Opinion
No. 109,529.
2014-12-19
STATE of Kansas, Appellee, v. Stephen Michael COLLIER, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge.Heather Cessna, 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.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Heather Cessna, 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 POWELL, P.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Stephen Michael Collier (the defendant) was convicted by a jury of intentional second-degree murder. In this direct appeal, the defendant seeks a new trial, alleging that the trial court erred by admitting evidence of a conversation between the defendant and his wife, Virginia Molly Collier (Molly), and by admitting evidence of a telephone conversation with his mother. The defendant further alleges that the prosecutor committed misconduct during his closing argument. Finally, the defendant challenges the trial court's imposition of the aggravated presumptive sentence.
We find no reversible error and affirm the defendant's conviction and sentence.
Factual and Procedural Background
The defendant's conviction arises from the December 28, 2011, shooting death of Susanne Goslin (Sue), which occurred in the Colliers' Olathe home.
Sue and her husband, Stephen Goslin, had been good friends of the Colliers in the 1980's, playing together in a bagpipe band. The couples lost touch sometime around 1989, and by the time that they reconnected sometime between 2006 and 2008, Molly was suffering from multiple sclerosis (MS) and various other health conditions, so she did not socialize much. The Goslins did, however, socialize with the defendant, often drinking.
In the spring of 2011, Sue, who is a registered nurse and who had recently divorced Stephen Goslin, moved into the Colliers' home to be Molly's caretaker. Molly essentially resided in the master bedroom on the top level of the Colliers' split-level home. The defendant and Sue spent most of their time in a family room on a lower level.
In the summer of 2011, the defendant and Sue had an affair which Molly knew about. The relationship between the defendant and Sue was a tumultuous one, and it was not uncommon for them to get drunk and argue. During one argument, Sue threw and broke a lamp. During another argument in late September, Sue physically attacked the defendant, leading Molly to call the police. Sue was arrested for assault and criminal damage to property. However, not long after her arrest Sue called the defendant in the middle of the night, saying she had no place to go. The defendant then allowed her to move back in and resume caring for Molly.
On the afternoon of December 28, 2011, Sue drove Molly to a doctor's appointment, after which they ran some errands. As they were driving home, Sue spoke profanely about the defendant, which upset Molly. On their arrival home at approximately 4 p.m., Molly went upstairs to her room, while Sue and the defendant remained downstairs in the family room. Not long after, the defendant yelled up to Molly, asking her to come downstairs because “something serious [had] happened.” When the defendant asked her to come downstairs, Molly began pushing a Lifeline button hanging around her neck to summon the emergency service to which she subscribed. When she got downstairs, Molly found Sue sitting cross-legged on a love seat, slumped over and bleeding from a gun-shot wound on the left side of her head. Molly immediately checked Sue's pulse and thought she felt a faint pulse, so she got a wet towel from the bathroom to clean up the blood. The defendant was sitting in his recliner holding a gun, which Molly repeatedly asked him to give to her. The defendant eventually either fired or dropped the gun, causing it to discharge a second time into the couch.
The squawk box through which Lifeline communicated with Molly was up in her bedroom, but she believed that when she pushed the button, “they [could] hear [her] clear out in the yard.” A Lifeline dispatcher repeatedly tried to communicate with Molly through the squawk box but heard nothing, so, following Lifeline protocol, the dispatcher called the defendant's cell phone as Molly's designated emergency contact. The defendant answered the call but did not say anything. The dispatcher could, however, hear a woman in the background repeatedly saying, “[P]ut down the gun,” and a man telling the woman to “leave it alone” and “[q]uit pushing the button.” When the call was disconnected, the dispatcher called 911.
After trying to tend to Sue and trying to get the defendant to drop the gun, help had not yet arrived despite the fact that Molly continued to push her Lifeline button. She went back upstairs and called 911, pleading with them to hurry because her husband had a gun and was going to kill himself.
The police arrived at the Colliers' home at approximately 4:45 p.m. Molly answered the door but refused to follow police commands that she exit the home and she returned to her bedroom. As she sat in her room, Molly observed the defendant go into an office and throw the gun. Shortly thereafter, the defendant exited the front door of the home, where he was handcuffed and placed in a patrol car. The defendant maintained that Sue had shot herself.
The police found Sue dead on the loveseat. They then found Molly upstairs in her bedroom, but she initially refused to come out, telling police that she did not need to leave her home because her husband shot Sue. Eventually, Molly directed police to the office where they found a gun wedged behind a computer desk. Before taking Molly to the police station, they allowed her to call a former caretaker for whom Molly left a message that it was an emergency because her husband had shot Sue.
During a videotaped interview later that evening at the police station, Molly continued to implicate the defendant in Sue's death. She told the police that when she went downstairs into the family room after the defendant asked her to come down because he had “ ‘done something,’ “ the defendant told her, “ ‘I killed Sue.’ “ After she tried to help Sue, the defendant, who was drunk, told her he “ ‘couldn't stand it any longer’ “ and begged Molly to give him a bullet so he could shoot himself. Molly said she assumed from this that the defendant had shot Sue after she relentlessly badgered him.
After conducting an autopsy the morning after Sue died, the coroner concluded based on the physical circumstances—particularly the distance from which the gun had to have been fired for there to be no soot or gunpowder stippling around the wound and the trajectory of the bullet—that Sue did not commit suicide and classified her death as a homicide. The next day, the State charged the defendant with first-degree premeditated murder.
It was not long before Molly's recollection of what happened changed. Just prior to the defendant's preliminary hearing in late February 2012, Molly told the detective she did not want to testify because she did not think it would help and did not “ ‘want to hurt Steve.’ “ Molly then explained that after talking to other people, she had changed her mind about what happened that night. Specifically, Molly told the officer that some of her caregivers had obtained a transcript of the Lifeline call, which Molly believed showed that the defendant did, indeed, argue with Sue to give him the gun.
At the preliminary hearing and the ensuing 5–day jury trial, Molly testified in support of the defendant's defense that Sue committed suicide as the defendant struggled to take the gun away from her. When questioned about her prior statements implicating the defendant in Sue's death, Molly suggested she could not remember due to her memory problems from MS, she misspoke, or she did not tell the police everything because she was in shock. Molly further testified at trial that she was never concerned the defendant might commit suicide and repeatedly denied ever telling the police that the defendant told her he had killed Sue. Molly also denied knowledge of any romantic relationship between the defendant and Sue but said she was aware that Sue had “raped [the defendant] twice.”
The defendant also testified at trial that a drunken and upset Sue committed suicide as he was trying to take the gun away from her. He specifically denied being depressed or ever telling Molly that he had shot Sue but admitted he was in shock when he went and called for Molly to come downstairs. Steve also presented evidence that Sue, who had a history of alcoholism, depression, and suicide attempts and was highly intoxicated when she died, was particularly sad and depressed during that holiday season, in part because of how she had been treated by her family.
The State, on the other hand, presented extensive evidence to support its theory that the defendant fired the fatal shot that killed Sue. That evidence included the hour-long videotape of Molly's interview at the police station; audio recordings of the 911 calls placed by Molly and the Lifeline dispatcher; and audio recordings of two police officers' interactions with Molly just after they arrived at the Colliers' home. (These audio recordings do not appear in the record on appeal.) The State also presented DNA evidence that, while not conclusive, tended to point to the defendant, not Sue, as the person who fired the gun. Additionally, over the defendant's objections, the court allowed the State to play an audio recording of a telephone call the defendant placed from the jail to his mother a week prior to his preliminary hearing. The defendant could be heard on that call urging his mother to tell Molly that she could forget or say she did not remember things due to her MS rather than refusing to testify, which concerned him because she might be held in contempt and would not survive jail.
During closing arguments, the State highlighted evidence suggesting Molly had an impeccable memory and could be bullied by no one. The State then argued Molly changed her story about what happened that night only after speaking to others and realizing that she would have to go into a nursing home if the defendant would go to jail. The State also highlighted evidence that the defendant was depressed and about to lose his home to foreclosure.
The jury found the defendant guilty of the lesser-included offense of intentional second-degree murder. The trial court subsequently imposed an aggravated presumptive prison sentence of 165 months. The defendant timely appeals both the conviction and sentence. The Issues on Appeal Marital Privilege
In his first issue on appeal, the defendant argues that the trial court committed reversible error by admitting evidence that he told Molly he shot Sue. He claims that the conversation was confidential and subject to his assertion of marital privilege.
Standard of Review
This court applies a multistep analysis in reviewing a challenge to a trial court decision to admit or exclude evidence. See State v. Hilt, 299 Kan. 176, 188–89, 322 P.3d 367(2014).
The first step of the Hilt analysis requires a determination of whether the evidence is relevant. 299 Kan. at 189. However, since the defendant does not raise or brief any dispute regarding relevance, this issue would be conceded by waiver or abandonment. See State v.Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
We proceed, then, to the next step where we conduct de novo reviews of the trial court's conclusions as to which rules of evidence or other legal principles apply to allow admission of the evidence. Hilt, 299 Kan. at 189.
Analysis
Our analysis involves the determination by the trial court that the evidence that the defendant told Molly he killed Sue was not privileged because the communication was not confidential.
Two Kansas statutes refer to the exercise of marital privilege. K.S.A. 60–423(b) provides, in pertinent part: “An accused in a criminal action has a privilege to prevent his or her spouse from testifying in such action with respect to any confidential communication had or made between them while they were husband and wife.” (Emphasis added). K.S.A. 60–428(a) provides, in pertinent part:
“Subject to K.S.A. 60–437 and except as otherwise provided in subsections (b) and (c) of this section, a spouse who transmitted to the other the information which constitutes the communication, has a privilege during the marital relationship which he or she may claim whether or not a party to the action, to refuse to disclose and to prevent the other from disclosing communications found by the judge to have been had or made in confidence between them while husband and wife.” (Emphasis added.)
The parties herein primarily focus their attention on K.S.A. 60–423(b), but regardless of which statute is applicable, the statutory prerequisite is a “confidential” communication. See State v. Glover, 219 Kan. 54, 56–57, 547 P.2d 351 (1976). Here, the trial court found that since Molly repeatedly pushed her Lifeline button as soon as she started down the stairs, she never intended for any ensuing conversation with the defendant to be confidential because she had intentionally invited third parties into the conversation.
The defendant contends that the trial court inappropriately focused on Molly's intent in gauging confidentiality because the privilege belonged to him. Indeed, in Glover our Supreme Court recognized that under K.S.A. 60–423(b) “ ‘[t]he privilege is ... vested in the accused rather than in his spouse.’ “ 219 Kan. at 57 (quoting Gard, Kansas C. Civ. P. Annot. § 60–423, pp. 399–400 [1963] ) All this means, however, is that the privilege is Collier's to assert, not Molly's. It does not mean that Molly's intent cannot be considered in determining whether the prerequisite confidentiality exists for the privilege to attach.
The defendant also focuses much of his argument on the point that no third persons actually overheard the conversation between he and Molly, despite her attempts to reach Lifeline. The State responds that Molly's repeated pushing of her Lifeline button destroyed any expectation of privacy.
In Glover, 219 Kan. at 56–58, the court reviewed and considered several pertinent authorities in discussing “the guidelines concerning confidentiality” for purposes of determining whether a defendant's wife's testimony fell within the privilege under K.S.A. 60–423(b). In sum, the approved authorities indicated a conversation is not confidential for purposes of K.S.A. 60–423(b) if it is either made in the presence of a third party, or overheard by a third party, or intended to be transmitted to a third person. These authorities do not require that a third person actually overhear the conversation, nor do they state that only the intent of the person who seeks to invoke the privilege matters when deciding whether there was any intent to transmit the conversation to a third person.
Accordingly, the trial court here was legally correct in determining that the defendant's statement to Molly that he killed Sue was not confidential. Regardless of whether the Lifeline dispatcher actually overheard all of the conversation, Molly clearly intended for Lifeline to hear everything that was going on in the house. She intended to transmit her communications with the defendant to third persons.
The defendant raises the argument that substantial competent evidence does not support the trial court's factual findings. He asserts that the evidence shows that he told Molly he shot Sue just as Molly was starting to come down the stairs and before she started pushing the Lifeline button. However, this assertion appears to be based on evidence discussed during pretrial motion hearings. The evidence admitted at trial was that the defendant told Molly he killed Sue as Molly arrived in the family room, well after she had started pushing the Lifeline button. This evidence supports the trial court's determination that Molly did not intend for the communication with the defendant to be confidential.
Thus, we conclude that the trial court correctly applied the law to the facts and did not err in admitting the evidence of the defendant's statements to his spouse Molly.
The Jailhouse Telephone Conversation
In his second argument on appeal, the defendant asserts that the district court committed reversible error by admitting the recording of a conversation with his mother during a telephone call while he was in jail. He argues that the trial court was required but failed to analyze whether that evidence was admissible under K.S.A.2013 Supp. 60–455.
Standard of Review
The defendant's argument again focuses on the trial court's determination as to which rules of evidence or other legal principles apply to allow admission of the evidence. Thus, the Hilt multistep analysis discussed above also applies here. We again note that the defendant does not brief any challenge to the relevance of the evidence. Therefore, we focus on a de novo review of the trial court's conclusions.
Analysis
The defendant acknowledges that the trial court found that the recording of the jail phone call was a statement against interest, admissible under K.S.A.2013 Supp 60–460(j), which provides, in pertinent part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“... [A] statement which the judge finds was at the time of the assertion so far contrary to the declarant's pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability ... that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true.”
The defendant has not briefed any specific challenge to the propriety of the trial court's holding in this regard and has thus waived any challenge to this statutory basis for the trial court's admission of the evidence. See Boleyn, 297 Kan. at 633.
The defendant instead argues that the evidence may still be inadmissible under other rules of evidence, particularly suggesting that admission is precluded under K.S.A.2013 Supp. 60–455(a), which provides, in pertinent part:
“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.” (Emphasis added.)
The defendant seems to base this argument on the idea that the State was seeking admission of the recording to suggest that the defendant committed the crime of intimidation of a witness. However, there is no evidence that the message ever got to Molly, and the State did not seek to admit this evidence to prove the defendant's disposition to commit the crime of intimidation of a witness as the basis for an inference that he killed Sue. Further, the defendant suggests no authority which would establish that the failure to analyze admissibility under K.S.A.2013 Supp. 60–455 would trump another clear statutory authority for admission as set forth in K.S.A.2013 Supp. 60–460(j).
The defendant also contends on appeal that the trial court erroneously admitted this evidence to impeach Molly's testimony. However, the defendant had not cited any point in the record where this specific objection was raised at trial concerning the admission of the recording of the jail house call. See K.S.A. 60–404 regarding timely and specific objection. A party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. State v. Breedlove, 295 Kan. 481, 490, 286 P.3d 1123 (2012).
The trial court committed no error in admitting the recording of the defendant's phone call to his mother from the jail.
Prosecutorial Misconduct
In his third issue on appeal, the defendant contends that the prosecutor committed misconduct by misstating the evidence during his closing argument.
Standard of Review
Appellate review of allegations of prosecutorial misconduct involves a progressive, two-step process. State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). First, this court must determine whether there was misconduct. Misconduct will be found where, for example, the prosecutor's comments go outside the wide latitude allowed in discussing the evidence. If misconduct is found, then this court must move onto the second step to determine whether reversal is required, i.e., whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. See 299 Kan. at 416; State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013).
Additional Background
The defendant argues that the prosecutor misstated the evidence in arguing during closing that the evidence did not support the defendant's contention that Sue committed suicide.
During his direct examination, the defendant took care to lead the jury through the details of events leading up to Sue shooting herself, using photographs of various parts of the home as demonstrative aids. (These aids do not appear in the record on appeal.) In cross-examining the defendant, the State gave him a prop gun and had him physically demonstrate his testimony for the jury as to how he was trying to get the gun away from Sue and how she seemed to be acquiescing when she took her right hand off the gun and started to let the defendant pull it away, but how she then managed to pull the trigger with her left hand.
The day prior to the defendant's testimony, the coroner testified—also using visual and demonstrative aids not in the record on appeal—how he determined Sue's manner of death was a homicide rather than a suicide, i.e., because she died from a “[i]ndeterminate” or “distance-range” gunshot wound to the head, which meant “somebody else fired the weapon.” Other physical evidence offered during the trial also showed: the bullet entered Sue's head 2–3/4 inches directly above her left ear canal; there was no soot or gunpowder stippling on the skin surrounding the wound, which would indicate the bullet discharged from a close range; there was no trace of iron on Sue's left hand, as would be expected from the firing of a handgun; and Sue was right-handed.
As the coroner explained his findings, the following exchange between the prosecutor and the coroner took place (using demonstrative aids to physically demonstrate findings that do not translate well on a flat record).
“Q.... Are you stating that based on your examination of the body and your evaluation of that wound, there was no way that an individual could have held a weapon far enough away to make that wound?
“A. No.
“Q. How did you come to that determination?
“A. Well, self-inflicted gunshot wounds are very common. I've seen hundreds of them. They are essentially always contact or close contact. To have a distant-range gunshot wound is just not a suicide; it's just not. Unless you see a whole apparatus set up where somebody sets up the gun and then sits there and has some kind of device to pull the trigger, there are rare cases of that where people are trying to make a suicide look like a homicide so they can collect insurance, but it's extremely rare. And this is your classic distance-range wound. It has nothing that looks like it was self-inflicted.
“Q.... So is it your opinion based on the [autopsies of] suicides that you've performed and the wounds that you have seen, again, that there is no way Susanne Goslin could've held any type of gun far enough away to make that wound without leaving some of those characteristics?
“A. Well, wait a minute. First off, we're not talking about any kind of gun. We know which gun it was. It was a .38–caliber revolver.
“Q. Correct.
“A. Susanne Goslin was five foot two and a half inches tall. So even if she held it as far as she could reach, her arm reach is only going to be about two feet, two and a half feet. A .38–caliber revolver is going to have—send out enough soot and stippling so you would have some of it deposit on the face; you would have seen it. And even that is unusual. When people commit suicide, they don't do it by shooting themselves out here. They do it, hold the gun here (demonstrating).
“Q. But if it had been held holding it out that far, you would have expected to see some stippling on the wound of the face?
“A. I would.
“Q. And you saw none of that in this case?
“A. Correct.”
The defendant's argument here concerns the following argument made by the prosecutor in closing based on this exchange:
“Ladies and gentlemen, [the coroner] testified this [was] not a suicide event. She did not have the stippling in the usual characteristics of a bullet wound of someone who committed suicide. Her arms [ were ] not long enough to create that result. You would expect to see stippling on her face, and there was not. He had the opportunity to rule this as a suicide, as an other or unknown, or a homicide. And he ruled it a homicide because it was an indeterminate-ranged gunshot wound. And her arms [ were ] not long enough to produce the results he saw at the autopsy.” (Emphasis added.)
The defendant objected that this argument misstated the facts because the coroner had not stated how long Sue's arms were. In overruling that objection, the trial court responded, “The jury will remember the evidence.”
Analysis
Prosecutors are “given wide latitude in the language and the manner of presentation of closing argument as long as the argument is consistent with the evidence.” State v. Hall, 292 Kan. 841, Syl. ¶ 4, 257 P.3d 272 (2011). Prosecutors may not, however, argue facts not in evidence. If they do so, “the first prong of the prosecutorial misconduct test is met.” 292 Kan. 841, Syl. ¶ 5.
The defendant contends the prosecutor misstated the evidence in arguing Sue's arms were not long enough because the coroner refused to say it was not possible for this to have been a suicide. He suggests that “[t]he importance of this distinction—between what could be possible, versus what the coroner's findings were—was a vital one in this case.” In support, the defendant points out the coroner's admission on cross-examination that “indeterminate range”—meaning “any distance far enough so that soot and gunpowder do not deposit on the victim”—“can be as close as 18 inches.... [d]epend[ing] on the weapon and the bullet.” The defendant argues this evidence demonstrates that “[t]echnically, [Sue's arms] were long enough and could have caused a distance-range gunshot wound during a suicide, depending on the weapon, the gunpowder, and other factors.”
We find that this is not even a question of the “wide latitude” accorded to counsel in arguing the evidence. Here the prosecutor's argument was accurate and consistent with the evidence. The coroner verified that it was theoretically possible for someone to commit suicide by firing a weapon from only 18 inches away if the right weapon and bullet was used. He stressed, however, that such circumstances were not present in this case, citing the lack of stippling or gunpowder residue and noting the weapon used and Sue's physical dimensions. Thus, it was not unreasonable for the prosecutor to argue that Sue's arms were not technically long enough for this to have been a suicide.
We find no prosecutorial misconduct.
Aggravated Presumptive Sentence
In his final issue on appeal, the defendant challenges the trial court's imposition of the aggravated sentence in the applicable sentencing guidelines grid block—165 months in prison. He complains the trial court's failure to first require the aggravating factors to be put before a jury and proved beyond a reasonable doubt violated his Sixth and Fourteenth Amendment rights as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and applied in Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007).
The defendant acknowledges that our Supreme Court rejected this same argument in State v. Johnson, 286 Kan. 824, Syl. ¶ 5, 190 P.3d 207 (2008). There, our Supreme Court concluded a sentencing court does not violate Apprendi or Cunningham by sentencing a defendant to the longest term in the presumptive grid block. Thus, such a sentence is considered a presumptive sentence. Johnson, 286 Kan. at 851–52.
The defendant argues Johnson was wrongly decided. But absent some indication that our Supreme Court is departing from its position in Johnson, this court is duty bound to follow that precedent. See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Our Supreme Court consistently refuses to revisit its ruling in Johnson, 286 Kan. 824, Syl. ¶ 6. See, e.g., Hilt, 299 Kan. at 201.
K.S.A.2013 Supp. 21–6820(c)(1) directs: “On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review ... [a]ny sentence that is within the presumptive sentence for the crime.” Because the trial court imposed a presumptive sentence for the defendant's conviction of intentional second-degree murder, this court lacks jurisdiction over this issue.
Affirmed.