Opinion
No. 107,194.
2013-10-25
STATE of Kansas, Appellee, v. Narvell HILL, Appellant.
Appeal from Wyandotte District Court; Robert P. Burns, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
A jury found Narvell Hill guilty of aggravated burglary, aggravated robbery, and kidnapping. The district court sentenced him to a controlling term of 233 months' imprisonment—59 months for kidnapping and 32 months for aggravated burglary, to run concurrent with a 233–month term for aggravated robbery. Hill appeals from his convictions and sentences.
At trial, Rosalba Garcia testified that she and Ramon Martinez were engaged and lived together with their infant son. At around 3:20 p.m. on July 3, 2010, an African–American man knocked on her door and asked for two men. He left after she told him nobody with those names was there. A few minutes later, another African–American man, Hill, knocked on her door and asked for two different men. After she told him nobody with those names was there, he pointed a gun at her.
As the armed men entered her house, Garcia ran into her kitchen and picked up her son. Hill held her at gunpoint and asked her where the money was. Meanwhile, the other man ran to the upstairs bedroom. With his gun still trained on her, Hill ordered Garcia into the living room and directed the other man to watch her. The other man did so with his gun at his side while Hill ransacked the dining room and kitchen. A third African–American man entered the house and joined Hill in his search. Garcia heard them throwing things around upstairs and downstairs. They flipped over the living room couches. The men stole a number of items, including a television, a computer, a cell phone, a camera, a screw-top water jug filled with coins, and some jewelry.
Hill kept asking Garcia about the money and threatened to shoot her if she did not tell him where it was. She told him if there was any money, it would be in the dresser in the upstairs bedroom. Hill took her up to the bedroom and had her show him the dresser. After finding no money in the dresser, he took Garcia back downstairs.
Before the men left the house, Hill told Garcia to get into the dining room closet. He closed the door and told her to get down because he was going to fire three shots into the closet. Garcia was scared and feared for her son's life. However, Hill left the house without firing any shots. Garcia stayed in the closet for about 10 minutes until she heard knocking at her front door.
Neighbors Richard Campos and Theodis Hampton testified they had seen what they considered to be suspicious activity outside Garcia's house and decided to investigate. When Garcia opened her front door, she told them she had been robbed. The police were subsequently called and began their investigation.
Garcia recounted her story to Kansas City Police Officer John Diaz. The police arrested Hill after matching his fingerprints to those lifted from Garcia's house. Later, Garcia related her story to Detective Mark Bundy and picked Hill out of a photo lineup. The police also tapped Hill's jailhouse phone calls and used the information to obtain a search warrant for his residence, where they found Garcia's coin jug. Sufficiency of the Evidence
Hill first argues the evidence was insufficient to support his kidnapping conviction because the State failed to present evidence that he took or confined Garcia “to facilitate a crime.” His specific argument is that the movement or confinement of Garcia was inherent in the nature of aggravated robbery.
When sufficiency of the evidence is challenged in a criminal case, the appellate court must consider all the evidence, viewed in the light most favorable to the prosecution, and determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). Because it is the jury's function to weigh the evidence and determine the credibility of witnesses, this court will not reweigh the evidence. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011).
Hill was charged under K.S.A. 21–3420(b), which provides: “Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold such person ... (b) to facilitate flight or the commission of any crime.” The State was only required to present evidence that Hill confined Garcia with the intent to facilitate either flight or the commission of any crime. See State v. Haberlein, 296 Kan. 195, 209, 290 P.3d 640 (2012) (subsection [b] does not create alternative means of committing kidnapping). Therefore, even if Hill is right and the State failed to present evidence that he confined Garcia to facilitate a crime, his kidnapping conviction stands if the State presented evidence that he confined Garcia to facilitate flight.
Garcia testified Hill left her house immediately after confining her in the closet. This act clearly constitutes kidnapping to facilitate flight because it prevented Garcia from watching the getaway, following the intruders, or reporting the home invasion immediately. See State v. Maxwell, 234 Kan. 393, 672 P.2d 590 (1983) (defendant facilitated flight by tying robbery victims to bed while ransacking and taking items from their house); State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980) (defendant facilitated flight by forcing victims of bank robbery into vault and attempting to lock door); State v. Williams, 226 Kan. 688, 602 P.2d 1332 (1979) (defendant facilitated flight by forcing rape victim into her car and forcing her to drive him somewhere); State v. Brooks, 222 Kan. 432, 565 P.2d 241 (1977) (defendant facilitated flight by taking victims of store robbery to rear of store and binding them with tape). Garcia's inability to see or be seen clearly facilitated Hill's flight from the aggravated burglary and robbery. See Brooks, 222 Kan. at 435 (“Moving the victims to places where they could not see or be seen, and binding them so that they could not follow the robbers or give alarm, were actions taken to facilitate escape and avoid detection.”).
There was sufficient evidence of intent to facilitate flight to support Hill's kidnapping conviction. Prosecutorial Misconduct
Hill next argues the State committed prosecutorial misconduct by (1) bolstering Hampton's credibility; (2) misstating the burden of proof; and (3) inflaming the passions of the jury.
Appellate courts use a two-prong analysis to review prosecutorial misconduct or error claims. First, we must determine whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, we must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Three factors are considered in the plain error prong: “(1) whether the misconduct was gross and flagrant, (2) whether the misconduct showed ill will on the prosecutor's part, and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.” State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012); see State v. Inkelaar, 293 Kan. 414, 430–31, 264 P.3d 81 (2011) (misconduct is “gross and flagrant” if it was repeated or emphasized; deliberate and repeated misconduct or indifference to a court ruling constitutes “ill will”; and evidence is so “direct and overwhelming” if there is no reasonable possibility that the misconduct affected the verdict).
First, Hill claims the following statement constituted improper prosecutorial vouching:
“[The Prosecutor]: ... Officer Diaz said that Mr. Hampton told him that there was a black man running to the car with a TV.
“... Did Mr. Hampton say that today? No. What [he] said is that [he] saw ... a man carrying a blue cooler. Does that mean he was lying to Officer Diaz? No. What it means is he was probably remembering different details at different times, ...” (Emphasis added.)
The first prong of the prosecutorial misconduct analysis is met where the prosecutor offered his or her personal opinion on the credibility of a witness. State v. Stone, 291 Kan. 13, 19, 237 P.3d 1229 (2010). Such comments are “unsworn, unchecked testimony, not commentary on the evidence of the case.” State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000). But attorneys are permitted to make statements that draw reasonable inferences from the evidence. Stone, 291 Kan. at 19. “[W]hen a case turns on which of two conflicting stories is true,” the prosecutor may advocate for reasonable inferences that suggest one story is not believable. State v. Hart, 287 Kan. 494, 505, 301 P.3d 1279 (2013); State v. Scott, 286 Kan. 54, 83, 183 P.3d 801 (2008) (prosecutor may argue that “one version is more likely to be credible based on the evidence”). Nevertheless, the jury must be left to draw the ultimate conclusion about the credibility of witnesses. State v. Duong, 292 Kan. 824, 830, 257 P.3d 309 (2011).
Here, the comment that Hampton did not lie to the police was part of the prosecutor's identification of a reasonable inference to be drawn from the evidence. See State v. Lumley, 266 Kan. 939, 959, 976 P.2d 486 (1999) (prosecutor's comments must be viewed in context of the whole argument). Hill's theory of defense was that because Garcia and her neighbors knew Martinez was a drug dealer, they lied to the police about what happened on the day of the alleged home invasion. The prosecutor responded by repeatedly citing the complete lack of evidence that Martinez was a drug dealer. The prosecutor did not offer her personal opinion on Hampton's credibility. Cf. Stone, 291 Kan. at 19. Rather, the prosecutor identified a reasonable inference to be drawn from the evidence: Hampton's story changed slightly because almost a year had passed since the crime, not because he lied about the home invasion to conceal the fact that Martinez was a drug dealer. See Scott, 286 Kan. at 83. Therefore, we find the comment fell within the wide latitude afforded to prosecutors.
Next, Hill claims the following statement constituted a misrepresentation of the beyond a reasonable doubt standard:
“[The Prosecutor]: ... [Y]ou don't have to believe every word that comes out of every single witness'[ ] mouth one hundred percent. What you have to find is after hearing all of it, are you convinced that the elements of the crimes have been proven beyond a reasonable doubt?
“And I'll point out just as an example, the two neighbors....
“ Do people remember things differently? Yeah, Is that an important enough detail for you to find [Hill] not guilty? No, because it doesn't really go to the elements of the crime, anyway .... [T]hey remember little details ... differently, but the core details ... of what happened in this house[ ] have remained the same.” (Emphasis added.)
The first prong of the prosecutorial misconduct analysis is met where the prosecutor misstated the law. See State v. Magallanez, 290 Kan. 906, 915, 235 P.3d 460 (2010). The Kansas Supreme Court has warned of the perils of attempting to define reasonable doubt. See 290 Kan. at 914–15 (prosecutors risk misstating the burden of proof).
Here, the comment that the change in Hampton's story was unimportant was part of the prosecutor's clarification of the State's burden of proof. See Lumley, 266 Kan. at 959. The prosecutor explained the State only had to prove the elements of each crime, not each witness' story, beyond a reasonable doubt. To conclude her explanation, the prosecutor said the State had proven every element of the charged crimes and Hill's motive for committing the crimes was not a required element. The prosecutor did not attempt to define reasonable doubt. Cf. Magallenez, 290 Kan. at 914–15. Rather, she suggested it was unimportant whether Hampton saw the intruder carrying a TV or a blue cooler because the State had presented other evidence of the taking element of aggravated robbery. Therefore, we find that the comments fell within the wide latitude afforded to prosecutors.
Finally, Hill claims these three statements constitute improper inflammatory comments:
“[The Prosecutor]: ... [Y]ou have heard absolutely no evidence that Mr. Martinez was dealing drugs out of that house. [Hill] wants you to think that, he wants you to buy into a stereotype. Ramon is a young [H]ispanic male living in [a] fairly nice house, has lots of stuff, has vehicles and so he wants you to stereotype that and think well, he must be a drug dealer.”
....
“And even if it were true that Ramon was somehow involved in drugs, that is not a defense to this crime. Rosie and her child were at home. Her home was invaded that day. What they did to her and her son that day is still a crime and somebody needs to be held accountable for that. That somebody, the evidence points to Mr. Hill.”
....
“... Do people get broken into more than once and still are they good people? Yeah. A number of you during voir dire said you'd been victims more than once. Does that mean that you're bad people? That you deserved it? That somehow you're doing something wrong or illegal? No. This was a crime of opportunity, of location and [Hill] took advantage of it.” (Emphasis added.)
The first prong of the prosecutorial misconduct analysis is met where the prosecutor made “statements during closing argument ‘intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law.’ [Citation omitted.]” Duong, 292 Kan. at 833–34. Prosecutors have a “duty to ensure only competent evidence is submitted to the jury and avoid arguments that could prejudice the jurors' minds, preventing them from deciding the case on the evidence. [Citation omitted.]” State v. Martinez, 290 Kan. 992, 1015, 236 P.3d 481 (2010). The Kansas Supreme Court has warned of the perils of injecting race into closing arguments. See State v. Moody, 223 Kan. 699, 705, 576 P.2d 637,cert. denied439 U.S. 894 (1978).
Here, the comment that someone needed to be held accountable for the home invasion was part of the prosecutor's clarification of the law. See Lumley, 266 Kan. at 959. The prosecutor explained that even if Martinez had been a drug dealer, his illicit profession would not be a defense to Hill's alleged crimes. The prosecutor did not encourage the jurors to reach a verdict out of sympathy for Garcia. Cf. State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011) (prosecutor's comment that the trial was the victim's only chance to have someone held accountable for his death was improper). Rather, the prosecutor implored the jurors to find Hill guilty based on the merits of the State's evidence. Therefore, we find the comment fell within the wide latitude afforded to prosecutors.
The comment that the jurors whose houses had been broken into more than once were not bad people was part of the prosecutor's presentation of a reasonable inference to be drawn from the evidence. See Duong, 292 Kan. at 830. Hill argued the jurors should infer that the eyewitnesses did not tell the whole story ( i.e., Martinez was a drug dealer) based on the fact that Garcia's house had been broken into earlier that year. In response, the prosecutor did not encourage the jurors to find Hill guilty based on their common bond with Garcia and the feelings of a victim of a home invasion. Cf. State v. Henry, 273 Kan. 608, 621, 44 P.3d 466 (2002) (prosecutor's comment encouraging jury to think about Mother's Day and feelings of victim's mother was improper). Rather, the prosecutor asked the jurors to call upon their common human experience to infer that many people with no involvement in drug dealing have their houses broken into more than once. See generally State v. Fitzgerald, 286 Kan. 1124, 1131, 192 P.3d 171 (2008) (“Common human experience tells us that many people with no involvement in drug dealing prefer to carry any cash on their person in numerical order of denomination.”). Therefore, we find the comment fell within the wide latitude afforded to prosecutors.
But by commenting that Hill wanted the jurors to stereotype Hispanic men as drug dealers, the prosecutor may have prevented the jurors from deciding the case on the evidence. Because the comment could have inflamed the passions or prejudices of the jury, we find it was outside the wide latitude granted prosecutors in closing argument. See State v. Richmond, 258 Kan. 449, 462–63, 904 P.2d 974 (1995) (prosecutor's comment encouraging jurors to think about wife having to tell her husband she was “raped by a black male” improper).
Although the prosecutor's comment on Martinez' race was misconduct, the misconduct was not so prejudicial that it denied Hill a fair trial. The comment was not gross and flagrant—the prosecutor made the comment once in her closing argument. The comment did not show ill will—the district court was not called upon to rule on the propriety of the comment. Finally, there is no reasonable possibility that the comment affected the verdict. The evidence of aggravated burglary, aggravated robbery, and kidnapping was so direct and overwhelming—Garcia told the officer, detective, and jury the same details about the home invasion, she identified Hill, his fingerprints were found at her house, and a stolen item was discovered at his residence—that the misconduct would likely have had little weight in the minds of the jurors. Moreover, as in Kirk, the prosecutor did not tell the jury “anything it did not already know from courtroom observation” and the reference “was not made in derogatory terms.” 205 Kan. at 683 (holding that defendant's substantial rights were not prejudiced where prosecutor referred to him as “the young colored gentleman”).
The State did not commit prosecutorial misconduct.
Hill also argues the testimony that the police obtained a search warrant after listening to his jailhouse phone calls should have been excluded because it implied his guilt.
The admission or exclusion of evidence lies within the sound discretion of the district court. In reviewing an evidentiary ruling, an appellate court's standard of review, subject to exclusionary rules, is abuse of discretion. See State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004). A district court abused its discretion if its judicial action was based on an error of law, i.e., if its discretion was guided by an erroneous legal conclusion. State v. Longstaff, 296 Kan. 884, 895, 299 P.3d 268 (2013). Moreover, if the adequacy of the legal basis of the district court's admission or exclusion of evidence is questioned, an appellate court exercises de novo review. State v. Holman, 295 Kan. 116, 133, 284 P.3d 251 (2012).
The prosecutor called Detective Bundy to testify about the police investigation. During direct examination, Bundy testified he had been assigned to the case after the police matched Hill's fingerprints to those lifted from Garcia's house. Bundy also testified he arrested Hill at his residence based on the fingerprint evidence. The prosecutor asked Bundy whether he returned to Hill's residence, and Bundy responded he had returned 4 days after Hill's arrest. The prosecutor asked him what caused him to return, and Bundy responded, “While reviewing some phone calls that Mr. Hill was having with a person that was identified as his brother—.” Defense counsel objected to the admission of this evidence based on lack of foundation and hearsay. The prosecutor countered that she was not introducing the contents of the phone calls, she was just introducing the existence of the phone calls to explain why Bundy returned to Hill's residence. Defense counsel argued the jury would infer Bundy “found something in the phone calls” that was “pretty important.” The district judge ruled, “We don't need to get into the specifics of what caused [Bundy] to get the search warrant, just that he obtained information.”
Defense counsel lodged the same objection after the prosecutor continued to question Bundy about the jailhouse phone calls. The district judge's ruling did not change, “[The prosecutor]'s not getting into the specifics of what was said,” just that “[Bundy] got information through the phone calls which caused a search warrant to be issued.” The prosecutor subsequently solicited testimony from Bundy that he reviewed several of Hill's phone calls, which caused him to obtain a search warrant for Hill's residence.
During cross-examination, defense counsel questioned Bundy about jailhouse phone calls. Defense counsel asked whether Bundy had listened to Hill's phone calls after he had been arrested; Bundy said yes. Defense counsel asked whether the jailhouse phone conversations were difficult to hear. Bundy said they were. Then defense counsel asked Bundy whether Hill “said something along the lines of the money's in the house by the vent.” Bundy said he did, and added that he could have said “items” or “stuff.” Finally, defense counsel asked Bundy whether Hill's phone calls contained information that “tie[d] him directly to this crime” or “a smoking gun.” Bundy said they did not. During rebuttal, the prosecutor asked Bundy why he believed Hill was telling his brother the location of items stolen from Garcia's house. Bundy said it was the tone of the conversation and that they seemed to be speaking in code.
We examine on appeal only the objections made by the defendant at trial. No relevancy objection was made, and Hill's objections to foundation and hearsay essentially boil down to whether the evidence was inadmissible hearsay.
Hearsay is “[e]vidence 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.” K.S.A.2010 Supp. 60–460. Hearsay evidence is inadmissible unless it fits within one of the statutory exceptions to the rule. The State contends that Bundy's testimony regarding Hill's phone calls was not hearsay because (1) it did not include any out-of-court statements made by Hill, and (2) it was merely offered to explain why the police returned to Hill's residence.
The flagship case on this issue is State v. Thompson, 221 Kan. 176, 558 P.2d 93 (1976). In Thompson, the State called the investigating officer, who testified a tipster had told him the crime was committed by “Crazy John,” and introduced other evidence that the defendant used that moniker. The Kansas Supreme Court found the officer's testimony inadmissible because the tipster's statement “tend[ed] to identify the accused and establish his guilt .” 221 Kan. at 179. In doing so, the court adopted this directive:
“ ‘... This [hearsay] rule is not violated when “a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so ‘upon information received.’ “ [Citation omitted.] Such evidence is not admitted to establish the truth of the information received by the officer but rather to explain the reason for his approaching the scene and his subsequent conduct. [Citation omitted.]
“ ‘Where, however, the information as related to the jury directly or by necessary inference points to the guilt of the defendant, the testimony is inadmissible. [Citations omitted.’]” 221 Kan. at 178–79.
Compare State v. Jamison, 269 Kan. 564, 569–71, 7 P.3d 1204 (2000) (tipster's out-of-court statement identifying defendant inadmissible); State v. Rowe, 252 Kan. 243, 245–48, 843 P.2d 714 (1992) (informant's out-of-court statements inadmissible to explain officer's course of action because they were the only evidence identifying defendants and linking them to drug sales), Compare with State v. Johnson, 253 Kan. 75, 87–88, 853 P.2d 34 (1993) (witness' out-of-court statement identifying defendant admissible because “was not closely related to defendant's guilt”).
Hill claims the facts of his case are analogous to those of State v. DuMars, 33 Kan.App.2d 735, 108 P.3d 448,rev. denied 280 Kan. 986 (2005). In DuMars, an officer testified he had received information indicating the occupants of a specific residence (where the defendant lived) were involved in manufacturing methamphetamine; he had received information through interviews that the defendant was assisting in the manufacture of methamphetamine; and the drug task force had been receiving information about the defendant and another person at the address. This court, following the Thompson directive, held that the out-of-court statements were inadmissible because “the officer went beyond stating that the basis [for the warrant] was ‘information received’ to state that it was information that the defendant was involved in illegal activity.” 33 Kan.App.2d at 744. Here, Detective Bundy only went slightly beyond stating that the basis for the warrant was information received, stating that it was information garnered from Hill's jailhouse phone calls. Bundy did not state that the basis for the warrant was information that Hill was involved in illegal activity.
This case is more like State v. Fortune, 28 Kan.App.2d 559, 20 P.3d 74,rev. denied 271 Kan. 1039 (2001). In Fortune, an officer testified that he had received information that the defendant was trafficking marijuana from his residence. The State also introduced evidence that a search of trash from the defendant's residence yielded plastic bags containing marijuana, and a search of the defendant's residence yielded two scales, several bricks of marijuana, marijuana seeds, two baggies of amphetamine, “mushrooms” or psilocybin, a methamphetamine recipe, miscellaneous drug paraphernalia, and cash. Distinguishing Thompson, this court held:
“[The officer]'s testimony relative to the confidential informants' statements was offered not for its truth but only to explain why the officers began investigating Fortune. As such, it was not inadmissible hearsay and was not the only evidence tending to establish Fortune's identity and guilt. As a result, the trial court did not err in admitting the confidential informants' statements into evidence.” 28 Kan.App.2d at 571.
Here, Detective Bundy's testimony regarding the jailhouse phone calls was offered not for its truth but only to explain why the officers searched Hill's residence. Therefore, it was not inadmissible hearsay and was not the only evidence tending to establish Hill's identity and guilt. Garcia identified Hill as one of the intruders, Hill's fingerprints were found at Garcia's house, and a search of Hill's residence yielded an item stolen from Garcia's house.
The district court did not err by admitting evidence of Hill's telephone calls.
Hill further argues the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior juvenile adjudications to enhance his sentence without requiring the State to prove them to a jury beyond a reasonable doubt.
Hill acknowledges that this issue was decided against him in State v. Hitt, 273 Kan. 224, 236, 42 P.3d 732 (2002), cert. denied537 U.S. 1104 (2003). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2010), rev. denied 294 Kan. –––– (2012). There is no indication that our Supreme Court intends to depart from its position on this issue. See State v. Harris, 293 Kan. 798, 818, 269 P.3d 820 (2012) (reaffirming Hitt ).
The district court did not err by using Hill's prior juvenile adjudications to enhance his sentence.
Hill argues that even if no individual trial error is sufficient to support a reversal of his conviction, the cumulative effect of multiple errors was so great as to require reversal.
Resolution of this issue requires the appellate court to review the entire record and engage in an unlimited review. State v. Backus, 295 Kan. 1003, 1017, 287 P.3d 894 (2013).
The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ “ State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010) (quoting State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 12, 221 P.3d 1105 [2009] ).
For errors to have a cumulative effect that transcends the effect of the individual errors, there must have been more than one individual error. See State v. Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009); State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007). The one error made at Hill's trial—the prosecutor's improper comment on Martinez' race—cannot support application of the cumulative error doctrine.
There was not cumulative error.
Affirmed.