460[a].’ ”).”
See also State v. Wise, 237 Kan. 117, 120, 697 P.2d 1295 (1985) (witness' statements were admissible as substantive evidence because witness was present and testified in person during trial).
Our court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (2012). It does not seem that our Supreme Court is departing from its position, and Coleman failed to cite any cases proving otherwise. Therefore, Coleman's argument fails based on McMullen and Wise.
Affirmed.
* * *
BUSER, J., concurring.
I concur in the holding affirming Coleman's convictions. I write separately, however, regarding the K.S.A.2012 Supp. 60–455 limiting instruction issue. In particular, I disagree with Judge Green's statements in the opinion that “[State v.] Gunby, [282 Kan. 39, 114 P.3d 647 (2006) ] and K.S.A.2012 Supp. 60–455 are inapplicable to this situation” and “[b]ased on Coleman's stipulation, [State v.] Banks, [260 Kan. 918, 928, 927 P.2d 456 (1996) ], and [People v.] Griggs, [110 Cal.App. 4th 1137, 1142, 2 Cal.Rptr.3d 380 (2003) ], K.S.A.2012 Supp. 60–455 has no application here.”
I would find that K.S.A.2012 Supp. 60–455does apply to this factual scenario and the district court's admonition added to the criminal possession of a firearm elements instruction—“[f]or the purpose of this instruction you may consider elements 2 and 3 as proven by agreement of the parties in the form of a stipulation”—was a sufficient limiting instruction.
Gunby provides:
“We conclude that our lines of cases allowing admission of [prior crimes evidence] independent of K.S.A. 60–455 are contrary to long-held common law and the text of the statute itself. The practice of admitting evidence independent of K.S.A. 60–455 also is unnecessary and carries the potential to violate a criminal defendant's fundamental right to a fair trial.” 282 Kan. at 49.
The Kansas precedent relied upon by Judge Green, State v. Knowles, 209 Kan. 676, 498 P.2d 40 (1972), and Banks, predates Gunby. In 1972, a majority of our Supreme Court in Knowles found that a stipulation to a prior crime for purposes of proving an element of the charged offense presented a “qualitative difference” from typical K.S.A. 60–455 cases. 209 Kan. at 679. Rather than rely on K.S.A. 60–455 jurisprudence, the majority relied on K.S.A. 60–406 which provided that evidence admissible for one purpose and inadmissible for another purpose, on request, may be restricted in scope and the jury appropriately instructed regarding that limitation. Notably, however, three justices dissented from the majority's third paragraph of the syllabus which stated: “Where proof of a previous conviction is an essential element of a crime charged, failure to give an instruction limiting the purpose for which such conviction may be considered is not reversible error in the absence of a request.” 209 Kan. 676, Syl. ¶ 3. Almost a quarter century later, in 1996, our Supreme Court specifically reaffirmed Knowles in Banks. 260 Kan. at 928–29.
Judge Green and I read Knowles and Banks as establishing a basis independent of K.S.A. 60–455 for admitting prior crimes evidence as proof of an element in the charged crime. Our views diverge, however, in that I read Gunby, filed in 2006, as disapproving of Knowles and Banks.
Gunby's teaching is direct and without exception:
“We hereby state unequivocally that the list of material facts in K.S.A. 60–455 is exemplary rather than exclusive. It may be that other crimes and civil wrongs evidence is relevant and admissible to prove a material fact other than the eight listed. Should this be a district judge's determination, however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60–455 evidence is admitted.
“This enables our return to sensible application of K.S.A. 60–455 and puts an end to the practice of admission of other crimes and civil wrongs evidence independent of it.... Other crimes and civil wrongs evidence that passes the relevance and prejudice tests we have set up and is accompanied by an appropriate limiting instruction should always have been admissible, even if the particular material fact on which it was probative was not explicitly set forth in the statute. It never actually required a specially designed rule to admit it independent of the statute. Rather, such evidence, if permitted to do so, would have fallen squarely within it. We disapprove any language to the contrary in our previous opinions. Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60–455.” (Emphasis added.) 282 Kan. at 56–57.
Our Supreme Court's recently filed opinion in State v. Everett, 296 Kan. 1039, ––––, 297 P.3d 292 (2013), reiterates the view that post- Gunby, there are no exceptions to the admission of prior crimes evidence without applying the safeguards inherent in K.S.A. 60–455 jurisprudence. In Everett, the State sought unsuccessfully to admit prior crime evidence apart from the K.S.A. 60–455 analytical framework. As characterized by our Supreme Court: “In essence, through this [open the door rule] the State seeks to admit evidence of a prior crime in a manner that is independent of the rules of evidence, including K.S.A. 60–455, which relates to the admission of evidence regarding other crimes or civil wrongs.” 297 P.3d at 296.
The Supreme Court noted that the “State's arguments ignore our decision in Gunby in which we ended a prior practice of admitting evidence of other crimes or civil wrongs on any grounds independent of K.S.A. 60–455. ” (Emphasis added.) 297 P.3d at 297. The court candidly acknowledged that, prior to Gunby, “there were decisions in which this court allowed the admission of prior crime evidence based on the ‘open the door’ rule” exception. 297 P.3d at 297. Strictly adhering to Gunby, however, our Supreme Court held that “evidence admitted in rebuttal to other evidence under an ‘open the door’ rule is not an exception permitting evidence of other crimes or civil wrongs to be admitted independent of K.S.A. 60–455.” (Emphasis added.) 297 P.3d at 297. Quite simply, Gunby and Everett are unequivocal. After Gunby, there are no exceptions to admission of prior crimes evidence apart from K.S.A.2012 Supp. 60–455.
My colleague, Judge Green, however, claims an exception in this case. In particular, he bases this exception on the inapplicability of the generic K.S.A.2012 Supp. 60–455 three-step analytical test to factual scenarios like the one in this case. He thoughtfully questions the applicability of this test to situations wherein a defendant stipulates to a prior conviction that proves one or more elements of the charged offense.
Applying the three-step Gunby test to the facts of this case, Judge Green concedes the obvious—the prior crime evidence is material to prove the charged crime, thus meeting the first requirement of the test. But he points out that, given Coleman's stipulation to his prior conviction, this material fact was not “relevant to prove a disputed material fact” as required under the second step of the Gunby test. State v. Torres, 294 Kan. 135, 140, 273 P.3d 729 (2012).
Of course, this second requirement that a material fact be disputed was designed to prevent prosecutorial overreach in presenting prior crimes evidence regarding material facts not at issue in the trial. Given the danger that a jury would view prior crimes evidence as an indication that the defendant had a propensity to commit crimes, the purpose of the second step was to limit the ability of prosecutors to offer prior crimes evidence only in those cases where that evidence is in play and at issue in the case.
In the present case, however, we are not presented with a case of prosecutorial overreach. The prior crime evidence, although stipulated, was essential to the prosecutor's burden of proof. And the one sentence stipulation provided only the barest of facts to prove two critical elements of the criminal possession of a firearm charge. Still, because Coleman did not admit guilt to the charged crime at trial, it was necessary for the State to present evidence of the prior conviction. Thus, despite the stipulation, the proof of the prior conviction was still at issue and in play as the jury considered whether Coleman was guilty of criminal possession of a firearm.
The third step of the Gunby test is still appropriate to stipulated evidence of a prior conviction as proof of the charged crime. This step requires the district court to engage in a “particularized weighing of probative value and prejudicial effect.” Gunby, 282 Kan. at 56–57. In the present case, the stipulation was carefully crafted to include only those minimal facts necessary to prove two elements of the charged crime. There were no details provided regarding the prior crime of conviction, or any prejudicial facts describing the crime and any harm done to the victim(s).
One could posit a situation, however, wherein a stipulation regarding a prior crime provided unnecessary and extraneous material that, in the opinion of the trial court, was prejudicial to the defendant. Under the third step, the trial court could certainly decline to admit the stipulation into evidence without modifications to eliminate prejudicial wording or effects. In this way, the trial court would still provide a valuable gatekeeper role and insure that, while the stipulation to the prior conviction was probative, it was not unduly prejudicial.
The last protection afforded to defendants by the Gunby analytical framework is the limiting instruction. It is understatement to observe that the use of a limiting instruction in cases where prior conviction evidence is admitted by stipulation under K.S.A.2012 Supp. 60–455 is still an important safeguard to insure that a jury properly considers the limited purpose for which this evidence was admitted.
In summary, as pointed out by Judge Green, the second step of the K.S.A.2012 Supp. 60–455 analytical framework does not fit squarely with the factual context of this or other cases wherein the parties stipulate to a prior conviction that must be proven by the State as an element of the charged crime. But in keeping with Gunby's categorical teaching, I would simply modify the K.S.A.2012 Supp. 60–455 analytical framework to provide that in such unique cases it is not necessary for the material fact of the prior crime to be disputed. In this way, the other two steps of the analysis and the requirement of a limiting instruction would still apply and the prophylactic purposes inherent in the K.S.A.2012 Supp. 60–455 analytical framework would be preserved.
In keeping with current, post- Gunby,K.S.A.2012 Supp. 60–455 jurisprudence, a limiting instruction was required in this case. See also 282 Kan. at 58 (“In short, a trial judge should give such a K.S.A. 60–455 limiting instruction, but the failure to do so, though error, will no longer demand automatic reversal.”).
Here, the limiting instruction added by the district court to the bottom of the elements instruction for the crime of criminal possession of a firearm sufficiently directed the jury that it could consider the prior crime evidence as proof of the second and third elements of this particular charged offense. While this limiting instruction may not have been the best, it was sufficient—in its wording and in its placement as part of the criminal possession of a firearm elements instruction—to focus the jury's attention on the appropriately limited use of the prior conviction.
* * *
BRUNS, J., concurring.
I also concur in the majority opinion affirming Coleman's convictions but write separately to briefly explain why I believe that the result would be the same even if K.S.A.2012 Supp. 60–455 and State v. Gunby, 282 Kan. 39, 114 P.3d 647 (2006), are applicable in this case. Under Gunby, a district court must give a limiting instruction to the jury when it admits evidence of prior crimes or civil wrongs. But the failure to do so does not necessarily require reversal. 282 Kan. at 58–59.
Here, Coleman entered into a written stipulation stating that he had “previously been convicted of a person felony on April 23, 2004, and was found to have been in possession of a firearm at the time of the commission of the prior offense.” And, as Judge Green points out, Coleman concedes that the stipulated evidence was admissible to prove the elements of criminal possession of a firearm. As such, I agree with Judge Buser that the language added by the district court to the end of the standard elements instruction for the crime of criminal possession of a firearm would be sufficient under Gunby to advise the jury of the limited purpose for which the prior crime evidence was admitted into evidence. Furthermore, even if the district court committed error in instructing the jury, I would conclude that such error was harmless under the unique circumstances presented.