IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 85,244
STATE OF KANSAS,
Appellee,
v.
COREY R. GHOLSTON,
Appellant.
SYLLABUS BY THE COURT
1. Where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim's death was contributed to or caused by the negligence of the attending physicians or surgeons.
2. The trial court has broad discretion regarding the admission of demonstrative photographs. To determine whether such photographs should be admitted, a trial court must decide whether they are relevant and whether a proper foundation has been laid.
3. Photographs which illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death.
4. Evidence of gang affiliation indicating a defendant is a member of a gang or is involved in gang-related activity is admissible to show a motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof that such membership or activity is related to the crime charged.
5. In a criminal action, a trial court must instruct the jury on the law applicable to the defendant's theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed by the appellate court in the light most favorable to the party requesting the instruction.
6. An informant does not include a person who supplies information after being interviewed by police officers or who gives information as a witness during the course of the investigation. The crux of the definition of an informant is a person who acts as an agent for the State in procuring information. If someone does not meet the definition of an informant, the trial court does not err by failing to give an instruction on informant testimony.
7. Reversible error predicated on prosecutorial misconduct must be of such a magnitude as to deny a defendant's constitutional right to a fair trial. Where prosecutorial statements are not objected to at trial, if the claimed error has been determined to implicate a defendant's right to a fair trial, our standard of review is the same whether or not an objection was made at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue will be addressed.
8. The analysis of the effect of a prosecutor's alleged improper remarks in closing argument is a two-step process. First, we decide whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and manner or presentation of closing argument as long as the argument is consistent with the evidence. Second, we must decide whether the remarks constitute plain error, that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal.
9. Where a trial court's refusal to find a mitigating circumstance under K.S.A. 21-4637 is challenged by the defendant, the standard of review is whether, after a review of all the evidence, viewed in a light most favorable to the defendant, a rational factfinder could have found by a preponderance of the evidence the existence of the mitigating circumstance.
10 The trial court's weighing of the aggravating and mitigating circumstances is within its sound discretion and will not be disturbed on appeal absent an abuse of discretion.
Appeal from Sedgwick district court; REBECCA L. PILSHAW, judge. Opinion filed December 7, 2001. Affirmed.
Randall L. Hodgkinson, deputy appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the briefs for appellant.
Debra S. Peterson, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellant.
The opinion of the court was delivered by
LOCKETT, J.: Defendant appeals his conviction of premeditated first-degree murder, an off-grid felony, and his hard 40 sentence, claiming that (1) the evidence was insufficient to conclude that the victim died as a result of the shooting and (2) his right to confrontation was violated by admitting audiotapes into evidence without playing them before the jury. He further claims that the trial court erred by (1) admitting autopsy photographs, (2) admitting gang evidence without a limiting instruction, (3) failing to give an informant instruction, (4) failing to give an accomplice instruction, (5) allowing prosecutorial misconduct in closing argument, (6) committing cumulative trial errors, and (7) imposing the hard 40 sentence. Finally, he contends that the hard 40 sentencing provisions violate the Sixth and Fourteenth Amendments to the Constitution.
On October 4, 1995, at approximately 11:30 pm, Tiamesha Bell and her 2-year-old daughter, Brentashia, Debra McDonald, and Deandre Parker drove to a QuikTrip convenience store so McDonald could make a telephone call and Bell could shop. Parker, a member of a gang known as the Second Street gang, remained in the car with Brentashia.
While Bell was in the store and McDonald was using a telephone outside the store, several gunshots were fired in the parking lot and into the car where Parker and Brentashia were waiting. Two shots struck Parker in the arm. One shot struck Brentashia, entering the back of her head and exiting the front. The wounded Parker left Bell and McDonald and immediately drove to a hospital to get help for Brentashia.
Wichita police officer Steve Martin encountered Parker in the parking lot of Wesley Hospital. Parker exited his car and ran through the parking lot screaming hysterically, "I can't believe they shot that baby. The motherfuckers shot that baby. I can't believe they shot my baby." While striking himself on the head, Parker shouted, "Just kill me, just kill me."
Officer Martin, concerned that a baby was in jeopardy, opened the front passenger door of Parker's car and found Brentashia on the floorboard. Brentashia appeared to have an exit wound to the forehead. Although brain matter was oozing from the center of her forehead, the child was breathing. Hospital emergency personnel administered emergency care and placed the child on life-support.
The child's mother arrived a short time later. After consulting with the doctors as to her child's condition, the mother made the decision to "unplug" all the life support mechanisms attached to her child. Two-year-old Brentashia ceased to breathe.
No one identified the shooter for several years. Detective Michael Hennessy of the Wichita Police Department continued to pursue leads in the case. Among the suspects investigated by Hennessy was the defendant, Corey Gholston.
Gholston was a member of the Neighborhood Crips, a rival gang of Second Street. The investigation led to two witnesses, Kim Berger and Tiara Carolina. The witnesses informed the investigating officer that on the night of the shooting, they had been drinking heavily. They picked up Gholston and another man (the identity of the second man is unclear) in a stolen white van. The group went to the QuikTrip to buy blunt sticks (cigars hollowed out and filled with marijuana). When they arrived at the QuikTrip, they saw a rival gang member (Parker) sitting in a car in the parking lot. Berger drove the van around the QuikTrip and parked on a side street because she was either wary of a confrontation with a rival gang member or Gholston had instructed her to do so.
Gholston, the only one in the group old enough to legally buy tobacco products, exited the van to buy the cigars. When Gholston was a short distance from the parked van, shots rang out. Gholston ran back to the van. The van and all the cars at the QuikTrip quickly sped from the scene.
The witnesses' stories differ as to whether Gholston ran from his position in the parking lot before the gunshots stopped or after they stopped. Accounts also differ as to whether Gholston had a gun. There were rumors that after the shooting, Gholston broke a gun in pieces and buried it in an alley.
Antonio Presley, who was incarcerated with Gholston on another matter, told Officer Hennessy that Gholston was remorseful about shooting and killing a baby. In an interview with Kim Berger, Berger stated to Hennessy that Gholston expressed sorrow to her regarding the shooting.
More than 4 years after the shooting, Gholston was charged with the murder of Brentashia. Gholston's first trial resulted in a mistrial when the jurors were unable to agree on a verdict. A second jury trial resulted in Gholston's conviction of premeditated first-degree murder. Gholston was sentenced to the hard 40. He appeals both his conviction and sentence, raising numerous issues.
Evidence of Cause of Death
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). While the State must sustain its burden of proof on each element of an offense charged, some of these elements may be proved by circumstantial evidence and the logical inferences therefrom. State v. Wilkins, 269 Kan. 256, 267, 7 P.3d 252 (1999), (quoting State v. Harper, 235 Kan. 825, 831, 685 P.2d 850 [1984]).
For reasons unknown, the State introduced no medical evidence at trial that Brentashia was brain dead when her mother authorized the Wesley medical personnel to discontinue life-support measures. Gholston asserts that under the circumstances, the cause of the child's death was a question of fact for the jury to determine. Gholston contends that because there was no medical evidence establishing that Brentashia was brain-dead before life support was withdrawn, this court must declare, as a matter of law, that the decision to terminate life support was or could have been a superseding cause of Brentashia's death. According to Gholston, because (1) the trial court failed to instruct the jury on the element of causation and (2) there was substantial evidence upon which a jury could have concluded that the termination of life-support was the superseding cause of Brentashia's death, his conviction must be reversed.
The State contends that lack of evidence regarding the legal status of death is not reversible error. The State cites the Arizona case of State v. Fierro, 124 Ariz. 182, 603 P.2d 74 (1979), for support. The State's reliance on Fierro is flawed because in that case there was medical evidence that the victim was brain dead before the termination of life support, and, unlike Arizona, Kansas has a statutory definition of death.
For support, Gholston relies on K.S.A. 77-205 and State v. Shaffer, 223 Kan. 244, 574 P.2d 205 (1977).
K.S.A. 77-205 provides:
"An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards."
In Shaffer, the evidence revealed that at approximately 7:30 a.m. on February 29, 1976, a customer of the Louk Oil Station in Topeka discovered Donald Becker, a station employee, lying on the floor of the back room of the station. Becker had been shot in the head but was still breathing and had a definable pulse. Cash and a case of oil were missing from the station. An ambulance arrived at 7:51 a.m. and, at that time, Becker was breathing and had a pulse and blood pressure. Becker arrived at St. Francis Hospital at 8:28 a.m. The emergency room physician made a preliminary observation and immediately called a neurological surgeon, who performed manual tests for signs of life. The neurologist determined Becker had suffered irretrievable brain damage and advised the emergency room physician that Becker could be pronounced dead at any time.
Becker's mother was told her son was brain dead and that his body could be maintained by artificial means for an indefinite period. Becker's family made the decision not to prolong his life by a respirator and to allow his kidneys to be transplanted. Prior to the removal of the kidneys, a doctor examined Becker and determined Becker was, in fact, brain dead. At approximately 11 a.m., both kidneys were removed and the respirator was turned off. All bodily functions ceased.
At trial, the defendant called an expert witness who testified that more tests should have been given before death was pronounced. The defendant then argued to the jury that there was evidence that Becker's death was caused by the subsequent removal of the victim's kidneys, not the gunshot wound to the head. The defendant also asserted that the Kansas statutory definition of death was unconstitutionally vague because it allowed either of two separate standards, i.e., (1) irreversible cessation of circulatory and respiratory functions or (2) irreversible cessation of all functions of the entire brain, including the brain stem. The Shaffer court rejected that claim and found that determinations made upon "ordinary standards of medical practice," the standard included in the definition of death statute, K.S.A. 77-202 (Weeks), was sufficient to satisfy constitutional standards 223 Kan. at 249-50.
The Shaffer court then noted that three medical professionals had independently examined the victim and determined that he was dead prior to removal of organs necessary for the transplant operation. The court observed that K.S.A. 77-202 (Weeks) contained the following sentence: "These alternative definitions of death are to be utilized for all purposes in this state, including the trials of civil and criminal cases, and any laws to the contrary notwithstanding." 223 Kan. at 246. In 1984, the legislature repealed K.S.A. 77-202 (Weeks) and enacted the current statute, K.S.A. 77-205, which does not contain the sentence quoted.
The Shaffer court concluded by noting that Kansas was the first state to enact a statutory definition of death (K.S.A. 1976 Supp. 77-202). 223 Kan. at 249. Accordingly, the Kansas Act has been widely praised and criticized. By providing the brain death alternative, it recognizes the fact that modern science has developed equipment that makes the traditional cardiac-respiratory test obsolete as the only test. The alternative test is based on practical medical considerations in keeping with advanced medical technology. The Shaffer court concluded that the defendant's constitutional point was without merit and found that there is no constitutional requirement that a single standard be used. 223 Kan. at 249.
Gholston argues that Shaffer requires medical evidence to establish the cause of death in a criminal trial, and because no evidence as to the cause of death was presented by the State at his trial, the evidence is insufficient to conclude that Brentashia was legally dead from a gunshot wound at the time life-support measures were terminated. We disagree.
While K.S.A. 77-205 provides the legal definition of death, and it is standard practice to include evidence satisfying the legal definition of death at trial, the lack of evidence specifically satisfying that definition under some circumstances does not create an issue of whether death was caused by the criminal act of the defendant or by a superseding incident.
The evidence presented at Gholston's trial was indisputable. Someone fired a gun that resulted in Brentashia being shot in the head. A photograph introduced into evidence shows the entrance wound was in the back of her head, and the exit wound, which is larger than the child's eyes, was between the child's two eyes and slightly above her eyebrows. In addition to the photograph, two law enforcement officials who observed Brentashia shortly after the shooting noted "brain matter oozing" and blood "rushing" from the exit wound.
Brentashia's mother, who was with Brentashia in the hospital after the shooting, when asked at trial whether Brentashia was alive at that time, responded, "To be honest, I don't think so." Gregory Burge, a crime scene investigator, took pictures at the hospital and the morgue to make a photographic record of the injuries that led to Brentashia's death. Burge tagged Brentashia's body on October 7, 1995, 1:38 p.m., and attended the autopsy the next day. Burge testified, without objection, that Brentashia died of a gunshot wound.
At trial, Gholston did not challenge the fact that Brentashia's death was caused by a gunshot wound. Gholston presented no evidence suggesting there was a superseding cause of death. There is no evidence that Brentashia's organs were harvested or that her life was terminated to facilitate the surgery to remove the organs. The only issue raised at trial was the identity of the shooter. There was no dispute that Brentashia sustained gunshot wounds to her head.
We refer again to Shaffer. During Shaffer's trial, Shaffer argued to the jury that Becker's death was not caused by the gunshot, but it was caused by the operation and removal of the kidney. The following instruction was given the jury.
"'With regard to Count I of the information, one of the theories of the defense herein is that the kidney transplant was the cause of the death of Donald W. Becker and not the gun shot [sic] wounds to the head. You are instructed in this regard that if you find defendant did cause the wounds to be inflicted on the person of Donald W. Becker then you must determine whether the act of defendant contributed to the death of Donald W. Becker. If you find defendant's acts contributed to the death of Donald W. Becker then responsibility cannot be avoided by the fact that independent causes such as the negligence of others also contributed to the death. However, if you find the cause of death resulted solely from erroneous treatment by the physicians you must acquit defendant of the offense charged in Count I.'" Shaffer, 223 Kan. at 249-50.
The Shaffer court noted that the defendant introduced expert evidence on his theory of insufficient testing to determine the cause and time of death. The court observed that where a person inflicts upon another a wound which is calculated to endanger or destroy life, it is not a defense to a charge of homicide that the alleged victim's death was contributed to or caused by the negligence of the attending physicians or surgeons. It concluded that under these circumstances the instruction given was a proper statement of the applicable law. 223 Kan. at 250.
Viewing the evidence in a light most favorable to the State, the evidence presented at trial was sufficient for the jury to find that Gholston fired the gun that caused the wound to Brentashia's head. Under the circumstances, even though the child was breathing and had a pulse before taken off life support, Gholston is responsible for the child's death because he inflicted the wound that caused or contributed to the child's death. Gholston's claim there was a superseding cause of death fails.
Right to Confrontation
Gholston contends reversible error was committed when audiotapes were admitted into evidence without previously being played before the jury in open court. Gholston asserts this procedure violated the United States Constitution's Confrontation Clause. For support, Gholston relies on State v. Brockenshire, 26 Kan. App. 2d 902, 912, 995 P.2d 905 (2000).
In Brockenshire, tape recordings of drug transactions without a proper foundation were admitted into evidence. The tapes were not played in open court. The jury listened to the tapes during its deliberations. The defendant had objected to sending the tape for jury consideration without playing it in open court. On appeal, Brockenshire claimed violation of several rights including his Sixth Amendment right to confront evidence and witnesses against him. The Brockenshire court held that the improper admission of the tapes and defendant's lack of opportunity to confront the evidence in the presence of the jury contravened his Sixth Amendment right of confrontation. 26 Kan. App. 2d at 912. The Brockenshire court then analyzed the issue under the federal constitutional error rule, found reversible error, and granted Brockenshire a new trial.
Here, Gholston's defense counsel objected to the admission of the tapes as hearsay rather than lack of foundation. In fact, after extensive questions to the witnesses pointing out inconsistencies between the contents of their taped interviews with Hennessy and their testimony in court, the judge encouraged the defense counsel to play the tapes in open court. After defense counsel declined the invitation to do so, the judge stated: "If we're going to go through this [extensive cross-examination], let's just play the tape." Defense counsel replied:
"It's not entirely on the tape. A lot of the things are not on the tape. There's some comments I'm making on this, and this is the only opportunity I'm going to get to cross-examine the matter that is on the tape, and that's not the only matter I have to do that."
The judge responded: "But you're not cross-examining this witness. You're simply asking him what's on the tape." Defense counsel answered, "Well, that's true to some extent, but a lot of it is intended to simply impeach evidence that came about through Kim Berger, Tiara Carolina, Ron Snyder." The judge informed defense counsel that she would allow the cross-examination without playing the tape, if defense counsel ceased going line by line through the interviews. Defense counsel agreed, and the cross-examination continued.
During cross-examination, defense counsel pointed out to the jury many inconsistencies on the tapes and contradictions between statements made by the witnesses on the tapes and statements made by those witnesses at trial. At the end of his cross-examination of the State's witnesses, defense counsel said, "Your Honor, conditioned on the Court's ruling on [my objections to the admission of the content of] these tapes and one additional tape, I don't have any more evidence." The "additional tape" alluded to by defense counsel was a taped interview between a State's witness, Kim Berger, and defense counsel. Defense counsel made a particular objection to some prejudicial information on a taped statement made by one of the State's witnesses, Antonio Presley. The judge then stated that they would discuss counsel's objections to the tapes off the record.
The next morning, before reconvening the jury, the judge stated to the parties:
"When we left yesterday, we had -- we went back in chambers, and then we had discussed also in court the admissibility of the tapes. That would be Exhibit 25 -- that's Mr. Presley's taped statement. I understand, Mr. Kaufman, that you have redacted that pursuant to the request made of you by Mr. Svoboda; is that correct?
"MR. KAUFMAN [Prosecutor]: Yes. Specifically Mr. Svoboda and I spent about 20 minutes last night after court adjourned. He and I went over the transcript of Mr. Presley page for page, and we agreed on specific sections to be redacted. That occurred, and I will also submit a clean copy of the transcript which reflects those areas upon which we agreed pursuant to the redaction, and so I have the redacted tape with me in court today.
"THE COURT: Thank you. And, of course, by making the request for the redactions, Mr. Svoboda, I do note that you do have a standing objection to that, and you've made your argument about why that should not be admitted and that you're not actually conceding that it is admissible in your viewpoint.
"MR. SVOBODA [Defense counsel]: That's correct, Judge. And not only the tape involving Antonio Presley; I also object to the admissibility of the tapes regarding Kim Berger, Tiara Carolina.
"As the Court is aware, I have filed a memorandum in opposition to admission into evidence of those tapes. I think the Court had indicated that there was going to be -- that it would be a part of the record, or would you prefer that I file that, Judge, with the clerk?
"THE COURT: I've got it right here. We'll show it filed with the Court, and it will go along with the file and become a part of the court file. All right.
"MR. SVOBODA: And I also, Judge -- Mr. Kaufman and I have discussed the introduction of the tape that we have concerning Kim Berger's interview with my detective and myself. We understand this Court's ruling is going to be admissibility of the tapes. I have discussed with Mr. Kaufman a stipulation to foundation, simply for that purpose, retaining my objection on purposes of admissibility."
The judge ruled:
"THE COURT: All right. Pursuant to my ruling yesterday, I am finding that the redacted statement, Exhibit Number 25, is admissible.
"I find that the tape that was offered yesterday afternoon of Kim Berger with Detective Hennessy will be admissible as well as the taped interview between Mr. Svoboda and Ms. Berger, which has been marked as number 34. That has not been offered yet in front of the jury yet.
"MR. KAUFMAN: Correct.
"THE COURT: The tape of Tiara Carolina's interview, Exhibit Number 37, is admissible, and Defendant's Exhibit A [tape of interview between Svoboda and Berger] is admissible as well. I will admit them in front of the jury."
The judge admitted the tapes when the trial reconvened. When admitting the tapes, the judge reiterated that the prosecutor and the defense had stipulated to foundation, explaining to the jury that the defense would not require that a witness take the stand to authenticate the tape. The judge stated, "[Gholston's] admitting that [the tapes are] authentic, and that's what that [stipulation] is."
At trial, the State's witnesses were vague in their recollections and no witness unequivocally implicated Gholston as the shooter. The tapes, however, do contain statements that directly implicate Gholston in the shooting, identifying him as the shooter and attributing statements to Gholston where Gholston showed remorse for killing the baby. The tapes, therefore, were important to the prosecution because they contained the primary evidence against Gholston. Defense counsel was allowed to energetically and exhaustively impeach the tapes by confronting the witnesses with inconsistencies between the taped interviews and their testimony at trial. Several of the witnesses testified that they implicated Gholston in the taped interviews because Hennessy coerced them by threats to pursue criminal charges against the witnesses for their roles in the shooting.
We find that this case is distinguishable from Brockenshire. Here, the defense stipulated to the foundation for the tapes, and the judge, on numerous occasions, offered to play the tapes in open court and the defense attorney declined to do so. Under these circumstances, the trial court did not err in admitting the tapes for jury consideration without first playing the tapes in open court.
Autopsy Photographs
The trial court has broad discretion regarding the admission of demonstrative photographs. To determine whether such photographs should be admitted, a trial court must decide whether they are relevant and whether a proper foundation has been laid. State v. Roberts, 261 Kan. 320, 329, 931 P.2d 683 (1997).
Over defense objection, the trial court admitted photographs of the child in the hospital connected to life support equipment and the autopsy photo depicting the child's head wound. When admitting the photos into evidence, the trial court stated: "It's not disputed how [Brentashia] died or what the circumstances were that led to [Brentashia's] death. However, this jury has the right to get a complete picture."
Gholston argues that the photographs were irrelevant and inflammatory. Gholston asserts that the photographs were erroneously admitted because there was no disputed fact that the photographs tended to prove and were admitted solely to inflame the emotions of the jury.
It is well established that photographs which serve to illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death. State v. Coyote, 268 Kan. 726, 737-38, 1 P.3d 836 (2000).
Even where the defendant concedes the cause of death, the prosecutor has the burden to prove all the elements of the crime charged and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997).
The hospital photograph showed Brentashia's forehead bandaged, blood soaking through the bandages and life-support equipment attached to her body. The photograph illustrated the nature and extent of the wound inflicted. It showed the medical attention Brentashia required after being shot. It corroborated the police officers' testimony as to the extent of the injuries they observed upon first seeing Brentashia at the hospital. The first photographs corroborated the testimony of Brentashia's mother about her observations of Brentashia's condition. The second photograph showed the exit wound to Brentashia's forehead. This photograph corroborated the testimony of the police officers who attended the autopsy. The trial judge did not abuse her discretion in admitting the two photographs.
Gang Evidence
At trial, over defense objections, the State introduced substantial evidence of gang membership of several parties and witnesses, including Gholston and Parker. Although defense counsel did not request a limiting instruction regarding admission of the gang affiliation evidence, Gholston now argues to this court that the trial court erred by admitting gang evidence without an appropriate limiting instruction. Gholston analogizes the gang