Opinion
No. 102,790.
2012-10-5
STATE of Kansas, Appellee, v. Nolden GARNER, Jr., Appellant.
Appeal from Wyandotte District Court, John J. McNally, Judge. Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court, John J. McNally, Judge.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SARNOLD–BURGER, P.J., McANANY, L, and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following a jury trial in which Nolden Garner, Jr., proceeded pro se with the assistance of standby counsel, Garner was convicted of attempted second-degree murder, aggravated robbery, aggravated battery, aggravated burglary, and attempted aggravated robbery. These convictions arose out of an attempted robbery of the vault which held concession funds at the Kansas Speedway during a NASCAR race in Kansas City. This is Garner's direct appeal from those convictions.
Garner's accomplice, Fredrick Douglas, was tried separately and was convicted of similar crimes. In Douglas' direct appeal, a panel of this court reversed his conviction for attempted capital murder and remanded for a new trial on that count, reversed his attempted aggravated robbery conviction, and affirmed his convictions for aggravated robbery and aggravated burglary. State v. Douglas, No. 102,676, 2011 WL 5027085 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. –––– (May 4, 2012). A detailed recitation of the facts of the crimes is set forth in that opinion. We turn to the 11 different points of error raised by Garner in this appeal.
I. Error to Give Aiding and Abetting Foreseeability Instruction for Attempted Second–Degree Murder?
The State charged Garner with attempted capital murder in connection with the shooting of Detective Brown. The court instructed the jury on the lesser-included crimes of attempted first-degree murder and attempted second-degree murder. The court also gave the following instruction:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.
“In addition, a person is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.” (Emphasis added.)
The jury convicted Garner of attempted second-degree murder. Garner argues that this conviction should be reversed because the district court's jury instruction set forth above that discussed foreseesabihty reduced the State's burden to prove intent. See State v. Overstreet, 288 Kan. 1, Syl. ¶ 4, 200 P.3d 427 (2009); State v. Engelhardt, 280 Kan. 113, 132–33, 199 P.3d 1148 (2005).
Garner did not object to the court's aiding and abetting/foreseeability instruction, so we apply the clearly erroneous standard of review. See K.S.A. 22–3414(3); State v. Burnett, 293 Kan. 840, 847, 270 P.3d 1115 (2012). Under this standard, if the instruction was erroneous we nevertheless will affirm unless we are firmly convinced there is a real possibility the jury would have rendered a more favorable verdict for Garner if the error had not occurred. See 293 Kan. at 847.
We need not do an analysis to determine if the instruction was given in error. The State appears to concede that pursuant to Overstreet and Engelhardt the instruction was erroneous, but it argues that the error was harmless. First, the State apparently contends the error was harmless because the jury convicted Garner of the lesser crime of second-degree murder. The State contends:
“The fear of diminishing the burden of proof was alleviated when the jury did not find that the state proved the element of premeditation by not convicting the defendant of attempted capital murder or attempted first degree murder. The action of the jury serves as proof the jury carefully considered and followed the remainder of the aiding and abetting instruction.”
But in Overstreet, the Supreme Court announced in Syllabus 2: “For a defendant to be convicted of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.” 288 Kan. 1, Syl. ¶ 2.
Here, the jury was instructed on the lesser-included crime of attempted second-degree murder pursuant to K.S.A. 21–3402(a), which defines the crime as intentionally killing a human being. Second-degree murder is a specific-intent crime. State v. Hayes, 270 Kan. 535, 543, 17 P.3d 317 (2001).
The State's discussion on this point consists of the above-quoted two sentences and nothing further. The State makes no effort to explain how it seeks to avoid application of the clearly expressed proposition in Syllabus 2 of Overstreet. An issue not briefed is deemed waived and abandoned. State v. Martin, 285 Kan. 994, 998, 179 P.3d 457,cert. denied555 U.S. 880 (2008). Further, a point raised incidentally in a brief and not argued there is also deemed abandoned. Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). We need not consider this point further. Overstreet controls. The district court erred in instructing the jury on the lesser-included offense of second-degree murder. The question for us now is whether the error was harmless.
The State contends the error was harmless because of the overwhelming evidence against Garner. We disagree. Although the evidence at trial established that Garner and Douglas attempted to steal money from the Speedway's vault, the evidence was unclear as to who actually shot Brown. The forensic evidence suggested that Brown was shot with the Taurus revolver. This gun was found along the route Garner ran after he fled from the getaway vehicle. Brown's blood was found on Garner's pant leg, and Brown's DNA was found on Garner's shoes. This evidence suggests that Garner was the gunman. But Brown described the assailant who shot her as a “big sized guy” wearing a white mask, a description that fitted Douglas better than Garner, and Douglas' DNA was found on the trigger guard of Brown's service weapon.
Given the conflicting evidence about who was the gunman, the district court instructed the jury that it could find Garner guilty of attempted capital murder if it found that Garner personally shot Brown or if Garner aided and abetted Douglas in the shooting.
In closing arguments, the prosecutor told the jury that it could find Garner guilty either by finding that he was the gunman or by finding that Douglas was the gunman and Garner aided and abetted him.
During jury deliberations the jury sent the court a note, which stated:
“ ‘We are concerned, because as we agree that Mr. Garner was a willing participant in the robbery, we are not convinced he was a willing participant in the shooting. However, the instructions seems [ sic ] to indicate he is still liable for that crime also. Your experience in this matter would be greatly appreciated.’ “
The district court responded by referring the jury to Instruction 19, the instruction that the State now concedes was given in error.
Under these circumstances we cannot state that we are firmly convinced there was no real possibility that the jury would have rendered a more favorable verdict for Garner if the instructional error had not occurred. Accordingly, we must reverse Garner's conviction for attempted second-degree murder and remand the case to the district court for a new trial on this charge.
By its verdict, the jury acquitted Garner of attempted capital murder. See K.S.A. 21–3108 which was in effect at the time. As stated in In re Berkowitz, 3 Kan.App.2d 726, Syl. ¶ 4, 602 P .2d 99 (1979): “A conviction of an included offense is an acquittal of the offense charged. If the conviction is later invalidated for any reason, the defendant cannot be retried for any higher degree of the crime for which the defendant was originally convicted.” Garner's retrial must be for attempted second-degree murder, not attempted capital murder.
II. Aggravated Robbery and Attempted Aggravated Robbery: MuItiplicitous?
Garner claims that his convictions for aggravated robbery of Detective Brown's weapon and attempted aggravated robbery of the money in the vault are multiplicitous, a claim which raises an issue of law over which we have unlimited review. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009). Although Garner did not raise this issue before the district court, we may address this claim for the first time on appeal to serve the ends of justice and prevent the denial of fundamental rights. See, e.g., State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010).
Kansas law prohibits the charging of a single offense in several counts of a complaint. See State v. Schoonover, 281 Kan. 453, Syl. ¶ 11, 133 P.3d 48 (2006). Here, the State charged Garner with aggravated robbery for taking Brown's service weapon by force while armed with a dangerous weapon. The State charged Garner with attempted aggravated robbery for attempting to take money from the vault by force “from the persons or presence of persons inside the building.”
At trial, the jury instruction for aggravated robbery specified Brown as the alleged victim and Brown's weapon as the property allegedly taken.
On the other hand, the jury instruction for attempted aggravated robbery did not specify what property Garner was charged with having attempted to take. It also did not identify the alleged victim of the attempted aggravated robbery. In closing argument, the prosecutor stated, “The robbery of her is taking the gun from her, and the attempted robbery of the vault, and the shooting of her, the attempted capital murder.”
Garner argues that the convictions are multiplicious because there was only one robbery—the scheme to take money from the vault—and Brown's gun was taken in the course of that scheme. The State claims that taking Brown's service weapon was a distinct act, requiring separate force from the attempt to take money from the vault.
In resolving multiplicity claims, the overarching question is whether the convictions are for the same offense. In answering this question, we must determine whether the convictions arose from the same conduct. If they did, we then determine whether there were two offenses or only one by statutory definition. 281 Kan. at 496.
In deciding whether the convictions arose from the same conduct, the court in Schoonover set forth several factors to consider:
“(1) [W]hether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there is an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.” 281 Kan. at 497.
Here, the taking of Brown's service weapon and the attempt to take money from the vault arose from one act—trying to steal money from the vault. Taking the gun and trying to take the money occurred at the same time and at the same location. There was a casual relationship between the events. The gun was taken from Brown to facilitate taking money from the vault. There was no fresh impulse between the two acts.
Moving to the second element of the Schoonover test, both charges were based on K.S.A. 21–3427, the aggravated robbery statute. Although one of the charges is for attempt and the other charge is for the completed crime, the former is a lesser-included offense of aggravated robbery. K.S.A. 21–3107(2)(c). Therefore, the convictions arise from the same statute, and the appropriate test is the unit prosecution test:
“How has the legislature defined the scope of conduct which will comprise one violation of the statute? Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.” 281 Kan. at 497.
K.S.A. 21–3427 defines aggravated robbery as robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” Robbery is “the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426.
In State v. Pham, 281 Kan. 1227, 1251, 136 P.3d 919 (2006), our Supreme Court determined that multiple aggravated robbery convictions can arise from a single course of conduct. The number of aggravated robberies committed during a single course of conduct is determined by the number of victims who had property taken from their person or presence during the course of the robbery.
In Pham, the defendant was charged with six counts of aggravated robbery after he and others broke into a house and bound six victims while searching the house for items to steal. Jewelry was stolen from a purse. The Supreme Court held that the act of aggravated robbery occurred only once because the jewelry was stolen from only one person—the owner of the purse. 281 Kan. at 1247–51.
If property belonging to multiple owners is taken from a single person, only one count of aggravated robbery can be charged. Property belonging to a single person or business that is taken from multiple people can be charged as multiple counts of aggravated robbery—a count for each person from whom the property was taken. Pham, 281 Kan. at 1247–51; see State v. Jackson, 218 Kan. 419, 491–93, 543 P.2d 901 (1975).
In this case, the State argues that property was taken from different people: Brown, who was in control of her service weapon, and the Americrown employees who were in control of the money in the vault. But the jury instructions were unclear regarding what acts and victims constitute the basis for the attempted aggravated robbery charge. Garner argues that Brown was in control of both her weapon and the money in the vault because she controlled entry into the vault. This would leave one victim and thus, under the rule in Pham, only one possible charge of aggravated robbery. When confronted with this same scenario in the direct appeal of Douglas, Garner's partner in crime, a panel of this court found:
“Because [the jury instruction for attempted aggravated robbery] fails to identify the property Douglas attempted to take or the person from whom Douglas attempted to take it, the jury could have based its decision to convict Douglas on [attempted aggravated robbery] based on his attempt to take money from Brown's person or in her presence. If the jury did so, Douglas' convictions for aggravated robbery and attempted aggravated robbery were based on one unit of prosecution—the taking of property from or in the presence of a common victim (Brown) during a single course of conduct and were not based on a single course of conduct that included two units of prosecution—the taking of Brown's service weapon from her person and the attempt to take money from the vault in the presence of three Americrown employees.” Douglas, 2011 WL 5027085, at *22.
We are persuaded by this analysis. Further, the prosecutor's fleeting comment in closing argument hardly suffices to clear up this possible confusion that arises from the vague jury instruction on attempted aggravated robbery. Accordingly, we reverse Garner's attempted aggravated robbery conviction and vacate the sentence imposed for it. Garner's conviction and sentence for the more severe crime of aggravated robbery remains undisturbed. See State v. Gomez, 36 Kan.App.2d 664, 673, 143 P.3d 92 (2006).
III. Error to Charge Aggravated Robbery for Taking Detective Brown's Gun?
While we have reversed Garner's attempted aggravated robbery conviction, his aggravated robbery conviction relating to the taking of Detective Brown's gun remains. Garner argues that the taking of Detective Brown's gun was incidental to the commission of the attempted aggravated robbery, which was the attempt to take money from the vault. Thus, Garner argues, there was no separate crime of aggravated robbery in taking Brown's gun.
Garner relies on State v. Montgomery, 26 Kan.App.2d 346, 988 P.2d 258 (1999). In Montgomery, the defendant pushed his victim to the ground and attempted to rape her. She struggled; in the process her glasses repeatedly came off, and she put them back on. The defendant ended his unsuccessful attack and ran off, taking the victim's glasses with him. The court found that the taking of the glasses was incidental to the commission of the attempted rape and was intended to make the victim less able to identify her assailant. There was no evidence that the defendant took the glasses with the intent to keep them. Thus, the taking of the glasses had no significance independent of the attempted rape and did not support a charge of aggravated robbery.
But here, there was evidence that Brown's assailant did not take her gun simply to facilitate the robbery of the vault. Had that been the case, the gun easily could have been cast aside where the seriously wounded Brown could no longer reach it. But Brown's gun was later found in the getaway vehicle used by Garner and Douglas. We are satisfied that Montgomery does not apply.
IV. Prosecutorial Misconduct?
Garner alleges five instances which he characterizes as prosecutorial misconduct: (1) spoliation or destruction of evidence; (2) failure to make timely disclosures of evidence; (3) interference with Garner's pro se representation; (4) questioning a witness on an irrelevant matter that inflamed the jury; and (5) misstatements during closing arguments. A. Destruction of Evidence
We will first examine Garner's claims that the State destroyed evidence. These claims relate to the repair or replacement of the door to the vault at the Speedway after the attempted robbery and the disposition of the car Garner and Douglas used in their attempted getaway.
Garner filed a pretrial motion to suppress evidence based on his claim that the vault door was repaired or replaced after the attempted robbery and before he had an opportunity to inspect it. Garner's motion made no reference to the getaway car. This motion apparently was never brought to the court's attention for a ruling.
Douglas, Garner's codefendant, raised a similar issue, which was argued by Douglas' counsel at a pretrial hearing. According to the affidavit of the Speedway's security person, the Speedway wanted to repair the damage done to the vault door and door frame after the attempted robbery. An official at the Speedway asked the district attorney's office whether it could proceed. The district attorney agreed that the Speedway could proceed. Garner argued at the hearing that the district attorney should have given defense counsel the opportunity to examine the door before its repair because Garner contended that his counsel at the time had informed the district attorney that she wanted the door to be preserved.
The district attorney denied any knowledge of a request by Garner's counsel to preserve the door. He noted that the Speedway door was never in police custody and thus the statutes normally associated with the release of property were not applicable.
The district court observed that no motion had been filed to preserve the door as evidence. The door was in the possession of the Speedway, not the State. The State apparently intended to use photos of the door at trial. The judge stated, “I've never seen a door brought in [the courtroom for trial]. I guess you could do it. The State wasn't intending to do it. I don't know that [it] had any obligation. I don't even know that [it] thought that there was a need to say something to the defense.” The judge denied relief, saying, “I don't believe the fact that it is no longer available means that the photographs can't be used.”
Contrary to Garner's contention, we do not analyze this claim using the standards for a claim of prosecutorial misconduct. The issue is one of due process. Whether there has been a violation of a defendant's due process rights is a question of law for an appellate court to consider de novo. State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008).
In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the United States Supreme Court held that failure to preserve “potentially useful” evidence constitutes a denial of due process if a criminal defendant can show bad faith on the part of the police. A defendant's due process rights are violated when the State fails to disclose evidence that is material to the defendant's guilt. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Such evidence is considered material to one's guilt if it “possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984).
Citing Youngblood, the court in State v. Finley, 273 Kan. 237, 241, 42 P.3d 723 (2002), stated that the Due Process Clause does not impose an absolute duty on the police to retain and to preserve all material that might be of conceivable evidentiary value. In State v. LaMae, 268 Kan. 544, 551, 998 P.2d 106 (2000), the court stated: “The presence or absence of bad faith by law enforcement officers for purposes of the Due Process Clause necessarily turns on the officers' knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” The State can only have been said to act in bad faith if it knew about the exculpatory value of the evidence at the time it was lost or destroyed.
In United States v. Bohl, 25 F.3d 904, 910 (10th Cir.1994), the court stated:
“The Court in Youngblood extended Trombetta to provide that, if the exculpatory value of the evidence is indeterminate and all that can be confirmed is that the evidence was ‘potentially useful’ for the defense, then a defendant must show that the government acted in bad faith in destroying the evidence. [Citation omitted.]”
Absent a showing of bad faith, Garner had the obligation to show that the physical door contained exculpatory evidence or would impeach the State's evidence. The mere possibility that the actual door might provide evidence favorable to Garner is not enough. As stated in State v. Warrior, 294 Kan. 484, 506, 277 P.3d 1111 (2012): “ “The evidence at issue must be favorable to the accused.' “ “ Garner failed to carry his burden of proof on this issue. He failed to establish that the door actually contained exculpatory evidence or evidence that would, in fact, impeach the State's evidence. Thus, he failed to establish that the Speedway's replacement of the damaged door deprived him of his rights to due process of law.
With respect to Garner's claim regarding the disposition of the getaway car, it appears that the car Garner and Douglas used in their attempted getaway was a rental car insured by Shelter Insurance Company. After the car was impounded, Shelter contacted the police department and arranged for the car to be released to Shelter, the then-titled owner of the car.
Now, for the first time on appeal, Garner argues that the release of the vehicle was a violation of K.S.A. 22–2512(1) (the statute governing safe keeping of seized evidence) and Brady. He claims that releasing the vehicle blocked Garner from proving that the State planted evidence in the car to connect him to the crime.
First, Garner relies on unadulterated speculation that the car contained evidence that would have been favorable to him. Further, he fails to establish bad faith on the part of the police department. Thus, he fails to satisfy the requirements of Youngblood and the related cases discussed above. He also fails to direct us to anywhere in the record where he raised this issue before the district court. A timely and specific objection must be made to all evidentiary claims to preserve them for appellate review. See K.S.A. 60–404; State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). Thus, this contention fails. B. Untimely Disclosure of Evidence
Garner next asserts that the prosecutor failed to make timely disclosures of evidence. Garner does not specify what disclosures the prosecutor failed to make in a timely manner. He vaguely references two instances in which he felt that the prosecutor withheld evidence that Garner had requested.
Garner claims the “prosecutor essentially told the trial judge that even though it was within his power to collect information that Garner had requested, he might not collect it until right before trial.” A reading of the transcript of the hearing at which Garner claims this occurred reveals that the items Garner requested were not in the prosecutor's possession. Garner had requested tapes of 911 calls related to the events of the case, along with any videos of the chase and apprehension and any recordings of radio transmissions to or from the dispatcher. The prosecutor explained that these items were not the property of the district attorney's office and were not routinely requested until right before trial. In any event, the prosecutor would have to request them from the dispatch office the same way that Garner could. The prosecutor told the district court that he would request these items and turn them over to Garner.
Garner also claims the prosecutor withheld photographic evidence. The prosecutor had made a disk containing photos, which he delivered to Garner before trial. It appears there was a technical error in copying the disk, and some of the photos could not be accessed. The district court ordered the disk to be repaired. Garner has failed to show that the prosecutor did not remedy the technical problem with the disk.
Garner fails to show that the prosecutor withheld requested evidence or failed to comply with discovery. His claims regarding the untimely disclosure of evidence fail. C. Interference with Pro Se Representation
Garner claims the prosecutor interfered with his pro se representation by blocking his investigator from visiting him in jail and by changing the schedule for the inmate library so that Garner would have less than an hour a week with law books. Garner offers no proof that these practices were done at the behest of the prosecutor as opposed to being procedures of Garner's jailer. He bases his claim on his personal belief.
Nothing in the record suggests the prosecutor acted in concert with jail officials or personnel to interfere with Garner's pro se representation. This argument fails. D. Improper Statements by the Prosecutor
Next, we turn to Garner's more conventional claims of prosecutorial misconduct arising out of statements made or questions asked by the prosecutor during the course of the trial. In reviewing these claims we apply the familiar two-step analysis. We first determine whether the prosecutor's comments were outside the wide latitude allowed in discussing evidence. Second, we determine whether the prosecutor's statements prejudiced the jury against Garner or denied him a fair trial so as to require reversal.
In the second step of this analysis, we consider three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) whether the prosecutor's misconduct was gross and flagrant, (2) whether the misconduct shows ill will on the prosecutor's part, and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors. None of the factors is individually controlling, and before the third factor can override the first two, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 286 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705,reh. denied386 U.S. 987 (1967), have been met. State v. Simmons, 292 Kan. 406, 408–09, 254 P.3d 97 (2011) (quoting State v. McCaslin, 291 Kan. 697, 715–16, 245 P.3d 1030 [2011] ). Further, K.S.A. 60–261 states that no error at trial is grounds for granting a new trial or setting aside a verdict unless it appears “inconsistent with substantial justice.”
Garner claims that the prosecutor committed misconduct when he asked inappropriate questions of the witnesses. He argues that these questions were meant to inflame the jury. The prosecutor had this exchange with Rita Douglas, Douglas' wife:
“Q. Ms. Douglas, your knowledge of or names that you knew the defendant Nolden Garner by was not Nolden Garner, right?
“A. No.
“Q. You said it was?
“A. Quasim.
“Q. Is that his Muslim name?
“A. I don't know, I mean, that's all I have known.”
Garner objected. The district court stated, “She says she doesn't know. The question has been answered.” The exchange occurred during the State's redirect examination of Rita.
It was Garner, not the State, who brought up the fact that Rita knew Garner by the name Quasim as opposed to his legal name. Garner asked Rita about this in his cross-examination of Rita. The State had not brought up Garner's alias on direct examination.
There is no indication the prosecutor was inquiring about Garner's ethnicity or country of origin. The question apparently related to Garner's religious affiliation. Garner's religious affiliation was wholly irrelevant to the proceedings and an improper distraction from the issues at hand. It would have been no less so if the prosecutor had asked if the defendant was, in fact, a Methodist. Nevertheless, because Garner had broached the subject himself, we conclude that this one, isolated question in a case that was not submitted to the jury until the eighth day of trial was neither gross and flagrant nor evidence of ill will by the prosecutor. See Simmons, 292 Kan. at 408–09. This isolated, albeit improper, question does not constitute reversible error.
Garner also claims prosecutorial misconduct in statements made in closing argument. The prosecutor made the following comment regarding Detective Brown's testimony that while she was lying on the floor of the vault after being shot she felt someone step over her: “You know, when someone, and she has got the bruise on her arm, you feel someone step on your arm, you feel them in the room stepping over you. You feel when their toe of their shoe makes contact with you.”
Before trial Garner requested funds for a DNA expert because he was concerned the State would present DNA evidence regarding a shoe print on Brown's body and he wanted to be able to rebut any such evidence. The prosecutor responded by stating that Garner would not need a DNA expert on this matter because he did “not intend to present any such evidence about a stomp mark on Detective Brown or anything that could have been a shoe print.” (Emphasis added.)
The prosecutor's comment on Brown's testimony was within the wide latitude allowed to prosecutors in closing argument. At the pretrial motion hearing, the prosecutor promised not to introduce DNA evidence related to a footprint on Brown. Garner has not proven the prosecutor broke this promise. Closing arguments are not evidence; they are an opportunity for the parties to make arguments based on the evidence introduced at trial. That is what the prosecutor did here when he commented on Brown's testimony that she felt someone step over her. This statement in closing argument did not constitute prosecutorial misconduct.
Finally, Garner claims that this statement by the prosecutor in closing arguments misrepresented the law:
“The State has to prove that the defendant attempted or at least the defendants, that Fred Brown [ sic ] and Nolden Garner aided and abetted each other in attempting to do these three things, and if you find that the State has proven beyond a reasonable doubt that they aided and abetted and advised each other in attempting in doing an overt act in trying to do these things, then it is at that point that the jury can return a verdict of guilty on that count.”
The “three things” the prosecutor was referring to were the elements of attempted capital murder. These comments related to the first issue we addressed above in this opinion. Because of our resolution of that issue this claim of prosecutorial misconduct in closing argument is now moot. We have set aside Garner's second-degree murder conviction and remanded for a retrial. At the retrial of the case we are confident the trial court will be mindful of our discussion and the cases cited on that issue
V. Error not to Provide Funds for Expert Witnesses?
Garner claims the district court abused its discretion in denying his request for funds to engage a trajectory expert and an expert on firearms. He claims that both experts were necessary to his defense and his convictions should be reversed and remanded for a trial in which he can hire experts. We have already reversed Garner's second-degree murder conviction. The following analysis is to aid the district court on retrial.
In State v. Owens, 248 Kan. 273, Syl. ¶ 5, 807 P.2d 101 (1991), the court stated:
“The authorization of funds for expert services necessary for an adequate defense in a criminal defendant's case lies within the sound discretion of the trial court. Appellate courts will not disturb the trial court's ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court's discretion.”
K.S.A. 22–4508 allows indigent defendants to request funds of the district court for expert services. The statute states that “the district court shall authorize counsel to obtain the services” after inquiry reveals the services are necessary and the defendant is unable to obtain them without financial assistance. K.S.A. 22–4508.
Codefendant Douglas filed a motion requesting funds for a trajectory expert or, in the alternative, an order precluding the State from presenting trajectory evidence at trial. At a hearing on the motion, Garner joined in Douglas' motion. Douglas' counsel argued that the State intended to present evidence that Brown was injured when the gunman shot through an opening in the vault door. Douglas' counsel stated that the State had conducted a trajectory investigation of the vault room and the defense should be able to do the same. The district court denied the motion.
Douglas was tried first in a separate trial. After Douglas' trial, Garner moved for funds to hire an expert to rebut the State's evidence about a bullet fragment taken from Brown's body that matched the Taurus revolver. The district court denied the motion.
Garner claims there were several points during his trial the State offered trajectory evidence and he could not counter this evidence without his own trajectory expert.
Witnesses Alan Jaskinia, John Nash, and Greg Burris collected evidence from the vault for the police. Jaskinia testified that he noted spots in the vault where “a bullet traveled through the door and impacted on the floor.” Nash testified about using trajectory rods to determine the paths of the bullets, but the district court sustained Garner's objection to Nash's testimony because it was not proper expert testimony.
Burris testified about the use of trajectory rods to trace the paths of the bullets. Garner objected, requesting that trajectory testimony not be allowed because of the court's earlier denial of Garner's request for a defense expert. The district court allowed Burris to testify about the use of the rods to determine that certain bullet impact points came from bullets shot through the door opening. Garner also takes issue with the prosecutor's reference to this testimony in closing.
Finally, Garner takes issue with testimony from Brown's orthopedic traumatologist, who testified that the injuries Brown sustained on her leg indicated that she was lying on the floor at the time she was shot in the leg. Garner also argues that he should have been able to rebut testimony that matched bullet fragments found in the vault to the Taurus revolver found in the path Garner took when he fled on foot from the police.
After his conviction, Garner moved for a new trial, in part on the grounds of not being allowed to hire a trajectory expert. The district court denied the motion, stating that it did not believe the trajectory evidence played an important role in Garner's trial.
In his direct appeal, Douglas raised this same issue regarding the denial of funds for a trajectory expert. In finding an abuse of discretion in denying funds for an expert, a panel of this court in Douglas' appeal stated:
“Douglas' defense against the charge of attempted capital murder rested on his ability to show that the assailant could not have aimed and fired his gun directly at Brown through the jamb of the vault and that her injuries resulted from ricocheted and fragmented bullets. Needless to say, this evidence would have supported Douglas' argument that the assailant did not intend to kill Brown when he fired into the outer vault room.” Douglas, 2011 WL 5027085, at *19.
The Douglas court concluded:
“We believe defense counsel's arguments to the district court established the need for expert services under K.S.A. 22–4508. By refusing Douglas the funds for expert assistance but allowing the State to present an abundant amount of evidence concerning bullet trajectory, we find the district court deprived Douglas a fair trial concerning the attempted capital murder charge.” 2011 WL 5027085, at *19.
We find the analysis in Douglas on this point to be persuasive. Garner should have been given funds for the trajectory expert. Garner also should have been allowed an expert to dispute the State's testimony that the bullet found in Brown's body matched the Taurus. The State sought to establish that Brown was shot while on the ground: an important factor in determining the intent to kill. Garner should have been allowed to rebut the testimony with his own expert. Under the circumstances, we cannot conclude beyond a reasonable doubt that the error did not affect the outcome of the trial. See Chapman, 386 U.S. at 24.
If the State intends to present trajectory testimony or testimony regarding the source of the bullet found in Brown's body on Garner's retrial for attempted second-degree murder, and if Garner renews his request for funds to hire experts to meet this testimony, the district court should provide the necessary funds.
VI. Was the Evidence Sufficient to Support Second–Degree Murder?
Garner argues that the shooter passed on the opportunity to kill Brown, showing an absence of the intent to kill her. This relates to Garner's conviction for attempted second-degree murder. Because we have reversed this conviction and remanded the case for retrial, this issue is now moot.
VII. Should Garner have been Charged with Aggravated Battery of a Law Enforcement Officer Instead of Attempted Capital Murder?
Garner argues that his conviction for attempted second-degree murder should be reversed because the State erred when it charged him with attempted capital murder. Garner contends that he should have been charged with the more specific crime of aggravated battery against a law enforcement officer. He argues: “If Garner had been charged with the more specific crime of aggravated battery of a [law enforcement officer], attempted second degree murder would not have been a lesser included crime.” This raises a question of statutory interpretation which we review de novo. See State v. Cott, 288 Kan. 643, 645, 206 P.3d 514 (2009).
When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless the legislature intended to make the general act controlling. State v. Kraushaar, 264 Kan. 667, 671, 957 P.2d 1106 (1998). The State is required to charge under the more specific statute. Carmichael v. State, 255 Kan. 10, 15, 872 P.2d 240 (1994).
Garner was charged with attempted capital murder. Capital murder is the “intentional and premeditated killing of a law enforcement officer.” K.S.A. 21–3439(a)(5). Aggravated battery of a law enforcement officer is intentionally causing bodily harm to a “uniformed and properly identified state, county or city law enforcement officer while the officer is engaged in the performance of the officer's duty” with a deadly weapon. K.S.A. 21–3415(a)(2); see K.S.A. 21–3414(a)(1)(B). Detective Brown, though working off-duty at the Speedway, was considered on duty in accordance with the statute when she was responding to the events of this case.
In State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), the defendant claimed that he was incorrectly charged with indecent liberties with a child. The victim was the defendant's step-granddaughter, and the defendant asserted that under those facts the more specific charge was aggravated incest.
The Williams court stated: “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is specific.” 250 Kan. at 736. The court held that the aggravated incest statute, which dealt exactly with the situation of a person engaging in various sexual activities with minors known to be family members of the offender, was more specific than the indecent liberties with a child statute, which prohibits the same acts as the aggravated incest statute but does not apply to offenders who are not known family members of the victim. 250 Kan. at 736–37.
The Supreme Court noted a key difference between the two statutes—the relation of the perpetrator to the victim. From this difference, “it [was] clear that the legislature intended to establish certain sex offenses applicable where family relationships are not involved.” 250 Kan. at 736. The defendant could be charged under the aggravated incest statute but not the indecent liberties with a child statute. 250 Kan. at 737.
Garner argues that aggravated battery against a law enforcement officer is a general intent crime that fits the facts of this case more appropriately than the specific intent crime of attempted capital murder. But the State properly asserts that the difference between the two statutes is the degree of harm to the victim. The facts of a case can fall into either statute, depending on the amount of harm inflicted on the victim. This is different from the problem in Williams, where the facts called for application of the statute governing familial relationships rather than the statute generally prohibiting indecent liberties with a child.
The State was within its discretion to charge Garner with attempted capital murder as opposed to aggravated battery of a law enforcement officer. The rule that the State must charge under a more specific statute when one exists does not mean that only one statute can apply to each crime. Here, the State was within its discretion to charge Garner as it did.
VIII. Can Capital Murder be Charged as an Attempt Crime?
Garner claims that it was error to charge him with attempted capital murder. He asserts that capital murder cannot be charged as an attempt crime. He argues that the decision to charge him with attempted capital murder rather than attempted first-degree murder was a decision made to inflame the jury. But Garner was convicted of attempted second-degree murder, and we have reversed that conviction and remanded for a new trial on a second-degree murder charge. Thus, the issue about the propriety of an attempted capital murder charge is now moot, and we do not decide moot questions or render advisory opinions. See State v. Bennett, 288 Kan. 86, 89, 200 P .3d 455 (2009); Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005).
IX. Error to Give Aiding and Abetting/Foreseeability Instruction for Aggravated Battery Charge?
This is a variation of the first issue discussed in this opinion. The aggravated battery charge relates to Brett Beemer, a Speedway employee who was in the inner room of the vault when the shooting began. He was injured when a bullet fragment ricocheted into the inner room and struck him. As noted earlier, it was unclear whether the shooter was Garner or Douglas, Garner's codefendant. The court instructed the jury that to establish the charge of aggravated battery, the State had to prove that Garner “or another for whose conduct he was criminally responsible” intentionally caused bodily harm to Beemer with a gun. The court also gave the following instruction:
“A person who, either before or during its commission, intentionally aids, abets, advises, hires, counsels, or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.
“In addition, a person is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.
“All participants in a crime are equally guilty without regard to the extent of their participation. However, mere association with the principals who actually commit the crime or mere presence in the vicinity of the crime is insufficient to establish guilt as an aider or abettor. To be guilty of aiding and abetting in the commission of a crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed.”
During deliberations, the jurors sent the judge a note stating that they agree that Garner willingly participated in the aggravated robbery, but they were not convinced he willingly participated in the shooting.
As we discussed earlier with respect to the Garner's first issue, our Supreme Court stated in State v. Overstreet, 288 Kan. 1, Syl. ¶ 2, 200 P.3d 427 (2009): “For a defendant to be convicted of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.”
Garner asserts that the same analysis used above with respect to his second-degree murder conviction applies here. He fails to note, however, that unlike second-degree murder, aggravated battery is not a specific intent crime. As stated in State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003), aggravated battery is a general intent crime. Therefore, the analysis applicable to Garner's second-degree murder conviction does not apply here. We find no error in the court's instructions on aggravated battery.
X. Constructive Amendment of the Aggravated Robbery Charge? Error to Give Aiding and Abetting/Foreseeability Instruction for Aggravated Robbery Charge?
Garner claims the district court constructively amended the aggravated robbery charge, permitting him to be convicted for a crime that was not charged. The issue is whether the district court had jurisdiction to convict Garner of aggravated robbery. We have unlimited review over this issue. State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596 (2007).
A constructive amendment occurs ‘ “ “if the evidence presented at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the indictment.” ‘ [Citations omitted.]” United States v. Galbraith, 20 F.3d 1054, 1058 (10th Cir.1994) (quoting Hunter v. New Mexico, 916 F.2d 595, 599 [10th Cir.1990], cert. denied500 U.S. 909 [1991] ). “The specific inquiry is whether the jury was permitted to convict the defendant upon “a set of facts distinctly from that set forth in the indictment.” ‘ [Citations omitted.]” Galbraith, 20 F.3d at 1058.
Here, the charging document accused Garner of taking a gun “from the presence” of Brown. The jury instruction stated the jury could find Garner guilty if it found that he took property “from the person or presence” of Brown. Garner does not take issue with this instruction. The instruction did not permit the jury to convict Garner on a different set of facts than the ones set forth in the charging document. See Galbraith, 20 F.3d at 1058. Taking from a victim's person necessarily involves taking from the victim's presence. See State v. Robinson, 27 Kan.App.2d 724, Syl. ¶ 8, 8 P.3d 51 (2000). The evidence at trial supported a gun being taken from Brown's person and presence.
Garner also argues that he was convicted of this crime using the same aiding and abetting theory discussed above, which provided that “a person is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” The State does not address this argument in its brief, however it conceded earlier in connection with the Garner's second-degree murder conviction that the instruction was erroneous, albeit harmless, under the rule in Overstreet.
Does Overstreet apply here as well? We conclude that it does not. Aggravated robbery is robbery “committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon such person in the course of such robbery.” K.S.A. 21–3427. Robbery is defined as “taking property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21–3426. Aggravated robbery is a general intent crime, not a specific-intent crime. State v, McDaniel & Owens, 228 Kan. 172, Syl. ¶ 3, 612 P.2d 1231 (1980); State v. Esher, 22 Kan.App.2d 779, 784, 922 P.2d 1123 (1996). Thus the rule in Overstreet discussed earlier does not apply. That rule applies only to the conviction of a defendant for a specific-intent crime using an aiding and abetting theory. That is not the case here, so Garner's criticism of the aiding and abetting instruction does not apply.
XI. Cumulative Errors?
Finally, Garner claims that cumulative errors by the district court deprived him of his right to a fair trial. We have set aside Garner's attempted second-degree murder conviction and remanded for a new trial on that charge. We reversed Garner's attempted aggravated robbery conviction. We determined that the error regarding the lack of funds for expert witnesses can be cured on the retrial of the attempted second-degree murder charge.
The only remaining error was the prosecutor's improper reference to Garner's Muslim name. We determined that under the circumstances that error was harmless. The notion of cumulative errors requires a number of otherwise harmless errors to accumulate to the point that collectively they have deprived the defendant of a fair trial. There is only one error here which has not otherwise been corrected. Thus, Garner's cumulative error argument fails.
Affirmed in part, reversed in part, vacated in part, and remanded for retrial on the charge of attempted second-degree murder.